OTTAWA - A special advocate in the new trial system for alleged terrorist risks threatened with deportation, says the measures were passed in such haste that secrecy prevents him from even informing his secretary when he attends an in-camera hearing.
Ottawa lawyer Gordon Cameron is one of 19 special advocates the government named in response to a landmark Supreme Court of Canada ruling last year saying security certificate deportation provisions of the Immigration and Refugee Protection Act violated the Charter of Rights.
But, just as secret Federal Court hearings are being renewed for five refugee claimants with alleged terrorist links, Cameron has warned senators the act should be amended once more to correct failings that remain after the court-ordered amendments were rushed through Parliament last February.
In fact - though Cameron did not say it explicitly when he testified at a recent Senate committee hearing - the government and Parliament may not have satisfied the Supreme Court’s chief concern that those named for deportation in security certificates were being denied the ability to mount a full defence in a fair trial.
Cameron told the Senate special committee on anti-terrorism he and other advocates have consulted with each other and “surprisingly, among a group of lawyers” agreed the faults must be corrected for the act to work as intended by the Supreme Court.
The failings centre on restrictions that prevent the special advocates - introduced as a safeguard to screen evidence the government presents in closed Federal Court hearings - from seeing all the information the government has gathered about those alleged to have terrorist links.
The advocates, contrary to what the Supreme Court implied should be the case, are allowed only to view evidence and information the government presents as evidence in court. They do not have access to all of the government’s information about those facing deportation.
Another failing is a requirement that the advocates must obtain permission from a judge to be able to communicate with those named in the certificates. The advocates cannot even communicate with government lawyers.
“I now have been involved in two of the security certificate cases as a nominated special advocate,” Cameron told the committee. “We are already working out the order we need from the judge to correct the errors in the legislation.
“In other words, the first thing we do upon entering the courtroom is to request leave for the special advocate to talk to the government lawyers about the proceeding . . . I am prohibited from telling my secretary that I am going to a closed proceeding today. The special advocate and the general or outside counsel, the lawyer for the named person, cannot talk to each other. I cannot tell him that the hearing starts next week or there we were hearing evidence for five days this week.”
Cameron appears to have the most experience with sensitive security information among the 19 special advocates; he told the senators he has completed 20 hearings as a special counsel doing similar legal work for the security and intelligence review committee.
In those cases, where the SIRC was responding to complaints about activities of the Canadian Security and Intelligence Service, Cameron had access to all sensitive information and evidence in the case and also had access to the complainants.
Chief Justice Beverley McLachlin used the SIRC system as an example in the unanimous judgment she wrote for the security-certificate case. She also cited the existing special advocate system in place in the United Kingdom for security cases, and noted past criticism that advocates there are not allowed to take instructions from appellants or their counsel.
In an interview, Cameron stresses the risk of allowing advocates without experience in intelligence cases access to sensitive information while at the same time allowing them to communicate with those named for deportation under the security certificates.
“The advocate might not know what is safe; that’s a real risk,” he tells Law Times.
Toronto lawyer Paul Copeland, another of the special advocates who has been assigned to two of the cases, agrees the new measures are unduly restrictive.
He tells Law Times he intends to ask for every bit of government information he believes is necessary.
“If there’s an informant, I’ll want to see every report the informant ever produced,” he says.
Comparing access to government information in the deportation cases to the requirement for disclosure in criminal trials, Copeland says as long as the act does not specifically prevent access to the evidence, judges will be free to disclose it.
“If the legislation is silent about it, we’ll develop some rules as we go along,” he says.
The lack of access by those named in the security certificates to the evidence and allegations against them, combined with restricted access even on the part of the judge, was at the centre of McLachlin’s ruling that the law violated s. 7.
“The fairness of the IRPA procedure rests entirely on the shoulders of the designated judge,” she wrote. “Those shoulders cannot by themselves bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person’s knowledge of the case to be met.”
Liberal Senator George Baker, a member of the anti-terrorism committee, says there is little question the Supreme Court was suggesting the security-cleared advocates should have access to all government evidence, as well as access to those named in the security certificates and their counsel.
“The system cannot work as ordered by the Supreme Court of Canada,” Baker tells Law Times, adding the committee will likely recommend amendments when it reports to the government in December.