Canada (Attorney General) v. Momin Khawaja

Canada (Attorney General) v. Momin Khawaja
Court (s) Database
Federal Court Decisions
Date
2007-05-07
Neutral citation
2007 FC 490
File numbers
DES-2-06
Notes
Reported Decision
Decision Content
Date: 20070507
Docket: DES-2-06
Citation: 2007 FC 490
Ottawa, Ontario, May 7, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
MOHAMMAD MOMIN KHAWAJA
Respondent
REASONS FOR ORDER
INTRODUCTION
[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 (the “Act”). The respondent, Mohammad Momin Khawaja, faces criminal charges in relation to a conspiracy to commit terrorist acts in the United Kingdom. An indictment has been preferred against him in the Ontario Superior Court of Justice alleging a total of seven counts under sections 83.2, 83.18(1), 83.21, 83.03(a), 83.18 and 83.19 of the Criminal Code, R.S.C. 1985, c. C-46.
[2] The arrest of the respondent took place on March 29, 2004 in Ottawa. On the following day, six individuals were arrested in the UK. A seventh was taken into custody in Pakistan and later arrested on February 8, 2005 when he returned to the UK. The trial of the seven accused in the UK began on March 21, 2006 and resulted in a jury verdict on April 30, 2007. Five of the accused were convicted of terrorism related offences and have been sentenced to lengthy prison terms. Two were acquitted. The UK case is known as “Operation Crevice”. In Canada, the RCMP labelled their investigation “Project Awaken”.
[3] According to affidavit evidence filed in these proceedings, at Mr. Khawaja’s trial the prosecution will be introducing viva voce evidence from a number of witnesses, sound and video recordings, documents including electronic communications reduced to writing, and other evidence. In the exercise of the prosecution’s continuing obligation to ensure that the respondent’s fair trial rights under the Canadian Charter of Rights and Freedoms are respected, as stipulated in R. v. Stinchcombe, [1991] 3 S.C.R. 326 [Stinchombe], a large quantity of material has been assembled and disclosed to the respondent some of which has already been used as evidence in the UK trial and may be introduced in the forthcoming trial of the respondent, subject of course to its admissibility under Canadian legal standards.
[4] The disclosure process began in June of 2004 and has continued thereafter on a periodic basis. Some 98, 822 pages have been disclosed to date. Among the disclosure materials relating to the UK evidence served on counsel for the respondent on July 8, 2005, subject to an undertaking that it be used only for the purpose of the criminal trial, were 226 CDs containing intercepted conversations; 13 VHS surveillance videotapes; an exhibit list prepared for the UK Crown Prosecutor; indexes of statements prepared by the Metropolitan Police; transcripts and surveillance records; photographs taken of the respondent at Heathrow Airport on February 20, 2004 and a closed circuit television tape of the respondent entering and leaving an address in London on the same date.
[5] I mention the quantities of material disclosed to offer some perspective regarding the scale of this proceeding. Among the disclosed material, a relatively small number of documents have been identified in which there is information that the Attorney General seeks to protect from disclosure or further disclosure. Some 515 documents were originally filed with the Court. In the course of the ex parte proceedings, it came to the Court’s attention that nine of these documents were not in fact subject to the section 38 proceedings and were not served on the respondent as a result. Eight of these documents are work products of the prosecution and subject to solicitor-client privilege. The ninth is a list of the US marshals that were assigned to protect the witness Babar during the UK trial. The final number of documents before the Court is therefore 506. These documents consist of several thousands of pages, among which are about 1700 pages on which information has been redacted. The documents were assembled from the operational, investigative and administrative files of several agencies including the Royal Canadian Mounted Police (RCMP), the Canadian Security Intelligence Service (CSIS) and the Canada Border Services Agency (CBSA). The documents include information obtained in confidence from foreign intelligence and law enforcement agencies.
[6] With the exception of a few documents identified during the ex parte hearings for which protection is no longer sought, the Attorney General maintains the position that disclosure of this information will harm Canada’s national security and/or international relations. The applicant is not alleging injury or harm to Canada’s national defence interests, the third ground upon which protection from disclosure may be sought under section 38.04 of the Act.
[7] The applicant seeks to have the statutory prohibition on disclosure set out in paragraph 38.02(1)(a) of the Act confirmed by the Court. Alternatively, the applicant 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 or international relations.
[8] The respondent has made it clear that he is not seeking the disclosure of any information that would reveal sensitive investigative techniques, the identity of any undercover operatives of law enforcement and/or intelligence agencies, or the targets of any other investigation. The respondent asserts, however, that the withholding of much of the redacted material is not justifiable given the prosecutor’s concession that it is relevant. The respondent argues in the alternative that should the Court deem it necessary to protect national security and/or international relations, the information should be disclosed subject to any reasonable conditions such as prohibiting subsequent disclosure and/or requiring that the disclosed information be utilized only in closed-court proceedings.
[9] In these reasons I outline the background to the application, describe the information at issue in general terms, discuss the legal issues raised, the principles that I have applied and the conclusions I have reached about the material in question. The overall question that is before me to determine is whether the statutory bar to disclosure should be confirmed. Given the volume of the information and the varying claims that are being made for its protection arriving at a determination of that question will require a number of specific decisions. Those decisions will be set out in a schedule to be attached to the order that will issue shortly reflecting the conclusions described at the end of these reasons.
PROCEDURAL HISTORY
[10] Subsection 38.01(1) of the Act provides that 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. "Sensitive information" as defined by the Act, is information relating to international relations or national defence or national security in the possession of the Government of Canada, whether originating from inside or outside Canada, and of a type that the government is taking measures to safeguard. "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.
[11] On October 25, 2006 the senior prosecutor in this case, David McKercher, gave notice to the Attorney General that he is required to disclose or expects to disclose information that would potentially be injurious to international relations or national security or both. That notice concerned 444 documents consisting in total of about 1, 500 pages.
[12] On November 1, 2006 the Attorney General advised Mr. McKercher of his decision to authorise disclosure of part of the information and of the fact that (a) notice was given to the Attorney General and (b) that an application was being made to the Federal Court under subsection 38.04(2) of the Act. A Notice of Application was filed in the Court the same day together with a motion for directions.
[13] At the direction of Chief Justice Allan Lutfy, the Notice of Application and motion record was served on counsel for the respondent on November 2, 2006. The matter was thereafter case-managed by the Chief Justice pursuant to Rule 383 of the Federal Court Rules through a series of private teleconferences with counsel for both parties and ex parte conferences with counsel for the Attorney General.
[14] An ex parte affidavit attaching as exhibits 18 binders containing the 444 documents in unredacted form was filed by counsel for the applicant on November 8, 2006. The affidavit and exhibits have been kept confidential by the Court in a secure location. An additional four ex parte affidavits made by intelligence and law enforcement officers respecting the content of the binders were sworn and filed on behalf of the applicant between November 15 and 20, 2006. A private affidavit made by an R.C.M.P. officer attaching the redacted versions of the 18 binders as an exhibit was served on counsel for the respondent on November 21, 2006 and filed with the Court on November 23rd . An additional five private affidavits made by officers of several departments and agencies of the Government of Canada were served and filed on November 20, 2006.
[15] On November 16, 2006 Mr. McKercher gave a second notice to the Attorney General respecting an additional group of documents. The same day the Attorney General authorized disclosure of the fact that notice had been given with respect to the additional documents. On December 5, 2006, the Attorney General notified Mr. McKercher of his decision to authorize disclosure of part of the information contained in the documents. A further four ex parte affidavits were filed on behalf of the applicant on December 11, 2006 attaching as exhibits five additional binders of documents. Three private affidavits were served on the respondent together with the redacted versions of the five binders of exhibits and were filed with the Court on December 19, 2006. Counsel for the respondent conducted cross-examinations of five of the affiants who had made private affidavits on January 25 and 29, 2007.
[16] On February 6, 2007, the Chief Justice granted leave to the applicant to amend his Notice of Application dated November 1, 2006. An amended Notice of Application was filed on February 7, 2007 addressing both groups of documents for which protection is sought by the Attorney General. By order dated February 19, 2007, the Chief Justice fixed dates for the filing of the parties’ memoranda of fact and law.
[17] In accordance with section 38.11 of the Act, the teleconferences with counsel over which the Chief Justice presided in his capacity as case management judge were held in private. Similarly, the affidavits filed by the applicant and served on counsel for the respondent as evidence in support of the application and the cross-examinations of the affiants were initially treated as private by the Court and the parties. In this context, “private” means counsel for both parties participated but the conferences were not open to the public. Similarly, documents filed as private were served on the opposing party but were not publicly accessible through the Court Registry.
[18] On February 5, 2007, Chief Justice Lutfy rendered his decision in Toronto Star Newspapers Ltd. v. Canada, 2007 FC 128 [Toronto Star]. At issue was a motion which challenged the constitutionality of subsections 38.04(4), 38.11(1) and 38.12(2) of the Act. In particular the Toronto Star alleged that the impugned provisions infringed the open court principle, which is a core democratic value inextricably linked to the fundamental freedoms of expression and of the media protected under section 2(b) of the Canadian Charter of Rights and Freedoms, and that the infringement could not be justified under section 1.
[19] The provisions at issue respectively required that confidentiality be maintained in respect of all applications made pursuant to section 38; that section 38 application hearings be heard in private; and that confidentiality be maintained in respect of all court records related to a section 38 proceeding. As was noted by the Court at paragraph 18, the combined effect of subsections 38.04(4) and 38.12(2) in the case at bar was to deny the Toronto Star and the public generally access to the section 38 application and all court records associated with the designated proceeding. This, despite the fact that the existence of the proceeding was already public knowledge, and that certain portions of the proceeding did not concern secret information.
[20] The Chief Justice highlighted that there were in fact two types of hearings in a section 38 proceeding: sessions at which all of the parties are present but which are nonetheless closed to the public (private sessions) and sessions which take place in the absence of one or more of the parties (ex parte sessions): Toronto Star, above at para. 32. With respect to the former, the Chief Justice emphasized that there is no secret information disclosed. He noted further that the constitutionality of the later had not been raised in the case before him: Toronto Star, above at paras. 33-34. The Chief Justice also stipulated that his ruling was only applicable to those cases in which the existence of the designated proceeding had been made public: Toronto Star, above at para. 22.
[21] The Chief Justice outlined that it had in fact been accepted by both parties that the impugned provisions violated the open court principle and therefore infringed section 2(b) of the Canadian Charter of Rights and Freedoms: Toronto Star, above at para. 24. The focus of the decision was therefore on whether the impugned provisions could be saved under section 1 of the Charter, and if not, what the appropriate constitutional remedy was that should apply.
[22] By way of comparison to the Supreme Court of Canada decision in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3 [Ruby] wherein similar provisions of the Privacy Act, R.S.C. 1985, c. P-21 were considered, the Chief Justice noted that the Supreme Court had found in that case that the mandatory statutory requirement to exclude the public from portions of the review hearing when there existed no risk that national security information or foreign confidences could be disclosed, was overbroad. The Chief Justice held that the same reasoning applied with equal force in the context of section 38 proceedings, finding that “the impugned provisions do more than is minimally required to safeguard the secret information and therefore trench unduly on the open court principle”: Toronto Star, above at para. 70. He accordingly concluded that the impugned provisions failed at the minimal impairment branch of the Oakes test and could not be saved under section 1 of the Charter.
[23] In setting out the appropriate remedy, again referring to the Ruby decision by way of comparison, the Chief Justice read down the impugned sections to apply only to the ex parte representations provided for in subsection 38.11(2): Toronto Star, at para. 83. As in Ruby, the Chief Justice outlined that the effect of his decision was that private sessions in section 38 proceedings would be presumptively open to the public, where the existence of those proceedings was already public knowledge.
[24] Counsel for the parties were informed on February 15, 2007 that the undersigned had been designated by the Chief Justice to determine the section 38 application in this matter. At a conference with counsel on March 6, 2007 I advised them that I was adopting the Chief Justice’s reasons in Toronto Star as my own, and considering that the existence of the proceedings was already public knowledge, I would therefore apply section 38.11 in the present case as it had been read down in that decision. Thus the March 6, 2007 conference was open to the public and the formerly “private” affidavits and cross-examinations were subsequently made available for release to the public on request, by the Registry. Similarly, memoranda of fact and law filed by the parties were also made accessible to the public with a few minor redactions to black out certain names. The hearing of oral submissions from both parties on March 30, 2007 on the merits of the application was conducted in an open courtroom and these reasons are public.
[25] The applicant filed a separate ex parte Memorandum of Fact and Law and nine ex parte affidavits. The evidence of four witnesses was heard ex parte and in camera over the course of eleven hearing days in March during which 8 additional exhibits were filed. This evidence has been kept confidential as required by the statute.
[26] On March 15, 2007 counsel for the respondent served and filed a Notice of Constitutional Question indicating the respondent’s intent to challenge the constitutional validity of subsection 38.11(2) of the Act. The grounds cited by the respondent in the Notice were, in essence, that his Charter rights to a fair and public hearing and to make full answer and defence, and the open court principle, as protected by sections 7, 11(d) and 2(b) of the Charter, were unjustifiably infringed by the ex parte proceedings provided for by this subsection, and utilized in this case.
[27] On March 28, 2007 counsel for the respondent submitted a request that I disqualify myself from hearing the application by reason of my involvement in the development of amendments to section 38 which were adopted through the Anti-Terrorism Act, S.C. 2001, c.41, known before its enactment as Bill C-36. In reasons delivered at the outset of the hearing on March 30, 2007, I declined to recuse myself from hearing the application on the merits, but agreed to step aside to allow the constitutional question to be decided by another judge, not for the reason put forward by the respondent, but because of the ex parte evidence and submissions that I had already heard. I proceeded to hear argument from counsel for the parties on the merits of the application on the same date, advising them that I would reserve a decision until such time as the constitutional question was determined by another judge.
[28] In the course of the hearing on March 30, 2007 I reminded counsel for the respondent that it was open to him to request an opportunity to make ex parte representations to the court to assist it in determining what information might be of help to the respondent in making his defence. Counsel at that time indicated that anything that would tend to show what had been offered a material witness in exchange for his testimony would be useful. The respondent did not subsequently request an opportunity to make ex parte representations and did not provide any further submissions as to what information might be of assistance to his client.
[29] Arguments on the constitutional question were heard by the Chief Justice on April 4 and 19, 2007. While awaiting his decision I continued my review of the documents and read each of the redacted references in the approximately 1700 pages of material. As required by subsection 38.11(2), I heard ex parte oral representations from the applicant on April 17, 2007 and subsequently have received a number of responses in writing to questions I have raised. Counsel for the Attorney General has also provided, at my request, a table of concordance between the materials disclosed to the respondent and the exhibits in the 23 binders served upon him. This will be provided to counsel for the respondent to assist him in comparing the content of the binders to the other materials which he has received.
[30] Chief Justice Lutfy rendered his decision on April 30, 2007. I completed my deliberations in this matter following the release of that decision, wherein the Chief Justice dismissed the respondent’s motion. The Court found that section 38.11(2) was in accordance with sections 7 and 11(d) of the Charter, and justifiably infringed section 2(b): Canada (Attorney General) v. Khawaja, 2007 FC 463 at paras. 59 and 63 [Khawaja].
OVERVIEW OF THE INFORMATION
[31] The information at issue on this application is contained in 23 four inch binders consisting of 506 documents varying in size from a few pages to several hundred. Within the pages of these documents, which have largely been disclosed in unredacted form to the respondent, there are about 1700 pages containing the information which the Attorney General seeks to protect. While it took a considerable amount of time to read through the 23 binders, the 1700 pages are less than 2% of the total volume of 98, 822 pages of material disclosed to the respondent in the criminal proceedings. The claims for protection under section 38 range in scale from a series of successive pages entirely redacted to isolated and brief references scattered amongst many pages of unredacted material. In some documents, there are also extensive claims of privilege at common law or under section 37 of the Act which the Crown may assert at trial.
[32] At first impression, the material in the twenty-three binders consists, in large part, of the miscellaneous flotsam and jetsam that collects in police files in the course of a major criminal investigation. It is not evidence which the Crown will seek to introduce against the accused at trial. That evidence has been disclosed to the respondent. Nor is the information evidence of an exculpatory nature. Indeed it is difficult to see how it could be of assistance to the defence. The only realistic possibility in my view is that some of this material might be used, as counsel for the respondent has suggested, in cross-examination of witnesses at trial. I find even that use doubtful, having read each of the several thousand pieces of information.
[33] There is considerable repetition within the redacted documents, as the same information was often collected by each member of the investigation team as Project Awaken unfolded. It appears that the large team of investigators assembled for the project all attended the same briefing sessions, all took notes of the same information, prepared reports from their notes and thereafter repeatedly recycled the same content in various forms. Information provided on paper was also entered electronically into one or more of the several document management systems which the RCMP seems to have been operating simultaneously during the course of this investigation. The same information repeatedly appears in investigators notes and case files, in print-outs of the electronic entries, in periodic task and status reports and briefing notes to senior personnel. It does not become more material through repetition.
[34] The redacted pages in the first set of 23 binders served on the respondent and filed with the Court in November and December 2006 did not distinguish clearly between information subject to the section 38 claims for protection at issue in the present case and that which may be subject to other claims of privilege not at issue, such as under section 37 of the Act or at common law. It is apparent from my review of the material that there are many pages of redactions which include only sporadic or brief references for which section 38 claims are being made. This obscures the limited scope of these proceedings and confuses the role of this court with that of the trial judge who must determine whether any of the other claims of privilege can be sustained.
[35] To illustrate, document 4511 consists of one of the investigator’s notes for the period April 13, 2004 to August 23, 2005. The original notes comprise 187 sequentially numbered pages. The redacted version served on counsel for the respondent in the November binders consists of 74 pages. Page 32 of 74, containing the investigator’s notes for Wednesday, February 23, 2005, is blacked out almost completely in the redacted version. On that page there are two brief references for which section 38 claims are made. One is a single line naming persons who attended a meeting at 10:00 a.m. on that date and the other is to a three letter acronym for the name of an agency. The remainder of the redactions relate to other claims of privilege but it is not clear from the redacted document what is section 38 based and what is not or the grounds for claiming the privilege. There are many other non section 38 redactions in these pages.
[36] In an effort to address this problem, a fresh affidavit accompanied by a revised 23 volumes of redacted materials was served on the respondent on February 28, 2007 and filed with the Court on March 1, 2007. This new set is comprised of the same documents as those produced in this matter as exhibits to affidavits dated November 17 and December 19, 2006 with the exception that the new documents include the date the document was printed, the page number and a document identification number at the bottom of each page. The document identification numbers range from 0018 to 6938 corresponding to the number of documents disclosed to the respondent. A table of concordance between these numbers and those of the documents disclosed to the respondent was prepared at the Court’s request and will be provided to counsel for the respondent.
[37] The new set of documents distinguishes between the redactions related to section 38 of the Act and those related to other claims of privilege which the prosecution may seek to assert in the criminal proceedings. This was done by including a notation, “s.38 CEA” or “CEA s.38” where appropriate. Where a claim to protect the information under other types of privilege is being sought, there is a notation including the letter “V” and a number on the redacted information. This refers to “V – codes”, an RCMP internal classification system to identify information which may be subject to privilege claims. The V-code notations also appear in the margins of the documents contained in the original set of 23 binders for all of the redacted material including the section 38 claims. It showed, for example, whether the section 38 claim was for third party information or to protect operational techniques.
[38] While the intention in preparing the revised set of binders may have been to draw a clear distinction between the material subject to this application and any claim of privilege that might be raised before the trial judge under section 37 of the Act or at common-law, the practical effect was to provide rather less information to the respondent about the nature of the information for which a section 38 claim is made. By removing the V-codes from the redacted material subject to the section 38 claim, the reader is left with no inkling as to the type of information sought to be protected. It remains open to counsel for the respondent, as was acknowledged during the March 30, 2007 hearing, to compare the February binders with the earlier set in an effort to determine the general nature of the information for which a section 38 claim is being made.
[39] From my own review of the material and the evidence heard ex parte, the v-code notations do not always accurately reflect the content of the redacted information. For example, document 0025 contains five pages of notes made by a member of the investigative team on February 29, 2004. The cover sheet bears as the reason for non-disclosure the code V-11. On Exhibit 1 to the cross-examination of Inspector Chesley Parsons on January 25, 2007 this code is said to relate to the protection of the privacy or security of a third party. While the names of third parties appear in document 0025, the justification advanced by the Attorney General on the application for the protection of the redacted information in this document is that it reveals investigative techniques and operational methods.
[40] To address this concern, the schedule prepared by the Court briefly describes the nature of the claims for which protection is sought by the Attorney General with respect to the section 38 redactions in each document.
[41] Subject to some additional pieces of information that had been overlooked by the investigators in the course of vetting these documents for the purpose of this application and which were identified by witnesses in the course of the ex parte hearings, the portions of each document which the Attorney General seeks to protect from disclosure are clearly highlighted in colour in the material filed with the court.
[42] The ex parte affidavits filed with the court identify and categorize in detail the nature of the risks of injury claimed by the Attorney General with specific reference to each document containing sensitive or potentially injurious information. The testimony of the witnesses heard in camera and ex parte elaborated upon these concerns. Each witness first provided an overview of the nature of the interest of each agency in the material before the court, their relationships with foreign agencies and their concerns about the injuries that might result from disclosure of the information. This evidence was similar to that in the public affidavits.
[43] Counsel for the Attorney General then took each ex parte witness to the documents contained in the 23 binders. The witnesses were asked to describe each item of redacted information and explain why it was considered necessary to protect it from disclosure. As each page containing redactions was addressed, the paper copy bearing the coloured highlighting was presented to the witness and the court reviewed the same page. The court directed questions to the witness, in the nature of cross-examination, to explore and challenge the claims for protection. Where the information was subject to third party express or implied caveats, questions were directed at determining what efforts had been made or continued to be made to seek the consent of the third parties to disclosure. In particular, the witnesses were pressed as to what knowledge they had as to the UK proceedings and the evidence publicly disclosed therein. The relevance of the v-codes was also explored.
[44] Approximately 350 of the 506 documents contain what may be described generally as internal administrative information such as the names, telephone or fax numbers of agency employees; internal file numbers; or references to the existence or identities of covert officers in Canada or abroad. As stated by counsel for the respondent at the public hearing on March 30, his client does not seek disclosure of this type of information.
[45] While there is overlap among the claims found in the 506 documents, approximately 260 documents refer to the operational methods and techniques of the agencies and telecommunications systems. References to human sources (other than material witnesses) appear in at least 8 documents. These are also categories of information for which counsel for the respondent indicated that his client did not seek disclosure.
[46] Ongoing investigations into targets or persons of interest other than the respondent are the subject of information contained in 138 of the documents for which the Attorney General seeks protection. Approximately 140 documents related to information received in confidence from foreign third parties or to their involvement in the investigation, some of which was inadvertently disclosed as part of the disclosure process. This included, for example, references to the names and positions of officials who corresponded with the RCMP during the course of their investigation and footers in documents indicating to whom the content of the information was being released and that it was subject to originator control. Much of this information is innocuous, indeed banal, but forms part of documents subject to caveats permitting further disclosure solely on consent. I expect that the name of the US Legal Attaché in Ottawa at the relevant time is within the public domain. It is difficult to understand how disclosure of his name would cause injury but where the name and office appears as part of a document, the entire contents are subject to such caveats. Disclosure of this information would not, in any event, assist the respondent.
The United Kingdom information
[47] Some of the confidential information received was provided by UK intelligence and law enforcement agencies. As noted above, much of the evidence which the Crown will seek to introduce at the trial of the respondent was collected in Britain. My understanding is that this evidence has been fully disclosed to the respondent. Some of the evidence tendered by the prosecution in the Crevice trial was the subject of an evidentiary exclusion order and a publication ban imposed in the UK trial.
[48] A certified copy of the UK exclusion order and publication ban was filed in evidence by the applicant. The ruling was issued on Friday, January 13, 2006 and concerned the admissibility of evidence identifying persons (Mohammed Siddique Khan and Shehzad Tanweer) who were alleged to have associated with some of the Crevice defendants on occasions during 2003 and 2004. The two named individuals were, it is alleged, two of those involved in the bombings of the London underground system on July 7, 2005. The evidence, sought to be adduced by the prosecution, was excluded on the grounds that it was not probative of a fact in issue in the trial. The UK publication ban has now been lifted by the trial judge and the information which it covered is now public knowledge.
[49] The most significant document within the information received from the UK authorities which the Attorney General seeks to protect in these proceedings is an intelligence report. Evidence was received ex parte and in camera that the originating agency was asked whether the information could be disclosed in the present proceedings or had been disclosed in the Crevice trial. The foreign agency’s response, on record in the court file, was that there is no consent to disclose and further, that the report had not been disclosed in the Crevice trial. These inquiries were initially made when the section 38 application was being prepared in October, 2006 and repeated, at the court’s direction, during the March hearings.
[50] From my review of the material, this information is not evidence that will be used against the accused, nor does it go to exculpate him or to undermine the Crown’s case.
The FBI interviews of Mohammed Junaid Babar
[51] A large proportion of the substantive third party information which the Attorney General seeks to protect in these proceedings is contained in a series of reports of interviews with Mohammed Junaid Babar conducted by FBI agents in New York City following his return to the US in March 2004. He was initially picked up as a material witness. These reports were provided to the RCMP in the form of “letterhead memoranda” with caveats restricting their further use or distribution without the express consent of the FBI. They appear, repetitively, in about 20 of the documents in the 23 binders as copies or prints of electronic versions of the originals and there is frequent reference to their content in other documents.
[52] Babar is a US citizen of Pakistan origin. He is alleged to have met members of the Crevice conspiracy in Pakistan and the UK. Babar entered into a plea agreement with the US Attorney for the Southern District of New York in June 2004 and subsequently pleaded guilty to five terrorism related charges including "conspiracy to provide material support or resources" to Al Qaeda. He testified in the UK trial under immunity and is expected to testify against the respondent.
[53] The reports of the FBI interviews with Babar in the letterhead memoranda do not consist of verbatim transcripts nor are they the actual notes taken by the agents during the interviews. Rather they appear to be abstracts of the agents’ notes.
[54] In preparation for the respondent’s trial, the RCMP requested that the FBI declassify and release the interview reports. The FBI declined to do so on the grounds that the documents contain information relating to ongoing operational issues. It is clear from the material itself that the FBI agents who interviewed Babar were interested in obtaining information about other matters that could possibly pose a threat to US security which Babar may have learned about during his travels, beyond those related to Crevice. Information of that nature is not material to the case against the respondent.
[55] The FBI reviewed all of the information they had obtained from Babar prior to June 2006 and provided an unclassified 99 page document that is found as document 6883 in the binders. That document has been disclosed to counsel for the respondent. I have carefully reviewed it and compared it to the FBI's letterhead memoranda containing the reports of the interviews in the 23 binders. During the ex parte hearings I closely examined an RCMP witness with regard to the accuracy of the document and at my request, an exhibit was filed with the court identifying the differences between the unclassified document and the interview reports. Those differences are not, in my view, material to the respondent’s case.
[56] The materials also contain the statement taken from Babar by two RCMP officers and a member of the Metropolitan Police on March 14, 2005. That statement has been disclosed to the respondent in its entirety and is found in document 2046. The Attorney General seeks to protect just two lines of that 67 page document which refer to the subject of an on-going investigation. Those two lines will not assist the respondent.
[57] Other information of significance contained in the 23 binders relating to Babar concerns the plea agreement he entered into with the US authorities. The formal agreement is set out in a letter to his attorney dated May 28, 2004 from the office of the United States Attorney for the Southern District of New York. That letter was entirely redacted in document 1676 served on the respondent in these proceedings. At the court's direction, a further inquiry was made concerning the position of the US authorities with respect to this document and they have consented to its release. The transcript of Babar’s pleas before the US District Court on June 3, 2004 was initially sealed by order of that court. That order was subsequently rescinded. The transcript of his arraignment and pleas has been disclosed to the respondent. Babar is to be sentenced by the District Court following the completion of his testimony in the UK and Canadian proceedings.
LEGISLATIVE FRAMEWORK
[58] Subsections 38.01(1) and 38.02(1), and sections 38.04 and 38.06 of the Act are of particular relevance to the present application. They state the following:
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