Investigative Hearings into Terrorist Offences: A Challenge to the Rule of Law
Criminal Law Quarterly, Vol. 50, p. 376, 2005
27 Pages Posted: 22 Aug 2010
Date Written: 2005
Section 83.28 of the Criminal Code stands in stark contrast to traditional Canadian law which places no obligation on individuals to assist the police in their investigation of crime. Under s. 83.28 a named person must answer Attorney General’s questions and produce things if a presiding judge makes an order for an investigative hearing, and on the other hand the named person is given immunity protection against self-incrimination. This article discusses the Supreme Court of Canada’s decisions arising out of the prosecution’s attempt to conduct an investigative hearing during the trial of two accused charged with committing the Air India bombing in 1985. The author argues that the majority judgment attempts to impose some basic rule of law values on judicial investigative hearings in a bold effort to make this novel procedure as consistent as possible with the rest of the Canadian criminal justice system. Specifically, the author considers the interpretation of s. 83.28, focusing on the rule of law, the rules of evidence, and the reviewability of orders. Next, the article discusses the named person’s constitutional challenges based on the principles of fundamental justice and on judicial independence. Lastly, the author addresses the media’s claim that investigative hearings should be open to the public, and suggests that if the judicial investigative hearing really is a constitutionally permissible device, an investigative hearing should presumptively be closed until it has concluded.
Keywords: investigative hearing, adversarial system, use immunity, constitutional challenge, public access
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