'Constitution Chicken': National Security Confidentiality and Terrorism Prosecutions after R. v. Ahmad

Abstract

This article examines the Supreme Court’s decision in R. v. Ahmad to reverse a decision made by the trial judge in the Toronto terrorism prosecution and to uphold the constitutionality of Canada’s unique two court system to deciding public interest immunity questions involving state claim’s of national security confidentiality. Parliament’s decision to only allow a few specially designated judges of the Federal Court to decide such questions will be related to Canada’s anxieties about being a net importer of intelligence and excessive concerns about secrecy. It will be suggested that the trial judge who ruled that s.38 was unconstitutional had a better grasp of the practical challenges of the two court system including multiple applications and appeals during a jury trial and the drastic nature of the stay remedy than the Supreme Court. The Supreme Court’s approach to reading down the legislation to avoid holding it unconstitutional is critically assessed . It is suggested that terrorism prosecutions will be more difficult in the future and that the Attorney General of Canada will often be in the driver’s seat in a constitutional game of chicken. Only that official will be able to decide whether to disclose information previously ordered not to be disclosed by the Federal Court in order to avoid the trial judge’s drastic and blunt remedy of a stay of proceedings under s.38.14 of the Canada Evidence Act.