A Clash of Two Imperatives: the Right to Know Versus the Need to Keep Secret in the Context of Criminal Law and National Security Matters

Abstract

More than ever before, two imperatives, ‘the right to know’ and ‘the need to keep secret’, find themselves in a contest for a position of primacy in the contemporary legal system. The need to keep secret is antipathetic to the right to know. The Canadian Charter of Human Rights and Freedoms has entrenched a person’s right to disclosure of both exculpatory and inculpatory material in possession of the prosecution. Moreover, the common law has placed the additional responsibility on the prosecution to inquire of third parties as to the existence and production of material relevant to the defence. Despite the entrenchment of the right to disclosure the demands by the state have steadily grown for more evidence to be withheld from defendants, parties to proceedings and the public in general. The applications for in camera or ex parte hearings are common place and frequently acceded to.

This thesis seeks to examine the clash of the two imperatives from the Canadian perspective. By using a comparative analysis of other jurisdictions throughout the thesis, it examines the various legislative instruments and common law employed in the Canadian Courts in respect of ‘ordinary’ criminal trials as well as trials of suspected terrorists, specifically, in respect of disclosure and the ability to withhold material from other parties and refrain from the obligation to disclose. The thesis includes a full analysis of disclosure options, public interest immunity, informer privilege, special advocates and other regimes, and claims of privilege in the interests of national security.

The thesis provides a number of detailed recommendations as to how Canada can better balance rights of accused against the public interest and the needs of those who enforce the law.. The recommendations call for legal reforms, some new institutions for better accountability and new internal standards for those engaged in the investigation of crimes and national security matters.