Public Safety Green Paper Comments – Secret Evidence Edition

This is the final post in my public safety green paper consultation project. This time around, I’ll be focusing on just the questions dealing with secret and classified evidence.

This section is a mixed bag. I think lawyers with security clearances are a great idea (although I have nagging worries about access to them; for all its potential for abuse, at least the special advocate program is free), but I’m deeply creeped out by the concept of classified evidence. It feels fundamentally at odds with a free and democratic society.

I recognize that I’m coming from a place of feeling safe. Terrorism doesn’t feel like much of a threat to me. I care far more about democratic values than the small chance of dying a really horrible death. I even care more about democratic values than the small chance of my loved ones dying horrible deaths. But I understand that other people make that trade-off in different ways. And I can’t say for certain that we wouldn’t have a lot more brutal deaths if the government did things my way. I suspect we wouldn’t, but I understand that many people have much less appetite for risk than I do.

If you want to answer these questions, here’s the link. In this case, more than any of the others, I recommend the background reading.

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

I think Section 38 does a mostly acceptable job of balancing fairness with security, but I do have some worries about the unclassified summaries. When given only a summary, the defence attorney is not able to challenge and cross examine the specific sources in the case. This is especially worrisome if the source is a foreign intelligence agency. No one really has any way of knowing how reliable their evidence is. Perhaps the best compromise here would be having a special advocate present as the summary is being prepared. This lawyer would be charged with ensuring that only information known beyond reasonable doubt (in criminal matters) and on a balance of probabilities (in civil matters) was present in the summary and all information was marked with the appropriate confidence (either: “beyond reasonable doubt” or “on the balance of probabilities”).

It may also be useful to follow the lead of Australia and the US and allow private lawyers to hold security clearances. These lawyers could represent their clients in both open and closed proceedings, ensuring fairness.

Could improvements be made to the existing procedures?

Yes. Attaching confidence levels to unclassified summaries (assigned by the federal judge after hearing arguments from the source of the information and the special advocate or security-cleared lawyer) and allowing lawyers to be security cleared would both lead to improvements in the current procedures.

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?

Security-cleared lawyers would be an excellent addition to the current system. They could cross examine the parties entering the evidence, ensuring that only adequately proven facts are present in the unclassified brief. They could also provide continuity of representation in cases where closed-door hearings occur (like Division 9 Proceedings) as well as in civil cases that involve classified matters (where security-cleared lawyers from both parties could be present in closed door hearings).

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

The Government should review the quality of information – especially information from foreign partners – it is providing in criminal proceedings. If the government were to only allow the most ironclad evidence to be used, then there would probably be fewer disclosures (as the judge would be more comfortable with unclassified summaries, making disclosure less in the public interest) and our foreign partners could have more faith in CSIS. This also helps protect Canadians from imprisonment on bad 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?

Adopting a more adversarial approach to unclassified summaries would make them much more reliable and therefore lessen the public interest in classified information disclosure, leading to less disclosure of classified information. This has the advantage of protecting fundamental justice and national security at the same time.

I think too many people adopt the false dichotomy between justice and security. The government should be looking for clever solutions that enhance both at the same time.

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?

I think the ability for the government to avoid disclosing some information to the special advocate is deeply troubling. If special advocates are already security-cleared, I see little good reason (and many bad ones) to avoid giving them information.

I also think that the special advocate system is much more prone to abuse than an adversarial system where the private citizen is represented by counsel they retain. As employees of the government, special advocates have little incentive to fight as hard as they can against the governments requests for non-disclosure. Private attorneys will face loss of business if they can’t bring about good outcomes for their clients and will be much more willing to fight as hard as they can for disclosure.

We rely on our adversarial system to bring about justice not because we don’t trust the government, but because we acknowledge that some decisions are so momentous that they can only be made after someone has argued as hard as they can for the opposite. What is true in ordinary criminal proceedings is true here as well.

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