Frequently Asked Questions: Bill C-3 and Special Advocates

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 security 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.

Why is the Government introducing special advocates?

On February 23, 2007, the Supreme Court of Canada ruled in Charkaoui 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. This new legislation adds 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.

How does the use of special advocates address the Supreme Court of Canada decision?

The use of special advocates provides for the protection of an individual's rights by ensuring a person's interests are adequately represented during closed proceedings. This model strengthens an important public safety tool by making it fairer to the person subject to the certificate process, while recognizing the need to prevent the disclosure of confidential 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.

What type of professional development and training will the special advocates receive?

Special advocates will be offered professional development and training on:

• the use, handling and review of confidential information;
• security intelligence;
• the Immigration and Refugee Protection Act.

What proceedings will involve special advocates?

Special advocates will be appointed by the Federal Court in all security certificate cases and will usually reflect the concerned individual's choice of a special advocate. The special advocate will be involved in hearings into the reasonableness of the certificate and detention reviews before the Federal Court, as well as any appeals from those decisions.

Special advocates will also be appointed by the Immigration and Refugee Board in cases 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 will 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 confidential information the disclosure of which would be injurious to national security or to the safety of any person.

Who selected the list of persons who may act as special advocates?

The Minister of Justice created an advisory committee to review special advocate applications.  The advisory committee is independent of government and makes recommendations to the Minister about which candidates should be selected to the list.  The Minister makes the selections to the list. 

The advisory committee is headed by a retired judge, Andrew MacKay, and includes representatives from the Federation of Law Societies and the Canadian Bar Association.

The list will be expanded when the Minister of Justice deems it necessary.

Will an individual subject to a security certificate be able to avail him/herself of a special advocate?

Yes, all individuals subject to a security certificate will have access to a special advocate.

Can the Special Advocate speak with the person named in the security certificate? What are the steps/process a special advocate will have to follow?

Prior to seeing the confidential information, the special advocate's ability to communicate with the subject of the security certificate will be unrestricted. At this stage, the special advocate will have the benefit of a summary of the case to discuss with the subject. This should assist the special advocate to prepare for the closed court proceeding.

Once the special advocate has reviewed the confidential information, he/she may not communicate with anyone about the proceeding during the remainder of the proceeding, unless and except as authorized by the judge.

The judge can authorize whether and how the Special Advocate may communicate with the concerned individual after the SA has seen the confidential information, subject to the special advocate's continuing obligation not to disclose the confidential information and subject to any other restrictions the judge may impose.