Titre alternatif
Lessons from Canada, the United Kingdom, and New Zealand on the use of "special advocates" in national security proceedings
Note
"Study commissioned by the Canadian Centre for Intelligence and
Security Studies, with the support of the Courts Administration
Service."
"August 2007."
Also available on the Internet (as of Jan. 2011) at: http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf
Résumé
This study examines the role and utility of special advocates in Canada, the United Kingdom and New Zealand. 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 are employed extensively in the United Kingdom and, to a lesser degree, in New Zealand to enhance the fairness of processes in which the party does not have the right to know the case against them. Canada has already used special security-cleared lawyers in proceedings before the Security Intelligence Review Committee (SIRC) 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. The report identifies a number of shortcomings in the UK/New Zealand approach and recommends that Canada build on the SIRC model.
Contenu
Part I: Introduction -- A. Context for this Report -- B. Research Methodology --
Part VI: Developments in New Zealand -- A. Overview -- B. Special advocates --
Part II: The Evolution of National Security Procedures in Canadian Immigration Law -- A. Pre-2002 -- B. 2002 to Present --
Part III: National Security Confidentiality in Other Canadian Proceedings -- A. Informer privilege -- B. Canada Evidence Act -- C. Secret information in other circumstances --
Part IV: Procedural Context for the Use of Special Advocates in the United Kingdom -- A. Immigration Law -- B. Control orders -- C. Other proceedings --
Part VII: Evaluation and Policy Conclusions -- A. Fair hearing rights are the metric against which to measure IRPA security certificates and analogous procedures -- B. The fair hearing obligation is violated whenever persons are not entitled to know fully the case against them -- C. Where the Government has a compelling interest in secrecy, that secrecy should be as minimally impairing of the fair hearing interest as possible -- D. Not all Government claims to secrecy are equal -- E. Not all claims to Government secrecy raise the same pressing and substantial objective justifying departure from ordinary fair trial standards -- F. In those limited circumstances where special advocates are appropriate, the special advocate function and office should meet certain core prerequisites -- G. The Government’s burden should reflect the gravity of the consequences to the named person.
Part V: Design and Function of the UK Special Advocate System -- A. Selection of barristers as special advocates -- B. Case intensity and resourcing of special advocates -- C. Relationship between the special advocate and the named person -- D. Role and effectiveness of the special advocate -- E. Strengthening the UK Special Advocate System --