Canada (Attorney General) v. Khawaja, (2007) 370 N.R. 128 (FCA)

• Judge: Richard, C.J., Létourneau and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: October 31, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 370 N.R. 128 (FCA);2007 FCA 342

Can. (A.G.) v. Khawaja (2007), 370 N.R. 128 (FCA)

MLB headnote and full text

Temp. Cite: [2007] N.R. TBEd. NO.028

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

(DESA-1-07; 2007 FCA 342)

Indexed As: Canada (Attorney General) v. Khawaja

Federal Court of Appeal

Richard, C.J., Létourneau and Pelletier, JJ.A.

October 31, 2007.

Summary:

Khawaja was facing criminal charges in Ontario respecting a conspiracy to commit terrorist acts in the United Kingdom. Some 98,822 pages of documents were disclosed, however issues arose respecting 1,700 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) to disclose the information in a form and subject to conditions that were most likely to limit injury to national security or international relations.

The Federal Court, in a decision reported at (2007), 312 F.T.R. 217, concluded that the disclosure of most of the information at issue would be injurious to national security or to international relations. However, where Khawaja was facing 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 was appropriate to provide a summary of the information as contemplated by s. 38.06(2). The summary was attached as Schedule A to the court's order. The Attorney General appealed. Khawaja cross-appealed.

The Federal Court of Appeal concluded that, while the Federal Court had held that information contained in certain documents should not be released, the summary of those documents contained information whose release was injurious or potentially injurious to the interest protected by s. 38. The court corrected the error by substituting a new Schedule A for the one prepared by the Federal Court. The new Schedule A was subject to the same terms and conditions as the original. The court otherwise dismissed the appeal and the cross-appeal.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Khawaja was facing charges in Ontario respecting a conspiracy to commit terrorist acts in the United Kingdom - Issues arose respecting the disclosure of 1,700 pages in 506 documents - The Attorney General of Canada applied for relief under s. 38.04 of the Canada Evidence Act - The applications judge concluded that disclosure of a descriptive summary would protect the right to a fair trial and result in minimal impairment of international relations, national defence or national security - The Federal Court of Appeal rejected an assertion that the applications judge applied the wrong test for disclosure - The judge concluded that public interest in disclosure outweighed the public interest in non- disclosure - However, he was cognizant of his obligation to authorize disclosure in the form that was most likely to limit injury to "international relations or national defence or national security" - Balancing the public interest in a fair trial, which included the right to full answer and defence, and the public interest in protecting injurious information from disclosure, he was of the view that disclosure of a descriptive summary would protect the right to a fair trial and result in minimal impairment of international relations, national defence or national security - However, although the judge held that information contained in certain documents should not be released, his summary of those documents contained information whose release was injurious or potentially injurious to the interest protected by s. 38 - The court substituted a corrected summary for the one prepared by the applications judge - See paragraphs 7 to 14.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Khawaja was facing charges in Ontario respecting a conspiracy to commit terrorist acts in the United Kingdom - Issues arose respecting the disclosure of 1,700 pages in 506 documents - The Attorney General of Canada applied for relief under s. 38.04 of the Canada Evidence Act - The applications judge concluded that disclosure of a descriptive summary would protect the right to a fair trial and result in minimal impairment of international relations, national defence or national security - On appeal, the Attorney General asserted that he should have had the opportunity to make submissions on whether the applications judge's summary contained sensitive or potentially injurious information before it was released - The Federal Court of Appeal rejected the assertion - The Act did not expressly or impliedly give the Attorney General "a second kick at the can", still less the right to review, or to sit on appeal of, a decision that the judge had already made - Nor did it empower the Attorney General, who had already been heard, to review, screen or veto the content of the summary that the judge had already decided should be released in the public interest - See paragraphs 15 to 18.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Khawaja was facing charges in Ontario respecting a conspiracy to commit terrorist acts in the United Kingdom - Issues arose respecting the disclosure of 1,700 pages in 506 documents - The Attorney General of Canada applied for relief under s. 38.04 of the Canada Evidence Act - The applications judge concluded that disclosure of a descriptive summary would protect the right to a fair trial and result in minimal impairment of international relations, national defence or national security - On appeal, Khawaja asserted that the applications judge placed too high a burden on him to demonstrate that the materials sought were relevant - Khawaja asserted that the judge should have accepted the Crown's assessment and concessions of what was relevant - The Federal Court of Appeal rejected the assertion - It was for the judge to determine whether evidence was relevant and, therefore, ought to be disclosed - It would have been an error for the judge to have concluded that the prosecutor's determination of "Stinchcombe relevance" relieved him of the obligation to carry out an independent assessment" - See paragraphs 20 to 25.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Khawaja was facing charges in Ontario respecting a conspiracy to commit terrorist acts in the United Kingdom - Issues arose respecting the disclosure of 1,700 pages in 506 documents - The Attorney General of Canada applied for relief under s. 38.04 of the Canada Evidence Act - The applications judge concluded that disclosure of a descriptive summary would protect the right to a fair trial and result in minimal impairment of international relations, national defence or national security - On appeal, Khawaja asserted that the judge erred by placing the burden on him of proving that the material sought had been made public in whole or in part in the United Kingdom - The Federal Court of Appeal rejected the assertion - The applications judge merely stated that Khawaja was not precluded from providing evidence or making submissions as to what had been disclosed abroad if he, in fact, knew what information had already been released in the United Kingdom - In the context of the judge's extensive reasons for judgment, there was no doubt that he properly put on the Attorney General, not on Khawaja, the burden of proving the alleged injury to national security or international relations - No doubt was cast on the judge's overall conclusion that the Attorney General showed due diligence respecting the material publicly released in the United Kingdom - See paragraphs 26 to 31.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Khawaja was facing charges in Ontario respecting a conspiracy to commit terrorist acts in the United Kingdom - Issues arose respecting the disclosure of 1,700 pages in 506 documents - The Attorney General of Canada applied for relief under s. 38.04 of the Canada Evidence Act - The applications judge concluded that disclosure of a descriptive summary would protect the right to a fair trial and result in minimal impairment of international relations, national defence or national security - On appeal, Khawaja asserted that the judge placed too high a burden on him to demonstrate how information that he had not seen would be useful to his defence - The Federal Court of Appeal rejected the assertion - The judge sought Khawaja's assistance respecting the kind of information that would be useful to his defence so that he could review the material accordingly - At the third stage of the analysis of a s. 38 application, the person seeking disclosure had to prove that the public interest in disclosure outweighed in importance the public interest in non-disclosure - The right to full answer and defence was a highly relevant consideration in balancing the competing public interests - However, to make a meaningful review of the information sought to be disclosed, the judge had to be either informed of the intended defence or given worthwhile information in that respect - Khawaja made a tactical choice to not participate in a process whose constitutional validity he was challenging - That choice entailed consequences that he had to live with - See paragraphs 32 to 38.

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. 20].

Ribic v. Canada (Attorney General) (2003), 320 N.R. 275; 2003 FCA 246, refd to. [para. 20].

Counsel:

Linda Wall and Normand Vaillancourt, for the appellant;

Lawrence Greenspon and Eric Granger, for the respondent.

Solicitors of Record:

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

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

This appeal was heard at Ottawa, Ontario, on October 15 and 16, 2007, by Richard, C.J., Létourneau and Pelletier, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered on October 31, 2007, with the following opinions:

Létourneau, J.A. (Richard, C.J., concurring) - see paragraphs 1 to 41;

Pelletier, J.A. - see paragraphs 42 to 52.