Uncertainty in the Canada Evidence Act

Cross-referencing: National Security Law (NSL), Ch. 10, p. 405 et seq.; p.417 (note 174 and accompanying text).

The Federal Court of Appeal has now issued the second of two decisions stemming from the Canada Evidence Act proceedings at issue in the Khawaja anti-terrorism prosecution.  In the first decision, Canada v. Khawaja, 2007 FCA 342, the Court of Appeal upheld the approach applied by the Federal Court (and described at NSL pages 406-07) in balancing the national security interest in secrecy against the public interest in disclosure (although it quibbled with how this test had been applied to at least some of the actual secret material in question).

In the second decision, Khawaja v. Canada, 2007 FCA 388, the Federal Court of Appeal reviewed Justice Lutfy's conclusions in the court below on the constitutionality of the in camera, ex parte regime created by the Canada Evidence Act in section 38.11.  (See discussion at PIL, Ch. 10, p.410 et seq.) The Federal Court of Appeal concluded that section 7 was not infringed by these procedures, as "the features of subsection 38.11(2) do not fall below the level of fairness required in section 7 of the Charter".  Ibid at para. 31.  (All the concurring opinions came to the same conclusion, along the way raising some surprising doubts about whether section 7 was triggered at all).  The court said little more on this issue. 

In comparison, Justice Lutfy, in the court below, identified as one of the safeguards that rendered s.38.11 compliant with section 7 the authority of the judge to appoint an amicus curiae.  This person could "be provided access to the secret information to read, hear, challenge and respond to the ex parte representations made on behalf of the government" -- in other words, they would act as a sort of proxy for the excluded party.   Khawaja v. Canada, 2007 FC 463 at para. 50.  From this, it follows that use of a "special advocate" (or to make less sweeping my rendition of this case in the book, at least the possibility of such a use) is constitutionally required to meet the section 7 requirement.  (PIL Ch. 10, p.417).

Given the Federal Court of Appeal's silence on this issue -- and its simple endorsement of section 38.11 as it stands -- this extrapolation is no longer sustainable.  It remains to be seen what will happen if (most likely, when) this matter is appealed to the Supreme Court.