Supreme Court of Canada appeals can take on a life of their own when the nine judges are at their most engaged, swooping in with blunt comments that turn a legal submission to smouldering ashes or aiming a volley of questions that expose a lawyer's unprotected flank.
This reality was never more evident than during a just-concluded two-day probe into the constitutionality of security certificates, which permit the deportation of suspected terrorists without letting them see the evidence against them.
By the halfway mark in the case, an extraordinary barrage of questions from the court had left few observers feeling confident that the provisions would escape unscathed.
Instead, the looming question now appears to be whether the court will take hammer and tongs to the Immigration and Refugee Protection Act provisions or strike them down and ship them back to Parliament for a full reformulation.
That was not the impression when the hearing began. The judges appeared initially impatient during submissions from lawyers for the three detainees who brought the challenge and several intervenors. Their questions suggested that the judges were not impressed by arguments that detainees are being denied their Charter equality rights.
The judges soon homed in, however, on the denial of the right to counsel and whether it is possible to safeguard national security while permitting detainees to obtain details about the allegations against them.
Several judges were also disturbed by the fact that the security-certificate procedure forces their Federal Court colleagues to act as both cross-examiner and defender of the accused person's rights during secret proceedings in his absence.
The balance appeared to tip shortly before the Crown got its turn to speak. Criminal Lawyers' Association counsel Michael Code laid out a middle ground, arguing that detainees do not have any automatic right to know extremely sensitive information that could jeopardize the fight against terrorism and Canada's ability to interact freely with spy agencies abroad.
Rather than being automatic, Mr. Code said, the need for the government to share sensitive information only kicks in -- under a secure scheme of access that the court or Parliament can carefully devise -- once the state has elected to use that evidence against the detainee. At that point, he argued, it is wrong for the state to deny any citizen or non-citizen who faces serious consequences the right to know the case against them and to be able to respond to it.
The field of battle had narrowed, and the hearing quickly evolved into a debate over how the fundamental rights of someone facing a serious threat to their liberty can be restored.
This left federal Justice Department lawyers in a fascinating legal position. Coming into the appeal, they had made a crucial strategic decision. Knowing that a Charter litigant must prove that a constitutional violation has taken place, they took a gamble and argued that national security must prevail over virtually any right.
In theory, that gamble would come back to haunt them only if the court were to find that the right to life, liberty or security of the person had been breached. The burden would then move to the Crown to justify the violation under Section 1 of the Charter as acceptable in a free and democratic society.
Crown lawyers therefore had precious few arguments or evidence to justify a Charter breach. They were caught short when, just minutes into Crown counsel Bernard Laprade's defence of the certificate system, the judges sent strong signals that the Charter had been breached and that they wanted him to explain how such a violation could be justified as proportionate and not significant.
"Isn't it incumbent on the government to show Section 1 evidence that it is minimal impairment?" Madam Justice Louise Charron asked sharply.
"This is about whether you can satisfy your onus to show it is a reasonable limit," Madam Justice Rosalie Abella added.
Mr. Justice Louis LeBel observed tartly that he found himself "understanding less and less" why the government ignored security-certificate models that would permit proper representation by legal counsel for detainees. And Mr. Justice Ian Binnie noted that the plausibility of fairer options was starting to leave the government's staunch defence of the existing system "melting away."
In the final hours of the appeal, the judges demanded answers as to how they can fashion more legal rights for detainees without destroying the heart of the certificate system or jeopardizing national security. They fixed on the notion of a special advocate -- a lawyer who acts on behalf of the detainee during secret hearings and sees sensitive evidence, yet who is bound to respect confidentiality where essential.
Led by Judge Abella, several judges showed great interest in "special counsel" models used in the recent Maher Arar inquiry and several years ago by the federal Security Intelligence Review Committee.
Mr. Laprade insisted that he was not prepared to argue the merits of different models because he simply could not concede that the status quo is anything less than a fair balance that allows detainees to counter the case against them or quietly leave the country. He said that any perceived shortcomings in the law are simply procedural matters.
"What evidence do we have that what is being proposed by the intervenors is superior to what we already have?" Mr. Laprade said.
"The issue isn't which of the systems that have been mentioned best responds to the situation as it exists, but whether the system as it exists requires some additional element in order to pass constitutional muster," Mr. Justice Morris Fish summed up.
Should the court opt for a variation of the special advocate, which has been pioneered in Britain with mixed success, it could involve one or more lawyers. One lawyer, for example, could act on behalf of the presiding judge as a "friend of the court," while another would be sworn to abide by secrecy provisions yet would be authorized to give informed advice to the detainee and receive legal instructions from him.
Then again, the court may toss the security system back to Parliament.
There, a minority government can add a new priority item to its swelling agenda: the battle to balance national security with the rights of those who appear on Canadian shores claiming persecution in their homelands.