The Federal Court's pending judicial review of five security certificates could be set back by the federal government's delay in announcing the final roster of special advocates, and by unresolved questions surrounding the fees to be paid to the special advocates (SAs), and to the other lawyers who are privately retained by the five men. Federal Court Chief Justice Allan Lutfy and Justice Simon Noel, the joint case-managers of the cases that will pioneer the use of security-cleared special advocates (SAs) in Canada, made it clear at an April 15 case management conference here that they want to see the five cases move forward efficiently and expeditiously in separate, but parallel hearings, that involve the same procedures and consistent determinations of any novel procedural issues that are common to the cases.The pair asked counsel for the government - there were at least 11 in the courtroom - to disclose how many special advocates remain to be named and when those names might be announced given that the issue affects the ability of all the cases to move ahead.
Counsel for the government assured the court that security checks have been completed, but that additional "verification" was necessary. The new special advocates will be sworn in "shortly," they said.

The issue has been raised by detainee Adil Charkaoui of Montreal, who wants to see the whole list of special advocates before he states who he would wish to see appointed by the judge who is yet-to-be designated to review his case. There are currently 19 available lawyers, who were named in February and March, but only a few are francophone and just three practise in Montreal. It is thought that two special advocates will be assigned to each case given the anticipated volume of secret material the lawyers will have to review.

That raises the issue of fees since several special advocates have publicly complained that the Department of Justice lowered their hourly rate to $275 from $300 they said they were originally offered. Justice Noel said he saw potential problems with the government's suggestion that special advocates be designated as junior and senior counsel. "Looking at the list of SAs... we are not talking about junior counsel, we are talking about senior counsel," he noted. The current special advocates have 13 to 42 years at the Bar.

Toronto immigration lawyer Barbara Jackman, who is among the lawyers who are now referred to as the "public counsel" representing the men held under security certificates (i.e. retained privately, not appointed by the court and government paid as a special advocate) indicated she was preparing a funding motion to the court. She anticipates the other public counsel will also bring such motions to obtain court-ordered financing by the government for the public counsel.

"I have gone through [the security certificate process] once before, and I almost went bankrupt and I am not going to do it again," Jackman said, noting that the cases are long, complex and "legal aid doesn't pay enough."

Justice Noel responded "I sympathize with your position," but noted that the Supreme Court's recent jurisprudence on advance funding for impecunious litigants in cases of public importance may mean that the issue needs to be raised first with the legal aid plan "and not this court."

Ottawa lawyer Matthew Webber, public counsel for Mohamed Harkat, told The Lawyers Weekly he isn't sure that the court's expressed goal of getting the cases heard this fall will be met given the volume of evidence he hopes will be disclosed, and possible disputes between the special advocates and the government around disclosure.