Khawaja v. Canada (Attorney General), 2007 FCA 388 (2007)

Parts:Khawaja v. Canada (Attorney General)
Reporting Judge:RICHARD C.J.
Docket Number:DESA-2-07
 
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Date: 20071206

Docket: DESA-2-07

Citation: 2007 FCA 388

CORAM: RICHARD C.J.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

MOHAMMAD MOMIN KHAWAJA

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

Heard at Ottawa, Ontario , on October 15 and 16, 2007 .

Judgment delivered at Ottawa, Ontario , on December 6, 2007 .

REASONS FOR JUDGMENT BY: RICHARD C.J.

CONCURRING REASONS BY: LÉTOURNEAU J.A.

CONCURRING REASONS BY: PELLETIER J.A.

Date: 20071206

Docket: DESA-2-07

Citation: 2007 FCA 388

CORAM: RICHARD C.J.

LÉTOURNEAU J.A.

PELLETIER J.A.

BETWEEN:

MOHAMMAD MOMIN KHAWAJA

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

REASONS FOR JUDGMENT

RICHARD C.J.

[1] This proceeding arises from a challenge to the constitutional validity of subsection 38.11(2) of the Canada Evidence Act by the Appellant, Mohammad Momin Khawaja, and comes before us as the result of an appeal from a judgment of Chief Justice Lutfy of the Federal Court upholding the constitutional validity of that provision ( Canada (Attorney General) v. Khawaja , 2007 FC 463 [2007] F.C.J. No. 648)

[2] Subsection 38.11(2) of the Act reads as follows:
38.11(2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, the opportunity to make representations ex parte.

38.11(2) Le juge saisi d’une affaire au titre du paragraphe 38.04(5) ou le tribunal saisi de l’appel ou de l’examen d’une ordonnance rendue en application de l’un des paragraphes 38.06(1) à (3) donne au procureur général du Canada — et au ministre de la Défense nationale dans le cas d’une instance engagée sous le régime de la partie III de la Loi sur la défense nationale — la possibilité de présenter ses observations en l’absence d’autres parties. Il peut en faire de même pour les personnes qu’il entend en application de l’alinéa 38.04(5) d ).

[3] Subsection 38.11(2) allows the Attorney General to make ex parte representations as of right, and any other party to do the same with leave of the Court. Ex parte means a procedural step that is taken for the benefit of one party only and no notice is given to the adverse party ( Attorney General of Manitoba v. National Energy Board , [1974] 2 F.C. 502 (T.D.). Ex parte proceedings do not have to be held in camera ( Ruby , para. 26). It should be noted that the Appellant in this case is not challenging the provisions of subsection 38.11(1), which deal with in camera proceedings, simply subsection 38.11(2) and the ex parte process.

[4] Section 38 of the Canada Evidence Act establishes a scheme for dealing with information which, if disclosed, would cause injury to Canada ’s national security, or international relations or national defence. The latter is not relevant in this proceeding.

[5] The section 38 process is preliminary or ancillary to the main proceeding. Here the main proceeding is a criminal trial.

[6] The representations referred to in subsection 38.11(2) arise in the course of an application commenced as the result of a notice given to the Attorney General pursuant to subsection 38.01(2) which reads:
38.01 (2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act.

38.01(2) Tout participant qui croit que des renseignements sensibles ou des renseignements potentiellement préjudiciables sont sur le point d’être divulgués par lui ou par une autre personne au cours d’une instance est tenu de soulever la question devant la personne qui préside l’instance et d’aviser par écrit le procureur général du Canada de la question dès que possible, que ces renseignements aient fait ou non l’objet de l’avis prévu au paragraphe (1). Le cas échéant, la personne qui préside l’instance veille à ce que les renseignements ne soient pas divulgués, sauf en conformité avec la présente loi.

[7] Where a participant in a proceeding is required or expects to disclose information that is potentially sensitive or injurious to national security, national defence, or international relations, this participant is required to give notice to the Attorney General of Canada as soon as possible pursuant to subsection 38.01(1) of the Canada Evidence Act . The Attorney General can either authorize the disclosure of the information pursuant to section 38.03 of the Canada Evidence Act , or else may make an application to the Federal Court pursuant to subsection 38.04(1) of the Canada Evidence Act seeking an order prohibiting the disclosure of the information covered by the notice.

[8] The Federal Court then proceeds with the section 38 application pursuant to subsection 38.04(5) of the Canada Evidence Act, and determines the parties to the application. The Federal Court is then ultimately asked to make an order pursuant to section 38.06 of the Canada Evidence Act by applying the following three step process ( Canada (Attorney General) v. Ribic , [2003] F.C.J. No. 1964, 2003 FCA 246 at paras. 17-21).

(a) Is the information in question relevant to the proceeding in which disclosure is sought? If no, the information should not be disclosed. If yes, then,

(b) Will disclosure of the information in question be injurious to national security, national defence, or international relations? If no, the information should be disclosed. If yes, then,

(c) Does the public interest in disclosure of the information in question outweigh the public interest in prohibiting disclosure of the information in question? If yes, then the information should be disclosed. If no, then the information should not be disclosed.

[9] The first two steps consist of an inquiry as to whether the information is relevant and, if so, whether its disclosure would be injurious to national security, international affairs or national defence, while the third step consists of a balancing of competing interests.

[10] In drafting section 38 of the Act, the legislator included a number of significant procedural protections which circumscribe the right of non-disclosure, including the following:

(i) Subsection 38.03 authorizes the Attorney General to disclose all or part of the information at any time;

(ii) Parliament has authorized the designated judge to consider the conditions of disclosure most likely to limit injury to national security in s. 38.06(2) of the CEA ;

(iii) Sections 38.09 and 38.1 of the CEA provide, respectively, an appeal as of right to the Federal Court of Appeal and, with leave, to the Supreme Court of Canada;

(iv) S. 38.14 of the CEA establishes additional procedural safeguards to protect the right of the accused to a fair trial, including allowing the trial judge to stay criminal charges;

(v) S. 38.11(2) of the CEA gives the party seeking disclosure of the secret information the right to request the opportunity to make representations in the absence of any other party, including the Attorney General.

[11] Subsection 38.11(2) is not an autonomous provision applied independently of the other sections in section 38 of the Act . This section refers to subsections 38.04(5) and 38.06(1) to (3). Although subsection 38.11(2) only refers to the ex parte procedure, this procedure is only necessary if non-disclosure of confidential information is requested by the Attorney General.

[12] As stated earlier, the main proceeding is a criminal trial in which the Appellant stands charged on an indictment alleging a total of seven counts under the Criminal Code , R.S., 1985, c. C‑46, Part II.1 for terrorist-related offences. The Appellant is in custody awaiting trial in the Ontario Superior Court of Justice.

[13] The lead prosecutor in the criminal case delivered two notices to the Attorney General pursuant to subsection 38.01(1) of the Canada Evidence Act , in relation to the documents which the prosecution had disclosed or expected to disclose to the defence in the criminal case. The notices informed the Attorney General of the possibility of disclosure of sensitive or potentially injurious information in connection with the criminal proceeding. In relation to each of the notices, the Attorney General concluded that some of the information could be disclosed while the balance could not, pursuant to section 38.03 of the Canada Evidence Act . Following this, the section 38 application was commenced at the Federal Court.

[14] The disclosure by the prosecutor in the main proceeding was made pursuant to the Stinchcombe rule ( R. v. Stinchcombe [1991] 3 S.C.R. 326). This rule which is applicable to criminal proceedings provides that the Crown has a legal duty to disclose all relevant information to the defence. However, Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. Discretion must also be exercised with respect to the relevance of information. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable on the ground...

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