The Need to Justify and Limit Procedural Innovation in National Security Litigation

The Need to Justify and Limit Procedural Innovation in National Security Litigation

Kent Roach and Craig Forcese

(2018) 68: University of Toronto Law Journal, 526-543

Abstract:

Legal systems should not always assume the legitimacy of state demands for secrecy and accommodate them with procedural innovations. This is especially so in Canada, which has made problematic policy choices to stress secrecy even in counterterrorism investigations where secret intelligence often has evidential value. A fairer and more efficient transition from secret intelligence to public evidence could be achieved if Canadian criminal trial judges, like those in other democracies, could make and revise non-disclosure or public interest immunity orders to protect secrets. The government of Canada has not justified adopting the procedural innovation of closed material procedures that would allow it to defend itself in national security civil litigation on the basis of secret evidence not seen by plaintiffs claiming to have been abused, but only by special advocates. There is a danger that even justified procedural innovation such as the use of special advocates will create new baselines that can be used to support additional innovations that may undermine the legitimacy of the legal system and discount the value of procedural regularity.

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About the Author:

Craig Forcese teaches public international law, national security law, administrative law and constitutional law. He also co-teaches advanced international law and relations at the Norman Paterson School of International Affairs. He also co-organizes and instructs the Canadian component of Georgetown Law’s National Security Crisis Law course and simulation. In 2017, Professor Forcese and Kent Roach received the Canadian Civil Liberties Association Award for Excellence in Public Engagement (“for courage and commitment to human rights, human dignity and freedom”). In 2016, he was named jointly with Professor Kent Roach as among the “Top 25 most Influential in the justice system and legal profession” by Canadian Lawyer Magazine. In response to their work on national security law, Craig and Kent also received the Canadian Law and Society Association Book Prize (for their book False Security) and the Reg Robson Award (given annually by the BC Civil Liberties Association “to honour a community member who has demonstrated a substantial and long-lasting contribution to the cause of civil liberties in B.C. and Canada”). Professor Forcese was inducted as a member of the uOttawa Common Law Honour Society in 2016.

 

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