Ribic v. Canada (Attorney General), 2003 FCT 10

                                                                                                                                  Date: 20030109

                                                                                                                    Docket No.:    DES-3-02

                                                                                                        Neutral Citation: 2003 FCT 10

Ottawa, Ontario, this 9^th day of January, 2003

PRESENT:      THE HONOURABLE MR. JUSTICE BLANCHARD

BETWEEN:

                                                              NICHOLAS RIBIC

                                                                                                                                            Applicant

                                                                         - and -

                                         THE ATTORNEY GENERAL OF CANADA

                                    and THE ATTORNEY GENERAL OF ONTARIO

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

                    MODIFIED PURSUANT TO PARAGRAPH 1 OF THE ORDER OF

        THE HONOURABLE MR. JUSTICE BLANCHARD DATED JANUARY 17, 2003

1.                   The applicant, Mr. Ribic, a Canadian citizen, is defending serious criminal charges resulting from a hostage taking incident in Bosnia in 1995, while he was a member of the Serb Forces. He is in the middle of his trial. If convicted, the applicant faces the possibility of a substantial period of incarceration. The applicant's trial was scheduled to commence before a jury in September 2002. The Crown has closed its case and the applicant intends to advance certain defences at trial.

2.                   The applicant seeks an order from this Court pursuant to paragraph 38.04(2)(c) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (as amended by S.C. 2001, c.-41, s. 43), (the "Act") authorizing two serving members of the Canadian Forces to testify at his criminal trial without restriction. He applied for an order pursuant to subsection 38.06(1) or (2) of the Act that the entirety of the information at issue be disclosed.

3.                   The Attorney General of Canada (the "Attorney General") did not agree with such a blanket authorization and by way of motion sought directions of this Court pursuant to subsection 38.04(5) of the Act and to rules 8, 54, 104, 384 and 385(1) of the Federal Court Rules, 1998, as amended.

4.                   By amended order dated November 19, 2002, Associate Chief Justice Lutfy ordered that the applicant's two prospective witnesses be examined by counsel for the Attorney General. This examination was to be conducted based on a list of questions to be submitted by counsel for the applicant. Counsel for the applicant provided an extensive list of questions to be posed at the examinations.

5.                   After reviewing the 555 pages of transcript produced by the examinations, the Attorney General had no objection to disclosure of a large part of the testimony of the two witnesses. However, the disclosure of part of the information could not be authorized because of the potential injury to national defence, national security or international relations caused by the expurgated passages. The Attorney General seeks this Court's confirmation of this prohibition.

6.                   At a teleconference on December 4, 2002, the applicant and the respondent Attorney General agreed that I should examine the expurgated portions of the transcripts. I have done so, therefore, without having to deal with the two step procedure followed by Chief Justice Thurlow in the Goguen case (Goguen v. Gibson [1983] 1 F.C. 822), later approved by the Court of Appeal ([1983] 2 F.C. 463). The procedure was succinctly described by Rothstein J. (as he then was) in Evans (K.F.) Ltd. v. Canada (Minister of Foreign Affairs) (1996), 106 F.T.R. 210 (F.C.T.D.), at para. 27. At the first stage "the court must weigh the competing public interests... in order to determine if an apparent case for disclosure has been made out" and it is only after the Court finds that the case in favour of disclosure "is at least equal to that for immunity from disclosure" that it should proceed "to the second stage (examination of the information) in order to determine which public interest is predominant in the particular circumstances". With respect to this procedure, I agree with the view expressed by my colleague Hugessen J. in Ribic v. Canada, 2002 F C T 290, [2002] F. C. J., on line: Q.L., that the learned Chief Justice "...was not establishing a rule of law to be followed in every case but was simply indicating the manner in which he thought, in the circumstances of that particular case, that it was appropriate for him to exercise his discretion." I am essentially in agreement with my learned colleague when he wrote that a designated judge has a very broad discretion to exercise in deciding whether to look at the material withheld prior to entering upon the balancing process mandated by the statute.

7.                   At the hearing of this matter, which lasted a total of five days, I heard submissions in camera from both the applicant and the Attorney General. In the ex parte portion of the hearing, I dealt with the expurgated portions of the transcripts. I heard three witnesses: a member of the Directorate General Intelligence Division of the Canadian Forces ; an employee of another governmental agency; and a representative from the Department of Foreign Affairs and International Trade.

8.                   Each witness addressed concerns raised by their respective department or agency pertaining to the expurgated portions of the transcripts. During the ex parte hearing, a detailed review of the expurgated portions of the transcripts was undertaken. This exercise resulted in the Attorney General agreeing to release a limited number of additional excerpts from the transcripts that were originally sought to be prohibited from release. I need not further deal with this additional material since it has already been released to the applicant.

Competing Interests

9.                   The applicant takes the position that the evidence of the two witnesses is necessary to assist the jury in putting the events leading up to the hostage taking and the event itself into the proper context. The applicant consequently argues that he can only receive a fair trial if all relevant information is before the trier of fact thereby enabling him to make full answer and defence. The applicant therefore submits that the public interest in disclosure outweighs in importance the public interest in non-disclosure.

10.               The Attorney General takes the position that the severed portions of the transcripts contain information of a type that, if it were disclosed to the public, would injure international relations, national defence and national security. The Attorney General submits that the transcripts contain intelligence information provided to the Department of National Defence (DND) in confidence on the understanding that the information will not be disclosed publicly. Disclosure would reveal sources of the information as well as the information itself, thereby betraying the confidence of the source. This could have a serious impact on the ability of DND to obtain intelligence information from other sources existing and potential. The Attorney General also argues that such disclosure would jeopardize Canadian national defence and national security as well as Canada's international relations with its allies, since this information, if disclosed, could potentially be employed by those hostile to the interests of Canada and its allies. Consequently, the Attorney General argues that the public interest served by maintaining secrecy with respect to national security is weighty and certainly outweighs the public interest in the disclosure of the information in the circumstances of this case.

11.               Those sections of the Act relied upon by the applicant and respondent, the Attorney General, are as follows:

12.               The right to make full answer and defence is "one of the pillars" to criminal justice upon which we depend to ensure that the innocent are not convicted; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Rose (1998) 129 C.C.C. (3d) 449 (S.C.C.). An accused should have the full "case to meet" before answering the Crown's case by adducing defence evidence. In the normal course of events in a criminal prosecution, an accused must not be deprived of relevant evidence that could allow a defence to be mounted against all of the state's efforts to achieve a conviction. Instances are indeed rare where this would not be the rule. The circumstances of this case, where national security interests are at issue, are exceptional and the law provides for a process to balance the competing interests.

The Process

13.               It is necessary to determine whether disclosure of the information sought to be protected would be injurious to international relations or national defence or national security; subsection 38.06(1) of the Act. If I so conclude, I must then proceed to weigh the competing interests; subsection 38.06(2).

The Information

14.               By its very nature, the information expurgated from the transcripts precludes an exhaustive and detailed discussion of the testimony in these reasons. To do so would defeat the very purpose sought to be achieved by keeping the information secret. I will, however, to the greatest extent possible outline the nature of the expurgated information from the transcripts of the testimony of both witnesses. A good deal of the information sought to be protected involves allied and Canadian intelligence information and allied and Canadian intelligence capabilities. Significant portions of the information deal directly and indirectly (by inference) with NATO command and command structures; NATO intelligence gathering capacity; NATO policy relating to conduct of military operations and NATO military operations. Certain parts of the expurgated testimony deal with comments relating to Canada's allies and NATO allies; as well, the role and conduct of certain nations vis-à-vis the warring factions in Bosnia. Finally, the expurgated information also deals with specific technologies used in the Bosnian theatre and touches on intelligence operations, organizations and sources.

15.               Much of the information at issue relates to the characteristics, capabilities, performance, potential deployment, functions or roles of defence establishments of military forces, units or personnel in the Bosnian theatre in 1995. Evidence before me in the ex parte portion of the hearing confirms that the sensitivity of this information, much of which is still very pertinent to current circumstances, requires that its disclosure be prohibited to this day. The extent to which various aspects of the information sought to be protected are relevant to the issues at trial will be more fully canvassed later in these reasons as one of the factors to be considered in weighing the competing interests.

Injury to National Interests

16.               I am satisfied that the three witnesses that appeared before me during the ex parte portion of the hearing were competent to address the Court on the potential injury that would likely occur in the event the expurgated portions of the transcripts were made public. A comprehensive review of each excerpt was conducted during three days of ex parte hearings. The testimony of the witnesses on potential injury to Canada's security, national defence and/or international relations was heard and scrutinized by the Court.

17.               The expurgated information sought to be protected is information respecting intelligence, intelligence capabilities, command and command structure of the various forces in the Bosnian theatre of war, policies relating to the conduct of military operations, military operations, the role and conduct of certain participants in the Bosnian theatre and the identity and sources of targets. A very significant portion of the expurgated transcripts pertains to intelligence information obtained by DND in confidence and on the understanding that the information would not be disclosed publicly.

18.               I am satisfied that the expurgated portions of the transcripts contain information, the disclosure of which would be injurious to international relations, national defence or national security for one or more of the following reasons in that it would:

1.         undermine the trust amongst allies that is needed to make NATO effective;

            2.         compromise Canada's role as a member of the alliance and as participant in future peace support operations;

3.         make our allies more reluctant to share intelligence with us in the future, thereby denying Canada access to vital information that would be required to protect civilians or members of the Canadian Force;

4.         breach NATO agreement and security policy which would be injurious to Canada's relations with NATO;

5.         compromise NATO's ability and, by extension, Canada's ability as a member of NATO, to conduct future operations because it disclosed information on how NATO runs its operations;

6.         injure the conduct of international affairs and result in a diminished level of trust and confidence amongst allies and NATO allies.

Weighing the Competing Interests

19.               I am mandated by subsection 38.06(2) of the Act to consider whether the public interest in disclosure outweighs the public interest in non-disclosure.

20.               The statutory language now provides for a judge to authorize the disclosure of all or part of the information in severed or summary form where, after an assessment of the competing interests, the public interest in disclosure so warrants.

21.               The respondent Attorney General suggests that the test to be applied in weighing the competing interests is the "innocence at stake test" where the applicant must prove on a balance of probabilities that the protected information demonstrates a fact crucial to the defence in the criminal proceeding. The Attorney General also contends that the public interest served by maintaining secrecy in the national security context is weighty and is only to be outweighed in a clear and compelling case for disclosure.

22.               Subsection 38.06(2) of the Act does not specify the test or the factors to be considered in weighing the competing interests nor does the Act contemplate an obvious imbalance between the public interest in national security and the public interest in the administration of justice. I am of the view that the Court may consider different factors in balancing the competing public interests. The breadth of the factors may well vary from case to case.

23.               In the context of a case involving serious criminal charges, as in this case, the issue of whether the information at issue will probably establish a fact crucial to the defence is indeed an important factor to be taken into consideration in the balancing process. Other factors also warrant the Court's consideration such as: the nature of the interest sought to be protected; the admissibility and usefulness of the information; its probative value to an issue at trial; whether the applicant has established that there are no other reasonable ways of obtaining the information; whether the disclosures sought amount to a fishing expedition by the applicant; the seriousness of the charges or issues involved. [See Jose Pereira E. Hijos, S.A. v. Canada (Attorney General) [2002] F.C.J. No. 1658, 2002 FCA 470, Docket A-3-02 at paras 16 and 17]. These factors, by no means constitute an exhaustive list. Other factors may also require consideration in the appropriate circumstances. It is important, in my view, that each application be dealt with on its own merits.

24.               The above noted factors are factors that I have considered in weighing the competing interests for the purposes of the within application and, having applied these factors, I have found that the information falls into three categories:

(a)        not relevant to an issue at trial;

(b)        relevant but need not be disclosed, and

(c)        relevant and required to be disclosed.

(a)        Information not relevant to an issue at trial

25.               Associate Chief Justice Cunningham, the trial judge, refrained from expressing any opinion of the relevance or admissibility of the proposed testimony. Of the 198 passages remaining protected in the transcripts, only 16 were deemed by the Attorney General to be information logically probative of an issue at trial. I agree that many passages remaining protected in the transcripts have very little if any probative value to an issue at trial. I include in this category information that would confirm the use of certain technologies used in the theatre of war by various forces; information that would identify the location within and without Bosnia of certain operational and intelligence centres; information relating to specific covert and overt operations in the Bosnian theatre not related to the hostage taking incident; information that would disclose the alleged presence of certain groups in the Bosnian theatre and confirm their involvement and role; information relating to certain gratuitous comments made with respect to Canada's allies or NATO's allies; information relating to the source of highly sensitive intelligence information; information detailing the level of security clearance of certain individuals involved in the field.

(b)        Information relevant but need not be disclosed

26.               Other passages of the expurgated transcripts are relevant and go to establishing the organisational structure and chain of command of forces in Bosnia. I include in this category certain aspects of information relating to the operational and technical capacity of the warring factions and of others involved in the Bosnian theatre; information relating to the intelligence gathering capabilities and roles of countries and forces participating in the Bosnian theatre; information identifying partnerships in intelligence gathering, planning, and deployment. This information is logically probative to issues that may be raised at trial and certainly could assist the jury in putting the events leading up to the hostage taking and the event itself into the proper context. I am of the opinion, however, that there is sufficient information released to the applicant in the expurgated transcripts to inform the jury of the context in which the events leading up to the hostage taking and the hostage taking occurred; the relative position of the warring factions and others in the Bosnian theatre; the chain of command with respect to military forces in the theatre; and the conduct of the applicant during the hostage taking event.

27.               In assessing the expurgated testimony of the witnesses, I think it fair to say that much of the expurgated information deals with operationally sensitive material which would serve to corroborate testimony, given in other parts of the transcripts, which has been disclosed to the applicant. It is my view that the expurgated information would certainly bring a greater amount of detail and precision to information already disclosed. Key players and their roles in the chain of command in various forces would be detailed, operations would be known, intelligence gathering capabilities would become known. From such information, a person trained in intelligence operations could identify targets and sources and this could result in injury to Canada's national security interest for reasons already discussed. The expurgated information, although corroborative, would not, in my view, disclose any new information that would be helpful to the defence that is not already contained in the expurgated transcripts of the testimony of the two witnesses. It is my view that the testimony available to the applicant from the expurgated transcripts provides him with sufficient information, if found admissible by the trial judge, to fairly represent the evidence of the two witnesses which would otherwise be available to the defence. It is my view that, for the purposes of the defences intended to be raised at trial, the expurgated transcripts reflect fairly the nature and substance of the testimony of the two witnesses. I therefore conclude that the information which I include in this second category, although relevant, need not be disclosed.

(c)        Information relevant and required to be disclosed

28.               I have determined that certain passages from the transcripts are relevant and should be disclosed in the interest of the administration of justice and notwithstanding that there is a security interest at stake although relatively minimal. That interest, in my view, is outweighed by the applicant's right to a full and fair defence. I will identify those portions of the transcripts to be released later in these reasons.

29.               At the ex parte hearing, I heard evidence of the procedures required to obtain NATO consent to the release of any of the vetted information. In particular, I have reviewed the exhibit produced by the Attorney General and issued by NATO and entitled "Security arrangements for the release of NATO classified information to non-NATO nations and international organisations". Canada as a member of NATO is bound by these procedures. I am satisfied, given the time constraints that the Attorney General had to work within in this proceeding, that it was not possible to obtain the required consents within timely delays.

30.               I will in four instances order summaries of excerpts of the transcripts to be inserted in the expurgated transcripts and released to the applicant in lieu of these excerpts. These summaries, in my view, disclose additional information that may be useful to the defence without unduly compromising national interests. These summaries are attached to these reasons and marked Annex "A".

31.               In balancing the competing interests I have also determined with respect to certain passages from the transcripts, that the public interest in disclosure outweighs in importance the public interest in non-disclosure. These passages attached to these reasons and marked Annex "B" will therefore be authorized to be released.

32.               For the remainder of the expurgated information, I find that the public interest served by maintaining secrecy, given the injury likely to result if the information were disclosed, outweighs the public interest in disclosure. I arrive at this conclusion after consideration of the various factors described earlier in these reasons in weighing the competing interests. In conclusion, I am satisfied, for reasons previously discussed, that this expurgated information must not be disclosed.

33.               I am in agreement with the position of the Attorney General of Canada with regards to the expurgation of certain questions prepared by counsel for the defence. I am satisfied that in those instances where the question is expurgated, the length of the expurgated answers and proximity to the question would allow a person with expertise in intelligence gathering to draw inferences that could possibly be injurious to Canada's national interests. This potential for injury outweighs the need to have all of the prepared questions disclosed in sequence. I am able to confirm, however, for the benefit of the applicant that all of the questions prepared by his counsel were put to the witnesses.

Form of Disclosure

34.               Subsection 38.06(2) provides that I may authorize disclosure of information in the form and under the condition that are most likely to limit any injury to international relations or national defence or national security.

35.               In their testimony, the two witnesses wove innocuous information with information that cannot be publicly disclosed. There is no demarcation line easily separating what is authorized from what is not. Implementing a demarcation line, in the context of a criminal trial conducted before a jury, is clearly not practical if not impossible. The learned trial judge will not have had the benefit of reviewing all of the information to allow him to fully appreciate the potential impact of a disclosure of what may appear to be an innocuous piece of information. What may appear to be trivial information may in fact be the one missing piece in the jigsaw puzzle created by a hostile agency.

36.               I am satisfied that the only form of disclosure that will most likely limit any injury to national defence, national security or international relations is to order the two witnesses not to testify with respect to the information that I have reviewed and to permit the introduction into evidence of the expurgated version of the transcripts of their examination in the criminal trial of the applicant to be received by the learned trial judge as if the two witnesses had testified before him under oath.

37.               It goes without saying that my order will have no effect on normal evidentiary rules of admissibility to be applied by the trial judge nor will my appreciation of relevancy of the information be binding on the trial judge. Similarly, I make no comment on the weight, if any, to be given to all or part of the testimony, that is the task of the trial judge and the jury in the criminal trial.

38.               The applicant moved to have paragraph 6 of the protective order of Associate Chief Justice Lutfy dated November 15, 2002, modified. Paragraph 6 of the protective order provides as follows:

6.         The obligation not to disclose the defence information forever lapses if, and when, Witness "A" and Witness "B" respectively take the stand in the Superior Court of Justice trial of [the applicant] and testify.

39.               The applicant argues that the obligation not to disclose the defence information to anyone, including to the prosecution, should not ever lapse. After carefully considering the arguments of the parties, I have concluded that the obligation not to disclose the defence information will remain in force until the conclusion of the applicant's trial and the expiry of all applicable appeal periods. An order will issue modifying the protective order to this effect.

                                                                       ORDER

THIS COURT ORDERS that:

1.         The applicant's request for a blanket authorization to have the two witnesses testify without restriction at the trial of the applicant is denied.

2.         The two witnesses be prohibited from testifying at the trial of the applicant with respect to the evidence considered in this proceeding.

3.         The excerpts from the transcripts reproduced in Annex "B" attached to this order, together with the additional excerpts referred to in paragraph 8 of the Reasons for Order be authorized for disclosure.

4.         Pursuant to section 38.06, the expurgated version of the transcripts of the testimony of the two witnesses, including additional excerpts reproduced in Annex "B" and the information summarized in Annex "A" attached to this order are authorized for disclosure to be introduced in evidence at the applicant's criminal trial as if the two witnesses had testified under oath and in lieu of their viva voce testimony.

5.         The protective order issued by Lutfy, A.C.J. on November 15, 2002, be modified by substituting a new paragraph 6, reading as follows:

The obligation not to disclose the defence information will remain in force until the conclusion of the applicant's trial and the expiry of all applicable appeal periods.

6.         Pursuant to paragraph 38.02(2)(b) of the Act, the information contained in Annex "A" and Annex "B" attached to this order will be released to the respondent Attorney General of Canada on the date of the issuance of this order and shall be released to the applicant upon the expiry of the limitation periods for the appeal provided in sections 38.09 and 38.1 of the Act.

                                                                                                                        "Edmond P. Blanchard"              

                                                                                                                                                   Judge                     

                                                             FEDERAL COURT

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                          DES-3-02                     

STYLE OF CAUSE:                          NICHOLAS RIBIC

and

THE ATTORNEY GENERAL OF CANADA ET AL.

PLACE OF HEARING:                    OTTAWA, ONTARIO

DATE OF HEARING:                      DECEMBER 10, 11, 14, 16 and 17, 2002

REASONS FOR ORDER AND ORDER OF BLANCHARD J.

DATED:                                             JANUARY 9, 2003

APPEARANCES:

D'ARCY DEPOE                               REPRESENTING THE APPLICANT

and

HEATHER PERKINS-McVEY

ALAIN PRÉFONTAINE                    REPRESENTING THE AG OF CANADA

SOLICITORS OF RECORD:

BERESH DEPOE                                FOR NICHOLAS RIBIC

CUNNINGHAM

EDMONTON, ALBERTA

and

HEATHER PERKINS-McVEY

OTTAWA, ONTARIO                                                            

MORRIS ROSENBERG                     FOR THE AG OF CANADA

DEPUTY ATTORNEY

GENERAL OF CANADA