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Opinion Secret evidence should not be allowed in civil cases

Kent Roach and Craig Forcese are professors of law at the University of Toronto and Ottawa, respectively, and the authors of False Security.

In the dog days of summer, the federal Department of Justice issued a short "targeted stakeholder" consultation on intelligence and evidence. Part of the proposal, if implemented, would allow the federal government to defend itself in civil litigation brought by victims of security abuses on the basis of evidence only seen by the trial judge, government lawyers and a security cleared special advocate. The plaintiffs and their lawyer would never see the evidence. The special advocate could only talk to them after seeing the secret evidence with a judge's permission.

This proposal is troubling. It raises many political and legal questions. Would the recent settlement with Omar Khadr, as well as Ahmad El-Maati, Abdullah Almalki and Muayyed Nureddin, have been different or avoided if the government could have defended itself with secret evidence? We will never know, but all of these cases involved alleged Canadian complicity with other countries, an area where Canada as a net importer of intelligence is frequently concerned with secrecy.

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Even if the government could have defended itself on the basis of secret evidence, should it have? Secret evidence is not allowed in criminal cases, but is allowed in security-certificate cases and passport revocations.

Secrets are important, but right now they are protected by judicial non-disclosure orders that do not allow material that will reveal secrets to be used in criminal or civil trials.

The government's secret-evidence proposal is based on controversial 2013 legislation in Britain that allows the use of "closed proceedings." Like the British legislation, the federal proposal allows either the government or a plaintiff to seek a closed proceeding on the basis that it would contribute to a full and fair trial.

Practically, however, the government is more likely to benefit from closed proceedings because it will be difficult for plaintiffs who have not seen the secret information to persuade a judge that a closed proceeding is necessary. The plaintiffs would also have to rely on a special advocate, not their own lawyer, to make and carry their case in closed proceedings.

The British legislation has one important safeguard not mentioned in the Canadian proposal: Judges in Britain must be persuaded that closed proceedings are in the interest of fair and effective administration of justice. They can stop closed proceedings at any time if they conclude that the proceedings are no longer fair.

It may, however, be premature to consider fine tuning the federal proposal. The prior question Canadians should ask themselves is whether extending secret evidence into civil proceedings is a good idea?

There is nothing in the brief consultation papers that makes the case that such a significant innovation in civil proceedings is necessary. In Britain, at least there was a major consultation before the enactment of closed proceedings. In New Zealand, there was a report by a law reform commission. In Canada, we had a couple of pages released in late summer, which people had just over a month to respond to before the Sept. 15 deadline.

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It is unfortunate that this proposal on controversial secret evidence in civil proceedings has been joined with others proposals designed finally to act on the Air India Commission's 2010 recommendations. The criminal proposals do not allow the use of secret evidence, but rather would give criminal trial judges new powers to make and revise orders that evidence not be disclosed to the accused because of concerns about state secrecy.

This was the approach used in the Toronto 18 terrorism prosecution after a trial judge held that Canada's unique two-court structure was unconstitutional. Momentum toward this reform was lost in 2011 when the Supreme Court held that Canada's two court approach was constitutional. But simply because something is constitutional does not mean that it is optimal and there is much to be said for a one-court approach.

Ironically the government's new proposal to allow secret evidence to be used in civil proceedings may attract its own constitutional challenges. The Supreme Court's 2011 decision did not sanction the use of secret evidence. It warned that if there was any doubt about fairness, criminal proceedings against the accused must be terminated. The court has also held that the Charter's guarantees are not limited to criminal trials. The civil secret evidence would alter the traditional ways that courts resolve civil claims. The government has failed to justify the need for the radical and controversial innovation of allowing the use of secret evidence in civil proceedings.

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