Date: 20110210
Docket: A-428-10
Citation: 2011 FCA 54
Present: LAYDEN-STEVENSON
J.A.
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Appellant
and
ABDULLAH ALMALKI, KHUZAIMAH KALIFAH,
ADBULRAHMAN ALMALKI, by his Litigation
Guardian
Khuzaimah Kalifah, SAJEDA ALMALKI, by her
Litigation Guardian
Khuzaimah Kalifah, MUAZ ALMALKI, by his
Litigation Guardian
Khuzaimah Kalifah, ZAKARIYY A ALMALKI, by
his Litigation Guardian
Khuzaimah Kalifah, NADIM ALMALKI, FATIMA
ALMALKI,
AHMAD ABOU-ELMAATI, BADR ABOUELMAATI,
SAMIRA AL-SHALLASH, RASHAABOU-ELMAATI,
MUAYYED NUREDDIN, ABDUL JABBAR NUREDDIN,
FADILA SIDDIQU, MOFAK NUREDDIN, AYDIN
NUREDDIN,
YASHAR NUREDDIN, AHMED NUREDDIN,
SARAB NUREDDIN, BYDA NUREDDIN
Respondents
REASONS FOR ORDER
LAYDEN-STEVENSON J.A.
[1] This motion raises the issue whether an amicus curiae
or amici curiae should be appointed to assist this Court in relation to
the ex parte appeal of the Attorney General (the Crown) from the
judgment of Mosley J. of the Federal Court (the designated judge) wherein the
judge, pursuant to paragraph 38.06 of the Canada Evidence Act (the Act),
ordered the disclosure of certain information to the respondents.
Background
[2] The
contextual background may be summarily stated. The respondents initiated civil
actions against Canada in the Ontario Superior Court of Justice alleging Canada
was complicit in their detention and torture in Syria (in the case of Mr.
Elmaati, Egypt) and breached their rights under the Canadian Charter of Rights
and Freedoms (the Charter). During the pre-trial stages, Canada disclosed to
the respondents’ counsel approximately 500 documents, 290 of which contained
redactions. Some of the redactions were said to be made pursuant to section 38
of the Act on the grounds that the information was injurious to national
security, national defence and international relations. Later, Canada asserted
that it had inadvertently disclosed one document without redactions and gave
notice under section 38 of the Act not to disclose the document. The
appropriate notices in relation to all documents in issue were provided to the Attorney
General pursuant to subsection 38.01(1) of the Act.
[3] Canada proceeded
with a section 38 application in the Federal Court. After preliminary case
management conferences, the matter was heard by the designated judge. The
proceeding was treated as presumptively public with the exception of the
portion which took place ex parte and in camera. The Crown filed
evidence in the form of both public and private ex parte affidavits. It
appears that the Crown suggested during the case management phase that the
matter was one in which the appointment of an amicus curiae might be
considered. The designated judge’s public reasons for judgment indicate that a
formal motion for the appointment of an amicus curiae was brought by the
respondents. The Crown consented to such an appointment, should the designated
judge deem it necessary. Ultimately, the designated judge appointed Me Bernard
Grenier and Me François Dadour as amici curiae to assist him in
considering the evidence tendered and the issues raised in the ex parte
hearings. At the conclusion of the proceeding, the designated judge ordered
certain information released or summarized. “Sensitive information” is defined
in section 38 as “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.”
[4] The
Crown’s appeal relates to information that the designated judge ordered
released or summarized in 30 documents. The respondents move for the
appointment of an amicus curiae or amici curiae to
assist this Court during the Crown’s ex parte appeal. The Crown opposes
such an appointment on the basis that it is not necessary. In the alternative,
the Crown maintains one amicus curiae would suffice.
The Common Ground
[5] The
scheme contained within section 38 of the Act does not require or contemplate
the appointment of an amicus curiae. However, the parties agree, and I
concur, that the Court has jurisdiction to appoint an amicus curiae: Canada
(A.G.) v. Khawaja, [2008] 1 F.C.R. 621 (F.C.) aff’d [2008] 4
F.C.R. 3 (C.A.), leave to
appeal dismissed, [2008] 1 S.C.R. ix (Khawaja);
Abou-Elmaati et al v.
Canada (A.G.)
2011 ONCA 95. The scheme provided in section 38 of the Act confers jurisdiction
on designated judges of the Federal Court and judges of this Court on an appeal
from a designated judge’s judgment to authorize disclosure of information.
While the scheme prohibits disclosure to the respondents or to anyone appointed
on their behalf for the purpose of a section 38 application (Khawaja at
paras. 132, 135 (C.A.)), an amicus curiae does not act in that
capacity. The amicus curiae is appointed on the court’s behalf to enable
it to fully exercise its jurisdiction. The determining factor for the
appointment of an amicus curiae is whether the court considers it
necessary. If an amicus curiae is deemed to be necessary, the amicus
curiae may be granted access to the ex parte information. Such
was the situation in the proceeding before the designated judge in this case
(Order dated March 26, 2010, Motion Record, Tab O).
The Positions of the
Parties
[6] The
Crown’s submissions can be summarized in five points. First, it says that the
appeal is limited to information contained in only 30 documents dealing with
either human source information or information received from foreign agencies.
The volume is significantly less than that before the designated judge, the appeal
is narrow in scope and this Court is well-placed to reach a full and fair
determination of the issues without the insertion of an additional actor into
the proceedings.
[7] The
Crown notes the distinction between the roles of the courts. The role of the
appellate court is not to hear and weigh the evidence first-hand, but to
analyze the designated judge’s determinations against a specific standard of
review. The question on appeal is whether the designated judge erred in law. At
this stage, the evidence is immutable and the legal issues are narrowly
focussed. Further, says the Crown, the need for an amicus curiae here is
attenuated because of the amici curiae’s full participation before the
designated judge. Since the entire ex parte record will be before this
Court, it will be privy to the ex parte transcripts, including the amici
curiae’s cross-examination of the Crown witnesses as well as the amici
curiae’s written and oral submissions. The positions adopted will be
readily available for consideration by this Court.
[8] The
Crown refers to its burden of demonstrating that the designated judge erred by
ordering the disclosure of certain information. The respondents have no onus to
meet, therefore, the need to advance the respondents’ position during the ex
parte segment of the appeal is significantly diminished.
[9] The
utmost good faith duty of the Crown in an ex parte proceeding requires
that the evidence presented be complete and thorough. No relevant information
adverse to the interest of the Crown may be withheld. This duty mitigates any
perception of unfairness.
[10] The
Crown points to the fact that the underlying proceedings are civil actions for
monetary damages. There are no section 7 Charter interests at stake as there
were in the cases where an amicus curiae was appointed. The underlying
proceedings in those cases were criminal or quasi-criminal in nature (Khawaja;
Abdullah Khadr v. Canada (A.G.), [2008] 3
F.C.R. 306 (F.C.); Omar Khadr v. Canada (A.G.), 2008 FC 807, 331
F.T.R. 1).
[11] The Crown’s
fall-back position is that because the issues are narrow and there are a
limited number of documents on appeal, there is no need to appoint more than
one amicus curiae. Either one of the two counsel appointed as amici
curiae before the designated judge should be able to more than adequately
assist the Court. The role of the amicus curiae should correspond to the
level of assistance that the Court requires.
[12] The
respondents refer to the voluminous and extensive record. Several affidavits
with exhibits were filed and cross-examinations were conducted in both the
public and ex parte segments of the proceeding. They note that the Crown
requested, on motion, leave to reduce the requisite number of sets of appeal
books and also asked to produce portions of the record in CD-ROM format. The
respondents argue that there is no reason to suspect the ex parte record
will be significantly less voluminous than the public record. No weight should
be attached to the number of documents because 30 is not a small number.
Moreover, a single document may be many pages long and contain more than one
redaction.
[13] The
respondents disagree with the Crown’s submission that the appeal concerns
narrow legal issues. They point to the Crown’s notice of appeal and emphasize
that, on its face, it raises issues with respect to the designated judge’s
application of the test articulated in Canada (A.G.) v. Ribic,
[2005] 1 F.C.R. 33 (C.A.). In the respondents’ view, the notice of appeal
raises questions of mixed fact and law that will necessitate reference to the
record and a detailed review of the evidence pertaining to the alleged errors,
including the affidavits and exhibits as well as the cross-examinations.
[14] According
to the respondents, the good faith obligation of the Crown relates to ensuring
that the full evidentiary record is before the Court. The Crown cannot fully,
fairly or objectively represent to the Court all points of view or, at a
minimum, will not appear to any reasonable observer to do so. The need to ensure
a full, balanced and fair hearing militates in favour of the appointment of an amicus
curiae.
[15] The
respondents maintain, without disclosure and full participation throughout the
process, they are not in a position to put forth full legal argument. This
results in potential unfairness. The warranty associated with the adversarial
system is removed. Absent the appointment of an amicus curiae, the Court
is left to decide the appeal without the benefit of submissions that truly
challenge the Crown’s position. The Court’s efforts, however conscientious, are
not an effective substitute for informed adversarial participation. Moreover,
the appellate court judges are less experienced than the designated judge in
relation to the issues to be determined.
[16] Regarding
the fact that the underlying actions are civil in nature, the respondents
assert that the actions relate to claims against the conduct of Canada in
international relations and investigations of national security. Section 7 of
the Charter is engaged in the underlying proceedings. Further, although the
Crown is subject to a duty of good faith, it is a defendant in the underlying
actions and is decidedly partisan. It is under no obligation to act in the
broad public interest as it must in a criminal prosecution. From the
respondents’ perspective, to overcome the appearance that Crown counsel will
not represent or speak for the respondents’ interests and perspectives during
the ex parte segment of the appeal, it is critical that both the Court
and the public be confident a full and fair hearing will occur.
[17] The
respondents maintain that since two amici curiae were before the
designated judge, there should be two amici curiae before this Court.
Analysis
[18] The
respondents rely heavily on the preservation of the adversarial system and
public confidence in it to support their request for the appointment of an amicus
curiae. While I do not minimize the legitimacy of these concerns, I regard
it as settled law that Parliament may, when it considers it necessary and
appropriate to do so, mandate through legislation a requirement for ex parte
hearings: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3.
[19] The reality
of our modern world is that information may be obtained from other countries or
from informers on condition that it not be disclosed, or it may be so critical
that it cannot be disclosed without risking public security: Charkaoui v.
Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 at para.
61 (Charkaoui). At paragraph 77 of Charkaoui, the Supreme Court
referred specifically and favourably to the section 38 scheme of the Act as
being illustrative of Parliament’s concern for striking a sensitive balance
between the need for protection of confidential information and the rights of
the individual.
[20] It bears
repeating that the section 38 scheme of the Act has been determined to be
constitutional: Khawaja. Consequently, preservation of the adversarial
system and public confidence in it are insufficient, on their own, to support the
appointment of an amicus curiae in section 38 proceedings.
[21] In their
submissions, both the Crown and the respondents, directly or impliedly, refer
to the role of an amicus curiae as representing, at least in part, the
interests of the respondents (Crown’s memorandum of fact and law at para. 15;
respondents’ memorandum of fact and law at paras. 46 and 53, para. 58 having
been withdrawn at the hearing of the motion). It is clear that courts have
appointed an amicus curiae to represent the interests of a particular
person or party. The evolution and flexibility of the role of the amicus
curiae has been canvassed by Durno J. in R. v. Cairenus (2008), 232
C.C.C. (3d) 13 (Ont. Sup. Ct. J.). However, regard must always be had to
context. When it is deemed necessary to appoint an amicus curiae, the
nature of the role may vary. The needs of a designated judge may not be
identical to those of an appellate court. The role must be prescribed
accordingly. It will be important not to run afoul of the statements in
paragraphs 132 and 135 of Khawaja. In my view, the role of an amicus
curiae (if necessity is found) before this Court, on an appeal from a
designated judge’s judgment under subsection 38.09(1) of the Act, is to assist
the Court. It is not to represent the respondents’ interests.
[22] The Crown’s
reliance on its duty of utmost good faith and its burden to demonstrate that
the designated judge erred goes only so far. Although it has an absolute
obligation to ensure that the record is complete, there is no obligation on the
Crown to argue against its own case.
[23] The fact that
the underlying proceedings are civil rather than criminal, or quasi-criminal,
in my view, is of no moment to the issue before me. It is anomalous that the
Crown relied on the distinction before this Court when it did not do so before
the designated judge. The Crown acknowledged at the hearing of this motion that
it was not suggesting that an amicus curiae should only be appointed
where liberty interests were engaged. In any event, the ex parte
proceeding under the section 38 scheme is general in nature and does not engage
liberty interests although the product of the proceeding may do so: Khawaja
at para. 116. The significance of the underlying proceedings was the subject of
comment by the designated judge at paragraphs 182 and 183 of his public reasons
for judgment.
[24] At the end of
the day, the appointment of an amicus curiae will depend solely upon
whether the Court considers the appointment necessary to accomplish its
statutory purpose. The inquiry is a fact-specific one and must be approached on
a case-by-case basis. Desirability is insufficient.
[25] Turning to
the specific matter before me, the respondents insist that resort must be had
to the record, given the nature of the contents of the notice of appeal. As
stated earlier, they insist that references to the evidentiary record will be
required to tie the evidence to the legal issue. The Crown does not suggest
otherwise. Its position is that the Court will have the full record before it,
including the evidence and the submissions of the amici curiae to the
designated judge, and that is sufficient for the Court’s purposes.
[26] I have three
observations regarding the Crown’s submissions. First, as a general rule, the
memoranda of fact and law from the court of first instance are not included in
the appeal record because the disposition of the appeal depends entirely on the
evidence and the applicable legal principles. Only in exceptional circumstances
is it relevant on an appeal to know what was argued by the parties in the court
below: McBride v. Canada (Minister of National Defence),
2008 FCA 111; Montana Band v. Canada, 2001 FCA 176, 106 A.C.W.S. (3d)
392.
[27] Second, for
the same reason, it is not at all clear to me that submissions made by the amici
curiae to the designated judge would be of benefit to this Court given the
disparity between the nature of the questions before the appellate court and
those before the designated judge.
[28] Third, the
respondents argue that an amicus curiae is required to “connect the
dots” or “provide a roadmap” for this Court in view of the voluminous nature of
the record and the likelihood of references to the evidence. They suggest that
either of the amici curiae is well-positioned to assist the Court in
this respect since both were before the designated judge and familiar with the
record. The Crown did not respond directly to this submission although it did
advise that the 30 documents comprise 208 pages containing four summaries and 26
lifts dealing with sources and foreign agencies.
[29] Because I
found the respondents arguments attractive in this respect, I informed myself
regarding the extent of the ex parte record. It comprises 17 volumes
containing 6,154 pages. The transcripts are contained in three volumes running
from page 5,005 to page 6,154 – there are 1,149 pages of transcript.
[30] It seems to
me, if I were to rely on the Crown’s suggestion, the Court would be placed in
the insufferable position of searching for the proverbial needle in the
haystack. With scarce judicial resources available, I do not consider it to be
an effective use of the Court’s time, with no guarantee that it will
necessarily find what it is looking for, to wade through thousands of pages in
search of evidence that could run contrary to that favourable to the Crown’s
submissions.
[31] This leads me
to conclude that the appointment of an amicus curiae would be of
significant benefit to the Court and that such an appointment is required to
ensure that the Court can effectively accomplish its statutory mandate during
the ex parte proceeding. That said, I agree with the Crown that one amicus
curiae should suffice for purposes of the appeal, in view of the reduced
number of documents and the familiarity that each of the amici curiae
before the designated judge has with the section 38 proceeding. Each is also
security-cleared and experienced in national security matters.
[32] As for the
parameters of the role of the amicus curiae on this appeal, the amicus
curiae should have access to the ex parte record, should file
a memorandum of fact and law and book of authorities in response to the Crown’s
memorandum of fact and law and make oral arguments at the ex parte
hearing of the appeal. The amicus curiae must keep confidential, from
anyone not participating in the ex parte hearing, all confidential
information and documents to which he has access. The amicus curiae may
attend the public segment of the appeal, but is to have no communication with
the respondents, or their counsel, in relation to the appeal except as
specifically authorized by order of the Court.
[33] As for which
of the two amici curiae appearing before the designated judge should
assume the role of amicus curiae on the appeal, I will leave that issue
to be determined between the amici curiae. It may be that one is more
familiar with the record than the other. I will permit counsel to confer with
the amici curiae for the purpose of ascertaining which of them will
appear as the amicus curiae before this Court. Counsel may also confer
in relation to ascertaining the availability of all counsel, including the amicus
curiae, for a hearing date. The Court should be advised by Monday,
February 14, 2011, regarding which of the two amici curiae will assume the
role of the amicus curiae before this Court and regarding the
availability of all counsel and the amicus curiae for the hearing of the
appeal, which is to be heard in Ottawa. The Crown has agreed
to pay the reasonable fees and disbursements of the amicus curiae, as
negotiated between the Crown and the amicus curiae, and to provide the
appropriate level of administrative support and resources commensurate with the
role and responsibilities of the amicus curiae.
[34] I wish to
thank counsel for their submissions. They were of great assistance to me in my
determination of this matter. The respondents requested costs of the motion;
the Crown did not. Success has been divided and I do not think, in the
circumstances, that this is an appropriate case for costs. Therefore, in the
exercise of my discretion, I will not award costs.
[35] An order for
the appointment of an amicus curiae and the parameters of his role will
issue concurrent with these reasons. A further order appointing the specific amicus
curiae will follow when it is determined which of the two amici
curiae will assume the role.
"Carolyn
Layden-Stevenson"
Email this Content