Suresh v. Canada (Minister of Citizenship and Immigration)

Application under s. 83.28 of the Criminal Code

M and B were jointly charged with several offences in relation to the explosion of Air India Flight 182 and the intended explosion of Air India Flight 301. Shortly after the beginning of their trial, the Crown brought an ex parte application seeking an order that a Named Person, a potential Crown witness at the Air India trial, attend a judicial investigative hearing for examination pursuant to s. 83.28 of the Criminal Code , which is one of the new provisions added to the Code as a result of the enactment of the Anti-terrorism Act in 2001. The application judge granted the order and set a number of terms and conditions to govern the conduct of the judicial investigative hearing, among others, the hearing was to be conducted in camera and notice of the hearing was not to be given to the accused in the Air India trial, to the press or to the public. Counsel for the accused, who fortuitously became aware of the order, informed the application judge that they wished to make submissions. Counsel for the Named Person also applied to challenge the constitutional validity of s. 83.28 . The constitutional challenge and the application to set aside the order were heard in camera. The judge presiding at the hearing concluded that the order was validly issued and s. 83.28 was constitutionally sound. Given the unusual circumstances of this case, she varied the order to permit counsel for the accused to attend at the investigative hearing and examine the Named Person under the proviso that they leave the hearing if information unrelated to the trial was elicited. They were also prohibited from disclosing any information or evidence obtained at the hearing to the public or to the accused. The judgment was sealed until the conclusion of the hearing or any contrary order of the court. Since there is no provision in the Criminal Code for an appeal of a s. 83.28 order to a provincial court of appeal, the Named Person successfully sought leave to appeal to this Court.