Assessing Damage, Urging Action This case epitomises the cumulative impact of weaker immigration law safeguards; reliance on secret intelligence which is inherently less reliable than evidence, and less easily contested; and, on occasion, reliance on information from foreign intelligence agencies with a record of human rights violations. Subsequent to the Charkaoui decision, Canada made several improvements to the legislation, including greater access to the courts to challenge detention, and an explicit outlawing of any evidence obtained by torture and cruel, inhuman or degrading treatment or punishment.232 In order to mitigate the difficulties caused by lack of full access to proceedings and evidence, the Canadian authorities also introduced the system of “special advocates” in the appeal process, which mirrors the system first introduced in the UK Special Immigration Appeals Commission Act 1997.233 Special advocates are appointed by the government from a panel of securitycleared barristers to represent the interests of the appellants. Special advocates may see “closed material” withheld from appellants and their legal representative, and may attend any proceedings from which the appellant and counsel are excluded, in order to call for greater disclosure, and to cross-examine witnesses on behalf of appellants. The special advocate procedure, designed to permit use to be made of classified evidence that is not disclosed to the affected person, does not fit easily into the adversarial system of the common law and requires the special advocate to perform functions different to those ordinarily performed by counsel. The special advocate is required to cross-examine and address argument to the court without instructions from the person whose interests the special advocate is, in part, expected to protect. The judge has to decide the matter without hearing from the person concerned as to the validity of the evidence, and in the knowledge that such a person has not had an opportunity to contradict it. Where there is a strong independent judiciary, and a vigorous, experienced and independent Bar, the intervention of a special advocate of experience and integrity may, to some extent, mitigate the unfairness of taking action against a person without disclosing the evidence on which such action is premised.234 It is, however, a system which has dangers for the rule of law and, in a different setting, may prove to be no more than a façade of justice to what is an inherently unfair procedure. designated judge and, after the judge has filtered it, to Mr. Charkaoui and his counsel.” 232 Bill C-3, An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, received Royal Assent on 14 February 2008, shortly before the deadline imposed by the Supreme Court to amend the security certificate regime. See in particular, Sections 82 (1) and (3), and Section 83 (1.1). 233 The creation of a “special advocate” system was part of the UK’s response to the 1996 decision of the ECtHR, Grand Chamber Judgment of 15 November 1996, Chahal v. the United Kingdom, Application No 22414/93, paras. 121-133. 234 See for instance the decision of the Court of Appeal in England in M. v. Secretary of State for the Home Department 2004 (2) AIIER 863. 99