SCC: Federal Court has exclusive jurisdiction to decide national security privilege claims

The Supreme Court has upheld the Federal CourtÂ’s exclusive jurisdiction to decide national security privilege claims made in terrorism and other criminal trials.

After the top court ruled Feb. 10 in R. v. Ahmad that s. 38 of the Canada Evidence Act (CEA) is constitutional, the federal government refused to say whether it would abolish the widely-criticized provision which was dubbed “a failure” last year by the Air India Inquiry.

“We are aware of the suggestions for reform contained in the [Air India] Report, as well as those offered by other commentators, and consideration of the issue is ongoing,” said Carole Saindon, spokesperson for the Public Prosecution Service of Canada (PPSC).

Saindon told The Lawyers Weekly that the 9-0 decision in “Ahmad will undoubtedly help to further our analysis,” but she did not elaborate.

Section 38 specifies that only Federal Court judges may hear and determine disputes in criminal, civil or administrative proceedings about whether, and to what extent, information related to national security, national defence or international relations may be disclosed.

As a result provincial trial judges in terrorism or criminal prosecutions, who have been faced with national security confidentiality claims, have had to adjourn the cases while a Federal Court judge in Ottawa sorts out the privilege issues.

The situation has been condemned by trial judges, defence counsel, criminal procedure and security experts, and most recently by the Air India Inquiry, which recommended that the scheme be abolished because it unnecessarily bifurcates trials, causes long delays and potentially results in unfair trials.

Air India Commissioner Jack Major, a retired Supreme Court judge, recommended that national security confidentiality determinations should be made by Superior Court judges.

However, counsel told The Lawyers Weekly they are not holding their breath for Ottawa to change its position that s. 38 strikes the right balance between protecting sensitive national security information and ensuring fair criminal prosecutions.

Section 38 probably won’t be amended “unless and until trial judges start staying prosecutions” due to inadequate disclosure, predicts Toronto’s Anil Kapoor, counsel in Ahmad for the intervener Canadian Civil Liberties Association.

Kapoor suggested once “the government starts to lose prosecutions, then there will be some impetus to reform. But until that happens they will be ‘If it ainÂ’t broke, donÂ’t fix it.Â’ ”

Kapoor, who was also counsel to the Air India Inquiry, noted that the courtÂ’s interpretation of s. 38.14 of the CEA “gives very expansive powers to the trial judge to stay the prosecution. In fact the Supreme Court goes so far as to say that ‘if [the trial judge] canÂ’t decide if there is going to be an unfair trial, the default is to stay the prosecution.Â’ That is an extraordinary power that the trial judge has.”

Rocco Galati, counsel for two of the respondents in Ahmad, told The Lawyers Weekly he was “very disappointed that the Supreme Court bent over backwards to simply let government and police officers decide what happens in a court.”

He elaborated that any “RCMP officer or CSIS officer who says ‘I refuse to answer that on grounds of national security,’ [ensures that] the [trial] process gets hijacked to Federal Court at their strategic choosing, and we know they abuse this privilege…as a delay mechanism.”

PPSC senior general counsel Croft Michaelson, who won the appeal for the federal Crown, said the court has provided “helpful guidance to both prosecutors and defence counsel on how the scheme should operate in the context of a criminal trial proceeding…to the effect that issues concerning disclosure of information subject to national security privilege should be resolved early on, and not left until the courthouse door.”

In its ruling, the Supreme Court acknowledged the many criticisms that it said “challenge the underlying wisdom of the s. 38 scheme adopted by Parliament.”

However “the wisdom (as distinguished from the validity) of s. 38 is not a matter for this court,” the Supreme Court commented in per curiam reasons.

“It will ultimately be for Parliament to determine with the benefit of experience whether the wisdom of the bifurcated scheme should be reconsidered,” the court continued. “We conclude, however that s. 38, as we have interpreted it, passes constitutional muster.”

The ruling is an eye opener on several fronts. The court emphasizes, for example, that if a trial judge is ultimately left with inadequate information to decide whether or not trial fairness has been materially affected by the non-disclosure of the withheld material, “the trial judge must presume that the non-disclosure order has adversely affected the fairness of the trial.”

Notably, “if no (or inadequate) additional information can be provided to the trial judge, a stay of proceedings will be the presumptively appropriate remedy.”

The court also laid to rest the misconception that just because a trial judge has no right of access to potentially injurious or sensitive material under s. 38, such access will not normally occur.

“The drastic nature of the potential remedies specified in s. 38.14 [such as a stay] 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,” the judges explained.

They proffered “a practical approach” to s. 38, whereby the attorney general and the Crown “should take all steps available within the limits imposed by the legislation to provide trial judges with the information required to discharge both their duties to safeguard the fairness of the trial process and not to grant unwarranted stays.”

In addition, they said 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.

While the Supreme Court found the scheme to be constitutional, if operated in this way, it also acknowledged that s. 38 may produce unacceptable results which trial judges will have to remedy.

“Trial unfairness will not be tolerated,” the court stressed several times. “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 [of the CEA] to put an end to the prosecution.”

The court noted “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.”

The Supreme Court also ruled that while stays of proceedings are granted rarely under the common law and Charter, i.e. in only the “clearest of cases,” this elevated standard does not apply under s. 38.14 of the CEA which specifically contemplates the use of stays to protect the fair trial rights of the accused from the adverse impact of non-disclosure.

The court went on to allow the federal CrownÂ’s appeal from the decision of Ontario Superior Court Justice Fletcher Dawson, who struck down s. 38 in response to a constitutional challenge by 10 of 18 people arrested in Toronto in 2006 on suspicion of plotting terrorist attacks.

In addition to other constitutional flaws, the judge held that s. 38 violates the s. 7 Charter right to a fair trial because not allowing the trial judge to see the withheld material leaves the trial court unable to protect and enforce the rights of an accused to disclosure and to make full answer and defence.

The Supreme Court disagreed. “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 accusedÂ’s right to a fair trial.”