Date: 20020315
Docket: DES-7-01
Neutral citation: 2002 FCT 290
BETWEEN:
NICHOLAS RIBIC
Applicant
- and -
HER MAJESTY THE QUEEN and
CANADIAN SECURITY INTELLIGENCE SERVICE
Respondents
REASONS FOR ORDER
(Delivered from the Bench at Ottawa, Ontario
on Friday, March 15, 2002)
HUGESSEN J.
[1] At a hearing in the presence of both counsel earlier this morning, I decided that I would examine the blanked out portions of seven documents which had been produced by the Crown but which had come from the Canadian Security Intelligence Service (CSIS). My reasons for that decision may be briefly summarized as follows: First, I am fully aware of the two step procedure followed by Chief Justice Thurlow in the Goguen case, later approved by the Court of Appeal, and subsequently followed by other judges of this Court: Goguen v. Gibson, [1983] 1 F.C. 872 (F.C.T.D.). It is my view, however, that Chief Justice Thurlow was not establishing a rule of law to be followed in every case but was simply indicating the manner in which he thought, in the circumstances of that particular case, that it was appropriate for him to exercise his discretion.
[2] The text of section 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5, as it existed at the time of the Goguen case and subsequent decisions has now been changed. In my view, the new text makes it even clearer that the designated judge has a very broad discretion to exercise and that includes the discretion as to whether or not he should look at the material withheld prior to entering upon the balancing process mandated by the statute.
[3] Even if I am wrong in the views expressed above however, it is my view that in the circumstances of this case, the applicant has satisfied the test of showing that the material withheld is likely to be relevant to an issue in the case. Several factors lead me to that conclusion.
[4] The first factor is the fact that the judge of the Ontario Superior Court who is charged with the trial of the accusations against the applicant has indicated that, in his judgment, it would be helpful for him to see the withheld passages of the documents. While that view does not, of course, bind me, I think it is entitled to the very greatest respect for it comes from the person who will ultimately have to make the decision as to the admissibility and relevance of the evidence at trial.
[5] The unconcealed portions of all seven of the documents in question make it abundantly clear that they relate directly and substantially either to the accused or more particularly to the hostage taking incident with which he is charged. The disclosure obligations of the Crown in a criminal prosecution are of fairly recent development and it seems to me that where the decision has been made that a part of a document should be disclosed, that is a strong indication that the part that is not disclosed is likely also to be relevant.
[6] This whole debate comes about in the context of a very serious criminal charge. Any material which may have an impact upon the Crown's ability to prove that charge beyond a reasonable doubt is, in my view, material relevant to the issues in the case. The interest in a fair trial is not limited to the accused: the Crown also has a vital interest in ensuring that the accused gets a trial whose verdict will stand up to Charter scrutiny. Whether or not the withheld material should be disclosed is, of course, another matter and will depend upon the balancing of the competing interests involved, a process which I now propose to undertake.
[Later]
[7] Following the decision to examine the deleted portions of the documents here in issue, I conducted a hearing in camera and ex parte in the presence of counsel for the Canadian Security Intelligence Service and a representative of that Service who gave evidence in support of the affidavit which was sworn and which is also in the confidential part of this file. I had previously, in discussion with counsel for the applicant, and in accordance with his own expressed limitation of the scope of his demand, excluded information regarding sources, names of agents of the Service, routing information, codes and things of that technical nature which are in fact of no interest to the defence at all. To those, I have added analyses conducted by the Service of the information which is essentially of a forward looking nature taking the form of prediction of what may be going to happen which is an essential part of any security intelligence service and which again, was in my view, of no interest whatever to the defence; likewise information which was clearly subsequent to the events here in issue and had no direct bearing on the matters charged against the applicant are irrelevant and will remain excluded from public view.
[8] I have also excluded certain words and headings which I was satisfied on the evidence were of a nature to assist an outsider in the breaking of codes; that is to say the information was transmitted in code and a knowledgeable cryptographer could make use of some of these words because they are in a template form and thus repeat themselves fairly consistently throughout the documents which would permit the breaking of the cryptology involved. I may say that in each case, the words themselves are anodyne and of no conceivable interest to the accused in the conduct of his defence.
[9] I have also excluded information which did not relate in any way to the accused and information which might be likely to affect Canada's international relations which again, in my judgment was of no conceivable interest or help to the accused in the conduct of his defence.
[10] I have also excluded information which would be likely to reveal investigation techniques again of no interest to the accused and all references to authorizations sought or obtained under the Canadian Security Intelligence Service Act.
[11] Having excluded those things, I have decided that I shall order that a number of the paragraphs of the documents should be disclosed. All the documents are conveniently listed together as Annexes A through G inclusive and they are in the possession of the accused applicant in their edited form with the deleted passages marked in black.
[12] I shall spend a few minutes on the document marked as Annex A just to indicate why it is that large parts of that document are not revealed and then I shall go on and indicate what other paragraphs in that document and in other documents in my view should be disclosed in the interest of the administration of justice and notwithstanding that there is a security interest in the documents. That interest, in my opinion, is outweighed by the accused right to a full and fair defence. The security interest is, in my view, relatively minimal and the accused's right outweighs it.
[13] Annex A, on the first page, all the deleted material is, I am quite satisfied, of no interest to the applicant, is coding information, routing information, subject matter information, information whose revelation might permit the breaking of codes. On the second page, there is only one small deletion of little consequence to the defence. The paragraph on the third page, towards the bottom of the page which are paragraphs 6 and 7 of Annex A, I have ordered to be disclosed to the accused. Again, I am quite satisfied that the information contained in them, whatever its degree of sensitivity and it is not very high, is not of a nature to seriously prejudice Canada's national security or international relations and is of a nature to assist the accused in the defence of the charge against him. Over the page, the remaining information in that document at the end is once again routing information, information with respect to names of persons employed in the Service and information of that sort, of no concern to the accused and need not be disclosed.
[14] In Annex B, I am satisfied that the bulk of that document has been disclosed, the deleted portions which appear on the first and the last pages are of no relevance to the accused's defence and can continue to be withheld from the accused for good reasons that I have already stated.
[15] Annex C, I am again satisfied that there is no part of Annex C that should be disclosed, the parts which have been withheld are likewise properly withheld and of no relevance to any possible defence the accused may have to the charge against him.
[16] With respect to Annex D, I am told that a large part of this document which was originally withheld has now been disclosed. There remains one paragraph which is paragraph number 2, which is towards the bottom of the second page of the document and I have ordered it to be disclosed, excluding message numbers and dates, as being relevant to the accused possible defences and as being not of a nature to injure Canada's national security or international relations or otherwise.
[17] Annex E, I am going to order that paragraphs 4 and 5, which are at the third page of that document, be disclosed subject to minor amendments, deletions of names and code numbers and that sort of thing which would be of no concerned to the accused but the information contained in the balance of those paragraphs is of interest. The other deletions in that document will be allowed to stand for the usual reason as previously discussed.
[18] In Annex F, I am satisfied that all deletions are irrelevant to the defence and that the important parts of that document have been adequately disclosed.
[19] Annex G is a somewhat special case, partly because it is dated well after the incidents in question in 1997 so that it is historical in nature. I have nonetheless concluded that some parts of that document should be disclosed and they are indicated on the fifth page of that document as being paragraphs 2 and 4. Paragraph 2, only the first 11 lines, in my view, should be disclosed and the remainder is analysis and forward looking and in any event, long after the fact. Paragraph 4 with minor deletions should also be disclosed. The remainder of that document is a repetition of the same document in the French language. If necessary, I will order the disclosure of the same parts of the document in French as it has already been disposed of in English but I do not imagine that that is likely to be necessary. Everything else in the document, I am quite satisfied, has been properly withheld for one of the reasons that I have already enumerated.
[20] So, to sum up, I will order that the paragraphs that I have mentioned to the extent I have mentioned be disclosed. I am satisfied that all the information otherwise withheld is irrelevant to any issues that I am capable of discerning as being likely to arise in the coming criminal trial. An order will go to that effect.
Judge
Ottawa, Ontario
March 15, 2002