Canada (Attorney General) v. Khawaja, (2007) 312 F.T.R. 217 (FC)

• Judge: Mosley, J.
• Court: Federal Court (Canada)
• Case Date: March 30, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 312 F.T.R. 217 (FC);2007 FC 490

Can. (A.G.) v. Khawaja (2007), 312 F.T.R. 217 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. MY.012

The Attorney General of Canada (applicant) v. Mohammad Momin Khawaja (respondent)

(DES-2-06; 2007 FC 490)

Indexed As: Canada (Attorney General) v. Khawaja

Federal Court

Mosley, J.

May 7, 2007.

Summary:

Khawaja was facing criminal charges in relation to a conspiracy to commit terrorist acts in the United Kingdom. Some 98,822 pages of documents were disclosed, however issues arose respecting 1700 pages in 506 documents. The Attorney General of Canada applied under s. 38.04 of the Canada Evidence Act to have the statutory prohibition on disclosure of sensitive information or potentially injurious information in s. 38.02(1)(a) of the Act confirmed, or alternatively, for the court to exercise its discretion under s. 38.06(2) of the Act to disclose the information in a form and subject to conditions as were most likely to limit injury to national security or international relations.

The Federal Court determined which documents remained subject to the statutory prohibition on disclosure. The court concluded, inter alia, that the Attorney General had met the onus upon him to establish that the disclosure of most of the information at issue would be injurious to national security or to international relations. As such, that information would be restricted from further disclosure. However, the court also concluded that in the particular context of this application where Khawaja faced serious criminal charges for which he could receive a lengthy sentence of imprisonment should he be convicted, the public interest in disclosure outweighed the public interest in non-disclosure to the extent that it would be appropriate to provide a summary of the information as contemplated by subsection 38.06(2) of the Act.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Khawaja was facing criminal charges in relation to a conspiracy to commit terrorist acts in the United Kingdom - Some 98,822 pages of documents were disclosed, however issues arose respecting 1700 pages in 506 documents - The Attorney General of Canada applied under s. 38.04 of the Canada Evidence Act to have the statutory prohibition on disclosure of sensitive information or potentially injurious information in s. 38.02(1)(a) of the Act confirmed - The Federal Court, using a three stage test, determined which documents were subject to the statutory prohibition - The court concluded, inter alia, that the Attorney General had met the onus upon him to establish that the disclosure of most of the information at issue would be injurious to national security or to international relations - As such, that information would be restricted from further disclosure - However, the court also concluded that in the particular context of this application where Khawaja faced serious criminal charges for which he could receive a lengthy sentence of imprisonment should he be convicted, the public interest in disclosure outweighed the public interest in non-disclosure to the extent that it would be appropriate to provide a summary of the information as contemplated by subsection 38.06(2) of the Act - See paragraphs 112 to 187.

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, the Attorney General of Canada could apply at any time to the Federal Court for an order respecting the disclosure of sensitive or potentially injurious information - Pursuant to s. 38.06(2), if the judge concluded 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 outweighed in importance the public interest in non-disclosure, the judge could order disclosure subject to conditions - The Federal Court discussed the three stage test to be applied under s. 38.06(2) - First, was a determination of whether the information sought to be disclosed was relevant in the sense of the Stinchcombe rule (i.e., was the information reasonably useful to the defence) - This was a low threshold involving an inspection of the information at issue in light of this purpose, with the onus being on the party seeking disclosure - Secondly, was a determination of whether on the reasonableness standard disclosure would be injurious to international relations, national defence or national security - The burden of convincing the judge of the existence of probable injury was on the party opposing disclosure - In determining whether that onus was met, the judge had to consider the parties' submissions and their supporting evidence - The third stage consisted of a determination of whether the public interest in disclosure outweighed in importance the public interest in non-disclosure - The party seeking disclosure had the burden of proving that the public interest scale was tipped in its favour - The court stated that a case by case approach should be adopted when the balancing step of the test was engaged and the court was free to consider those factors it deemed necessary in the circumstances - There was no presumed starting point to this analysis and it was in the application of the factors that the scales were tipped one way or another - The rights of the party seeking non-disclosure such as the right to a fair trial and the right to make full answer and defence had to be considered in the third stage - See paragraphs 60 to 103.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Section 38 of the Canada Evidence Act set out a procedure for preventing disclosure of sensitive or potentially injurious information, including an application procedure to the Federal Court - An issue arose respecting what effect, if any, the inadvertent disclosure of this type of information would have on the issuance of an order under s. 38 that this information should not be further disclosed - The Federal Court stated that in the case of public interest immunity, it had to be kept in mind that it was the information itself, and not the relationship, that was being protected - Taking into consideration the nature of the interests that were sought to be protected from injury in a s. 38 application, inadvertent waiver was not enough to justify disclosure - In light of the case-by-case nature of the test on a s. 38 application, the most appropriate approach would be to proceed with the three step test as usual, taking into account the fact that inadvertent disclosure of the information had occurred - Inadvertent disclosure could for example make it more difficult for the government to demonstrate injury under the second stage of the assessment - Inadvertent disclosure could also be considered at the balancing stage of the test, as it might weigh in favour of the court considering the release of the information subject to conditions designed to limit any remaining concerns regarding injury - See paragraphs 104 to 111.

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - The Federal Court applied the modern approach to statutory interpretation in interpreting s. 38.06 of the Canada Evidence Act - See paragraphs 85 to 94.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 3].

Toronto Star Newspapers Ltd. et al. v. Canada (2007), 308 F.T.R. 196; 2007 FC 128, refd to. [para. 18].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 22].

Ribic v. Canada (Attorney General) et al. (2003), 320 N.R. 275; 185 C.C.C.(3d) 129; 2003 FCA 246, refd to. [para. 60].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 62].

United Kingdom (Secretary of State for the Home Department) v. Rehman, [2001] 3 W.L.R. 877; 281 N.R. 125 (H.L.), refd to. [para. 65].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 69].

R. v. Brown (J.D.), [2002] 2 S.C.R. 185; 285 N.R. 201; 157 O.A.C. 1; 162 C.C.C.(3d) 257, refd to. [para. 69].

Jose Pereira E Hijos S.A. v. Canada (Attorney General) (2002), 299 N.R. 154; 2002 FCA 470, refd to. [para. 70].

R. v. Khan (N.M.) et al., [1996] 2 F.C. 316; 110 F.T.R. 81 (T.D.), refd to. [para. 73].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, refd to. [para. 77].

Bisaillon v. Keable and Quebec (Attorney General) et al., [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 82].

Ribic v. Canada (Attorney General) et al. (2003), 250 F.T.R. 161; 2003 FCT 10, refd to. [para. 83].

Canada (Attorney General) v. Kempo (2004), 294 F.T.R. 1; 2004 FC 1678, refd to. [para. 84].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 85].

Director of Military Prosecutions v. Court Martial Administrator (2006), 305 F.T.R. 220; 2006 FC 1532, refd to. [para. 88].

Almrei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 142; 330 N.R. 73; 2005 FCA 54, refd to. [para. 88].

Charkaoui, Re (2007), 358 N.R. 1; 2007 SCC 9, refd to. [para. 100].

Stevens v. Prime Minister (Can.), [1998] 4 F.C. 89; 228 N.R. 142 (F.C.A.), refd to. [para. 105].

Tilley v. Hails (1993), 12 O.R.(3d) 306 (Gen. Div.), refd to. [para. 105].

S & K Processors Ltd. v. Campbell Ave. Herring Producers Ltd., [1983] B.C.J. No. 1499 (S.C.), refd to. [para. 106].

Airst v. Airst (1998), 64 O.T.C. 81; 37 O.R.(3d) 654 (Gen. Div.), refd to. [para. 107].

R. v. Chapelstone Developments Inc. et al. (2004), 277 N.B.R.(2d) 350; 727 A.P.R. 350; 2004 NBCA 96, refd to. [para. 109].

R. v. Fink - see Lavallee, Rackel & Heintz et al. v. Canada (Attorney General).

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 167 C.C.C.(3d) 1; 216 D.L.R.(4th) 257; 2002 SCC 61, refd to. [para. 110].

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. 136].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 137].

Ahani v. Canada, [1995] 3 F.C. 669; 100 F.T.R. 261 (T.D.), refd to. [para. 139].

Harkat, Re (2005), 278 F.T.R. 150; 2005 FC 1740, refd to. [para. 139].

Harkat, Re (2005), 261 F.T.R. 52; 2005 FC 393, refd to. [para. 139].

Ottawa Citizen Group Inc. et al. v. Canada (Attorney General) et al. (2006), 306 F.T.R. 222; 2006 FC 1552, refd to. [para. 140].

Gold v. Canada, [1986] 2 F.C. 129; 64 N.R. 260 (F.C.A.), refd to. [para. 156].

Charkaoui, Re, [2005] 2 F.C.R. 299; 328 N.R. 201; 2004 FCA 421, refd to. [para. 158].

Canada v. Singh (Jaggi) et al., [2002] F.T.R. Uned. 282; 2002 FCT 460, refd to. [para. 178].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38.01(1), sect. 38.02(1), sect. 38.04, sect. 38.06 [para. 58].

Authors and Works Noticed:

Mewett, Alan W., State Secrets in Canada (1985), 63 Can. Bar Rev. 358, p. 359 [para. 77].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (4th Ed. 2005), c. 7(7) [para. 77].

Stewart, Hamish, Evidence: A Canadian Casebook (2nd Ed. 2006), pp. 817 [para. 77]; 818 [para. 79].

Counsel:

Lawrence Greenspon, for the applicant;

Linda J. Wall and Derek Rasmussen, for the respondent.

Solicitors of Record:

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

Greenspon, Brown & Associates, Ottawa, Ontario, for the respondent.

This application was heard at Ottawa, Ontario, on March 30, 2007, before Mosley, J., of the Federal Court, who delivered the following reasons for judgment on May 7, 2007.