This article from the Ottawa Citizen reports a decision of Judge Noel in the Harkat case with respect to the ability of special advocates to test the case against the individuals whose interests they are representing in security certificate proceedings. The text of the decision is not yet posted.
Special advocates are appointed in security certificate proceedings pursuant to section 85 of the Immigration and Refugee Protection Act. Special advocates, once they are appointed, are supposed to test the government's case against the subject of a certificate but are prohibited from communicating with the subject. Note that I do not suggest the special advocate is representing the interests of the subject because section 85.1(3) says that the subject is not the client of the special advocate.
Justice Noel's decision arises from an application by the special advocates to access the personnel files of the first agent who interviewed Mr. Harkat. This agent was dismissed from service when it was found that she was romantically involved with an individual who was under investigation by CSIS. The other application that was dismissed was a request to cross-examine, in a closed court, human intelligence sources whose evidence was highlighted in the files. Justice Noel denied the request because covert sources are necessary to intelligence gathering and requiring those sources to testify, even in closed court, would adversely affect national security.
Presumably these are sources who are not third parties and are under the control of the government. Prohibiting counsel from questioning individuals who are under the control of the government seems like a further unjustified fetter on the ability of the special advocate to test the case. They are already prohibited asking the subject anything about the file and are therefore testing the case in circumstances in which they have no real knowledge of how they subject's circumstances.
One wonders if there will come a time that teh special advocates realise they are being fettered to the point of becoming ineffective in these matters. I continue to ask whether these lawyers are acting ethically in accepting these restrictions - I realise that they are trying to make the best of a bad situation but if they cannot effectively accomplish the task that is set to them why should the accept it.
If the government was not able to obtain lawyers to fulfill these roles then it would not have the fig leaf of these appointments to justify secret hearings.
That is good.
joy fax
Posted by: lala | April 20, 2011 at 05:33