nationalsecuritylaw R. v. Ahmad (Supreme Court of Canada, Feb. 10, 2011)

* R. v. Ahmad (Sup. Ct. Canada Feb. 10, 2011)

In an opinion posted here, the Supreme Court of Canada has upheld the constitutionality of Canada’s system of empowering a special court—the Federal Court—to resolve on an interlocutory basis the issues that might arise during a Superior Court criminal prosecution (in this case, the prosecution of some members of the so-called “Toronto 18” terrorism cell) where disclosure of sensitive national-security-related information becomes an issue. Put another way, whereas in the U.S. such issues are resolved by the trial judge under the Classified Information Procedures Act, the Canadian system diverts the question from the trial court to a specialized court, and in yesterday’s decision the Supreme Court of Canada upheld this arrangement as constitutional. A *very* interesting comparative law development for those of us in the U.S. who are interested in the clash between the government’s need for secrecy and the defendant’s right to a fair trial.

Here is the summation at the front of the opinion:

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 owninspection 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.

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