Special Advocates Program Evaluation

2. Description of the special advocates program

A central feature of the SAP derives from the legislative framework within which it must operate. This section of the report describes this framework, along with key activities undertaken through the Program, its management structure and financial resources. A description of the logic that links program activities and their expected outcomes is also included.

2.1. Legislative Framework

IRPA mandates the Minister of Justice to establish a list of persons who may act as special advocates and to ensure that these individuals receive adequate administrative support and resources to fulfill their mandate. As stated in section 85 of IRPA:

85. (1) The Minister of Justice shall establish a list of persons who may act as special advocates and shall publish the list in a manner that the Minister of Justice considers appropriate to facilitate public access to it.

(3) The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.

In fulfilling these requirements, the Minister of Justice must take into account the role that IRPA attributes to special advocates. At a fundamental level, special advocates are expected to protect the interests of a permanent resident or foreign national involved in certain proceedings under IRPA “when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel”. Footnote 4 This involves, among other things, challenging “the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person”, or challenging “the relevance, reliability, and sufficiency of information or other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel, and the weight to be given to it”. Footnote 5

Division 9 of IRPA covers a number of scenarios in which special advocates may be required:

2.2. Key Activities

In order to adequately fulfill these statutory obligations, the Department of Justice Canada, through SAP, undertakes a series of activities that includes, at a minimum, the following tasks:

The courts have acknowledged the role the Program plays in the provision of adequate administrative support to special advocates. In particular, the Federal Court, in four cases involving security certificates, granted orders allowing the assigned special advocates to participate in “knowledge sharing sessions”, where they could discuss common legal issues and strategies without disclosing fact-specific evidence or sensitive information. In such cases, a representative of the Program is expected to chair any such sessions and to monitor communications among special advocates, to ensure against inadvertent disclosure of classified information. Footnote 9

2.3. Management Structure and Financial Resources

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, including professional development activities offered to those individuals who are on the list.

2.4. Program Logic

The successful implementation of the set of activities described in this section is expected to contribute to the following outcomes:

Ultimately, the Program is expected to contribute to the Department’s strategic outcome of a fair, relevant, and accessible Canadian justice system. Footnote 10

It is worth emphasizing that, as a component of the IRPA Division 9 and the National Security Inadmissibility Initiative, the Program is also expected to contribute to the Initiative’s overarching outcomes of: