Backgrounder
The Department of Justice is seeking applications from private sector law practitioners interested in being considered for appointments to act as special advocates pursuant to Bill C-3. If passed by Parliament, the Minister of Justice will be responsible for establishing a list of persons who may act as special advocates as well as for publishing such a list of special advocates. As a result, the Department is looking for law practitioners who have the specified background and experience in order to establish a roster of special advocates.
On February 23, 2007, the Supreme Court of Canada ruled in Charkaoui1 that the security certificate provisions in the Immigration and Refugee Protection Act were unconstitutional because the process violated the rights of persons named in a certificate to a fair hearing. The Supreme Court of Canada suspended the declaration of invalidity for one year to give Parliament time to amend the security certificate legislation.
The Government has responded to Charkaoui with Bill C-3.2 This new legislation, if passed by Parliament, would add a special advocate regime to security certificate and related proceedings under the Immigration and Refugee Protection Act. It strikes a balance between protecting the rights of persons named in a certificate and ensuring the confidentiality of information which, if disclosed, would be injurious to national security or endanger a person’s safety.
Appointments to the eligibility list are contingent on Parliament passing Bill C-3 into law. The government is moving now so that the special advocate system is operational when the new law takes effect .
What are security certificates?
Security certificates are issued by the Minister of Citizenship and Immigration and Minister of Public Safety where they have reasonable grounds to believe that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.
Once the Ministers issue a security certificate, it is referred to the Federal Court. If the Federal Court determines that the certificate is reasonable, it becomes a removal order against the person named in the certificate.
The security certificate process permits the Ministers to present information to the Federal Court in the absence of the person named in the certificate or their lawyer, where the Court is satisfied that disclosure of the information would be injurious to national security or endanger the safety of a person.
What are special advocates?
Special advocates are lawyers who will be independent of government and appointed by the Court to protect the interests of persons named in certificates during the hearings from which persons named in certificates and their own lawyers are excluded. Special advocates will not, however, be in a solicitor-client relationship with the person named in the certificate.
Special advocates will have the required government security clearance for accessing information which the government must keep confidential because its disclosure would be injurious to national security or endanger a person’s safety. Special advocates will be under strict obligations to maintain the confidentiality of that information.
What will special advocates do?
Special advocates will have two main functions.
First, they will be able to challenge government claims that certain information must remain confidential and cannot be disclosed to the person named in the certificate or their own lawyer.
Second, they will participate in the closed hearings by cross-examining government witnesses who testify, and by making submissions on the relevance, reliability and sufficiency of the government’s evidence.
Can special advocates talk with the person named in a certificate?
Before special advocates see the confidential information, there are no restrictions on their ability to communicate with persons named in a certificate. At this stage, special advocates and the person named in a certificate can discuss the case based on the public information and summary of confidential information. This will help the special advocates prepare for the hearings from which the person named in the certificate and their own lawyer are excluded.
After the special advocates see the confidential information, they may not communicate with anybody about the proceeding, unless and except as approved by the judge.
What proceedings will involve special advocates?
Special advocates will be appointed in all security certificate cases before the Federal Court. They will be involved in hearings into the reasonableness of the certificate and detention reviews, as well as any appeals from those decisions.
Special advocates also will be appointed in cases before the Immigration and Refugee Board where the government relies on confidential information to allege that a permanent resident or foreign national is inadmissible to Canada on grounds of security, violating human or international rights, serious criminality or organized criminality. In these cases, special advocates would participate in admissibility hearings and detention reviews before the Immigration Division, as well as any subsequent appeals to the Immigration Appeal Division.
The Federal Court also has discretion to appoint a special advocate, where fairness requires, on judicial review of other decisions rendered under the Immigration and Refugee Protection Act where the decision-maker relied on information which must remain confidential because disclosure would be injurious to national security or endanger a person’s safety.
How are special advocates appointed?
The Minister of Justice is responsible for appointing special advocates to a list, based on qualifications which will be set out in the regulations.
The Federal Court judge hearing a case is responsible for selecting a special advocate from the list to act in a particular case. The judge is required to give particular consideration and weight to the preferences of the person named in the certificate when selecting a special advocate.
How will special advocates be paid?
The Government will pay the legal fees for special advocates on an hourly basis at a rate that reflects the special advocate’s level of experience and other relevant considerations.
Why is the Minister inviting candidates to apply for appointment to the special advocate list before Parliament passes Bill C-3?
The Government hopes that Parliament will pass Bill C-3 before the Charkaoui suspended declaration of invalidity expires, and is taking steps to ensure that the special advocate system is operational when the new law takes effect.
By starting the special advocate selection process now, the Minister aims to ensure that candidates will be appointed to the list through a fair and effective process. In addition, it also will ensure that there is sufficient time for special advocates to obtain their security clearances and receive appropriate training.
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Department of Justice Canada
December 2007
1 Charkaoui v. Canada (MCI) , [2007] 1 S.C.R. 350. Available online at: http://scc.lexum.umontreal.ca/en/2007/2007scc9/2007scc9.html.
2 An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act . Available online at: http://www2.parl.gc.ca/content/hoc/Bills/392/Government/C-3/C-3_2/C-3_2.PDF.
