Toeing the Line Between National Security and Criminal Prosecution: The SCC Tackles s. 38 of the Canada Evidence Act
The state may withhold so-called “secret evidence” in court proceedings, even if it means an alleged criminal may walk free. In a decision which delicately balances individual liberties with the state’s obligation to protect society by preventing the disclosure of information that could pose a threat to national defence/security, the Supreme Court of Canada (“SCC”) has pleased both the state and various individual rights associations.
Section 38 of the Canada Evidence Act, RSC 1985, c C-5 [CEA], sets out an elaborate framework to (where possible) reconcile the state’s dual obligations of protecting national security and prosecuting accused criminals. R v Ahmad, 2011 SCC 6, questioned whether this legislation went too far. An unanimous Court held that it did not.
Section 38 attempts to reconcile the two competing objectives of protecting national security and effectively combatting crime. Without going into excessive detail here, the important provisions to this case comment are outlined below.
First, disclosure (in court) of allegedly sensitive material may be authorized if it is found there is no threat to national security (s. 38.06(1)). If there is a national security threat, disclosure may only be authorized if the public interest in disclosure outweighs the public interest in non-disclosure (s. 38.06(2)).
Conditions may also be imposed on disclosure (s. 38.07). At the same time, if disclosure is deemed necessary, a judge presiding over the criminal trial has the power to make any order considered necessary in order to protect the accused’s rights to a fair trial, although the judge is powerless to order production of the material in question (s. 38.14).
Since we’ll find s. 38.14 to be a critical provision to this analysis, it is reproduced below.
38.14 (1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.
(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:
(a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;
(b) an order effecting a stay of the proceedings; and
(c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.
Eighteen alleged terrorists were arrested on the suspicion that they were plotting terrorist attacks in Toronto. Before trial, the Crown notified the Attorney General of Canada that the proceedings could potentially disclosed sensitive government information. Pursuant to s. 38 of the CEA, the Attorney General brought the issue before the Federal Court, who ordered a hearing and required that notice be given to the Superior Court judge (Dawson J.). The accused then applied in Superior Court, challenging the constitutionality of s. 38.
Dawson J. of the Ontario Superior Court held that the s. 38 scheme was unconstitutional. Specifically, he held that the scheme violated s. 96 of the Constitution Act, 1867, stating that by exclusivly vesting “privilege” determinations in federal court the provision invaded the core jurisdiction of superior courts. He found this violation was an unjustifiable infringement of s. 7 of the Charter – the right to life, liberty and security of the person.
Interpreting Section 38
The unanimous reasons of the Court on this appeal begin with an in-depth analysis and interpretation of the section.
First, the reasons apply the well-accepted contextual and purposive method of statutory interpretation, stating that preventing the disclosure of sensitive data cannot prima facie be equated with denying an accused the right to make a full answer and defence (which would result in an unfair trial). The legislature is presumed to have drafted the provision to conform with the Charter (see R v Hamilton,  2 SCR 432). This presumption is bolstered here by the existence of s. 38.14 of the CEA, which clearly indicates that the fair trial rights of the accused must be protected in applying the other provisions of the scheme.
Having established these critical assumptions, the Court clarified that the trial judge has a right to receive notice of a s. 38 application being commenced in Federal Court. This notice will trigger s. 38.14, where the trial judge must then consider the impact of non-disclosure on trial fairness. In so doing, the trial judge may require a summary of the information or more substantive information regarding the content. It is still unclear as to the amount required by a trial judge, which then requires the trial judge to determine whether they have a sufficient basis on which to exercise their discretion judicially. With this, the Court went on to discuss the section’s constitutionality.
Section 38 Passes Constitutional Muster
The constitutional analysis centres around two provisions in the constitution: s. 7 of the Charter and s. 96 of the Constitution Act, 1867.
The Section 96 Argument
Section 96 gives superior, district and county courts in each province the jurisdiction to hear and decide cases. The scope of this jurisdiction has always been a topic of heated debate, but for our purposes, scope was not at issue.
A main aspect of the respondent’s argument was that the trial judge’s inability to completely access the material in question interfered with the ability of superior court judges to apply the Constitution, which invaded the core jurisdiction of superior courts.
The test applicable to determining if a conferral of power violates s. 96 is set out in Re Residential Tenancies Act, 1979,  1 SCR 714 [Residential Tenancies], and poses three questions.
- Whether the power conferred broadly conforms to a power exercised by a court at Confederation;
- If so, whether the power is judicial, and;
- Whether the power is subsidiary or ancillary to an administration function or necessarily incidental to such a function.
The first question under the test requires a historical inquiry. The SCC, after conducting this inquiry, found that superior courts did not exercise any such power of review at Confederation. As a result, the respondent’s argument failed the first branch of the Residential Tenancies test.
In obiter (as the historical test dispersed of the issue) the SCC went on to answer another constitutional attack. MacMillan Bloedel Ltd v Simpson,  4 SCR 725, states that if legislation purports to confer exclusive jurisdiction of a s. 96 matter, it will be unconstitutional. The SCC held that, here, the core jurisdiction was not removed from any s. 96 court – as criminal courts retain the ability to ensure every subject of a criminal prosecution is able to receive a fundamentally fair trial (which is supported by s. 38.14).
Section 7 of the Charter
The statutory scheme was also found to violate s. 7 as it had the effect of violating the accused’s right to timely disclosure of pertinent information. The SCC quickly disposed of this argument, finding that s. 38.14 allows trial judges to order whatever remedy pursuant to the Charter is required to protect the accused’s right to a fair trial – even a drastic remedy such as a stay of proceedings. In drafting the section, Parliament chose to live with such drastic outcomes.
When I first heard about this case and discussed it with other law students, a generally pessimistic view emerged that the SCC had, yet again, upheld “public safety” at the expense of an accused’s right to a fair trial. But upon a close reading of the written reasons, one can see that this is not the case. Specifically, the entire analysis focuses on s. 38.14 of the CEA, which requires a trial judge to consider the accused’s right to a fair trial and, if necessary, order a less-than-ideal outcome (such as a stay of proceedings). If that isn’t a fair and reasonable balancing of the two important objectives, I don’t know what is.