EVIDENCE |
Canada (Minister of Citizenship and Immigration) v. Mahjoub
DES-1-00
2004 FC 1028, Dawson J.
22/7/04
30 pp.
Within context of constitutional challenge to continued indeterminate detention under Immigration and Refugee Protection Act, motion for order permitting respondent to give portion of evidence in camera, in absence of members of public, including media--Complete evidentiary record led at voir dire--General nature of evidence, fears provided thereat--Fundamental principle that proceedings of Canadian courts open, accessible to public--Exercise of Court's discretion to trench on fundamental principle of openness properly anchored by principles established in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835--Motion judge to apply Dagenaistest in order to balance freedom of expression, other important rights and interests--Balancing required because where, as in case of application to restrict access to judicial proceedings, Charter rights of two entities come into conflict, Charter principles require balance to be achieved that respects importance of both sets of rights-- Dagenais test requiring judge to restrict access to proceedings only when: (1) such restriction necessary in order to prevent real, substantial risk to fairness of hearing, because reasonably available alternative measures will not prevent such risk; and (2) salutary effects of restriction outweigh deleterious effects of free expression of those affected by ban--To pose serious risk to proper administration of justice, reality of risk must be well-grounded in evidence--Considered in entirety, evidence not establishing if respondent provides further testimony in public will be at significantly increased risk of mental or physical harm from which institution where detained will be incapable of protecting him--Further, other measures may well be effective in reducing risk of harm--Media attention to this high profile case likely to bring heightened scrutiny of respondent's treatment--Respondent's counsel will also be vigilant in ensuring respondent's rights respected--Evidence not establishing necessary to allow respondent to testify in private in order to protect him from real, increased risk dispositive of this application--As to efficacy of allowing respondent to testify in camera, already in public domain respondent has serious complaints about treatment received at institution--Reasonable to infer if respondent permitted to testify in camera, speculation and interest fuelled by secret testimony would lead to further investigations and publication of result of those investigations--Resultant publicity could increase any risk to respondent and render in camera proceeding inefficacious to prevent increased risk-- Suppressing public knowledge of respondent's testimony would have significant deleterious effect on public debate on proper intersection between protection of individual liberty and protection of national security--Respondent's testimony, if given publicly, would promote public discussion of important issues and might prevent wrongdoing by placing those responsible for conditions of detention under public scrutiny--Therefore, any salutary effect of allowing respondent to testify in private outweighed by deleterious effects of prohibiting open access to proceeding--Motion denied--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]-- Immigration and Refugee Protection Act, S.C. 2001, c. 27.