Canada (National Inquiry into Missing and Murdered Indigenous Women and Girls) v. Canada (Attorney General)

Canada (National Inquiry into Missing and Murdered Indigenous Women and Girls) v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-05-27
Neutral citation
2019 FC 741
File numbers
T-502-19
Decision Content
Date: 20190527
Docket: T-502-19
Citation: 2019 FC 741
Ottawa, Ontario, May 27, 2019
PRESENT: Mr. Justice Mosley
BETWEEN:
THE NATIONAL INQUIRY INTO MISSING AND MURDERED INDIGENOUS WOMEN AND GIRLS
Applicant
and
THE ATTORNEY GENERAL OF CANADA on behalf of THE RCMP, DEPUTY COMMISSIONER CURTIS ZABLOCKI, and CHIEF SUPERINTENDENT JAMES ZETTLER
Respondents
JUDGMENT AND REASONS (REDACTED)
I. Introduction
[1] The public interest in the work of the National Inquiry into Missing and Murdered Indigenous Women and Girls (the National Inquiry or Commission) cannot be overstated in light of the appalling and tragic record of violence and other abuse they have suffered for many years. The importance of that work is underscored by the fact that, for the first time ever, each of Canada’s fourteen federal, provincial and territorial governments joined in issuing Orders in Council under their respective public inquiries legislation to empower the National Inquiry.
[2] The matters to be determined on this application do not call into question the National Inquiry’s importance. Rather, they address the issue of whether, in the particular context in which they have arisen, the public interest in the National Inquiry’s work outweighs the public interest in protecting two ongoing criminal investigations from the risk of disclosures that could compromise the investigations and any prosecutions that may ultimately result.
[3] The two investigations in question – one involving a murdered Indigenous woman and the other a missing Indigenous woman – were the subject of certificates issued by Divisional Commanders of the Royal Canadian Mounted Police (RCMP) under section 37 of the Canada Evidence Act, RSC 1985, c C-5, objecting to the disclosure of information to the National Inquiry on the ground of a specified public interest. The two Divisional Commanders certified that the disclosure of the files in each case would be injurious to ongoing criminal investigations into the death and the disappearance of the two Indigenous women.
[4] It is important to note at the outset that in supporting the work of the National Inquiry, the RCMP disclosed 119 investigative files, including 23 active files. Nothing in the record before the Court indicates that the issuance of the certificates in respect of the two cases in question was intended to impede the work of the National Inquiry, or that they were issued in bad faith to shield the RCMP from embarrassment. The Court is satisfied that both certificates were issued to prevent encroachment on a legitimate public interest.
[5] Having considered the evidence submitted and the oral and written representations of counsel for the parties, and for the reasons that follow, the Court is satisfied that the certificates must be upheld.
[6] This application has been subject to a confidentiality order from the outset, and a further confidentiality order was issued to govern the hearing in open court at Vancouver on May 13 and 14, 2019. These reasons have been written to be made public. The Court has chosen not to identify the murdered and missing Indigenous women or the locations in which their cases are under investigation. While it would not be difficult to determine their names from information in the public domain, the Court considers it appropriate to continue to shield their identities in the interests of their privacy and that of their families, and in order to protect the investigations. For the same reasons, certain documents filed in this proceeding will be kept under seal and certain information in these reasons has been redacted.
II. Background
[7] The National Inquiry was established on September 1, 2016, by Order in Council PC 2016-737, (2016) C Gaz II, 3425 (published August 24, 2016). As noted, all the provinces and territories chose to also participate. The terms of the provincial and territorial Orders mirror those of the Federal instrument, with variations to apply to each jurisdiction. The same five Commissioners were appointed in each order, one of whom subsequently resigned.
[8] Pursuant to the federal Terms of Reference, a copy of which is attached as Annex A, the National Inquiry’s Final Report was due on November 1, 2018, and its mandate was to expire on December 31, 2018. In June 2018, the deadline for delivering the Final Report was extended to April 30, 2019. In April 2019, Canada extended the deadline to May 30, 2019. The National Inquiry has a month thereafter to complete matters such as transferring its records to the Privy Council Office for retention and storage in the National Archives.
[9] The Terms of Reference, among other things, directed the Commissioners to inquire into and report on the:
i. systemic causes of all forms of violence – including sexual violence – against Indigenous women and girls in Canada, including underlying social, economic, cultural, institutional and historical causes contributing to the ongoing violence and particular vulnerabilities of Indigenous women and girls in Canada, and
ii. institutional policies and practices implemented in response to violence experienced by Indigenous women and girls in Canada including the identification and examination of practices that have been effective in reducing violence and increasing safety.
[10] The Commissioners were also instructed to conduct the National Inquiry as they considered appropriate and to make recommendations on concrete and effective action that can be taken to remove systemic causes of violence and to increase the safety of Indigenous women and girls in Canada. The Commissioners were directed to perform their duties without expressing any conclusion or recommendation regarding any person or organization’s civil or criminal liability and to perform their duties in such a way as to ensure that the National Inquiry’s conduct does not jeopardize any ongoing criminal investigation or criminal proceeding.
[11] If the Commissioners have reasonable grounds to believe that any information obtained in the course of the National Inquiry may be used in the investigation or prosecution of an offence under the Criminal Code, RSC 1985, c C-46, they were authorized to remit that information to the appropriate authorities. Further, they were authorized to remit to the appropriate authorities any information that was obtained in the course of the National Inquiry that the Commissioners have reasonable grounds to believe relates to misconduct.
[12] In conducting the National Inquiry, the Commissioners were authorized to engage the services of the experts and other persons referred to in section 11 of the Inquiries Act, RSC 1985, c I-11, including technical experts and legal counsel. Under this authority, the National Inquiry established a Forensic Document Review Team (FDRT).
[13] According to a Transparency Statement issued by the National Inquiry, the FDRT’s mandate is to conduct a forensic review of police and related institutional files to:
identify potential systemic barriers or problems in areas of weakness relating to the protection of Indigenous women, girls and 2SLGBTQ individuals; and,
make findings and recommendations about the systemic causes of the disappearances and deaths of Indigenous women, girls and 2SLGBTQ individuals and acts of violence against them.
[14] As described, the FDRT was to function under the supervision of the National Inquiry’s Research Director and be advised by a National Family Advisory Circle and Grandmother Advisors. The National Inquiry would refer a selection of cases to the FDRT, drawn from those pertaining to the more than 1,700 persons or families that had engaged with or registered to engage with the National Inquiry through its Community Hearings and Statement Gathering events. The object was to obtain and analyse related police, coroner and Crown Counsel files, as well as Court records and other information from relevant institutions.
[15] The information received was to be kept strictly confidential and used for the FDRT’s analysis and recommendations in accordance with the National Inquiry’s Terms of Reference and a document entitled Legal Path: Rules of Respectful Practice.
[16] The record in this proceeding does not disclose what files were requested or obtained from law enforcement agencies other than the RCMP or from coroners, Crown Counsel or the Courts.
[17] For the purposes of the intended review of the two files in question, the FDRT would be comprised of two lawyers, an investigator and one support staff, all of whom had received Secret-level security clearances from the Privy Council Office. The Court was informed that in view of the size of the files, the FDRT intended to employ the services of a document management team within the law firm of McCarthy Tétrault to examine the files, employing a checklist developed by the FDRT investigator.
[18] At the National Inquiry’s outset, the RCMP assigned a team of officers and civilian employees at National Headquarters in Ottawa to manage the production of RCMP documents to the inquiry. Inspector Kurtis Kamotzki was the acting, and subsequently the appointed, Operations Officer overseeing this work. In his affidavit sworn on April 9, 2019, Inspector Kamotzki avers that the RCMP asked the National Inquiry to issue subpoenas for the files it wished to have produced so that the RCMP would be permitted, under the Privacy Act, to disclose any relevant personal information contained in the files.
[19] The RCMP provided an initial group of ten investigative files in July 2017 as a pilot project to inform the Commission staff. The RCMP and counsel from the Public Prosecution Service of Canada also facilitated a homicide file review exercise for the Commission.
[20] For each RCMP investigative file requested by the National Inquiry or the FDRT, the Division responsible for the investigation was asked to confirm whether it was active or concluded. If the investigation was concluded, Inspector Kamotzki averred, the file was produced. If the file was an active investigation, the responsible Division was asked to assess whether the file’s disclosure to the National Inquiry would jeopardize the investigation, the laying of charges or the prosecution of the case. This assessment was done on a case-by-case basis by a major crime investigator in the Division. The active files that could be disclosed without jeopardizing an ongoing investigation were then produced, according to Inspector Kamotzki.
[21] Inspector Kamotzki’s affidavit sets out a chronology of events relating to the requests for and production of files to the National Inquiry, supported by exhibits including correspondence between Commission counsel and RCMP counsel.
[22] The National Inquiry requested production of the two files at issue in this application on December 22, 2017, along with twenty-five other files. The headquarters team did not review the content of the two files at issue other than to identify their “digital footprint,” or size. The missing Indigenous woman file was found to consist of some 29,000 pages and the murdered Indigenous woman’s file of some 25,800 pages.
[23] RCMP counsel informed Commission counsel on January 4, 2018 that the two files were active investigations and the RCMP was considering what, if any, information could be shared with the Commission without jeopardizing the ongoing investigations. On January 9, 2018 RCMP counsel shared a case summary regarding the missing woman for Commission counsel’s information.
[24] On January 30, 2018, RCMP counsel confirmed that the other file at issue – that relating to the murdered woman case – was an active investigation and would not be produced based on public interest privilege. On April 19, 2018 the National Inquiry requested production of |||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||| a RCMP detachment in relation to that investigation. The National Inquiry was directed to the |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| to request the |||||||||||||||||||||||||||||| which was produced.
[25] The FDRT issued a subpoena on September 20, 2018 for the production, by October 12, 2018, of all documents in the RCMP’s possession related to 70 individuals. On September 26, 2018, RCMP counsel wrote to Commission counsel identifying the two investigative files at issue in this application as files over which the National Inquiry had previously been advised the RCMP was claiming public interest privilege.
[26] On October 30, 2018, RCMP counsel made a motion to the National Inquiry Commissioners seeking an order to vacate or vary the terms of the FDRT’s September 20, 2018 subpoena and a further FDRT subpoena dated September 27, 2018 that had been served on October 1, 2018. The latter subpoena was for production of all documents in the RCMP’s possession related to 89 individuals, also by October 12, 2018.
[27] The motion was heard on November 7 and November 14, 2018 on an in camera and ex parte basis. Other parties with standing before the National Inquiry did not participate. As part of the relief ordered, the RCMP was required to deliver written rationales for the public interest privilege claims in twelve files, including the claims at issue in this application, to the FDRT by December 5, 2018. The rationales were provided on a confidential basis the same day to Commission counsel.
[28] On January 10 and 11, 2019, six RCMP major crimes investigators were interviewed by Commission counsel and questioned about the basis for the public interest privilege claims. This was further to a process suggested by Commission counsel in which the RCMP agreed to participate. The interviews were conducted in camera and ex parte. Following the interviews, commission counsel sought rulings for production of ten of the twelve files (the National Inquiry withdrew its objection to the public interest privilege claim over one file and the RCMP withdrew its public interest privilege claim over another). Orders for the production of nine of the investigation files were issued, including for the two files at issue in this application. The RCMP withdrew its privilege claim for one of the other files and produced the files for the remaining six cases, further to the Commission’s orders.
[29] On February 13, 2019 counsel for the Respondents wrote to Commission counsel to advise that the RCMP would invoke Canada Evidence Act section 37 with respect to the two files at issue in this application. Upon being informed on March 14, 2019 that Commission counsel had instructions to challenge the section 37 claims, the RCMP delivered the certificates on the same date. The National Inquiry then filed this application on March 22, 2019.
[30] Inspector Kamotzki was cross-examined on his affidavit on April 15, 2019. The cross-examination focused on the nature and extent of RCMP cooperation with the National Inquiry, including the staffing levels employed. Inspector Kamotzki testified that it reached a high of 30 regular and civilian members and was down to 18 on the date he was examined. In addition, when a decision was made to disclose a file, a team of evidence management employees in the Department of Justice would assist in identifying and redacting any information subject to class privileges.
[31] The |||||||||||||||||||||||||| pertaining to the investigation of the murdered woman’s case was produced and used for the purpose of Inspector Kamotzki’s cross-examination. The report was also included in this application record. Portions of the |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||| by the murdered woman’s family and were produced to Inspector Kamotzki as exhibits during his cross-examination. Also produced were news reports from June 2015 regarding the release of a portion of |||||||||||||||||||||||||||||||||||||| and RCMP Internet pages identifying the victim and requesting the public’s assistance in the investigation.
[32] Also put to Inspector Kamotzki was a media report from 2017 regarding the case of the missing Indigenous woman. That report included a statement from |||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
III. Procedural History
[33] This application was dealt with on an expedited basis. The initial Notice of Application was removed from the public record due to confidentiality concerns and the parties agreed that the application would be specially managed. A case management conference was held on April 1, 2019. Further to directions from the Court, a Notice of Motion for a confidentiality order on consent was received on April 4, 2019.
[34] The order was granted on April 5, 2019, listing documents to be filed confidentially and authorizing the filing of an Amended Notice of Application without information that may identify the victims and their families. A considerable number of documents were thereafter filed under seal with leave of the Court.
[35] On April 12, 2019, further directions were issued with respect to the subsequent steps to be undertaken. An order was issued on the same date regarding the filing of the Respondents’ public and confidential affidavit evidence and cross-examination thereon, to be completed by April 15, 2019. An ex parte hearing before the application judge was scheduled for April 26, 2019 in Ottawa, and the hearing of the application was set down for May 13 and 14, 2019 at Vancouver.
[36] In addition to the public and confidential affidavits of Inspector Kamotzki, the Respondents filed the confidential affidavits of two RCMP investigative team leaders. The Applicant filed three affidavits with extensive exhibits to introduce documents, including correspondence between the parties.
[37] As noted above, on April 26, 2019, the Court presided over an in camera, ex parte hearing in which the two RCMP investigative team leaders gave evidence about the status of the two files in question. The officers’ file review notes were provided to the Court. After a brief examination of each officer by Respondents’ counsel, the officers were closely questioned by the Court relying, in part, on material submitted by the Applicant, including a list of questions for each officer. This hearing lasted over six hours. Further to the Court’s direction, a summary of the in camera, ex parte hearing was prepared by Respondents’ counsel, approved by the Court and forwarded to Applicant’s counsel.
[38] During the case management conference on April 12, 2019, the Court had advised counsel that it may be necessary to conduct at least part of the hearing on the application in camera to preserve the confidentiality of certain information pending a decision on the section 37 certificates while respecting the open Court principle as much as possible in the circumstances of this proceeding.
[39] In written representations and a case management conference held on May 7, 2019, the Respondents took the position that the hearing of the application should be primarily if not entirely in camera, given the difficulty of addressing the issues without discussing information subject to the confidentiality order. The Applicant argued that most of the hearing could be public. The Court issued a direction that the hearing would begin in public at which time those present, including any members of the audience, would be invited to make submissions on whether the matter should proceed in camera. On May 9, 2019, the Respondents advised the Court that they had changed their position regarding the possibility of a public hearing and were of the view that most of it could be heard in public. During a case management conference on May 10, 2019, the Court indicated that the hearing would begin on May 13, 2019 in an open courtroom and would continue, if necessary, as a closed proceeding.
[40] At the opening of the hearing on May 13, 2019, counsel for the Canadian Broadcasting Corporation (CBC) requested to be heard and was granted standing for the limited purpose of making submissions on whether any part of the hearing could be conducted in camera. CBC counsel provided written representations and authorities and made oral submissions. The Court also heard from Applicant’s counsel, who supported CBC’s position, and Respondents’ counsel, who maintained their position.
[41] The Court directed counsel, including CBC counsel, to confer on the possible terms of a further confidentiality order that would permit the entire hearing to be conducted in open Court while protecting the information listed in the April 5, 2019 confidentiality order. That was done, and the order was issued before the hearing continued. The persons present in the Courtroom during the hearing were advised that certain information could not be published, and counsel were careful to remind them of that restriction when it was necessary to refer to that information during their argument. Media representatives remained in the Courtroom throughout the hearing and subsequently reported on it without disclosing the sensitive information.
IV. Relevant Legislation
Specified Public Interest
Renseignements d’intérêt public
Objection to disclosure of information
Opposition à divulgation
37 (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a Court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the Court, person or body that the information should not be disclosed on the grounds of a specified public interest.
37 (1) Sous réserve des articles 38 à 38.16, tout ministre fédéral ou tout fonctionnaire peut s’opposer à la divulgation de renseignements auprès d’un tribunal, d’un organisme ou d’une personne ayant le pouvoir de contraindre à la production de renseignements, en attestant verbalement ou par écrit devant eux que, pour des raisons d’intérêt public déterminées, ces renseignements ne devraient pas être divulgués.
Obligation of Court, person or body
Mesure intérimaire
(1.1) If an objection is made under subsection (1), the Court, person or body shall ensure that the information is not disclosed other than in accordance with this Act.
(1.1) En cas d’opposition, le tribunal, l’organisme ou la personne veille à ce que les renseignements ne soient pas divulgués, sauf en conformité avec la présente loi.
Objection made to superior Court
Opposition devant une cour supérieure
(2) If an objection to the disclosure of information is made before a superior Court, that Court may determine the objection.
(2) Si l’opposition est portée devant une cour supérieure, celle-ci peut décider la question.
Objection not made to superior Court
Opposition devant une autre instance
(3) If an objection to the disclosure of information is made before a Court, person or body other than a superior Court, the objection may be determined, on application, by
(3) Si l’opposition est portée devant un tribunal, un organisme ou une personne qui ne constituent pas une cour supérieure, la question peut être décidée, sur demande, par:
(a) the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a Court established under a law of a province; or
a) la Cour fédérale, dans les cas où l’organisme ou la personne investis du pouvoir de contraindre à la production de renseignements sous le régime d’une loi fédérale ne constituent pas un tribunal régi par le droit d’une province;
(b) the trial division or trial Court of the superior Court of the province within which the Court, person or body exercises its jurisdiction, in any other case.
b) la division ou le tribunal de première instance de la cour supérieure de la province dans le ressort de laquelle le tribunal, l’organisme ou la personne ont compétence, dans les autres cas.
Limitation period
Délai
(4) An application under subsection (3) shall be made within 10 days after the objection is made or within any further or lesser time that the Court having jurisdiction to hear the application considers appropriate in the circumstances.
(4) Le délai dans lequel la demande visée au paragraphe (3) peut être faite est de dix jours suivant l’opposition, mais le tribunal saisi peut modifier ce délai s’il l’estime indiqué dans les circonstances.
Disclosure order
Ordonnance de divulgation
(4.1) Unless the Court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, the Court may authorize by order the disclosure of the information.
(4.1) Le tribunal saisi peut rendre une ordonnance autorisant la divulgation des renseignements qui ont fait l’objet d’une opposition au titre du paragraphe (1), sauf s’il conclut que leur divulgation est préjudiciable au regard des raisons d’intérêt public déterminées.
Disclosure order
Divulgation modifiée
(5) If the Court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection was made under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs in importance the specified public interest, the Court 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 encroachment upon the specified public interest resulting from disclosure, authorize the disclosure, subject to any conditions that the Court considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
(5) Si le tribunal saisi conclut que la divulgation des renseignements qui ont fait l’objet d’une opposition au titre du paragraphe (1) est préjudiciable au regard des raisons d’intérêt public déterminées, mais que les raisons d’intérêt public qui justifient la divulgation l’emportent sur les raisons d’intérêt public déterminées, 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 au regard des raisons d’intérêt public déterminées, 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.
Prohibition order
Ordonnance d’interdiction
(6) If the Court does not authorize disclosure under subsection (4.1) or (5), the Court shall, by order, prohibit disclosure of the information.
(6) Dans les cas où le tribunal n’autorise pas la divulgation au titre des paragraphes (4.1) ou (5), il rend une ordonnance interdisant la divulgation.
Evidence
Preuve
(6.1) The Court may receive into evidence anything that, in the opinion of the Court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence.
(6.1) Le tribunal 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.
When determination takes effect
Prise d’effet de la décision
(7) An order of the Court that authorizes disclosure does not take effect until the time provided or granted to appeal the order has expired or, if the order is appealed, the time provided or granted to appeal a judgment of an appeal Court that confirms the order has expired and no further appeal from a judgment that confirms the order is available.
(7) L’ordonnance de divulgation prend effet après l’expiration du délai prévu ou accordé pour en appeler ou, en cas d’appel, après sa confirmation et l’épuisement des recours en appel.
Introduction into evidence
Admissibilité en prevue
(8) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (5), but who may not be able to do so by reason of the rules of admissibility that apply before the Court, person or body with jurisdiction to compel the production of information, may request from the Court having jurisdiction under subsection (2) or (3) an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that Court, as long as that form and those conditions comply with the order made under subsection (5).
(8) La personne qui veut faire admettre en preuve ce qui a fait l’objet d’une autorisation de divulgation prévue au paragraphe (5), mais qui ne pourrait peut-être pas le faire à cause des règles d’admissibilité applicables devant le tribunal, l’organisme ou la personne ayant le pouvoir de contraindre à la production de renseignements, peut demander au tribunal saisi au titre des paragraphes (2) ou (3) 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, pourvu que telle forme ou telles conditions soient conformes à l’ordonnance rendue au titre du paragraphe (5).
Relevant factors
Facteurs pertinents
(9) For the purpose of subsection (8), the Court having jurisdiction under subsection (2) or (3) shall consider all the factors that would be relevant for a determination of admissibility before the Court, person or body.
(9) Pour l’application du paragraphe (8), le tribunal saisi au titre des paragraphes (2) ou (3) prend en compte tous les facteurs qui seraient pertinents pour statuer sur l’admissibilité en preuve devant le tribunal, l’organisme ou la personne.
V. Issues
[42] The only issue for this Court to determine is whether to uphold the certificates and thereby prevent disclosure to the National Inquiry of the documents relating to the death of the murdered indigenous woman and to the disappearance of the missing indigenous woman, or to order the documents disclosed in whole, in part or in summary form, or to order disclosure of a written admission of facts relating to the information, all subject to any conditions the Court considers appropriate.
[43] This Court will uphold the certificates and prevent disclosure of the information if it concludes that disclosure would encroach upon a specified public interest, namely investigative privilege, and that the public interest in disclosure does not outweigh in importance this specified public interest.
VI. Analysis
A. Process
[44] Section 37’s purpose is to allow the Crown “to object to disclosures on public interest grounds”: R v Brassington, 2018 SCC 37 at para 31. The Crown’s ability to object to disclosure on public interest grounds does not arise only where there is compulsory disclosure in open Court; out of Court and/or voluntary disclosures may be equally harmful: Brassington, above at para 31. Disclosure of sensitive information can have consequences for third parties and the administration of justice: Brassington, above at para 31.
[45] There is no specific process to follow for section 37 objections; the Federal Court “has full discretion to choose its own procedure based on the circumstances before it”: Canada (Attorney General) v Chad, 2018 FC 319 at para 10 [Chad #1]. In choosing its procedure, the Federal Court “should consider the nature of the public interest at stake, the factual and statutory context within which the [party] objects to disclose information, as well as the sensitivity of the redacted material”: R v Pilotte (2002), 156 OAC 1 at paras 52, 60, 163 CCC (3d) 225 (Ont CA). The Court should consider the opposing party’s submissions on the claimed privilege: Chad #1, above at para 27. The presiding judge can hold case management conferences before and after closed proceedings to seek further submissions and identify the questions the opposing party would like posed to the person claiming public interest: Chad #1, above at paras 28–29.
[46] The Court may receive into evidence, and base its decision on, anything that it deems reliable and appropriate, even if it would not otherwise be admissible under Canadian law: Canada Evidence Act, s 37(6.1). Still, the Crown must ground their application on “specific and concrete assertions” and “must present sufficient evidence to convince the Court”: Chad #1, above at para 15.
[47] The Crown may need to file evidence beyond their certification: Chad #1, above at para 16. Where the Crown allows the opposing party to review disputed information in order to show that it is irrelevant, and advises that issues of privilege or immunity are still to be determined despite the review, the Crown will not have waived their claimed public interest: Canada (Attorney General) v Tepper, 2016 FC 307 at paras 11–12.
[48] Courts have recognized investigative privilege as a specified public interest under section 37: PJ et al v The Attorney General of Canada, 2000 BCSC 1780; R v Amer, 2017 ABQB 651. However, investigative privilege is not a class privilege; it is a narrow basis for secrecy and is determined on a case-by-case basis: R v Toronto Star Newspaper Ltd, [2005] OTC 1112 at para 14, 204 CCC (3d) 397 (Ont Sup Ct).
[49] This is a de novo proceeding. It is not a judicial review of the reasonableness or correctness of the decisions made by the National Inquiry Commissioners. While the Court may consider the rulings of the Commissioners, and may find them persuasive, the Court owes no deference to those rulings and must make its own determinations based on the facts and the law.
[50] In this proceeding, the Court considered that it would be necessary to conduct an ex parte and in camera hearing to receive the oral testimony of the two investigative team leaders in order to determine whether the privilege claims were valid and at risk of encroachment. In doing so, the Court requested and received, in advance, written representations from the National Inquiry, including statements of what the National Inquiry knew about the two cases and questions that they proposed should be put to the two officers.
[51] The Court recognizes that this process is not equivalent to providing a full opportunity to cross-examine the two officers, but the representations and proposed questions were helpful. One of the officers and the superior of the other had been interviewed by Commission counsel relating to the two cases and the answers were in the record. At the conclusion of the in camera hearing, the Court directed that a summary of the evidence be prepared and provided to National Inquiry counsel for the purposes of the hearing on May 13–14, 2019.
B. Section 37 analysis
[52] In its analysis, if the Court determines that disclosing the objected information would not encroach upon a specified public interest, the Court may order its disclosure: Canada Evidence Act, s 37(4.1); Wang v Canada (Public Safety and Emergency Preparedness), 2016 FC 493 at para 34. In a case where disclosure is objected to in order to protect an ongoing investigation, the person objecting to disclosure bears the onus of establishing that disclosure would have “a concrete deleterious effect on the ongoing investigation”: Wang, above at para 35.
[53] If the Court determines that disclosing the objected information would encroach upon a specified interest, but that the public interest in disclosure outweighs the specified public interest, the Court may, after considering the form of disclosure and conditions to disclosure that are most likely to limit encroachment from disclosure, order disclosure, subject to appropriate conditions, if any, of all of the objected information, part of the objected information, a summary of the objected information, or a written admission of facts relating to the objected disclosure: Canada Evidence Act, s 37(5); Wang, above at para 35.
[54] In determining whether the information should be disclosed, the Court must first determine whether it is relevant to the issues that are before the party seeking disclosure: Wang, above at para 47. The Court must make its own determination of relevance, even where the party seeking disclosure is of the view that the information is relevant: Wang, above at para 50. This requires a “clear understanding” of the exact issues at play: Wang, above at para 51.
[55] If the Court does not authorize disclosure under either subsection (4.1) or (5), it shall order that disclosure of the objected information is prohibited: Canada Evidence Act, s 37(6).
C. Findings on the specified public interest
[56] Having considered the evidence and the submissions of the parties, I am satisfied that the protection of ongoing police investigations, as specified in the certificates, is a legitimate public interest and that disclosing the information in the two files to the National Inquiry would encroach on that interest. The Supreme Court of Canada has concluded that there is a strong public interest in protecting documents related to law enforcement, including the confidentiality of police investigations: Michaud v Quebec (Attorney General), [1996] 3 SCR 3 at para 48, 138 DLR (4th) 423. As stated in Michaud at para 51, the state’s interest in protecting the confidentiality of its investigative methods remains compelling.
[57] I agree with the Respondents that the specified public interest lies here in preserving the confidentiality of the information collected by the RCMP in the two investigations and the integrity of any prosecution that may result. To establish encroachment on the specified interest, it is not necessary that the Respondents demonstrate that disclosure will necessarily endanger the investigations, only that it might: Amer, above at para 60; R c Mirarchi, 2015 QCCS 6629 at para 16; R c Minisini, 2008 QCCA 2188 at paras 54–55.
[58] The Applicant in these proceedings has argued that the Respondents have failed to demonstrate that there would be any concrete, deleterious effects from disclosure of the information to the National Inquiry. I disagree.
[59] I am satisfied, based on the ex parte hearing and submissions, that “the evidence supports a genuine, reasonably-based concern about the adverse effects” of disclosure on the two investigations: Amer, above at paras 55–56. That evidence directed my attention to, among other things, the form and extent of the investigations conducted thus far, the nature of the communities concerned, the history of violence in the vicinities, the risk of witness intimidation, the nature of the investigative strategies remaining open to the police and the possibility that the two cases could be linked to those of other missing or murdered Indigenous women.
D. Balancing of the competing public interests
[60] The interests at stake in these proceedings are both important. In reaching conclusions on the evidence put before me and the submissions received from counsel, I do not want to in any way diminish the importance of the National Inquiry’s work. As stated in the preambles to the Orders in Council that established the National Inquiry, the high number of deaths and disappearances of Indigenous women and girls in Canada is an ongoing national tragedy