Section 83.28 Orders and Investigative Hearings

Section 83.28 of the Criminal Code operates with respect to investigations of terrorism offences. The section allows police to apply for a court order to compel a potential witness to:

• attend an investigative hearing;
• submit to questioning by police at the hearing;
• to bring all documents and other materials in their possession to the hearing^[2]

The questioning of the witness occurs before a judge.

Section 83.28 also allows for the exclusion of the public and media from the hearing.^[3]

Investigation of Air India Bombing

In 1985, two acts of terrorism caused the deaths of two baggage handlers in Japan and the 329 passengers and crew of Air India Flight 182.^[4] The Air India bombing was the largest mass murder in Canadian history.

In 2004, two accused were on trial for conspiracy to murder and other offences relating to those events.

As part of the investigation, the Crown obtained a court order requiring a potential Crown witness, a "Named Person", to attend a judicial investigative hearing for examination. The order was made pursuant to section 83.28 of the Criminal Code.

The investigative hearing was to be held in camera, meaning that the hearing would not be open to the public or press.

Reasoning

The majority of the Court, represented by Iacobucci and Arbour JJ. felt strongly that^{[9] [10]}

The open court principle has long been recognized as a cornerstone of the common law... The right of public access to the courts is “one of principle . . . turning, not on convenience, but on necessity”... “Justice is not a cloistered virtue”... “Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity... Public access to the courts guarantees the integrity of judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”... Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts. The open court principle is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein... The freedom of the press to report on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by the constitutional guarantee of freedom of expression... The press plays a vital role in being the conduit through which the public receives that information regarding the operation of public institutions... Consequently, the open court principle, to put it mildly, is not to be lightly interfered with.

The court noted "[e]ven in cases where the very existence of an investigative hearing would have been the subject of a sealing order, the investigative judge should put in place, at the end of the hearing, a mechanism whereby its existence, and as much as possible of its content, should be publicly released."^[11]

Dissent

In their reasons for dissent, Justices Bastarache and Deschamps noted that public access to investigative hearings would normally defeat the purpose of the proceedings by rendering them ineffective as an investigative tool.