Special advocates are top-secret security-cleared, private-practice lawyers who are independent of government. The special advocate protects the interests of a permanent resident or foreign national who is subject to a security certificate or other proceedings under the Immigration and Refugee Protection Act (IRPA) held in private and in the absence of that person and their lawyer. Only permanent residents or foreign nationals can be subject to these proceedings.

Section 85(1) of the IRPA requires the Minister of Justice to establish a list of persons who may act as special advocates and to publish the list in a manner that facilitates public access to it. Special advocates are appointed from this list. The list currently has 10 members.

Section 85(3) of the IRPA requires the Minister of Justice to ensure that special advocates are provided with adequate administrative support and resources.

The Minister of Public Safety and Emergency Preparedness is represented by Justice Canada’s Counsel acting on behalf of the Attorney General of Canada.

A special advocate may challenge the Minister of Public Safety and Emergency Preparedness claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person. The special advocate may challenge the relevance, reliability, and sufficiency of the information or other evidence that is provided by the Minister and is not disclosed to the named person and their counsel, and the weight to be given to it. The special advocate may make oral and written submissions with respect to the classified material as well as participate in, and cross-examine any witness who testifies in, the closed proceedings. The special advocate may also exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the named person.

Only persons on the list of security-cleared private-practice lawyers established by the Minister of Justice are eligible to be appointed as a special advocate.

The Special Advocates Program, which provides administrative support, is situated within the Programs Branch of the Department of Justice Canada and is functionally separated and operates independently from counsel representing the interests of the Ministers, through the Attorney General.

The objective of the Special Advocates Program is to support the Minister of Justice to meet their obligations under the Division 9 proceedings in IRPA and to contribute to a fair process.

The qualifications and selection process for special advocates, and the administrative support and resources, including professional development programs, are intended to enhance the fairness of the closed hearing process without compromising Canada’s ability to safeguard confidential security information.

The Special Advocates Program is responsible for:

Justice Canada is currently seeking applications from senior private practice law practitioners interested in being considered for appointments to the Minister’s list of special advocates. Applications must be submitted by May 5, 2023 (11:45 p.m. PT).

Applications to be placed on the list of persons who may act as a special advocate are accepted only in response to a Request for Expression of Interest.  See LINK for information about the current Request for Expression of Interest.

The presiding judge or member of the Immigration and Refugee Board appoints a special advocate from the list after hearing from the named person and Ministers’ counsel.  The judge/member is required to give particular consideration and weight to the preferences of the individual involved in the proceedings. If he/she requests a particular person from the list to be appointed to act as their special advocate, the judge/member will appoint that person unless:

Justice Canada will enter into contribution agreement with a special advocate who is appointed to a proceeding, to pay the fees and reimburse costs related to the appointment.

The Department of Justice encourages documents to be submitted electronically. The Special Advocates Program receives most of its documents electronically.

Security certificates are part of Division 9 of the IRPA and have existed for more than 20 years, in both current and former versions of the legislation.

Security certificates help remove permanent residents and foreign nationals from Canada who are considered inadmissible on grounds of national security, violating human or international rights, serious criminality, or organized criminality. That decision is based on information that cannot be disclosed to the individual involved, their lawyer or the public. When it is determined that a permanent resident or foreign national is inadmissible to Canada for one of those reasons, the Minister of Public Safety Canada and the Minister of Citizenship and Immigration Canada sign a security certificate and the foreign national or permanent resident is detained. The security certificate is then referred to the Federal Court to determine if it is reasonable and whether the individual should continue to be detained.

In addition to security certificates, Immigration and Refugee Board of Canada (IRB) proceedings in which a special advocate may be appointed include admissibility hearings, detention reviews, judicial reviews, or appeals before the Immigration Appeal Division, if the Minister applies for the non-disclosure of information or other evidence.

Sections 87 and 87.1 of IRPA permit the appointment of a special advocate during judicial reviews or appeal proceedings, when the court believes a special advocate is required. Section 87.1 of IRPA states that if the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge must appoint a special advocate.

The special advocate may communicate freely with the permanent resident or foreign national and their counsel until such time as the special advocate views the classified information. Once the classified information is received, communication by the special advocate may only take place with a judge’s authorization and subject to any conditions the judge considers appropriate.

The judge has the responsibility of ensuring the confidentiality of the evidence and other information provided by the Minister, if, in the judge’s opinion, its disclosure would be injurious to national security or would endanger the safety of any person.

Programs Branch
Special Advocates Program
Department of Justice Canada
284 Wellington Street
Ottawa, Ontario
Canada  K1A 0H8
E-mail pb-dgp@justice.gc.ca


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