Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42

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 CanLII 837 (SCC), [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 CanLII 92 (SCC), [1989] 1 S.C.R. 1038; R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606; R. v. Lucas, 1998 CanLII 815 (SCC), [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 CanLII 679 (SCC), [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 CanLII 86 (SCC), [1995] 2 S.C.R. 97; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425; Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256; Howard Smith Paper Mills Ltd. v. The Queen, 1957 CanLII 11 (SCC), [1957] S.C.R. 403; Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311; Wright v. Hale (1860), 6 H. & N. 227, 158 E.R. 94; R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221; R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451; British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [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 CanLII 85 (SCC), [1994] 2 S.C.R. 229; R. v. White, 1999 CanLII 689 (SCC), [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 CanLII 24 (SCC), [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 CanLII 317 (SCC), [1997] 3 S.C.R. 3; Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [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, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35; Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [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, 1954 CanLII 3 (SCC), [1955] S.C.R. 16; Lemay v. The King, 1951 CanLII 27 (SCC), [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 CanLII 46 (SCC), [1946] S.C.R. 248, aff’d 1946 CanLII 361 (UK JCPC), [1947] 1 D.L.R. 577; Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93; Re Regina and Arviv (1985), 1985 CanLII 161 (ON CA), 51 O.R. (2d) 551; R. v. Esposito (1985), 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88; R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764; R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979; R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [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 CanLII 317 (SCC), [1997] 3 S.C.R. 3; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; Beauregard v. Canada, 1986 CanLII 24 (SCC), [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 Crown to attend and give evidence at the Air India trial?

3. Was the order of Holmes J. contrary to s. 83.28 in that the order:

a) permitted the attendance at the in camera hearing of counsel for the accused Bagri and Malik;

b) permitted each defence counsel to cross‑examine the witness in addition to counsel for the Crown;

c) required defence counsel to undertake not to disclose to the accused information received at the judicial investigative hearing?

V. Analysis

A. Introduction

[28] The following recital to the Act expresses the basic issue before us in this case, namely the tension between responding to terrorism in the interest of national security and respect for the Charter’s rights and freedoms:

WHEREAS the Parliament of Canada, recognizing that terrorism is a matter of national concern that affects the security of the nation, is committed to taking comprehensive measures to protect Canadians against terrorist activity while continuing to respect and promote the values reflected in, and the rights and freedoms guaranteed by, the Canadian Charter of Rights and Freedoms;

[29] The provisions in the Act deal with a multitude of matters related to judicial investigative hearings, procedures, seizures, arrests, recognizance, detention, reporting and other topics: see S. A. Cohen, “Safeguards in and Justifications for Canada’s New Anti‑terrorism Act” (2002-2003), 14 N.J.C.L. 99; M. L. Friedland, “Police Powers in Bill C-36”, in R. J. Daniels, P. Macklem and K. Roach, eds., The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill (2001), 269. What we are faced with here are questions of both statutory and constitutional interpretation as applied to the facts of this case. As this is the first case under the anti‑terrorism provisions, it is prudent to sound some cautionary notes before embarking upon our analysis.

[30] To begin with, although specific provisions of the Act are directly before us, there are other sections that may be implicated on which we do not wish to pronounce absent a factual foundation. As well, we intend to decide only what is necessary to resolve the specific dispute in issue. We hope otherwise, but there will likely be other cases to arise for further elucidation, and we prefer to await that development.

[31] In addition, context in the law is of vital importance and that is certainly the case with respect to terrorism. What we say in these reasons is influenced by the adjudicative facts we have before us. Although constitutional opinion on legislative facts is a different exercise, again, we wish to emphasize how important it is to examine the particular factual setting of each case prior to determining the legally required result.

[32] The issues on appeal are complex and, in many instances, interrelated. In the discussion that follows, we first consider the statutory and constitutional interpretation of s. 83.28. Next, we then discuss the retrospective application of the provision, the s. 7 right against self‑incrimination, and the independence of the judiciary. We then turn to the use of the judicial investigative hearing as a tool for pre‑trial discovery and its relationship with s. 11(d) of the Charter and the Preamble to the Constitution Act, 1867. Finally, we discuss the role of the Crown and the implications of the participation of counsel at the hearing.

B. Statutory and Constitutional Interpretation Generally

[33] Before assessing the constitutionality of s. 83.28, it is necessary to determine the scope of the provision. This appeal marks the first known instance where the s. 83.28 judicial investigative hearing power has been invoked. While the judicial investigative hearing process has features akin to income tax and bankruptcy investigations, public inquiries, proceedings under the Mutual Legal Assistance in Criminal Matters Act, R.S.C. 1985, c. 30 (4th Supp.) (“MLACMA”), and coroner’s inquests, the provision in its entirety represents a new addition to the Canadian legal landscape.

[34] The modern principle of statutory interpretation requires that the words of the legislation 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, Construction of Statutes (2nd ed. 1983), at p. 87. This is the prevailing and preferred approach to statutory interpretation: see, e.g., Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2, at para. 33; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, 2002 SCC 42, at para. 26. The modern approach recognizes the multi‑faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms.

[35] Underlying this approach is the presumption that legislation is enacted to comply with constitutional norms, including the rights and freedoms enshrined in the Charter: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 367. This presumption acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legal culture of Canada. Accordingly, where two readings of a provision are equally plausible, the interpretation which accords with Charter values should be adopted: see Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078; R. v. Nova Scotia Pharmaceutical Society, 1992 CanLII 72 (SCC), [1992] 2 S.C.R. 606, at p. 660; R. v. Lucas, 1998 CanLII 815 (SCC), [1998] 1 S.C.R. 439, at para. 66; and Sharpe, supra, at para. 33.

[36] In light of these principles, we consider the purpose of the impugned s. 83.28 and the powers that are conferred by its application.

C. The Scope of Section 83.28

[37] The Act was crafted as omnibus legislation with the effect of amending 16 statutes, including the Code, and implementing two separate United Nations Conventions concerning the financing of terrorism and the suppression of terrorist bombings, respectively. The legislation was introduced in Parliament on October 15, 2001, shortly after the events that unfolded in the United States on September 11, 2001. The Preamble to the Act, Parliamentary debates, and notes presented before the Special Senate Committee convened for discussion of Bill C‑36 and before the House of Commons Justice and Human Rights Committee, provide insight into the purpose of the Act in general, and of s. 83.28 in particular. Where divergent views on the purpose of an Act are expressed, or where the scope of the purpose is called into question, extrinsic materials such as Hansard and other government publications may be used to elucidate meaning: Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, at para. 25; R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 45; Reference re Firearms Act (Can.), [2000] 1 S.C.R. 783, 2000 SCC 31, at para. 17.

[38] The Preamble to the Act speaks to the “challenge of eradicating terrorism”, the requirement for the “strengthening of Canada’s capacity to suppress, investigate and incapacitate terrorist activity”, and the need for legislation to “prevent and suppress the financing, preparation, facilitation and commission of acts of terrorism”. In Parliamentary debate at the introduction of Bill C‑36, the Minister of Justice expressed the three main objectives of the legislation as suppressing the existence of terrorist groups, providing new investigative tools, and providing a tougher sentencing regime to incapacitate terrorists and terrorist groups: House of Commons Debates, vol. 137 1st Sess., 37th Parl., October 15, 2001, at p. 6048. In a similar vein, the Minister of Justice expressed the need for an enhanced legislative structure in response to terrorism before the Special Senate Committee: Proceedings of the Special Senate Committee on Subject Matter of Bill C‑36, Issue No. 4, 1st Sess., 37th Parl., October 29, 2001, at pp. 4:4 et seq.

[39] It was suggested in submissions that the purpose of the Act should be regarded broadly as the protection of “national security”. However, we believe that this characterization has the potential to go too far and would have implications that far outstrip legislative intent. The discussions surrounding the legislation, and the legislative language itself clearly demonstrate that the Act purports to provide means by which terrorism may be prosecuted and prevented. As we cautioned above, courts must not fall prey to the rhetorical urgency of a perceived emergency or an altered security paradigm. While the threat posed by terrorism is certainly more tangible in the aftermath of global events such as those perpetrated in the United States, and since then elsewhere, including very recently in Spain, we must not lose sight of the particular aims of the legislation. Notably, the Canadian government opted to enact specific criminal law and procedure legislation and did not make use of exceptional powers, for example under the Emergencies Act, R.S.C. 1985, c. 22 (4th Supp.), or invoke the notwithstanding clause at s. 33 of the Charter.

[40] We conclude that the purpose of the Act is the prosecution and prevention of terrorism offences.

[41] Section 83.28 provides for a two‑stage process, whereby an order for the gathering of information from a named individual is first issued, and an examination of the individual so named is subsequently held. The provision provides a series of parameters which govern the judicial investigative hearing. At its core, s. 83.28 permits the investigation of terrorism offences, at both a pre‑ and post‑charge stage through testimonial compulsion on the part of the named witness. Consequently, the purpose of the provision is to confer greater investigative powers upon the state in its investigation of terrorism offences.

[42] The procedure is initiated at the behest of a peace officer who, with the Attorney General’s consent, applies to a judge for an order for the gathering of information: s. 83.28(2) and (3). The judge may so order, and thereby initiate the hearing, if he or she is satisfied (a) that there are reasonable grounds to believe either that a terrorism offence has been committed and that information concerning the offence or concerning the whereabouts of a suspect is likely to be obtained; or (b) that there are reasonable grounds to believe that a terrorism offence will be committed, that there are reasonable grounds to believe that the witness has direct and material information relating to the terrorism offence or in relation to the whereabouts of a suspect, and reasonable prior attempts have been made to obtain that information from the witness: s. 83.28(4). The scope of the order will ultimately dictate the parameters of the subsequent hearing.

[43] Pursuant to s. 83.28(5), the judge may (a) order the examination, under oath or not, of the person named in the order (the “named person”); (b) order the named person to attend for the examination and to remain in attendance until excused by the presiding judge; (c) order the named person to bring to the examination anything in their possession or control and produce it to the presiding judge; (d) designate another judge as the judge to preside over the examination; and (e) include any other terms or conditions considered desirable, including those for the protection of the named person, third parties, and an ongoing investigation. Under s. 83.28(7), the terms of the order may be varied.

[44] The powers of the presiding judge and the Attorney General at the judicial investigative hearing itself also fall within the ambit of s. 83.28. Under s. 83.28(8), the named person must answer questions put to him or her by the Attorney General and produce tangibles he or she was ordered to bring to the examination. The named person may refuse to answer a question or produce any such thing that would violate any law relating to the non‑disclosure of information or to privilege: s. 83.28(8). Section 83.28(9) empowers the presiding judge to rule on any objection or other issue relating to a refusal to answer a question or produce an item. Section 83.28(10) provides the named person with use and derivative use immunity with respect to self‑incrimination which will be discussed below in the context of s. 7 of the Charter. The named person has a right to retain and instruct counsel at any stage of the proceedings: s. 83.28(11). The presiding judge may also order tangibles to be given into police custody if satisfied that any such item is relevant to the investigation of any terrorism offence: s. 83.28(12).

[45] While the provision covers many facets of the initial order and the subsequent judicial investigative hearing, in important respects the specific meaning of s. 83.28 is unclear and ambiguous. In our opinion, s. 83.28 reasonably bears two differing interpretations: one narrow and restrictive in scope, the other broad and purposive. Two principal ambiguities are apparent on the face of the provision. The first concerns the role of counsel and the second relates to the threshold for relevance and admissibility. As we will now discuss, we endorse a broad and purposive interpretation of s. 83.28, which accords with the presumption of constitutional validity discussed above.

[46] There is some ambiguity about the scope of the role of appellant’s counsel in the judicial investigative hearing. Section 83.28(9) provides broadly that the presiding judge “shall rule on any objection or other issue relating to a refusal to answer a question or to produce a thing” (emphasis added). The preceding subsection, however, states that the named person may refuse to answer questions or produce tangibles based on the application of law related to non‑disclosure of information or privilege: s. 83.28(8). Under a more narrow approach, it would appear that counsel for the witness is restricted to making objections only on these specified grounds. The proximity of subss. (8) and (9) lends support to this view, as does the omission of qualifying words to describe the scope of judicial rulings. In contrast, s. 83.28(12) expressly provides that upon the judge’s satisfaction that “any thing produced during the course of the examination will likely be relevant to the investigation”, he or she shall order it be given into police custody.

[47] A purposive reading of the provision, however, suggests that “any objection” as stated in s. 83.28(9) provides for more fulsome participation by counsel. Section 83.28(12) attaches a relevancy requirement to demands for production which implies that objections under s. 83.28(9) may be based on relevancy and s. 83.28(9) is not restricted to the grounds in s. 83.28(8). The relevancy requirement in s. 83.28(12), when s. 83.28 is viewed in its entirety, would also attach to the questioning of the named person. This Court has taken a similarly purposive approach to proceedings held under commissions of inquiry. Such proceedings have been analogized to the judicial investigative hearing provision in s. 83.28. In Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), 1995 CanLII 86 (SCC), [1995] 2 S.C.R. 97, at para. 175, the Court stated that “the nature and the purpose of public inquiries require courts to give a generous interpretation to a commissioner’s powers to control their own proceedings” (emphasis added).

[48] Such an interpretive approach is further supported by the wide ambit given to the ordering judge to set such terms and conditions as he or she considers desirable: s. 83.28(5)(e). The provision expressly provides that terms and conditions may be set for the protection of the named person’s interests, the interests of third parties, and the interests of the investigation. Section 83.28(7) also provides for the ordering judge or any other judge of the same court to vary the terms and conditions set. The inclusion of such a broad power to amend the order empowers the ordering and/or hearing judge to respond flexibly to the specific circumstances of each application of the provision, and ensure that constitutional and common law rights and values are respected. Such a view of the provision would reasonably demarcate irrelevant or abusive questioning of the named person as falling far outside the parameters set by the legislature.

[49] While the specific content of judicial independence will be discussed later in the reasons, the judicial aspect of the hearing is relevant to the interpretive approach taken at the outset. Section 83.28 operates under the aegis of a judge. We consider that the participation of judges in s. 83.28 brings with it all that our justice system imparts into the judicial function.

[50] Another aspect of ambiguity concerns the procedural threshold where “information” is sought, as opposed to evidence: s. 83.28(2). It was put to us that this choice in wording was deliberate and reflects legislative intention that a lower threshold of relevance and admissibility applies in judicial investigative hearings than that usually applied in criminal proceedings. To this end, the MLACMA was cited for the proposition that s. 83.28 would make express provision for the operation of evidentiary rules if these were meant to apply. Section 22.2 of the MLACMA states expressly that those rules of evidence and procedure apply to the examination of a witness as dictated by the jurisdiction to which assistance is being provided. However, the need for clarity in the MLACMA is quite obvious given potential conflicts of laws.

[51] In considering the threshold of relevance and admissibility in relation to information gathering under s. 83.28, we note that the Canada Evidence Act, R.S.C. 1985, c. C‑5 (“CEA”), applies generally to “all criminal proceedings and to all civil proceedings and other matters whatever respecting which Parliament has jurisdiction” (s. 2). In the context of Charter interpretation, “proceedings” has been given large and liberal interpretation and taken to include both adjudicative and investigative processes: Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, at p. 481. In Thomson, regulatory investigations were held to be within the ambit of “proceeding”. Applying this reasoning to the case at bar, Part I of the CEA may reasonably be viewed as applying to judicial investigative hearings. Consequently, the named person is entitled to protections such as: spousal privilege (s. 4(3)), procedures concerning cross‑examination of adverse witnesses (s. 9), and cross‑examination in relation to prior statements (ss. 10 and 11).

[52] The more important rules of evidence, however, are to be found in the common law and not in statutory instruments. Relevance is a common law rule that we conclude applies to judicial investigative hearings. The boundaries of relevance will be dictated in large measure by the supporting materials for the s. 83.28 order for the gathering of information, as well as by the investigatory nature of the proceeding. The latter may increase the scope of the allowable questioning, but must be kept within reasonable bounds by the judicial nature of the investigative hearing and all of the procedural protections that the oversight of a judge implies.

[53] Accordingly, the observance of the applicable common law rules of evidence is mandatory. More importantly, the judge is present at the judicial investigative hearing to ensure that the procedure is carried out in accord with constitutional protections.

[54] To conclude on these points, a narrow, restrictive view of s. 83.28 does not resolve ambiguities in favour of the presumption of constitutionality discussed earlier. However, when viewed purposively, the judicial investigative proceeding can be viewed as a criminal proceeding, albeit unique in its application. The common law evidentiary principles of relevance and fairness clearly apply to the provision, as do evidentiary requirements mandated by the CEA. Consequently we find no ground at the interpretive stage to conclude that the presumption of constitutionality has been rebutted.

D. Discussion of Issues

(1) Retrospectivity

[55] The appellant submits that s. 83.28 ought not to apply retrospectively to incidents that occurred prior to its enactment. In support of this contention, the appellant argues that judicial investigative hearings are not strictly procedural as they essentially create new offences by operation of the triggering “terrorism offence” definition, and therefore are substantive in nature. Moreover, the appellant asserts that s. 83.28 affects fundamental rights, such as a right to silence under s. 7 of the Charter. With respect, we do not agree. We find that s. 83.28 effects only procedural change.

[56] As expressed in Sullivan, supra, at p. 582, procedural legislation concerns the conduct of actions. Accordingly, s. 83.28 is prima facie procedural, as it outlines the process by which judicial investigative hearings are to be carried out. Nevertheless, an assessment of whether a provision is procedural or not must be determined in the circumstances of each case. Furthermore, for a provision to be regarded as procedural, it must be exclusively so: Angus v. Sun Alliance Insurance Co., 1988 CanLII 5 (SCC), [1988] 2 S.C.R. 256. We now consider whether s. 83.28 is procedural in substance and in effect.

[57] Driedger and Sullivan generally describe procedural law as “law that governs the methods by which facts are proven and legal consequences are established in any type of proceedings”: Sullivan, supra, at p. 583. Within this rubric, rules of evidence are usually considered to be procedural, and thus to presumptively apply immediately to pending actions upon coming into force: Howard Smith Paper Mills Ltd. v. The Queen, 1957 CanLII 11 (SCC), [1957] S.C.R. 403. However, where a rule of evidence either creates or impinges upon substantive or vested rights, its effects are not exclusively procedural and it will not have immediate effect: Wildman v. The Queen, 1984 CanLII 82 (SCC), [1984] 2 S.C.R. 311. Examples of such rules include solicitor‑client privilege and legal presumptions arising out of particular facts.

[58] As discussed above, s. 83.28 provides for a process in which various rules of evidence are detailed. The appellant’s concerns with the nature of the provision arise largely with respect to the “terrorism offence” referenced in s. 83.28(4). The definition of “terrorism offence” is not before us in this appeal. However, it is necessary here to consider whether the application of that definition in relation to s. 83.28 creates a “substantive gloss” on the provision. In our view, the reference to “terrorism offence” does not alter the procedural nature of the provision.

[59] The term “terrorism offence” is defined in s. 2 of the Code that creates new offences under para. (a), but also refers to pre‑existing offences under paras. (b) and (c). Neither s. 83.28 nor the definition in s. 2 alters the substantive elements of these offences. Clearly, the offences listed under paras. (b) and (c) are not substantively new because they were present prior to the enactment of the anti‑terrorism provisions. We agree with Holmes J.’s characterization of a “terrorism offence” as “a descriptive compendium of offences created elsewhere in the Criminal Code”. The mere association of such offences with a “terrorist group” or “terrorist activity” does not constitute a substantive change in the law so as to transform the procedural nature of s. 83.28 into a substantive one.

[60] Below, we discuss in detail the merits of the appellant’s submission on a s. 7 Charter right to silence/right against self‑incrimination, which we find not to have been violated by the judicial investigative hearing. As a related argument, the appellant further submits that, in relation to retrospectivity, the violation of the same right to silence precludes s. 83.28 from taking retrospective effect. This argument must fail. It suffices to state here that while the judicial investigative hearing may generate information pertaining to an offence (and indeed, this is the purpose of the hearing), the hearing itself remains procedural. In the manner of other procedural tools such as DNA and wiretap authorizations, s. 83.28 provides a mechanism for the gathering of information and evidence in the ongoing investigation of past, present, and future offences.

[61] Having found that s. 83.28 is purely procedural in nature, we turn to consider whether the presumption of immediate effect has been rebutted.

[62] At common law, procedural legislation presumptively applies immediately and generally to both pending and future acts. As Sullivan, supra, discusses at p. 582, the presumption of immediate application has been characterized in a number of ways: that there is no vested right in procedure; that the effect of a procedural change is deemed beneficial for all; that procedural provisions are an exception to the presumption against retrospectivity; and that procedural provisions are ordinarily intended to have immediate effect. The rule has long been formulated in the following terms:

. . . where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.

(Wright v. Hale (1860), 6 H. & N. 227, 158 E.R. 94, at p. 96; see also Sullivan, supra, at p. 582.)

[63] This presumption will yield where the contrary intent of Parliament has been evinced: R. v. Ali, 1979 CanLII 174 (SCC), [1980] 1 S.C.R. 221, at p. 235.

[64] On this point, the appellant submits that the legislative intent of Parliament precludes retrospective effect given the preventive focus of the anti‑terrorism legislation. In support, the appellant notes that the Act is silent on the issue of temporal application in contrast with s. 487.052 of the Code, which expressly provides for retrospective application in the context of DNA identification.

[65] The appellant’s arguments on this point are not compelling. While the prevention of future acts of terrorism was undoubtedly a primary legislative purpose in the enactment of the provision, as discussed earlier, it does not follow that Parliament intended for procedural bifurcation respecting past acts of terrorism vis‑à‑vis anticipated or future acts. The provision itself provides for judicial investigative hearings to be held both before and after the commission of a terrorism offence under s. 83.28(4)(a) and (b). While the legislation is not express on the issue of temporal application, the purpose and effect of the inclusion of s. 83.28(4)(a) indicate that Parliament intended that the provision may be applied retrospectively.

[66] For the reasons above, s. 83.28 does not interfere with the substantive rights of the appellant, and is, accordingly, strictly procedural. The appellant has not rebutted the presumption of immediate application. As such, s. 83.28 has immediate effect, and applies retrospectively to the effects of past events.

(2) [Section 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

(a) General Approach to Section 7

[67] Statutory compulsion to testify engages liberty interests under s. 7 of the Charter: R. v. S. (R.J.), 1995 CanLII 121 (SCC), [1995] 1 S.C.R. 451, at para. 28; see also British Columbia Securities Commission v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3, at para. 33; Thomson, supra, at p. 536. The encroachment upon liberty is complete at the moment of the compelled speech, regardless of its character: S. (R.J.), at para. 43. Individuals named in an order under s. 83.28(5) may be required to attend at a hearing, be examined under oath, and be required to produce any thing in their possession. Moreover, under s. 83.29, such individuals may be imprisoned for evasion of service, or failure to attend or remain at the examination. Section 83.28 also attracts the ordinary laws of contempt of court in relation to a failure to answer questions, and potential liability for offences relating to perjury. Given these consequences, the judicial investigative hearing provision clearly engages s. 7 liberty interests.

[68] This Court has very recently affirmed the approach to principles of fundamental justice encapsulated in s. 7 of the Charter: R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74; and Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4. In Canadian Foundation, at para. 8, the Chief Justice summarized the approach thus:

Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria: R. v. Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113. First, it must be a legal principle. This serves two purposes. First, it “provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters”: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 503. Second, there must be sufficient consensus that the alleged principle is “vital or fundamental to our societal notion of justice”: Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded. They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens. Society views them as essential to the administration of justice. Third, the alleged principle must be capable of being identified with precision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet all three requirements include the need for a guilty mind and for reasonably clear laws.

(b) The Right to Silence/The Right Against Self-Incrimination

[69] The appellant contends that s. 83.28 is a violation of an individual’s absolute right to silence and the right against self‑incrimination. However, in this context, the right to silence is inextricably tied to the right against self‑incrimination. Accordingly, we address the argument under the s. 7 right against self‑incrimination. For the reasons that follow, we conclude that the appellant’s s. 7 rights have not been infringed, whether through the protection against self‑incrimination, or through a broader right to silence.

[70] This Court has recognized that the right against self‑incrimination is a principle of fundamental justice: S. (R.J.), supra, at para. 95; Branch, supra; R. v. Jarvis, [2002] 3 S.C.R. 757, 2002 SCC 73. In Jarvis, at para. 67, the right against self‑incrimination was described as “an elemental canon of the Canadian criminal justice system”. It has further been recognized in relation to the principle of individual sovereignty and as an assertion of human freedom: S. (R.J.), supra, at para. 81; R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, at pp. 248‑49; and R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, at para. 43. Having recognized the centrality of the principle in Canadian law, this Court’s jurisprudence has further articulated general principles regarding the relationship of self‑incrimination to criminal law more broadly. To this end, testimonial compulsion has been invariably linked with evidentiary immunity. Beginning in S. (R.J.), supra, and continuing in Branch, supra, Phillips, supra, and Jarvis, supra, the more recent jurisprudence of our Court on self‑incrimination developed such that three procedural safeguards emerged: use immunity, derivative use immunity, and constitutional exemption.

[71] Use immunity serves to protect the individual from having the compelled incriminating testimony used directly against him or her in a subsequent proceeding. The derivative use protection insulates the individual from having the compelled incriminating testimony used to obtain other evidence, unless that evidence is discoverable through alternative means. The constitutional exemption provides a form of complete immunity from testifying where proceedings are undertaken or predominately used to obtain evidence for the prosecution of the witness. Together these necessary safeguards provide the parameters within which self‑incriminating testimony may be obtained. It is against this backdrop that s. 83.28 must be assessed.

[72] Section 83.28(10) provides both use and derivative use immunity to the individual named in an order for the gathering of information. Section 83.28(10)(a) provides that no answer given or thing produced shall be used or received against any criminal proceedings against that person, save prosecution for perjury or giving contradictory evidence. Derivative use immunity is provided for in s. 83.28(10)(b). Indeed, the protection in para. (b) goes beyond the requirements in the jurisprudence, and provides absolute derivative use immunity, such that evidence derived from the evidence provided at the judicial investigative hearing may not be presented in evidence against the witness in another prosecution even if the Crown is able to establish, on a balance of probabilities, that it would have inevitably discovered the same evidence through alternative means. The constitutional exemption is provided for in this case in light of the ordinary application of the principle asserted in Jarvis, supra, at para. 96, that testimonial compulsion is precluded where the predominant purpose of the proposed hearing is the determination of penal liability. There is no reason to believe that the predominant purpose of the judicial investigative hearing before us is to obtain information or evidence for the prosecution of the appellant.

[73] It is clear from the above discussion that the procedural protections available to the appellant in relation to the judicial investigative hearing are equal to and, in the case of derivative use immunity, greater than the protections afforded to witnesses compelled to testify in other proceedings, such as criminal trials, preliminary inquiries or commission hearings. However, s. 83.28(10) provides for such safeguards only in the context of “any criminal proceedings”. The legislation does not speak to safeguards in relation to other types of hearings, such as extradition or deportation hearings, or proceedings in foreign jurisdictions.

[74] The international scope of terrorism activities and the inter‑jurisdictional ambit of terrorism investigation raise grave concerns about potential uses of information gathered pursuant to s. 83.28(10): D. M. Paciocco, “Constitutional Casualties of September 11: Limiting the Legacy of the Anti‑Terrorism Act” (2002), 16 S.C.L.R. (2d) 185, at p. 231. Compelled testimony obtained pursuant to s. 83.28 may potentially be used against individuals in extradition hearings, and subsequently passed on to foreign authorities for use in prosecution abroad: see J. Millard, “Investigative Hearings under the Anti-Terrorism Act” (2002), 60(1) U.T. Fac. L. Rev. 79, at p. 81. Such testimony may also be used against non‑citizens in deportation hearings under s. 34 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, such that the Minister’s “reasonable belief” that an individual has engaged in terrorism may be based on the testimony of that individual at a judicial investigative hearing.

[75] This Court has recently expressed the seriousness with which it views deportation or extradition to countries where torture and/or death are distinct possibilities: 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. In such cases, guarantees of fundamental justice apply even where deprivations of life, liberty or security may be effected by actors other than the Canadian government, if a sufficient causal connection exists between the participation of the Canadian government and the ultimate deprivation effected: Suresh, at para. 54. This general principle was recognized in Suresh to apply equally to either deportation or extradition hearings.

[76] In our view, a sufficient causal connection exists where information gathered under s. 83.28 is used to effect deprivations of liberty, such as torture or death, in circumstances where the government’s participation was a necessary precondition, and the resulting deprivation an entirely foreseeable consequence of the participation. Accordingly, deportations or extraditions must accord with the principles of fundamental justice. Consequently, the parameters recognized in Burns, supra, at para. 124, and Suresh, supra, at para. 76, must be respected.

[77] This appeal is our first opportunity to discuss the parameters of a right against self‑incrimination in the context of possible deportation or extradition hearings against, on the facts of this case, persons named under the s. 83.28 proceeding. Prior cases have focussed exclusively on the engagement of s. 7 in relation to government participation where the possibility of torture or death exists. The right against self‑incrimination in the guise of testimonial compulsion has been recognized as non‑absolute. Indeed, in the reasons above, we have affirmed the need for various procedural safeguards where testimonial compulsion is at issue. This Court has also expressly recognized the dire consequences which may flow from deportation and extradition, as such proceedings frequently have grave consequences for the liberty and security interests of individuals.

[78] As in many other areas of law, a balance must be struck between the principle against self‑incrimination and the state’s interest in investigating offences. We believe such a balance is struck by extending the procedural safeguards of s. 83.28 to extradition and deportation hearings. As mentioned earlier, s. 83.28(5)(e) permits the inclusion of other terms and conditions, including those required for the protection of the witness. Moreover, under s. 83.28(7), the terms and conditions of the order may be varied to provide as much. This point was conceded by the Crown in oral argument.

[79] In order to meet the s. 7 requirements, the procedural safeguards found in s. 83.28 must necessarily be extended to extradition and deportation proceedings. In Branch, supra, at para. 5, derivative use immunity was stated to apply both in subsequent proceedings where the witness is an accused subject to penal sanctions, and more generally to any proceeding which engages s. 7 of the Charter, such as extradition and deportation hearings. The protective effect of s. 83.28(10) would be significantly undercut if information gathered under s. 83.28 was used at the state’s discretion in subsequent extradition or deportation proceedings. Therefore, where there is the potential for such use by the state, the hearing judge must make and, if necessary, vary the terms of an order to properly provide use and derivative use immunity in extradition or deportation proceedings.

(3) The Independence of the Judiciary

[80] Judicial independence is the “lifeblood of constitutionalism in democratic societies”: Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56, at p. 70. The importance of judicial independence to the promotion and preservation of the rule of law cannot be overstated. In this respect, as the late Professor Lederman noted, judicial independence is one of the original principles of the English Constitution: W. R. Lederman, “The Independence of the Judiciary”, in A. M. Linden, ed., The Canadian Judiciary (1976), 1, at p. 2. An independent judiciary is absolutely necessary to “ensure that the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals”: Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at para. 22, per Major J.

[81] This principle exists in Canadian law in a number of forms. In the Constitution, it is explicitly referenced in ss. 96 to 100 of the Constitution Act, 1867 and in s. 11(d) of the Charter. The application of these provisions, however, is limited. The former applies to judges of superior courts, and the latter to courts and tribunals charged with trying the guilt of persons charged with criminal offences: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3, at para. 84; Ell, supra, at para. 18. Judicial independence has also been implicitly recognized as a residual right protected under s. 7, as it, along with the remaining protections in ss. 8 to 14, are specific examples of broader principles of fundamental justice: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 503. Moreover, the commitment to the “foundational principle” of judicial independence has also been referenced by way of the Preamble to the Constitution Act, 1867: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, at para. 109; see also Ell, at para. 19. Judicial independence further represents the cornerstone of the common law duty of procedural fairness, which attaches to all judicial, quasi‑judicial and administrative proceedings, and is an unwritten principle of the Constitution.

[82] The twin aspects of judicial independence and impartiality are relevant to this appeal. The first is the requirement that the judiciary function independently from the executive and legislative branches of government: Beauregard, supra, at pp. 72‑73. The second is the recognition that judicial independence is necessary to uphold public confidence in the administration of justice: Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13. The relationship between judicial independence and impartiality was considered by the Court in R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, at p. 139:

The overall objective of guaranteeing judicial independence is to ensure a reasonable perception of impartiality; judicial independence is but a “means” to this “end”. If judges could be perceived as “impartial” without judicial “independence”, the requirement of “independence” would be unnecessary. However, judicial independence is critical to the public’s perception of impartiality. Independence is the cornerstone, a necessary prerequisite, for judicial impartiality.

[83] In this respect, we must ultimately consider whether a reasonable and informed person would conclude that the court under s. 83.28 is independent: Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, at p. 689; Ell, supra, at para. 32.

[84] One of the criticisms levied against s. 83.28 is that it co‑opts the judiciary into performing executive, investigatory functions in place of its usual adjudicative role: see, e.g., Paciocco, supra, at p. 232. Essentially, the assertion is that judges acting under s. 83.28 lack institutional independence or impartiality. The institutional dimension of judicial independence was recognized in Ell, supra, at para. 22, where Major J. described it as “the need to maintain the independence of a court or tribunal as a whole from the executive and legislative branches of government”. We note that there has been no allegation that Holmes J. has conducted herself in a partial or biased manner.

[85] The role of the judge was described by this Court in Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 108:

The judicial function is absolutely unique. Our society assigns important powers and responsibilities to the members of its judiciary. Apart from the traditional role of an arbiter which settles disputes and adjudicates between the rights of the parties, judges are also responsible for preserving the balance of constitutional powers between the two levels of government in our federal state. Furthermore, following the enactment of the Canadian Charter, they have become one of the foremost defenders of individual freedoms and human rights and guardians of the values it embodies . . . . Accordingly, from the point of view of the individual who appears before them, judges are first and foremost the ones who state the law, grant the person rights or impose obligations on him or her.

[86] We find that the substance of such a criticism is not made out in the context of the s. 83.28 judicial investigative hearing. Judges routinely play a role in criminal investigation by way of measures such as the authorization of wire taps (s. 184.2 of the Code), search warrants (s. 487 of the Code), and in applications for DNA warrants (s. 487.05 of the Code). The thrust of these proceedings is their investigatory purpose, and the common underlying thread is the role of the judge in ensuring that such information is gathered in a proper manner. The place of the judiciary in such investigative contexts is to act as a check against state excess.

[87] However, once legislation invokes the aid of the judiciary, we must remain vigilant to ensure that the integrity of its role is not compromised or diluted. Earlier in these reasons we endorsed a broad and purposive approach to the interpretation of s. 83.28. This interpretation is consistent not only with the presumption of constitutional validity, but also with the traditional role of the judiciary. The function of the judge in a judicial investigative hearing is not to act as “an agent of the state”, but rather, to protect the integrity of the investigation and, in particular, the interests of the named person vis‑à‑vis the state.

[88] The parameters of the judicial role under s. 83.28 must be clearly delineated and understood. As discussed above, the judge is empowered to ensure that questioning is fair and relevant, as required by the CEA and the common law. The scope of the order under s. 83.28(5), any exercise of judicial discretion under s. 83.28(5)(e) and the terms and conditions set under s. 83.28(7) must take as a starting point the rights and interests of the named person. Where a judge, acting pursuant to s. 83.28, imposes terms and conditions or exercises his or her discretion in a manner which goes beyond the role of the judiciary as guardian of the Constitution, that judge will have acted unconstitutionally. This accords with Parliamentary intention. During the third reading of Bill C‑36 in the House of Commons, the Parliamentary Secretary to the Minister of Justice characterized the direct judicial supervision of s. 83.28 as one of the “very significant limits and controls” that brought the legislation into compliance with the Charter: House of Commons Debates, vol. 137, 1st Sess., 37th Parl., November 28, 2001, at p. 7620.

[89] We conclude that judicial independence is not compromised in this case. Under a broad and purposive interpretation, s. 83.28 requires the judge to act “judicially”, in accordance with constitutional norms, and the historic role of the judiciary in criminal proceedings. Moreover, the provision confers upon the judge considerable flexibility and discretion to set and vary the terms and conditions of the initiating order and the subsequent hearing. In light of the mandatory exercise of such discretion with respect to rules of evidence, and use and derivative use immunity being extended to extradition and deportation hearings, judges bring the full weight of their authority as impartial adjudicators to the hearing to provide the witness with all the constitutional guarantees of the Charter. A failure on the part of a hearing judge to exercise his or her discretion in this manner will constitute reviewable error.

[90] The ultimate question, however, is “whether a reasonable and informed person, viewing the relevant statutory provisions in their full historical context, would conclude that the court or tribunal is independent”: Ell, supra, at para. 32; Valente, supra, at p. 689. Professor Paciocco states that, “[e]ven though the legislation does not purport to command judges to perform this function, but leaves them with the discretion as to whether to conduct such a hearing, the appearance of independence is compromised”: Paciocco, supra, at p. 235.

[91] The concern about the judicial investigative hearing stems largely from its being held in camera. However, in the media appeal, we discuss the fundamental principle of openness of the courts, a hallmark of the Canadian judicial system. In that appeal, we conclude that judicial investigative hearings are to be held presumptively in open court and that the onus is on the Crown to rebut that presumption under the test laid out in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76. In our view, the presumptive openness of the judicial investigative hearing is another factor that militates in favour of our conclusion that judicial investigative hearings do not compromise the independence or impartiality of the judiciary.

[92] Assuming that this file had not been sealed to the extent that it was at the outset of the proceedings, a reasonable and informed person would conclude, on the facts of this case, and in light of the institutional function of the judiciary, that judicial impartiality and independence have not been compromised or diluted. Where a hearing is held within the parameters discussed above, justice will not only be done, but will also manifestly be seen to be done.

(4) The Role of the Crown

[93] It was argued that the independence of Crown counsel is compromised by the judicial investigative hearing process, becoming impermissibly intertwined with the “police task” of investigation. We reject this argument for two reasons.

[94] First, this Court in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, declined to set a bright line delineating the proper pre-charge role of the Crown. Policy considerations have a legitimate place in developing the Crown’s practical role in a given jurisdiction or situation. The core content of Crown independence is the maintenance of “objectivity throughout the proceedings” but the contextual framework may vary: Regan, at para. 83 (emphasis deleted). Since the application of Crown objectivity “is inevitably highly contextual” (Canadian Foundation, supra, at para. 11), it fails to meet the criteria for recognition as a principle of fundamental justice under s. 7.

[95] Second, one may assume that 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. This is consistent with our interpretation of the intended role of judges in the proceeding. Crown counsel are appropriately trained to question witnesses within the context of judicial rulings on relevance, fairness, privilege, and procedure. The mere fact of their involvement in the investigation need not compromise Crown counsel’s objectivity, as the critical component is their own “necessary vigilance”: Regan, supra, at para. 83. Moreover, the Crown exercises a “public duty . . . performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings”, and accordingly is presumed to act in good faith: Boucher v. The Queen, 1954 CanLII 3 (SCC), [1955] S.C.R. 16, at p. 24. Where, however, the Crown can be shown to have acted vexatiously or in bad faith, recourse may be sought through the courts.

(5) Other Issues

(a) [Section 11(d)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[96] Section 11(d) of the Charter does not apply because the appellant is not an accused. The issues raised under this section are subsumed in our s. 7 analysis.

(b) Pre‑Trial Discovery

[97] It is argued that the judicial investigative hearing in the circumstances of this case served the improper purpose of obtaining pre‑trial discovery. Section 83.28(2) states that the purpose of an order for the gathering of information is to investigate a terrorism offence. It follows that the issuing judge must be satisfied that the purpose of the Crown in seeking the proposed hearing is in fact investigative, and not founded upon any oblique motive or otherwise improper purpose: see Boucher, supra; Lemay v. The King, 1951 CanLII 27 (SCC), [1952] 1 S.C.R. 232; Proulx v. Quebec (Attorney General), [2001] 3 S.C.R. 9, 2001 SCC 66; Regan, supra. Application for the order is made ex parte, and the onus is on the Crown to demonstrate its investigative purpose. If a party subsequently challenges the Crown’s purpose in seeking an investigative hearing, the onus will be on the Crown to demonstrate the propriety of its purpose.

[98] In addition, in an ex parte application of this nature, there is a well-recognised “duty of utmost good faith [on the Crown] in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld . . . . Virtually all codes of professional conduct impose such an ethical obligation on lawyers”: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, at para. 27.

[99] Holmes J., reviewing the purpose that supported issuance of the order, asked whether the predominant purpose was investigative. It appears that she placed the onus on the Crown to demonstrate the propriety of its purposes, although this is not explicitly stated. She tested the asserted investigative purpose against the factual record before her, taking into account the allegations of the appellant. She concluded that the purpose of the hearing as sought by the Crown was predominantly investigative and therefore permissible. Although the hearing judge expressed her conclusion in terms of a predominant purpose for the investigative hearing, in looking at her findings we are satisfied that she was using that expression to mean improper purpose or with an oblique motive.

[100] Accepting that questions of propriety underlying Crown conduct fall on the legal end of the mixed law and fact spectrum discussed in Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 36, we conclude that Holmes J. made no reviewable error. She correctly found no improper purpose in the Crown’s calling of the appellant under the s. 83.28 provisions. Our colleague, Binnie J., puts great emphasis, to paraphrase, on trial tactics employed by the Crown to obtain advance or mid‑trial discovery of an uncooperative witness. With respect, such conclusions are somewhat speculative.

[101] It is further argued that, regardless of the investigative purpose of the hearing, its effect was to provide the Crown with a pre‑trial discovery advantage in the Air India trial not afforded to the defence. In our view, this issue arose here largely because the judicial investigative hearing was sought in the midst of the ongoing Air India trial and the proceedings in the British Columbia Supreme Court were conducted in total secrecy. In the unique circumstances of this case, the presumption of openness for the judicial investigative hearing and the participation of counsel for the accused from the outset would have overcome any concerns regarding the practical effect of the hearing on the Air India trial.

[102] Given that the result is then to say that the order’s secrecy might initially have granted some pre‑trial advantage to the Crown, this may lead the Court to allow the appeal in part. However, the order’s faults will be remedied by complying with the Court’s ruling in the media appeal.

(c) Participation of Counsel

[103] In light of our ruling and discussion in the media appeal that the hearing should have been held in open court and our comments above on the scope and operation of s. 83.28, there is no need to decide whether the participation of counsel for the accused, Mr. Bagri and Mr. Malik, in the judicial investigative hearing was an appropriate condition under s. 83.28(5)(e).

[104] We reiterate our conclusion in the media appeal that it is difficult to anticipate all of the difficulties that such an order may pose. Accordingly, this issue should be left for another day, and should be debated within the legal profession so that court-imposed conditions can properly consider ethical standards and best practices for the involvement of counsel.

VI. Disposition

[105] The appeal should be dismissed. The order of this Court sealing the file in this case is lifted to the extent of the information disclosed in the reasons. The parties are at liberty to apply to the Court for any appropriate order regarding the disposition of any part of the file in this case that remains under seal.

[106] The constitutional questions are answered as follows:

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?

No.

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?

It is not necessary to answer this question.

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?

No.

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?

It is not necessary to answer this question.

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?

No.

The reasons of Bastarache and Deschamps JJ. were delivered by

[107] Bastarache J. — I agree with the majority reasons subject to my comments on the openness of investigative hearings.

I. The Independence of the Judiciary

[108] In my view, 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. Further, the subsequent release of the information disclosed during these proceedings promote the accountability of the judiciary.

II. Pre-Trial Discovery

[109] It is my view that Holmes J. made neither a palpable nor an overriding error in her assessment of the facts and her approach was correct in principle. In my view, the participation of counsel for the accused from the outset of the hearing was sufficient to overcome any concern regarding the practical effect of the hearing on the Air India Trial.

III. Participation of Counsel

[110] The majority chose not to comment on the participation of counsel in light of the conclusion on openness in the companion appeal. Like the majority, I limit my comments to this case and will not set out the requisite conditions for such an order generally. In my view, there is no evidence that Holmes J. erred in concluding that counsel for the accused, Mr. Malik and Mr. Bagri, could participate in the hearing. Holmes J. exercised her discretion properly.

The following are the reasons delivered by

[111] Binnie J. (dissenting) — Many of the reasons urged by my colleagues Iacobucci and Arbour JJ. in support of the constitutional validity of the anti-terrorism investigatory power in s. 83.28 of the Criminal Code, R.S.C. 1985, c. C-46 (as amended by S.C. 2001, c. 41), demonstrate why this is not a proper case for its exercise. In my view, the s. 83.28 order in this case was sought by the Crown for an inappropriate purpose, it was granted on inappropriate terms, and its impropriety was not cured (although the terms were much improved) by the amendments made by the hearing judge. Accordingly, while I agree that s. 83.28 of the Code, as interpreted by my colleagues, is constitutionally valid, in my opinion the Crown’s resort to it in the circumstances of this case was an abuse of process. I would therefore allow the appeal.

[112] The Air India trial commenced on April 28, 2003. It has therefore been open to the Crown for more than a year to call the appellant as a witness for the prosecution. As of the date of the hearing of this appeal, the Crown had not done so. While the s. 83.28 hearing judge was persuaded that the “predominant purpose” of the Crown in seeking a s. 83.28 order was the ongoing Air India investigation rather than the ongoing Air India trial, it is clear that the timing of the Crown’s attempt to obtain the appellant’s s. 83.28 evidence was driven by trial tactics. By that I mean the Crown’s desire to obtain a mid-trial examination for discovery of the appellant before a different judge to determine in advance precisely what the appellant will say or not say in the witness box. This is an abuse of the extraordinary powers granted under the Anti-terrorism Act, S.C. 2001, c. 41. In my view the s. 83.28 hearing should have been stayed until after the appellant testified at the Air India trial or the Crown declared that the appellant would not be called as a prosecution witness.

I. The Fundamental Issue

[113] My colleagues quote in para. 6 the much repeated dictum of Jackson J. of the United States Supreme Court that the Bill of Rights (or in our case the Canadian Charter of Rights and Freedoms) is not “a suicide pact”: Terminiello v. Chicago, 337 U.S. 1 (1949), p. 37 (in dissent). In that case the U.S. Supreme Court upheld the free speech rights of a Chicago priest charged with causing a riot by his inflammatory speech to the Christian Veterans of America. More to the point for our purposes, I think, is the observation of Douglas J. for the majority in the same case, that upholding constitutional rights at times of national stress is “one of the chief distinctions” that sets a liberal democracy apart from the “totalitarian regimes” that were considered at that time a threat to national security (p. 4).

[114] Every legal system has its not-so-proud moments when in times of national upheaval or wartime emergency, civil rights have been curtailed in ways which were afterwards regretted. One need look no further than to mention the wartime treatment of Canadians of Japanese descent, upheld in Reference Re: Persons of Japanese Race, 1946 CanLII 46 (SCC), [1946] S.C.R. 248, aff’d 1946 CanLII 361 (UK JCPC), [1947] 1 D.L.R. 577 (P.C.).

[115] The challenge posed to our legal institutions by the current “war on terrorism” promises to be more enduring and difficult to manage than the more traditional wartime challenges to civil liberties previously experienced. The terrorist threat had no announced point of commencement and may have no end. The enemy is not conveniently dressed in uniforms or arranged in battlefield order. They operate among us in guerilla-style networks, where decisions can be made, adjusted, improvised and implemented in lower level cells. They are, it seems, everywhere and yet they are nowhere to be seen. There may be no dramatic final battle in which victors and losers are made manifest. We are told that there will be a long, slow process of attrition. Efforts to counteract terrorism are likely to become part of our everyday existence for perhaps generations to come. In these circumstances we can take limited comfort from the declared intention of the government that the Anti-terrorist Act is a temporary measure. While its continued existence will depend on Parliament’s appreciation of developments in the “war on terrorism”, such temporary measures may well slide into a state of de facto permanence. The role of s. 83.28 in our criminal law should be approached with that unhappy prospect firmly in mind.

[116] The danger in the “war on terrorism” lies not only in the actual damage the terrorists can do to us but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism or overreaction.

[117] This case, it seems to me, illustrates the problem.

II. The Air India Trial

[118] My colleagues suggest (I think correctly) that generally speaking the role of the hearing judge under s. 83.28 is “to protect the integrity of the investigation and, in particular, the interests of the named person vis-à-vis the state” (para. 87). In this case, however, the difficult issue for the s. 83.28 hearing judge is not so much the fair treatment of the appellant as it is the need to ensure that the charges against the accused Ripudaman Singh Malik and Ajaib Singh Bagri in the Air India case are dealt with in accordance with our usual rules of a fair trial.

[119] The hearing judge explicitly recognized in her publicly released synopsis of the s. 83.28 case that the “terrorism offence” under investigation at her inquiry is also the subject matter of the criminal charges against Malik and Bagri.

The terrorism offence relates to two explosions which occurred between June 22 and 23, 1985, and caused the deaths of two baggage handlers and injuries to four others in Narita, Japan, and the deaths of the 329 passengers and crew of Air India flight 182 off the west coast of Ireland.

Mr. Malik and Mr. Bagri are currently on trial for conspiracy to murder and other offences relating to those events. Their trial began on April 28, 2003 and will resume on September 8, 2003.

([2003] B.C.J. No. 1749 (QL), 2003 BCSC 1172, at paras. 4-5)

[120] She elsewhere noted that the s. 83.28 hearing was directed to “information about the Air India crimes and their perpetrators” (emphasis added). The perpetrators, on the Crown’s theory, include Malik and Bagri.

[121] The appellant is a witness scheduled to testify for the prosecution against Malik and Bagri. This person has “not cooperated with the police” nor, it seems, with the Crown. The hearing judge specifically noted that the appellant is “equally uncooperative with the defence”. At the time of the hearing before Holmes J. the appellant had made no known disclosure to anyone of the evidence he or she might or might not give in the Air India trial.

A. The Crown Sought Mid-Trial Discovery of an Uncooperative Witness

[122] The Criminal Code affords the Crown many advantages in a criminal proceeding but where, as here, the Crown chooses to proceed by direct indictment, a free-standing right to compel reluctant witnesses to answer questions under oath before they are called to give their evidence in open court is not amongst them.

[123] In this case, the Crown decided not to hold a preliminary hearing before a judge in the ordinary way in the presence of the accused but to proceed to trial on a direct indictment signed by the Attorney General of British Columbia on March 8, 2001. The consequences of such a procedure are significant, as pointed out in Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, per Estey J., at p. 105:

. . . the preliminary hearing has become a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present.

[124] The result of the direct indictment proceeding was that neither the Crown nor the defence had a preliminary look at how the witnesses would perform in a trial-like setting. This was the Crown’s decision. The defence is given no choice in the matter.

[125] A mid-trial examination of the appellant for discovery would recoup for the Crown some of the advantage it lost in opting for the direct indictment of Malik and Bagri. The defence, on the other hand, is given no comparable opportunity to obtain mid-trial (or pre-trial) discovery of some of the witnesses it may wish to depose: see Re Regina and Arviv (1985), 1985 CanLII 161 (ON CA), 51 O.R. (2d) 551 (C.A.).

[126] If it is fair to give the Crown a non-reciprocal right of pre-trial discovery of witnesses in this murder trial, why not generally? Why limit the Crown’s right of discovery to those cases where s. 83.28 applies? However, no one argues that this is the normal way of conducting a murder trial. That being so, why single out Malik and Bagri for disadvantageous treatment? At what point, if at all, should principle yield to expediency in the “war on terror”? That is a key issue not only in this case but in all the cases to follow where the decision in this case to uphold as proper the Crown’s use of s. 83.28 for discovery will be cited as a precedent.

[127] On June 5, 2001, the Crown filed a new direct indictment under which Malik and Bagri are jointly charged with first degree murder in relation to Air India Flight 182, conspiracy to commit murder, attempted murder of the passengers and crew of Air India Flight 301, conspiring to cause bombs to be placed on various aircraft, and three counts of placing a bomb on an aircraft. Malik and Bagri are also jointly charged with a second count of first degree murder in relation to the explosion at Narita Airport where deaths were caused during the transfer of luggage to Air India Flight 301. A third accused, Inderjit Singh Reyat, was charged in relation to the bomb on Air India Flight 182. It is difficult to conceive of a more serious set of criminal charges.

[128] The enormity of the charges at issue in the Air India trial is what makes this case difficult. It is comparatively painless for a society to support the procedural rights of an accused when the stakes are small. It is when the stakes are high, as here, that our commitment is truly tested.

[129] On February 10, 2003, Reyat pleaded guilty to lesser charges and was sentenced to prison for five years in addition to the 10 years already served on an earlier conviction for manslaughter arising from the Narita Airport bombing plus the time he spent in custody awaiting extradition to Canada and the trials. At the time of his sentencing the Statement of Facts agreed to by the Crown and Reyat excluded Reyat as a suspect in the murder of the passengers on Air India Flight 182:

At no time did Mr. Reyat intend by his actions to cause death to any person or believe that such consequences were likely to occur. However, unbeknownst to Mr. Reyat the items that he acquired were used by another person or persons to help make an explosive device that, on or about June 23, 1985, destroyed Air India Flight 182, killing all 329 people on board.

(British Columbia Criminal Justice Branch, Media Statement, “Inderjit Singh Reyat Pleads Guilty to Role in Air India Explosion”, February, 10 2003)

[130] The trial of Malik and Bagri started April 28, 2003. They are, of course, presumed innocent unless and until the Crown establishes their guilt beyond a reasonable doubt.

B. The Appellant Was Under No Legal Duty to Cooperate With the Police

[131] On March 21, 2003, the appellant was subpoenaed to give evidence at the trial of Malik and Bagri but, as stated, has cooperated neither with the police nor with the defence. Generally speaking, under our law, there is no legal obligation for an ordinary citizen to cooperate in a police investigation. As Martin J.A. put it in R. v. Esposito (1985), 1985 CanLII 118 (ON CA), 24 C.C.C. (3d) 88 (Ont. C.A.), at p. 94:

Although a police officer is entitled to question any person in order to obtain information with respect to a suspected offence, he, as a general rule, has no power to compel the person questioned to answer. Moreover, he has no power to detain a person for questioning, and if the person questioned declines to answer, the police officer must allow him to proceed on his way unless he arrests him on reasonable and probable grounds.

Section 83.28 gives the police new powers in that regard, but they are powers that should be exercised under judicial supervision with due attention to their extraordinary nature and with regard to the rights not only of persons subpoenaed to testify but of third parties whose interests are affected, including in this case Malik and Bagri.

C. The Crown Proceeded Without Notice to the Defence

[132] A week after the Air India trial began, and without notice to counsel for Malik and Bagri, the Crown appeared before a judge other than the trial judge for an order under s. 83.28 of the Criminal Code to examine the appellant on some of the matters at issue in the Air India trial. While s. 83.28 permits an application to be made without notice, there is no requirement that it be done in that way, and in light of the links of this s. 83.28 proceeding to the Air India trial, I think it would have been proper here for the Crown to give notice to counsel for Malik and Bagri. At that point their role, if any, in the s. 83.28 hearing could have been the subject of argument. Instead, the Crown requested that the s. 83.28 hearing be held in camera and that the appellant be prohibited from disclosing, except to his or her own counsel, any information or evidence obtained at the s. 83.28 hearing. This prohibition was designed to keep both the accused Malik and Bagri and their counsel, amongst others, in a state of ignorance of even the existence of the s. 83.28 proceedings.

[133] One purpose of the s. 83.28 hearing was to provide the Crown with a transcript of the appellant’s compelled testimony under oath that would otherwise be unobtainable under our law.

[134] If the testimony of the appellant at the Air India trial proves to be consistent with the s. 83.28 transcript, or more favourable to the prosecution, its existence might never be disclosed to the trier of fact.

[135] If the appellant departs from the s. 83.28 transcript in a way unfavourable to the prosecution, the s. 83.28 transcript would be available for impeachment and perhaps to lay the basis for an application to have the appellant declared a hostile witness, with a view to allowing the Crown the further advantage of cross-examining its own witness: see s. 9 of the Canada Evidence Act, R.S.C. 1985, c. C-5. The existence of the transcript may open the door to its use not only as a prior inconsistent statement but for the truth of its contents: see R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764.

[136] While the contents of the transcript would eventually be disclosed to defence counsel under the principles set out in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, the hearing judge specifically ordered that the transcript could not be shown to the persons best able to comment on its accuracy in relation to them, namely the accused Malik and Bagri.

[137] My colleagues give little weight to the Crown’s resort to s. 83.28 as a form of “mid-trial” discovery and simply argue at para. 101 that

the presumption of openness for the judicial investigative hearing and the participation of counsel for the accused from the outset would have overcome any concerns regarding the practical effect of the hearing on the Air India trial.

This analysis, with all due respect, sidesteps the significance of at least one of the purposes the Crown was seeking to achieve in the first place by resort to the s. 83.28 procedure, as will now be discussed.

D. Use of Section 83.28 to Obtain Mid-Trial Discovery of an Uncooperative Witness Was an Abuse of Process

[138] It is apparent that in this case an investigative procedure designed for the purpose of gathering information at the pre-charge stage was invoked behind the backs of the accused in part at least to obtain advance discovery of an uncooperative prosecution witness not only after charges were laid but during the Air India trial itself.

[139] The Crown, as well as defence counsel, are only in the initial stages of grappling with the proper limits of s. 83.28. Nevertheless, its use in this case goes far beyond what was suggested in Parliament by the responsible Minister:

Bill C-36 would also provide for investigative hearings under the criminal code. These hearings would permit the gathering of evidence in investigations of terrorism offences prior to the laying of charges. [Emphasis added.]

(House of Commons Debates, vol. 137, 1st Sess., 37th Parl., October 16, 2001, at p. 6166)

Section 83.28 does not cease to be available to investigators once charges have been laid, but there is nothing in s. 83.28 to suggest that Parliament intended to confer on the Crown a right of mid-trial discovery of uncooperative witnesses before a different judge where the Crown proceeds by direct indictment in the trial of criminal offences, even if those offences involve terrorist acts. Section 83.28 was not designed to serve as a sort of halfway house between a preliminary hearing and a direct indictment.

[140] My colleagues write that “[t]he place of the judiciary in such investigative contexts is to act as a check against state excess” (para. 86), but the point, in my opinion, is that, on the particular facts of this case, the s. 83.28 order was itself “state excess”. So far as Malik and Bagri are concerned, the presence of the judge presiding over the examination adds weight to its coercive potential and strengthens the hand of the prosecution. The Crown’s trial tactic to use s. 83.28 to deal with an uncooperative witness in the ongoing Air India trial, on the facts of this particular case, was abusive of the proper role of the judiciary.

III. The Terms of the Initial Section 83.28 Order Were Inappropriate

[141] The motions judge, Dohm A.C.J., who heard the motion ex parte and therefore did not have the advantage of hearing submissions from anyone other than the Crown, ordered the appellant examined on the following conditions:

(a) “The Investigative Hearing shall take place in camera”;

(b) “[The appellant] may be represented by counsel at the Investigative Hearing”;

(c) “[The appellant] shall be examined on oath by the Attorney General’s agent, and shall not be examined by any other person”;

(d) “[The appellant] shall answer questions put . . . and shall produce to the presiding judge things that are ordered to be produced unless protected by any law relating to non-disclosure of information or to privilege”;

(e) “[The appellant] shall not disclose, except to [his or her] counsel, any information or evidence obtained at the Investigative Hearing without the consent of the Attorney General or his agent”;

(f) “Notice shall not be given to Ripudaman Singh Malik or Ajaib Singh Bagri.”

(Emphasis added.)

The effect of the order was to confer a significant advantage on the prosecution. No provision was made in the order to advise the trial judge, Josephson J., of what was afoot. Yet, Josephson J. is the judge charged with ensuring that Malik and Bagri receive a fair trial. Not only would the Crown have had the exclusive right to put the questions, but Malik and Bagri, under the terms of the original order, would be deprived of the opportunity given to the Crown of hearing the appellant’s testimony, and of appraising its likely strength, which is one of the usual benefits of discovery, i.e. whether the witness

is dull or quick-witted and whether he is accurate or otherwise in his testimony. Also, if he is given to exaggeration or over-emphasis; whether he is lacking in confidence; if his memory is good or bad and if he is honest. The examination is generally useful in determining the manner or line of cross-examination that will be most effective at the trial. [Emphasis added.]

(G. D. Cudmore, Choate on Discovery (2nd ed. (loose-leaf)), at pp. 1-11)

[142] Despite the order of Dohm A.C.J. that Malik and Bagri were not to be notified of the s. 83.28 hearing, they found out about it. Malik, in particular, complained that the effect of the order, as issued, would have been that while they faced a judge-alone trial in the courthouse before Josephson J., elsewhere in the building

the Crown was obtaining a secretive discovery of the evidence of a witness, with another judge of the same court presiding over that hearing. The result is disturbing; the court appears to be “taking sides” by actively and secretly assisting the Crown’s case in an ongoing trial. This result undermines public confidence in the judiciary and it violates the judiciary’s independence and impartiality.

[143] The hearing judge, Holmes J., accepted in part the validity of this complaint. She wrote:

I agree with [counsel for Malik] that if s. 83.28 were applied so as to provide to the Crown a form of pre-trial preparation or discovery that is unavailable to the defence, then it would create an unfair advantage for the Crown that puts the accused person’s fair trial rights seriously at risk. [Emphasis added.]

[144] This conclusion must be read in light of my colleagues’ assertion at para. 87, with which I agree, that “once legislation invokes the aid of the judiciary, we must remain vigilant to ensure that the integrity of its role is not compromised or diluted”. I would add that it is not the proper role of the s. 83.28 judge to become an extra player in an ongoing trial in another judge’s courtroom, especially where the intervention is not disclosed to the trial judge. 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 rights of the accused before Josephson J. were not abused in a concurrent and parallel s. 83.28 proceedings.

[145] After the defence got its collective foot inside the s. 83.28 courtroom door and was able to make representations, Holmes J. allowed counsel for Malik and Bagri to participate in the s. 83.28 hearing on restricted terms:

(a) “If information is given in the hearing that does not relate to the trial, counsel for the accused Malik and Bagri are to leave the hearing.”

(b) “The accused Malik and Bagri will not be present at the investigative hearing.”

(c) “There will be no disclosure, including to them, of information or evidence obtained in the hearing except with the consent of the agent for the Attorney General or by order of the court.”

(d) “The hearing will take place in-camera.”

In short, the Crown was authorised to proceed with its discovery of the appellant before a judge other than the trial judge without the two accused being present to instruct their counsel, or to know what had transpired.

IV. The Defects in the Section 83.28 Order Were Not Cured by Amendments Made by the Hearing Judge

[146] The issue is not just whether the hearing judge greatly improved the terms of the s. 83.28 order obtained ex parte by the Crown, which she did, but whether the s. 83.28 hearing of the appellant should proceed at all in the time frame sought by the Crown.

[147] Holmes J. ordered the hearing to proceed because in her view the “predominant purpose” of the s. 83.28 hearing was not the ongoing trial but the ongoing investigation:

I conclude that the factual record supports the Crown’s position that the proposed hearing is predominantly for the purpose of furthering the Air India investigation as a whole, although it will undoubtedly have the incidental effect of providing the Crown with an opportunity for preparation or discovery in relation to the continuing trial.

My colleagues Iacobucci and Arbour JJ. do not agree with the hearing judge’s “predominant purpose” test, but would still defer to the hearing judge’s conclusion on the theory that she must have meant something other than what she said. They write (at para. 99):

Although the hearing judge expressed her conclusion in terms of a predominant purpose for the investigative hearing, in looking at her findings we are satisfied that she was using that expression to mean improper purpose or with an oblique motive.

My colleagues thereby substitute for the hearing judge’s essentially fact based test (predominant purpose) an essentially law based test (improper purpose).

[148] Even accepting that an “improper purpose” standard was applied by the hearing judge (although nowhere referred to), this begs the question of whether it is “proper” for a s. 83.28 hearing to proceed when there are twin purposes, one of which is for use as witness discovery in an ongoing criminal trial. The Crown argues that this Court should defer to the decision of the hearing judge on that point, citing Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. In my view this reliance is misplaced once the test of “predominant purpose” is replaced by a test of “improper purpose”. Far from being an issue of fact, the propriety of the relationship between investigations under s. 83.28 and an ongoing related criminal trial is a question of important precedential value. A determination on the issue by this Court requires an examination of how to reconcile the Crown’s dual role in investigations under s. 83.28 on the one hand and as “minister of justice” in the criminal trial process on the other. This issue engages the “law making role” of this Court. I agree that the propriety of the resort to s. 83.28 is a better test than “predominant purpose”, but I do not agree with the submission that we should defer to the hearing judge’s conclusion on this point (if indeed it can be said she reached any such conclusion, given that she thought she was applying a different test).

[149] It is clear on the facts that one of the purposes of the s. 83.28 hearing in this case was to discover the evidence of the appellant in relation to the Air India trial. At this point it is convenient to recall the Crown’s submissions to the hearing judge about the admitted linkages between the s. 83.28 hearing and the Air India trial. (In fairness to Dohm A.C.J., these matters did not emerge until after he had made the ex parte order.) Firstly, in addressing the impact of the delay associated with the constitutional challenge to s. 83.28, Crown counsel advised Holmes J. with respect to the Air India trial that

the Crown will not be calling [the appellant] as had been contemplated in the early part of September.

The explanation for this delay was that the Crown wanted the s. 83.28 transcript available when the appellant climbed into the witness box. To make this purpose clear, Crown counsel added:

. . . obviously the Crown is anxious to have this [s. 83.28] investigative hearing take place before the conclusion of the Crown’s case in R. v. Malik and Bagri. That is of critical significance to — or of great significance to the Crown’s position and the Crown’s decision whether or not it will call [the appellant] as a witness at the trial. [Emphasis added.]

[150] In other words, the s. 83.28 evidence was required for the purpose of determining an important component of the Crown’s trial strategy in the Air India case, at least in relation to the use (or non-use) of the appellant as a Crown witness.

[151] As recently as its factum filed with this Court, the Crown proposed a timetable under which the appellant would testify at the Air India trial on November 3, 2003 but not before the s. 83.28 hearing then scheduled by the Crown for October 26-27, 2003.

[152] In short, there is no doubt at all on the record that the Crown intended to use the s. 83.28 procedure at least in part for the purpose of a pre-trial (or mid-trial) discovery of the appellant. It is not necessary for present purposes to agree or disagree with the hearing judge’s assessment of the predominant purpose. It is enough to note her recognition that one of the purposes was pre-trial (or mid-trial) discovery, and to ask whether that purpose was improper.

[153] The hearing judge was alive to the problem. She expressed a caveat:

. . . if the conduct of the investigation, including through an investigative hearing ordered under s. 83.28, causes a breach of [Malik and Bagri’s] Charter rights, they may apply to the [Air India] trial judge for a remedy.

[154] The problem, of course, is that at the stage it reaches the trial judge, the Crown will already have had its “mid-trial” discovery. It will have used that discovery to decide whether or not to call the appellant. While the trial judge may restrict the use of the transcript at trial in some respects, the Crown would have obtained in advance the information that it truly wants, namely the compelled disclosure of what the appellant is likely to say. Such a preview is a significant advantage. An unpredictable witness who says unexpected things in the witness box might not just disappoint the Crown’s desire to advance the prosecution, such a witness could also say things that might do serious damage to the Crown’s case. That, presumably, is why the Crown was anxious to delay the appellant’s appearance at the Air India trial until after the s. 83.28 hearing had tied the appellant to a particular version of events.

[155] I fully recognize the onerous and difficult responsibilities faced by Crown counsel in the Air India trial. Nevertheless, in the s. 83.28 procedure, as my colleagues emphasize, “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” (para. 95). It is sometimes not an easy matter for the Crown to accommodate its duty to act impartially in the public interest and its role as advocate in an accusatorial adversarial criminal prosecution. Here, in my view, Crown counsel is not engaged in a detached investigative role, but seeks to bootstrap its case in the Air India trial by resort to s. 83.28 as a mid-trial discovery procedure. The issue is not one of high principle but trial tactics. Whether resort to such tactics is proper or improper is one of the questions of law to be settled by this Court.

[156] If the Crown’s dominant concern were truly to press ahead with an “ongoing investigation”, it could have called the appellant to testify before Josephson J. at any time after the Air India trial started on April 28, 2003, by special arrangement or otherwise. This would have freed the s. 83.28 hearing from any constraints posed by the trial of Malik and Bagri.

[157] In any event, I believe my colleagues’ “improper purpose” test is too narrow. The Court’s concern is not exhausted by whether there has been shown bad faith or “oblique motive” on the part of the Crown prosecutor. The Court must act on a broader basis to protect the public interest in a “fair and just trial process and the proper administration of justice”: R. v. Scott, 1990 CanLII 27 (SCC), [1990] 3 S.C.R. 979, at p. 1007. What is important is not only the Crown’s purpose but, as much or more so in this case, the effect of the s. 83.28 order on the ongoing Air India trial. It is significant that a tactical split has developed between Bagri, who would now like his counsel to examine the appellant in the s. 83.28 hearing, and Malik, who opposes it. If the prejudicial effects of the s. 83.28 proceeding on the fair trial rights of Malik or Bagri or either of them can be eliminated by delaying the s. 83.28 hearing until after appellant testifies at the Air India trial, then, in my opinion, the s. 83.28 hearing should be delayed.

[158] There might be exigent circumstances in another case where such a tilt in the playing field could be justified, perhaps in the face of an apprehended future terrorist act for example. That is not this case.

V. Should the Appellant Be Defeated by the Ruling in Housen v. Nikolaisen?

[159] The Crown relies on Housen v. Nikolaisen, supra, for the proposition that this Court should defer to the decision of the hearing judge to allow the s. 83.28 hearing to proceed.

[160] While the hearing judge found as a “fact” that the Air India investigation was the “predominant purpose”, the link to the Air India trial was plain and obvious and acknowledged by the Crown. My colleagues rightly reject the “predominant purpose” test. The question at this point, therefore, is whether the Crown’s purpose insofar as it related to the Air India trial was “improper”. That is not an issue of fact. It is a matter of opinion.

[161] In Housen v. Nikolaisen, Iacobucci and Major JJ. pointed out at para. 36 that

[m]atters of mixed fact and law lie along a spectrum. Where, for instance, an error with respect to a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness.

[162] A finding of improper purpose, like a finding of negligence, is an issue of mixed fact and law. Further, a finding of impropriety lies at the “legal” end of the spectrum because it is the product of applying a legal standard to the facts established in evidence before the hearing judge. When we say something is improper we are implicitly, if not explicitly, doing so by reference to a standard of propriety. That is a legal issue.

[163] It is also, in this case, an important issue of legal practice. This appeal does not come to us as a general constitutional reference brought by the government to determine the validity of s. 83.28, although that is an important element of what we have to deal with. The appellant brings the case here not to make new law but to obtain practical relief.

VI. The Result Was an Abuse of Process

[164] The inherent power of a court to stay abusive proceedings has been discussed in a number of decisions including R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Power, 1994 CanLII 126 (SCC), [1994] 1 S.C.R. 601; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; and Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391.

[165] In those cases, the Court set the bar to obtain a stay very high because what was sought was an end to a prosecution. What is sought here is in the nature of a flexible common law remedy available to the courts to protect the integrity of their own processes. A temporary stay in this case would have required nothing more than a scheduling change.

[166] There is nothing in the material to suggest that postponement of the s. 83.28 hearing until after the appellant had testified would have prejudiced any “ongoing investigation” into other aspects of the Air India disaster. That investigation has been “ongoing” for almost 20 years.

[167] The Crown was not entitled to a mid-trial examination for discovery of an uncooperative witness according to the ordinary rules of criminal procedure and it should have been stopped. This brings us back to the point of my commencement. The courts should treat with healthy scepticism a government claim that the war against terrorism, important as it is, should trump the normal processes of the law. Situations may arise where that becomes necessary, but this is not one of those cases. At a minimum, alternatives to “trumping” should be explored. Here the interests of the Air India investigation could reasonably be accommodated to the exigencies of the Air India trial by a scheduling change. In these circumstances, in my respectful opinion, the hearing judge erred in giving the Crown the green light to proceed.

VII. Disposition

[168] I would therefore allow the appeal, affirm the constitutional validity of s. 83.28 of the Criminal Code when correctly interpreted and properly applied, but I would have entered a stay against the s. 83.28 hearing in this proceeding until after the appellant had testified at the trial of Malik and Bagri, or the Crown otherwise had indicated that the appellant would not be called as a prosecution witness.

English version of the reasons of LeBel and Fish JJ. delivered by

[169] LeBel J. (dissenting) — I agree with Binnie J. that the appeal should be allowed because of the abuse of process by the Crown and would reach the same conclusion as him on that issue. However, with respect for the contrary view, I cannot agree with my colleagues Iacobucci and Arbour JJ. on the issue of judicial independence. In my opinion, s. 83.28 of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), compromises judicial independence and should, for this reason, be declared unconstitutional. Due to the manner in which this provision structures relations between the judiciary, the investigative arm of the police and the Crown, it will inevitably lead to the abuses and irregularities described so eloquently by my colleague Binnie J.

[170] As noted by Iacobucci and Arbour JJ., the principle of judicial independence has a variety of sources. Judicial independence is guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms and the Preamble to and ss. 96 to 100 of the Constitution Act, 1867, and it plays an essential role in the proper functioning of Canada’s constitutional democracy (Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, at para. 34). This principle, which serves to maintain public confidence in the court system and the rule of law, was established to prevent interference by the executive and legislative branches in the exercise of judicial powers (Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 (“Reference re Judges of the Provincial Court”), at para. 10; Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673; Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56). The judiciary must remain completely independent of the other branches of government in the performance of its functions (Mackin, supra, at para. 35).

[171] The courts have identified three fundamental characteristics of judicial independence: security of tenure, financial security, and administrative independence. Security of tenure means that a judge can be removed from office only for serious and very specific reasons following an independent review process that affords the judge the opportunity to be heard and to defend him- or herself. Financial security safeguards judges’ salaries or other remuneration and pensions. Administrative independence, which is not to be confused with institutional independence, a point I will discuss below, gives courts necessary power over matters of administration bearing directly on the exercise of their functions (Valente, supra, at pp. 694‑712).

[172] Judicial independence also has two dimensions, individual independence and institutional independence, which are distinct from its core characteristics (Reference re Judges of the Provincial Court, supra, at para. 119). On the one hand, individual independence attaches to the individual judge. Judges must be able to discharge their judicial functions without outside interference. Thus, this dimension of independence is concerned with the personal attributes of a judge, such as security of tenure. On the other hand, institutional independence attaches to courts as institutions. Courts must be independent, and appear to be independent, of the legislative and executive branches of government. The institutional dimension of judicial independence thus ensures the separation of powers (Reference re Judges of the Provincial Court, supra, at paras. 118‑25; Mackin, supra, at para. 39; Ell v. Alberta, [2003] 1 S.C.R. 857, 2003 SCC 35, at paras. 21‑23).

[173] This Court has often stressed the need to safeguard the institutional dimension of judicial independence so that the courts can continue to fulfill their role as guardians of the Constitution (Reference re Judges of the Provincial Court, supra, at para. 123; Mackin, supra, at para. 39). If the courts are to retain the ability to provide individuals with effective protection against unwarranted deprivations of their rights and freedoms by the executive and legislative branches, they must necessarily be independent of those branches (Ell, supra, at para. 22).

[174] In the case before us, it is important, indeed essential, that these two dimensions of judicial independence not be confused. Thus, 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. To determine whether judicial independence has been maintained in a specific case, both dimensions of judicial independence therefore have to be reviewed.

[175] As noted by Iacobucci and Arbour JJ., the principle of judicial independence is essential to the preservation of the fundamental normative order of a society founded on the principles of constitutionalism and the rule of law. Judicial independence effectively ensures the maintenance of public confidence in the administration of justice, which is itself an essential precondition for respect for and acceptance of the justice system and the rule of law. Thus, public confidence guarantees the effectiveness of our justice system, while at the same time putting the principle of the rule of law into practice (Valente, supra, at p. 689; Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35, at para. 110; Mackin, supra, at paras. 34‑38). The maintenance of public confidence in the administration of justice is therefore central to concerns relating to judicial independence.

[176] To determine whether a measure compromises judicial independence, it must be asked whether the judicial institution, meaning, on the one hand, the individual judges and, on the other hand, collectively, the institution per se, is perceived by the public to be independent:

Confidence in our system of justice requires a healthy perception of judicial independence to be maintained amongst the citizenry. Without the perception of independence, the judiciary is unable to “claim any legitimacy or command the respect and acceptance that are essential to it”: see Mackin v. New Brunswick (Minister of Finance), [2002] 1 S.C.R. 405, 2002 SCC 13, at para. 38, per Gonthier J. The principle requires the judiciary to be independent both in fact and perception. [Emphasis added.]

(Ell, supra, at para. 23; Valente, supra, at p. 689)

The appropriate test for this purpose is whether a reasonable person who is informed of the relevant statutory provisions would conclude, after viewing the matter realistically and practically, that the judiciary is independent (Reference re Judges of the Provincial Court, supra, at para. 113; Mackin, supra, at para. 38). It is important to note, however, that “reasonable person” does not for this purpose mean an experienced legal professional who understands the intricacies of legal issues based on subtle distinctions of which lay persons would generally be unaware. In short, the objective test of the reasonable person should serve to determine whether the public has a positive perception of judicial independence.

[177] When analysed from this perspective, s. 83.28 Cr. C. compromises the institutional dimension of judicial independence. To conclude otherwise, it would be necessary to ignore the fundamental distinction between the two dimensions of judicial independence when applying the law to the facts of this case. Although they do discuss the institutional dimension of judicial independence, Iacobucci and Arbour JJ. seem to have inferred the existence of judicial independence from the individual independence of the judge acting pursuant to s.