Application under s. 83.28 of the Criminal Code (Re)

Application under s. 83.28 of the Criminal Code (Re)
Collection
Supreme Court Judgments
Date
2004-06-23
Neutral citation
2004 SCC 42
Report
[2004] 2 SCR 248
Case number
29872
Judges
McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis; Deschamps, Marie; Fish, Morris J.
On appeal from
British Columbia
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 29872
Decision Content
Application under s. 83.28 of the Criminal Code (Re ), [2004] 2 S.C.R. 248, 2004 SCC 42
IN THE MATTER OF an application under section 83.28 of the Criminal Code
Indexed as: Application under s. 83.28 of the Criminal Code (Re )
Neutral citation: 2004 SCC 42.
File No.: 29872.
2003: December 10, 11; 2004: June 23.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ.
on appeal from the british columbia supreme court
Constitutional law — Charter of Rights — Liberty — Fundamental justice — Self-incrimination — Terrorism — Investigative hearings — Whether Criminal Code provision allowing order for gathering of information and investigative hearing infringes s. 7 of Canadian Charter of Rights and Freedoms — Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Constitutional law — Judicial independence — Impartiality — Investigation of terrorism offences — Whether Criminal Code provision allowing order for gathering of information and investigative hearing infringes principles of judicial independence and impartiality — Constitution Act, 1867 , Preamble — Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Criminal law — Terrorism — Investigative hearings — Retrospectivity — Criminal Code amended to provide for investigative hearings for purposes of gathering information on terrorism offences — Whether provision for investigative hearings applicable to incidents that occurred prior to its enactment — Whether provision procedural in substance and effect — Whether presumption of immediate effect rebutted — Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Criminal law — Terrorism — Investigative hearings — Independence of Crown — Criminal Code amended to provide for investigative hearings for purposes of gathering information on terrorism offences — Whether independence of Crown counsel compromised by judicial investigative hearing process — Criminal Code, R.S.C. 1985, c. C-46, s. 83.28 .
Criminal law — Terrorism — Investigative hearings — Whether purpose of investigative hearing was pre-trial discovery of evidence.
M and B were jointly charged with several offences in relation to the explosion of Air India Flight 182 and the intended explosion of Air India Flight 301. Shortly after the beginning of their trial, the Crown brought an ex parte application seeking an order that a Named Person, a potential Crown witness at the Air India trial, attend a judicial investigative hearing for examination pursuant to s. 83.28 of the Criminal Code , which is one of the new provisions added to the Code as a result of the enactment of the Anti-terrorism Act in 2001. The application judge granted the order and set a number of terms and conditions to govern the conduct of the judicial investigative hearing, among others, the hearing was to be conducted in camera and notice of the hearing was not to be given to the accused in the Air India trial, to the press or to the public. Counsel for the accused, who fortuitously became aware of the order, informed the application judge that they wished to make submissions. Counsel for the Named Person also applied to challenge the constitutional validity of s. 83.28 . The constitutional challenge and the application to set aside the order were heard in camera. The judge presiding at the hearing concluded that the order was validly issued and s. 83.28 was constitutionally sound. Given the unusual circumstances of this case, she varied the order to permit counsel for the accused to attend at the investigative hearing and examine the Named Person under the proviso that they leave the hearing if information unrelated to the trial was elicited. They were also prohibited from disclosing any information or evidence obtained at the hearing to the public or to the accused. The judgment was sealed until the conclusion of the hearing or any contrary order of the court. Since there is no provision in the Criminal Code for an appeal of a s. 83.28 order to a provincial court of appeal, the Named Person successfully sought leave to appeal to this Court.
Held (Binnie, LeBel and Fish JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Iacobucci, Major and Arbour JJ.: The purpose of the Anti-terrorism Act is to prosecute and prevent terrorism offences. Although terrorism necessarily changes the context in which the rule of law must operate, it does not call for the abdication of law. The challenge for democracies in the battle against terrorism is to balance an effective response with fundamental democratic values that respect the importance of human life, liberty and the rule of law. Subject to interpretive comments, s. 83.28 of the Criminal Code meets that challenge.
The meaning of s. 83.28 is ambiguous in two respects: (1) the role of counsel for the witness at the judicial investigative hearing, and (2) the threshold of relevance and admissibility applicable in that hearing where information, as opposed to evidence, is sought. A broad and purposive interpretation of s. 83.28 , which accords with the presumption of constitutionality, resolves both of these ambiguities. Read narrowly, ss. 83.28(9) and 83.28(8) seem to restrict counsel to objections on specified grounds, but read purposively with s. 83.28(12) , s. 83.28 suggests a more fulsome participation by counsel since the relevancy requirement in s. 83.28(12) also attaches to the questioning of the named person. The purposive approach is supported by the wide ambit given to the judiciary under ss. 83.28(5)(e) and 83.28(7) to set or vary the terms and conditions of an order. This broad power enables the judge to respond flexibly to the specific circumstances of each application and ensures that constitutional and common law rights and values are respected. As to the threshold for relevance and admissibility, when viewed purposively, the judicial investigative proceeding can be regarded as a criminal proceeding. The common law evidentiary principles clearly apply as does the Canada Evidence Act . More importantly, the judge is present to ensure that the procedure is carried out in accord with constitutional protections.
Section 83.28 is presumed to have immediate effect and to apply retrospectively because it effects only procedural change and does not create or impinge upon substantive rights. It is prima facie procedural because it outlines the process by which hearings are to be carried out. The reference in s. 83.28(4) to “terrorism offence” does not transform the procedural nature of s. 83.28 into a substantive one. Furthermore, a judicial investigative hearing remains procedural even though it may generate information pertaining to an offence. Lastly, the presumption of immediate effect of s. 83.28 has not been rebutted. No contrary intent of Parliament has been evinced, and providing under s. 83.28(4)(a) and (b) that judicial hearings may apply before and after the commission of a terrorism offence indicates parliamentary intent that it may apply retrospectively.
Section 83.28 of the Code does not violate s. 7 of the Charter . Although statutory compulsion to testify and the consequences for a named person of failing to comply with s. 83.28 both clearly engage liberty interests under s. 7, s. 83.28 does not infringe the right against self‑incrimination. The right against self‑incrimination is a principle of fundamental justice from which three procedural safeguards have emerged in relation to criminal law: use immunity, derivative use immunity and constitutional exemption. Section 83.28(10) provides both use and absolute derivative use immunity and a constitutional exemption is provided by the principle that testimonial compulsion is precluded where its predominant purpose is to determine penal liability. Section 83.28(10) , however, provides these safeguards only in criminal proceedings whereas the international scope of terrorism and terrorism investigation raises concerns about the use of information gathered under s. 83.28(10) in extradition or deportation hearings and by foreign authorities. In order to meet the s. 7 requirements, the procedural safeguards found in s. 83.28 must necessarily be extended to those proceedings. The hearing judge must thus make and, if necessary, vary the terms of an order to properly provide use and derivative immunity in extradition or deportation proceedings.
Judges acting under s. 83.28 do not lack institutional independence or impartiality, nor are they co-opted into performing an executive function. Section 83.28 requires the judge to act judicially, in accordance with constitutional norms and the historic role of the judiciary in criminal proceedings. A broad and purposive interpretation of s. 83.28 is consistent with the judiciary’s role, which in this context is to protect the integrity of the investigation and the interests of the named person. Judges bring the full weight of their authority to the hearing to provide all the constitutional guarantees of the Charter , and a failure to do so will constitute on the part of a hearing judge a reviewable error. A reasonable and informed person, viewing the relevant statutory provisions in their full historical context, would conclude that the court or tribunal is independent. The conclusion in the Vancouver Sun appeal that hearings are presumptively to be in open court also supports a conclusion that the judiciary is independent and impartial.
Nor is the independence of Crown counsel compromised by the investigative hearing process. The core content of Crown independence is the maintenance of objectivity throughout the process, but since the application of Crown objectivity is highly contextual, it fails to meet the criteria for recognition as a principle of fundamental justice under s. 7 . By bringing Crown counsel into the judicial investigative hearing process, the legislature intended that the Crown would conduct itself according to its proper role as an officer of the court and its duty of impartiality in the public interest.
The purpose of the hearing in this case was to investigate a terrorism offence and not to obtain pre‑trial discovery. No reviewable error arises from the hearing judge’s conclusion that the Crown met its onus to demonstrate in good faith that the hearing’s purpose was investigative. However, because the judicial investigative hearing was sought in the midst of an ongoing trial and in total secrecy, some pre‑trial advantage might have been given to the Crown. The ruling in the Vancouver Sun appeal that there is a presumption favouring open hearings and the participation of counsel would have overcome these concerns.
Section 11 (d) of the Charter does not apply because the Named Person is not an accused. In light of the conclusion on openness in the Vancouver Sun appeal and the previous comments on the scope and operation of s. 83.28 , there is no need to decide whether the participation of counsel for the accused was an appropriate condition under s. 83.28(5) (e).
Per Bastarache and Deschamps JJ.: Subject to the following comments, the reasons of Iacobucci and Arbour JJ. are agreed with. First, where a judicial investigative hearing is closed, the independence or impartiality of the judiciary will not be compromised, as several other factors promote independence and impartiality. The subsequent release of the information disclosed during these proceedings promotes the accountability of the judiciary. Second, the hearing judge made neither a palpable nor an overriding error in her assessment of the facts and her approach was correct in principle. The participation of counsel for the accused was sufficient to overcome any concern regarding the practical effect of the hearing on the Air India trial. Lastly, there is no evidence that the hearing judge erred in concluding that counsel for the accused could participate in the hearing.
Per Binnie J.: Section 83.28 of the Criminal Code , when correctly interpreted and properly applied, is constitutionally valid.
Per Binnie, LeBel and Fish JJ. (dissenting): The Crown’s resort to s. 83.28 of the Criminal Code in this case was at least in part for an inappropriate purpose, namely, to bootstrap the prosecution’s case in the Air India trial by subjecting an uncooperative witness, the Named Person, to a mid-trial examination for discovery before a judge other than the Air India trial judge. The Named Person had been equally uncooperative with the defence, and in the circumstances resort to the s. 83.28 procedure was unfair to the accused M and B and an abuse of process.
The terrorism offence being investigated under s. 83.28 is also the subject matter of the criminal charges against M and B. The Named Person was scheduled to testify for the prosecution, but because the Crown proceeded by direct indictment, neither the prosecution nor the defence had a preliminary look at this witness. Section 83.28 was not designed to serve as a sort of half-way house between a preliminary hearing and a direct indictment. Clearly one purpose of the s. 83.28 hearing was to provide the Crown with a transcript of the Named Person’s compelled testimony under oath that would otherwise be unobtainable. This restored to the Crown some of the advantage it had lost in opting for the direct indictment, while not giving the defence a comparable opportunity to examine potential witnesses of its choosing. The Crown sought to keep the defence (and the Air India trial judge) in a state of ignorance of even the existence of the s. 83.28 proceedings.
The conditions imposed on the initial order and the lack of notice to the judge in the Air India trial of what was afoot gave the Crown a significant advantage. The connection between the Air India trial and the s. 83.28 hearing was plain and obvious and it was the responsibility of all concerned to ensure that the fair trial rights of M and B were not prejudiced. The defects in the initial s. 83.28 order were not cured by the amendments made by the hearing judge. The issue is not just whether the hearing judge ameliorated the original terms (which she did) but whether the hearing should have proceeded at all in the time frame sought by the Crown.
If the Crown’s dominant concern had been the “ongoing investigation”, as was held by the hearing judge, the prosecution could have called the Named Person to testify at any time after the Air India trial started over a year ago. That would have enabled the s. 83.28 hearing to proceed free of constraints imposed by the ongoing Air India trial.
In any event, an “improper purpose” test is too narrow. The effects of a resort to s. 83.28 are also important. The prejudicial effect on the defence in this case could be eliminated by a delay of the s. 83.28 hearing until after the Named Person had testified at the Air India trial or the Crown had indicated that the Named Person would not be called as a prosecution witness. To proceed sooner would be an abuse of the s. 83.28 process.
Per LeBel and Fish JJ. (dissenting): Section 83.28 of the Criminal Code compromises the institutional dimension of judicial independence and should be declared unconstitutional. Judicial independence has two dimensions, namely individual independence,_which attaches to the individual judge, and institutional independence, which attaches to courts as institutions and ensures the separation of powers. Although a judge may be independent in fact and act with the utmost impartiality, judicial independence will not exist if the court of which he or she is a member is not independent of the other branches of government on an institutional level. In this case, s. 83.28 requires judges to preside over police investigations; as such investigations are the responsibility of the executive branch, this cannot but leave a reasonable, well-informed person with the impression that judges have become allies of the executive branch. First, s. 83.28 does not give the hearing judge the necessary tools to effectively play his or her role as protector of the fundamental rights of the person being examined. Second, if it were possible to conclude that the judge could effectively rule on certain objections during the investigation, the fluidity and vagueness of the investigation procedure would still give too much discretion to the judge. A judge’s individual perception of his or her role will necessarily affect the nature and conduct of the examination. Some judges will be more inclined than others to protect the fundamental rights of the person being examined. Third, in enacting s. 83.28 , Parliament gave increased powers to the executive branch to enable it to investigate acts of terrorism effectively. A reasonable person might for this reason conclude that Parliament intended to use the judiciary to make the prevention and suppression of such acts more effective. The judge’s duties under s. 83.28 are unlike any of the duties traditionally discharged by the judiciary. The judge takes part in and facilitates the police investigation without having real power to act as a neutral arbiter. Finally, the public’s perception that the judicial and the executive branches do not act separately in an investigation under s. 83.28 will be heightened when the investigation is held in camera.
Cases Cited
By Iacobucci and Arbour JJ.
Referred to: Vancouver Sun (Re ), [2004] 2 S.C.R. 332, 2004 SCC 43; Terminiello v. Chicago, 337 U.S. 1 (1949); H.C. 5100/94, Public Committee Against Torture in Israel v. Israel, 53(4) P.D. 817; R. v. Reyat, [1991] B.C.J. No. 2006 (QL); Rizzo & Rizzo Shoes Ltd. (Re ), [1998] 1 S.C.R. 27; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; R. v. Lucas, [1998] 1 S.C.R. 439; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; R. v. Gladue, [1999] 1 S.C.R. 688; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31; Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; Howard Smith Paper Mills Ltd. v. The Queen, [1957] S.C.R. 403; Wildman v. The Queen, [1984] 2 S.C.R. 311; Wright v. Hale (1860), 6 H. & N. 227, 158 E.R. 94; R. v. Ali, [1980] 1 S.C.R. 221; R. v. S. (R.J.), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3; R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4; R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73; R. v. Jones, [1994] 2 S.C.R. 229; R. v. White, [1999] 2 S.C.R. 417; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Beauregard v. Canada, [1986] 2 S.C.R. 56; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13; R. v. Lippé, [1991] 2 S.C.R. 114; Valente v. The Queen, [1985] 2 S.C.R. 673; Therrien (Re ), [2001] 2 S.C.R. 3, 2001 SCC 35; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Boucher v. The Queen, [1955] S.C.R. 16; Lemay v. The King, [1952] 1 S.C.R. 232; Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, 2001 SCC 66; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
Cited by Binnie J. (dissenting)
Terminiello v. Chicago, 337 U.S. 1 (1949); Reference Re: Persons of Japanese Race, [1946] S.C.R. 248, aff’d [1947] 1 D.L.R. 577; Skogman v. The Queen, [1984] 2 S.C.R. 93; Re Regina and Arviv (1985), 51 O.R. (2d) 551; R. v. Esposito (1985), 24 C.C.C. (3d) 88; R. v. U. (F.J.), [1995] 3 S.C.R. 764; R. v. Stinchcombe, [1991] 3 S.C.R. 326; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Scott, [1990] 3 S.C.R. 979; R. v. Jewitt, [1985] 2 S.C.R. 128; R. v. Power, [1994] 1 S.C.R. 601; R. v. O’Connor, [1995] 4 S.C.R. 411; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.
Cited by LeBel J. (dissenting)
Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; Valente v. The Queen, [1985] 2 S.C.R. 673; Beauregard v. Canada, [1986] 2 S.C.R. 56; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35; Therrien (Re ), [2001] 2 S.C.R. 3, 2001 SCC 35.
Statutes and Regulations Cited
Anti-terrorism Act, S.C. 2001, c. 41 , Preamble, s. 4.
Canada Evidence Act, R.S.C. 1985, c. C‑5 , Part I, ss. 2, 4(3), 8-12, 9, 10, 11, 19-36, 42.
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 -14 , 11 (d), 33 .
Competition Act, R.S.C. 1985, c. C-34, s. 11 .
Constitution Act, 1867 , Preamble, ss. 96-100.
Criminal Code, R.S.C. 1985, c. C-46, ss. 2 “terrorism offence” [ad. 2001, c. 41, s. 2(2)], 83.28 [idem, s. 4 ], 83.29 [idem], 184.2, 487, 487.05, 487.052.
Emergencies Act, R.S.C. 1985, c. 22 (4th Supp .).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 34 .
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp .), s. 231.4 .
Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp .), s. 22.2 .
Supreme Court Act, R.S.C. 1985, c. S-26, s. 40 .
Authors Cited
Barak, Aharon. “Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002), 116 Harv. L. Rev. 16.
British Columbia. Criminal Justice Branch. Media Statement. “Inderjit Singh Reyat Pleads Guilty to Role in Air India Explosion”, 10 February 2003, <www.ag.gov.bc.ca/airindia/cjb_ms_03-02.htm>.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st Sess., 37th Parl., October 15, 2001, p. 6048.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st Sess., 37th Parl., October 16, 2001, p. 6166.
Canada. House of Commons. House of Commons Debates, vol. 137, 1st Sess., 37th Parl., November 28, 2001, p. 7620.
Canada. Senate. Proceedings of the Special Senate Committee on Subject Matter of Bill C-36. Issue No. 4, 1st Sess., 37th Parl., October 29, 2001, p. 4:4.
Cohen, Stanley A. “Safeguards in and Justifications for Canada’s New Anti‑terrorism Act” (2002-2003), 14 N.J.C.L. 99.
Cudmore, Gordon D. Choate on Discovery, 2nd ed. Scarborough, Ont.: Carswell, 1993 (loose-leaf updated 2001, release 3), p. 1-11.
Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.
Friedland, Martin L. “Police Powers in Bill C-36”, in Ronald J. Daniels, Patrick Macklem and Kent Roach, eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill. Toronto: University of Toronto Press, 2001.
Jenkins, David. “In Support of Canada’s Anti-Terrorism Act : A Comparison of Canadian, British, and American Anti-Terrorism Law” (2003), 66 Sask. L. Rev. 419.
Lederman, W. R. “The Independence of the Judiciary”, in Allen M. Linden, ed., The Canadian Judiciary. Toronto: Osgoode Hall Law School, 1976, 1.
Millard, Jeremy. “Investigative Hearings under the Anti-Terrorism Act ” (2002), 60(1) U.T. Fac. L. Rev. 79.
Paciocco, David M. “Constitutional Casualties of September 11: Limiting the Legacy of the Anti‑Terrorism Act ” (2002), 16 S.C.L.R. (2d) 185.
Sullivan, Ruth. Sullivan and Driedger on the Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
APPEAL from a judgment of the British Columbia Supreme Court, [2003] B.C.J. No. 1749 (QL), 2003 BCSC 1172, upholding the constitutional validity of s. 83.28 of the Criminal Code and the validity of an order for a judicial investigative hearing but varying its terms. Appeal dismissed, Binnie, LeBel and Fish JJ. dissenting.
Brian A. Crane, Q.C., Howard Rubin and Kenneth Westlake, for the appellant the “Named Person”.
Bernard Laprade and George Dolhai, for the respondent the Attorney General of Canada.
Alexander Budlovsky and Mary T. Ainslie, for the respondent the Attorney General of British Columbia.
William B. Smart, Q.C., and Brock Martland, for the respondent Ripudaman Singh Malik.
Michael A. Code and Jonathan Dawe, for the respondent Ajaib Singh Bagri.
Michael Bernstein and Sandy Tse, for the intervener the Attorney General of Ontario.
John B. Laskin and Frank Cesario, for the intervener the Canadian Civil Liberties Association.
Marie Henein and Jennifer Gleitman, for the intervener the Federation of Law Societies of Canada.
Gregory P. Delbigio, for the intervener the Canadian Bar Association.
Robert S. Anderson and Ludmila B. Herbst, for the interveners The Vancouver Sun, The National Post and Global Television Network Inc.
The judgment of McLachlin C.J. and Iacobucci, Major and Arbour JJ. was delivered by
Iacobucci and Arbour JJ. —
I. Introduction
1 This appeal is a companion to Vancouver Sun (Re ), [2004] 2 S.C.R. 332, 2004 SCC 43 (the “media appeal”), released concurrently.
2 This appeal raises for the first time in this Court fundamental questions about the constitutional validity of provisions of the Anti-terrorism Act, S.C. 2001, c. 41 (the “Act ”), which were adopted as amendments to the Criminal Code, R.S.C. 1985, c. C-46 (the “Code ”). The Act is a legislative component of Canada’s response to the enormous tragedy of the September 11, 2001 terrorist attacks in the United States. Many other countries, including the United States and the United Kingdom, similarly responded with legislation: D. Jenkins, “In Support of Canada’s Anti-Terrorism Act : A Comparison of Canadian, British, and American Anti-Terrorism Law” (2003), 66 Sask. L. Rev. 419.
3 The specific issues relate to the constitutional validity of s. 83.28 of the Code , the “judicial investigative hearing” provision, under which the appellant was ordered to attend and be compelled to answer questions. We use “appellant” here to refer to the “Named Person”, who is the subject of the s. 83.28 order and brought the appeal to this Court.
4 Subject to the interpretive comments we make about the section and its operation, we find the impugned provision to pass constitutional muster. However, at the outset, we believe it important to set forth some background considerations in this appeal and the media appeal.
5 The challenge for democracies in the battle against terrorism is not whether to respond, but rather how to do so. This is because Canadians value the importance of human life and liberty, and the protection of society through respect for the rule of law. Indeed, a democracy cannot exist without the rule of law. So, while Cicero long ago wrote “inter arma silent leges” (the laws are silent in battle) (Pro Milone 14), we, like others, must strongly disagree: see A. Barak, “Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy” (2002), 116 Harv. L. Rev. 16, at pp. 150-51.
6 Although terrorism necessarily changes the context in which the rule of law must operate, it does not call for the abdication of law. Yet, at the same time, while respect for the rule of law must be maintained in the response to terrorism, the Constitution is not a suicide pact, to paraphrase Jackson J.: Terminiello v. Chicago, 337 U.S. 1 (1949), at p. 37 (in dissent).
7 Consequently, the challenge for a democratic state’s answer to terrorism calls for a balancing of what is required for an effective response to terrorism in a way that appropriately recognizes the fundamental values of the rule of law. In a democracy, not every response is available to meet the challenge of terrorism. At first blush, this may appear to be a disadvantage, but in reality, it is not. A response to terrorism within the rule of law preserves and enhances the cherished liberties that are essential to democracy. As eloquently put by President Aharon Barak of the Israeli Supreme Court:
This is the fate of democracy, as not all means are acceptable to it, and not all methods employed by its enemies are open to it. Sometimes, a democracy must fight with one hand tied behind its back. Nonetheless, it has the upper hand. Preserving the rule of law and recognition of individual liberties constitute an important component of its understanding of security. At the end of the day, they strengthen its spirit and strength and allow it to overcome its difficulties.
(H.C. 5100/94, Public Committee Against Torture in Israel v. Israel, 53(4) P.D. 817, at p. 845, cited in Barak, supra, at p. 148.)
8 Although the constitutionality of a legislative approach to terrorism will ultimately be determined by the judiciary in its role as the arbiter of constitutional disputes for the country, we must not forget that the legislative and executive branches also desire, as democratic agents of the highest rank, to seek solutions and approaches that conform to fundamental rights and freedoms.
II. The Background
9 We recognize that there is an overlap between the facts and procedural history of this appeal and that of the media appeal. It is nonetheless helpful to fully canvass the facts in each appeal to aid in the understanding of the context in which the issues are raised.
A. The Facts and Procedural History
10 The invocation of the legislative provision at the focus of this appeal, s. 83.28 of the Code , relates to two alleged acts of terrorism, both of which occurred on June 23, 1985. An explosion killed two baggage handlers, and injured four others, at the Narita Airport in Japan, as baggage was being transferred onto Air India Flight 301. A second explosion occurred just under one hour later, causing Air India Flight 182 to crash off the west coast of Ireland. All 329 passengers and crew perished in the explosion.
11 On February 4, 1988, the first accused, Inderjit Singh Reyat, was arrested in England. He was extradited to Canada on December 13, 1989, where he faced numerous charges relating to the explosion at Narita Airport. On May 10, 1991, he was convicted on seven counts, concerning manslaughter and the acquisition, possession, and use of explosive substances: R. v. Reyat, [1991] B.C.J. No. 2006 (QL) (S.C.).
12 Ripudaman Singh Malik and Ajaib Singh Bagri were jointly charged with several offences in relation to both explosions and the intended explosion of Air India Flight 301 on October 27, 2000. On March 8, 2001, a direct indictment was filed against the accused, Mr. Malik and Mr. Bagri. Mr. Reyat was tried in relation to the bombing of Air India Flight 182, and a new indictment was filed on June 5, 2001, adding Mr. Reyat as a third accused.
13 On February 10, 2003, Mr. Reyat pleaded guilty to a new indictment charging him with aiding or abetting the construction of the explosive that was placed on Air India Flight 182 and the manslaughter of the 329 passengers and crew. He was sentenced to five years imprisonment in addition to time already spent in custody.
14 On February 24, 2003, Mr. Malik and Mr. Bagri re‑elected to have their case tried by judge alone. The trial of Mr. Malik and Mr. Bagri (the “Air India Trial”) began on April 28, 2003 and continues to date.
15 Shortly thereafter, on May 6, 2003, the Crown brought an ex parte application seeking an order that the appellant attend for examination pursuant to s. 83.28 of the Code . Dohm A.C.J. of the British Columbia Supreme Court granted the application and issued an order for the gathering of information on the basis of an affidavit by a member of the RCMP’s Air India Task Force.
16 Dohm A.C.J. set a number of terms and conditions to govern the conduct of the judicial investigative hearing: (1) it was to be conducted in camera; (2) the appellant was entitled to counsel; (3) examination was to be undertaken by the Attorney General; (4) the appellant was required to answer questions and produce items ordered to be produced subject to privilege or other non‑disclosure considerations; (5) the appellant was prohibited from disclosing any information or evidence obtained at the hearing; and (6) notice was not to be given to the accused in the Air India Trial, to the press, or to the public. Upon service of the order, the appellant was to be informed of the right to retain and instruct counsel and that a failure to attend or remain in attendance at the hearing may result in the issuance of an arrest warrant.
17 The order required the appellant to attend at an examination on May 20, 2003. At some point prior to that date, counsel for Mr. Malik and Mr. Bagri fortuitously became aware of the order and advised Dohm A.C.J. that they wished to make submissions. The appellant retained counsel, and on June 16, 2003, Dohm A.C.J. was advised that the appellant wished to challenge the constitutional validity of s. 83.28 of the Code . Dohm A.C.J. directed that Holmes J. hear all submissions jointly in seven days time. The constitutional challenge to s. 83.28 and the application to set aside Dohm A.C.J.’s order commenced on June 23, 2003.
18 The application to set aside the order was dismissed, and Holmes J. issued reasons on July 21, 2003. The order was varied, however, to permit counsel for Mr. Malik and Mr. Bagri to attend at the judicial investigative hearing and examine the appellant under the proviso that they leave the hearing if information unrelated to the trial was elicited. The amended order further prohibited the accused from attending the hearing. Counsel were prohibited from disclosing any information or evidence obtained at the hearing to the public and to the accused. The reasons for judgment were sealed.
19 Upon application, Holmes J. stayed the judicial investigative hearing on July 22, 2003 until September 2, 2003, so that the appellant could seek leave to appeal to this Court. The appeal is brought under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26 , as there is no provision in the Code for an appeal of a s. 83.28 order to a provincial court of appeal. On that date, Holmes J. delivered, in open court, a synopsis of her reasons for judgment, dated July 21, 2003. She also stated that the examination of the appellant under s. 83.28 had not yet begun, and that the judicial investigative hearing had been adjourned pending leave to appeal to this Court.
20 On August 11, 2003, leave was granted for an appeal to this Court from the decision of Holmes J. The appeal was heard on December 10 and 11, 2003, and was held, in its entirety, in open court, subject to terms and conditions stated by the Chief Justice at the outset. During oral argument, counsel refrained from revealing the appellant’s identity, and any material supporting the order for the judicial investigative hearing. Moreover, the appeal was not broadcast, contrary to the usual practice of the Court.
B. The Decision of Holmes J.
21 In the publicly released synopsis of her reasons for judgment dated July 21, 2003, Holmes J. explained that the in camera proceedings she presided over concerned the interpretation, application, and constitutionality of s. 83.28 of the Code , the provision which provides for judicial investigative hearings in relation to terrorism offences: [2003] B.C.J. No. 1749 (QL), 2003 BCSC 1172. She stated that an order under s. 83.28 had been issued on May 6, 2003, requiring the appellant to attend for examination by the agent of the Attorney General, on the basis that the ordering judge had reasonable grounds for believing that a terrorism offence had occurred, and that information in relation to that offence was likely to be obtained as a result of the judicial investigative hearing. Holmes J. further explained that the appellant is neither an accused, nor a suspect in the underlying terrorism offence. She stated that the terrorism offence under investigation was the two related Air India explosions discussed in the facts above.
22 Holmes J. canvassed six main issues, namely: (1) whether the order for the hearing could be validly issued in relation to a terrorism offence alleged to have been committed before s. 83.28 came into force; (2) whether the order in question was sufficiently specific; (3) whether s. 83.28 and the order violate the right to silence of the person required to attend for examination, including the right against self‑incrimination; (4) whether s. 83.28 and the order breach the accused’s fair trial rights by providing for pre-trial or mid-trial preparation or discovery for the Crown that is not available to the defence; (5) whether s. 83.28 interferes with the independence and impartiality of the judiciary; and (6) whether, if the order is valid and the judicial investigative hearing is to proceed, counsel for the accused are entitled to participate, and if so, to what extent.
23 Having considered each of these issues, Holmes J. concluded both that the order was validly issued and constitutionally sound. She determined further that while the participation of counsel at a judicial investigative hearing would be inappropriate in most cases, it was not inappropriate in this particular case, given the unusual circumstances. Consequently, counsel for the accused, as well as the Attorney General were entitled to examine the appellant. Holmes J. further stated that the hearing was subject to restrictions regarding the privacy and other rights and interests of the appellant, as well as regarding the integrity of the investigation.
24 Holmes J. found additionally that, while the examination conducted under the order may have incidental effects on the continuing trial of the accused, the procedure was resorted to predominantly to further an ongoing investigation. Accordingly, she stated that her detailed reasons for judgment dated July 21, 2003 would remain sealed until the conclusion of the hearing or any contrary order of the court.
III. Relevant Constitutional and Legislative Provisions
25 The relevant constitutional and legislative provisions are set forth in the appendix.
IV. Issues
26 The following constitutional questions were stated by the Chief Justice on August 28, 2003:
1. Does s. 83.28 of the Criminal Code, R.S.C. 1985, c. C-46 , infringe s. 7 of the Canadian Charter of Rights and Freedoms ?
2. If so, is the infringement a reasonable limit, prescribed by law, as can be demonstrably justified in a free and democratic society under s. 1 of the Charter ?
3. Does s. 83.28 of the Criminal Code infringe the principles of judicial independence and impartiality guaranteed by s. 11 (d) of the Charter ?
4. If so, is the infringement a reasonable limit, prescribed by law, as can be demonstrably justified in a free and democratic society under s. 1 of the Charter ?
5. Does s. 83.28 of the Criminal Code infringe the principles of independence and impartiality established by the Preamble to the Constitution Act, 1867 ?
27 This appeal also raises the following additional issues:
1. Can s. 83.28 of the Criminal Code be applied retrospectively where the terrorism offences were committed in 1985, before the Anti‑terrorism Act came into force?
2. Can s. 83.28 be used for the purpose of pre‑trial discovery of the evidence of the named person, a witness under subpoena by the