As you know, this issue is currently on appeal to the Supreme Court of Canada. During the Supreme Court hearings held last week, several models were suggested by counsel for the appellants and intervenors. The government believes it would be prudent to wait for the Supreme Court judgment before making any policy decision on this issue. However, if the committee wishes to make recommendations, we would suggest that the following considerations be kept in mind.
First, consideration could be given to questioning whether a special advocate could offer a significant advantage in terms of fairness over the current model, whereby designated judges of the Federal Court can and do ask probing questions to test the government's case.
Second, relevant consideration would be given to issues related to solicitor-client communication and the need to ensure non-disclosure of sensitive information. I understand that in the British experience, where these advocates are, several prominent counsel have refused to act in that capacity because of the impact on solicitor-client privilege. So that would be a consideration.
Whatever we do, I think it's clear that no model is going to be a panacea. No system can both protect sensitive information and ensure that the person concerned fully knows the case against them. It's a difficult balancing act, but if the committee wants to look at some of the British experience on the amicus curiae, or special counsel, more detail could be given than I can offer at this time.