TORONTO — Allowing a criminal to walk free is a “lesser evil” than disclosing top-secret national security information, the Supreme Court of Canada held Thursday in a ruling stemming from the Toronto 18 terrorism case.
The court was asked to rule on the constitutionality of parts of the Canada Evidence Act, which give the Federal Court — and not the trial judge — authority to decide what material can be kept secret if national security is at stake.
In upholding the law, the court said Thursday the provisions sometimes force the choice between protecting national security and prosecuting crimes.
Withholding information could harm a person’s right to a fair trial by preventing a full defence or causing delays, the court said, but the law allows that sometimes the appropriate remedy is halting the prosecution all together.
“If the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that . . .a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information,” the court said in its ruling.
“The net effect is that state secrecy will be protected where the Attorney General of Canada considers it vital to do so, but the result is that the accused will, if denied the means to make a full answer and defence, and if lesser measures will not suffice in the opinion of the presiding judge to ensure a fair trial, walk free.”
The act also gives the Attorney General power to override a decision of the Federal Court and withhold or disclose sensitive materials.
The issue of state secrets playing out in court arose in the terrorism case known as the Toronto 18, which ultimately saw 11 people convicted on terrorism charges relating to plots to detonate truck bombs and attack Parliament.
Prosecutors in the case — as is common in terrorism cases — argued that disclosing certain information to the defence could hurt national security.
Ontario Superior Court Justice Fletcher Dawson struck down provisions of the Canada Evidence Act, saying that giving the Federal Court power to determine what could be disclosed instead of leaving that up to trial judges such as himself interfered with the court’s jurisdiction to apply the constitution.
The ruling is not expected to effect the Toronto 18 convictions.
The Supreme Court acknowledged the legislation deprives judges of the ability to order the disclosure or even their own inspection of material that is withheld on national security grounds. But it said there are other ways the judge can protect an accused’s right to a fair trial.
Ordering a stay of the entire proceeding would be a “drastic result,” but one that can be avoided in “all but the most intractable of cases” because the Canada Evidence Act provides enough flexibility, the court said.
Questions about the law’s fairness or constitutionality have arisen before and it has come under heavy criticism from judges, lawyers and academics, most notably in the recently released Air India Report, the court wrote.
Criticism centred on the delays that result from spreading a trial across two courts. The Air India inquiry commissioner recommended the two-court system be abolished and that decisions on the confidentiality of national security issues be left to Superior Court judges, the Supreme Court said.
“It will ultimately be for Parliament to determine. . .whether the wisdom of the bifurcated scheme should be reconsidered,” the court said.
“We conclude, however, that (section) 38 as we have interpreted it passes constitutional muster.”