Date: 20080429
Docket: DES-3-07
Citation: 2008 FC
549
Ottawa, Ontario, April 29, 2008
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ABDULLAH
KHADR
Applicant
and
THE
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
INTRODUCTION:
[1]
The United States of America has requested the extradition
of Mr. Abdullah Khadr from Canada to face criminal charges in relation to acts
which he is alleged to have committed in Pakistan in support of attacks against coalition
forces in Afghanistan. In these proceedings, Mr.
Khadr seeks to have certain information in the possession of the Canadian
government disclosed to him to assist in his defence against the extradition
request. The Attorney General of Canada is opposed to the release of that
information on the ground that it’s disclosure would cause injury to Canada’s national security and
international relations.
[2]
This is an
application pursuant to paragraph 38.04 (2) (c) of the Canada Evidence Act,
R.S.C. 1985. c. C-5 (“the Act” or “CEA”). Notice under section 38.02 of the Act
has been served on the Attorney General by a participant in the extradition
case that disclosure of certain information could cause injury to the protected
interests. The Attorney General has reviewed the information and authorized disclosure
of some but not all of the information under section 38.03 of the Act. The
starting point in these proceedings is, therefore, that the statute prohibits release
of the undisclosed information unless it is authorized by the Court.
[3]
The applicant
seeks an Order pursuant to subsections 38.06 (1) or 38.06 (2) of the Act authorizing
disclosure of the information and an Order for his costs. The respondent requests
an Order confirming the Attorney General’s decisions, or, in the alternative,
that the undisclosed information be released only in the form of a summary and
subject to conditions.
[4]
Upon
considering the evidence and representations of the parties with the assistance
of an amicus curiae, the Court will exercise its discretion to authorize
disclosure of information relevant to the extradition proceedings in the form
of a summary and subject to conditions intended to minimize any risk of injury
to the protected interests. The summary will be released only to counsel for
the parties and its use restricted to the extradition proceedings.
[5]
The
Attorney General has been ordered to pay the costs of the participation of the amicus
curiae on this application. No additional order for costs will be made.
PROCEDURAL HISTORY:
[6]
Mr. Khadr,
a Canadian citizen, was arrested in Pakistan in mid-October, 2004 and detained by
Pakistani authorities until his release and repatriation to Canada on December 2, 2005. He was
arrested at Toronto on December 17, 2005 on a
provisional warrant issued by a Judge of the Ontario Superior Court of Justice
under the Extradition Act, 1999. c. 18. Mr. Khadr was ordered detained
following a bail hearing in that court on December 23, 2005 and has remained in
custody since then.
[7]
Extradition
proceedings were formally commenced by the provision of a Request for
Extradition dated February 9, 2006 from the US Attorney's office in Boston, Massachusetts, where the charges against him had been
filed, and by an Authorization to Proceed dated March 15, 2006, signed on
behalf of the Attorney General of Canada.
[8]
The allegations
against the applicant in the Record of the Case (ROC) and supplementary ROC's submitted
by the requesting state are, in essence, that he procured munitions and
explosive components to be used by Al Qaeda militants against US and coalition
forces in Afghanistan. The corresponding Canadian crimes
identified by the Attorney General in support of the request are terrorism,
weapons and explosives offenses contrary to several provisions of the Criminal
Code of Canada, R.S., 1985, c. C-46.
[9]
As set out
in the ROC and supplementary ROC’s, the case against Mr. Khadr rests primarily
on inculpatory statements taken from the applicant under caution by agents of the
Federal Bureau of Investigation (FBI) in July 2005 while he was detained in
Pakistan and in December 2005 at a hotel in Toronto shortly after his
repatriation. The US also seeks to rely upon a cautioned statement taken by Royal
Canadian Mounted Police (RCMP) officers following the applicant’s return to Canada. RCMP officers had also interviewed
Mr. Khadr in Pakistan in April 2005 but the US is not relying upon the statements
obtained at that time as part of its case. However, the notes taken by the
officers during the April 2005 interviews were filed in the applicant’s bail hearing
and form part of the record of this application.
[10]
In August
2006, the applicant filed a motion for disclosure and related relief in the
Ontario Superior Court of Justice. Among other things, the applicant requested
that the court conduct a voir dire to determine the admissibility of the
evidence against him and order that the Attorney General of Canada produce all
documents relevant to the voir dire. The applicant submitted that the
statements taken from him and proposed for use in the extradition proceedings must
be excluded as products of torture, cruel and inhumane treatment and illegal
detention in Pakistan. In the alternative, the
applicant submitted that the circumstances of his detention were such as to
render the evidence unreliable for the purpose of supporting his extradition
from Canada.
[11]
Counsel
for the Attorney General of Canada, acting on behalf of the requesting state, conceded
that based on Mr.Khadr’s affidavit evidence, there was an "air of
reality" to the contention that his allegations could be substantiated by
evidence in its possession if the request for production was satisfied: see United States of America v. Kwok 2001 SCC 18, [2001] S.C.J.
No.19 at paragraphs100 and 106; R. v. Larosa, 163 O.A.C. 108, [2002]
O.J. No.3219 (O.C.A.) at paragraph 78. They, therefore, voluntarily undertook
to disclose a large number of documents which were in the possession of the
Canadian Security Intelligence Service (CSIS), the RCMP and the Department of
Foreign Affairs and International Trade (DFAIT).
[12]
In
February, March and April 2007, Crown counsel issued four notices to the
Attorney General under subsection 38.01(1) of the CEA, that certain of the
documents which they proposed to disclose contained information of a sensitive
nature or information which could injure Canada’s international relations or national
security if released. As required by the statute, the Attorney General reviewed
the material and made decisions with respect to whether disclosure of the
information would be authorized or not authorized. In the result, extensive
redactions were made to the content of some of the documents disclosed to the
applicant. Subsequently, upon receiving consent to disclose from the FBI, the
originating agency, some of the redactions were removed or “lifted” and
additional information released in the collection of documents.
[13]
In a
decision rendered on July 24, 2007, the extradition judge, Justice Christopher
M. Speyer, ruled that no order for disclosure was required with respect to the
material in the possession of Canadian government departments or agencies as
those documents had already been disclosed. He characterized this production as
“voluminous” and noted that counsel for the Attorney General had agreed to
provide any further material that may come to their attention. Justice Speyer
declined to make any order for production against the requesting state. However,
he accepted that the applicant's claims of abusive treatment during his
detention in Pakistan were sufficient to provide
for a realistic possibility that the remedy sought - exclusion of the
inculpatory statements - could be achieved: United States of America v.
Khadr [2007] O.J. No.3140 (S.C.J.).
[14]
Justice
Speyer noted that it was beyond the scope of his authority to determine whether
the circumstances of the extradition proceeding required the production of
unredacted copies of the material disclosed by the Canadian authorities as that
jurisdiction is assigned to the Federal Court under section 38 of the CEA. On
July 26, 2007 he adjourned the extradition proceeding so that an application
could be brought under section 38. That application was filed in this Court on
August 21, 2007 and was then case-managed by the Chief Justice until a complete
record was submitted by the parties.
[15]
The
applicant filed affidavit evidence with extensive exhibits on September 20,
2007, including the content of the disclosure motion before the Ontario
Superior Court. The bulk of the documents at issue in these proceedings were
filed with the Court by the Attorney General in November, 2007, in both
redacted and unredacted form, together with affidavit evidence in opposition to
the application. These consisted of some 266 documents comprising approximately
1300 pages.
[16]
Counsel
for the applicant brought a motion for the appointment of amicus curiae
on November 15, 2007. I was assigned the matter at this time. There was some
initial delay in proceeding due to other matters requiring the involvement of
counsel. Written submissions were filed and oral argument with respect to the
motion was heard on December 20, 2007. In a decision released on January 15,
2008 I granted the motion and appointed Mr. Leonard Shore Q.C., of Ottawa as amicus to assist
the court by representing the interests of the applicant during the ex parte
hearings required by the statute: Abdullah Khadr v. The Attorney General of Canada 2008 FC 46, [2008] F.C.J.
No.47.
[17]
In
response to a fifth notice served upon the Attorney General by counsel engaged
in the extradition proceedings, the respondent filed supplementary ex parte
affidavits with an additional 36 documents on January 29, 2008. This material
was also served on the applicant in redacted form.
[18]
During
this process, counsel for the Attorney General identified additional sensitive
or potentially injurious information which was said to have been inadvertently
disclosed to the applicant. This information was initially contained in some
120 of the documents. That number was reduced on consent of the originator and through
decisions of the Attorney General to authorize disclosure. In the result, there
were 47 items of information in 41 documents, including several that were in
the initial collection, for which the Attorney General sought an Order
prohibiting further disclosure. For convenient reference, the pages of these
documents containing the inadvertently disclosed information were assembled in
one binder filed at a hearing on February 11, 2008. Redacted versions of these
pages were also provided to counsel for the applicant. Counsel for the
applicant continue to hold the original unredacted versions of this information
as it was provided by the Crown in the disclosure process, save for the item referred
to in the next paragraph which they destroyed when informed that it was
potentially injurious and had been unintentionally released.
[19]
The
document containing that item of information had already been given to a
reporter for The Globe and Mail newspaper when counsel were made aware
of its sensitivity. The information is set out in a portion of a sentence in an
October 2004 briefing note to the Commissioner of the RCMP. Upon being
contacted by counsel for the Attorney General, the newspaper withheld
publication of the information pending the outcome of these proceedings.
[20]
Closed and
public hearings were conducted on February 21-22, 2008 in this matter. The
private hearings were held for two purposes. The first was to receive
representations from both parties and from counsel for The Globe and Mail with
respect to the information which the Attorney General contends was
inadvertently released during the disclosure process and which the Attorney
General now seeks to protect through these proceedings.
[21]
Counsel for
the Attorney General was authorized to provide notice of the private hearings
to The Globe and Mail. A lawyer for the newspaper appeared at the
hearing on February 21st, filed a record in opposition to the Attorney
General’s request and made submissions concerning the information in the
October 2004 briefing note. Counsel for the newspaper did not participate in
the remainder of the hearings.
[22]
The second
purpose of the closed hearings was to provide the applicant with an opportunity
to assist the Court with submissions as to the kind of information that would
be useful to the defence in the extradition case. An ex parte hearing
for this purpose is contemplated by the CEA in section 38.11. Counsel for the
applicant, however, elected to have the respondent’s counsel remain during
these submissions on the understanding that any defence strategies or privileged
information revealed would not be disclosed to the lawyers acting on behalf of
the requesting state in the extradition case. While this was an exceptional
procedure, not expressly provided for in the statute, it greatly assisted the Court
during the subsequent ex parte hearings as the Court could candidly
discuss questions of relevance with counsel for the Attorney General and the amicus
without fear of disclosing information received in confidence from the
applicant’s lawyers.
[23]
At the
conclusion of the private hearings on February 22nd, the Court adjourned and
resumed in a public session to hear the submissions of the parties with respect
to the merits of the disclosure application in open court.
[24]
A series
of private ex parte hearings were conducted at the Court’s secure
facility in which witnesses from each of the departments and agencies in
possession of the information at issue were examined by counsel for the
Attorney General and cross-examined by the amicus curiae. Mr. Shore had
previously been given access to all of the ex parte affidavit evidence
filed by the Attorney General and was present for each of the private
hearings. The redacted information was reviewed in this process and evidence and
submissions received as to its relevance to the underlying extradition case and
whether injury to the protected national interests would result as asserted by
the Attorney General if it were to be disclosed.
[25]
Following
these hearings, at the request of the Court, counsel for the Attorney General
and the amicus curiae reviewed the redacted information and allegedly inadvertent
disclosures and prepared a list of the information which they, either jointly
or individually, believed to meet the threshold test of relevance. The Court
then heard further submissions in closed sessions from the Attorney General and
the amicus curiae with respect to issues arising from this
collection of information.
LEGAL FRAMEWORK:
[26]
The
appropriate test to apply in a proceeding under section 36.04 of the Act was
developed by the Federal Court and the Federal Court of Appeal in Canada
(Attorney General) v. Ribic, 2003 FCT 10, [2003] F.C.J. No. 1965, aff’d 2003
FCA 246, [2003] F.C.J. No. 1964 (Ribic); see also Canada (Attorney
General) v. Khawaja, 2007 FC 490, [2007] F.C.J. No. 622 (Khawaja I);
rev’d in part but not on the test in Canada (Attorney General) v. Khawaja,
2007 FCA 342, [2007] F.C.J. No. 1473: Canada (Attorney General) v. Canada
(Commission of Inquiry into the Actions of Canadian Officials in Relation to
Maher Arar) 2007 FC 766, [2007] F.C.J. No. 1081 (Arar).
[27]
A section
38.04 application is not a judicial review of the Attorney General’s decision
not to authorize disclosure. Instead, the designated judge must make a
determination as to whether the statutory ban on releasing the information
sought to be protected, as outlined in subsection 38.02(1), ought to be
confirmed or not. In coming to that decision, the judge must assess the
information in three steps.
[28]
First, the
judge must decide whether the information sought to be protected is relevant to
the underlying proceeding. That threshold, as determined by the Federal Court
of Appeal in Ribic, at paragraph 17, is a low one. In the criminal
context, this is determined through application of the Stinchcombe test
for disclosure: R. v. Stinchcombe, [1991] 3 S.C.R. 326, [1991] S.C.J.
No. 83. If the information at issue may not be reasonably useful to the
defence, it is not relevant and there is no need to go any further in assessing
it.
[29]
The
extradition process is not equivalent to a criminal trial: see Kindler v. Canada (Minister of Justice) [1991] 2 S.C.R. 779, [1991]
S.C.J. No. 63. As stated in Kindler at paragraph 160, “… it differs from
the criminal process in purpose and procedure and, most importantly, in the
factors which render it fair. Extradition procedure, unlike the criminal
procedure, is founded on concepts of reciprocity, comity and respect for
differences in other jurisdictions." However, the test of committal for
extradition is the same as that required to justify committal for trial or to
withdraw the case from a jury: see United States of America v. Ferras 2006
SCC 33, [2006] S.C.J. No.33 at paragraph 9. The extradition judge must assess
whether there is sufficient admissible evidence to reach a verdict of guilty: Ferras
at paragraph 46.
[30]
In both
the criminal trial context and in extradition proceedings which may lead to a
criminal trial in another jurisdiction, the person’s liberty and security
interests are at stake. I consider it appropriate, therefore, that the test of
relevance for disclosure of information in the context of an extradition
proceeding should be the same as that for a criminal trial, i.e., the Stinchcombe
test.
[31]
Where the designated
judge in a section 38 proceeding finds that the information is relevant, the
next step is a determination whether disclosure would be injurious to
international relations, national defence or national security, as outlined in
section 38.06 of the CEA. At this stage, the judge must give considerable
weight to the Attorney General’s submissions on the injury which might be
caused by disclosure, given the access that officeholder has to special
information and expertise.
[32]
However, a
mere assertion of injury is not sufficient to reach a conclusion that the
injury would in fact be caused by the disclosure. The party seeking the
prohibition on disclosure, normally the Attorney General, bears the onus of
establishing through evidence a factual basis to the allegations of probable
injury on a reasonableness standard.
[33]
To
illustrate the application of the reasonableness standard in the national
security context, Canadian courts have referred to comments in Home Secretary v. Rehman, [2001] H.L.J. No. 47, [2001] 3 WLR 877 (HL (E)). At
page 895 of Rehman, Lord Hoffman said that the Court may reject the
Executive's opinion when it was "one which no reasonable minister advising
the Crown could in the circumstances reasonably have held". This statement
was cited by the Supreme Court of Canada in describing a similar legislative
test in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at paragraph 33 and
by the Federal Court of Appeal in Ribic at paragraph 19.
[34]
It is
clear from the jurisprudence that the judge has the discretion to authorize disclosure
if the Attorney General fails to demonstrate injury. As stated by Chief Justice
John Richard of the Federal Court of Appeal in the context of a challenge to
the constitutionality of the legislative scheme, an “authorization to disclose
will issue if the judge is satisfied that no injury would result from public
disclosure”: Canada (Attorney General) v. Khawaja, 2007 FCA 388, [2007] F.C.J.
No. 1635 [Khawaja II] at paragraph 42.
[35]
Where the
Attorney General can show a reasonable basis for his or her assessment that the
disclosure of the information at issue would cause injury to international
relations, national defence or national security, the judge must then proceed
to the final step of the test. At this point, it must be determined whether
the public interest in disclosure is outweighed by the public interest in
non-disclosure. In assessing this balance, the threshold is neither the low
strict relevancy test of Stinchcombe nor the stringent “innocence at
stake” exception which applies to informer privilege.
[36]
The
factors to be considered in determining whether the public interest is best
served by disclosure or non-disclosure will vary from case to case, as has been
noted often in the Federal Court, including by Justice François Lemieux in the
civil case Canada (Attorney General) v. Kempo, 2004 FC 1678, [2004]
F.C.J. No. 2196. The designated judge is tasked in the third step of a section
38 application with the function of assessing those factors which he or she
deems necessary to find the delicate balance between competing public interests
of disclosure and non-disclosure.
[37]
Some of
the factors which may be assessed were outlined by Justice Marshall Rothstein,
then a member of the Federal Court, in Khan v. Canada (T.D.), [1996] 2
F.C. 316, [1996] F.C.J. No. 190 at paragraph 26. These factors, set out below,
were cited with approval by the Court of Appeal in Jose Pereira E Hijos,
S.A. v. Canada (Attorney General), 2002 FCA 470, [2002] F.C.J. No. 1658:
(a) The nature of the public interest
sought to be protected by confidentiality;
(b) Whether the evidence in question
will "probably establish a fact crucial to the defence";
(c) The seriousness of the charge or
issues involved;
(d) The admissibility of the documentation
and the usefulness of it;
(e) Whether the applicants
have established that there are no other reasonable ways of obtaining the
information;
(f) Whether the disclosures
sought amount to general discovery or a fishing expedition; (citations removed)
[38]
In a
different context, that of an application arising from a public inquiry, my
colleague Justice Simon Noël developed the following list of factors in Arar,
above, at paragraph 93:
(a) The extent of the injury;
(b)
The
relevancy of the redacted information to the procedure in which it would be
used, or the objectives of the body wanting to disclose the information;
(c)
Whether
the redacted information is already known to the public, and if so the manner
by which the information made its way into the public domain;
(d)
The
importance of the open court principle;
(e)
The
importance of the redacted information in the context of the underlying
proceeding;
(f)
Whether
there are higher interests at stake, such as human rights issues, the right to
make a full answer and defence in the criminal context, etc.;
(g)
Whether
the redacted information relates to the recommendations of the commission and
if so whether the information is important for comprehensive understanding of
the said recommendation.
[39]
While the
last of Justice Noël’s factors in Arar clearly does not apply in the
present case, the remainder together with those identified by Justice Rothstein,
varied as necessary, informed my consideration of how to balance the competing
interests in the present application.
Inadvertent Disclosures:
[40]
At
common-law, privileges attached to information can be found to have been waived
if the information is released by the holder to the opposing party. Inadvertent
disclosure does not necessarily constitute a waiver. Waiver will be established
when it is shown that the holder of the privilege knew of its existence and
demonstrated an intention to waive it. The Court has discretion to consider
whether the circumstances of disclosure amount to a waiver: Stephens v. Canada (Prime Minister), [1998] 4 F.C.89, [1998]
F.C.J. No. 794.
[41]
In Khawaja
I, at paragraphs 104 to 111, I considered what, if any, effect the
inadvertent disclosure of some of the information before the Court should have
in a section 38 case. I concluded that the release of information which the
Attorney General seeks to protect, not amounting to an informed and intentional
waiver, is not enough to justify disclosure. In light of the case-by-case
nature of the section 38 test and the importance of the interests at stake, the
appropriate approach is to proceed by way of the same three-step assessment as for
disclosure generally.
[42]
In Arar,
at paragraph 57, Justice Noël endorsed this approach but added that the
circumstances of the “inadvertent disclosure” are of essential importance in
determining whether the information can be protected by the Court.
Other “Public Interest”
Considerations:
[43]
The
public interest in disclosure in section 38.06 exceeds the public interest in
the fair trial rights of the individual concerned. It is broad enough to
encompass other interests such as those noted by Justice Noël in Arar,
above: human rights issues, the open court principle, freedom of the press and
the right of the public to receive information.
[44]
Freedom of
the press is engaged in this proceeding in light of the inadvertent disclosure
of one of the items of information to a newspaper. Freedom of expression
including freedom of the press and the public’s right to receive information
are core values protected by subsection 2 (b) of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, being Schedule
B to the Canada Act 1982 (U.K.) 1982, c.11. The scope of the protection
afforded freedom of the press must be interpreted “in a generous and liberal
fashion having regard to the history of the guarantee and focusing on the
purpose of the guarantee”: Canadian Broadcasting Corp. v. Lessard,
[1991] 3 S.C.R. 421, [1991] S.C.J. No.87 at paragraph 61.
[45]
Inextricably
linked to those values is the principle of the openness of court proceedings (see
Vancouver Sun, (Re) 2004 SCC 43, [2004] S.C.J. No.41 and Toronto Star
Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] S.C.J. No.41). Freedom of
the press and the open court principle are not, however, absolute. They must
yield on occasion when there are other important interests to be protected such
as informant privilege (see Named Person v. Vancouver Sun, 2007 SCC 43, [2007] S.C.J. No. 43) or
to protect the right of an individual to a fair hearing (see Re Charkaoui,
2008 FC 61).
[46]
The Attorney
General plays an important role in protecting the state's interest in national
security, national defence and international relations and, as discussed above,
the court should give considerable weight to submissions from that office with
respect to the injury that the disclosure of the information would cause.
However, even where injury is established the court retains the discretion
under the statute to determine that the public interest in disclosure of the
information outweighs that of nondisclosure. The effect of the decision on the
restriction of a core value such as freedom of the press must be a significant
factor in that determination.
[47]
It is
clear now that any court procedures that limit freedom of expression and
freedom of the press in relation to legal proceedings, including those imposed
by statute, are subject to the test set out by the Supreme Court of Canada in Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 35, [1994] S.C.J. No.104
and R. v. Mentuck 2001 SCC 76, [2001] 3 S.C.R. 442; see also Toronto
Star Newspapers Limited v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 at
paragraph 7. This was affirmed in the section 38 CEA context by Chief Justice
Allen Lutfy in Ottawa Citizen Group Inc. v. Canada (Attorney General), 2006 FC 1552, [2006] F.C.J.
No. 1969.
[48]
The Dagenais/Mentuck
test requires that public access to court proceedings be barred only when the
appropriate court in the exercise of its discretion concludes that disclosure
would subvert the ends of justice or unduly impair its proper administration.
This test is meant to be applied in a flexible and contextual manner. In applying
that test to the present context, I conclude that the court must be satisfied
that the risk of injury from further disclosure of the information which the
newspaper possesses must be “real, substantial and well grounded in the
evidence”: Toronto Star, above, at paragraph 27.
ISSUES:
[49]
The
issues to be decided by the Court in these proceedings are:
(a) Whether to confirm the
prohibition against disclosure of the information redacted pursuant to
subsection 38.06(3) of the CEA;
(b) Whether to confirm the
prohibition against further disclosure of some information that was
inadvertently disclosed; and
(c) If the prohibition against
disclosure is not confirmed, in what manner or under what conditions should the
information be disclosed so as to limit the harm to national security and
international relations?
APPLYING THE THREE STAGE TEST TO THE
INFORMATION AT ISSUE:
The Relevance Threshold:
[50]
The
information at issue in these proceedings is contained in documents which are,
for the most part, messages, reports and briefing notes written or compiled by
Canadian officials in Islamabad, Pakistan
and at CSIS, RCMP and DFAIT offices in Canada and correspondence from foreign
officials. A considerable amount of the redacted information was provided by
foreign agencies subject to express or implied caveats as to its use and
broader distribution by their Canadian counterparts. There is a great deal of
repetition of the same information as the content of messages received by one
Canadian agency or department was circulated to the others and recycled in
further messages and reports.
[51]
Much of
the redacted information is, in my view, of no relevance to the underlying
proceedings. This includes background analyses of a general nature, frequent
references to other on-going investigations and to internal administrative
information such as the names and telephone numbers of agents and civilian employees,
file numbers, communication systems and databanks. That is not to say that such
types of information may never be relevant but that upon review of the
documents in these proceedings, I am satisfied that it does not meet the Stinchcombe
threshold. Counsel for the applicant did not suggest that this type of
information would be helpful to the defence. In a particular document, such as
a briefing note on a broad range of topics, there may be only a small portion
of text that is relevant to Mr. Khadr’s case.
[52]
Where I
have concluded that the redacted information does not meet the low threshold of
relevance I have excluded it from further consideration in the next two stages
of the test and inclusion in the summary that has been prepared.
[53]
The
applicant’s position is that the relevance of the redacted information ought to
be determined by reference to the matters raised in the disclosure motion and
examined by Justice Speyer in his decision of July 20, 2007. As noted above,
Speyer J. held that the materials filed by the applicant on that motion met the
"air of reality" threshold giving rise to a justiciable issue as to
whether the applicant was treated in such an abusive matter that the admission
of the statement evidence would be unfair under section 7 of the Charter:
see Ferras, above, at paragraph 60.
[54]
I note
that any finding that this Court may make regarding relevance is not binding
upon the extradition court. Admissibility of evidence on behalf of the person
sought in those proceedings is governed by paragraph 32 (1) (c) of the Extradition
Act, 1999 c.18. That provision permits the reception of evidence which
would not be otherwise admissible under Canadian law if it is relevant to the
test for committal and considered reliable by the Court. That exception applies
to evidence gathered abroad and would include hearsay. Evidence gathered in Canada remains bound by Canadian
rules of evidence: U.S.A. v. Anekwu [2008] B.C.J. No. 536 (B.C.C.A.).
That distinction may have some bearing on the admissibility of the information
in the protected documents as it includes third party statements made both in Canada and abroad.
[55]
The
applicant's allegations of physical and mental abuse and arbitrary detention
will be considered by the extradition court in so far as they relate to the
issues of admissibility and fairness in those proceedings. The applicant’s
assumption is that the redacted information reproduced in the affidavit
material before this Court will be relevant to those determinations. In
particular, he seeks to corroborate his allegations that agents of the United
States were behind his capture and detention in Pakistan and complicit in any abuse that he suffered
during his detention there.
[56]
At
paragraph 51 of his reasons, Justice Speyer made the following comments:
All allegations about American misconduct
are denied by the requesting state. The relationship between American and
Pakistani authorities in so far as it relates to the detention and treatment of
Khadr is entirely a matter of speculation. In my view, this is a fishing trip
to determine what, if any, American-Pakistani relationship agreement was in
place relating to the arrest of Khadr....
[57]
The
applicant submits that disclosure of the redacted information will establish
that the relationship between the American and the Pakistani authorities is
more than a matter of speculation.
[58]
The
respondent acknowledges that the air of reality test had been met on the
disclosure motion but submits that this was achieved solely through the
applicant's own evidence and not on the content of the documents voluntarily
disclosed, including the redacted information. The respondent does not concede
that the redacted information is relevant.
[59]
In the
context of extradition proceedings, the respondent submits, relevance should be
determined in relation to the content and scope of the requesting state’s ROC
and supplementary ROCs. In this instance the record consists of the statement
taken by the FBI in Pakistan, some eight months after
Khadr's arrest, and the statements taken in Toronto by the RCMP and the FBI following his
release and repatriation. Thus the redacted information would only be relevant,
in the respondent’s view, if it assists in shedding some light on how those
statements were obtained.
[60]
I agree
with the respondent that in a section 38 review of information sought to be
disclosed for the purpose of an underlying extradition case, the scope of the
relevance inquiry by the designated proceedings court should normally be
limited to the parameters of the ROC submitted by the requesting state.
[61]
However,
the applicant says that the later statements which he made were derived from
and are tainted by abusive conduct which he suffered in the initial days
following his capture. He claims that he was arrested and detained at the
behest of the requesting state; that a bounty was paid for his capture; that he
was abused during his initial detention and coerced into making inculpatory
statements; and that agents of the requesting state participated in the abuse
during the early interrogation.
[62]
The
requesting state has conceded in affidavit evidence submitted to the
extradition court and filed in this court as part of the applicant’s record
that agents of the United States began to interview Mr. Khadr some four days
after his arrest, described as “debriefings”, which continued for 17 days while
he was within the custody of the Pakistani authorities. A member of the FBI was
part of the team that conducted those debriefings.
[63]
Inculpatory
statements may be ruled inadmissible if tainted by earlier confessions obtained
by coercion and where the tainting features which would disqualify the earlier confessions
continued to be present or where the making of the prior statements was a
substantial factor contributing to the making of the later statement: R. v.
I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504, [1993] S.C.J. No. 132. The
applicant says that when the RCMP and FBI officers interviewed him later, they possessed
information obtained during the early meetings and used it to challenge him on
any inconsistency during the subsequent interviews.
[64]
I
understand that the requesting state takes the position that the FBI team that
interviewed Mr. Khadr in Pakistan and again in Toronto was not apprised of the information
obtained from him during the early debriefing sessions and that those
statements are not tainted by any abuse, inducements or coercion that may have
occurred following his capture. They deny involvement in any such actions if
they occurred. Nonetheless, on the basis of the applicant’s evidence alone,
because of the full sequence of events, as alleged, there remains a realistic
possibility that the statements taken under caution in Pakistan and Canada may be excluded from consideration in
the extradition proceedings. I find, therefore, that any redacted information
in the documents before the Court pertaining to the entire period of the applicant’s
detention in Pakistan may reasonably be useful to
the defence and is relevant for the purposes of this determination.
[65]
During the
course of the hearings on February 21-22, 2008 counsel for the applicant made
submissions as to the type of information that would assist the defence in
challenging the requesting state’s case if it were to be found in the documents
at issue. In addition, at paragraph 65 of the applicant’s application record,
counsel set out a series of specific questions for which answers or relevant
information would assist the applicant’s defence. This was helpful to the Court
during the review of the documents and the Attorney General’s ex parte
evidence.
[66]
Counsel
for the Attorney General and the amicus curiae also adopted a constructive
approach to these proceedings by producing a table of the redacted information which
in their joint or separate view could meet the relevance threshold together
with a summary of the information. Mr. MacKinnon, counsel for the Attorney
General, does not concede that the summary should be released and indeed argued
vigorously to the contrary, particularly with respect to specific items. The amicus
curiae, Mr. Shore, argued equally vigorously for the disclosure of
additional information. As an experienced criminal defence counsel, Mr. Shore’s
view of what would be relevant and of assistance to the defence carried great weight
with the Court.
[67]
I am
grateful to all counsel for their assistance to the Court in this matter.
However, as required by the statute, I have made my own determination of what is
relevant to the underlying proceedings based on a consideration of all of the
evidence and having read all of the information at issue in each of the
documents in its unredacted or clear form.
The Respondent’s Injury Claims:
[68]
As
discussed above, the Attorney General bears the onus of establishing injury. In
this case, he does not rely upon a claim of injury to national defence. The
public affidavits served on the applicant and filed by the Attorney General in
these proceedings describe various risks of harm which it is claimed would
cause injury to Canada’s national security and
international relations. These claims were elaborated upon in the private ex
parte affidavits filed by the respondent and in the evidence of the
witnesses heard in the ex parte hearings with reference to the redacted
information in each document.
[69]
In
general, the Attorney General submits that disclosure of the information sought
to be protected will harm Canada's national security and or international
relations by breaching the confidentiality of information sharing relations
with third parties; by disclosing methods, techniques or ongoing
investigations; by disclosing information about employees engaged in security
intelligence work; and by identifying human sources.
[70]
Specific
concerns are set out in the respondent’s public record for each of the departments
and agencies from whom the information at issue in these proceedings was
collected. For CSIS, it is submitted, the disclosure of its information would
be injurious to the national security of Canada as it would:
a) Identify or
tend to identify CSIS's interest in individuals, groups or issues, including
the existence or absence of past or present files or investigations, the
intensity of investigations, or the degree of success or lack thereof of
investigations;
b) Identify or
tend to identify investigative techniques and methods of operation utilized by
CSIS;
c) Identify or
tend to identify relationships that CSIS maintains with security and
intelligence foreign agencies and would disclose information received in
confidence from such sources;
d) Identify or tend to
identify CSIS employees or the administrative methodology of CSIS;
e) Identify or
tend to identify human sources of information for CSIS or the content of
information provided by human sources; and
f) Identify or
tend to identify information concerning the telecommunications system utilized
by CSIS.
[71]
On behalf
of DFAIT, it is submitted that confidentiality is fundamental to the collecting
and sharing of information between states. International convention and
practice requires that diplomatic communications are conducted in confidence
unless there is an express agreement to the contrary. The release of the names
of confidential sources and information provided by foreign officials with the
expectation that the information would remain confidential would have a severe
impact on Canada's ability to pursue its
foreign-policy objectives and its reputation with other governments including
key allies. Failure to protect such information in relation to consular cases
could have an adverse effect on Canada's
ability to provide consular assistance to detained individuals. Efforts to
promote human rights, democracy and good governance would be compromised if
candid assessments of Canadian officials about the situation in foreign states were
released. Contacts in those states who engage in frank discussions with
Canadian officials would be put at risk if their identities were disclosed.
[72]
The RCMP
is responsible for conducting investigations into terrorism offences as defined
in Part II.1 of the Criminal Code, R.S., 1985, c. C-46 and for performing
peace officer duties under the Security Offences Act, R.S. 1985, c.S-7
in relation to "conduct constituting a threat to the security of
Canada" within the meaning of the Canadian Security Intelligence Act,
R.S.C. 1985, c. C-23. It is submitted by the Attorney General that disclosure
of information in the documents collected from the RCMP would cause injury to
national security in relation to the following sensitive subjects:
a) Investigations, subjects
and persons of interest;
b) Investigative methods and
techniques;
c) Information received from
foreign agencies; and
d) The identity of civilian
employees.
The “Mosaic Effect” Theory
[73]
As is
common in any proceeding relating to national security, the Attorney General
relies in part upon the metaphor of a “mosaic effect” to establish injury. In
the hands of the informed reader, it is said, seemingly unrelated pieces of
information which may not in and of themselves be particularly sensitive, can
be used to develop a more comprehensive picture when compared with information
already known by the recipient or available from another source. The court is
urged to conclude that the assessment of the damage to national security cannot
be made looking at each item of information in isolation. The information must
be considered in the context of other information which may be released. The
more limited the dissemination of information, the less likely it is that an
informed reader can put together the pieces and determine targets, sources and
methods of operation of the investigative agencies.
[74]
This
theory has been cited numerous times in US and Canadian jurisprudence relating
to national security and access to information held by the intelligence
agencies. As a matter of logic, the concept has some appeal but there is no
apparent limit to how far it may be taken. Carried to an extreme, the theory
would justify the withholding of all information no matter how innocuous. See
David E. Pozen, The Mosaic Theory, National Security, and the Freedom of
Information Act, (2005) Yale Law Journal 629 and CIA v. Sims: Mosaic
Theory and Government Attitude; (2006) 58 Admin. L. Review 845.
[75]
In Khawaja
I, I expressed the view, at paragraph 136, that the mosaic effect on its own
will not usually provide sufficient reason to prevent disclosure of what would
otherwise appear to be an innocuous piece of information and that further
evidence will be required to convince the Court that the information, if
disclosed, would be injurious.
[76]
In Khawaja
II, Justice J.D. Denis Pelletier discussed the difficulty in deciding
whether information, apparently innocuous on its face, has value to a hostile
observer. He concluded, at paragraphs 124-126, that it is this uncertainty
about seemingly innocuous information that sets section 38 proceedings apart
from other proceedings where the Court must decide whether to disclose
information which, at the time of argument, is known only to one of the
parties. The ex parte procedure allows the Attorney General to address
the Court candidly about the injury which would be caused by disclosure.
[77]
I agree
with Justice Pelletier that the ex parte hearings are the opportunity
for the Attorney General to connect the dots and present the entire picture.
But the Attorney General must present evidence to back up the injury claims. Witnesses
from the intelligence community may take the mosaic effect theory as an article
of faith, relying upon it as a complete answer to the release of information
they consider sensitive or potentially harmful. As stated by Justice Noël in Arar,
at paragraph 84, “[s]imply alleging the effect is not enough. There must be
some basis or reality for such a claim based on the particulars of a given
file.”
The Applicant’s Position on Injury
[78]
The applicant
does not concede that any of the information at issue before this Court meets
the second stage of the section 38.06 analysis. Counsel observed that the
applicant's ability to comment upon this aspect of the test is compromised by
the ex parte aspects of the proceedings. However, the applicant submits
that in principle the disclosure of information pertaining to past
investigations, information being withheld to prevent the exposure of a foreign
government to embarrassment for wrongdoing, information provided by Canada to a
foreign government, exculpatory information provided by a foreign government,
and information that is protected solely because it is in the possession of CSIS
should not be found to cause injury to Canada’s national security and foreign
relations.
[79]
In these
proceedings I have not found it necessary to consider whether the Attorney
General sought to protect exculpatory information provided by a foreign
government as that issue does not arise from the record before me. Nor was
there any suggestion by the Attorney General that information provided to a
foreign government by Canada or information in the
possession of CSIS required protection on those grounds alone. In each
instance, the Attorney General sought confirmation of his decision on the basis
of the three stage test outlined above. However, the Attorney General disputes
the contention that information relating to past investigations should never be
protected and I consider it necessary to comment on the embarrassment factor.
Past investigations:
[80]
The
question of past investigations arises in this case because of statements made
in the respondent’s record to the effect that information pertaining to past
national security investigations must be protected from public disclosure. The
applicant submits that the information at issue pertains primarily to the
investigation of his activities by the RCMP and CSIS. Considerable detail
about that investigation is set out in the unredacted portions of the documents
filed in these proceedings, in the affidavit evidence filed in support of the
interim arrest warrant application, and in the ROC and supplementary ROCs.
[81]
The
applicant contends that the jurisprudence recognizes the legitimacy of claims
for public interest immunity only in respect of ongoing investigations and not
past investigations. There is no legitimate government interest he submits, in
withholding any further information on this basis, citing R. v. Chan, 2002
ABQB 287, [2002] A.J. 363 at paragraphs 122 -127.
[82]
Chan was a criminal case in which
the question of public interest immunity had arisen in the context of the
Crown's disclosure obligations under the Stinchcombe rule. Upon a review
of the case law, the trial judge concluded that a qualified common-law
privilege attached to information respecting ongoing investigations,
investigative techniques and the safety of individuals. The decision is silent
about past investigations and the applicant infers from this that they are
excluded from the scope of the privilege.
[83]
I note
that the Supreme Court of Canada has recently determined that the privilege
which attaches to the Crown's litigation work product in a prosecution ends
when the case is completed: see Blank v. Canada (Attorney General) 2006 SCC 39, [2006] S.C.J.
No. 39.
[84]
The
Attorney General submits that in the national security context, investigations
do not often reach a tidy conclusion with a charge, prosecution, trial and
conviction or acquittal. Information obtained is added to the body of intelligence
collected about known or suspected threats and may assist in other related or
unrelated investigations. The question to be addressed by the Court under
section 38.06 is not whether the information pertains to an ongoing or
completed investigation but whether disclosure would cause injury to the
protected interests. The age of the information and present value may be a
consideration in determining whether injury is made out or, if established,
whether the public interest favours disclosure.
[85]
I agree
with the Attorney General’s view of this question. I would add that from my
review of the evidence in the present case, I am satisfied that there can be no
clear distinction made between past and on-going investigations. Moreover, disclosure
of the status of any possibly inactive investigation conducted by the RCMP or
CSIS that may be revealed by the redacted information could cause injury to the
protected national security interests.
Embarrassment for wrongdoing:
[86]
As noted
above, the applicant seeks disclosure of information in support of his claims
that he was subjected to abusive treatment amounting to torture and arbitrary
detention contrary to both international law and the domestic law of Pakistan. He submits that the policy
underlying section 38.06 of the CEA is not to prevent the exposure of a government
to embarrassment for wrongdoing.
[87]
My
colleague Justice Simon Noël addressed this question in Arar, above. I
agree with his conclusion, at paragraph 60, that information which is critical
or embarrassing to the government cannot be protected but would add the
qualification that this principle applies only when that is the sole or genuine
reason why protection is sought.
[88]
That conclusion
is, I think, clear from the authorities cited by Justice Noël including the
following statement from the Johannesburg Principles: National Security,
Freedom of Expression and Access to Information, U.N. Doc. E/CN.4/1996/39
(1996), an instrument for interpreting article 19 of the United Nations International
Covenant on Civil and Political Rights at Principle 2 (b):
In particular, a restriction sought to be
justified on the ground of national security is not legitimate if its
genuine purpose or demonstrable effect is to protect interests unrelated to
national security, including, for example, to protect the government from embarrassment
or exposure of wrongdoing… [Abridged and emphasis added].
[89]
I accept
this statement as an expression of the principle Justice Noël was referring to
in Arar with the exception of the inclusion of the words "or
demonstrable effect" from the Johannesburg document. Regrettably, in some
cases, protecting Canada's security and international
relations interests may have the unintended and unwanted effect of protecting a
government from embarrassment or exposure. However, if, based on the Court’s
examination of the evidence, that is the sole or genuine reason the Attorney
General seeks to withhold the information, the information must be disclosed.
[90]
In the
present case, I do not find that the Attorney General seeks to maintain the
statutory prohibition on the redacted information merely because its disclosure
would embarrass any foreign government or that of Canada. That may be a consequence of the
release of certain information but it is not the “genuine purpose” of the Attorney
General’s opposition to disclosure in this case. Each claim for protection is legitimately
based on other grounds such as the third party rule.
Third Party Rule:
[91]
As
discussed above, the Attorney General seeks to maintain the statutory bar on
disclosure of certain information on the ground that its release would breach
the so-called “third party rule” which attaches to confidential communications
between governments, their departments and agencies and officials. In some
instances, the information is transmitted as classified with express caveats as
to its use or further distribution by the receiving agency. In others,
confidentiality is implied by the circumstances in which the information is
conveyed. Foreign agencies may consent to the disclosure of some or all of
their information for use in court proceedings. However, they may also take the
position that their information or indeed, any indication of their interest in
a particular matter must be protected indefinitely.
[92]
As has
been recognized repeatedly in the jurisprudence, Canada is a net importer of security
intelligence information. The proportion we receive from foreign agencies far
exceeds that which we provide in return. While CSIS may operate abroad in the
interests of collecting information about threats to the security of Canada, it is not a foreign intelligence
agency of the nature of those maintained by our closest allies and
international partners. Canada depends upon the continued
flow of the information they collect and share. Thus, any violation of the
confidential relationship puts that flow of information at risk and could
jeopardize Canada’s national security. There is
also a long-standing presumption of confidentiality in the day to day working
relationships of our diplomats and officials with their foreign counterparts abroad
and at home.
[93]
In this
matter, a considerable amount of the redacted information at issue was received
from foreign governments. Evidence was received ex parte that requests
had been made to certain of the agencies concerned to consent to disclosure of the
redacted information which had originated with them. The Attorney General takes
the position that such inquiries should not be considered to be a prerequisite
to a determination by the Court that injury would result from a breach of the
principle. In my view, however, the failure to make such inquiries may
undermine the claim particularly where, as is often the case, on its face the
information appears to be innocuous.
[94]
In the
case of one foreign agency, no response had been received as of the conclusion of
the hearings. I believe it to be unlikely that it would ever agree to such a
request given the position it has consistently maintained. With regard to the
agency of another government, Canadian officials believed it would be futile to
approach them considering the circumstances in which the information had been
transmitted. Upon hearing all of the evidence, I agreed with that assessment.
[95]
I note
that the FBI responded to the request by agreeing to the lifting of redactions
on certain information that had been provided by its offices. The Attorney
General agreed to disclosure of that information. Those pages were then
revised, filed with the Court and sent to applicant’s counsel. That reduced the
scope of the Court’s review of the material.
[96]
In this
case, I had the benefit of the assistance of the amicus, Mr. Shore, to
add to the Court’s own probing of the justification for the claim of injury
which would result from breach of the third party rule and whether steps had
been taken to obtain consent to disclosure.
[97]
In
general, I agree with the exercise of the Attorney General’s discretion to
protect information on the ground that it would harm Canada’s interests by breaching the third party
rule. The people who do the internal assessments that support that exercise of
discretion are experienced, knowledgeable and in day to day contact with their
foreign counterparts. The evidence of the harm that would result from
unilateral disclosure presented by the ex parte witnesses put forward by
the Attorney General was credible and trustworthy. The witnesses were candid
when they did not know why the foreign agency would want to protect the
information but firm in their view of the results if those views were
disregarded.
[98]
Nonetheless,
it is my view that too much of the routine communications between foreign and
Canadian agencies is protected by the Attorney General in application of the
third party principle. In this case there were examples that simply did not
stand up to scrutiny. I am equally of the view that most of that type of information
in this case is irrelevant to the underlying proceedings. There is no point in
making a pro forma injury determination or balancing assessment of such
information when it can be of no assistance to the applicant.
[99]
I accept
that, overall, the Attorney General has satisfied his burden to establish that
disclosure of the information which I have found to be relevant would cause
injury to Canada’s national security and international relations. The next step
then is to consider whether, notwithstanding that finding, the public interest
in disclosure outweighs the public interest in non-disclosure.
Balancing the Public Interests:
[100]
With
respect to the third step of the analysis - the balancing of the public
interests - the Attorney General relies on the evidence tendered on injury and
submits that the public interest in nondisclosure of the protected information
outweighs any public interest in its disclosure. In the alternative, the
Attorney General submits, if it is determined that all or part of the
information ought to be disclosed the court should exercise its discretion to
disclose the information in a manner or impose conditions that are most likely
to limit any injury pursuant to subsection 38.06(2).
[101]
The applicant
submits that any injury to the interests protected by section 38 can be
eliminated by the imposition of appropriate conditions. As such, all
information should be disclosed in a manner which prevents its disclosure to
anyone other than on a "need to know" basis. The options for disclosure
which the applicant proposed, in his descending order of preference, are as
follows:
a) Disclosure of relevant
documents and information publicly and unconditionally;
b) Disclosure of a
summary of the relevant documents and information publicly and unconditionally;
c) Disclosure of
all relevant information to the applicant's counsel on the condition that it
may only be disclosed to the extradition judge during an in camera proceeding
and not to any other party, including the applicant,
d) Disclosure of
all relevant information to an amicus curiae appointed by the court on
the condition that it may only be disclosed by the amicus curiae to the
extradition judge during an in camera proceeding and not to any other party
including the applicant.
[102]
During
oral argument, counsel for the applicant indicated that they were no longer
proposing the fourth option. I had expressed the view that it was highly
unlikely that I would presume to impose a requirement that the extradition
judge permit an appearance in camera by an amicus appointed by
this Court. However, counsel submitted that this Court has the jurisdiction to
order that information only be disclosed in the context of an in camera hearing,
leaving it to the discretion of the extradition judge to order any such
proceeding should he or she deem it necessary.
[103]
There are
strongly competing public interests in this case. The public has an interest in
ensuring that information that would be relevant to the extradition proceedings
against the applicant is disclosed to him for the purposes of his defence. That
interest reflects Canadian values and is enshrined in the guarantee of
fundamental justice set out in section 7 of our Charter. The public also
has a profound interest in maintaining the capacity of Canada’s intelligence and investigative
agencies to respond to threats to our collective security and the ability of
our foreign affairs officers to conduct candid and effective relations with
other countries.
[104]
There is
an additional factor that may call for additional deference to the Attorney
General’s position in these proceedings. Consideration of the public interest
must include the fact that the security of Canada’s troops and civilians in Afghanistan is in part dependent upon the
cooperation of other governments in the region and that of the other members of
the international security force deployed there. In that context, disclosure of
the information at issue may have a much more serious impact if it were to
result in a withdrawal or diminution of that cooperation.
[105]
As
discussed above, balancing the public interests in this case must also take
into account the Charter’s guarantee of freedom of the press including
the public’s right to receive information which the press may obtain and choose
to report upon.
[106]
In the
present case, The Globe and Mail obtained certain information because it
was disclosed by the Crown to counsel for the applicant and was to be filed in
an open court proceeding. It was only determined following service of the
applicant’s materials upon Crown counsel that the information was sensitive and
might cause injury to a protected interest. The newspaper acted responsibly in
not publishing the information when alerted by counsel that there was a concern.
But for the subsequent intervention of a notice served on the Attorney General
pursuant to the Act, however, the newspaper would have been free to publish
the information and the public would have known of its content and been able to
consider its implications. If not released through these proceedings, the
public may never come to know of the information.
[107]
The
information in question refers to the payment of a bounty of USD $500,000 for
Mr. Khadr’s capture in Pakistan. The Pakistani authorities had
reasons of their own for wanting to arrest Mr. Khadr given his alleged
activities in that country. The information does not say that the bounty was
actually paid or, if it was paid, by whom. The originating source of the
information is not disclosed in the document. But it is clear that Canadian
officials were told that a bounty had been paid shortly after the applicant’s
capture and included that information, presumably considered reliable, in
briefing their superiors, in this instance the RCMP Commissioner.
[108]
It is a reasonable
inference from the public evidence filed in this application that the bounty was
offered and paid by the US Government. Counsel for The Globe and Mail
led evidence that the payment of bounties by the US has been freely disclosed in comparable contexts
and, indeed, celebrated by US officials as a valuable tactic in apprehending suspected
terrorists in the region. General Musharraf, the Head of State of Pakistan, published
memoirs in which he writes of the receipt of US bounties by his country as an
illustration of its contribution to the so-called “Global War on Terror”.
[109]
The
Attorney General submits that the fact a bounty may have been employed in this
instance has never been publicly acknowledged, that the release of the information
would cause injury to Canada’s interests and that the Court should issue an
Order barring its further disclosure.
[110]
The
evidence heard in camera supports the conclusion that the bounty was
offered and paid by the US. I accept that the
information was conveyed to Canadian officials in confidence and that the
Attorney General seeks to protect it in a good faith application of the third
party rule. However, the sole justification that was provided to the Court as
to why publication of the information should be prohibited is that the
originator does not want the information disclosed. No further explanation has
been provided.
[111]
Counsel
for the applicant submits that disclosure of this fact is crucial to his
defence. On the evidence before me I am satisfied that the information is
relevant to the allegations made by the applicant. I am unable to conclude that
release of the information would cause harm to Canada’s national security or international relations.
It is now more than three years since the information was received by Canadian
officials, the general practice is in the public domain, no human source would
appear to be at risk and the circumstances in Pakistan have changed since these events took
place.
[112]
Had I
concluded that the assertion of injury had been made out, I would have
determined that the public interest in disclosure outweighs the public interest
in non-disclosure of the information. As discussed above, the “public
interest” includes the interests of the applicant to a full and fair airing of
matters relevant to the admissibility of the case against him. In my view, that
includes the information that a bounty was paid for his capture.
[113]
The fact that
a foreign state paid a bounty for the apprehension of a Canadian citizen abroad
and that Canadian officials were aware of it at an early stage is also a matter
in which the public would have a legitimate interest. While I considered
whether it would be sufficient to authorize disclosure of the information to
the applicant solely for the purpose of his defence to the extradition request,
I have concluded that the newspaper should be allowed to publish the information
and inform the public in furtherance of the core values of freedom of
expression and freedom of the press. The prohibition on disclosure of this
information will, therefore, not be confirmed.
[114]
With
regard to all of the so-called “inadvertent disclosures”, including the item in
the possession of the newspaper, the applicant submits that the circumstances
of the release of the information to his counsel clearly demonstrated an
informed intention on the part of the Crown to waive any privilege attaching to
the documents. Crown counsel took some seven months to review information in
the possession of the government that would be relevant to a determination of
the issues in the extradition proceedings following their concession that the
"air of reality" test had been met. They then proceeded to disclose
that information. It was only during a subsequent review, presumably by other
Government personnel, that the claims of public interest immunity under section
38 were raised. Indeed, counsel states that until the documents were filed in
these proceedings the only inadvertent disclosure of which he had been made
aware concerned the October 2004 briefing note released to The Globe and
Mail.
[115]
The
Attorney General submits that there is no evidence that the Crown ever intended
to waive the privilege that attaches to the information. At the time the
documents were disclosed to the applicant, the statutory prohibition imposed by
subsection 38.02 (1) had not yet come into existence with respect to the
information at issue. In those circumstances, it is submitted, the Crown could
not be said to have waived a privilege which had not yet crystallized. In the
decisions taken under section 38.03, the Attorney General confirmed the
statutory prohibition and confirmed that there had been no intention to waive
privilege.
[116]
The
applicant contends that the circumstances of this case are different from those
in Khawaja I as in that case it was clear that mistakes had been
made in redacting documents in the disclosure process. Having dealt with both
cases I see no real difference, apart from the fact that the quantity of
material in Khawaja was considerably larger. Both cases illustrate that
there are systemic difficulties in asserting section 38 claims where voluminous
disclosure is being made and the public interest requires a thorough review of
the material. There are a limited number of people who can do this work. Despite
efforts to be consistent, mistakes will be made and information redacted in one
document may be disclosed in another. Counsel for the Attorney General filed a
table of concordance with the Court that demonstrates that the information in
each of the claimed inadvertent disclosures had been consistently redacted in
other documents. I am satisfied, therefore, that there was no informed waiver
in these circumstances.
[117]
I see no
reason in this case to depart from the conclusion I reached in Khawaja I
that the three stage test should be applied to any information in respect of
which notice is served on the Attorney General even belatedly. In reviewing
the unredacted pages containing this information in the present case, it is
clear that much of it consists of internal administrative information such as
telephone or fax numbers or identifies the names and phone numbers of agency
personnel. There are several references to the investigation of another
individual. That information would not be of assistance to the applicant. It
was properly redacted in other documents and I am satisfied that the failure to
do so in this case was inadvertent oversight.
[118]
However, I
see no practical purpose would be achieved at this time by requiring counsel
for the applicant to destroy or return their copies of the unredacted
inadvertent disclosures. These documents have remained in their possession for
over a year without any apparent resulting harm to the protected national
interests. I think it sufficient that the information not be further disclosed.
There is some information in the list of inadvertent disclosures which counsel
for the applicant indicated could be of assistance to his client. Those details
are included in the summary which is to be provided to counsel and may be used
in the extradition proceedings.
CONCLUSION
[119]
With
regard to most of the information at issue in these proceedings, I am satisfied
that the risk of injury has been established by the Attorney General. In
balancing the public interests, I conclude that the interest in disclosure
outweighs that of non-disclosure. I will exercise my discretion pursuant to
subsection 38.06 (2) of the Act to authorize disclosure of the relevant
information in the form of a summary to be used solely for the purposes of the
extradition hearings. A separate Private Order to that effect will be issued to
counsel for the parties with the summary attached as an annex.
[120]
The
information contained in the October 20, 2004 briefing note to the Commissioner
of the RCMP is relevant to the underlying extradition proceedings. I am not
satisfied that the Attorney General has met his onus to establish that
disclosure of the information would cause injury to Canada’s national security or international
relations. Flowing from that conclusion, I do not believe that it is necessary to
impose conditions to limit any injury that could possibly result to the
protected interests. I will, therefore, exercise my discretion to authorize
disclosure of that information without conditions.
[121]
The
applicant seeks his costs for this application. There has been no request for
the payment of the costs of The Globe and Mail. The Attorney General has
been directed to pay the reasonable fees and disbursements of the amicus
curiae as there is no other readily accessible source of funds for that
purpose. Apart from that obligation, an award of costs is within the discretion
of the Court. In section 38 proceedings, the Attorney General performs an
important public function imposed by Parliament. While I have concerns about
the length of time that it took to complete the review of the material for
disclosure purposes, I accept that this was a function of the sensitivity of the
information and insufficient resources. I note further that Crown counsel voluntarily
undertook to make disclosure beyond the scope of the requesting state’s Record
of the Case when they recognized that there was an “air of reality” to the
applicant’s claims. In those circumstances, I will make no costs award.
ORDER
THIS COURT ORDERS THAT:
- Pursuant to paragraph 38.02 (2) (b)
of the Act, these Public Reasons for Order and Order shall be released to
the Attorney General of Canada on the date of issuance, and the same shall
be released to counsel for the applicant and to the public upon the expiry
of the period for appeal provided in sections 38.09 and 38.1 of the Act;
- The prohibition on disclosure of the
information contained in RCMP document 1008, an October 20, 2004 briefing
note to the Commissioner, is not confirmed and disclosure of that
information is authorized unconditionally pursuant to subsection 38.06 (2)
of the Act;
- A summary of the other relevant information
about which notice was given to the Attorney General in this matter shall
be disclosed subject to conditions in the form of an Annex to Private Reasons
for Order and Order which will be issued solely to counsel for the parties;
- Subject to the foregoing exceptions,
the information specified as “inadvertent disclosures” in a list filed
with the Court on February 11, 2008, shall not be further disclosed by
counsel for the applicant;
- Counsel for the applicant may retain
their unredacted copies of the “inadvertent disclosures” for the purpose
of preparing for the extradition hearing but shall not disclose the information
further except as it is summarized in the Annex to the Private Order to be
issued in this matter;
- The Court shall remain seized of
this matter pending the outcome of the extradition proceedings and counsel
for the parties may seek clarification of these Public Reasons for Order
and Order at any time in writing with notice to the other party;
- The Court Records relating to the
hearing shall be kept in a location to which the public has no access
pursuant to subsection 38.12 of the Act; and
- The Order of January 15, 2008 shall
continue in effect respecting the payment of the reasonable fees and
disbursements of the amicus curiae; apart from that, the parties
shall bear their own costs.
“Richard
G. Mosley”
FEDERAL COURT
SOLICITORS OF
RECORD
DOCKET: DES-3-07
STYLE OF CAUSE: ABDULLAH
KHADR –v‑
ATTORNEY GENERAL
OF CANADA
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