Somewhere in a Canadian courtroom, sometime soon, a secret hearing will take place to discuss an Egyptian Canadian suspected of making surveillance videos of Toronto's subway system and the CN Tower. Civil libertarians have labelled the hearing Canada's Star Chamber proceedings, since its location or date cannot be disclosed, and the public is barred from attending. It's known as a "Section 38 application," under Canada's Evidence Act. The legislation has existed for more than two decades as a means for the government to safeguard sensitive evidence, but amendments resulting from the omnibus 2001 Anti-Terrorism Act now shroud the process in secrecy.Even the fact the Toronto Star has learned that a Section 38 hearing is taking place is unusual, since the law forbids public acknowledgement of the proceedings themselves unless the attorney general consents. Amendments to the law also changed the definitions of what information can be protected and gave the attorney general the power to trump a federal court ruling.

The upcoming Section 38 application involves a civil lawsuit launched by Kassim Mohamed, a 39-year-old former Toronto school bus driver who was at the centre of an extensive 2004 terrorism investigation. Never charged, he is alleging Canadian security services shared his personal information with Egyptian authorities, and is thereby responsible for his two-week detainment and alleged harsh treatment in Cairo.

Toronto lawyer Lorne Waldman, who is representing Mohamed, has been given some of the government's disclosure in the civil case, but was recently notified of their intention for a Section 38 application to stop the public release of additional information. Waldman was forbidden by law from disclosing the fact the hearing was taking place until he received the consent of the government and a letter from the federal court allowing him to do so.

"It puts everyone in the process in a really difficult, uncomfortable position," Waldman says. "The danger of this ultra-secret world is that there is no scrutiny, no public debate and ultimately we have to trust that (the government) knows what they're doing."

The government has defended the changes to the law as necessary tools to safeguard diplomatic ties and protect Canada's security. Former justice minister Irwin Cotler cautioned in a 2004 interview to not examine changes brought on by the anti-terrorism legislation in the "abstract" but "only in the context in which the arise."

"And the context in which they arise here is the context of the post-9/11 transnational terrorist threat," he told the Ottawa Citizen. "You don't have to look as it as being a slippery slope down a path that's going to take away our liberties. See it as moving forward in a way to protect the most fundamental of our rights."

It's not known how many times Section 38 applications have been filed.

Critics of the legislation say protections existed before the post-9/11 changes moved the Section 38 hearings behind closed doors. Even Canada's chief justice of the federal court questioned the changes in a 2004 ruling under the headline: "Too much secrecy?"

Justice Allan Lutfy wrote that the secretive nature of the hearings themselves could lead to "unintended, even absurd, consequences," and asked whether they "unnecessarily fetter the open court principle." Lutfy noted the importance of the public's access to court proceedings. "Section 38," he wrote, "is the antithesis to this fundamental principle."

The Star plans to challenge the Section 38 application in an attempt to attend the upcoming hearing involving Mohamed. While it's not known what evidence the government seeks to protect, the details of Mohamed's case could be significant. His allegations are similar to those contained in three other lawsuits concerning information-sharing between foreign governments. One of those suits was launched by Ottawa engineer Maher Arar, who was tortured while detained in Syria for a year without charges after being on the periphery of a Canadian terrorism investigation.

U.S. authorities detained Arar in 2002 during a stopover in New York, as he attempted to fly home from a family vacation, and subsequently sent him to Syria - as part of a much maligned U.S. practice known as rendition, whereby suspects are surreptitiously moved to countries that employ harsh interrogation tactics. A key issue at the federal inquiry probing Arar's case concerned how information flowed from Canada to the U.S. to Syria.

Mohamed's case also provides an important gauge of how the RCMP and Canadian Security Intelligence Service conduct terrorism probes. Since the criminal code was amended in 2001 to include terrorism, the Mounties have only made one arrest under the new charges.

Mohamed's case was extensive, involved the RCMP-led terrorism unit and warnings reached as high as the Prime Minister's office. When the details of his case became known, a group of Muslim Canadians protested outside the CN Tower, accusing Canada's security services of targeting Muslims.

According to court documents, the probe began after two women witnessed Mohamed covertly videotaping the subway tracks at Toronto's busy Yonge-Bloor subway station. It was just a month after the Madrid train bombings and police were on high alert for transit attacks.

As police continued their probe, which included surveillance, rooting through garbage, interviewing Mohamed and his friends and colleagues, Mohamed left Toronto to visit his wife and children in Egypt. Although not charged by Egyptian security forces, he was detained for two weeks and claims he was treated harshly and questioned concerning information he alleges came from Canada.

Mohamed, who is currently residing freely back in Cairo, has denied any connection to terrorism and says he was making the videotape for his children in Egypt because they miss Toronto. As part of his $1 million lawsuit against the federal government, Mohamed is seeking a letter saying he is no longer a terrorism suspect â?” which has been refused. The federal government denies any information about their probe was passed to Egypt.

If a federal court justice in Mohamed's case turns down the government's application and determines information should be released publicly, the attorney general now has the power to overturn that decision. There is a chance to appeal the attorney general's decision, but that challenge deals mainly with points of law, critics say.

University of Toronto law professor and author Hamish Stewart says this shift in power is one of his main concerns.

"It might be misused in the future essentially to keep embarrassing information out of the public realm rather than for it's genuine purpose," he says.

Alexi Wood, with the Canadian Civil Liberties Union, has similar concerns about the changes in the legislation and has written to the federal court hoping to find out how many Section 38 hearings have taken place.

"Section 38 undermines the basic foundations of our judicial system, things like having access to the information against you, the openness of the courts, the right to a full and open appeal," says Wood. "It should be challenged and we're hoping to do so."

The new law also lowers the threshold for what information can be protected. For instance, the old law allowed the government to argue against disclosing evidence that "would" be "injurious" to international relations, national defence or national security. Now the section sets the bar at "potentially injurious" evidence that "could" harm security or relations.

A Senate committee reviewing the anti-terrorism legislation is expected to include recommendations about Section 38 as part of their final review.

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