Judicial and Quasi-judicial Control and Scrutiny

• Jurisdiction: Canada
• Author: Craig Forcese
• Pages: 119-156

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 

Judicial and Quasi-judicial

Controland Scrutiny

In the Canadian national security system, courts and specialized

quasi- judicial bodies supplement ministerial forms of control. Courts

especially straddle the divide between control and scrutiny, as dened

in Chapter . For instance, the Federal Court exercises judicial con-

trol over CSIS in issuing (or not) warrants authorizing certain activ-

ities under the Canadian Security Intelligence Service Act (CSIS Act).

e Federal Courts may also scrutinize government decisions in the

national security area through their regular role as courts of judicial

review in federal administrative law. Likewise, they may scrutinize

CSIS (and potentially other agencies) in adjudicating certain statu-

tory rights of appeal in specialized areas of national security decision

making. Finally, they decide national security–related disclosure issues

under section  of the Canada Evidence Act. e Federal Courts are,

therefore, the judicial entity most implicated in the sweep of national

security activities. is is true even though it is provincial superior

courts that try terrorism or espionage criminal cases. Such criminal

1 RSC 1985, c C-23.

2 RSC 1985, c C-5.

 | Fundamentals of National Security Accountability in Canada

matters are relatively uncommon in Canada, certainly as compared

to the national security business at the Federal Courts.

is chapter describes the judicial control functions of courts, with

a particular focus on the Federal Court. It also examines the Federal

Court’s judicial scrutiny functions in the national security area. ird,

it describes legal rules and principles applicable to these proceedings.

Finally, it discusses the quasi-judicial control functions of the intelli-

gence commissioner. Parliament created the intelligence commissioner

in  to perform a control function roughly analogous to that of

the Federal Court for CSIS but in relation to certain CSE activities

(among other things).

I. JUDICIAL CONTROL

Canada has many courts. e courts with the broadest jurisdiction are

the provincial or territorial “superior” courts (also called “section 

courts” because of the provision of the Constitution Act, 1867 anticipating

their existence). ese courts handle the most serious civil matters and

the most signicant criminal trials. e federal government appoints

the judges of these courts, but the provinces/territories administer the

courts themselves (which is why the formal name of these courts diers

between provinces and territories). Provinces and territories also have

separate “provincial/territorial courts” to handle matters that (constitu-

tionally) section  courts need not handle, including some less serious

criminal matters. e province or territory appoints the judges of these

courts. All provinces and territories also have courts of appeal, with

federally appointed judges. Provincial courts of appeal are the ultimate

appellate court for all the courts at the provincial/territorial level, with

any nal appeal heard at the Supreme Court of Canada.

A. Judicial Control Generally

Several of these section  and provincial/territorial courts are involved

in judicial control of police. In Chapter , I dene “judicial control” as

3 See Michael Nesbitt, “An Empirical Study of Terrorism Charges and Terrorism Trials in Canada

Between September 2001 and September 2018” (2019) 67 Criminal Law Quarterly 95.

Judicial and Quasi-judicial Controland Scrutiny | 

a form of supervision where an independent judge assesses an author-

ization against a standard (for example, reasonableness or lawfulness)

prior to the execution of the authorized activity and as a precondi-

tion of that activity. us, before police intercept a private communi-

cation (through a wiretap, for example), they must rst obtain an

authorization under part VI of the Criminal Code from a provincial/

territorial or superior court judge. Analogous requirements extend to

other forms of search and seizure — the Criminal Code includes many

species of warrants and judicial authorizations tied to the nature of

an intrusive search (including of homes and computers). e RCMP,

for instance, must be attentive to these search warrant and authoriz-

ation requirements in conducting terrorism investigations. As sug-

gested in Chapter , this judicial control limits the possibility of police

independence leading to the police becoming a law unto themself. A

fuller discussion of judicial control and Criminal Code search warrants

for police is found in other works.

B. Federal Court Judicial Control

For a book on national security, however, the most important courts

exercising judicial control are the Federal Courts — yet another type

of court. e Federal Courts are constituted by the Federal Courts Act

and comprise the Federal Court and the Federal Court of Appeal.

Constitutionally, the Federal Courts are constituted under section

of the Constitution Act, 1867 as “additional Courts for the better Admin-

istration of the Laws of Canada,” charged by their statute with cen-

tralizing adjudication of certain questions of federal law. e written

Constitution does not speak of “national security.” However, the sorts

4 RSC 1985, c C-46.

5 See, e.g., Craig Forcese & Leah West, National Security Law, 2d ed (Toronto: Irwin Law,

2021); Nader Hasan, Mabel Lai, David Schermbruker & Randy Schwartz, Search and

Seizure (Toronto: Emond Montgomery, 2021).

6 RSC 1985, c F-7.

7 I do not deal here with the military justice system and the Court Martial Appeal Court.

Note that portions of this chapter adopt materials f‌irst prepared for Craig Forcese, “The

Trials and Tribulations of the Federal Courts’ Jurisdiction” in Martine Valois, Ian Greene,

Craig Forcese & Peter McCormick, eds, The Federal Court of Appeal and the Federal Court:

50 Years of History (Toronto: Irwin Law, 2021).