Date: 20000623
BETWEEN:
Docket: DES-2-99
Jaggi Bikramjit Singh
Applicant
and
The Attorney General of Canada
Respondent
Docket: DES-3-99
Jonathan A. Oppenheim and Megan Hunter
Applicants
and
The Attorney General of Canada
Respondent
Docket: DES-4-99
Alissa Westergard-Thorpe, Annette Muttray, Jamie Doucette,
Mark Brooks, Dennis Porter, Deke Samchok and Craig Elton Jones
Applicants
and
The Attorney General of Canada and Her Majesty in Right of Canada
Respondents
Docket: DES-5-99
British Columbia Civil Liberties Association
Applicant
and
The Attorney General of Canada and Her Majesty in Right of Canada
Respondents
REASONS FOR ORDER
MacKay J.
The Applications
[1] These are applications pursuant to ss. 37 and 38 of the Canada Evidence Act1 ("the Act") for a determination of objections made by certain government and police officials to the disclosure of documents that were the subject of a summons issued by the RCMP Public Complaints Commission ("PCC" or "the Commission"). The Royal Canadian Mounted Police ("RCMP"), the Canadian Security Intelligence Service ("CSIS") and the Solicitor General/Privy Council Office ("PCO") have objected, by certificates in accord with ss. 37 and 38 of the Act, to the disclosure of certain information in documents concerning the planning and implementation of security measures for the November 1997 meeting of the Asia-Pacific Economic Cooperation Conference ("the APEC conference"), in Vancouver.
[2] When this matter was heard the applicants in Court file DES-2-99, Mr. Jaggi Singh, and in file DES-3-99, Mr. Jonathan Oppenheim and Ms. Megan Hunter, were not separately represented and it is understood that they rely upon the representations of applicants in the other Court files DES-4-99 and DES-5-99. Those applicants, Alissa Westergard-Thorpe, Annette Muttray, Jamie Doucette, Mark Brooks, Dennis Porter, Deke Samchok and Craig Elton Jones in file DES-4-99, and the British Columbia Civil Liberties Association in file DES-5-99, were represented by counsel. All of the individual applicants filed complaints with the Commission about the conduct of RCMP officers involved in security operations for the APEC conference and all here apply contesting the objections to disclosure of certain information in the documents subject to the PCC summons to be produced. In addition to the applicants represented and the respondent, the hearing included submissions, with particular reference to identifying the documents here in issue, from counsel for the Commission, which was an intervenor in the proceeding.
[3] The applicants urge that the public interest in disclosure of the information outweighs any potential injury to the public interests identified in the certificates setting out the objections to disclosure. In the view of the applicants, failure to disclose the information in question will prejudice them, and other complainants, and will prevent the PCC from fulfilling its statutory mandate. The applicants urge that the Court examine the documents here in question and order that the information referred to in the certificates of Crown officers be disclosed under appropriate restrictions, as the Court may determine.
The Background
[4] The arrangements for the APEC conference are said to have been the largest security operation undertaken in Canada up to that time. Following the conference, more than 50 complaints were made to the PCC regarding the conduct of members of the RCMP who provided security at the conference. After some initial difficulties for panelists appointed to consider the complaints, Mr. E.N. Hughes, Q.C. was appointed as a commissioner of the PCC, in accord with provisions of the Royal Canadian Mounted Police Act2, to hear evidence and report regarding the complaints. The Commissioner issued a summons to the RCMP, requesting testimony and documents which may be relevant to the investigation, including documents concerning the arrangements for RCMP personnel at the APEC conference. Thousands of documents were filed, but officials of the RCMP, the PCO and CSIS all filed certificates under the Act before Commissioner Hughes objecting to disclosure of certain documents or certain information included in designated documents. The documents have been filed in this Court, with the objections, for the determination of this application.
[5] Many documents produced in response to the PCC summons contain information, the release of which is subject to objection. The parties agreed that many of the objections to release of information would be dealt with as claims under the common law concerning public interest immunity from compelled production, to be considered by Commissioner Hughes in the course of his inquiry. Counsel for the Commission identified at the hearing before me the documents still subject to objection, which, in accord with the Canada Evidence Act, require determination by this Court.
[6] The objections to disclosure set out in the certificates of Crown officers may be classified generally as concerning injury to national security interests, or Canada's international relations, or to public interests in the administration of justice. These interests are dealt with in these Reasons when I turn to consideration of the public interests to be weighed in determining these applications.
[7] I note that appended to the individual certificates are copies, with portions omitted or blacked out, of most of the documents the release of which is subject to objection. A few of the documents are not included at all. For those that are included with the certificates, some are entirely blacked out, but most documents are produced with few deletions.
The Issues
[8] For this application, the issues have been set out by the applicant British Columbia Civil Liberties Association and those are concurred in by all counsel for the individual claimants, for the Attorney General, and by the Commission.
| A. Do the grounds of public interest in support of disclosure, when weighed against the objections made by the agencies of the Crown, warrant examination by the Court? |
| B. On examination of the documents, do the interests in disclosure outweigh the interests in non-disclosure? |
| C. If the greater public interest is in disclosure, should conditions or restrictions be placed on the disclosure? |
The Act, ss. 37 and 38, and Relevant Jurisprudence
[9] The parts of the Act which are relevant in this application are sections 37 and 38, including the following:
| 37. (1) A minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
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37. (1) Un ministre fédéral ou toute autre personne intéressée peut s'opposer à la divulgation de renseignements devant un tribunal, un organisme ou une personne ayant le pouvoir de contraindre à la production de renseignements, en attestant verbalement ou par écrit devant eux que ces renseignements ne devraient pas être divulgués pour des raisons d'intérêt public déterminées.
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| (2) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a superior court, that court may examine or hear the information and order its disclosure, subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest.
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(2) Sous réserve des articles 38 et 39, dans les cas où l'opposition visée au paragraphe (1) est portée devant une cour supérieure, celle-ci peut prendre connaissance des renseignements et ordonner leur divulgation, sous réserve des restrictions ou conditions qu'elle estime indiquées, si elle conclut qu'en l'espèce, les raisons d'intérêt public qui justifient la divulgation l'emportent sur les raisons d'intérêt public invoquées lors de l'attestation.
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| (3) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a court, person or body other than a superior court, the objection may be determined, on application, in accordance with subsection (2) by
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(3) Sous réserve des articles 38 et 39, dans les cas où l'opposition visée au paragraphe (1) est portée devant le tribunal, un organisme ou une personne qui ne constituent pas une cour supérieure, la question peut être décidée conformément au paragraphe (2), sur demande, par_:
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| (a) the Federal Court-Trial Division, in the case of a person or body vested with power to compel production by or pursuant to an Act of Parliament if the person or body is not a court established under a law of a province; or |
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| a) la Section de première instance de la Cour fédérale, dans les cas où l'organisme ou la personne investis du pouvoir de contraindre à la production de renseignements en vertu d'une loi fédérale ne constituent pas un tribunal régi par le droit d'une province; |
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| (b) the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case. |
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| b) la division ou cour de première instance de la cour supérieure de la province dans le ressort de laquelle le tribunal, l'organisme ou la personne ont compétence, dans les autres cas. |
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| ...
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...
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| 38. (1) Where an objection to the disclosure of information is made under subsection 37(1) on grounds that the disclosure would be injurious to international relations or national defence or security, the objection may be determined, on application, in accordance with subsection 37(2) only by the Chief Justice of the Federal Court, or such other judge of that Court as the Chief Justice may designate to hear such applications.
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38. (1) Dans les cas où l'opposition visée au paragraphe 37(1) se fonde sur le motif que la divulgation porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, la question peut être décidée conformément au paragraphe 37(2), sur demande, mais uniquement par le juge en chef de la Cour fédérale ou tout autre juge de ce tribunal qu'il charge de l'audition de ce genre de demande.
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| ...
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...
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| (5) An application under subsection (1) or an appeal brought in respect of the application shall
| (a) be heard in camera; and |
| (b) on the request of the person objecting to the disclosure of information, be heard and determined in the National Capital Region described in the schedule to the National Capital Act. |
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(5) Les demandes visées au paragraphe (1) font, en premier ressort ou en appel, l'objet d'une audition à huis clos; celle-ci a lieu dans la région de la capitale nationale définie à l'annexe de la Loi sur la capitale nationale si la personne qui s'oppose à la divulgation le demande.
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| (6) During the hearing of an application under subsection (1) or an appeal brought in respect of the application, the person who made the objection in respect of which the application was made or the appeal was brought shall, on the request of that person, be given the opportunity to make representations ex parte.
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(6) La personne qui a porté l'opposition qui fait l'objet d'une demande ou d'un appel a, au cours des auditions, en première instance ou en appel et sur demande, le droit de présenter des arguments en l'absence d'une autre partie.
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[1] The seminal case in matters such as this, Goguen v. Gibson,3 sets out a two stage process that has been followed in all subsequent applications under ss. 37 and 38. Perusal of the information that is subject to the objection to disclose is not undertaken by the designated judge unless, as a preliminary matter, the judge is satisfied that the public interest in disclosure is sufficiently compelling to require that the information be examined in order to determine where the balance lies between that public interest and the public interest in not disclosing the information. Mr. Chief Justice Thurlow discussed the first step that must be taken before a decision is made regarding an inspection of the documents in question:4
| ... it appears to me that the nature of the application is such that before exercising the authority to examine the information the judge hearing the application will have to be persuaded on the material that is before him either that the case for disclosure, that is to say, the importance of the public interest in disclosure, in the circumstances outweighs the importance of the public interest in keeping the information immune from disclosure or, at the least, that the balance is equal and calls for examination of the information in order to determine which public interest is more important in the particular circumstances. |
[2] The onus is on the party making the application for disclosure to demonstrate that the public interest served by disclosure outweighs the public interest in maintaining the secrecy of the information in question. Further, Thurlow C.J. continued, in Goguen:5
| On the other hand, if no apparent case for disclosure has been made out, if the balance does not so much as appear to be even, the preponderance obviously favours the upholding of the objection and in such a situation I do not think the subsection requires the Court to examine the information to see if it will tip the balance the other way. |
Mr. Justice Marceau, in his minority concurring judgment at the Court of Appeal, considered the two-stage procedure and was of the opinion that it was inevitable. Inspection should only take place, he wrote,6
| if, and only if, [the Court] is persuaded that it must do so to arrive at a conclusion or, put another way, if, and only if, on the sole basis of the material before it, it cannot say whether or not it will grant or refuse the application. |
[3] At this stage, in assessing where the balance may lie between disclosure and non-disclosure, various factors have been considered by the Court. In Khan v. Canada,7 Mr. Justice Rothstein, then of the Trial Division, summarized the factors that have been considered in previous cases:8
| (a) The nature of the public interest sought to be protected by confidentiality; Kevork v. The Queen, [1984] 2 F.C. 753 (T.D.), at pages 762 to 764; Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.), at page 884; Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.) at page 479. |
| (b) Whether the evidence in question will "probably establish a fact crucial to the defence"; Kevork v. The Queen, supra, at pages 764 and 765; Goguen v. Gibson, supra, (T.D.), at page 906. |
| (c) The seriousness of the charge or issues involved; Kevork v. The Queen, supra, at pages 765 and 766; Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (T.D.), at page 238. |
| (d) The admissibility of the documentation and the usefulness of it; Kevork v. The Queen, supra, at pages 766 to 768; Goguen v. Gibson, supra, (T.D.), at page 906; Gold v. R., [1986] 2 F.C. 129 (C.A.). |
| (e) Whether the applicants have established that there are no other reasonable ways of obtaining the information; Kevork v. The Queen, supra, at page 767. |
| (f) Whether the disclosures sought amount to general discovery or a fishing expedition; Kevork v. The Queen, supra, at page 767; Gold v. R., supra, at pages 139 to 140. |
[4] I add reference to one other case, Re Rankin,9 a case dealing with an application by the PCC for disclosure of information sought from the RCMP, which objected to its disclosure pursuant to ss. 37 and 38 of the Act. There, Mr. Justice Denault commented:10
| On weighing the interests in disclosure and non-disclosure, the Court must inquire as to whether the documents are necessary, of critical importance to the complainant, and whether the complainant would be prejudiced if the documents are not provided. |
In that case, he found that the documents in issue did not relate to a material fact in issue before the PCC and the information was not relied upon by the RCMP in its defence. In those circumstances, he concluded the document was not critical to the applicant's complaint of mistreatment by an officer of the force arising from circumstances of a public demonstration. In that case, the balance lay with the public interest in non-disclosure.
Public interests to be weighed
[5] I summarize the public interests that are to be weighted in this case. For the applicants, it is urged that public interest in disclosure concerns the administration of justice, including the assessment of allegations of unlawful conduct by some forty individual RCMP officers, but also transcending that concern are concerns that the RCMP be accountable to the citizenry of Canada through a PCC process that is seen to have integrity, including essential access to relevant information. It is urged that the RCMP as a force be seen to be impartial, free from political influence and that it demonstrate respect for citizens and their rights under the Charter. In the view of the British Columbia Civil Liberties Association, the numerous complaints, taken collectively, raise concerns that there may have been a directed effort by the RCMP to suppress legitimate political expression, and any information that may assist in determining the background of the RCMP actions, and the sources of direction of those activities, should be released. The public interest in proper police oversight and accountability in a free and democratic society, it is urged by the Association, outweighs the public interests relied upon for refusing to disclose the information here at issue.
[6] That same important general public interest in disclosure is supported by counsel for the individual applicants, Westergard-Thorpe, et al. in DES-4-99. In addition, these applicants urge, on the basis of certain evidence before the PCC, the significance of which is disputed and is not for me to judge, that information relative to certain other activities of RCMP officers be released, for these activities are perceived as interrelated with, even if they are not integral to, the complaints before the PCC. With respect, it seems to me that the only issue I have to resolve is whether certain documents, identified as within the ambit of the Commissioner's directive to produce, and which for purposes of these applications, the government agencies concerned concede are relevant to matters before the Commissioner, should be ordered by the Court to be produced, over the objections for specified public interest reasons.
[7] For the PCC, counsel described the nature of the documents in issue and outlined the principles applicable to determination of the issues in this case. Counsel did submit that particularly in a few instances where the documents in question had been withheld in their entirety from the Commission, in light of the public interest issues before the PCC, the Court should consider inspecting the documents and, if appropriate, ordering their release, under Court imposed directions, to provide public assurance in the integrity of the PCC inquiry process by the Court's independent review.
[8] The certificates of representatives of each of the RCMP, CSIS and the PCO set out the public interests which, in their view, warrant objections to disclosure of information pursuant to ss. 37 and 38. The public interests relied upon include the following:
| 1) The protection of information that would identify confidential sources (RCMP, CSIS, PCO) and the protection of information received from confidential sources (CSIS). The applicants accept the need to protect the identity of confidential sources, but not to protect information from those sources unless the party objecting to disclosure demonstrates that its release would likely identify the sources. |
| 2) The protection of information that would reveal investigative techniques and methods of operation is a public interest that the applicants do not agree should be extended to RCMP conduct and in particular, the applicants urge, to the RCMP's methods of using undercover officers in relation to the security planning for the APEC meetings. As for information provided to the RCMP from CSIS, the applicants urge that be released to the PCC unless CSIS and the PCO demonstrate that would undermine CSIS investigative techniques and methods of operation, protection of which the applicants concede is a public interest to be respected. |
| 3) The protection of identities of undercover RCMP or CSIS employees and Administrative Procedures (RCMP, CSIS, PCO) is acknowledged by the applicants to be a public interest to be respected, but it is urged that information from a confidential source to the RCMP be released unless it is established that would reveal the identity of undercover officers or CSIS employees or its procedures. |
| 4) The protection of confidential information from other agencies (RCMP, CSIS, PCO), a public interest the applicants recognize as important, but they urge that unless it is shown by the objector that disclosing the information provided to the RCMP would reveal the confidential sources, it should be disclosed. |
| 5) The protection of information concerning RCMP measures for protecting significant persons (RCMP), an interest the applicants urge should not outweigh the public interest in examining conduct of the RCMP as it affects legitimate political protest. |
| 6) The protection of information concerning investigative interests (CSIS) and specific investigative activities (PCO) which the Crown urges are important national security interests, are not conceded by the applicants as interests at stake in considering information to be released to the PCC because its inquiry is concerned not with terrorists or criminal elements but with individuals and groups recognized not to be violent. With respect, I am not persuaded that the apparently non-violent nature of known protesters is relevant to determination of the public interest characterization of the information in issue. |
| 7) The protection of information concerning the use of telecommunications systems, in particular cryptography (CSIS) is a public interest the applicants concede would be well-founded if the Crown can demonstrate disclosure would reveal such systems. |
| 8) The protection of information concerning international collaboration or international targets of security (CSIS) is a public interest which the applicants urge should not preclude disclosure to the PCC insofar as information provided to the RCMP is related to student protests, but the information need not reveal international collaboration or targets of CSIS interests. |
Weighing the Public Interests
[9] I turn to the factors outlined from the jurisprudence upon which the Court has based decisions whether to inspect the documents which are subject to objections to disclosure. These include the following.
(a) Whether the evidence in question will "probably establish a fact crucial to the defence" and the admissibility of the documentation and the usefulness of it
[10] These factors are more significant in consideration of public interest privileges claimed in relation to criminal charges. However, this does not mean that such factors can simply be ignored in the context of civil or administrative proceedings. Here, the PCC cannot make findings adverse to the applicants, and their Charter rights are not engaged in proceedings before the Commission. There are no charges for the applicants to defend before the PCC. The officers who are the subject of the complaints are not before the Court seeking disclosure of the documents for their "defence".
[11] It is important to distinguish the Public Complaints Commission from a court. The Commission does not make any determinations concerning the rights or liabilities of persons and it cannot discipline members of the Force whose conduct is in question. Under the RCMP Act, the Commission can only make recommendations.
[12] The mandate of the Commission was described by Mr. Justice McKeown in an earlier decision in connection with this application, as follows:
| The mandate of the Commission, which is a public inquiry incapable of establishing either civil or criminal liability, is to investigate whether the conduct of RCMP officers assigned to the APEC Conference contravened the Charter. Although the Commission has stated that it has the jurisdiction to make findings concerning the involvement of the executive in giving improper orders or directions to the RCMP, the inquiry is concerned with the conduct of the RCMP officers and not the conduct of the executive. |
The PCC is not a criminal court, its proceedings will not directly affect the substantive rights of any party. Its purpose is to protect the public interest in proper administration of justice by investigating and reporting upon the conduct of members of the RCMP who were the subject of complaints following the APEC conference. It is not concerned to report on the conduct of the RCMP as a whole or as an institution.
[13] For purposes of these applications, the respondent conceded that the information the disclosure of which is objected to is relevant to issues before the PCC. As for the utility of these documents to the commission, I conclude that they may be helpful to the Commission simply because of their relevance, but their weight is uncertain. Aside from my accepting that they are admissible as relevant, it seems clear in light of the nature of the PCC proceedings that the information in question is not crucial for any facts at issue before the PCC. There is no issue before the PCC, within its statutory mandate, concerning investigation of the RCMP as a police force or its general policies. Moreover, evidence of the background of, and reasons for, actions that are the subjects of complaints has been sought, as I understand it, from witnesses called to testify.
(b) The seriousness of the charge or issues involved;
[14] I recognize that the matters under investigation by the PCC are very important. They are constituted by a collection of allegations that members of the RCMP conducted themselves without regard to the rights of individuals in a free democracy. Among the complaints, it is alleged that members of the RCMP stifled legitimate protest by unnecessarily arresting individuals, unnecessarily using force, including pepper spray, oppressive conduct, failing to investigate threats of violence, removing signs that posed no threat to security and by arbitrarily enforcing the security zone restrictions. It is also alleged that many people were arrested without charge and were only released when they signed an undertaking not to protest against the APEC meeting. Other complaints allege that members of the RCMP unnecessarily strip-searched and intrusively examined arrested female protesters. The allegations against certain officers of the RCMP are very serious.
[15] The PCC is an independent, administrative body that is designed to investigate and report upon the concerns of those who complain about actions of the force"s members. The issues before the Commission are serious and the public interest in full disclosure of relevant information is significant and should only be outweighed by serious and significant public interests.
(c) Whether the disclosures sought amount to general discovery or a fishing expedition and whether the applicants have established that there are no other reasonable ways of obtaining the information
[16] The Commission"s authority to compel production of evidence comes from subsection 45.45(4) of the RCMP Act , which extends to the PCC the powers granted to boards of inquiry in section 24.1(3) of that Act:
| (3) A board of inquiry has, in relation to the matter before it, power
| (a) to summon any person before the board and to require that person to give oral or written evidence on oath and to produce such documents and things under that person's control as the board deems requisite to the full investigation and consideration of that matter; |
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(3) La commission d'enquête dispose, relativement à la question dont elle est saisie, des pouvoirs suivants_:
| a) assigner des témoins, les enjoindre à témoigner sous serment, oralement ou par écrit, et à produire les documents et pièces dont ils ont la responsabilité et que la commission estime nécessaires à une enquête et étude complètes; |
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That authority does not authorize compelling of evidence subject to privilege for reasons of public interest under ss. 37 and 38 of the Canada Evidence Act. Since the documents here in issue are conceded to be relevant, it is not possible to describe the PCC's interests as merely seeking general discovery or pursuing a fishing expedition. On the other hand, I am not persuaded that other evidence, for example: by oral testimony, was precluded from reasonable investigation by the PCC.
(d) The nature of the public interest sought to be protected by confidentiality.
[17] Earlier the various reasons put forward by the officials of the Crown in their objections to disclosure of the information were set out. These can be generally classified as objections in relation to public interests in national security, international relations and the administration of justice. These general interests warrant comment.
National Security
[18] A number of the objections, while made in particular terms, can be included in the category concerning national security. It is submitted that disclosing information that CSIS, the RCMP, the Solicitor General and the Privy Council Office seek to maintain as confidential would undermine Canada's ability to effectively protect its national security.
[19] In the course of preparation for the APEC Conference, a significant multi-lateral international meeting, a major job was to prepare for the arrival of many "Internationally Protected Persons"11 and to protect them while in Canada from the threat of terrorists and others who might do them harm. To do this, agencies such as CSIS, the RCMP, the PCO, National Defence and others were involved. The agencies involved drew on their resources to bring together intelligence information and to conduct what are characterised as "Threat Assessments". From the volume of materials generated and the number of persons involved, this was a major undertaking.
[20] From the information submitted to the PCC in the certificates in question, and which are now before me, it is said that CSIS, the RCMP and other agencies carry out their functions in regard to national security with necessary secrecy. Relationships between other police, intelligence and security agencies, particularly those abroad are forged, and information is shared on the understanding that the information will not be further disseminated beyond those concerned with national security. If such information were to be disclosed, the confidence of the originator of the information would be jeopardized, and so also would be all similar confidential relationships. There is no doubt that in the world today Canada"s national security depends, in part, upon relationships such as these and the information that is exchanged. The public interest in maintaining confidence in reciprocal relationships that provide valuable security related information is, in my opinion, very significant.
[21] The Supreme Court of Canada dealt with the importance of secrecy in national security matters in Chiarelli v. Canada (Minister of Employment and Immigration)12. Mr. Justice Sopinka, for a unanimous Court, wrote:
| However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources. The need for confidentiality in national security cases was emphasized by Lord Denning in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R. 452 (C.A.), at p. 460: |
| 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. |
Counsel for the respondent provided the continuation of the quotation of Lord Denning, which was not included in Chiarelli by Sopinka J., as follows:
| So the sources must not be disclosed. Not even to the House of Commons. Nor to any tribunal or court of inquiry or body of advisors, statutory or non-statutory, save to the extent that the Home Secretary thinks safe. ... When the public interest requires that information be kept confidential, it may outweigh even the public interest in the administration of justice. |
[22] In Henrie v. Canada (Security Intelligence Review Committee),13 Mr. Justice Addy found that the facts of that case warranted his review of materials, disclosure of which was objected to, and that he question counsel for CSIS in camera. The context was an application for judicial review of a decision to deny a security clearance to a member of the public service. A certificate was filed by the Deputy Attorney General for Canada objecting to the release of information that had been considered ex parte and in camera by the Security Intelligence Review Committee. Justice Addy decided that the information in question was central to the determination of the issues in dispute and for this reason, he decided to view the materials. In the result, disclosure was denied because he determined that the disclosure would likely prove injurious to national security. The balance was against disclosure.
[23] The documents which have been made available to the Commission in this case show a number of groups that are believed to be involved in terrorism and assassination. Canada is involved in ongoing activities against terrorism, activities that necessarily involve significant cooperation among the countries with which Canada is allied and has friendly relations. The Internationally Protected Persons who were present in Vancouver at the APEC conference were potential targets of terrorism and assassination and it was Canada"s obligation to inform itself of all threats to their security and to take appropriate countermeasures. To effectively provide a defence against terrorism and to participate in a global effort to constrain it, it is imperative for Canada to maintain as highly confidential the investigational interests of our security services, the sources of their information, the technologies and techniques they employ, the identities of their employees and particularly their informants. Canada"s security agencies must maintain the confidences and the cooperation of foreign agencies that have shared confidential information with our services in the expectation that it would not be divulged. The public interest served by maintaining secrecy in the national security context is weighty. In the balancing of public interests here at play, that interest would only be outweighed in a clear and compelling case for disclosure.
International Relations
[24] Portions of documents referred to in the first CSIS certificate refer to an interest in international relations, primarily based upon the importance of relationships between CSIS and foreign governments, international organisations and institutions. A portion of a document referred to in the Solicitor General/Privy Council Office certificate is also withheld from disclosure on the basis that it is information that was provided to Canada in confidence by a foreign government.
[25] With regard to the public interest protected by this particular objection, I reach the same conclusion as I did concerning third party information and national security. Canada"s international relations, in particular relations with our allies, rely on the exchange of information for common benefit. There is a public interest in maintaining the confidence of foreign governments so that Canada"s agencies, particularly those concerned with security, will continue to receive timely information from others that may be relevant to Canada's interests. Confidential information, by definition, is information that is passed along in confidence that it will not be disclosed without the permission of the provider or the source. If Canada does not enjoy the confidence of its allies, our international relations and security may well suffer. The public has a very high level interest in maintaining that confidence.
Police Techniques and the Identities of Undercover Police Officers
[26] I am informed by counsel that the claims relating to the public interests in maintaining as confidential, and not to be disclosed, information about police techniques and identities of undercover officers or their informers, as aspects of the administration of justice apart from national security interests, will be addressed before Commissioner Hughes as matters of common law privilege. Thus, these are not of concern to this Court.
[27] In summing up submissions on the weighing of the public interest here involved, the British Columbia Civil Liberties Association urges that all information relevant to the inquiry should be disclosed unless the government can demonstrate that disclosure will identify confidential sources or identities of undercover officers. While accepting that legitimate national security reasons for non-disclosure of relevant information may exist, the Association urges that the PCC is entitled to receive all information provided to the RCMP in its preparation and planning, even if the Court directs that be without disclosure of the sources from which the information was received.
[28] The applicants' argument urging that the Court examine the documents and the information here in question relies in part on the comments of Mr. Justice LaForest, writing for the Supreme Court, in Carey v. Ontario14. There the learned justice expressed considerable sympathy for considering information claimed as not to be disclosed on grounds of public interest immunity under the common law, at least where that claim appears doubtful, as he found the circumstances there to be. That, of course, was not a decision concerning objections to disclosure under ss. 37 and 38 of the Canada Evidence Act.
[29] I am not persuaded that the onus is on government, at this stage, to demonstrate that disclosure will cause injury to the public interests identified, particularly in regard to national security and international relations. Rather, as I understand the jurisprudence following Goguen v. Gibson15, at this stage of an application under s. 38 of the Canada Evidence Act, to challenge an objection to disclosure of information, based on grounds that disclosure would be injurious to international relations or national security, the onus is upon the applicant to persuade the Court that the information, if relevant as is here acknowledged, is crucial to the public interests which are at issue in the circumstances of the applicants. An assumption of regularity, of applying the law properly, supports the objections filed by responsible officers of the Crown, whether the Court decides to examine or not to examine the information in question. It is the public interests relied upon in those objections which are to be weighed against the public interests in disclosure.
[30] In this case I am not persuaded that the public interests espoused by the applicants are at issue before the PCC. Its concerns are those set out by the complaints made about the actions of RCMP officers. These are not complaints about the policy of the force or of government. General institutional concerns are not within the statutory mandate of the PCC. Disclosure of the information is not crucial to the applicants' safety or freedom, for those interests are not at stake or threatened in the investigation by PCC. Moreover, the information in question is not critical to the applicants' complaints against RCMP officers and the applicants would not be prejudiced by not disclosing that information.
Conclusion
[31] In balancing the public interests here identified, in my opinion, in the circumstances of this case the public interest in disclosure does not outweigh the public interests identified as grounds for objections to disclose the information in issue, in particular the public interests in national security and in maintaining valuable international relations.
[32] Thus, I decline to examine any of the information that is here in issue. I decline also to consider release of any of that information, or any terms under which its release might be permitted.
[33] An order goes, dismissing all four applications, indicating that is done without any examination of any of the information in question. The order goes without costs to any party. The original of the order is to be filed on Court file DES-2-99, with reasons, and a copy of the order and of the reasons is filed on each of Court files DES-3-99, DES-4-99 and DES-5-99.
(signed) W. Andrew MacKay
OTTAWA, Ontario
June 23, 2000
__________________
1 R.S.C. 1985, c. C-5, as amended.
2 R.S.C. 1985, c. R-10, s-ss. 45.45(4) and 24.1(3) ("the RCMP Act ").
3 [1983] 1 F.C. 872 (T.D.), aff"d [1983] 2 F.C. 463 (C.A.).
4 Id. at p. 888.
5 Idem.
6 [1983] 2 F.C. 463 (C.A.) at 483.
7 [1996] 2 F.C. 316 (T.D.).
8 Id. at para. 26.
9 [1991] 1 F.C. 226 (T.D.).
10 Id. at p. 237.
11 As that term is defined in the Criminal Code , R.S.C. 1985, c. C-46, s. 2.
12 [1992] 1 S.C.R. 711.
13 [1989] 2 F.C. 229 (T.D.), aff"d (1992), 140 N.R. 315 (F.C.A.).
14 Supra, note 2.
15 [1986] 2 S.C.R. 637 at 681-683.
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