The Anti-terrorism Act

I. THE USE OF SPECIAL ADVOCATES (RECOMMENDATIONS 53 - 56)

The Government intends to address the decision of the Supreme Court in Charkaoui, and is currently reviewing how best to meet the principles established by the Supreme Court, with a view to creating legislation to be placed before Parliament as soon as possible. It will take the recommendations of the Subcommittee into account as it studies the possibility of establishing a special advocate role in the security certificate process. The Government will be guided by the need to ensure procedural fairness and to safeguard rights and freedoms under the Charter, consistent with the direction received from the Supreme Court.

There remain a number of challenges and considerations related to whether to introduce a special advocate for all in camera, ex parte proceedings, which involve the limited disclosure of information and evidence. Not all processes engage the Charter rights of individuals as in the Charkaoui case or to the same extent as in that case. Some of these issues have arisen in other litigation, such as the challenge to section 38 of the CEA in R. v. Khawaja, and in other processes such as the Air India Inquiry.

At the present time, the Government believes that further study of the use of special advocates in other processes is required.

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Updated to April 1, 2008.