Special advocate role expected to be added to help represent accused and satisfy the Supreme Court

October 22, 2007 (Toronto Star)
michelle shephard staff reporter


The federal government is expected to propose a new national security certificate law today that permits the use of secret intelligence, but allows a special court advocate to challenge its validity.

The Supreme Court of Canada in February struck down the controversial immigration law that gives the government power to deport non-citizens deemed national security risks. The secrecy of the process violated the constitutional right to fair trial, the high court wrote in a unanimous ruling. Parliament was given one year to amend the law.

Intelligence and security experts have been speculating for months that the government would leave the law largely intact except for the introduction of a special advocate provision. Public Safety Minister Stockwell Day hinted as much last month at a Calgary security conference.

"The security certificate legislation as a whole, will remain whole," Day said.

On Friday the government included "special advocate" in their description of the bill to be tabled this afternoon an indication they'll propose the use of security-cleared lawyers who are mandated to represent the accused in closed-door sessions.

The proposed legislation will directly affect five non-citizens the government is attempting to deport and will determine how Canada handles terrorism investigations involving refugees and landed immigrants.

Only Hassan Almrei, a former Toronto resident accused by Canada's spy service of running a forgery ring tied to Al Qaeda, remains in custody at an immigration prison in Kingston after being denied bail earlier this month. Four others have been released on strict bail conditions that amount to house arrest.

Critics of the immigration law say the introduction of special advocates, often referred to as amicus curiae, or "friend of the court," would not ensure fair trials unless they are given the power to adequately challenge the evidence.

"It will be a real test of the government to see if they're interested in justice or trying to create a process that will get them by the Supreme Court," said lawyer Paul Copeland, who represents two of the terrorism suspects.

Toronto lawyer Lorne Waldman and Ottawa law professor Craig Forcese assessed the use of special advocates this summer for a study called "Seeking Justice in an Unfair Process."

Their report recommended the use of special advocates only if the government gives them full disclosure of evidence, if they have unfettered access to the accused and if they get resources and training needed to be effective in the closed-door hearings.

Copeland also stressed the importance of having truly independent advocates, saying the process would be meaningless if the government hired "a bunch of hacks."

The Supreme Court ruling was damning in its criticism of the use of uncontested intelligence. Once the government signs security certificates, the power to deport a non-citizen ultimately falls to the judge, who has to, based in part on secret intelligence, either uphold the certificate as "reasonable" or quash it.

Writing for the unanimous court, Supreme Court Chief Justice Beverley McLachlin said this secrecy violated the fundamental right to fair trial enshrined in the Constitution. A judge who reviews the certificate and the government's evidence, uncensored, "simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing."

"Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted," McLachlin wrote. "How can one meet a case one does not know?"

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