The Anti-terrorism Act

INVESTIGATIVE HEARINGS AND
THE SUPREME COURT OF CANADA 
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Investigative Hearings

Investigative hearings (section 83.28 of the Criminal Code) were aimed at preventing and investigating terrorist offences. In 2004, the Supreme Court of Canada upheld the constitutionality of this provision while stating that investigative hearings should generally be held in open court.  However, the power was subject to a sunset clause and expired after the House of Commons voted against extending its application in February 2007.

Procedure

The investigative hearing regime in section 83.28 of the Criminal Code of Canada permitted a peace officer investigating a terrorism offence to apply to a judge for an order requiring a witness believed to have information concerning a terrorism offence to appear before the judge to answer questions. The ATA provided that the answers and any derivative evidence could not be used to incriminate that person in any future criminal proceeding, except for perjury or the giving of contradictory evidence. The witness had a right to counsel and the judge could impose any conditions on the hearing to protect the witness, third parties and the investigation.

Safeguards

This measure was intended to enhance the ability of law enforcement to effectively investigate and obtain evidence about terrorism offences. Legal safeguards were expressly provided for the witness, including protections against the disclosure of information that is protected by Canadian laws related to privilege or non-disclosure of information, protections against self-incrimination in relation to other criminal proceedings and the right to retain and instruct counsel.

Case Law

An application for an investigative hearing order was made as part of the Air India investigation. The person who was the subject of the order challenged it under the Charter, asserting a violation of the right to silence and protection against self-incrimination. The subject also alleged that involving a judge in the investigation affected judicial independence and impartiality. The British Columbia Supreme Court held that the legislation was valid and that the witness's rights could be protected through conditions in the order.

The Supreme Court of Canada granted leave to appeal that decision, based on section 40 of the Supreme Court of Canada Act, and in its decision Re: Application under s. 83.28 of the Criminal Code, [2004] S.C.R. 242, concluded that the investigative hearing was constitutional.

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The Court held that:

• The purpose of the Anti-terrorism Act is to prevent and prosecute terrorism offences.
• The Government opted to enact specific criminal law and procedure legislation and did not make use of exceptional powers, for example the Emergencies Act, or invoke the notwithstanding clause in section 33 of the Charter.
• The legislation gave the judiciary a wide ambit to set or vary the terms and conditions of an order. This broad power enabled the judge to respond flexibly to the specific circumstances of each application and ensured that constitutional and common law rights and values were respected.
• Section 83.28 was presumed to have immediate effect and to apply retrospectively because it effected only procedural change and did not create or impinge on substantive rights. Accordingly, it applied to the investigation of terrorism offences alleged to have been committed prior to the coming into force of the provision.
• Section 83.28 of the Code did not violate section 7 of the Charter. It did not infringe the right against self-incrimination.
• Section 83.28(10) provided that evidence obtained during an investigative hearing, and evidence derived from such evidence, could not be used in criminal proceedings against the person who provided the evidence. The Supreme Court extended these protections to future extradition or deportation hearings, where warranted.
• Section 83.28 required the judge to act judicially, in accordance with constitutional norms and the historic role of the judiciary in criminal proceedings. Judges acting under section 83.28 did not lack institutional independence or impartiality, nor were they co-opted into performing an executive function.
• The independence of Crown counsel was not compromised by the involvement of prosecutors in the investigative hearing process.
• The purpose of the hearing in this case was to investigate a terrorism offence and not to obtain pre-trial discovery. No reviewable error arose from the hearing judge's conclusion that the Crown met its onus to demonstrate in good faith that the hearing's purpose was investigative.
• Section 11(d) of the Charter (right to a fair and public hearing) did not apply because the subject of the investigative hearing order was not an accused.

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Updated to April 1, 2008.