Special Advocates: Towards Equality of Arms, one decision at a time

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

 

In Re Harkat, Justice Noël of the Federal Court issued a judgment authorizing the two special advocates assigned to that case (a security certificate matter under the Immigration and Refugee Protection Act) to communicate matters of legal strategy with special advocates writ large, with the support and in association with the arm's length special advocate support unit established at the Justice Department.  A welcome decision, the judgment reads, in its material parts:

 


The Court grants permission to Mr. Cavalluzzo and Mr. Copeland, in their capacity as special advocates in DES-5-08, to communicate with other special advocates (who have obtained the same judicial authorization from their respective designated judge) appointed in other security certificate proceedings to discuss common issues related to questions of jurisdiction, procedure, and substantive law and orders rendered or orders to be sought.  They are not authorized to refer directly or indirectly to any information or evidence which has been provided to them or to which they have been privy in their capacity as special advocates.


These communications are only authorized at meetings organized by the support resources group for special advocates.  The SAP shall determine the place and time for the meetings and shall, in consultation with the special advocates, establish an agenda.  A member of SAP with appropriate security clearance shall be present at all meetings to give administrative support to the special advocates. 


Mr. Cavalluzzo and Mr. Copeland are also authorized to communicate with the SAP for the purposes of implementing this order.

 

As the Court observes, communication between special advocates will allow harmonization of legal strategy, eliminating (or at least minimizing) the potential of duplicative, but perhaps inconsistent, motions on the many legal issues at play in security certificate proceedings (which in turn risk the possibility of varying court judgments).  This approach also follows the UK precedent, where (not without controversy, given opposition by the government), the Special Advocate Support Office hosts exchanges between special advocates.  In an affidavit filed in the Almrei matter, I described this UK practice as follows:

 


It has been the long-standing practice of UK special advocates to discuss both the public proceedings generally and also general points of principle raised in closed proceedings among themselves, particularly at institutional-knowledge sharing sessions organized by SASO. In circumstances where a fellow special advocate has a potential conflict – for example, that person is acting as the interested party’s counsel in a given case – that colleague recuses him- or herself from any discussion among special advocates of that particular proceeding. Moreover, special advocates are circumspect about discussing the actual underlying confidential factual evidence in communications with colleagues who are not assigned to the same case ...

 

If (as seems sensible) this approach is adoped by other judges in security certificate matters, it will render special advocates more effective.  Special advocates will continue to operate in splendid isolation in terms of assessing the facutal material (given its secret nature), but a good portion of successful lawyering is field-testing legal ideas with peers.  This is an advantage that has  always been enjoyed by the government lawyers in these cases.  As the Court wrote: "there are some clear indications (such as time required to consult before responding to an issue, the need for meetings etc.) that counsel for the Ministers do discuss issues common to the different security certificate proceedings.  Indeed, in submissions counsel for the Ministers acknowledged that they meet and discuss common issues."

 

Justice Noël's decision alone will not balance the playing field between government and named persons.  Named persons continue to be represented by public counsel who can talk freely to them, but don't know the facts, and special advocates, who know the facts but can't talk to them.  The right to know the case against oneself remains, to say the least, attenuated.  Still, allowing legal strategizing between special advocates is a step in the right direction.  At the end of the day, the overall objective remains: The security certificate process should not be a system in which the government is able to produce the outcomes it favours through force of unequal arms, rather than the persuasiveness of its case.