Ribic v. Canada (Attorney General), (2003) 320 N.R. 275 (FCA)

• Judge: Richard, C.J., Létourneau and Nadon, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 24, 2003
• Jurisdiction: Canada (Federal)
• Citations: (2003), 320 N.R. 275 (FCA);2003 FCA 246

Ribic v. Can. (A.G.) (2003), 320 N.R. 275 (FCA)

MLB headnote and full text

Temp. Cite: [2004] N.R. TBEd. MY.011

Nicholas Ribic (appellant) v. Attorney General of Canada (respondent)

(DESA-1-03; 2003 FCA 246)

Indexed As: Ribic v. Canada (Attorney General)

Federal Court of Appeal

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

June 4, 2003.

Summary:

Ribic was being tried in the Ontario Superior Court for criminal charges arising from a hostage taking incident in Bosnia. Ribic sought to call two witnesses to testify at his criminal trial and he gave notice to that effect to the Attorney General of Canada as required by s. 38.01(1) of the Canada Evi­dence Act. He also sought to present a vid­eocassette as evidence. The Attorney Gen­eral objected on the basis that the two wit­nesses would reveal sensitive or poten­tially injuri­ous information (information relating to or which could injure interna­tional relations, national defence or national security). He also refused to agree to the release of the videocassette or to permit one of the witnes­ses to testify in respect of it. Pursuant to s. 38.04 of the Canada Evidence Act, Ribic ap­plied to the Federal Court of Canada, Trial Division, for an order regard­ing the dis­closure of the information revealed or to be revealed by the two witnesses. He also re­quested that the entirety of the information at issue be disclosed. The Attorney General ap­plied for an order re­garding disclosure of the information con­tained in the videocas­sette.

The Federal Court of Canada, Trial Divi­sion, authorized only partial disclosure of the information sought by Ribic and prohibited the two witnesses from testifying at his crim­inal trial. However, with respect to the evi­dence of the two witnesses, the court author­ized disclosure of expurgated versions of the transcript of their testimonies given before the court. Ribic appealed from the court's orders.

The Federal Court of Appeal dismissed the appeal.

Crown - Topic 2203

Crown privilege or prerogative - For rea­sons of national security - [See first, se­cond, third, fourth and eighth Evidence - Topic 4143 ].

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Section 38.02(1)(a) of the Canada Evidence Act prohibited dis­clos­ure of sensitive or potentially injurious information about which notice had been given under subsections 38.01(1) to (4) (in­formation relating to or which could in­jure international relations, national de­fence or national security) - Section 38.06(2) authorized a judge to disclose such information when the public interest in disclosure outweighed the public interest in nondisclosure - The Federal Court of Ap­peal discussed the scope of a judge's power under s. 38.06(2) and the standard of review applicable to judge's orders made under that section - See paragraphs 34 to 39.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court of Ap­peal discussed the role of a judge on an application under s. 38.04 of the Canada Evi­dence Act for an order regarding dis­closure of sensitive or potentially injurious information (information relating to or which could injure international relations, national defence or national security) - The judge's first task was to determine whether the information sought to be disclosed was relevant in the usual and common sense of the Stinchcombe rule, i.e., information that might reasonably be useful to the defence -The onus was on the party seeking dis­clo­sure to establish that the information was likely relevant - If the judge was satis­fied that the information was relevant, the next step pursuant to s. 38.06 was to deter­mine whether disclosure of the infor­mation would be injurious to international rela­tions, national defence or national security - The burden of convincing the judge of the existence of such probable injury was on the party opposing disclo­sure - Upon a finding that disclosure of the sensitive information would result in injury, the judge then moved to the final stage and de­termined whether the public interest in disclosure outweighed the public interest in nondisclosure - The party seek­ing dis­clo­sure had the burden of proving that the pub­lic interest scale was tipped in its fa­vour - See paragraphs 17 to 21.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - The Federal Court of Ap­peal discussed the role of a judge on an application under s. 38.04 of the Canada Evidence Act for an order regarding dis­clos­ure of sensitive or potentially injurious information (information relating to or which could injure international relations, national defence or national security) - The court stated, inter alia, that the "the Attor­ney General's submissions regarding his as­sessment of the injury to national secu­rity, national defence or international rela­tions, because of his access to special in­formation and expertise, should be given considerable weight by the judge required to determine, pursuant to subsection 38.06(1), whether disclosure of the infor­mation would cause the alleged and feared injury. The Attorney General assumes a pro­tective role vis-à-vis the security and safety of the public. If his assessment of the injury is reasonable, the judge should accept it" - See paragraph 19.

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 objected to certain evidence being introduced at a criminal trial on the basis that it would reveal sensitive or potentially injurious information (information relating to or which could injure international re­lations, national defence or national secu­rity) - The Attorney General submitted that, in criminal law, when balancing the State privilege to secrecy and confidential­ity against the right to a full answer and de­fence, the test was even more stringent than the probability of establishing a fact cru­cial to the defence - The Attorney Gen­eral contended that the information pro­tected by State secrecy privilege could only be disclosed when the innocence of the accused was at stake - The Federal Court of Appeal stated that it was not nec­essary in this case to determine whether the more stringent innocence at stake test developed in criminal law should apply - However, the court stated that in view of the important features common to both the informer privilege and the State secrecy privilege, it would be inclined to apply that test at least in respect of matters affecting national security or national defence - See paragraph 27.

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 contained a scheme en­acted to protect State secrecy privilege - The Federal Court of Appeal discussed a concern that the whole process leading to the determination of the State secrecy priv­ilege compelled an accused charged with a criminal offence to reveal his defence and disclose information that supported that defence - The court con­cluded that suf­fi­cient and adequate guaran­tees were of­fered by the system which protected an ac­cused's right not to disclose his defence to the prosecution - The court noted that dis­closure of the sensitive infor­mation was not made to the prosecution, but, under the seal of absolute confidential­ity, to the Attorney General and a desig­nated judicial forum where the matter would be decided in private - It was there­fore not a disclo­sure which violated an accused's right to silence and the presump­tion of innocence -The court could also order that none of the information dis­closed in the context of the s. 38 process be released to the prose­cution without the consent of the defence - See paragraphs 28 to 30.

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 contained a scheme en­acted to protect State secrecy privilege - The Federal Court of Appeal discussed a con­cern that the new scheme raised with re­spect to presumption of innocence in a criminal trial - The court stated that "When balancing competing public interests in a case like this one where a person faces crim­inal charges, the judge must ensure that his order prohibiting disclosure does not result in his compelling the accused to take the stand to defend himself, thereby depriving him of the benefit of the pre­sumption of innocence and of his right to remain silent" - See paragraphs 31 to 32.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Ribic was being tried in the Ontario Superior Court for criminal charg­es arising from a hostage taking inci­dent in Bosnia - Ribic sought to call two witnesses to testify at his criminal trial - The Attorney General of Canada objected on the basis that the two witnesses would reveal sensitive or potentially injurious information (information relating to or which could injure international relations, national defence or national security) - Pur­suant to s. 38.04 of the Canada Evi­dence Act, Ribic applied to the Federal Court of Canada, Trial Division, for an order regarding the disclosure of the infor­mation revealed or to be revealed by the two witnesses - With the consent of the parties, an order was made appointing Pré­fontaine, counsel for the Attorney Gen­eral who was not involved in Ribic's pros­ecu­tion, to act on behalf of Ribic's counsel in examining the two witnesses - The process was devised to assist the Trial Division in determining the relevancy of the two wit­nesses' information to Ribic's criminal trial and in identifying sensitive information which could not be disclosed - The Federal Court of Appeal stated that while the pro­cess followed to monitor and review the disclosure of the sensitive infor­mation could, in hindsight, have been better, it was not unfair given the time constraints involved - The process was dictated by ur­gency and necessity - See paragraphs 42 to 46 and 61.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Ribic was being tried in the Ontario Superior Court for criminal charges arising from a hostage taking inci­dent in Bosnia - Ribic sought to call two witnesses to testify at his criminal trial - He also sought to present a videocassette as evidence - The Attorney General of Can­ada objected to the testimony of the two witnesses on the basis that they would re­veal sensitive or potentially injurious information (information relating to or which could injure international relations, national defence or national security) - He also refused to agree to the release of the videocassette or to permit one of the wit­nesses to testify in respect of it - The Federal Court of Canada, Trial Divi­sion, authorized only partial disclo­sure of the information sought by Ribic and prohi­bited the two witnesses from testifying at his trial - However, with respect to the evi­dence of the two witnesses, the court auth­orized disclosure of expurgated ver­sions of the transcript of their testimonies given before the court - Ribic appealed - The Fed­eral Court of Appeal dismissed the ap­peal - The Trial Division judge did not err in defining the scope of his power to order disclosure of the sensitive informa­tion at issue - Nor did he err in defining the com­peting interests at stake and the test to be applied in bal­ancing those interests - See paragraphs 59 to 61.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - Section 38.02(1)(a) of the Canada Evidence Act prohibited dis­clos­ure of sensitive or potentially injurious information about which notice had been given under subsections 38.01(1) to (4) (information relating to or which could injure international relations, national defence or national security) - Section 38.06(2) authorized a judge to disclose such information when the public interest in disclosure outweighed the public interest in nondisclosure - The Federal Court of Appeal held that the use of the word "may" in s. 38.06(2) was not indicative of a discretion - Rather, it was indicative of an attribution of a power to derogate from a general prohibition to disclose privileged information - The power conferred by s. 38.06(2) could be exercised when the con­di­tions were met, i.e., when the public in­terest in disclosure was greater than the public interest in keeping the information secret - See paragraphs 35 to 36.

Statutes - Topic 2417

Interpretation - Interpretation of words and phrases - General principles - "May" and "shall" - [See ninth Evidence - Topic 4143 ].

Cases Noticed:

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201; 129 C.C.C.(3d) 449, consd. [para. 9].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321, consd. [para. 9].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 14].

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; 96 C.C.C.(3d) 225, refd to. [para. 17].

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. 18].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 18].

Jose Pereira E Hijos, S.A. v. Canada (At­torney General) (2002), 299 N.R. 154; 2002 FCA 470, refd to. [para. 22].

R. v. Khan (N.M.) et al., [1996] 2 F.C. 316; 110 F.T.R. 81 (T.D.), refd to. [para. 22].

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. 23].

R. v. Brown (J.D.) (2002), 285 N.R. 201; 157 O.A.C. 1; 2002 SCC 32, refd to. [para. 23].

R. v. Cleghorn (L.), [1995] 3 S.C.R. 175; 186 N.R. 49; 85 O.A.C. 129; 41 C.R.(4th) 282; 100 C.C.C.(3d) 393, refd to. [para. 29].

R. v. Noble (S.I.), [1997] 1 S.C.R. 874; 210 N.R. 321; 89 B.C.A.C. 1; 145 W.A.C. 1, refd to. [para. 31].

Ruby v. Royal Canadian Mounted Police, [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.), refd to. [para. 35].

Falconbridge Nickel Mines v. Ontario (Minister of Revenue) (1981), 121 D.L.R.(3d) 403 (Ont. C.A.), refd to. [para. 35].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 36].

R. v. Shayler, [2002] 2 W.L.R. 754 (H.L.), refd to. [para. 45].

Tinnelly & Sons Ltd. v. United Kingdom, 27 EHRR 249, refd to. [para. 45].

R. v. Secretary of State for the Home De­part­ment, ex parte Hosenball, [1977] 3 All E.R. 452, refd to. [para. 49].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 49].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 38.02(1) [para. 15]; sect. 38.06(2) [para. 34].

Authors and Works Noticed:

Blais, Yvon, Code criminel annoté 2003 (2002), pp. 1329 to 1332 [para. 31].

Counsel:

D'Arcy Depoe and Heather Perkins-Mc­Vey, for the appellant;

Alain Préfontaine, for the respondent.

Solicitors of Record:

Beresh Depoe Cunningham, Edmonton, Alberta, for the appellant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the respondent.

This appeal was heard on April 24, 2003, at Ottawa, Ontario, before Richard, C.J., Létourneau and Nadon, JJ.A., of the Federal Court of Appeal. The following judgment of the Court of Appeal was delivered by Lé­tourneau, J.A., on June 4, 2003.