Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials)

Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials)
Court (s) Database
Federal Court Decisions
Date
2007-07-24
Neutral citation
2007 FC 766
File numbers
DES-4-06
Notes
Reported Decision
Decision Content
Date: 20070724
Docket: DES-4-06
Citation: 2007 FC 766
Ottawa, Ontario, July 24, 2007
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
COMMISSION OF INQUIRY INTO THE ACTIONS OF CANADIAN
OFFICIALS IN RELATION TO MAHER ARAR
and MAHER ARAR
Respondents
TABLE OF CONTENT
1. Background and Facts 3
(A) Establishing the Inquiry 3
(B) Mandate of the Commissioner 5
(C) Protection of Sensitive Information 8
(D) Commissioner’s Notice to Disclose 12
2. Procedural Overview 14
3. Legislative Framework (The Judicial Test to be Met) 17
4. Issues 20
(A) The Deference Issue 20
(B) Some of the Principles and Concepts at Play 20
5. Analysis 20
(A) The Deference Issue 20
(B) Some of the Principles and Concepts at Play 23
(I) The Ribic Three-Part Test 23
(II) The Relevancy of the Redacted Information 25
(III) Providing Some Meaning to the Concept of “Injury” 27
(a) Information in the Public Domain 32
(b) Information Critical of the Government or which would bring Embarrassment to the Government 36
(IV) Some Meaning to the Concept of “International Relations” 38
(V) Some Meaning to the Concept of “National Defence” 38
(VI) Some Meaning to the Concept of “National Security” 39
(VII) The Third Party Rule 46
(VIII) The Mosaic Effect 52
(IX) The Impact of Disclosure on International Relations 55
(a) Disclosure of Comments made by Foreign Officers 55
(b) Public Criticism of Foreign Governments 56
(X) If Injury is found to exist, which Interest prevails, the Public Interest in Disclosure or the Public Interest in Non-Disclosure 57
6. Brief Comments on the Ex Parte (In Camera) Decision 62
7. Conclusion 62
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application by the Attorney General of Canada pursuant to section 38.04 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (CEA) for an order by the Federal Court prohibiting the disclosure of certain redacted portions of the public report, issued by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (“Commission” or “Inquiry”), on the basis that disclosure of this information would be injurious to international relations, national defence or national security. This is the public judgment.A twin ex parte (in camera) judgment has also been issued today.In the ex parte (in camera) judgment, I have applied the principles which are explained in this judgment to the particular factual situation of the file.
1. Background and Facts
(A) Establishing the Inquiry
[2] Maher Arar is a Canadian citizen, who was never charged with any criminal offence in Canada, the United States, or Syria.On September 26, 2002, while transiting through John F. Kennedy International Airport in New York, Mr. Arar was arrested and detained by American officials for 12 days.He was then removed against his will to Syria, the country of his birth.Mr. Arar was imprisoned in Syria for nearly one year, where he was interrogated, tortured, and held in degrading and inhuman conditions.On October 5, 2003, Mr. Arar returned to Canada.These events attracted a great deal of media attention, including concerns about the role Canadian officials may have played in Mr. Arar’s detention in the United States, his removal to Syria, and his imprisonment and treatment while in Syria.
[3] On February 5, 2004, the Governor-in-Council adopted Order-in-Council 2004-48 (Terms of Reference) on recommendation of the Deputy Prime Minister and the Minister of Public Safety and Emergency Preparedness.The Terms of Reference established a public Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, under Part I of the Inquiries Act, R.S.C. 1985, c. I-11.The Honourable Dennis O’Connor, Associate Chief Justice of Ontario, was appointed Commissioner and was given a dual mandate: (a) to investigate and report on the actions of Canadian officials in relation to the deportation and detention of Maher Arar (Factual Inquiry); and (b) to recommend an independent review mechanism for the RCMP’s national security activities (Policy Review). By subsequent Order-in-Council dated February 12, 2004, the Inquiry was added to the schedule of the CEA which lists entities who can receive information injurious to international relations, national defence, or national security without having to provide notice to the Attorney General under section 38.01 of the CEA.
[4] It is important to note that this application relates only to the public report outlining the Commissioner’s findings in the Factual Inquiry.
(B) Mandate of the Commissioner
[5] In the words of Justice Cory, writing for the majority of the Supreme Court in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), [1995] 2 S.C.R. 97 at paragraph 62, the purpose and the significance of a commission of inquiry is the following:
One of the primary functions of public inquiries is fact‑finding. They are often convened, in the wake of public shock, horror, disillusionment, or scepticism, in order to uncover "the truth". Inquiries are, like the judiciary, independent; unlike the judiciary, they are often endowed with wide‑ranging investigative powers. In following their mandates, commissions of inquiry are, ideally, free from partisan loyalties and better able than Parliament or the legislatures to take a long‑term view of the problem presented. Cynics decry public inquiries as a means used by the government to postpone acting in circumstances which often call for speedy action. Yet, these inquiries can and do fulfil an important function in Canadian society. In times of public questioning, stress and concern they provide the means for Canadians to be apprised of the conditions pertaining to a worrisome community problem and to be a part of the recommendations that are aimed at resolving the problem. Both the status and high public respect for the commissioner and the open and public nature of the hearing help to restore public confidence not only in the institution or situation investigated but also in the process of government as a whole. They are an excellent means of informing and educating concerned members of the public.
[6] The Commission’s Terms of Reference in respect to the Factual Inquiry required the Commissioner to:
(a) to investigate and report on the actions of Canadian officials in relation to Maher Arar, including with regard to
(i) the detention of Mr. Arar in the United States,
(ii) the deportation of Mr. Arar to Syria via Jordan,
(iii) the imprisonment and treatment of Mr. Arar in Syria,
(iv) the return of Mr. Arar to Canada, and
(v) any other circumstances directly related to Mr. Arar that the Commissioner considers relevant to fulfilling this mandate.
[7] In order to allow the Commissioner to successfully complete his mandate, the Terms of Reference gave him broad powers over the rules of procedure which would govern the Inquiry.Among the most important parameters for the Commission were the following:
[…]
(e) the Commissioner be authorized to adopt any procedures andmethods that he may consider expedient for the proper conduct of the inquiry, and to sit at any times and in any places in Canada that he may decide;
(f) the Commissioner be authorized to grant to any person who satisfies him that he or she has a substantial and direct interest in the subject-matter of the factual inquiry an opportunity during that inquiry to give evidence and to examine or cross-examine witnesses personally or by counsel on evidence relevant to the person’s interest;
[…]
(k) the Commissioner be directed, in conducting the inquiry, to take all steps necessary to prevent disclosure of information that, if it were disclosed to the public, would, in the opinion of the Commissioner, be injurious to international relations, national defence or national security and, where applicable, to conduct the proceedings in accordance with the following procedures, namely,
(i) on the request of the Attorney General of Canada, the Commissioner shall receive information in camera and in the absence of any party and their counsel if, in the opinion of the Commissioner, the disclosure of that information would be injurious to international relations, national defence or national security,
(ii) in order to maximize disclosure to the public of relevant information, the Commissioner may release a part or a summary of the information received in camera and shall provide the Attorney General of Canada with an opportunity to comment prior to its release, and
(iii) if the Commissioner is of the opinion that the release of a part or a summary of the information received in camera would provide insufficient disclosure to the public, he may advise the Attorney General of Canada, which advice shall constitute notice under section 38.01 of the Canada Evidence Act;
(l) the Commissioner be directed, with respect to the preparation of any report intended for release to the public, to take all steps necessary to prevent the disclosure of information that, if it were disclosed to the public, would, in the opinion of the Commissioner, be injurious to international relations, national defence or national security;
[8] The Terms of Reference ensured that the Commissioner would have access to all information he deemed necessary to fully investigate the events surrounding the Maher Arar affair, while guaranteeing that information injurious to international relations, national defence or national security would not be disclosed without prior authorization from the Government.In particular, section (k) of the Terms of Reference establishes how the Commission is to handle information that is subject to national security confidentiality.
[9] In a July 19, 2004 ruling on confidentiality, the Commissioner determined that he would apply the same test that a reviewing judge would apply under subsection 38.06(2) of the CEA when making determinations as to whether information for which national security confidentiality is claimed should be disclosed under section (k) of the Terms of Reference.At page 16 of the ruling the Commissioner wrote (Ruling is available online at www.ararcommission.ca):
I am of the view that the process set out in the Terms of Reference [section (k)] contemplates that I should, at this stage, apply the same test that a reviewing judge would apply under s. 38.06(2) of the Canada Evidence Act.
The Government did not apply for a judicial review of the Commissioner’s July 19, 2004 ruling.
(C) Protection of Sensitive Information
[10] The Commissioner developed and published Rules of Procedure and Practice (Rules), as per his power under section (e) of the Terms of Reference.The Rules addressed in detail the process for receiving evidence subject to national security confidentiality claims.According to the Rules, the Commissioner was to convene an in camera hearing to hear all evidence over which the Government asserted a national security confidentiality claim.After hearing all evidence in camera, the Commissioner would periodically rule as to the validity of the national security confidentiality claim asserted.As stated above, such determinations were made by applying the same test that a reviewing judge would under subsection 38.06(2) of the CEA.
[11] The Rules also provided that the Commissioner could appoint an independent legal counsel to act as amicus curiae during the in camera hearings so as to test, in an adversarial manner, the Government’s national security confidentiality claims.The Commissioner appointed the Honourable Ron Atkey to be the amicus curiae given his expertise in national security matters and due to the fact that he served as a federal Minister of Employment and Immigration and as Chair of the Security Intelligence Review Committee (SIRC).Mr. Atkey was assisted by Mr. Gordon Cameron, who also has an expertise in national security matters having served for more than ten years as outside counsel for SIRC.It must also be noted that Mr. Atkey was one of the Commissioner’s counsel in the present application.
[12] After presiding over hearings where government witnesses testified as to the validity of the national security claims, the Commission also heard evidence from Mr. Reid Morden, a former Director of CSIS and a former Deputy Minister of the Department of Foreign Affairs, who has experience dealing with issues of national security confidentiality.Mr. Morden was retained as an expert advisor and witness to assist the Commissioner with disclosure decisions.In carrying out his duties, Mr. Morden reviewed the information over which the Government claimed national security confidentiality and the reasons why such confidentiality was claimed, and then testified as to the potential injurious consequences (if any) the disclosure of this information could have.
[13] After the Commissioner’s main evidentiary hearing concluded, Government counsel engaged in a series of discussions with the Commissioner in regards to the information that the Commissioner might wish to include in the Factual Inquiry report.These discussions resolved the vast majority of the disputes as to what information could not be disclosed for reasons of national security confidentiality.Nonetheless, after these discussions there remained certain passages which the Government maintained were not to be disclosed due to national security confidentiality but that the Commissioner insisted must be disclosed to the public. These passages were reviewed by senior government officials, including several Deputy Ministers, which resulted in the Government authorizing the disclosure of certain passages, notwithstanding the potential injury of such disclosure.The Ministers were then briefed on the remaining protected passages, and the Ministers decided not to authorize their disclosure, regardless of the fact that the Commissioner was of the opinion that their disclosure was in the public interest and was necessary to fairly recite the facts surrounding the Arar affair.As it stands approximately 99.5% of the public report has been disclosed to the public, and only the release of about 1500 words is contested.
[14] In the public report, the passages the Government claims should be protected are designated by [***], regardless of whether the designation replaces one word, one sentence or one paragraph.The decision to use this designation was made by the Government, but controversy has arisen as in the past the Government has chosen to black out text containing sensitive information, including during the Inquiry when the Government chose to black out sensitive information contained in their public exhibits.
[15] It is also important to note that the Commissioner declared himself satisfied with the content of the public report.He stated in different passages throughout the public report that he was satisfied with the results of the Factual Inquiry, notwithstanding the expurgated 1500 words.He stated that the report permits a good understanding of what happened to Mr. Arar.At pages 10 of the Analysis and Recommendations volume of the public report, the Commissioner wrote:
The Factual Inquiry process was thorough and comprehensive, and I am satisfied that I have been able to examine all the Canadian information relevant to the mandate … The process was complex because of the need to keep some of the relevant information confidential, to protect national security and international relations interests… However, I am pleased to say that I am able to make public all of my conclusions and recommendations, including those based on in camera evidence.
At pages 11-12 of the Factual Background – Volume I, the Commissioner makes the following unequivocal statement:
A good deal of evidence in the Inquiry was heard in closed, or in camera, hearings, but a significant amount of this in camera evidence can be discussed publicly without compromising national security confidentiality. For that reason, this Report contains a more extensive summary of the evidence than might have been the case in a public inquiry in which all of the hearings were open to the public and all transcripts of evidence are readily available. While some evidence has been left out to protect national security and international relations interests, the Commissioner is satisfied that this edited account does not omit any essential details and provides a sound basis for understanding what happened to Mr. Arar, as far as can be known from official Canadian sources.
Finally, it should be noted that there are portions of this public version that have been redacted on the basis of an assertion of national security confidentiality by the Government that the Commissioner does not accept. This dispute will be finally resolved after the release of this public version. Some or all of this redacted information may be publicly disclosed in the future after the final resolution of the dispute between the Government and the Commission.
[Emphasis added]
Furthermore, at page 304 of the Analysis and Recommendations volume, the Commissioner wrote:
The Inquiry is now complete and I am comfortable that, in the end, I was able to get to the bottom of the issues raised by the mandate, as I had access to all the relevant material, regardless of any NSC claims. In this report, I have disclosed additional information that was not available for the public hearings.
(D) Commissioner’s Notice to Disclose
[16] The Commission prepared two different reports at the conclusion of the Factual Inquiry: an in camera report, which includes sensitive information which may be injurious to international relations, national defence or national security; and a public report, which was released on September 18, 2006.As discussed above, the Government took issue with some of the information contained within the public report, and as a result chose to redact certain portions of it on the basis that the release of these portions of the report would cause injury to Canada’s international relations, national defence, or national security.
[17] On September 18, 2006 the Commissioner sent the public report, detailing the findings of the Factual Inquiry, to the Privy Council.With the report, the Commissioner included a letter to the clerk of the Privy Council stating that the information redacted from the report is information that can be disclosed to the public and is necessary to fairly recite the facts surrounding the Arar affair.In response the Government filed the present application, pursuant to section 38.04 of the CEA, asking the Court to prohibit the disclosure of the redacted portions of the public report on the basis that they contain information that if disclosed would be injurious to international relations, national defence or national security.
[18] On September 26, 2006, the Senior Assistant Deputy Minister of Justice informed the Commissioner that the Attorney General had received notice, pursuant to subsection 38.02(1.1) of the CEA, that sensitive or potentially injurious information may be disclosed in connection with the Inquiry and “accordingly, the Commissioner, having provided notice on September 18, 2006, is free to disclose the information after 10 days has elapsed” (Application Record of the Attorney General, Affidavit of Simon Fothergill, Exhibit C, page 30).
[19] The same day, the Deputy Attorney General wrote to the Commissioner informing him that the Government was bringing an application to the Federal Court, pursuant to section 38.04 of the CEA, for an order prohibiting the Commission from disclosing the redacted information.
2. Procedural Overview
[20] On December 6, 2006, the Attorney General filed the present application with the Federal Court, pursuant to section 38.04 of the CEA, seeking to prohibit the disclosure of the redacted portions of the Commissioner’s public report.
[21] In accordance with section 38.11 of the CEA the entire application record was initially private.On December 20, 2006 Chief Justice Lutfy, with the consent of the Attorney General, made an order allowing some documents in the case to be made public.It is to be noted that unlike most other cases dealing with issues under section 38 of the CEA one of the respondents (the Commission) has had access to the entire record and has participated in all in camera proceedings, as the Commission’s counsel had access to all the information at issue during the Inquiry.Thus, only the respondent Maher Arar was denied access to the “private” materials and was excluded from the in camera hearing.
[22] On February 5, 2007, Chief Justice Lutfy rendered his decision in Toronto Star Newspapers Ltd v. Canada, 2007 FC 128 [Toronto Star]. In his decision the Chief Justice looked to the Supreme Court’s decision in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, where provisions similar to section 38.11 of the CEA contained in the Privacy Act, R.S.C. 1985, c. P-21 were found to be constitutionally overbroad.In his decision, the Chief Justice concluded that the provisions requiring section 38 of the CEA applications be heard in private violated subsection 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter], and could not be saved by section 1 of the Charter. More specifically, Chief Justice Lutfy found that the combined effect of subsections 38.04(4), 38.11(1) and 38.12(2) of the CEA violated the open court principle which is enshrined under subsection 2(b) of the Charter, and that this violation could not be saved by section 1 (Toronto Star, at paragraphs 39, 70-72).The Chief Justice determined that the appropriate remedy to this Charter violation would be to read down the impugned sections of the CEA so that these sections apply only to the ex parte submissions provided for in subsection 38.11(2) of the CEA (Toronto Star, at paragraph 83).Given this decision, the content of this application’s “private” file was reviewed and documents which could be classified as “public” became part of the public file, while sensitive information and documents remained part of an ex parte (in camera) file.
[23] On April 30, 2007, the Court heard a full day of public submissions in this matter.Subsequently, numerous days of ex parte (in camera) (excluding the Respondent Maher Arar and his counsel) submissions were held.
[24] Following a request from the Court to review the ex parte (in camera) affidavits filed in the case given the decision and the approach taken by Chief Justice Lutfy in Toronto Star, on May 10, 2007 counsel for the Attorney General wrote to inform the Court that the Attorney General and the Commission had consented to the disclosure of five ex parte (in camera) affidavits, if portions of these remained redacted.Consequently, on May 14, 2007 the Court publicly released redacted versions of some of the ex parte (in camera) affidavits, namely those of Mr. Reid Morden, Chief Superintendant Richard Evans, Mr. Geoffrey O’Brian, X (an anonymous RCMP official), and Mr. Daniel Livermore.These affidavits became part of the public file.The contents of these affidavits are discussed in the analysis section of this judgment.
[25] In response to the release of these affidavits, the Court scheduled a public hearing on the morning of May 23, 2007 to allow the Respondent, Maher Arar, to make submissions on the released affidavits.Following this hearing, the ex parte (in camera) hearing was resumed.The ex parte (in camera) hearing concluded this same day.
[26] I also note that I asked counsel for both parties to address whether the Commission’s in camera report, which was submitted to the Privy Council, should be made available to the Court.The parties agreed to this request and the Commission’s in camera report was made available to the Court.
[27] As stated earlier, I have chosen to write both a public and an ex parte (in camera) decision in this matter.The public decision will deal with the general principles at issue in this application whereas the ex parte (in camera) decision will apply the principles elaborated in the public decision to the specific information at issue in this application.
3. Legislative Framework (The Judicial Test to be Met)
[28] For the sake of completeness and for reference purposes I have reproduced below the sections of the CEA which are most relevant to the present application.
38.01 (1) Every participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information shall, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding.
[…]
38.01 (1) Tout participant qui, dans le cadre d’une instance, est tenu de divulguer ou prévoit de divulguer ou de faire divulguer des renseignements dont il croit qu’il s’agit de renseignements sensibles ou de renseignements potentiellement préjudiciables est tenu d’aviser par écrit, dès que possible, le procureur général du Canada de la possibilité de divulgation et de préciser dans l’avis la nature, la date et le lieu de l’instance.
[(…)]
38.02 (1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding
(a) information about which notice is given under any of subsections 38.01(1) to (4);
(b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5);
(c) the fact that an application is made to the Federal Court under section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in connection with the application is instituted; or
(d) the fact that an agreement is entered into under section 38.031 or subsection 38.04(6).
(1.1) When an entity listed in the schedule, for any purpose listed there in relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose the information or cause it to be disclosed until notice of intention to disclose the information has been given to the Attorney General of Canada and a period of 10 days has elapsed after notice was given.
(2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if
(a) the Attorney General of Canada authorizes the disclosure in writing under section 38.03 or by agreement under section 38.031 or subsection 38.04(6); or
(b) a judge authorizes the disclosure under subsection 38.06(1) or (2) or a court hearing an appeal from, or a review of, the order of the judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is available.
38.02 (1) Sous réserve du paragraphe 38.01(6), nul ne peut divulguer, dans le cadre d’une instance :
a) les renseignements qui font l’objet d’un avis donné au titre de l’un des paragraphes 38.01(1) à (4);
b) le fait qu’un avis est donné au procureur général du Canada au titre de l’un des paragraphes 38.01(1) à (4), ou à ce dernier et au ministre de la Défense nationale au titre du paragraphe 38.01(5);
c) le fait qu'une demande a été présentée à la Cour fédérale au titre de l'article 38.04, qu'il a été interjeté appel d'une ordonnance rendue au titre de l'un des paragraphes 38.06(1) à (3) relativement à une telle demande ou qu'une telle ordonnance a été renvoyée pour examen;
d) le fait qu’un accord a été conclu au titre de l’article 38.031 ou du paragraphe 38.04(6).
(1.1) Dans le cas où une entité mentionnée à l’annexe rend, dans le cadre d’une application qui y est mentionnée en regard de celle-ci, une décision ou une ordonnance qui entraînerait la divulgation de renseignements sensibles ou de renseignements potentiellement préjudiciables, elle ne peut les divulguer ou les faire divulguer avant que le procureur général du Canada ait été avisé de ce fait et qu’il se soit écoulé un délai de dix jours postérieur à l’avis.
(2) La divulgation des renseignements ou des faits visés au paragraphe (1) n’est pas interdite :
a) si le procureur général du Canada l’autorise par écrit au titre de l’article 38.03 ou par un accord conclu en application de l’article 38.031 ou du paragraphe 38.04(6);
b) si le juge l’autorise au titre de l’un des paragraphes 38.06(1) ou (2) et que le délai prévu ou accordé pour en appeler a expiré ou, en cas d’appel ou de renvoi pour examen, sa décision est confirmée et les recours en appel sont épuisés.
38.04 (1) The Attorney General of Canada 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 under any of subsections 38.01(1) to (4).
[…]
(4) An application under this section is confidential. Subject to section 38.12, the Chief Administrator of the Courts Administration Service may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates.
(5) As soon as the Federal Court is seized of an application under this section, the judge
(a) shall hear the representations of 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, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter;
(b) shall decide whether it is necessary to hold any hearing of the matter;
(c) if he or she decides that a hearing should be held, shall
(i) determine who should be given notice of the hearing,
(ii) order the Attorney General of Canada to notify those persons, and
(iii) determine the content and form of the notice; and
(d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations.
38.04 (1) Le procureur général du Canada peut, à tout moment et en toutes circonstances, demander à la Cour fédérale de rendre une ordonnance portant sur la divulgation de renseignements à l'égard desquels il a reçu un avis au titre de l'un des paragraphes 38.01(1) à (4).
([…])
(4) Toute demande présentée en application du présent article est confidentielle. Sous réserve de l'article 38.12, l'administrateur en chef du Service administratif des tribunaux peut prendre les mesures qu'il estime indiquées en vue d'assurer la confidentialité de la demande et des renseignements sur lesquels elle porte.
(5) Dès que la Cour fédérale est saisie d'une demande présentée au titre du présent article, le juge :
a) entend les observations du procureur général du Canada — et du 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 — sur l'identité des parties ou des témoins dont les intérêts sont touchés par l'interdiction de divulgation ou les conditions dont l'autorisation de divulgation est assortie et sur les personnes qui devraient être avisées de la tenue d'une audience;
b) décide s'il est nécessaire de tenir une audience;
c) s'il estime qu'une audience est nécessaire :
(i) spécifie les personnes qui devraient en être avisées,
(ii) ordonne au procureur général du Canada de les aviser,
(iii) détermine le contenu et les modalités de l'avis;
d) s'il l'estime indiqué en l'espèce, peut donner à quiconque la possibilité de présenter des observations.
38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information.
(2) If the judge concludes that the disclosure of the information 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 of the information, a part or summary of the information, or a written admission of facts relating to the information.
(3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure.
(3.1) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence.
(4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2).
(5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding.
38.06 (1) Le juge peut rendre une ordonnance autorisant la divulgation des renseignements, sauf s’il conclut qu’elle porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales.
(2) Si le juge conclut que la divulgation des renseignements porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d’intérêt public qui justifient la divulgation l’emportent sur les raisons d’intérêt public qui justifient la non-divulgation, il peut par ordonnance, compte tenu des raisons d’intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu’il estime indiquées, la divulgation de tout ou partie des renseignements, d’un résumé de ceux-ci ou d’un aveu écrit des faits qui y sont liés.
(3) Dans le cas où le juge n’autorise pas la divulgation au titre des paragraphes (1) ou (2), il rend une ordonnance confirmant l’interdiction de divulgation.
(3.1) Le juge peut recevoir et admettre en preuve tout élément qu’il estime digne de foi et approprié — même si le droit canadien ne prévoit pas par ailleurs son admissibilité — et peut fonder sa décision sur cet élément.
(4) La personne qui veut faire admettre en preuve ce qui a fait l’objet d’une autorisation de divulgation prévue au paragraphe (2), mais qui ne pourra peut-être pas le faire à cause des règles d’admissibilité applicables à l’instance, peut demander à un juge de rendre une ordonnance autorisant la production en preuve des renseignements, du résumé ou de l’aveu dans la forme ou aux conditions que celui-ci détermine, dans la mesure où telle forme ou telles conditions sont conformes à l’ordonnance rendue au titre du paragraphe (2).
(5) Pour l’application du paragraphe (4), le juge prend en compte tous les facteurs qui seraient pertinents pour statuer sur l’admissibilité en preuve au cours de l’instance.
4. Issues
(A) The Deference Issue
(B) Some of the Principles and Concepts at Play
5. Analysis
(A) The Deference Issue
[29] Both Respondents submit that the Court should accord deference to the Commissioner’s rulings as to what information can be disclosed.The Commission, in its submissions, uses the pragmatic and functional approach to conclude that the Commissioner’s findings as to whether certain information can be disclosed, notwithstanding the Government’s national security confidentiality claim, should be reviewed on the reasonableness standard.
[30] The Attorney General, for his part, did not directly address the question of deference to the Commissioner in his submissions.However, counsel for the Attorney General did speak to this issue at the public hearing.The Attorney General, in oral submissions, argued that the Commissioner’s rulings as to whether the information at issue can be disclosed should be afforded no deference given the wording of the Terms of Reference, the role, the structure of the Commission, and the wording of section 38 of the CEA.
[31] I agree with the Attorney General.The position of the Respondents is unpersuasive on this point.The CEA is clear: where the Federal Court is seized with an application to determine whether information can be disclosed under section 38.04, the Court after applying the criteria set out at section 38.06 makes a determination as to the whether the information in question should be disclosed. This wording indicates that the Court’s role under sections 38.04 and 38.06 of the CEA is to rule on whether particular information can be disclosed.This judicial obligation cannot be delegated.Thus, to accord deference to the Commissioner’s findings, as per the Respondents’ submissions, would result in the Court abdicating its role and judicial obligations under the CEA.
[32] This being said, the jurisprudence is also clear that the Court’s role under section 38 of the CEA is not to judicially review a decision to disclose information. As the Federal Court of Appeal wrote in Canada (Attorney General) v. Ribic, 2003 FCA 246 [Ribic]:
It is important to remind ourselves that proceedings initiated pursuant to section 38.04 of the Act for an order regarding disclosure of information are not judicial review proceedings. They are not proceedings aimed at reviewing a decision of the Attorney General not to disclose sensitive information. The prohibition to disclose sensitive information is a statutory one enacted by paragraph 38.02(1)(a) [as enacted by S.C. 2001, c.41, s.43] of the Act …
[Emphasis added]
This was also recently affirmed by Justice Mosley in Attorney General of Canada v. Mohammed Momin Khawaja, 2007 FC 490 at paragraph 61 [Khawaja].
[33] Having said this, the Court is fully aware that the Commission has considered the matters referred to in the Terms of Reference in detail.Moreover, this Court also recognizes that the point of view expressed by the Commissioner in his rulings, and his subsequent reports, are valuable to the decision that has to be made in the present application.
[34] As a general rule, a commission acts independently of the Government when conducting its inquiry and when it subsequently reports its conclusions and recommendations.However, as per paragraph 39(2)(a) of the CEA, a commission’s report once filed with the Governor-in-Council becomes a confidence of the Privy Council.Thus, it is the executive who possesses complete power over whether to make a commission’s final report public. Nonetheless, it goes without saying that if the executive chooses not to release a commission’s report it would certainly have to account to the Canadian public.
[35] In the situation at hand, the executive, on the advice of the Ministers consulted, chose to redact approximately 1500 words from the public report that the Commissioner submitted to the Privy Council.The exec