National Security Transparency: The Problem of Secret Law
4 June 2019
By Leah West
“It is an extremely painful thing to be ruled by laws that one does not know.” Franz Kafka
Last week I had the pleasure of addressing delegates at the 6th Open Government Partnership Global Summit hosted by Canada in Ottawa. I was asked to participate on a panel hosted by Public Safety Canada entitled: National Security Transparency: Expert Perspectives along with Wesley Wark, Christopher Parsons and Veronica Kitchen. The following is a copy of my remarks on the subject of “secret law.”
Thank you and good afternoon. The issue I’d like to address today is a recurring and arguably growing problem in the national security space, and that is the development of “secret law.”
I’ll begin my remarks by defining this term and outlining the tensions of secret law with protected human rights. Next, I’ll provide a few examples of how Canada is seeking to lift the curtain on what historically has been secret elements of Canadian law making. And finally, I will offer a proposal for how, I believe, the Department of Justice can enhance transparency in the area of national security law.
When I use the term “secret law,” I am referring not just to the development of legislation, but to orders in council, ministerial directions and authorizations, Justice Canada legal opinions and judicial decisions that are withheld by the Government or the Judiciary from the public.
In Canada, the idea of secret law is an anathema to the protections afforded by the Canadian Charter of Rights and Freedoms, and the International Covenant on Civil and Political Rights.
In particular, section 9 of the Charter holds that everyone has the right not to be arbitrarily detained or imprisoned. Section 7 of the Charter stipulates that everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Canadian courts have recognized that in the criminal context, the right to make full answer and defence is a principle of fundamental justice. Outside the criminal context, section 7 protects ones’ opportunity to know the case to meet, and the right to a decision based on the facts and the law. Relatedly, the open court principle is deeply embedded in our common law tradition and is safeguarded by section 2(b) of the Charter that protects our freedom of expression, and freedom of the press.
The current government has taken an important step to improving transparency around lawmaking by imposing a legal duty on the Minister of Justice to release Charter statements for every new piece of legislation introduced by the government. These statements outline the Charter rights that are potentially engaged by the proposed bill and possible justifications for any limits on those rights the bill may impose. This was a practice introduced in 2016 but with the passage of C- 51 will become a legal obligation under the Department of Justice Act.
The Federal Court of Canada has also taken great strides recently to improve transparency surrounding designated proceedings. Designated proceedings are those that take place in a secure facility and are closed to the public for reasons of national security. They are very often conducted ex parte meaning only government counsel may participate. These types of proceedings are most common where the Canadian Security Intelligence Service (CSIS) makes a warrant application to use intrusive collection techniques, and where the government makes an application to withhold information they would otherwise be required to disclose on the basis that it’s release would be injurious to Canada’s national security, defence or international relations.
The Chief Justice of the Federal Court has stated publicly in a recent judgement that the Court “is committed to increasing the transparency of its decisions in private proceedings.” The Court has proven that commitment by releasing a record number of decisions in the past few years. In some instances, those decisions have been heavily redacted, and in others the Court drafted two decisions: one for public release, the other to remain classified. This practice ensures that information that may not be revealed for national security reasons is protected but gives the public a greater understanding of the development of national security law.
As an example, the Federal Court released a decision in 2017 that publicly acknowledged that CSIS was authorized to use IMSI grabbers also known as “stingrays” to capture personal identifying information for cell phones of large numbers of Canadians. More recently, the Court published a decision discussing CSIS’s use of implants on computers and wireless devices to remotely capture electronic information. Because CSIS investigative techniques are rarely revealed in criminal proceedings, these cases give the public a window into the activities and tools of this secretive intelligence service and how the law is developing around their use.
While I am heartened by these two initiatives, they are not enough. This is especially true given the fact that national security in this country, and in like-minded states, is becoming increasingly judicialized. What I mean by that is that through legislation like Bill C-59: An Act Respecting National Security Matters, law makers are giving our security agencies new powers to address the threats posed by terrorism, espionage and foreign influence, and to counter those threat actors who increasingly leverage cyberspace to advance their interests to the detriment of our security. In order to access those powers, agencies like CSIS and Canadian Security Establishment (CSE) will be required to obtain authorizations from either the Federal Court or their respective Minister, whose decision must (at least sometimes) be reviewed by the Intelligence Commissioner, an independent quasi-judicial officer.
As these new powers are brought to bear, it is especially important that, as much as possible, the Court, the Intelligence Commissioner, and both the National Security and Intelligence Committee of Parliamentarians, and the National Security and Intelligence Review Agency make a concerted effort to maximize transparency regarding not just whether the use of these new powers complies with the law, but how the law is interpreted by the Government to justify their use.
Moreover, I believe the responsibility for ensuring transparency around the development of national security law cannot rest at the feet of the review and oversight bodies. The agencies themselves and the Department of Justice have a crucial role to play.
This brings me to my key proposal. I believe the Minister of Justice should follow the example set by the US Department of Justice’s Office of Legal Counsel (OLC) and publish legal opinions of national importance. In the US, OLC opinions are drafted to answer questions of law when requested by the President and the heads of Executive Branch departments, and as such many relate to the extent and reach of executive power.
Legal opinions are, of course, protected by solicitor-client privilege and may also be privileged on grounds of national security. But these privileges can and in certain instances should be waved in the greater public interest. This is especially true when opinions touch on the activities of Canada’s security agencies that are not subject to judicial oversight. In such circumstances, Justice Canada’s legal advice is often the last say on whether proposed conduct is lawful. What’s more, because of the covert nature of national security activities these legal opinions can take on precedential value and form the basis for subsequent legal opinions without the validity of the underlying positions ever being tested in an adversarial process.
In deciding whether an opinion is significant enough to merit publication, the OLC considers several factors including: the potential importance of the opinion to other agencies or officials in the Executive Branch; the likelihood that similar questions may arise in the future; the historical importance of the opinion or the context in which it arose; and the potential significance of the opinion to the Office's overall jurisprudence.
Finally, the OLC operates from the presumption that it should make its most significant opinions fully and promptly available to the public.
I see little standing in the way of Canada’s Department of Justice adopting this practice and releasing legal opinions of national significance. Publishing DOJ opinions will increase transparency, further accountability and effective government, especially in the secret world of national security. I also believe it would promote public confidence in our national security agencies, and confidence in the legality of our government’s actions.
 This paragraph was summarized for the audience:
OLC's central function is to provide, pursuant to the Attorney General's delegation, controlling legal advice to Executive Branch officials in furtherance of the President's constitutional duties to preserve, protect, and defend the Constitution, and to "take Care that the Laws be faithfully executed." To fulfill this function, OLC must provide advice based on its best understanding of what the law requires—not simply an advocate's defense of the contemplated action or position proposed by an agency or the Administration. Thus, in rendering legal advice, OLC seeks to provide an accurate and honest appraisal of applicable law, even if that appraisal will constrain the Administration's or an agency's pursuit of desired practices or policy objectives. This practice is critically important to the Office's effective performance of its assigned role, particularly because it is frequently asked to opine on issues of first impression that are unlikely to be resolved by the courts—a circumstance in which OLC's advice may effectively be the final word on the controlling law.