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

81 Pages Posted: 13 Jun 2010 Last revised: 26 Jun 2013

Craig Forcese

University of Ottawa - Common Law Section

Lorne Waldman

Lorne Waldman & Associates

Date Written: August 1, 2007

Abstract

Report on the special advocate system used in the United Kingdom and New Zealand in national security court cases written in anticipation of the introduction of a similar system in Canada.

“Special advocates” are security-cleared lawyers representing the interests of parties excluded from national security-related hearings in which the government leads secret information. They have been employed extensively in the United Kingdom and, to a lesser degree, in New Zealand in an effort to enhance the fairness of processes that, by denying the party the right to know the case against them, do not meet fair hearing standards. Canada has also used special security-cleared lawyers in proceedings before the Security and Intelligence Review Committee (SIRC), and the Arar Commission, among others, and is moving towards a fuller special advocate model in national security proceedings before the Federal Court (particularly in relation to security certificates under the Immigration and Refugee Protection Act).

This study examines the role and utility of special advocates in Canada, the United Kingdom and New Zealand. It draws on public source material, but mostly reflects insight obtained via telephone interviews and two London roundtables conducted during the summer of 2007 with over a dozen special advocates, the UK Special Advocates Support Office and several United Kingdom defence counsel and civil society organizations as well as other Canadian and foreign experts.

The report concludes that the UK and New Zealand special advocate models suffer from a number of shortcomings, many of which do not exist in the model employed by the Canadian SIRC. This study advises that Canada build on the SIRC model rather than import the UK/New Zealand approach and makes several specific recommendations

Keywords: special advocates, national security, immigration, secrecy, United Kingdom, New Zealand, Canada

Suggested Citation

Forcese, Craig and Waldman, Lorne, 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 (August 1, 2007). Available at SSRN: https://ssrn.com/abstract=1623509 or http://dx.doi.org/10.2139/ssrn.1623509

Craig Forcese (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.cforcese.ca

Lorne Waldman

Lorne Waldman & Associates ( email )

281 Eglinton Avenue East
Toronto, Ontario M4P 1L3
Canada

Paper statistics

Downloads
247
Rank
98,378
Abstract Views
1,030