EVIDENCE |
Canada (Attorney General) v. Ribic
DES-5-02
2003 FCT 43, Blanchard J.
17/1/03
15 pp.
Application to determine whether information contained on videocassette prohibited from production in evidence at criminal trial before Ontario Superior Court of Justice, pursuant to Canada Evidence Act, s. 38--Respondent, Canadian citizen, charged with serious criminal offences resulting from hostage-taking incident while member of Serb Forces in Bosnia in 1995--Wishes to produce in evidence videocassette depicting aerial bombings said to have taken place at time of, and near where hostage taking occurred-- Says video essential to defence as will show jury nature, extent of NATO air superiority over Serbs, which might be probative to issue of whether hostages ever in harm's way--Attorney General submitting information potentially injurious to conduct of international affairs as sourced from one of Canada's allies--Also submitting, as party to reciprocal agreement with ally providing for "originator control" over release of classified information, Canada has international obligation to protect information to fullest extent possible as ally has yet to agree to disclosure--Judge exercising discretion, reviewing information on videocassette--In circumstances, respondent satisfying test of showing that information on videocassette likely to be relevant to issue-- Disclosure by Canada of information would be injurious to Canada's international relations--S. 38.02 requiring Court to consider whether public interest in disclosure of information contained on videocassette outweighing public interest in non-disclosure--Factors considered in weighing competing interests: whether information will establish fact crucial to defence; nature of interest sought to be protected; admissibility and usefulness of information; probative value to issue at trial; whether applicant established no other reasonable ways of obtaining information; whether disclosure sought amounting to fishing expedition by applicant; seriousness of charges or issues--Prohibition confirmed against disclosing call names or nicknames which could be used to identify pilots; operational code words that could be used to identify NATO military operation or communication; latitude and longitude coordinates; "heads up display" showing laser codes, weapons range, radar equipment-- Remaining information contained in videocassette authorized for disclosure--Applicant to prepare expurgated copy of original videocassette--Respondent's affiant prohibited from testifying at trial for purpose of authenticating videocassette, although expurgated version of affidavit evidence authorized --Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38 (as am. by S.C. 2001, c. 41, ss. 43, 141(4)), 38.02 (as enacted idem, s. 43), 38.06 (as enacted idem).