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Intelligence to Evidence in Civil and Criminal Proceedings: Response to August Consultation Paper

12 Pages Posted: 13 Sep 2017  

Kent Roach

University of Toronto - Faculty of Law

Craig Forcese

University of Ottawa - Common Law Section

Date Written: September 12, 2017

Abstract

This paper responds to the government’s proposals for redressing the “intelligence-to-evidence” (I2E) dilemma in national security judicial proceedings, discussed in its targeted consultation document distributed in August 2017. The paper urges the need for not just law reform, but also operational reform in terms of how police and the Canadian Security Intelligence Service (CSIS) manage their "parallel" national security investigations. We renew our doubts about the parallel investigation and the dangers it poses for national security. The paper supports the government's proposed changes to the Canada Evidence Act, s.38 national security confidentiality procedures for criminal trials. In particular, it agrees that trial court judges should be able to make and modify s.38 non-disclosure orders. It urges, however, that Parliament codify the Stinchcombe disclosure rules, and their application to national security proceedings, and not simply double-down by codifying the O'Connor "third party" rule - something that may reinforce parallel police/CSIS investigations. The paper expresses considerable skepticism for the "closed material proceeding" (CMP) proposal in civil trials implicating national security proceedings. These would produce, in essence, secret civil trials. We suspect secret civil trials would be challenged on division of power grounds, under s.96 of the Constitution Act 1867 and even under the Charter and the open court principle and, if it remains applicable, the Canadian Bill of Rights. More immediately, the CMP proposal seems likely to make a bill responding to neglected criminal law I2E issues much more controversial than it needs to be.

Keywords: intelligence, evidence, national security, trials, criminal, civil, judicial proceedings, Canada

Suggested Citation

Roach, Kent and Forcese, Craig, Intelligence to Evidence in Civil and Criminal Proceedings: Response to August Consultation Paper (September 12, 2017). Available at SSRN: https://ssrn.com/abstract=3035466

Kent Roach

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

Craig Forcese (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

HOME PAGE: http://www.cforcese.ca

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