Richard Foot. The Ottawa Citizen. Tuesday, January 29, 2008

The federal government is having trouble recruiting an experienced pool of lawyers to work as “special advocates” on behalf of terror suspects under Canada’s security certificate law. So far, only 50 have responded to a month-long national recruitment campaign by the Justice Department aimed at finding a list of experienced practitioners who can defend people facing deportation in secret judicial hearings. Those 50 applications may be enough from which to find a list of advocates, but they represent only a tiny fraction of the 57,000 practising lawyers in Canada. Last week, as a result of the poor response, the Justice Department extended the application deadline from Jan. 15 to Feb. 1. “Given the nature of what it is lawyers are being asked to do, it doesn’t surprise me that there hasn’t been an overwhelming response,” says Lorne Waldman, a Toronto lawyer who represented Maher Arar, who was wrongly accused as a terrorist .

Mr. Waldman says many lawyers are deeply conflicted about participating in the controversial system.

On the one hand, they feel a duty to ensure that people have the best legal defence possible. On the other hand, they consider the law an affront to civil liberties and don’t want to lend it legitimacy by taking part.

Some, he says, are worried about being labelled as traitors by colleagues if they participate in the system.

The Canadian Bar Association and the Federation of Law Societies of Canada have criticized the proposed security certificate law as unconstitutional.

Security certificates are an extraordinary immigration tool that allows the government to detain and deport foreigners and permanent residents who are considered a threat to national security.

Suspects aren’t allowed to see the evidence against them, or participate in the secret judicial hearings to determine their fate.

Three accused terrorists challenged the system at the Supreme Court of Canada, which last year said the law was unconstitutional — but necessary in an age of terrorism — and gave the government one year to change the law to bring it in line with the Charter of Rights.

The Conservative government hopes to do that with legislation to create special advocates — independent, security-cleared lawyers — to act on behalf of accused persons.

The government says the advocates will be allowed to see the evidence against suspects, but cannot discuss it with them without a judge’s permission.

Many critics say that kind of restriction does not satisfy the Constitution and will not allow special advocates to properly defend those accused under the law.

A similar system in Britain has been harshly criticized by politicians, lawyers and human rights advocates, and also made it difficult for the British government to retain a list of special advocates.

In Canada, “the low number of applications for special advocate positions may stem from concerns about the proposed security certificate legislation, Bill C-3,” says Vanessa Gruben, a law professor at the University of Ottawa.

“There are concerns among the legal community that the model proposed in Bill C-3 falls short of the constitutional standard set by the Supreme Court.”

Mr. Waldman says no defence lawyer wants to work in a system that “fundamentally abrogates” the right of an accused to know the evidence against them. He also says that to be effective, special advocates will need skills and experience in the immigration field, plus an understanding of the national anti-terror apparatus.

“It’ll be extremely demanding work,” he says. “I’ve talked to some of my close colleagues about whether they’re applying. There’s a lot of concern about how it’s going to operate, but there’s also a sense that qualified people should apply, because if we’re going to make the system work, we have to have lawyers with experience and commitment on that list.”

The current security certificate law will expire next month, unless Parliament passes the new legislation before Feb. 23.