Ottawa - The inclusion of two high-profile former Justice Department lawyers on a roster of special advocates for security-certificate cases involving alleged terrorist links, is raising questions among lawyers who specialize in the area.
A lawyer representing an Algerian man facing deportation over alleged connections with terrorist groups says he was shocked to learn Barbara McIsaac, the government’s chief counsel in the Maher Arar inquiry, and Ivan Whitehall, former chief general counsel for the Justice Department, are among the 13 special advocates.
Toronto lawyer Paul Copeland, who represents Algerian refugee claimant Mohamed Harkat and was also included on the special advocate roster, tells Law Times he was taken aback when he learned at a week-long training session in Ottawa the two former government lawyers would be fellow advocates.
“I just about fell off my chair,” says Copeland, who is seeking to serve as a special advocate in Harkat’s case even though he has represented him in earlier court hearings.
Under a new law Parliament passed in February, after the Supreme Court of Canada struck down the previous security-certificate provisions as unconstitutional, the special advocates will have access to secret government information that had been withheld from Harkat and four other men who face deportation over alleged terrorist links.
The advocate system was introduced, at the suggestion of the Supreme Court, as a way of allowing independent counsel to screen secret evidence and make arguments about its relevance, value, and reliability before Federal Court judges, who will be hearing the cases behind closed doors.
But the advocates will be sworn to secrecy and be prohibited from discussing the information they see with anyone named in the security certificates or their lawyers.
Copeland says the past legal work McIsaac and Whitehall performed for the government is a double-edged sword.
“The advantage they have is that they know this secret stuff,” he says. “The disadvantage is that they’ve been representing that side for so long, you’d think they might not do such an effective job, but maybe they know the ins and the outs more than anybody else.”
Another lawyer said the presence of McIsaac and Whitehall is bound to be a “huge issue.”
McIsaac and Whitehall both brushed off suggestions their government work will affect the integrity of their duties as special advocates.
“I thought somebody would say that,” McIsaac tells Law Times. “I think it’s nonsense, and you can use the word nonsense.”
McIsaac is managing partner of the McCarthy Tétrault LLP Ottawa office. Her resume includes serving as senior counsel to the Somalia inquiry, which investigated allegations of brutality by former members of the Canadian Airborne Regiment during a peacekeeping mission in the early 1990s.
During the more recent inquiry into Maher Arar’s rendition to Syria by U.S. authorities and his subsequent torture, McIsaac went toe-to-toe against Lorne Waldman, one of Arar’s lawyers, as he sought the release of secret government evidence in that case.
“I haven’t been a member of the Department of Justice for 14 years,” McIsaac says. “But more importantly, I am an advocate in the true sense of the word. I act for my client, and that fact that I may have in the past acted for the Department of Justice is immaterial.”
McIsaac, among other things, is currently representing Chief Electoral Officer Marc Mayrand in a Federal Court battle with the federal Conservative party over campaign advertising expenses Conservative candidates claimed for the 2006 election.
Whitehall, who retired from the Justice Department four years ago after 32 years service, was equally demonstrative about suggestions his government work should be considered as a negative.
“That’s sheer nonsense,” he tells Law Times. “I’m a lawyer. I fulfill my statutory duties and my legal duties according to my retainer and I don’t advocate because I believe personally one thing or another. I like to think that I’m a professional and I do what needs to be done in a particular case.”
Whitehall and McIsaac say their experience will help, not detract from, their work as advocates.
Waldman declined to take a position on their inclusion on the roster of advocates - who have already been sworn to secrecy over some of the information they were given during the training session two weeks ago.
“Some of the briefings we received last week were secret and top secret,” Waldman tells Law Times.
He, Copeland, and Ottawa lawyer Gordon Cameron, another advocate, note the new law gives those named in the security certificate the opportunity to select their preferred advocates from the roster.
“They will be able to look at the background of the different individuals and make a judgment as to what people might best be able to represent their interest in the closed hearing,” he says.
Cameron, who has performed a similar role reviewing secret evidence in front of the Security Intelligence Review Committee for the past 10 years, says the view among lawyers involved with the issue is that another Supreme Court challenge is “inevitable,” even with the advocate system.
Despite that, Cameron says it is essential to keep some evidence secret, citing information from a confidential informant in a terrorist cell as one example.
“You’d sure want to tell the judge that, but if you told the world, that guy would be face down in the river the next morning,” he tells Law Times. “I think we are going to have trials where information is received in the absence of the named person and the public, and the only thing we can do is make them as fair as possible with something like the special advocates program.”
Newly declassified evidence the Justice Department filed in Federal Court against Harkat and the other four men accused of having past links to terrorists appeared to be based more on publicly available information than informants.
In Harkat’s case, the public brief the Justice Department filed after the new law took effect cited as its sources at least 49 newspaper articles, more than a dozen references to Jane’s World Insurgency and Terrorism publications, seven books, eight web sites and five separate references to one article in a news magazine.