Sufficient Flexibility to Preserve Right to Fair Trail

R v Ahmad, 2011 SCC 6 (10 February 2011) Summary

The Supreme Court of Canada has held that a two court scheme regulating the disclosure of information relating to international relations, national defence or national security in criminal proceedings does not violate the right to a fair trial. Properly interpreted, the statutory scheme was sufficiently flexible to preserve the full authority of the judge presiding over the criminal trial to do justice between the parties and preserve the rights of the defendant to a fair trial.


In June 2006, 18 people were arrested in the Greater Toronto Area on suspicion of plotting terrorist attacks. Ten of the 18 people were scheduled to be tried before a judge of the Ontario Superior Court of Justice (the Superior Court). Section 38 of the Canada Evidence Act R.S.C. 1985, c. C-5 (the Act) establishes a two court scheme regulating the disclosure in court proceedings of sensitive information relating to international relations, national defence or national security (the Scheme). Under the scheme, all parties in a court proceeding are obliged to notify the Attorney General of Canada if they consider that sensitive information is about to be disclosed. The Attorney General must decide whether to authorise disclosure or to refer the matter to the Federal Court for determination.  Where the disclosure of information would be injurious to international relations, national defence or national security, the Federal Court judge may only authorise disclosure if the public interest in disclosure outweighs the public interest in non-disclosure. Importantly, the Scheme also provides that a person presiding in criminal proceedings may make any order that he/she considers appropriate in the circumstances to protect the rights of the accused to a fair trial, as long as that order complies with the terms of any order permitting or prohibiting disclosure.  However, the Scheme does not expressly grant the person presiding at the criminal proceeding a right to access the sensitive material.

In March and June 2008, pursuant to the Scheme, the Crown notified the Attorney General that the Superior Court proceedings involving the 10 accused might disclose sensitive information. The Attorney General brought the disclosure issue before the Federal Court and the Federal Court ordered that a hearing be held and that the judge of the Superior Court be notified. The 10 accused brought an application in the Superior Court challenging the constitutionality of the Scheme. The Superior Court held that the scheme was unconstitutional and breached the right to a fair trial found in s 7 of the Canadian Charter of Rights and Freedoms (the Canadian Charter).

The trial judge held that the resolution of the disclosure issue and the determination of whether there had been a violation of the accused's right to a fair trial were so intertwined that they could not be separated into functions performed by two separate courts. Depriving the Superior Court of the ability to resolve the disclosure issue necessarily prevented the Superior Court from determining whether there had been a breach of the accused's Charter rights. The Crown appealed the decision.


The Supreme Court disagreed with the trial judge's analysis, and upheld the appeal.

The appeal concerned a potential conflict between the State's obligation to protect society against disclosure of information that poses a threat to international relations, national defence or national security and the state's obligation to prosecute individuals accused of offences against Canada's laws.  Importantly, the court emphasised that "where the conflict is irreconcilable, an unfair trial cannot be tolerated. Under the rule of law, the right of an accused person to make full answer and defence may not be compromised".

In the absence of clear and unambiguous statutory language to the contrary, the legislation ought to be applied flexibly and in light of what the trial judge requires to exercise his or her remedial discretion. The "drastic nature" of the potential remedies available to the trial judge to ensure compliance with the accused's rights (including, for example, a complete stay of proceedings) means that Parliament intended trial judges to be provided with a sufficient basis of relevant information on which to exercise these powers. In adopting this 'practical approach', the Supreme Court emphasised that the words of the Act need to be read harmoniously with the scheme and object of the Act and the intention of Parliament and that Parliament is presumed to have intended to enact legislation in conformity with the Canadian Charter.

First, although the Act appeared to grant the Federal Court a wide discretion as to whether to hold a hearing on the disclosure matter, the court considered that the Act must be read down so that, unless the judge decides that the information ought to be disclosed, there must be a hearing on the disclosure issues. Similarly, although the Act appeared to grant the Federal Court discretion in determining who should be given notice that a hearing on the disclosure issues is being conducted, conformity with the Charter required that the Act be read so as to require that the defendant and the trial judge be given notice of the hearing.

Third, the respondents and the trial judge had incorrectly assumed that because the judge presiding at a criminal trial has no right of access to potentially injurious or sensitive material, such access will not normally occur. However, the Supreme Court pointed to a number of possible arrangements which could ensure that the trial judge has the necessary information to assess the impact of non disclosure. For example, in making its determination, the Federal Court may authorise partial or conditional disclosure to the trial judge, provide a summary of the information, or advise the trial judge that certain facts sought to be established by an accused may be assumed to be true for the purposes of the proceeding. Further, the Scheme may operate in stages, such that the trial judge may initially determine that under current access arrangements, it cannot be satisfied that non-disclosure would not impact on the accused's right to a fair trial. In these circumstances, the Crown should be advised and the Attorney General given the opportunity to make further and better disclosure to address the trial judge's concerns. If no additional information can be provided, and the trial judge is unable to satisfy him or herself that non-disclosure has not adversely impacted on trial fairness, then the charter requires that a stay of proceedings be issue: "Doubt, in this respect, should be resolved in favour of protecting the fair trial rights of the accused, including the right of full answer and defence".

Interpreted in this way, the court found that the Scheme preserved the full authority and independence of the judge presiding over the criminal trial to do justice between the parties, including, where necessary, to enter a stay of proceedings.

Relevance to the Victorian Charter

The Supreme Court adopted its practical interpretation of the Scheme relying on the principle that Parliament is presumed to have intended to enact legislation that conforms with the Canadian Charter. Section 32(1) of the Victorian Charter requires statutory provisions to be interpreted in a way that is compatible with human rights so far as it is possible to do so consistently with their purpose. The Supreme Court's reading down of the statute so as to confirm with the Canadian Charter was quite substantial. Whether an Australian court would adopt quite as flexible approach in interpreting a statutory scheme in accordance with the Victorian Charter remains to be seen.

The substantive issue in this case would not arise in Australia. The National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) establishes a similar scheme to the Canadian Scheme, imposing an obligation on each party to a federal criminal proceeding to notify the Attorney General where that party expects to introduce information which relates to national security. There are a number of important differences to the Canadian Scheme. First, the Australian scheme only applies to federal criminal proceedings where the prosecutor has given notice in writing to the defendant that the scheme applies. Second, it is the court presiding over the federal criminal proceedings that considers whether there is a risk to national security if the information is disclosed and also whether non-disclosure would have a substantial adverse affect on the defendant's right to a fair trial. Unlike in Canada, there is no separation of the two functions between two courts.

The decision is at

Rosannah Healy is a Lawyer and Pro Bono Coordinator at Allens Arthur Robinson