Special Advocates: The Continued Saga on Continued Communication

Cross-referencing: National Security Law (NSL), Ch. 10, pp. 414 et seq.

 

As noted in past posts, an issue of contention in Canada's new "special advocate" process for immigration security certificates is the capacity of special advocates to persist in communicating with the named persons once the former have seen the secret information.  See, e.g., December 13, 2007 post.  In essence, such communications must be approved by a judge.  Indeed, on the wording of the Act, all special advocate communications concerning the "proceeding" (and not just those that actually involve secret information) must be approved by a judge.   

 

Not surprisingly, special advocates and public counsel for the named persons in the current round of security certificate cases view these constraints as a) overbroad and b) greatly impairing of their functions.  (In the interests of full disclosure, I must report that I agree with them, and so attested in an affidavit ultimately filed in the motion discussed below).

 

In terms of overbreadth, the restrictions on communications lack nuance: communication about the proceeding could include telling one's spouse that one is in court, or a parliamentary committee that one is unhappy with the workings of the process. 

 

In terms of impairing special advocate functions, first, there is good reason to believe that carefully worded questions to named persons that reveal no secrets can elicit information material to the outcome of proceedings.  That has been the experience of some special advocates, acting in prior capacities as legal agents in proceedings before the Security Intelligence Review Committee (and the view shared by commission counsel, now special advocates, in the Arar inquiry).  For more on this point, see the report on the UK special advocate system Lorne Waldman and I prepared in 2007.

 

Second, special advocates are obviously concerned that seeking advance clearance from judges (possibly in the presence of government counsel) on what questions they will ask of the named person will be prejudicial -- a special advocate searching out exculpatory detail will presumably have to explain how it is given questions could do that (without revealing secrets to the named person).  If, subsequently, permission is given, and no exculpatory result produced, the judge (and government lawyer if present) will be keenly attuned to the fact that the questions were asked and nothing useful produced.  If anything, this would have the affect of bolstering the government's case (and the judge's acceptance of it).  There's a reason solicitor-client confidentiality in conventional legal relationships includes not just answers given, but questions asked.  For exactly these sorts of reasons, in the UK, special advocates have for the most part declined to seek permission to ask questions on substantive matters because of the need to produce these in writing, vetted by tribunal and government.  (The issue of whether seeking permission from the tribunal can be done on a ex parte basis is currently before the English courts).

 

Armed with these concerns, public counsel in Almrei mounted a constitutional challenge to the new communications regime, one joined by other named persons and the special advocates as a class.  In early November, Justice Lutfy of the Federal Court declined to address the constitutional issue, determining it to be premature because an insufficient factual record existed -- specifically, no one had actually asked for continued communication and been denied.

 

Again, readers should be conscious that I am an affiant with a declared view on this matter in reviewing my assessment of this decision.

 

First, to his credit, Justice Lutfy cut away at least some of the perversity caused by the overbroad communications rules, through an exercise in statutory interpretation.  So special advocates can communicate with their staff, colleagues and family members (and hopefully anyone else!) about their whereabouts.  Special advocates can communicate with the special advocate support unit at Justice concerning their resource and administrative needs.  (But note, since communication is confined to resource and administrative needs, it is unclear whether we can move to a UK style system where the support office is privy to the secret information and can provide analytic support on the secret side of the ledger).  And special advocates on the same case can talk to each other.

 

On other issues, however, the decision resolves little.  First, the status quo -- communications that concern the proceedings, even if not dealing with secret information is impermissible without advance vetting by judges -- really does put special advocates at a disadvantage: the two special advocates assigned to each case stand in splendid isolation, unable to bounce ideas off other special advocates or lawyers on issues far removed from secret information (such as legal arguments) without pre-clearance from a judge.  Note the Court's sweeping conclusion: "special advocates cannot communicate with another person about the proceeding, absent judicial authorization, even concerning an order or direction made public by the presiding judge."  While special advocates could find themselves isolated in their efforts to respond to this (public) order, government lawyers presumably caucus at will.  This is hardly the equality of arms vital to a functioning adversarial system.

 

Second, prematurity seems to have no place in this scenario: at issue (at least in part) is whether special advocates should be obliged to go to judges in the first place.  That question is more than ripe.  To ask special advocates to go to a judge first, ask permission, be refused and only then be able to challenge whether they should have to go to a judge in the first place at best delays resolution of this issue (and at worst may arm the government with arguments on mootness and waiver, or some such thing).

 

Third, Justice Lutfy -- whose experience includes practical involvement with SIRC and therefore should attract substantial respect -- was unpersuaded that SIRC counsel's freedom to communicate was as ample as asserted by the applicants (and by this affiant).  In the Court's view, SIRC counsel is subject to the direction of the presiding SIRC member.  It only stands to reason that special advocates, in the even more emphatic scheme created by Parliament, should be subject to direction by a judge.  I confess, however, to having some doubt that the level of supervision exercised by the SIRC member comes close to the advance permission for questions we seem to be moving towards in the Federal Court -- certainly, no one I have spoken to who has participated in the SIRC process has described such close control.  (And there was nothing on this motion record that suggested that there is such close control).

 

In any event, what Parliament has done with the special advocate system (that differs from SIRC) is to create a closer relationship -- maybe best described as proto-solicitor-client -- between special advocate and named person.  That relationship -- which does not exist in the SIRC context -- is what creates particular difficulty in advance vetting of special advocate questioning by the (same) judge who serves as the ultimate arbiter of law and finder of fact.

 

The difficulty appears to lie in reconciling this proto-solicitor-client relationship (and the independence it connotes, quite different from that of SIRC counsel, as representative of SIRC) and wariness about disclosure (however involuntary) of secrets.  Justice Lutfy seems persuaded that this circle can be squared by individualized advance scrutiny of questions by judges, possibly in the absence of government lawyers (that is, on an ex parte basis).  That leaves intact, however, the concerns about chatting about questions with the actual decision-maker you need to persuade if you receive (or not) answers to those questions.

 

The compromise that takes us out from under this conundrum is to have the question of continued communication decided by a sort of "case management" judge, and not the judge hearing the case.  That resolves the problem of tainting the mind of the actual decision-maker by revealing questions while at the same time allowing the external supervision Justice Lutfy views as desirable.  If the managing judge refuses continued communication, that then becomes the appealable issue (and it would be best to treat it as immediately appealable since what follows could turn on this matter).

 

The security certificate process has, for a long time, evolved in fits and starts, with compromise piled on compromise and without a tremendous amount of careful advance design.  (On this point, more blame lies with the government in proposing and Parliament for legislating half-measures than with the Court in grappling with them).  But advance avoidance of train wrecks is in the interest of all concerned.  For this reason, the time is more than ripe for the Federal Court to take up the invitation proferred by Parliament in the amended immigration law, s.85.6(1):

 

"The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the court over which they preside."