Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar et al., (2007) 316 F.T.R. 279 (FC)

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: July 24, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 316 F.T.R. 279 (FC);2007 FC 766

Can. (A.G.) v. Inquiry Comm. (2007), 316 F.T.R. 279 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. AU.022

Attorney General of Canada (applicant) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar and Maher Arar (respondents)

(DES-4-06; 2007 FC 766)

Indexed As: Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar et al.

Federal Court

Noël, J.

July 24, 2007.

Summary:

The Attorney General of Canada applied under s. 38.04 of the Canada Evidence Act for an order prohibiting the disclosure of certain redacted portions of the public report issued by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, on the basis that disclosure of that information would be injurious to international relations, national defence or national security.

The Federal Court determined which redacted portions of the public report should be disclosed and which were subject to a prohibition on disclosure.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Arar was a Canadian citizen, who was never charged with any criminal offence in Canada, the United States, or Syria - On September 26, 2002, while transiting through an international airport in New York, Arar was arrested and detained by American officials for 12 days - He was then removed against his will to Syria, the country of his birth - Arar was imprisoned in Syria for nearly one year, where he was interrogated, tortured, and held in degrading and inhuman conditions - On October 5, 2003, Arar returned to Canada - A Commission of Inquiry was established to look into the actions of Canadian officials in relation to Arar - The Inquiry was added to the schedule of the Canada Evidence Act (CEA) which listed entities that could receive information injurious to international relations, national defence, or national security without having to provide notice to the Attorney General of Canada under s. 38.01 of the CEA - The Attorney General applied under s. 38.04 of the Canada Evidence Act for an order prohibiting the disclosure of certain redacted portions of the public report issued by the Commission of Inquiry on the basis that disclosure of that information would be injurious to international relations, national defence or national security - The Federal Court, applying the three step test outlined in Ribic v. Can. (FCA), determined which redacted portions of the public report should be disclosed and which were subject to a prohibition on disclosure - See paragraphs 1 to 102.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied under s. 38.04 of the Canada Evidence Act (CEA) for an order prohibiting the disclosure of certain redacted portions of the public report issued by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, on the basis that disclosure of that information would be injurious to international relations, national defence or national security - The Commissioner submitted that the court should accord deference to the Commissioner's disclosure rulings - The Federal Court held that the Commissioner's rulings should be afforded no deference - The court stated that the CEA was clear that "where the Federal Court is seized with an application to determine whether information can be disclosed under s. 38.04, the Court after applying the criteria set out at s. 38.06 makes a determination as to whether the information in question should be disclosed. This wording indicates that the Court's role under ss. 38.04 and 38.06 of the CEA is to rule on whether particular information can be disclosed. This judicial obligation cannot be delegated ... This being said, the jurisprudence is also clear that the Court's role under s. 38 of the CEA is not to judicially review a decision to disclose information" - See paragraphs 29 to 36.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Under s. 38.04(1) of the Canada Evidence Act (CEA), the Attorney General of Canada, upon receiving notice under s. 38.01 that sensitive or potentially injurious information was going to be disclosed in a proceeding, could, at any time and in any circumstances, apply to the Federal Court for an order with respect to the proposed disclosure - The Federal Court noted that in determining whether disclosure should be prohibited the court had to apply s. 38.06 of the CEA - The s. 38.06 scheme demanded that the court apply a three-step test, which was clarified in Ribic v. Can. (FCA) - "The first step of the scheme demands that the party seeking disclosure establish that the information, for which disclosure is sought, is relevant. The second step demands that the Attorney General establish that disclosure of the information at issue would be injurious to international relations, national defence, or national security. If injury is found to exist, the last step asks the Court to determine whether the public interest in disclosure outweighs the public interest in non-disclosure, and thus whether the information at issue should be disclosed" - See paragraph 37.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Under s. 38.04(1) of the Canada Evidence Act (CEA), the Attorney General of Canada, upon receiving notice under s. 38.01 that sensitive or potentially injurious information was going to be disclosed in a proceeding, could, at any time and in any circumstances, apply to the Federal Court for an order with respect to the proposed disclosure - The Federal Court noted that in determining whether disclosure should be prohibited the court had to apply a three-step test, which was clarified in Ribic v. Can. (FCA) - The third step required the court to determine whether the public interest in disclosure outweighed the public interest in non-disclosure - The court identified the following non-exhaustive factors which had to be weighed at this third stage: (a) the extent of the injury; (b) the relevancy of the redacted information to the procedure in which it would be used, or the objectives of the body wanting to disclose the information; (c) whether the redacted information was already known to the public, and if so, the manner by which the information made its way into the public domain; (d) the importance of the open court principle; (e) the importance of the redacted information in the context of the underlying proceeding; (f) whether there were higher interests at stake, such as human rights issues, the right to make a full answer and defence in the criminal context, etc.; and (g) whether the redacted information related to the recommendations of a commission, and if so whether the information was important for a comprehensive understanding of the said recommendation - See paragraph 98.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Under s. 38.04(1) of the Canada Evidence Act (CEA), the Attorney General of Canada, upon receiving notice under s. 38.01 that sensitive or potentially injurious information was going to be disclosed in a proceeding, could, at any time and in any circumstances, apply to the Federal Court for an order with respect to the proposed disclosure - The Federal Court noted that the Attorney General (i.e., the party seeking to prohibit disclosure) had the burden to prove that disclosure would be injurious to international relations, national defence or national security - The court discussed what constituted an "injury to international relations, national defence, or national security" in this context - The court held that for an "injury" to exist there had to exist some harm or damage - The court stated that: (a) information in the public domain could not be protected from disclosure by the courts (although this rule was not absolute) and (b) the court would not prohibit disclosure where the Government's sole or primordial purpose for seeking the prohibition was to shield itself from criticism or embarrassment - The court stated that "information injurious to international relations" referred to information that if disclosed would be injurious to Canada's relationship with foreign nations - The phrase "national defence" referred to all measures taken by a nation to protect itself against its enemies and a nation's military establishment - The concept of "national security" meant at a minimum, the preservation of the Canadian way of life, including the safeguarding of the security of persons, institutions and freedoms in Canada - See paragraphs 46 to 69.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied under s. 38.04 of the Canada Evidence Act for an order prohibiting the disclosure of certain redacted portions of the public report issued by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, on the basis that disclosure of that information would be injurious to international relations, national defence or national security - The Attorney General argued, inter alia, that information obtained from foreign intelligence agencies or law enforcement agencies should not be disclosed (i.e., the Third Party Rule) - The Federal Court discussed the third party rule in the context of a public inquiry and the issues involved in breaching the rule - See paragraphs 70 to 81.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Attorney General of Canada applied under s. 38.04 of the Canada Evidence Act for an order prohibiting the disclosure of certain redacted portions of the public report issued by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, on the basis that disclosure of that information would be injurious to international relations, national defence or national security - The Attorney General argued, inter alia, that information should not be disclosed if that information, which in isolation appeared meaningless or trivial, when pieced into the general picture could permit a comprehensive understanding of the information being protected (i.e., the Mosaic Effect) - The Federal Court stated that the Mosaic effect, on its own, will not usually provide sufficient reason to prevent disclosure of what would otherwise appear to be an innocuous piece of information - Thus, further evidence will generally be required to convince the court that a particular piece of information, if disclosed would be injurious to international relations, national defence or national security - Consequently the Attorney General, at minimum, would have to provide some evidence to convince the court that disclosure would be injurious due to the mosaic effect - Simply alleging a "mosaic effect" was not sufficient - There must be some basis of reality for such a claim, based on the particulars of a given file - See paragraphs 82 to 84.

Words and Phrases

Injury - The Federal Court discussed the meaning of this word within the context of the phrase "potentially injurious information" as used in the Canada Evidence Act, R.S.C. 1985, c. C-5 - See paragraphs 50 and 51.

Words and Phrases

International relations - The Federal Court discussed the meaning of this phrase as used in the Canada Evidence Act, R.S.C. 1985, c. C-5 - See paragraph 61.

Words and Phrases

National defence - The Federal Court discussed the meaning of this phrase as used in the Canada Evidence Act, R.S.C. 1985, c. C-5 - See paragraph 62.

Words and Phrases

National security - The Federal Court discussed the meaning of this phrase as used in the Canada Evidence Act, R.S.C. 1985, c. C-5 - See paragraph 63 to 69.

Words and Phrases

Préjudiciable - The Federal Court discussed the meaning of this word as used in the Canada Evidence Act, R.S.C. 1985, c. C-5 - See paragraph 52.

Cases Noticed:

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 5].

Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy) - see Phillips et al. v. Richard, J.

Toronto Star Newspapers Ltd. et al. v. Canada (2007), 308 F.T.R. 196; 2007 FC 128, refd to. [para. 22].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353, refd to. [para. 22].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

Ribic v. Canada (Attorney General) (2003), 320 N.R. 275; 2003 FCA 246, refd to. [para. 32].

Canada (Attorney General) v. Khawaja (2007), 312 F.T.R. 217; 2007 FC 490, refd to. [para. 32].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 46].

United States v. Reynolds (1953), 345 U.S. 1, refd to. [para. 46].

United Kingdom (Secretary of State for the Home Department) v. Rehman, [2001] UKHL 47; 281 N.R. 125, refd to. [para. 46].

Jose Pereira E Hijos S.A. v. Canada (Attorney General) (2002), 299 N.R. 154; 2002 FCA 470, refd to. [para. 49].

Babcock et al. v. Canada (Attorney General) et al., [2002] 3 S.C.R. 3; 289 N.R. 341; 168 B.C.A.C. 50; 275 W.A.C. 50, refd to. [para. 54].

Evans (K.F.) Ltd. v. Canada (Minister of Foreign Affairs) (1996), 106 F.T.R. 210 (T.D.), refd to. [para. 54].

United Kingdom (Attorney General) v. Observer Ltd. et al., [1990] 1 A.C. 109; 99 N.R. 241 (H.L.), refd to. [para. 55].

United Kingdom (Attorney General) v. Observer Ltd. et al., [1990] 1 A.C. 150 (Ch. D.), refd to. [para. 55].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 58].

Australia v. Fairfax (John) & Sons Ltd. (1980), 147 C.L.R. 39 (Aust. H.C.), refd to. [para. 59].

Ruby v. Royal Canadian Mounted Police et al., [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), refd to. [para. 73].

Charkaoui, Re (2007), 358 N.R. 1; 2007 SCC 9, refd to. [para. 78].

Henrie v. Security Intelligence Review Committee et al., [1989] 2 F.C. 229; 24 F.T.R. 24 (T.D.), affd. (1992), 140 N.R. 315; 88 D.L.R.(4th) 575 (F.C.A.), refd to. [para. 82].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38.01(1), sect. 38.02(1), sect. 38.02(1.1), 38.02(2), sect. 38.04(1), sect. 38.04(4), sect. 38.04(5), sect. 38.06(1), sect. 38.06(2), sect. 38.06(3), sect. 38.06(3.1), sect. 38.06(4), sect. 38.06(5) [para. 28].

Authors and Works Noticed:

Cohen, Stanley, Privacy, Crime and Terror: Legal Rights and Security in a Time of Peril (2005), pp. 161 to 164 [para. 66].

Forcese, Craig, Through a Glass Darkly: The Role and Review of National Security Concepts in Canadian Law (2006), 43 Alta. L. Rev. 963, generally [para. 67].

United Nations, Johannesburg Principles: National Security, Freedom of Expression and Access to Information (1996), U.N. Doc. E/CN.4/1996/39, Principle 2(b) [para. 60].

Counsel:

A. Préfontaine, for the applicant;

P. Cavalluzzo, V. Verma and R. Atkey, for the respondent Commission;

L. Waldman and M. Edwardh, for the respondent, Maher Arar.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Ottawa, Ontario, for the respondent Commission;

Waldman & Associations, Toronto, Ontario, and Ruby & Edwardh, Toronto, Ontario, for the respondent, Maher Arar.

This application was heard at Ottawa, Ontario, via teleconferences on April 25 and May 14, public hearings on April 30 and May 23 and ex parte (in camera) hearings on May 1, 2, 3 and 23, 2007, before Noël, J., of the Federal Court, who delivered the following public judgment on July 24, 2007. (A twin ex parte, in camera, judgment was released on the same date.)