Thanks, I was going to post this if you hadn't. It was an interesting article and pretty on the money form the limited bit I've seen. Notably these same considerations have also been in play in the
Awso Peshdary and the
Weng Manzhou cases.
The crux of this is S.38 of the Canada Evidence Act. In the normal course of things, anything the crown (meaning the police as well) are in possession of in a criminal prosecution that can possibly be relevant to the defense is presumed to be subject to disclosure, subject to certain exemptions (informant privilege, personal witness information, etc). In cases touching on national security, however - terrorism or organized crime prosecutions relying on allied intelligence; espionage prosecutions under SOIA where the evidence *is* classified material, etc - the Attorney General (through crown prosecutors/department of justice) can assert protections on certain information. This is on the grounds of national security, and/or protecting international relations.
In such a prosecution, police and crown engage in a vetting process that then goes to the National Security Group at the Department of Justice. NSG is responsible for litigating the S.38 redactions. Crown and defense in the meantime will still receive disclosures, but probably with a whole lot of black boxes drawn on it.
The S.38 hearings happen in federal court completely separate from the criminal trial (or whatever other proceedings are going on). There's a three part test, developed in the series of
Ribic cases. (that was an early 2000s prosecution of a Canadian who fought overseas for the Serbs and took a CAF military observer hostage as a 'human shield' against allied bombing.)
- First, the defense needs to argue that the redacted information could be relevant. They have to do this without seeing it. The bar is quite low for the judge to find relevance. If the judge does not find relevance, the evidence is exlcuded and the test ends.
- If deemed potentially relevant, then crown has to argue the real or forseen harm to national security or international relations. If they failt o convince the judge, the evidence is admitted with redactions lifted.
- If the defense satisfies the judge as to relevance,a nd crown satisfies as to harm, the judge then needs to look at the material in its totality and determined if the national interest and the interest of transparent justice and a fair trial dictate in favour of disclosure or of maintaining the redactions. Considerable deference is given the national security, as the claim is asserted on behalf of the AG who is presumed to have a much more fulsome view than the court on what the national security implications are.
To assist the court, an
Amicus Curiae is appointed. This is a security cleared lawyer who works for neither crown nor defense, but will talk to both. The amicus and the judge get to 'look under the black' at the actual documents in question in making their determinations. The amicus is there to help ensure that the interests of both sides are adequately captured and understood by the court, and to help the judge in making her or his decision.
In a mot extreme case -
which happened in the Quentin Huang case the AG has an executive power to file a certificate overruling the federal court's order to disclose certain evidence; the AG gets the final say, with the 'check and balance' in this presumed to be the AG's elected status as a member of Parliament, answerable to the voters. It's a rare instance where the executive has a final and absolute trump card against the courts. I believe the Huang case is the only in in which this has been used so far.
Once this process, the S.38 hearing, is done for all of the evidence in question, the judge has a broad array of options they can make for partial or full (or no) disclosure; they can order conditions and circumstances in which the evidence can be accessed and viewed; they can allow the defense counsel but not the client to have access... All kinds of stuff. Only once this is done can the trial proceed with the reviewed evidence. The trial judge in provincial court never gets to 'look under the black'. The trial judge has to trust their federal court counterpart regarding the validity of the S.38 claims. The trial judge can still decide if they will order a stay of proceedings in order to protect the right to a fair trial in the face of inaccessible evidence.
It's a cumbersome and drawn out process, and not often is it int he context of criminal prosecutions. To my knowledge there has been little interface yet between the S.38 process and the
Jordan decision regarding presumptively unreasonable delays in criminal prosecutions. The Ortis case is probably shaping up to be a considerable test of that, and I don't envy the crown the task they face there.
Other countries do this arguably 'better', and Leah West, quoted in the CBC article (and formerly of the RCD), has written extensively on 'intelligence to evidence', and how allied nations deal with it. The Brits in particular are much more adept through their court process of using security intelligence in criminal prosecutions. It will be interesting to see if we embark on legislative reform in the wake of some of the cases currently going through. The very viability of some of our laws such as the Security of Information Act could be threatened if we can't successfully navigate the conflicting demands of S.38,
Jordan and the reasonable needs of the domestic and allied intelligence community.
