Ontario judge declares secrecy law unconstitutional


Globe and Mail Update

January 16, 2009 at 7:31 PM EST

TORONTO — A secrecy law frequently invoked by the federal government in terrorism cases has been declared unconstitutional by an Ontario Superior Court judge, amid fears a sprawling Toronto conspiracy case risks “bogging down and becoming unmanageable.”

The landmark decision strikes down a portion of the Canada Evidence Act, a controversial law passed by Parliament after the 9/11 terrorist attacks. The law effectively directed debates involving government secrecy claims away from open trials and toward specialized hearings in other courts.

The 94-page ruling made Thursday affects the case of 10 Toronto men accused of a 2006 conspiracy to train as terrorists and explode truck bombs. The highly anticipated case is only incrementally moving toward trial.

Finding that justice delayed is justice denied, Mr. Justice Fletcher Dawson, of the Ontario Superior Court, ruled that trial judges like him need to be ones who ponder questions related to government secrecy, to preserve the fair-trial rights of the accused.

Otherwise, “there is a danger this case will collapse under its own weight,” said Judge Dawson, who is now weighing preliminary arguments in the case. “The risk of it bogging down and becoming unmanageable is an ongoing concern.”

The effect of the ruling will be to bring the terrorism case closer to trial – though it's still unlikely to happen in 2009. The broader implications are that police and intelligence agencies will have a much tougher time keeping sensitive information away from open trials.

Since 9/11, Section 38 of the Canada Evidence Act has been invoked in just about every Canadian national-security case of note, with the federal government arguing that it needs to shield intelligence related to the Khadr family, the Maher Arar affair, and the Mohammed Momin Khawaja terrorist trial.

These concerns stem from the possible disclosure of sources and methods used by Canadian agents and also from the intelligence received from foreign partners, such as the U.S. Central Intelligence Agency, or Britain's MI6.

The invariable effect of the law has been to take secrecy arguments away from main-stage proceedings to a secretive side stage at the Federal Court of Canada, whose judges have specialized national security training and, until now, exclusive jurisdiction of all Canada Evidence Act matters. Judges pondering the overall cases have been forced to await the outcome of protracted Federal Court legal debates to determine what information would be in play.

Observers of the Toronto terrorism-conspiracy case have long dreaded the implications of this, especially given that defence lawyers push for disclosure and the Crown tends to guard sensitive intelligence. The fear was that Section 38 would create a never-ending legal ping-pong match that no jury could ever withstand: The Crown might shut down the Superior Court trial whenever a secrecy question arose, force debates into federal and appellate courts, and then, once matters returned to Superior Court, repeat the process as often as deemed necessary by the government.

Contemplating this, Judge Dawson drew a line in the sand.

“There can be no doubt that the liberty and security interests of persons on trial in the superior courts are at stake,” the ruling reads. “… By depriving them of the opportunity to enforce their rights to disclosure and to full answer and defence in the court of competent jurisdiction, all the ingredients of a Section 7 Charter violation are established.”

He took pains to point out that this was not a dig at his colleagues at Federal Court, and said it's “mug's game” to argue over which judges are better suited to weigh secrecy. He simply said Superior Court judges are also up to the job and need to see all the evidence.

Defence lawyers are relieved.

“It's the difference between a potential mistrial and a fair trial,” said Michael Moon, who represents one accused man. “Section 38, as it was put in place by Parliament, was just so cumbersome … it was destructive of the trial process. It would just paralyze the trial.”

Some Crown lawyers were equally unhappy with the law.

“I'm not surprised,” said former Crown lawyer Robin Parker, who prosecuted two prominent cases that involved Section 38 claims.

Now in private practice, she noted that one of her Superior Court prosecutions was backed up by two years as the Federal Court and appellate courts weighed a secrecy question – from which she was shut out as specialized Crown lawyers were called in to pinch hit.

The Section 38 redundancies are striking, she said, with two sets of lawyers operating in two courts before two judges and often in two different cities. “If the judges in the Federal Court can do it, the judges in the Superior Court can also do it,” Ms. Parker said.

Judge Dawson's decision ought to destroy one major impediment delaying the Toronto terrorism trial, but many roadblocks remain. His court still has to sort out a host of preliminary matters.

In 2006, police rounded up 18 men, mostly in the their teens and twenties, accusing most of organizing and attending a jihadist training camp. A small subgroup stands accused of plotting to blow up government targets with fertilizer-based truck bombs.

Charges have been dropped against seven accused. Ten adults await trial.

Last fall, a young offender was convicted of peripheral involvement in the conspiracy. Next week his lawyers will argue the conviction should be overturned.