In September 2008, two court-appointed special advocates filed affidavits in Federal Court arguing that, under the restrictions imposed by the new security certificate provisions of the IRPA, mounting a proper defence for the detainees they represent is impossible.
In particular, these two special advocates, working on behalf of three of the five men currently held under security certificates, are concerned about s. 85 of the Act which limits communication between the advocates and their clients. (Although I am using the word client here, it is important to remember that a formal lawyer/client relationship does not exist in these cases. It is based in part of the fact that lawyers formally representing security certificate detainees would find themselves in positions of conflict of interest in that in most cases, they cannot fully disclose to their clients the evidence against them. Detainees may have additional counsel who are not on the list of approved special advocates. )
These affidavits were filed in support of a motion by Lorne Waldman, attorney for detainee Hassan Almrei, arguing that the current provisions violate his client's Charter guarantee of fundamental justice (s.7) and the special advocates guarantee of freedom of expression (s.2b). If the court will not strike down the current legislation, the motion calls for the Court to "read down" the law to allow for communication between the special advocate, the detainee and their counsel after the special advocate views the confidential information without requiring a judge's authorization. Special advocates would not be able to disclose confidential information but would have continued access to the detainee.
These two special advocates are arguing that the Special Advocate provisions in the Act make it difficult for them to do their job and that the confidentiality and national security provisions not only limit communication with the detainees once the advocates have seen the confidential 'evidence', but may in fact prevent communication with office staff, other special advocates and even individuals appointed by the Government to support the special advocates, unless expressly granted by a judge. The non-disclosure provisions do not apply to government counsel.
The Canadian Bar Association has criticized the new legislation both in its development stage and since its enactment and a key area of criticism was the blanket non-disclosure provisions contained in the Act.
The government is arguing that the current provisions appropriately balance the need to protect the rights of the detainee and the national security imperative and should be upheld. Further, it suggests that the non-disclosure not only of confidential 'evidence' but also of information regarding the proceedings (e.g. number of witnesses and the agencies they may be affiliated with, etc.) is necessary for the success of the security certificate process.
The Federal Court ruling has not been announced as of this post but will have an enormous impact on the use of these certificates. If this challenge is successful, it may mark the beginning of an entire new round of policy discussions and provide an opportunity for renewed mobilization around the issue.
Canadian Bar Association information
Ctv news story regarding Court challenge