Date: 20020424
Docket: DES-6-01
Neutral citation: 2002 FCT 460
BETWEEN:
HER MAJESTY THE QUEEN, Crown Prosecutor's
Office, Montréal, Quebec
- and -
THE ATTORNEY GENERAL OF QUEBEC,
Legal Services, Montréal, Quebec
Plaintiffs
- and -
JAGGI SINGH, Montréal, Quebec
- and -
JONATHAN ASPIREAULT-MASSÉ, Prévost, Quebec
Defendants
REASONS FOR ORDER
(Delivered from the bench in Montréal on April 19, 2002)
HUGESSEN J.
[1] This is an application made pursuant to the Canada Evidence Act, R.S.C. 1985, c. C-5, as amended. The respondents are charged with taking part in a riot which took place at the meeting of the G20 here in Montréal on October 23, 2000. They will be tried in the Superior Court.
[2] At a disclosure session, after apparently being satisfied by evidence submitted to him, the nature of which I do not know, Boilard J. ordered the prosecution to give the names, registrations and "will say statements" (the written versions) of all Sûreté du Québec ("S.Q.") officers who were present at the incident, in plain-clothes attire and anonymous. This order prompted an objection by the Attorney General of Quebec based essentially on national security. There were other reasons, but for our purposes here today we need only deal with the objection based on national security. That objection was referred to me as the judge designated by the Chief Justice of this Court under s. 38 of the Canada Evidence Act.
[3] I should say a word about the procedure we followed. At the time the application was served and filed in the Court, the old wording of s. 38 was still in effect. Shortly afterwards, on December 24, 2001, the Act was considerably amended. In light of the new provisions of s. 38, I ordered that the Attorney General of Canada be impleaded, and this was done. Subsequently, I asked him to take a position on the objection made by the Attorney General of Quebec. After some hesitation by the federal Attorney General, he agreed to take a position as follows:
[Translation]
As we have already informed the Court, by letter dated March 19, 2002, the Attorney General of Canada considers that this case in fact raises questions of national security and that in the circumstances of the case the information which is the subject of the objection, if disclosed, is likely to injure national security, in that the disclosure could compromise the ability of the Direction des enquêtes et des renseignements de sécurité (DERS) of the Sûreté du Québec to play a supporting and/or cooperative role with the Government of Canada, which assumes the leading role in the area, in an overall effort to protect national security.
(Extract from submissions by Attorney General of Canada.)
[4] In due course we held a hearing, with counsel for all the parties present, during which I decided to examine the confidential affidavits and the information which was the subject of the objection made by the Attorney General of Quebec. The reasons I gave at that time to justify this examination were not recorded and were very similar to those I gave a few days earlier in Ribic v. Canada, [2002] F.C.J. No. 384 (QL), so I will not repeat myself here except to say that in both cases a criminal charge was in question, and the Superior Court judge appointed to try the accused in both cases had decided that at first sight the information seemed relevant to him and requested its disclosure.
[5] Following the ex parte review I made of the information in question, I made an interim order in which, as I considered that part of the information in question could in no way compromise national security, I ordered the following on March 22, 2002:
[Translation]
CONSEQUENTLY, THE COURT MAKES THE FOLLOWING INTERIM ORDER:
AUTHORIZES the modified disclosure, in the form of the following summary, of part of the information covered in the objection:
(a) reports contemporary with the demonstration of October 23, 2000, which were prepared by certain officers of the Sûreté du Québec, contain no indication to suggest that those officers tried to act as agents provocateurs at the demonstration of October 23, 2000;
(b) these reports contained no information about Jonathan Aspireault-Massé for the day of October 23, 2000;
(c) these reports contained information about the actions of Jaggi Singh during the day of October 23, 2000, between 4:00 p.m. and 7:00 p.m., any reference to time being only approximate, namely:
"About 4:00 p.m. Singh joined the group of demonstrators collected at Rue de Maisonneuve, opposite Concordia University;
Singh held a discussion with an unknown woman driving a brown Dodge Ram 2001 pickup, licence FX43795 ("the pickup"), on which there were two large loudspeakers;
Singh spoke to various masked individuals at the site of the demonstration;
Singh got into the cab of the pickup and also spoke to the demonstrators with the microphone;
The pickup was located in the middle of Boul. René-Lévesque;
Singh was often seen near the vehicle;
Singh was seen west of Drummond and Maisonneuve walking in the opposite direction to the demonstration; he was looking in all directions and had pamphlets in his hands; he arrived in front of the Sheraton at about 4:30 p.m.; he had discussions with various groups; he kept walking about;
At about 6:30 p.m. Singh was seen in the pickup around Rue Metcalfe and a SPCUM motorized officer intercepted him: Singh was speaking into a megaphone and encouraging the demonstrators to continue their march".
RESERVES the defendants' right to make any other submission on the objection to disclosure of information at the next hearing, set down for 9:30 a.m. on April 19, 2002.
[6] Finally, we have held another hearing today at which, after reading the written submissions filed by counsel for either side, I first asked the respondents to explain why I should order further disclosures in addition to those made in the order of March 22.
[7] The respondents called no evidence to support their position. However, they argued that as they had a fundamental right to a fair and equitable trial they were entitled to everything Boilard J. had asked the Attorney General of Quebec to produce, including the names, registrations and reports of the various S.Q. officers, the "will say statements". At the same time, the evidence filed by the Attorney General of Quebec indicated that the disclosure of the information sought would be likely to compromise the ability of the S.Q., in particular the DERS (abbreviation for "Direction des enquêtes et renseignements de sécurité"), to play a supporting and/or cooperative role with the Government of Canada in the overall effort to protect national security. In particular, the ex parte evidence disclosed the scope of the assessment of the threat created in connection with preparations for the third Summit of the Americas, the part DERS played in making that assessment and the nature of the operation of the service at the operation of October 23, 2000, at the Montréal meeting.
[8] The evidence was that links between the police forces of Canadian and foreign intelligence services (including the S.Q.) were established, information was exchanged and shared and data banks created, which are still used by the various bodies concerned. In this connection, I adopt the words of MacKay J. in the preceding case of Singh v. Canada (Attorney General) [2000] F.C.J. No. 1007:
. . . CSIS, the RCMP and other agencies carry out their functions in regard to national security with necessary secrecy. Relationships between other police, intelligence and security agencies, particularly those abroad are forged, and information is shared on the understanding that the information will not be further disseminated beyond those concerned with national security. If such information were to be disclosed, the confidence of the originator of the information would be jeopardized, and so also would be all similar confidential relationships. There is no doubt that in the world today Canada's national security depends, in part, upon relationships such as these and the information that is exchanged. The public interest in maintaining confidence in reciprocal relationships that provide valuable security related information is, in my opinion, very significant.
[9] The public interest cited by the respondents is that of a fair and equitable trial. However, I consider that they had a duty to present evidence and to show why it was necessary to know the names, registrations and further details of what the S.Q. officers would have to say. The respondents already had the information contained in the interim order, which covered everything that the documentation considered had to say about the two respondents. In reply, the respondents said that because the S.Q. officers who were present at the demonstration were experienced observers, and it was to be expected that they could provide their questioners with information on everything that happened that day, examining them, and especially cross-examining them, might be a means of obtaining information useful to the defence. In my opinion, however, this is pure speculation. First, I have nothing before me to indicate what the defence will consist of, and second, what sort of information, apart from the information already revealed, the officers in question might have in their possession and how this information might be relevant. The assessment required by s. 38 of the Act requires that each party present his point of view and support it, if necessary, with appropriate evidence. It will not suffice for the respondents to cite Boilard J.'s order: he did not have the objection by the Attorney General of Quebec before him and did not hear the evidence presented to me.
[10] I therefore come to the conclusion that, except for the information already disclosed, and with an amendment I will mention shortly, I must uphold the objection. However, I would add to this some indication of the number of plain-clothes S.Q. officers present at the demonstration of October 23, 2000. Although there is a slight risk that disclosure of this information will reveal the scope of the operation, I consider the risk is minimal compared to the importance the information might have for the defence at the trial of the respondents.
[11] I will add to the order a paragraph D, which will read as follows:
(d) The total number of plain-clothes S.Q. officers present at the demonstration was 24.
[12] I would further add an order under subs. 4 of s. 38.06 authorizing the parties to use and submit in evidence the information disclosed by this order.
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"James K. Hugessen"
Judge |
Ottawa, Ontario
April 24, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: DES-6-01
STYLE OF CAUSE: HER MAJESTY THE QUEEN
AND THE ATTORNEY GENERAL OF QUEBEC
- and -
JAGGI SINGH
AND JONATHAN ASPIREAULT-MASSÉ
PLACE OF HEARING: Montréal, Quebec
DATES OF HEARING: March 21 and April 19, 2002
REASONS FOR ORDER BY: HUGESSEN J.
DATED: April 24, 2002
APPEARANCES/SOLICITORS OF RECORD:
Kathleen Caron FOR THE CO-PLAINTIFF:
Crown Prosecutor's Office HER MAJESTY THE QUEEN
Montréal, Quebec
Mario Normandin FOR THE CO-PLAINTIFF:
Department of Justice of Quebec THE ATTORNEY GENERAL OF
Montréal, Quebec QUEBEC
Robert Marchi and David Lucas FOR THE ATTORNEY GENERAL OF
Department of Justice of Canada CANADA
Montréal, Quebec
William Sloan FOR THE DEFENDANT:
10 Ontario West Street JAGGI SINGH
Montréal, Quebec
Pascal Lescarbeau and Denis Barrette FOR THE DEFENDANT:
10 Ontario West Street JONATHAN ASPIREAULT-MASSÉ
Montréal, Quebec