The Federal Courts and National Security and Intelligence Law

AuthorCraig Forcese
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 11
The Federal Courts and National
Security and Intelligence Law
Craig Forcese*
     the principal courts preoccupied
with Canadian national security and intelligence law, even though they have
never tried a terrorism or espionage case. is status is a natural expres-
sion of the Federal Courts’ role under section  of the Constitution Act, 1867
as “additional Courts for the better Administration of the Laws of Can-
ada,” charged with centralizing adjudication of certain questions of federal
law. National security is precisely this sort of federal legal issue: the 
Act extends to Parliament jurisdiction over defence,1 immigration,2 and the
criminal law,3 and over “laws for the Peace, Order, and good Government of
Canada, in relation to all Matters not coming within the Classes of Sub-
jects by this Act assigned exclusively to the Legislatures of the Provinces.4
e latter power has been interpreted by the Supreme Court of Canada as
* The author would like to thank uOttawa JD-candidate Thomas Walker for his diligent
research assistance in preparing this chapter. My thanks also to the Federal Court
judges who commented on drafts of this chapter. Please note that I have drawn and
adopted portions of this chapter from Craig Forcese & Leah West, National Security
Law, 2d ed (Toronto: Irwin Law, 2020).
1 Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, s 91(7).
2 Ibid, s 95.
3 Ibid, s 91(27).
4 Ibid, s 91 (chapeau).
[  ]
        
permitting Parliament to legislate in areas, for example, of national concern
and in response to national emergencies.5
Many of the issues constituting national security law and addressed
through legislation enacted under these constitutional authorities are
novel they did not exist in . Criminal law aside, they were not, there-
fore, the automatic purview of the provincial superior courts in  — a fact
that accords Parliament substantial discretion in assigning the judicial role
under these laws to the Federal Court.6 Moreover, while there is now consider-
able national security and especially antiterrorism — criminal law, there
have been relatively few terrorism trials,7 and even fewer espionage proceedi ngs.
Consequently, the provincial superior courts have left a comparatively small
footprint on national security matters. And even when criminal trials in front
of provincial courts do occur, the Federal Courts nearly always have a piece of
the action, in the form of collateral proceedings under the Canada Evidence Act.
Over its history, therefore, the scope and quantity of Federal Court
adjudication of national security and intelligence matters has grown mark-
edly. Security cases — attracting only a passing reference in Ian Bushnell’s
– history of the federal courts8 now rank among the Federal
Courts’ best-known cases.9 Indeed, during our interviews with judges, sev-
eral judges pointed to national security judgments as among the courts’ most
important. Some also predicted that the courts’ national security work would
continue to expand — and become even more complicated and challenging.
is chapter has two objectives. First, it describes the Federal Courts’
chief responsibilities in Canadian national security and intelligence law. In
these areas, it identif‌ies some of the key cases decided by the Fe deral Courts.
Second, it discusses the unique procedural context in which the Fe deral
5 See, for example, Reference Re: Anti-Inf‌lation Act (Canada), [1976] 2 SCR 373 and R v
Crown Zellerbach Canada Ltd, [1988] 1 SCR 401.
6 For a discussion of the respective roles of the provincial superior courts and the Fed-
eral Courts, see Chapter 6.
7 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.
8 Ian Bushnell, The Federal Court of Canada: A History, 1875–1992 (Toronto: Osgoode
Society for Canadian Legal History, 1997) at 317.
9 Pivotal Federal Courts security cases that have terminated at the Supreme Court
in the last twenty years include Charkaoui v Canada (Citizenship and Immigration),
[2007] 1 SCR 350 [Charkaoui]; Canada (Prime Minister) v Khadr, [2010] 1 SCR 44
[Khadr SCC]; Canada (Citizenship and Immigration) v Harkat, [2014] 2 SCR 33 [Harkat].

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