SUPREME COURT OF CANADA

Citation: R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110

Date: 20110210 Docket: 33066

Between:

Her Majesty The Queen Appellant

and

Fahim Ahmad, Zakaria Amara, Asad Ansari, Shareef Adelhaleem, Mohammed Dirie, Jahmaal James, Amin Mohamed Durrani, Steven Vikash Chand, Saad Khalid and Saad Gaya Respondents

• and -

Attorney General of Ontario and Canadian Civil Liberties Association Interveners

Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 81)

The Court

R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110

Her Majesty The Queen Appellant

v.

Fahim Ahmad, Zakaria Amara, Asad Ansari, Shareef Abdelhaleem, Mohammed Dirie, Jahmaal James, Amin Mohamed Durrani, Steven Vikash Chand, Saad Khalid and Saad Gaya Respondents

and

Attorney General of Ontario and Canadian Civil Liberties Association Interveners

Indexed as: R. v. Ahmad

2011 SCC 6

File No.: 33066.

2010: March 18; 2011: February 10.

Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.

on appeal from the ontario superior court of justice

Constitutional law — Validity of legislation — Section 38 scheme of Canada Evidence Act granting jurisdiction to Federal Court to determine questions of disclosure of information pertaining to international relations, national defence or national security — Whether Parliament’s decision to limit superior courts from determining those questions impermissibly invades core jurisdiction of superior courts — Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 38 to 38.16 — Constitution Act, 1867, s. 96.

Constitutional law — Charter of Rights — Right to life, liberty and security of the person — Section 38 scheme of Canada Evidence Act granting jurisdiction to Federal Court to determine questions of disclosure of information pertaining to international relations, national defence or national security — Whether attribution of jurisdiction to Federal Court impedes ability of superior court judges to ensure conduct of fair trial — Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 38 to 38.16 — Canadian Charter of Rights and Freedoms, s. 7.

In June 2006, 18 people were arrested on the suspicion that they were plotting terrorist attacks. Ten of the eighteen people were scheduled to be tried before Dawson J. of the Ontario Superior Court of Justice. In March and June 2008, the Crown notified the Attorney General of Canada that the Superior Court proceedings might disclose potentially injurious or sensitive government information. The Attorney General brought the disclosure issue before the Federal Court pursuant to the s. 38 scheme of the Canada Evidence Act. Noël J. of the Federal Court ordered that the accused be designated as respondents in proceedings commenced by the Attorney General, that a hearing be held, and that notice be given to the Superior Court judge. The accused then brought an application in the Superior Court to challenge the constitutionality of the s. 38 scheme. The Federal Court halted its proceedings pending the resolution of that challenge. The Superior Court judge held that the scheme was unconstitutional as it violated s. 96 of the Constitution Act, 1867 and s. 7 of the Charter. He struck down the legislation to the extent that it conferred exclusive jurisdiction on the Federal Court and asserted his own responsibility, as the Superior Court judge conducting the criminal trial, to decide any national security privilege issues that might arise in the course of the proceedings.

Held: The appeal should be allowed. Sections 38 to 38.16 of the Canada Evidence Act are constitutional.

This appeal concerns the potential conflict between two fundamental obligations of the state under our system of government: first, to protect society by preventing the disclosure of information that could pose a threat to international relations, national defence or national security; second, to prosecute individuals accused of offences against our laws. In the s. 38 scheme, Parliament has recognized that on occasion it may become necessary to choose between these objectives, but has laid out an elaborate framework to attempt, where possible, to reconcile them. Where the conflict is irreconcilable, an unfair trial cannot be tolerated. Under the rule of law, the right of an accused person to make full answer and defence may not be compromised. The s. 38 scheme preserves the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including, where he or she deems it necessary, to enter a stay of proceedings. While the statutory scheme of s. 38, particularly its division of responsibilities between the Federal Court and the criminal courts of the provinces, raises numerous practical and legal difficulties, properly understood and applied, it is constitutionally valid. The test in Re Residential Tenancies Act, 1979 requires as a first step that an analysis be conducted as to whether the power conferred on a tribunal other than a s. 96 court broadly conforms to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation. It is true, of course, that the judicature provisions of the Constitution Act, 1867 create substantive constitutional limitations on Parliament’s ability to confer powers on courts or tribunals other than those established under s. 96. Although the Court has not fully explored the interaction of ss. 96 and 101, it accepts for present purposes (without deciding) that the constitutional analysis proceeds as the respondents contend.

In 1867, Crown claims to refuse disclosure of potentially injurious or sensitive information were generally considered by superior courts in Canada to be a matter of unreviewable executive prerogative. Given that the superior courts did not exercise any such power of review at the time of Confederation, the analysis under Re Residential Tenancies Act, 1979 ends at the first question and there is no infringement of s. 96 under that test. Further, while it is true that a superior court’s ability to adjudicate the constitutional issues that come before it forms a part of its core jurisdiction, the issue here is not properly characterized as the authority of the superior court to protect the integrity of its process. Rather, the issue relates to authority in relation to disclosure of material for which the security exemption is claimed. Characterized in that way, the s. 38 scheme does not violate s. 96 of the Constitution Act, 1867 because it does not impede a court’s power to remedy abuses of process. What is essential for constitutional purposes is that the criminal courts retain the ability to ensure that every person who comes before them as the subject of a criminal prosecution receives a fair trial. What is recognized in both s. 38.14 of the CEA and s. 24(1) of the Charter is that sometimes the only way to avoid an unfair trial is to have no trial at all. Through s. 38.14 and the Charter, the criminal court trial judge possesses the means to safeguard the accused’s fair trial rights. However, the stay of proceedings remedy in s. 38.14 is a statutory remedy to be considered and applied in its own context. It should not be limited by the non statutory “clearest of cases” test for a stay under the Charter jurisprudence.

For similar reasons, the challenge to the legislation under s. 7 of the Charter also fails. The Federal Court judge’s sole concern under the scheme is the protection of the public interest in sensitive or potentially injurious information. If the Federal Court determines that the disclosure of the information at issue would be injurious to international relations or national defence or national security, then disclosure will only be ordered by that court if in its view the public interest in disclosure outweighs the public interest in non‑disclosure (ss. 38.06(1) and (2) of the CEA). While the public certainly has an interest in the effective administration of justice, the s. 38 scheme recognizes that an unfair trial is not an option. The trial judge in this case was not deprived of the ability to adjudicate the Charter issues that flowed from the non‑disclosure order. While it is true that the legislation deprives trial judges of the ability to order the disclosure or even their own inspection of material that is withheld pursuant to the s. 38 scheme, they retain the ability in the absence of such access to order whatever remedy pursuant to the Charter and s. 38.14 is required to protect the accused’s right to a fair trial. If the trial process resulting from the application of the s. 38 scheme becomes unmanageable by virtue of excessive gaps between the hearing of the evidence or such other impediments, such that the right of the accused to a fair trial is compromised, the trial judge should not hesitate to use the broad authority Parliament has conferred under s. 38.14 to put an end to the prosecution.

Cases Cited

Applied: Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714; discussed: Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3; MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725; referred to: R. v. Malik, 2005 BCSC 350; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27; R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297; Labour Relations Board of Saskatchewan v. The Queen, 1955 CanLII 82 (SCC), [1956] S.C.R. 82; Canada (Attorney General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547, rev’d 2007 FCA 342, 370 N.R. 128; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680; Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186; Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), 1989 CanLII 116 (SCC), [1989] 1 S.C.R. 238; Gugy v. Maguire (1863), 13 L.C.R. 33; Bradley v. McIntosh (1884), 5 O.R. 227; R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479; Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637; Abou‑Elmaati v. Canada (Attorney General), 2011 ONCA 95; R. v. Ribic, 2004 CanLII 7091.

Statutes and Regulations Cited

Anti‑terrorism Act, S.C. 2001, c. 41.

Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 38 to 38.16, 39.

Canadian Charter of Rights and Freedoms, ss. 7, 11(b), (d), 24(1).

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C‑23.

Constitution Act, 1867, ss. 96, 101.

Constitution Act, 1982, s. 52(1).

Immigration and Refugee Protection Act, S.C. 2001, c. 27.

Security of Information Act, R.S.C. 1985, c. O‑5.

Authors Cited

Canada. Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182. Air India Flight 182: A Canadian Tragedy, vol. 3, The Relationship Between Intelligence and Evidence and the Challenges of Terrorism Prosecutions. Ottawa: The Commission, 2010.

Canada. Justice. The Anti‑terrorism Act: Amendments to the Canada Evidence Act (CEA) (online: http://www.justice.gc.ca/antiter/sheetfiche/ceap2-lpcp2-eng.asp).

Canada. Senate. Proceedings of the Special Senate Committee on the Subject Matter of Bill C‑36, Issue No. 1, 1st Sess., 37th Parl., October 22, 2001, pp. 63‑64.

Dawson, Eleanor. “The Federal Court and the Clash of the Titans: Balancing Human Rights and National Security”, Address at the University of Manitoba Faculty of Law, March 30, 2006.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

Linstead, Stephen G. “The Law of Crown Privilege in Canada and Elsewhere — Part 1” (1968‑1969), 3 Ottawa L. Rev. 79.

APPEAL from a judgment of the Ontario Superior Court of Justice (Dawson J.) (2009), 2009 CanLII 84788 (ON SC), 257 C.C.C. (3d) 135, [2009] O.J. No. 6166 (QL), 2009 CarswellOnt 9311. Appeal allowed.

Croft Michaelson and Nicholas E. Devlin, for the appellant.

John Norris and Breese Davies, for the respondent Asad Ansari.

Rocco Galati, for the respondents Shareef Abdelhaleem and Amin Mohamed Durrani.

Delmar Doucette, for the respondent Steven Vikash Chand.

Paul B. Slansky, for the respondent Saad Gaya.

Sarah T. Kraicer and Josh Hunter, for the intervener the Attorney General of Ontario.

Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Canadian Civil Liberties Association.

No one appeared for the respondents Fahim Ahmad, Zakaria Amara, Mohammed Dirie, Jahmaal James and Saad Khalid.

The following is the judgment delivered by

1The Court ― This appeal concerns the potential conflict between two fundamental obligations of the state under our system of government: first, to protect society by preventing the disclosure of information that could pose a threat to international relations, national defence, or national security; and second, to prosecute individuals accused of offences against our laws. In s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), Parliament has recognized that on occasion it may become necessary to choose between these objectives, but has laid out an elaborate framework to attempt, where possible, to reconcile them. At the heart of this appeal lies the respondents’ challenge to the constitutional validity of this provision. In their view, the scheme violates s. 96 of the Constitution Act, 1867 and s. 7 of the Canadian Charter of Rights and Freedoms.

2We acknowledge at the outset that in some situations, the prosecution’s refusal to disclose relevant (if sensitive or potentially injurious) information in the course of a criminal trial may on the facts of a particular case prejudice the constitutional right of every accused to “a fair and public hearing” and the separately guaranteed right “to be tried within a reasonable time” (Charter, ss. 11(d) and (b), respectively). Where the conflict is irreconcilable, an unfair trial cannot be tolerated. Under the rule of law, the right of an accused person to make full answer and defence may not be compromised. However, s. 38, as we interpret it, preserves the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including, where he or she deems it necessary, to enter a stay of proceedings.

3In our view, for the reasons that follow, s. 38 itself (the text of which is attached hereto in the Appendix) provides enough flexibility to avoid the drastic result of a stay of proceedings in all but the most intractable of cases, as recently demonstrated in the Air India prosecution (R. v. Malik, 2005 BCSC 350). While the statutory scheme of s. 38, particularly its division of responsibilities between the Federal Court and the criminal courts of the provinces, raises numerous practical and legal difficulties, we are satisfied that s. 38, properly understood and applied, is constitutionally valid.

A. Overview

4Parliament has allocated to judges of the Federal Court, on application, the responsibility to consider potentially injurious or sensitive information in respect of which national security is claimed and to determine whether, and under what conditions, it ought to be disclosed. Judges presiding at criminal trials cannot order disclosure to an accused of the withheld material. Nor, under current practices, are they generally given access to that material. And yet, both at common law and under s. 38 itself, it is trial judges, not the judges of the Federal Court, who are entrusted with the ultimate responsibility of protecting the accused’s constitutional right to make full answer and defence. We were not referred to any other jurisdiction where this division of responsibility between different courts has been established in relation to criminal proceedings.

5Nevertheless, the question before us is not whether this jurisdictional bifurcation is unusual or undesirable as a matter of policy or inefficient as a matter of practice — it has been subject to considerable criticism — but whether it passes constitutional muster. That determination does not depend on whether bifurcation may in some instances lead to delays and inefficiencies in the trial process. Nor does it depend on whether a non-disclosure order will on occasion frustrate the prosecution of serious crimes. Rather, the constitutional validity of the scheme established by Parliament in s. 38 ultimately depends on whether it affords trial judges adequate means to prevent an unfair trial.

6Parliament has conferred on the Attorney General of Canada in s. 38.03 the power to withhold (or not withhold) relevant information from the criminal courts even where a Federal Court judge has ordered such disclosure to be made. This is a drastic power which, for public policy reasons, Parliament has seen fit to confer on the most senior law officer of the Crown. At the same time, Parliament has recognized in s. 38.14 that while the judge presiding over the criminal trial is powerless to order production to himself or herself for review or divulgation to the accused of the undisclosed relevant information, the criminal court, and the criminal court alone, has the power to make any order considered necessary in order to protect the accused’s right to a fair trial. This provision applies to provincial and superior court judges alike. The remedies that may be ordered include, but are not limited to, dismissal of specified counts, a finding against any party on any issue to which the undisclosed information relates, or a complete stay of proceedings.

7As we stated in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, the Court “has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual” (para. 58). But we took care in Charkaoui to stress as well the importance of the principle of fundamental justice that “a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case” (para. 61). Charkaoui was an immigration case. In criminal cases, the court’s vigilance to ensure fairness is all the more essential. Nevertheless, as we interpret s. 38, the net effect is that state secrecy will be protected where the Attorney General of Canada considers it vital to do so, but the result is that the accused will, if denied the means to make a full answer and defence, and if lesser measures will not suffice in the opinion of the presiding judge to ensure a fair trial, walk free. While we stress this critical protection of the accused’s fair trial rights, we also note that, notwithstanding serious criticisms of the operation of these provisions, they permit considerable flexibility as to how to reconcile the accused’s rights and the state’s need to prevent disclosure.

B. Facts of This Prosecution

8In June of 2006, 18 people were arrested in the Greater Toronto Area on the suspicion that they were plotting terrorist attacks. The suspects were alleged to have conducted terrorist training camps in Ontario, to have amassed weapons, and to have made plans to storm Parliament, where they intended to behead politicians and detonate truck bombs in several locations.

9The accused were initially brought to the attention of the Royal Canadian Mounted Police (“RCMP”) by the Canadian Security Intelligence Service (“CSIS”). On a number of occasions, CSIS provided the RCMP with information that had been gathered through surveillance and the use of informants. The June arrests were preceded by more than six months of investigative work by the RCMP’s Integrated National Security Enforcement Team.

(1) Proceedings in the Ontario Superior Court

10Ten of the eighteen suspects were scheduled to be tried on terrorism-related offences before Dawson J. of the Ontario Superior Court of Justice. Extensive disclosure was provided to the accused prior to the preliminary inquiry, including more than 150,000 records and media files. Before this material was produced, however, significant redactions were made on the basis of objections raised under s. 38. For example, affidavits used to obtain judicial authorizations and warrants during the investigation of the accused were edited to conceal sensitive information.

11A preliminary inquiry began in June of 2007, but was aborted when a direct indictment was preferred on September 24 of that year. At the preliminary inquiry, numerous objections were raised under s. 38 to prevent certain questions from being asked. In the judgment below, Dawson J. noted that those objections had not yet been resolved and would likely re-emerge at trial ((2009), 2009 CanLII 84788 (ON SC), 257 C.C.C. (3d) 135).

12Pre-trial motions began in May of 2008. At the time this case came before us, it was anticipated that the pre-trial motions would still take considerable time; Dawson J. estimated in his reasons that the pre-trial motions and jury trial combined would last anywhere from two and a half to five and a half years. Since this appeal was heard, however, the charges against all of the participating respondents have been resolved (at least at first instance). Seven of the respondents pleaded guilty while the remaining three were convicted in jury trials.

(2) Proceedings in the Federal Court

13On March 20, 2008, and again on June 16, 2008, the Crown notified the Attorney General of Canada, as required by s. 38.01 of the CEA, that the Superior Court proceedings might disclose sensitive information. On December 12, 2008, Noël J. of the Federal Court issued an order under s. 38.04(5) directing that the accused be designated as respondents in proceedings commenced by the Attorney General, stating that a hearing was required, and ordering that notice be given to Dawson J.

14The accused then brought an application in the Superior Court to challenge the constitutionality of s. 38. The Federal Court halted its proceedings pending the resolution of that challenge.

(3) Decision of the Ontario Superior Court

15Dawson J. held that the s. 38 scheme was unconstitutional. In the first place, he held that the scheme violated s. 96 of the Constitution Act, 1867, because vesting exclusive jurisdiction over “privilege” determinations in the Federal Court interfered with the ability of superior court judges to “apply the Constitution”, which represented an invasion of the core jurisdiction of superior courts. Dawson J. further found that this interference constituted an unjustifiable infringement of s. 7 of the Charter. Accordingly, he held under s. 52(1) of the Constitution Act, 1982 that the scheme was of no force and effect to the extent of its inconsistency with the Constitution. He struck down the legislative framework to the extent that it conferred exclusive jurisdiction on the Federal Court and asserted his own responsibility, as the superior court judge conducting the criminal trial, to decide any national security privilege issues that might arise in the course of the proceedings.

C. Overview of the Statutory Scheme of Section 38 of the [Canada Evidence Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html)

16We will address a number of aspects of s. 38 in some detail. To begin, a brief overview of the provisions will be of assistance.

17The s. 38 scheme provides a procedure to govern the use and protection of “sensitive” or “potentially injurious information”. Those expressions are defined in the Act as follows:

“potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.

“sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.

Section 38 places an obligation on all participants to a legal proceeding, as well as non-participating officials, to notify the Attorney General of the possibility that sensitive or potentially injurious information will be disclosed (s. 38.01).

18Within 10 days of receiving notice, the Attorney General must make a decision with respect to disclosure (s. 38.03(3)). Under s. 38.03(1), the Attorney General may authorize disclosure at any time and pursuant to any conditions that are deemed fit. If the party who gave notice — for example, the provincial Crown — wishes to disclose the information at issue, it may enter an agreement with the Attorney General to do so under specified conditions (s. 38.031(1)). If the Attorney General has not authorized the unconditional disclosure of the information and no disclosure agreement has been reached, the disclosure issue may be taken before the Federal Court on the initiative of the Attorney General, the Crown, the accused (if he or she has been made aware of it), or any other person who seeks the disclosure of the protected information (s. 38.04).

19A designated judge of the Federal Court then decides whether it is necessary to hold a hearing on the matter and, if so, who should be given notice (s. 38.04(5)). The Attorney General is required to make representations to the court concerning the identity of any persons whose interests may be affected by the disclosure order (s. 38.04(5)(a)). Some of the evidence, the records, and the oral hearing will be ex parte (seen and heard only by the Attorney General and the designated judge), while some will be private (seen and heard by the parties to the proceedings, but not by the public).

20The designated judge must first determine if disclosure of the information would be injurious to international relations, national defence, or national security. If the judge is of the view that no such injury would result, he or she may authorize disclosure (s. 38.06(1)). Otherwise, disclosure may be ordered only if the designated judge determines that the public interest in disclosure outweighs the public interest in non-disclosure (s. 38.06(2)). The designated Federal Court judge may also impose conditions on disclosure and order that notification of the decision be given to any person (s. 38.07). It is the Crown’s position that the division of responsibility between the Federal Court and the criminal trial courts is premised on the particular expertise of Federal Court judges in determining matters pertaining to national security.

21If a party wishes to contest the Federal Court order, it may be appealed to the Federal Court of Appeal, with the possibility of a further appeal to this Court (s. 38.09).

22Central to the scheme of s. 38 are two ministerial powers exercised by the Attorney General of Canada, one in relation to the disclosure or non-disclosure of potentially injurious or sensitive information and the other with respect to the conduct of prosecutions.

23First, s. 38.13 empowers the federal Attorney General to personally issue a certificate that prohibits disclosure even of information whose disclosure has been authorized by the Federal Court judge. This certificate is only subject to judicial review by a single judge of the Federal Court of Appeal, and that judge may only vary or cancel the certificate on the ground that the material it contains is not “information obtained in confidence from, or in relation to, a foreign entity . . . or to national defence or national security” (ss. 38.13 and 38.131). In short, this narrow right of review provides no effective judicial means for challenging or correcting a debatable decision by the Attorney General in balancing the public interest in non-disclosure against the public and private interests in disclosure of the subject information.

24The validity of these powers has not been challenged in this case and, for present purposes, they must therefore be presumed to be constitutionally valid. That being so, we think it particularly difficult for the respondents to maintain that s. 38 is unconstitutional on the theory that disclosure decisions are inherently judicial in nature. As we will demonstrate, this is neither historically nor legally correct. The subset of this argument — that it is unconstitutional to allocate disclosure decisions to the Federal Court instead of to the judges in the criminal courts — is equally untenable, for the same reasons.

25As we will see, however, this authority of the Attorney General of Canada to disclose or withhold disclosure of potentially injurious or sensitive information, and on what terms, largely independently of the regular Federal Court channel, comes at a price: the potential collapse of the prosecution, whether initiated federally or provincially.

26Turning to the second power, the prosecutorial authority of the Attorney General is further reinforced by s. 38.15(1), which authorizes the Attorney General to assume by fiat exclusive control of any prosecution in connection with which sensitive or potentially injurious information may be disclosed — even where the proceedings were instituted by a provincial Attorney General.

D. A Practical Approach to Section 38

27The respondents’ submissions, like the judgment below, have all assumed that because the judge presiding at a criminal trial has no right of access to potentially injurious or sensitive material, such access will not normally occur. The respondents further argue that it would be impossible for the defence to demonstrate prejudice without knowing the nature of the material and that it would be impossible for the trial judge to fashion a just and appropriate remedy under s. 38.14 or s. 24(1) of the Charter. Properly interpreted and applied, however, s. 38 does not command this result.

28This Court has repeated on numerous occasions that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27. Moreover, “Parliament is presumed to have intended to enact legislation in conformity with the Charter”: R. v. Hamilton, 2005 SCC 47, [2005] 2 S.C.R. 432, at para. 75; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45, at para. 33.

29We therefore begin from the proposition that, in the absence of clear and unambiguous statutory language to the contrary, the legislation must be understood not to contemplate that trial judges would determine the impact of non-disclosure on trial fairness in a manner that would result in granting unwarranted stays or declining to grant appropriate remedies. Parliament must have been aware of these potential injustices and cannot have intended either result.

30Lack of disclosure in this context cannot necessarily be equated with the denial of the right to make full answer and defence resulting in an unfair trial. There will be many instances in which non-disclosure of protected information will have no bearing at all on trial fairness or where alternatives to full disclosure may provide assurances that trial fairness has not been compromised by the absence of full disclosure. For example, in the Air India terrorism prosecution, the prosecution and the defence reached an agreement whereby the defence was allowed to inspect documents in the possession of CSIS after giving an undertaking not to disclose the contents to anyone without permission, including the accused. In a subsequently released report on the trial, lead prosecutor Robert Wright and defence counsel Michael Code reported that “in almost every instance defence counsel were able to conclude that the material was not relevant to the proceedings”: see the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Air India Flight 182: A Canadian Tragedy (“Air India Report”) (2010), vol. 3, at p. 152.

31We must presume that Parliament was aware of the possibility that proceedings would be needlessly stayed if the trial judge was denied access to material that could not be disclosed for valid reasons of state secrecy. In light of the vast resources expended in investigating and prosecuting offences that implicate national security and the injustice to society that would result if such prosecutions were needlessly derailed, this cannot have been Parliament’s intention.

32Nor can Parliament have intended that trial judges be presented with an inadequate record or incomplete picture that could lead them to conclude, erroneously, that trial fairness will be unimpaired. As stated, Parliament is presumed to intend to enact Charter-compliant legislation. Even more significantly, in this case, the presumption of constitutionality is reinforced by the existence of s. 38.14, which expressly indicates that the fair trial rights of the accused must be protected — not sacrificed — in applying the other provisions of the scheme. This provision also suggests a recognition by Parliament that it is ultimately the trial judge, having experience with the criminal proceedings and having heard all of the evidence adduced, who will be best placed to make remedial decisions following a s. 38 non-disclosure order.

33However, the public interest will only be served if the trial judge in the criminal proceedings is able to exercise his or her discretion with an adequate understanding of the nature of the withheld information. In other words, the drastic nature of the potential remedies specified in s. 38.14 leads us to the conclusion that Parliament expected trial judges to be provided with a sufficient basis of relevant information on which to exercise their remedial powers judicially and to avoid, where possible (and appropriate), the collapse of the prosecution.

34Trial judges are under a duty to protect the accused’s constitutional right to a full and fair defence quite apart from s. 38.14. The broad remedial discretion under s. 24(1) of the Charter already includes the power to order any of the remedies listed in s. 38.14 of the CEA to prevent an unfair trial. Yet Parliament has chosen to explicitly set out a number of statutory remedies that range from the finely tailored (i.e., dismissing specified counts of the indictment) to the very blunt (a complete stay of all proceedings). Dismissing a specified count of the indictment (or proceeding only on a lesser included offence) as suggested by the legislation, would generally require a thorough enough understanding of the s. 38 information to evaluate it against specific elements of the offences charged. Conversely, if the trial judge lacks that understanding, it will often be impossible to determine what charge, element or component of the defence that information might relate to. In such circumstances, the trial judge may have no choice but to enter a stay. This possibility was referred to in argument as putting the Attorney General and the trial courts in the dilemma of playing constitutional chicken, an outcome which a sensible interpretation of s. 38 will help to avoid.

35This leads us to the further observation that the stay of proceedings remedy in s. 38.14 is a statutory remedy to be considered and applied in its own context. It should not be burdened with the non-statutory “clearest of cases” test for a stay outlined in R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128; R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. The criminal court judge may be placed in a position of trying to determine an appropriate remedy where lack of disclosure has made it impossible to determine whether proceeding with a trial in its absence would truly violate “the community’s sense of fair play and decency” (Jewitt, at p. 135). Nevertheless, the legislative compromise made in s. 38 will require a stay in such circumstances if the trial judge is simply unable to conclude affirmatively that the right to a fair trial, including the right of the accused to a full and fair defence, has not been compromised.

36With those observations in mind, we turn to an analysis of specific aspects of the s. 38 scheme.

(1) The Trial Judge Ought to Receive Notice of a Section 38 Application

37Parliament did not intend for trial judges to exercise their authority under s. 38.14 other than judicially. To this end, the Attorney General, as the chief law officer of the Crown, and the Crown prosecutor, pursuant to his or her duties of fairness, should take all steps available to them within the limits imposed by the legislation to provide trial judges with the information required to discharge both the duty to safeguard the fair trial rights of the accused as well as the obligation to Canadian society not to grant unwarranted stays of proceedings.

38Section 38.04(5)(b) contemplates that the Federal Court judge may proceed without a hearing simply on the representations of the Attorney General of Canada (or in defence matters the Minister of National Defence). It is only “if” the designated judge decides to proceed to a hearing that he or she will “determine who should be given notice of the hearing” (s. 38.04(5)(c)(i)).

39In the context of criminal proceedings, it is our view that unless the designated judge decides without a hearing that the information in question should be disclosed to the criminal court, there must be a hearing on the disclosure issues, and that s. 38.04(5) should be read as requiring notice to the criminal court that a s. 38 proceeding has been commenced in Federal Court. Although s. 38.04(5)(c)(i) may at first blush appear to grant Federal Court judges a wide discretion in determining who “should” be given notice, this Court has held in the past that “[e]nabling words are always compulsory where they are words [used] to effectuate a legal right”: Labour Relations Board of Saskatchewan v. The Queen, 1955 CanLII 82 (SCC), [1956] S.C.R. 82, at p. 87. Given that the criminal trial judge will require notice to effectively discharge the duty to protect the accused’s legal rights under the Charter, it will always be the case (subject of course to the other provisions of that Act) that he or she “should” be given notice. The word “may” in s. 38.07 will similarly be understood to require that notice of the Federal Court judge’s final order be given to the trial judge. Although the determination whether to give notice to a criminal trial judge is not discretionary, the content of that notice remains at the discretion of the designated judge. This will vary with the different circumstances of each case.

40Similarly, absent compelling reasons to the contrary, the Federal Court judge should generally order that notice of the existence of the proceedings in the Federal Court be given to the accused in the criminal trial. This is not the occasion for the Court to pronounce in detail on how the notice provisions in s. 38.04 interact with the s. 38.02 prohibition of disclosure of the existence of proceedings in the Federal Court. It is clear, however, that there is sufficient flexibility in the overall scheme to permit notice to be given whenever possible and appropriate.

(2) Empowering the Trial Judge to Exercise the Section 38 Discretion Judicially

41The broad discretion conferred by s. 38 must be interpreted in accordance with the purpose of the legislation, which is to balance the public interest in secrecy against the public interest in the effective administration of a fair system of justice. This purpose requires that trial judges have the information required to discharge their duties under the CEA and the Charter in an informed and judicial manner.

42The notice given under s. 38.04(5) will trigger s. 38.14, at which point the trial judge will be bound to consider the impact of non-disclosure on trial fairness. In order to discharge this duty, the trial judge will require some information about the withheld information. In some cases, a summary may be sufficient, while in other instances, more extensive access will be required.

43As noted earlier, the Attorney General of Canada has the ultimate power to disclose — or refuse to disclose — relevant information under the s. 38.03(1) certificate power. This provision permits the Attorney General to make disclosure “at any time and subject to any conditions” of “all or part of the information”. Where a case is prosecuted by a provincial Crown, ss. 38.031 and 38.04(6) would allow the Crown to make an agreement with the Attorney General enabling the province to make partial or conditional disclosure of the information to the trial judge. If the Attorney General declines to do so, and in the result puts the trial judge in the position of having to consider a stay of the criminal proceedings, that is a decision for the Attorney General to make, having regard of course to the potential adverse consequences for the prosecution.

44Section 38 creates a scheme that is designed to operate flexibly. It permits conditional, partial and restricted disclosure in various sections. Section 38.06(1) affirmatively requires the Federal Court judge to consider the public interest in making disclosure along with what conditions are “most likely to limit any injury to international relations or national defence or national security” (s. 38.06(2)). In making this determination, the Federal Court judge may authorize partial or conditional disclosure to the trial judge, provide a summary of the information, or advise the trial judge that certain facts sought to be established by an accused may be assumed to be true for the purposes of the criminal proceeding. One example of how this might work in practice can be found in Canada (Attorney General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547, appeal allowed on other grounds, 2007 FCA 342, 370 N.R. 128, where the Federal Court judge disclosed a summary of the material being withheld under s. 38 to counsel for the parties, and directed that it be made available to the trial judge and prosecutor if necessary to determine whether the fair trial rights of the accused had been infringed (para. 187).

45The problems created by the division of judicial responsibilities may be addressed in different ways. For example, a Federal Court judge exercising the discretion conferred by s. 38.06(2) might find that the only condition required in order to authorize disclosure to the criminal court judge without risking injury to national security is that he or she not reveal the information to the accused, or a condition that the information be reviewed in a designated secure facility. Disclosure of the information to the trial judge alone, as is the norm in other jurisdictions, and for the sole purpose of determining the impact of non-disclosure on the fairness of the trial, will often be the most appropriate option. This is particularly true in light of the minimal risk of providing such access to a trial judge, who is entrusted with the powers and responsibilities of high public office.

46Crown counsel will also have an important role to play as the proceedings unfold. For example, if it becomes obvious to the Crown that non-disclosure under s. 38 will significantly and irreparably impact trial fairness, then the Crown itself ought normally to enter a stay of proceedings.

47Under some circumstances, the trial judge might conclude that it is not possible to assess the relevance of the withheld material without submissions from a counsel opposed in interest to the prosecution. In such a situation, the appointment of a security-cleared special advocate could prove to be beneficial if he or she is adequately informed of the matters in issue by authorization of the Attorney General of Canada under s. 38.03. In Charkaoui, we discussed the advantages and some disadvantages of resort to the special advocate systems employed in other contexts in Canada and (subsequently) in the United Kingdom. Since then, a statutory regime for special advocates has been created under the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). While there are numerous criticisms of the special counsel procedure under the IRPA, and we do not by any means discount the weight of these criticisms, it is nevertheless the case that the assistance of a special counsel might be of considerable help (depending on the circumstances) to the judge presiding at a criminal trial attempting to determine the effect of s. 38 non-disclosure on what s. 38.14(1) itself describes as “protect[ion of the] right . . . to a fair trial”.

48In the Air India Report, the Honourable John C. Major, Q.C. (the “Commissioner”) noted that the IRPA regime “has led to the creation of a cadre of security-cleared lawyers with experience in matters involving national security confidentiality” (vol. 3, at pp. 167-68) and recommended that these special advocates be permitted to protect the accused’s interests during s. 38 applications. In reaching this conclusion, the Commissioner noted that there was extensive support before him for the use of special advocates in s. 38 proceedings: see Air India Report, at pp. 167-69 (citing the recommendations of the House of Commons and Senate committees that reviewed the operation of the Anti-terrorism Act, S.C. 2001, c. 41, as well as submissions from the Federation of Law Societies of Canada, the Canadian Bar Association, and the Criminal Lawyers’ Association, and also noting that the Federal Court has already appointed security-cleared amici curiae to assist it in s. 38 proceedings).

49We recognize that the procedural flexibility of the s. 38 scheme allows for arrangements (such as the one that was reached between the prosecution and the defence in the Malik prosecution previously discussed), whereby defence counsel might be allowed to access the withheld material on an undertaking not to disclose it to the accused. However, we would urge caution in resorting to such procedures. In R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389, we noted that even where the client’s consent is obtained, arrangements of this nature will “at best, strain the necessary relationship between defence counsel and their accused clients” (para. 45). At worst, such arrangements may place lawyers in a conflict between their duty to represent the best interests of their client and their duty to honour the undertakings they have given with respect to the privileged information, such that they are forced to withdraw their representation (para. 46).

50The flexible procedures under s. 38 may be contrasted with the inflexible treatment of Cabinet confidences in s. 39(1) at issue in Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, which states:

39. (1) Where a minister of the Crown or the Clerk of the Privy Council objects to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying in writing that the information constitutes a confidence of the Queen’s Privy Council for Canada, disclosure of the information shall be refused without examination or hearing of the information by the court, person or body.

The absolute language of s. 39 is intended to oust the developing common law approach to Cabinet confidences, which allows courts to balance the public interest in protecting confidentiality against the public interest in disclosure: Babcock, at paras. 19-23. We recognize that there are important substantive differences between the different disclosure provisions contained in the CEA. Nonetheless, one would expect Parliament to have used similarly clear language if it had intended to preclude the trial judge’s access to at least a summary of the type of information that is subject to a s. 38 challenge.

(3) The Section 38 Process May Proceed in Stages Before the Criminal Trial Judge

51It will always be left to trial judges to determine whether they have a sufficient basis on which to exercise their remedial discretion judicially. If, under the arrangements that are made, there is simply not enough information to decide whether or not trial fairness has been materially affected, the trial judge must presume that the non-disclosure order has adversely affected the fairness of the trial, including the right of the accused to make full answer and defence. In such a case, rather than proceed directly to issuance of a stay, the Crown should be advised accordingly. The Attorney General will then have an opportunity to make further and better disclosure under the Attorney General certificate procedure to address the trial judge’s concerns. If no (or inadequate) additional information can be provided to the trial judge, a stay of proceedings will be the presumptively appropriate remedy.

52It bears repeating that although stays of proceedings pursuant to the common law and the Charter are considered to be extraordinary in nature, they are an expressly contemplated remedy under s. 38.14 to protect the fair trial rights of the accused from the adverse impact of non-disclosure. As we have outlined above, if the legislation is applied flexibly and in light of what the trial judge requires to exercise his or her discretion judicially, and with the sense of fairness to be expected from the Attorney General and the prosecutor, stays of proceedings that, unknown to the trial judge, are not in fact warranted should be rare. Trial judges should almost always be given enough information to either order a more finely tailored remedy or, where appropriate, to conclude that no remedy is necessary. However, the Charter requires, and the legislation acknowledges, that where the government is withholding information and the trial judge is unable to satisfy himself or herself that non-disclosure has not adversely affected trial fairness, and no lesser step or remedy can assure it, a stay of proceedings under s. 38 must issue. Doubt, in this respect, should be resolved in favour of protecting the fair trial rights of the accused, including the right of full answer and defence.

53As a final note, we would add that although the trial judge will retain the discretion to decide when to order a remedy, the impact on violations or abuses “on the fairness of the trial . . . is often best assessed in the context of the trial as it unfolds”: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at para. 27.

E. The Constitutional Analysis in Light of the Foregoing Interpretation of Section 38

(1) Section 38 Does Not, as Correctly Interpreted, Violate Section 96 of the [Constitution Act, 1867](https://www.canlii.org/en/ca/laws/stat/30---31-vict-c-3/latest/30---31-vict-c-3.html)

54Having interpreted the relevant legislation, we now return to the constitutional issues before us.

55A major focus of the argument before us was the trial judge’s inability to access the material that is the subject of a non-disclosure order under s. 38. In cases where the trial proceeds before a superior court judge, the respondents contend, and Dawson J. accepted, that s. 38 interferes with the ability of superior court judges to “apply the Constitution” and protect the s. 7 rights of accused persons. This, the respondents submit, offends s. 96 of the Constitution Act, 1867 by impermissibly transferring these responsibilities to the Federal Court, a non-section 96 tribunal, and by invading the “core jurisdiction” of superior courts. It also, in their submission, violates s. 7 of the Charter.

56There are three short answers to these submissions: superior courts historically did not have the jurisdiction to review Crown claims to refuse disclosure of potentially injurious or sensitive information of state; such authority is not within the protected core of superior court jurisdiction; and the challenged provisions do not prevent a trial judge presiding over a criminal prosecution from protecting the fair trial rights of an accused. Inability to rule on production does not infringe s. 96 or s. 7.

57It is true, of course, that the judicature provisions of the Constitution Act, 1867 create substantive constitutional limitations on Parliament’s ability to confer powers on courts or tribunals other than those established under s. 96. Although the Court has not fully explored the interaction of ss. 96 and 101, we accept for present purposes (without deciding) that the constitutional analysis proceeds as the respondents contend.

58They submit that to determine whether a conferral of power on a tribunal other than a s. 96 court violates s. 96 of the Constitution Act, 1867, one first applies the test set out by Dickson J. (as he then was) in Re Residential Tenancies Act, 1979, 1981 CanLII 24 (SCC), [1981] 1 S.C.R. 714, and as developed in the subsequent cases. In brief, the test asks (1) whether the power conferred broadly conforms to a power or jurisdiction exercised by a superior, district or county court at the time of Confederation; (2) if so, whether the power is a judicial power; and (3) if so, whether the power is either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to such a function: Reference re Amendments to the Residential Tenancies Act (N.S.), 1996 CanLII 259 (SCC), [1996] 1 S.C.R. 186, at para. 74.

59Applying this test, there is no violation of s. 96 in this case. As noted in Re Residential Tenancies Act, 1979, the first question requires a historical inquiry into “whether the power or jurisdiction conforms to the power or jurisdiction exercised by superior, district or county courts at the time of Confederation” (p. 734). As the Court later noted in MacMillan Bloedel Ltd. v. Simpson, 1995 CanLII 57 (SCC), [1995] 4 S.C.R. 725, “if the power in question does not conform to one exercised by a superior court in 1867, the inquiry ends” (para. 12). Notably, the power must also have been exercised exclusively by superior courts at Confederation. For example, if jurisdiction was concurrent between superior and inferior courts, the inquiry will still end at the first stage of the Residential Tenancies test: Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.), 1989 CanLII 116 (SCC), [1989] 1 S.C.R. 238.

60In 1867, Crown claims to refuse disclosure of potentially injurious or sensitive information were generally considered by superior courts in Canada to be a matter of unreviewable executive prerogative: Gugy v. Maguire (1863), 13 L.C.R. 33 (Q.B.); Bradley v. McIntosh (1884), 5 O.R. 227 (C.P.). See, generally, S. G. Linstead, “The Law of Crown Privilege in Canada and Elsewhere ― Part 1” (1968-1969), 3 Ottawa L. Rev. 79. While the law has since evolved away from this exceptionally deferential approach (see, e.g., R. v. Snider, 1954 CanLII 40 (SCC), [1954] S.C.R. 479, and Carey v. Ontario, 1986 CanLII 7 (SCC), [1986] 2 S.C.R. 637), the respondents’ argument that s. 38 is constitutionally vulnerable because it removes part of the historical jurisdiction of the superior courts is misconceived. Given that the superior courts did not exercise any such power of review at the time of Confederation, the analysis under the Residential Tenancies Act, 1979 ends at the first question; there is no infringement of s. 96 under that test. We note that the Ontario Court of Appeal reached the same conclusion in Abou-Elmaati v. Canada (Attorney General), 2011 ONCA 95, though in the context of pre-trial discovery in a civil action.

61However, even though the grant of power passes the Residential Tenancies test, it will be unconstitutional if the legislation purports to confer exclusive jurisdiction respecting a matter within the core jurisdiction of s. 96 courts: MacMillan Bloedel, at paras. 27-28. A power that is “integral” to the operation of superior courts is part of the “core or inherent jurisdiction” that cannot be stripped from the superior court (para. 15) without violating s. 96 of the Constitution Act, 1867. An element of the superior court’s “inherent jurisdiction” is the power to enforce its own orders and maintain its dignity and respect (paras. 33 and 37). In Reference re Amendments to the Residential Tenancies Act (N.S.), at para. 56, Lamer C.J. further refined the definition of the “core” jurisdiction, stating that it included

. . . only critically important jurisdictions which are essential to the existence of a superior court of inherent jurisdiction and to the preservation of its foundational role within our legal system