Behind Closed Doors: Secret Law and the Special Advocate System in Canada
In today’s society, the open court principle can sometimes clash with the need for secrecy on national security, national defence, and other grounds. Governments have had to devise solutions to uphold the rule of law while keeping in mind those concerns. Drawing on the experience of the United Kingdom, Canada has set up a system of secret hearings under the security certificate system, while providing security-cleared Special Advocates for affected individuals, who can access sensitive information and protect the interests of those individuals.
In today’s society, the open court principle can sometimes clash with the need for secrecy on national security, national defence, and other grounds. Governments have had to devise solutions to uphold the rule of law while keeping in mind those concerns. Drawing on the experience of the United Kingdom, Canada has set up a system of secret hearings under the security certificate system, while providing security-cleared Special Advocates for affected individuals, who can access sensitive information and protect the interests of those individuals.
The authors seek to shed some light on two questions: how do secret hearings work and to what extent do they abide by the rule of law? Through analysis of the major Canadian cases on secret hearings under the security certificate system—Almrei, Charkaoui, Mahjoub, Harkat, and Jaballah—and interviews with practitioners involved in the Special Advocate system, the authors provide insights on what the system looks like, and how it fits within the rule of law. In particular, the authors explore the Federal Court’s development of procedural norms and the concerns these uncodified norms raise for the rule of law. While the Special Advocate system has produced high-quality legal work, there is reason to be skeptical of the extent to which it is able to constrain arbitrary decision making in secret hearings
