R. v. Ahmad

R. v. Ahmad
Collection
Supreme Court Judgments
Date
2011-02-10
Neutral citation
2011 SCC 6
Report
[2011] 1 SCR 110
Case number
33066
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 33066
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110
Date: 20110210
Docket: 33066
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