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Evidence - Privilege - National Security [CEA s.38]. R. v. Jaser
In R. v. Jaser (Ont CA, 2024) the Ontario Court of Appeal dismissed a terrorism-related criminal appeal.
At trial, the appellant filed an O'Connor (third party evidence) application seeking Canadian Security Intelligence Service ('CSIS') warrant affidavit material for use in their Garofoli (Charter s.8 'search and seizure') application. In response CSIS and the Crown argued 'national security privilege ('NSP')' [under CEA s.38] issues, which should be heard in Federal Court:[47] As Mr. Jaser’s entire s. 8 challenge was predicated on the lawfulness of the CSIS Act warrant, he first had to obtain a copy of the affidavit giving rise to that warrant. This is where the O’Connor application came in.
[48] Unsurprisingly, CSIS took the position that the affidavit contained information covered by NSP. CSIS therefore resisted production of those parts of the affidavit which were said to contain both “sensitive” and “potentially injurious” information. Those terms are defined in s. 38 of the CEA [SS: 'International Relations and National Defence and National Security'] as follows:... potentially injurious information means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.
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sensitive information means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard. (b) The bifurcated procedure mandated by s. 38 of the CEA
[49] The parties agreed at trial, and agree on appeal, that the Federal Court maintains exclusive jurisdiction under s. 38 of the CEA to determine NSP claims: R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110, at paras. 4-6. This means that where a party challenges an NSP claim in a criminal trial, a bifurcated court procedure will necessarily follow: Ahmad, at paras. 4, 5, 71, 75, 80. Only the Federal Court may decide whether information is properly the subject of NSP and, if so, whether the public interest in disclosure of that information outweighs the public interest in non-disclosure of that information, subject to any conditions considered appropriate: CEA, s. 38.06(2).
[50] It is a well established in law that NSP is not quite so absolute as some other forms of privilege, such as confidential informant and solicitor-client privilege. To the contrary, and as reflected in s. 38.06(2) of the CEA, even where NSP exists, the public interest in disclosure will from time to time outweigh the public interest in non-disclosure. In such cases, the Federal Court shall order disclosure. Accordingly, had this matter proceeded in the Federal Court, that court could have decided what was properly the subject of an NSP claim and then decided what privileged information, if any, should nonetheless be disclosed: Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594, at paras. 25-26, leave to appeal refused, [2011] S.C.C.A. No. 466.
[51] Practically speaking, this means that although judges presiding over criminal trials remain the guardians of trial fairness, to the extent that NSP claims require determination, the trial judge’s jurisdiction is suspended and the Federal Court’s jurisdiction takes over. After the Federal Court’s determination, the trial judge may, pursuant to s. 38.14 of the CEA, make any order necessary to protect the accused’s right to a fair trial, provided that the trial judge’s order complies with the terms of any order made by the Federal Court pursuant to ss. 38.06(1)-(3): Ahmad, at para. 6, 33-35, 52, 79. The trial judge’s options include remedies up to and including the imposition of a stay of proceedings: CEA, s. 38.14(2).
[52] To be sure, this bifurcated procedure can be cumbersome, leading to inefficiencies and delays in the criminal justice system: Ahmad, at paras. 5, 73-80. Even so, to the extent that an NSP claim must be resolved, there is no jurisdictional flexibility built into the statutory scheme: the matter must proceed in the Federal Court.
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