[1] This is an appeal against two orders of Blanchard J., of the Trial Division, dated January 9 and 17, 2003 which, among other things, authorized only partial disclosure of information sought by the appellant. One of the orders also prohibited two witnesses, (witnesses A and B), from testifying at the appellant's criminal trial. However, with respect to the evidence of these two witnesses, the judge authorized disclosure of expurgated versions of the transcript of their testimonies given before the Federal Court - Trial Division. I reproduce the two orders and hasten to add that the appellant initially sought from this Court an order that the two witnesses be authorized to testify and that the vetted portions of their evidence and of a videocassette be released for use by the defence at the appellant's trial before the Ontario Superior Court of Justice. At the hearing of the appeal, counsel for the appellant informed us that the vetted portions of the videocassette were no longer an issue on appeal, but that the refusal to allow one of the two witnesses to testify in respect of that videocassette remained a live one. Blanchard J.'s orders read:

Order of January 9, 2003

THIS COURT ORDERS that:

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

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

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

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

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

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

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

Order of January 17, 2003

THIS COURT:

1. CONFIRMS, pursuant to paragraph 38.06(3) of the Canada Evidence Act, the prohibition on disclosure of the following injurious information expurgated from the original of the videocassette, produced as Exhibit 'B' to the affidavit sworn by Colonel MacLean on December 18, 2002, in these proceedings:

a) the latitude and longitude co-ordinates appearing on the upper right-hand corner of the image;

b) the heads up display, including the laser codes, the weapons range and radar equipment; and

c) from the sound track of the videocassette, all call signs, nicknames or code words.

2. AUTHORISES, pursuant to paragraph 38.06(2) of the Canada Evidence Act, the disclosure of the remaining information contained in the videocassette. Attached to this Order as Annex 'A' is a copy of the expurgated videocassette authorised to be disclosed by this Order.

3. PROHIBITS, pursuant to paragraph 38.06(3) of the Canada Evidence Act, [...] from testifying with respect to the videocassette.

4. AUTHORISES, pursuant to paragraph 38.06(2) of the Canada Evidence Act, the disclosure of the expurgated version of the affidavit sworn by [...] in these proceedings on December 24, 2002, attached to this Order as Annex 'B' and of the summary of information in parentheses added by the Court to paragraph 14 of that expurgated affidavit.

5. AUTHORISES, pursuant to paragraph 38.06(4) of the Canada Evidence Act, the introduction into evidence, at the criminal trial of the respondent, Mr. Ribic, of the expurgated videocassette attached to this order as Annex "A".

6. AUTHORISES, pursuant to paragraph 38.06(4) of the Canada Evidence Act, the introduction into evidence, at the criminal trial of the respondent, Mr. Ribic, of the expurgated affidavit of [...] attached to this Order as Annex 'B', in lieu of his viva voce testimony, as if [...] had testified under oath, under the same conditions mentioned in the Reasons for Order and Order issued by the Court in Ribic v. Canada (Attorney General of Canada) 2003 FCT 10 (application DES-3-02).

7. ORDERS, pursuant to section 38.12(1) of the Canada Evidence Act, Mr. D'Arcy DePoe and Ms. Heather Perkins-McVey, counsel for Mr. Ribic, not to disclose to anyone either the unexpurgated videocassette or the unexpurgated version of the affidavit of [...] sworn in these proceedings on December 24, 2002;

8. ORDERS, pursuant to section 38.12(1) of the Canada Evidence Act, Mr. D'Arcy DePoe and Ms. Heather Perkins-McVey, counsel for Mr. Ribic, to deliver up their copies of the unexpurgated videocassette and of the unexpurgated version of the affidavit of [...] sworn in these proceedings on December 24, 2002, and any reproduction thereof, to the Registry of this Court, forthwith;

9. ORDERS, pursuant to section 38.12(2) of the Canada Evidence Act, that the unexpurgated videocassette and the unexpurgated version of the affidavit of [...] sworn in these proceedings on December 24, 2002 be sealed, along with the records of this application and kept in a location to which the public has no access;

10. ORDERS the Attorney General of Canada, pursuant to paragraph 38.02(2)(b) and section 38.07 of the Canada Evidence Act, to immediately communicate the Reasons for Order and Order, less its annexes, to the judge presiding at the criminal trial of Mr. Ribic and to the prosecution team.

11. DIRECTS, pursuant to paragraph 38.02(2)(b) of the Canada Evidence Act, that the information contained in Annex "A" and Annex "B" attached to this order be released to the respondent, Mr. Ribic, upon the expiry of the period for appeal provided in sections 38.09 and 38.1 of the Act, or such earlier date as the Attorney General of Canada may indicate.

[2] Incidental to his appeal, the appellant also seeks an order that the contents of the factums, Appeal Books, videocassette or transcripts of witnesses' evidence as well as affidavits in the present proceedings not be released to any member of the prosecution team or any other person without the consent of the defence.

Facts and procedure

[3] The appellant is a Canadian citizen. He joined the Serb forces in Bosnia when the war started. In 1995, he was involved in a hostage-taking incident which led to his prosecution under section 279.1 of the Criminal Code on four counts of forcible confinement and death threat, each count being punishable with life imprisonment. It is in the context of his trial before a judge and a jury in the Ontario Superior Court of Justice that the appellant sought disclosure of information and files from the United Nations, the North Atlantic Treaty Organization, the Department of National Defence, the Canadian Security Intelligence Service, the International Criminal Tribunal for the former Yugoslavia and the International Committee of the Red Cross.

[4] On October 23, 2002, the appellant called, in his criminal trial, two witnesses to testify on his behalf and gave notice to that effect to the Attorney General of Canada (Attorney General) as required by sub-section 38.01(1) of the Canada Evidence Act, R.S.C. 1985, ch. C-5 (Act) as amended by the Anti-terrorism Act, S.C. 2001, ch. 41, s. 43. The Attorney General objected to these testimonies on the basis that they would reveal sensitive or potentially injurious information. Section 38 of the Act defines sensitive information as information relating to international relations, national defence or national security that is in the possession of the Government of Canada and that is of a type that the Government is taking measures to safeguard. As for potentially injurious information, it refers to information of a type that, if it were disclosed to the public, could injure international relations, national defence or national security. For convenience, I shall, thereafter, refer to sensitive information as including potentially injurious information.

[5] Some time in November 2002, the appellant obtained a videocassette containing excerpts of bombing missions which took place near Pale, Bosnia, in 1995. It is alleged that the bombings were carried out at the time or near the place where the hostage-taking incident occurred. As he wished to present it as evidence at his trial, the appellant, again, notified the Attorney General of his intent. The Attorney General viewed the videocassette and refused to agree to its release. He also refused to permit witness A to testify in respect of it.

[6] Pursuant to section 38.04 of the Act, the appellant brought, on November 5, 2002, an application to the Federal Court - Trial Division for an order regarding the disclosure of the information revealed or to be revealed by the two witnesses. The appellant also requested that the entirety of the information at issue be disclosed. The parties tried to find a practical solution to deal with the specific problem raised by the eventual testimony of these two witnesses. On November 15, 2002, upon consent of the parties, Lutfy A.C.J. issued an order which appointed Mr. Préfontaine, counsel for the Attorney General, to act on behalf of counsel for the appellant in examining the two witnesses. The examination was to be conducted on the basis of areas of questioning identified by counsel for the appellant. Counsel for the appellant were to remain in attendance in order to provide to Mr. Préfontaine further explanations and suggestions on possible areas of questioning. This process was devised to assist the Trial Division in determining the relevancy of the two witnesses' information to the prosecution of the appellant as well as identifying the sensitive information which could not be disclosed. I should add that the process was also conceived to obviate the lack of security clearance of the appellant's counsel. Some of the information was accessible on a need to know basis only and required security clearance at the highest level. That the process so devised and followed was unusual is common ground. I shall come back to this later when I will discuss the grievances of the appellant towards that process.

[7] On December 18, 2002, the Attorney General also brought an application for an order regarding, this time, disclosure of the information contained in the videocassette. Both applications led to the two Orders issued by Blanchard J. and against which the present appeal lies.

Submissions of counsel for the appellant

[8] Counsel for the appellant submit that the vetted information should be disclosed "where it is demonstrated that there is a reasonable possibility that the undisclosed information can be used in advancing a defence": see Appellant's Memorandum of Fact and Law, paragraph 59. Vetting the information in such circumstances, the allegation goes, infringes an accused's right to full answer and defence and where such infringement occurs, the public interest in disclosure outweighs the public interest in non-disclosure: ibid., paragraph 57.

[9] As for the testimony of witnesses A and B, counsel for the appellant contend first that the decision of Blanchard J. to refuse permission to the two witnesses to testify deprives the appellant of his right to call evidence necessary to establish his defence and challenge the prosecution's evidence. They rely in support of their contention upon two decisions of the Supreme Court of Canada: R. v. Rose, [1998] 3 S.C.R. 262; R. v. Seaboyer; R. v. Gayme, [1991] 3 S.C.R. 577.

[10] Counsel for the appellant also submit that disclosure by the judge of their evidence in the form of a transcript was an error because the process by which the transcript was obtained was unfair. Appellant's counsel complain that the process denied them the possibility of leading the examination of their own witnesses, asking follow-up or supplementary questions as well as seeking clarification of the responses obtained. They also express two additional concerns. First, they fear that the transcripts might not be admitted as evidence at trial because the evidence previously taken was not taken in the presence of the accused and has not been subject to any form of cross-examination. Second, they are afraid that the trier of fact may not give sufficient weight to that evidence because of concerns about the credibility of the witnesses arising from the lack of cross-examination or opportunity to observe their demeanour. They also raise the spectre of the Crown calling viva voce evidence in rebuttal of the transcript evidence tendered in by the accused.

[11] I think it is fair to say at the outset that counsel for the appellant are painting the position of their client with a broad brush. In this regard, paragraphs 65 to 68 of their Memorandum of Fact and Law are instructive. They assert that the Federal Court of Canada, under the new legislation enacted in the Anti-terrorism Act, is no longer the final gatekeeper when it comes to disclosure of sensitive information and that the Court should leave it up to the Attorney General to issue, under section 38.13 of the Act, a certificate prohibiting disclosure of the information, as he can even in the face of a court order to disclose. In short, counsel for the appellant want all the information remaining in issue here to be released. In the name of the right to a fair trial, they invite this Court to endorse a policy of general disclosure based on mere relevancy and to leave it to the Attorney General to invoke his overriding power not to disclose. In fairness to the appellant and his counsel who do not know what is being vetted, they could not engage meaningfully in an attempt to discuss individual pieces of information that were prohibited from disclosure with a view to establishing that the necessity of their disclosure outweighs the necessity of protecting national security, national defence or international relations.

[12] Before I address the appellant's arguments against the judge's decision, I will say a few words about the role of the reviewing court in the process established by the Anti-terrorism Act.

The role of the Trial Division on an application under section 38.04 of the Act for an order regarding disclosure of information

[13] I should begin by saying that the appellant has not challenged the constitutional validity of the new legislation. Therefore, I am bound to take and apply the law as it stands. The Federal Court would be remiss of its duties under the Act if it were to endorse the appellant's philosophy of general disclosure based on mere relevancy, a philosophy which can only lead to and incite fishing expeditions. The Federal Court - Trial Division has been tasked with the difficult duty of balancing the competing public interests which, in this case, involve the protection of sensitive information and the protection of an accused's constitutional rights to a full answer and defence and to a fair trial. This is a function of the Trial Division which Blanchard J. understood well and performed with great care and full awareness of the issues at stake. A review of the transcripts of the hearing shows that he studiously and painstakingly considered each of the applicant's claims against disclosure before making his ruling.

[14] As a general rule, a person charged with a criminal offence enjoys a qualified right to disclosure of all information relevant to his or her defence. The right is qualified in that it is subject to Crown's discretion and the law and rules of privilege: see R. v. Stinchcombe, [1991] 3 S.C.R. 326, at page 339. Where the information to be disclosed or sought to be obtained is sensitive information, a State privilege to confidentiality and secrecy is triggered and section 38 of the Act establishes the procedure by which the privilege is to be exercised and ultimately secured.

[15] It is important to remind ourselves that proceedings initiated pursuant to section 38.04 of the Act for an order regarding disclosure of information are not judicial review proceedings. They are not proceedings aimed at reviewing a decision of the Attorney General not to disclose sensitive information. The prohibition to disclose sensitive information is a statutory one enacted by paragraph 38.02(1)(a) of the Act which reads:

38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding

(a) information about which notice is given under any of subsections 38.01(1) to (4);

38.02 (1) Sous réserve du paragraphe 38.01(6), nul ne peut divulguer, dans le cadre d'une instance :

a) les renseignements qui font l'objet d'un avis donné au titre de l'un des paragraphes 38.01(1) à (4);

The application to a judge of the Trial Division is an application whereby the judge is required to make an initial determination, i.e., to determine whether the statutory prohibition of disclosure should be confirmed or not: see subsection 38.06(3) which says that if the judge does not authorize disclosure, he or she shall, by order, confirm the prohibition of disclosure. In proceedings under section 38.04, the judge is required to make his own decision as to whether the statutory ban ought to be lifted or not and issue an order accordingly.

[16] Where a judge of the Trial Division is seized with an application for an order regarding the disclosure of sensitive information, subsection 38.04(5) stipulates that he shall hear the representations of the Attorney General and, when required, those of the Minister of National Defence concerning the identity of the persons whose interests may be affected by the eventual order regarding disclosure as well as the persons who should be notified of a hearing, if any, on the matter. The judge may decide to hold a hearing in which case he shall decide who should be given notice and who may be given an opportunity to make representations.

[17] 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 and common sense of the Stinchcombe rule, that is to say in the case at bar information, whether inculpatory or exculpatory, that may reasonably be useful to the defence: R. v. Chaplin, [1995] 1 S.C.R. 727, at page 740. This is undoubtedly a low threshold. 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 step will generally involve an inspection or examination of the information for that purpose. The onus is on the party seeking disclosure to establish that the information is in all likelihood relevant evidence.

[18] Where the judge is satisfied that the information is relevant, the next step pursuant to section 38.06 is to determine whether the disclosure of the information would be injurious to international relations, national defence or national security. This second step will also involve, from that perspective, an examination or inspection of the information at issue. The judge must consider the submissions of the parties and their supporting evidence. He must be satisfied that executive opinions as to potential injury have a factual basis which has been established by evidence: Home Secretary v. Rehman, [2001] 3 WLR 877, at page 895 (HL(E)). It is a given that it is not the role of the judge to second-guess or substitute his opinion for that of the executive. As Lord Hoffmann said in Rehman, supra, at page 897 in relation to the September 11 events in New York and Washington, referred to in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 33:

They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.

[19] This means that the Attorney General's submissions regarding his assessment of the injury to national security, national defence or international relations, because of his access to special information and expertise, should be given considerable weight by the judge required to determine, pursuant to subsection 38.06(1), whether disclosure of the information would cause the alleged and feared injury. The Attorney General assumes a protective role vis-à-vis the security and safety of the public. If his assessment of the injury is reasonable, the judge should accept it. I should add that a similar norm of reasonableness has been adopted by the House of Lords: see Rehman, supra, at page 895 where Lord Hoffmann mentions that the Special Immigration Appeals Commission may reject the Home Secretary's opinion when it was "one which no reasonable minister advising the Crown could in the circumstances reasonably have held".

[20] An authorization to disclose will issue if the judge is satisfied that no injury would result from public disclosure. The burden of convincing the judge of the existence of such probable injury is on the party opposing disclosure on that basis.

[21] Upon a finding that disclosure of the sensitive information would result in injury, the judge then moves to the final stage of the inquiry which consists in determining whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. The party seeking disclosure of the information bears the burden of proving that the public interest scale is tipped in its favour.

[22] Balancing the competing interests at stake requires the application of a more stringent test than the usual relevancy rule. Otherwise, as evidenced by the appellant's position, relevant sensitive information would always be disclosed to the detriment of international relations, national defence or national security. It means in effect no balancing at all. This is what this Court said in the civil case of Jose Pereira E Hijos, S.A. et al. v. The Attorney General of Canada, 2002 FCA 470, where Stone J.A., in relation to former sections 37 and 38 of the Act, wrote at paragraphs 17 and 18:

Thus, whether a question is relevant in the context of a section 37 and 38 determination is not to be viewed in the narrow sense of whether it is relevant to an issue pleaded, but rather to its relative importance in proving the claim or in defending it.

I respectfully agree with the Motions Judge, at paragraph 28, that "the information which the plaintiffs seek to obtain will not establish a fact crucial to the plaintiffs' case". As I read his reasons, this was a significant factor in determining whether the importance of disclosure was outweighed by the importance of protecting the specified public interest.

The Court considered the factors enumerated in R. v. Kahn, [1996] 2 F.C. 316 (F.C.T.D.): the nature of the public interest sought to be protected by confidentiality, the seriousness of the charge or issues involved, the admissibility of the documentation and the usefulness of it, whether there were other reasonable ways of obtaining the information, whether the disclosure sought amounted to general discovery or a fishing expedition and whether the information will probably establish a fact crucial to the defence. Obviously, the last two factors impose a higher threshold than simple relevancy.

[23] Counsel for the Attorney General submits that, when balancing in criminal law the State privilege to secrecy and confidentiality against the right to a full answer and defence, the test is even more stringent than the probability of establishing a fact crucial to the defence. He relies upon the decision of the Supreme Court of Canada in R. v. Leipert, [1997] 1 S.C.R. 281 in which the accused seeking disclosure of details of an informer telephone tip to the police was confronted with the rule of informer privilege. The accused's claim to disclosure was based on his right to full answer and defence: see also R. v. Brown, 2002 S.C.C. 32 involving a solicitor-client privilege.

[24] After a review of the importance to the administration of justice and the scope of the informer privilege, McLachlin J., as she then was, wrote for a unanimous Court at page 295:

Informer privilege is subject only to one exception, known as the "innocence at stake" exception.

She went on to say at pages 295, 298 and 299 that "the only exception to the privilege is found where there is a basis to conclude that the information may be necessary to establish the innocence of the accused".

[25] Not surprisingly, counsel for the appellant argue that this informer privilege falls in a different class and that the rationale governing its contents and application is not the same as the one invoked in the present case. Counsel for the Attorney General submits that whether it is informer privilege, solicitor-client privilege or State secrecy privilege, all these privileges are governed by the law and the rules of privilege. They are fundamental to the basic values that each one of them protects and promotes. So the information that they protect can only be disclosed when the innocence of the accused is at stake.

[26] There is certainly a very important feature of the informer and the State secrecy privileges that is common to both. The informer privilege's purpose is to protect the safety and the security of the informer: part of the State secrecy privilege invoked in the case at bar aims at protecting the safety and the security of a whole nation. As Lord Hoffmann, previously cited, mentioned, the cost of failure can be high if matters of national security are ignored or taken lightly.

[27] Be that as it may, it is not necessary in this case to determine whether the more stringent test developed in criminal law should apply although, in view of the important feature common to both privileges, I would be inclined to apply that test at least in respect of matters affecting national security or national defence. I am also sensitive to, and cannot ignore, the fact that prejudice to international relations may be of such a nature and magnitude as to compromise national security or defence. It appears that Blanchard J. applied the test developed in the civil case of Pereira, supra, which is more favourable to the appellant. For reasons that I will explain later, I will review his decision and the sensitive information at issue on that basis.

[28] I cannot leave this topic without addressing two concerns other than an alleged violation of the appellant's right to full answer and defence that the new scheme, enacted to protect State secrecy privilege, raises with respect to persons charged with a criminal offence. The first one was alluded to briefly by counsel for the appellant in their submissions before us.

[29] As the present case illustrates, the whole process leading to the determination of the State secrecy privilege compels an accused to reveal his defence and disclose information that supports that defence. As a general rule, there is no obligation to disclose imposed upon an accused in criminal law. In this regard, Sopinka J. wrote in Stinchcombe, supra, at page 333:

In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

This absence of duty is consistent with the presumption of innocence and an accused's right to silence. Like any rule, it suffers some exceptions dictated at times by rules of expediency. For example, a defence of alibi must be disclosed in sufficient time and with sufficient particularity to enable the authorities to meaningfully investigate. Otherwise, an adverse inference can be drawn at trial by the trier of fact when weighing the alibi evidence: R. v. Cleghorn, [1995] 3 S.C.R. 175.

[30] The legislative exception created in the present case by section 38 of the Act is justified by the need to balance competing interests and to offer an accused an appropriate forum for adjudication of the debated issue as well as for subsequent reviews. 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.

[31] The second concern relates to the presumption of innocence. An accused is not a compellable witness and, as mentioned by Sopinka J., supra, is entitled not to assist the prosecution. In other words, he has the right to remain silent and no adverse comment can be made on his silence: R. v. Noble, [1997] 1 S.C.R. 874; see also Cournoyer et Ouimet, Code criminel annoté 2003, Éditions Yvon Blais, Cowansville, 2002, pages 1329-1332. This is because the prosecution bears the burden of proving his guilt beyond reasonable doubt.

[32] When balancing competing public interests in a case like this one where a person faces criminal charges, the judge must ensure that his order prohibiting disclosure does not result in his compelling the accused to take the stand to defend himself, thereby depriving him of the benefit of the presumption of innocence and of his right to remain silent. It is with this additional concern in mind that we have reviewed the orders of Blanchard J. regarding the vetted information, the prohibition to testify against witnesses A and B, and the form in which the information obtained from their testimony at the examination for discovery has been authorized to be disclosed.

Analysis of the judge's orders

[33] The Act contemplates two possible roles for the Federal Court of Appeal: one of review and one of appeal. Under section 38.08, the judge of the Trial Division who determines that a party to the proceedings, whose interests are adversely affected by an order made regarding disclosure, was not given the opportunity to make representations shall refer the order to the Federal Court of Appeal for review. I need not decide here whether this process involves simply a review of the legality of the order or whether the Court of Appeal shall hear the representations of the party and then proceed to render the decision that should have been rendered. Section 38.09 provides for a right of appeal against an order made under any of subsections 38.01(1) to (3). We are concerned here with an appeal pursuant to section 38.09.

a) The standard of review of the judge's orders

[34] Subsection 38.06(2) that I reproduce hereafter is an empowering provision:

38.06 (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.

38.06 (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.

[35] As previously mentioned, section 38.02 of the Act enacts a general prohibition against disclosure. Subsection 38.06(2) authorizes the judge to disclose sensitive information, which would otherwise be kept secret, when the public interest in disclosure outweighs the public interest in non-disclosure. The use of the word "may" is not indicative of a discretion as counsel for the Attorney General suggests. It is indicative of an attribution of a power to derogate from a general prohibition to disclose privileged information. As this Court said in Ruby v. Canada, [2000] 3 F.C. 589, at page 623 (F.C.A.), quoting Thorson J.A. in Falconbridge Nickel Mines Ltd. and Minister of Revenue for Ontario, Re (1981), 121 D.L.R. (3d) 403, at page 408:

In some contexts, of course, the word "may" is neither necessarily permissive nor necessarily imperative, but rather merely empowering. Its function is to empower some person or authority to do something which, otherwise, that person or authority would be without any power to do.

[36] The power conferred by subsection 38.06(2) can be exercised when the conditions are met, that is to say in this case when the public interest in disclosure is greater than the public interest in keeping the information secret. The definition of the scope of the power involves a question of law. The scope of the power is determined by answering questions as to what is the subject of the power, who may exercise it, when, why, how and under what conditions. Thus, the decision which misconstrues or misconceives the "what", i.e., the competing interests, is legally an erroneous decision. The same is true of a decision which authorizes disclosure of sensitive information where the judge erroneously believed that the requisite legal conditions for disclosure are met when they are not. Such a decision extends the scope of the power beyond what is legally authorized. In the same vein, it is also an error of law to apply a wrong standard in balancing the interests at stake and, from there, to conclude that the conditions for the exercise of the power are met. All these decisions relating to the scope of the power are reviewable on a standard of correctness: see Housen v. Nikolaisen, 2002 S.C.C. 33.

[37] In exercising the power to authorize disclosure and before authorizing disclosure, the judge while bearing in mind the public interest in disclosure must ensure that the form of and conditions to disclosure are most likely to limit any injury to national security, national defence or international relations resulting from disclosure. The judge must resort to the means that are the least prejudicial to these interests. Parliament's intent is clear: any injury ought to be limited as much as possible and appropriate measures ought to be taken to that end, that is to say measures that are most likely to produce that result.

[38] The objective sought by Parliament in imposing this duty on the judge is paramount. It delimits the scope of the judge's power to authorize disclosure of sensitive information by imposing conditions for a lawful exercise of that power and issuance of the authorization to disclose. Thus, in my view, erroneous decisions as to the form of disclosure as well as to the conditions of such disclosure amount to errors in law as to the definition of the scope of the power. They too stand to be reviewed on a standard of correctness.

[39] Having decided that the conditions to authorize disclosure of the sensitive information are met and, therefore, that an authorization to disclose will issue, the judge is given by subsection 38.06(2) the power to subject the authorization to disclose to "any conditions that he considers appropriate". The judge is invested by these terms with a wide discretion in the choice of conditions that can be attached to the authorization to disclose. The exercise of that discretion may be reviewed when the judge fails to act judicially or in conformity with the law. On the basis of these principles I now address the complaints made by counsel for the appellant against the judge's decision and orders.

b) The vetted information in the testimonies of the two witnesses at their examination for discovery

[40] The judge reviewed the 555 pages of the unexpurged transcript of that examination. He classified the information thus revealed into three categories:

a) not relevant at trial;

b) relevant but need not be disclosed; and

c) relevant and required to be disclosed.

The information in category b) which is the vetted information is, of course, in issue. Some information in category c) is also in issue because the category also relates to information that could be released at the appellant's criminal trial if the two witnesses were authorized to testify. In other words, counsel for the appellant complain that they would be able to elicit more information from these witnesses if they were authorized to question them instead of merely using the transcript as ordered by the judge. I shall address this last issue when dealing with the form of disclosure.

[41] We have reviewed carefully the vetted information. Most of it falls into the category of information not relevant at trial. Some, as the judge pointed out, may be relevant in that it could assist the jury in putting into proper context the events leading to the hostage taking. However, that information is not necessary because, as the judge said at paragraph 26 of his decision, "there is sufficient information released to the applicant in the expurgated transcripts to inform the jury of the context in which the events leading up to the hostage taking and the hostage taking occurred". Morever, the vetted sensitive information is neither necessary (Leipert test) nor crucial (Pereira test) to the defences raised by the appellant. We agree with the judge that, for the purposes of these defences, the expurgated transcripts reflect fairly the nature and substance of the testimony of the two witnesses and that the vetted information would not be helpful: see paragraph 27 of his decision. We have not seen anything in the vetted information which, because of its non-disclosure, would violate the presumption of innocence and compel the accused to testify.

c) The fairness of the process followed to balance the competing interests

[42] The process followed in the present instance was unusual. It is certainly unusual for counsel to an accused to have two of their witnesses examined by another lawyer acting on their behalf. It is also unusual that this lawyer acting on their behalf be a counsel to the Attorney General who, in this case, instead of the Attorney General for Ontario, leads the prosecution

against their client. But "unusual" is not necessarily synonymous with "unfair". The process was dictated by urgency and necessity.

[43] First, the issue of sensitive information arose in mid-trial of the appellant. The criminal trial had to be adjourned for a determination of the accused's right of access to the privileged information. In the meantime, the jury was kept waiting. The applicable legislation was new and a solution had to be found quickly.

[44] Second, there were very few lawyers available with the level of security clearance needed to access the sensitive information at issue. Out of necessity and convenience, the parties agreed that Mr. Préfontaine who is counsel to the Attorney General, but not involved in the prosecution of the appellant, would provide the services that he did. I want to make it clear that there is no complaint at all from counsel for the appellant as to the professional and responsible manner in which Mr. Préfontaine performed his duties. The appellant's complaint, as we shall see, is about the process itself which, it bears repeating, was a process devised and accepted by the parties.

[45] There is no magical solution when one is confronted with sensitive information and access to it is extremely limited for security reasons. A process similar to the one followed here was advocated by the House of Lords in R. v. Shayler, [2002] 2 WLR 754 (HL(E)). At pages 786 and 799, Lord Hope of Craighead and Lord Hutton referred to the fact that the European Court of Human Rights has recognized the special problems posed by national security and the value attached to a process which ensures that disclosure is monitored by a judge. Lord Hutton also took into account the decision of the European Court in Tinnelly & Sons Ltd. v. United Kingdom, 27 EHRR 249 where the Court noted that "it had been found possible to modify judicial procedures in such a way as to safeguard national security concerns about the nature and sources of intelligence information and yet accord the individual a substantial degree of procedural justice". At page 800, he went on to state that "a possible course might be for the judge to appoint a special counsel to represent the interests of the person seeking disclosure". This is precisely what was done here to ensure that the appellant would obtain disclosure of all sensitive information that could be disclosed without unduly compromising national security, national defence or international relations. Creativity often carries their proponents into the realm of the unusual, as it did here, but I am satisfied that fairness accompanied them throughout their journey.

[46] I should conclude on this issue by saying that there is no merit in the appellant's complaint that his counsel were denied the possibility of asking supplementary or follow up questions. Tabs 10 and 12 of Volume 1 of the Appeal Books contain lists of supplementary questions that were submitted by counsel for the appellant.

d) The form of disclosure of the two witnesses' testimonies and the prohibition to testify

i) the right to call evidence

[47] It should be recalled that the judge prohibited the two appellant's witnesses from testifying at his trial, but authorized disclosure of an expurgated transcript of their testimonies given before the Federal Court - Trial Division. As previously mentioned, counsel for the appellant based their submissions on the decisions of the Supreme Court of Canada in Rose and Seaboyer previously cited. With respect to the Rose case, they referred us to the following excerpts from paragraphs 98 and 103 of the decision:

The right to make full answer and defence is protected under s. 7 of the Charter. It is one of the principles of fundamental justice. In R. v. Stinchcombe, [1991] 3 S.C.R. 326, Sopinka J., writing for the Court, described this right as "one of the pillars of criminal justice in which we heavily depend to ensure that the innocent are not convicted". The right to make full answer and defence manifests itself in several more specific rights and principles...

The right is integrally linked to other principles of fundamental justice, such as the presumption of innocence, the right to a fair trial, and the principles against self-incrimination.

A second and broader aspect of the right to make full answer and defence, which might be understood as encompassing the first aspect, is the right of an accused person to defend himself or herself against all of the state's efforts to achieve a conviction. The Crown is not entitled to engage in activities aimed at convicting an accused unless that accused is permitted to defend against those state acts.

(Emphasis added)

They also endorsed the following arguments found at pages 606-608 and submitted in Seaboyer against the rape-shield legislation:

The appellants contend that the legislation, however laudable its goals, in fact infringes their right to present evidence relevant to their defence and hence violates their right to a fair trial, one of the most important of the principles of fundamental justice.

[...]

The right of the innocent not to be convicted is reflected in our society's fundamental commitment to a fair trial, a commitment expressly embodied in s. 11(d) of the Charter. It has long been recognized that an essential facet of a fair hearing is the "opportunity adequately to state [one's] case": [1972] S.C.R. 917">Duke v. The Queen, [1972] S.C.R. 917, at p. 923, dealing with s. 2(e) of the Canadian Bill of Rights. This applies with particular force to the accused, who may not have the resources of the state at his or her disposal. Thus our courts have traditionally been reluctant to exclude even tenuous defence evidence: David H. Doherty, "'Sparing' the Complainant 'Spoils' the Trial" (1984), 40 C.R. (3d) 55, at p. 58, citing [1971] S.C.R. 272">R. v. Wray, [1971] S.C.R. 272, and R. v. Scopelliti (1981), 34 O.R. (2d) 524 (C.A.). For the same reason, our courts have held that even informer privilege and solicitor-client privilege may yield to the accused's right to defend himself on a criminal charge: [1981] 2 S.C.R. 494">Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; R. v. Dunbar and Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.).

In other jurisdictions too the right to defend oneself of a criminal charge is regarded as a principle of fundamental importance. The Constitution of the United States enshrines the right in the due process guarantees of the Fifth and Fourteenth Amendments and the express right to confront one's accuser embodied in the Sixth Amendment. The jurisprudence of the United States Supreme Court affirms the right's fundamental importance: see Davis v. Alaska, 415 U.S. 308 (1974); Alford v. United States, 282 U.S. 687 (1931).

The right of the innocent not to be convicted is dependent on the right to present full answer and defence. This, in turn, depends on being able to call the evidence necessary to establish a defence and to challenge the evidence called by the prosecution. As one writer has put it:

If the evidentiary bricks needed to build a defence are denied the accused, then for that accused the defence has been abrogated as surely as it would be if the defence itself was held to be unavailable to him.

(Doherty, supra, at p. 67).

In short, the denial of the right to call and challenge evidence is tantamount to the denial of the right to rely on a defence to which the law says one is entitled. The defence which the law gives with one hand, may be taken away with the other. Procedural limitations make possible the conviction of persons who the criminal law says are innocent.

(Emphasis added)

[48] I do not quarrel with these principles which are fundamental, but not absolute, in our adversarial system of criminal prosecutions. First, the Supreme Court went on to recognize at page 609 that an issue as to the relevancy of evidence does not arise in a vacuum, but in relation to an issue in the trial. Moreover, it reasserted the principle that a clear ground of policy or law may justify the exclusion of probative evidence which would otherwise be received:

In general, nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is probative should be received, unless its exclusion can be justified on some other ground. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial.

(Emphasis added)

Thus, for example, relevant prosecution evidence whose probative value is outweighed by its prejudicial effects will be excluded while defence evidence will also be excluded but only where the prejudice substantially outweighs the value of that evidence: ibid., page 611. Of course, grounds of exclusion are not limited to this type of situation. The law and the rules of privilege, while also not absolute, intervene to prevent disclosure of confidential information.

[49] Section 38 of the Act codified the common law privilege to protect State secrets. Lord Denning emphasized in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452, at page 460, quoted with approval in Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711, at page 745, the need for confidentiality in matters of national security:

The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.

The section in its quest for fairness recognizes that the privilege is not absolute: it provides for a balancing of competing interests with the possibility of the right to a fair trial prevailing in limited circumstances that I have already discussed but which are wanting here, even when applying a test more favourable to the appellant.

ii) the form of disclosure

[50] As part of their right to call evidence, counsel for the appellant not only challenge the prohibition to testify, but also the form in which disclosure is actually authorized, i.e., the expurgated transcript of the two witnesses' testimonies.

[51] The two witnesses asserted that they are incapable of separating sensitive from non-sensitive information, the wheat from the tares. If they were to testify in the criminal trial, the trial would have to be suspended every time a question would be put to the witnesses in order to determine whether the question would lead to the disclosure of sensitive information and, if so, whether that sensitive information should be revealed. For this last determination, it involves coming back to the Federal Court. As for the determination of the initial question, the judge in the criminal trial would be put in an impossible position. I cannot improve on what Blanchard J. said in this respect at paragraph 35 of his January 9, 2003 decision:

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

[52] I agree with him that authorizing the two witnesses to testify at the criminal trial is not a measure most likely to limit any injury to national defence, national security or international relations. In the circumstances, release of the expurgated transcript and an authorization to introduce them in evidence at the criminal trial amount to a balancing of the competing interests which best serves the public interest while limiting as much as possible the injury mentioned above. In concluding as he did on this issue, the judge made no error in his interpretation of the scope of the power granted to him.

[53] At the hearing before us, counsel for the appellant submitted that there are other and better forms of disclosure which would not increase the level of injury, but would better safeguard the appellant's right to a fair trial. He pressed for a videotaping of the testimonies of the witnesses who would be examined by their own counsel and for a subsequent vetting of the sensitive information. Technology allows for this kind of efficient tampering. The jurors could then view the expurgated contents of the videocassette. They would see and hear the witnesses, assess their demeanour and, therefore, be in a better position to weigh their credibility.

[54] There is certainly some merit in this videotaping proposal and I am sure proper consideration will be given to that option in future cases. However, the parties, the judge presiding the criminal trial, the jury as well as Associate Chief Justice Lutfy were labouring under exigent circumstances: the criminal trial was momentarily suspended, the jury was in abeyance, the prosecution after weeks of sittings wanted to avoid a mistrial, time was the essential feature of a workable solution.

[55] It would have been simply impossible within the allocated time frame to obtain the security clearance to enable counsel for the appellant to examine the two witnesses themselves. For obvious reasons, the process of verification takes quite some time and there is no guarantee that it will result in a granting of the highest level of security clearance. This aspect of the appellant's proposal was, in the circumstances, impractical.

[56] It may be, in retrospect, that it could have been better if the testimonies had been videotaped. However, this is not the process that the parties thought of at the time and there was no objection to the one proposed and followed. That being said, I would have had no hesitation to intervene if I had reasonable grounds to believe that the process followed was unfair or would result in unfairness to the appellant in his criminal trial.

e) The appellant's fear that the transcripts might not be admitted in evidence or that the evidence might be found less credible because the witnesses were not cross-examined

[57] At issue here is not the appellant's right to cross-examination: the two witnesses were his own witnesses. Counsel for the appellant must be referring to the prosecution's right to cross-examine and a possible objection coming from the prosecutorial branch of the Attorney General's office on that basis. I doubt that this is likely to happen on that basis or on the basis that the evidence of these two witnesses that the accused wants to introduce at his trial in his defence was obtained in his absence. Should that occur, I am confident that the trial judge will know how to deal with the objection.

[58] At best, the appellant's position on the issue of diminished credibility because of a lack of cross-examination is speculative. Speculation for speculation, why would the jury not attach more credibility to the evidence of these two witnesses that the prosecution did not dare to cross-examine? Again, I am confident that the judge presiding over the criminal trial, anxious to maintain the fairness of the trial, will take appropriate measures, if needed, to prevent a prejudice of this kind from happening. The same goes for the speculation that the prosecution might call viva voce evidence to rebut the transcript evidence.

Conclusion

[59] I am satisfied that the judge of the Trial Division committed no error in defining the scope of his power to order disclosure of the sensitive information at issue as well as the conditions which delimit it. The prohibition against the two witnesses to testify at the criminal trial was, in the circumstances, the only viable and efficient condition which would most likely limit any injury to national defence, national security or international relations.

[60] Nor did, in my view, the judge err in defining the competing interests at stake and the test to be applied in balancing these interests. If he did err with respect to the balancing test, it is an error which was favourable to the appellant.

[61] Finally, the process followed to monitor and review the disclosure of the sensitive information could, in hindsight, perhaps have been better, but it was not unfair given the time constraints that all the players were facing.

[62] For these reasons, I would dismiss the appeal. In accordance with subsection 38.02(2) of the Act, I would authorize disclosure of the fact and the reasons of this appeal against the two orders made under section 38.06 upon expiry of the time provided to appeal in the present file or, if leave to appeal is sought, when no further appeal is available. Copy of these reasons will be entered in file DESA-2-03 in support of the judgment therein.

"Gilles Létourneau"

J.A.

"I agree

J. Richard C.J."

"I agree

M. Nadon J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: DESA-1-03

STYLE OF CAUSE: NICHOLAS RIBIC

v. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: APRIL 24, 2003

REASONS FOR JUDGMENT: LÉTOURNEAU J.A.

CONCURRED IN BY: RICHARD C.J.

NADON J.A.

DATED: JUNE 4, 2003

APPEARANCES:

D'ARCY DEPOE FOR THE APPELLANT

and

HEATHER PERKINS-McVEY

ALAIN PRÉFONTAINE FOR THE RESPONDENT

SOLICITORS OF RECORD:

BERESH DEPOE CUNNINGHAM FOR THE APPELLANT

EDMONTON, ALBERTA

and

HEATHER PERKINS-McVEY

OTTAWA, ONTARIO

MORRIS ROSENBERG FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: DESA-2-03

STYLE OF CAUSE: NICHOLAS RIBIC

v. THE ATTORNEY GENERAL OF CANADA

PLACE OF HEARING: OTTAWA, ONTARIO

DATE OF HEARING: APRIL 24, 2003

REASONS FOR JUDGMENT: LÉTOURNEAU J.A.

CONCURRED IN BY: RICHARD C.J.

NADON J.A.

DATED: JUNE 4, 2003

APPEARANCES:

D'ARCY DEPOE FOR THE APPELLANT

and

HEATHER PERKINS-McVEY

ALAIN PRÉFONTAINE FOR THE RESPONDENT

SOLICITORS OF RECORD:

BERESH DEPOE CUNNINGHAM FOR THE APPELLANT

EDMONTON, ALBERTA

and

HEATHER PERKINS-McVEY

OTTAWA, ONTARIO

MORRIS ROSENBERG FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL

OF CANADA

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Ribic v. Canada (Attorney General), 2003 FCA 246

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2003 FCA 246