Edited by David Cole, Federico Fabbrini and Arianna Vedaschi
Chapter 11: Comparative advantages: secret evidence and ‘cleared counsel’ in the United States, the United Kingdom and Canada
Sometimes comparative constitutional law is not merely academic. In Charkaoui v. Canada (‘Charkaoui I’), the Canadian Supreme Court engaged in a kind of comparative constitutional analysis in assessing whether Canada’s procedure for deporting foreign nationals on the basis of secret evidence was consistent with the guarantee of a fair hearing enshrined in the Canadian Charter of Rights and Freedoms. Noting that the United Kingdom (UK) employed ‘cleared counsel’ to mitigate the unfairness of the process in similar circumstances, the Canadian Supreme Court held that Canada could, and therefore as a constitutional matter must, do more to ensure fairness. The Canadian Parliament then adopted a process, much like the UK’s, that authorized lawyers with security clearances to see the otherwise secret evidence and to challenge it on behalf of the affected party in closed proceedings. In this instance, the Canadian Supreme Court looked to the practice of another nation to inform its judgment about whether Canada had done all it could to minimize its compromise of fair trial principles in the name of protecting national security. In this chapter, we propose to engage in comparative borrowing for a similar purpose by examining the use of ‘cleared counsel’ in the UK, Canada, and the United States (US). An analysis of the ways in which these three countries are using secret evidence and cleared counsel in roughly similar contexts sheds critical light on the practices of each. In the end, our analysis maintains that none of the three democracies is doing all that it can to mitigate the costs
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