Constitutional division of powers. The constitution gives criminal justice to the provinces, full stop. Even the most serious national security cases - terrorism, espionage, classified info leaks - are still, legally, ‘just’ crimes. There’s nothing
inherently peculiar about
prosecuting them, it’s just that they may end up involving classified material as evidence that will exceedingly rarely be in play for other crimes (but hypothetically could with the right weird fact set).
Federal court only deals with issues that federal law assigns to it. The largest part of their work is judicial review of tribunal decision, particularly for immigration or to a much lesser extent veterans. They’ll deal with some indigenous law related matters, intellectual property stuff… what they aren’t in any way set up or empowered to do is criminal trials. Their involvement in national security law is primarily in hearing and adjudicating national security privilege claims where DOJ and Defense argue over what information will be protected and how. They then feed the result to trial court.
In that specific respect, Federal Court also reviews applications for CSIS warrants, which is the closest thing we have to FISA. There’s a lot of difference though; FISC will hear warrant applications from both NSA and FBI. In Canada, a warrant application by CSIS goes to federal court but that’s an intelligence, not a criminal investigation power. If the RCMP were investigating a foreign intelligence matter, say a foreign spy, they would still go through normal provincial or superior court judges with any warrant applications. Judges are exempt from security clearance requirements, so even an affiant in a top secret police investigation looking for a warrant to covertly enter a suspected spy’s residence would be going down to provincial/superior court alongside all the other cops doing much more conventional street crime investigations.
Could a case be made to move certain national security matters prosecuted by the Public Prosecution Service of Canada to a court better equipped to handle classified information? That case could be made. Off the top of my head it would probably require:
- Legislation establishing a new Security Offences Court;
- Amendments to the Security Offences Act to move at least some of not all prosecutions under that act to a new court. This act already puts PPSC in charge of ‘Security Offences’ and gives RCMP primacy of investigation, it would be a logical part of shifting judicial responsibility;
- Major amendment of section 38 of the Canada Evidence Act governing national security and international relations privilege over evidence. This is what built the current system of “DOJ applies to redact, defence argues for access, Federal Court decides what to redact and what to summarize, provincial trial court deals with the black boxes they get and figures out how to run a fair trial.” The Ribic case law determined how that works in practice. The eventual Ortis appeal may further define parts of it. Amendment would be needed to create the ability for the Security Offences Court trial judge to see ‘under the black’ and to assess the merits of defence arguments pertaining to the relevance and exculpatory nature of the contents.
But I don’t know how we finally square this with the jury system. We could have a perfect court setup whereby CSE intercepts and CSIS human sources and wiretaps provide the world’s best evidence of a profound threat to our national security. But your jury could still be the first twelve people you encounter at Loblaws, and that has inherent risks for the information for which protection was sought. I don’t think the Americans have cracked this nut either.
Tribunals/boards are very different from courts. They’re narrow, specialized, limited, and their decisions don’t bind other cases. They exist to more expeditiously resolve matters that require more specialized technical subject matter knowledge, and which are often a high volume of relatively similar and repetitious cases, like say the immigration and refugee board (though interestingly there’s much more security intelligence evidence case law from reviews of the immigration tribunal than there is from criminal court). All are subject to judicial review in actual courts.
Some, but pretty limited, and I think it’s wholly to empower Parliament in their ability to ascertain fact so they can legislate in the national interest. I’m not aware of any punitive powers outside of contempt. Doesn’t mean they don’t exist, but I don’t know of them. But parliamentary powers aren’t my jam.
EDIT TO ADD: Not sure how a security Offences court would get around the co situational apportionment of criminal justice powers still. I don’t see an obvious workaround to 91(27) of the
Constitution Act.
An alternative could be to establish a procedure whereby certain provincial Superior Court judges could be security cleared, and afforded the power as a trial court judge to view the underlying material that’s the subject of national security privilege to assess the plausibility of defence claims. This his would also be a major upending of the current system. It would certainly face Charter challenge because it would result in the trier of fact having access to and making decisions based on information not available to the defence.
Yeah, I don’t know.
