Academic journal article University of Toronto Faculty of Law Review

Access to State Secrets in Terrorism Prosecutions: A Case Comment on R. V. Alizadeh and the Strictures of Third Party Disclosure

Academic journal article University of Toronto Faculty of Law Review

Access to State Secrets in Terrorism Prosecutions: A Case Comment on R. V. Alizadeh and the Strictures of Third Party Disclosure

Article excerpt

 I    PART I: GATEWAYS AND ROADBLOCKS TO LITIGATING STATE SECRETS   132       IN THE FIRST AND THIRD PARTY DISCLOSURE REGIMES       I. Understanding the Common Law Disclosure Regime and its     134       Intersection with Terrorism Prosecutions  II   PART II: A CASE COMMENT ON R V ALIZADEH                       136        I. An Outline of the Case                                    136       II. Dissecting Alizadeh and its Ramifications in Light of     140       CSIS' Amplified Powers III   PART III: DEALING WITH SECTION 38 AND THE BIFURCATED COURT       MODEL                                                         151  IV   CONCLUSION                                                    154  The concern for fairness and the intention to prevent miscarriages of justice that animated Stinchcombe apply with equal force in terrorism cases. A wrongful terrorism offence conviction stemming from a failure by the Crown to make full disclosure would constitute an injustice. (1) --Air India Commission of Inquiry 

When measured against the right to make "full answer and defence" (2) and the constitutionally enshrined right to a fair trial, (5) the preservation of state secrets fares stubbornly. This tension is made plain when a disclosure application is countered by a national security privilege claim, codified in section 38 of the Canada Evidence Act (4)--a framework designed to preserve state secrets. The right to disclosure in a criminal prosecution is an "adjunct" of the right to make full answer and defence under section 7 of the Charter of Rights and Freedoms. (5) Meanwhile, accused persons do not benefit from disclosure as of right in respect of intelligence, documents internal to intelligence services, communications with foreign agencies, or intelligence relating to suspects unrelated to the accused. (6) Whether the Canadian Security Intelligence Service (CSIS) will ever be considered an "investigating state authority" for the purposes of Stinchcombe disclosure remains unclear. (7) Given these issues, what happens when agencies like CSIS reserve the disclosure of intelligence to the accused on the basis of a "legal duty of secrecy", (8) all while possessing tools akin to law enforcement bodies?

The author submits that in light of CSIS's new powers in the Anti-terrorism Act, 2015? intelligence should ideally constitute first party disclosure. Alternatively, accused persons should benefit from a robust interpretation of the third party disclosure doctrine in O'Connor (10) applications. Rigid interpretations of what is "likely relevant" dilutes the value of the right to make full answer and defence, engendering unpredictable standards in relation to the disclosure of intelligence. In support of this argument, the author relies on R v Alizadeh, (11) a 2013 pre-trial decision from a terrorism prosecution in Ottawa, to expose the theoretical and practical implications of narrowly circumscribing assessments of intelligence deemed likely relevant.

This paper is divided into three segments. Part 1 unpacks the first and third party common law disclosure rules. Part II studies the court's reasoning in Alizadeh I, drawing on other cases which limit intelligence as third party disclosure. In this section, the author will also rely on CSIS's new powers to make the case for why intelligence ought to constitute first party disclosure. Furthermore, relying on extant issues explored by the Commission of Inquiry on Air India Flight 182, (12) Part III briefly comments on the bifurcated court model triggered by 38 of the CEA as an alternative area for reforms outside the common law, arguing that a single trial court is best left to decide matters involving disclosure and privilege.

I PART I: GATEWAYS AND ROADBLOCKS TO LITIGATING STATE SECRETS IN THE FIRST AND THIRD PARTY DISCLOSURE REGIMES

Scholarly references to the "intelligence-to-evidence conundrum" (13) embody the tension between intelligence in the pre-charge phase and evidence marshaled at trial in the post-charge phase. …

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