Flogging the Dead Horse on Special Advocates and Continued Communication

General Commentary

Over the years, I have been involved in innumerable conversations about the Canadian special advocate system versus the UK special advocate system versus the system used by the Security Intelligence Review Committee (SIRC) (in dealing with the in camera and ex parte portions of complaints against CSIS).  In particular, I have been among those advancing the argument that the UK system was (and remains) worse than the SIRC system, and that the Canadian system should draw its inspiration from the latter and not the former. 


On several occasions now, I have encountered arguments from government lawyers (now to a modest extent replicated in the Federal Court's decision on the constitutionality of the special advocate system in yesterday's Harkat decision, para. 75 et seq.) urging that SIRC counsel cannot be compared to special advocates because SIRC counsel works for SIRC and the special advocates are (more) autonomous.  In some conversations at least, this has been taken as conclusive proof that special advocates must be placed on a different footing than SIRC counsel in terms of their treatment of secrect information.


This different institutional arrangement has never been in doubt.  But its relevance to the core issue of what makes the SIRC process "better" than the special advocate system under IRPA is less than clear.  To be clear, those of us who have sung the praises of the SIRC model have done so in relation to (really only) one key feature of the SIRC system: the ability of the SIRC counsel -- whether inside (that is, a staff lawyer) or outside (that is, a lawyer brought in as a legal agent) -- to have continued contact with the complainent, even after counsel is apprised of the secret evidence. Under the special advocate arrangement, there is no such continued contact, at least not without the close approval and/or mediation of the matter by the judge. 


I hasten to add that there have been communications approved by judges in special advocate matters -- many of them apparently on procedural issues but some that appear to deal with questions of substance.  For a discussion in the Harkat matter, see Harkat, paras. 67-68.  On balance, the Canadian system seems to have surpassed the more absolute, traditional constraints on continued communication in the UK. In the result, the worst fears of some of us involved in the debate over the special advocate model have not been realized because judges have been prepared in at least some instances to authorize communications. (Whether immigration adjudicators in section 86 matters involving special advocates will be equally balanced is an open question.)


I'm still not sure, however, that the closely mediated continued communication in the special advocate context is as "good" as the level of communication arising in the SIRC context.


In past scholarship, I have described the workings of SIRC counsel as follows:




SIRC inhouse and outside counsel are able to maintain contact with the named person and his or her counsel throughout the process.  SIRC lawyers or legal agents may, therefore, question the named person even after the former are fully apprised of the secret information against the latter.  In so doing, they take special care not to disclose (even involuntarily) secret information.[8] 


Even with this restriction, one of SIRC’s outside counsel is on record as indicating that this questioning, despite being done in an oblique manner to avoid involuntary disclosures of secret information, is central in unearthing potentially exculpatory information and observed that some cases at least have turned on information obtained from the named person in this manner.[9]   


After reviewing the CSIS file, SIRC inside or outside counsel will have contact with the named person and their counsel to converse and to obtain a list of questions that these persons may wish to have asked during the secret proceeding.  Likewise SIRC inside or outside counsel may have contact with the named person after a summary of information tabled in the secret proceedings has been provided to the latter.  After reviewing the summary, the named person may wish to have additional CSIS witnesses appear before the Committee and hence be cross-examined by SIRC counsel.[10]


No SIRC inhouse or outside counsel has ever reportedly received any complaints from the government that this contact with the named person has resulted in an involuntary disclosure injurious to national security.[11]


Having vetted this or similar descriptions of the SIRC process with those who have worked in it, I believe this to be an accurate statement of how that process does (or at least has) worked.


If the differences in institutional structure between SIRC counsel and special advocate is the basis for the differential treatment of the two in terms of continued contact with the named person, there must be something about that SIRC institutional structure that makes it less likely that SIRC counsel will spill a secrecy bean in continued communication.


There is an impression left by some of the statements made about the SIRC model (see Almrei (Re), 2008 FC 1216 at para. 47), that SIRC counsel are closely policed in their continued contact by the SIRC members -- that is, that there is a watchdog equivalent to the Federal Court judge in the special advocate context.  Perhaps that has been true with some members in some cases.  But based on conversations with at least some people who have been SIRC counsel, it would seem that it is certainly not true in all (or perhaps many) cases that such close control is exercised.


There is, therefore, no structural check on an involuntary disclosure.  At best, therefore, the argument boils down to an assertion that SIRC counsel (serving the interests of complainants only by outing the "truth" for the benefit of the committee they work for) are attitudinaly different from special advocates (acting as emphatic champions of the named person's interests).  So beholden are the latter to their advocacy role as special advocates, this argument must posit, that they would be prepared to risk a violation of their professional responsibility obligations and the Security of Information Act if allowed unmediated communications with the named person. SIRC counsel, on the other hand, are better able to keep their head.


If this is what the argument amounts to, it is not compelling, especially since there are instances where exactly the same (level-headed) person has served as SIRC counsel and, in a different time and place, as special advocate.


So what does all of this matter?  I have entitled this blog "flogging a dead horse" because this dispute over continued communication seems to have been overtaken by the evolution of the special advocate system, and the practice of mediated communication under it.  Now, however, the battle lines are likely being drawn in the Harkat appeal -- and the constitutionality of the special advocate system will probably be among the first issues out of the gate.  So the much-flogged horse may be just like the parrot in the Monty Python skit: not really dead, just pining for the fields.


[8]           Craig Forcese and Lorne Waldman, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings at 9.

[9]           Craig Forcese and Lorne Waldman, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings at 9.  See also on this point, testimony of Mr. Gordon Cameron (SIRC outside counsel and now special advocate), Proceedings of the Special Senate Committee on Anti-terrorism, Issue 4 - Evidence - Meeting of February 11, 2008 (“it is sometimes only through continued access that you are able to get the other side of the story, the explanation or the rebuttal of allegations made about a person”).

[10]          Craig Forcese and Lorne Waldman, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings at 9.

[11]          Craig Forcese and Lorne Waldman, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of “Special Advocates” in National Security Proceedings at 9.