A new future for the special advocate? Jama to challenge the constitutionality of the Prevention of Terrorist Travel Act

Reporting by Stewart Bell of Global News reveals that Ayan Abdirahman Jama plans to challenge the constitutionality of the Prevention of Terrorist Travel Act [PTTA].

According to the article and a February Federal Court decision, Jama, a 31-year old Edmonton woman, had her passport refused based on evidence that she is connected with terrorist activity. She is believed to be a member of Al Shabaab (a listed terrorist entity), to have expressed her interest in martyrdom, and to have participated in the radicalization of a Canadian, assisting in their travel to Syria, among many other allegations. Jama denies being a member of Al Shabaab, and explains that her desire for martyrdom is not an intention to die in battle as she does not want to engage in any fight. Her late husband was a senior Al Shabaab member who was killed by a drone strike in Somalia after being stripped of his British citizenship on national security grounds.

Jama is also challenging the Minister of Public Safety and Emergency Preparedness’s refusal to issue her a passport under section 10.1 of the Canadian Passport Order [CPO].

Under the CPO, A Canadian's passport may be refused if the Minister of Public Safety has “reasonable grounds to believe that the decision is necessary to prevent the commission of a terrorism offence … or for the national security of Canada or a foreign country or state.”

The PTTA provides procedural rules regarding judicial review of passport refusals and revocations and appeals of passport cancellations made under the CPO. These proceedings may (and likely do) involve in camera and ex parte hearings for the purposes of reviewing secret evidence, which are closed to the public and do not include the individual whose passport is at issue, nor their counsel. These closed material proceedings are problematic because they prevent the affected individual from knowing all of the government’s evidence, which may deny them the ability to effectively meet the case against them.

In a 2015 senate committee reviewing the PTTA, Anil Kapoor, barrister and special advocate, raised concerns regarding the legality and morality of the PTTA, which protects secret evidence but does not provide an appropriate mechanism by which a person can defend themselves against said evidence. Kapoor, stated quite prophetically: “There's no point in leaving it for folks like me — although if I'm getting well-paid, maybe there is — to trundle up to the Supreme Court of Canada and argue that this is unconstitutional when you can see that there's a problem here.”

Special advocates are security-cleared lawyers, independent from the government, that are constituted under Division 9 of the Immigration and Refugee Protection Act (IRPA).  They are tasked with protecting the interests of permanent residents or foreign nationals in closed material hearings under the security certificate regime (and other related Division 9 proceedings) where they have access to secret evidence that is withheld from the named party and their counsel.[1]

Security certificates are issued to remove non-Canadians from Canada on national security grounds (among others) and may be based on confidential information.

The special advocate office was introduced in an effort to restore, as much as possible, the adversarial system to the closed proceedings. In so doing, Parliament was responding to Charkaoui I, where the Supreme Court held that the previous security certificate regime, in which the named person had no representation in closed material hearings, was unconstitutional. The secrecy required by the old scheme violated the named person’s section 7 Charter rights by denying them a fair hearing. [2] The Supreme Court has since found that aspecial advocate as defined under the IRPA can provide a “substantial substitute” for the participation of the named person in closed hearings, and that the new security certificate regime is constitutional.[3]

Currently, the use of special advocates is limited to the above proceedings.[4] However, security certificates are seldom issued anymore, so the special advocate program is collecting dust on a shelf. However, there are other closed material proceedings that scholars, legal practitioners, and politicians have argued would benefit from the use of special advocates. These include, among others: “no fly” listing appeals under the Secure Air Travel Act, judicial review of the decision to delist an entity under section 83.05 of the Criminal Code (terrorist listing), and the appeals and judicial review under the PTTA that were discussed above.

Notably, not all closed material proceedings implicate the same Charter rights in the same way or with the same severity as the old security certificate regime at issue in Charkaoui I, so it is fair to debate whether special advocates are a constitutional necessity in other regimes like the PTTA. However, strong arguments can be made that the above-listed proceedings seriously implicate liberty, security and/or mobility interests, among other Charter rights.

Why a special advocate and not an amici curiae?

The Federal Court appointed Colin Baxter as amicus curiae in Jama’s matter, who is able to take part in closed material proceedings regarding her case. [5] Amici curiae (“friends of the court”) may be appointed by judges in exceptional circumstances to assist the court, and the parameters of their duty to the court are laid out in each instance. An oft-made argument against legislating the jurisdiction to appoint special advocates in other closed material proceedings is that the Federal Court can appoint a security-cleared amicus to perform a similar function. Indeed, the parameters of Baxter’s duty largely parallel the special advocate’s authorities under the IRPA. [6] There are advantages, however, to the use of special advocates over amici.

There is an efficiency and facility to the special advocate system. In the above senate committee, another special advocate, Gordon Cameron stated, “the machine has already been built.” His point is well taken; why reinvent the wheel each time we come up against the problem of secret evidence if we already have a system developed to address this issue? Kapoor pointed out that appointing an amicus is not an expedient matter. He and Cameron explain that without direction from a statute, the government typically argues first against appointing an amicus and then over the parameters of their role. This song and dance can be avoided by legislating that the judge has the jurisdiction to appoint a special advocate, whose role is already defined.
In addition, because the role and responsibilities of the special advocate are legislated, the system provides consistency among similar proceedings. An amicus’ role, by contrast, will vary according to each matter,[7] potentially introducing inconsistencies across proceedings under the same provisions.

Although section 85 of the IRPA clarifies that the special advocate does not have a solicitor-client relationship with the named person, their role remains that of an advocate and they must protect the interests of named person. So, it would not be unreasonable to expect that they would be guided by the advocacy duty “to raise fearlessly every issue, advance every argument and ask every question.” The amicus, however, works for the court or the judge and, therefore, does not assume the role of “advocate” and bears no responsibility or duty to the non-government party. [8] This makes the special advocate the superior choice to safeguard the adversarial system.

**

The Federal Court is under a suspension period until May 29, 2020, subject to some exceptions. It will be a while before we see the result of Jama’s constitutional challenge. If the PTTA is found to be unconstitutional and a special advocate regime is adopted to bring the legislation into constitutional compliance, we may see the development of a new standard for closed material proceedings in national security-related matters, and the special advocate program may have a new, wider future ahead of it. 

[1] IRPA, above, s 85.1(1).

[2] Charkaoui I, above, at para 65.

[3] Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 at paras 67-73, 77.

[4] IRPA, above, s 83(1)(b).

[5] Jama v Canada (Attorney General) (12 July 2018), Ottawa, FC T-479-18 (order appointing amicus).

[6] Ibid.

[7] Canada (Attorney General) v Telbani, 2014 FC 1050 at paras 27-31.

[8] Ibid at paras 28-30.