Special Advocates Program
Special advocates are top-secret, security-cleared, private lawyers who are independent of government. The special advocate protects the interests of a permanent resident or foreign national who is subject to a security certificate or other proceedings under the Immigration and Refugee Protection Act (IRPA) held in the absence of that person or their lawyer. Only permanent residents or foreign nationals can be subject to these proceedings.
Section 85(1) of the IRPA requires the Minister of Justice to establish a list of persons who may act as special advocates and to publish the list in a manner that facilitates public access to it. Special advocates are appointed from this list. The list currently has 11 members.
Section 85(3) of the IRPA requires the Minister of Justice to ensure that special advocates are provided with adequate administrative support and resources.
This administrative support is provided by the Special Advocates Program, which was created in response to amendments made to the security certificate process under Division 9 of the IRPA. These amendments came into force on February 22, 2008. The Special Advocates Program is situated within the Programs Branch of the Department of Justice and is functionally separated from counsel representing the interests of the Ministers, through the Attorney General.
Who is eligible?
Only persons on the list of security-cleared private lawyers established by the Minister of Justice are eligible to be appointed as a Special Advocate.
The objective of the Special Advocates Program is to support the Minister of Justice to meet her obligations under the Division 9 proceedings in IRPA and to contribute to a fair process.
The qualifications and selection process for special advocates, and the administrative support and resources, including professional development programs are intended to enhance the fairness of the closed hearing process without compromising Canada’s ability to safeguard confidential security information.
The Special Advocates Program is responsible for:
- the establishment and coordination of an independent selection process that recommends to the Minister of Justice persons for inclusion on the list of persons who may act as a special advocate;
- publishing the list in a manner that facilitates public access to it pursuant to section 85(1) of IRPA; facilitating access by an individual involved in a Division 9 proceeding to the special advocate list;
- coordinating professional development sessions for members of the list; and,
- providing adequate administrative support and resources to special advocates appointed to cases pursuant to section 85(3) of IRPA.
A special advocate may challenge the Ministers’ claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person. The special advocate may challenge the relevance, reliability, and sufficiency of the information or other evidence that is provided by the Minister and is not disclosed to the named person and their counsel, and the weight to be given to it. The special advocate may make oral and written submissions with respect to the classified material as well as participate in, and cross-examine any witness who testifies in the closed proceedings. The special advocate may also exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the named person.
How to apply
This program has no application process for funding.
The presiding judge or member of the Immigration and Refugee Board appoints a special advocate from the list by after hearing from the named person and Ministers’ counsel. The judge/member is required to give particular consideration and weight to the preferences of the individual involved in the proceedings. If he/she requests a particular person from the list be appointed to act as their special advocate, the judge/member will appoint that person unless:
- the judge/member is satisfied that the appointment would result in the proceeding being unreasonably delayed;
- the appointment would place the person in conflict of interest; or,
- the person has knowledge of information or other evidence the disclosure of which would be injurious to national security or endanger the safety of any person, and in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence.
Once the special advocate is appointed to a proceeding, a contribution agreement is entered into with the Department of Justice to pay the fees and reimburse costs related to the appointment.
Process to be appointed to the Ministers’ list
Applications to be placed on the list of persons who may act as a special advocate are accepted only in response to a Request for Expression of Interest. Currently applications are not being sought. The current list was established following a Request for Expression of Interest placed on the Department of Justice Canada’s website in December 2007. The Request for Expression of Interest sought applications from senior private sector law practitioners with experience in the litigation of issues related to the activities of a special advocate. A selection committee, independent of government with representation from the Canadian Bar Association, the Federation of Law Societies and the judiciary, assessed and recommended individuals to the Minister of Justice for placement on the list of persons who may be appointed as a special advocate.
Services provided by the Special Advocates Program do not have any impact on official language minority communities in Canada. These services are targeted to a very limited number of individuals and a number of persons on the list are able to provide services to the individuals in either official language. Departmental employees supporting the administrative aspects of the Special Advocate Program are meeting the needs of persons on the special advocates list in both official languages.
The Department of Justice encourages documents to be submitted electronically. The Special Advocates Program receives most of its documents electronically.
Frequently Asked Questions
What are security certificates?
Security certificates are part of Division 9 of the Immigration and Refugee Protection Act and have existed for more than twenty years, in current and former versions of the legislation. The objective of security certificates is to facilitate the removal of permanent residents and foreign nationals from Canada who are considered inadmissible on grounds of national security, violating human or international rights, serious criminality, or organized criminality using information that cannot be disclosed to the individual involved, his lawyer or the public. When it is determined that a permanent resident or foreign national is inadmissible to Canada on one of the enumerated grounds the Minister of Public Safety Canada and the Minister of Citizenship and Immigration Canada sign a security certificate and detain the foreign national or permanent resident. The security certificate is then referred to the Federal Court to determine: a) its reasonableness and b) the continued detention of the individual involved in the proceeding.
What proceedings involve special advocates?
In addition to security certificates, Immigration and Refugee Board (IRB) proceedings in which a special advocate may be appointed include admissibility hearings, detention reviews, judicial reviews, or appeals before the Immigration Appeal Division if the Minister applies for the non-disclosure of information or other evidence.
Sections 87 and 87.1 of IRPA, permit the appointment of a special advocate during judicial reviews or appeal proceedings when the court believes a special advocate is required. Section 87.1 of IRPA states that if the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge must appoint a special advocate.
Can the special advocate speak with the person subject to the proceedings? If so, what are the steps/process that the special advocate must follow?
The special advocate may communicate freely with the permanent resident or foreign national and their counsel until such time as the special advocate views the classified information. Once the classified information is received, communication by the special advocate may only take place with a judge’s authorization and subject to any conditions the judge considers appropriate.
The judge has the responsibility of ensuring the confidentiality of the evidence and other information provided by the Minister, if in the judge’s opinion, its disclosure would be injurious to national security or would endanger the safety of any person.
Special Advocates Program
Department of Justice Canada
284 Wellington Street
Canada K1A 0H8
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