The need to justify and limit procedural innovation in national security litigation

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.