National security, security certificates, the special advocate regime and secret evidence: the right to know and respond to the evidence against you

Abstract

This thesis examines the use of information that is confidential, for reasons of national security, against detainees held under the security certificate provisions of the Immigration and Refugee Protection Act, SC 2001, c 27 (IRPA), without disclosure to the detainee or the detainee’s counsel. The striking down of the predecessor legislation by the Supreme Court of Canada and Parliament’s response are reviewed, as is pertinent literature in the area. Parliament’s creation of a regime providing for the appointment of a Special Advocate to receive confidential information and represent the interests of an individual detained under a security certificate at hearings where the detained individual and their counsel are excluded is considered. The Special Advocate regime is analyzed to determine its adequacy in protecting the section 7 rights of a detainee under the Canadian Charter of Rights and Freedoms. The limitations associated with the Special Advocate regime are identified, with a conclusion that the relevant provisions of IRPA, including the Special Advocate regime, are inadequate in terms of protecting the right to make full answer and defence and that, therefore, the current legislation violates the Charter.