R. v. Ahmad (F.) et al., (2011) 411 N.R. 320 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 18, 2010
• Jurisdiction: Canada (Federal)
• Citations: (2011), 411 N.R. 320 (SCC);2011 SCC 6;[2011] SCJ No 6 (QL);411 NR 320;274 OAC 120;[2011] 1 SCR 110

R. v. Ahmad (F.) (2011), 411 N.R. 320 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2011] N.R. TBEd. FE.026

Her Majesty The Queen (appellant) v. 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 (intervenors)

(33066; 2011 SCC 6; 2011 CSC 6)

Indexed As: R. v. Ahmad (F.) et al.

Supreme Court of Canada

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

February 10, 2011.

Summary:

Ten suspects were scheduled to be tried on terrorism-related offences before Dawson, J., of the Ontario Superior Court of Justice. The Crown notified the Attorney General of Canada, as required by s. 38.01 of the Canada Evidence Act (CEA), that the Superior Court proceedings might disclose sensitive information. Noël, J., of the Federal Court issued an order under s. 38.04(5) of the CEA 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. The accused brought an application in the Superior Court to challenge the constitutionality of s. 38 of the CEA. The Federal Court halted its proceedings pending the resolution of that challenge.

The Ontario Superior Court (Dawson, J.), in a decision reported at [2009] O.T.C. Uned. X61, held that the s. 38 scheme of the CEA was unconstitutional. Dawson, J., 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. He 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. The Crown appealed.

The Supreme Court of Canada allowed the appeal. The court held that ss. 38 to 38.16 of the CEA were constitutionally valid.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See first, second and fifth Evidence - Topic 4143 ].

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See first, second and fifth Evidence - Topic 4143 ].

Constitutional Law - Topic 7404

Provincial jurisdiction (s. 92) - Administration of justice (s. 92(14)) - Jurisdiction of superior courts - [See second Evidence - Topic 4143 ].

Constitutional Law - Topic 8605

Judicial power - Appointment of judges, s. 96 - Provincial criminal courts - Superior courts - [See second Evidence - Topic 4143 ].

Courts - Topic 2013

Jurisdiction - General principles - Criminal cases - Stay of proceedings - [See fifth and sixth Evidence - Topic 4143 ].

Courts - Topic 7402

Provincial courts - Ontario - General Division/Superior Court - Jurisdiction - General - [See second Evidence - Topic 4143 ].

Criminal Law - Topic 2921

Jurisdiction - Superior Court Judges - General - [See second Evidence - Topic 4143 ].

Criminal Law - Topic 4486

Procedure - Trial - Stay of proceedings - [See fifth and sixth Evidence - Topic 4143 ].

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - At issue on appeal was the constitutional validity of the s. 38 scheme of the Canada Evidence Act which granted jurisdiction to the Federal Court to determine questions of disclosure of sensitive or potentially injurious information relating to international relations, national defence or national security - The Supreme Court of Canada stated, inter alia, "We 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. In our view, for the reasons that follow, s. 38 itself ... provides enough flexibility to avoid the drastic result of a stay of proceedings in all but the most intractable of cases ... 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" - See paragraphs 2 to 3.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Ten suspects were scheduled to be tried on terrorism-related offences before Dawson, J., of the Ontario Superior Court of Justice - The Crown notified the Attorney General of Canada, as required by s. 38.01 of the Canada Evidence Act (CEA), that the Superior Court proceedings might disclose sensitive information - Noël, J., of the Federal Court issued an order under s. 38.04(5) of the CEA 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. - The accused brought an application in the Superior Court to challenge the constitutionality of s. 38 of the CEA - Dawson, J., held that the s. 38 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 - He further found that this interference constituted an unjustifiable infringement of s. 7 of the Charter - The Crown appealed - The Supreme Court of Canada allowed the appeal, holding that ss. 38 to 38.16 of the CEA were constitutionally valid - Superior courts historically (at the time of Confederation) did not have the jurisdiction to review Crown claims to refuse disclosure of potentially injurious or sensitive information of state - The analysis under Residential Tenancies Act of Ontario, Re (1981 SCC) therefore ended at the first question and there was no infringement of s. 96 of the Constitution Act under that test - Such authority was also not within the protected core of superior court jurisdiction - The challenged provisions also did not prevent a trial judge presiding over a criminal prosecution from protecting the fair trial rights of an accused - Through s. 38.14 of the CEA and the Charter, the criminal court trial judge possessed the means to safeguard the accused's fair trial rights - See paragraphs 55 to 68.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Supreme Court of Canada considered the s. 38 scheme of the Canada Evidence Act (CEA) which provided a procedure to govern the use and protection of sensitive or potentially injurious information relating to international relations, national defence or national security - The court stated, inter alia, that "In the context of criminal proceedings, it is our view that unless the designated [Federal Court] 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) [of the CEA] 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' ... 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. Similarly, 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" - See paragraphs 38 to 40.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Supreme Court of Canada considered the s. 38 scheme of the Canada Evidence Act (CEA) which provided a procedure to govern the use and protection of sensitive or potentially injurious information relating to international relations, national defence or national security - The court stated, inter alia, that "The broad discretion conferred by s. 38 [of the CEA] 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. The 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. As 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" - See paragraphs 41 to 43.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Supreme Court of Canada considered the s. 38 scheme of the Canada Evidence Act (CEA) which provided a procedure to govern the use and protection of sensitive or potentially injurious information relating to international relations, national defence or national security - With respect to the s. 38 process and the criminal trial judge, the court stated, inter alia, that "It 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. ... 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" - See paragraphs 51 to 52.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The s. 38 scheme of the Canada Evidence Act (CEA) provided a procedure to govern the use and protection of sensitive or potentially injurious information relating to international relations, national defence or national security - The Supreme Court of Canada stated that "the stay of proceedings remedy in s. 38.14 [of the CEA] 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] 2 S.C.R. 128; R. v. Keyowski, [1988] 1 S.C.R. 657; R. v. O'Connor, [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' ... 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" - See paragraph 35.

Statutes - Topic 501

Interpretation - General principles - Purpose of legislation - Duty to promote object of statute - [See fourth Evidence - Topic 4143 ].

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See third Evidence - Topic 4143 ].

Cases Noticed:

R. v. Malik (R.S.) et al., [2005] B.C.T.C. 350; 2005 BCSC 350, refd to. [para. 3].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 7].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 28].

R. v. Hamilton (R.L.), [2005] 2 S.C.R. 432; 336 N.R. 302; 371 A.R. 201; 354 W.A.C. 201; 2005 SCC 47, refd to. [para. 28].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 28].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 35].

R. v. Keyowski, [1988] 1 S.C.R. 657; 83 N.R. 296; 65 Sask.R. 122, refd to. [para. 35].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 35].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 35].

Labour Relations Board (Sask.) v. R., [1956] S.C.R. 82, refd to. [para. 39].

Canada (Attorney General) v. Khawaja, [2008] 1 F.C.R. 547; 312 F.T.R. 217; 2007 FC 490, revd. in part (2007), 370 N.R. 128; 2007 FCA 342, refd to. [para. 44].

R. v. Basi (U.S.) et al., [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305; 2009 SCC 52, refd to. [para. 49].

Babcock et al. v. Canada (Attorney General) et al., [2002] 3 S.C.R. 3; 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50; 2002 SCC 57, refd to. [para. 50].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81, refd to. [para. 53].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158, appld. [para. 58].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1, refd to. [para. 58].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 59].

Sobeys Stores Ltd. v. Yeomans and Labour Standards Tribunal (N.S.) et al., [1989] 1 S.C.R. 238; 92 N.R. 179; 90 N.S.R.(2d) 271; 230 A.P.R. 271, refd to. [para. 59].

Gugy v. Maguire (1863), 13 L.C.R. 33 (Q.B.), refd to. [para. 60].

Bradley v. McIntosh (1884), 5 O.R. 227 (C.P.), refd to. [para. 60].

R. v. Snider, [1954] S.C.R. 479, refd to. [para. 60].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 60].

Abou-Elmaati et al. v. Canada (Attorney General) et al. (2011) 276 O.A.C. 130; 2011 ONCA 95, refd to. [para. 60].

R. v. Ribic (N.N.), [2004] O.T.C. 510; 2004 CanLII 7091 (Sup. Ct.), refd to. [para. 74].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38, sect. 38.01, sect. 38.02, sect. 38.03, sect. 38.031, sect. 38.04, sect. 38.05, sect. 38.06, sect. 38.07, sect. 38.08, sect. 38.09, sect. 38.1, sect. 38.11, sect. 38.12, sect. 38.13, sect. 38.131, sect. 38.14, sect. 38.15, sect. 38.16 [Appendix].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 1]; sect. 11(b), sect. 11(d) [para. 2]; sect. 24(1) [para. 65].

Constitution Act, 1867, sect. 96 [para. 1]; sect. 101 [para. 57].

Authors and Works Noticed:

Air India Report - see Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182.

Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Air India Flight 182: A Canadian Tragedy, The Relationship Between Intelligence and Evidence and the Challenges of Terrorism Prosecutions (2010), vol. 3, pp. 152 [para. 30]; 154 [para. 74]; 158 [para. 73]; 160 [para. 71]; 162 [para. 73]; 165 [para. 71]; 167, 168, 169 [para. 48].

Canada, Department of Justice, The Anti-terrorism Act: Amendments to the Canada Evidence Act (CEA), www.justice.gc.ca/ antier/sheetfiche/ceap2-1pcp2-eng.asp, generally [para. 77].

Canada, Special Senate Committee Proceedings on Subject Matter of Bill C-36, 1st Sess., 37th Parliament (October 22, 2001), Issue No. 1, pp. 63, 64 [para. 68].

Dawson, Eleanor, The Federal Court and the Clash of the Titans: Balancing Human Rights and National Security, Address to the University of Manitoba Faculty of Law (March 30, 2006), generally [para. 70].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 28].

Linstead, Stephen G., The Law of Crown Privilege in Canada and Elsewhere -- Part 1 (1968-1969), 3 Ottawa L. Rev. 79, generally [para. 60].

Counsel:

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 Adelhaleem 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 intervenor, the Attorney General of Ontario;

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

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

Solicitors of Record:

Public Prosecution Service of Canada, Toronto, Ontario, for the appellant;

John Norris, Toronto, Ontario, for the respondent, Asad Ansari;

Rocco Galati Law Firm Professional Corporation, Toronto, Ontario, for the respondents, Shareef Adelhaleem and Amin Mohamed Durrani;

Marlys Edwardh Barristers Professional Corporation, Toronto, Ontario, for the respondent, Steven Vikash Chand;

Paul B. Slansky, Toronto, Ontario, for the respondent, Saad Gaya;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Kapoor Barristers, Toronto, Ontario, for the intervenor, the Canadian Civil Liberties Association.

This appeal was heard on March 18, 2010, before McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following judgment was delivered by the Supreme Court in both official languages on February 10, 2011.