Treating people fairly means giving everyone equal protection of their basic rights. The use of secret evidence in immigration processes is unfair because it undermines non-citizens’ right to life, liberty and security of the person. When these rights are at stake for citizens, such as in criminal proceedings, we do not tolerate the use of secret evidence. Non-citizens deserve an equal opportunity to know and respond to the evidence used against them.

Decisions made using secret evidence in immigration proceedings have dramatic consequences for the individual, because a person found inadmissible on security grounds cannot make a refugee claim and is only eligible for a much narrower risk review, with a higher standard of proof. There is therefore a real possibility that affected persons will be sent back to face persecution, in violation of Canada’s international human rights obligations. Because the definition of security inadmissibility in Canadian immigration law is very broad, those affected include people who have never engaged in or promoted violence and who represent no threat to Canada’s security.

The CCR/ICLMG factum is available from the Supreme Court website.