Cross-referencing: National Security Law (NSL), Ch. 10, p. 405 et seq.; p.417 (note 174 and accompanying text). See also posting below "Uncertainty in the Canada Evidence Act".
In section 38 Canada Evidence Act proceedings involving Abdullah Khadr, Justice Mosley ordered on January 15, 2008 the appointment of a security-cleared amicus curiae to attend the ex parte proceedings, view the secret information and test the government position. Abdullah Khadr (brother of Omar Khadr, the Canadian detained at Guantanamo Bay) is in the midst of extradition proceedings involving the United States in which national security information is at issue, triggering the section 38 process.
Justice Mosley did not decide the issue of whether such an amicus is constitutionally required under section 7 (a position suggested in the earlier Federal Court case of Khawaja, but then made uncertain by the Federal Court of Appeal's decision in that case). Rather, he relied on the court's inherent jurisdiction to appoint an amicus to assist in its deliberations. The decision suggests that such an appointment will be an unusual exercise of this power. However, on the facts in this case, the appointment was warranted. Among the considerations cited by the court:
- that the underlying proceeding involved an extradition in which Khadr had a limited ability to challenge the case and in which the potential penalty, upon conviction in the United States, was imprisonment well in excess of his life span.
- that the evidence employed by the United States in support of the extradition may have been obtained through torture and illegal detention;
- that the safeguards to preseve a fair trial in the Canada Evidence Act where information is withheld in underlying proceedings for national security reasons would not be applicable in a U.S. proceeding subsequent to an extradition; and,
- that the Attorney General is, in effect, in an adverse position vis a vis Khadr as the agency with carriage of the extradition proceeding on behalf of the United States.
The amicus was appointed in a capacity that would see them presenting issues favouring the disclosure of the information, and in that respect can be said to be acting for Mr. Khadr. No solicitor-client relationship will, however, exist. Moreover, continued contact between the amicus and Mr. Khadr after the former has seen the secret information will be permitted only by court order.
In this last respect, the regime constructed in this case resembles that anticipated by Bill C-3. Of particular interest are the circumstances and constraints the the court will impose on continued contact between the amicus and Khadr. Developments on this point will likely give some sense at to how the Federal Court will approach the identical issue in relation to special advocates under Bill C-3, if enacted. As noted elsewhere in this blog, the effective absence of continued access in the United Kingdom special advocate system has gravely undermined the credibility of that system.