Federation says restrictions on role of special advocate unnecessary for national security

The Federation of Law Societies of Canada has recommended changes to the federal Immigration and Refugee Protection Act (IRPA) in response to the government’s consultation green paper, “Our Security, Our Rights: National Security Green Paper, 2016”. The Federation’s brief focuses on the special advocate regime currently in place, and the potential use of security cleared lawyers in criminal, civil and administrative proceedings.

Recommendations are focused on ensuring the rights of individuals in legal proceedings be upheld by enhancing disclosure to special advocates, while recognizing that national security interests will at times restrict the information that can be disclosed.

The four recommendations would ensure that special advocates have access to all material related to the named individual that is in the possession of the government, the right to challenge the scope of information provided by the government, measures in place to, at a minimum, ensure a continuing disclosure obligation on the government of all inculpatory and exculpatory evidence and access to the named individual and the individual’s counsel throughout the entire proceeding.

The first recommendation was also made in a submission on the same issue in 2007, when the Federation stated that to effectively perform their role, special advocates must have access to the same information that the government possesses. Not only was this concern not adequately addressed following the 2007 consultations, amendments to the IRPA in 2015 further restricted the access of special advocates to this information.

The existing scheme unnecessarily restricts the ability of special advocates to protect the interests and rights of individuals named in security certificates. In its 2016 submission, the Federation again emphasized that restrictions on the special advocate’s access to information are unnecessary to protect national security and may unduly hamper the ability of the special advocate to protect the interests of the named person.

“Without seeing all of the information about the named person that is in the government’s possession, there is a real risk that the special advocate will be denied access to valuable information that could serve the individual’s interests” the brief states.

The Federation also notes that “legal proceedings that take place in the absence of the individual whose rights and freedom are at stake represent a significant departure from the principle of open and transparent proceedings that is a foundation of the Canadian system of justice. While national security may justify this departure, in the submission of the Federation it is critical that the special advocate be given as much scope as is reasonably possible to protect the interests of the named person.”

The Federation says this includes ensuring that special advocates are able to scrutinize, challenge and rely on all information and evidence that may assist them in protecting the rights of the named person.

In the submission, the Federation states there is no evidence that providing full disclosure would present any additional risks to the security of the confidential national security information. “The legislative scheme and the oath required of special advocates provide the necessary safeguards to maintain the secrecy of that information.”

The third recommendation is that if the government does not amend the legislation as proposed, by the Federation, as a minimum “the IRPA should be amended to expressly oblige the Minister to continually disclose information to special advocates as it becomes relevant over the course of a proceeding.” The legislation currently does not specify the timing and extent of the Minister’s disclosure obligation.

Finally, the Federation has also recommended that the legislation be amended to guarantee the special advocate access to the named individual and the individual’s counsel throughout the entire proceeding, subject to the obligation not to disclose secret evidence.