Posted on 06/24/2004 11:09:10 AM PDT by NorthOf45
Top court rejects secrecy in anti-terrorism hearings
By KIRK MAKIN JUSTICE REPORTER UPDATED AT 2:02 PM EDT Thursday, Jun 24, 2004
Controversial anti-terrorism provisions that compel unco-operative witnesses to answer questions in special investigative hearings are constitutional -- but cloaking them in immense secrecy is not, the Supreme Court of Canada ruled yesterday.
"The challenge for democracies in the battle against terrorism is not whether to respond, but rather how to do so," Mr. Justice Frank Iacobucci and Madam Justice Louise Arbour wrote yesterday, in what is probably their final collaboration before both retire.
The landmark case involved a judicial investigative hearing connected to the 1985 bombing that killed 329 passengers and crew on Air-India Flight 182. Eighteen years after the disaster, police used legislation passed in the wake of the 9/11 attacks to question a potential Air-India witness.
The hearings under the Anti-Terrorism Act remove the traditional right to remain silent, forcing witnesses to answer questions in a courtroom presided over by a judge.
"Although terrorism necessarily changes the context in which the rule of law must operate, it does not call for the abdication of law," a 6-3 majority of the judges said.
"The challenge for democracies in the battle against terrorism is to balance an effective response with fundamental democratic values that respect the importance of human life, liberty and the rule of law. Subject to interpretive comments, [this section of the Anti-Terrorism Act] meets that challenge."
A second ruling stressed the importance of open courts.
The press and public ought to know what happens in investigative hearings unless there are compelling reasons to suppress it, a 7-2 majority said.
They underlined their point by lifting a ban on the identity of the witness at the hearing -- Satnam Kaur Reyat. Ms. Reyat is the wife of Interjit Singh Reyat, currently in prison for several offences related to the bombing.
Taken together, the rulings trod a careful path between the unprecedented power to dragoon witnesses into secret hearings and the need to give police investigative leeway in case they learn of a grave threat.
The majority went beyond simply saying the Reyat hearing ought to have been publicized: It urged the courts, the legal profession and the press to give "serious consideration" to developing a better mechanism of giving notice of publication bans.
Robert Anderson, a lawyer for the Vancouver Sun, said the rulings closely relate the open-court principle to the hearings being constitutional. Without the requirement of openness, he said in an interview, the legislation might well have been struck down.
Still, the court left the door wide open to massive secrecy in future cases, depending entirely on the gravity of the case and the arguments in favour of secrecy.
"It may very well be that by necessity, very large parts of judicial investigative hearings will be held in secret," the judges said. "It may also very well be that the very existence of these hearings will, at times, have to be kept secret."
Writing in dissent, Mr. Justice Michel Bastarache and Madam Justice Marie Deschamps said that too much openness can jeopardize the safety of witnesses and the usefulness of hearings designed to root out serious threats.
Mr. Justice Ian Binnie also expressed strong misgivings. "The danger in the 'war on terrorism' lies not only in the actual damage the terrorists can do to us, but what we can do to our own legal and political institutions by way of shock, anger, anticipation, opportunism and overreaction," he warned.
Two B.C. men -- Ripudaman Singh Malik and Ajaib Singh Bagri -- are currently on trial for conspiracy to murder and other offences in the Air-India bombing. Their trial had barely commenced when the defendants and the Vancouver Sun caught wind of the Reyat investigative hearing.
Critics condemned the hearing for forcing a citizen to potentially incriminate herself and for making the presiding judge an arm of the police. They also suggested the hearing was a backdoor route for the Crown to sneak an advance peek at testimony that might be given in the Air-India trial.
The Supreme Court said yesterday that while judicial independence is vital, the open nature of most hearings will prevent any reasonable person from believing judges have been co-opted.
However, two dissenting judges -- Mr. Justice Morris Fish and Mr. Justice Louis LeBel -- disagreed about the harm to the judiciary. "The judge takes part in and facilitates the police investigation without having real power to act as a neutral arbiter," they said.
Geoffrey Gaul, director of legal services for B.C. Crown counsel, said no decision has been made on whether to revive or simply abandon the hearing.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.