The Twilight of a Federal Court Section 38 Function?

National Security Law, ch. 10, pp. 405 et seq.


As discussed in National Security Law, Canada employs an institutionally complex system of limiting disclosure of national security-related information in court (and other) proceedings.  The core provision, found as s.38 of the Canada Evidence Act, places adjudication of whether this information can be withheld by the government in the hands of designated Federal Court judges, even if the disclosure question arises in criminal trials in the provincial superior courts.  The result is a bifurcated system where one court decides what can be held secret and the other adjudges the merits of the case (including whether the trial is fair).  This approach -- apparently unique among common law jurisdictions -- has attracted criticism over the years for the delay and complexity it may produce.  Justice Major's Air India report is a case in point.


The Supreme Court Speaks


In R. v. Ahmad, a case initially shrouded in mystery when argued (the underlying case was subject to a publication ban), the constitutionality of s.38 was considered by the Supreme Court.  While acknowledging past concerns about the s.38 process, the Court held that it was nevertheless constitutional.  But it did so in a manner that amplifies some of the protections already found in s.38 that guard an accused's fair trial rights. And along the way, it probably makes the Federal Court an awkward loose end.


The Core Holdings


Under s.38, the trial judge is currently empowered to quash a prosecution where he or she concludes that non-disclosure of the sensitive information may result in an unfair trial.  At issue, however, has been the extent to which a trial judge never provided with that sensitive information might properly assess this question.


The Supreme Court held (as a matter of "statutory interpretation") that "Parliament did not intend for trial judges to exercise their authority under s. 38.14 [to, e.g., stay a trial] other than judicially.  To this end, the Attorney General, as the chief law officer of the Crown, and the Crown prosecutor, pursuant to his or her duties of fairness, should take all steps available to them within the limits imposed by the legislation to provide trial judges with the information required to discharge both the duty to safeguard the fair trial rights of the accused as well as the obligation to Canadian society not to grant unwarranted stays of proceedings" (at para. 37). 


This requirement obliges the provision of the sensitive information to the trial judge, either in summary or full.  The Federal Court judge serves as the intermediary in transmitting this information, and deciding what information to toss to the trial court.  On this point, however, the Supreme Court observed "[d]isclosure of the information to the trial judge alone, as is the norm in other jurisdictions, and for the sole purpose of determining the impact of non-disclosure on the fairness of the trial, will often be the most appropriate option.  This is particularly true in light of the minimal risk of providing such access to a trial judge, who is entrusted with the powers and responsibilities of high public office" (at para. 45)  Subsequently, the trial judge "might conclude that it is not possible to assess the relevance of the withheld material without submissions from a counsel opposed in interest to the prosecution.  In such a situation, the appointment of a security-cleared special advocate could prove to be beneficial if he or she is adequately informed of the matters in issue by authorization of the Attorney General of Canada under s. 38.03" (at para. 47).


In the final analysis "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" (at para. 52).


Put simply, if the government, in the course of the s.38 process, fails to cough up enough information to the trial judge to persuade the latter that a fair trial may continue despite the secrecy, the prosecution will come to an end.


A Bifurcated System: What's the Point?


The Court acknowledged complaints about the bifurcated system, as well as summarizing the government's arguments in favour of it.  The latter boil down to the comparative expertise of Federal Court judges in dealing with national security matters.  This, it suffices to say, is a product of history, not an inevitable and immutable truth: if trial judges were given an opportunity to play the s.38 role, then they too would acquire expertise.


It must also be the case that the government is following "need to know" secrecy doctrine, in restricting secrets to the smallest group of people possible.  The bifurcated system concentrates state national security secrets in the hands of a small number of judges, cloistered in secure facilities in Ottawa.  The latter situation could not be preserved if provincial superior court judges were able to adjudicate the s. 38 issue. 


But of course, in the result, the concentration of secret information in a handful of Federal Court judicial chambers is now at an end anyway: the Supreme Court decision clearly means that this information will trickle out to trial judges,  probably in a fairly significant quantity given the Court's signaling about where any doubt on the fair trial question should lead trial courts.  And moreover, while in the hands of those trial courts, special advocates may be invited to argue the implications of withholding that information for fair trial rights.


In these circumstances, it is difficult to see there is much -- if any -- virtue left to the bifurcated system.  It no longer concentrates information with an exclusive cadre of Ottawa-based judges.  Instead, it now provides information to judge A (at the Federal Court) who then flips it over (in possibly significant quantity) to judge B (at the trial level).  Judge A may have special advocates involved in adjudicating the core s.38 issue of disclosure (something that has arisen on an increasingly frequent basis).  Judge B may have (possibly different) special advocates weighing in on the fair trial issue.  Put simply, lots of people are looking at the national security information.


And as these people pore over this information, trials are delayed and inefficiencies are compounded, raising the prospect that on a case-by-case basis, the trial becomes unconstitutional. As the Supreme Court warned, "[w]e recognize that the legislative division of responsibilities does have the potential to cause delays and to pose serious challenges to the fair and expeditious trial of an accused, especially when the trial is by jury.  While we do not find that this potential invalidates the legislative scheme, situations may well arise in which the division of responsibilities between courts will give rise to unreasonable trial delays, undue disruption to jurors and risk of juror contamination.  These will have to be addressed on a case-by-case basis and the appropriate remedies issued to avoid an unfair trial" (at para. 76).


All of this means that it is difficult to see why a government truly preoccupied with (a) confining secrets to the smallest group of people and (b) expediting terrorism and related prosecutions so they aren't unconstitutional would possibly insist on persisting with the bifurcated model. 


The obvious solution is now to cut the Federal Court out of the picture and work with the provincial superior courts to create a cadre of designated judge-equivalents who will specialize in national security-related trials and be both the trial judge and the ultimate arbiter of s.38 decisions. 


In sum, the Supreme Court's decision saved s.38 by destroying probably the only cogent justification for a Federal Court role (a monopoly on seeing secret information). As a result, the latter court is now the only truly dispensable element to a government concerned with keeping secrets closely held.  Inertia may preserve the status quo for a while, but if we ever had a government commited to rationalizing its national security structure, the Federal Court's s.38 role would probably fall to the cutting room floor.