Canada (Attorney General) v. Abdelrazik

Canada (Attorney General) v. Abdelrazik
Court (s) Database
Federal Court Decisions
Date
2023-08-11
Neutral citation
2023 FC 1100
File numbers
DES-3-18
Decision Content
TOP SECRET
Date: 20230811
Docket: DES-3-18
Citation: 2023 FC 1100
Ottawa, Ontario, August 11, 2023
PRESENT: Madam Justice St-Louis
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ABOUSFIAN ABDELRAZIK
AND LAWRENCE CANNON
Respondents
JUDGMENT AND REASONS
I. Overview [1] On September 14, 2018, the Attorney General of Canada [the Applicant or the AGC] filed an application under subsection 38.04(1) of the Canada Evidence Act, RSC 1985, c C-5 [the CEA], asking the Court for an order with respect to disclosure of information about which notices were given to the AGC [the Information at Issue] under subsections 38.01(1) and 38.01(3) of the CEA [the Application].
[2] The AGC filed his Application in the broader context of a civil liability action [the underlying proceeding] commenced in September 2009 by Mr. Abousfian Abdelrazik, one of the Respondents in this Application. In his underlying proceeding, Mr. Abdelrazik claims damages against both His Majesty the King and Mr. Lawrence Cannon for serious violations of his fundamental human rights as protected and guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11 [the Charter] and the customary international law prohibition against torture. Mr. Abdelrazik seeks a total of $27 million in damages from the Defendants for, generally (a) his arrest and detention in Sudan; (b) his alleged mistreatment and torture while in prison in Sudan; and (c) the alleged failure of Canadian officials to facilitate his return to Canada prior to June 2009. Approximately 6000 documents produced by the AGC to Mr. Abdelrazik in the underlying proceeding contained redactions under section 38 of the CEA.
[3] In the notices given to the AGC, Department of Justice counsel advised that they believed sensitive or potentially injurious information, contained in a total of 1469 documents, may be disclosed in connection with the underlying proceeding. The AGC thus brought his Application in respect of this subset of 1469 documents which contain Information at Issue that is redacted in said documents.
[4] In his Application, the AGC asks the Court for an order under subsection 38.06(3) of the CEA confirming the prohibition of disclosure of the Information at Issue, except as previously authorized by the AGC under subsection 38.03(1) of the CEA. In his Memorandum of Fact and Law, the AGC also asks the Court, where advisable, to authorize the issuance of his proposed summaries under subsection 38.06(2) of the CEA.
[5] Mr. Abdelrazik seeks an order pursuant to section 38.06 of the CEA authorizing the disclosure of some of the Information at Issue.
[6] As part of the proceedings in this Application, the Court appointed two amici curiae [the amici] to assist it in performing its statutory obligations under section 38 of the CEA. Before being given access by the Court to the classified information submitted for review, the amici met with counsel for Mr. Abdelrazik to discuss his position in the underlying proceeding and thus guide the amici in reviewing the Information at Issue. As detailed below, the amici have participated in the in camera ex parte proceeding; they ask the Court to direct the disclosure of any of the contested Information at Issue that is found not to be injurious and, for the Information at Issue that the Court determines would be injurious, they request the disclosure of their proposed summaries as part of the balancing exercise that they submit must be conducted under subsection 38.06(2) of the CEA.
[7] As the result of the considerable work they have accomplished, the AGC and the amici agree on required redactions and permissible summaries for over 90% of the documents at issue. They have produced three charts that set out their position about the Information at Issue in each of the 1469 documents subject to this Application. The charts divide the documents into the three subsets described below and they are each organized by AGC production document number.
A. Uncontested Documents Chart (Annex A) [8] For a first subset of 1333 documents, referred to as the Uncontested Documents chart (or Annex A), the AGC and the amici agree that the Court should confirm the prohibition of disclosure (for 29 of these documents, the AGC has lifted, or removed, all section 38 redactions during the course of these proceedings).
B. Agreed-Upon Summaries Chart (Annex B) [9] For a second subset of 17 documents and one overarching summary, referred to as the Agreed-Upon Summaries chart (or Annex B), the AGC and the amici agree that the Court should protect the Information at Issue, although they also agree that the Court should disclose some information in the form of summaries. Particularly, in four of these documents (AGC00851, AGC01152, AGC02679, and AGC05098) the AGC identifies information that is subject to third party approval, and in regards to which the amici are not themselves requesting disclosure, although they do not contest the information being disclosed in the form of summaries as proposed by the AGC. Therefore, if the third party, or foreign agency, request is denied, the amici do not contest the AGC removing these four summaries. As for the other documents, the amici agree that the summaries in Annex B, if disclosed, will provide adequate disclosure of the information relevant to the interests of Mr. Abdelrazik in the underlying proceeding, while in a format most likely to limit the injury, as outlined below.
C. Contested Summaries Chart (Annex C) [10] For a third subset of 119 documents plus two overarching summaries, referred to as the Contested Summaries chart (or Annex C), the AGC seeks confirmation of the prohibition of disclosure or, alternatively, that the Court authorizes the disclosure of his proposed summaries, except where the AGC identifies that the disclosure is subject to third party approval, in which case the AGC asks for a confirmation of the prohibition of disclosure and does not submit any summaries. Again, in two documents (AGC01750 and AGC01824) the AGC identifies information that is subject to third party approval that the amici are not themselves requesting be disclosed, although they do not contest that the information be disclosed in the form of summary proposed by the AGC. Therefore, if the foreign agency request is denied, the amici do not contest the AGC removing this information in regards to these two documents.
[11] In regards to Annex C, in some instances the amici request that some Information at Issue actually be disclosed rather than a summary, and in other instances they agree that the disclosure of a summary is appropriate, but they request additions be made to the summaries proposed by the AGC.
D. Outline of the legal test and of the findings [12] As is well settled, applications under section 38 of the CEA are determined on the basis of subsection 38.06, which is further detailed by subsection 38.06(2), and the test set out in the seminal decision of (Attorney General) v Ribic, 2003 FCA 246 [Ribic]. As recently summarized by the Federal Court of Appeal in Canada (Attorney General) v Hutton, 2023 FCA 45 at paragraph 31 [Hutton], this test requires the designated judge [the judge] to answer the following three main questions:
(a)Is the information sought to be protected relevant to the underlying proceeding?
(b)If so, is that information injurious to national security, national defence or international relations?
(c)If the answer to (a) and (b) are both “yes”, does the public interest in non-disclosure outweigh [in importance] the public interest in disclosure?
[13] If the judge concludes that the public interest in non-disclosure outweighs in importance the public interest in disclosure, then the information sought to be protected will not be disclosed, and the judge shall confirm the prohibition of disclosure (subsection 38.06(3) of the CEA).
[14] If, on the contrary, the judge concludes that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge must, before ordering disclosure, consider, as required by subsection 38.06(2) of the CEA, the form of, and any potential conditions on, the disclosure that are most likely to limit the injury to national security, national defence or international relations (Hutton at paragraph 32).
[15] In brief, and for the reasons outlined below, after careful consideration of the material, the evidence, the parties’ submissions, the applicable law, and the legal test set out by the Federal Court of Appeal in Ribic, I find:
That the Information at Issue is relevant;
That the AGC has met his burden to establish that disclosure of the Information at Issue would be injurious to international relations or national defence or national security per subsection 38.06(1) of the CEA;
In regards to the Information at Issue in the production documents listed in Annex A: that the public interest in non-disclosure of the Information at Issue outweighs in importance the public interest in disclosure. Consequently, pursuant to subsection 38.06(3) of the CEA, I will confirm the prohibition of disclosure;
In regards to the Information at Issue in the production documents listed in the Annex B and in Annex C that is subject to third party approval—and in regards to which third parties have not yet responded to the AGC’s disclosure requests: that the public interest in non-disclosure outweighs in importance the public interest in disclosure. Consequently, pursuant to subsection 38.06(3) of the CEA, in those cases, I will confirm the prohibition of disclosure.
However, I will remain seized of the matter and will re-examine it if a response is received. I will cease to be seized on the first day of the hearing of the underlying proceeding and will also cease to be seized if the action is terminated prior to its hearing. I will thus remain seized of the matter until said time for the information identified in AGC01107, AGC01162, AGC01176, AGC01750, AGC01824, AGC02639, AGC02642, AGC02867, AGC03779, AGC07903, AGC00851, AGC01152, AGC02679, and AGC05098;
In regards to the Information at Issue in the production documents listed in Annex C that was subject to third party approval—and in regards to which third parties have refused disclosure requests, which includes disclosure of any summaries: that the public interest in non-disclosure outweighs in importance the public interest in disclosure. Consequently, pursuant to subsection 38.06(3) of the CEA, in those cases, I will confirm the prohibition of disclosure;
In regards to the Information at Issue that is not subject to third party approval in the production documents listed in Annex B and in Annex C—and having weighed a number of factors, that I enumerate at paragraphs 66 and following below, I find that: except in AGC02798, the public interest in disclosure outweighs in importance the public interest in non-disclosure per subsection 38.06(2) of the CEA.
Having further considered both the public interest in disclosure as well as the form of, and conditions to disclosure that are most likely to limit the injury, I find that the disclosure must be subject to the condition that it be disclosed in the form of summaries, again per subsection 38.06(2) of the CEA. With respect to Annex B, the Agreed-Upon Summaries—that are not subject to third party approval—are upheld. With respect to Annex C, the Contested Summaries, the AGC’s final position on summaries—that are not subject to third party approval—is upheld throughout with one notable exception that relates to a summary for a specific employee of the Canadian Security Intelligence Service [CSIS or the Service] found in AGC00318, AGC01089, AGC01097, AGC01098, AGC01101, AGC01107, AGC01176, AGC02642, AGC07820, and AGC07903; and
In regard to the Information at Issue in AGC02798 listed in Annex C, and having weighed the factors that I enumerate at paragraphs 66 and following below, I find that the public interest in non-disclosure outweighs in importance the public interest in disclosure and I will thus confirm the prohibition of disclosure pursuant to subsection 38.06(3) of the CEA.
[16] My order will thus:
Allow in part the AGC’s Application.
Confirm the prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex A, in application of subsection 38.06(3) of the CEA.
Confirm the prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex C that was subject to third party approval and to which foreign agencies have refused the disclosure requests, in application of subsection 38.06(3) of the CEA.
Confirm the prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex B and in Annex C that is subject to third party approval and to which foreign agencies have not yet responded to the disclosure requests, in application of subsection 38.06(3) of the CEA. However, in this regard, I will remain seized of the matter and will re-examine it if a response is received. I will cease to be seized on the first day of the hearing of the underlying proceeding and will also cease to be seized if the action is terminated prior to its hearing.
Confirm the prohibition of disclosure in regards to the Information at Issue contained in AGC02798 of Annex C, in application of subsection 38.06(3) of the CEA.
Authorize the disclosure of the Information at Issue in the production documents identified in Annex B and Annex C—that are not subject to third party approval. However, in application of subsection 38.06(2) of the CEA, and as a condition of disclosure, I will impose that the information be disclosed in the form of the summaries which are stated in Annex B and Annex C.
II. Background [17] The AGC is the defendant in the underlying proceeding. On June 22, 2018, the parties signed a Partial Agreement of Facts setting out the facts that are not in dispute; on September 13, 2018, Mr. Abdelrazik filed an Amended Fresh as Amended Statement of Claim; and on September 17, 2018, the AGC filed an Amended Amended Statement of Defence. I will refrain from presenting any details of the underlying proceeding, apart from underlining, below, the elements counsel for Mr. Abdelrazik has stressed as being important in this Application.
[18] On September 17, 2018, considering the Notice of Application the AGC had filed just a few days before and considering the clear language of subsection 38.04(1) of the CEA, this Court reluctantly adjourned, until further order, the trial scheduled to begin the same day in the underlying proceeding.
[19] While approximately 6000 documents produced by the AGC to Mr. Abdelrazik in the underlying proceeding contained redactions under section 38 of the CEA, this Application was brought by the AGC in respect of the aforementioned subset of 1469 of those documents.
[20] Part of the proceeding in this Application was conducted publicly while another part was conducted in camera ex parte.
III. Public Proceeding [21] In support of his Application, the AGC filed seven public affidavits: one for each of the seven government departments and agencies that made the claims, hence the affidavit of Joseph (CSIS), Yannick Michaud (Canadian Armed Forces), Scott Millar (Communications Security Establishment [CSE]), John Velho (Transport Canada), Rabih Adallah (the Royal Canadian Mounted Police [the RCMP]), Brett Bush (Canadian Border Service Agency [CBSA]), and Ian Myles (Global Affairs Canada [GAC]). Counsel for Mr. Abdelrazik cross-examined the affiants from the RCMP, CBSA, GAC, and Transport Canada. These affidavits were understandably general in nature as they cannot identify publicly or discuss the information which is the subject of the Application, and also because the affiants do not hold a personal knowledge of the Information at Issue.
[22] The AGC and Mr. Abdelrazik submitted public written submissions and, in September 2022, the Court held a public hearing where counsel for Mr. Abdelrazik had the opportunity to identify and stress certain points of particular importance in the underlying proceeding that he asserted have an impact on this Application.
A. Mr. Abdelrazik’s Submissions [23] Mr. Abdelrazik submitted the affidavit of Ms. Trudy Moore, affirmed September 22, 2022 and introducing 21 exhibits, as well as the transcript of the cross-examination of the public affiants (the RCMP, CBSA, GAC, and Transport Canada) on November 6, 2020.
[24] Mr. Abdelrazik questioned the reliability and probative value of the public affidavits and he provided the Court with the factual and procedural background of the file. He confirmed that the first step in the Ribic test is not at issue in this Application as there is no dispute that the Information at Issue is relevant.
[25] On the second step of the test, relating to the injurious nature of the Information at Issue, Mr. Abdelrazik cautioned the Court regarding the third party rule as it is not an imperative rule and is not absolute, and stressed that the Court should thus carefully consider third party rule claims (Jama v Canada (Attorney General), 2019 FC 533 at paragraph 158 [Jama]; Canada (Attorney General) v Almalki, 2010 FC 1106 at paragraph 133 [Almalki FC]). Mr. Abdelrazik added that the Court should consider whether any specific evidence of harm was lead about concerns raised by the United States [U.S.] following the Court’s earlier judgement in Abdelrazik v Canada (Minister of Foreign Affairs), 2009 FC 580. Mr. Abdelrazik cautioned against other potential injury claims which he presented as largely prospective and speculative, such as the suggestion that foreign agencies may lose faith in Canada to protect third party information and that this may impact their willingness to provide information in the future, or the suggestion that disclosure of criticism of foreign officials could harm bilateral relationships. Finally, Mr. Abdelrazik noted that the CSIS public affiant testified that identifying the names of CSIS personnel “could” endanger their safety, which does not meet the “would cause” probable injury standard, and that the CBSA and GAC affiants were unconvincing.
[26] In balancing public interests in favour of disclosure or of non-disclosure, which is the third step in the test, Mr. Abdelrazik submitted that the Court should find that in any cases of risk to relationships with foreign countries or agencies, the public interest must weigh in favour of exposing egregious human rights violations. He identified the following four factors as relevant to the balancing exercise: (1) the extent or magnitude of the potential injury (non-existent or low at best); (2) the degree of relevance and the importance of the redacted information to key issues in the underlying proceeding ; (3) the importance of the open court principle (Sherman Estate v Donovan, 2021 SCC 25 at paragraph 1 [Sherman Estate]); and (4) whether there are higher interests at stake, such as fundamental human rights, democratic accountability, the rule of law and Canada’s international obligations (violations of customary international law norms such as the prohibition against torture and arbitrary detention are inherently different, Nevsun v Araya, 2020 SCC 5 at paragraph 124).
[27] Regarding the second factor, i.e., the degree of relevance of the Information at Issue to the key issues in the underlying proceeding, Mr. Abdelrazik submitted that, from his perspective, information was being withheld on the following nine issues he identified as key:
(a) The timing and nature of information shared by CSIS with foreign agencies in the days, weeks and months immediately prior to the Respondent’s arrest by Sudanese authorities on September 10, 2003;
(b) How, when and by whom CSIS was informed of the Respondent’s arrest on September 10, 2003;
(c) The nature of the relationship and agreement between CSIS and Sudan’s National Intelligence and Security Service [NISS], and how and under what conditions were questions sent by CSIS to be posed to the Respondent while in detention;
(d) The timing, nature and content of all communications between CSIS and NISS from December 18, 2003, until the Respondent’s release on July 22, 2004, including and in particular the meeting on December 22, 2003 in Khartoum and any other visits by CSIS to Sudan during that period;
(e) Any internal information, communications or views about the risk of torture faced by the Respondent in Sudanese custody;
(f) Any information communicated directly or indirectly to airlines that refused to carry the Respondent in July 2004, or any other information about the airlines’ decision;
(g) Any information that CSIS received from any foreign agencies about why the Respondent was detained on October 16, 2005;
(h) Any information that CSIS received at any time from [a] foreign country about the Respondent’s conditions of detention or information derived from any questioning or interrogation of the Respondent by foreign agencies, including the timing of when the information was received; and
(i) Any information or views received directly or indirectly by CSIS or the Respondent Cannon from foreign agencies regarding the Respondent’s safe haven in the Canadian Embassy in 2008 and the potential for his return to Canada in 2008 to 2009.
[28] Mr. Abdelrazik confirmed he had not contested the redactions under section 38 of the CEA, being concerned that the process would delay the underlying proceeding. He even went so far as to emphasize that he had enough to litigate his case without the Information at Issue. This being said, at the hearing he argued that in this case, the AGC had not established injury in regards to the third party rule claims and in regards to the identity of the Service employees. Mr. Abdelrazik stressed that these are of key importance to the underlying proceeding.
B. The AGC’s Submissions [29] In his submissions, the AGC agreed that the applicable test in an application under section 38 of the CEA is the one set out by the Federal Court of Appeal in Ribic and that the 1469 documents are relevant to the underlying proceeding, so that the first part of the Ribic test is therefore not at issue in this Application.
[30] Regarding the second part of the Ribic test that relates to injury, the AGC outlined he was also filing classified affidavits from officials of the seven government departments or agencies that contain specific evidence of the injury. The AGC stressed that (1) the third party rule and necessity to maintain the confidentiality of the exchanges with foreign countries and foreign agencies has long been recognized by the Court (Tursunbayev at paragraph102; Almalki FC at para 150); (2) in Jama, the Federal Court recognized the importance of the third party rule and refused to disclose information that would identify foreign agencies unless consent was obtained; and (3) the Federal Court of Appeal (Canada (Attorney General) v Almalki, 2011 FCA 199 at paragraphs 35-37 [Almalki FCA]) overturned the Federal Court’s decision in Almalki FC and confirmed the principle.
[31] In regards to the balancing of public interests, the AGC agreed that the relevant factors included the ones identified by Mr. Abdelrazik, but noted other factors should also be considered, including the nature of the underlying proceeding, the remedy sought, and the usefulness of the information.
IV. In Camera Ex Parte Proceeding [32] In the in camera ex parte proceeding, the AGC adduced seven additional affidavits to support the claims made in all 1469 documents subject to this Application; namely, the affidavits of |||||||||||||||||||||| (CSIS), |||||||||||||| (GAC), |||||||||||||||||||||| (CSE), |||||||||||||| (CBSA), |||||||| |||||||| (Department of National Defence), |||||||||||||||||||||||||||||| (the RCMP), and ||||||||||||||| (Transport Canada).
[33] In November 2022, the Court heard oral testimony from the affiants for CSE, GAC, and the Service on the contested Information at Issue as part of an in camera ex parte hearing. These three affiants were then cross-examined by the amici. The AGC and the amici subsequently filed written submissions, and on March 14, 2023 the Court heard their oral submissions.
[34] The AGC submits that (1) he has satisfied his burden to establish that disclosure of the Information at Issue would cause injury to Canada’s national security or national defence or international relations; and (2) on balance, the public interest in disclosure does not outweigh the public interest in protection of the sensitive Information at Issue, hence in non-disclosure. The AGC adds that if the Court determines that all or part of the Information at Issue ought to be disclosed, the Court may issue the summaries proposed by the AGC.
[35] The amici (1) generally agree that the AGC has met his burden to establish that disclosure would cause injury except in the three instances they confirmed at the hearing; and (2) in any event submit that on balance, the public interest in disclosure in the form of the summaries outweighs the public interest in non-disclosure. The amici disagree partly on the form the disclosure must take as to limit the injury, per subsection 38.06(2) of the CEA, and thus propose their own version of the summaries.
V. Issues [36] Per the language of the CEA and the test set out by the Federal Court of Appeal in Ribic, the issues raised in this Application are to examine and decide:
1. Whether the Information at Issue is relevant to the underlying proceeding;
2. Whether the disclosure of the Information at Issue would be injurious to international relations, or national defence or national security, per subsection 38.06(1) of the CEA;
3. In the event that the disclosure of the Information at Issue is relevant and would be injurious, whether the public interest in disclosure outweighs in importance the public interest in non-disclosure of the Information at Issue, taking into consideration the relevant factors, which I enumerate at paragraphs 66 and following below, pursuant to subsection 38.06(2) of the CEA;
4. In the event that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge shall authorize disclosure (Ribic at paragraph 35).
However, before actually authorizing disclosure, the judge must consider both the public interest in disclosure and the form of conditions to disclosure that are most likely to limit the injury—and decide whether to subject the disclosure to any conditions, per subsection 38.06(2) of the CEA. A public summary of the Information at Issue sought to be kept secret is one such form contemplated by that provision (Hutton at paragraph 32);
5. In the event that the public interest in non-disclosure outweighs in importance the public interest in disclosure, the judge does not authorize disclosure and shall confirm the prohibition of disclosure of the Information at Issue pursuant to subsection 38.06(3) of the CEA.
[37] I will outline the legal test, as it informs how I must assess the issues raised, and I will subsequently examine these issues under each of the aforementioned subsets of documents (Annexes A, B, and C) established as between the AGC and the amici.
VI. Section 38 of the CEA: Legislative Framework and Applicable Legal Test [38] Before addressing the aforementioned issues, it is important to outline the legislative framework and the applicable legal test in a proceeding under section 38 of the CEA.
[39] Section 38 of the CEA establishes a procedure whereby sensitive or potentially injurious information, as defined in the CEA, may be protected from disclosure before a court, person or body with the jurisdiction to compel production if its disclosure would be injurious to international relations or national defence or national security. In such a circumstance, pursuant to section 38.01, notice of the possibility of disclosure of sensitive or potentially injurious information is to be given to the AGC under any of subsections 38.01(1) to (4) of the CEA. Section 38.02 then prohibits disclosure of information about which notice is given.
[40] As Justice Gagné (as she then was) outlined in her decision Canada (Attorney General) v Charkaoui, 2018 FC 849 [Charkaoui], section 38 of the CEA contains a complex and comprehensive code governing the use and protection of “sensitive” or “potentially injurious” information.
[41] Where the AGC does not authorize disclosure under section 38.03, or does not enter into an agreement for partial or conditional disclosure under subsection 38.03(1), the AGC or a person described in the CEA may apply to this Court for an order with respect to the disclosure of information about which notice was given (subsections 38.04(1) and (2) of the CEA).
[42] Particularly, under subsection 38.04(1) of the CEA, the AGC may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given. This is the provision that allowed the AGC to file his Application on the eve of the start of the trial in the underlying proceeding, leading me to reluctantly adjourn the trial. Again, Mr. Abdelrazik had not challenged the prohibition of disclosure.
[43] Where the AGC applies to the Federal Court for an order to confirm the prohibition of disclosure, as he did in the present proceeding, subsections 38.06(1) to (3) provide the type of orders the Court may grant. The designated judge must thus determine whether to authorize the disclosure of the information subject to the notice pursuant to subsection 38.06(1), whether to authorize the disclosure pursuant to subsection 38.06(2)—which includes determining whether the information should be disclosed subject to conditions, or only partially or in the forms of summaries to limit any injury—or whether to confirm the prohibition of disclosure pursuant to subsection 38.06(3). The Federal Court of Appeal in Ribic set out a process in assessing whether the judge should make an order pursuant to section 38.06 of the CEA.
[44] It is thus the Court’s mandate under sections 38.04 and 38.06 of the CEA to decide whether to authorize the disclosure of information to which notice was given, and subject to what conditions or in what form, or whether to confirm the prohibition of disclosure. An application under section 38 of the CEA is not a judicial review of the AGC’s decision not to authorize disclosure. Rather, the designated judge must “make his [or her] own decision as to whether the statutory ban ought to be lifted or not and issue an order accordingly” (Ribic at paragraph 15).
A. Relevance [45] First, the party seeking disclosure of the redacted information—the Information at Issue—bears the onus of establishing that said information is in all likelihood relevant evidence to the underlying proceeding (Ribic at paragraph 17). This is not a live matter here as the parties and the Court agree that the Information at Issue is relevant.
B. Subsection 38.06(1): Injury [46] Second, if the redacted information is found to be relevant, the burden shifts to the party seeking the non-disclosure to demonstrate that disclosure of such information would be injurious to international relations or national defence or national security (Ribic at paragraph 20).
[47] Subsection 38.06(1) of the CEA states that:
38.06 (1) Unless the judge concludes that the disclosure of the information or facts referred to in subsection 38.02(1) would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information or facts.
[48] Subsection 38.06(1) requires the judge to authorize the disclosure of the redacted information, unless he or she concludes that the disclosure “would” be injurious to international relations or national defence or national security. This threshold must be applied keeping in mind the teachings of the Federal Court of Appeal in Ribic, that this second step involves an examination or inspection of the information to which notice was given, and that the judge must be satisfied that executive opinions as to potential injury have a factual basis which has been established by evidence. Put differently, the verb “would” means that the AGC must show a probability of injury: it cannot be speculative (Tursunbayev at paragraphs 83-84).
[49] Important to this proceeding, the Federal Court of Appeal in Ribic at paragraph 19 also stated that the AGC’s submissions regarding his assessment of the injury to national security or national defence or international relations should be given considerable weight, and if the AGC’s assessment of the injury is reasonable, the judge should accept it. Where the AGC can show a reasonable basis for his assessment that the disclosure of the redacted information would cause injury to international relations or national defence or national security, the judge must then proceed to the third step of the test (Almalki FC at paragraph 71; Huang v Canada (Attorney General), 2017 FC 662 at paragraph 46 [Huang]). Although the burden of establishing injury rests with the AGC, the Court must show a certain degree of deference to the AGC’s review of the matter. In short, the AGC assumes a protective role with respect to the security and safety of the public and if the AGC’s assessment of the injury is reasonable, the judge should accept it (Ribic at paragraph 19).
[50] The Court in Almalki FC at paragraphs 109 and 110 set out a few relevant factors to a determination of whether injury would result to the protected interests, such as the age of the investigation, the fact that the information or operating method in question is already publicly known, and the fact that the information concerns operating methods that are no longer used and policies that are no longer in effect because of identified deficiencies and flaws.
[51] If the AGC cannot satisfy his burden to establish that the disclosure of the Information at Issue would be injurious, the judge will authorize disclosure per subsection 38.06(1) of the CEA. If the AGC satisfies his burden, then the judge moves on to the third step of the assessment.
[52] As detailed below, I find the AGC has met his burden to establish that the disclosure of the Information at Issue would be injurious to international relations or national defence or national security.
C. Subsection 38.06(2): Balancing of Public Interests [53] Lastly, if the redacted information is found to be both relevant and injurious, the burden shifts back to the party seeking disclosure to demonstrate that the public interest favours disclosure (Ribic at paragraph 21; Telbani v Canada (Attorney General), 2014 FC 1050 at paragraph 22).
[54] Subsection 38.06(2) reads as follows:
(2) If the judge concludes that the disclosure of the information or facts would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all or part of the information or facts, a summary of the information or a written admission of facts relating to the information.
[55] There is no question that the judge must conduct a balancing exercise of the public interests at play.
[56] If the judge finds the public interest in non-disclosure outweighs the public interest in disclosure and does not authorize disclosure, the judge shall confirm the prohibition of disclosure per subsection 38.06(3) of the CEA.
[57] As I outlined at the in camera ex parte hearing, if the public interest weighs in favour of the disclosure of the redacted information (first analysis), the judge will authorize the disclosure. However, before doing so, and per the clear language of the statute, the judge must consider both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit the injury resulting from the disclosure in order to decide whether to subject the disclosure to any conditions considered appropriate, namely to the issuance of summaries in this case (Hutton at paragraph 32; Ribic at paragraphs 37-39) (second analysis). The judge must resort to the means that are the least prejudicial to the injury (Ribic at paragraph 37).
[58] At the in camera ex parte hearing, the amici did not agree with my interpretation. The amici outlined that it was not entirely accurate to state that there are two distinct analyses to be conducted. They asserted that it is more accurate to say that there is an interplay between the summarizing process, or the generalizing process, and the identification of injury because it is often through the summary that you can remove the injury and tip the balance toward disclosure. Hence, the amici opined in essence, that I need not decide if the raw words subject to redaction ought to be disclosed, or that the public interest favours disclosure of those redacted words and then if so, if I can dial back the injury through summarizing. They asserted that it is more of an interaction.
[59] The AGC overall agreed with the amici, but noted that the injury that the AGC was talking about is in respect of lifting the redaction at the second step. The AGC added that for efficiency purposes, it makes more sense to engage in the consideration of specific summaries when considering the second and third steps of the Ribic test in order that solutions can be proposed if the judge does find injury in lifting a redaction.
[60] I agree with the amici that the summaries can play a role in the balancing of the public interests and I outline how below. However, this being said, I am convinced that the language of subsection 38.06(2) of the CEA does clearly mandate two distinct analyses.
[61] Notably, in Ribic, the Federal Court of Appeal examined which standard of review applied to the Federal Court judge’s orders and in its assessment. The Federal Court of Appeal made a distinction as between the power conferred by subsection 38.06(2) of the CEA, i.e., the condition that must first be met for it—the power—to be exercised, and the actual exercise of the power (Ribic at paragraph 36). The Federal Court of Appeal clearly indicated that the power conferred to the judge under subsection 38.06(2) is the one to disclose sensitive information which would otherwise be kept secret. It went on to state that this power is subject to a condition being met, that is to say, that the public interest in disclosure is greater than the public interest in keeping the information secret (Ribic at paragraph 35). Only if this condition is met, can the judge gain his or her power to authorize disclosure.
[62] Then, when exercising the power to authorize disclosure, and before actually authorizing disclosure, the judge, while bearing in mind the public interest in disclosure, must ensure that the form of and conditions to disclosure are most likely to limit any injury to national security, national defence or international relations resulting from disclosure (Ribic at paragraph 37).
[63] Hence, the Federal Court of Appeal actually considered subsection 38.06(2) contained two distinct successive analyses (Ribic at paragraphs 35-39), and examined the standa