Date: 20071031
Docket: DESA-1-07
Citation: 2007 FCA 342
CORAM: RICHARD
C.J.
LÉTOURNEAU
J.A.
PELLETIER J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
MOHAMMAD MOMIN KHAWAJA
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
ISSUES ON APPEAL AND CROSS-APPEAL
[1]
The
Attorney General of Canada (the appellant) appeals against a decision of Mosley
J. of the Federal Court of Canada (judge). The decision was rendered on May 7,
2007 pursuant to an application made by the appellant under section 38.04 of
the Canada Evidence Act, R.S.C. 1985, c. C-5 (Act).
[2]
The appeal
raises the following three issues:
a) the standard of review applicable to the errors
alleged to have been committed by the judge;
b) whether
the judge erred in summarizing sensitive or potentially injurious information
contained in the documents in issue, despite finding, pursuant to section 38.06
of the Act, that the information should not be disclosed; and
c) whether
the judge erred in failing to give the appellant an opportunity to make ex
parte submissions regarding the proposed summary of sensitive or
potentially injurious information before authorizing its disclosure.
[3]
The
respondent answered the appeal by a notice of cross-appeal. He also challenged
in a related file (DESA-2-07) the constitutionality of subsection 38.11(2) of
the Act. Under attack in that file is a decision of Chief Justice Lutfy of the
Federal Court which dismissed the respondent’s constitutional challenge.
[4]
The notice
of cross-appeal in file DESA-1-07 also raises the same constitutional issue.
This issue will be addressed in file DESA-2-07. Here, I will review the
respondent’s complaints in respect of judge Mosley’s decision and, if need be,
the remedies sought.
[5]
The
respondent submits on his cross-appeal that the judge erred:
a) in
placing too high a burden on him to demonstrate that the materials sought are
relevant;
b) by
reversing the burden of proof and placing the onus on him to produce evidence
that the materials sought had been made public in whole or in part in the
United Kingdom; and
c) by
placing too high a burden on him to demonstrate how information that he has
never seen would be useful to his defence.
[6]
I should
say at the beginning that the reasons for judgment will be succinct. The
respondent is in custody. He is awaiting his trial in the Ontario Superior
Court of Justice on seven criminal charges relating to a conspiracy to commit
terrorist acts in the United
Kingdom. At the
request of counsel for the respondent, the hearing of this appeal has been
adjourned once. In the interest of justice, which includes those of the
respondent, all efforts have been made to proceed expeditiously to render a
decision.
THE APPEAL
Whether
the judge erred in summarizing sensitive or potentially injurious information
contained in the documents in issue, despite finding that the information
should not be disclosed, and the standard of review applicable
[7]
The
contention of the appellant in respect of this ground of appeal is that the
judge, in applying section 38.06 of the Act, applied the wrong test for
disclosure of the materials at issue. According to the appellant’s submission, section
38.06 authorizes the disclosure of the information at issue only if the judge
has come to the conclusion that the information should be disclosed. The
information can be disclosed if it is not injurious or if the balancing of the
public interests mentioned in section 38.06 favours disclosure.
[8]
Subsections
38.06(1) and (2) of the Act read:
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38.06 (1) Unless
the judge concludes that the disclosure of the information would be injurious
to international relations or national defence or national security, the
judge may, by order, authorize the disclosure of the information.
(2) If the judge
concludes that the disclosure of the information would be injurious to
international relations or national defence or national security but that the
public interest in disclosure outweighs in importance the public interest in
non-disclosure, the judge may by order, after considering both the
public interest in disclosure and the form of and conditions to disclosure
that are most likely to limit any injury to international relations or
national defence or national security resulting from disclosure, authorize
the disclosure, subject to any conditions that the judge considers
appropriate, of all of the information, a part or summary of the
information, or a written admission of facts relating to the information.
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38.06 (1) Le
juge peut rendre une ordonnance autorisant la divulgation des renseignements,
sauf s’il conclut qu’elle porterait préjudice aux relations internationales
ou à la défense ou à la sécurité nationales.
(2) Si le juge conclut
que la divulgation des renseignements porterait préjudice aux relations
internationales ou à la défense ou à la sécurité nationales, mais que les
raisons d’intérêt public qui justifient la divulgation l’emportent sur les
raisons d’intérêt public qui justifient la non-divulgation, il peut par
ordonnance, compte tenu des raisons d’intérêt public qui justifient la
divulgation ainsi que de la forme et des conditions de divulgation les plus
susceptibles de limiter le préjudice porté aux relations internationales ou à
la défense ou à la sécurité nationales, autoriser, sous réserve des
conditions qu’il estime indiquées, la divulgation de tout ou partie des
renseignements, d’un résumé de ceux-ci ou d’un aveu écrit des faits qui y
sont liés.
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[Emphasis added]
[9]
At
paragraph 186 of his reasons for judgment, the judge expressed his conclusion
in the following terms:
[186]
However, I have also concluded that in the particular context of this
application where the respondent faces serious criminal charges for which he
could receive a lengthy sentence of imprisonment should he be convicted; the
public interest in disclosure outweighs the public interest in non-disclosure
to the extent that it would be appropriate to provide a summary of the
information as contemplated by subsection 38.06(2) of the Act.
[Emphasis added]
[10]
It is
obvious to me that the judge has concluded that public interest in disclosure
of the information outweighs the public interest in non-disclosure. However,
the judge was cognizant of his obligation to authorize disclosure in the form
that is most likely to limit injury to “international relations or national defence
or national security” resulting from disclosure: see subsection 38.06(2).
[11]
Balancing
the public interest in a fair trial, which includes the right to full answer
and defence, and the public interest in protecting injurious information from
disclosure, he was of the view that disclosure of a descriptive summary of the
documents containing the information at issue would protect the right to a fair
trial and result in minimal impairment of international relations, national
defence or national security. That summary is contained in Schedule A.
[12]
That being
said, a review of Schedule A shows, with respect to some documents, a
discrepancy between the judge’s conclusion on release and what is effectively
released in the summary. As contended by the appellant, while the judge has
clearly concluded that the impugned information should not be released, the
descriptive summary of the documents does contain some information whose
release would be injurious or potentially injurious to the interests protected
by section 38 of the Act.
[13]
The judge
was dealing with a substantial number of documents. He showed a very good
knowledge of the working of section 38 of the Act and of the jurisprudence
applicable to it. It is reasonable to infer that the errors are not errors of law
resulting from a misconception of the law, but errors of fact reviewable on the
palpable and overriding error standard.
[14]
We
reviewed the alleged error at an ex parte hearing. We are satisfied that
they should be corrected. Therefore, a new Schedule A will be substituted for
the one prepared by the judge.
Whether
the judge erred in failing to give the appellant an opportunity to make ex
parte submissions regarding the proposed summary of sensitive or
potentially injurious information before authorizing its disclosure
[15]
The
appellant claims that the judge should have given him the opportunity to make
submissions, as I understand it, on whether the summary that the judge ordered
released contained sensitive or potentially injurious information before, of course,
releasing it. The rationale for this submission, the appellant says, is that a
designated judge cannot “issue a decision which in itself discloses information
that the designated judge has ruled should not be disclosed”: see appellant’s
memorandum of fact and law, at paragraph 27. This process would further
minimize the risk of inadvertently releasing that kind of information.
[16]
Section 38
of the Act empowers the judge to release injurious information after having
heard the submissions of the parties, including ex parte submissions on
the part of the appellant. This was done in the present instance in respect of
the information the release of which was objected to by the appellant.
[17]
Nothing in
the Act imposes upon the judge a duty to hear the appellant again when, in the
exercise of the powers conferred by section 38.06, he has decided that the information
should be released in whole or in part or in an abridged form. The Act does not
expressly or impliedly give the appellant a second kick at the can, so to
speak, still less the right to review, or to sit on appeal of, a decision that
the judge has already made. Nor does it empower the appellant, who has already
been heard, to review, screen or veto the content of the summary that the judge
has already decided should be released in the public interest.
[18]
As this
appeal shows, the appellant is not, however, without remedy should he disagree
with the decision of a judge to release information pursuant to section 38.06,
after having balanced the competing public interests. In appropriate cases, a
motion to reconsider pursuant to Rule 397 of the Federal Courts Rules
may also be an adequate remedy. I do not think that public confidence in this
embattled process and in the administration of justice would be enhanced if the
appellant’s proposal were to be implemented.
Conclusion on the appeal
[19]
For these
reasons, I would allow the appeal but only to the extent of substituting a new
Schedule A for the one prepared by the judge. The new Schedule A would be
subject to the same terms and conditions as the original.
THE CROSS-APPEAL BY THE RESPONDENT
Whether
the judge erred in placing too high a burden on the respondent to demonstrate
that the materials sought are relevant
[20]
According
to the respondent, the judge correctly stated the law from R. v. Stinchcombe,
[1991] 3 S.C.R. 326 and Ribic v. Canada (Attorney General), 2003 FCA 246
as regards the test for relevance, but failed to properly apply it. The basis
for the respondent’s contention is that the judge should have accepted that all
the material referred to in the section 38 application, for which Crown
prosecutor David McKercher gave notice to the appellant, was information
relevant to the trial of the respondent since the prosecution was under the
duty to disclose all relevant information pursuant to Stinchcombe, supra.
In other words, the judge should have accepted the assessment made by the Crown
prosecutor.
[21]
Furthermore,
the respondent says, the appellant conceded that the voluminous information was
relevant. Consequently, the judge should not have taken upon himself to rule
that some of the information provided was not relevant.
[22]
At
paragraphs 115 and 116 of his reasons for judgment, the judge explained the
process that he followed and gave his reasons for excluding from disclosure
some of the evidence. He wrote:
[115] In
the present case, I began with the assumption that the information at issue had
been demonstrated to meet the relevancy threshold as defined by the Supreme
Court in Stinchcombe. However, it has become clear to me as I read
the information which the applicant seeks to protect that some of it has no
bearing upon the case against the respondent. The prosecutor’s concession must
be interpreted in my view as a general statement about the documents as a whole
and not applicable to each item of information the documents contain.
[116] Many
of the investigators on Project Awaken had broader duties to perform and their
notes reflect the fact that they had to deal with other matters including on-going
investigations unrelated to the case against the respondent. I would
include in the irrelevant category analytical reports of a general nature some
of which were prepared years before the events that gave rise to the charges
against the respondent and are not specific to the context of those charges. In
these cases I concluded that there was no need to consider the second or third
stages of the Ribic approach with respect to that information.
[Emphasis added]
[23]
With
respect, I believe the respondent’s submission is misguided. Whether disclosure
is envisaged in the context of a criminal proceeding or in the context of a
section 38 application under the Act, it belongs to the judge to determine
whether the evidence is relevant or not and, therefore, ought to be disclosed
or not. Of course, the judge will hear the submissions of the parties, but the
decision on relevancy is his, not that of any party to the proceedings or other
proceedings. I agree with counsel for the appellant that it would have been an
error for the judge to “have concluded that the prosecutor’s determination of “Stinchcombe
relevance” relieved him of the obligation to carry out an independent
assessment”: see appellant’s memorandum of fact and law, at paragraph 23.
[24]
In Stinchcombe,
supra, where disclosure was sought by an accused in a criminal trial,
Sopinka J., at page 340 described in these words the function of the judge as
regards relevancy:
The
discretion of Crown counsel is, however, reviewable by the trial judge. Counsel
for the defence can initiate a review when an issue arises with respect to the
exercise of the Crown’s discretion. On a review the Crown must justify its
refusal to disclose. Inasmuch as disclosure of all relevant information is the
general rule, the Crown must bring itself within an exception to that rule.
The trial
judge on a review should be guided by the general principle that information
ought not to be withheld if there is a reasonable possibility that the
withholding of information will impair the right of the accused to make full
answer and defence, unless the non-disclosure is justified by the law of
privilege. The trial judge might also, in certain circumstances, conclude that
the recognition of an existing privilege does not constitute a reasonable limit
on the constitutional right to make full answer and defence and thus require
disclosure in spite of the law of privilege.
[25]
Words to
the same effect can be found in Ribic, supra, where disclosure
under section 38 of the Act was considered. At paragraph 17 of the reasons for
judgment, this Court wrote:
The first
task of a judge hearing an application is to determine whether the information
sought to be disclosed is relevant or not in the usual common sense of the Stinchcombe
rule […] This step remains a necessary one because, if the information is not
relevant, there is no need to go further and engage scarce judicial resources.
This ground of appeal cannot succeed.
Whether
the judge erred by reversing the burden of proof and placing the onus on the
respondent to produce evidence that materials sought had been made public in
whole or in part in the United Kingdom
[26]
The
respondent contends that the judge put the burden of proving an absence of
injury on him in order to have released to him information used or released in
the Crevice trial in England. It is not disputed that, at
the second stage of the mandated analysis of an application for disclosure
under section 38 of the Act, the burden is on the appellant to establish that
disclosure would be injurious: see Ribic, supra, at paragraph 20.
[27]
In support
of his contention, the respondent cites the following passage found at
paragraph 162 of the judge’s reasons for judgment:
[162] I
would also note that it was open to the respondent to provide evidence or
submissions to the Court as to what had been publicly disclosed abroad had he
been in possession of that information. That was not done, as counsel said
during oral argument, due to a lack of resources. The Attorney General does
not, of course, suffer from the same financial constraints. Nonetheless, I am
satisfied that the Attorney General did not seek to protect evidence that was
introduced and made public in the UK proceedings. Evidence
from that case that is material to the charges against him has been disclosed
to the respondent.
[Emphasis added]
[28]
Even when
the passage is read in isolation, it is hard to see how it can be said that, as
a result of the statement that it contains, the burden was put on the
respondent to show an absence of injury to national security, national defence
or international relations. The judge was merely saying that the respondent was
not precluded from providing evidence or making submissions as to what had been
disclosed abroad if he, in fact, knew what information had already been
released in the United
Kingdom. Then
the documents at issue in the section 38 application could be reviewed to see
whether they contain the information released abroad.
[29]
The
respondent argues that he was “asked to produce evidence of what had been made
public in the U.K.” and “to produce evidence to show that two cards match
[when] he is not allowed to see one of the cards”: see respondent’s memorandum
of fact and law, at paragraph 38. His argument shows a misunderstanding of what
the judge said and did.
[30]
Indeed,
when the impugned statement is re-placed in the whole context of the extensive
reasons for judgment, there cannot be any doubt that the judge properly put on
the appellant, not on the respondent, the burden of proving the alleged injury
to national security or international relations. He reiterated the appellant’s
duty to ensure that the information presented to the Court is complete as well
as the duty to act diligently to ensure that the information over which a claim
of public interest immunity is asserted under section 38 of the Act is not
already publicly available: see paragraphs 47 to 50, and 158 to 160 of the
reasons for judgment as well as paragraph 43 where it is stated that “the
[appellant’s] witnesses were pressed as to what knowledge they had as to the UK
proceedings and the evidence publicly disclosed therein”.
[31]
No doubt
was cast on the judge’s overall conclusion that the appellant showed due
diligence with respect to the material publicly released in the United Kingdom.
Whether
the judge placed too high a burden on the respondent to demonstrate how
information that he has never seen would be useful to his defence
[32]
The
respondent’s submission that the judge put on him the burden of demonstrating
how information that he has never seen would be useful to his defence is also
founded on a misunderstanding of the events which unfolded.
[33]
The judge
sought the assistance of the respondent as to the kind of information that
would be useful to his defence so that he could review the material
accordingly. He never asked the respondent to tell him which information that
the respondent had not seen would be useful to his defence.
[34]
Indeed, by
way of evidence, or submissions made ex parte pursuant to subsection
38.11(2), the respondent could have informed the judge of, or at least given
him some indications as to, the kind of information that would assist him in
presenting a full answer and defence or would be of a particular and useful
interest to him.
[35]
As counsel
for the appellant properly pointed out, at the third stage of the analysis of a
section 38 application, the burden is on the person seeking disclosure to prove
that the public interest in disclosure outweighs in importance the public
interest in non-disclosure: see Ribic, supra, at paragraph 21.
Obviously, the right to full answer and defence when facing serious criminal
charges is a highly relevant consideration in balancing the competing public
interests. However, in order to make a meaningful review of the information
sought to be disclosed, the judge must be either informed of the intended
defence or given worthwhile information in this respect.
[36]
It is true
as this Court said in Ribic, supra, at paragraph 29, that,
barring exceptions, an accused is under no obligation to reveal or disclose his
defence to the prosecution. However, section 38 of the Act does create a
legislative exception by requiring that competing public interests, one of
which includes the right to full answer and defence, be balanced. However, the
section offers “an accused an appropriate forum for adjudication of the debated
issue as well as for subsequent reviews”: ibidem, at paragraph 30. In
this respect, this Court went on to say in the same paragraph:
…It is of
fundamental importance to note that disclosure of the sensitive information
that the appellant wants to rely upon is not made to the prosecution, but,
under the seal of absolute confidentiality, to the Attorney General and a
designated judicial forum where the matter will be decided in private. It is
therefore not a disclosure which violates an accused’s right to silence and the
presumption of innocence in criminal proceedings. In addition, as the appellant
requests in the present instance, this Court has the authority to issue an
order that none of the information disclosed in the context of the section 38
process be released to the prosecution without the consent of the defence. In
my view, sufficient and adequate guarantees are offered by the system which
protect an accused’s right not to disclose to the prosecution his defence.
[37]
The judge
recognized at paragraph 168 of his reasons for judgment that the seriousness of
the charges against the respondent was a factor that favours him in the
balancing of public interests. However, he also noted as a fact that he
received little assistance from the respondent in performing his task. At
paragraphs 178 and 179 of his reasons, he wrote:
[178] As
was noted by the Court in Canada v. Singh, 2002 FCT 460 at para. 9 [Singh]
it is not enough for the respondent to simply assert a public interest in
having a fair and equitable trial. The assessment required by section 38 of the
Act requires that each party present his point of view and support it, if
necessary, with appropriate evidence.
[179] In
the present case the respondent has not provided the Court with much assistance
in performing its task. It has been difficult in particular to assess what
information, if any would “probably establish a fact crucial to the defence” as
the respondent has not shared any information with the court as to what his
defence or defences might be, apart from what was noted above. This is a
factor to consider at the balancing stage of the test, particularly in light of
the significance of releasing information which has passed the second stage of
the test.
[Emphasis added]
[38]
The
respondent acknowledged at the hearing that he made a tactical choice to not
participate in a process whose constitutional validity he was challenging. His
choice entailed consequences that he should be left to live with. In my
respectful view, the respondent’s argument cannot succeed.
Conclusion on the cross-appeal
[39]
For these
reasons, I would dismiss the cross-appeal.
CONCLUSION ON THE APPEAL AND THE CROSS-APPEAL
[40]
I would
dismiss the cross-appeal. I would allow the appeal but only to the extent of
substituting a new Schedule A for the one prepared by the judge. I would make
the new Schedule A subject to the same terms and conditions as the original.
[41]
In closing,
I wish to say that the judge dutifully and rigorously applied himself to
perform a tedious, painstaking and thankless, but necessary task. He is to be
commended for the very thorough and professional review and assessment that he
made of the information sought to be disclosed.
“Gilles
Létourneau”
“I
agree
John
Richard C.J.”
PELLETIER
J.A. (Concurring)
[42]
I have
read the careful reasons of my colleague Létourneau J.A. While I agree with his
disposition of the case, I come to my conclusion by a different route.
[43]
The
appellant says that Mosley J. committed an error in the preparation of Schedule
A. The error is that in the course of preparing the Schedule, he included in
the description of the documents whose content was not to be disclosed, information
which divulged or pointed to the very information whose disclosure he opposed. So,
for example, if he had decided that a document should not be disclosed because
it revealed the existence or identity of a source, his description of that
document contained information which pointed to, or could point to, the
identity or the existence of that source.
[44]
Like my
colleague, I do not believe that Mosley J. was mistaken as to what the law
required him to do. Unlike my colleague, I do not believe that the error which
is alleged is one that gives rise to issues of standard of review. It appears
to me that the basis of the appellant's appeal is that Mosley J. included
information in the document descriptions in issue which, by the terms of the
document itself, he did not intend to include. I regard this as a matter for a
motion for reconsideration and not the proper subject of an appeal.
[45]
Rule 397
of the Federal Courts Rules provides as follows:
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397. (1) Within 10
days after
the making of an order, or within such other time as the Court may allow, a
party may serve and file a notice of motion to request that the Court, as
constituted at the time the order was made, reconsider its terms on the
ground that
(a) the order
does not accord with any reasons given for it; or
(b) a matter
that should have been dealt with has been overlooked or accidentally omitted.
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397. (1) Dans les 10
jours après
qu'une ordonnance a été rendue ou dans tout autre délai accordé par la Cour,
une partie peut signifier et déposer un avis de requête demandant à la Cour
qui a rendu l'ordonnance, telle qu'elle était constituée à ce moment, d'en
examiner de nouveau les termes, mais seulement pour l'une ou l'autre des
raisons suivantes :
a) l'ordonnance
ne concorde pas avec les motifs qui, le cas échéant, ont été donnés pour la
justifier;
b) une
question qui aurait dû être traitée a été oubliée ou omise involontairement.
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[46]
It is
clear that Schedule A is intended to be, and is, part of the order issued by
Mosley J. It is also clear that the Crown's position is that in certain cases,
one part of the order (the description of the document) does not accord with
the reasons given for it. In such a case, the natural presumption is that
Mosley J. did not intend to convey that information.
[47]
In my
view, the appropriate course for the appellant to have followed was an
application for reconsideration before Mosley J. I say this for four reasons.
[48]
Prima
facie, the
problem identified by the appellant is specifically dealt with by Rule 397.
[49]
Secondly,
I believe it is inappropriate for the appellant to ask this Court to assume
that the judge did not mean to do what he did. That proposition should be put
to the judge who knows exactly what he intended to do. If he agrees that the
disclosure is inadvertent, he can correct the matter and the issue is resolved.
If he does not agree, then the appellant is free to come to this Court to say
that the judge did not properly exercise his discretion. In such a case, it is
for the appellant to show that the exercise of discretion is reviewable. By
asking us to assume inadvertence, the appellant asks us to interfere with a
discretionary decision without having to show that the discretion was wrongly
exercised.
[50]
Thirdly,
the appellant's second ground of appeal would not arise if the appellant
proceeded by way of motion for reconsideration. I agree with my colleague that
the appellant overreaches when it suggests that it ought to be able to vet the
decision of the application judge before it is released. That said, there is
nothing untoward about an application for reconsideration based on the ground
of inadvertent disclosure of protected information.
[51]
Finally,
as a purely practical matter, such questions can be resolved far more expeditiously
and inexpensively by means of a motion for reconsideration than by a full-blown
appeal.
[52]
For all of
those reasons, I believe that the appellant has not proceeded as it ought to
have. That said, I would nonetheless grant the Crown the relief it seeks. The
respondent is in custody. To remit the matter to the application judge would
delay this matter even further. The respondent is not responsible for the
appellant's choice of procedure and ought not to be penalized by it. Having
reviewed the descriptions to which the appellant objects, I am satisfied that
the probability of inadvertence is sufficiently high that granting the Crown
the relief it seeks will not be unfair to the respondent nor to the
applications judge.
“J.D. Denis Pelletier”
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