Application under s. 83.28 of the Criminal Code (Re ), [2004]
2 S.C.R. 248, 2004 SCC 42
IN THE MATTER OF an application under section 83.28 of the Criminal
Code
Indexed as: Application under s. 83.28 of the Criminal Code
(Re )
Neutral citation: 2004 SCC 42.
File No.: 29872.
2003: December 10, 11; 2004: June 23.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache,
Binnie, Arbour, LeBel, Deschamps and Fish JJ.
on appeal from the british columbia supreme court
Constitutional law — Charter of Rights — Liberty —
Fundamental justice — Self-incrimination — Terrorism — Investigative hearings —
Whether Criminal Code provision allowing order for gathering of information and
investigative hearing infringes s. 7 of Canadian Charter of Rights and Freedoms
— Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Constitutional law — Judicial independence —
Impartiality — Investigation of terrorism offences — Whether Criminal Code
provision allowing order for gathering of information and investigative hearing
infringes principles of judicial independence and impartiality — Constitution
Act, 1867 , Preamble — Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Criminal law — Terrorism — Investigative hearings —
Retrospectivity — Criminal Code amended to
provide for investigative hearings for purposes of gathering information on
terrorism offences — Whether provision for investigative hearings applicable to
incidents that occurred prior to its enactment — Whether provision procedural
in substance and effect — Whether presumption of immediate effect rebutted —
Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Criminal law — Terrorism — Investigative hearings —
Independence of Crown — Criminal Code amended to provide for investigative
hearings for purposes of gathering information on terrorism offences — Whether
independence of Crown counsel compromised by judicial investigative hearing
process — Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Criminal law — Terrorism — Investigative hearings —
Whether purpose of investigative hearing was pre-trial discovery of evidence.
M and B were jointly charged with several offences in
relation to the explosion of Air India Flight 182 and the intended explosion of
Air India Flight 301. Shortly after the beginning of their trial, the Crown
brought an ex parte application seeking an order that a Named Person, a
potential Crown witness at the Air India trial, attend a judicial investigative
hearing for examination pursuant to s. 83.28 of the Criminal Code , which
is one of the new provisions added to the Code as a result of the
enactment of the Anti-terrorism Act in 2001. The application judge
granted the order and set a number of terms and conditions to govern the
conduct of the judicial investigative hearing, among others, the hearing was to
be conducted in camera and notice of the hearing was not to be given to
the accused in the Air India trial, to the press or to the public. Counsel for
the accused, who fortuitously became aware of the order, informed the
application judge that they wished to make submissions. Counsel for the Named
Person also applied to challenge the constitutional validity of s. 83.28 . The
constitutional challenge and the application to set aside the order were heard in
camera. The judge presiding at the hearing concluded that the order was
validly issued and s. 83.28 was constitutionally sound. Given the unusual
circumstances of this case, she varied the order to permit counsel for the
accused to attend at the investigative hearing and examine the Named Person
under the proviso that they leave the hearing if information unrelated to the
trial was elicited. They were also prohibited from disclosing any information
or evidence obtained at the hearing to the public or to the accused. The
judgment was sealed until the conclusion of the hearing or any contrary order
of the court. Since there is no provision in the Criminal Code for an
appeal of a s. 83.28 order to a provincial court of appeal, the Named Person
successfully sought leave to appeal to this Court.
Held (Binnie, LeBel and
Fish JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and
Iacobucci, Major and Arbour JJ.: The purpose of the Anti-terrorism Act
is to prosecute and prevent terrorism offences. Although terrorism necessarily
changes the context in which the rule of law must operate, it does not call for
the abdication of law. The challenge for democracies in the battle against
terrorism is to balance an effective response with fundamental democratic
values that respect the importance of human life, liberty and the rule of law.
Subject to interpretive comments, s. 83.28 of the Criminal Code meets
that challenge.
The meaning of s. 83.28 is ambiguous in two respects:
(1) the role of counsel for the witness at the judicial investigative
hearing, and (2) the threshold of relevance and admissibility applicable
in that hearing where information, as opposed to evidence, is sought. A broad
and purposive interpretation of s. 83.28 , which accords with the presumption of
constitutionality, resolves both of these ambiguities. Read narrowly, ss.
83.28(9) and 83.28(8) seem to restrict counsel to objections on specified
grounds, but read purposively with s. 83.28(12) , s. 83.28 suggests a more
fulsome participation by counsel since the relevancy requirement in s.
83.28(12) also attaches to the questioning of the named person. The purposive
approach is supported by the wide ambit given to the judiciary under ss.
83.28(5)(e) and 83.28(7) to set or vary the terms and conditions of an
order. This broad power enables the judge to respond flexibly to the specific
circumstances of each application and ensures that constitutional and common
law rights and values are respected. As to the threshold for relevance and
admissibility, when viewed purposively, the judicial investigative proceeding
can be regarded as a criminal proceeding. The common law evidentiary
principles clearly apply as does the Canada Evidence Act . More
importantly, the judge is present to ensure that the procedure is carried out
in accord with constitutional protections.
Section 83.28 is presumed to have immediate effect and
to apply retrospectively because it effects only procedural change and does not
create or impinge upon substantive rights. It is prima facie procedural
because it outlines the process by which hearings are to be carried out. The
reference in s. 83.28(4) to “terrorism offence” does not transform the
procedural nature of s. 83.28 into a substantive one. Furthermore, a judicial
investigative hearing remains procedural even though it may generate
information pertaining to an offence. Lastly, the presumption of immediate effect
of s. 83.28 has not been rebutted. No contrary intent of Parliament has been
evinced, and providing under s. 83.28(4)(a) and (b) that judicial
hearings may apply before and after the commission of a terrorism offence
indicates parliamentary intent that it may apply retrospectively.
Section 83.28 of the Code does not violate s. 7
of the Charter . Although statutory compulsion to testify and the
consequences for a named person of failing to comply with s. 83.28 both clearly
engage liberty interests under s. 7, s. 83.28 does not infringe the right
against self‑incrimination. The right against self‑incrimination
is a principle of fundamental justice from which three procedural safeguards
have emerged in relation to criminal law: use immunity, derivative use
immunity and constitutional exemption. Section 83.28(10) provides both use and
absolute derivative use immunity and a constitutional exemption is provided by
the principle that testimonial compulsion is precluded where its predominant
purpose is to determine penal liability. Section 83.28(10) , however, provides
these safeguards only in criminal proceedings whereas the international scope
of terrorism and terrorism investigation raises concerns about the use of
information gathered under s. 83.28(10) in extradition or deportation hearings
and by foreign authorities. In order to meet the s. 7 requirements, the
procedural safeguards found in s. 83.28 must necessarily be extended to those
proceedings. The hearing judge must thus make and, if necessary, vary the
terms of an order to properly provide use and derivative immunity in
extradition or deportation proceedings.
Judges acting under s. 83.28 do not lack institutional
independence or impartiality, nor are they co-opted into performing an
executive function. Section 83.28 requires the judge to act judicially,
in accordance with constitutional norms and the historic role of the judiciary
in criminal proceedings. A broad and purposive interpretation of s. 83.28 is
consistent with the judiciary’s role, which in this context is to protect the
integrity of the investigation and the interests of the named person. Judges
bring the full weight of their authority to the hearing to provide all the
constitutional guarantees of the Charter , and a failure to do so will
constitute on the part of a hearing judge a reviewable error. A reasonable and
informed person, viewing the relevant statutory provisions in their full
historical context, would conclude that the court or tribunal is independent.
The conclusion in the Vancouver Sun appeal that hearings are
presumptively to be in open court also supports a conclusion that the judiciary
is independent and impartial.
Nor is the independence of Crown counsel compromised
by the investigative hearing process. The core content of Crown independence
is the maintenance of objectivity throughout the process, but since the
application of Crown objectivity is highly contextual, it fails to meet the
criteria for recognition as a principle of fundamental justice under
s. 7 . By bringing Crown counsel into the judicial investigative hearing
process, the legislature intended that the Crown would conduct itself according
to its proper role as an officer of the court and its duty of impartiality in
the public interest.
The purpose of the hearing in this case was to
investigate a terrorism offence and not to obtain pre‑trial discovery.
No reviewable error arises from the hearing judge’s conclusion that the Crown
met its onus to demonstrate in good faith that the hearing’s purpose was
investigative. However, because the judicial investigative hearing was sought
in the midst of an ongoing trial and in total secrecy, some pre‑trial
advantage might have been given to the Crown. The ruling in the Vancouver
Sun appeal that there is a presumption favouring open hearings and the
participation of counsel would have overcome these concerns.
Section 11 (d) of the Charter does not
apply because the Named Person is not an accused. In light of the conclusion on
openness in the Vancouver Sun appeal and the previous comments on the
scope and operation of s. 83.28 , there is no need to decide whether the
participation of counsel for the accused was an appropriate condition under s.
83.28(5) (e).
Per Bastarache and
Deschamps JJ.: Subject to the following comments, the reasons of Iacobucci and
Arbour JJ. are agreed with. First, where a judicial investigative hearing is
closed, the independence or impartiality of the judiciary will not be
compromised, as several other factors promote independence and impartiality.
The subsequent release of the information disclosed during these proceedings
promotes the accountability of the judiciary. Second, the hearing judge made
neither a palpable nor an overriding error in her assessment of the facts and
her approach was correct in principle. The participation of counsel for the
accused was sufficient to overcome any concern regarding the practical effect
of the hearing on the Air India trial. Lastly, there is no evidence that the
hearing judge erred in concluding that counsel for the accused could
participate in the hearing.
Per Binnie J.: Section
83.28 of the Criminal Code , when correctly interpreted and properly
applied, is constitutionally valid.
Per Binnie, LeBel and
Fish JJ. (dissenting): The Crown’s resort to s. 83.28 of the Criminal
Code in this case was at least in part for an inappropriate purpose,
namely, to bootstrap the prosecution’s case in the Air India trial by
subjecting an uncooperative witness, the Named Person, to a mid-trial
examination for discovery before a judge other than the Air India trial judge.
The Named Person had been equally uncooperative with the defence, and in the
circumstances resort to the s. 83.28 procedure was unfair to the accused M
and B and an abuse of process.
The terrorism offence being investigated under
s. 83.28 is also the subject matter of the criminal charges against M and
B. The Named Person was scheduled to testify for the prosecution, but because
the Crown proceeded by direct indictment, neither the prosecution nor the
defence had a preliminary look at this witness. Section 83.28 was not
designed to serve as a sort of half-way house between a preliminary hearing and
a direct indictment. Clearly one purpose of the s. 83.28 hearing was to
provide the Crown with a transcript of the Named Person’s compelled testimony
under oath that would otherwise be unobtainable. This restored to the Crown some
of the advantage it had lost in opting for the direct indictment, while not
giving the defence a comparable opportunity to examine potential witnesses of
its choosing. The Crown sought to keep the defence (and the Air India trial
judge) in a state of ignorance of even the existence of the s. 83.28
proceedings.
The conditions imposed on the initial order and the
lack of notice to the judge in the Air India trial of what was afoot gave the
Crown a significant advantage. The connection between the Air India trial and
the s. 83.28 hearing was plain and obvious and it was the responsibility
of all concerned to ensure that the fair trial rights of M and B were not
prejudiced. The defects in the initial s. 83.28 order were not cured by
the amendments made by the hearing judge. The issue is not just whether the
hearing judge ameliorated the original terms (which she did) but whether the
hearing should have proceeded at all in the time frame sought by the Crown.
If the Crown’s dominant concern had been the “ongoing
investigation”, as was held by the hearing judge, the prosecution could have
called the Named Person to testify at any time after the Air India trial
started over a year ago. That would have enabled the s. 83.28 hearing to
proceed free of constraints imposed by the ongoing Air India trial.
In any event, an “improper purpose” test is too
narrow. The effects of a resort to s. 83.28 are also important. The
prejudicial effect on the defence in this case could be eliminated by a delay
of the s. 83.28 hearing until after the Named Person had testified at the Air
India trial or the Crown had indicated that the Named Person would not be
called as a prosecution witness. To proceed sooner would be an abuse of the
s. 83.28 process.
Per LeBel and Fish JJ.
(dissenting): Section 83.28 of the Criminal Code compromises the
institutional dimension of judicial independence and should be declared
unconstitutional. Judicial independence has two dimensions, namely individual
independence,_which attaches to the individual judge, and institutional
independence, which attaches to courts as institutions and ensures the
separation of powers. Although a judge may be independent in fact and act with
the utmost impartiality, judicial independence will not exist if the court of
which he or she is a member is not independent of the other branches of
government on an institutional level. In this case, s. 83.28 requires judges
to preside over police investigations; as such investigations are the
responsibility of the executive branch, this cannot but leave a reasonable,
well-informed person with the impression that judges have become allies of the
executive branch. First, s. 83.28 does not give the hearing judge the
necessary tools to effectively play his or her role as protector of the
fundamental rights of the person being examined. Second, if it were possible
to conclude that the judge could effectively rule on certain objections during
the investigation, the fluidity and vagueness of the investigation procedure
would still give too much discretion to the judge. A judge’s individual
perception of his or her role will necessarily affect the nature and conduct of
the examination. Some judges will be more inclined than others to protect the
fundamental rights of the person being examined. Third, in enacting
s. 83.28 , Parliament gave increased powers to the executive branch to
enable it to investigate acts of terrorism effectively. A reasonable person
might for this reason conclude that Parliament intended to use the judiciary to
make the prevention and suppression of such acts more effective. The judge’s
duties under s. 83.28 are unlike any of the duties traditionally discharged by
the judiciary. The judge takes part in and facilitates the police
investigation without having real power to act as a neutral arbiter. Finally,
the public’s perception that the judicial and the executive branches do not act
separately in an investigation under s. 83.28 will be heightened when the
investigation is held in camera.
Cases Cited
By Iacobucci and Arbour JJ.
Referred to: Vancouver
Sun (Re ), [2004] 2 S.C.R. 332, 2004 SCC 43; Terminiello v. Chicago,
337 U.S. 1 (1949); H.C. 5100/94, Public Committee Against Torture in Israel
v. Israel, 53(4) P.D. 817; R. v. Reyat, [1991] B.C.J. No. 2006 (QL);
Rizzo & Rizzo Shoes Ltd. (Re ), [1998] 1 S.C.R. 27; R. v. Sharpe,
[2001] 1 S.C.R. 45, 2001 SCC 2; Bell ExpressVu Limited Partnership v. Rex,
[2002] 2 S.C.R. 559, 2002 SCC 42; Slaight Communications Inc. v. Davidson,
[1989] 1 S.C.R. 1038; R. v. Nova Scotia Pharmaceutical Society,
[1992] 2 S.C.R. 606; R. v. Lucas, [1998] 1 S.C.R. 439; Global
Securities Corp. v. British Columbia (Securities Commission), [2000] 1
S.C.R. 494, 2000 SCC 21; R. v. Gladue, [1999] 1 S.C.R. 688; Reference
re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Phillips v.
Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2
S.C.R. 97; Thomson Newspapers Ltd. v. Canada (Director of Investigation and
Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Angus
v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; Howard Smith Paper
Mills Ltd. v. The Queen, [1957] S.C.R. 403; Wildman v. The Queen,
[1984] 2 S.C.R. 311; Wright v. Hale (1860), 6 H. & N. 227, 158 E.R.
94; R. v. Ali, [1980] 1 S.C.R. 221; R. v. S. (R.J.), [1995]
1 S.C.R. 451; British Columbia Securities Commission v. Branch,
[1995] 2 S.C.R. 3; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003
SCC 74; Canadian Foundation for Children, Youth and the Law v. Canada
(Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4; R. v. Jarvis,
[2002] 3 S.C.R. 757, 2002 SCC 73; R. v. Jones, [1994] 2 S.C.R. 229; R.
v. White, [1999] 2 S.C.R. 417; United States v. Burns, [2001] 1
S.C.R. 283, 2001 SCC 7; Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Beauregard v. Canada,
[1986] 2 S.C.R. 56; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35; Reference
re Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Mackin
v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC
13; R. v. Lippé, [1991] 2 S.C.R. 114; Valente v. The Queen,
[1985] 2 S.C.R. 673; Therrien (Re ), [2001] 2 S.C.R. 3, 2001 SCC 35; Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck,
[2001] 3 S.C.R. 442, 2001 SCC 76; R. v. Regan, [2002] 1 S.C.R. 297, 2002
SCC 12; Boucher v. The Queen, [1955] S.C.R. 16; Lemay v. The King,
[1952] 1 S.C.R. 232; Proulx v. Quebec (Attorney General), [2001] 3
S.C.R. 9, 2001 SCC 66; Ruby v. Canada (Solicitor General), [2002] 4
S.C.R. 3, 2002 SCC 75; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002
SCC 33.
Cited by Binnie J. (dissenting)
Terminiello v. Chicago,
337 U.S. 1 (1949); Reference Re: Persons of Japanese Race, [1946] S.C.R.
248, aff’d [1947] 1 D.L.R. 577; Skogman v. The Queen, [1984] 2 S.C.R.
93; Re Regina and Arviv (1985), 51 O.R. (2d) 551; R. v. Esposito
(1985), 24 C.C.C. (3d) 88; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R.
v. Stinchcombe, [1991] 3 S.C.R. 326; Housen v. Nikolaisen, [2002] 2
S.C.R. 235, 2002 SCC 33; R. v. Scott, [1990] 3 S.C.R. 979; R. v.
Jewitt, [1985] 2 S.C.R. 128; R. v. Power, [1994] 1 S.C.R. 601; R.
v. O’Connor, [1995] 4 S.C.R. 411; Canada (Minister of Citizenship and
Immigration) v. Tobiass, [1997] 3 S.C.R. 391.
Cited by LeBel J. (dissenting)
Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13; Reference re Remuneration of
Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Valente
v. The Queen, [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2
S.C.R. 56; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35; Therrien
(Re ), [2001] 2 S.C.R. 3, 2001 SCC 35.
Statutes and Regulations Cited
Anti-terrorism Act, S.C. 2001, c. 41 , Preamble, s. 4.
Canada Evidence Act, R.S.C. 1985, c. C‑5 , Part I, ss. 2, 4(3), 8-12, 9, 10, 11,
19-36, 42.
Canadian Charter of Rights and
Freedoms, ss. 1 , 7 , 8 -14 , 11 (d), 33 .
Competition Act, R.S.C. 1985, c. C-34, s. 11 .
Constitution Act, 1867 , Preamble, ss. 96-100.
Criminal Code, R.S.C. 1985, c. C-46, ss. 2 “terrorism offence” [ad. 2001, c. 41,
s. 2(2)], 83.28 [idem, s. 4 ], 83.29 [idem], 184.2, 487, 487.05,
487.052.
Emergencies Act, R.S.C. 1985, c. 22 (4th Supp .).
Immigration and Refugee
Protection Act, S.C. 2001, c. 27, s. 34 .
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp .), s. 231.4 .
Mutual Legal Assistance in
Criminal Matters Act, R.S.C. 1985, c. 30 (4th
Supp .), s. 22.2 .
Supreme Court Act, R.S.C. 1985, c. S-26, s. 40 .
Authors Cited
Barak, Aharon. “Foreword: A Judge
on Judging: The Role of a Supreme Court in a Democracy” (2002), 116 Harv. L.
Rev. 16.
British Columbia. Criminal Justice
Branch. Media Statement. “Inderjit Singh Reyat Pleads Guilty to Role in Air
India Explosion”, 10 February 2003,
<www.ag.gov.bc.ca/airindia/cjb_ms_03-02.htm>.
Canada. House of Commons. House
of Commons Debates, vol. 137, 1st Sess., 37th Parl., October 15, 2001, p.
6048.
Canada. House of Commons. House
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6166.
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7620.
Canada. Senate. Proceedings of
the Special Senate Committee on Subject Matter of Bill C-36. Issue No. 4,
1st Sess., 37th Parl., October 29, 2001, p. 4:4.
Cohen, Stanley A. “Safeguards in
and Justifications for Canada’s New Anti‑terrorism Act”
(2002-2003), 14 N.J.C.L. 99.
Cudmore, Gordon D. Choate on
Discovery, 2nd ed. Scarborough, Ont.: Carswell, 1993 (loose-leaf updated
2001, release 3), p. 1-11.
Driedger, Elmer A. Construction
of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Friedland, Martin L. “Police
Powers in Bill C-36”, in Ronald J. Daniels, Patrick Macklem and Kent Roach, eds.,
The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill.
Toronto: University of Toronto Press, 2001.
Jenkins, David. “In Support of
Canada’s Anti-Terrorism Act : A Comparison of Canadian, British, and American
Anti-Terrorism Law” (2003), 66 Sask. L. Rev. 419.
Lederman, W. R. “The Independence
of the Judiciary”, in Allen M. Linden, ed., The Canadian Judiciary.
Toronto: Osgoode Hall Law School, 1976, 1.
Millard, Jeremy. “Investigative
Hearings under the Anti-Terrorism Act ” (2002), 60(1) U.T. Fac. L.
Rev. 79.
Paciocco, David M. “Constitutional
Casualties of September 11: Limiting the Legacy of the Anti‑Terrorism
Act ” (2002), 16 S.C.L.R. (2d) 185.
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Butterworths, 2002.
APPEAL from a judgment of the British Columbia Supreme
Court, [2003] B.C.J. No. 1749 (QL), 2003 BCSC 1172, upholding the
constitutional validity of s. 83.28 of the Criminal Code and the
validity of an order for a judicial investigative hearing but varying its
terms. Appeal dismissed, Binnie, LeBel and Fish JJ. dissenting.
Brian A. Crane, Q.C.,
Howard Rubin and Kenneth Westlake, for the appellant the “Named
Person”.
Bernard Laprade and George
Dolhai, for the respondent the Attorney General of Canada.
Alexander Budlovsky and
Mary T. Ainslie, for the respondent the Attorney General of British
Columbia.
William B. Smart, Q.C.,
and Brock Martland, for the respondent Ripudaman Singh Malik.
Michael A. Code and Jonathan
Dawe, for the respondent Ajaib Singh Bagri.
Michael Bernstein and Sandy
Tse, for the intervener the Attorney General of Ontario.
John B. Laskin and Frank
Cesario, for the intervener the Canadian Civil Liberties Association.
Marie Henein and Jennifer
Gleitman, for the intervener the Federation of Law Societies of Canada.
Gregory P. Delbigio,
for the intervener the Canadian Bar Association.
Robert S. Anderson and Ludmila
B. Herbst, for the interveners The Vancouver Sun, The National Post and Global
Television Network Inc.
The judgment of McLachlin C.J. and Iacobucci, Major
and Arbour JJ. was delivered by
Iacobucci and Arbour
JJ. —
I. Introduction
1
This appeal is a companion to Vancouver Sun (Re ), [2004] 2 S.C.R.
332, 2004 SCC 43 (the “media appeal”), released concurrently.
2
This appeal raises for the first time in this Court fundamental
questions about the constitutional validity of provisions of the Anti-terrorism
Act, S.C. 2001, c. 41 (the “Act ”), which were adopted as amendments to the Criminal
Code, R.S.C. 1985, c. C-46 (the “Code ”). The Act is a legislative
component of Canada’s response to the enormous tragedy of the September 11,
2001 terrorist attacks in the United States. Many other countries, including
the United States and the United Kingdom, similarly responded with legislation:
D. Jenkins, “In Support of Canada’s Anti-Terrorism Act : A Comparison of
Canadian, British, and American Anti-Terrorism Law” (2003), 66 Sask. L. Rev.
419.
3
The specific issues relate to the constitutional validity of s. 83.28 of
the Code , the “judicial investigative hearing” provision, under which
the appellant was ordered to attend and be compelled to answer questions. We
use “appellant” here to refer to the “Named Person”, who is the subject of the
s. 83.28 order and brought the appeal to this Court.
4
Subject to the interpretive comments we make about the section and its
operation, we find the impugned provision to pass constitutional muster. However,
at the outset, we believe it important to set forth some background
considerations in this appeal and the media appeal.
5
The challenge for democracies in the battle against terrorism is not
whether to respond, but rather how to do so. This is because Canadians value
the importance of human life and liberty, and the protection of society through
respect for the rule of law. Indeed, a democracy cannot exist without the rule
of law. So, while Cicero long ago wrote “inter arma silent leges” (the
laws are silent in battle) (Pro Milone 14), we, like others, must
strongly disagree: see A. Barak, “Foreword: A Judge on Judging: The Role of a
Supreme Court in a Democracy” (2002), 116 Harv. L. Rev. 16, at pp.
150-51.
6
Although terrorism necessarily changes the context in which the rule of
law must operate, it does not call for the abdication of law. Yet, at the same
time, while respect for the rule of law must be maintained in the response to
terrorism, the Constitution is not a suicide pact, to paraphrase Jackson J.: Terminiello
v. Chicago, 337 U.S. 1 (1949), at p. 37 (in dissent).
7
Consequently, the challenge for a democratic state’s answer to terrorism
calls for a balancing of what is required for an effective response to
terrorism in a way that appropriately recognizes the fundamental values of the
rule of law. In a democracy, not every response is available to meet the
challenge of terrorism. At first blush, this may appear to be a disadvantage,
but in reality, it is not. A response to terrorism within the rule of law
preserves and enhances the cherished liberties that are essential to
democracy. As eloquently put by President Aharon Barak of the Israeli Supreme
Court:
This is the fate of democracy, as not all means are acceptable to it,
and not all methods employed by its enemies are open to it. Sometimes, a
democracy must fight with one hand tied behind its back. Nonetheless, it has
the upper hand. Preserving the rule of law and recognition of individual
liberties constitute an important component of its understanding of security.
At the end of the day, they strengthen its spirit and strength and allow it to
overcome its difficulties.
(H.C. 5100/94, Public Committee Against Torture in Israel v. Israel,
53(4) P.D. 817, at p. 845, cited in Barak, supra, at p. 148.)
8
Although the constitutionality of a legislative approach to terrorism
will ultimately be determined by the judiciary in its role as the arbiter of
constitutional disputes for the country, we must not forget that the
legislative and executive branches also desire, as democratic agents of the
highest rank, to seek solutions and approaches that conform to fundamental
rights and freedoms.
II. The
Background
9
We recognize that there is an overlap between the facts and procedural
history of this appeal and that of the media appeal. It is nonetheless helpful
to fully canvass the facts in each appeal to aid in the understanding of the
context in which the issues are raised.
A. The
Facts and Procedural History
10
The invocation of the legislative provision at the focus of this appeal,
s. 83.28 of the Code , relates to two alleged acts of terrorism, both of
which occurred on June 23, 1985. An explosion killed two baggage handlers, and
injured four others, at the Narita Airport in Japan, as baggage was being
transferred onto Air India Flight 301. A second explosion occurred just under
one hour later, causing Air India Flight 182 to crash off the west coast of
Ireland. All 329 passengers and crew perished in the explosion.
11
On February 4, 1988, the first accused, Inderjit Singh Reyat, was
arrested in England. He was extradited to Canada on December 13, 1989, where
he faced numerous charges relating to the explosion at Narita Airport. On May
10, 1991, he was convicted on seven counts, concerning manslaughter and the
acquisition, possession, and use of explosive substances: R. v. Reyat,
[1991] B.C.J. No. 2006 (QL) (S.C.).
12
Ripudaman Singh Malik and Ajaib Singh Bagri were jointly charged with
several offences in relation to both explosions and the intended explosion of
Air India Flight 301 on October 27, 2000. On March 8, 2001, a direct
indictment was filed against the accused, Mr. Malik and Mr. Bagri. Mr. Reyat
was tried in relation to the bombing of Air India Flight 182, and a new
indictment was filed on June 5, 2001, adding Mr. Reyat as a third accused.
13
On February 10, 2003, Mr. Reyat pleaded guilty to a new indictment
charging him with aiding or abetting the construction of the explosive that was
placed on Air India Flight 182 and the manslaughter of the 329 passengers and
crew. He was sentenced to five years imprisonment in addition to time already
spent in custody.
14
On February 24, 2003, Mr. Malik and Mr. Bagri re‑elected to have
their case tried by judge alone. The trial of Mr. Malik and Mr. Bagri (the
“Air India Trial”) began on April 28, 2003 and continues to date.
15
Shortly thereafter, on May 6, 2003, the Crown brought an ex parte application
seeking an order that the appellant attend for examination pursuant to s. 83.28
of the Code . Dohm A.C.J. of the British Columbia Supreme Court granted
the application and issued an order for the gathering of information on the
basis of an affidavit by a member of the RCMP’s Air India Task Force.
16
Dohm A.C.J. set a number of terms and conditions to govern the conduct
of the judicial investigative hearing: (1) it was to be conducted in camera;
(2) the appellant was entitled to counsel; (3) examination was to be undertaken
by the Attorney General; (4) the appellant was required to answer questions and
produce items ordered to be produced subject to privilege or other non‑disclosure
considerations; (5) the appellant was prohibited from disclosing any
information or evidence obtained at the hearing; and (6) notice was not to be
given to the accused in the Air India Trial, to the press, or to the public.
Upon service of the order, the appellant was to be informed of the right to
retain and instruct counsel and that a failure to attend or remain in
attendance at the hearing may result in the issuance of an arrest warrant.
17
The order required the appellant to attend at an examination on May 20,
2003. At some point prior to that date, counsel for Mr. Malik and Mr. Bagri
fortuitously became aware of the order and advised Dohm A.C.J. that they wished
to make submissions. The appellant retained counsel, and on June 16, 2003,
Dohm A.C.J. was advised that the appellant wished to challenge the
constitutional validity of s. 83.28 of the Code . Dohm A.C.J. directed
that Holmes J. hear all submissions jointly in seven days time. The
constitutional challenge to s. 83.28 and the application to set aside Dohm
A.C.J.’s order commenced on June 23, 2003.
18
The application to set aside the order was dismissed, and Holmes J.
issued reasons on July 21, 2003. The order was varied, however, to permit
counsel for Mr. Malik and Mr. Bagri to attend at the judicial investigative
hearing and examine the appellant under the proviso that they leave the hearing
if information unrelated to the trial was elicited. The amended order further
prohibited the accused from attending the hearing. Counsel were prohibited
from disclosing any information or evidence obtained at the hearing to the
public and to the accused. The reasons for judgment were sealed.
19
Upon application, Holmes J. stayed the judicial investigative hearing on
July 22, 2003 until September 2, 2003, so that the appellant could seek leave
to appeal to this Court. The appeal is brought under s. 40 of the Supreme
Court Act, R.S.C. 1985, c. S-26 , as there is no provision in the Code
for an appeal of a s. 83.28 order to a provincial court of appeal. On that
date, Holmes J. delivered, in open court, a synopsis of her reasons for
judgment, dated July 21, 2003. She also stated that the examination of the
appellant under s. 83.28 had not yet begun, and that the judicial investigative
hearing had been adjourned pending leave to appeal to this Court.
20
On August 11, 2003, leave was granted for an appeal to this Court from
the decision of Holmes J. The appeal was heard on December 10 and 11, 2003,
and was held, in its entirety, in open court, subject to terms and conditions
stated by the Chief Justice at the outset. During oral argument, counsel
refrained from revealing the appellant’s identity, and any material supporting
the order for the judicial investigative hearing. Moreover, the appeal was not
broadcast, contrary to the usual practice of the Court.
B. The
Decision of Holmes J.
21
In the publicly released synopsis of her reasons for judgment dated July
21, 2003, Holmes J. explained that the in camera proceedings she
presided over concerned the interpretation, application, and constitutionality
of s. 83.28 of the Code , the provision which provides for judicial
investigative hearings in relation to terrorism offences: [2003] B.C.J. No.
1749 (QL), 2003 BCSC 1172. She stated that an order under s. 83.28 had been
issued on May 6, 2003, requiring the appellant to attend for examination by the
agent of the Attorney General, on the basis that the ordering judge had
reasonable grounds for believing that a terrorism offence had occurred, and
that information in relation to that offence was likely to be obtained as a
result of the judicial investigative hearing. Holmes J. further explained that
the appellant is neither an accused, nor a suspect in the underlying terrorism
offence. She stated that the terrorism offence under investigation was the two
related Air India explosions discussed in the facts above.
22
Holmes J. canvassed six main issues, namely: (1) whether the order for
the hearing could be validly issued in relation to a terrorism offence alleged
to have been committed before s. 83.28 came into force; (2) whether the order
in question was sufficiently specific; (3) whether s. 83.28 and the order
violate the right to silence of the person required to attend for examination,
including the right against self‑incrimination; (4) whether s. 83.28 and
the order breach the accused’s fair trial rights by providing for pre-trial or
mid-trial preparation or discovery for the Crown that is not available to the
defence; (5) whether s. 83.28 interferes with the independence and impartiality
of the judiciary; and (6) whether, if the order is valid and the judicial investigative
hearing is to proceed, counsel for the accused are entitled to participate, and
if so, to what extent.
23
Having considered each of these issues, Holmes J. concluded both that
the order was validly issued and constitutionally sound. She determined
further that while the participation of counsel at a judicial investigative
hearing would be inappropriate in most cases, it was not inappropriate in this
particular case, given the unusual circumstances. Consequently, counsel for
the accused, as well as the Attorney General were entitled to examine the
appellant. Holmes J. further stated that the hearing was subject to
restrictions regarding the privacy and other rights and interests of the
appellant, as well as regarding the integrity of the investigation.
24
Holmes J. found additionally that, while the examination conducted under
the order may have incidental effects on the continuing trial of the accused,
the procedure was resorted to predominantly to further an ongoing
investigation. Accordingly, she stated that her detailed reasons for judgment
dated July 21, 2003 would remain sealed until the conclusion of the hearing or
any contrary order of the court.
III. Relevant
Constitutional and Legislative Provisions
25
The relevant constitutional and legislative provisions are set forth in
the appendix.
IV. Issues
26
The following constitutional questions were stated by the Chief Justice
on August 28, 2003:
1. Does s. 83.28 of the Criminal Code,
R.S.C. 1985, c. C-46 , infringe s. 7 of the Canadian Charter of Rights
and Freedoms ?
2. If so, is the infringement a reasonable
limit, prescribed by law, as can be demonstrably justified in a free and
democratic society under s. 1 of the Charter ?
3. Does s. 83.28 of the Criminal Code
infringe the principles of judicial independence and impartiality guaranteed by
s. 11 (d) of the Charter ?
4. If so, is the infringement a reasonable
limit, prescribed by law, as can be demonstrably justified in a free and
democratic society under s. 1 of the Charter ?
5. Does s. 83.28 of the Criminal Code infringe
the principles of independence and impartiality established by the Preamble to
the Constitution Act, 1867 ?
27
This appeal also raises the following additional issues:
1. Can s. 83.28 of the Criminal Code be
applied retrospectively where the terrorism offences were committed in 1985,
before the Anti‑terrorism Act came into force?
2. Can s. 83.28 be used for the purpose of pre‑trial
discovery of the evidence of the named person, a witness under subpoena by the
Crown to attend and give evidence at the Air India trial?
3. Was the order of Holmes J. contrary to s.
83.28 in that the order:
a) permitted the attendance at the in camera
hearing of counsel for the accused Bagri and Malik;
b) permitted each defence counsel to cross‑examine
the witness in addition to counsel for the Crown;
c) required defence counsel to undertake not to
disclose to the accused information received at the judicial investigative
hearing?
V. Analysis
A. Introduction
28
The following recital to the Act expresses the basic issue before us in
this case, namely the tension between responding to terrorism in the interest
of national security and respect for the Charter ’s rights and freedoms:
WHEREAS the Parliament of Canada, recognizing that
terrorism is a matter of national concern that affects the security of the
nation, is committed to taking comprehensive measures to protect Canadians against
terrorist activity while continuing to respect and promote the values reflected
in, and the rights and freedoms guaranteed by, the Canadian Charter of
Rights and Freedoms ;
29
The provisions in the Act deal with a multitude of matters related to
judicial investigative hearings, procedures, seizures, arrests, recognizance,
detention, reporting and other topics: see S. A. Cohen, “Safeguards in and
Justifications for Canada’s New Anti‑terrorism Act” (2002-2003),
14 N.J.C.L. 99; M. L. Friedland, “Police Powers in Bill C-36”, in R. J.
Daniels, P. Macklem and K. Roach, eds., The Security of Freedom: Essays on
Canada’s Anti-Terrorism Bill (2001), 269. What we are faced with here are
questions of both statutory and constitutional interpretation as applied to the
facts of this case. As this is the first case under the anti‑terrorism
provisions, it is prudent to sound some cautionary notes before embarking upon
our analysis.
30
To begin with, although specific provisions of the Act are directly
before us, there are other sections that may be implicated on which we do not
wish to pronounce absent a factual foundation. As well, we intend to decide
only what is necessary to resolve the specific dispute in issue. We hope
otherwise, but there will likely be other cases to arise for further
elucidation, and we prefer to await that development.
31
In addition, context in the law is of vital importance and that is
certainly the case with respect to terrorism. What we say in these reasons is
influenced by the adjudicative facts we have before us. Although
constitutional opinion on legislative facts is a different exercise, again, we
wish to emphasize how important it is to examine the particular factual setting
of each case prior to determining the legally required result.
32
The issues on appeal are complex and, in many instances, interrelated.
In the discussion that follows, we first consider the statutory and
constitutional interpretation of s. 83.28. Next, we then discuss the
retrospective application of the provision, the s. 7 right against self‑incrimination,
and the independence of the judiciary. We then turn to the use of the judicial
investigative hearing as a tool for pre‑trial discovery and its
relationship with s. 11 (d) of the Charter and the Preamble to the
Constitution Act, 1867 . Finally, we discuss the role of the Crown and
the implications of the participation of counsel at the hearing.
B. Statutory
and Constitutional Interpretation Generally
33
Before assessing the constitutionality of s. 83.28, it is necessary to
determine the scope of the provision. This appeal marks the first known
instance where the s. 83.28 judicial investigative hearing power has been
invoked. While the judicial investigative hearing process has features akin to
income tax and bankruptcy investigations, public inquiries, proceedings under
the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30
(4th Supp .) (“MLACMA ”), and coroner’s inquests, the provision in its
entirety represents a new addition to the Canadian legal landscape.
34
The modern principle of statutory interpretation requires that the words
of the legislation be read “in their entire context and in their grammatical
and ordinary sense harmoniously with the scheme of the Act , the object of the
Act , and the intention of Parliament”: E. A. Driedger, Construction of
Statutes (2nd ed. 1983), at p. 87. This is the prevailing and preferred
approach to statutory interpretation: see, e.g., Rizzo & Rizzo Shoes
Ltd. (Re ), [1998] 1 S.C.R. 27, at para. 21; R. v. Sharpe, [2001] 1
S.C.R. 45, 2001 SCC 2, at para. 33; Bell ExpressVu Limited Partnership v.
Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26. The modern approach
recognizes the multi‑faceted nature of statutory interpretation. Textual
considerations must be read in concert with legislative intent and established
legal norms.
35
Underlying this approach is the presumption that legislation is enacted
to comply with constitutional norms, including the rights and freedoms
enshrined in the Charter : R. Sullivan, Sullivan and Driedger on the
Construction of Statutes (4th ed. 2002), at p. 367. This presumption
acknowledges the centrality of constitutional values in the legislative
process, and more broadly, in the political and legal culture of Canada.
Accordingly, where two readings of a provision are equally plausible, the
interpretation which accords with Charter values should be adopted: see Slaight
Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at p. 1078; R. v.
Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, at p. 660; R.
v. Lucas, [1998] 1 S.C.R. 439, at para. 66; and Sharpe, supra,
at para. 33.
36
In light of these principles, we consider the purpose of the impugned s.
83.28 and the powers that are conferred by its application.
C. The
Scope of Section 83.28
37
The Act was crafted as omnibus legislation with the effect of amending
16 statutes, including the Code , and implementing two separate United
Nations Conventions concerning the financing of terrorism and the suppression
of terrorist bombings, respectively. The legislation was introduced in
Parliament on October 15, 2001, shortly after the events that unfolded in the
United States on September 11, 2001. The Preamble to the Act , Parliamentary
debates, and notes presented before the Special Senate Committee convened for
discussion of Bill C‑36 and before the House of Commons Justice and Human
Rights Committee, provide insight into the purpose of the Act in general, and
of s. 83.28 in particular. Where divergent views on the purpose of an Act are
expressed, or where the scope of the purpose is called into question, extrinsic
materials such as Hansard and other government publications may be used to
elucidate meaning: Global Securities Corp. v. British Columbia (Securities
Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, at para. 25; R. v. Gladue,
[1999] 1 S.C.R. 688, at para. 45; Reference re Firearms Act (Can.),
[2000] 1 S.C.R. 783, 2000 SCC 31, at para. 17.
38
The Preamble to the Act speaks to the “challenge of eradicating
terrorism”, the requirement for the “strengthening of Canada’s capacity to
suppress, investigate and incapacitate terrorist activity”, and the need for
legislation to “prevent and suppress the financing, preparation, facilitation
and commission of acts of terrorism”. In Parliamentary debate at the
introduction of Bill C‑36, the Minister of Justice expressed the three main
objectives of the legislation as suppressing the existence of terrorist groups,
providing new investigative tools, and providing a tougher sentencing regime to
incapacitate terrorists and terrorist groups: House of Commons Debates,
vol. 137 1st Sess., 37th Parl., October 15, 2001, at p. 6048. In a
similar vein, the Minister of Justice expressed the need for an enhanced
legislative structure in response to terrorism before the Special Senate
Committee: Proceedings of the Special Senate Committee on Subject Matter of
Bill C‑36, Issue No. 4, 1st Sess., 37th Parl., October 29, 2001, at
pp. 4:4 et seq.
39
It was suggested in submissions that the purpose of the Act should be
regarded broadly as the protection of “national security”. However, we believe
that this characterization has the potential to go too far and would have
implications that far outstrip legislative intent. The discussions surrounding
the legislation, and the legislative language itself clearly demonstrate that
the Act purports to provide means by which terrorism may be prosecuted and
prevented. As we cautioned above, courts must not fall prey to the rhetorical
urgency of a perceived emergency or an altered security paradigm. While the
threat posed by terrorism is certainly more tangible in the aftermath of global
events such as those perpetrated in the United States, and since then
elsewhere, including very recently in Spain, we must not lose sight of the
particular aims of the legislation. Notably, the Canadian government opted to
enact specific criminal law and procedure legislation and did not make use of
exceptional powers, for example under the Emergencies Act, R.S.C. 1985,
c. 22 (4th Supp .), or invoke the notwithstanding clause at s. 33 of the Charter .
40
We conclude that the purpose of the Act is the prosecution and
prevention of terrorism offences.
41
Section 83.28 provides for a two‑stage process, whereby an order
for the gathering of information from a named individual is first issued, and
an examination of the individual so named is subsequently held. The provision
provides a series of parameters which govern the judicial investigative
hearing. At its core, s. 83.28 permits the investigation of terrorism
offences, at both a pre‑ and post‑charge stage through testimonial
compulsion on the part of the named witness. Consequently, the purpose of the
provision is to confer greater investigative powers upon the state in its
investigation of terrorism offences.
42
The procedure is initiated at the behest of a peace officer who, with
the Attorney General’s consent, applies to a judge for an order for the
gathering of information: s. 83.28(2) and (3). The judge may so order, and
thereby initiate the hearing, if he or she is satisfied (a) that there are
reasonable grounds to believe either that a terrorism offence has been
committed and that information concerning the offence or concerning the
whereabouts of a suspect is likely to be obtained; or (b) that there are
reasonable grounds to believe that a terrorism offence will be committed, that
there are reasonable grounds to believe that the witness has direct and
material information relating to the terrorism offence or in relation to the
whereabouts of a suspect, and reasonable prior attempts have been made to obtain
that information from the witness: s. 83.28(4). The scope of the order will
ultimately dictate the parameters of the subsequent hearing.
43
Pursuant to s. 83.28(5), the judge may (a) order the examination, under
oath or not, of the person named in the order (the “named person”); (b) order
the named person to attend for the examination and to remain in attendance
until excused by the presiding judge; (c) order the named person to bring to
the examination anything in their possession or control and produce it to the
presiding judge; (d) designate another judge as the judge to preside over the
examination; and (e) include any other terms or conditions considered
desirable, including those for the protection of the named person, third
parties, and an ongoing investigation. Under s. 83.28(7), the terms of the
order may be varied.
44
The powers of the presiding judge and the Attorney General at the
judicial investigative hearing itself also fall within the ambit of s. 83.28.
Under s. 83.28(8), the named person must answer questions put to him or her by
the Attorney General and produce tangibles he or she was ordered to bring to
the examination. The named person may refuse to answer a question or produce
any such thing that would violate any law relating to the non‑disclosure
of information or to privilege: s. 83.28(8). Section 83.28(9) empowers the
presiding judge to rule on any objection or other issue relating to a refusal
to answer a question or produce an item. Section 83.28(10) provides the named
person with use and derivative use immunity with respect to self‑incrimination
which will be discussed below in the context of s. 7 of the Charter .
The named person has a right to retain and instruct counsel at any stage of the
proceedings: s. 83.28(11) . The presiding judge may also order tangibles to be
given into police custody if satisfied that any such item is relevant to the
investigation of any terrorism offence: s. 83.28(12) .
45
While the provision covers many facets of the initial order and the
subsequent judicial investigative hearing, in important respects the specific
meaning of s. 83.28 is unclear and ambiguous. In our opinion, s. 83.28
reasonably bears two differing interpretations: one narrow and restrictive in
scope, the other broad and purposive. Two principal ambiguities are apparent
on the face of the provision. The first concerns the role of counsel and the
second relates to the threshold for relevance and admissibility. As we will
now discuss, we endorse a broad and purposive interpretation of s. 83.28, which
accords with the presumption of constitutional validity discussed above.
46
There is some ambiguity about the scope of the role of appellant’s
counsel in the judicial investigative hearing. Section 83.28(9) provides
broadly that the presiding judge “shall rule on any objection or
other issue relating to a refusal to answer a question or to produce a thing”
(emphasis added). The preceding subsection, however, states that the named
person may refuse to answer questions or produce tangibles based on the
application of law related to non‑disclosure of information or privilege:
s. 83.28(8). Under a more narrow approach, it would appear that counsel for
the witness is restricted to making objections only on these specified
grounds. The proximity of subss. (8) and (9) lends support to this view, as does
the omission of qualifying words to describe the scope of judicial rulings. In
contrast, s. 83.28(12) expressly provides that upon the judge’s satisfaction
that “any thing produced during the course of the examination will likely be
relevant to the investigation”, he or she shall order it be given into police
custody.
47
A purposive reading of the provision, however, suggests that “any
objection” as stated in s. 83.28(9) provides for more fulsome participation by
counsel. Section 83.28(12) attaches a relevancy requirement to demands for
production which implies that objections under s. 83.28(9) may be based on
relevancy and s. 83.28(9) is not restricted to the grounds in s. 83.28(8). The
relevancy requirement in s. 83.28(12), when s. 83.28 is viewed in its entirety,
would also attach to the questioning of the named person. This Court has taken
a similarly purposive approach to proceedings held under commissions of
inquiry. Such proceedings have been analogized to the judicial investigative
hearing provision in s. 83.28. In Phillips v. Nova Scotia (Commission of
Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97, at para. 175,
the Court stated that “the nature and the purpose of public inquiries require
courts to give a generous interpretation to a commissioner’s powers to
control their own proceedings” (emphasis added).
48
Such an interpretive approach is further supported by the wide ambit
given to the ordering judge to set such terms and conditions as he or she
considers desirable: s. 83.28(5)(e). The provision expressly provides
that terms and conditions may be set for the protection of the named person’s
interests, the interests of third parties, and the interests of the
investigation. Section 83.28(7) also provides for the ordering judge or any
other judge of the same court to vary the terms and conditions set. The
inclusion of such a broad power to amend the order empowers the ordering and/or
hearing judge to respond flexibly to the specific circumstances of each
application of the provision, and ensure that constitutional and common law
rights and values are respected. Such a view of the provision would reasonably
demarcate irrelevant or abusive questioning of the named person as falling far
outside the parameters set by the legislature.
49
While the specific content of judicial independence will be discussed
later in the reasons, the judicial aspect of the hearing is relevant to the
interpretive approach taken at the outset. Section 83.28 operates under the
aegis of a judge. We consider that the participation of judges in s. 83.28
brings with it all that our justice system imparts into the judicial function.
50
Another aspect of ambiguity concerns the procedural threshold where
“information” is sought, as opposed to evidence: s. 83.28(2). It was put to us
that this choice in wording was deliberate and reflects legislative intention
that a lower threshold of relevance and admissibility applies in judicial
investigative hearings than that usually applied in criminal proceedings. To
this end, the MLACMA was cited for the proposition that s. 83.28 would
make express provision for the operation of evidentiary rules if these were
meant to apply. Section 22.2 of the MLACMA states expressly that those
rules of evidence and procedure apply to the examination of a witness as
dictated by the jurisdiction to which assistance is being provided. However,
the need for clarity in the MLACMA is quite obvious given potential
conflicts of laws.
51
In considering the threshold of relevance and admissibility in relation
to information gathering under s. 83.28, we note that the Canada Evidence
Act, R.S.C. 1985, c. C‑5 (“CEA ”), applies generally to “all
criminal proceedings and to all civil proceedings and other matters whatever
respecting which Parliament has jurisdiction” (s. 2 ). In the context of Charter
interpretation, “proceedings” has been given large and liberal interpretation
and taken to include both adjudicative and investigative processes: Thomson
Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive
Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 481. In Thomson,
regulatory investigations were held to be within the ambit of “proceeding”.
Applying this reasoning to the case at bar, Part I of the CEA may
reasonably be viewed as applying to judicial investigative hearings.
Consequently, the named person is entitled to protections such as: spousal
privilege (s. 4(3) ), procedures concerning cross‑examination of adverse
witnesses (s. 9 ), and cross‑examination in relation to prior statements
(ss. 10 and 11 ).
52
The more important rules of evidence, however, are to be found in the
common law and not in statutory instruments. Relevance is a common law rule
that we conclude applies to judicial investigative hearings. The boundaries of
relevance will be dictated in large measure by the supporting materials for the
s. 83.28 order for the gathering of information, as well as by the
investigatory nature of the proceeding. The latter may increase the scope of
the allowable questioning, but must be kept within reasonable bounds by the
judicial nature of the investigative hearing and all of the procedural
protections that the oversight of a judge implies.
53
Accordingly, the observance of the applicable common law rules of
evidence is mandatory. More importantly, the judge is present at the judicial
investigative hearing to ensure that the procedure is carried out in accord with
constitutional protections.
54
To conclude on these points, a narrow, restrictive view of s. 83.28 does
not resolve ambiguities in favour of the presumption of constitutionality
discussed earlier. However, when viewed purposively, the judicial
investigative proceeding can be viewed as a criminal proceeding, albeit unique
in its application. The common law evidentiary principles of relevance and
fairness clearly apply to the provision, as do evidentiary requirements mandated
by the CEA . Consequently we find no ground at the interpretive stage
to conclude that the presumption of constitutionality has been rebutted.
D. Discussion
of Issues
(1) Retrospectivity
55
The appellant submits that s. 83.28 ought not to apply retrospectively
to incidents that occurred prior to its enactment. In support of this
contention, the appellant argues that judicial investigative hearings are not
strictly procedural as they essentially create new offences by operation of the
triggering “terrorism offence” definition, and therefore are substantive in
nature. Moreover, the appellant asserts that s. 83.28 affects fundamental
rights, such as a right to silence under s. 7 of the Charter . With
respect, we do not agree. We find that s. 83.28 effects only procedural
change.
56
As expressed in Sullivan, supra, at p. 582, procedural
legislation concerns the conduct of actions. Accordingly, s. 83.28 is prima
facie procedural, as it outlines the process by which judicial investigative
hearings are to be carried out. Nevertheless, an assessment of whether a
provision is procedural or not must be determined in the circumstances of each
case. Furthermore, for a provision to be regarded as procedural, it must be
exclusively so: Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R.
256. We now consider whether s. 83.28 is procedural in substance and in effect.
57
Driedger and Sullivan generally describe procedural law as “law that
governs the methods by which facts are proven and legal consequences are
established in any type of proceedings”: Sullivan, supra, at p. 583.
Within this rubric, rules of evidence are usually considered to be procedural,
and thus to presumptively apply immediately to pending actions upon coming into
force: Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403.
However, where a rule of evidence either creates or impinges upon substantive
or vested rights, its effects are not exclusively procedural and it will not
have immediate effect: Wildman v. The Queen, [1984] 2 S.C.R. 311.
Examples of such rules include solicitor‑client privilege and legal
presumptions arising out of particular facts.
58
As discussed above, s. 83.28 provides for a process in which various
rules of evidence are detailed. The appellant’s concerns with the nature of
the provision arise largely with respect to the “terrorism offence” referenced
in s. 83.28(4). The definition of “terrorism offence” is not before us in this
appeal. However, it is necessary here to consider whether the application of
that definition in relation to s. 83.28 creates a “substantive gloss” on the
provision. In our view, the reference to “terrorism offence” does not alter
the procedural nature of the provision.
59
The term “terrorism offence” is defined in s. 2 of the Code that
creates new offences under para. (a), but also refers to pre‑existing
offences under paras. (b) and (c). Neither s. 83.28 nor the
definition in s. 2 alters the substantive elements of these offences. Clearly,
the offences listed under paras. (b) and (c) are not
substantively new because they were present prior to the enactment of the anti‑terrorism
provisions. We agree with Holmes J.’s characterization of a “terrorism
offence” as “a descriptive compendium of offences created elsewhere in the Criminal
Code ”. The mere association of such offences with a “terrorist group” or
“terrorist activity” does not constitute a substantive change in the law so as
to transform the procedural nature of s. 83.28 into a substantive one.
60
Below, we discuss in detail the merits of the appellant’s submission on
a s. 7 Charter right to silence/right against self‑incrimination,
which we find not to have been violated by the judicial investigative hearing.
As a related argument, the appellant further submits that, in relation to
retrospectivity, the violation of the same right to silence precludes s. 83.28
from taking retrospective effect. This argument must fail. It suffices to
state here that while the judicial investigative hearing may generate information
pertaining to an offence (and indeed, this is the purpose of the hearing), the
hearing itself remains procedural. In the manner of other procedural tools
such as DNA and wiretap authorizations, s. 83.28 provides a mechanism for the
gathering of information and evidence in the ongoing investigation of past,
present, and future offences.
61
Having found that s. 83.28 is purely procedural in nature, we turn to
consider whether the presumption of immediate effect has been rebutted.
62
At common law, procedural legislation presumptively applies immediately
and generally to both pending and future acts. As Sullivan, supra,
discusses at p. 582, the presumption of immediate application has been
characterized in a number of ways: that there is no vested right in procedure;
that the effect of a procedural change is deemed beneficial for all; that
procedural provisions are an exception to the presumption against
retrospectivity; and that procedural provisions are ordinarily intended to have
immediate effect. The rule has long been formulated in the following terms:
. . . where the enactment deals with procedure only, unless the
contrary is expressed, the enactment applies to all actions, whether commenced
before or after the passing of the Act .
(Wright v. Hale (1860), 6 H. & N. 227, 158 E.R. 94, at p.
96; see also Sullivan, supra, at p. 582.)
63
This presumption will yield where the contrary intent of Parliament has
been evinced: R. v. Ali, [1980] 1 S.C.R. 221, at p. 235.
64
On this point, the appellant submits that the legislative intent of
Parliament precludes retrospective effect given the preventive focus of the
anti‑terrorism legislation. In support, the appellant notes that the Act
is silent on the issue of temporal application in contrast with s. 487.052 of
the Code , which expressly provides for retrospective application in the
context of DNA identification.
65
The appellant’s arguments on this point are not compelling. While the
prevention of future acts of terrorism was undoubtedly a primary legislative
purpose in the enactment of the provision, as discussed earlier, it does not
follow that Parliament intended for procedural bifurcation respecting past acts
of terrorism vis‑à‑vis anticipated or future acts. The
provision itself provides for judicial investigative hearings to be held both
before and after the commission of a terrorism offence under s. 83.28(4)(a)
and (b). While the legislation is not express on the issue of temporal
application, the purpose and effect of the inclusion of s. 83.28(4)(a)
indicate that Parliament intended that the provision may be applied
retrospectively.
66
For the reasons above, s. 83.28 does not interfere with the substantive
rights of the appellant, and is, accordingly, strictly procedural. The
appellant has not rebutted the presumption of immediate application. As such,
s. 83.28 has immediate effect, and applies retrospectively to the effects of
past events.
(2) Section 7 of the Charter
(a) General Approach to Section 7
67
Statutory compulsion to testify engages liberty interests under s. 7 of
the Charter : R. v. S. (R.J.), [1995] 1 S.C.R. 451, at para. 28;
see also British Columbia Securities Commission v. Branch, [1995] 2
S.C.R. 3, at para. 33; Thomson, supra, at p. 536. The
encroachment upon liberty is complete at the moment of the compelled speech,
regardless of its character: S. (R.J.), at para. 43. Individuals named
in an order under s. 83.28(5) may be required to attend at a hearing, be
examined under oath, and be required to produce any thing in their possession.
Moreover, under s. 83.29 , such individuals may be imprisoned for evasion of
service, or failure to attend or remain at the examination. Section 83.28 also
attracts the ordinary laws of contempt of court in relation to a failure to
answer questions, and potential liability for offences relating to perjury.
Given these consequences, the judicial investigative hearing provision clearly
engages s. 7 liberty interests.
68
This Court has very recently affirmed the approach to principles of
fundamental justice encapsulated in s. 7 of the Charter : R. v. Malmo‑Levine,
[2003] 3 S.C.R. 571, 2003 SCC 74; and Canadian Foundation for Children,
Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004
SCC 4. In Canadian Foundation, at para. 8, the Chief Justice summarized
the approach thus:
Jurisprudence on s. 7 has established that a
“principle of fundamental justice” must fulfill three criteria: R. v. Malmo‑Levine,
[2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113. First, it must be a legal
principle. This serves two purposes. First, it “provides meaningful content for
the s. 7 guarantee”; second, it avoids the “adjudication of policy matters”: Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Second, there must
be sufficient consensus that the alleged principle is “vital or fundamental to
our societal notion of justice”: Rodriguez v. British Columbia (Attorney
General), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental
justice are the shared assumptions upon which our system of justice is
grounded. They find their meaning in the cases and traditions that have long
detailed the basic norms for how the state deals with its citizens. Society
views them as essential to the administration of justice. Third, the alleged
principle must be capable of being identified with precision and applied to
situations in a manner that yields predictable results. Examples of principles
of fundamental justice that meet all three requirements include the need for a
guilty mind and for reasonably clear laws.
(b) The Right to Silence/The Right Against Self-Incrimination
69
The appellant contends that s. 83.28 is a violation of an individual’s
absolute right to silence and the right against self‑incrimination.
However, in this context, the right to silence is inextricably tied to the
right against self‑incrimination. Accordingly, we address the argument
under the s. 7 right against self‑incrimination. For the reasons that
follow, we conclude that the appellant’s s. 7 rights have not been infringed,
whether through the protection against self‑incrimination, or through a
broader right to silence.
70
This Court has recognized that the right against self‑incrimination
is a principle of fundamental justice: S. (R.J.), supra, at
para. 95; Branch, supra; R. v. Jarvis, [2002] 3 S.C.R.
757, 2002 SCC 73. In Jarvis, at para. 67, the right against self‑incrimination
was described as “an elemental canon of the Canadian criminal justice system”.
It has further been recognized in relation to the principle of individual
sovereignty and as an assertion of human freedom: S. (R.J.), supra,
at para. 81; R. v. Jones, [1994] 2 S.C.R. 229, at pp. 248‑49; and R.
v. White, [1999] 2 S.C.R. 417, at para. 43. Having recognized the
centrality of the principle in Canadian law, this Court’s jurisprudence has
further articulated general principles regarding the relationship of self‑incrimination
to criminal law more broadly. To this end, testimonial compulsion has been
invariably linked with evidentiary immunity. Beginning in S. (R.J.),
supra, and continuing in Branch, supra, Phillips, supra,
and Jarvis, supra, the more recent jurisprudence of our Court on
self‑incrimination developed such that three procedural safeguards
emerged: use immunity, derivative use immunity, and constitutional exemption.
71
Use immunity serves to protect the individual from having the compelled
incriminating testimony used directly against him or her in a subsequent
proceeding. The derivative use protection insulates the individual from having
the compelled incriminating testimony used to obtain other evidence, unless
that evidence is discoverable through alternative means. The constitutional
exemption provides a form of complete immunity from testifying where
proceedings are undertaken or predominately used to obtain evidence for the
prosecution of the witness. Together these necessary safeguards provide the
parameters within which self‑incriminating testimony may be obtained.
It is against this backdrop that s. 83.28 must be assessed.
72
Section 83.28(10) provides both use and derivative use immunity to the
individual named in an order for the gathering of information. Section
83.28(10)(a) provides that no answer given or thing produced shall be
used or received against any criminal proceedings against that person, save
prosecution for perjury or giving contradictory evidence. Derivative use
immunity is provided for in s. 83.28(10)(b). Indeed, the protection in
para. (b) goes beyond the requirements in the jurisprudence, and
provides absolute derivative use immunity, such that evidence derived from the
evidence provided at the judicial investigative hearing may not be presented in
evidence against the witness in another prosecution even if the Crown is able
to establish, on a balance of probabilities, that it would have inevitably
discovered the same evidence through alternative means. The constitutional
exemption is provided for in this case in light of the ordinary application of
the principle asserted in Jarvis, supra, at para. 96, that
testimonial compulsion is precluded where the predominant purpose of the
proposed hearing is the determination of penal liability. There is no reason
to believe that the predominant purpose of the judicial investigative hearing
before us is to obtain information or evidence for the prosecution of the
appellant.
73
It is clear from the above discussion that the procedural protections
available to the appellant in relation to the judicial investigative hearing
are equal to and, in the case of derivative use immunity, greater than the
protections afforded to witnesses compelled to testify in other proceedings,
such as criminal trials, preliminary inquiries or commission hearings.
However, s. 83.28(10) provides for such safeguards only in the context of “any
criminal proceedings”. The legislation does not speak to safeguards in relation
to other types of hearings, such as extradition or deportation hearings, or
proceedings in foreign jurisdictions.
74
The international scope of terrorism activities and the inter‑jurisdictional
ambit of terrorism investigation raise grave concerns about potential uses of
information gathered pursuant to s. 83.28(10): D. M. Paciocco, “Constitutional
Casualties of September 11: Limiting the Legacy of the Anti‑Terrorism
Act ” (2002), 16 S.C.L.R. (2d) 185, at p. 231. Compelled testimony
obtained pursuant to s. 83.28 may potentially be used against individuals in
extradition hearings, and subsequently passed on to foreign authorities for use
in prosecution abroad: see J. Millard, “Investigative Hearings under the Anti-Terrorism
Act ” (2002), 60(1) U.T. Fac. L. Rev. 79, at p. 81. Such testimony
may also be used against non‑citizens in deportation hearings under s. 34
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 , such that
the Minister’s “reasonable belief” that an individual has engaged in terrorism
may be based on the testimony of that individual at a judicial investigative
hearing.
75
This Court has recently expressed the seriousness with which it views
deportation or extradition to countries where torture and/or death are distinct
possibilities: United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7;
Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1
S.C.R. 3, 2002 SCC 1. In such cases, guarantees of fundamental justice apply
even where deprivations of life, liberty or security may be effected by actors
other than the Canadian government, if a sufficient causal connection exists
between the participation of the Canadian government and the ultimate deprivation
effected: Suresh, at para. 54. This general principle was recognized in
Suresh to apply equally to either deportation or extradition hearings.
76
In our view, a sufficient causal connection exists where information
gathered under s. 83.28 is used to effect deprivations of liberty, such as
torture or death, in circumstances where the government’s participation was a
necessary precondition, and the resulting deprivation an entirely foreseeable
consequence of the participation. Accordingly, deportations or extraditions
must accord with the principles of fundamental justice. Consequently, the
parameters recognized in Burns, supra, at para. 124, and Suresh,
supra, at para. 76, must be respected.
77
This appeal is our first opportunity to discuss the parameters of a
right against self‑incrimination in the context of possible deportation
or extradition hearings against, on the facts of this case, persons named under
the s. 83.28 proceeding. Prior cases have focussed exclusively on the engagement
of s. 7 in relation to government participation where the possibility of
torture or death exists. The right against self‑incrimination in the
guise of testimonial compulsion has been recognized as non‑absolute.
Indeed, in the reasons above, we have affirmed the need for various procedural
safeguards where testimonial compulsion is at issue. This Court has also
expressly recognized the dire consequences which may flow from deportation and
extradition, as such proceedings frequently have grave consequences for the
liberty and security interests of individuals.
78
As in many other areas of law, a balance must be struck between the
principle against self‑incrimination and the state’s interest in
investigating offences. We believe such a balance is struck by extending the
procedural safeguards of s. 83.28 to extradition and deportation hearings. As
mentioned earlier, s. 83.28(5)(e) permits the inclusion of other terms
and conditions, including those required for the protection of the witness.
Moreover, under s. 83.28(7), the terms and conditions of the order may be
varied to provide as much. This point was conceded by the Crown in oral
argument.
79
In order to meet the s. 7 requirements, the procedural safeguards found
in s. 83.28 must necessarily be extended to extradition and deportation
proceedings. In Branch, supra, at para. 5, derivative use
immunity was stated to apply both in subsequent proceedings where the witness
is an accused subject to penal sanctions, and more generally to any proceeding
which engages s. 7 of the Charter , such as extradition and deportation
hearings. The protective effect of s. 83.28(10) would be significantly
undercut if information gathered under s. 83.28 was used at the state’s
discretion in subsequent extradition or deportation proceedings. Therefore,
where there is the potential for such use by the state, the hearing judge must
make and, if necessary, vary the terms of an order to properly provide use and
derivative use immunity in extradition or deportation proceedings.
(3) The Independence of the Judiciary
80
Judicial independence is the “lifeblood of constitutionalism in
democratic societies”: Beauregard v. Canada, [1986] 2 S.C.R. 56, at p.
70. The importance of judicial independence to the promotion and preservation
of the rule of law cannot be overstated. In this respect, as the late
Professor Lederman noted, judicial independence is one of the original
principles of the English Constitution: W. R. Lederman, “The Independence of
the Judiciary”, in A. M. Linden, ed., The Canadian Judiciary (1976), 1,
at p. 2. An independent judiciary is absolutely necessary to “ensure that the
power of the state is exercised in accordance with the rule of law and the
provisions of our Constitution. In this capacity, courts act as a shield
against unwarranted deprivations by the state of the rights and freedoms of
individuals”: Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at
para. 22, per Major J.
81
This principle exists in Canadian law in a number of forms. In the
Constitution, it is explicitly referenced in ss. 96 to 100 of the Constitution
Act, 1867 and in s. 11 (d) of the Charter . The application of
these provisions, however, is limited. The former applies to judges of
superior courts, and the latter to courts and tribunals charged with trying the
guilt of persons charged with criminal offences: Reference re Remuneration
of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R.
3, at para. 84; Ell, supra, at para. 18. Judicial independence
has also been implicitly recognized as a residual right protected under s. 7 ,
as it, along with the remaining protections in ss. 8 to 14 , are specific
examples of broader principles of fundamental justice: Re B.C. Motor
Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. Moreover, the commitment to
the “foundational principle” of judicial independence has also been referenced
by way of the Preamble to the Constitution Act, 1867 : Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island, at
para. 109; see also Ell, at para. 19. Judicial independence further
represents the cornerstone of the common law duty of procedural fairness, which
attaches to all judicial, quasi‑judicial and administrative proceedings,
and is an unwritten principle of the Constitution.
82
The twin aspects of judicial independence and impartiality are relevant
to this appeal. The first is the requirement that the judiciary function
independently from the executive and legislative branches of government: Beauregard,
supra, at pp. 72‑73. The second is the recognition that judicial
independence is necessary to uphold public confidence in the administration of
justice: Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R.
405, 2002 SCC 13. The relationship between judicial independence and
impartiality was considered by the Court in R. v. Lippé, [1991] 2 S.C.R.
114, at p. 139:
The overall objective of guaranteeing judicial
independence is to ensure a reasonable perception of impartiality; judicial
independence is but a “means” to this “end”. If judges could be perceived as
“impartial” without judicial “independence”, the requirement of “independence”
would be unnecessary. However, judicial independence is critical to the
public’s perception of impartiality. Independence is the cornerstone, a
necessary prerequisite, for judicial impartiality.
83
In this respect, we must ultimately consider whether a reasonable and
informed person would conclude that the court under s. 83.28 is independent: Valente
v. The Queen, [1985] 2 S.C.R. 673, at p. 689; Ell, supra, at
para. 32.
84
One of the criticisms levied against s. 83.28 is that it co‑opts
the judiciary into performing executive, investigatory functions in place of
its usual adjudicative role: see, e.g., Paciocco, supra, at p. 232.
Essentially, the assertion is that judges acting under s. 83.28 lack
institutional independence or impartiality. The institutional dimension of
judicial independence was recognized in Ell, supra, at para. 22,
where Major J. described it as “the need to maintain the independence of a
court or tribunal as a whole from the executive and legislative branches of
government”. We note that there has been no allegation that Holmes J. has
conducted herself in a partial or biased manner.
85
The role of the judge was described by this Court in Therrien (Re ),
[2001] 2 S.C.R. 3, 2001 SCC 35, at para. 108:
The judicial function is absolutely unique. Our
society assigns important powers and responsibilities to the members of its
judiciary. Apart from the traditional role of an arbiter which settles
disputes and adjudicates between the rights of the parties, judges are also
responsible for preserving the balance of constitutional powers between the two
levels of government in our federal state. Furthermore, following the
enactment of the Canadian Charter , they have become one of the foremost
defenders of individual freedoms and human rights and guardians of the values
it embodies . . . . Accordingly, from the point of view of the individual
who appears before them, judges are first and foremost the ones who state the
law, grant the person rights or impose obligations on him or her.
86
We find that the substance of such a criticism is not made out in the
context of the s. 83.28 judicial investigative hearing. Judges routinely play
a role in criminal investigation by way of measures such as the authorization
of wire taps (s. 184.2 of the Code ), search warrants (s. 487 of the Code ),
and in applications for DNA warrants (s. 487.05 of the Code ). The
thrust of these proceedings is their investigatory purpose, and the common
underlying thread is the role of the judge in ensuring that such information is
gathered in a proper manner. The place of the judiciary in such investigative
contexts is to act as a check against state excess.
87
However, once legislation invokes the aid of the judiciary, we must
remain vigilant to ensure that the integrity of its role is not compromised or
diluted. Earlier in these reasons we endorsed a broad and purposive approach
to the interpretation of s. 83.28. This interpretation is consistent not only
with the presumption of constitutional validity, but also with the traditional
role of the judiciary. The function of the judge in a judicial investigative
hearing is not to act as “an agent of the state”, but rather, to protect the
integrity of the investigation and, in particular, the interests of the named
person vis‑à‑vis the state.
88
The parameters of the judicial role under s. 83.28 must be clearly
delineated and understood. As discussed above, the judge is empowered to
ensure that questioning is fair and relevant, as required by the CEA and
the common law. The scope of the order under s. 83.28(5) , any exercise of
judicial discretion under s. 83.28(5) (e) and the terms and conditions
set under s. 83.28(7) must take as a starting point the rights and interests of
the named person. Where a judge, acting pursuant to s. 83.28 , imposes terms
and conditions or exercises his or her discretion in a manner which goes beyond
the role of the judiciary as guardian of the Constitution, that judge will have
acted unconstitutionally. This accords with Parliamentary intention. During
the third reading of Bill C‑36 in the House of Commons, the Parliamentary
Secretary to the Minister of Justice characterized the direct judicial
supervision of s. 83.28 as one of the “very significant limits and controls”
that brought the legislation into compliance with the Charter : House
of Commons Debates, vol. 137, 1st Sess., 37th Parl., November 28, 2001, at
p. 7620.
89
We conclude that judicial independence is not compromised in this case.
Under a broad and purposive interpretation, s. 83.28 requires the judge to act
“judicially”, in accordance with constitutional norms, and the historic role of
the judiciary in criminal proceedings. Moreover, the provision confers upon
the judge considerable flexibility and discretion to set and vary the terms and
conditions of the initiating order and the subsequent hearing. In light of the
mandatory exercise of such discretion with respect to rules of evidence, and
use and derivative use immunity being extended to extradition and deportation
hearings, judges bring the full weight of their authority as impartial
adjudicators to the hearing to provide the witness with all the constitutional
guarantees of the Charter . A failure on the part of a hearing judge to
exercise his or her discretion in this manner will constitute reviewable error.
90
The ultimate question, however, is “whether a reasonable and informed
person, viewing the relevant statutory provisions in their full historical
context, would conclude that the court or tribunal is independent”: Ell,
supra, at para. 32; Valente, supra, at p. 689. Professor
Paciocco states that, “[e]ven though the legislation does not purport to
command judges to perform this function, but leaves them with the discretion as
to whether to conduct such a hearing, the appearance of independence is
compromised”: Paciocco, supra, at p. 235.
91
The concern about the judicial investigative hearing stems largely from
its being held in camera. However, in the media appeal, we discuss the
fundamental principle of openness of the courts, a hallmark of the Canadian
judicial system. In that appeal, we conclude that judicial investigative
hearings are to be held presumptively in open court and that the onus is on the
Crown to rebut that presumption under the test laid out in Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck,
[2001] 3 S.C.R. 442, 2001 SCC 76. In our view, the presumptive openness of the
judicial investigative hearing is another factor that militates in favour of
our conclusion that judicial investigative hearings do not compromise the
independence or impartiality of the judiciary.
92
Assuming that this file had not been sealed to the extent that it was at
the outset of the proceedings, a reasonable and informed person would conclude,
on the facts of this case, and in light of the institutional function of the
judiciary, that judicial impartiality and independence have not been
compromised or diluted. Where a hearing is held within the parameters
discussed above, justice will not only be done, but will also manifestly be
seen to be done.
(4) The Role of the Crown
93
It was argued that the independence of Crown counsel is compromised by
the judicial investigative hearing process, becoming impermissibly intertwined
with the “police task” of investigation. We reject this argument for two
reasons.
94
First, this Court in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC
12, declined to set a bright line delineating the proper pre-charge role of the
Crown. Policy considerations have a legitimate place in developing the Crown’s
practical role in a given jurisdiction or situation. The core content of Crown
independence is the maintenance of “objectivity throughout the proceedings” but
the contextual framework may vary: Regan, at para. 83 (emphasis
deleted). Since the application of Crown objectivity “is inevitably highly
contextual” (Canadian Foundation, supra, at para. 11), it
fails to meet the criteria for recognition as a principle of fundamental
justice under s. 7 .
95
Second, one may assume that by bringing Crown counsel into the judicial
investigative hearing process, the legislature intended that the Crown would
conduct itself according to its proper role as an officer of the court and its
duty of impartiality in the public interest. This is consistent with our
interpretation of the intended role of judges in the proceeding. Crown counsel
are appropriately trained to question witnesses within the context of judicial
rulings on relevance, fairness, privilege, and procedure. The mere fact of
their involvement in the investigation need not compromise Crown counsel’s
objectivity, as the critical component is their own “necessary vigilance”: Regan,
supra, at para. 83. Moreover, the Crown exercises a “public duty .
. . performed with an ingrained sense of the dignity, the seriousness and the
justness of judicial proceedings”, and accordingly is presumed to act in good
faith: Boucher v. The Queen, [1955] S.C.R. 16, at p. 24. Where,
however, the Crown can be shown to have acted vexatiously or in bad faith,
recourse may be sought through the courts.
(5) Other Issues
(a) Section 11 (d) of the Charter
96
Section 11 (d) of the Charter does not apply because the appellant
is not an accused. The issues raised under this section are subsumed in our s.
7 analysis.
(b) Pre‑Trial Discovery
97
It is argued that the judicial investigative hearing in the
circumstances of this case served the improper purpose of obtaining pre‑trial
discovery. Section 83.28(2) states that the purpose of an order for the
gathering of information is to investigate a terrorism offence. It follows
that the issuing judge must be satisfied that the purpose of the Crown in
seeking the proposed hearing is in fact investigative, and not founded upon any
oblique motive or otherwise improper purpose: see Boucher, supra;
Lemay v. The King, [1952] 1 S.C.R. 232; Proulx v. Quebec (Attorney
General), [2001] 3 S.C.R. 9, 2001 SCC 66; Regan, supra.
Application for the order is made ex parte, and the onus is on the Crown
to demonstrate its investigative purpose. If a party subsequently challenges
the Crown’s purpose in seeking an investigative hearing, the onus will be on
the Crown to demonstrate the propriety of its purpose.
98
In addition, in an ex parte application of this nature, there is
a well-recognised “duty of utmost good faith [on the Crown] in the
representations that it makes to the court. The evidence presented must be
complete and thorough and no relevant information adverse to the interest of
that party may be withheld . . . . Virtually all codes of professional conduct
impose such an ethical obligation on lawyers”: Ruby v. Canada (Solicitor
General), [2002] 4 S.C.R. 3, 2002 SCC 75, at para. 27.
99
Holmes J., reviewing the purpose that supported issuance of the order,
asked whether the predominant purpose was investigative. It appears that she
placed the onus on the Crown to demonstrate the propriety of its purposes,
although this is not explicitly stated. She tested the asserted investigative
purpose against the factual record before her, taking into account the
allegations of the appellant. She concluded that the purpose of the hearing as
sought by the Crown was predominantly investigative and therefore permissible.
Although the hearing judge expressed her conclusion in terms of a predominant
purpose for the investigative hearing, in looking at her findings we are
satisfied that she was using that expression to mean improper purpose or with
an oblique motive.
100
Accepting that questions of propriety underlying Crown conduct fall on
the legal end of the mixed law and fact spectrum discussed in Housen v.
Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 36, we conclude
that Holmes J. made no reviewable error. She correctly found no improper
purpose in the Crown’s calling of the appellant under the s. 83.28 provisions.
Our colleague, Binnie J., puts great emphasis, to paraphrase, on trial tactics
employed by the Crown to obtain advance or mid‑trial discovery of an
uncooperative witness. With respect, such conclusions are somewhat
speculative.
101
It is further argued that, regardless of the investigative purpose of
the hearing, its effect was to provide the Crown with a pre‑trial
discovery advantage in the Air India trial not afforded to the defence. In our
view, this issue arose here largely because the judicial investigative hearing
was sought in the midst of the ongoing Air India trial and the proceedings in
the British Columbia Supreme Court were conducted in total secrecy. In the
unique circumstances of this case, the presumption of openness for the judicial
investigative hearing and the participation of counsel for the accused from the
outset would have overcome any concerns regarding the practical effect of the
hearing on the Air India trial.
102
Given that the result is then to say that the order’s secrecy might
initially have granted some pre‑trial advantage to the Crown, this may
lead the Court to allow the appeal in part. However, the order’s faults will
be remedied by complying with the Court’s ruling in the media appeal.
(c) Participation of Counsel
103
In light of our ruling and discussion in the media appeal that the
hearing should have been held in open court and our comments above on the scope
and operation of s. 83.28, there is no need to decide whether the participation
of counsel for the accused, Mr. Bagri and Mr. Malik, in the judicial
investigative hearing was an appropriate condition under s. 83.28(5)(e).
104
We reiterate our conclusion in the media appeal that it is difficult to
anticipate all of the difficulties that such an order may pose. Accordingly,
this issue should be left for another day, and should be debated within the
legal profession so that court-imposed conditions can properly consider ethical
standards and best practices for the involvement of counsel.
VI. Disposition
105
The appeal should be dismissed. The order of this Court sealing the
file in this case is lifted to the extent of the information disclosed in the
reasons. The parties are at liberty to apply to the Court for any appropriate
order regarding the disposition of any part of the file in this case that
remains under seal.
106
The constitutional questions are answered as follows:
1. Does s. 83.28 of the Criminal Code,
R.S.C. 1985, c. C-46 , infringe s. 7 of the Canadian Charter of Rights
and Freedoms ?
No.
2. If so, is the infringement a reasonable
limit, prescribed by law, as can be demonstrably justified in a free and
democratic society under s. 1 of the Charter ?
It is not necessary to answer this question.
3. Does s. 83.28 of the Criminal Code
infringe the principles of judicial independence and impartiality guaranteed by
s. 11 (d) of the Charter ?
No.
4. If so, is the infringement a reasonable
limit, prescribed by law, as can be demonstrably justified in a free and
democratic society under s. 1 of the Charter ?
It is not necessary to answer this question.
5. Does s. 83.28 of the Criminal Code infringe
the principles of independence and impartiality established by the Preamble to
the Constitution Act, 1867 ?
No.
The reasons of Bastarache and Deschamps JJ. were delivered by
107
Bastarache J. — I agree
with the majority reasons subject to my comments on the openness of
investigative hearings.
I. The
Independence of the Judiciary
108
In my view, where a judicial investigative hearing is closed, the
independence or impartiality of the judiciary will not be compromised as
several other factors promote independence and impartiality. Further, the
subsequent release of the information disclosed during these proceedings promote
the accountability of the judiciary.
II. Pre-Trial
Discovery
109
It is my view that Holmes J. made neither a palpable nor an overriding
error in her assessment of the facts and her approach was correct in principle.
In my view, the participation of counsel for the accused from the outset of the
hearing was sufficient to overcome any concern regarding the practical effect
of the hearing on the Air India Trial.
III. Participation
of Counsel
110
The majority chose not to comment on the participation of counsel in
light of the conclusion on openness in the companion appeal. Like the majority,
I limit my comments to this case and will not set out the requisite conditions
for such an order generally. In my view, there is no evidence that Holmes J.
erred in concluding that counsel for the accused, Mr. Malik and Mr. Bagri, could
participate in the hearing. Holmes J. exercised her discretion properly.
The following are the reasons delivered by
111
Binnie J. (dissenting) _ Many of the reasons urged by my
colleagues Iacobucci and Arbour JJ. in support of the constitutional validity
of the anti-terrorism investigatory power in s. 83.28 of the Criminal
Code, R.S.C. 1985, c. C-46 (as amended by S.C. 2001, c. 41 ), demonstrate
why this is not a proper case for its exercise. In my view, the s. 83.28
order in this case was sought by the Crown for an inappropriate purpose, it was
granted on inappropriate terms, and its impropriety was not cured (although the
terms were much improved) by the amendments made by the hearing judge.
Accordingly, while I agree that s. 83.28 of the Code , as
interpreted by my colleagues, is constitutionally valid, in my opinion the
Crown’s resort to it in the circumstances of this case was an abuse of
process. I would therefore allow the appeal.
112
The Air India trial commenced on April 28, 2003. It has therefore been
open to the Crown for more than a year to call the appellant as a witness for
the prosecution. As of the date of the hearing of this appeal, the Crown had
not done so. While the s. 83.28 hearing judge was persuaded that the
“predominant purpose” of the Crown in seeking a s. 83.28 order was the
ongoing Air India investigation rather than the ongoing Air India trial,
it is clear that the timing of the Crown’s attempt to obtain the
appellant’s s. 83.28 evidence was driven by trial tactics. By that I mean
the Crown’s desire to obtain a mid-trial examination for discovery of the
appellant before a different judge to determine in advance precisely what the
appellant will say or not say in the witness box. This is an abuse of the
extraordinary powers granted under the Anti-terrorism Act, S.C. 2001,
c. 41 . In my view the s. 83.28 hearing should have been stayed until
after the appellant testified at the Air India trial or the Crown declared that
the appellant would not be called as a prosecution witness.
I. The Fundamental Issue
113
My colleagues quote in para. 6 the much repeated dictum of Jackson J. of
the United States Supreme Court that the Bill of Rights (or in our case
the Canadian Charter of Rights and Freedoms ) is not “a suicide pact”: Terminiello
v. Chicago, 337 U.S. 1 (1949), p. 37 (in dissent). In that case the U.S.
Supreme Court upheld the free speech rights of a Chicago priest charged with
causing a riot by his inflammatory speech to the Christian Veterans of
America. More to the point for our purposes, I think, is the observation of
Douglas J. for the majority in the same case, that upholding constitutional
rights at times of national stress is “one of the chief distinctions” that
sets a liberal democracy apart from the “totalitarian regimes” that were
considered at that time a threat to national security (p. 4).
114
Every legal system has its not-so-proud moments when in times of
national upheaval or wartime emergency, civil rights have been curtailed in
ways which were afterwards regretted. One need look no further than to mention
the wartime treatment of Canadians of Japanese descent, upheld in Reference
Re: Persons of Japanese Race, [1946] S.C.R. 248, aff’d [1947] 1 D.L.R. 577
(P.C.).
115
The challenge posed to our legal institutions by the current “war on
terrorism” promises to be more enduring and difficult to manage than the more
traditional wartime challenges to civil liberties previously experienced. The
terrorist threat had no announced point of commencement and may have no end.
The enemy is not conveniently dressed in uniforms or arranged in battlefield
order. They operate among us in guerilla-style networks, where decisions can
be made, adjusted, improvised and implemented in lower level cells. They are,
it seems, everywhere and yet they are nowhere to be seen. There may be no
dramatic final battle in which victors and losers are made manifest. We are
told that there will be a long, slow process of attrition. Efforts to
counteract terrorism are likely to become part of our everyday existence for
perhaps generations to come. In these circumstances we can take limited
comfort from the declared intention of the government that the Anti-terrorist
Act is a temporary measure. While its continued existence will depend on
Parliament’s appreciation of developments in the “war on terrorism”, such
temporary measures may well slide into a state of de facto permanence.
The role of s. 83.28 in our criminal law should be approached with that
unhappy prospect firmly in mind.
116
The danger in the “war on terrorism” lies not only in the actual damage
the terrorists can do to us but what we can do to our own legal and political
institutions by way of shock, anger, anticipation, opportunism or overreaction.
117
This case, it seems to me, illustrates the problem.
II. The Air India Trial
118
My colleagues suggest (I think correctly) that generally speaking the
role of the hearing judge under s. 83.28 is “to protect the integrity of
the investigation and, in particular, the interests of the named person vis-à-vis
the state” (para. 87). In this case, however, the difficult issue for the
s. 83.28 hearing judge is not so much the fair treatment of the appellant
as it is the need to ensure that the charges against the accused Ripudaman
Singh Malik and Ajaib Singh Bagri in the Air India case are dealt with in
accordance with our usual rules of a fair trial.
119
The hearing judge explicitly recognized in her publicly released
synopsis of the s. 83.28 case that the “terrorism offence” under
investigation at her inquiry is also the subject matter of the criminal charges
against Malik and Bagri.
The terrorism offence relates to two explosions
which occurred between June 22 and 23, 1985, and caused the deaths of two
baggage handlers and injuries to four others in Narita, Japan, and the deaths
of the 329 passengers and crew of Air India flight 182 off the west coast of
Ireland.
Mr. Malik and Mr. Bagri are currently on trial for
conspiracy to murder and other offences relating to those events. Their trial
began on April 28, 2003 and will resume on September 8, 2003.
([2003] B.C.J. No. 1749 (QL), 2003 BCSC 1172, at paras. 4-5)
120
She elsewhere noted that the s. 83.28 hearing was directed to
“information about the Air India crimes and their perpetrators”
(emphasis added). The perpetrators, on the Crown’s theory, include Malik and
Bagri.
121
The appellant is a witness scheduled to testify for the prosecution
against Malik and Bagri. This person has “not cooperated with the police” nor,
it seems, with the Crown. The hearing judge specifically noted that the
appellant is “equally uncooperative with the defence”. At the time of the
hearing before Holmes J. the appellant had made no known disclosure to anyone
of the evidence he or she might or might not give in the Air India trial.
A. The Crown Sought Mid-Trial Discovery of
an Uncooperative Witness
122
The Criminal Code affords the Crown many advantages in a criminal
proceeding but where, as here, the Crown chooses to proceed by direct
indictment, a free-standing right to compel reluctant witnesses to answer
questions under oath before they are called to give their evidence in open
court is not amongst them.
123
In this case, the Crown decided not to hold a preliminary hearing before
a judge in the ordinary way in the presence of the accused but to proceed to
trial on a direct indictment signed by the Attorney General of British Columbia
on March 8, 2001. The consequences of such a procedure are
significant, as pointed out in Skogman v. The Queen, [1984] 2 S.C.R. 93,
per Estey J., at p. 105:
. . . the preliminary hearing has become a forum where the accused is afforded
an opportunity to discover and to appreciate the case to be made against him at
trial where the requisite evidence is found to be present.
124
The result of the direct indictment proceeding was that neither the
Crown nor the defence had a preliminary look at how the witnesses would perform
in a trial-like setting. This was the Crown’s decision. The defence is given
no choice in the matter.
125
A mid-trial examination of the appellant for discovery would recoup for
the Crown some of the advantage it lost in opting for the direct indictment of
Malik and Bagri. The defence, on the other hand, is given no comparable
opportunity to obtain mid-trial (or pre-trial) discovery of some of the
witnesses it may wish to depose: see Re Regina and Arviv (1985), 51 O.R.
(2d) 551 (C.A.).
126
If it is fair to give the Crown a non-reciprocal right of pre-trial
discovery of witnesses in this murder trial, why not generally? Why
limit the Crown’s right of discovery to those cases where s. 83.28
applies? However, no one argues that this is the normal way of conducting a
murder trial. That being so, why single out Malik and Bagri for
disadvantageous treatment? At what point, if at all, should principle yield to
expediency in the “war on terror”? That is a key issue not only in this case
but in all the cases to follow where the decision in this case to uphold as
proper the Crown’s use of s. 83.28 for discovery will be cited as a
precedent.
127
On June 5, 2001, the Crown filed a new direct indictment under which
Malik and Bagri are jointly charged with first degree murder in relation to Air
India Flight 182, conspiracy to commit murder, attempted murder of the
passengers and crew of Air India Flight 301, conspiring to cause bombs to be
placed on various aircraft, and three counts of placing a bomb on an aircraft.
Malik and Bagri are also jointly charged with a second count of first degree
murder in relation to the explosion at Narita Airport where deaths were caused
during the transfer of luggage to Air India Flight 301. A third accused,
Inderjit Singh Reyat, was charged in relation to the bomb on Air India Flight
182. It is difficult to conceive of a more serious set of criminal charges.
128
The enormity of the charges at issue in the Air India trial is what
makes this case difficult. It is comparatively painless for a society to
support the procedural rights of an accused when the stakes are small. It is when
the stakes are high, as here, that our commitment is truly tested.
129
On February 10, 2003, Reyat pleaded guilty to lesser charges and was
sentenced to prison for five years in addition to the 10 years already served
on an earlier conviction for manslaughter arising from the Narita Airport
bombing plus the time he spent in custody awaiting extradition to Canada and
the trials. At the time of his sentencing the Statement of Facts agreed to by
the Crown and Reyat excluded Reyat as a suspect in the murder of the
passengers on Air India Flight 182:
At no time did Mr. Reyat intend by his actions to cause death to any
person or believe that such consequences were likely to occur. However,
unbeknownst to Mr. Reyat the items that he acquired were used by another person
or persons to help make an explosive device that, on or about June 23,
1985, destroyed Air India Flight 182, killing all 329 people on board.
(British Columbia Criminal Justice Branch, Media Statement, “Inderjit
Singh Reyat Pleads Guilty to Role in Air India Explosion”, February, 10 2003)
130
The trial of Malik and Bagri started April 28, 2003. They are, of
course, presumed innocent unless and until the Crown establishes their guilt
beyond a reasonable doubt.
B. The Appellant Was Under No Legal Duty to
Cooperate With the Police
131
On March 21, 2003, the appellant was subpoenaed to give evidence at the
trial of Malik and Bagri but, as stated, has cooperated neither with the police
nor with the defence. Generally speaking, under our law, there is no legal
obligation for an ordinary citizen to cooperate in a police investigation. As
Martin J.A. put it in R. v. Esposito (1985), 24 C.C.C. (3d) 88 (Ont.
C.A.), at p. 94:
Although a police officer is entitled to question any person in order
to obtain information with respect to a suspected offence, he, as a general
rule, has no power to compel the person questioned to answer. Moreover, he has
no power to detain a person for questioning, and if the person questioned declines
to answer, the police officer must allow him to proceed on his way unless he
arrests him on reasonable and probable grounds.
Section 83.28
gives the police new powers in that regard, but they are powers that should be
exercised under judicial supervision with due attention to their extraordinary
nature and with regard to the rights not only of persons subpoenaed to testify
but of third parties whose interests are affected, including in this case Malik
and Bagri.
C. The Crown Proceeded Without Notice to the
Defence
132
A week after the Air India trial began, and without notice to counsel
for Malik and Bagri, the Crown appeared before a judge other than the trial
judge for an order under s. 83.28 of the Criminal Code to examine
the appellant on some of the matters at issue in the Air India trial. While
s. 83.28 permits an application to be made without notice, there is no
requirement that it be done in that way, and in light of the links of this
s. 83.28 proceeding to the Air India trial, I think it would have been
proper here for the Crown to give notice to counsel for Malik and Bagri. At
that point their role, if any, in the s. 83.28 hearing could have been the
subject of argument. Instead, the Crown requested that the s. 83.28
hearing be held in camera and that the appellant be prohibited from
disclosing, except to his or her own counsel, any information or evidence
obtained at the s. 83.28 hearing. This prohibition was designed to keep
both the accused Malik and Bagri and their counsel, amongst others, in a state
of ignorance of even the existence of the s. 83.28 proceedings.
133
One purpose of the s. 83.28 hearing was to provide the Crown with a
transcript of the appellant’s compelled testimony under oath that would
otherwise be unobtainable under our law.
134
If the testimony of the appellant at the Air India trial proves to be
consistent with the s. 83.28 transcript, or more favourable to the
prosecution, its existence might never be disclosed to the trier of fact.
135
If the appellant departs from the s. 83.28 transcript in a way
unfavourable to the prosecution, the s. 83.28 transcript would be
available for impeachment and perhaps to lay the basis for an application to
have the appellant declared a hostile witness, with a view to allowing the
Crown the further advantage of cross-examining its own witness: see s. 9
of the Canada Evidence Act, R.S.C. 1985, c. C-5 . The existence of the
transcript may open the door to its use not only as a prior inconsistent
statement but for the truth of its contents: see R. v. U. (F.J.), [1995]
3 S.C.R. 764.
136
While the contents of the transcript would eventually be disclosed to
defence counsel under the principles set out in R. v. Stinchcombe,
[1991] 3 S.C.R. 326, the hearing judge specifically ordered that the transcript
could not be shown to the persons best able to comment on its accuracy in
relation to them, namely the accused Malik and Bagri.
137
My colleagues give little weight to the Crown’s resort to s. 83.28 as a
form of “mid-trial” discovery and simply argue at para. 101 that
the presumption of openness for the judicial investigative hearing and
the participation of counsel for the accused from the outset would have
overcome any concerns regarding the practical effect of the hearing on the Air
India trial.
This analysis,
with all due respect, sidesteps the significance of at least one of the
purposes the Crown was seeking to achieve in the first place by resort to the
s. 83.28 procedure, as will now be discussed.
D. Use of Section 83.28 to Obtain
Mid-Trial Discovery of an Uncooperative Witness Was an Abuse of Process
138
It is apparent that in this case an investigative procedure designed for
the purpose of gathering information at the pre-charge stage was invoked behind
the backs of the accused in part at least to obtain advance discovery of an
uncooperative prosecution witness not only after charges were laid but during
the Air India trial itself.
139
The Crown, as well as defence counsel, are only in the initial stages of
grappling with the proper limits of s. 83.28. Nevertheless, its use in
this case goes far beyond what was suggested in Parliament by the responsible
Minister:
Bill C-36 would also provide for investigative
hearings under the criminal code. These hearings would permit the gathering of
evidence in investigations of terrorism offences prior to the laying of
charges. [Emphasis added.]
(House of Commons Debates, vol. 137, 1st Sess., 37th Parl.,
October 16, 2001, at p. 6166)
Section 83.28
does not cease to be available to investigators once charges have been laid,
but there is nothing in s. 83.28 to suggest that Parliament intended to
confer on the Crown a right of mid-trial discovery of uncooperative witnesses
before a different judge where the Crown proceeds by direct indictment in the
trial of criminal offences, even if those offences involve terrorist acts.
Section 83.28 was not designed to serve as a sort of halfway house between
a preliminary hearing and a direct indictment.
140
My colleagues write that “[t]he place of the judiciary in such
investigative contexts is to act as a check against state excess” (para. 86),
but the point, in my opinion, is that, on the particular facts of this case,
the s. 83.28 order was itself “state excess”. So far as Malik and Bagri
are concerned, the presence of the judge presiding over the examination adds
weight to its coercive potential and strengthens the hand of the prosecution.
The Crown’s trial tactic to use s. 83.28 to deal with an uncooperative
witness in the ongoing Air India trial, on the facts of this particular case,
was abusive of the proper role of the judiciary.
III. The Terms of the Initial
Section 83.28 Order Were Inappropriate
141
The motions judge, Dohm A.C.J., who heard the motion ex parte and
therefore did not have the advantage of hearing submissions from anyone other
than the Crown, ordered the appellant examined on the following conditions:
(a) “The Investigative Hearing shall take place in
camera”;
(b) “[The appellant] may be represented by
counsel at the Investigative Hearing”;
(c) “[The appellant] shall be examined on oath
by the Attorney General’s agent, and shall not be examined by any other
person”;
(d) “[The appellant] shall answer questions put
. . . and shall produce to the presiding judge things that are ordered to be
produced unless protected by any law relating to non-disclosure of information
or to privilege”;
(e) “[The appellant] shall not disclose,
except to [his or her] counsel, any information or evidence obtained at the
Investigative Hearing without the consent of the Attorney General or his
agent”;
(f) “Notice shall not be given to Ripudaman
Singh Malik or Ajaib Singh Bagri.”
(Emphasis added.)
The effect of
the order was to confer a significant advantage on the prosecution. No
provision was made in the order to advise the trial judge, Josephson J., of
what was afoot. Yet, Josephson J. is the judge charged with ensuring that
Malik and Bagri receive a fair trial. Not only would the Crown have had the
exclusive right to put the questions, but Malik and Bagri, under the terms of
the original order, would be deprived of the opportunity given to the Crown of
hearing the appellant’s testimony, and of appraising its likely strength, which
is one of the usual benefits of discovery, i.e. whether the witness
is dull or quick-witted and whether he is accurate or otherwise in his
testimony. Also, if he is given to exaggeration or over-emphasis; whether he
is lacking in confidence; if his memory is good or bad and if he is honest. The
examination is generally useful in determining the manner or line of
cross-examination that will be most effective at the trial. [Emphasis
added.]
(G. D. Cudmore, Choate on Discovery (2nd ed. (loose-leaf)),
at pp. 1-11)
142
Despite the order of Dohm A.C.J. that Malik and Bagri were not to be
notified of the s. 83.28 hearing, they found out about it. Malik, in
particular, complained that the effect of the order, as issued, would have been
that while they faced a judge-alone trial in the courthouse before Josephson
J., elsewhere in the building
the Crown was obtaining a secretive discovery of the evidence of a
witness, with another judge of the same court presiding over that hearing. The
result is disturbing; the court appears to be “taking sides” by actively and
secretly assisting the Crown’s case in an ongoing trial. This result
undermines public confidence in the judiciary and it violates the judiciary’s
independence and impartiality.
143
The hearing judge, Holmes J., accepted in part the validity of this
complaint. She wrote:
I agree with [counsel for Malik] that if
s. 83.28 were applied so as to provide to the Crown a form of pre-trial
preparation or discovery that is unavailable to the defence, then it would
create an unfair advantage for the Crown that puts the accused person’s fair
trial rights seriously at risk. [Emphasis added.]
144
This conclusion must be read in light of my colleagues’ assertion at
para. 87, with which I agree, that “once legislation invokes the aid of the
judiciary, we must remain vigilant to ensure that the integrity of its role is
not compromised or diluted”. I would add that it is not the proper role of the
s. 83.28 judge to become an extra player in an ongoing trial in another
judge’s courtroom, especially where the intervention is not disclosed to the
trial judge. The connection between the Air India trial and the s. 83.28
hearing was plain and obvious and it was the responsibility of all concerned to
ensure that the rights of the accused before Josephson J. were not abused in a
concurrent and parallel s. 83.28 proceedings.
145
After the defence got its collective foot inside the s. 83.28
courtroom door and was able to make representations, Holmes J. allowed
counsel for Malik and Bagri to participate in the s. 83.28 hearing on
restricted terms:
(a) “If information is given in the hearing that
does not relate to the trial, counsel for the accused Malik and Bagri are to
leave the hearing.”
(b) “The accused Malik and Bagri will not be
present at the investigative hearing.”
(c) “There will be no disclosure, including to
them, of information or evidence obtained in the hearing except with the
consent of the agent for the Attorney General or by order of the court.”
(d) “The hearing will take place in-camera.”
In short, the
Crown was authorised to proceed with its discovery of the appellant before a
judge other than the trial judge without the two accused being present to
instruct their counsel, or to know what had transpired.
IV. The Defects in the
Section 83.28 Order Were Not Cured by Amendments Made by the Hearing Judge
146
The issue is not just whether the hearing judge greatly improved the
terms of the s. 83.28 order obtained ex parte by the Crown, which
she did, but whether the s. 83.28 hearing of the appellant should proceed
at all in the time frame sought by the Crown.
147
Holmes J. ordered the hearing to proceed because in her view the
“predominant purpose” of the s. 83.28 hearing was not the ongoing
trial but the ongoing investigation:
I conclude that the factual record supports the Crown’s position that
the proposed hearing is predominantly for the purpose of furthering the Air
India investigation as a whole, although it will undoubtedly have the
incidental effect of providing the Crown with an opportunity for preparation or
discovery in relation to the continuing trial.
My colleagues
Iacobucci and Arbour JJ. do not agree with the hearing judge’s “predominant
purpose” test, but would still defer to the hearing judge’s conclusion on the
theory that she must have meant something other than what she said. They write
(at para. 99):
Although the hearing judge expressed her conclusion in terms of a
predominant purpose for the investigative hearing, in looking at her findings
we are satisfied that she was using that expression to mean improper purpose or
with an oblique motive.
My colleagues
thereby substitute for the hearing judge’s essentially fact based test (predominant
purpose) an essentially law based test (improper purpose).
148
Even accepting that an “improper purpose” standard was applied by the
hearing judge (although nowhere referred to), this begs the question of whether
it is “proper” for a s. 83.28 hearing to proceed when there are twin purposes,
one of which is for use as witness discovery in an ongoing criminal trial. The
Crown argues that this Court should defer to the decision of the hearing judge
on that point, citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002
SCC 33. In my view this reliance is misplaced once the test of “predominant
purpose” is replaced by a test of “improper purpose”. Far from being an issue
of fact, the propriety of the relationship between investigations under s.
83.28 and an ongoing related criminal trial is a question of important
precedential value. A determination on the issue by this Court requires an
examination of how to reconcile the Crown’s dual role in investigations under
s. 83.28 on the one hand and as “minister of justice” in the criminal
trial process on the other. This issue engages the “law making role” of this
Court. I agree that the propriety of the resort to s. 83.28 is a
better test than “predominant purpose”, but I do not agree with the submission
that we should defer to the hearing judge’s conclusion on this point (if indeed
it can be said she reached any such conclusion, given that she thought she was
applying a different test).
149
It is clear on the facts that one of the purposes of the s. 83.28
hearing in this case was to discover the evidence of the appellant in relation
to the Air India trial. At this point it is convenient to recall the Crown’s
submissions to the hearing judge about the admitted linkages between the
s. 83.28 hearing and the Air India trial. (In fairness to Dohm A.C.J.,
these matters did not emerge until after he had made the ex parte
order.) Firstly, in addressing the impact of the delay associated with the
constitutional challenge to s. 83.28, Crown counsel advised Holmes J. with
respect to the Air India trial that
the Crown will not be calling [the appellant] as had been contemplated
in the early part of September.
The
explanation for this delay was that the Crown wanted the s. 83.28
transcript available when the appellant climbed into the witness box. To make
this purpose clear, Crown counsel added:
. . . obviously the Crown is anxious to have this [s. 83.28]
investigative hearing take place before the conclusion of the Crown’s case in R.
v. Malik and Bagri. That is of critical significance to — or of great
significance to the Crown’s position and the Crown’s decision whether or not
it will call [the appellant] as a witness at the trial. [Emphasis added.]
150
In other words, the s. 83.28 evidence was required for the purpose
of determining an important component of the Crown’s trial strategy in the Air
India case, at least in relation to the use (or non-use) of the appellant as a
Crown witness.
151
As recently as its factum filed with this Court, the Crown proposed a
timetable under which the appellant would testify at the Air India trial on
November 3, 2003 but not before the s. 83.28 hearing then scheduled
by the Crown for October 26-27, 2003.
152
In short, there is no doubt at all on the record that the Crown intended
to use the s. 83.28 procedure at least in part for the purpose of a
pre-trial (or mid-trial) discovery of the appellant. It is not necessary for
present purposes to agree or disagree with the hearing judge’s assessment of
the predominant purpose. It is enough to note her recognition that one
of the purposes was pre-trial (or mid-trial) discovery, and to ask whether that
purpose was improper.
153
The hearing judge was alive to the problem. She expressed a caveat:
. . . if the conduct of the investigation, including through an
investigative hearing ordered under s. 83.28, causes a breach of [Malik
and Bagri’s] Charter rights, they may apply to the [Air India] trial
judge for a remedy.
154
The problem, of course, is that at the stage it reaches the trial judge,
the Crown will already have had its “mid-trial” discovery. It will have used
that discovery to decide whether or not to call the appellant. While the trial
judge may restrict the use of the transcript at trial in some respects, the
Crown would have obtained in advance the information that it truly wants,
namely the compelled disclosure of what the appellant is likely to say. Such a
preview is a significant advantage. An unpredictable witness who says
unexpected things in the witness box might not just disappoint the Crown’s
desire to advance the prosecution, such a witness could also say things that
might do serious damage to the Crown’s case. That, presumably, is why the
Crown was anxious to delay the appellant’s appearance at the Air India trial
until after the s. 83.28 hearing had tied the appellant to a particular
version of events.
155
I fully recognize the onerous and difficult responsibilities faced by
Crown counsel in the Air India trial. Nevertheless, in the s. 83.28
procedure, as my colleagues emphasize, “the legislature intended that the Crown
would conduct itself according to its proper role as an officer of the court
and its duty of impartiality in the public interest” (para. 95). It is
sometimes not an easy matter for the Crown to accommodate its duty to act
impartially in the public interest and its role as advocate in an accusatorial
adversarial criminal prosecution. Here, in my view, Crown counsel is not
engaged in a detached investigative role, but seeks to bootstrap its case in
the Air India trial by resort to s. 83.28 as a mid-trial discovery
procedure. The issue is not one of high principle but trial tactics. Whether
resort to such tactics is proper or improper is one of the questions of law to
be settled by this Court.
156
If the Crown’s dominant concern were truly to press ahead with an
“ongoing investigation”, it could have called the appellant to testify before
Josephson J. at any time after the Air India trial started on April 28, 2003,
by special arrangement or otherwise. This would have freed the s. 83.28
hearing from any constraints posed by the trial of Malik and Bagri.
157
In any event, I believe my colleagues’ “improper purpose” test is too
narrow. The Court’s concern is not exhausted by whether there has been shown
bad faith or “oblique motive” on the part of the Crown prosecutor. The Court
must act on a broader basis to protect the public interest in a “fair and just
trial process and the proper administration of justice”: R. v. Scott,
[1990] 3 S.C.R. 979, at p. 1007. What is important is not only the Crown’s purpose
but, as much or more so in this case, the effect of the
s. 83.28 order on the ongoing Air India trial. It is significant that a
tactical split has developed between Bagri, who would now like his counsel to
examine the appellant in the s. 83.28 hearing, and Malik, who opposes it.
If the prejudicial effects of the s. 83.28 proceeding on the fair trial
rights of Malik or Bagri or either of them can be eliminated by delaying the
s. 83.28 hearing until after appellant testifies at the Air India trial,
then, in my opinion, the s. 83.28 hearing should be delayed.
158
There might be exigent circumstances in another case where such a tilt
in the playing field could be justified, perhaps in the face of an apprehended
future terrorist act for example. That is not this case.
V. Should the Appellant Be Defeated by the
Ruling in Housen v. Nikolaisen?
159
The Crown relies on Housen v. Nikolaisen, supra, for the
proposition that this Court should defer to the decision of the hearing judge
to allow the s. 83.28 hearing to proceed.
160
While the hearing judge found as a “fact” that the Air India
investigation was the “predominant purpose”, the link to the Air India trial
was plain and obvious and acknowledged by the Crown. My colleagues rightly
reject the “predominant purpose” test. The question at this point, therefore,
is whether the Crown’s purpose insofar as it related to the Air India trial was
“improper”. That is not an issue of fact. It is a matter of opinion.
161
In Housen v. Nikolaisen, Iacobucci and Major JJ. pointed out at
para. 36 that
[m]atters of mixed fact and law lie along a spectrum. Where, for
instance, an error with respect to a finding of negligence can be attributed to
the application of an incorrect standard, a failure to consider a required
element of a legal test, or similar error in principle, such an error can be
characterized as an error of law, subject to a standard of correctness.
162
A finding of improper purpose, like a finding of negligence, is an issue
of mixed fact and law. Further, a finding of impropriety lies at the “legal”
end of the spectrum because it is the product of applying a legal standard to
the facts established in evidence before the hearing judge. When we say
something is improper we are implicitly, if not explicitly, doing so by
reference to a standard of propriety. That is a legal issue.
163
It is also, in this case, an important issue of legal practice. This
appeal does not come to us as a general constitutional reference brought by the
government to determine the validity of s. 83.28, although that is an
important element of what we have to deal with. The appellant brings the case
here not to make new law but to obtain practical relief.
VI. The Result Was an Abuse of Process
164
The inherent power of a court to stay abusive proceedings has been
discussed in a number of decisions including R. v. Jewitt, [1985] 2
S.C.R. 128; R. v. Power, [1994] 1 S.C.R. 601; R. v. O’Connor,
[1995] 4 S.C.R. 411; and Canada (Minister of Citizenship and Immigration) v.
Tobiass, [1997] 3 S.C.R. 391.
165
In those cases, the Court set the bar to obtain a stay very high because
what was sought was an end to a prosecution. What is sought here is in the
nature of a flexible common law remedy available to the courts to protect the
integrity of their own processes. A temporary stay in this case would have
required nothing more than a scheduling change.
166
There is nothing in the material to suggest that postponement of the
s. 83.28 hearing until after the appellant had testified would have
prejudiced any “ongoing investigation” into other aspects of the Air India
disaster. That investigation has been “ongoing” for almost 20 years.
167
The Crown was not entitled to a mid-trial examination for discovery of
an uncooperative witness according to the ordinary rules of criminal procedure
and it should have been stopped. This brings us back to the point of my
commencement. The courts should treat with healthy scepticism a government
claim that the war against terrorism, important as it is, should trump the
normal processes of the law. Situations may arise where that becomes
necessary, but this is not one of those cases. At a minimum, alternatives to
“trumping” should be explored. Here the interests of the Air India
investigation could reasonably be accommodated to the exigencies of the Air
India trial by a scheduling change. In these circumstances, in my respectful
opinion, the hearing judge erred in giving the Crown the green light to
proceed.
VII. Disposition
168
I would therefore allow the appeal, affirm the constitutional validity
of s. 83.28 of the Criminal Code when correctly interpreted and
properly applied, but I would have entered a stay against the s. 83.28
hearing in this proceeding until after the appellant had testified at the trial
of Malik and Bagri, or the Crown otherwise had indicated that the appellant
would not be called as a prosecution witness.
English version of the reasons of LeBel and Fish JJ. delivered by
169
LeBel J. (dissenting) — I
agree with Binnie J. that the appeal should be allowed because of the
abuse of process by the Crown and would reach the same conclusion as him on
that issue. However, with respect for the contrary view, I cannot agree with
my colleagues Iacobucci and Arbour JJ. on the issue of judicial
independence. In my opinion, s. 83.28 of the Criminal Code,
R.S.C. 1985, c. C‑46 (“Cr. C.”), compromises judicial
independence and should, for this reason, be declared unconstitutional. Due to
the manner in which this provision structures relations between the judiciary,
the investigative arm of the police and the Crown, it will inevitably lead to
the abuses and irregularities described so eloquently by my colleague
Binnie J.
170
As noted by Iacobucci and Arbour JJ., the principle of judicial
independence has a variety of sources. Judicial independence is guaranteed by
s. 11 (d) of the Canadian Charter of Rights and Freedoms and
the Preamble to and ss. 96 to 100 of the Constitution Act, 1867 , and
it plays an essential role in the proper functioning of Canada’s constitutional
democracy (Mackin v. New Brunswick (Minister of Finance), [2002]
1 S.C.R. 405, 2002 SCC 13, at para. 34). This
principle, which serves to maintain public confidence in the court system and
the rule of law, was established to prevent interference by the executive and
legislative branches in the exercise of judicial powers (Reference re
Remuneration of Judges of the Provincial Court of Prince Edward Island,
[1997] 3 S.C.R. 3 (“Reference re Judges of the Provincial Court”),
at para. 10; Valente v. The Queen, [1985]
2 S.C.R. 673; Beauregard v. Canada, [1986]
2 S.C.R. 56). The judiciary must remain completely independent of
the other branches of government in the performance of its functions (Mackin,
supra, at para. 35).
171
The courts have identified three fundamental characteristics of judicial
independence: security of tenure, financial security, and administrative
independence. Security of tenure means that a judge can be removed from office
only for serious and very specific reasons following an independent review
process that affords the judge the opportunity to be heard and to defend him-
or herself. Financial security safeguards judges’ salaries or other
remuneration and pensions. Administrative independence, which is not to be
confused with institutional independence, a point I will discuss below, gives
courts necessary power over matters of administration bearing directly on the
exercise of their functions (Valente, supra, at pp. 694‑712).
172
Judicial independence also has two dimensions, individual independence
and institutional independence, which are distinct from its core
characteristics (Reference re Judges of the Provincial Court, supra,
at para. 119). On the one hand, individual independence attaches to the
individual judge. Judges must be able to discharge their judicial functions
without outside interference. Thus, this dimension of independence is
concerned with the personal attributes of a judge, such as security of tenure.
On the other hand, institutional independence attaches to courts as
institutions. Courts must be independent, and appear to be independent, of the
legislative and executive branches of government. The institutional dimension of
judicial independence thus ensures the separation of powers (Reference re
Judges of the Provincial Court, supra, at paras. 118‑25; Mackin,
supra, at para. 39; Ell v. Alberta, [2003]
1 S.C.R. 857, 2003 SCC 35, at paras. 21‑23).
173
This Court has often stressed the need to safeguard the institutional
dimension of judicial independence so that the courts can continue to fulfill
their role as guardians of the Constitution (Reference re Judges of the
Provincial Court, supra, at para. 123; Mackin, supra,
at para. 39). If the courts are to retain the ability to provide
individuals with effective protection against unwarranted deprivations of their
rights and freedoms by the executive and legislative branches, they must
necessarily be independent of those branches (Ell, supra, at
para. 22).
174
In the case before us, it is important, indeed essential, that these two
dimensions of judicial independence not be confused. Thus, although a judge
may be independent in fact and act with the utmost impartiality, judicial
independence will not exist if the court of which he or she is a member is not
independent of the other branches of government on an institutional level. To
determine whether judicial independence has been maintained in a specific case,
both dimensions of judicial independence therefore have to be reviewed.
175
As noted by Iacobucci and Arbour JJ., the principle of judicial
independence is essential to the preservation of the fundamental normative
order of a society founded on the principles of constitutionalism and the rule
of law. Judicial independence effectively ensures the maintenance of public
confidence in the administration of justice, which is itself an essential
precondition for respect for and acceptance of the justice system and the rule
of law. Thus, public confidence guarantees the effectiveness of our justice
system, while at the same time putting the principle of the rule of law into
practice (Valente, supra, at p. 689; Therrien (Re ),
[2001] 2 S.C.R. 3, 2001 SCC 35, at para. 110; Mackin,
supra, at paras. 34‑38). The maintenance of public
confidence in the administration of justice is therefore central to concerns
relating to judicial independence.
176
To determine whether a measure compromises judicial independence, it
must be asked whether the judicial institution, meaning, on the one hand, the
individual judges and, on the other hand, collectively, the institution per
se, is perceived by the public to be independent:
Confidence in our system of justice requires a healthy perception of
judicial independence to be maintained amongst the citizenry. Without the
perception of independence, the judiciary is unable to “claim any legitimacy or
command the respect and acceptance that are essential to it”: see Mackin
v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405,
2002 SCC 13, at para. 38, per Gonthier J. The
principle requires the judiciary to be independent both in fact and perception.
[Emphasis added.]
(Ell, supra, at para. 23; Valente, supra,
at p. 689)
The
appropriate test for this purpose is whether a reasonable person who is
informed of the relevant statutory provisions would conclude, after viewing the
matter realistically and practically, that the judiciary is independent (Reference
re Judges of the Provincial Court, supra, at para. 113; Mackin,
supra, at para. 38). It is important to note, however, that
“reasonable person” does not for this purpose mean an experienced legal
professional who understands the intricacies of legal issues based on subtle
distinctions of which lay persons would generally be unaware. In short, the
objective test of the reasonable person should serve to determine whether the
public has a positive perception of judicial independence.
177
When analysed from this perspective, s. 83.28 Cr. C. compromises
the institutional dimension of judicial independence. To conclude otherwise,
it would be necessary to ignore the fundamental distinction between the two
dimensions of judicial independence when applying the law to the facts of this
case. Although they do discuss the institutional dimension of judicial
independence, Iacobucci and Arbour JJ. seem to have inferred the existence
of judicial independence from the individual independence of the judge acting
pursuant to s. 83.28 without considering whether the institutional
dimension was in fact protected. In my colleagues’ view, if a judge conducting
an investigation pursuant to this provision fails, in exercising his or her
discretion, to uphold the rights and freedoms of the person being examined,
then, and only then, could it be concluded, after the fact, that judicial
independence had been compromised (para. 88).
178
Holmes J. concluded that s. 83.28 Cr. C. does not
compromise judicial independence, because the judge conducting the
investigation will not be the same as the one who presides at the trial, and
because the two proceedings will very rarely take place in the same
jurisdiction. This reasoning overlooks the institutional dimension of judicial
independence and fails to consider the impact of the statutory provisions in
question on that dimension and of the perception a reasonable, well‑informed
person would have with respect thereto. This analysis considers only the actions
of individual judges and their personal impartiality in the conduct of the
investigation process.
179
Without institutional independence or, in other words, without the
appearance of a clear separation of powers between the judicial, executive and
legislative branches, judicial independence cannot be said to exist. In my
view, preserving the appearance of a separation of powers is a necessary
condition for concluding that judicial independence exists.
180
Section 83.28 Cr. C. requires judges to preside over
police investigations; as such investigations are the responsibility of the
executive branch, this cannot but leave a reasonable person with the impression
that judges have become allies of the executive branch. This perception that
the judicial and executive branches are allied when conducting an investigation
pursuant to this provision results, in my view, from the difficulty that a
judge presiding over such a process will have protecting the rights and
freedoms of the person being examined, the overly broad discretionary powers
wielded by the judge, the legislative objectives behind the provision and the
very nature of these proceedings, which may be held in camera.
181
Iacobucci and Arbour JJ. found that a judge exercises a judicial
function when carrying out such an examination, since ss. 83.28(7) and
83.28(9) Cr. C. provide that he or she has the power to vary the
terms and conditions of the order and to rule on objections relating to a
refusal to answer a question. My colleagues thus conclude that the judge’s
role here is to protect the interests of the person being examined and thereby
act as a shield against unwarranted deprivations thereof by the executive
branch. I do not agree. Even if the impugned statutory provisions are
interpreted as my colleagues propose, the judge will not have the necessary
means to ensure that the rights and freedoms of the person being examined are
protected.
182
First, I question how effective the judge’s power to rule on objections
to evidence in the course of these investigations will actually be. I am
sceptical about the view that the rules of evidence set out in the Canada
Evidence Act, R.S.C. 1985, c. C‑5 , such as ss. 8 to
12 , 19 to 36 and 42 , and the common law rules can govern the conduct of such an
examination. These rules were created, first and foremost, to govern the
building of a case to prove an accused’s guilt. They are ill suited to the
gathering of information relating to the commission of an offence or to fears
that one may have been committed.
183
Next, even if I agreed with Iacobucci and Arbour JJ. as to the
application of these rules of evidence, the rules would not create a framework
allowing judges to effectively protect the rights and freedoms of the person
being examined. Indeed, as my colleagues noted, the application of these rules
of evidence is not mandatory. Moreover, some of the rules will not apply, as
they are incompatible with the type of investigation provided for in
s. 83.28 . This is true of the rule against hearsay evidence. Finally,
although the rules relating to the relevance of questions asked and to their
probative value could be useful in theory, the judge will not be in a position
to apply them. The judge presiding over the examination will undoubtedly not
have access to the full record of the police investigation. It would therefore
be easy for a Crown prosecutor to contend that a question is relevant or that
its probative value outweighs its prejudicial effects. Without knowledge of
the investigation’s sources, framework and objectives, it will be virtually
impossible for the judge to rule on such objections. Thus, the power to limit
the scope of questions put to the person being examined could prove illusory.
Even based on my colleagues’ interpretation, the impugned provisions do not
give the judge the means to effectively protect the rights and freedoms of the
person being examined.
184
Moreover, if it were possible to conclude that the judge could
effectively rule on certain objections, the fluidity and vagueness of the
investigation procedure would still give too much discretion to the judge.
Without a specific rule that can be applied uniformly to all cases, judges will
have to rely on their own discretion, if not their own subjective preferences,
when deciding which solution to apply to a given objection. To my mind, a
judge’s individual perception of his or her role will necessarily affect the
nature and conduct of the examination. Thus, some judges will be more inclined
to protect the fundamental rights of the person being examined, while others,
who are more conservative, will adopt a contrary approach.
185
As the judiciary is unable to defend the fundamental rights and freedoms
of a person being examined under s. 83.28 Cr. C. against
interference from the executive branch, the judiciary’s role is then, on its
face, no different from that of the executive branch. In my view, a
reasonable, well‑informed person could conclude that the purpose of
having a judge at such an investigation is to help the executive branch compel
the witness to answer questions. The judiciary’s symbolic and legal weight
will assist the police in their investigations. The judiciary will then no
longer be playing the role of an independent arbiter.
186
This perception is also justified by the legislative objectives of the Anti‑terrorism
Act, S.C. 2001, c. 41 , and s. 83.28 Cr. C. As
Iacobucci and Arbour JJ. have stated, Parliament’s intent in enacting this
legislation was to prevent and punish acts of terrorism. In enacting
s. 83.28 , Parliament gave increased powers to the executive branch to
enable it to investigate such acts effectively. In light of these legislative
objectives, a reasonable person might conclude that Parliament intended to use
the judiciary to make the prevention and suppression of acts of terrorism more
effective by sacrificing some of the judiciary’s institutional independence.
Professor Paciocco has given a clear description of how the judiciary’s
role in investigations conducted pursuant to s. 83.28 might be perceived
by the public:
The government is clearly counting on the oath of the witness and the
threat of contempt of court to enforce this system, and it is using the power
of the judicial office, not to obtain a legal ruling or to resolve a question
of fact, but as a form of coercion to compel information in the advancement of
the executive, investigative function.
(D. M. Paciocco, “Constitutional Casualties of
September 11: Limiting the Legacy of the Anti‑Terrorism
Act ” (2002), 16 S.C.L.R. (2d) 185, at p. 233)
187
In light of the procedural framework established by s. 83.28 Cr. C.,
it would be reasonable for the public to perceive the judicial and executive
branches as allies. This public perception is heightened by the fact that the
judge’s duties under s. 83.28 are unlike any of the duties traditionally
discharged by the judiciary.
188
The judge’s powers under s. 83.28 Cr. C. differ from
those wielded by judges under other Criminal Code provisions, such as
ss. 184.2 (authorizations to intercept private communications),
487 (search warrants) and 487.05 (warrants relating to forensic DNA
analysis). Those provisions require the judge to render an ad hoc decision
authorizing the use of specific investigative techniques. The judge is
involved in the conduct of the investigations only indirectly, via the
authorization that is granted. In contrast, a judge acting under s. 83.28
is not limited to making an order authorizing the executive branch to conduct
an examination and may even be required to preside over the examination. As I
have already mentioned, s. 83.28 does not give judges the tools they need
to effectively play their role as protector of the fundamental rights of the
person being examined. Instead, the judge takes part in and facilitates the
police investigation without having real power to act as a neutral arbiter.
189
In other cases, under provisions such as s. 231.4 of the Income
Tax Act, R.S.C. 1985, c. 1 (5th Supp .), and s. 11 of the Competition
Act, R.S.C. 1985, c. C‑34 , a judge may have a role to play
at a specific point in the investigation process, in that he or she may be
asked to make an order, such as an order to attend. However, the judge does
not preside over the investigation. Thus, the judge does not take part in the
exercise of a power of the executive branch. A judge who presides over an
examination under s. 83.28 Cr. C., on the other hand, does take
part in the exercise of a power of the executive branch and has no way to
counterbalance the exercise thereof. In the pursuit of the undeniably
important objective of suppressing and preventing terrorism, the distinction
between the judicial and executive branches has been blurred.
190
The public’s perception that the judicial and the executive branches do
not act separately in an investigation under s. 83.28 Cr. C. will
be heightened when the investigation is held in camera. In such a case,
a reasonable, well‑informed person would be justified in questioning the
role the judge is really playing in the investigation. The judge is therefore
at risk of being perceived as a true ally of the executive branch in a secret
investigation that is not subject to scrutiny.
191
In short, I do not believe it is possible to uphold the constitutional
validity of the legislation in question by isolating individual cases in which
judges will act unconstitutionally. When faced with the problems raised by
s. 83.28 Cr. C., it will not suffice to state that judicial
independence will be compromised only in those specific cases, as such a
conclusion would be based on an analysis restricted to the individual dimension
of judicial independence. For the reasons I have stated above, I believe that
s. 83.28 compromises the institutional dimension of judicial
independence. In my view, the public will perceive the judicial and executive
branches as allies rather than as separate branches of government. The
implementation of s. 83.28 , which is the source of this perception that
there is no separation of powers, could therefore lead to a loss of public
confidence in Canada’s justice system. The tension and fears resulting from
the rise in terrorist activity do not justify such an alliance. It is
important that the criminal law be enforced firmly and that the necessary
investigative and punitive measures be taken, but this must be done in
accordance with the fundamental values of our political system. The
preservation of our courts’ institutional independence belongs to those
fundamental values.
192
Therefore, it is my view that s. 83.28 Cr. C. compromises
the judicial independence guaranteed by the Preamble to the Constitution
Act, 1867 and must be declared unconstitutional. For this reason, I would
have allowed the appeal and found, as did Binnie J., that there was an
abuse of process.
APPENDIX
Relevant
Constitutional and Legislative Provisions
A. Constitutional
Provisions
Canadian
Charter of Rights and Freedoms
1. The Canadian Charter of Rights and
Freedoms guarantees the rights and freedoms set out in it subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.
7. 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.
11. Any person charged with an offence has
the right
.
. .
(d) to be presumed innocent until proven guilty according to law
in a fair and public hearing by an independent and impartial tribunal;
B. Legislative
Provisions
Criminal
Code, R.S.C. 1985, c. C-46 , as amended by S.C. 2001, c. 41
interpretation
2. In this Act
.
. .
“terrorism offence” means
(a) an offence under any of sections 83.02 to 83.04 or 83.18 to
83.23,
(b) an indictable offence under this or any other Act of
Parliament committed for the benefit of, at the direction of or in association
with a terrorist group,
(c) an indictable offence under this or any other Act of
Parliament where the act or omission constituting the offence also constitutes
a terrorist activity, or
(d) a conspiracy or an attempt to commit, or being an accessory
after the fact in relation to, or any counselling in relation to, an offence
referred to in paragraph (a), (b) or (c);
“terrorist activity” has the same meaning as in subsection 83.01(1);
“terrorist group” has the same meaning as in subsection 83.01(1);
investigative hearing
83.28 (1) In this section and section 83.29,
“judge” means a provincial court judge or a judge of a superior court of
criminal jurisdiction.
(2) Subject to subsection (3), a peace officer may,
for the purposes of an investigation of a terrorism offence, apply ex parte
to a judge for an order for the gathering of information.
(3) A peace officer may make an application under
subsection (2) only if the prior consent of the Attorney General was obtained.
(4) A judge to whom an application is made under
subsection (2) may make an order for the gathering of information if the judge
is satisfied that the consent of the Attorney General was obtained as required
by subsection (3) and
(a) that there are reasonable grounds to believe that
(i) a terrorism offence has been committed, and
(ii) information concerning the offence, or information that may reveal
the whereabouts of a person suspected by the peace officer of having committed
the offence, is likely to be obtained as a result of the order; or
(b) that
(i) there are reasonable grounds to believe that a terrorism offence
will be committed,
(ii) there are reasonable grounds to believe that a person has direct
and material information that relates to a terrorism offence referred to in
subparagraph (i), or that may reveal the whereabouts of an individual who the
peace officer suspects may commit a terrorism offence referred to in that
subparagraph, and
(iii) reasonable attempts have been made to obtain the information
referred to in subparagraph (ii) from the person referred to in that
subparagraph.
(5) An order made under subsection (4) may
(a) order the examination, on oath or not, of a person named in
the order;
(b) order the person to attend at the place fixed by the judge,
or by the judge designated under paragraph (d), as the case may be, for
the examination and to remain in attendance until excused by the presiding
judge;
(c) order the person to bring to the examination any thing in
their possession or control, and produce it to the presiding judge;
(d) designate another judge as the judge before whom the
examination is to take place; and
(e) include any other terms or conditions that the judge considers
desirable, including terms or conditions for the protection of the interests of
the person named in the order and of third parties or for the protection of any
ongoing investigation.
(6) An order made under subsection (4) may be
executed anywhere in Canada.
(7) The judge who made the order under subsection
(4), or another judge of the same court, may vary its terms and conditions.
(8) A person named in an order made under subsection
(4) shall answer questions put to the person by the Attorney General or the
Attorney General’s agent, and shall produce to the presiding judge things that
the person was ordered to bring, but may refuse if answering a question or
producing a thing would disclose information that is protected by any law
relating to non‑disclosure of information or to privilege.
(9) The presiding judge shall rule on any objection
or other issue relating to a refusal to answer a question or to produce a
thing.
(10) No person shall be excused from answering a
question or producing a thing under subsection (8) on the ground that the
answer or thing may tend to incriminate the person or subject the person to any
proceeding or penalty, but
(a) no answer given or thing produced under subsection (8) shall
be used or received against the person in any criminal proceedings against that
person, other than a prosecution under section 132 or 136; and
(b) no evidence derived from the evidence obtained from the
person shall be used or received against the person in any criminal proceedings
against that person, other than a prosecution under section 132 or 136.
(11) A person has the right to retain and instruct
counsel at any stage of the proceedings.
(12) The presiding judge, if satisfied that any
thing produced during the course of the examination will likely be relevant to
the investigation of any terrorism offence, shall order that the thing be given
into the custody of the peace officer or someone acting on the peace officer’s
behalf.
Appeal dismissed, Binnie,
LeBel and Fish JJ. dissenting.
Solicitor for the appelant the “Named Person”: Howard Rubin, North
Vancouver.
Solicitor for the respondent the Attorney General of Canada:
Attorney General of Canada, Ottawa.
Solicitor for the respondent the Attorney General of British
Columbia: Attorney General of British Columbia, Vancouver.
Solicitors for the respondent Ripudaman Singh Malik: Smart &
Williams, Vancouver.
Solicitors for the respondent Ajaib Singh Bagri: Sack Goldblatt
Mitchell, Toronto.
Solicitor for the intervener the Attorney General of Ontario:
Ministry of the Attorney General, Toronto.
Solicitors for the intervener the Canadian Civil Liberties
Association: Torys, Toronto.
Solicitors for the intervener the Federation of Law Societies of
Canada: Henein & Associates, Toronto.
Solicitor for the intervener the Canadian Bar Association: Gregory
P. Delbigio, Vancouver.
Solicitors for the interveners The Vancouver Sun, The National Post
and Global Television Network Inc.: Farris, Vaughan, Wills & Murphy,
Vancouver.