Can the government keep certain evidence a secret during my immigration hearing?

The situation

I am currently in the middle of a very stressful situation here in Canada. My cousin, who has been living in Ontario for about five years, is facing a hearing regarding his status because of some old paperwork issues. We have been preparing for this for three months now, and we even spent over 2,000 dollars on a consultant to help us organise all our documents. During our last meeting last Tuesday, the person representing the government mentioned that they might have some private documents or information that they do not want us to see or look at during the actual hearing. I have already tried asking my consultant if this is normal, but they just said it is possible under certain rules. I am really worried because if they are hiding something, how am I supposed to defend him properly? I need to know if the authorities are allowed to use information against him in court or during his appeal if they refuse to show that specific evidence to us or our representative beforehand. Is it legal for them to keep certain details hidden from our view during the proceedings?

Detailed Analysis

In your cousin's situation, the representative's comment is consistent with the law. Under the Immigration and Refugee Protection Act, the Minister has the power to ask the court to keep certain information private. Specifically, the Minister "may, during an admissibility hearing... apply for the non-disclosure of information or other evidence"^[1]. This means the government can formally request that specific documents or details not be shown to your cousin or his representative.

This usually happens if the information is considered dangerous to reveal. The law allows for this if the disclosure would be "injurious to international relations, national defence or national security or endanger the safety of any person"^[3].

To protect your cousin's right to a fair process, the law includes safeguards. If the judge allows the government to keep evidence secret, the judge must still ensure that your cousin is "provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister"^[2]. A summary is a shortened version of the facts that gives you the gist without revealing the dangerous secrets. Additionally, the judge may appoint a "special advocate"—a person appointed to represent interests in the proceeding—to look at the secret evidence and ensure fairness^[2].

It is important to note that while the judge must provide a summary, the law also states that a judge "may base a decision on information or other evidence even if a summary of that information or other evidence is not provided"^[2]. This means there are limits to how much your cousin can know while still being able to defend himself. Whether the government can successfully hide specific documents depends on whether the judge agrees that the risk of sharing them is too high.

State, provincial, or local laws may add further rules regarding privacy or legal procedures; you should check specific Ontario or federal administrative rules.

Statutory Citations

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