SUPREME
COURT OF CANADA
Between:
Her
Majesty The Queen
Appellant
and
Fahim
Ahmad, Zakaria Amara, Asad Ansari, Shareef Adelhaleem,
Mohammed
Dirie, Jahmaal James, Amin Mohamed Durrani,
Steven
Vikash Chand, Saad Khalid and Saad Gaya
Respondents
-
and -
Attorney
General of Ontario and
Canadian
Civil Liberties Association
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella,
Charron, Rothstein and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 81)
|
The Court
|
R. v. Ahmad, 2011
SCC 6, [2011] 1 S.C.R. 110
Her Majesty The Queen Appellant
v.
Fahim
Ahmad, Zakaria Amara, Asad Ansari,
Shareef
Abdelhaleem, Mohammed Dirie,
Jahmaal
James, Amin Mohamed Durrani,
Steven
Vikash Chand, Saad Khalid and Saad Gaya Respondents
and
Attorney
General of Ontario and
Canadian Civil Liberties Association Interveners
Indexed as: R.
v. Ahmad
2011 SCC 6
File No.: 33066.
2010: March 18; 2011: February 10.
Present: McLachlin C.J.
and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and
Cromwell JJ.
on appeal from
the ontario superior court of justice
Constitutional law — Validity of legislation — Section 38
scheme of Canada Evidence Act granting jurisdiction to Federal Court to
determine questions of disclosure of information pertaining to international
relations, national
defence or national security —
Whether Parliament’s decision to limit superior courts from determining those
questions impermissibly invades core jurisdiction of superior courts — Canada
Evidence Act, R.S.C. 1985, c. C‑5, ss. 38 to 38.16 —
Constitution Act, 1867, s. 96 .
Constitutional law — Charter of Rights —
Right to life, liberty and security of the person — Section 38 scheme of
Canada Evidence Act granting jurisdiction to Federal Court to determine
questions of disclosure of information pertaining to international relations,
national defence or national security — Whether attribution of jurisdiction to Federal Court impedes ability of superior court
judges to ensure conduct of fair trial — Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 38 to 38.16
— Canadian Charter of Rights and Freedoms,
s. 7 .
In June 2006, 18 people were arrested on the suspicion that they
were plotting terrorist attacks. Ten of the eighteen people were scheduled to
be tried before Dawson J. of the Ontario Superior Court of Justice. In March and June 2008, the Crown notified the
Attorney General of Canada that the Superior Court proceedings might disclose potentially injurious or sensitive government
information. The Attorney General brought the disclosure issue before the
Federal Court pursuant to the s. 38 scheme of the Canada Evidence Act . Noël J. of the Federal Court ordered that the accused be designated as respondents
in proceedings commenced by the Attorney General, that a hearing be held, and
that notice be given to the Superior Court judge. The accused then brought an
application in the Superior Court to challenge the constitutionality of the
s. 38 scheme. The Federal Court halted its proceedings pending the
resolution of that challenge. The Superior Court judge held that the scheme
was unconstitutional as it violated s. 96 of the Constitution Act, 1867
and s. 7 of the Charter . He struck down the legislation to the
extent that it conferred exclusive jurisdiction on the Federal Court and
asserted his own responsibility, as the Superior Court judge conducting the
criminal trial, to decide any national security privilege issues that might
arise in the course of the proceedings.
Held:
The appeal should be allowed. Sections 38 to 38.16 of the Canada
Evidence Act are constitutional.
This appeal concerns the
potential conflict between two fundamental obligations of the state
under our system of government: first, to protect society by preventing the
disclosure of information that could pose a threat to international relations,
national defence or national security; second, to
prosecute individuals accused of offences against our laws. In the s. 38
scheme, Parliament has recognized that on occasion it may become necessary to
choose between these objectives, but has laid out an elaborate framework to
attempt, where possible, to reconcile them. Where the conflict is
irreconcilable, an unfair trial cannot be tolerated. Under the rule of law,
the right of an accused person to make full answer and defence may not be
compromised. The s. 38 scheme preserves the full authority and independence
of the judge presiding over the criminal trial to do justice between the
parties, including, where he or she deems it necessary, to enter a stay of
proceedings. While the statutory scheme of s. 38 , particularly its
division of responsibilities between the Federal Court and the criminal courts
of the provinces, raises numerous practical and legal difficulties, properly
understood and applied, it is constitutionally valid. The test in Re
Residential Tenancies Act, 1979 requires as a first step that an analysis
be conducted as to whether the power conferred on a tribunal other than a
s. 96 court broadly conforms to a power or jurisdiction exercised by a
superior, district or county court at the time of Confederation. It is true, of course, that the judicature provisions of
the Constitution Act, 1867 create substantive constitutional
limitations on Parliament’s ability to confer powers on courts or tribunals
other than those established under s. 96 . Although the Court has not
fully explored the interaction of ss. 96 and 101 , it accepts for present
purposes (without deciding) that the constitutional analysis proceeds as the
respondents contend.
In
1867, Crown claims to refuse disclosure of potentially injurious or sensitive
information were generally considered by superior courts in Canada to be a
matter of unreviewable executive prerogative. Given that the superior courts
did not exercise any such power of review at the time of Confederation, the
analysis under Re Residential Tenancies Act, 1979 ends at the first
question and there is no infringement of s. 96 under that test. Further,
while it is true that a superior court’s ability to adjudicate the
constitutional issues that come before it forms a part of its core
jurisdiction, the issue here is not properly characterized as the authority of
the superior court to protect the integrity of its process. Rather, the issue
relates to authority in relation to disclosure of material for which the
security exemption is claimed. Characterized in that way, the s. 38
scheme does not violate s. 96 of the Constitution Act, 1867 because
it does not impede a court’s power to remedy abuses of process. What is
essential for constitutional purposes is that the criminal courts retain the ability to ensure
that every person who comes before them as the subject of a criminal
prosecution receives a fair trial. What is recognized in both s. 38.14 of
the CEA and s. 24(1) of the Charter is that sometimes the
only way to avoid an unfair trial is to have no trial at all. Through s. 38.14
and the Charter , the criminal court trial judge possesses the means to
safeguard the accused’s fair trial rights. However, the stay of proceedings remedy in s. 38.14 is a
statutory remedy to be considered and applied in its own context. It should
not be limited by the non statutory “clearest of cases” test for a stay under
the Charter jurisprudence.
For
similar reasons, the challenge to the legislation under s. 7 of the Charter
also fails. The Federal Court judge’s sole concern under the scheme is the
protection of the public interest in sensitive or
potentially injurious information. If the Federal Court determines that
the disclosure of the information at issue would be injurious to international
relations or national defence or national security, then disclosure will only
be ordered by that court if in its view the public interest in disclosure
outweighs the public interest in non‑disclosure (ss. 38.06(1) and
(2) of the CEA). While the public certainly has an interest in the
effective administration of justice, the s. 38 scheme recognizes that an unfair trial is not an option. The trial judge
in this case was not deprived of the ability to adjudicate the Charter issues
that flowed from the non‑disclosure
order. While it is true that the legislation deprives trial judges of
the ability to order the disclosure or even their own inspection of
material that is withheld pursuant to the s. 38 scheme, they retain the
ability in the absence of such access to order whatever remedy pursuant to the Charter
and s. 38.14 is required to protect the accused’s right to a fair trial.
If the trial process resulting from the application of the s. 38 scheme
becomes unmanageable by virtue of excessive gaps between the hearing of the
evidence or such other impediments, such that the right of the accused to a
fair trial is compromised, the trial judge should not hesitate to use the broad
authority Parliament has conferred under s. 38.14 to put an end to the
prosecution.
Cases Cited
Applied:
Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; discussed:
Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; referred to: R. v.
Malik, 2005 BCSC 350 (CanLII); Charkaoui v. Canada (Citizenship and
Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Rizzo & Rizzo Shoes
Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Hamilton, 2005 SCC 47, [2005] 2
S.C.R. 432; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Jewitt, [1985] 2 S.C.R. 128; R.
v. Keyowski, [1988] 1 S.C.R. 657; R. v. O’Connor, [1995] 4 S.C.R.
411; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Labour Relations
Board of Saskatchewan v. The Queen, [1956] S.C.R. 82; Canada (Attorney
General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547, rev’d 2007 FCA 342,
370 N.R. 128; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389; R. v. La,
[1997] 2 S.C.R. 680; Reference re Amendments to the Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), [1989] 1 S.C.R. 238; Gugy v. Maguire (1863), 13 L.C.R. 33; Bradley
v. McIntosh (1884), 5 O.R. 227; R. v. Snider, [1954] S.C.R. 479; Carey
v. Ontario, [1986] 2 S.C.R. 637; Abou‑Elmaati v. Canada
(Attorney General), 2011 ONCA 95
(CanLII); R. v. Ribic,
2004 CanLII 7091.
Statutes and Regulations Cited
Anti‑terrorism Act, S.C. 2001,
c. 41 .
Canada Evidence Act, R.S.C.
1985, c. C‑5, ss. 38 to 38.16 , 39 .
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b), (d), 24(1) .
Canadian Security Intelligence Service
Act, R.S.C. 1985, c. C‑23 .
Constitution Act, 1867, ss. 96 , 101 .
Constitution Act, 1982, s. 52(1) .
Immigration and Refugee Protection Act, S.C. 2001, c. 27 .
Security of Information Act, R.S.C. 1985, c. O‑5 .
Authors Cited
Canada. Commission of Inquiry into the Investigation of
the Bombing of Air India Flight 182. Air India Flight
182: A Canadian Tragedy, vol. 3, The
Relationship Between Intelligence and Evidence and the Challenges of Terrorism
Prosecutions. Ottawa: The Commission, 2010.
Canada. Justice. The Anti‑terrorism
Act : Amendments to the Canada Evidence Act (CEA)
(online: http://www.justice.gc.ca/antiter/sheetfiche/ceap2-lpcp2-eng.asp).
Canada. Senate. Proceedings of the
Special Senate Committee on the Subject Matter of Bill C‑36, Issue No. 1, 1st Sess., 37th Parl., October 22, 2001,
pp. 63‑64.
Dawson, Eleanor. “The Federal Court and
the Clash of the Titans: Balancing Human Rights and National Security”,
Address at the University of Manitoba Faculty of Law, March 30, 2006.
Driedger, Elmer A. Construction of Statutes,
2nd ed. Toronto: Butterworths, 1983.
Linstead, Stephen G. “The Law of Crown Privilege in Canada and
Elsewhere — Part 1” (1968‑1969), 3 Ottawa L.
Rev. 79.
APPEAL
from a judgment of the Ontario Superior Court of Justice (Dawson J.) (2009), 257 C.C.C. (3d) 135, [2009] O.J. No. 6166 (QL), 2009 CarswellOnt 9311. Appeal
allowed.
Croft Michaelson and Nicholas E. Devlin, for the appellant.
John Norris
and Breese Davies, for the respondent Asad Ansari.
Rocco Galati, for the respondents Shareef Abdelhaleem and
Amin Mohamed Durrani.
Delmar Doucette, for the respondent Steven Vikash Chand.
Paul B. Slansky, for the respondent Saad Gaya.
Sarah T.
Kraicer and Josh Hunter, for the intervener the
Attorney General of Ontario.
Anil K.
Kapoor and Lindsay L. Daviau, for the intervener the
Canadian Civil Liberties Association.
No one
appeared for the respondents Fahim Ahmad, Zakaria Amara, Mohammed Dirie, Jahmaal James and Saad Khalid.
The following is the judgment delivered by
[1]
The Court ― This appeal concerns the potential conflict between two fundamental
obligations of the state under our system of government: first, to protect
society by preventing the disclosure of information that could pose a threat to
international relations, national defence, or national security; and second, to prosecute individuals accused of offences against our
laws. In s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5
(“CEA ”), Parliament has recognized that on occasion it may become
necessary to choose between these objectives, but has laid out an elaborate framework
to attempt, where possible, to reconcile them. At the heart of this appeal
lies the respondents’ challenge to the constitutional validity of this
provision. In their view, the scheme violates s. 96 of the Constitution
Act, 1867 and s. 7 of the Canadian Charter of Rights and Freedoms .
[2]
We acknowledge at the outset
that in some situations, the prosecution’s refusal to disclose relevant (if
sensitive or potentially injurious) information in the course of a criminal
trial may on the facts of a particular case prejudice the constitutional right
of every accused to “a fair and public hearing” and the separately guaranteed
right “to be tried within a reasonable time” (Charter , ss. 11 (d)
and (b), respectively). Where the conflict is irreconcilable, an unfair
trial cannot be tolerated. Under the rule of law, the right of an accused
person to make full answer and defence may not be compromised. However, s. 38,
as we interpret it, preserves the full authority and independence of the judge
presiding over the criminal trial to do justice between the parties, including,
where he or she deems it necessary, to enter a stay of proceedings.
[3]
In our view, for the reasons
that follow, s. 38 itself (the text of which is attached hereto in the Appendix)
provides enough flexibility to avoid the drastic result of a stay of
proceedings in all but the most intractable of cases, as recently demonstrated
in the Air India prosecution (R. v. Malik, 2005 BCSC 350
(CanLII)). While the statutory scheme of s. 38, particularly its division of
responsibilities between the Federal Court and the criminal courts of the
provinces, raises numerous practical and legal difficulties, we are satisfied
that s. 38, properly understood and applied, is constitutionally valid.
A. Overview
[4]
Parliament has allocated to judges of the Federal Court, on application, the responsibility to consider potentially injurious or sensitive
information in respect of which national security is claimed and to determine whether, and under what conditions,
it ought to be disclosed. Judges presiding at criminal trials cannot order
disclosure to an accused of the withheld material. Nor, under current
practices, are they generally given access to that material. And yet, both at
common law and under s. 38 itself, it is trial judges, not the judges of the
Federal Court, who are entrusted with the ultimate responsibility of protecting
the accused’s constitutional right to make full
answer and defence. We were not referred to any other jurisdiction
where this division of responsibility between different courts has been
established in relation to criminal proceedings.
[5]
Nevertheless, the question before us is not whether this jurisdictional bifurcation
is unusual or undesirable as a matter of policy or inefficient as a matter
of practice — it has been subject to
considerable criticism — but whether it passes constitutional muster. That
determination does not depend on whether bifurcation may in some instances lead
to delays and inefficiencies in the trial process. Nor does it depend on
whether a non-disclosure order will on occasion frustrate the prosecution of
serious crimes. Rather, the constitutional validity of the scheme established
by Parliament in s. 38 ultimately depends on whether it affords trial judges
adequate means to prevent an unfair trial.
[6]
Parliament has conferred on the Attorney General of
Canada in s. 38.03 the power to withhold (or not withhold) relevant information
from the criminal courts even where a Federal Court judge has ordered such
disclosure to be made. This is a drastic power which, for public policy
reasons, Parliament has seen fit to confer on the most senior law officer of
the Crown. At the same time, Parliament has
recognized in s. 38.14 that while the judge presiding over the criminal trial
is powerless to order production to himself or herself for review or
divulgation to the accused of the undisclosed relevant information, the criminal court, and the criminal court alone, has the
power to make any order considered necessary in order to protect the
accused’s right to a fair trial. This
provision applies to provincial and superior court judges alike. The remedies
that may be ordered include, but are not limited to, dismissal of specified
counts, a finding against any party on any issue to which the undisclosed
information relates, or a complete stay of
proceedings.
[7]
As
we stated in Charkaoui v. Canada (Citizenship and Immigration), 2007
SCC 9, [2007] 1 S.C.R. 350, the Court “has repeatedly recognized that
national security considerations can limit the extent of disclosure of
information to the affected individual” (para. 58). But we took care in Charkaoui
to stress as well the importance of the principle
of fundamental justice that “a person whose liberty is in jeopardy must be
given an opportunity to know the case to meet, and an opportunity to meet the
case” (para. 61). Charkaoui was an immigration case. In criminal cases, the court’s
vigilance to ensure fairness is all the more essential. Nevertheless, as we
interpret s. 38, the net effect is that state secrecy will be protected where
the Attorney General of Canada considers it vital to do so, but the result is
that the accused will, if denied the means to make a full answer and defence,
and if lesser measures will not suffice in the opinion of the presiding judge
to ensure a fair trial, walk free. While we stress this critical protection of
the accused’s fair trial rights, we also note that, notwithstanding serious
criticisms of the operation of these provisions, they permit considerable flexibility
as to how to reconcile the accused’s rights and the state’s need to prevent
disclosure.
B. Facts of This Prosecution
[8]
In June of 2006, 18 people were arrested in the
Greater Toronto Area on the suspicion that they were plotting terrorist attacks.
The suspects were alleged to have conducted terrorist training camps in
Ontario, to have amassed weapons, and to have made plans to storm Parliament,
where they intended to behead politicians and detonate truck bombs in several
locations.
[9]
The accused were initially brought to the
attention of the Royal Canadian Mounted Police (“RCMP”) by the Canadian
Security Intelligence Service (“CSIS”). On a number of occasions, CSIS
provided the RCMP with information that had been gathered through surveillance
and the use of informants. The June arrests were preceded by more than six
months of investigative work by the RCMP’s Integrated National Security
Enforcement Team.
(1) Proceedings
in the Ontario Superior Court
[10]
Ten of the eighteen suspects were scheduled to
be tried on terrorism-related offences before Dawson J. of the Ontario Superior
Court of Justice. Extensive disclosure was provided to the accused prior to
the preliminary inquiry, including more than 150,000 records
and media files. Before this material was produced, however, significant
redactions were made on the basis of objections raised under s. 38. For
example, affidavits used to obtain judicial authorizations and warrants during
the investigation of the accused were edited to conceal sensitive information.
[11]
A preliminary inquiry began in June of 2007, but
was aborted when a direct indictment was preferred on September 24 of that
year. At the preliminary inquiry, numerous objections
were raised under s. 38 to prevent certain questions from being asked. In the
judgment below, Dawson J. noted that those objections had not yet been resolved
and would likely re-emerge at trial ((2009), 257 C.C.C. (3d) 135).
[12]
Pre-trial motions began in May of 2008. At the
time this case came before us, it was anticipated that the pre-trial motions
would still take considerable time; Dawson J.
estimated in his reasons that the pre-trial motions and jury trial combined
would last anywhere from two and a half to five and a half years. Since this
appeal was heard, however, the charges against all of the participating
respondents have been resolved (at least at first instance). Seven of the
respondents pleaded guilty while the remaining three were convicted in jury
trials.
(2) Proceedings
in the Federal Court
[13]
On March 20, 2008, and again on June 16, 2008,
the Crown notified the Attorney General of Canada, as required by s. 38.01 of
the CEA , that the Superior Court proceedings might disclose sensitive
information. On December 12, 2008, Noël J. of the Federal Court issued an order
under s. 38.04(5) directing that the accused be designated as respondents in
proceedings commenced by the Attorney General, stating that a hearing was
required, and ordering that notice be given to Dawson J.
[14]
The accused then brought an application in the
Superior Court to challenge the constitutionality
of s. 38. The Federal Court halted its
proceedings pending the resolution of that challenge.
(3) Decision
of the Ontario Superior Court
[15]
Dawson J. held that the s. 38 scheme was
unconstitutional. In the first place, he held that the
scheme violated s. 96 of the Constitution Act, 1867 , because vesting
exclusive jurisdiction over “privilege” determinations in the Federal Court interfered
with the ability of superior court judges to “apply the Constitution”, which
represented an invasion of the core jurisdiction of superior courts. Dawson J.
further found that this interference constituted an unjustifiable infringement
of s. 7 of the Charter . Accordingly, he held under s. 52(1) of the Constitution
Act, 1982 that the scheme was of no force and effect to the extent of
its inconsistency with the Constitution. He struck down the legislative
framework to the extent that it conferred exclusive jurisdiction on the Federal
Court and asserted his own responsibility, as the superior court judge
conducting the criminal trial, to decide any national security privilege issues
that might arise in the course of the proceedings.
C. Overview
of the Statutory Scheme of Section 38 of the Canada Evidence Act
[16]
We will address
a number of aspects of s. 38 in some detail. To begin, a brief overview of the
provisions will be of assistance.
[17]
The s. 38 scheme
provides a procedure to govern the use and protection of “sensitive” or
“potentially injurious information”. Those expressions are defined in the Act
as follows:
“potentially
injurious information” means information of a type that, if it were disclosed
to the public, could injure international relations or national defence or
national security.
“sensitive information” means information
relating to international relations or national defence or national security
that is in the possession of the Government of Canada, whether originating from
inside or outside Canada, and is of a type that the Government of Canada is
taking measures to safeguard.
Section 38 places an obligation on all participants to a legal
proceeding, as well as non-participating officials, to notify the Attorney
General of the possibility that sensitive or potentially injurious information
will be disclosed (s. 38.01 ).
[18]
Within 10 days
of receiving notice, the Attorney General must make a decision with respect to
disclosure (s. 38.03(3)). Under s. 38.03(1), the Attorney General may
authorize disclosure at any time and pursuant to any conditions that are deemed
fit. If the party who gave notice — for example, the provincial Crown — wishes
to disclose the information at issue, it may enter an agreement with the
Attorney General to do so under specified conditions (s. 38.031(1)). If the
Attorney General has not authorized the unconditional disclosure of the
information and no disclosure agreement has been reached, the disclosure issue
may be taken before the Federal Court on the initiative of the Attorney
General, the Crown, the accused (if he or she has been made aware of it), or
any other person who seeks the disclosure of the protected information (s.
38.04).
[19]
A designated judge
of the Federal Court then decides whether it is necessary to hold a hearing on
the matter and, if so, who should be given notice (s. 38.04(5)). The Attorney
General is required to make representations to the court concerning the
identity of any persons whose interests may be affected by the disclosure order
(s. 38.04(5)(a)). Some of the evidence, the records, and the oral
hearing will be ex parte (seen and heard only by the Attorney General
and the designated judge), while some will be private (seen and heard by the
parties to the proceedings, but not by the public).
[20]
The designated judge must first determine if
disclosure of the information would be injurious to international relations,
national defence, or national security. If the judge
is of the view that no such injury would result, he or she may authorize
disclosure (s. 38.06(1)). Otherwise, disclosure may be ordered only if the designated judge determines that the public
interest in disclosure outweighs the public interest in non-disclosure (s.
38.06(2)). The designated Federal Court judge
may also impose conditions on disclosure and order that notification of the
decision be given to any person (s. 38.07). It is the Crown’s position that
the division of responsibility between the Federal Court and the criminal trial
courts is premised on the particular expertise of Federal Court judges in
determining matters pertaining to national security.
[21]
If a party wishes to contest the Federal Court
order, it may be appealed to the Federal Court
of Appeal, with the possibility of a further appeal to this Court (s. 38.09).
[22]
Central to the scheme of s. 38 are two ministerial powers exercised by the
Attorney General of Canada, one in relation to the disclosure or non-disclosure
of potentially injurious or sensitive
information and the other with respect to the conduct of prosecutions.
[23]
First, s. 38.13 empowers the federal
Attorney General to personally issue a certificate that prohibits disclosure even of information whose
disclosure has been authorized by the Federal Court judge. This certificate
is only subject to judicial review by a single judge of the Federal Court of
Appeal, and that judge may only vary or cancel the certificate on the ground
that the material it contains is not “information obtained in confidence from,
or in relation to, a foreign entity . . . or to national defence or national
security” (ss. 38.13 and 38.131). In short, this narrow right of review
provides no effective judicial means for
challenging or correcting a debatable decision by the Attorney General in balancing
the public interest in non-disclosure against the public and private interests
in disclosure of the subject information.
[24]
The validity of these
powers has not been challenged in this case and, for present purposes, they
must therefore be presumed to be constitutionally valid. That being so, we
think it particularly difficult for the respondents to
maintain that s. 38 is unconstitutional on the theory that disclosure decisions
are inherently judicial in nature. As we will
demonstrate, this is neither historically nor legally correct. The
subset of this argument — that it is unconstitutional to allocate disclosure
decisions to the Federal Court instead of to the
judges in the criminal courts — is equally untenable, for the same reasons.
[25]
As we will see, however, this authority of the
Attorney General of Canada to disclose or
withhold disclosure of potentially injurious or sensitive
information, and on what terms, largely independently of the regular
Federal Court channel, comes at a price: the
potential collapse of the prosecution, whether initiated federally or
provincially.
[26]
Turning to the second power, the prosecutorial authority of the Attorney General is
further reinforced by s. 38.15(1), which authorizes the Attorney General to assume by fiat exclusive control of any
prosecution in connection with which sensitive or potentially injurious
information may be disclosed — even where the proceedings were instituted by a
provincial Attorney General.
D. A Practical Approach to Section 38
[27]
The respondents’ submissions, like the judgment below, have all assumed that because
the judge presiding at a criminal trial has no right of access to potentially
injurious or sensitive material, such access will not normally occur. The
respondents further argue that it would be
impossible for the defence to demonstrate prejudice without knowing the nature
of the material and that it would be impossible for the trial judge to fashion
a just and appropriate remedy under s. 38.14 or s. 24(1) of the Charter .
Properly interpreted and applied, however, s. 38 does not command this result.
[28]
This
Court has repeated on numerous occasions that “the words of an Act are to 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 in Construction
of Statutes (2nd ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27. Moreover, “Parliament is presumed to have intended to
enact legislation in conformity with the Charter ”: R. v. Hamilton,
2005 SCC 47, [2005] 2 S.C.R. 432, at para. 75; R. v. Sharpe, 2001 SCC 2,
[2001] 1 S.C.R. 45, at para. 33.
[29]
We
therefore begin from the proposition that, in the absence of clear and
unambiguous statutory language to the contrary, the legislation must be
understood not to contemplate that trial
judges would determine the impact of
non-disclosure on trial fairness in a manner that would result in granting
unwarranted stays or declining to grant appropriate remedies. Parliament must
have been aware of these potential injustices and cannot have intended either
result.
[30]
Lack
of disclosure in this context cannot necessarily be equated with the denial of
the right to make full answer and defence
resulting in an unfair trial. There will be many instances in which
non-disclosure of protected information will have no bearing at all on trial fairness or where alternatives to
full disclosure may provide assurances that trial fairness has not been
compromised by the absence of full disclosure. For example, in the Air India terrorism prosecution, the
prosecution and the defence reached an agreement whereby the defence was
allowed to inspect documents in the possession of CSIS after giving an
undertaking not to disclose the contents to anyone without permission,
including the accused. In a subsequently released report on the trial, lead
prosecutor Robert Wright and defence counsel Michael Code reported that “in
almost every instance defence counsel were able to conclude that the
material was not relevant to the proceedings”: see the Commission of Inquiry
into the Investigation of the Bombing of Air India Flight 182, Air India
Flight 182: A Canadian Tragedy (“Air India Report”) (2010), vol. 3, at p.
152.
[31]
We must presume that Parliament was aware of the
possibility that proceedings would be needlessly stayed if the trial judge was
denied access to material that could not be disclosed for valid reasons of state
secrecy. In light of the vast resources expended in investigating and
prosecuting offences that implicate national security and the injustice to
society that would result if such prosecutions were needlessly derailed, this
cannot have been Parliament’s intention.
[32]
Nor can Parliament have intended that trial
judges be presented with an inadequate record or incomplete picture that could
lead them to conclude, erroneously, that trial fairness will be unimpaired. As stated, Parliament is presumed to intend
to enact Charter -compliant legislation.
Even more significantly, in this case, the presumption of constitutionality is
reinforced by the existence of s. 38.14 , which expressly indicates that the
fair trial rights of the accused must be protected — not sacrificed — in
applying the other provisions of the scheme. This provision also suggests a
recognition by Parliament that it is ultimately the trial judge, having
experience with the criminal proceedings and having heard all of the evidence
adduced, who will be best placed to make remedial decisions following a s. 38
non-disclosure order.
[33]
However, the public interest will only be
served if the trial judge in the criminal proceedings is able to exercise his
or her discretion with an adequate understanding of the nature of the withheld
information. In other words, the drastic nature of the potential remedies
specified in s. 38.14 leads us to the
conclusion that Parliament expected trial judges to be provided with a
sufficient basis of relevant information on which to exercise their remedial
powers judicially and to avoid, where possible (and
appropriate), the collapse of the prosecution.
[34]
Trial judges are under a duty to protect the
accused’s constitutional right to a full and fair
defence quite apart from s. 38.14 . The broad remedial discretion under
s. 24(1) of the Charter already includes the power to order any of the
remedies listed in s. 38.14 of the CEA to prevent an unfair trial. Yet
Parliament has chosen to explicitly set out a number of statutory remedies that
range from the finely tailored (i.e., dismissing specified counts of the
indictment) to the very blunt (a complete stay
of all proceedings). Dismissing a specified
count of the indictment (or proceeding only on a lesser included offence) as
suggested by the legislation, would generally require a thorough enough
understanding of the s. 38 information to evaluate it against specific elements
of the offences charged. Conversely, if the
trial judge lacks that understanding, it will often be impossible to determine
what charge, element or component of the defence that information might relate
to. In such circumstances, the trial judge may have no choice but to enter a
stay. This possibility was referred to in argument as putting the Attorney
General and the trial courts in the dilemma of playing constitutional chicken,
an outcome which a sensible interpretation of s. 38 will help to avoid.
[35]
This leads us to the further
observation that the stay of proceedings remedy in s. 38.14 is a statutory
remedy to be considered and applied in its own context. It should not be
burdened with the non-statutory “clearest of cases” test for a stay outlined in
R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Keyowski, [1988] 1
S.C.R. 657; R. v. O’Connor, [1995] 4 S.C.R. 411; and R. v. Regan,
2002 SCC 12, [2002] 1 S.C.R. 297. The criminal court judge may be placed in a
position of trying to determine an appropriate remedy where lack of disclosure
has made it impossible to determine whether proceeding with a trial in its
absence would truly violate “the community’s sense of fair play and decency” (Jewitt,
at p. 135). Nevertheless, the legislative compromise made in s. 38 will
require a stay in such circumstances if the trial judge is simply unable to
conclude affirmatively that the right to a fair trial, including the right of
the accused to a full and fair defence, has not been compromised.
[36]
With those observations in
mind, we turn to an analysis of specific aspects of the s. 38 scheme.
(1) The Trial Judge
Ought to Receive Notice of a Section 38
Application
[37]
Parliament did not intend for trial judges to
exercise their authority under s. 38.14 other than judicially.
To this end, the Attorney General, as the chief law officer of the Crown, and the
Crown prosecutor, pursuant to his or her duties of fairness, should take all
steps available to them within the limits
imposed by the legislation to provide trial judges with the information
required to discharge both the duty to safeguard the fair trial rights of the
accused as well as the obligation to Canadian society not to grant unwarranted
stays of proceedings.
[38]
Section 38.04(5)(b)
contemplates that the Federal Court judge may proceed without a hearing simply
on the representations of the Attorney General of Canada (or in defence matters
the Minister of National Defence). It is only “if” the designated judge
decides to proceed to a hearing that he or she will “determine who should be
given notice of the hearing” (s. 38.04(5)(c)(i)).
[39]
In the context of criminal proceedings, it is our view that unless the designated judge decides
without a hearing that the information in question should be disclosed to the
criminal court, there must be a hearing on the disclosure issues, and that
s. 38.04(5) should be read as requiring notice to the criminal
court that a s. 38 proceeding has been commenced in Federal Court.
Although s. 38.04(5)(c)(i) may at first
blush appear to grant Federal Court judges a wide discretion in determining who
“should” be given notice, this Court has held in the past that “[e]nabling
words are always compulsory where they are words [used] to effectuate a legal
right”: Labour Relations Board of Saskatchewan v. The Queen, [1956]
S.C.R. 82, at p. 87. Given that the criminal trial judge will require notice
to effectively discharge the duty to protect the accused’s legal rights under
the Charter , it will always be the case (subject of course to the other
provisions of that Act) that he or she “should” be given notice. The word
“may” in s. 38.07 will similarly be understood
to require that notice of the Federal Court judge’s final order be given to the trial
judge. Although the determination whether to give
notice to a criminal trial judge is not discretionary, the content of
that notice remains at the discretion of the designated judge. This will vary
with the different circumstances of each case.
[40]
Similarly, absent compelling
reasons to the contrary, the Federal Court judge should generally order that
notice of the existence of the proceedings in the Federal Court be given to the
accused in the criminal trial. This is not the occasion for the Court to
pronounce in detail on how the notice provisions in s. 38.04 interact with the
s. 38.02 prohibition of disclosure of the existence of proceedings in the
Federal Court. It is clear, however, that there is sufficient flexibility
in the overall scheme to permit notice to be given whenever possible and
appropriate.
(2) Empowering the Trial
Judge to Exercise the Section 38 Discretion Judicially
[41]
The broad
discretion conferred by s. 38 must be interpreted in accordance with the
purpose of the legislation, which is to balance the public interest in secrecy
against the public interest in the effective administration of a fair system of
justice. This purpose requires
that trial judges have the information required to discharge their duties under the CEA
and the Charter in an informed and judicial manner.
[42]
The notice given under s. 38.04(5) will
trigger s. 38.14 , at which point the trial judge will be bound to consider the
impact of non-disclosure on trial fairness. In order to discharge this duty, the trial judge will require
some information about the withheld information. In some cases, a summary may
be sufficient, while in other instances, more extensive access will be
required.
[43]
As noted earlier, the Attorney General of Canada
has the ultimate power to disclose — or refuse to disclose — relevant
information under the s. 38.03(1) certificate power. This provision permits
the Attorney General to make disclosure “at any time and subject to any
conditions” of “all or part of the information”. Where a case is prosecuted by
a provincial Crown, ss. 38.031 and 38.04(6) would allow the Crown to make an
agreement with the Attorney General enabling the
province to make partial or conditional disclosure of the information to
the trial judge. If the Attorney General declines to do so, and in the result
puts the trial judge in the position of having to consider a stay of the
criminal proceedings, that is a decision for the Attorney General to make,
having regard of course to the potential adverse consequences for the prosecution.
[44]
Section 38 creates a scheme
that is designed to operate flexibly. It permits conditional, partial and
restricted disclosure in various sections. Section 38.06(1) affirmatively
requires the Federal Court judge to consider the public interest in making
disclosure along with what conditions are “most likely to limit any injury to
international relations or national defence or national security” (s.
38.06(2)). In making this determination, the Federal Court judge may authorize
partial or conditional disclosure to the trial judge, provide a summary of the
information, or advise the trial judge that certain facts sought to be
established by an accused may be assumed to be true for the purposes of the
criminal proceeding. One example of how this might work in practice can be
found in Canada (Attorney General) v. Khawaja, 2007 FC 490, [2008] 1
F.C.R. 547, appeal allowed on other grounds, 2007 FCA 342, 370 N.R. 128, where
the Federal Court judge disclosed a summary of the material being withheld
under s. 38 to counsel for the parties, and directed that it be made available
to the trial judge and prosecutor if necessary to determine whether the fair
trial rights of the accused had been infringed (para. 187).
[45]
The problems created by the division of judicial
responsibilities may be addressed in different ways. For example, a Federal
Court judge exercising the discretion conferred by s. 38.06(2) might find that
the only condition required in order to authorize disclosure
to the criminal court judge without risking
injury to national security is that he or she not reveal the information to the
accused, or a condition that the information be reviewed in a designated secure
facility. Disclosure of the information to the trial judge alone, as is the
norm in other jurisdictions, and for the sole purpose of determining the impact
of non-disclosure on the fairness of the trial, will often be the most appropriate
option. This is particularly true in light of the minimal risk of providing
such access to a trial judge, who is entrusted with the powers and
responsibilities of high public office.
[46]
Crown counsel will also have an important role to play as the proceedings
unfold. For example, if it becomes obvious to the Crown that non-disclosure
under s. 38 will significantly and irreparably impact trial fairness, then the
Crown itself ought normally to enter a stay of proceedings.
[47]
Under some circumstances, the trial judge might
conclude that it is not possible to assess the relevance of the withheld
material without submissions from a counsel opposed in interest to the prosecution. In such a
situation, the appointment of a security-cleared special advocate could prove
to be beneficial if he or she is adequately informed
of the matters in issue by authorization of the Attorney General of Canada
under s. 38.03. In Charkaoui, we discussed the advantages and
some disadvantages of resort to the special advocate systems employed in other
contexts in Canada and (subsequently) in the
United Kingdom. Since then, a statutory regime for special advocates has been
created under the Immigration and Refugee Protection Act, S.C. 2001, c.
27 (“IRPA ”). While there are numerous criticisms
of the special counsel procedure under the IRPA , and we do not by any
means discount the weight of these criticisms, it is nevertheless the case that
the assistance of a special counsel might be of considerable help (depending on
the circumstances) to the judge presiding at a criminal trial attempting to
determine the effect of s. 38 non-disclosure on what s. 38.14(1) itself
describes as “protect[ion of the] right . . . to a fair trial”.
[48]
In the Air India Report, the Honourable John C.
Major, Q.C. (the “Commissioner”) noted that the IRPA regime “has led to
the creation of a cadre of security-cleared lawyers with experience in matters
involving national security confidentiality” (vol. 3, at pp. 167-68) and
recommended that these special advocates be permitted to protect the accused’s
interests during s. 38 applications. In reaching this conclusion, the
Commissioner noted that there was extensive support before him for the use of
special advocates in s. 38 proceedings: see Air India Report, at pp. 167-69
(citing the recommendations of the House of Commons and Senate committees that
reviewed the operation of the Anti-terrorism Act, S.C. 2001, c. 41 , as
well as submissions from the Federation of Law Societies of Canada, the
Canadian Bar Association, and the Criminal Lawyers’ Association, and also
noting that the Federal Court has already appointed security-cleared amici
curiae to assist it in s. 38 proceedings).
[49]
We recognize that the procedural flexibility of
the s. 38 scheme allows for arrangements (such as the one that was reached
between the prosecution and the defence in the Malik prosecution
previously discussed), whereby defence counsel might be allowed to access the withheld material on an undertaking not to
disclose it to the accused. However, we would urge caution in resorting to such
procedures. In R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, we noted
that even where the client’s consent is obtained, arrangements of this nature
will “at best, strain the necessary relationship between defence counsel and
their accused clients” (para. 45). At worst, such arrangements may place
lawyers in a conflict between their duty to represent the best interests of
their client and their duty to honour the undertakings they have given with
respect to the privileged information, such that they are forced to withdraw
their representation (para. 46).
[50]
The flexible procedures under s. 38 may be
contrasted with the inflexible treatment of Cabinet confidences
in s. 39(1) at issue in Babcock v. Canada
(Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, which states:
39. (1) Where a minister of the Crown or the Clerk of the Privy Council
objects to the disclosure of information before a court, person or body with
jurisdiction to compel the production of information by certifying in writing
that the information constitutes a confidence of the Queen’s Privy Council for
Canada, disclosure of the information shall be refused without examination
or hearing of the information by the court, person or body.
The
absolute language of s. 39 is intended to oust the developing
common law approach to Cabinet confidences, which allows courts to
balance the public interest in protecting confidentiality against the public
interest in disclosure: Babcock, at
paras. 19-23. We recognize that there are important substantive differences
between the different disclosure provisions contained in the CEA .
Nonetheless, one would expect Parliament to have used similarly clear language
if it had intended to preclude the trial judge’s access to at least a summary
of the type of information that is subject to a s. 38 challenge.
(3) The
Section 38 Process May Proceed in Stages Before the Criminal Trial Judge
[51]
It will always be left to trial judges to
determine whether they have a sufficient basis on which to exercise their
remedial discretion judicially. If, under the arrangements that are made, there is simply not enough information to decide
whether or not trial fairness has been materially affected, the trial judge must presume that the non-disclosure order has
adversely affected the fairness of the trial,
including the right of the accused to make full answer and defence. In such a case, rather than
proceed directly to issuance of a stay, the Crown should be advised
accordingly. The
Attorney General will then have an opportunity to make further and better disclosure under the
Attorney General certificate procedure to address the
trial judge’s concerns. If no (or inadequate)
additional information can be provided to the trial judge, a stay of
proceedings will be the presumptively appropriate remedy.
[52]
It bears repeating that
although stays of proceedings pursuant to the common law and the Charter
are considered to be extraordinary in nature, they are an expressly
contemplated remedy under s. 38.14 to protect the fair trial rights of the
accused from the adverse impact of
non-disclosure. As we have outlined above, if the legislation is applied
flexibly and in light of what the trial judge requires to exercise his or her
discretion judicially, and with the sense of fairness to be expected from the
Attorney General and the prosecutor, stays of proceedings that, unknown to the
trial judge, are not in fact warranted should be rare. Trial judges should
almost always be given enough information to either order a more finely
tailored remedy or, where appropriate, to
conclude that no remedy is necessary. However, the Charter requires,
and the legislation acknowledges, that where the government
is withholding information and the trial judge is unable to satisfy
himself or herself that non-disclosure has not adversely affected trial
fairness, and no lesser step or remedy can assure it, a stay of proceedings
under s. 38 must issue. Doubt, in this
respect, should be resolved in favour of protecting the fair trial rights of
the accused, including the right of full answer and
defence.
[53]
As a final note, we would add that although the trial judge will retain the
discretion to decide when to order a remedy, the impact on violations or
abuses “on the fairness of the trial . . . is often best assessed in
the context of the trial as it unfolds”: R. v. La, [1997] 2 S.C.R.
680, at para. 27.
E. The
Constitutional Analysis in Light of the
Foregoing Interpretation of Section 38
[54]
Having interpreted the relevant
legislation, we now return to the
constitutional issues before us.
(1) Section 38
Does Not, as Correctly Interpreted, Violate Section 96 of the Constitution Act,
1867
[55]
A major focus of the argument
before us was the trial judge’s inability to access the material that is the
subject of a non-disclosure order under s. 38 . In
cases where the trial proceeds before a superior court judge, the respondents
contend, and Dawson J. accepted, that s. 38 interferes with the ability of
superior court judges to “apply the Constitution” and protect the s. 7 rights
of accused persons. This, the respondents submit, offends s. 96 of the Constitution
Act, 1867 by impermissibly transferring these responsibilities to the
Federal Court, a non-section 96 tribunal, and by invading the “core
jurisdiction” of superior courts. It also, in their submission, violates s. 7
of the Charter .
[56]
There are three short
answers to these submissions: superior courts historically did not have the
jurisdiction to review Crown claims to refuse disclosure of potentially
injurious or sensitive information of state; such authority is not within the
protected core of superior court jurisdiction; and the challenged provisions do
not prevent a trial judge presiding over a criminal prosecution from protecting
the fair trial rights of an accused. Inability to rule
on production does not infringe s. 96 or s. 7 .
[57]
It is true, of course, that
the judicature provisions of the Constitution Act, 1867 create
substantive constitutional limitations on Parliament’s ability to confer powers
on courts or tribunals other than those established under s. 96 . Although the
Court has not fully explored the interaction of ss. 96 and 101 , we accept for
present purposes (without deciding) that the constitutional analysis proceeds
as the respondents contend.
[58]
They submit that to
determine whether a conferral of power on a tribunal other than a s. 96 court
violates s. 96 of the Constitution Act, 1867 , one first applies
the test set out by Dickson J. (as he then was) in Re Residential Tenancies
Act, 1979, [1981] 1 S.C.R. 714, and as developed in the subsequent cases.
In brief, the test asks (1) whether the power conferred broadly conforms to a
power or jurisdiction exercised by a superior, district or county court at the
time of Confederation; (2) if so, whether the power is a judicial power; and
(3) if so, whether the power is either subsidiary or ancillary to a
predominantly administrative function or necessarily incidental to such a
function: Reference re Amendments to the Residential Tenancies Act (N.S.),
[1996] 1 S.C.R. 186, at para. 74.
[59]
Applying this test, there is no violation of s.
96 in this case. As noted in Re Residential
Tenancies Act, 1979, the first question requires a historical inquiry into “whether the power or
jurisdiction conforms to the power or jurisdiction exercised by superior,
district or county courts at the time of Confederation” (p. 734). As
the Court later noted in MacMillan Bloedel Ltd. v. Simpson, [1995] 4
S.C.R. 725, “if the power in question does not conform to one exercised by a
superior court in 1867, the inquiry ends” (para. 12). Notably, the power must
also have been exercised exclusively by superior courts at
Confederation. For example, if jurisdiction was concurrent between superior and
inferior courts, the inquiry will still end at the first stage of the Residential
Tenancies test: Sobeys Stores Ltd. v. Yeomans and Labour Standards
Tribunal (N.S.), [1989] 1 S.C.R. 238.
[60]
In 1867, Crown claims to
refuse disclosure of potentially injurious or sensitive information were
generally considered by superior courts in Canada to be a matter of
unreviewable executive prerogative: Gugy v. Maguire (1863), 13
L.C.R. 33 (Q.B.); Bradley v. McIntosh (1884), 5 O.R. 227 (C.P.).
See, generally, S. G. Linstead, “The Law of Crown Privilege in Canada and
Elsewhere ― Part 1” (1968-1969), 3 Ottawa L. Rev. 79. While the
law has since evolved away from this exceptionally deferential approach (see,
e.g., R. v. Snider, [1954] S.C.R. 479, and Carey v. Ontario,
[1986] 2 S.C.R. 637), the respondents’ argument that s. 38 is constitutionally
vulnerable because it removes part of the historical jurisdiction of the
superior courts is misconceived. Given that the superior courts did not
exercise any such power of review at the time of Confederation, the analysis under the Residential Tenancies Act, 1979
ends at the first question; there is no infringement of s. 96 under that test.
We note that the Ontario Court of Appeal reached the same conclusion in Abou-Elmaati
v. Canada (Attorney General), 2011 ONCA 95 (CanLII), though in the context
of pre-trial discovery in a civil action.
[61]
However, even though the
grant of power passes the Residential Tenancies test, it will be
unconstitutional if the legislation purports to confer exclusive jurisdiction
respecting a matter within the core jurisdiction of s. 96 courts: MacMillan
Bloedel, at paras. 27-28. A power that is “integral” to the operation of
superior courts is part of the “core or inherent jurisdiction” that cannot be
stripped from the superior court (para. 15) without violating s. 96 of the Constitution
Act, 1867 . An element of the superior court’s “inherent
jurisdiction” is the power to enforce its own orders and maintain its dignity
and respect (paras. 33 and 37). In Reference re Amendments to the
Residential Tenancies Act (N.S.), at para. 56, Lamer C.J. further refined
the definition of the “core” jurisdiction, stating that it included
. . .
only critically important jurisdictions which are essential to the existence of
a superior court of inherent jurisdiction and to the preservation of its
foundational role within our legal system.
The
respondents contend that s. 38 has the effect of removing the core jurisdiction
of a s. 96 court to safeguard the fair trial rights of an accused.
[62]
It is true that a superior court’s ability to
adjudicate the constitutional issues that come before it forms a part of the
essential core described by Lamer C.J. in the cases cited above. However, our
view is that this is not what is truly in issue in this case. Proper
characterization of the subject matter of the challenged power is critical.
[63]
MacMillan Bloedel insisted that “[a] proper characterization [of
the subject matter] for s. 96 purposes must be narrow and consider the nature
of the dispute” (para. 25). Similarly in Babcock, at paras. 58-61,
where the constitutional challenge related to the non-disclosure of Cabinet
confidences under s. 39 of the CEA , the Court precisely characterized
the dispute as a “superior court[’s ability] to compe[l] disclosure of Cabinet
[and Privy Council] confidences” (para. 58), not the much broader formulation
as to whether s. 39 limited the “courts’ ability to control their own process”
(para. 59).
[64]
The issue here is not
properly characterized as the authority of the superior court to protect the
integrity of its process; that authority is acknowledged by Parliament in s.
38.14 . Rather, the issue here relates to authority in relation to disclosure of
material for which the security exemption is claimed. When the issue is
characterized in that way, as it was in Babcock, s. 38 of the CEA
does not violate s. 96 of the Constitution Act, 1867 because it does not
“in and of itself, impede a court’s power to remedy abuses of process” (Babcock,
at para. 60).
[65]
What is essential for
constitutional purposes is
that the criminal courts retain the ability to ensure that every person who
comes before them as the subject of a criminal prosecution receives a
fundamentally fair trial. What is recognized in both s. 24(1) of the Charter
and s. 38.14 of the CEA is that sometimes the only way to avoid an
“[un]fair” trial is to have no trial at all. As we have explained, through s.
38.14 and the Charter , the criminal court trial judge possesses the
means to safeguard the accused’s fair trial rights.
(2) Division of
Judicial Responsibilities Does Not Infringe Section 7
[66]
For similar reasons, the respondents’ s. 7 challenge to the legislation must also fail.
[67]
In the court below, Dawson J. held that the
removal of the disclosure determination from the criminal courts to the Federal
Court and his inability to review the withheld information had the effect of
“preventing th[e Superior Court] from protecting and enforcing the rights of an
accused to disclosure and to full answer and defence” (para. 11). Dawson J. held that the resolution of the disclosure issue and
the determination of whether there had been a violation of the accused’s right
to timely disclosure as guaranteed by s. 7 of the Charter were “so
fundamentally intertwined” that they could not be separated (para. 101). In his view, an “incorrect” non-disclosure order by the
Federal Court would likely result in a violation of the accused’s s. 7 rights.
He concluded that depriving the Superior Court of the ability to resolve the
privilege issue in the usual way necessarily
prevented him from determining whether there was a breach of the accused’s Charter
rights. With respect, we disagree.
[68]
Parliament’s
understanding of the respective roles of judges conducting criminal trials and
Federal Court judges is perhaps best
understood by reference to the following exchange made before the Special
Senate Committee on the Subject Matter of Bill C-36, Issue
No. 1, 1st Sess., 37th Parl., October 22, 2001:
Mr. Piragoff: . . .
The certificate issued by the Attorney General, which other senators have asked
about, would be the ultimate guarantee that information such as sources of information and names of informers would not be
made public.
. . .
Senator Kelleher: Would we not be hit by the judge? That is my concern.
Mr. Piragoff: The legislation recognizes that if the Attorney General exercises
power to withhold information, the trial judge could assess the impact of not
having that information upon a trial. That could involve dismissing the case.
Other amendments try to get as much
information to that trial judge as possible. The Federal Court judge will try,
for example, to make an edited copy or indicate that for the purposes of a
trial, certain facts may be assumed to exist to try to keep the trial alive,
but it is up to the trial judge in the provincial court who is conducting a
murder trial to finally rule on whether there could be a fair trial without the
information. That is at that judge’s discretion, not at the Federal Court’s
discretion.
Senator Kelleher: That is what troubles me.
Mr. Piragoff: We
are now balancing two issues. We are balancing the interests of the state to
protect information and the interests of the accused to have a fair trial,
which is protected by the Charter . There may be situations where both of
those cannot be reconciled and it then becomes a question of whether the
prosecution of the individual or the protection of the information is more
important in a particular situation. That is a difficult choice, but it is a
stark choice that may have to be made sometimes. [Emphasis added; pp.
63-64.]
The Federal Court
judge’s sole concern under the scheme is the protection of the public interest in sensitive or potentially injurious information.
If the Federal Court determines that the disclosure of the information at issue
would be injurious to international relations or national defence or national
security, then disclosure will only be ordered by that court if in its view the
public interest in disclosure outweighs the public interest in non-disclosure
(ss. 38.06(1) and (2)). While the public certainly has an interest in the
effective administration of justice, or “keep[ing] the trial alive”, s. 38
recognizes that an unfair trial is not an option.
Dawson J. was not deprived of the ability to adjudicate the Charter issues
that flowed from the non-disclosure
order. While it is true that the legislation deprives trial judges of
the ability to order the disclosure or even their own inspection of
material that is withheld pursuant to s. 38 , they retain the ability in the
absence of such access to order whatever remedy pursuant to the Charter
and s. 38.14 is required to protect the accused’s right to a fair trial. When
it enacted s. 38 of the CEA , Parliament was
aware that limiting the trial judge’s power to order disclosure may lead
to the imposition of a more drastic remedy
than might otherwise be justified. In s. 38.14, Parliament chose to live with
that possibility by explicitly contemplating
in such circumstances a stay of proceedings.
(3) The
Policy Debate Is Not Before Us
[69]
The Attorney General
argues, at para. 104 of its factum, that s. 38
strikes a “careful and sensitive balance”
between the government’s need for secrecy and the protection of individual rights by dividing
jurisdiction between Federal Courts and trial courts on the basis of each
forum’s expertise. He points to the fact that
the Federal Court has dealt with national security matters for more than 20
years under the Canadian Security Intelligence
Service Act, R.S.C. 1985, c. C-23 , as well as other legislation,
such as that governing immigration and refugee matters.
[70]
The Attorney General
also points out that there are a limited number
of designated judges at the Federal Court who deal with issues of
national security. These designated judges frequently
meet to discuss national security issues, new developments in the jurisprudence
and best practices. He says that they have
developed relevant programs concerning privacy, human rights and national
security, in conjunction with judges from other jurisdictions and scholars (see
E. Dawson, “The Federal Court and the Clash of the Titans: Balancing Human
Rights and National Security”, Address at the University of Manitoba Faculty of
Law (March 30, 2006)). All proceedings that implicate national security issues are conducted in a secure facility in the
National Capital Region. This facility contains a secure registry for storing
confidential information, secure offices and computers and secure hearing
rooms. Every staff member who is involved in
a national security proceeding has a Top Secret level security clearance and is
bound by the Security of Information Act, R.S.C. 1985, c. O-5 , to
permanently maintain the secrecy of classified information.
[71]
Be that as it may, the bifurcation of criminal proceedings has
come under heavy criticism from judges, lawyers and academics. Most
notably, in the recently released Air India Report, the Commissioner concluded
that “[t]he present two-court system used in deciding section 38 applications
is out of step with systems in other democracies” and
“has demonstrated unequivocally that it is a
failure” (p. 160). The Commissioner recommended to
the government that the two-court system be abolished and that national
security confidentiality determinations be left to Superior Court judges (pp.
160 and 165). The ultimate fate of this
recommendation is not yet known.
[72]
We note that the Commissioner’s concerns were
largely tied to the inability of trial judges to obtain
information about, or access to, the withheld material, which we hope to
have addressed in a practical way in this ruling.
[73]
However, the Commissioner
also expressed concerns in his report about the manner in which the s. 38
process “affects both the efficiency and the fairness of terrorism
prosecutions” (p. 162). He noted that apart from the Attorney General
of Canada, the parties before him “were almost unanimous in concluding that the
current two-court system was inadequate and could cause problems” (p. 158).
The majority of the criticisms were centred on the delays that are occasioned
by fragmenting the criminal trial process and the duplicated effort involved in
litigating the same issue before two separate courts.
[74]
The Commissioner noted that even without the
burden of s. 38 litigation, “terrorism prosecutions already sorely tax the
stamina of judges and jurors” (p. 154). He expressed a concern that extensive
litigation and appeals on disclosure issues might result in permanent stays of
proceedings due to unreasonable delays. The Commissioner cited R. v. Ribic,
2004 CanLII 7091 (Ont. S.C.J.), as an example of how the accused might attempt
to use the two-court system to sabotage a terrorism trial by purposely calling
evidence that would engage s. 38 . (In Ribic, the s. 38 litigation began
during the criminal trial before a jury, and the delay caused by the back and
forth to the Federal Court resulted in a mistrial.)
[75]
These comments
challenge the underlying wisdom of the s. 38 scheme adopted by Parliament.
That, of course, was properly a matter for the
Commissioner, but the wisdom (as distinguished from the validity) of s. 38 is
not a matter for this Court. To the extent that the
practical problems of bifurcation create
unfairness to the accused or otherwise jeopardize the due administration of
justice, the criminal court is authorized to order a
s. 38.14 remedy.
[76]
We recognize that the legislative division of responsibilities does have the potential to
cause delays and to pose serious challenges to the fair and expeditious trial
of an accused, especially when the trial is by jury. While we do not find that
this potential invalidates the legislative scheme, situations may well arise in
which the division of responsibilities between
courts will give rise to unreasonable trial delays, undue disruption to jurors
and risk of juror contamination. These will have to be addressed on a case-by-case basis
and the appropriate remedies issued to avoid an unfair trial.
[77]
An important step the parties can take is
attempting to identify potential national security issues during pre-trial
proceedings. This would allow the disclosure arguments to take place at an
early date. Section 38 encourages early-stage disclosure proceedings. In fact, it was amended in 2001 to
allow the scheme to be engaged prior to the criminal trial and to “permit the
government to take pro-active steps in the appropriate circumstances”
(Department of Justice, “Amendments to the Canada Evidence Act (“CEA ”)”
(online: http://www.justice.gc.ca/antiter/sheetfiche/ceap2-lpcp2-eng.asp)).
Due diligence in this respect will work to minimize the risk of mistrials. Disclosure by the Crown in a series of stages over a
period of time, each new stage of disclosure triggering additional s. 38
proceedings, will heighten the risk of resort by the trial judge to s. 38
remedies.
[78]
As we have stated, co-operative arrangements
between the prosecution and the defence are to
be encouraged, as they have the potential to greatly facilitate complex trials
for all parties involved and to reduce the strain on judicial resources. However, the defence is under no obligation to cooperate
with the prosecution and if the end result of non-disclosure by the Crown is
that a fair trial cannot be had, then Parliament has determined that in the
circumstances a stay of proceedings is the lesser evil compared with the
disclosure of sensitive or potentially injurious information.
[79]
We noted earlier
that the exercise by the trial judge of the s. 38.14
statutory remedy is not constrained by the ordinary
Charter jurisprudence concerning abuse of process. Neither is it
constrained by the ordinary Charter jurisprudence in relation, for
example, to trial within a reasonable time. If the trial process resulting
from the application of the s. 38 scheme becomes unmanageable by virtue of
excessive gaps between the hearing of the evidence or
other such impediments, such that the right of the accused to a fair
trial is compromised, the trial judge should not hesitate to use the broad
authority Parliament has conferred under s. 38.14 to
put an end to the prosecution.
[80]
It will ultimately be for Parliament to
determine with the benefit of experience whether the wisdom
of the bifurcated scheme should be reconsidered.
We conclude, however, that s. 38 as we have
interpreted it passes constitutional muster. Trial
unfairness will not be tolerated.
F. Conclusion
[81]
The appeal is
allowed. The constitutional questions are answered as follows:
l. Are
ss. 38 to 38.16 of the Canada Evidence Act, R.S.C. 1985, c. C-5 , ultra
vires the Parliament of Canada on the ground that they infringe ss. 96 and
101 of the Constitution Act, 1867 ?
Answer:
No.
2. Do ss. 38 to 38.16 of the Canada
Evidence Act, R.S.C. 1985, c. C-5 , infringe s. 7 of the Canadian Charter
of Rights and Freedoms ?
Answer:
No.
3. 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 Canadian Charter of Rights and Freedoms ?
Answer: It is not necessary to answer this
question.
APPENDIX
Canada
Evidence Act, R.S.C. 1985, c. C-5
International
Relations and National Defence
and National Security
38.
The following definitions apply in this section and in sections 38.01 to 38.15 .
“judge”
means the Chief Justice of the Federal Court or a judge of that Court
designated by the Chief Justice to conduct hearings under section 38.04.
“participant”
means a person who, in connection with a proceeding, is required to disclose,
or expects to disclose or cause the disclosure of, information.
“potentially
injurious information” means information of a type that, if it were disclosed
to the public, could injure international relations or national defence or
national security.
“proceeding”
means a proceeding before a court, person or body with jurisdiction to compel
the production of information.
“prosecutor”
means an agent of the Attorney General of Canada or of the Attorney General of
a province, the Director of Military Prosecutions under the National Defence
Act or an individual who acts as a prosecutor in a proceeding.
“sensitive
information” means information relating to international relations or national
defence or national security that is in the possession of the Government of
Canada, whether originating from inside or outside Canada, and is of a type
that the Government of Canada is taking measures to safeguard.
38.01
(1) Every participant who, in connection with a proceeding, is required to
disclose, or expects to disclose or cause the disclosure of, information that
the participant believes is sensitive information or potentially injurious
information shall, as soon as possible, notify the Attorney General of Canada
in writing of the possibility of the disclosure, and of the nature, date and
place of the proceeding.
(2) Every
participant who believes that sensitive information or potentially injurious
information is about to be disclosed, whether by the participant or another
person, in the course of a proceeding shall raise the matter with the person
presiding at the proceeding and notify the Attorney General of Canada in
writing of the matter as soon as possible, whether or not notice has been given
under subsection (1). In such circumstances, the person presiding at the
proceeding shall ensure that the information is not disclosed other than in
accordance with this Act.
(3) An
official, other than a participant, who believes that sensitive information or
potentially injurious information may be disclosed in connection with a
proceeding may notify the Attorney General of Canada in writing of the
possibility of the disclosure, and of the nature, date and place of the
proceeding.
(4) An
official, other than a participant, who believes that sensitive information or
potentially injurious information is about to be disclosed in the course of a
proceeding may raise the matter with the person presiding at the proceeding. If
the official raises the matter, he or she shall notify the Attorney General of
Canada in writing of the matter as soon as possible, whether or not notice has
been given under subsection (3), and the person presiding at the proceeding
shall ensure that the information is not disclosed other than in accordance
with this Act.
(5) In
the case of a proceeding under Part III of the National Defence Act ,
notice under any of subsections (1) to (4) shall be given to both the Attorney
General of Canada and the Minister of National Defence.
(6) This
section does not apply when
(a) the
information is disclosed by a person to their solicitor in connection with a
proceeding, if the information is relevant to that proceeding;
(b) the
information is disclosed to enable the Attorney General of Canada, the Minister
of National Defence, a judge or a court hearing an appeal from, or a review of,
an order of the judge to discharge their responsibilities under section 38,
this section and sections 38.02 to 38.13, 38.15 and 38.16;
(c) disclosure
of the information is authorized by the government institution in which or for
which the information was produced or, if the information was not produced in
or for a government institution, the government institution in which it was
first received; or
(d) the
information is disclosed to an entity and, where applicable, for a purpose
listed in the schedule.
(7) Subsections
(1) and (2) do not apply to a participant if a government institution referred
to in paragraph (6)(c) advises the participant that it is not necessary,
in order to prevent disclosure of the information referred to in that
paragraph, to give notice to the Attorney General of Canada under subsection
(1) or to raise the matter with the person presiding under subsection (2).
(8) The
Governor in Council may, by order, add to or delete from the schedule a
reference to any entity or purpose, or amend such a reference.
38.02
(1) Subject to subsection 38.01(6), no person shall disclose in connection with
a proceeding
(a) information
about which notice is given under any of subsections 38.01(1) to (4);
(b) the
fact that notice is given to the Attorney General of Canada under any of
subsections 38.01(1) to (4), or to the Attorney General of Canada and the
Minister of National Defence under subsection 38.01(5);
(c) the
fact that an application is made to the Federal Court under section 38.04 or
that an appeal or review of an order made under any of subsections 38.06(1) to
(3) in connection with the application is instituted; or
(d) the
fact that an agreement is entered into under section 38.031 or subsection
38.04(6).
(1.1) When
an entity listed in the schedule, for any purpose listed there in relation to
that entity, makes a decision or order that would result in the disclosure of
sensitive information or potentially injurious information, the entity shall
not disclose the information or cause it to be disclosed until notice of
intention to disclose the information has been given to the Attorney General of
Canada and a period of 10 days has elapsed after notice was given.
(2) Disclosure
of the information or the facts referred to in subsection (1) is not prohibited
if
(a) the
Attorney General of Canada authorizes the disclosure in writing under section
38.03 or by agreement under section 38.031 or subsection 38.04(6); or
(b) a
judge authorizes the disclosure under subsection 38.06(1) or (2) or a court
hearing an appeal from, or a review of, the order of the judge authorizes the
disclosure, and either the time provided to appeal the order or judgment has
expired or no further appeal is available.
38.03
(1) The Attorney General of Canada may, at any time and subject to any
conditions that he or she considers appropriate, authorize the disclosure of
all or part of the information and facts the disclosure of which is prohibited
under subsection 38.02(1).
(2) In
the case of a proceeding under Part III of the National Defence Act , the
Attorney General of Canada may authorize disclosure only with the agreement of
the Minister of National Defence.
(3) The
Attorney General of Canada shall, within 10 days after the day on which he or
she first receives a notice about information under any of subsections 38.01(1)
to (4), notify in writing every person who provided notice under section 38.01
about that information of his or her decision with respect to disclosure of the
information.
38.031
(1) The Attorney General of Canada and a person who has given notice under
subsection 38.01(1) or (2) and is not required to disclose information but
wishes, in connection with a proceeding, to disclose any facts referred to in
paragraphs 38.02(1)(b) to (d) or information about which he or
she gave the notice, or to cause that disclosure, may, before the person
applies to the Federal Court under paragraph 38.04(2)(c), enter into an
agreement that permits the disclosure of part of the facts or information or
disclosure of the facts or information subject to conditions.
(2) If
an agreement is entered into under subsection (1), the person may not apply to
the Federal Court under paragraph 38.04(2)(c) with respect to the
information about which he or she gave notice to the Attorney General of Canada
under subsection 38.01(1) or (2).
38.04
(1) The Attorney General of Canada may, at any time and in any circumstances,
apply to the Federal Court for an order with respect to the disclosure of
information about which notice was given under any of subsections 38.01(1) to
(4).
(2) If,
with respect to information about which notice was given under any of
subsections 38.01(1) to (4), the Attorney General of Canada does not provide
notice of a decision in accordance with subsection 38.03(3) or, other than by
an agreement under section 38.031, authorizes the disclosure of only part of
the information or disclosure subject to any conditions,
(a) the
Attorney General of Canada shall apply to the Federal Court for an order with
respect to disclosure of the information if a person who gave notice under
subsection 38.01(1) or (2) is a witness;
(b) a
person, other than a witness, who is required to disclose information in
connection with a proceeding shall apply to the Federal Court for an order with
respect to disclosure of the information; and
(c) a
person who is not required to disclose information in connection with a
proceeding but who wishes to disclose it or to cause its disclosure may apply
to the Federal Court for an order with respect to disclosure of the
information.
(3) A
person who applies to the Federal Court under paragraph (2)(b) or (c)
shall provide notice of the application to the Attorney General of Canada.
(4) An
application under this section is confidential. Subject to section 38.12, the
Chief Administrator of the Courts Administration Service may take any measure
that he or she considers appropriate to protect the confidentiality of the
application and the information to which it relates.
(5) As
soon as the Federal Court is seized of an application under this section, the
judge
(a) shall
hear the representations of the Attorney General of Canada and, in the case of
a proceeding under Part III of the National Defence Act , the Minister of
National Defence, concerning the identity of all parties or witnesses whose
interests may be affected by either the prohibition of disclosure or the
conditions to which disclosure is subject, and concerning the persons who
should be given notice of any hearing of the matter;
(b) shall
decide whether it is necessary to hold any hearing of the matter;
(c) if
he or she decides that a hearing should be held, shall
(i) determine
who should be given notice of the hearing,
(ii) order
the Attorney General of Canada to notify those persons, and
(iii) determine
the content and form of the notice; and
(d) if
he or she considers it appropriate in the circumstances, may give any person
the opportunity to make representations.
(6) After
the Federal Court is seized of an application made under paragraph (2)(c)
or, in the case of an appeal from, or a review of, an order of the judge made
under any of subsections 38.06(1) to (3) in connection with that application,
before the appeal or review is disposed of,
(a) the
Attorney General of Canada and the person who made the application may enter
into an agreement that permits the disclosure of part of the facts referred to
in paragraphs 38.02(1)(b) to (d) or part of the information or
disclosure of the facts or information subject to conditions; and
(b) if
an agreement is entered into, the Court’s consideration of the application or
any hearing, review or appeal shall be terminated.
(7) Subject
to subsection (6), after the Federal Court is seized of an application made
under this section or, in the case of an appeal from, or a review of, an order
of the judge made under any of subsections 38.06(1) to (3), before the appeal
or review is disposed of, if the Attorney General of Canada authorizes the
disclosure of all or part of the information or withdraws conditions to which
the disclosure is subject, the Court’s consideration of the application or any
hearing, appeal or review shall be terminated in relation to that information,
to the extent of the authorization or the withdrawal.
38.05 If
he or she receives notice of a hearing under paragraph 38.04(5)(c), a
person presiding or designated to preside at the proceeding to which the
information relates or, if no person is designated, the person who has the
authority to designate a person to preside may, within 10 days after the day on
which he or she receives the notice, provide the judge with a report concerning
any matter relating to the proceeding that the person considers may be of
assistance to the judge.
38.06
(1) Unless the judge concludes that the disclosure of the information would be
injurious to international relations or national defence or national security,
the judge may, by order, authorize the disclosure of the information.
(2) If
the judge concludes that the disclosure of the information would be injurious
to international relations or national defence or national security but that
the public interest in disclosure outweighs in importance the public interest
in non-disclosure, the judge may by order, after considering both the public
interest in disclosure and the form of and conditions to disclosure that are
most likely to limit any injury to international relations or national defence
or national security resulting from disclosure, authorize the disclosure,
subject to any conditions that the judge considers appropriate, of all of the
information, a part or summary of the information, or a written admission of
facts relating to the information.
(3) If
the judge does not authorize disclosure under subsection (1) or (2), the judge
shall, by order, confirm the prohibition of disclosure.
(3.1) The
judge may receive into evidence anything that, in the opinion of the judge, is
reliable and appropriate, even if it would not otherwise be admissible under
Canadian law, and may base his or her decision on that evidence.
(4) A
person who wishes to introduce into evidence material the disclosure of which
is authorized under subsection (2) but who may not be able to do so in a
proceeding by reason of the rules of admissibility that apply in the proceeding
may request from a judge an order permitting the introduction into evidence of
the material in a form or subject to any conditions fixed by that judge, as
long as that form and those conditions comply with the order made under
subsection (2).
(5) For
the purpose of subsection (4), the judge shall consider all the factors that
would be relevant for a determination of admissibility in the proceeding.
38.07 The
judge may order the Attorney General of Canada to give notice of an order made
under any of subsections 38.06(1) to (3) to any person who, in the opinion of
the judge, should be notified.
38.08 If
the judge determines that a party to the proceeding whose interests are
adversely affected by an order made under any of subsections 38.06(1) to (3)
was not given the opportunity to make representations under paragraph 38.04(5)(d),
the judge shall refer the order to the Federal Court of Appeal for review.
38.09
(1) An order made under any of subsections 38.06(1) to (3) may be appealed to
the Federal Court of Appeal.
(2) An
appeal shall be brought within 10 days after the day on which the order is made
or within any further time that the Court considers appropriate in the
circumstances.
38.1
Notwithstanding any other Act of Parliament,
(a) an
application for leave to appeal to the Supreme Court of Canada from a judgment
made on appeal shall be made within 10 days after the day on which the judgment
appealed from is made or within any further time that the Supreme Court of
Canada considers appropriate in the circumstances; and
(b) if
leave to appeal is granted, the appeal shall be brought in the manner set out
in subsection 60(1) of the Supreme Court Act but within the time
specified by the Supreme Court of Canada.
38.11
(1) A hearing under subsection 38.04(5) or an appeal or review of an order made
under any of subsections 38.06(1) to (3) shall be heard in private and, at the
request of either the Attorney General of Canada or, in the case of a
proceeding under Part III of the National Defence Act , the Minister of
National Defence, shall be heard in the National Capital Region, as described
in the schedule to the National Capital Act .
(2) The
judge conducting a hearing under subsection 38.04(5) or the court hearing an
appeal or review of an order made under any of subsections 38.06(1) to (3) may
give any person who makes representations under paragraph 38.04(5)(d),
and shall give the Attorney General of Canada and, in the case of a proceeding
under Part III of the National Defence Act , the Minister of National
Defence, the opportunity to make representations ex parte.
38.12
(1) The judge conducting a hearing under subsection 38.04(5) or the court
hearing an appeal or review of an order made under any of subsections 38.06(1)
to (3) may make any order that the judge or the court considers appropriate in
the circumstances to protect the confidentiality of the information to which
the hearing, appeal or review relates.
(2) The
court records relating to the hearing, appeal or review are confidential. The
judge or the court may order that the records be sealed and kept in a location
to which the public has no access.
38.13
(1) The Attorney General of Canada may personally issue a certificate that
prohibits the disclosure of information in connection with a proceeding for the
purpose of protecting information obtained in confidence from, or in relation
to, a foreign entity as defined in subsection 2(1) of the Security of
Information Act or for the purpose of protecting national defence or
national security. The certificate may only be issued after an order or
decision that would result in the disclosure of the information to be subject
to the certificate has been made under this or any other Act of Parliament.
(2) In
the case of a proceeding under Part III of the National Defence Act , the
Attorney General of Canada may issue the certificate only with the agreement,
given personally, of the Minister of National Defence.
(3) The
Attorney General of Canada shall cause a copy of the certificate to be served
on
(a) the
person presiding or designated to preside at the proceeding to which the
information relates or, if no person is designated, the person who has the
authority to designate a person to preside;
(b) every
party to the proceeding;
(c) every
person who gives notice under section 38.01 in connection with the proceeding;
(d) every
person who, in connection with the proceeding, may disclose, is required to
disclose or may cause the disclosure of the information about which the
Attorney General of Canada has received notice under section 38.01 ;
(e) every
party to a hearing under subsection 38.04(5) or to an appeal of an order made
under any of subsections 38.06(1) to (3) in relation to the information;
(f) the
judge who conducts a hearing under subsection 38.04(5) and any court that hears
an appeal from, or review of, an order made under any of subsections 38.06(1)
to (3) in relation to the information; and
(g) any
other person who, in the opinion of the Attorney General of Canada, should be
served.
(4) The
Attorney General of Canada shall cause a copy of the certificate to be filed
(a) with
the person responsible for the records of the proceeding to which the information
relates; and
(b) in
the Registry of the Federal Court and the registry of any court that hears an
appeal from, or review of, an order made under any of subsections 38.06(1) to
(3).
(5) If
the Attorney General of Canada issues a certificate, then, notwithstanding any
other provision of this Act, disclosure of the information shall be prohibited
in accordance with the terms of the certificate.
(6) The
Statutory Instruments Act does not apply to a certificate issued under
subsection (1).
(7) The
Attorney General of Canada shall, without delay after a certificate is issued,
cause the certificate to be published in the Canada Gazette.
(8) The
certificate and any matters arising out of it are not subject to review or to
be restrained, prohibited, removed, set aside or otherwise dealt with, except
in accordance with section 38.131.
(9) The
certificate expires 15 years after the day on which it is issued and may be
reissued.
38.131
(1) A party to the proceeding referred to in section 38.13 may apply to the
Federal Court of Appeal for an order varying or cancelling a certificate issued
under that section on the grounds referred to in subsection (8) or (9), as the
case may be.
(2) The
applicant shall give notice of the application to the Attorney General of
Canada.
(3) In
the case of proceedings under Part III of the National Defence Act ,
notice under subsection (2) shall be given to both the Attorney General of
Canada and the Minister of National Defence.
(4) Notwithstanding
section 16 of the Federal Court Act , for the purposes of the
application, the Federal Court of Appeal consists of a single judge of that
Court.
(5) In
considering the application, the judge may receive into evidence anything that,
in the opinion of the judge, is reliable and appropriate, even if it would not
otherwise be admissible under Canadian law, and may base a determination made
under any of subsections (8) to (10) on that evidence.
(6) Sections
38.11 and 38.12 apply, with any necessary modifications, to an application made
under subsection (1).
(7) The
judge shall consider the application as soon as reasonably possible, but not
later than 10 days after the application is made under subsection (1).
(8) If
the judge determines that some of the information subject to the certificate
does not relate either to information obtained in confidence from, or in relation
to, a foreign entity as defined in subsection 2(1) of the Security of
Information Act , or to national defence or national security, the judge
shall make an order varying the certificate accordingly.
(9) If
the judge determines that none of the information subject to the certificate
relates to information obtained in confidence from, or in relation to, a
foreign entity as defined in subsection 2(1) of the Security of Information
Act , or to national defence or national security, the judge shall make an
order cancelling the certificate.
(10) If
the judge determines that all of the information subject to the certificate
relates to information obtained in confidence from, or in relation to, a
foreign entity as defined in subsection 2(1) of the Security of Information
Act , or to national defence or national security, the judge shall make an
order confirming the certificate.
(11) Notwithstanding
any other Act of Parliament, a determination of a judge under any of
subsections (8) to (10) is final and is not subject to review or appeal by any
court.
(12) If
a certificate is varied or cancelled under this section, the Attorney General
of Canada shall, as soon as possible after the decision of the judge and in a
manner that mentions the original publication of the certificate, cause to be
published in the Canada Gazette
(a) the
certificate as varied under subsection (8); or
(b) a
notice of the cancellation of the certificate under subsection (9).
38.14
(1) The person presiding at a criminal proceeding may make any order that he or
she considers appropriate in the circumstances to protect the right of the
accused to a fair trial, as long as that order complies with the terms of any
order made under any of subsections 38.06(1) to (3) in relation to that proceeding,
any judgment made on appeal from, or review of, the order, or any certificate
issued under section 38.13.
(2)
The orders that may be made under subsection (1) include, but are not limited
to, the following orders:
(a) an
order dismissing specified counts of the indictment or information, or
permitting the indictment or information to proceed only in respect of a lesser
or included offence;
(b) an
order effecting a stay of the proceedings; and
(c) an
order finding against any party on any issue relating to information the
disclosure of which is prohibited.
38.15
(1) If sensitive information or potentially injurious information may be
disclosed in connection with a prosecution that is not instituted by the
Attorney General of Canada or on his or her behalf, the Attorney General of
Canada may issue a fiat and serve the fiat on the prosecutor.
(2) When
a fiat is served on a prosecutor, the fiat establishes the exclusive authority
of the Attorney General of Canada with respect to the conduct of the
prosecution described in the fiat or any related process.
(3) If
a prosecution described in the fiat or any related process is conducted by or
on behalf of the Attorney General of Canada, the fiat or a copy of the fiat
shall be filed with the court in which the prosecution or process is conducted.
(4) The
fiat or a copy of the fiat
(a) is
conclusive proof that the prosecution described in the fiat or any related
process may be conducted by or on behalf of the Attorney General of Canada; and
(b) is
admissible in evidence without proof of the signature or official character of
the Attorney General of Canada.
(5) This
section does not apply to a proceeding under Part III of the National
Defence Act .
38.16
The Governor in Council may make any regulations that the Governor in Council
considers necessary to carry into effect the purposes and provisions of
sections 38 to 38.15, including regulations respecting the notices, certificates
and the fiat.
Appeal
allowed.
Solicitor for the appellant: Public Prosecution Service
of Canada, Toronto.
Solicitor for the respondent Asad Ansari: John
Norris, Toronto.
Solicitors for the respondents Shareef Abdelhaleem and Amin Mohamed Durrani: Rocco Galati Law Firm Professional Corporation,
Toronto.
Solicitors for the respondent Steven Vikash Chand: Marlys Edwardh
Barristers Professional Corporation, Toronto.
Solicitor for the respondent
Saad Gaya: Paul B. Slansky, Toronto.
Solicitor for the intervener the Attorney
General of Ontario: Attorney General of Ontario, Toronto.
Solicitors
for the intervener the Canadian Civil Liberties Association: Kapoor
Barristers, Toronto.