EVIDENCE |
Ribic v. Canada (Attorney General)
DES-3-02
2003 FCT 10, Blanchard J.
9/1/03
20 pp.
Application for order pursuant to Canada Evidence Act, s. 38.04(2)(c) authorizing two serving members of Canadian Forces to testify at applicant's criminal trial--Attorney General of Canada seeking directions pursuant to s. 38.04(5) --Pursuant to order of Lutfy A.C.J. (as he then was), two prospective witnesses examined based on list of questions submitted by applicant--Attorney General objecting to disclosure of part of transcripts of examinations because of potential injury to national defence, national security or international relations--Applicant, Canadian citizen, in middle of criminal trial resulting from hostage-taking incident in Bosnia in 1995 while member of Serb Forces--Arguing evidence of two witnesses necessary to fair trial as will assist jury to put events leading up to hostage taking and hostage taking itself in context--As parties agreed that Blanchard J. should examine expurgated portions of transcripts, unnecessary to deal with two-step procedure followed by Thurlow C.J. in Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.); affd [1983] 2 F.C. 463 (C.A.)--But Blanchard J. agreeing with Hugessen J.'s statement in Ribic v. Canada, 2002 FCT 290; [2002] F.C.J. No. 384 (QL) that Goguen not establishing rule of law to be followed in every case--Designated judge having broad discretion in deciding whether to look at material withheld prior to entering upon balancing process mandated by statute--During ex parte hearing, detailed review of expurgated portions of transcripts undertaken to determine whether disclosure would be injurious to international relations or national defence or national security--Much of expurgated information relating to characteristics, capabilities, performance, potential deployment, functions, roles of defence establishments of military forces, units or personnel in Bosnian theatre in 1995--Sensitivity of information, much of which still very pertinent to current circumstances, requiring disclosure be prohibited--As significant portion of expurgated transcripts pertaining to intelligence information obtained by DND in confidence and on understanding information would not be disclosed publicly, disclosure would be injurious to international relations, national defence or national security because would undermine trust amongst allies, thus making allies reluctant to share information with Canada, breach NATO agreement--S. 38.06(2) mandating Court to consider whether public interest in disclosure outweighing public interest in non-disclosure--In context of case involving serious criminal charges, issue of whether information will probably establish fact crucial to defence important consideration--Nature of interest sought to be protected; admissibility, usefulness of information; probative value to issue at trial; whether applicant establishing no other reasonable ways of obtaining information; whether disclosures sought amounting to fishing expedition by applicant; seriousness of charges or issues, other factors also possibly requiring consideration, but not exhaustive list--Information falling into three categories: not relevant to issue at trial, relevant but need not be disclosed, relevant and required to be disclosed--In four instances, Court ordering summaries of excerpts of transcripts to be inserted in expurgated transcripts and released to applicant in lieu of transcripts--S. 38.06(2) permitting Court to authorize disclosure of information in form and under condition most likely to limit any injury--As no demarcation line easily separating what is authorized to be disclosed from what is not, only form of disclosure that will most likely limit any injury to national defence, national security or international relations to order two witnesses not to testify with respect to information reviewed and to permit introduction into evidence of expurgated version of transcripts in criminal trial to be received by trial judge as if two witnesses had testified before him under oath--Such order will have no effect on normal evidentiary rules of admissibility, nor will Blanchard J.'s appreciation of relevancy of information be binding on trial judge--Obligation of witnesses not to disclose the defence information will remain in force until conclusion of applicant's trial and expiry of all applicable appeal periods--Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38.04 (as enacted by S.C. 2001, c. 41, s. 43), 38.06 (as enacted idem).