Special Advocates Program Evaluation

Executive summary

1. Introduction

This document constitutes the final report for the evaluation of the Special Advocates Program (also referred to as the Program or the SAP). It covers all activities undertaken through the SAP over the past five years (2010–11 to 2014–15). In accordance with the Policy on Evaluation, it addresses both the relevance and the performance of the Program.

2. Description of the Special Advocates Program

Division 9 of the Immigration and Refugee Protection Act (IRPA) mandates the Minister of Justice to establish a list of persons who may act as special advocates, and to ensure that these individuals are properly supported to fulfill their mandate.

In order to adequately fulfill these statutory obligations, the Department of Justice Canada, through the SAP, implements the process used to solicit and select candidates who may act as special advocates, publishes the list of selected individuals, ensures that security requirements are met, liaises with the Courts Administration Service (Federal Court) and the Immigration and Refugee Board, attends all in-camera hearings involving special advocates, coordinates professional development activities, provides support and resources as required, and manages contribution agreements.

The Policy Implementation Directorate of the Programs Branch, within the Policy Sector of the Department of Justice Canada, administers the Program. At the time of the evaluation, the Department had assigned a complement of 3.5 full-time equivalents (FTEs) to SAP, including one senior counsel, one counsel, one administrative assistant and one half-time financial advisor.

The Program was also provided, at the time of the evaluation, with access to a yearly amount of $1.2 million in contribution funding (Vote 5), in order to cover expenses incurred by special advocates assigned to specific cases, as well as professional development activities offered to those individuals who are on list.

3. Methodology

In order to address the questions included in the evaluation matrix, the evaluation included a document review and key informant interviews.

A systematic review of relevant information related to the SAP was conducted. The list of documents consulted includes Program-specific information (performance information, terms and conditions, etc.), relevant legislative provisions, court decisions addressing the role of special advocates, and broader contextual information related to the IRPADivision 9and the National Security Inadmissibility Initiative.

Key informant interviews were conducted to provide additional insights into activities undertaken by special advocates, and to address evaluation questions related to the relevance and performance of the Program. A total of 11 individuals were interviewed, including special advocates, Minister’s counsel, public counsel, and program representatives.

4. Evaluation Findings and Recommendation

4.1. Relevance

The primary pillar upon which the relevance of the SAP resides is the legislative framework established in IRPA. The Minister of Justice must establish a list of persons who may act as special advocates and must provide them with adequate support and resources. Now that the viability of this framework has been confirmed by the Supreme Court of Canada, the Minister of Justice must plan for the ongoing management and sustainability of this Program until such time as Parliament modifies this legislative framework.

Evidence gathered as part of this evaluation indicates that the relevance of the Program does, in fact, exceed the IRPA legislative framework. The federal government has placed national security, and the fight against terrorism in Canada and abroad, among its top priorities, with a range of commitments that include the strengthening of processes and tools to gather and share relevant information and intelligence. As this agenda moves forward, it is crucial that any proceedings related to the inadmissibility of non-citizens be fully compliant with the Canadian Charter of Rights and Freedoms (Charter). Having special advocates in place for Division 9 proceedings plays a vital role in that regard.

From an operational perspective, it is difficult to predict the extent to which special advocates will be appointed in future proceedings under IRPA. What the evaluation indicates, however, is that admissibility hearings and detention reviews heard by the Immigration and Refugee Board, appeals before the Immigration Appeal Division, or judicial reviews undertaken by the Federal Court may well play as important a role for special advocates as proceedings related to security certificates.

4.2. Performance

Outcome Achievement

The Program has succeeded in developing and maintaining a list of persons who may act as special advocates. Individuals included in the list are experienced legal practitioners who possess the credentials required to act as special advocates. This list is readily accessible, and public counsel, along with their clients, do not appear to face any difficulty in accessing and selecting names of individuals to be recommended to the presiding judge or the member of the applicable division of the Immigration and Refugee Board.

During the period covered by this evaluation, the Program has also offered significant support to special advocates, including the required assistance to those assigned to specific cases, as well as ongoing professional development activities to all those included in the list of individuals who may act as special advocates.

Despite these achievements, the evaluation indicates that other stakeholders, notably the Courts Administration Service and the Immigration and Refugee Board, play a significant role in ensuring that special advocates have meaningful access to the classified information held in their secure locations. Initial challenges in fulfilling this role appear to have been addressed, although it remains unclear as to the role that the Minister of Justice could play in fulfilling his statutory obligation in the event that future issues emerge, as both institutions operate at arm’s length from the federal government.

The more substantive challenge that special advocates continue to face in fulfilling their responsibility is the absence of assistance that would typically be provided by junior law practitioners and administrative assistants. At this point, special advocates largely operate in isolation, which is bound to create inefficiencies.

Although their overall involvement in specific proceedings has steadily decreased over the period covered by the evaluation, special advocates have been heavily involved in complex proceedings, where they collectively offered close to 13,000 hours of assistance, with the support of SAP.

Efficiency and Economy

The Program has been administered effectively and economically, engaging fewer FTEs than initially anticipated. It has also turned to online options to deliver some of its professional development activities. Finally, although it cannot anticipate the number of hours during which special advocates will be required to offer assistance in the future, the Program has been offering a per diem that continues to attract senior members of the Bar, even though it represents only a fraction of their normal hourly rate.

The SAP also represents a well contained investment that maintains the constitutionality of a wider set of activities undertaken by various departments and agencies involved in IRPA Division 9 proceedings.

4.3. Recommendation

In order to strengthen both the contribution of special advocates and the efficiency of the Program as a whole, and ensure the Program’s continued sustainability, the following recommendation is submitted:

It is recommended that the Department explore the possibility of diversifying the scope of resources and support that are provided to special advocates within the current legislative framework, including the provision of direct support from junior practitioners and administrative assistants to special advocates assigned to specific files.