Immigration and Refugee Protection Act

s. 85 List of persons who may act as special advocates

PART 1: Immigration to Canada
DIVISION 9: Certificates and Protection of Information

Last verified: June 2026 · Source: justice.gc.ca

The law says

IRPA s. 85

(1)The Minister of Justice shall establish a list of persons who may act as special advocates and shall publish the list in a manner that the Minister of Justice considers appropriate to facilitate public access to it.

Statutory Instruments Act

(2)The Statutory Instruments Act does not apply to the list.

Administrative support and resources

(3)The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.

Amendment History (2)

2001, c. 27, s. 85
2008, c. 3, s. 4

Justice Laws is the authoritative version. If this copy and it ever differ, Justice Laws wins.

Sections numbered under s. 85

Each of these is its own section of the Act, numbered after section 85.

IRPA s. 85.1

Special advocate’s role

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What that means

A special advocate protects your interests when evidence is heard behind closed doors and neither you nor your lawyer can be there. They can challenge the government's claim that the material must stay secret. They can also challenge how relevant, reliable and weighty the evidence is. They are not your lawyer in the usual sense. Still, what you tell them stays privileged, which means it is protected the way a talk with your lawyer would be.

The law says

(1)A special advocate’s role is to protect the interests of the permanent resident or foreign national in a proceeding under any of sections 78 and 82 to 82.2 when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

Responsibilities

(2)A special advocate may challenge

(a)the Minister’s claim that the disclosure of information or other evidence would be injurious to international relations, national defence or national security or endanger the safety of any person; and
(b)the relevance, reliability and sufficiency of information or other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel, and the weight to be given to it.

For greater certainty

(3)For greater certainty, the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client.

Protection of communications with special advocate

(4)However, a communication between the permanent resident or foreign national or their counsel and the special advocate that would be subject to solicitor-client privilege if the relationship were one of solicitor and client is deemed to be subject to solicitor-client privilege. For greater certainty, in respect of that communication, the special advocate is not a compellable witness in any proceeding.

IRPA s. 85.2

Powers

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What that means

A special advocate has real tools. Inside the closed hearing, they can argue orally and in writing about the secret evidence. They can take part in that part of the hearing and cross-examine the witnesses there. With the judge's permission, they can do anything else needed to protect the person's interests.

The law says

85.2 A special advocate may

(a)make oral and written submissions with respect to the information and other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel;
(b)participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in the absence of the public and of the permanent resident or foreign national and their counsel; and
(c)exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.

IRPA s. 85.3

Immunity

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What that means

A special advocate cannot be sued personally for anything they do, or fail to do, in good faith in these cases. That lets them push hard without looking over their shoulder.

The law says

85.3 A special advocate is not personally liable for anything they do or omit to do in good faith under this Division.

IRPA s. 85.4

Obligation to provide information

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What that means

The government must give the special advocate the secret evidence within a deadline the judge sets. That includes relevant material the certificate was never based on. Once the special advocate has that material, they can talk to others about the case only with the judge's permission.

The law says

(1)Subject to paragraph 83(1)(c.1), the Minister shall, within a period set by the judge,

(a)provide the special advocate with a copy of the information and other evidence that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, on which the certificate or warrant is based and that has been filed with the Federal Court, but that is not disclosed to the permanent resident or foreign national and their counsel; and
(b)provide the special advocate with a copy of any other information that is in the Minister’s possession and that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, but on which the certificate or warrant is not based and that has not been filed with the Federal Court.

Restrictions on communications — special advocate

(2)After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate.

Restrictions on communications — other persons

(3)If the special advocate is authorized to communicate with a person, the judge may prohibit that person from communicating with anyone else about the proceeding during the remainder of the proceeding or may impose conditions with respect to such a communication during that period.

IRPA s. 85.5

Disclosure and communication prohibited

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What that means

Unless a judge allows it, nobody may pass on the confidential material shared under these rules, or talk about what happened in the closed part of the hearing. This rule binds everyone, not only the people who were in the room.

The law says

85.5 With the exception of communications authorized by a judge, no person shall

(a)disclose information or other evidence that is disclosed to them under section 85.4 and that is treated as confidential by the judge presiding at the proceeding; or
(b)communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

IRPA s. 85.6

Rules

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What that means

The Chief Justices of the Federal Court and the Federal Court of Appeal can each set up a committee. The committee writes the rules on how special advocates take part in that court, and those rules win where they clash with ordinary practice.

The law says

(1)The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.

Composition of committees

(2)Any committee established shall be composed of the Chief Justice of the Federal Court of Appeal or the Chief Justice of the Federal Court, as the case may be, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to those types of proceedings. The Chief Justices may also designate additional members of their respective committees.

Chief Justices shall preside

(3)The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court — or a member designated by them — shall preside over their respective committees.

IRPA s. 84Protection of information on appeal IRPA s. 85.1Special advocate’s role

s. 85 List of persons who may act as special advocates

Sections numbered under s. 85

Related sections