Khawaja v. Canada (Attorney General)

Khawaja v. Canada (Attorney General)
Court (s) Database
Federal Court of Appeal Decisions
Date
2007-12-06
Neutral citation
2007 FCA 388
File numbers
DESA-2-07
Notes
Reported Decision
Decision Content
Date: 20071206
Docket: DESA-2-07
Citation: 2007 FCA 388
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
MOHAMMAD MOMIN KHAWAJA
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on October 15 and 16, 2007.
Judgment delivered at Ottawa, Ontario, on December 6, 2007.
REASONS FOR JUDGMENT BY: RICHARD C.J.
CONCURRING REASONS BY: LÉTOURNEAU J.A.
CONCURRING REASONS BY: PELLETIER J.A.
Date: 20071206
Docket: DESA-2-07
Citation: 2007 FCA 388
CORAM: RICHARD C.J.
LÉTOURNEAU J.A.
PELLETIER J.A.
BETWEEN:
MOHAMMAD MOMIN KHAWAJA
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
RICHARD C.J.
[1] This proceeding arises from a challenge to the constitutional validity of subsection 38.11(2) of the Canada Evidence Act by the Appellant, Mohammad Momin Khawaja, and comes before us as the result of an appeal from a judgment of Chief Justice Lutfy of the Federal Court upholding the constitutional validity of that provision (Canada (Attorney General) v. Khawaja, 2007 FC 463 [2007] F.C.J. No. 648)
[2] Subsection 38.11(2) of the Act reads as follows:
38.11(2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, the opportunity to make representations ex parte.
38.11(2) Le juge saisi d’une affaire au titre du paragraphe 38.04(5) ou le tribunal saisi de l’appel ou de l’examen d’une ordonnance rendue en application de l’un des paragraphes 38.06(1) à (3) donne au procureur général du Canada — et au ministre de la Défense nationale dans le cas d’une instance engagée sous le régime de la partie III de la Loi sur la défense nationale — la possibilité de présenter ses observations en l’absence d’autres parties. Il peut en faire de même pour les personnes qu’il entend en application de l’alinéa 38.04(5)d).
[3] Subsection 38.11(2) allows the Attorney General to make ex parte representations as of right, and any other party to do the same with leave of the Court. Ex parte means a procedural step that is taken for the benefit of one party only and no notice is given to the adverse party (Attorney General of Manitoba v. National Energy Board, [1974] 2 F.C. 502 (T.D.). Ex parte proceedings do not have to be held in camera (Ruby, para. 26). It should be noted that the Appellant in this case is not challenging the provisions of subsection 38.11(1), which deal with in camera proceedings, simply subsection 38.11(2) and the ex parte process.
[4] Section 38 of the Canada Evidence Act establishes a scheme for dealing with information which, if disclosed, would cause injury to Canada’s national security, or international relations or national defence. The latter is not relevant in this proceeding.
[5] The section 38 process is preliminary or ancillary to the main proceeding. Here the main proceeding is a criminal trial.
[6] The representations referred to in subsection 38.11(2) arise in the course of an application commenced as the result of a notice given to the Attorney General pursuant to subsection 38.01(2) which reads:
38.01 (2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.
38.01(2) Tout participant qui croit que des renseignements sensibles ou des renseignements potentiellement préjudiciables sont sur le point d’être divulgués par lui ou par une autre personne au cours d’une instance est tenu de soulever la question devant la personne qui préside l’instance et d’aviser par écrit le procureur général du Canada de la question dès que possible, que ces renseignements aient fait ou non l’objet de l’avis prévu au paragraphe (1). Le cas échéant, la personne qui préside l’instance veille à ce que les renseignements ne soient pas divulgués, sauf en conformité avec la présente loi.
[7] Where a participant in a proceeding is required or expects to disclose information that is potentially sensitive or injurious to national security, national defence, or international relations, this participant is required to give notice to the Attorney General of Canada as soon as possible pursuant to subsection 38.01(1) of the Canada Evidence Act. The Attorney General can either authorize the disclosure of the information pursuant to section 38.03 of the Canada Evidence Act, or else may make an application to the Federal Court pursuant to subsection 38.04(1) of the Canada Evidence Act seeking an order prohibiting the disclosure of the information covered by the notice.
[8] The Federal Court then proceeds with the section 38 application pursuant to subsection 38.04(5) of the Canada Evidence Act, and determines the parties to the application. The Federal Court is then ultimately asked to make an order pursuant to section 38.06 of the Canada Evidence Act by applying the following three step process (Canada (Attorney General) v. Ribic, [2003] F.C.J. No. 1964, 2003 FCA 246 at paras. 17-21).
(a) Is the information in question relevant to the proceeding in which disclosure is sought? If no, the information should not be disclosed. If yes, then,
(b) Will disclosure of the information in question be injurious to national security, national defence, or international relations? If no, the information should be disclosed. If yes, then,
(c) Does the public interest in disclosure of the information in question outweigh the public interest in prohibiting disclosure of the information in question? If yes, then the information should be disclosed. If no, then the information should not be disclosed.
[9] The first two steps consist of an inquiry as to whether the information is relevant and, if so, whether its disclosure would be injurious to national security, international affairs or national defence, while the third step consists of a balancing of competing interests.
[10] In drafting section 38 of the Act, the legislator included a number of significant procedural protections which circumscribe the right of non-disclosure, including the following:
(i) Subsection 38.03 authorizes the Attorney General to disclose all or part of the information at any time;
(ii) Parliament has authorized the designated judge to consider the conditions of disclosure most likely to limit injury to national security in s. 38.06(2) of the CEA;
(iii) Sections 38.09 and 38.1 of the CEA provide, respectively, an appeal as of right to the Federal Court of Appeal and, with leave, to the Supreme Court of Canada;
(iv) S. 38.14 of the CEA establishes additional procedural safeguards to protect the right of the accused to a fair trial, including allowing the trial judge to stay criminal charges;
(v) S. 38.11(2) of the CEA gives the party seeking disclosure of the secret information the right to request the opportunity to make representations in the absence of any other party, including the Attorney General.
[11] Subsection 38.11(2) is not an autonomous provision applied independently of the other sections in section 38 of the Act. This section refers to subsections 38.04(5) and 38.06(1) to (3). Although subsection 38.11(2) only refers to the ex parte procedure, this procedure is only necessary if non-disclosure of confidential information is requested by the Attorney General.
[12] As stated earlier, the main proceeding is a criminal trial in which the Appellant stands charged on an indictment alleging a total of seven counts under the Criminal Code, R.S., 1985, c. C‑46, Part II.1 for terrorist-related offences. The Appellant is in custody awaiting trial in the Ontario Superior Court of Justice.
[13] The lead prosecutor in the criminal case delivered two notices to the Attorney General pursuant to subsection 38.01(1) of the Canada Evidence Act, in relation to the documents which the prosecution had disclosed or expected to disclose to the defence in the criminal case. The notices informed the Attorney General of the possibility of disclosure of sensitive or potentially injurious information in connection with the criminal proceeding. In relation to each of the notices, the Attorney General concluded that some of the information could be disclosed while the balance could not, pursuant to section 38.03 of the Canada Evidence Act. Following this, the section 38 application was commenced at the Federal Court.
[14] The disclosure by the prosecutor in the main proceeding was made pursuant to the Stinchcombe rule (R. v. Stinchcombe [1991] 3 S.C.R. 326). This rule which is applicable to criminal proceedings provides that the Crown has a legal duty to disclose all relevant information to the defence. However, Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. Discretion must also be exercised with respect to the relevance of information. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case. (Stinchcombe, paras. 20-22)
[15] The Appellant is not challenging the Stinchcombe disclosure made by the lead prosecutor but the process by which the Attorney General of Canada can claim a national security privilege for certain documents or passages of certain documents proposed to be disclosed by the lead prosecutor.
[16] The information at issue in the application is in the possession of several agencies, including the RCMP, the Canada Border Services Agency and the Canadian Security Intelligence Service. It is found in documents contained in a total of 23 binders filed with the Federal Court, in two sets, respectively, of 18 binders and 5 binders.
[17] The Attorney General filed several private affidavits explaining in general terms the need to protect the information at issue from disclosure. Several ex parte affidavits were also filed.
[18] Counsel for the Appellant received the private affidavits and redacted copies of all of the documents containing the information sought to be protected from disclosure or further disclosure on the section 38 application.
[19] The Appellant’s counsel cross-examined each of the private affiants on their affidavits.
[20] The Appellant did not request the opportunity to make ex parte representations on behalf of the Appellant.
[21] In Canada (Attorney General) v. Ribic, [2003] F.C.J. No. 1964, 2003 FCA 246, this Court held that “[t]he application to a judge of the Trial Division is an application whereby the judge is required to make an initial determination, i.e., to determine whether the statutory prohibition of disclosure should be confirmed or not: see subsection 38.06(3) which says that if the judge does not authorize disclosure, he or she shall, by order, confirm the prohibition of disclosure. In proceedings under section 38.04, the judge is required to make his own decision as to whether the statutory ban ought to be lifted or not and issue an order accordingly” (Ribic, para. 15).
[22] The Appellant claims that his rights under section 7 and subsection 11(d) of the Canadian Charter of Rights and Freedoms (the Charter) have been breached during the course of this proceeding by reason of the judge hearing the application having given the Attorney General of Canada the opportunity to make representations ex parte pursuant to subsection 38.11(2). These representations took the form of affidavits, written memoranda and oral submissions.
[23] The question to be determined is whether the ex parte procedure contained in subsection 38.11(2) of the Canada Evidence Act breaches the Appellant’s rights under section 7 and/or subsection 11(d) of the Charter and, if so, whether this breach can be justified under section 1 of the Charter. These rights read as follows;
1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
11. Any person charged with an offence has the right
[…]
d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;
1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
11. Tout inculpé a le droit :
[…]
d) d'être présumé innocent tant qu'il n'est pas déclaré coupable, conformément à la loi, par un tribunal indépendant et impartial à l'issue d'un procès public et équitable;
[24] At the outset, I note that subsection 38.11(2) applies to all proceedings and not only to criminal proceedings. Therefore, it may arise in circumstances where subsection 11(d) of the Charter is not engaged.
[25] I also note that in all cases the duty of counsel appearing on behalf of the Ministers in an ex parte proceeding is one of utmost good faith in the representations made to the judge. No relevant information may be withheld during these proceedings (Charkaoui (Re), [2004] F.C.J. No. 2060, 2004 FCA 421). The principle of full and frank disclosure in ex parte proceedings is a fundamental principle of justice that has often been recognized by the Supreme Court (Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 at para. 27).
[26] The Appellant has described the issue in dispute as “whether or not subsection 38.11(2) of the Canada Evidence Act accords with the principles of fundamental justice and whether or not subsection 38.11(2) infringed Khawaja’s right to a fair trial pursuant to subsection 11(d) of the Charter” (Appellant’s factum, para. 27). Furthermore, “the real problem created by subsection 38.11(2), […] is the inability for the accused to be represented and for the interests of the accused to be fully advanced or advanced at all in the ex parte sessions” (Appellant’s factum, para. 60).
[27] The Respondent’s position is that “the outcome of the process under section 38 of the CEA has no direct or immediate impact on any liberty interest. The section 38 process is preliminary or ancillary to the main ‘proceeding’” (Respondent’s factum, para. 63). However, the Respondent also acknowledges that “the Appellant’s liberty interest is potentially engaged by the section 38 CEA process; however, it is crucial to examine the context” (Respondent’s factum, para. 21).
[28] I propose to examine firstly the Appellant’s claim that section 7 of the Charter is infringed. In his Reasons, Lutfy C.J. determined that, given the nature of the criminal charges against the Appellant, “the respondent’s liberty interests as protected under section 7 are engaged” (Reasons for Judgement, para. 29). For the purpose of this appeal, I am prepared to proceed on the basis that the Appellant’s liberty interest is engaged by section 7 of the Charter.
[29] However, for the reasons given by the Supreme Court of Canada in Canada (Minister of Employment and Immigration) v. Chiarelli [1992] S.C.J. No. 27, [1992] 1 S.C.R. 711 and Ruby v. Canada (Solicitor General), [2002] S.C.J. No. 73, 2002 SCC 75, [2002] 4 S.C.R. 3 as well as in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] S.C.J. No. 3, 2002 SCC 1, [2002] 1 S.C.R. 3, I conclude that section 7 of the Charter had not been infringed in these circumstances. The Supreme Court of Canada has held that “[t]he scope of principles of fundamental justice will vary with the context and the interests at stake” (Chiarelli, para. 45). That Court has also held that fundamental justice does not compel full disclosure of government national security information and that ex parte features of legislation do not fall below the level of fairness required in this section of the Charter (Ruby, para. 21).
[30] In Ruby, which cites Chiarelli extensively, Justice Arbour explained that “[t]he principles of fundamental justice are informed in part by the rules of natural justice and the concept of procedural fairness. What is fair in a particular case will depend on the context of the case: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 743 (Ruby, para. 39)). Justice Arbour also cites La Forest J. for the majority in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361, and quoted with approval in Chiarelli, supra, at para. 45;
It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another.
Justice Arbour continues to say that;
In assessing whether a procedure accords with the principles of fundamental justice, it may be necessary to balance the competing interests of the state and individual: Chiarelli, supra, at p. 744, citing Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 539. It is also necessary to consider the statutory framework within which natural justice is to operate. The statutory scheme may necessarily imply a limit on disclosure. "The extent of the disclosure required by natural justice may have to be weighed against the prejudice to the scheme of the Act which disclosure may involve": W. Wade and C. Forsyth, Administrative Law (8th ed. 2000), at p. 509. See also Baker, supra, at para. 24 (Ruby, para. 39).
[31] The law is clear in saying that the specific circumstances of each situation could justify the application of different procedural protections. In some contexts, procedural protections will be constitutionally mandated, but not in others. I believe that in the situation before me, the features of subsection 38.11(2) do not fall below the level of fairness required in section 7 of the Charter.
[32] I now turn to the claim of Charter breach under subsection 11(d) of the Charter i.e. the right to a fair trial.
[33] It is not inappropriate at this stage to recall that the Supreme Court of Canada has already recognized that the protection of Canada’s national security and related intelligence sources constitutes a pressing and substantial objective (Charkaoui v. Canada (Citizenship and Immigration), [2007] S.C.J. No. 9, 2007 SCC 9, para. 68).
[34] The ex parte provision applies at each of the three steps of the judge’s inquiry under section 38 of the Canada Evidence Act.
[35] I propose to examine the legislated provisions for in camera and ex parte proceedings at each of the three steps that Ribic has mandated.
[36] The first is the issue of relevance. At this first step, the role of the judge, as described in Ribic, is:
The first task of a judge hearing an application is to determine whether the information sought to be disclosed is relevant or not in the usual and common sense of the Stinchcombe rule, that is to say in the case at bar information, whether inculpatory or exculpatory, that may reasonably be useful to the defence: R. v. Chaplin, [1995] 1 S.C.R. 727, at page 740. This is undoubtedly a low threshold. This step remains a necessary one because, if the information is not relevant, there is no need to go further and engage scarce judicial resources. This step will generally involve an inspection or examination of the information for that purpose. The onus is on the party seeking disclosure to establish that the information is in all likelihood relevant evidence. [para. 17]
[37] It should be noted that the Stinchcombe obligation to disclose is imposed by law and not by the Canada Evidence Act. The designated judge is examining the relevance of documents already proposed to be produced by the Crown prosecutor. The judge is dealing only with those documents and is not called upon to determine whether other documents exist or should be produced.
[38] As stated in Ribic, the test for relevance is a low threshold (Ribic, para. 16).
[39] The presence of counsel for the accused at this stage would not assist counsel for the accused person in obtaining the disclosure of additional documents. Any concerns that counsel may have that the test of relevance could be made without the judge being aware of the theory of the defence can be addressed by counsel of the accused persons requesting an ex parte hearing with the judge.
[40] The next step for the judge to follow, as described in Ribic, is:
Where the judge is satisfied that the information is relevant, the next step pursuant to section 38.06 is to determine whether the disclosure of the information would be injurious to international relations, national defence or national security. This second step will also involve, from that perspective, an examination or inspection of the information at issue. The judge must consider the submissions of the parties and their supporting evidence. He must be satisfied that executive opinions as to potential injury have a factual basis which has been established by evidence: Home Secretary v. Tehman, [2001] H.L.J. No. 47, [2001] 3 WLR 877, at page 895 (HL(E)). It is a given that it is not the role of the judge to second-guess or substitute his opinion for that of the executive. As Lord Hoffmann said in Rehman, supra, at page 897 in relation to the September 11 events in New York and Washington, referred to in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraph 33: They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decision, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove (para. 18).
This means that the Attorney General’s submissions regarding his assessment of the injury to national security, national defence or international relations, because of his access to special information and expertise, should be given considerable weight by the judge required to determine, pursuant to subsection 38.06(1), whether disclosure of the information would cause the alleged and feared injury. The Attorney General assumes a protective role vis-à-vis the security and safety of the public. If his assessment of the injury is reasonable, the judge should accept it. I should add that a similar norm of reasonableness has been adopted by the House of Lords: see Rehman, supra, at page 895 where Lord Hoffmann mentions that the Special Immigration Appeals Commission may reject the Home Secretary’s opinion when it was “one which no reasonable minister advising the Crown could in the circumstances reasonably have held” (para. 19).
An authorization to disclose will issue if the judge is satisfied that no injury would result from public disclosure. The burden of convincing the judge of the existence of such probable injury is on the party opposing disclosure on that basis (para. 20).
[41] This second step involves an assessment as to whether disclosure of the particular information would cause the alleged injury. At this stage, it is incumbent on the Attorney General of Canada to show that the assessment of fear of disclosure is reasonable and the burden of convincing the judge of the existence of probable injury is on the Attorney General of Canada (Ribic, paras. 18‑20). The presence and participation of counsel for the accused at such stage of the inquiry would be at the best marginal, and particularly so, where counsel could not obtain access to the documents for which privilege is claimed.
[42] An authorization to disclose will issue if the judge is satisfied that no injury would result from public disclosure (Ribic, para. 20).
[43] The final step for the judge to follow in the three-part Ribic test is:
Upon a finding that disclosure of the sensitive information would result in injury, the judge then moves to the final state of the inquiry which consists in determining whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. The party seeking disclosure of the information bears the burden of proving that the public interest scale is tipped in its favour (para. 21).
[44] This balance of competing interests is the critical feature of the proceeding. Even where disclosure would be injurious, the information may still be released if the judge determines that public interest in disclosure exceeds the injury to national security.
[45] In summary, the process to withhold sensitive information set out in section 38 of the Canada Evidence Act involves a balancing test in which a judge weighs the public interest in non-disclosure and is empowered to authorize forms and conditions of disclosure to reflect this balancing.
[46] As I noted at the outset, none of the protected and excluded information can be used at trial against the accused. Additionally, the judge presiding at a criminal proceeding has further powers under section 38.14 of the Canada Evidence Act to protect the right of an accused to a fair trial by making (a) an order dismissing specified counts of the indictment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence; (b) an order effecting a stay of proceedings; and (c) an order finding against any party on any issue relating to information the disclosure of which is prohibited.
[47] It is useful here to evoke the words used by Chief Justice McLaughlin in Charkaoui; “Parliament is not required to use the perfect, or least restrictive, alternative to achieve its objective: R. v. Chaulk, [1990] 3 S.C.R. 1303” (Charkaoui, para. 85).
[48] I conclude that the impugned provision of the CEA does not infringe the Appellant’s right to a fair trail and, if it does, it does so minimally and can be justified under section 1 of the Charter.
[49] The Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103) is used to determine whether a violation of a Charter right can be justified under section 1 of the Charter. This test requires that the legislation limiting a right must have a pressing and substantial objective and proportional means. The requirement of proportionality calls for: (a) means rationally connected to the objective; (b) the minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective.
[50] As I noted earlier, the Supreme Court of Canada that the protection of Canada’s national security and related intelligence sources constitutes a pressing and substantial objective (Charkaoui v. Canada (Citizenship and Immigration), [2007] S.C.J. No. 9, 2007 SCC 9, para. 68). I am of the view that the non disclosure of evidence or submissions at hearings under subsection 38.11(2) of the Canada Evidence Act is rationally connected to this objective.
[51] I believe that the minimal impairment to subsection 11(d) Charter rights has already been demonstrated above in the analysis on the specific process of subsection 38.11(2). The sensitive balance struck in the Canada Evidence Act between the need to protect confidential information and the rights of accused persons was already noted by Chief Justice McLaughlin in Charkaoui as she explains the processes within section 38;
77 The SIRC process is not the only example of the Canadian legal system striking a better balance between the protection of sensitive information and the procedural rights of individuals. A current example is found in the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA"), which permits the government to object to the disclosure of information on grounds of public interest, in proceedings to which the Act applies: ss. 37 to 39. Under the recent amendments to the CEA set out in the Anti-terrorism Act, S.C. 2001, c. 41, a participant in a proceeding who is required to disclose or expects to disclose potentially injurious or sensitive information, or who believes that such information might be disclosed, must notify the Attorney General about the potential disclosure, and the Attorney General may then apply to the Federal Court for an order prohibiting the disclosure of the information: ss. 38.01, 38.02, 38.04. The judge enjoys considerable discretion in deciding whether the information should be disclosed. If the judge concludes that disclosure of the information would be injurious to international relations, national defence or national security, but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may order the disclosure of all or part of the information, on such conditions as he or she sees fit. No similar residual discretion exists under the IRPA, which requires judges not to disclose information the disclosure of which would be injurious to national security or to the safety of any person. Moreover, the CEA makes no provision for the use of information that has not been disclosed. While the CEA does not address the same problems as the IRPA, and hence is of limited assistance here, it illustrates Parliament's concern under other legislation for striking a sensitive balance between the need for protection of confidential information and the rights of the individual. (the emphasis is ours)
[52] The third criteria of the Oakes test, that which addresses the issue of proportionality between the effects of the infringement and the importance of the objective, is shown to be satisfied in the third step of the Ribic test. In order for the Attorney General to benefit from the right to non-disclosure of documents for reasons of national security, the judge has to be satisfied that the public interest in disclosure does not outweigh the Attorney General’s right to evoke privilege. In this way, the proportionality between the effects of subsection 38.11(2) which are responsible for limiting the Charter right, and the objective which has been identified as of “sufficient importance” remains fair. As stated in Ribic, “Parliament has required the designated judge to balance competing interests, not simply to protect the important and legitimate interests of the state” (Canada (Attorney General) v. Ribic (2001), 22 F.T.R. 310, 2002 FCT 839, para. 22).
[53] In order to achieve the valid objective of protecting national security, the Canada Evidence Act permits ex parte proceedings. In my view, the challenged provision when examined in context strikes a balance between the need for protection of sensitive national security information and the rights of the individual.
[54] For the reasons set out above, I would dismiss the appeal.
"J. Richard"
Chief Justice
LÉTOURNEAU J.A. (Concurring)
[55] I have had the benefit of reading the reasons prepared by the Chief Justice and by my colleague Justice Pelletier. They both come to the same conclusion but for different reasons which are in fact complementary.
[56] Justice Pelletier is of the view that the impugned process in paragraph 38.11(2) of the Canada Evidence Act (Act) does not affect the appellant’s liberty although the decisions resulting from that process may affect that liberty: see paragraph 50 of his reasons for judgment. I agree.
[57] Indeed, section 38 of the Act puts in place a mechanism to enforce the public interest immunity that it confers. The focus of this section is to ensure that documents prejudicial to national security are not publicly released unless the designated judge finds otherwise in the public interest. Of course, as in a claim of solicitor-client privilege, a claimant is denied access to the documents until a judicial determination is made as to the nature of the documents. Otherwise, the very purpose of the privilege would be defeated. The same is true for documents which should not be made public because of the resulting prejudice to national security.
[58] It is in this context that paragraphs 38.11(1) and (2) of the Act provide for an in camera and an ex parte hearing. Both paragraphs refer to a process designed to ensure protection of a public interest immunity claim that the appellant, in other respects, recognizes is legitimate and valid.
[59] I fail to see how that process engages or affects the liberty of the appellant. It should be recalled that the documents found at that process to be prejudicial to national security will not be used in the appellant’s criminal trial. As Justice Pelletier pointed out, it is only if documents relevant to the appellant’s defence in the criminal proceedings are withheld from disclosure that the appellant’s liberty rights or interests can be said to be affected. However, this does not result from the ex parte process in place, but from the decision on either relevancy or disclosure. This decision with respect to relevancy or the balancing of interests is reviewable and can be corrected if erroneous.
[60] I share the concern of my colleague Justice Pelletier that, in the absence of an ex parte process of the kind found in paragraph 38.11(2), public interest immunity claims could be seriously compromised or undermined.
[61] Were the appellant authorized to be present at the hearing where the Government seeks enforcement of its public interest immunity claim, counsel for the Government would be unduly limited and restrained in his submissions and assistance to the designated judge. As a result, he would run the risk of being unable to convince the designated judge of the existence of a validly claimed immunity and of the need to protect it in the public interest.
[62] To sum up, the ex parte process in paragraph 38.11(2) of the Act is designed to prevent a breach of confidentiality of the documents subject to public interest immunity. It is a necessary, reasonable, equitable and practical process to ensure the protection of legitimate privileges and immunities. In my respectful view, such process in paragraph 38.11(2), which applies to public interest immunity claims made in the context of civil, administrative or penal proceedings, does not violate section 7 or subsection 11(d) of the Canadian Charter of rights and freedoms (Charter).
[63] In his reasons, the Chief Justice was prepared to assume, as Chief Justice Lutfy of the Federal Court did, that the appellant’s liberty interest was engaged by section 7 of the Charter. If I am wrong on my approach to section 7 and, therefore, the appellant’s liberty is engaged, I agree with him, for the reasons that he gave, that section 7 of the Charter has not been infringed in the circumstances.
[64] I also share his views on his analysis of subsection 11(d) and his application of section 1 of the Charter.
[65] I would dispose of the appeal as my colleagues propose.
"Gilles Létourneau"
J.A.
PELLETIER J.A. (Concurring)
INTRODUCTION
[66] This is an appeal from the decision of Chief Justice Lutfy of the Federal Court (the applications judge) dismissing the appellant's application to have subsection 38.11(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the Act) declared unconstitutional on the ground that it infringes his rights under subsection 11(d) as well as section 7 of the Canadian Charter of Rights and Freedoms (the Charter): see Canada (Attorney General) v. Khawaja, 2007 FC 463, [2007] F.C.J. No. 648. The rights said to be infringed are the right to freedom of the press (specifically the open court principle), the right to life, liberty and security of the person (specifically, the right to make full answer and defence, the right to disclosure, and the right to know the case to be met) and the right to a public trial. Subsection 38.11(2) is alleged to infringe upon those rights by permitting the judge hearing the Attorney General of Canada's (the Attorney General) application for a prohibition order to receive evidence and to hear representations from the Attorney General in the absence of the appellant, Mr. Khawaja.
[67] The applications judge concluded that subsection 38.11(2) did not in fact infringe Mr. Khawaja's constitutional rights because the subsection itself, as well as the overall scheme of section 38, provide a substantial substitute for the rights curtailed by the operation of subsection 38.11(2).
[68] I would dismiss the appeal for the reasons which follow.
THE DECISION UNDER APPEAL
[69] The subject of this litigation, subsection 38.11(2) of the Act, provides as follows:
38.11(2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, the opportunity to make representations ex parte.
38.11(2) Le juge saisi d'une affaire au titre du paragraphe 38.04(5) ou le tribunal saisi de l'appel ou de l'examen d'une ordonnance rendue en application de l'un des paragraphes 38.06(1) à (3) donne au procureur général du Canada — et au ministre de la Défense nationale dans le cas d'une instance engagée sous le régime de la partie III de la Loi sur la défense nationale — la possibilité de présenter ses observations en l'absence d'autres parties. Il peut en faire de même pour les personnes qu'il entend en application de l'alinéa 38.04(5)d).
[70] The ex parte representations referred to in subsection 38.11(2) occur in the course of an application commenced as a result of the notice given to the Attorney General pursuant to section 38.01:
…
38.01(2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by t