Protecting national security sometimes requires secrecy. But when individuals stand to lose their Charter-protected rights to liberty or to mobility during a national security proceeding—whether it is a security certificate hearing or when appealing placement on a “no-fly” list—the constitution requires due process.
In 2007 the Supreme Court decided a case called Charkaoui. This decision found that named persons in security certificate proceedings have a right to know the case against them, even when there are important reasons why the government might want evidence to remain secret. After this Supreme Court case, Parliament established a Special Advocate system. Though the person named in the process is still denied access to classified information, Special Advocates (top security-cleared lawyers) are allowed access to the secret evidence and can test and challenge the evidence in the secret hearing, on behalf of the named individuals.
Bill C-51 altered the rules around the security certificate process, and allows the Minister to withhold information, even relevant information, about a case from the Special Advocate. CCLA argues in our constitutional challenge that this is an unacceptable weakening of the right of the named person to have a full, fair defence (see this post for more on this issue). Unfortunately, Bill C-59 doesn’t address this problem at all.
CCLA also believes that Special Advocates shouldn’t just be for security certificate cases; in any hearing where an individual is faced with secret evidence, due process demands that someone, on the individual’s side, can know the whole case and argue on behalf of the person involved. Most obviously this means that there should also be Special Advocates to protect people placed on the no-fly list who want to appeal that decision.
To balance against secretive legal processes designed to protect national security, we need strong safeguards to ensure due process and that the principles of fundamental justice are upheld.