Charkaoui Re

Charkaoui Re
Court (s) Database
Federal Court Decisions
Date
2008-01-18
Neutral citation
2008 FC 61
File numbers
DES-3-03
Notes
Reported Decision
Decision Content
Date: 20080118
Docket: DES‑3‑03
Citation: 2008 FC 61
Ottawa, Ontario, January 18, 2008
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
IN THE MATTER OF a certificate
pursuant to subsection 77(1) of the Immigration and Refugee Protection Act
signed by the Minister of Immigration
and the Solicitor General of Canada (Ministers)
S.C. 2001, c. 27 (IRPA);
IN THE MATTER OF the referral of this certificate to
the Federal Court of Canada pursuant to subsection 77(1)
and sections 78 and 80 of the IRPA;
IN THE MATTER OF a motion
to quash subpoenas duces tecum filed by
Joël‑Denis Bellavance and Gilles Toupin (the interveners)
and objections arising from questions asked during an examination on affidavit;
AND IN THE MATTER OF
Mr. Adil Charkaoui.
4
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is a motion to quash subpoenas duces tecum (motion to quash) filed by the interveners, Joël‑Denis Bellavance (Mr. Bellavance) and Gilles Toupin (Mr. Toupin) (collectively, the interveners), reporters for the newspaper La Presse. Subpoenas duces tecum were served on the interveners, compelling them to come testify and bring with them
(1) A top secret report entitled Former Terrorist Training Camps in Afghanistan: Major Sites and Assessment; and
(2) Any and all other documents of the Canadian Security Intelligence Service (CSIS) used as sources for the article entitled “Charkaoui a‑t‑il discuté d’un attentat?” (Did Charkaoui discuss an attack?), published in La Presse on June 22, 2007.
[2] Owing to the affidavits the interveners submitted in support of the motion, an examination on affidavit of Mr. Bellavance was held, and many objections to the questions were raised. In this case, the Court is called upon to rule on the motion to quash and on the validity of the objections.
[3] The subpoenas were issued in connection with a motion filed by Adil Charkaoui (Mr. Charkaoui) to set aside the certificate proceedings initiated under sections 76 et seq. of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (IRPA) against him on May 23, 2003, following the publication of articles in the dailies La Presse and Le Droit on June 22, 2007. The articles revealed that Mr. Charkaoui had discussed with someone else hijacking a commercial aircraft and crashing it into target in a foreign country, according to a plan that was similar to what happened on September 11, 2001. According to the articles, the document, entitled Former Terrorist Training Camps in Afghanistan: Major Sites and Assessment, dated April 12, 2003, contained top secret intelligence of the Canadian Security Intelligence Service (CSIS). Mr. Charkaoui essentially argues that the Canadian government and CSIS leaked the top secret document; that the leak constitutes an interference with the administration of justice, thereby unlawfully and wrongfully interfering with the judicial process; that it compromises the independence and objectivity of the judiciary, thus bringing the administration of justice into disrepute; and that it damages his reputation and constitutes a serious violation of his constitutional rights protected by sections 7, 9 and 10 and paragraphs 11(a), (b) and (c) of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982 (U.K.), being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter).
[4] To make it easier to read this judgment, I am including hereafter the work plan used in coming to the appropriate determinations:
(a) Background, page 4;
(b) Case update, page 7;
(c) Articles published in La Presse and Le Droit, page 12;
(d) Summary of Joël‑Denis Bellavance’s testimony, page 15;
(e) Positions of the parties:
I. The interveners, page 18;
II. Mr. Charkaoui, page 20;
III. The Ministers, page 23;
(f) Analysis:
I. Motion to quash the certificate proceeding, page 24;
II. Relevance of the requested information, page 25;
III. Impact of the publication of the information, page 28;
IV. Journalistic decision to publish, page 32;
V. The Charter and freedom of expression, page 34;
VI. Compellability of the reporters and application of the Wigmore tests, page 36;
VII. Decisions concerning the objections to the questions, page 44;
(g) Conclusion, page 48;
(h) Costs, page 48;
(i) Judgment, page 49;
‑ Schedule A, Summary of the additional evidence, page 51;
‑ Schedule B, List of questions with reasons for objection and summary of decision, page 57;
‑ Schedule C, Article 6 of the Professional Code of Ethics for Quebec Journalists, regarding reporters’ sources, page 63;
(A) BACKGROUND
[5] As mentioned above, the reporters signed affidavits in support of the motion to quash the subpoenas. One of the reporters, Mr. Bellavance, gave testimony on examination by counsel for Mr. Charkaoui. The parties agreed that Mr. Toupin would testify afterwards. They suggested that the examination on affidavit be a public hearing before a judge owing to the principles involved and objections arising from the questions. The parties were authorized to proceed this way, and, as a result, a number of objections were raised; a few of them were resolved during the examination on affidavit and some others were taken under advisement. In this judgment, I will be ruling on the objections while taking the principles involved into consideration. The motion to quash the subpoenas has now become a forum for dealing with the objections arising from the examination on affidavit of Mr. Bellavance for the purposes of evidence for the principal motion. The order to be made will rule on the motion to quash the subpoenas duces tecum and on the objections.
[6] The certificate proceedings were initiated against Mr. Charkaoui in late May 2003, and he was imprisoned until February 17, 2005, when he was released under preventive conditions. Although the conditions have been amended a number of times, several of them are still in effect today.
[7] Still no determination has been made as to whether the certificate is reasonable. There are many reasons for this state of affairs: the numerous legal proceedings to which this case gave rise, the applications for protection made under subsection 112(1) of the IRPA and the suspension of the certificate proceedings (see subsections 79(1) of the IRPA, etc.).
[8] Since the beginning of the proceedings in May 2003, the Court has reviewed and examined the case on a number of occasions. With a view to keeping Mr. Charkaoui reasonably informed of the circumstances giving rise to the certificate and without disclosing anything that might, under the IRPA, be injurious to national security or to the safety of any person, the Court has provided him with a few summaries of the evidence. The information reported in the press was inserted at paragraph 35 of a summary dated May 23, 2003, and was general enough in nature, so that it would not be injurious to national security or to the safety of any person. Since the information has become public, in this judgment the Court intends to issue a new summary in order to keep Mr. Charkaoui reasonably informed in the wake of the June 22, 2007 article.
[9] As provided for in the IRPA, the designated judge “shall ensure” the confidentiality of the information on which the certificate proceedings are based (see paragraph 78(b)). The judge may not disclose information if it would be injurious to national security or to the safety of any person. If the judge concludes that the information is relevant to the person concerned, but the Ministers are of the opinion that its disclosure would be injurious to national security or to the safety of any person, they may request that the information not be part of the Court’s record (see paragraph 78(f) of the IRPA). Basically, Parliament compels the judge to protect and “ensure” the confidentiality of information on which the certificate is based and keep the person concerned reasonably informed through a summary of evidence. This is a delicate procedure that requires in‑depth knowledge of the case and issues.
[10] This is a unique procedure in and of itself, requiring the designated judge to constantly ensure compliance with the legislative component. This goes beyond classic procedures that are usually followed.
[11] The information in the newspaper articles is secret, and few people in the government have the clearance to receive this kind of information. Without going into detail, the information’s very existence tells the person concerned a great deal. The information concerns two people conversing about hijacking an aircraft in order to strike a target in Europe. This information is private, its contents are worrisome and it is classified for obvious reasons which need not be dealt with further in this judgment. In accordance with the duties imposed by Parliament, this information, in detailed form, could not have been part of a summary of evidence. At most, it could have been conveyed only in general terms, which was done on May 23, 2003, in the summary of evidence at paragraph 35.
(B) Case update
[12] When the Court learned of the La Presse articles, it held a hearing by teleconference with counsel for the parties. The objective was to allow the Court to express its concern over the publication, determine whether the information came from a document in the Court’s confidential record and indicate that the Court was required to “ensure” the confidentiality of the information, in keeping with paragraph 78(b) of the IRPA. Subsequently, on June 29, 2007, counsel for the Ministers asked that a hearing be held without Mr. Charkaoui or his counsel, in accordance with paragraph 78(e) of the IRPA. The Court granted the request, taking Mr. Charkaoui’s objection into account. Following the ex parte hearing on July 5, 2007, the Court decided to provide Mr. Charkaoui with more information. A summary of additional evidence was prepared. The Court held another hearing via teleconference and read the summary to counsel, with Mr. Charkaoui in attendance. After the summary was read, Mr. Charkaoui’s counsel asked for and were granted a recess. After the recess, counsel asked that the summary of evidence not be entered into the record, the reason being that Mr. Charkaoui had suffered considerable damage to his reputation following the publication of the articles and that making the summary of evidence public would aggravate his situation. The Ministers objected to this request on the ground that Mr. Charkaoui had always maintained that the procedure followed had never given him access to sufficient information and that this new position contradicted what he had always maintained. The Court took Mr. Charkaoui’s request under advisement.
[13] Given the state of the case so far; the motion to set aside Mr. Charkaoui’s certificate proceeding; the motion to quash the subpoenas served on the reporters, Mr. Bellavance and Mr. Toupin; the interpretation of the information on which the newspaper articles are based; the situation arising from the publication of the information involving Mr. Charkaoui on June 22, 2007; the undersigned’s duty to keep Mr. Charkaoui reasonably informed; and the fact that Mr. Charkaoui and his counsel are aware of the information, the Court concludes that the summary of additional evidence must be officially entered into the Court’s public record.
[14] Briefly, the summary reveals the following information:
- At an ex parte hearing lasting about two and a half hours on July 5, 2007, counsel for the Ministers summoned two people to testify. The first witness testified about CSIS’s internal investigation (it is public knowledge that police and administrative investigations have since been launched). The second witness testified about his or her knowledge of the secret document filed in Court;
- In my view, the Court’s primary objective is to give Mr. Charkaoui as much information as possible to give him an opportunity to respond to the allegations against him;
- The Court can now confirm the existence and contents of the document on which the news articles were based, but adds that the document is not part of the evidence before the Court. However, the Court has unproven information concerning Mr. Charkaoui to the effect that, at a meeting in June 2000, he discussed with two people hijacking a commercial aircraft for violent purposes. General information in this regard is already included in the summary of evidence of May 23, 2003, at paragraph 35. In addition, the Court has unproven information to the effect that Mr. Charkaoui allegedly went to Afghanistan in early 1998 to take military and religious training at Camp Khalden.
[15] The summary of additional evidence is reproduced in its entirety in Schedule A to this judgment. As a separate point, following a request by the Court, counsel for the reporters agreed to provide the Court with a copy of the document on which the articles published in La Presse and Le Droit are based, entitled Former Terrorist Training Camps in Afghanistan: Major Sites and Assessment. The document was given to the registry for designated proceedings in a brown envelope to be opened only by myself, which was done in the presence of counsel for the Ministers at the ex parte hearing on November 14, 2007. The Court treated the document as if it were top secret, as indicated in the articles, as per paragraph 78(b) of the IRPA.
[16] Through his counsel, Mr. Charkaoui submits that, since the document had been mentioned in the newspaper articles, it was part of the public domain and therefore should be disclosed. In the alternative, they ask the Court to answer the following questions as part of the motion to set aside the certificate proceeding:
(1) Was the document top secret when it was leaked and made public by La Presse?
(2) Had the document been declassified when it was leaked and made public by La Presse?
(3) Is CSIS the source of the document?
(4) Should the document not have been disclosed, in accordance with the Act?
(5) What is the name, title and function of the document’s author?
(6) What is the name, title and function of the source and recipient of the document?
(7) What was the goal (objective) of the document?
[17] In view of the arguments heard in public on October 25, 2007, and the submissions dated September 7, 2007, it seems the Ministers agreed with the procedure for handing over the document through the registry for designated proceedings, subsequently submitting it to the Court and opening the envelope in the presence of counsel for the Ministers. However, the Court notes that, according to a letter dated September 21, 2007, from the Ministers’ counsel, the Attorney General of Canada had been notified, in accordance with subsection 38.03(3) of the Canada Evidence Act, R.S.C. 1985, c. C‑5, (Evidence Act) concerning the information related to Mr. Charkaoui’s certificate proceeding. The Court has held the hearings since that date. Under subsection 38.03(3) of the Evidence Act, the Attorney General is required to provide a written decision within ten days after the day on which he first received the notice. No decision was received. On November 25, 2007, counsel for the Ministers informed the Court that, since the document was being treated confidentially in accordance with section 78 of the IRPA, the notice to the Attorney General of Canada would be withdrawn.
[18] After reading, in the presence of counsel for the Ministers, the contents of the envelope, that is, the document on which the June 22, 2007 articles are based, the Court is ready to respond to Mr. Charkaoui’s attorneys’ questions, while taking into account its duty not to disclose information that would be injurious to national security or to the safety of any person. In the light of the exceptional nature of this case, however, special attention needs to be paid to the public interest, the judicial system, the administration of justice and Mr. Charkaoui’s rights. All the issues at stake must therefore be weighed in providing reasonable answers to the questions. First of all, the document cannot be disclosed. It is a protected document and is described in the definition of “information” in section 76 of the IRPA, which reads as follows:
[M]eans security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.
[19] The document addresses many topics and mentions a number of people. The information concerning Mr. Charkaoui is disclosed in this judgment. The answers to Mr. Charkaoui’s questions are as follows:
Table 1 Mr. Charkaoui’s questions and answers
Questions from Mr. Charkaoui
Answers to Mr. Charkaoui’s questions
1. Was the document top secret when it was leaked and made public by La Presse?
No, the document was secret when the newspaper articles were published on June 22, 2007, and it is still secret. It addresses many topics and people, as well as Mr. Charkaoui, albeit briefly.
2. Had the document been declassified when it was leaked and made public by La Presse?
The answer to the first question answers this one.
3. Is CSIS the source of the document?
Yes, the document is from CSIS’s Intelligence Assessment Branch, formerly known as Research, Analysis and Production.
4. Should the document not have been disclosed, in accordance with the Act?
Information gathered by CSIS as part of its duties and functions can be disclosed only in accordance with section 19 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C‑23. In addition, according to sections 76 et seq. of the IRPA, the information could not be disclosed.
5. What is the name, title and function of the document’s author?
There is no author indicated on the document, except that there is a reference to CSIS’s Intelligence Assessment Branch.
6. What is the name, title and function of the source and recipient of the document?
CSIS sent the information and analysis document to several Government of Canada departments and a number of national and international agencies in the intelligence community, which are all cleared to receive this type of document.
7. What was the goal (objective) of the document?
It is an information and analysis document that discusses a form of threat to Canada at a certain point in time. A few training camps in Afghanistan are identified. Many people are mentioned. Mr. Charkaoui is mentioned in text referring to certain training camps. Most of the document deals with other topics and/or people.
(C) articles published in La Presse and Le Droit
[20] On Friday, June 22, 2007, the newspapers La Presse and Le Droit gave front‑page coverage to two articles entitled:
- “Charkaoui a‑t‑il discuté d’un attentat?” (Did Charkaoui discuss an attack?) on pages A2 and A3 of La Presse.
- “Charkaoui voulait être kamikaze selon le SCRS” (CSIS: Charkaoui wanted to be a suicide attacker) on the front page of Le Droit and, on a full page (3), “Les services secrets soupçonnent Charkaoui d’un scénario similaire au « onze septembre »” (Spy agency suspects Charkaoui of plot similar to September 11) and “En février, Adil Charkaoui gagnait une bataille” (Adil Charkaoui won battle in February).
[21] These articles were written jointly by La Presse reporters Joël‑Denis Bellavance and Gilles Toupin.
[22] The articles report that on June 25, 2000, Hashim Tahir, who had spent six months in Pakistan in 1999, had a conversation with Mr. Charkaoui and that they allegedly discussed a terrorist attack by hijacking an aircraft flying from Montreal to an unknown foreign destination, possibly in Europe, with a plan that was similar to the one involving multiple terrorist attacks on September 11, 2001.
[23] This [translation] “top secret” information, according to the reporters, was based on a CSIS document entitled Former Terrorist Training Camps in Afghanistan: Major Sites and Assessment, dated April 12, 2003. It was provided by an anonymous source. The information in the document, which has not been proven in court, was used by the Canadian authorities to obtain from a Federal Court judge a security certificate naming Mr. Charkaoui, according to a [translation] “government source”.
[24] The document also indicates that Mr. Charkaoui trained at two Afghan terrorist camps in 1998, camps Khalden and Derunia, both under the control of Al Qaeda. According to the reporters, the confidential information used as a basis for the published articles provides an overview of the terrorist training camps based on information obtained from intelligence agencies in the U.S., Great Britain, New Zealand, Australia and Canada.
[25] In those articles, Mr. Charkaoui vehemently and categorically denied the information, adding that it seriously damaged his reputation. According to him, the leak, in breach of the rules of the Federal Court and the Information Commissioner, shows that CSIS is plugging gaps to draw attention away from its incompetence and the initial error it made in launching an investigation into his activities.
[26] The other article that was published is limited to a summary decision in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, a decision of the Supreme Court where it determined that the certificate procedure was unconstitutional because the evidence heard while the person concerned was not present had not been adequately tested. Section 7 of the Charter had therefore been infringed. In conclusion, the article states that it was now up to the government to respond to the Supreme Court’s decision.
[27] The evidence shows that the contents of these articles were repeatedly reported by many press agencies, in both official languages.
Summary of Joël‑Denis Bellavance’s testimony
[28] As mentioned above, Joël‑Denis Bellavance and Gilles Toupin drafted articles published in La Presse and Le Droit on June 22, 2007. Mr. Bellavance testified. I will summarize what he has testified to so far. Mr. Toupin’s testimony will be heard when the hearing resumes, after the parties come to an agreement.
[29] The titles “Charkaoui a‑t‑il discuté d’un attentat?” (La Presse) and “Charkaoui voulait être un kamikaze selon le SCRS” (Le Droit) were not thought up by the reporters, but rather by the dailies’ News Desk Editor.
[30] Mr. Bellavance has 17 years of experience in journalism. He has worked for the Canadian Press, Le Droit and Le Soleil and has been a reporter at La Presse since September 2001.
[31] There are no policies or guidelines concerning anonymity and how to treat sources at La Presse.
[32] In general, at La Presse and other newspapers, when reporters make a commitment to a source to protect his or her identity, they honour to it [translation] “to the bitter end”.
[33] Mr. Bellavance was aware of article 6 (Protection of sources and reporteric material) of the Professional Code of Ethic for Quebec Journalists and adhered to the rules when he spoke with his sources. The guidelines are included in Schedule C, article 6 of the Professional Code of Ethics.
[34] The reporters relied on both human and documentary sources for their reporting. The newspaper article states that it is based on [translation] “human sources”.
[35] According to Mr. Bellavance, the sources are confidential because he promised them he would protect their identities, and this promise was made [translation] “formally, solemnly and unequivocally”. The promise was given at the request of the sources. Although the sources’ potential concerns were not discussed, it was [translation] “obvious” to the reporter, in the light of the person concerned, that the source did not have to explain why he or she wanted to remain anonymous. [translation] “The source didn’t have to spell it out for me”, he said.
[36] The reporter started preparing his article in March 2007.
[37] According to the reporter, the genuineness of the information [translation] “used by the Canadian authorities to obtain from a Federal Court judge a security certificate naming Mr. Charkaoui” was confirmed by a [translation] “government source” five days before the articles were published. The government source also confirmed the genuineness of the document on which the article was based. After the source provided this latest information, a decision was made to publish the article.
[38] Both reporters spoke to Mr. Charkaoui before the article was published. Mr. Toupin led the interview. He told Mr. Charkaoui that he was concerned that, in the light of the nature of the document, a search would be carried out following the publication of the article.
[39] The Vice President of News and Editor in Chief of La Presse authorized the article’s publication. He was aware of the contents of the document but did not know the name of the source who gave it to the reporter. However, he knew the name of the government source.
[40] According to the reporter, the June 22, 2007 article was based on information from a confidential document of the Canadian Security Intelligence Service dated April 12, 2003, entitled Former Terrorist Training Camps in Afghanistan: Major Sites and Assessment, and the information about Mr. Charkaoui in the document was [translation] “top secret”.
[41] Mr. Bellavance acknowledges he does not have the required security clearance to have this document in his possession. In fact, he has no security clearance.
[42] Counsel for the parties agreed that the summons to appear should remain valid for future dates for both reporters.
Positions of the parties
(I) The interveners
[43] Given that the reporters had signed affidavits in support of their motion to quash the subpoenas, their counsel does not object to their each being examined, provided that the examination is limited to the content of the affidavit. However, counsel objects to any questions that could directly or indirectly identify the human sources who supplied the document and who confirmed that this information was used to obtain a certificate against Mr. Charkaoui. As regards the subpoena duces tecum concerning the document on which the newspaper articles are based, it was submitted to the Court, as noted above.
[44] The interveners object to the disclosure of the human sources, because the right to freedom of expression guaranteed by paragraph 2(b) of the Charter encompasses freedom of the press and, incidentally, the protection of reporters’ sources.
[45] Underlying this protection is the notion that the relationship between reporters and their sources is founded on the condition of anonymity required by the source and offered by the reporter. This relationship is in the public interest, as it makes an important contribution to the exercise of freedom of expression. If this protection were not offered, the ability of reporters to collect and release information would be jeopardized, resulting in an infringement of freedom of expression and freedom of the press.
[46] It is argued that the reporters are covered by a privilege in this Court and therefore have the right not to disclose their sources.
[47] For this reason, it is argued that the objections to the questions should be upheld.
[48] Furthermore, it is argued that the information sought from the reporters, that is, the names of the sources for the articles, is not relevant to the motion to quash the certificate proceeding. According to the reporters, Mr. Charkaoui has not demonstrated how the requested information is relevant to his motion.
[49] They add that the newspaper articles reveal all that should be revealed and that, for the purposes of the motion to quash the certificate proceeding, disclosure of the human sources of these articles is not essential.
[50] Moreover, should the Court decide that it must weigh Mr. Charkaoui’s fundamental rights against those of the reporters, this balancing must be based on the particular circumstances of the case. Revealing the names of the reporters’ sources would undoubtedly imperil press freedom, especially since the requested information is not essential to Mr. Charkaoui’s motion.
[51] Finally, it is argued that there are other means of obtaining the requested information. The document on which the newspaper articles were based has been disclosed. Consequently, the reporters are under no obligation to explain the circumstances of the disclosure.
(II) Mr. Charkaoui
[52] Counsel for Mr. Charkaoui, meanwhile, raise the following arguments:
- The reporters signed affidavits touching on facts relevant to their motion to quash the subpoenas; for this reason, they have opened the door to their being examined and can be compelled to do so;
- For the purposes of their testimony, the reporters are ordinary witnesses;
- The exceptions to the duty to testify do not apply to the reporters’ situation as described in the case at bar; and
- The Charter and the common law do not exempt the reporters from testifying or from answering questions.
[53] In support of these arguments, counsel for Mr. Charkaoui submit that the reporters’ testimony is relevant to the motion to quash the certificate proceeding. The reporters signed an affidavit in which Mr. Bellavance states that he received the information from [translation] “confidential sources” after having made a [translation] “promise of confidentiality”. Both Mr. Bellavance and Mr. Toupin deny having told Mr. Charkaoui in a telephone conversation that the document had been obtained from a retired member of CSIS and having contacted CSIS before calling him. They jointly wrote the newspaper articles reporting the information implicating Mr. Charkaoui. These facts should be subject to an examination.
[54] The reporters’ testimony concerning the circumstances surrounding the leak of the document and the confirmation of the top‑secret information as having been used to obtain the security certificate against Mr. Charkaoui is highly relevant to showing abuse of process, fault and consequently the magnitude of the violation of Mr. Charkaoui’s constitutional rights. Their testimonies are needed to complement the evidence in Mr. Charkaoui’s case because there are no other means to prove the circumstances surrounding the document’s leak and the confirmation of the top‑secret information. Their testimonies are thus crucial to the motion to quash the security certificate.
[55] The reporters cannot invoke any privilege exempting them from testifying or answering certain questions. They are compellable.
[56] In order to invoke a privilege to avoid answering certain questions, the reporters must show that they meet the four tests outlined by John Henry Wigmore in Evidence in Trials at Common Law, Vol. 8, revised by John T. McNaughton, Boston: Little, Brown & Co., 1961, at page 527:
(1) The communications must originate in a confidence that they will not be disclosed;
(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties;
(3) The relation must be one which in the opinion of the community ought to be sedulously fostered; and
(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
[57] In Mr. Charkaoui’s view, the reporters do not meet the first two tests, because the information was disclosed to the public through the publication of the newspaper articles.
[58] The same argument applies to the other two tests, since a secret document was leaked in violation of the Act. Moreover, a reporter–source relationship allowing the disclosure of a secret document and the dissemination of confidential information is not the sort of relationship that society should encourage as a social value.
[59] The identity of the sources is important, because the person holding this secret document decided to hand it over to a reporter knowing that such a leak would have a profoundly negative impact on Mr. Charkaoui’s reputation, safety and freedom by depriving him of protection under the Act. A parallel was drawn with Mr. Arar, who also paid a heavy price when police or government sources leaked information to reporters. The Court was referred to the report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar, Factual Background, Volume II, page 490, Section 9.2.7, final paragraph.
[60] As regards balancing the rights at stake, Mr. Charkaoui submits his rights should prevail. These rights are not limited to the right to disclosure of information for the purposes of the motion to quash the certificate proceeding, but should also include his rights to life, liberty and security of the person, the right to privacy and the right to enforcement of and respect for the law. All this militates in favour of revealing the sources.
(III) The Ministers
[61] The Ministers take no position with regard to the dispute between Mr. Charkaoui and the interveners and defer to the decision of the Court.
(F) Analysis
[62] To adequately answer to the question of whether or not to uphold the objections to the questions put to the reporter Bellavance, I intend to address the following points in my analysis:
- The motion to quash the certificate proceeding for abuse of process arising from the publication of confidential information in the daily newspapers La Presse and Le Droit on June 22, 2007;
- The relevance of the requested information to the motion to quash the certificate proceeding;
- The impact that the publication of the confidential information will have on the judicial system, the administration of justice, the current proceeding and Mr. Charkaoui;
- The reporteric decision to publish the confidential information;
- The Charter, freedom of expression, freedom of the press and our democratic system of government;
- The compellability of the reporters as witnesses and the application of the Wigmore tests; and
- The decisions concerning the objections to the questions.
(I) Motion to quash the certificate proceeding for abuse of process arising from the publication of confidential information in the daily newspapers La Presse and Le Droit on June 22, 2007
[63] In the light of the circumstances surrounding this case; the certificate proceeding in progress, its history, its extraordinary characteristics and its cumbersome and informative process; the current stage of the proceedings (before hearing on the reasonableness of the certificate); the legislative amendments to come; the publication of top‑secret information from the record; the rights of Mr. Charkaoui, the motion to quash the certificate proceeding for abuse of process is serious and is certainly not an example of frivolous litigation.
[64] At this stage in the proceedings, the Court has no intention of ruling on the merits of the case. When it hands down that judgment will depend on how the case progresses. At any rate, it is important to determine the rationale behind this proceeding, bearing in mind the circumstances surrounding this case since its commencement.
(II) Relevance of the sought information to the motion to quash the certificate proceeding
[65] Schedule B to this judgment is a document reproducing the wording of 25 questions to which objections were raised. Several of these questions, as we shall see, have been answered. These questions may be grouped into three categories: those related to the document, those concerning the reporteric work done and those regarding the human sources. Schedule B arranges the questions according to the same categories.
[66] With regard to the first category, it was noted above that the document was submitted to the Court. The objections with respect to questions 3, 10, 16, 18, 19, 21 and 23 decided taking into account the objections raised, the duty imposed on the undersigned by paragraphs 78(b), (e) and (h) of the IRPA, Mr. Charkaoui’s submissions and the questions which he asked regarding the document and which the Court has answered at paragraph 19 of this judgment.
[67] The objections with respect to questions 1, 13, 14, 20 and 25 concern the reporteric work done.
[68] The third category, the questions related to the human sources, includes questions 2, 4, 5, 6, 7, 8, 9, 11, 12, 15, 17, 22 and 24.
[69] For the purposes of this judgment, the questions are numbered according to the document filed in Schedule B hereto. The objections to the questions will be dealt with later.
[70] To assess the relevance of the questions and the sought information for evidentiary purposes, it is important to understand the purpose of the questions. As was stated above, the questions concerning the document will be addressed separately, given that this document has been submitted to the Court. As for the questions involving the reporters’ work in preparing the articles and those related to the human sources for the articles, these are all intrinsically related. The main article is based on the information in the document concerning Mr. Charkaoui, which was leaked by the source to the reporter, and on the confirmation that this information was used for the certificate proceeding. This is part of the reporters’ work.
[71] As was noted by counsel for Mr. Charkaoui, the examinations of the reporters are essential for the motion to quash. The information can only be secured through the reporters. Counsel are seeking to prove that the leaked information came from government sources in a position to hold this documentation or such information. To this end, they argue that the decision to leak this document and confirm certain information amounts to an abuse of process warranting the quashing of the certificate proceeding. Without evidence of this, it will be difficult for them to fully argue their theory regarding the motion.
[72] Let us now turn to what the case law and the doctrine tell us about the concept of relevance in such a situation. Sopinka J., writing on behalf of the Supreme Court in R. v. Zealkowski, [1989] 1 S.C.R. 1378, at page 1386, defined the expression “all relevant evidence” as follows:
In my opinion, this expression means all facts which are logically probative of the issue. The general rule of evidence is that all relevant evidence is admissible.
[73] In Cloutier v. The Queen, [1979] 2 S.C.R. 709, at page 733, Pratte J. stated the following:
The relevance of a fact that is sought to be introduced in evidence must of course be determined in accordance with the nature of the case and the various questions at issue.
[74] In the case at bar, given that fundamental freedoms such as freedom of expression and freedom of the press, on the one hand, must be weighed against Mr. Charkaoui’s freedoms, on the other, the relevance of the information sought for the purposes of the proceeding is not the only criterion to be considered. It must also be asked whether it is appropriate and necessary to seek out information that is in the best interests of justice. It is therefore important to ask ourselves whether there are other means by which the information could be obtained. It must be established that knowledge of the information might have an impact on the ultimate result of the proceedings in progress. In other words, the information must be essential to and necessary for the ultimate proceedings. This must not be used as an opportunity to collect information, a fishing expedition, and must not be based on conjecture. Relevance alone is not enough; the best interests of justice must be at stake.
[75] The certificate proceedings are exceptional. The so‑called top‑secret information revealed by the newspapers is what would be classified as secret by government standards. The allegations against Mr. Charkaoui are unusual. Not just an