The Anti-terrorism Act

AMENDMENTS TO CANADA EVIDENCE ACT (CEA)

I. Protection of right to a fair trial

Section 38.14 of the CEA provides expressly that the person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, other than an order calling for the disclosure of the information. Such orders could be made following the issuance of a certificate by the Attorney General of Canada, or following a non-disclosure order, prohibiting the disclosure of information in the criminal proceeding. The judge may, among other things, stay the proceedings, dismiss counts of the indictment or draw any inference against any party on any issue relating to the information that cannot be disclosed.

J. Fiat

If sensitive or potentially injurious information may be disclosed in the context of a prosecution not instituted by the federal government, the Attorney General of Canada may issue a fiat establishing his or her exclusive authority over that prosecution.

A number of section 38 of the CEA cases have come before the Federal Court of Canada and the provisions of the section have been generally well received. In a matter before the Federal Court of Appeal, the Court provided a very useful ruling with respect to the application of the section 38 scheme. Among other things the Court has unanimously found that, "the Attorney General assumes a protective role vis-à-vis the security and safety of the public" and that if "his (the Attorney General's) assessment of the injury (resulting from the disclosure of sensitive or potentially injurious information) is reasonable, the judge should accept it".

On March 15, 2007, counsel for Mohammed Momim Khawaja launched a constitutional challenge to subsection 38.11(2) of the CEA.  In a decision released April 30, 2007, the Chief Justice of the Federal Court of Canada upheld the constitutional validity of the subsection, noting as follows:

“In summary, section 38, including subsection 38.11(2), achieves a nuanced approach that respects the interests of the state to maintain the secrecy of sensitive information while affording mechanisms which respect the rights of the accused, including the right to full answer and defence, the right to disclosure and the right to a fair trial in the underlying criminal proceeding.  I find that subsection 38.11(2) accords with section 7 and 11(d) of the Charter. No section 1 analysis is therefore required”²

^[2] (2007), 280 D.L.R. (4th) 32 (FC), para. 59, upheld on appeal: 2007 FCA 388, application for leave to appeal to the Supreme Court refused April 3, 2008.

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Updated to April 1, 2008.