Judicial Independence and Anti-Terrorism Legislation in Canada: Blurring the Investigative and Judicial Functions: Re an Application under s. 83.28 of the Criminal Code
| Author | Byron M. Sheldrick |
| DOI | 10.1350/ijep.2006.10.1.75 |
| Published date | 01 February 2006 |
| Date | 01 February 2006 |
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF 75
THE COMPLAINING JUROR:
ATTORNEY-GENERAL
V
SCOTCHER
Judicial independence and anti-terrorism
legislation in Canada: Blurring the
investigative and judicial functions:
Re an Application under s. 83.28 of the
Criminal Code
Byron M. Sheldrick
Department of Politics, University of Winnipeg
n the wake of the terrorist attacks of 9/11, Canada, like many other Western
jurisdictions, enacted special anti-terrorism legislation. Enacted in 2001,
Bill C–36, the Anti-terrorism Act, created new terrorism offences, and
amended a large number of statutes, including a variety of provisions dealing with
criminal procedure and evidence. In Re an Application under s. 83.28 of the Criminal
Code1 the Supreme Court of Canada issued its first ruling on the validity of some of
these provisions. At issue was the validity of a framework for investigatory hearings
designed to facilitate the investigation and prosecution of terrorist offences.2 The
case raises important issues regarding the administration of justice and the concept
of judicial independence. While the Supreme Court upheld the legislative scheme,
its approach to dealing with the issue of judicial independence was unsatisfactory,
and reflects a willingness to interfere minimally with the State’s security efforts.
Legislative and factual context
Section 83.28 of the Criminal Code permits the Crown to bring an ex parte application
to a superior court judge requiring an individual to participate in a ‘judicial
investigative hearing’.3 The judge may grant the order if satisfied that there are
reasonable grounds to believe that a terrorism offence has been or will be committed
in the future and that the proposed witness has direct and material information
relating to the offence or to the whereabouts of a suspect. The judge must also be
satisfied that reasonable other attempts have been made to obtain information
from the witness.
I
JUDICIAL INDEPENDENCE AND ANTI-TERRORISM LEGISLATION IN CANADA
* Email: b.sheldrick@uwinnipeg.ca.
1 2004 SCC 42.
2 R.S.C. 1985, c. C–46, s. 83.
3 The Attorney-General must give her consent before an application can be made pursuant to
the investigatory hearing provisions of the Code.
(2006) 10 E&P 75–80
*
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