Canada (Attorney General) v. Almalki

Canada (Attorney General) v. Almalki
Court (s) Database
Federal Court Decisions
Date
2010-11-08
Neutral citation
2010 FC 1106
File numbers
DES-1-10
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20101108
Docket: DES-1-10
Citation: 2010 FC 1106
Vancouver, British Columbia, November 8, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
THE ATTORNEY GENERAL
OF CANADA
Applicant
and
ABDULLAH ALMALKI
KHUZAIMAH KALIFAH
ABDULRAHMAN ALMALKI, by his Litigation Guardian Khuzaimah Kalifah
SAJEDA ALMALKI by her Litigation Guardian Khuzaimah Kalifah
MUAZ ALMALKI, by his Litigation Guardian Khuzaimah Kalifah
ZAKARIYY A ALMALKI, by his Litigation Guardian Khuzaimah Kalifah
NADIM ALMALKI, FATIMA ALMALKI, AHMAD ABOU-ELMAATI
BADR ABOU-ELMAATI, SAMIRA AL-SHALLASH, RASHA ABOU-ELMAATI
MUAYYED NUREDDIN, ABDUL JABBAR NUREDDIN, FADILA SIDDIQU
MOFAK NUREDDIN, AYDIN NUREDDIN, YASHAR NUREDDIN
AHMED NUREDDIN, SARAB NUREDDIN, BYDA NUREDDIN
Respondents
PUBLIC REASONS FOR JUDGMENT AND JUDGMENT
[1] The Attorney General of Canada has applied for an order with respect to the disclosure of information that is the subject of discovery proceedings in actions filed by the respondents in the Superior Court of Justice of Ontario. The application is brought in the Federal Court under section 38.04 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“the Act”).
[2] The information in question is being withheld from the respondents pursuant to a statutory prohibition on disclosure set out in paragraph 38.02(1)(a) of the Act. The Attorney General seeks to have the prohibition confirmed by the Court. Alternatively, the Attorney General requests that the Court exercise its discretion under subsection 38.06(2) of the Act to disclose the information in a form and subject to such conditions as are most likely to limit any injury to national security, national defence or international relations.
[3] The respondents request an order authorizing the disclosure of all of the information that the applicant seeks to withhold. Where grounds sufficient to warrant a lesser remedy are established, the respondents ask that the Court use the available alternative options in the manner that best meets the public interest including their interests in obtaining disclosure to the fullest degree possible in each case.
[4] In these reasons I outline the background to the application, describe the applicable legal framework, and discuss the legal issues raised by the parties and the principles that I have applied in determining whether the information should or should not be disclosed. A Private Order has been signed and filed in the Federal Court’s Designated Proceedings Registry setting out the specific findings I have made regarding the information in question. The order authorizes the disclosure of certain of the withheld information, either in full text or summary form, and confirms the non-disclosure of the remainder. This order has been provided to the Attorney General in accordance with subsection 38.02 (2) (b) to allow the applicant the time specified in section 38.09 of the Act to determine whether to appeal.
[5] For convenience, reference in these reasons to s. 38 encompasses sections 38 to 38.16 of the Act.
BACKGROUND
[6] In the actions filed in the Superior Court of Justice, Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin, (the “principal respondents”), joined by members of their families, seek compensatory damages from the Government of Canada for, among other things, alleged complicity in their detention and torture in Syria (and Egypt, in the case of Mr. Elmaati) and breach of their rights under 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”). The Attorney General of Canada is the representative defendant on behalf of the public servants and government departments and agencies alleged to be responsible for the harms suffered by the respondents pursuant to the Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 23.
[7] The respondents’ claims were initiated following the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the “O’Connor Commission”), and the consequent report (the “O’Connor Report”). In his report, Mr. Justice Dennis O’Connor recommended that the cases of the three principal respondents be reviewed, but in a manner more appropriate than a full-scale public inquiry because of the national security issues involved.
[8] As a result, the Honourable Frank Iacobucci, Q.C. was appointed to conduct the Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati, and Muayyed Nureddin (the “Iacobucci Inquiry”). The mandate of the Iacobucci Inquiry was to examine the actions of Canadian officials relating to Mr. Almalki, Mr.Elmaati and Mr. Nureddin, who were detained and mistreated in Syria and also, in the case of Mr. Elmaati, in Egypt during the period 2001 to 2004 to determine (1) whether the detention and any mistreatment of the three men resulted, directly or indirectly, from the actions of Canadian officials (particularly in relation to the sharing of information with foreign countries), (2) whether, if so, those actions were deficient in the circumstances, and (3) whether there were any deficiencies in the provision by Canadian officials of consular services to the three men while they were in detention.
[9] Commissioner Iacobucci’s report was released in October 2008 (the “Iacobucci Report”). A supplementary report was released on February 23, 2010 in which Commissioner Iacobucci provided additional information that could not be disclosed at the time the public report was released because of government concerns that disclosure of the information in the manner then proposed would be injurious to national defence, national security or international relations (the “Supplementary Report”).
[10] Commissioner Iacobucci’s Terms of Reference directed him, among other things, to submit a confidential report setting out his determinations and a separate report suitable for public release. He was directed to not disclose information in the public report that would be injurious to international relations, national defence, national security or the conduct of any investigation or proceeding. As Commissioner Iacobucci noted, this language is similar to that used in s. 38. In determining what information could be released publicly, Commissioner Iacobucci was guided by the approach taken in the O’Connor Inquiry Report and the factors identified by Justice Simon Noël in Canada (Attorney General) v. Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766, [2008] 3 F.C.R. 248 (“Arar”). If Commissioner Iacobucci disagreed with the position taken by the government, under the terms of reference he could notify the Attorney General, in which case the notice could lead to a proceeding in the Federal Court under s. 38 of the Canada Evidence Act to resolve the matter.
[11] With one exception, Commissioner Iacobucci was satisfied that the confidential information omitted from the public version of his report was properly subject to national security confidentiality. Commissioner Iacobucci gave notice to the Attorney General with respect to the exception. The issue was ultimately resolved following extensive further discussions resulting in the disclosure of additional information in the form of a summary. This was addressed in the Supplementary Report released in February 2010.
[12] In response to requests for production of documents by Commission counsel, the Attorney General of Canada produced some 40,000 documents to the Inquiry. These were provided without redactions, with the exception of certain documents subject to privilege or immunity and information that might disclose the name of a foreign human source.
[13] Proceedings with respect to the respondents’ claims in the Superior Court of Justice were held in abeyance pending the outcome of the Iacobucci Inquiry and resumed following the issuance of the Report. In April 2009, the parties agreed to conduct mediations in the fall of 2009. To that end, in July 2009, counsel to the Attorney General disclosed approximately 486 documents to respondents’ counsel, of which 290 contained redactions. The 486 documents had been specifically requested by respondents’ counsel because of references in the Iacobucci Report to information which the documents contain.
[14] In the 290 documents, information subject to a claim of potential injury to national security, national defence, and international relations is redacted by being blacked out. In addition, there are white redactions blocking the disclosure of information which the applicant considers irrelevant to the litigation or subject to claims of privilege under sections 37 and 39 of the Act or solicitor-client privilege. Those issues will be dealt with by the Superior Court of Justice. In these reasons, references to “redacted content” mean only the information subject to s.38 claims.
[15] When the documents were produced in July 2009, no formal notice had been provided under the Act regarding the redacted information and no determination had been made by the Attorney General as to whether the information could be disclosed. Departmental and agency officials worked with the litigation team acting on behalf of the Attorney General to review the documents assembled for production and to identify information which could be considered “potentially injurious” or “sensitive” and thus possibly subject to claims of public interest privilege under s.38.
[16] One document, which is now found at tab 171 in the series before the Court, was produced to the respondents without any redactions. It is a report prepared by the Canadian Security Intelligence Service (“CSIS” or “the Service”). On August 18, 2009, a CSIS lawyer advised a senior Department of Justice official that document 171 had been released inadvertently and that notice was being given to the Attorney General pursuant to s. 38.01 that the document contained sensitive information. By letter of the same date, counsel for the Attorney General wrote to counsel for the Elmaati respondents demanding the return of the document. The document was not returned. The Attorney General subsequently authorized disclosure of a redacted version of document 171 which was produced to the respondents on September 9, 2009. Further revisions “lifting” portions of the redactions were authorized by the Attorney General in the version filed with the Court on March 19, 2010 and provided to the respondents.
[17] The applicant refers to document 171 as an inadvertently disclosed document. The respondents say it should properly be described as a “disclosed document”. I will refer to it as document 171. The content of this document is related to the subject matter of Commissioner Iacobucci’s February 2010 Supplementary Report. The evidence is that document 171 had been collected by the litigation team in the process of responding to the request for production and that it was not reviewed by CSIS officials prior to its disclosure on July 19, 2009.
[18] For reasons which are unknown to this Court and are not, presumably, material to these proceedings, the mediation did not proceed as planned in November 2009 and the litigation resumed. On January 15, 2010, the Elmaati respondents brought a motion in the Superior Court of Justice for an order requiring the production of documents without redactions and in the alternative to strike out the Attorney General’s statement of defence. It was understood that the outcome would apply to the three actions. Document 171 was filed as an exhibit on the motion in a sealed envelope: Exhibit “B” to the January 15, 2010 Mudryk Affidavit.
[19] On January 18, 2010, a second notice was given to the Attorney General pursuant to s. 38.01(1) that 289 documents of which full discovery was sought in the Superior Court of Justice actions contained sensitive or potentially injurious information the disclosure of which could harm international relations and/or national security. In a decision made in March 2010, the number of documents for which protection was sought was reduced to 268 as the Attorney General authorized additional disclosures. Such decisions are not made personally by the Attorney General. The evidence is that the Attorney General’s authority to act in s. 38 matters is delegated to two senior officials in the Department of Justice.
[20] A confidential Notice of Application pursuant to s. 38.04 was filed on February 2, 2010 together with a Notice of Motion and Motion Record seeking direction from the Court. Counsel for the parties appeared by conference call before Chief Justice Allan Lutfy on February 4, 2010 and on several subsequent dates for case management purposes.
[21] As directed by the Chief Justice, a public Notice of Application was filed on February 9, 2010 and these proceedings have been treated as presumptively public since then, save for the portion of the proceedings which has taken place ex parte and in camera, in keeping with the ruling in Toronto Star Newspapers Ltd., et al. v. Canada (Attorney General), 2007 FC 128, [2007] 4 F.C.R. 434 (“Toronto Star”) which I have adopted and applied.
[22] Pursuant to s. 38.05 of the Act, notice of the application was given to Regional Senior Justice Charles Hackland, case management judge for the Almalki action before the Superior Court of Justice in Ottawa, and to Mr. Justice Paul Perell, case management judge for the Elmaati and Nureddin actions in Toronto.
[23] In response to the Elmaati motion for production, the Attorney General raised a preliminary objection that the Superior Court of Justice lacked the jurisdiction to grant the relief sought, given the grant of jurisdiction to the Federal Court in s.38. In response, Mr. Elmaati filed a motion on March 12, 2010, challenging the constitutionality of s. 38. The two motions were heard by Mr. Justice Perell on March 25, 2010. His decision allowing the constitutional challenge but dismissing the motion for production was issued on April 8, 2010: Abou-Elmaati v. Canada (Attorney General) 2010 ONSC 2055, 318 D.L.R. (4th) 459 (“Abou-Elmaati”).
[24] Mr. Justice Perell held that where a claim is made to enforce the Constitution Act, including the Charter in a civil proceeding, s. 38 of the Canada Evidence Act does not preclude a judge of the Superior Court of Justice from judicially reviewing a claim of Crown privilege at the trial of an action or the hearing of an application on the grounds of national security, national defence, and international relations. He concluded, however, that during the interlocutory stages of a proceeding it is within the constitutional authority of the Federal Parliament to oust any jurisdiction that the Superior Court may have to review the Federal Government's claims of Crown privilege and to place it with the Federal Court: Abou-Elmaati, above, at paras. 109 - 112.
[25] An appeal and cross-appeal have been filed by the parties from Justice Perell's decision. The respondents take the position that this court should defer its review of the documents and privilege claims in issue to the Superior Court of Justice if that court is found on the appeal and cross-appeal to also have inherent and constitutionally protected jurisdiction to conduct a s. 38 review.
[26] In these proceedings, evidence was filed by the Attorney General in support of the application in the form of public and private ex parte affidavits. The affidavits were made by officials representing the several departments and agencies from which the documents originated. The affiants, for the most part, do not have personal knowledge of the events or facts described in the documents or familiarity with the O’Connor and Iacobucci Reports. With certain exceptions, the public affiants did not review the redacted content of the documents prior to making their affidavits. Their evidence referred in general terms to the type of information relating to national security, national defence and international relations for which protection was sought. The private affiants had knowledge of the redacted content and described the risks of injury claimed by the Attorney General with reference to that content.
[27] The respondents filed an affidavit with extensive exhibit evidence (the “Mudryk Affidavit”) in opposition to the application. This evidence related primarily to the claims filed in the Ontario Superior Court of Justice, the Inquiry Reports and the document redactions.
[28] A motion for the appointment of an amicus curiae was filed by the respondents on March 19, 2010. Having considered the written and oral representations of the parties as to the necessity for such an appointment and choice of suitable candidates, on March 26, 2010 the Court appointed Me Bernard Grenier and Me François Dadour as amici curiae to assist the Court in considering the evidence tendered and the issues raised in the ex parte hearings.
[29] Written opening submissions were filed on behalf of the parties. On April 6, 2010 a public hearing was held in Toronto to receive counsel’s oral submissions. Ex parte hearings to receive the applicant’s in camera and ex parte evidence were conducted at the Court’s secure facilities in Ottawa for six days beginning April 19, 2010. Witnesses were examined in chief by counsel for the Attorney General and cross-examined by the amici curiae.
[30] The testimony of the witnesses heard in camera and ex parte elaborated upon the concerns set out in the affidavit evidence. Each witness provided an overview of the nature of the interest of their department or agency in the material before the court, such as relationships with foreign agencies, and discussed the injuries to the protected national interests that, in their view, would result from disclosure of the information. These witnesses were representative in the sense that they did not have personal knowledge of the events or individuals to which the documents refer but testified based on their work experience and information gleaned from departmental files or received from other officials.
[31] On May 13, 2010 the respondents filed a motion for a confidentiality order with respect to the content of an affidavit filed by the Attorney General in the Court’s public Registry. As a result, the Court directed that the copies of the documents filed as exhibits to the affidavit of Pamela Dawson be withheld from public access pending a ruling. Having considered the written representations filed by the parties, the motion was adjourned sine die without prejudice to it being brought back before the Court with evidence of the harm that disclosure of the information would cause: Canada (Attorney General) v. Almalki, 2010 FC 733.
[32] In submissions to the Court respecting the scheduling of the remaining steps in the proceedings, the respondents proposed to make written ex parte and private submissions regarding the content of the document in their possession which the applicant claimed to have been inadvertently disclosed. The applicant opposed this on the ground that the making of such submissions would constitute, in itself, a further disclosure of the information which the applicant seeks to protect before the Court made its determination of the issue. In an Order dated May 21, 2010, and without deciding the issue, I stated that the respondents could make submissions regarding the application of the s. 38 tests to this document without referring to its content.
[33] The respondents conducted cross-examinations of the applicant’s public deponents in May and June which the amici attended as observers.
[34] The Court received public closing written submissions from counsel for the parties and private written submissions from counsel for the Attorney General and the amici curiae. A public hearing was conducted on June 23, 2010 to receive the parties’ closing oral submissions. To assist the Court, the respondents provided an annotated list of the documents under review. Final in camera submissions were received from counsel for the Attorney General and the amici curiae on June 24. In response to questions and requests from the Court during that hearing, counsel for the Attorney General and the amici submitted additional written representations and information to the Court through the month of July.
[35] In the course of these proceedings, the Attorney General has revised his position and determined that certain information that had been redacted in the documents filed in the Court would not cause an injury to the protected national interests if disclosed. Revised versions of those documents with redactions removed or “lifted” were produced to the respondents and filed with the Court. Further information in 92 documents was authorized to be disclosed by the Attorney General.
[36] Prior to making closing oral submissions, the amici provided the Court and counsel for the Attorney General with detailed written comments on the information which the Attorney General sought to protect. With respect to certain redactions, the amici challenged the Attorney General’s claims that injury would result from disclosure of the information or argued that, if the Court was satisfied that injury would be caused, the information should be disclosed in the public interest. In other cases, the amici proposed alternative forms of disclosure in the form of summaries to provide the gist of the redacted information to the respondents.
[37] Counsel for the Attorney General provided the Court with a series of tables in which they identified the redactions the applicant agreed to and those which the applicant sought to maintain. In a number of instances, they agreed with the summaries proposed by the amici. In others, they either maintained the applicant’s position that the risk of injury was contrary to the public interest or proposed alternative language for disclosure of the information in a summary form. Revised versions of these tables were provided to the Court following the closing in camera hearing in response to the amici’s submissions and the Court’s questions.
[38] In the course of the in camera proceedings, the Court was informed that the Royal Canadian Mounted Police (“the RCMP”) had sent requests for permission to disclose information that originated with intelligence and law enforcement agencies in all of the relevant foreign countries. In several countries, more than one agency was contacted. On October 13, 2010 the Court was informed that, as of that date, more than half of the agencies had responded and none of them agreed to the disclosure of their information.
LEGAL FRAMEWORK
[39] As the Supreme Court of Canada has observed, the principle that court proceedings are open is fundamental to our system of justice and closely linked to the core values protected by s.2 (b) of the Charter. Those values are not, however, absolute and must yield on occasion where there are other important interests to protect, such as informant privilege, or to protect the right of an individual to a fair hearing: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253) Charkaoui (Re), 2008 FC 61, [2009] 1 F.C.R. 507. The open court principle is also subject to limitation where disclosure would subvert the ends of justice or unduly impair its proper administration: Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188 at para.4.
[40] The limitations on the disclosure of information set out in s.38 of the Act are on their face inconsistent with the open court principle: Ottawa Citizen Group Inc. v. Canada (Attorney General), 2004 FC 1052, 255 F.T.R. 173, at para.44. In any case in which information is sought by the parties in support of their position in litigation, application of the s. 38 restrictions can only be justified if necessary to protect the identified national interests of security, defence and international relations.
[41] The disclosure obligations of the Federal Crown in a civil action are expressly made subject to section 38: Crown Liability and Proceedings Act (R.S.C., 1985, c. C.-50), ss. 27, 34; Crown Liability and Proceedings (Provincial Court) Regulations, SOR/91-604, ss. 2, 7, 8. The following provisions of section 38, 38.01, 38.02, 38.04 and 38.06 of the Act are of particular relevance to the present application:
38. Definitions
“potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.
“sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.
38. Définitions
<< renseignements potentiellement préjudiciables >> Les renseignements qui, s’ils sont divulgués, sont susceptibles de porter préjudice aux relations internationales ou à la défense ou à la sécurité nationales.
<< renseignements sensibles >> Les renseignements, en provenance du Canada ou de l’étranger, qui concernent les affaires internationales ou la défense ou la sécurité nationale, qui se trouvent en la possession du gouvernement du Canada et qui sont du type des renseignements à l’égard desquels celui-ci prend des mesures de protection.
Notice to Attorney General of Canada
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.
Avis au procureur général du Canada
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.
Disclosure prohibited
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);
Interdiction de divulgation
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);
Application to Federal Court - Attorney General of Canada
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).
Application to Federal Court – general
(2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions,
(a) the Attorney General of Canada shall apply to the Federal Court for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness;
(b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court for an order with respect to disclosure of the information; and
(c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information.
Notice to Attorney General of Canada
(3) A person who applies to the Federal Court under paragraph (2)(b) or (c) shall provide notice of the application to the Attorney General of Canada.
Court records
(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.
Procedure
(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.
…
Termination of Court consideration, hearing, review or appeal
(7) Subject to subsection (6), after the Federal Court is seized of an application made under this section or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3), before the appeal or review is disposed of, if the Attorney General of Canada authorizes the disclosure of all or part of the information or withdraws conditions to which the disclosure is subject, the Court's consideration of the application or any hearing, appeal or review shall be terminated in relation to that information, to the extent of the authorization or the withdrawal.
Demande à la Cour fédérale: procureur général du Canada
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).
Demande à la Cour fédérale: dispositions générales
(2) Si, en ce qui concerne des renseignements à l'égard desquels il a reçu un avis au titre de l'un des paragraphes 38.01(1) à (4), le procureur général du Canada n'a pas notifié sa décision à l'auteur de l'avis en conformité avec le paragraphe 38.03(3) ou, sauf par un accord conclu au titre de l'article 38.031, il a autorisé la divulgation d'une partie des renseignements ou a assorti de conditions son autorisation de divulgation:
a) il est tenu de demander à la Cour fédérale de rendre une ordonnance concernant la divulgation des renseignements si la personne qui l'a avisé au titre des paragraphes 38.01(1) ou (2) est un témoin;
b) la personne - à l'exclusion d'un témoin - qui a l'obligation de divulguer des renseignements dans le cadre d'une instance est tenue de demander à la Cour fédérale de rendre une ordonnance concernant la divulgation des renseignements;
c) la personne qui n'a pas l'obligation de divulguer des renseignements dans le cadre d'une instance, mais qui veut en divulguer ou en faire divulguer, peut demander à la Cour fédérale de rendre une ordonnance concernant la divulgation des renseignements.
Notification du procureur général
(3) La personne qui présente une demande à la Cour fédérale au titre des alinéas (2)b) ou c) en notifie le procureur général du Canada.
Dossier du tribunal
(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.
Procédure
(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.
…
Fin de l'examen judiciaire
(7) Sous réserve du paragraphe (6), si le procureur général du Canada autorise la divulgation de tout ou partie des renseignements ou supprime les conditions dont la divulgation est assortie après la saisine de la Cour fédérale aux termes du présent article et, en cas d'appel ou d'examen d'une ordonnance du juge rendue en vertu de l'un des paragraphes 38.06(1) à (3), avant qu'il en soit disposé, le tribunal n'est plus saisi de la demande et il est mis fin à l'audience, à l'appel ou à l'examen à l'égard de tels des renseignements dont la divulgation est autorisée ou n'est plus assortie de conditions.
Disclosure order
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.
Order confirming prohibition
(3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure.
Evidence
(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.
Introduction into 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).
Relevant factors
(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.
Ordonnance de divulgation
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.
Confirmation de l'interdiction
(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.
Preuve
(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.
Admissibilité en preuve
(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).
Facteurs pertinents
(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.
[42] In assessing whether to make an order pursuant to section 38.06 of the Act, the Court must engage in a three step process as held in Ribic v. Canada (Attorney General), 2003 FCT 10, (2003) F.T.R. 161, affirmed in 2003 FCA 246, [2005] 1 F.C.R. 33 (“Ribic”). In considering the information at issue, the Court must determine: (1) its relevance to the underlying proceeding; (2) whether its disclosure would be injurious to national security, international relations or national defence; and (3) whether the public interest in disclosure is outweighed by the public interest in non-disclosure.
[43] Ribic has been applied in a number of decisions of this Court: Canada (Attorney General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547 (“Khawaja”), rev’d in part, Canada (Attorney General) v. Khawaja, 2007 FCA 342, 228 C.C.C. (3d) 1 ; Arar, above ; Khadr v. Canada (Attorney General), 2008 FC 807, 331 F.T.R. 1 (“Khadr June 2008”); Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80 (“Khadr April 2008”).
ISSUES
[44] A threshold issue to be addressed is whether this court should defer its review of the documents and the privilege claims in issue to the Ontario Superior Court of Justice?
[45] Barring a decision to defer to the Superior Court of Justice, the question before me is whether the statutory bar to disclosure of the information as set out in s.38.02 (1) (a) should be confirmed as provided for in s. 38.06 (3) of the Act. Specific issues to be determined are as follows:
1) How is the Ribic test to be applied to the information in question?
2) What, if any, effect shou