Special advocates for accused terrorists grapple with new national security regime
TORONTO — Lawyers for five alleged terrorists who have long fought to see secret evidence against their clients may soon get that chance under Canada's newly revamped system of national security certificates.
Among key issues to be worked out at a meeting with the chief justice of the Federal Court on Tuesday is the appointment "special advocates" - lawyers who will have access to the highly confidential intelligence used to detain the men.
"It's a totally new field. Nobody knows what they're doing. Nobody knows anything yet," said Toronto lawyer Paul Copeland, who represents two of the five alleged terrorists and is on the list of special advocates.
"Those of us who have never seen secret material are going to be staggering in the dark to some extent."
The position of special advocate was introduced by the Stephen Harper government last month as part of a hastily reworked national security regime the Supreme Court of Canada ruled unconstitutional a year ago.
Under the previous system, neither the foreign detainees nor their lawyers had access to the evidence on which the government's allegations rested.
Now, the special advocate - loosely based on the British model - will be able to see that information and have the opportunity to hold it up to legal scrutiny.
However, the data will still remain secret for both the accused and public - perhaps even from other special advocates all of whom have high-level security clearances.
Assuming the new role means essentially stepping away from directly representing long-standing clients.
"I'm sure I can do a better job representing them in a secret hearing than in the open hearing, where my hands are tied behind my back and my mouth is gagged," Copeland said.
"It's better than what we had before. Whether it's constitutional is another a question. Whether it's fair is another question."
Critics argue the minority Conservative government rushed the new legislation through Parliament. They also worry it remains fundamentally unjust because, among other things, it continues to allow indefinite detention of foreigners without charge or trial.
Still, Toronto lawyer John Norris, who after years of fighting to find out what evidence the government has against his clients, relishes the prospect of finally getting that chance.
"It would be a complete change of role," Norris said.
Allowing lawyers like him to become special advocates makes sense given their already intimate knowledge of the cases, he said.
Some special advocates, like Paul Cavalluzzo who was counsel for the judicial inquiry into the Maher Arar torture scandal, have had experience handling confidential intelligence. Many haven't.
To help out the latter group, eight lawyers on an approved Department of Justice roster recently went through training and induction into the murky world of "SigInt" (signal intelligence) and "HumInt" (human intelligence).
One big question is whether special advocates will still end up in a battle with the Canadian Security Intelligence Service over access to the evidence and whether it was properly obtained.
"I've spent years saying the (security) agencies are incompetent," Copeland said. "I'd be thrilled if (the new system) actually causes me to change my mind."
Other issues to be determined at Tuesday's hearing in Ottawa, under the auspices of Chief Justice Allan Lutfy, relate to bail hearings for the five men, four of whom have been released under stringent conditions.
Facing removal from Canada are Adil Charkaoui, Mohamed Harkat, Mahmoud Jaballah, Mohammad Mahjoub and Hassan Almrei. All are fighting to remain in the country.
Only Almrei remains in detention. He is expected to apply for release.