Date: 20030116
Docket: T-1114-02
Neutral citation: 2003 FCT 38
BETWEEN:
MARK DOE
and (OMITTED) INC.
Plaintiffs
and
ATTORNEY GENERAL
OF CANADA
Defendant
REASONS FOR ORDER
HARGRAVE, P.
[1] The individual Plaintiff, who is a lay litigant, acts for himself and his company. The Plaintiffs' motion, as set out in their material, is brought pursuant to Federal Court Rule 229 and to section 37 of the Canada Evidence Act (the "Act"). The motion is for production of nine documents for which the Defendant claims privilege.
[2] It matters not whether Federal Court Rule 229 applies or whether some other Federal Court Rule would be more appropriate in this instance. The purpose of the motion is clear. There is no prejudice. However, the Federal Court Rules for production of documents do not assist the Plaintiffs in this instance.
[3] Invocation of section 37 of the Act does not assist the Plaintiffs in attempting to force production of the documents. There is no provision in section 37 of the Act upon which to found such an initial motion for documentary production. Rather, section 37 of the Act provides a mechanism by which the Crown may object to production of a document, on the grounds of a specified public interest, by certifying that the given document should not be disclosed. In the present instance the Crown neither claims a specific public interest nor invokes section 37 of the Act.
[4] The substance of the present motion is for production of documents listed in Schedule II of the Defendant's Affidavit of Documents. Schedule II is that portion of the affidavit within which are listed relevant documents for which privilege is claimed.
[5] The Defendant sets out in Schedule II of the Affidavit of Documents an identical description for each of the nine documents:
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A document, the particulars and contents of which are sensitive information, the disclosure of which could injure international relation or national security.
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This wording by which privilege is claimed reflects the wording of the definition of "sensitive information" that appears in section 38 of the current amended Canada Evidence Act:
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"sensitive information" means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.
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« renseignements sensibles » Les renseignements, en provenance du Canada ou de l'étranger, qui concernent les affaires internationales ou la défense ou la sécurité nationales, qui se trouvent en la possession du gouvernement du Canada et qui sont du type des renseignements à l'égard desquels celui-ci prend des mesures de protection.
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[6] The response of the Defendant to the motion is that notice has been given to the Attorney General of Canada under section 38.01(1) of the Act, which requires that a participant in a proceeding, who is required to disclose or expects to have to disclose sensitive information, notify the Attorney General of Canada of the possibility of disclosure.
[7] The Defendant's evidence, that of Mr Toby Hoffmann, a Department of Justice counsel in Ottawa, as set out in an affidavit of 9 January 2003, is that the Canadian Security Intelligence Service and the Attorney General of Canada are diligently following the procedure, governing so-called sensitive information, which is set out in section 38 of the Act.
[8] Section 38 of the Act provides a specific and detailed code of practice and procedure for the determination of privilege of sensitive information. The Plaintiffs may not like the section 38 procedure, however not only does it govern in this instance, but also the hearing of the present motion, as drafted, does not present an opportunity either to challenge section 38 of the Act, or to determine its scope.
[9] The Plaintiffs' motion, invoking the Federal Court Rules bearing on privilege and section 37 of the Canada Evidence Act, is dismissed. The dismissal is, however, without prejudice to any further application by the Plaintiffs arising out of the procedure under section 38 of the Act as invoked by the Defendant.
[10] Costs of this motion will follow the event, that is will follow and be governed by the outcome of this action.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
16 January 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1114-02
STYLE OF CAUSE: Mark Doe et al. v. AGC
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: 16 January 2003
REASONS FOR ORDER: Hargrave P.
DATED: 16 January 2003
APPEARANCES:
Mark Doe FOR PLAINTIFFS
Glenn Rosenfeld FOR DEFENDANT
SOLICITORS OF RECORD:
Mark Doe FOR PLAINTIFFS
Vancouver, British Columbia
Morris A Rosenberg FOR DEFENDANT
Deputy Attorney General of Canada
Department of Justice
Vancouver, British Columbia
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