Date: 20020802
Docket: DES-1-02
Neutral citation: 2002 FCT 839
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
NICHOLAS RIBIC
AND
THE ATTORNEY GENERAL OF ONTARIO
Respondent
The applicant Attorney General of Canada seeks an order, pursuant to subsection 38.06(3) of the Canada Evidence Act, confirming the prohibition of the disclosure of five documents in the possession of the Department of National Defence ("the secret documents") said to contain "sensitive information" or "potentially injurious information" as defined in section 38 of the Act ("the secret information"). To paraphrase the two definitions, this is information in the possession of the Government of Canada which, if disclosed publicly, could injure international relations, national defence or national security.
Expurgated versions of the secret documents were produced by Captain Henry Doucette of the Canadian Forces during the Stinchcombe disclosure process in the criminal prosecution preferred by the respondent Attorney General of Ontario against the respondent Nicholas Ribic on charges of hostage taking in Pale, Bosnia in 1995. The trial is to commence on September 30, 2002.
In four of the five secret documents, all of the information was deleted except for transmittal data such as the dates and the points of origin and destination of the material. However, Captain Doucette described in very limited and general terms the subject matter of the documents, without disclosing the secret information. On the basis of this evidence and the submissions of counsel, the presiding judge in the criminal proceeding ordered that the five documents be fully disclosed under the Stinchcombe test. Through this same process, several other expurgated documents produced by Captain Doucette were determined not to be relevant.
The order that the secret information be disclosed triggered the notification provisions in subsections 38.01(2) and 38.03(3) of the Canada Evidence Act. The Attorney General of Canada then commenced this application.
The Attorney General of Ontario and Nicholas Ribic were ordered to be designated as respondents, pursuant to paragraph 38.04(5)(a) of the Act. After receiving brief submissions from the applicant and the respondent Ribic, orders were issued pursuant to paragraphs 38.04(5)(b) and (c) that a hearing be held in this matter and that notice of the hearing be provided to the presiding judge in the criminal proceeding pursuant to section 38.05. No report was received from the presiding judge. The respondent Attorney General of Ontario chose not to participate in this proceeding. However, the Crown prosecutor, who is currently employed by the federal Department of Justice, is a deponent for the applicant.
The parties exchanged application records and afterwards the applicant filed ex parte material. The hearing was conducted in private. Counsel for the applicant and the respondent Ribic were present for the initial session when they made their respective oral arguments. Subsequently, ex parte evidence and representations were presented by the applicant in reviewing the secret documents.
Counsel for both parties made useful concessions in their memoranda of fact and law.
In view of the serious criminal charges, the applicant did not object to the Court's immediate inspection of the secret documents. In Ribic v. Canada, 2002 FCT 290, [2002] F.C.J. No. 384 (QL), an earlier proceeding concerning the disclosure of sensitive information in the same criminal prosecution which underlies this application, Justice Hugessen questioned the two-step procedure this Court has generally followed since Goguen v. Gibson, [1983] 2 F.C. 463 (C.A.), prior to the inspection of the secret information. The applicant's position in this application enabled the Court to proceed, without argument, in the manner suggested by Justice Hugessen.
The respondent Ribic acknowledged that he was not seeking the names of sources or targets, addresses, routing information, codes or encryptions, file numbers, sources of information whether they be individuals or otherwise, or information concerning the technical means or other methods of information gathering. This concession can be understood within the context of subsection 38.06(2) which permits the making public of information, when warranted, "... subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or written admission of facts relating to the information".
I am satisfied that each of the secret documents contains information, the disclosure of which would be injurious to international relations, national defence or national security. In particular, I accept that four of the five secret documents contain intelligence information obtained by the Department of National Defence in confidence and on the understanding that the information would not be disclosed publicly. See: Singh (J.B.) v. Canada (Attorney General) (2000), 186 F.T.R. 1 at paragraph 34.
However, subsection 38.06(2) of the Act requires that I consider whether the public interest in disclosure outweighs the public interest in non-disclosure:
| 38.06 (2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information. |
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38.06 (2) Si le juge conclut que la divulgation des renseignements porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d'intérêt public qui justifient la divulgation l'emportent sur les raisons d'intérêt public qui justifient la non-divulgation, il peut par ordonnance, compte tenu des raisons d'intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu'il estime indiquées, la divulgation de tout ou partie des renseignements, d'un résumé de ceux-ci ou d'un aveu écrit des faits qui y sont liés.
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The new statutory language makes clear that the designated judge may authorize the disclosure of all or part of the information in severed or summary form where, after an assessment of the competing interests, the public interest in disclosure so warrants.
In this case, the public interest in disclosure is to assure a fair trial where the accused faces serious charges and, if convicted, the possibility of a substantial penitentiary sentence. Counsel for the respondent Ribic made representations concerning the relevant issues which would justify disclosure with respect to each of the five secret documents. For ease of reference, I shall identify the documents in the manner they have been referred to in the criminal proceeding and by noting the tab number of exhibit 14 which was produced to the presiding judge.
None of the documents makes any reference to Mr. Ribic.
Document 222100 June 1995 - Bosnia: Security of Pale (Tab 4 of Exhibit 14)
The document's title is more suggestive of relevance than its limited contents. Captain Doucette's responses were fair but necessarily incomplete. There are seven lines of substantive text in the two-page document, with only transmittal data on the second page. There is no mention of hostages or the hostage-taking incident. The information concerns the physical security of Pale, either just prior to or at the time of the release of the hostages. The information is of such little relevance, if any, to the criminal proceeding, that I cannot conclude that the public interest in disclosure prevails.
Document 312200 May 1995 - Bosnia: (Tab 5 of Exhibit 14)
Captain Doucette confirmed during the disclosure process that this document refers to hostages or detained persons. In my opinion, some but not all of the information in this document is relevant to the criminal proceeding.
After balancing the competing interests in the light of the record before me, I have concluded that the public interest in the disclosure of the information in the paragraph numbered 3 on the second page of the document, with the substitution of two words, outweighs the public interest in non-disclosure.
Decisions in other section 38 applications where documents were not inspected or which came to this Court from a commission of inquiry, an administrative tribunal or a civil action can be distinguished from this case.
The respondent Ribic is accused with hostage taking under section 279.1 of the Criminal Code in the Ontario Superior Court of Justice and, if convicted, is liable to imprisonment for life. The seriousness of the criminal charges caused my inspection of the documents without applying the two-step procedure in Goguen.
The information, the disclosure of which I intend to authorize, is not "clearly irrelevant", as that standard is understood in Stinchcombe. I am also satisfied that the same information is "likely relevant", the threshold urged during the applicant's oral submissions, to the ability of the respondent Ribic to make full answer and defence. In the event of a conviction, the information may also be a matter of relevance to sentencing. There is a direct linkage between the issues raised by counsel for the respondent Ribic in seeking disclosure and the information which I have concluded warrants being made public. There is no evidence that this information is now available to the Crown prosecutor or the accused.
Subsection 38.06(2) contemplates the disclosure of part of the information in expurgated or summary form. The applicant knew, before filing the ex parte evidence, that no information concerning sources or other similar sensitive data was being sought. I informed counsel for the applicant during the ex parte sessions that I was considering authorizing the disclosure of some information from this document.
On cross-examination with respect to his affidavit produced to the respondent Ribic in this application, Captain Doucette testified that he was not aware of any inquiry made to be released from the undertaking of non-disclosure. This issue was further canvassed during the secret sessions.
The applicant's affidavit evidence asserts in strong and general terms the injury caused by making public the information in the five secret documents, even when sources are not identified. However, those assertions are not cast in the context of the balancing test required by subsection 38.06(2) or in the context of the disclosure of partial information for a fair trial in a serious criminal matter. Parliament has required the designated judge to balance competing interests, not simply to protect the important and legitimate interests of the state.
In weighing the competing interests, the designated judge is assisted, it seems to me, by specific evidence concerning the harm caused in the disclosure of an expurgated document for a criminal trial involving serious charges.
In Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (T.D.), at 242-43, Addy J. highlighted several caveats in making public even severed documents. In my view, those considerations do not apply to the content and form of the disclosure contemplated in this case. I have concluded that the additional information should be made public in a new expurgated document rather than by way of summary.
Concerning the other portions of this document, Captain Doucette disclosed that there was information concerning "the warring factions" and the degree of influence of certain Serbian leaders, including Karadzic and Mladic. A document dated June 26, 1995 (Tab8 of Exhibit 14) containing similar information, according to Captain Doucette, was not required to be produced in its unexpurgated version. I am satisfied that the other information in this document is either irrelevant or not of sufficient relevance to outweigh the public interest in non-disclosure.
Document 101953 May 1995 - Title is not revealed (Tab 6 of Exhibit 14)
Captain Doucette correctly stated that this document refers to hostages in several specific locations. On my review of the document, keeping in mind the concerns of counsel for both parties, I am satisfied that this document is clearly irrelevant to the criminal proceeding.
Document 031244 May 1995 - Title is not revealed (Tab 9 of Exhibit 14)
Captain Doucette stated that this document referred to the military structure of the warring factions, one of which was the Serbs. I can understand how his answers, general and limited as they had to be, may have led one to believe that the document may be relevant. Upon my review of the document, I am satisfied that it has no relevance to the criminal case. If I am wrong, the relevance is so marginal that the public interest in disclosure is not warranted under subsection 38.06(2).
Document dated May 10, 1995 or June 6, 1995 - GT 3R22eR CANBAT 2 VISOKO (Tab 13 of Exhibit 14)
This is a debriefing report prepared by the Canadian Forces concerning the hostage situation in Ilijas, Bosnia, a relatively short distance north-west of Pale. The parties now have all the information in the document except for the last sentence of paragraph 4 on the third sheet. The document, classified only as Secret, is in the possession of the United Nations. I am advised that the U.N. would not normally authorize its disclosure without first consulting Canada. No evidence of any legal commitment of non-disclosure by the U.N. was proffered. While I have accepted the ex parte affidavit evidence of potential injury, I have even greater certainty that the information which has not been disclosed can be of no assistance to either party in the criminal case.
These reasons for order have been written with the view of not disclosing the secret information and, to the extent possible, the evidence and representations in the ex parte sessions and some of the argument of counsel for the respondent Ribic. Finally, I am grateful to all counsel for their assistance in this first section 38 application commenced since the coming into force of the recent amendments to the Canada Evidence Act.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
August 2, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-1-02
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
and
NICHOLAS RIBIC ET AL.
PLACE OF HEARING: OTTAWA, ONTARIO
DATES OF HEARING: JULY 19 AND JULY 24, 2002
REASONS FOR ORDER OF THE ASSOCIATE CHIEF JUSTICE
DATED: AUGUST 2, 2002
APPEARANCES:
ALAIN PRÉFONTAINE FOR THE APPLICANT
and
JAN BRONGERS
D'ARCY DEPOE FOR THE RESPONDENT
and NICHOLAS RIBIC
HEATHER PERKINS-McVEY
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE APPLICANT
DEPUTY ATTORNEY GENERAL
OF CANADA
BERESH DEPOE CUNNINGHAM FOR THE RESPONDENT
EDMONTON, ALBERTA NICHOLAS RIBIC
and
HEATHER PERKINS-McVEY
OTTAWA, ONTARIO