Canada (Attorney General) v. W.H., 2022 FC 1377

ORDER

UPON the filing of an Amended Notice of Application on February 8, 2021 under subsection 38.04(1) of the Canada Evidence Act, RSC 1985, c C-5 (“CEA”), for an Order regarding disclosure of information referred to in a notice given to the Attorney General of Canada (“AGC”) on November 4, 2020 under subsection 38.01(3) of the CEA, advising the AGC that sensitive information or potentially injurious information (as defined in the CEA) may be disclosed in connection with criminal proceedings pending against W.H., the Respondent;

AND UPON the Court thereby being called upon to determine whether, under section 38.06 of the CEA and the test established by the Federal Court of Appeal in Canada (Attorney General) v Ribic, 2003 FCA 246, the AGC’s objections to disclosure of the information in question should be confirmed or, instead, additional disclosure should be authorized;

AND UPON the AGC filing with the Court redacted versions of the documents containing the information in question reflecting the AGC’s initial objections to disclosure of the sensitive or potentially injurious information;

AND UPON the AGC filing affidavit evidence providing the basis for its initial position regarding non-disclosure of the information in question;

AND UPON the Court appointing an amicus curiae, Mr. Solomon Friedman, to assist the Court in the discharge of its responsibilities under the CEA section 38 scheme – in particular, in the application of the Ribic test;

AND UPON the Respondent confirming through his counsel that he waived any requirement for a public hearing in this matter, including his right to make submissions on the application of the Ribic test to the redacted information;

AND UPON being advised on May 31, 2021, that a witness in the underlying criminal proceeding requested the opportunity to make representations in connection with the CEA section 38 proceeding but then subsequently being advised that this request was no longer being pursued;

AND UPON convening an ex parte in camera hearing on May 20, 2022, and receiving the submissions of the AGC and the amicus;

AND UPON considering that, since the amicus and the AGC had reached a joint position regarding the information in issue, the amicus waived the right to cross-examine the AGC’s affiant;

AND UPON having considered the AGC’s affidavit evidence and being satisfied that it was not necessary to hear from the affiant;

AND UPON considering the joint proposal submitted by the AGC and the amicus that: (1) identifies information in the redacted documents that the AGC now agrees can be disclosed through lifts of redactions; (2) suggests word substitutions or summaries for certain information that otherwise ought not to be disclosed; and (3) agrees that the remaining redactions are warranted under the Ribic test;

AND UPON noting that, subsequent to the in camera ex parte hearing, the AGC confirmed that redactions over certain information in Document AGC0001 (p. 96) and Document AGC0002 (p. 2) would also be lifted;

AND UPON considering that, notwithstanding the joint proposal of the amicus and AGC, the Court must determine — in accordance with the statutory provisions and the governing jurisprudence — whether the prohibition on disclosure of the remaining redacted information should be confirmed: see Canada (Attorney General) v Meng, 2020 FC 844 at para 71;

AND UPON agreeing with and adopting the joint position of the AGC and the amicus – more particularly, agreeing with and adopting their position concerning additional disclosure that should be authorized in the form of word substitutions or summaries (as set out in Annex A to this Order) and with respect to the claims for non-disclosure by the AGC that the amicus does not contest (as set out in Annex B to this Order);

THIS COURT ORDERS that:

1. Pursuant to subsection 38.06(2) of the CEA, the additional disclosure as set out in Annex A is authorized;

2. Pursuant to subsection 38.06(3) of the CEA, the prohibition of disclosure of the remaining redacted information itemized in Annex B is confirmed;

3. Counsel for the AGC and the amicus shall consult with one another with a view to identifying any necessary redactions to the public version of Annexes A and B to this Order.