Behind Closed Doors: Secret Law and the Special Advocate System in Canada.

• Author: Hudson, Graham

Introduction

1. The Legislative and Constitutional Framework: of the Special Advocate System

   1. Secret Hearings and the Right to a Fair Trial

   2. The Special Advocate System in Canada

   3. The Constitutionality of the Special Advocate System Reviewed: Harkat v Canada

2. Theoretical Context and Methodology

   1. Secret Hearings and the Rule of Law

   2. Methodology

3. Rules of Practice and Procedure in the Federal Court: Formal Law, Custom, and Culture

   1. Rules of Practice and Procedure in SIRC

   2. Rules of Practice and Procedure in the Federal Court

   3. Summary

4. The Conditionality of Special Advocate Powers: Material, Epistemic, and Discursive Barriers

   1. Selection and Training of Special Advocates

   2. Appointments, Tainting, and Knowledge Sharing

   3. Disclosure

   4. Administrative Support

   5. Summary

5. Trust, Control, and the Limits of the Special Advocate System

   1. Communication Between Special Advocates and Named Persons

   2. Expert Witnesses

6. Conclusion

   Introduction

   Executive secrecy has a long pedigree in Canadian law, (1) and even deeper roots in English common law. (2) Until relatively recently, it was not often invoked in courts, falling for the most part within the realm of the royal prerogative, cabinet confidences, and select administrative and bureaucratic quarters. (3) The role of courts has grown greatly following 9/11, when dynamics between shifting security practices and constitutional litigation generated more intricate juridical frameworks oriented to rights and the rule of law. (4) Judges now administer hearings concerned in one way or another with sensitive information on a daily basis, with large portions of information being heard in the absence of interested parties (ex parte) and/or the public (in camera). The subject matter of hearings relate to such disparate fields as immigration and refugee law, security intelligence warrant applications, passport revocations, listing of terrorist entities, reviews of classified decisions related to government employment and contracts, and the non-disclosure of evidence in civil and criminal proceedings. (5)

   Governments typically justify the non-disclosure of sensitive material on grounds of national security, although information may also be protected for reasons related to national defence and international relations. (6) Secrecy is, of course, the bread and butter of intelligence work, to an extent being necessary to protect the integrity of ongoing (and past) operations, the strategic and tactical value of intelligence, and the safety of officers, human sources, and agents of the state. (7) But it is an altogether different matter to protect the secrecy of information that is used, or should be used, as evidence in judicial hearings. (8) Counterbalancing the interest of the state in secrecy are the rights of affected parties (e.g., to a fair trial, privacy, access to information), the public interest in the open court and open justice principles, and the rule of law. (9)

   Formalized in Canada, the United Kingdom, the United States, the Netherlands, Australia, New Zealand, and elsewhere, the framework of secret proceedings are composed of public laws, such as statutes and regulations. But these tend to be vague, for the most part being concerned with controlling conditions of disclosure while conferring upon judges a broad discretion over rules of practice and procedure. (10) In some instances, such as those concerned with security intelligence warrant applications, affected parties are unaware the proceeding ever took place. In others, a proceeding is akin to a trial, insofar as an affected party is informed of an allegation against him and has an opportunity to participate in open proceedings that run parallel to closed proceedings.

   Secret hearings are, to say the least, hard to square with rights and the rule of law. (11) Legislatures have made efforts to provide substitutes for disclosure and adversarial challenge, albeit in many instances only after appellate courts have required improvements as a matter of constitutional or international law. In Canada and the UK, these substitutes have come in the form of a "Special Advocate system", where Parliaments have allowed for the assignment of security-cleared counsel to represent the interests of affected parties during ex parte, in camera hearings. Some are satisfied that Special Advocate (SA) systems vindicate constitutional law; (12) others are less sanguine, insisting that secrecy of any kind is inherently incompatible with procedural fairness and the rule of law. (13)

   As academic and professional debates continue, high courts have upheld the legality of SA systems. The Supreme Court of Canada did so in the 2014 case of Canada (Citizenship and Immigration) v Harkat, (14) while the SA system in the UK has been endorsed or upheld by both UK courts and the European Court of Human Rights. (15) Indeed, these judgments have permitted the UK's Parliament to expand closed material proceedings to new settings. Beginning with immigration proceedings, (16) SAs have since been used in proceedings related to: the listing of terrorist organizations, (17) control orders, (18) terrorism prevention and investigation measures, (19) asset-freezing orders, (20) and civil proceedings where national security information might be disclosed. (21)

   But one of the curious features of these cases is that high courts know little more than excluded parties, the public, and academia about the internal workings of secret hearings. In both Canada and the UK, they have generally declined to receive secret evidence, citing adherence to the open court and open justice principles. (22) But another reason relates to formal distinctions between fact and law, of which only the latter is at issue in most appeals. (23) Following the UK Supreme Court's lead in Bank Mellat v HM Treasury, (24) the Court in Harkat said "closed evidence is factual in nature, whereas the points debated before appellate courts are essentially legal" and so "closed hearings before it would rarely, if ever, be necessary for the proper disposition of an appeal". (25) Although the Court did view evidence and hear submissions in secret, it sought to assure critics that the material "did not assist this Court in deciding the issues before it". (26)

   While sound from the perspective of the open court and open justice principles, the hard and fast distinction between facts and law raises a methodological question: how can an appellate court pronounce on the soundness of judicial reasoning, much less the general fairness of an SA system, if it does not know what is being decided or even how decisions are made? Recalling the maxim "justice should not only be done, but be seen to be done", we might just as well ask how high courts know justice is being done unless they peer behind closed doors.

   The purpose of this paper is to shed some light on two questions: how do secret hearings work, and, to what extent do they abide by the rule of law? Answering either question is obviously difficult--secret hearings are a black box, the content of which can be gleaned only by observing input and output. To maximize our ability to describe and interpret how secret hearings work, we combined legal research (e.g., case law, statutory law, official documents) and interviews with thirty-nine stakeholders, including judges, lawyers, administrators, and institutional representatives involved in secret hearings in Canada and the UK. As this research is ongoing, this paper represents the first of our findings, focusing on the Canadian experience and the Canadian SA system in particular.

   Our first and primary finding is that, although Parliament has outlined the essential powers and functions of SAs, the exercise of these powers is conditional on a host of informal factors. Before sketching out some of these factors, we should pause to define "conditionality" as including the material, epistemic, and relational conditions that must be satisfied before SAs can acquire and exercise powers notionally available to them through positive law. (27) Conditionality entails hard work--SAs have to actively find ways to establish and negotiate claims for specific powers on a case-by-case basis, working both with and against a host of dynamic factors. Pertinent factors include: relations of trust and distrust among judges, government lawyers, intelligence communities, and excluded parties; governmental and judicial concerns about inadvertent disclosure; the shifting institutional culture of the Federal Court; and the idiosyncrasies of particular judges. Our second claim is that the confluence of these forces has in some areas produced a body of customary norms or "stabilized interactional expectancies" that reduce but do not eliminate contingency. (28) This sort of stability is highly desirable, providing some semblance of the rule of law. However, SAs remain effectively unable to negotiate some vital powers and, when they are successful, the scope and durability of these powers is subject to change. We identify some areas where greater fairness can be provided without increasing reasonable risks of inadvertent disclosure.

   The paper is organized as follows. First, we provide a brief overview of the SA system, including pertinent constitutional norms and legislative provisions. We also survey some of the core criticisms of SA systems, from the perspective of the right to a fair trial and the adversarial tradition. Second, we outline the theoretical context for the study and our methodology. From here we introduce the empirical results of our research. Section III outlines how rules of practice and procedure emerge and apply in the Federal Court of Canada, with specific regard to the interaction between path dependency (29) and organizational change. Section IV explores the material, epistemic, and discursive challenges SAs face, as well as whether and how these obstacles have been overcome. Matters of interest...