Top court upholds secret evidence law
In ruling stemming from Toronto 18 trial, court says security concerns may let accused walk free
Allowing an accused criminal to walk free is a "lesser evil" than disclosing top-secret national security information, the Supreme Court of Canada held Thursday in a ruling stemming from a high-profile terrorism case.
The court was asked to decide whether portions of the Canada Evidence Act, which give the Federal Court — and not the trial judge — authority to decide what material can be withheld if national security is at stake, are constitutional.
In upholding the law, the court said Thursday the provisions sometimes force the choice between protecting national security and prosecuting crimes.
Even though withholding information could harm a person's right to a fair trial, the law allows that in some situations the appropriate remedy would be stopping the prosecution all together, the court said.
"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 court said in its ruling.
Toronto 18 terror case
The issue arose in the terrorism case known as the Toronto 18, when Ontario Superior Court Justice Fletcher Dawson struck down provisions of the Canada Evidence Act.
Prosecutors in the case — as is common in terrorism cases — argued that disclosing certain information to the defence could hurt national security.
Dawson struck down portions of the act that gave the Federal Court power to determine privilege because he said they interfered with the Superior Court's jurisdiction to apply the constitution.
The Supreme Court acknowledged the legislation deprives judges of the ability to order the disclosure or even their own inspection of material that is withheld on national security grounds.
But it said there are other remedies available to the judge to protect an accused's right to a fair trial, such as a stay of the entire proceeding.