Canada’s Response to Terrorism: The Investigative Hearing

This article was co-authored by Margaret Bojanowska and Steven Skurka and originally appeared in the National Association of Criminal Defense Lawyers March 2004 edition of The Champion magazine.

National Association of Criminal Defense Lawyers March 2004 edition of The Champion magazine

Canada’s Response to Terrorism: The Investigative Hearing

By Steven Skurka, Margaret Bojanowska

The Canadian government’s response to a post September 11th world was rapid and vested investigating authorities with wide-ranging powers to combat the terrorist threat. Bill C-36, more commonly known as the Anti-Terrorism Act, had its first reading in Parliament on the 15th of October 2001, a month following the attacks.It contained extraordinary measures that tested the boundaries of the civil liberties of Canadians as guaranteed by the Canadian Charter of Rights and Freedoms [hereinafter The Charter ]. The Bill also tested the boundaries of what limits on those rights are “reasonable” in a free and democratic Canadian society.2

The Bill came into force on January 17, 2002, and amended the Criminal Code by adding Part II.1.The most controversial of these amendments was section 83.28 of the Code which introduced the investigative hearing. The investigative hearing was entirely new in Canadian law at the time of its introduction. The most dramatic feature of the investigative hearing was that it permitted the state to compel testimony from a witness during the fact-finding stage of an investigation into a terrorist offence,prior to the state laying a charge. More than two years after the introduction of the investigative hearing, our country has witnessed the first constitutional challenge to the provision brought before the Supreme Court of Canada. The challenge, which involved a number of interveners, was argued over two days before the Supreme Court of Canada, on December 10th and 11th 2003. The Court reserved its judgment, which will likely be announced this year.

Investigative Hearings

The new section 83.28 authorizes a peace officer, who has obtained the Attorney General’s prior consent, to apply ex parte to a judge for an order that a certain individual or individuals attend at a hearing at which they are obliged to answer questions, even if those answers are self-incriminatory. The individuals named as witnesses in the order need not be accused persons or suspects in the offence. The scope of the order is limited in that the peace officer can only make such application for the purposes of an investigation into a terrorism offence.

The judge, to whom such an application is made, must be satisfied that there are reasonable grounds to believe a terrorism offence has been committed or is about to be committed. Additionally, the nature and specificity of the expected information required to base an order depends on whether the terrorism offence has already occurred or is expected to occur. In the case of a future offence, the witness must have “direct and material” information to share or that they may reveal the whereabouts of an individual who the officer suspects may commit a terrorism offence, and there must have been prior “reasonable” attempts to obtain the information.

In the case of an offence which has already taken place, it must be likely that the witness has information concerning the offence, or may reveal the whereabouts of a person suspected by the officer of having committed the offence. A key point to note is that the triggering event for a section 83.28 hearing is entirely discretionary and ultimately the decision whether to seek such a hearing will be left with the peace officer in charge of an investigation.

A witness named in a section 83.28 order must attend before a judge to be examined under oath or if not under oath, by an agent of the Attorney General. The witness is required to answer all questions, unless another law or privilege precludes the witness’ testimony from being disclosed. The witness must also bring to the examination “any thing in their possession or control that could assist in the information-gathering process” and which he or she has been ordered by the judge to provide.

Investigative hearings in effect remove the right to remain silent in Canada. This right has been an important feature of our common law and has been entrenched in the Charter under the section 7 right to life, liberty, and security of the person.

Right to Counsel

Section 83.28 (11) grants the witness the right to retain and instruct counsel at any stage of the proceedings. Counsel may be present along with the witness during the investigative hearing to ensure that the witness’ rights are respected and that inappropriate procedures are not used during the course of the hearing. The proposed section parallels to some extent that of section 10(b) of the Charter, which grants everyone the right to retain and instruct counsel without delay and to be informed of that right upon arrest or detention.The right to counsel component of the investigative hearing attempts to address the government’s repeated references to ensuring that the Bill satisfies Charter requirements.There are many meaningful differences, however, between the Charter right and the right provided by section 83.28. For example, the section does not include the phrase “without delay,” a curious omission when contrasted with section 10(b) of the Charter, which includes this important criterion. Excluding the phrase “without delay” essentially allows the state to decide unilaterally when to inform the witness about the right to counsel as opposed to being required to do so immediately after serving the witness with the order. The utility of the right to counsel diminishes as the delay in contacting counsel and obtaining advice is lengthened.

A further difference between the Charter right and the right provided by section 83.28(11) is that it places no positive duty on the state to inform the witness about his right to counsel. Again this contrasts with section 10(b) of the Charter under which police must inform a person who has been arrested about the right to counsel as well as the availability of state-funded counsel. It cannot be denied that the right to counsel is of little use if the witness does not know that it exists.

It is also significant to note that the investigative hearing provisions provide no remedy in the event of a breach of the right to counsel. The remedy for a breach of section 10(b) of the Charter, can potentially lead to exclusion of any evidence obtained as a result of the breach of the right to silence. There is no similar remedy available under section 83.28. What remains is a hollow right without a corresponding remedy. There is some question as to whether counsel could play a meaningful role at an investigative hearing in any event.

One leading academic has questioned the utility of lawyers in investigative hearings entirely and commented that in practice a lawyer would be able to do little more than confirm to a client that he must answer the questions put to him during the hearing.7

Immunity From Prosecution

The witness cannot be excused from answering any of the questions posed to him because the answer may incriminate the witness or subject the witness to a proceeding or penalty. To obviate the risk of prejudice, the witness’ answers are subject to express use and derivative use immunity provisions.The Crown cannot use anything the witness says at the hearing, nor anything discovered as a result of what the witness says, against that witness in subsequent criminal proceedings, except in perjury situations or giving contradictory evidence. The witness receives immunity only from “criminal prosecution.” Civil proceedings can make limitless use of the testimony given at an investigative hearing.
Deportation hearings or tort actions filed by victims of terrorism could likely make use of the evidence. It is also possible that contentious issues regarding the derivative nature of the evidence will come into play. Once the testimony has been presented, the state may take the position that it was in possession of the information prior to the witness testifying. There is clear risk that negative consequences may still befall the witness, despite the guarantee of immunity.

The Nature of the Order

Section 83.28(5)(e) permits the judge issuing the order for the hearing to include any other terms or conditions for the conduct of the investigative hearing that the judge considers desirable. These other terms and conditions may include but are not restricted to terms and conditions for the protection of the interests of the person named in the order and of third parties, or for the protection of any ongoing investigation. This section is a considerable concern as it grants judges a wide discretion in the manner in which they formulate the order and what format investigative hearings will take. Officers investigating terrorism offences prefer the nature of the investigation not to be disclosed to the public, to protect the nature of the investigation and the people involved. A clause in the investigative hearing provisions appears to grant judges the discretion to order investigative hearings to be held in secret. Section 83.28 (5)(e) states that a judge may include any other terms or conditions in the order “…for the protection of any ongoing investigation.” Secrecy leads to a lack of accountability and places a witness’s rights at risk of being violated, without further scrutiny.

Refusal to Comply With the Order

If a witness attempts to flee the jurisdiction, thus failing to abide by the order, a judge can issue a warrant for the arrest of the witness. An officer who arrests a witness under this provision must bring the witness to the issuing judge “without delay.” The judge can order the witness to be detained or released on recognizance until the witness complies with the order. However, beyond these arrest provisions, section 83.28 does not specify a sanction for witnesses who simply refuse to testify. If a witness fails to comply with the order by refusing to answer questions asked by the agent of the Attorney General, the witness can presumably be prosecuted under a number of different offences. The witness could potentially be charged with disobeying a court order, obstructing justice, or contempt of court under the common law. The result is that witnesses called to testify are not expressly apprised of the extent of jeopardy they face should they refuse to answer questions posed to them.

The Constitutional Challenge to the Investigative Hearing

An order under section 83.28 was issued in relation to the alleged Air India massacre. This terrorist offence took the lives of 329 passengers and crew of Air India flight 182 off the coast of Ireland. It is the worst mass murder allegation in Canadian history. An application was made, and an order issued which permitted application of the anti-terrorism laws retroactively, to the 1985 mass murder. The order issued in May 2003 and required an unnamed witness to attend for examination in an investigative hearing, on the basis of reasonable grounds for believing that a terrorism offence has been committed, and that information concerning the offence is likely to be obtained as a result of the examination. The identity of the witness is concealed by a comprehensive publication ban and a court order of J. LeBel dated July 25, 2003, sealing the file.The witness is neither an accused nor a suspect in relation to the Air India bombing. The mystery witness was summoned to appear to answer questions at the investigative hearing. The hearing was adjourned because the witness though counsel requested that the court to rule on the constitutionality of the provisions.

The challenge to section 83.28 of the Criminal Code was brought before Madam Justice H. Holmes of the British Columbia Superior Court. The challenge was argued in camera, and concerned the interpretation, application, and constitutionality of section 83.28. The most significant constitutional questions raised were as follows:

1. Do section 83.28 and the order violate the right to silence, including the principle against self-incrimination, of the person required to attend for the examination?

2. Do section 83.28 and the order breach the accused persons’ fair trial rights by providing for pre-trial or mid-trial preparation or discovery for the Crown that is not available to the defence?10

The synopsis of reasons for judgment was released on July 23, 2003. The court held that the order was valid and constitutionally sound. The court found that the section 83.28 order does not violate the right to silence, including the principle against self-incrimination. A challenge to this decision was brought to the Supreme Court of Canada. During the course of argument several justices on the Supreme Court were referred to the “extraordinary” nature of the anti-terror law, as they came to grips with the sensitive balancing required in deciding this challenge; on the one hand the need for national security in the face of a terrorist threat, and on the other hand protection of the tenets of fundamental justice.
Marie Henein representing one of the interveners, the Federation of Law Societies of Canada, before the Supreme Court submitted that: “These are not extraordinary times. It isn’t that terrorism is extraordinary. It’s our legislative response that is.”11

With respect to the secrecy of the proceedings, counsel for the mystery witness argued that investigative hearings held in secrecy are likely to become broad fishing expeditions that might violate the right to silence and the right to privacy.12

Michael Code, counsel for Ajaib Singh Bagri, one of the accused in the Air India murder trial, submitted to the Court a position in favour of investigative hearings being conducted behind closed doors, arguing that secret hearings protect the ongoing investigation, as critical suspects in the bombings have not yet been identified.

Defenders of the investigative hearing provisions have argued that terrorism is a matter of national emergency, and that firm action must be taken to protect Canadian citizens from the threat. Grant Obst, the president of the Canadian Police Association (CPA), described terrorism as an “evolving public security and safety concern,” one that might one day be more strictly and effectively controlled but not ‘extinguished.’”13

A challenge brought by the Vancouver Sun, et al., was also heard before the Supreme Court regarding the secrecy of the hearings. It was brought via the unusual resort to section 40 of the Supreme Court Act. Section 40 (1) allows an appeal to be heard by the Supreme Court of Canada where the Court is of the opinion that any question, by reason of its public importance, is of such a nature and significance as to warrant a decision by the Court.14 The proceedings under s. 83.28 requiring the witness to attend and answer questions were held in camera.

Brian Gover, a former senior prosecutor in Ontario has commented that: “Secret proceedings are extremely unusual. It is a tenet of our system of justice that Court proceedings should be open to public scrutiny except in the most exceptional circumstances.”15 This echoes comments from the Supreme Court of Canada’s earlier decisions which repeatedly emphasized the fundamental importance of public hearings to the democratic process in Canada, which should only be restricted “to protect social values of super-ordinate importance.”16

In reserving its judgment, the Supreme Court ruled that the order for an investigative hearing under section 83.28 of the Code be stayed until the release of their decision. The media’s appeal concerning the secrecy of the hearings was heard by the Supreme Court along with the constitutional challenge to the investigative hearing provisions. It is anticipated that both decisions will be released together.

The entire Anti-Terrorism Act is subject to parliamentary review three years following its proclamation. The investigative provisions, however, are subject to a sunset clause, meaning that they will cease to operate at the end of 2006 unless both the House of Commons and the Senate pass a resolution to extend them.17 While a sunset clause may limit the duration of the provisions, it does not improve their constitutionality. Conceptually, a law which contravenes the Charter is of no force and effect immediately, rather than when the government chooses to make it so.

Ultimately, it is the Supreme Court of Canada that will have the last word when it releases its judgment regarding the constitutionality of one of the key features of the Anti-Terrorism Act in Canada.

Notes

1. Jeremy Millard, “Investigative Hearings under the Anti-Terrorism Act” 60(1) U.T. Fac.L. Rev 79-87 (2002).
2. Canadian Charter of Rights and Freedoms, R.S.Q. c. C-12, s. 1.
3. Criminal Code, R.S.C. 1985, c. C-46[hereinafter Code]
4. Section 2 of the Code defines a terrorism offence, among other things as “an indictable offence under this or any other Act of Parliament committed for the benefit of, at the direction of or in association with a terrorist group…”
5. Supra, see note 2.
6. Anne McLellan, Testimony before the Special Senate Committee on the Subject Matter of Bill C036, (29 October 2001)
7. Supra, note 1, at 2-3.
8. Supra, note 3, s. 83.28(8)(10)
9. Supreme Court of Canada, Press Release dated August 14, 2003.
10. In the Matter of an Application Under s. 83.28, (2003) B.C.S.C. 1172 at p. 2-3.
11. Tonda MacCharles, “Quash terror, top court urged,” The Toronto Star, Dec. 11, 2003.
12. Ibid.
13. Sarah Armstrong, “Does Bill C-36 Need a Sunset Clause?” 60(1) U.T. Fac.L. Rev. 73-78 (2002)
14. Supreme Court Act, section 40.1
15. Kirk Makin, “ Secret court proceedings surprise seasoned lawyers,” The Globe and Mail.
16. Kent Roach, “Let the Light Shine In,” The Globe and Mail, Sept. 29, 2003.
17. Supra, note 13. l.

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