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• Do the current section 38 procedures of the Canada Evidence Act properly balance fairness with security in legal proceedings?

Section 38 procedures are complex and inaccessible. The current system, using national security and international relations as reason to keep information, intelligence and evidence secret and unavailable to defendants, is rooted in the concept of “state secrets” which is prejudicial against defendants in several ways. It can be used in civil suits when brought against the government: during the Arar Inquiry, state secrets were used to block investigations into government agents. It could easily be used in other cases of seeking redress for torture.

In criminal cases, it is understood that any system that denies direct access to the evidence presented against a defendant is a violation of the right to a fair and equitable trial. Moreover, once state secrets are invoked under s. 38, the case automatically changes venues to Federal Court (even if it was in Superior Court); this, despite the fact that the judge in a criminal case is the best suited to judge the relevance of evidence to be used against the accused. Because of the regulations and the secrecy, judges can accept intelligence, hearsay and other information that is normally inadmissible without the defendant ever knowing. This goes so far as to include information obtained under torture. Further, the minister in question controls the evidence. They have no obligation to share all the evidence – including any exculpatory evidence. There is no obligation to disclose. For example, in the cases of Adil Charkaoui and Mohamed Harkat, we know that CSIS destroyed original evidence, and entered into evidence only summaries. This falls far short of full disclosure. This system is inherently unfair and must be reviewed.

• Could improvements be made to the existing procedures?

A defendant should at all times have access to the evidence used against them in order to mount an adequate defence and to ensure a fair and just trial.

• Is there a role for security-cleared lawyers in legal proceedings where national security information is involved, to protect the interests of affected persons in closed proceedings? What should that role be?

A defendant’s lawyer should have access to the evidence presented against their client, be able to fully review and challenge that evidence in court. However, we would still argue that any system that allows for secret trials that prevent defendants from fully accessing the evidence against them is an unjust and unacceptable system.

• Are there any non-legislative measures which could improve both the use and protection of national security information in criminal, civil and administrative proceedings?

As stated above, the over-extended use of secret information in our judicial system is a concern. These practices must be reviewed and scaled down. It is therefore highly undesirable to add measures that have not been thoroughly debated in Parliament but that would further the use of secret national security information.

• How could mechanisms to protect national security information be improved to provide for the protection, as well as the reliance on, this information in all types of legal proceedings? In this context, how can the Government ensure an appropriate balance between protecting national security and respecting the principles of fundamental justice?

Again, apart from allowing defendants full access to the evidence against them in order to ensure fair trials, the entire system that developed and has increased the use of secret national security evidence and intelligence must be reviewed, revised and most likely scaled back to protect our Charter rights and the principles of fundamental justice.

• Do you think changes made to Division 9 of the IRPA through the ATA, 2015 are appropriately balanced by safeguards, such as special advocates and the role of judges?

Division 9 of the IRPA, commonly known as the security certificate regime, is a highly problematic provision that should be repealed. The use of special advocates or the role of the judges cannot repair a system that completely goes against the principles of fundamental justice and the right to a fair and open trial.

There are several concerns regarding those detained under security certificates, including that they are:

• Imprisoned indefinitely on secret evidence, though no charges have been laid against them;
• Tried in unfair judicial proceedings where information is not disclosed to the detainee or their lawyer;
• Denied the full right to appeal when the certificate is upheld in a process that uses the lowest standard of proof of any court in Canada;
• Under threat of deportation even when they face unfair imprisonment, torture or death.

Although the latest Supreme Court of Canada decision in the case of Mohamed Harkat has upheld the security certificate against him, the justices have stated their discomfort with such a regime as the evidence against the person subjected to a security certificate is kept secret from them and their lawyer, and thus they are unable to respond to it. Such a grave concern should have lead to a declaration of the regime as unconstitutional, and we would ask, again, that it simply be repealed.