With this decade’s increase in terrorism-related proceedings, determining how to deal with secret evidence is becoming an increasingly important issue. While the government may have legitimate national security concerns when it seeks to prevent disclosure of intelligence information, these concerns must be balanced against the right of the accused to a fair trial. Canada’s current law on this area is s. 38 of the Canada Evidence Act.1
Simply put, if the accused in a criminal proceeding seeks the disclosure of information which could be sensitive or potentially injurious to national security interests, an application must be made to the Federal Court. This creates a separate proceeding in which a Federal Court judge is given the responsibility of determining whether the evidence can be disclosed to the accused.
The Federal Court judge must determine whether disclosing the information would be injurious to international relations, national defence, or national security. If disclosure would be injurious, it will only be ordered if the public interest in disclosure (i.e. the effective administration of justice) outweighs the public interest in non-disclosure. Even if a Federal Court judge orders disclosure, the Attorney General of Canada can issue a certificate overruling the court and preventing disclosure. The ability to appeal this certificate is very limited.
S. 38 has been criticized for limiting the accused’s right to make a full answer and defence and thus creating unfair trials, but its constitutionality was unanimously upheld by the Supreme Court of Canada in R. v. Ahmad.2 The court stated that an unfair trial is not an acceptable result, even if brought about by an attempt to protect national security. However, applying s. 38 will not necessarily result in unfairness. In many cases non-disclosure will not impact trial fairness. For example, in the Air India prosecution, defence counsel was allowed to inspect CSIS documents after undertaking not to disclose the information to anyone, including the accused. Defence counsel concluded the information was not relevant to the case almost every time.3
Secondly, if non-disclosure would cause an unfair trial, the trial judge is left with the ability to order a number of remedies, including a complete stay of the proceedings. Thus the government is given the final say on whether to disclose sensitive information, balanced by the trial judge’s power to stay the proceedings if non-disclosure would be unfair to the accused.
However, even if these provisions are constitutional, they are nevertheless very ineffective. Requiring the Federal Court to make disclosure decisions unnecessarily splits up proceedings. This increases costs, negatively impacts the accused’s rights, and increases the likelihood the proceedings will be stayed.
As already contemplated by the current arrangement, the trial judge is the person in best position to determine whether non-disclosure would result in an unfair trial. However, under s. 38 there is no requirement to disclose the information at issue to the trial judge. In fact, typically the trial judge will not be given full disclosure. If the trial judge is left in the dark, this will hamper his or her ability to determine whether trial fairness has been impacted, leading to unnecessary stays in proceedings. The Supreme Court ruled there must be a stay “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.”4 The system puts the trial judge in the difficult position of attempting to determine whether non-disclosure will prejudice the accused without fully knowing the content of the information themselves. Furthermore, information which was initially irrelevant may become relevant as issues evolve at trial, hampering the accused’s ability to make a full answer and defence if the trial judge chooses not to grant a stay of proceedings.
The s. 38 process is extremely inefficient. Requiring the parties to go to different courts before or during the trial slows down proceedings. The Federal Court judge will lack the context to make an informed disclosure decision, and providing the judge with context will further increase costs and delays. During the Air India Inquiry, several members of CSIS and the RCMP testified to the ineffectiveness of the s. 38 system.5
Canada’s practice of not disclosing secret information to trial judges is unusual. In Australia, the United Kindgom, and the United States, trial judges are allowed access to secret information and given authority to decide disclosure issues.6 Disclosure to the trial judge should carry relatively minimal risk, given that he or she is already entrusted with a high public office. This risk could be further minimized by only allowing senior Superior Court Judges to preside over terrorism trials.
The federal government should make it a priority to reform Canada’s secret evidence laws. No one benefits from the current system.
3Ahmad, para. 30.
4Ahmad, para. 35.
5Air India Commission Final Report, Volume 3, page 158-59. http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/air_india/2010-07-23/www.majorcomm.ca/en/reports/finalreport/volume3/volume3.pdf
6Ibid., page 157.