Avoiding a Legally Correct Fairy-tale: The FCA Sellaturai decision and bringing counsel "into closed"

NSL, ch. 10, pp. 414 et seq.

In July, the Federal Court of Appeal released its decision in Sellaturai, an immigration inadmissibility case in which the government inadvertently disclosed national security-related documents to the appellant, and then asked for them back.  The Federal Court ordered the documents sealed and returned, and redacted documents were released to Mr. Sellaturai in return.  Counsel for the latter was now presented with the dilemma of representing her client in submissions on the merits in the inadmissibility case and/or challenging the redactions as excessive while knowing the content of the now sealed originals.

There have been several cases now in which secret documents have been disclosed by mistake, and the jurisprudence strongly supports the view that such inadvertent disclosure does not waive the national security confidentiality claim.  The reality, of course, is that the genie has escaped the bottle -- upon disclosure, those documents have been reviewed by counsel and potentially her and his client or others.  In these circumstances, a court order does not strip knowledge from people's minds.  It can, however, limit how they use that knowledge.  Counsel may be confined to making submissions on the strength of officially redacted versions, creating an impossible quandary where knowledge of the content of the redactions cannot be used to attack the scope of those redactions (or raise issues relating to the underlying case).

In Sellaturai, the Federal Court of Appeal quite rightly noted that fairness would be impaired in this situation.  It's solution, however, is a bit equivocal.  It sends the matter back for re-consideration of whether a special advocate (labelled an amicus for the procedural purposes of this case) should be named as a solution.  It does not close the door, however, to alternative remedies.

Upon that reconsideration, it should be hoped that the Federal Court will not simply follow the logic of our increasingly complex special advocate "quick fix". On the facts in Sellaturai, the situation might be most sensibly remedied by bringing the appellant's counsel themselves "into closed" -- that is, confidential, closed door proceedings.  In this space, the lawyer could zealously represent the interests of their client without worrying about partitioning their knowledge into what they can officially know and not know.  After all, the national security damage has been done by the initial, inadvertent disclosure.  Humpty Dumpty lies shattered.  And it is always better for a client to be represented by their lawyer than by some third-party proxy, kept at some degree of arm's length.

The special advocate is that proxy.  This approach incorporates a security-cleared lawyer able to represent the interests of the individual in closed proceedings.  It is the system used in circumstances where there has been no disclosure of secret documents, but fairness (and constitutional necessity) requires a least some means of testing secret documents in an adversarial setting.  Special advocates are a means of constraining the circle of people who see these documents while maintaining at least an approximation of procedural fairness.  That is the system's sole virtue and only justification.

But it seems a much less likely (and much more inappropriate) solution to the dilemma posed by a Sellaturai-like situation.  There, adding a special advocate simply adds to the number of people who see the secret document, with the sole, doubtful gain being an ability now of maintaining the total fiction that the appellant and their lawyer don't know what's in these documents.  Presumably, everyone concerned would dance around this awkward fact in their interactions, producing a form of bizarre legal theatre. 

In the final analysis, we would be left with a legally correct fairy-tale: that of the naked emperor who everyone knows is naked but where all wilfully deny that reality.