Learning from Britain's Mistakes : Best Practices and Legislative Revision in Canadian Immigration Law

In the decade following 11 September 2001, the Canadian and British governments adopted many controversial legal measures to fight terrorism. They especially turned to stricter immigration laws to exclude and remove more easily those aliens suspected of involvement in terrorism. This strategy had a considerable cost to the principle of procedural fairness. Canadian and British legislation increasingly restricted aliens' rights to legal counsel and access to evidence in deportation proceedings involving national security issues. To compensate for such procedural restrictions, Canada has adopted a controversial British system of “special advocates.” Under this system, specially designated lawyers are authorized to view secret evidence and represent the deportee in hearings from which he is excluded. However, the European Court of Human Rights and the House of Lords later ruled that the British special advocate system violated the European Convention on Human Rights. These decisions held that the system denied an individual sufficient knowledge of the case against him and prevented effective legal instructions to the special advocate. Because Canada's lawmakers copied this procedurally flawed British law, they should now take these rulings into account in order to improve the existing Canadian version of special advocates. Lawmakers must do so in order to find the “best practice” that optimally balances due process rights with the State's national security concerns