BETWEEN:
TORONTO STAR NEWSPAPERS LIMITED
and KASSIM MOHAMED
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
REASONS FOR ORDER
LUTFY C.J.
[1] For some twenty-five years now, hearings in the Federal Court have been held in private for the determination of whether national security information should be disclosed, despite the objection of the Attorney General of Canada. The requirement for closed hearings applies even for those segments of the litigation where all the parties are present and no secret information is being reviewed by the Court. This proceeding is the first constitutional challenge to the mandatory statutory provisions requiring this degree of secrecy.
[2] Where the court sessions and the court records are available to all parties in the litigation, I have concluded that the confidentiality requirements infringe unjustifiably on the open court principle. The appropriate constitutional remedy is to read down the impugned statutory provisions to apply only to court sessions and court records when secret information is in play. The effect of this decision is that court sessions at which all of the parties are present and court records available to all of the parties are presumptively open to the public.
Factual Background
[3] In September 2004, Kassim Mohamed sued the Attorney General of Canada for damages and other relief, alleging that both the Royal Canadian Mounted Police and the Canadian Security Intelligence Service disclosed his personal information to foreign security agencies. In Mr. Mohamed’s view, this disclosure resulted in his two-week detention by Egyptian authorities. His action is pending in the Federal Court under court file no. T-1666-04 (the civil action).
[4] During the discovery process in the civil action, the Attorney General of Canada was notified that “potentially injurious information” or “sensitive information” as defined in section 38 of the Canada Evidence Act, R.S.1985, c. C-5 (secret information) was about to be disclosed. Secret information, in general terms, is information relating to international relations, national defence or national security.
[5] On January 5, 2006, after receiving this notification, the Attorney General of Canada launched a designated proceeding pursuant to sections 38 and following of the Act (sometimes referred to collectively as “section 38”) to have the Federal Court determine whether the secret information should be disclosed: Canada (Attorney General of Canada) v. Mohamed, court file no. DES-1-06 (the designated proceeding).
[6] On January 25, 2006, the Attorney General of Canada authorized counsel for Mr. Mohamed to disclose the existence of the designated proceeding. As early as August 2005, the Federal Court’s publicly accessible recorded entries of the civil action disclosed that the parties intended to seek relief under section 38. In effect, the Attorney General’s authorization merely confirmed what was publicly available four months earlier.
[7] Without the Attorney General’s authorization, which was made under section 38.03, the disclosure of the fact that an application had been made to the Federal Court would have been prohibited by paragraph 38.02(1)(c).
[8] As the result of this authorization, the Toronto Star Newspapers Limited (Toronto Star), which had been monitoring and reporting the civil action, was informed of the designated proceeding.
[9] On February 23, 2006, the Toronto Star advised the Federal Court of its intention to challenge the confidentiality provisions to which section 38 designated proceedings are subject. If the constitutional challenge were made within the designated proceeding, section 38 may have required the argument to be heard in private. Each of the parties and the Court preferred that the issue be adjudicated in open court.
[10] On April 19, 2006, counsel for the three parties agreed that the Toronto Star’s constitutional challenge would be adjudicated as a question of law pursuant to paragraph 17(3)(b) of the Federal Courts Act, R.S. 1985, c. F-7.
[11] On April 26, 2006, this proceeding was launched. The consent of the parties to proceed in this fashion removed the Toronto Star’s intervention from the secrecy of section 38 proceedings for adjudication in a public forum. The Court is grateful for the ingenuity and the cooperation of counsel in having this constitutional challenge resolved in open court.
[12] The first day of the public hearings took place on September 25, 2006. The second day, on October 18, 2006, focused on remedies.
The Impugned Provisions of Section 38
[13] The plaintiffs, the Toronto Star and Mr. Mohamed, challenge the constitutionality of three provisions of the Canada Evidence Act (the impugned provisions).
[14] First, the plaintiffs challenge subsection 38.11(1), which requires that section 38 application hearings be heard in private: “A hearing under subsection 38.04(5)…shall be heard in private…” (« Les audiences prévues au paragraphe 38.04(5)…sont tenues à huis clos… »).
[15] Second, the plaintiffs also impugn the constitutionality of two related provisions.
[16] Subsection 38.04(4) requires that confidentiality be maintained in respect of all applications made pursuant to section 38: “An application under this section is confidential. …” (« Toute demande présentée en application du présent article est confidentielle. … »).
[17] Similarly, subsection 38.12(2) requires that confidentiality be maintained in respect of all court records related to a section 38 proceeding: “The court records relating to the hearing, appeal or review are confidential. …” (« Le dossier ayant trait à l’audience, à l’appel ou à l’examen est confidentiel. … »).
[18] The combined effect of subsections 38.04(4) and 38.12(2) is to deny the Toronto Star access to the section 38 application and all court records associated with the designated proceeding.
[19] This proceeding has focused on the application and the hearing in the Federal Court. One would expect that the outcome of the constitutional challenge here would be the same for “appeals” in the Federal Court of Appeal and the Supreme Court of Canada, under sections 38.09 and 38.1 respectively, and for “reviews” under section 38.131. However, the parties’ agreed statement of facts, their memoranda of law and their oral submissions focused only on applications and hearings in the Federal Court. In the absence of an evidentiary record for proceedings in the appellate courts, this decision will be limited to the Federal Court.
[20] The impugned provisions as well as other relevant provisions of section 38 of the Canada Evidence Act are set out in full in Schedule A of these reasons. The plaintiffs are of the view that other provisions of section 38 may be unconstitutional. However, this proceeding is limited to the three impugned provisions.
[21] In an earlier decision, I noted the difficulties presented by the scope of paragraph 38.02(1)(c), which prohibits disclosing the existence of a section 38 application: Ottawa Citizen Group v. Canada (Attorney General of Canada), 2004 FC 1052 at paragraphs 35-40. I acknowledged the possibility of an exceptional case where the disclosure of the existence of a section 38 application may cause injury to legitimate government interests or perhaps even sensitive private interests. However, I added that the absence of judicial discretion in paragraph 38.02(1)(c) was, in my view, problematic. In reiterating my concern, I refer to paragraphs 38 and 40 of the decision:
There may be an exceptional case where the secrecy envisaged in section 38.02 may be warranted. In the more usual situation, however, where secret information is in issue, the necessity of a section 38 proceeding is made known publicly before the person presiding over the tribunal or court hearing. The Federal Court is required by section 38 to keep secret a fact which has been referred publicly in the court or tribunal from which the proceeding emanates. It is unlikely that Parliament could have intended that the drafting of section 38 would result in such a consequence.
[ … ]
It is unusual that a party to the litigation should be the sole arbiter to authorize the disclosure of information which is or should be public. A court should be seen as having reasonable control over its proceedings in the situation I have just described.
[22] The decision in this proceeding is premised on the fact that the existence of the designated proceeding has been made public. Until the constitutionality of the paragraph 38.02(1)(c) has been challenged and determined, these reasons are intended to apply only to those situations where knowledge of the existence of the section 38 proceeding has been disclosed to the public.
The Issues
[23] As set out in the parties’ agreed statement of facts, this proceeding raises the following constitutional questions (at paragraph 22):
1. Does s. 38.04(4) of the Canada Evidence Act constitute an infringement of the Toronto Star’s rights as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”)? If so, is the infringement justified under s. 1 of the Charter?
2. Does the portion of s. 38.11(1) of the Canada Evidence Act which states that “a hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall be heard in private” constitute an infringement of the Toronto Star’s rights as guaranteed by s. 2(b) of the Charter. If so, is the infringement justified under s. 1 of the Charter?
3. Does the first sentence of s. 38.12(2) of the Canada Evidence Act constitute an infringement of the Toronto Star’s rights as guaranteed by s. 2(b) of the Charter? If so, is the infringement justified under s. 1 of the Charter?
[24] The Attorney General of Canada agrees with the plaintiffs that the impugned provisions violate the open court principle, 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.
[25] Accordingly, the issues to be decided in this proceeding include:
▪ Are the impugned provisions saved under section 1 of the Charter?
▪ If not, what is the appropriate constitutional remedy?
[26] Put differently and in general terms, what is the justification for requiring closed hearings and maintaining the confidentiality of court documents where no secret information is disclosed? A review of the Federal Court’s experience with section 38 may be useful.
[27] An earlier version of section 38, which had been part of the Canada Evidence Act since 1982, also required that applications be heard in private. It is not apparent that this requirement was always respected where all parties were present and no secret information was being discussed: Mulroney v. Canada (Attorney General), [1997] F.C.J. No. 1 (QL) (T.D.) at paragraph 12; Moumdjian v. Canada (Security Intelligence Review Committee), [1995] F.C.J. No. 619 (QL) (T.D.) at paragraph 5.
[28] Section 38 was substantially amended in the Anti-Terrorism Act, S.C. 2001, c. 41. Schedule B to these reasons lists the section 38 proceedings which have been publicly disclosed under the new provisions. Each has been case managed.
Proceedings under section 38 since the 2001 amendments
[29] A section 38 application is to be heard by the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. This provision has existed since 1982.
[30] All hearings in a section 38 proceeding are closed to the public: subsection 38.11(1). Case management conferences are also conducted in private.
[31] The exclusion of the public from all sessions of a section 38 proceeding is consistent with the secrecy envisaged by paragraph 38.02(1)(c), which prohibits the disclosure of “… the fact that an application is made to the Federal Court under subsection 38.04 …” (« … le fait qu'une demande a été présentée à la Cour fédérale au titre de l'article 38.04 … »).
[32] There are always 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).
[33] There is no secret information disclosed during the private sessions. The records available at the private sessions include the notice of application, the affidavits and the memoranda of law exchanged between the parties. None of these documents contains secret information. However, the combined effect of subsections 38.04(4) and 38.12(2) is to prevent the public from accessing and publicizing the contents of these documents.
[34] Ex parte representations are available as of right to the Attorney General of Canada and with leave of the presiding judge to every other party: subsection 38.11(2). The constitutionality of the requirement that these ex parte sessions are closed to the public has not been challenged in this proceeding.
[35] In every section 38 application, the Attorney General of Canada will make representations to the Court to confirm the prohibition of disclosure of the secret information in issue. Usually, the Attorney General of Canada will be the only party before the Court when these representations are made. However, if another party to the proceeding has possession of the same secret information in issue, it is possible for that party to be present when the ex parte submissions are made by the Attorney General of Canada.
[36] The procedures followed in a typical section 38 proceeding are set out in some detail in the parties’ agreed statement of facts, the relevant portions of which should be readily available on the public record:
5. The [Attorney General (A.G.)] advises that the procedure that is used in s. 38.04 Canada Evidence Act applications follows a number of customary steps, as follows.
6. First, following the issuance of a notice of application pursuant to s. 38.04, the A.G. files a motion for directions pursuant to paragraph 38.04(5)(a) of the Canada Evidence Act. In his motion material, the A.G. identifies all parties or witnesses whose interests he believes may be affected by the prohibition of disclosure of information, and may suggest which persons should be formally named as responding parties to the application. The A.G. requests that this portion of the motion for directions be adjudicated in writing.
7. After reading the A.G.’s motion material, the Federal Court will, pursuant to s. 38.04(5)(c) of the Canada Evidence Act, designate the responding parties to the application and order the A.G. to provide notice of the application to these persons by effecting service of the notice of application and motion for directions upon them.
8. The Federal Court will then convene a case conference with the parties to the application (i.e., the A.G. and the responding parties) to discuss the remaining issues raised by the A.G.’s motion for directions, including (1) whether it is necessary to hold a hearing with respect to the matter; (2) whether any other persons should be provided with notice of the hearing of the matter; and (3) whether the application should be specially managed with a formal schedule for the remaining procedural steps. These case conferences are confidential and are held in camera. The public is denied access to these case conferences and, generally speaking, only the parties to the application, their counsel, the presiding judge and designated Court staff are present.
9. Following adjudication of the motion for directions, a formal schedule is established to prepare the s. 38.04 Canada Evidence Act application for hearing. Like ordinary applications before the Federal Court, these schedules contemplate an exchange of affidavit evidence, cross-examinations on affidavits, the preparation of application records (including memoranda of fact and law) and an oral hearing before a designated applications judge. Unlike ordinary applications before the Federal Court, these schedules contemplate that portions of the affidavit evidence, application records and the oral hearings before a designated applications judge will be “ex parte” (i.e., only seen and heard by the A.G. and the Court), while others will be “private” (i.e., seen and heard by the parties and the Court, but not available to the public). Indeed, a typical s. 38.04 Canada Evidence Act application will have the following steps:
(a) the A.G.’s “private” affidavits are served on the responding party and filed with the Court;
(b) the responding party’s “private” affidavits are served on the A.G. and filed with the Court;
(c) the A.G.’s “ex parte” affidavits are filed with the Court;
(d) cross-examinations on the parties’ “private” affidavits take place out of court;
(e) the A.G.’s “private” application record is served on the responding party and filed with the Court;
(f) the A.G.’s “ex parte” application record is filed with the Court;
(g) the responding party’s “private” application record is filed with the Court; and
(h) a hearing is convened at which there are both “private” sessions (at which all the parties are present but the public is excluded) and “ex parte” sessions (at which only the A.G. is present).
10. “Private” affidavits are affidavits prepared by a party to the application that are filed and served on the other parties and to which reference can be made at the portions of the hearings at which all parties are present (i.e., the “private” Court sessions). Such affidavits are, however, confidential by virtue of s. 38.12(2) and cannot be disclosed to the general public.
11. The A.G.’s position is that the “private” affidavits produced by him for the purposes of a s. 38.04 Canada Evidence Act application attempt to set out, in general terms, the factual and principled justification for protecting the information in issue from public disclosure, that is to say why the disclosure of the information would be injurious to international relations, national defence or national security. The A.G. advises that these “private” affidavits do not detail the information in issue (i.e., the information covered by the Notice), nor do they contain other specific facts that would themselves constitute “sensitive information” or “potentially injurious information”. The A.G.’s stated purpose for filing and serving such “private” affidavits is to provide the responding parties seeking disclosure of the information in issue with as much factual material as possible so that they may understand why the A.G. is attempting to protect the information without compromising the information in issue or other sensitive/potentially injurious information regarding the need to protect the information in issue from disclosure.
12. “Ex parte” affidavits are affidavits that are filed by the A.G. and which are not served on the responding party. They are read only by the presiding judge and are only referred to at the ex parte portions of the hearings where the A.G. is present and the responding party is excluded (i.e., the “ex parte” Court sessions) pursuant to s. 38.11(2) of the Canada Evidence Act.
13. The A.G.’s position is that the “ex parte” affidavits produced for the purposes of a s. 38.04 Canada Evidence Act application attempt to set out, in specific terms, the factual justification for protecting the information in issue from public disclosure, that is to say why the disclosure of the information would be injurious to international relations, national defence or national security. These affidavits also contain the information in issue that is covered by the Notice.
14. “Private” application records are filed and served on the other parties and reference can be made to these records at the “private” Court sessions. “Ex parte” application records filed by the A.G. are not served on the other parties, are read only by the presiding judge and are only referred to at the “ex parte” Court sessions pursuant to s. 38.11(2) of the Canada Evidence Act.
15. At the “private” Court sessions at which all parties to the application are present, argument is tendered with respect to, inter alia, (1) the potential relevance of the information in issue (if the relevance is not conceded by the A.G.), (2) whether disclosure of the information would be injurious to international relations, national defence or national security and (3) whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. On the question of injury, such argument is presented in generalities by the A.G. because he does not wish to risk disclosure of the information in issue or risk compromising other sensitive/potentially injurious information.
16. At the “ex parte” Court sessions at which only the A.G. is present, the A.G. provides argument by reference to the “ex parte” affidavits with respect to whether disclosure of the information in issue would be injurious to international relations, national defence or national security. Counsel for the A.G. will be accompanied by the affiants who have sworn such affidavits so that they may be questioned by the presiding designated judge.
[37] The agreed statement of facts does not deal with the right of the non-government party to seek leave to make ex parte representations. In the Court’s experience to date, when ex parte representations are made by a party other than the Attorney General of Canada, only that party is present before the presiding judge. This may occur where the underlying proceeding is a criminal prosecution. Specifically, the accused may wish to make representations to the section 38 judge concerning the importance of disclosing the secret information to assist in defending the criminal charge. In such circumstances, the accused will prefer to make these submissions without disclosing to any other party the substance or detail of the defence in the criminal proceeding.
[38] In addition, concerning paragraphs 6 and 7 of the agreed statement of facts, the order designating the respondents to the section 38 proceeding will often issue only after the motion for directions has been served on the potential interested parties, usually at the Court’s request. This will occur particularly where these parties are aware that the Attorney General of Canada is in the process of filing the section 38 application. Paragraph 38.04(5)(a) requires the presiding judge to hear the representations of the Attorney General of Canada. There is no stipulation, however, that the identification of the interested parties must be done on an ex parte basis.
Analysis
A. The Constitutionality of the Impugned Provisions
[39] As often repeated now by the Supreme Court of Canada, the open court principle is a cornerstone of our democracy enshrined in section 2(b) of the Charter: Toronto Star Newspapers v. Ontario, [2005] S.C.J. No. 41 at paragraph 1; Vancouver Sun (Re), [2004] 2 S.C.R. 332 at paragraph 23; Ruby v. Canada (Solicitor General of Canada), [2002] 4 S.C.R. 3 at paragraph 53; Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at paragraph 23; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at 1339-40; and Attorney General of Nova Scotia v. Macintyre, [1982] 1 S.C.R. 175 at 187.
[40] All parties agree that the impugned provisions of section 38 infringe section 2(b) of the Charter. However, the defendant (sometimes referred to in these reasons as the Attorney General of Canada) argues that these infringements constitute reasonable limits on the open court principle and are demonstrably justifiable in a free and democratic society.
[41] The defendant bears the onus of establishing that the impugned provisions are saved by section 1 of the Charter in keeping with the justificatory test established in R. v. Oakes, [1986] 1 S.C.R. 103. In this proceeding, no section 1 affidavit evidence was filed.
[42] The plaintiffs concede that preventing the inadvertent disclosure of the secret information is a sufficiently pressing and substantial legislative objective as to satisfy the first branch of the Oakes test.
[43] Counsel for the Attorney General of Canada advanced the view that subsection 38.11(1) is saved by other provisions of section 38. More specifically, in his written submissions, counsel argued that subsection 38.04(5) confers upon the Federal Court the discretion to name the Toronto Star as a respondent to the application and the possibility of granting to the Toronto Star the same access to the Court records as it grants to Mr. Mohamed. Moreover, according to this view, the designated judge could order the Attorney General of Canada to notify the Toronto Star and grant to the Toronto Star the opportunity to make representations. With respect, this submission cannot be correct.
[44] Pursuant to paragraph 38.04(5)(a), the judge shall hear the representations of the Attorney General of Canada “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…” (emphasis added). Any such party or witness would then be designated as a respondent: paragraphs 6 and 7 of the agreed statement of facts.
[45] The same statutory provision also mandates the judge to hear the submissions of the Attorney General of Canada “concerning the persons who should be given notice of any hearing of the matter”.
[46] Under paragraph 38.04(5)(c), the judge then determines who should be given notice of the hearing. This will usually be done on the basis of submissions from the Attorney General of Canada and any other party who has been identified as having an apparent legal interest. This paragraph also authorizes the judge to order the Attorney General of Canada to notify such persons and determine the content and form of the notice.
[47] In my view, neither of these provisions allows the judge to designate the Toronto Star or any other member of the media as a respondent or a person to be given notice of the hearing.
[48] As early as February 7, 2006, the parties in the designated proceeding and this Court were made aware of the Toronto Star’s intention to challenge the constitutionality of those provisions which prohibited the media from accessing the private sessions. No one suggested during the designated proceeding that the Toronto Star could be named as a respondent or provided access to the private sessions through the notification process.
[49] In any event, I do not understand the Toronto Star to be seeking the status of respondent or the right to file affidavits or memoranda of law. The Toronto Star is simply seeking to enforce the open court principle and to obtain access to the private sessions as a member of the media.
[50] The media’s concern in keeping the public informed about section 38 proceedings is not encompassed within the “interests” protected under subsection 38.04(5). Where an entity such as the Toronto Star wishes to exercise its “interests”, in the legal sense of this term, it may seek to cause the disclosure of the information by initiating an application under paragraph 38.04(2)(c): for example, Ottawa Citizen Group Inc. v. Canada (Attorney General of Canada), 2004 FC 1052 and 2006 FC 1552.
[51] In addition, the Attorney General of Canada did not suggest a principled basis upon which the Court would be entitled to grant respondent status or access rights to the Toronto Star but not to the media at large. Again, I do not understand the defendant to be proposing that all members of the media be designated as respondents.
[52] The position of the Attorney General of Canada was more nuanced during oral submissions. There, counsel focused less on characterizing the role of the Toronto Star as a respondent. The suggestion was that the Court had the discretion under paragraph 38.04(5)(c) to order that the Toronto Star be given notice of the section 38 hearing and granted access to the proceeding, subject to a publication ban until the disposition of the matter.
[53] The construction of paragraph 38.04(5)(c) advanced by the Attorney General of Canada functions as a minimal impairment argument. In effect, counsel for the government argues that the impugned provisions trench justifiably on the open court principle. In his view, paragraph 38.04(5)(c) may be interpreted as conferring upon the Court the discretion to allow the Toronto Star to access the private sessions and records subject to a publication ban lasting until a final order, disposing of the application, is rendered pursuant to section 38.06.
[54] The interpretation proffered by the Attorney General of Canada does not give full effect to the open court principle. Public access to judicial proceedings cannot depend on fortuitous circumstances which lead one or more members of the media to seek access under paragraph 38.04(5)(c). Nor can open courts depend on one of the parties to the litigation making submissions to the Court that the media be provided access.
[55] Counsel for the Attorney General of Canada acknowledged that the discretion available to the Court according to his interpretation of paragraph 38.04(5)(c) was not envisaged by Parliament. I agree. When read in their entire context and according to their ordinary sense, keeping in mind the objectives of section 38, the language of subparagraphs 38.04(5)(c)(i), (ii), and (iii) cannot be interpreted as a mechanism to apply the open court principle: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.
[56] In any event, and I do not decide the issue on this ground, I am not convinced that the interpretation of the Attorney General of Canada is consistent with the prohibition against disclosure of the existence of the file in paragraph 38.02(1)(c).
[57] More importantly, even if this submission of the Attorney General of Canada were accepted, granting access to one media outlet falls well short of justifying the infringement of the open court principle and the presumptive openness of judicial proceedings.
[58] In particular, counsel for the Attorney General of Canada contended that media access to the private sessions would necessarily be coupled with a publication ban. According to counsel, the Court has the authority to allow the Toronto Star and other media to attend the private sessions, but cannot authorize the publication of any news reports about the hearing, at least until the matter has been completed.
[59] In Vancouver Sun (Re), [2004] 2 S.C.R. 332, which also involved national security considerations, the Supreme Court of Canada rejected a similar argument for granting media access to a hearing subject to a publication ban (at paragraph 49):
[W]e would not endorse the suggestion made by the Vancouver Sun that some members of its Editorial Board be allowed to attend the hearings and have access to the materials but be subject to an undertaking of confidentiality. It is difficult again to understand how the public good is better served by the qualified participation of professionals who cannot discharge fully their publicly entrusted mandate.
[60] It bears repeating that there is no secret information disclosed in private sessions and materials. The open court principle requires media access and timely publication. Counsel has not identified a public interest to be served by postponing publication of what occurs in private sessions until the disposition of the section 38 hearing. To support his position that publication should be postponed, counsel for the government relied upon the suggestion in Vancouver Sun (Re) (at paragraph 58) that the decision to publicly release sealed information should take place at the end of the judicial investigative hearing in a criminal matter. However, this conclusion was not intended for the circumstances of section 38 proceedings.
[61] In defending the constitutionality of the impugned provisions, the Attorney General of Canada advances an interpretation of the section 38 scheme that would entitle members of the media to be designated as interested parties or provided access to the private sessions subject to a publication ban. In the end, the best one can say about this position is that “necessity is usually the fuel of ingenuity”, to take the phrase used by counsel. In this case, however, the inventive construction put forward to save the impugned provisions does not do sufficient justice to the open court principle.
[62] In Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, the Supreme Court of Canada considered the constitutionality of provisions similar to those challenged in this proceeding.
[63] Ruby involved a narrow challenge to the constitutionality of mandatory procedural requirements set out in paragraph 51(2)(a) and subsection 51(3) of the Privacy Act, R.S.C. 1985, c. P-21:
[64] Section 51 of the Privacy Act establishes the procedure governing the conduct of judicial review application hearings where a government institution refuses an individual’s request for access to personal information in order to protect government interests similar to those involved in section 38 proceedings.
[65] Paragraph 51(2)(a) and subsection 51(3) require the reviewing court to hold the application hearing in private and to accept ex parte submissions at the request of the government institution refusing disclosure.
[66] As in these proceedings, the question before the Supreme Court of Canada was whether the impugned provisions trenched unjustifiably on the open court principle.
[67] The Supreme Court affirmed the validity of the statutory requirement that government submissions concerning secret information be received ex parte and in private. In view of this decision, the plaintiffs in this case, as noted earlier, did not challenge the constitutionality of the analogous requirement in subsection 38.11(2).
[68] Writing for the unanimous Court, Justice Louise Arbour found that paragraph 51(2)(a) failed the Oakes test at the minimal impairment branch. In particular, Justice Arbour concluded that the mandatory 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: “[S]ection [51(2)(a)] is overbroad in closing the court to the public even where no concern exists to justify such a departure from the general principle of open courts (Ruby at paragraph 59, emphasis added).
[69] Justice Arbour’s characterization of the overbroad scope of paragraph 51(2)(a) of the Privacy Act applies with equal force to the analogous procedural requirement in subsection 38.11(1), which prohibits public access to the private sessions of section 38 proceedings.
[70] In my view, the impugned provisions do more than is minimally required to safeguard the secret information and therefore trench unduly on the open court principle. Accordingly, I conclude that these provisions fail at the minimal impairment branch of the Oakes test and cannot be saved under section 1 of the Charter.
[71] On the basis of the same principles enunciated in Ruby, I find that subsection 38.11(1) is overbroad in closing the court to the public even where no secret information is at risk to justify a departure from the open court principle.
[72] Similarly, subsections 38.04(4) and 38.12(2) are overbroad in subjecting all court records associated with the private sessions to mandatory confidentiality requirements where no secret information is at risk to justify a departure from the general principle of open courts. My view in this regard is consistent with the acknowledgement by all parties that the outcome concerning the constitutionality of all three impugned provisions should be the same.
B. The Appropriate Constitutional Remedy
[73] During the hearing to canvass the parties’ views on remedies, the Attorney General of Canada argued that, in the event this Court concluded the impugned provisions constituted an unjustified infringement of the open court principle, the appropriate remedy would be to strike down these provisions. This submission varied the original suggestion by counsel for the government that reading down was the appropriate remedial solution.
[74] In arguing that the appropriate remedy is to strike down the impugned provisions, the Attorney General of Canada purported to rely on the Supreme Court’s decision in Ruby.
[75] First, the impugned provisions in Ruby were not struck down. Justice Arbour relied on reading down as a constitutional remedy in rendering section 51 of the Privacy Act compliant with section 2(b) of the Charter.
[76] It had been the practice of counsel, on consent, to conduct Privacy Act hearings in public where no secret information could be disclosed. The Supreme Court disapproved of this practice. For Justice Arbour, it was not open to the parties to bypass Parliament’s unambiguous language clearly intended to exclude the public from section 51 hearings.
[77] I understand Justice Arbour to have relied on reading down as the appropriate constitutional remedy to cure the overbroad scope of the mandatory in camera hearing required by paragraph 51(2)(a). She accommodated the constitutional imperative that private sessions, where no secret information is disclosed, be open to the public by invoking the reading down mechanism (at paragraphs 58 and 60):
Unless the mandatory requirement is found to be unconstitutional and the section is "read down" as a constitutional remedy, it cannot otherwise be interpreted to bypass its mandatory nature.
[ … ]
The appropriate remedy is therefore to read down s. 51(2)(a) so that it applies only to the ex parte submissions mandated by s. 51(3). A reviewing court retains the discretion, pursuant to s. 46, to conduct the remainder of the hearing or any portion thereof, either in public, or in camera, or in camera and ex parte.
[Emphasis added].
[78] Second, contrary to what was argued by the Attorney General of Canada, the provisions of section 38 provide for the flexibility found in section 46 of the Privacy Act.
[79] In particular, subsection 38.12(1) confers a broad discretion upon the presiding judge to make any order to protect the confidentiality of the information to which the hearing relates. In addition, subsection 38.04(4) confers an analogous discretion upon the Chief Administrator of the Courts Administration Service to adopt any appropriate measure to safeguard the confidentiality of section 38 applications.
[80] Subsections 38.04(4) and 38.12(1) reflect Parliament’s intent to afford the designated judge the discretion to adopt any confidentiality measures required to safeguard secret information. In the rare, indeed unlikely, event that the circumstances surrounding a section 38 proceeding require that the public be prohibited from accessing even the private sessions and related documents, the judge has the discretionary authority, analogous to that provided for in section 46 of the Privacy Act, capable of safeguarding the confidentiality of any information when required.
[81] The government argued that Rules 26, 29, 151 of the Federal Courts Rules concerning the inspection of court files, in camera hearings, and confidentiality orders provide the Court discretionary authority to protect secret information. In my view, this discretionary authority is conferred upon the Court by section 38 and I do not concede that recourse to the Federal Courts Rules is necessary. If I am wrong, however, these Rules do afford the Court a further flexibility to adopt any measures to prevent the inappropriate disclosure of secret information.
[82] Put simply, the approach to reading down adopted in Ruby is the appropriate manner in which to remedy the constitutional defects in the impugned provisions of section 38.
[83] Concerning the mandatory exclusion of the public from the private sessions, I find that the structure of subsections 38.11(1) and 38.11(2) mirrors that of paragraph 51(2)(a) and subsection 51(3) of the Privacy Act. Accordingly, subsection 38.11(1) ought to be read down as a constitutional remedy to apply only to the ex parte representations provided for in subsection 38.11(2).
[84] As in Ruby, the effect of this decision will be that private sessions, as defined in these reasons, are presumptively open to the public. To repeat, in the exceptional event where the exclusion of the public may be justified even when all parties are present, subsections 38.04(4) and 38.12(1) provide the Court with the discretionary authority to adopt such measures as are warranted by the circumstances to protect the confidentiality of secret information.
[85] The “rare, indeed unlikely, event” I have referred to in paragraph 80 is to be understood in the context of the premise of this decision, that the existence of the designated proceeding has been made public.
[86] The mandatory confidentiality requirements in subsections 38.04(4) and 38.12(2) should also be read down, as a constitutional remedy, to apply only to the ex parte representations provided for in subsection 38.11(2). As a result of this decision, all court records accessible to the non-government party are presumptively available to the public. Again, subsections 38.04(4) and 38.12(2) provide the discretion, if ever necessary, to maintain confidentiality with respect to any record available to all parties.
[87] The reading down I am adopting will exclude the public from all ex parte representations, those made by the Attorney General of Canada as of right and those made by a non-government party with leave of the Court. This conclusion masks an outstanding legal issue not addressed by the parties.
[88] The debate in this case centered on national security considerations, not on the interests which might be asserted by a non-government party during ex parte representations. The focus was on sessions where all parties were present and on ex parte sessions granted as of right to the Attorney General of Canada. There was no discussion of the constitutionality of closed hearings to receive the ex parte representations of a non-government party.
[89] In its written submissions, the Toronto Star acknowledged that it was not seeking access to ex parte sessions on the basis of the decision in Ruby. However, under subsection 38.11(2), the non-government party may also seek to make ex parte representations. This is an additional legal consideration which was not at issue in Ruby. This distinction was not referred to in the agreed statement of facts, nor was it the subject of any submissions in this proceeding.
[90] In the absence of both an evidentiary record and submissions of counsel, I have chosen to leave the matter open and to preserve the status quo concerning the mandatory exclusion of the public where the non-government party is permitted to make ex parte representations. In this decision, the impugned provisions will be read down so as to apply to all ex parte representations envisaged in subsection 38.11(2).
Conclusion
[91] For the foregoing reasons, the constitutional questions raised by this motion are answered as follows:
1. Do subsections 38.04(4), 38.11(1), and 38.12(2) of the Canada Evidence Act constitute infringements of the Toronto Star’s rights as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms?
Answer: Yes, as was conceded by the defendant.
2. Are the infringements constituted by subsections 38.04(4), 38.11(1), and 38.12(2) Canada Evidence Act justified under section 1 of the Canadian Charter of Rights and Freedoms?
Answer: No. The impugned provisions fail the Oakes test at the minimum impairment branch.
The words in subsection 38.04(4), “An application under this section is confidential. …” («Toute demande présentée en application du présent article est confidentielle. …»), are read down, as a constitutional remedy, to apply only to the ex parte representations provided for in subsection 38.11(2).
The words in subsection 38.11(1), “A hearing under subsection 38.04(5) … shall be heard in private...” (« Les audiences prévues au paragraphe 38.04(5) … sont tenues à huis clos…»), are read down, as a constitutional remedy, to apply only to the ex parte representations provided for in subsection 38.11(2).
The words in subsection 38.12(2), “The court records relating to the hearing… are confidential. …” (« Le dossier ayant trait à l’audience… est confidential. …»), are read down, as a constitutional remedy, to apply only to the ex parte representations provided for in subsection 38.11(2).
[92] The defendant shall pay to the plaintiff Toronto Star Newspapers Limited the costs of this motion. There will be no order as to costs concerning the plaintiff Kassim Mohamed.
“Allan Lutfy”
Schedule A: Excerpts from Section 38 of the Canada Evidence Act
Schedule B: List of Section 38 Applications Filed in Federal Court
Since the coming into force of the Anti-Terrorism Act, S.C. 2001, c. 41 on December 24, 2001, fifteen (15) section 38 applications have been publicly disclosed. These are:
§ Ribic v. Canada, court file DES-7-01: 2002 FCT 290.
This file, commenced on December 10, 2001, was decided under section 38 as amended by the Anti-Terrorism Act.
§ Canada (Attorney General) v. Ribic, court file DES-1-02: 2002 FCT 839.
§ Canada (Attorney General) v. Ribic, court file DES-2-02: 2002 FCT 1044.
§ Ribic v. Canada (Attorney General), court file DES-3-02: 2003 FCT 10, aff’d 2003 FCA 246.
§ Canada (Attorney General) v. Ribic, court file DES-5-02: 2003 FCT 43, aff’d 2003 FCA 246.
§ Canada (Attorney General) v. Kempo, court file DES-1-03: notice of discontinuance filed on October 27, 2005.
§ Canada (Attorney General) v. Ouzghar, court file DES-4-03: notice of discontinuance filed on July 20, 2005.
§ Canada (Attorney General) v. Brad Kempo, court file DES-5-03: 2004 FC 1678.
§ Ottawa Citizen Group Inc. v. Canada (Attorney General), court file DES-1-04: 2004 FC 1052.
§ Canadian Broadcasting Corporation v. Canada (Attorney General), court file DES-2-04: notice of discontinuance filed on March 31, 2004.
§ Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, court file DES-4-04: notice of discontinuance filed on April 4, 2004.
§ Ribic v. Canada, court file DES-1-05: adjourned sine die on June 3, 2005.
§ Canada (Attorney General) v. Mohamed, court file DES-1-06.
§ Canada (Attorney General) v. Khawaja, court file DES-2-06.
§ Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, court file DES-4-06.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-739-06
STYLE OF CAUSE: TORONTO STAR NEWSPAPERS LIMITED and KASSIM MOHAMED
Plaintiffs
and
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 25, 2006
October 18, 2006
REASONS FOR ORDER: Lutfy, C. J.
APPEARANCES:
Paul Schabas for Plaintiff – Toronto Star Newspapers Ltd.
Ryder Gilliland
Rahool Agarwal
Lorne Waldman for Plaintiff – Kassim Mohamed
Alain Préfontaine for Defendant
SOLICITORS OF RECORD:
Blake, Cassels & Graydon LLP for Plaintiff – Toronto Star Newspapers Ltd.
Toronto, Ontario
Waldman & Associates for Plaintiff – Kassim Mohamed
Toronto, Ontario
John H. Sims, Q.C. for Defendant
Deputy Attorney General of Canada