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Weaknesses of Adjudication in the Face of Secret Evidence

Gus Van Harten

York University - Osgoode Hall Law School

October 1, 2008

International Journal of Evidence and Proof, Vol. 13, 2009

Since 2001, governments in Canada and the United Kingdom appear to have increasingly sought to use secret evidence in proceedings against individuals suspected of posing a security threat, relying on the courts to review and legitimate executive claims in closed proceedings. Yet, in the face of secret evidence, adjudicative decision-making is subject to several extraordinary weaknesses. First, the judge is precluded from hearing additional information that can come to light only if the individual or the public is aware of the executive’s claims. Secondly, courts are uniquely reliant on the executive to be fair and forthcoming about confidential information and to characterize accurately the case for secrecy. Thirdly, the dynamic or atmosphere of closed proceedings may condition a judge to favour unduly the security interest over priorities of accuracy and fairness. Even where the use of secret evidence is not deemed to be irreparably unsafe or unfair, therefore, its admissibility must be premised on the acknowledgment and careful consideration of corresponding weaknesses in adjudication.

Number of Pages in PDF File: 35

Keywords: closed proceedings, confidentiality, national security, judicial review

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Date posted: August 28, 2009 ; Last revised: September 5, 2009

Suggested Citation

Van Harten, Gus, Weaknesses of Adjudication in the Face of Secret Evidence (October 1, 2008). International Journal of Evidence and Proof, Vol. 13, 2009. Available at SSRN: http://ssrn.com/abstract=1460835 or http://dx.doi.org/10.2139/ssrn.1460835

Contact Information

Gus Van Harten (Contact Author)
York University - Osgoode Hall Law School ( email )
4700 Keele Street
Toronto, Ontario M3J 1P3
416 650 8419 (Phone)

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