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Canada high court rules government may withhold national security-related evidence

By Daniel Makosky

[JURIST] The Supreme Court of Canada [official website] on Thursday upheld [judgment text] challenged aspects of the Canada Evidence Act [materials], ruling that national security considerations take precedence over criminal convictions. The court affirmed the constitutionality of a provision that vests the Federal Court [official website] with, and removes from trial judges, the authority to determine the national security implications of evidence that prosecutors seek to withhold. In reaching its conclusion, the court noted the balance that must be struck between ensuring security and a fair judicial system:

As we have stated, co-operative arrangements between the prosecution and the defence are to be encouraged, as they have the potential to greatly facilitate complex trials for all parties involved and to reduce the strain on judicial resources. However, the defence is under no obligation to cooperate with the prosecution and if the end result of non-disclosure by the Crown is that a fair trial cannot be had, then Parliament has determined that in the circumstances a stay of proceedings is the lesser evil compared with the disclosure of sensitive or potentially injurious information.

The case stems from the prosecutions of the "Toronto 18" [Toronto Star backgrounder; JURIST news archive], who were arrested in 2006 after police learned of their plans to bomb sites throughout Ontario using fertilizer explosives in response to Canada's military involvement in Afghanistan.

The final two members of the Toronto 18 were convicted in June, a month after accused group leader Fahim Ahmad switched his plea to guilty mid-trial [JURIST reports]. Last February, Toronto 18 member Shareef Abdelhaleem was convicted [JURIST report] after a Canadian judge found no evidence of entrapment. In January 2010, Amin Mohamed Durrani was released [JURIST report] after pleading guilty to participating in and assisting a terrorist group. Also in January, Zakaria Amara and Saad Gaya [JURIST op-ed] were sentenced [JURIST report] to life and 12 years in prison, respectively, for their roles in the plot. Seven others involved in the plot pleaded guilty, two were found guilty by a judge at trial and seven others had their charges dropped or stayed.

Full post as published by JURIST - The Paper Chase on February 11, 2011 (boomark / email).