Date: 20080118
Docket: DES‑3‑03
Citation: 2008 FC 61
Ottawa, Ontario, January 18, 2008
PRESENT:
The Honourable Mr. Justice Simon Noël
BETWEEN:
IN THE MATTER OF a certificate
pursuant
to subsection 77(1) of the Immigration and Refugee Protection Act
signed
by the Minister of Immigration
and
the Solicitor General of Canada (Ministers)
S.C.
2001, c. 27 (IRPA);
IN
THE MATTER OF the referral of this certificate to
the
Federal Court of Canada pursuant to subsection 77(1)
and
sections 78 and 80 of the IRPA;
IN
THE MATTER OF a motion
to
quash subpoenas duces tecum filed by
Joël‑Denis
Bellavance and Gilles Toupin (the interveners)
and
objections arising from questions asked during an examination on affidavit;
AND IN THE MATTER OF
Mr. Adil Charkaoui.
4
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This is a
motion to quash subpoenas duces tecum (motion to quash) filed by the
interveners, Joël‑Denis Bellavance (Mr. Bellavance) and Gilles
Toupin (Mr. Toupin) (collectively, the interveners), reporters for the
newspaper La Presse. Subpoenas duces tecum were served on
the interveners, compelling them to come testify and bring with them
(1)
A top
secret report entitled Former Terrorist Training Camps in Afghanistan: Major
Sites and Assessment; and
(2)
Any and
all other documents of the Canadian Security Intelligence Service (CSIS) used
as sources for the article entitled “Charkaoui a‑t‑il discuté d’un
attentat?” (Did Charkaoui discuss an attack?), published in La Presse
on June 22, 2007.
[2]
Owing to
the affidavits the interveners submitted in support of the motion, an
examination on affidavit of Mr. Bellavance was held, and many objections
to the questions were raised. In this case, the Court is called upon to rule on
the motion to quash and on the validity of the objections.
[3]
The
subpoenas were issued in connection with a motion filed by Adil Charkaoui
(Mr. Charkaoui) to set aside the certificate proceedings initiated under
sections 76 et seq. of the Immigration and Refugee Protection
Act, S.C. 2001, c. 27, (IRPA) against him on May 23, 2003,
following the publication of articles in the dailies La Presse and Le Droit
on June 22, 2007. The articles revealed that Mr. Charkaoui had
discussed with someone else hijacking a commercial aircraft and crashing it
into target in a foreign country, according to a plan that was similar to what
happened on September 11, 2001. According to the articles, the document,
entitled Former Terrorist Training Camps in Afghanistan: Major Sites and
Assessment, dated April 12, 2003, contained top secret intelligence of
the Canadian Security Intelligence Service (CSIS). Mr. Charkaoui
essentially argues that the Canadian government and CSIS leaked the top secret
document; that the leak constitutes an interference with the administration of
justice, thereby unlawfully and wrongfully interfering with the judicial
process; that it compromises the independence and objectivity of the judiciary,
thus bringing the administration of justice into disrepute; and that it damages
his reputation and constitutes a serious violation of his constitutional rights
protected by sections 7, 9 and 10 and paragraphs 11(a), (b)
and (c) of the Canadian Charter of Rights and Freedoms, Constitution
Act, 1982 (U.K.), being Schedule B to the Canada Act 1982 (U.K.),
1982, c. 11 (the Charter).
[4]
To make it
easier to read this judgment, I am including hereafter the work plan used in
coming to the appropriate determinations:
(a) Background, page 4;
(b) Case update, page
7;
(c) Articles published
in La Presse and Le Droit, page 12;
(d) Summary of Joël‑Denis
Bellavance’s testimony, page 15;
(e) Positions of the
parties:
I. The
interveners, page 18;
II. Mr. Charkaoui,
page 20;
III. The
Ministers, page 23;
(f) Analysis:
I. Motion
to quash the certificate proceeding, page 24;
II. Relevance
of the requested information, page 25;
III. Impact
of the publication of the information, page 28;
IV.
Journalistic
decision to publish, page 32;
V.
The
Charter and freedom of expression, page 34;
VI.
Compellability
of the reporters and application of the Wigmore tests, page 36;
VII. Decisions
concerning the objections to the questions, page 44;
(g) Conclusion,
page 48;
(h) Costs,
page 48;
(i) Judgment,
page 49;
‑ Schedule A,
Summary of the additional evidence, page 51;
‑ Schedule B,
List of questions with reasons for objection and summary of decision, page
57;
‑ Schedule C,
Article 6 of the Professional Code of Ethics
for Quebec Journalists, regarding reporters’ sources, page 63;
(A) BACKGROUND
[5]
As
mentioned above, the reporters signed affidavits in support of the motion to
quash the subpoenas. One of the reporters, Mr. Bellavance, gave testimony
on examination by counsel for Mr. Charkaoui. The parties agreed that
Mr. Toupin would testify afterwards. They suggested that the examination
on affidavit be a public hearing before a judge owing to the principles
involved and objections arising from the questions. The parties were authorized
to proceed this way, and, as a result, a number of objections were raised; a
few of them were resolved during the examination on affidavit and some others
were taken under advisement. In this judgment, I will be ruling on the
objections while taking the principles involved into consideration. The motion
to quash the subpoenas has now become a forum for dealing with the objections
arising from the examination on affidavit of Mr. Bellavance for the
purposes of evidence for the principal motion. The order to be made will rule
on the motion to quash the subpoenas duces tecum and on the objections.
[6]
The
certificate proceedings were initiated against Mr. Charkaoui in late
May 2003, and he was imprisoned until February 17, 2005, when he was
released under preventive conditions. Although the conditions have been amended
a number of times, several of them are still in effect today.
[7]
Still no
determination has been made as to whether the certificate is reasonable. There
are many reasons for this state of affairs: the numerous legal proceedings to
which this case gave rise, the applications for protection made under
subsection 112(1) of the IRPA and the suspension of the certificate
proceedings (see subsections 79(1) of the IRPA, etc.).
[8]
Since the
beginning of the proceedings in May 2003, the Court has reviewed and examined
the case on a number of occasions. With a view to keeping Mr. Charkaoui
reasonably informed of the circumstances giving rise to the certificate and
without disclosing anything that might, under the IRPA, be injurious to
national security or to the safety of any person, the Court has provided him
with a few summaries of the evidence. The information reported in the press was
inserted at paragraph 35 of a summary dated May 23, 2003, and was general
enough in nature, so that it would not be injurious to national security or to
the safety of any person. Since the information has become public, in this
judgment the Court intends to issue a new summary in order to keep
Mr. Charkaoui reasonably informed in the wake of the June 22, 2007
article.
[9]
As
provided for in the IRPA, the designated judge “shall ensure” the
confidentiality of the information on which the certificate proceedings are
based (see paragraph 78(b)). The judge may not disclose information
if it would be injurious to national security or to the safety of any person.
If the judge concludes that the information is relevant to the person
concerned, but the Ministers are of the opinion that its disclosure would be
injurious to national security or to the safety of any person, they may request
that the information not be part of the Court’s record (see paragraph 78(f)
of the IRPA). Basically, Parliament compels the judge to protect and “ensure”
the confidentiality of information on which the certificate is based and keep
the person concerned reasonably informed through a summary of evidence. This is
a delicate procedure that requires in‑depth knowledge of the case and
issues.
[10]
This is a
unique procedure in and of itself, requiring the designated judge to constantly
ensure compliance with the legislative component. This goes beyond classic
procedures that are usually followed.
[11]
The
information in the newspaper articles is secret, and few people in the
government have the clearance to receive this kind of information. Without
going into detail, the information’s very existence tells the person concerned
a great deal. The information concerns two people conversing about hijacking an
aircraft in order to strike a target in Europe. This information is private,
its contents are worrisome and it is classified for obvious reasons which need
not be dealt with further in this judgment. In accordance with the duties
imposed by Parliament, this information, in detailed form, could not have been
part of a summary of evidence. At most, it could have been conveyed only in
general terms, which was done on May 23, 2003, in the summary of evidence
at paragraph 35.
(B) Case update
[12]
When the
Court learned of the La Presse articles, it held a hearing by
teleconference with counsel for the parties. The objective was to allow the
Court to express its concern over the publication, determine whether the
information came from a document in the Court’s confidential record and
indicate that the Court was required to “ensure” the confidentiality of the
information, in keeping with paragraph 78(b) of the IRPA.
Subsequently, on June 29, 2007, counsel for the Ministers asked that a
hearing be held without Mr. Charkaoui or his counsel, in accordance with
paragraph 78(e) of the IRPA. The Court granted the request, taking
Mr. Charkaoui’s objection into account. Following the ex parte
hearing on July 5, 2007, the Court decided to provide Mr. Charkaoui
with more information. A summary of additional evidence was prepared. The Court
held another hearing via teleconference and read the summary to counsel, with
Mr. Charkaoui in attendance. After the summary was read,
Mr. Charkaoui’s counsel asked for and were granted a recess. After the
recess, counsel asked that the summary of evidence not be entered into the
record, the reason being that Mr. Charkaoui had suffered considerable
damage to his reputation following the publication of the articles and that
making the summary of evidence public would aggravate his situation. The
Ministers objected to this request on the ground that Mr. Charkaoui had
always maintained that the procedure followed had never given him access to
sufficient information and that this new position contradicted what he had
always maintained. The Court took Mr. Charkaoui’s request under advisement.
[13]
Given the
state of the case so far; the motion to set aside Mr. Charkaoui’s
certificate proceeding; the motion to quash the subpoenas served on the
reporters, Mr. Bellavance and Mr. Toupin; the interpretation of the
information on which the newspaper articles are based; the situation arising
from the publication of the information involving Mr. Charkaoui on
June 22, 2007; the undersigned’s duty to keep Mr. Charkaoui
reasonably informed; and the fact that Mr. Charkaoui and his counsel are
aware of the information, the Court concludes that the summary of additional
evidence must be officially entered into the Court’s public record.
[14]
Briefly,
the summary reveals the following information:
-
At an ex
parte hearing lasting about two and a half hours on July 5, 2007,
counsel for the Ministers summoned two people to testify. The first witness
testified about CSIS’s internal investigation (it is public knowledge that
police and administrative investigations have since been launched). The second
witness testified about his or her knowledge of the secret document filed in
Court;
-
In my
view, the Court’s primary objective is to give Mr. Charkaoui as much
information as possible to give him an opportunity to respond to the
allegations against him;
-
The Court
can now confirm the existence and contents of the document on which the news
articles were based, but adds that the document is not part of the evidence
before the Court. However, the Court has unproven information concerning
Mr. Charkaoui to the effect that, at a meeting in June 2000, he
discussed with two people hijacking a commercial aircraft for violent purposes.
General information in this regard is already included in the summary of
evidence of May 23, 2003, at paragraph 35. In addition, the Court has
unproven information to the effect that Mr. Charkaoui allegedly went to
Afghanistan in early 1998 to take military and religious training at Camp
Khalden.
[15]
The
summary of additional evidence is reproduced in its entirety in Schedule A
to this judgment. As a separate point, following a request by the Court,
counsel for the reporters agreed to provide the Court with a copy of the
document on which the articles published in La Presse and Le Droit
are based, entitled Former Terrorist Training Camps in Afghanistan: Major
Sites and Assessment. The document was given to the registry for designated
proceedings in a brown envelope to be opened only by myself, which was done in
the presence of counsel for the Ministers at the ex parte hearing on
November 14, 2007. The Court treated the document as if it were top
secret, as indicated in the articles, as per paragraph 78(b) of the
IRPA.
[16]
Through
his counsel, Mr. Charkaoui submits that, since the document had been
mentioned in the newspaper articles, it was part of the public domain and
therefore should be disclosed. In the alternative, they ask the Court to answer
the following questions as part of the motion to set aside the certificate
proceeding:
(1) Was the document top secret
when it was leaked and made public by La Presse?
(2) Had the document been
declassified when it was leaked and made public by La Presse?
(3) Is CSIS the source of the
document?
(4) Should the document not have
been disclosed, in accordance with the Act?
(5) What is the name, title and
function of the document’s author?
(6) What is the name, title and
function of the source and recipient of the document?
(7) What was the goal (objective)
of the document?
[17]
In view of
the arguments heard in public on October 25, 2007, and the submissions
dated September 7, 2007, it seems the Ministers agreed with the procedure
for handing over the document through the registry for designated proceedings,
subsequently submitting it to the Court and opening the envelope in the
presence of counsel for the Ministers. However, the Court notes that, according
to a letter dated September 21, 2007, from the Ministers’ counsel, the
Attorney General of Canada had been notified, in accordance with
subsection 38.03(3) of the Canada Evidence Act, R.S.C. 1985, c. C‑5,
(Evidence Act) concerning the information related to
Mr. Charkaoui’s certificate proceeding. The Court has held the hearings
since that date. Under subsection 38.03(3) of the Evidence Act, the
Attorney General is required to provide a written decision within ten days
after the day on which he first received the notice. No decision was received.
On November 25, 2007, counsel for the Ministers informed the Court that,
since the document was being treated confidentially in accordance with
section 78 of the IRPA, the notice to the Attorney General of Canada would
be withdrawn.
[18]
After
reading, in the presence of counsel for the Ministers, the contents of the
envelope, that is, the document on which the June 22, 2007 articles are
based, the Court is ready to respond to Mr. Charkaoui’s attorneys’
questions, while taking into account its duty not to disclose information that
would be injurious to national security or to the safety of any person. In the
light of the exceptional nature of this case, however, special attention needs
to be paid to the public interest, the judicial system, the administration of
justice and Mr. Charkaoui’s rights. All the issues at stake must therefore
be weighed in providing reasonable answers to the questions. First of all, the
document cannot be disclosed. It is a protected document and is described in
the definition of “information” in section 76 of the IRPA, which reads as
follows:
[M]eans security or criminal
intelligence information and information that is obtained in confidence from a
source in Canada, from the government of a foreign state, from an international
organization of states or from an institution of either of them.
[19]
The
document addresses many topics and mentions a number of people. The information
concerning Mr. Charkaoui is disclosed in this judgment. The answers to Mr. Charkaoui’s
questions are as follows:
Table 1 Mr. Charkaoui’s questions
and answers
Questions from Mr. Charkaoui
|
Answers to Mr. Charkaoui’s
questions
|
|
1.
Was the document top secret when it was leaked and made public by La Presse?
|
No,
the document was secret when the newspaper articles were published on
June 22, 2007, and it is still secret. It addresses many topics and
people, as well as Mr. Charkaoui, albeit briefly.
|
|
2.
Had the document been declassified when it was leaked and made public by La Presse?
|
The answer to the first question
answers this one.
|
|
3.
Is CSIS the source of the document?
|
Yes,
the document is from CSIS’s Intelligence Assessment Branch, formerly known as
Research, Analysis and Production.
|
|
4.
Should the document not have been disclosed, in accordance with the Act?
|
Information
gathered by CSIS as part of its duties and functions can be disclosed only in
accordance with section 19 of the Canadian Security Intelligence
Service Act, R.S.C. 1985, c. C‑23. In addition, according
to sections 76 et seq. of the IRPA, the information could not be
disclosed.
|
|
5.
What is the name, title and function of the document’s author?
|
There
is no author indicated on the document, except that there is a reference to
CSIS’s Intelligence Assessment Branch.
|
|
6.
What is the name, title and function of the source and recipient of the
document?
|
CSIS
sent the information and analysis document to several Government of Canada
departments and a number of national and international agencies in the
intelligence community, which are all cleared to receive this type of
document.
|
|
7.
What was the goal (objective) of the document?
|
It
is an information and analysis document that discusses a form of threat to
Canada at a certain point in time. A few training camps in Afghanistan are
identified. Many people are mentioned. Mr. Charkaoui is mentioned in
text referring to certain training camps. Most of the document deals with
other topics and/or people.
|
(C) articles published in La Presse and Le Droit
[20]
On Friday,
June 22, 2007, the newspapers La Presse and Le Droit
gave front‑page coverage to two articles entitled:
-
“Charkaoui
a‑t‑il discuté d’un attentat?” (Did Charkaoui discuss an attack?)
on pages A2 and A3 of La Presse.
-
“Charkaoui
voulait être kamikaze selon le SCRS” (CSIS: Charkaoui wanted to be a suicide
attacker) on the front page of Le Droit and, on a full page (3),
“Les services secrets soupçonnent Charkaoui d’un scénario similaire au
« onze septembre »” (Spy agency suspects Charkaoui of plot similar to
September 11) and “En février, Adil Charkaoui gagnait une bataille” (Adil
Charkaoui won battle in February).
[21]
These
articles were written jointly by La Presse reporters Joël‑Denis
Bellavance and Gilles Toupin.
[22]
The
articles report that on June 25, 2000, Hashim Tahir,
who had spent six months in Pakistan in 1999, had a conversation with
Mr. Charkaoui and that they allegedly discussed a terrorist attack by
hijacking an aircraft flying from Montreal to an unknown foreign destination,
possibly in Europe, with a plan that was similar to the one involving multiple
terrorist attacks on September 11, 2001.
[23]
This [translation]
“top secret” information, according to the reporters, was based on a CSIS
document entitled Former Terrorist Training Camps in Afghanistan: Major Sites
and Assessment, dated April 12, 2003. It was provided by an anonymous
source. The information in the document, which has not been proven in court,
was used by the Canadian authorities to obtain from a Federal Court judge a
security certificate naming Mr. Charkaoui, according to a [translation]
“government source”.
[24]
The
document also indicates that Mr. Charkaoui trained at two Afghan terrorist
camps in 1998, camps Khalden and Derunia, both under the control of Al Qaeda.
According to the reporters, the confidential information used as a basis for
the published articles provides an overview of the terrorist training camps
based on information obtained from intelligence agencies in the U.S., Great
Britain, New Zealand, Australia and Canada.
[25]
In those
articles, Mr. Charkaoui vehemently and categorically denied the
information, adding that it seriously damaged his reputation. According to him,
the leak, in breach of the rules of the Federal Court and the Information
Commissioner, shows that CSIS is plugging gaps to draw attention away from its
incompetence and the initial error it made in launching an investigation into
his activities.
[26]
The other
article that was published is limited to a summary decision in Charkaoui v.
Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, a decision of
the Supreme Court where it determined that the certificate procedure was
unconstitutional because the evidence heard while the person concerned was not
present had not been adequately tested. Section 7 of the Charter had
therefore been infringed. In conclusion, the article states that it was now up
to the government to respond to the Supreme Court’s decision.
[27]
The
evidence shows that the contents of these articles were repeatedly reported by
many press agencies, in both official languages.
Summary of Joël‑Denis
Bellavance’s testimony
[28]
As
mentioned above, Joël‑Denis Bellavance and Gilles Toupin drafted articles
published in La Presse and Le Droit on June 22,
2007. Mr. Bellavance testified. I will summarize what he has testified to
so far. Mr. Toupin’s testimony will be heard when the hearing resumes,
after the parties come to an agreement.
[29]
The titles
“Charkaoui a‑t‑il discuté d’un attentat?” (La Presse)
and “Charkaoui voulait être un kamikaze selon le SCRS” (Le Droit)
were not thought up by the reporters, but rather by the dailies’ News Desk
Editor.
[30]
Mr. Bellavance
has 17 years of experience in journalism. He has worked for the Canadian
Press, Le Droit and Le Soleil and has been a reporter at La Presse
since September 2001.
[31]
There are
no policies or guidelines concerning anonymity and how to treat sources at La Presse.
[32]
In
general, at La Presse and other newspapers, when reporters make a
commitment to a source to protect his or her identity, they honour to it [translation]
“to the bitter end”.
[33]
Mr. Bellavance
was aware of article 6 (Protection of sources and reporteric material) of
the Professional Code of Ethic for Quebec Journalists and adhered to the rules
when he spoke with his sources. The guidelines are included in Schedule C,
article 6 of the Professional Code of Ethics.
[34]
The reporters
relied on both human and documentary sources for their reporting. The newspaper
article states that it is based on [translation] “human sources”.
[35]
According
to Mr. Bellavance, the sources are confidential because he promised them
he would protect their identities, and this promise was made [translation]
“formally, solemnly and unequivocally”. The promise was given at the request of
the sources. Although the sources’ potential concerns were not discussed, it
was [translation] “obvious” to the reporter, in the light of the person
concerned, that the source did not have to explain why he or she wanted to
remain anonymous. [translation] “The source didn’t have to spell it out
for me”, he said.
[36]
The
reporter started preparing his article in March 2007.
[37]
According
to the reporter, the genuineness of the information [translation] “used by the Canadian
authorities to obtain from a Federal Court judge a security certificate naming
Mr. Charkaoui” was confirmed by a [translation] “government source” five
days before the articles were published. The government source also confirmed
the genuineness of the document on which the article was based. After the
source provided this latest information, a decision was made to publish the
article.
[38]
Both
reporters spoke to Mr. Charkaoui before the article was published.
Mr. Toupin led the interview. He told Mr. Charkaoui that he was
concerned that, in the light of the nature of the document, a search would be
carried out following the publication of the article.
[39]
The Vice
President of News and Editor in Chief of La Presse authorized the
article’s publication. He was aware of the contents of the document but did not
know the name of the source who gave it to the reporter. However, he knew the
name of the government source.
[40]
According
to the reporter, the June 22, 2007 article was based on information from a
confidential document of the Canadian Security Intelligence Service dated
April 12, 2003, entitled Former Terrorist Training Camps in
Afghanistan: Major Sites and Assessment, and the information about
Mr. Charkaoui in the document was [translation] “top secret”.
[41]
Mr. Bellavance
acknowledges he does not have the required security clearance to have this
document in his possession. In fact, he has no security clearance.
[42]
Counsel
for the parties agreed that the summons to appear should remain valid for
future dates for both reporters.
Positions of the parties
(I) The interveners
[43]
Given that
the reporters had signed affidavits in support of their motion to quash the
subpoenas, their counsel does not object to their each being examined, provided
that the examination is limited to the content of the affidavit. However,
counsel objects to any questions that could directly or indirectly identify the
human sources who supplied the document and who confirmed that this information
was used to obtain a certificate against Mr. Charkaoui. As regards the
subpoena duces tecum concerning the document on which the newspaper articles
are based, it was submitted to the Court, as noted above.
[44]
The
interveners object to the disclosure of the human sources, because the right to
freedom of expression guaranteed by paragraph 2(b) of the Charter
encompasses freedom of the press and, incidentally, the protection of
reporters’ sources.
[45]
Underlying
this protection is the notion that the relationship between reporters and their
sources is founded on the condition of anonymity required by the source and
offered by the reporter. This relationship is in the public interest, as it
makes an important contribution to the exercise of freedom of expression. If
this protection were not offered, the ability of reporters to collect and
release information would be jeopardized, resulting in an infringement of
freedom of expression and freedom of the press.
[46]
It is
argued that the reporters are covered by a privilege in this Court and
therefore have the right not to disclose their sources.
[47]
For this
reason, it is argued that the objections to the questions should be upheld.
[48]
Furthermore,
it is argued that the information sought from the reporters, that is, the names
of the sources for the articles, is not relevant to the motion to quash the
certificate proceeding. According to the reporters, Mr. Charkaoui has not
demonstrated how the requested information is relevant to his motion.
[49]
They add
that the newspaper articles reveal all that should be revealed and that, for
the purposes of the motion to quash the certificate proceeding, disclosure of
the human sources of these articles is not essential.
[50]
Moreover,
should the Court decide that it must weigh Mr. Charkaoui’s fundamental
rights against those of the reporters, this balancing must be based on the
particular circumstances of the case. Revealing the names of the reporters’
sources would undoubtedly imperil press freedom, especially since the requested
information is not essential to Mr. Charkaoui’s motion.
[51]
Finally,
it is argued that there are other means of obtaining the requested information.
The document on which the newspaper articles were based has been disclosed.
Consequently, the reporters are under no obligation to explain the
circumstances of the disclosure.
(II) Mr. Charkaoui
[52]
Counsel
for Mr. Charkaoui, meanwhile, raise the following arguments:
-
The
reporters signed affidavits touching on facts relevant to their motion to quash
the subpoenas; for this reason, they have opened the door to their being
examined and can be compelled to do so;
-
For the
purposes of their testimony, the reporters are ordinary witnesses;
-
The
exceptions to the duty to testify do not apply to the reporters’ situation as
described in the case at bar; and
-
The
Charter and the common law do not exempt the reporters from testifying or from
answering questions.
[53]
In support
of these arguments, counsel for Mr. Charkaoui submit that the reporters’
testimony is relevant to the motion to quash the certificate proceeding. The
reporters signed an affidavit in which Mr. Bellavance states that he
received the information from [translation] “confidential
sources” after having made a [translation] “promise
of confidentiality”. Both Mr. Bellavance and Mr. Toupin deny having
told Mr. Charkaoui in a telephone conversation that the document had been
obtained from a retired member of CSIS and having contacted CSIS before calling
him. They jointly wrote the newspaper articles reporting the information
implicating Mr. Charkaoui. These facts should be subject to an
examination.
[54]
The
reporters’ testimony concerning the circumstances surrounding the leak of the
document and the confirmation of the top‑secret information as having
been used to obtain the security certificate against Mr. Charkaoui is
highly relevant to showing abuse of process, fault and consequently the
magnitude of the violation of Mr. Charkaoui’s constitutional rights. Their
testimonies are needed to complement the evidence in Mr. Charkaoui’s case
because there are no other means to prove the circumstances surrounding the
document’s leak and the confirmation of the top‑secret information. Their
testimonies are thus crucial to the motion to quash the security certificate.
[55]
The
reporters cannot invoke any privilege exempting them from testifying or
answering certain questions. They are compellable.
[56]
In order
to invoke a privilege to avoid answering certain questions, the reporters must
show that they meet the four tests outlined by John Henry Wigmore in Evidence
in Trials at Common Law, Vol. 8, revised by John T. McNaughton, Boston:
Little, Brown & Co., 1961, at page 527:
(1)
The
communications must originate in a confidence that they will not be disclosed;
(2)
This
element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties;
(3)
The
relation must be one which in the opinion of the community ought to be
sedulously fostered; and
(4)
The injury
that would inure to the relation by the disclosure of the communications must
be greater than the benefit thereby gained for the correct disposal of
litigation.
[57]
In
Mr. Charkaoui’s view, the reporters do not meet the first two tests,
because the information was disclosed to the public through the publication of
the newspaper articles.
[58]
The same
argument applies to the other two tests, since a secret document was leaked in
violation of the Act. Moreover, a reporter–source relationship allowing the
disclosure of a secret document and the dissemination of confidential
information is not the sort of relationship that society should encourage as a
social value.
[59]
The
identity of the sources is important, because the person holding this secret
document decided to hand it over to a reporter knowing that such a leak would
have a profoundly negative impact on Mr. Charkaoui’s reputation, safety
and freedom by depriving him of protection under the Act. A parallel was drawn
with Mr. Arar, who also paid a heavy price when police or government
sources leaked information to reporters. The Court was referred to the report
of the Commission of Inquiry into the Actions of Canadian Officials in Relation
to Maher Arar, Report of the Events Relating to Maher Arar, Factual
Background, Volume II, page 490, Section 9.2.7, final paragraph.
[60]
As regards
balancing the rights at stake, Mr. Charkaoui submits his rights should
prevail. These rights are not limited to the right to disclosure of information
for the purposes of the motion to quash the certificate proceeding, but should
also include his rights to life, liberty and security of the person, the right
to privacy and the right to enforcement of and respect for the law. All this
militates in favour of revealing the sources.
(III) The Ministers
[61]
The
Ministers take no position with regard to the dispute between
Mr. Charkaoui and the interveners and defer to the decision of the Court.
(F) Analysis
[62]
To
adequately answer to the question of whether or not to uphold the objections to
the questions put to the reporter Bellavance, I intend to address the following
points in my analysis:
-
The motion
to quash the certificate proceeding for abuse of process arising from the
publication of confidential information in the daily newspapers La Presse
and Le Droit on June 22, 2007;
-
The
relevance of the requested information to the motion to quash the certificate
proceeding;
-
The impact
that the publication of the confidential information will have on the judicial
system, the administration of justice, the current proceeding and
Mr. Charkaoui;
-
The reporteric
decision to publish the confidential information;
-
The
Charter, freedom of expression, freedom of the press and our democratic system
of government;
-
The
compellability of the reporters as witnesses and the application of the Wigmore
tests; and
-
The
decisions concerning the objections to the questions.
(I) Motion
to quash the certificate proceeding for abuse of process arising from the
publication of confidential information in the daily newspapers La Presse
and Le Droit on June 22, 2007
[63]
In the
light of the circumstances surrounding this case; the certificate proceeding in
progress, its history, its extraordinary characteristics and its cumbersome and
informative process; the current stage of the proceedings (before hearing on
the reasonableness of the certificate); the legislative amendments to come; the
publication of top‑secret information from the record; the rights of
Mr. Charkaoui, the motion to quash the certificate proceeding for abuse of
process is serious and is certainly not an example of frivolous litigation.
[64]
At this
stage in the proceedings, the Court has no intention of ruling on the merits of
the case. When it hands down that judgment will depend on how the case
progresses. At any rate, it is important to determine the rationale behind this
proceeding, bearing in mind the circumstances surrounding this case since its
commencement.
(II)
Relevance of the sought information to the motion to quash the
certificate proceeding
[65]
Schedule B
to this judgment is a document reproducing the wording of 25 questions to
which objections were raised. Several of these questions, as we shall see, have
been answered. These questions may be grouped into three categories: those
related to the document, those concerning the reporteric work done and those
regarding the human sources. Schedule B arranges the questions according
to the same categories.
[66]
With
regard to the first category, it was noted above that the document was
submitted to the Court. The objections with respect to questions 3, 10,
16, 18, 19, 21 and 23 decided taking into account the objections raised, the
duty imposed on the undersigned by paragraphs 78(b), (e) and
(h) of the IRPA, Mr. Charkaoui’s submissions and the questions
which he asked regarding the document and which the Court has answered at
paragraph 19 of this judgment.
[67]
The
objections with respect to questions 1, 13, 14, 20 and 25 concern the reporteric
work done.
[68]
The third
category, the questions related to the human sources, includes
questions 2, 4, 5, 6, 7, 8, 9, 11, 12, 15, 17, 22 and 24.
[69]
For the
purposes of this judgment, the questions are numbered according to the document
filed in Schedule B hereto. The objections to the questions will be dealt
with later.
[70]
To assess
the relevance of the questions and the sought information for evidentiary
purposes, it is important to understand the purpose of the questions. As was
stated above, the questions concerning the document will be addressed
separately, given that this document has been submitted to the Court. As for
the questions involving the reporters’ work in preparing the articles and those
related to the human sources for the articles, these are all intrinsically
related. The main article is based on the information in the document
concerning Mr. Charkaoui, which was leaked by the source to the reporter,
and on the confirmation that this information was used for the certificate
proceeding. This is part of the reporters’ work.
[71]
As was
noted by counsel for Mr. Charkaoui, the examinations of the reporters are
essential for the motion to quash. The information can only be secured through
the reporters. Counsel are seeking to prove that the leaked information came
from government sources in a position to hold this documentation or such
information. To this end, they argue that the decision to leak this document
and confirm certain information amounts to an abuse of process warranting the
quashing of the certificate proceeding. Without evidence of this, it will be
difficult for them to fully argue their theory regarding the motion.
[72]
Let us now
turn to what the case law and the doctrine tell us about the concept of
relevance in such a situation. Sopinka J., writing on behalf of the Supreme
Court in R. v. Zealkowski, [1989] 1 S.C.R. 1378, at
page 1386, defined the expression “all relevant evidence” as follows:
In my opinion, this expression
means all facts which are logically probative of the issue. The general rule of
evidence is that all relevant evidence is admissible.
[73]
In Cloutier
v. The Queen, [1979] 2 S.C.R. 709, at page 733, Pratte J. stated
the following:
The relevance of a fact that
is sought to be introduced in evidence must of course be determined in
accordance with the nature of the case and the various questions at issue.
[74]
In the
case at bar, given that fundamental freedoms such as freedom of expression and
freedom of the press, on the one hand, must be weighed against
Mr. Charkaoui’s freedoms, on the other, the relevance of the information
sought for the purposes of the proceeding is not the only criterion to be
considered. It must also be asked whether it is appropriate and necessary to
seek out information that is in the best interests of justice. It is therefore
important to ask ourselves whether there are other means by which the
information could be obtained. It must be established that knowledge of the
information might have an impact on the ultimate result of the proceedings in
progress. In other words, the information must be essential to and necessary
for the ultimate proceedings. This must not be used as an opportunity to
collect information, a fishing expedition, and must not be based on conjecture.
Relevance alone is not enough; the best interests of justice must be at stake.
[75]
The
certificate proceedings are exceptional. The so‑called top‑secret
information revealed by the newspapers is what would be classified as secret by
government standards. The allegations against Mr. Charkaoui are unusual.
Not just anyone could have leaked the document and confirmed the information.
The involvement of the judicial system, the interests of justice and the reporteric
decision to publish this information make this a highly unusual situation. A
reading of the questions reveals their nexus with the objectives of the motion
and the motivation underlying the content of those questions, which is to
ensure that the truth comes out. Given the nature of the case and the issues at
stake, all of the questions are highly relevant.
(III) Impact
of the publication of the confidential information on the judicial system, the
administration of justice, Mr. Charkaoui and the current proceedings
[76]
Part of
the information forming the basis for the newspaper articles in question was
held by the Ministers (at the time the decision to co‑sign the
certificate was made) and the Court, for the purpose of assessing the
reasonableness of the certificate and, incidentally, the detention. However,
the document given by the source to the reporter was not.
[77]
The
information is classified as “secret”, since it was collected during
investigations by the use of operational methods that must not be disclosed. In
theory, in the light of the sources involved, the publication of this
information could endanger the safety of others. For the informed reader, this
type of information discloses a great deal more than it would appear to
disclose on the surface.
[78]
The Court
was neither allowed nor able to disclose this information, given the
obligations imposed by law on the designated judge sitting in such matters (see
section 76 (information) and paragraphs 78(b) and 78(e)
of the IRPA). Moreover, the designated judge shall disclose information in the
form of a summary of the evidence that is designed to inform interested parties
adequately of the circumstances giving rise to the certificate but that does
not contain anything that would be injurious to national security or to the
safety of any person if disclosed (see paragraph 78(h) of the
IRPA). This is what the Court did when it prepared the first summary of the
evidence on May 23, 2003, at paragraph 35, which reads as follows:
[translation]
Air France
An individual of Sudanese
origin who lives in Montréal was suspected, with other individuals, of
preparing a terrorist attack against an Air France aircraft.64
It should be noted that the footnote number 64 leads the
reader to the La Presse article dated September 25, 2001,
under the byline of reporter André Noël, the title of which is “Le FBI
interroge encore Ressam” (FBI still questioning Ressam). In that report, we
learn that:
[translation]
the FBI, the Royal Canadian
Mounted Police, the Canadian Security Intelligence Service (CSIS) and the
French police are interested in several people who were allegedly linked with
Ressam and, indirectly, with Bin Laden. Among these people is a former citizen
of Sudan who lives in Montréal and is suspected of having participated in a
group that allegedly conspired recently to blow up an Air France jet.
[79]
An
informed reader who examined this information would know how to read this
description of the situation, including the reference, and understand the
intended message. Obviously, for an ordinary reader, this kind of information
is merely descriptive. The advantage of such an approach is that it protects
the investigators, their methods of operation and the safety of others, as
appropriate. However, an informed reader will understand the situation
described and what he or she is supposed to obtain from it, albeit without
being informed of other details, which might disclose too much.
[80]
Thus, the
decision to publish the secret information constituted a contravention of
section 78 of the IRPA. If the judge could not disclose this information
for the reasons given earlier, it goes without saying that a third party could
not do so. Furthermore, the publication of the information seriously blemishes
the duty of the judge to “ensure” the confidentiality of the information on
which the certificate is based (see paragraph 78(b) of the IRPA).
[81]
The certificate
procedure is one that is out of the ordinary, if we compare it with traditional
court proceedings. The designated judge who presides over such proceedings must
comply with the strict obligations imposed by law, such as preparing a summary
of the evidence, carefully examining the evidence, hearing testimony, reviewing
detentions or imposing preventive conditions for release. In Charkaoui v.
Canada (Citizenship and Immigration) (supra), at paragraph 34,
the Chief Justice, writing for the Supreme Court, recognized that the
designated judge has been aptly described as the “cornerstone” of the procedure
described in the IRPA.
[82]
In
performing this role, the judge has an obligation to “ensure” the
confidentiality of the information (paragraph 78(b) of the IRPA)
while keeping the named person sufficiently informed through a summary of the
evidence and not disclosing any information that is injurious to national
security or to the safety of any person. When secret information is disclosed,
the judicial system suffers the harmful consequences. The administration of
justice is directly affected, and the certificate proceeding suffers the
repercussions thereof. The interests of justice are not served in any way by
such publication of information.
[83]
Moreover,
confirmation by a government source that top‑secret information had
been used earlier by the Canadian authorities in order to persuade a Federal
Court judge to issue a security certificate respecting Mr. Charkaoui gives
credit to the report, although this information is not accurate. It is not the
judge who issues the certificate but rather the Ministers who co‑sign it
in order to file it with the Registry of the Court so that the designated judge
may determine whether the certificate is reasonable. It is true, however, that
the information is part of the Court record. It is also interesting to note
that the evidence indicates that, following this confirmation, the decision was
made by the newspaper to publish the information; in accordance with standard reporteric
practice, information must be corroborated before it can be published.
[84]
The leak
of the document to the reporter Bellavance, the confirmation of the information
by a government source and the publication of the information had a
deleterious impact on the entire judicial system and the administration of
justice.
[85]
Furthermore,
the publication of this information can have only harmful consequences for
Mr. Charkaoui. His fundamental rights may be affected.
(IV) Journalistic
decision to publish the information
[86]
The
evidence indicates that the CSIS document entitled Former Terrorist Training
Camps in Afghanistan: Major Sites and Assessment, completed on April 12,
2003, was given to the reporter Bellavance by a human source in
March 2007, at the time when the reporter was beginning to prepare the
report. On or about June 17, 2007, five days before the report was
published, the government source confirmed that the document obtained and
the information concerning Mr. Charkaoui were genuine. In the days leading
up to the publication, the reporters contacted Mr. Charkaoui and one of
his lawyers, Ms. Doyon. In a memorandum, the reporter Toupin indicated on
June 21, 2007, that [translation] “for the time being, our
lawyers were studying the matter”. The Vice‑President of News and Editor‑in‑Chief
of La Presse at the time the decision was made to permit
publication of the reports was informed about the contents of the document but
did not know the name of the source behind the leak. However, he did know the
name of the government source.
[87]
In the
June 22, 2007 editions of both La Presse and Le Droit,
which have the same owner, the articles appeared with bold titles in order to
capture the attention of the reader.
[88]
In La Presse,
we find the articles published with titles and accompanying photographs on
pages A2 and A3 of the June 22, 2007 edition. We also find an article
on CSIS there, and another on the case of Maher Arar.
[89]
On the
first page of the June 22, 2007 edition of Le Droit, we find
the title “Charkaoui voulait être kamikaze, selon le SCRS” (Charkaoui wanted to
be a kamikaze, according to CSIS), with a reference to articles inside the
newspaper on page 3 under the title “Les Services secret soupçonnent
Charkaoui d’un scenario similaire au onze septembre” (The Secret Services
suspect Charkaoui of having planned a scenario similar to September 11),
with accompanying photographs.
[90]
Given the
objections raised against the questions, which are essential to the motion, the
evidence has not to date indicated in a general way the reporteric work that
formed the basis of the report and does not explain in what way the disclosure
of this information is in the public interest. In this regard, counsel for the
reporters stated the following during oral arguments in response to a question
from the Court concerning the public interest:
[translation]
The public interest is simple.
There is a security certificate proceeding; people want to know what is
happening, want to know how we are handling . . . (see page 43
of the transcripts)
. . . but a
distinction must be made in terms of the public interest; I discuss an article
I am going to write and where my information comes from with my superiors. He
did not disclose his source because he had a duty of confidentiality, in his
mind, but at La Presse they analyzed; it’s his testimony, the
article in terms of the public interest (see page 48 of the transcripts).
According to this
reasoning, there must be disclosure as soon as the public’s curiosity is
aroused, regardless of national security interests.
(V)
The Charter, freedom of expression, freedom of the press and our
democratic system
[91]
At this
stage, the dispute involves individuals (the reporters and Mr. Charkaoui).
If there were government action, it would fall within the scope of the motion
to quash the certificate proceeding for abuse of process, but here again, for
now, this is merely hypothetical.
[92]
That said,
the fact remains that the Charter and the principles set out in
paragraph 2(b) must be taken into consideration when ruling on the
objections to the questions.
2. Everyone has the following
fundamental freedoms:
(b) freedom of thought, belief, opinion and
expression, including freedom of the press and other media of communication.
[93]
In Edmonton
Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, at
paragraph 3, Cory J., writing on behalf of the Court, made the
following observations concerning these fundamental rights:
It is difficult
to imagine a guaranteed right more important to a democratic society than
freedom of expression. Indeed a democracy cannot exist without that
freedom to express new ideas and to put forward opinions about the functioning
of public institutions. The concept of free and uninhibited speech
permeates all truly democratic societies and institutions. The vital
importance of the concept cannot be over‑emphasized.
[94]
In a
subsequent decision of the Supreme Court, Canadian Broadcasting Corp. v.
Lessard, [1991] 3 S.C.R. 421, at paragraph 2,
Laforest J. added to the concept advanced earlier by including the idea
that freedom of the press and other media is essential in a democratic society
and includes “the right to
disseminate news, information and beliefs. This was the manner in which the
right was originally worded, in the first draft of s. 2(b) of the Canadian
Charter of Rights and Freedoms before its expansion to its present form”. In the view of
Laforest J., the right to disseminate news also includes the right to
collect it.
[95]
In that
decision, although McLachlin J. (as she then was) was in the minority, she
placed such importance on freedom of the press that, in her opinion, this
fundamental right had to be interpreted “in a generous and liberal fashion having regard to the
history of the guarantee and focusing on the purpose of the guarantee”. She invoked the observations
of Lord Denning M.R., in England, in Senior v. Holdsworth, ex parte
Independent Television News Ltd,.[1976] 1 Q.R. 23 (C.A.), at
page 34:
[T]here is the special
position of the reporter or reporter who gathers news of public concern. The
courts respect his work and will not hamper it more than necessary.
[96]
The
Supreme Court has clearly recognized the essential importance of freedom of the
press in a democratic society, but this freedom is not absolute. The press is
protected against state interference, but not against all other interference.
In this connection, L’Heureux‑Dubé J. summarized the situation as
follows in Lessard, supra, at page 15:
Important as the constitutional protection of
the freedom of the press is, it does not go as far as guaranteeing the press
special privileges which ordinary citizens, also innocent third parties, would
not enjoy in a search for evidence of a crime. The law does not make such
a distinction and the Charter does not warrant it. In fact, the press
itself does not generally request special privileges.
(VI)
Compellability of reporters as witnesses and application of the Wigmore
tests
[100]
In Moysa
v. Alberta (Labour Relations Board), [1989] 1 S.C.R. 1572, the
Supreme Court hesitated to express an opinion on the existence of such a
privilege for reporters. It clarified its position later in R. v. McClure,
[2001] 1 S.C.R. 445, which involved solicitor–client privilege.
Other confidential relationships are not protected by a class
privilege, but may be protected on a case‑by‑case basis. Examples
of such relationships include doctor–patient, psychologist–patient, reporter–informant
and religious communications (see
paragraph 29 of the decision).
[102] He added that, in order to
assess this, it was necessary to make use of the tests set out by John Henry
Wigmore in Evidence in Trials at Common Law, supra, at
paragraph 56, where the four tests are stated.
Test
#1: The communications must originate in a confidence that they will not be
disclosed
Test #2:
This element of confidentiality must be essential to the full and satisfactory
maintenance of the relation between the parties
Test #3: The relation must be one which
in the opinion of the community ought to be sedulously fostered
[107]
Moreover, it is not necessarily true that all of
the values associated with freedom of the press are protected by the Charter.
The unlawfulness of a report has in the past drawn the eye of the courts. In Lessard,
supra, in the analysis of paragraph 2(b) of the Charter in her
dissenting opinion at page 30, McLachlin J. (as she then was) made
the following observations:
I add that it is not every state restriction on the press which
infringes s. 2(b). Press activities which are not related to the
values fundamental to freedom of the press may not merit Charter
protection: see Irwin Toy Ltd. v. Quebec (Attorney General), supra.
For example, the press might not be entitled to Charter protection with
respect to documents relating to an alleged offence by the press itself.
[108]
In The Law of Evidence in Canada, Second
Edition, published by Butterworths, Sopinka, Lederman and Bryant made
observations regarding the Wigmore tests. Reference is made to an English case,
“X” Ltd. v. Morgan Grampian Publishers Ltd. (1990),
110 N.R. 367 (H.L.), which quoted Lord Bridge at paragraph 19,
page 375, where he weighed different public interests, in particular the
manner in which the information was obtained:
But another and perhaps more
significant factor which will very much affect the importance of protecting the
source will be the manner in which the information was itself obtained by the
source. If it appears to the Court that the information was obtained
legitimately this will enhance the importance of protecting the source.
Conversely by, if it appears that the information was obtained illegally, this
will diminish the importance of protecting the source unless, of course, this
factor is counter balanced by a clear public interest in publication of the
information, as in the classic case where the source has acted for the purpose
of exposing iniquity.
[109]
Regarding the argument that sources would dry up
in the future if reporters were to reveal their sources, I note that the relationship between
source and reporter is a very special one and that, when secret information is
involved, social values are such that public opinion does not hold it in high
regard. Moreover, the evidence, in particular the reporters’ affidavits, does
not reveal facts which clearly tend to confirm this theory. There is nothing
more than general allegations.
[110]
The Supreme Court decisions in Moysa and
Lessard, supra, state that the “chilling effect” must be proven with
supporting evidence. Simply put, it is not enough to invoke the possibility of
sources drying up. Evidence must be put forward. In the interest of clarifying
this point, I quote from the following excerpts from those decisions:
Sopinka J.
Even if I assume
for the moment that the right to gather the news is constitutionally enshrined
in s. 2(b) the appellant has not demonstrated that compelling reporters
to testify before bodies such as the Labour Relations Board would detrimentally
affect reporters’ ability to gather information. No evidence was placed before
the Court suggesting that such a direct link exists. While judicial notice may
be taken of self‑evident facts, I am not convinced that it is
indisputable that there is a direct relationship between testimonial compulsion
and a “drying‑up” of news sources as alleged by the appellant.
(Moysa, supra, at
page 10)
Laforest J., writing for the majority in Lessard,
supra, had this to say at page 12 in response to the argument that a
general prohibition against searches of media premises is necessary to prevent
the drying‑up of sources:
. . . I am, on the whole, of the
opinion that this connection is simply too attenuated; see Moysa v. Alberta
(Labour Relations Board), [1989] 1 S.C.R. 1572, at p. 1581,
where compulsion of testimony from a reporter was held not to violate
s. 2(b) in the absence of evidence that such compulsion would
detrimentally affect the reporter's ability to gather information. Should there
be evidence in a future case that this does indeed give rise to a real problem,
the issue can be addressed at that time.
[111]
The application of Test #3 to the facts of
this case does not militate in favour of the recognition of a privilege.
Test #4: The injury that would be caused to the relationship by the disclosure
of the communications must be greater than the benefit thereby gained for the
correct disposal of litigation
[112]
Test #4 entails a balancing of two
conflicting imperatives where one must prevail over the other. In other words,
it must be shown that if the confidentiality of the sources is removed, there
will be permanent injury to the source‑ reporter
relationship that will outweigh the resulting benefit.
[113]
Will the source–reporter
relationship sustain permanent injury if the names of the sources are revealed?
There is no doubt that, in the case at bar, the relationship between the
sources and reporter Bellavance would be irrevocably broken. However, other existing and
future source‑reporter relationships would not necessarily be broken. The difference
between these relationships is that the relationship between Bellavance and his
sources is based on the unlawful disclosure and confirmation of a secret
document and information for publication, which directly affects the justice
system, the administration of justice, the current proceeding and some of
Mr. Charkaoui’s basic rights, whereas the other relationships have a
different basis. The relationships underlying the articles and the publication
of information on June 22, 2007, are at odds with the duties imposed by
the IRPA. In the field of journalism, it is normal to have contacts in the
realms of politics, labour relations, government and so on. Such contacts
promote freedom of expression and thus ensure the exchange of ideas and
opinions in the interests of a free and democratic society. Reporters’ contacts would not be affected by disclosure of the names of the
sources that the reporter Bellavance used for the articles that appeared in the daily
newspapers La Presse and Le Droit on June 22, 2007.
[114]
In contrast, Mr. Charkaoui is entitled to
produce the necessary evidence related to his motion to quash the certificate
proceeding for abuse of process. Of course, he has to produce or endeavour to
obtain relevant evidence for his motion. He has the right to do so using
traditional evidentiary means. He is trying to show that disclosure of the
information in the reports is unlawful, abusive, prejudicial and attributable
to a government body. To get to the bottom of the matter, he needs reporteric
information to demonstrate the provenance of the information and the reasons for
this action. Mr. Charkaoui likens his situation to that of
Maher Arar, who was the subject of disturbing leaks. In his Report of
the Events Relating to Maher Arar (supra), Factual Background,
Volume II, page 490, O’Connor J. made the following observation
about one of the leaks:
This leak has troubling
implications. It is very disturbing that a government official or officials
chose to breach the confidentiality that was essential in conducting the
Inquiry’s in camera hearings.
The same is true in the case at bar, which, moreover,
involves judicial proceedings.
[115]
The result for Mr. Charkaoui was that the
press portrayed him as a suicide attacker, according to CSIS, and implicated
him in an terrorist plot, which is extremely serious.
[116]
Mr. Charkaoui has no other way to get to
the bottom of things and produce the evidence he believes is essential to his
motion to quash the certificate proceeding for abuse of process. Upholding the
objection and not revealing the information could hinder the case.
[117]
With regard to Wigmore’s fourth test, I
therefore hold that the identification of press sources will not cause
permanent injury to source–reporter
relationships because of the very specific
circumstances of the case. Far more importantly, the information sought by Mr. Charkaoui
goes straight to the heart of the objectives of his motion.
(VII) Decisions concerning the
objections to the questions
[118]
Before moving on to the final stage, which is to
rule on the objections to more than 20 questions put to reporter Bellavance,
I would like to point out that I had considered proceeding in stages, that is,
by dealing with the questions related to the secret document, followed by those
related to the reporteric work, and suspending the objections raised against
the questions asking that the sources be revealed. The objective of such an
approach would have been to determine whether the answers to the questions
about the secret document and the reporteric work would be sufficient to
establish relevant evidence for the motion to quash the certificate proceeding
for abuse of process. After careful consideration and taking into account the
parties’ and the Court’s knowledge of the proceeding and the issues, I chose
otherwise. The questions related to the document, the Court’s knowledge of its
content and the limits on disclosure imposed by the IRPA will not provide the
clarifications needed for the motion to quash the certificate proceedings.
Journalism is intrinsically linked to the sources on which reports are based.
For that reason, it is impossible to separate one from the other. That is
abundantly clear in reading the questions in Schedule B. However,
disclosure of the names of the sources is more important for
Mr. Charkaoui’s motion, and he currently has no other way to obtain that
information. The administrative and police investigations now under way are of
no use to him
[119]
The Court is fully aware of the importance of this decision, knowing
full well what journalism entails and the position reporter Bellavance is in.
The Court also bears in mind the comments made by McLachlin C.J. quoted at
paragraph 95 of this decision concerning journalism and the fact that “[t]he courts respect his [the reporter’s] work and will not
hamper it more than is necessary”. This is an extraordinary case that
calls for an extraordinary solution.
[120]
However, in view of the facts and all the
issues, the greater public interest demands that the truth be told as to the
origin of the leak of a secret document, its confirmation and the significant
impact on the justice system, the administration of justice and
Mr. Charkaoui’s fundamental rights. That public interest trumps the other
interests at stake. Given the unique circumstances of this case, the justice
system must be able to get to the root of the matter for the purposes of the
motion if justice is to be served. Preventing the system from doing its work
for reasons of freedom of expression, freedom of the press or a public interest
associated with the articles published in June 2007 would not serve the
interests of justice. It would seem to me that the justice system cannot be
shackled in such circumstances.
[121]
It should be noted that the Court, at
paragraphs 65, 66, 67 and 68 of this decision, consolidated the questions
to which objections were raised into three categories: questions related to the
secret document, questions related to journalism and questions related to
sources. I will therefore rule in three stages in the paragraphs that follow.
Questions related to the secret document:
10, 16, 18 and 19 (3, 21 and 23 in Schedule B)
[122]
At paragraphs 16 and 19 of this decision, the
Court answered the seven questions asked by counsel for Mr. Charkaoui
regarding the secret document and included a summary of additional evidence
(see Schedule “A”), taking into account the obligations set out in
paragraph 78(h) of the IRPA. The Court also stated that because the
document was classified secret and the Court’s reading confirmed the accuracy
of that classification for the document as a whole (although some of the
information in the document should have been classified top secret), the secret
document will be treated confidentially by the Court in accordance with
paragraph 78(b) of the IRPA, which authorizes the designated judge to
act upon receiving “any other evidence”.
[123]
For these three categories, the Court notes that
several questions were answered during the cross examination of reporter
Bellavance. To be more specific, the following is a list of the questions
answered, with references to the pages of the transcript of the examination
containing the answers or to the relevant paragraphs of this decision:
question 1 (see page 68), question 10 (see pages 101, 102,
103 and 104), question 13 (see pages 125, 126 and 127), question 14
(see pages 125, 126 and 127), question 15 (see pages 134, 191
and 192), question 16 (see paragraph 19 of this decision),
question 17 (see page 192), question 18 (see page 159) and
question 19 (see paragraph 19 of this decision).
[124]
Regarding the questions in the document
category, the only questions on which a ruling still has to be made are
questions 3, 21 and 23. I direct the reader to Schedule B for the
text of the questions. Question 3 deals in part with the secret document
and pertains to the reporteric work involved. Initially, the objection was
based on the possibility of revealing the reporter’s source, section 38 of
the Canada Evidence Act and section 78 of the IRPA. The Court has
already decided to deal with the secret document in accordance with the
requirements of section 78 of the IRPA. Relevance was not the basis of the
objection. It bears noting that Mr. Bellavance’s affidavit in support of
the motion to quash the subpoenas refers to the reporteric work underlying the
June 22, 2007 reports. The objection is dismissed, and question 3
will be allowed. The same holds true for question 23. The aim of the
question was not to verify the reporter’s work, but rather the work done to verify the trustworthiness and
authenticity of the document and the accuracy of the information prior to
June 22, 2007. The question will be allowed if the objectives of the
motion to quash and the procedural issues are taken into consideration.
[125]
The purpose of question 21 is to obtain
information about the content of the secret document. According to the
confidentiality requirements imposed on the designated judge by
paragraph 78(b) of the IRPA, the objection is upheld. The Court has
already revealed what it can.
Questions
related to the journalism (1, 13, 14, 20 and 25 in Schedule B)
[126]
As I stated at paragraph 123,
questions 1, 13 and 14 have been answered. The only remaining objections
are those relating to questions 20 and 25. The reporteric work is
addressed in the affidavits from reporters Bellavance and Toupin. There is a
contradiction between the reporters’ versions and that of Mr. Charkaoui with regard to some of the
facts arising from telephone conversations. Moreover, for the purpose of the
motion to quash the certificate proceeding, the objections to the questions are
related to issues associated with the principal motion and are relevant. The
same is true for question 25. The objections are dismissed, and the
questions will be allowed.
Questions related to the sources (2, 4,
5, 6, 7, 8, 9, 11, 12, 15, 17, 22 and 24 in Schedule B)
[127]
As we saw earlier, questions 15 and 17 have
been answered. Regarding the objections related to the other questions about
sources, for the reasons stated in this decision, the objections to those
questions are dismissed, and the questions will be allowed. The questions are
relevant to the motion to quash the certificate proceeding, and, in balancing
all the interests at stake, it is possible to hold that the interests of
justice, the administration of justice, the proceedings under way and
Mr. Charkaoui’s fundamental rights outweigh freedom of the press and the
protection of sources. It is in the interests of justice that the matter be
brought into the light of day and that the examination of Mr. Bellavance
continue, with the examination of Mr. Toupin to follow.
(G) Conclusion
[128]
Having noted that answers have been given to
many of the questions to which objections were raised during the examination on
affidavit of Mr. Bellavance, the Court upholds the objection concerning
question 21 but dismisses the other objections. The other questions will
therefore be allowed. The parties are asked to propose a schedule for the
resumption of the hearings.
(H) Costs
[129]
In view of my decision, costs in this motion are
allowed in favour of Mr. Charkaoui and against the interveners.
(I) JUDGMENT
FOR ALL THESE REASONS, THE
COURT:
‑ Dismisses the motion to
quash the subpoenas duces tecum;
-
Upholds,
in accordance with Schedule B hereto, the objection concerning
question 21;
and
-
Dismisses
the other objections and allows the questions.
-
Allows
costs in favour of Mr. Charkaoui and against the interveners.
-
Invites
the parties to contact the Registry of this Court to reschedule the hearing.
“Simon Noël”
Certified
true translation
François
Brunet, LL.B., BCL
Schedule A
-
Summary of additional evidence following
publication of reports in daily newspapers La Presse and Le Droit
on June 22, 2007;
Schedule B
‑ List of questions with reasons for objection and
summary of decision;
Schedule C
‑ Article 6 of the Professional Code of Ethics for
Quebec Journalists, regarding reporters’ sources;
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