[2017] 1 F.C.R. D-1
Evidence
Application of amici curiae for Court to consider, determine two issues raised in context of Attorney General of Canada’s application made pursuant to Canada Evidence Act, R.S.C., 1985, c. C-5, s. 38 (Act) despite discontinuance of application — Supreme Court of British Columbia (S.C.B.C.) convicting respondents on two counts of terrorism-related offences arising from events occurring in July 2013 — Respondents thereafter seeking stay of proceedings on grounds of entrapment, abuse of process — Initially seeking production of documents held by Canadian Security Intelligence Service (CSIS) shortly following conclusion of criminal trial in June 2015; however, due to nature of information sought, recent enactment of amended provision at issue in Canadian Security Intelligence Service Act, R.S.C., 1985, c. C-23 respondents making application to Court pursuant to s. 18.1 thereof for information — Court dismissing respondents’ s. 18.1 application for lack of jurisdiction; respondents then applying to S.C.B.C. for production, disclosure of information held by CSIS — S.C.B.C. finding that records in possession of CSIS likely relevant; ordering CSIS to produce documents for review; finding records relevant; identifying parts of records to be disclosed to respondents — After being notified of S.C.B.C. order, applicant filing notice of application in Court pursuant to Act, s. 38.04(1) for order pursuant to s. 38.06(3) thereof to confirm prohibition of disclosure of information referred to in notice, as indicated in S.C.B.C. order — Counsel appointed to act as amici curiae to assist Court in determination of Act, s. 38 application — Later, due to delay that would be caused to respondents’ ongoing criminal trial by resolution of s. 38 application, respondents deciding to abandon request for disclosure of information from CSIS — S.C.B.C. thus rescinding disclosure order — Applicant thereafter filing notice of discontinuance of s. 38 application — Amici requesting that Court consider submissions thereof on issues raised at conclusion of s. 38 application hearing given significance of issues — Issues amici raising were whether Federal Court on s. 38 application having jurisdiction to expand material covered by application; whether Federal Court having jurisdiction to order disclosure to amici of additional relevant material to provide context to issue in s. 38.6 — Issues in present matter whether Court should exercise discretion to consider issues, although moot, raised by amici — To determine issues, considerations set out in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, (1989), 57 D.L.R. (4th) 231 applied herein — Regarding adversarial context, respondents herein not full participants in s. 38 proceedings, remaining unaware of issues of concern raised by amici — In s. 38 proceedings, amici should raise issues that would otherwise not be brought to Court’s attention — Role of Attorney General in s. 38 application differing from role of Attorney General where also acting as prosecutor — In s. 38 application, Attorney General seeking to ensure that information, which if disclosed, would be injurious to international relations, national defence or national security remaining safeguarded; that prohibition on disclosure resulting from s. 38 notice confirmed by Court — As to expenditure of judicial resources to determine issues now, respondents might be interested in issues, be supportive of resolution thereof if aware of issues in question — However, due to rescission of disclosure order, discontinuance of s. 38 application, no practical effect on parties existing if Court determining issues — While more clarity on jurisdiction of Court to order production thereto of additional information would provide guidance to prospective parties, preferable for current issue to be addressed in context of particular facts in ongoing application in event similar circumstances arising — Court would not be exceeding judicial role or encroaching on role of legislative branch if deciding to consider, determine issues raised by amici — However, determining issues without real adversarial context or “live dispute” without practical effects or benefits for parties of determination would not be appropriate — No factor trumping other in determination whether Court should exercise discretion — In present circumstances, no remaining parties to proceedings in Court although amici remaining committed to ensure proper administration of justice — Any determination Court may make would have no impact on parties; may have minimal impact on any future applications — Thus, considering all relevant factors, circumstances, would not be appropriate for Court to exercise discretion to consider, determine issues raised by amici — Order declining exercise of jurisdiction to determine jurisdictional issues given discontinuance of s. 38 application issued.
Canada (Attorney General) v. Nuttall (DES-2-16, 2016 FC 850, Kane J., judgment dated July 21, 2016, 29 p.)