Date: 20070205
Docket: T-739-06
Citation: 2007 FC 128
BETWEEN:
TORONTO STAR NEWSPAPERS
LIMITED
and KASSIM MOHAMED
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT
OF CANADA
Defendant
REASONS FOR ORDER
LUTFY
C.J.
[1] For some
twenty-five years now, hearings in the Federal Court have been held in private
for the determination of whether national security information should be
disclosed, despite the objection of the Attorney General of Canada. The
requirement for closed hearings applies even for those segments of the
litigation where all the parties are present and no secret information is being
reviewed by the Court. This proceeding is the first constitutional challenge to
the mandatory statutory provisions requiring this degree of secrecy.
[2] Where the court sessions and the court
records are available to all parties in the litigation, I have concluded that
the confidentiality requirements infringe unjustifiably on the open court
principle. The appropriate constitutional remedy is to read down the impugned
statutory provisions to apply only to court sessions and court records when
secret information is in play. The effect of this decision is that court
sessions at which all of the parties are present and court records available to
all of the parties are presumptively open to the public.
Factual
Background
[3] In September
2004, Kassim Mohamed sued the Attorney General of Canada for damages and other
relief, alleging that both the Royal Canadian Mounted Police and the Canadian
Security Intelligence Service disclosed his personal information to foreign
security agencies. In Mr. Mohamed’s view, this disclosure resulted in his
two-week detention by Egyptian authorities. His action is pending in the Federal
Court under court file no. T-1666-04 (the civil action).
[4] During the
discovery process in the civil action, the Attorney General of Canada was
notified that “potentially injurious information” or “sensitive information” as
defined in section 38 of the Canada Evidence Act, R.S.1985, c. C-5 (secret
information) was about to be disclosed. Secret information, in general terms,
is information relating to international relations, national defence or
national security.
[5] On January 5,
2006, after receiving this notification, the Attorney General of Canada
launched a designated proceeding pursuant to sections 38 and following of the
Act (sometimes referred to collectively as “section 38”) to have the Federal
Court determine whether the secret information should be disclosed: Canada
(Attorney General of Canada) v. Mohamed, court file no. DES-1-06 (the
designated proceeding).
[6] On January
25, 2006, the Attorney General of Canada authorized counsel for Mr. Mohamed to
disclose the existence of the designated proceeding. As early as August 2005,
the Federal Court’s publicly accessible recorded entries of the civil action
disclosed that the parties intended to seek relief under section 38. In effect,
the Attorney General’s authorization merely confirmed what was publicly
available four months earlier.
[7] Without the
Attorney General’s authorization, which was made under section 38.03, the
disclosure of the fact that an application had been made to the Federal Court
would have been prohibited by paragraph 38.02(1)(c).
[8] As the result
of this authorization, the Toronto Star Newspapers Limited (Toronto Star),
which had been monitoring and reporting the civil action, was informed of the
designated proceeding.
[9] On February
23, 2006, the Toronto Star advised the Federal Court of its intention to challenge
the confidentiality provisions to which section 38 designated proceedings are
subject. If the constitutional challenge were made within the designated
proceeding, section 38 may have required the argument to be heard in private.
Each of the parties and the Court preferred that the issue be adjudicated in
open court.
[10] On April 19,
2006, counsel for the three parties agreed that the Toronto Star’s
constitutional challenge would be adjudicated as a question of law pursuant to
paragraph 17(3)(b) of the Federal Courts Act, R.S. 1985, c. F-7.
[11] On April 26,
2006, this proceeding was launched. The consent of the parties to proceed in
this fashion removed the Toronto Star’s intervention from the secrecy of
section 38 proceedings for adjudication in a public forum. The Court is
grateful for the ingenuity and the cooperation of counsel in having this
constitutional challenge resolved in open court.
[12] The first day
of the public hearings took place on September 25, 2006. The second day, on
October 18, 2006, focused on remedies.
The Impugned
Provisions of Section 38
[13] The
plaintiffs, the Toronto Star and Mr. Mohamed, challenge the constitutionality
of three provisions of the Canada Evidence Act (the impugned provisions).
[14] First, the
plaintiffs challenge subsection 38.11(1), which requires that section 38
application hearings be heard in private: “A hearing under subsection
38.04(5)…shall be heard in private…” (« Les audiences prévues au paragraphe
38.04(5)…sont tenues à huis clos… »).
[15] Second, the
plaintiffs also impugn the constitutionality of two related provisions.
[16] Subsection
38.04(4) requires that confidentiality be maintained in respect of all
applications made pursuant to section 38: “An application under this section
is confidential. …” (« Toute
demande présentée en application du présent article est confidentielle.
… »).
[17] Similarly, subsection 38.12(2) requires that confidentiality
be maintained in respect of all court records related to a section 38
proceeding: “The court records relating to the hearing, appeal or review are
confidential. …” (« Le dossier ayant trait à l’audience, à l’appel ou à
l’examen est confidentiel. … »).
[18] The combined effect of subsections 38.04(4) and 38.12(2) is
to deny the Toronto Star access to the section 38 application and all court
records associated with the designated proceeding.
[19] This proceeding has focused on the application and the
hearing in the Federal Court. One would expect that the outcome of the
constitutional challenge here would be the same for “appeals” in the Federal
Court of Appeal and the Supreme Court of Canada, under sections 38.09 and 38.1
respectively, and for “reviews” under section 38.131. However, the parties’ agreed statement of facts, their memoranda of law and their
oral submissions focused only on applications and hearings in the Federal
Court. In the absence of an evidentiary record for proceedings in the appellate
courts, this decision will be limited to the Federal Court.
[20] The impugned provisions as well as other relevant provisions
of section 38 of the Canada Evidence Act are set out in full in Schedule
A of these reasons. The plaintiffs are of the view that other provisions of
section 38 may be unconstitutional. However, this proceeding is limited to the three
impugned provisions.
[21] In an earlier decision, I noted the difficulties presented
by the scope of paragraph 38.02(1)(c), which prohibits disclosing the existence
of a section 38 application: Ottawa Citizen Group v. Canada
(Attorney General of Canada), 2004 FC 1052 at paragraphs 35-40. I
acknowledged the possibility of an exceptional case where the disclosure of the
existence of a section 38 application may cause injury to legitimate government
interests or perhaps even sensitive private interests. However, I added that
the absence of judicial discretion in paragraph 38.02(1)(c) was, in my view,
problematic. In reiterating my concern, I refer to paragraphs 38 and 40 of the
decision:
There may be an exceptional case where
the secrecy envisaged in section 38.02 may be warranted. In the more usual
situation, however, where secret information is in issue, the necessity of a
section 38 proceeding is made known publicly before the person presiding over
the tribunal or court hearing. The Federal Court is required by section 38 to
keep secret a fact which has been referred publicly in the court or tribunal
from which the proceeding emanates. It is unlikely that Parliament could have
intended that the drafting of section 38 would result in such a consequence.
[ … ]
It
is unusual that a party to the litigation should be the sole arbiter to
authorize the disclosure of information which is or should be public. A court
should be seen as having reasonable control over its proceedings in the
situation I have just described.
[22] The decision in this proceeding is premised on the fact that
the existence of the designated proceeding has been made public. Until the
constitutionality of the paragraph 38.02(1)(c) has been challenged and
determined, these reasons are intended to apply only to those situations where
knowledge of the existence of the section 38 proceeding has been disclosed to
the public.
The Issues
[23] As set out in
the parties’ agreed statement of facts, this proceeding raises the following
constitutional questions (at paragraph 22):
1.
Does s.
38.04(4) of the Canada Evidence Act constitute an infringement of the
Toronto Star’s rights as guaranteed by s. 2(b) of the Canadian Charter of
Rights and Freedoms (“Charter”)? If so, is the infringement
justified under s. 1 of the Charter?
2.
Does the
portion of s. 38.11(1) of the Canada Evidence Act which states that “a
hearing under subsection 38.04(5) or an appeal or review of an order made under
any of subsections 38.06(1) to (3) shall be heard in private” constitute an
infringement of the Toronto Star’s rights as guaranteed by s. 2(b) of the Charter.
If so, is the infringement justified under s. 1 of the Charter?
3.
Does the
first sentence of s. 38.12(2) of the Canada Evidence Act constitute an
infringement of the Toronto Star’s rights as guaranteed by s. 2(b) of the Charter?
If so, is the infringement justified under s. 1 of the Charter?
[24] The Attorney
General of Canada agrees with
the plaintiffs that the impugned provisions violate the open court principle, a
core democratic value inextricably linked to the fundamental freedoms of
expression and of the media protected under section 2(b) of the Canadian
Charter of Rights and Freedoms.
[25] Accordingly,
the issues to be decided in this proceeding include:
▪ Are
the impugned provisions saved under section 1 of the Charter?
▪ If
not, what is the appropriate constitutional remedy?
[26] Put
differently and in general terms, what is the justification for requiring
closed hearings and maintaining the confidentiality of court documents where no
secret information is disclosed? A review of the Federal Court’s experience
with section 38 may be useful.
[27] An
earlier version of section 38, which had been part of the Canada Evidence
Act since 1982, also required that applications be heard in private. It is not
apparent that this requirement was always respected where all parties were
present and no secret information was being discussed: Mulroney v. Canada (Attorney
General),
[1997] F.C.J. No. 1 (QL) (T.D.) at paragraph 12; Moumdjian v. Canada (Security
Intelligence Review Committee), [1995] F.C.J. No. 619 (QL) (T.D.) at
paragraph 5.
[28] Section 38
was substantially amended in the Anti-Terrorism Act, S.C. 2001, c. 41.
Schedule B to these reasons lists the section 38 proceedings which have been publicly
disclosed under the new provisions. Each has been case managed.
Proceedings
under section 38 since the 2001 amendments
[29] A section 38
application is to be heard by the Chief Justice of the Federal Court or a judge
of that Court designated by the Chief Justice. This provision has existed since
1982.
[30] All hearings
in a section 38 proceeding are closed to the public: subsection 38.11(1). Case management
conferences are also conducted in private.
[31] The exclusion of the public from all sessions of a section
38 proceeding is consistent with the secrecy envisaged by paragraph
38.02(1)(c), which prohibits the disclosure of “… the fact that an application
is made to the Federal Court under subsection 38.04 …” (« … le fait qu'une demande a été présentée à la Cour fédérale
au titre de l'article 38.04 … »).
[32] There are always two types of hearings in a section 38
proceeding: sessions at which all of the parties are present but which are
nonetheless closed to the public (private sessions) and sessions which take
place in the absence of one or more of the parties (ex parte sessions).
[33] There is no secret information disclosed during the private
sessions. The records available at the private sessions include the notice of
application, the affidavits and the memoranda of law exchanged between the
parties. None of these documents contains secret information. However, the combined
effect of subsections 38.04(4) and 38.12(2) is to prevent the public from
accessing and publicizing the contents of these documents.
[34] Ex parte representations are available as of right to the Attorney
General of Canada and with leave of the presiding judge to every other party: subsection
38.11(2). The constitutionality of the requirement that these ex parte
sessions are closed to the public has not been challenged in this proceeding.
[35] In every section 38 application, the Attorney General of
Canada will make representations to the Court to confirm the prohibition of
disclosure of the secret information in issue. Usually, the Attorney General of
Canada will be the only party before the Court when these representations are
made. However, if another party to the proceeding has possession of the same
secret information in issue, it is possible for that party to be present when
the ex parte submissions are made by the Attorney General of Canada.
[36] The procedures followed in a typical section 38 proceeding
are set out in some detail in the parties’ agreed statement of facts, the
relevant portions of which should be readily available on the public record:
5. The [Attorney
General (A.G.)] advises that the procedure that is used in s. 38.04 Canada
Evidence Act applications follows a number of customary steps, as follows.
6. First,
following the issuance of a notice of application pursuant to s. 38.04, the
A.G. files a motion for directions pursuant to paragraph 38.04(5)(a) of the Canada
Evidence Act. In his motion material, the A.G. identifies all parties or
witnesses whose interests he believes may be affected by the prohibition of
disclosure of information, and may suggest which persons should be formally
named as responding parties to the application. The A.G. requests that this
portion of the motion for directions be adjudicated in writing.
7. After
reading the A.G.’s motion material, the Federal Court will, pursuant to s.
38.04(5)(c) of the Canada Evidence Act, designate the responding parties
to the application and order the A.G. to provide notice of the application to
these persons by effecting service of the notice of application and motion for
directions upon them.
8. The
Federal Court will then convene a case conference with the parties to the
application (i.e., the A.G. and the responding parties) to discuss the
remaining issues raised by the A.G.’s motion for directions, including (1)
whether it is necessary to hold a hearing with respect to the matter; (2)
whether any other persons should be provided with notice of the hearing of the
matter; and (3) whether the application should be specially managed with a
formal schedule for the remaining procedural steps. These case conferences are
confidential and are held in camera. The public is denied access to these case
conferences and, generally speaking, only the parties to the application, their
counsel, the presiding judge and designated Court staff are present.
9. Following
adjudication of the motion for directions, a formal schedule is established to
prepare the s. 38.04 Canada Evidence Act application for hearing. Like
ordinary applications before the Federal Court, these schedules contemplate an
exchange of affidavit evidence, cross-examinations on affidavits, the
preparation of application records (including memoranda of fact and law) and an
oral hearing before a designated applications judge. Unlike ordinary
applications before the Federal Court, these schedules contemplate that
portions of the affidavit evidence, application records and the oral hearings
before a designated applications judge will be “ex parte” (i.e., only
seen and heard by the A.G. and the Court), while others will be “private”
(i.e., seen and heard by the parties and the Court, but not available to the
public). Indeed, a typical s. 38.04 Canada Evidence Act application will
have the following steps:
(a) the
A.G.’s “private” affidavits are served on the responding party and filed with
the Court;
(b) the
responding party’s “private” affidavits are served on the A.G. and filed with
the Court;
(c) the A.G.’s “ex
parte” affidavits are filed with the Court;
(d) cross-examinations
on the parties’ “private” affidavits take place out of court;
(e) the A.G.’s
“private” application record is served on the responding party and filed with
the Court;
(f) the A.G.’s “ex
parte” application record is filed with the Court;
(g) the responding
party’s “private” application record is filed with the Court; and
(h) a hearing is
convened at which there are both “private” sessions (at which all the parties
are present but the public is excluded) and “ex parte” sessions (at
which only the A.G. is present).
10. “Private” affidavits
are affidavits prepared by a party to the application that are filed and served
on the other parties and to which reference can be made at the portions of the
hearings at which all parties are present (i.e., the “private” Court sessions).
Such affidavits are, however, confidential by virtue of s. 38.12(2) and cannot
be disclosed to the general public.
11. The A.G.’s position
is that the “private” affidavits produced by him for the purposes of a s. 38.04
Canada Evidence Act application attempt to set out, in general terms,
the factual and principled justification for protecting the information in
issue from public disclosure, that is to say why the disclosure of the
information would be injurious to international relations, national defence or
national security. The A.G. advises that these “private” affidavits do not
detail the information in issue (i.e., the information covered by the Notice),
nor do they contain other specific facts that would themselves constitute
“sensitive information” or “potentially injurious information”. The A.G.’s
stated purpose for filing and serving such “private” affidavits is to provide
the responding parties seeking disclosure of the information in issue with as
much factual material as possible so that they may understand why the A.G. is
attempting to protect the information without compromising the information in
issue or other sensitive/potentially injurious information regarding the need
to protect the information in issue from disclosure.
12. “Ex parte”
affidavits are affidavits that are filed by the A.G. and which are not served
on the responding party. They are read only by the presiding judge and are only
referred to at the ex parte portions of the hearings where the A.G. is
present and the responding party is excluded (i.e., the “ex parte” Court
sessions) pursuant to s. 38.11(2) of the Canada Evidence Act.
13. The A.G.’s position
is that the “ex parte” affidavits produced for the purposes of a s.
38.04 Canada Evidence Act application attempt to set out, in specific
terms, the factual justification for protecting the information in issue from
public disclosure, that is to say why the disclosure of the information would
be injurious to international relations, national defence or national security.
These affidavits also contain the information in issue that is covered by the
Notice.
14. “Private” application
records are filed and served on the other parties and reference can be made to
these records at the “private” Court sessions. “Ex parte” application
records filed by the A.G. are not served on the other parties, are read only by
the presiding judge and are only referred to at the “ex parte” Court
sessions pursuant to s. 38.11(2) of the Canada Evidence Act.
15. At the “private”
Court sessions at which all parties to the application are present, argument is
tendered with respect to, inter alia, (1) the potential relevance of the
information in issue (if the relevance is not conceded by the A.G.), (2)
whether disclosure of the information would be injurious to international
relations, national defence or national security and (3) whether the public
interest in disclosure outweighs in importance the public interest in
non-disclosure. On the question of injury, such argument is presented in
generalities by the A.G. because he does not wish to risk disclosure of the
information in issue or risk compromising other sensitive/potentially injurious
information.
16. At the “ex parte”
Court sessions at which only the A.G. is present, the A.G. provides argument by
reference to the “ex parte” affidavits with respect to whether
disclosure of the information in issue would be injurious to international
relations, national defence or national security. Counsel for the A.G. will be
accompanied by the affiants who have sworn such affidavits so that they may be
questioned by the presiding designated judge.
[37] The agreed statement of facts does not deal with the right
of the non-government party to seek leave to make ex parte representations.
In the Court’s experience to date, when ex parte representations are
made by a party other than the Attorney General of Canada, only that party is
present before the presiding judge. This may occur where the underlying
proceeding is a criminal prosecution. Specifically, the accused may wish to
make representations to the section 38 judge concerning the importance of
disclosing the secret information to assist in defending the criminal charge. In
such circumstances, the accused will prefer to make these submissions without
disclosing to any other party the substance or detail of the defence in the
criminal proceeding.
[38] In addition, concerning paragraphs 6 and 7 of the agreed
statement of facts, the order designating the respondents to the section 38
proceeding will often issue only after the motion for directions has been
served on the potential interested parties, usually at the Court’s request. This
will occur particularly where these parties are aware that the Attorney General
of Canada is in the process of filing the section 38 application. Paragraph
38.04(5)(a) requires the presiding judge to hear the representations of the
Attorney General of Canada. There is no stipulation, however, that the
identification of the interested parties must be done on an ex parte
basis.
Analysis
A. The
Constitutionality of the Impugned Provisions
[39] As often repeated now by the Supreme Court of Canada, the
open court principle is a cornerstone of our democracy enshrined in section
2(b) of the Charter: Toronto Star Newspapers v. Ontario, [2005]
S.C.J. No. 41 at paragraph 1; Vancouver Sun (Re), [2004] 2 S.C.R. 332 at
paragraph 23; Ruby v. Canada (Solicitor General of Canada), [2002] 4
S.C.R. 3 at paragraph 53; Canadian Broadcasting Corporation v. New Brunswick
(Attorney General), [1996] 3 S.C.R. 480 at paragraph 23; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326
at 1339-40; and Attorney General of Nova Scotia v. Macintyre, [1982] 1
S.C.R. 175 at 187.
[40] All parties agree that the impugned provisions of section 38
infringe section 2(b) of the Charter. However, the defendant (sometimes
referred to in these reasons as the Attorney General of Canada) argues that
these infringements constitute reasonable limits on the open court principle and
are demonstrably justifiable in a free and democratic society.
[41] The defendant bears the onus of establishing that the
impugned provisions are saved by section 1 of the Charter in keeping
with the justificatory test established in R. v. Oakes,
[1986] 1 S.C.R. 103. In this proceeding, no section 1 affidavit evidence was
filed.
[42] The plaintiffs concede that preventing the inadvertent
disclosure of the secret information is a sufficiently pressing and substantial
legislative objective as to satisfy the first branch of the Oakes test.
[43] Counsel for the Attorney General of Canada advanced the view
that subsection 38.11(1) is saved by other provisions of section 38. More
specifically, in his written submissions, counsel argued that subsection 38.04(5)
confers upon the Federal Court the discretion to name the Toronto Star as a
respondent to the application and the possibility of granting to the Toronto
Star the same access to the Court records as it grants to Mr. Mohamed. Moreover,
according to this view, the designated judge could order the Attorney General
of Canada to notify the Toronto Star and grant to the Toronto Star the
opportunity to make representations. With respect, this submission cannot be
correct.
[44] Pursuant to paragraph
38.04(5)(a), the judge shall hear the representations of the Attorney General
of Canada “concerning the identity of all parties or witnesses whose interests
may be affected by either the prohibition of disclosure or the conditions
to which disclosure is subject…” (emphasis added). Any such party or witness
would then be designated as a respondent: paragraphs 6 and 7 of the agreed
statement of facts.
[45] The same statutory
provision also mandates the judge to hear the submissions of the Attorney
General of Canada “concerning the persons who should be given notice of any
hearing of the matter”.
[46] Under paragraph
38.04(5)(c), the judge then determines who should be given notice of the
hearing. This will usually be done on the basis of submissions from the
Attorney General of Canada and any other party who has been identified as
having an apparent legal interest. This paragraph also authorizes the judge to
order the Attorney General of Canada to notify such persons and determine the
content and form of the notice.
[47] In my view, neither of
these provisions allows the judge to designate the Toronto Star or any other
member of the media as a respondent or a person to be given notice of the
hearing.
[48] As early as February 7,
2006, the parties in the designated proceeding and this Court were made aware
of the Toronto Star’s intention to challenge the constitutionality of those
provisions which prohibited the media from accessing the private sessions. No
one suggested during the designated proceeding that the Toronto Star could be named
as a respondent or provided access to the private sessions through the
notification process.
[49] In any event, I do not
understand the Toronto Star to be seeking the status of respondent or the right
to file affidavits or memoranda of law. The Toronto Star is simply seeking to
enforce the open court principle and to obtain access to the private sessions
as a member of the media.
[50] The media’s concern in
keeping the public informed about section 38 proceedings is not encompassed within
the “interests” protected under subsection 38.04(5). Where an entity such as
the Toronto Star wishes to exercise its “interests”, in the legal sense of this
term, it may seek to cause the disclosure of the information by initiating an
application under paragraph 38.04(2)(c): for example,
Ottawa Citizen Group Inc. v. Canada (Attorney
General of Canada), 2004 FC 1052 and 2006 FC 1552.
[51] In addition, the
Attorney General of Canada did not suggest a principled basis upon which the
Court would be entitled to grant respondent status or access rights to the
Toronto Star but not to the media at large. Again, I do not understand the
defendant to be proposing that all members of the media be designated as
respondents.
[52] The position of the
Attorney General of Canada was more nuanced during oral submissions. There,
counsel focused less on characterizing the role of the Toronto Star as a
respondent. The suggestion was that the Court had the discretion under
paragraph 38.04(5)(c) to order that the Toronto Star be given notice of the
section 38 hearing and granted access to the proceeding, subject to a
publication ban until the disposition of the matter.
[53] The construction of
paragraph 38.04(5)(c) advanced by the Attorney General of Canada functions as a
minimal impairment argument. In effect, counsel for the government argues that
the impugned provisions trench justifiably on the open court principle. In his
view, paragraph 38.04(5)(c) may be interpreted as conferring upon the Court the
discretion to allow the Toronto Star to access the private sessions and records
subject to a publication ban lasting until a final order, disposing of the
application, is rendered pursuant to section 38.06.
[54] The interpretation proffered
by the Attorney General of Canada does not give full effect to the open court
principle. Public access to judicial proceedings cannot depend on fortuitous
circumstances which lead one or more members of the media to seek access under
paragraph 38.04(5)(c). Nor can open courts depend on one of the parties to the
litigation making submissions to the Court that the media be provided access.
[55] Counsel for the Attorney General of Canada acknowledged that
the discretion available to the Court according to his interpretation of
paragraph 38.04(5)(c) was not envisaged by Parliament. I agree. When read in
their entire context and according to their ordinary sense, keeping in mind the
objectives of section 38, the language of subparagraphs 38.04(5)(c)(i), (ii),
and (iii) cannot be interpreted as a mechanism to apply the open court
principle: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.
[56] In any event, and I do not decide the issue on this ground,
I am not convinced that the interpretation of the Attorney General of Canada is
consistent with the prohibition against disclosure of the existence of the file
in paragraph 38.02(1)(c).
[57] More importantly, even if this submission of the Attorney
General of Canada were accepted, granting access to one media outlet falls well
short of justifying the infringement of the open court principle and the
presumptive openness of judicial proceedings.
[58] In particular, counsel for the Attorney General of Canada
contended that media access to the private sessions would necessarily be
coupled with a publication ban. According to counsel, the Court has the
authority to allow the Toronto Star and other media to attend the private
sessions, but cannot authorize the publication of any news reports about the
hearing, at least until the matter has been completed.
[59] In Vancouver Sun (Re), [2004] 2 S.C.R. 332,
which also involved national security considerations, the Supreme Court of
Canada rejected a similar argument for granting media access to a hearing
subject to a publication ban (at paragraph 49):
[W]e would not endorse the suggestion
made by the Vancouver Sun that some members of its Editorial
Board be allowed to attend the hearings and have access to the materials but be
subject to an undertaking of confidentiality. It is difficult again to
understand how the public good is better served by the qualified participation
of professionals who cannot discharge fully their publicly entrusted mandate.
[60] It bears repeating that there is no secret information
disclosed in private sessions and materials. The open court principle requires
media access and timely publication. Counsel has not identified a public
interest to be served by postponing publication of what occurs in private
sessions until the disposition of the section 38 hearing. To support his position
that publication should be postponed, counsel for the government relied upon the
suggestion in Vancouver Sun (Re) (at paragraph 58) that
the decision to publicly release sealed information should take place at the
end of the judicial investigative hearing in a criminal matter. However, this conclusion
was not intended for the circumstances of section 38 proceedings.
[61] In defending the constitutionality of the impugned
provisions, the Attorney General of Canada advances an interpretation of the
section 38 scheme that would entitle members of the media to be designated as
interested parties or provided access to the private sessions subject to a
publication ban. In the end, the best one can say about this position is that
“necessity is usually the fuel of ingenuity”, to take the phrase used by
counsel. In this case, however, the inventive construction put forward to save
the impugned provisions does not do sufficient justice to the open court
principle.
[62] In Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, the
Supreme Court of Canada considered the constitutionality of provisions similar
to those challenged in this proceeding.
[63] Ruby involved a narrow challenge to the constitutionality of
mandatory procedural requirements set out in paragraph 51(2)(a) and subsection
51(3) of the Privacy Act, R.S.C. 1985, c. P-21:
|
51. (2) An application referred to in subsection (1) or an
appeal brought in respect of such application shall
(a) be heard in camera; …
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51. (2) Les
recours visés au paragraphe (1) font, en premier ressort ou en appel, l’objet
d’une audition à huis clos; …
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(3) During the hearing of an application referred to in
subsection (1) …, the head of the government institution concerned shall,
on the request of the head of the institution, be given the opportunity to
make representations ex parte.
[Emphasis added]
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(3) Le
responsable de l’institution fédérale concernée a, au cours des
auditions en première instance ou en appel et sur demande, le droit de
présenter des arguments en l’absence d’une autre partie.
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[64] Section 51 of the Privacy Act establishes the
procedure governing the conduct of judicial review application hearings where a
government institution refuses an individual’s request for access to personal
information in order to protect government interests similar to those involved
in section 38 proceedings.
[65] Paragraph 51(2)(a) and subsection 51(3) require the
reviewing court to hold the application hearing in private and to accept ex
parte submissions at the request of the government institution refusing
disclosure.
[66] As in these proceedings, the question before the Supreme
Court of Canada was whether the impugned provisions trenched unjustifiably on
the open court principle.
[67] The Supreme Court affirmed the validity of the statutory
requirement that government submissions concerning secret information be
received ex parte and in private. In view of this decision, the
plaintiffs in this case, as noted earlier, did not challenge the
constitutionality of the analogous requirement in subsection 38.11(2).
[68] Writing for the unanimous Court, Justice Louise Arbour found
that paragraph 51(2)(a) failed the Oakes test at the minimal impairment
branch. In particular, Justice Arbour concluded that the mandatory requirement
to exclude the public from portions of the review hearing when there existed no
risk that national security information or foreign confidences could be
disclosed was overbroad: “[S]ection [51(2)(a)] is overbroad in closing the
court to the public even where no concern exists to justify such a departure
from the general principle of open courts (Ruby at paragraph 59,
emphasis added).
[69] Justice Arbour’s characterization of the overbroad scope of
paragraph 51(2)(a) of the Privacy Act applies with equal force to the
analogous procedural requirement in subsection 38.11(1), which prohibits public
access to the private sessions of section 38 proceedings.
[70] In my view, the impugned provisions do more than is
minimally required to safeguard the secret information and therefore trench
unduly on the open court principle. Accordingly, I conclude that these
provisions fail at the minimal impairment branch of the Oakes test and
cannot be saved under section 1 of the Charter.
[71] On the basis of the same principles enunciated in Ruby,
I find that subsection 38.11(1) is overbroad in closing the court to the public
even where no secret information is at risk to justify a departure from the
open court principle.
[72] Similarly, subsections 38.04(4) and 38.12(2) are overbroad
in subjecting all court records associated with the private sessions to
mandatory confidentiality requirements where no secret information is at risk
to justify a departure from the general principle of open courts. My view in
this regard is consistent with the acknowledgement by all parties that the
outcome concerning the constitutionality of all three impugned provisions
should be the same.
B. The
Appropriate Constitutional Remedy
[73] During the
hearing to canvass the parties’ views on remedies, the Attorney General of
Canada argued that, in the event this Court concluded the impugned provisions
constituted an unjustified infringement of the open court principle, the
appropriate remedy would be to strike down these provisions. This submission
varied the original suggestion by counsel for the government that reading down
was the appropriate remedial solution.
[74] In arguing
that the appropriate remedy is to strike down the impugned provisions, the
Attorney General of Canada purported to rely on the Supreme Court’s decision in
Ruby.
[75] First, the impugned provisions in Ruby were not
struck down. Justice Arbour relied on reading down as a constitutional remedy in
rendering section 51 of the Privacy Act compliant with section 2(b) of
the Charter.
[76] It had been the practice of counsel, on consent, to conduct Privacy
Act hearings in public where no secret information could be disclosed. The
Supreme Court disapproved of this practice. For Justice Arbour, it was not open
to the parties to bypass Parliament’s unambiguous language clearly intended to
exclude the public from section 51 hearings.
[77] I understand Justice Arbour to have relied on reading down
as the appropriate constitutional remedy to cure the overbroad scope of the
mandatory in camera hearing required by paragraph 51(2)(a). She accommodated
the constitutional imperative that private sessions, where no secret
information is disclosed, be open to the public by invoking the reading down
mechanism
(at paragraphs 58 and 60):
Unless the mandatory requirement is found
to be unconstitutional and the section is "read down" as a
constitutional remedy, it cannot otherwise be interpreted to bypass its
mandatory nature.
[ … ]
The
appropriate remedy is therefore to read down s. 51(2)(a) so that it
applies only to the ex parte submissions mandated by s. 51(3). A
reviewing court retains the discretion, pursuant to s. 46, to conduct the
remainder of the hearing or any portion thereof, either in public, or in
camera, or in camera and ex parte.
[Emphasis
added].
[78] Second,
contrary to what was argued by the Attorney General of Canada, the provisions
of section 38 provide for the flexibility found in section 46 of the Privacy
Act.
[79] In particular, subsection 38.12(1) confers a
broad discretion upon the presiding judge to make any order to
protect the confidentiality of the information to which the hearing relates. In
addition, subsection 38.04(4) confers an analogous discretion upon the Chief
Administrator of the Courts Administration Service to adopt
any appropriate measure to safeguard the confidentiality of section 38
applications.
[80] Subsections
38.04(4) and 38.12(1) reflect Parliament’s intent to afford the designated
judge the discretion to adopt any confidentiality measures required to safeguard
secret information. In the rare, indeed unlikely, event that the circumstances
surrounding a section 38 proceeding require that the public be prohibited from
accessing even the private sessions and related documents, the judge has the
discretionary authority, analogous to that provided for in section 46 of the Privacy
Act, capable of safeguarding the confidentiality of any information when
required.
[81] The
government argued that Rules 26, 29, 151 of the Federal Courts Rules
concerning the inspection of court files, in camera hearings, and
confidentiality orders provide the Court discretionary authority to protect
secret information. In my view, this discretionary authority is conferred upon
the Court by section 38 and I do not concede that recourse to the Federal
Courts Rules is necessary. If I am wrong, however, these Rules do afford
the Court a further flexibility to adopt any measures to prevent the
inappropriate disclosure of secret information.
[82] Put simply, the approach to reading down adopted in Ruby
is the appropriate manner in which to remedy the constitutional defects in the
impugned provisions of section 38.
[83] Concerning the mandatory exclusion of the public from the
private sessions, I find that the structure of subsections 38.11(1) and
38.11(2) mirrors that of paragraph 51(2)(a) and subsection 51(3) of the Privacy
Act. Accordingly, subsection 38.11(1) ought to be read down as a constitutional
remedy to apply only to the ex parte representations provided for in
subsection 38.11(2).
[84] As in Ruby, the effect of this decision will be that
private sessions, as defined in these reasons, are presumptively open to the
public. To repeat, in the exceptional event where the exclusion of the public may
be justified even when all parties are present, subsections 38.04(4) and
38.12(1) provide the Court with the discretionary authority to adopt such
measures as are warranted by the circumstances to protect the confidentiality
of secret information.
[85] The “rare, indeed unlikely, event” I have referred to
in paragraph 80 is to be understood in the context of the premise of this
decision, that the existence of the designated proceeding has been made public.
[86] The mandatory confidentiality requirements in subsections
38.04(4) and 38.12(2) should also be read down, as a constitutional remedy, to
apply only to the ex parte representations provided for in subsection
38.11(2). As a result of this decision, all court records accessible to the
non-government party are presumptively available to the public. Again,
subsections 38.04(4) and 38.12(2) provide the discretion, if ever necessary, to
maintain confidentiality with respect to any record available to all parties.
[87] The reading down I am adopting will exclude the public from
all ex parte representations, those made by the Attorney General of
Canada as of right and those made by a non-government party with leave of the
Court. This conclusion masks an outstanding legal issue not addressed by the
parties.
[88] The debate in this case centered on national security
considerations, not on the interests which might be asserted by a
non-government party during ex parte representations. The focus was on
sessions where all parties were present and on ex parte sessions granted
as of right to the Attorney General of Canada. There was no discussion of the constitutionality
of closed hearings to receive the ex parte representations of a
non-government party.
[89] In its written submissions, the Toronto Star acknowledged
that it was not seeking access to ex parte sessions on the basis of the decision
in Ruby. However, under subsection 38.11(2), the non-government party
may also seek to make ex parte representations. This is an additional
legal consideration which was not at issue in Ruby. This distinction was
not referred to in the agreed statement of facts, nor was it the subject of any
submissions in this proceeding.
[90] In the absence of both an evidentiary record and submissions
of counsel, I have chosen to leave the matter open and to preserve the status
quo concerning the mandatory exclusion of the public where the
non-government party is permitted to make ex parte representations. In
this decision, the impugned provisions will be read down so as to apply to all ex
parte representations envisaged in subsection 38.11(2).
Conclusion
[91] For the foregoing reasons, the constitutional questions
raised by this motion are answered as follows:
1. Do subsections 38.04(4), 38.11(1), and
38.12(2) of the Canada Evidence Act constitute infringements of the Toronto Star’s rights as guaranteed by
section 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes, as was conceded
by the defendant.
2. Are the infringements constituted by subsections
38.04(4), 38.11(1), and 38.12(2) Canada Evidence Act justified under
section 1 of the Canadian Charter of Rights and Freedoms?
Answer: No. The impugned provisions fail the Oakes test at
the minimum impairment branch.
The words in subsection 38.04(4), “An application under this section is confidential. …” («Toute demande présentée en application du présent article
est confidentielle. …»), are read down,
as a constitutional remedy, to apply only to the ex parte
representations provided for in subsection 38.11(2).
The words in subsection 38.11(1), “A hearing under
subsection 38.04(5) … shall be heard in private...” (« Les audiences prévues au paragraphe 38.04(5) … sont tenues
à huis clos…»), are read down, as a constitutional remedy, to
apply only to the ex parte representations provided for in subsection
38.11(2).
The words in subsection 38.12(2), “The court records relating to the hearing… are
confidential. …” (« Le dossier ayant
trait à l’audience… est confidential. …»),
are read down, as a constitutional remedy, to apply only to the ex parte
representations provided for in subsection 38.11(2).
[92] The
defendant shall pay to the plaintiff Toronto Star Newspapers Limited the costs
of this motion. There will be no order as to costs concerning the plaintiff
Kassim Mohamed.
“Allan Lutfy”
Schedule A: Excerpts from Section 38 of
the Canada Evidence Act
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International Relations and National Defence
and National Security
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Relations internationales et défense et
sécurité nationales
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…
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…
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38.01 (1) Every participant
who, in connection with a proceeding, is required to disclose, or expects to
disclose or cause the disclosure of, information that the participant
believes is sensitive information or potentially injurious information shall,
as soon as possible, notify the Attorney General of Canada in writing of the
possibility of the disclosure, and of the nature, date and place of the
proceeding.
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38.01 (1) Tout
participant qui, dans le cadre d’une instance, est tenu de divulguer ou
prévoit de divulguer ou de faire divulguer des renseignements dont il croit
qu’il s’agit de renseignements sensibles ou de renseignements potentiellement
préjudiciables est tenu d’aviser par écrit, dès que possible, le procureur
général du Canada de la possibilité de divulgation et de préciser dans l’avis
la nature, la date et le lieu de l’instance.
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(2) Every participant who
believes that sensitive information or potentially injurious information is
about to be disclosed, whether by the participant or another person, in the
course of a proceeding shall raise the matter with the person presiding at
the proceeding and notify the Attorney General of Canada in writing of the
matter as soon as possible, whether or not notice has been given under
subsection (1). In such circumstances, the person presiding at the proceeding
shall ensure that the information is not disclosed other than in accordance
with this Act.
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(2) Tout
participant qui croit que des renseignements sensibles ou des renseignements
potentiellement préjudiciables sont sur le point d’être divulgués par lui ou
par une autre personne au cours d’une instance est tenu de soulever la
question devant la personne qui préside l’instance et d’aviser par écrit le
procureur général du Canada de la question dès que possible, que ces
renseignements aient fait ou non l’objet de l’avis prévu au paragraphe (1).
Le cas échéant, la personne qui préside l’instance veille à ce que les
renseignements ne soient pas divulgués, sauf en conformité avec la présente
loi.
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(3) An official, other
than a participant, who believes that sensitive information or potentially
injurious information may be disclosed in connection with a proceeding may
notify the Attorney General of Canada in writing of the possibility of the
disclosure, and of the nature, date and place of the proceeding.
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(3) Le
fonctionnaire — à l’exclusion d’un participant — qui croit que peuvent être
divulgués dans le cadre d’une instance des renseignements sensibles ou des
renseignements potentiellement préjudiciables peut aviser par écrit le
procureur général du Canada de la possibilité de divulgation; le cas échéant,
l’avis précise la nature, la date et le lieu de l’instance.
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(4) An official, other
than a participant, who believes that sensitive information or potentially
injurious information is about to be disclosed in the course of a proceeding
may raise the matter with the person presiding at the proceeding. If the
official raises the matter, he or she shall notify the Attorney General of
Canada in writing of the matter as soon as possible, whether or not notice has
been given under subsection (3), and the person presiding at the proceeding
shall ensure that the information is not disclosed other than in accordance
with this Act. …
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(4) Le
fonctionnaire — à l’exclusion d’un participant — qui croit que des renseignements
sensibles ou des renseignements potentiellement préjudiciables sont sur le
point d’être divulgués au cours d’une instance peut soulever la question
devant la personne qui préside l’instance; le cas échéant, il est tenu
d’aviser par écrit le procureur général du Canada de la question dès que
possible, que ces renseignements aient fait ou non l’objet de l’avis prévu au
paragraphe (3) et la personne qui préside l’instance veille à ce que les
renseignements ne soient pas divulgués, sauf en conformité avec la présente
loi. …
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38.02 (1) Subject to subsection 38.01(6), no person shall disclose in
connection with a proceeding
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38.02 (1) Sous réserve du
paragraphe 38.01(6), nul ne peut divulguer, dans le cadre d’une instance :
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(a)
information about which notice is given under any of subsections 38.01(1) to
(4);
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a) les renseignements qui font l’objet d’un
avis donné au titre de l’un des paragraphes 38.01(1) à (4);
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(b) the
fact that notice is given to the Attorney General of Canada under any of subsections
38.01(1) to (4), or to the Attorney General of Canada and the Minister of
National Defence under subsection 38.01(5);
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b) le fait qu’un avis est donné au procureur
général du Canada au titre de l’un des paragraphes 38.01(1) à (4), ou à ce
dernier et au ministre de la Défense nationale au titre du paragraphe
38.01(5);
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(c) the
fact that an application is made to the Federal Court under section 38.04 or
that an appeal or review of an order made under any of subsections 38.06(1)
to (3) in connection with the application is instituted; or
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c) le fait qu'une demande a été présentée à la
Cour fédérale au titre de l'article 38.04, qu'il a été interjeté appel d'une
ordonnance rendue au titre de l'un des paragraphes 38.06(1) à (3)
relativement à une telle demande ou qu'une telle ordonnance a été renvoyée
pour examen;
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(d) the
fact that an agreement is entered into under section 38.031 or subsection
38.04(6). …
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d) le fait qu’un accord a été conclu au titre
de l’article 38.031 ou du paragraphe 38.04(6). …
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38.03 (1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers
appropriate, authorize the disclosure of all or part of the information and
facts the disclosure of which is prohibited under subsection 38.02(1).
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38.03 (1) Le procureur général
du Canada peut, à tout moment, autoriser la divulgation de tout ou partie des
renseignements ou des faits dont la divulgation est interdite par le
paragraphe 38.02(1) et assortir son autorisation des conditions qu’il estime
indiquées.
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…
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…
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(3) The Attorney General
of Canada shall, within 10 days
after the day on which he or she first receives a notice about information
under any of subsections 38.01(1) to (4), notify in writing every person who
provided notice under section 38.01 about that information of his or her
decision with respect to disclosure of the information.
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(3) Dans les
dix jours suivant la réception du premier avis donné au titre de l’un des
paragraphes 38.01(1) à (4) relativement à des renseignements donnés, le
procureur général du Canada notifie par écrit sa décision relative à la
divulgation de ces renseignements à toutes les personnes qui ont donné un tel
avis.
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38.031 (1) The Attorney General of Canada and a person who has
given notice under subsection 38.01(1) or (2) and is not required to disclose
information but wishes, in connection with a proceeding, to disclose any
facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice,
or to cause that disclosure, may, before the person applies to the Federal
Court under paragraph 38.04(2)(c), enter into an
agreement that permits the disclosure of part of the facts or information or
disclosure of the facts or information subject to conditions. …
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38.031 (1) Le
procureur général du Canada et la personne ayant donné l'avis prévu aux
paragraphes 38.01(1) ou (2) qui n'a pas l'obligation de divulguer des
renseignements dans le cadre d'une instance, mais veut divulguer ou faire
divulguer les renseignements qui ont fait l'objet de l'avis ou les faits
visés aux alinéas 38.02(1) b) à d), peuvent, avant que cette personne présente une
demande à la Cour fédérale au titre de l'alinéa 38.04(2) c),
conclure un accord prévoyant la divulgation d'une partie des renseignements
ou des faits ou leur divulgation assortie de conditions. …
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38.04 (2) If, with respect to
information about which notice was given under any of subsections 38.01(1) to
(4), the Attorney General of Canada does not provide notice of a decision in
accordance with subsection 38.03(3) or, other than by an agreement under
section 38.031, authorizes the disclosure of only part of the information or
disclosure subject to any conditions,
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38.04 (2)
Si, en ce qui concerne des renseignements à l'égard desquels il a reçu un
avis au titre de l'un des paragraphes 38.01(1) à (4), le procureur général du
Canada n'a pas notifié sa décision à l'auteur de l'avis en conformité avec le
paragraphe 38.03(3) ou, sauf par un accord conclu au titre de l'article 38.031,
il a autorisé la divulgation d'une partie des renseignements ou a assorti de
conditions son autorisation de divulgation :
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…
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…
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(c) a person who is
not required to disclose information in connection with a proceeding but who
wishes to disclose it or to cause its disclosure may apply to the Federal
Court for an order with respect to disclosure of the information. …
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c) la personne qui n'a pas l'obligation de divulguer des renseignements
dans le cadre d'une instance, mais qui veut en divulguer ou en faire
divulguer, peut demander à la Cour fédérale de rendre une ordonnance
concernant la divulgation des renseignements. …
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(4) An
application under this section is confidential. Subject to section 38.12, the
Chief Administrator of the Courts Administration Service may take any measure
that he or she considers appropriate to protect the confidentiality of the
application and the information to which it relates.
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(4) Toute demande présentée en application du présent article est
confidentielle. Sous réserve de l'article 38.12, l'administrateur en chef du
Service administratif des tribunaux peut prendre les mesures qu'il estime
indiquées en vue d'assurer la confidentialité de la demande et des
renseignements sur lesquels elle porte.
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(5) As soon as
the Federal Court is seized of an application under this section, the judge
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(5) Dès que la Cour fédérale est saisie d'une demande présentée au titre
du présent article, le juge :
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(a)
shall hear the representations of the Attorney General of Canada and,
in the case of a proceeding under Part III of the National Defence Act,
the Minister of National Defence, concerning the identity of all parties or
witnesses whose interests may be affected by either the prohibition of
disclosure or the conditions to which disclosure is subject, and concerning
the persons who should be given notice of any hearing of the matter;
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(a) entend les observations du procureur
général du Canada — et du ministre de la Défense nationale dans le cas d'une
instance engagée sous le régime de la partie III de la Loi sur la défense
nationale — sur l'identité des parties ou des témoins dont les intérêts
sont touchés par l'interdiction de divulgation ou les conditions dont
l'autorisation de divulgation est assortie et sur les personnes qui devraient
être avisées de la tenue d'une audience;
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(b)
shall decide whether it is necessary to hold any hearing of the matter;
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(b) décide s'il est nécessaire de tenir une audience;
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(c) if
he or she decides that a hearing should be held, shall
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(c) s'il estime qu'une audience est
nécessaire :
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(i) determine
who should be given notice of the hearing,
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(i) spécifie les personnes qui devraient en être avisées,
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(ii) order the
Attorney General of Canada to notify those persons, and
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(ii) ordonne au procureur général du Canada de les aviser,
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(iii) determine
the content and form of the notice; and
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(iii) détermine le contenu et les modalités de l'avis;
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(d) if he or she considers it appropriate in the circumstances,
may give any person the opportunity to make representations. …
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(d) s'il l'estime
indiqué en l'espèce, peut donner à quiconque la possibilité de présenter des
observations. …
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38.06 (1) Unless the judge concludes that the disclosure of the
information would be injurious to international relations or national defence
or national security, the judge may, by order, authorize the disclosure of
the information.
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38.06 (1) Le juge
peut rendre une ordonnance autorisant la divulgation des renseignements, sauf
s’il conclut qu’elle porterait préjudice aux relations internationales ou à
la défense ou à la sécurité nationales.
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(2) If the judge
concludes that the disclosure of the information would be injurious to
international relations or national defence or national security but that the
public interest in disclosure outweighs in importance the public interest in
non-disclosure, the judge may by order, after considering both the public
interest in disclosure and the form of and conditions to disclosure that are
most likely to limit any injury to international relations or national
defence or national security resulting from disclosure, authorize the
disclosure, subject to any conditions that the judge considers appropriate,
of all of the information, a part or summary of the information, or a written
admission of facts relating to the information.
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(2) Si le juge
conclut que la divulgation des renseignements porterait préjudice aux
relations internationales ou à la défense ou à la sécurité nationales, mais
que les raisons d’intérêt public qui justifient la divulgation l’emportent
sur les raisons d’intérêt public qui justifient la non-divulgation, il peut
par ordonnance, compte tenu des raisons d’intérêt public qui justifient la
divulgation ainsi que de la forme et des conditions de divulgation les plus
susceptibles de limiter le préjudice porté aux relations internationales ou à
la défense ou à la sécurité nationales, autoriser, sous réserve des
conditions qu’il estime indiquées, la divulgation de tout ou partie des renseignements,
d’un résumé de ceux-ci ou d’un aveu écrit des faits qui y sont liés.
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(3) If the judge does not
authorize disclosure under subsection (1) or (2), the judge shall, by order,
confirm the prohibition of disclosure. …
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(3) Dans le
cas où le juge n’autorise pas la divulgation au titre des paragraphes (1) ou
(2), il rend une ordonnance confirmant l’interdiction de divulgation. …
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38.09 (1) An order made under any of subsections 38.06(1) to (3)
may be appealed to the Federal Court of Appeal.
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38.09 (1) Il peut
être interjeté appel d’une ordonnance rendue en application de l’un des
paragraphes 38.06(1) à (3) devant la Cour d’appel fédérale.
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(2) An appeal shall be
brought within 10 days after the day on which the order is made or within any
further time that the Court considers appropriate in the circumstances.
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(2) Le délai
dans lequel l’appel peut être interjeté est de dix jours suivant la date de
l’ordonnance frappée d’appel, mais la Cour d’appel fédérale peut le proroger
si elle l’estime indiqué en l’espèce.
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38.1
Notwithstanding any other Act of
Parliament,
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38.1 Malgré toute autre loi fédérale :
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(a) an application for
leave to appeal to the Supreme Court of Canada from a judgment made on appeal
shall be made within 10 days after the day on which the judgment appealed
from is made or within any further time that the Supreme Court of Canada
considers appropriate in the circumstances; and
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a) le délai de demande d’autorisation d’en
appeler à la Cour suprême du Canada est de dix jours suivant le jugement
frappé d’appel, mais ce tribunal peut proroger le délai s’il l’estime indiqué
en l’espèce;
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(b) if leave to appeal is
granted, the appeal shall be brought in the manner set out in subsection
60(1) of the Supreme Court Act but within the time specified by the
Supreme Court of Canada.
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b) dans les cas où l’autorisation est
accordée, l’appel est interjeté conformément au paragraphe 60(1) de la Loi
sur la Cour suprême, mais le délai qui s’applique est celui qu’a fixé la
Cour suprême du Canada.
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38.11 (1) A hearing under subsection 38.04(5) or an
appeal or review of an order made under any of subsections 38.06(1) to (3)
shall be heard in private and, at the request of either the Attorney General
of Canada or, in the case of a proceeding under Part III of the National
Defence Act, the Minister of National Defence, shall be heard in the
National Capital Region, as described in the schedule to the National
Capital Act.
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38.11 (1) Les audiences prévues au paragraphe 38.04(5) et l’audition de
l’appel ou de l’examen d’une ordonnance rendue en application de l’un des
paragraphes 38.06(1) à (3) sont tenues à huis clos et, à la demande soit du
procureur général du Canada, soit du ministre de la Défense nationale dans le
cas des instances engagées sous le régime de la partie III de la Loi sur
la défense nationale, elles ont lieu dans la région de la capitale
nationale définie à l’annexe de la Loi sur la capitale nationale.
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(2) The judge conducting a hearing under
subsection 38.04(5) or the court hearing an appeal or review of an order made
under any of subsections 38.06(1) to (3) may give any person who makes
representations under paragraph 38.04(5)(d), and shall give the
Attorney General of Canada and, in the case of a proceeding under Part III of
the National Defence Act, the Minister of National Defence, the
opportunity to make representations ex parte.
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(2) Le juge saisi d’une
affaire au titre du paragraphe 38.04(5) ou le tribunal saisi de l’appel ou de
l’examen d’une ordonnance rendue en application de l’un des paragraphes
38.06(1) à (3) donne au procureur général du Canada — et au ministre de la
Défense nationale dans le cas d’une instance engagée sous le régime de la
partie III de la Loi sur la défense nationale — la possibilité de
présenter ses observations en l’absence d’autres parties. Il peut en faire de
même pour les personnes qu’il entend en application de l’alinéa 38.04(5)d).
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38.12 (1) The judge conducting a hearing under subsection
38.04(5) or the court hearing an appeal or review of an order made under any
of subsections 38.06(1) to (3) may make any order that the judge or the court
considers appropriate in the circumstances to protect the confidentiality of
the information to which the hearing, appeal or review relates.
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38.12 (1) Le juge saisi d’une affaire au titre du
paragraphe 38.04(5) ou le tribunal saisi de l’appel ou de l’examen d’une
ordonnance rendue en application de l’un des paragraphes 38.06(1) à (3) peut
rendre toute ordonnance qu’il estime indiquée en l’espèce en vue de protéger
la confidentialité des renseignements sur lesquels porte l’audience, l’appel
ou l’examen.
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(2) The court
records relating to the hearing, appeal or review are confidential. The judge
or the court may order that the records be sealed and kept in a location to
which the public has no access.
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(2) Le
dossier ayant trait à l’audience, à l’appel ou à l’examen est confidentiel.
Le juge ou le tribunal saisi peut ordonner qu’il soit placé sous scellé et
gardé dans un lieu interdit au public.
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38.13 (1) The
Attorney General of Canada may personally issue a certificate that prohibits
the disclosure of information in connection with a proceeding for the purpose
of protecting information obtained in confidence from, or in relation to, a
foreign entity as defined in subsection 2(1) of the Security of
Information Act or for the purpose of protecting national defence or
national security. …
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38.13
(1) Le procureur général du Canada peut délivrer personnellement un
certificat interdisant la divulgation de renseignements dans le cadre d’une
instance dans le but de protéger soit des renseignements obtenus à titre
confidentiel d’une entité étrangère — au sens du paragraphe 2(1) de la Loi
sur la protection de l’information — ou qui concernent une telle entité,
soit la défense ou la sécurité nationales. …
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38.131 (1) A party to the proceeding referred to in section 38.13
may apply to the Federal Court of Appeal for an order varying or cancelling a
certificate issued under that section on the grounds referred to in
subsection (8) or (9), as the case may be. …
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38.131 (1) Toute
partie à l’instance visée à l’article 38.13 peut demander à la Cour d’appel
fédérale de rendre une ordonnance modifiant ou annulant un certificat délivré
au titre de cet article pour les motifs mentionnés aux paragraphes (8) ou
(9), selon le cas. …
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Schedule B: List of Section 38
Applications Filed in Federal Court
Since
the coming into force of the Anti-Terrorism Act, S.C. 2001, c. 41 on December
24, 2001, fifteen (15) section 38 applications have been publicly disclosed. These
are:
§
Ribic v. Canada, court file DES-7-01: 2002 FCT 290.
This file, commenced on December 10, 2001,
was decided under section 38 as amended by the Anti-Terrorism Act.
§
Canada (Attorney General) v. Ribic, court file DES-1-02: 2002 FCT 839.
§
Canada (Attorney General) v. Ribic, court file DES-2-02: 2002 FCT
1044.
§
Ribic v. Canada (Attorney General), court file DES-3-02: 2003 FCT 10,
aff’d 2003 FCA 246.
§
Canada (Attorney General) v. Ribic, court file DES-5-02: 2003 FCT 43, aff’d
2003 FCA 246.
§
Canada (Attorney General) v. Kempo, court file DES-1-03:
notice of discontinuance filed on October 27, 2005.
§
Canada (Attorney General) v. Ouzghar, court file DES-4-03:
notice of discontinuance filed on July 20, 2005.
§
Canada (Attorney General) v. Brad Kempo, court file
DES-5-03: 2004 FC 1678.
§
Ottawa Citizen
Group Inc. v. Canada (Attorney General), court file DES-1-04: 2004 FC 1052.
§
Canadian
Broadcasting Corporation v.
Canada (Attorney General), court file DES-2-04: notice of
discontinuance filed on March 31, 2004.
§
Canada (Attorney General) v. Commission of Inquiry into
the Actions of Canadian Officials in Relation to Maher Arar, court file
DES-4-04: notice of discontinuance filed on April 4, 2004.
§
Ribic v. Canada, court file DES-1-05: adjourned sine
die on June 3, 2005.
§
Canada (Attorney General) v. Mohamed, court file
DES-1-06.
§
Canada (Attorney General) v. Khawaja,
court file DES-2-06.
§
Canada (Attorney General) v. Commission of Inquiry into the Actions
of Canadian Officials in Relation to Maher Arar, court file DES-4-06.
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