EVIDENCE |
Ottawa Citizen Group Inc. v. Canada (Attorney General)
DES-1-04
2004 FC 1052, Lutfy C.J.
30/7/04
35 pp.
In November, 2003 The Ottawa Citizen Group Inc., journalist Kate Jaimet and CBC applied, under Criminal Code, s. 487.3, to Ontario Court of Justice (O.C.J.) to terminate or vary sealing order for documents related to seven search warrants--Attorney General of Canada notified documents contained "sensitive information" (Canada Evidence Act, s. 38)--Before decision on s. 487.3 application made, applicants launched s. 38 proceeding for order authorizing disclosure --- After hearing commenced, Court questioned advisability of continuing when parallel proceeding in O.C.J. not concluded, but all participating parties urged that F.C. hearing continue-- This application premature--Judicial economy, scheme of s. 38 support view Criminal Code proceeding should first be completed--No party put in issue that application to terminate or vary sealing order is a proceeding within meaning of s. 38 --Case somewhat unusual in that originating tribunal has possession of records at issue--Documents at issue before O.C.J., F.C. are same--Filed in unedited version in both courts--Position of Attorney General of Canada before O.C.J.: will oppose termination, variation of sealing order on one or more grounds in Criminal Code, ss. 487.3(1), (2)-- Will argue disclosure would compromise ongoing investigation--In Federal Court (F.C.): that disclosure of secret information injurious to national security and to investigation into offences involving national security-- Criminal investigation said to relate to international terrorism --National security interests are subject-matter of s. 38 application--But national security aspect of criminal investigation ought not deter O.C.J. from adjudicating application to terminate or vary--Invocation of s. 38 may have sidetracked s. 487.3 hearing--Whether s. 38 proceeding need continue will depend on outcome in O.C.J.-- Consideration of s. 38 timely when s. 487.3 determination made--F.C. should defer to O.C.J.--Attorney General's principal argument same in both courts--Under s. 38.06(2), if F.C. concludes disclosure injurious to national security, determination must be made whether public interest in disclosure outweighs that in non-disclosure--Applicants will rely on Charter-guaranteed rights to freedom of press, expression--Also relying on public interest in open court proceedings, general oversight of police, other government officials--Interests of all parties best served if balancing takes place after O.C.J. decides s. 487.3 proceeding--Even if F.C. were to order disclosure of all or any of the secret information, it could not properly be disclosed until Ontario Judge completes s. 487.3 analysis--Counsel ought to have alerted Ontario Judge as to possibility of s. 38 issue, continued with s. 487.3(4) proceeding until Judge indicated intention to terminate or vary sealing order--Only after decision made to make such information public, can Attorney General under s. 38.13(1), issue certificate prohibiting disclosure--As law now stands, no one may even disclose that s. 38 application filed in F.C.--Can lead to absurd consequences--Secrecy envisaged by s. 38.02 perhaps warranted in exceptional cases-- Incongruous there should be uncertainty regarding circulation of s. 38 decisions under appeal, even among F.C. judges designated to conduct such proceedings--S.C.C. has recently, in considering another provision of Anti-terrorism Act, reiterated importance of public access to court proceedings, "a cornerstone of our democracy" . . . "not lightly to be interfered with": Vancouver Sun (Re), [2004] 2 S.C.R. 332--S. 38 is antithesis to this fundamental principle--Those involved in reviewing anti-terrorism legislation might wish to consider whether certain provisions of s. 38 unnecessarily fetter open court principle--Criminal Code, R.S.C., 1985, c. C-46, s. 487.3 (as enacted by S.C. 1997, c. 23, s. 14; c. 39, s. 1)-- Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38 (as am. by S.C. 2001, c. 41, ss. 43, 141), 38.06(2) (as enacted idem, s. 43), 38.13(1) (as enacted idem)--Anti-terrorism Act, S.C. 2001, c. 41.