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Date: 20180525

Docket: A-291-17

Citation: 2018 FCA 105

CORAM:		STRATAS J.A. BOIVIN J.A. DE MONTIGNY J.A.
	BETWEEN:
	ALI OMAR ADER
	Appellant
	and
	THE ATTORNEY GENERAL OF CANADA
	Respondent

Heard at Ottawa, Ontario, on April 24 and 25, 2018.

Judgment delivered at Ottawa, Ontario, on May 25, 2018.

REASONS FOR JUDGMENT BY:	BOIVIN J.A.
CONCURRED IN BY:	STRATAS J.A. DE MONTIGNY J.A.

 

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Date: 20180525

Docket: A-291-17

Citation: 2018 FCA 105

CORAM:

STRATAS J.A. BOIVIN J.A. DE MONTIGNY J.A.

 

Docket: A-291-17

BETWEEN:

ALI OMAR ADER

Appellant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

CLASSIFIED REASONS FOR JUDGMENT

BOIVIN J.A.

[1]  Mr. Ader (the appellant) appeals from a judgment of Gleeson J. of the Federal Court (the Federal Court judge) dated September 25, 2017 (2017 FC 838). The Federal Court judge granted in large part an application by the Attorney General of Canada (the respondent) pursuant to section 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (CEA). A reference to section 38 in these reasons, unless stated otherwise, includes sections 38 through 38.15 of the CEA. The respondent brought the application to confirm her prohibition on disclosure of sensitive or potentially injurious information (the sensitive information) related to the criminal prosecution of the appellant. The basis for the prohibition was that disclosure of the sensitive information would be injurious to national security.

[2]  For the reasons set out below, I am of the view that the Federal Court judge made no error in disposing of the respondent’s application as he did. Accordingly, the appeal should be dismissed.

I.  Background

[3]  At the time the respondent brought her section 38 application before the Federal Court judge, the appellant stood before the Ontario Superior Court of Justice charged with hostage-taking contrary to section 279.1 of the Criminal Code, R.S.C., c. C-46. The events underlying the charge relate to the kidnapping of a Canadian journalist in Somalia in 2008.

[4]  The sensitive information was obtained by the Royal Canadian Mounted Police (RCMP) during the course of an investigation aimed at the appellant (Project Slype). The Public Prosecution Service of Canada (PPSC) would ordinarily be required to disclose this information to the appellant pursuant to the rule in R. v. Stinchcombe, [1991] 3 S.C.R. 326. Due to its sensitive or potentially injurious nature, however, the PPSC gave notice to the respondent that she may wish to seek an order confirming the prohibition on its disclosure.

[5]  Given that the appellant and his counsel could not access the sensitive information sought to be withheld under section 38 of the CEA, an amicus curiae, Mr. Ian Carter, was appointed to assist the Federal Court in disposing of the application.

[6]  The hearing before the Federal Court judge took place in three stages. A public hearing was held on June 29, 2017. A first ex parte, in camera hearing, in which only the appellant’s counsel and the amicus participated, was held on July 10, 2017. During that first ex parte hearing, the appellant’s counsel provided the Federal Court judge and the amicus with an overview of the defence’s theory of the criminal case. On August 28 and 30, 2017, a second ex parte hearing was held, in which the respondent and the amicus litigated the section 38 issues.

[7]  The Federal Court judge rendered judgment on September 25, 2017. He confirmed the majority of the section 38 claims advanced by the respondent. He ordered that some redactions be lifted and that some sensitive information be disclosed in summary form.

[8]  On October 2, 2017, the appellant sought an adjournment of his criminal trial before Smith J. of the Ontario Superior Court of Justice (the Trial judge) in order to appeal the Federal Court judge’s decision on the section 38 application. The adjournment was denied (see R. v. Ader, 2017 ONSC 6263) and the criminal trial proceeded over ten days from October 5 to 19, 2017. The appellant was convicted on December 6, 2017 (see R. v. Ader, 2017 ONSC 7052). A sentencing hearing took place in March 2018 and the appellant is scheduled to be sentenced on June 18, 2018.

[9]  In the present appeal, the appellant asks that this Court order disclosure beyond what the Federal Court judge ordered. The amicus, who continues to act before this Court, contends that seventeen (17) of the respondent’s documents contain claims which were confirmed erroneously, since the public interest favoured the disclosure of those items to the appellant.

[10]  In assessing whether to confirm the statutory prohibition on disclosure found in section 38 of the CEA, the Federal Court judge was required to follow this Court’s test set out in Ribic v. Canada (Attorney General), 2003 FCA 246, [2005] 1 F.C.R. 33 [Ribic]. The appellant essentially alleges that the Federal Court judge erred in his application of the third step of the test — i.e. the public interest balancing exercise.

[11]  Should this Court order further disclosure than what was ordered by the Federal Court judge, the appellant contends that the additional sensitive information may be useful to him in his criminal proceeding, for instance, in a possible appeal of his conviction or sentence.

[12]  With this in mind, I now turn to the issues that are before this Court.

II.  Issues

[13]  The primary issue in this appeal is whether the Federal Court judge erred in his application of the third step of the Ribic test, namely whether the public interest in disclosure of the sensitive information outweighs the public interest in its non-disclosure. This Court must also determine whether the Federal Court judge erred in failing to make the undisclosed sensitive information available to the Trial judge alone for the purposes of assessing trial fairness, and whether he erred in declining to communicate certain strategic advice to the appellant and his counsel and in prohibiting the amicus from doing so.

III.  Analysis

A.  Standard of Review

[14]  The issues in this appeal involve either the application of a legal test to a set of facts, or the exercise of discretion. In both cases, they attract the deferential standard of palpable and overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2003] 2 S.C.R. 235; Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215 at paras. 2 and 79, 487 N.R. 208; Mahjoub v. Canada (Citizenship and Immigration Canada), 2017 FCA 157 at paras. 58-74; Shen v. Canada (Attorney General), 2018 FCA 7 at para. 27, 418 D.L.R. (4^th) 595). It is on this basis that I shall examine the substantive issues.

B.  Did the Federal Court judge err in his application of the third step of the Ribic test?

[15]  The test outlined in Ribic involves three steps (paras. 17 to 22). The first two steps — relevance and injury — are not in dispute before us. What is at issue is the third step, namely whether, with respect to any sensitive information not disclosed, the Federal Court judge erred in concluding that the public interest in its non-disclosure outweighed the public interest in its disclosure.

[16]  The appellant contends that the Federal Court judge erred in importing three irrelevant factors into the balancing stage of the Ribic test: (a) the appellant himself as an alternative source of information; (b) the admissibility of information in the appellant’s criminal proceeding; and (c) the absence of “potentially extremely significant” information. Relying on this Court’s decision in Canada (Attorney General) v. Almalki, 2011 FCA 199, 420 N.R. 91 [Almalki] at paragraph 8, the appellant argues that the importation of irrelevant factors into the balancing analysis resulted in a palpable and overriding error.

[17]  While it is true that in Almalki, this Court did suggest that irrelevant factors may result in a palpable and overriding error being committed, that suggestion was based on its earlier decision in Canada v. Furukawa, [2001] 1 C.T.C. 39, 262 N.R. 262 where, at paragraph 35, it had stated that it was only where the assessment of an irrelevant factor could be “inferred from the result reached” that a reviewing court should intervene. Hence, this Court will only intervene if it finds that one or more of the impugned factors were, in fact, irrelevant, and that their consideration affected the result. As I will explain, I do not reach those conclusions with respect to any of the three impugned factors.

[18]  The first impugned factor is the appellant himself as a source of information. The appellant submits that the Federal Court judge committed two errors in considering this factor. Firstly, he submits that considering it runs afoul of the appellant’s right to silence pursuant to section 7 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B to the Canada Act, 1982, 1982 c. 11 (U.K.). Secondly, he submits that the Federal Court judge never analyzed whether his non-disclosure order would violate that right.

[19]  The appellant is correct to say that a non-disclosure order should not result in an accused being compelled to testify in his own defence (see Ribic at para. 32). That is not, however, what happened here. A non-disclosure order will only result in an accused being compelled to testify in his own defence if there is undisclosed information that establishes an air of reality to a desired defence and the accused has no other means of raising that defence. Both elements are required. Indeed, an accused is not compelled to testify by virtue of a section 38 non-disclosure order if the undisclosed information cannot actually support the contemplated defence.

[20]  In this case, the appellant was contemplating two defences in anticipation of his criminal trial: first, that he was acting under duress, and second, that he was acting for the benefit of the hostages. Although the appellant chose to rely only on the defence of duress at his trial, sensitive information (if any) that could have established an air of reality to the defence of acting for the benefit of the hostages should have been disclosed to him following the section 38 proceeding if such information was not otherwise available to him.

[21]  With respect to the duress defence, there was some material disclosed to the appellant to establish an air of reality to that defence without him having to testify. More particularly, the Federal Court judge ordered that a summary be disclosed, indicating that the appellant “was concerned that approaching the hostage-takers without having the funds prepared would put his life in danger” (Reasons at p. 138). In addition, a thorough review of the undisclosed material — including the seventeen (17) documents listed by the amicus — confirms that the sensitive information contained therein falls short of establishing an air of reality to the defence of duress as there is no evidence of threat:

• AGC Doc 035 — SIHU – |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| This information has been made available to the appellant in summary form where the Federal Court judge stated that “[t]here was a belief that the hostage-takers were unstable and prone to violence” (Reasons at p. 138). (Appeal Book, Vol. 2, Tab 3-4).

• AGC Doc 057 — SIHU – Report from October 2008. |||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 2, Tab 3-17). This document suggests Mr. Ader was not acting under duress.

• AGC Doc 084 — SIHU – Report from October 2008. |||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 2, Tab 3-41). This document suggests Mr. Ader was not acting under duress.

• AGC Doc 100 — SIHU Report from August 2009. |||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 2, Tab 3-55). This document suggests Mr. Ader was not acting under duress.

• AGC Doc 105 — SIHU – Report from September 2009. |||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 2, Tab 3-57). This document suggests Mr. Ader was not acting under duress.

• AGC Doc 132 — SIHU – |||||||| Report from December ||||, 2008. |||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||| This information has been made available to the appellant in summary form where the Federal Court judge stated that Mr. Ader “was concerned that approaching the hostage-takers without having the funds prepared would put his life in danger” (Reasons at p. 138). (Appeal Book, Vol. 3, Tab 3-78).

[22]  With respect to the defence that the appellant was acting for the benefit of the hostages, there was also some evidence in the disclosed materials to establish an air of reality to that defence. In particular, the Federal Court judge ordered that a summary be disclosed, indicating that “[s]ome information suggested that Mr. Ader felt it was his responsibility to make sure the hostages leave safely” (Reasons at p. 138). A careful review of the undisclosed sensitive information demonstrates that its disclosure would not have allowed the appellant to raise an air of reality to that second defence either. In particular, the following documents have been considered:

• AGC Doc 094 — SIHU – Report from July 2009. |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 2, Tab 3-51). This document suggests Mr. Ader was not acting for the benefit of the hostages.

• AGC Doc 097 — SIHU – Report from August 2009. |||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 2, Tab 3-53). This document suggests Mr. Ader was not acting for the benefit of the hostages.

• AGC Doc 295 — Unsigned Disclosure Letter |||||||||||||||||||||||||||| RCMP dated November 12, 2009. |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 3, Tab 3-115). This document suggests Mr. Ader was not acting for the benefit of the hostages.

• AGC Doc 434 — Unsigned Disclosure Letter |||||||||||||||||||||||||||| RCMP dated November 19, 2009. |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| (Appeal Book, Vol. 3, Tab 3-164). This document suggests Mr. Ader was not acting for the benefit of the hostages.

[23]  With respect to the remaining contentious documents, I note the following:

• AGC Docs 30, 42, 55, 85, 87, 122, 134, 135, 137, 167, 203, 345, 390, 393, and 408. These are the additional documents listed by the amicus. These documents fall short of establishing the defence of duress or of acting for the benefit of the hostages, and do not rise to the level of being useful or valuable to the appellant such that the public interest weighs in favour of their disclosure. The Federal Court judge committed no error in withholding disclosure of these documents.

[24]  Accordingly, in my view, the Federal Court judge’s consideration of this first impugned factor — the appellant as an alternative source of information — did not result in the appellant being compelled to testify in his own defence. The non-disclosure order did not deprive the appellant of information that would establish an air of reality to either of his contemplated defences. It was thus not a reviewable error for the Federal Court judge to consider this factor.

[25]  The second impugned factor is the admissibility of the sensitive information as evidence in the appellant’s criminal trial. With respect, the appellant’s argument that this factor is irrelevant must be rejected. The appellant relies predominantly on the Federal Court’s decision in R. v. Khan, [1996] 2 F.C. 316, [1996] F.C.J. No. 190 [Khan]. While the Federal Court in Khan did express the view that admissibility should not be a relevant factor (para. 38), it is noteworthy that Khan was decided before Ribic and under the predecessor sections to the current section 38 framework. It is also recalled that admissibility has been considered a relevant factor by the Federal Court and this Court in Ribic and in other cases: see, e.g., Jose Pereira E Hijos S.A. v. Canada (Attorney General), 2002 FCA 470 at para. 16, 299 N.R. 154; Canada (Attorney General) v. Kempo, 2004 FC 1678 at para. 94, [2004] F.C.J. No. 2196 [Kempo]. In addition, factors to be considered at the third stage of the Ribic test will vary with the circumstances: Ribic v. Canada (Attorney General), 2003 FCT 10 at para. 22, [2003] F.C.J. No. 1965; Kempo at para. 103; Canada (Attorney General) v. Khawaja, 2007 FC 490 at para. 93, [2008] 1 F.C.R. 547, appeal allowed on other grounds, 2007 FCA 342, 370 N.R. 128. Finally, although admissibility is a factor that can be considered, the Federal Court judge’s consideration of admissibility in his balancing analysis was limited. Therefore, it is unlikely that admissibility weighed heavily in the balance. It follows that considering admissibility in this case was not a reviewable error.

[26]  The third and final impugned factor was the absence of “potentially extremely significant” information. I agree with the appellant that the Federal Court judge’s references to Canada (Attorney General) v. Telbani, 2014 FC 1050, 251 A.C.W.S. (3d) 457 [Telbani] and the absence of “potentially extremely significant information” may not have been apt (Reasons at paras. 73, 84). Indeed, Telbani was a civil matter and the case at bar is a criminal matter. The disclosure requirements are different, and care should be taken not to confuse the criminal and the civil standards for disclosure. In this case, however, the Federal Court judge noted that the underlying proceeding was a criminal prosecution (Reasons at para. 64). He noted the seriousness of the charges faced by the appellant (Reasons at para. 70). He indicated that, where he was not convinced that certain sensitive information was available to the appellant in other forms, he had ordered its disclosure in summary form (Reasons at para. 72). Hence, I cannot accept, on a fair reading of the Federal Court judge’s reasons, that he applied the incorrect civil standard. The reference to Telbani merely served to indicate to the appellant that no significant information was being withheld from him. As a result, there is no basis for this Court to intervene on this third point.

[27]  The amicus, for his part, advanced three additional arguments during the ex parte hearing before our Court: (i) that the Federal Court judge set too high a threshold for disclosure; (ii) that he erred in finding that alternative disclosure had been made; and (iii) that he erred in failing to order disclosure of information that could lead to a third party records application. These errors, in the amicus’ submission, caused the Federal Court judge to withhold information in seventeen (17) documents which should have been disclosed to the appellant.

[28]  The amicus first submits that the Federal Court judge required a piece of information to establish all the necessary elements to a defence in order to be disclosed. However, the Federal Court judge states in his reasons that the information withheld “falls far short” of establishing a duress defence, and is not “uniquely able to support” either contemplated defence (Reasons at para. 71). These remarks speak to the usefulness of the information to the appellant, a relevant consideration when balancing its benefit to the appellant against the injury caused by its disclosure. They cannot fairly be read to mean that the Federal Court judge required every piece of information to establish all elements of a given defence in order to be disclosed.

[29]  I also do not agree that the Federal Court judge erred in finding that disclosure had been made in alternative forms. The Federal Court judge noted that evidence relevant to the appellant’s defence of duress “appears to have been made available to the defence in different forms through other disclosure” (Reasons at para. 71). In the amicus’ submission, this comment does not, without more, justify non-disclosure of the remaining contentious items. In his view, it needs to be clear that a particular piece of evidence is available to the defence in an alternative manner; it is not sufficient that other, equivalent pieces of evidence be available. It must be recalled, however, that the assessment of whether alternative disclosure has been made takes place within the broader framework of the third stage balancing test in Ribic. The overarching question remains whether the public interest favours disclosure or non-disclosure of a piece of sensitive information. In my view, if the appellant possesses an equivalent piece of information that would allow him to establish the same fact that the piece of sensitive information would allow him to establish, that will be a relevant consideration within the public interest balancing exercise. While it may not be determinative in all cases, it can weigh in favour of non-disclosure. Moreover, in this case, the Federal Court judge ordered disclosure of sensitive information in summary form where he could not be certain that it was not unique information (Reasons at para. 72).

[30]  Finally, I am unconvinced by the amicus’ third argument, namely that the Federal Court judge erred in failing to order disclosure of sensitive information that might form the basis of a third party records application. The public interest in disclosure of such information — namely, that it may cause the appellant to make a third party records application, which may succeed, and which may in turn be of assistance to the appellant — is, at most, speculative. On the other hand, the public interest in its non-disclosure — namely, avoiding injury to national security — is demonstrable. Accordingly, the Federal Court judge made no reviewable error in balancing these competing public interests and in finding that the balance tilted in favour of non-disclosure.

[31]  Ultimately, the exercise at the third stage of the Ribic test requires the Federal Court to balance competing public interests. One the one hand, there will be the injury to national security, national defence or international relations. Here, national security is at stake. On the other hand, there will be the use to which the party seeking disclosure will put the sensitive information. The specific public interest in disclosure will vary with the circumstances. In the present case, it is the benefit that the sensitive information may bring to the appellant’s defence in his criminal proceedings. I agree with the respondent that the undisclosed information does not rise to the level of being valuable or useful for the appellant’s defence. As such, the Federal Court judge did not commit a reviewable error in finding that, with respect to the sensitive information which he refused to order disclosed, the public interest in non-disclosure weighed more heavily in the balance.

[32]  As a subsidiary point with respect to the third stage of the Ribic test, the amicus submitted before us that, should this Court find that the Federal Court judge erred in his balancing, further information should be disclosed in summary form. The amicus conceded, however, that this argument only became relevant in the event that the Federal Court judge erred. Given my findings above, therefore, the summaries need not be considered.

C.  Should the Federal Court judge have made the information available to the Trial judge alone for the purposes of assessing trial fairness?

[33]  Although certain sensitive information could not be disclosed to the appellant himself, he contends that the Federal Court judge erred in failing to order its disclosure to the Trial judge alone for the purposes of assessing trial fairness under section 38.14 of the CEA. The result of this failure, he argues, is that the Trial judge “hung his hat” on the Federal Court judge’s finding that the appellant would be able to make a full answer and defence without additional disclosure (see R. v. Ader, 2017 ONSC 6263 at para. 13).

[34]  In my view, the Federal Court judge committed no reviewable error in declining to order disclosure of the contentious materials to the Trial judge alone. While he was empowered to issue such an order pursuant to subsection 38.06(2) of the CEA, whether or not to do so was a discretionary decision. That provision stipulates that a section 38 judge “may by order … authorize the disclosure [of certain information], subject to any conditions that the judge considers appropriate” (my emphasis).

[35]  It must be recalled that ensuring an accused’s right to a fair trial is the role of the trial judge, not the section 38 judge. The Federal Court judge indicates as much (Reasons at para. 85). Indeed, the trial judge preserves the full authority and independence to determine whether the accused’s right to a fair trial is compromised and, if it is, to order the remedy he or she deems appropriate (R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110 [Ahmad] at para. 2). If the trial judge has insufficient information to assess trial fairness, he or she may advise the Crown so that “further and better disclosure” might be obtained from the Attorney General (Ahmad at para. 51).

[36]  The appellant has argued that Ahmad creates a general rule mandating disclosure of the sensitive information to the trial judge and that the refusal to issue such a disclosure order should be the exception. Accordingly, the appellant suggests that the Federal Court judge erred in failing to follow the rule in Ahmad (Memorandum of Fact and Law of the Appellant at paras. 58 to 61). The amicus takes a slightly narrower view than the appellant, and contends that only those contentious items listed as being of “some potential value” or of “greater potential value” should be ordered disclosed to the Trial judge.

[37]  I cannot accept either of these arguments. The Supreme Court in Ahmad suggested that disclosure to the trial judge alone “will often be the most appropriate option” (para. 45). I do not understand those words to create a hard and fast rule as the amicus suggests. The Supreme Court indicated that “[s]ection 38 creates a scheme that is designed to operate flexibly” (para. 44), and that the terms of disclosure orders under subsection 38.06(2) involve the exercise of discretion (para. 45). The Supreme Court also ruled that the trial judge should receive notice of the section 38 proceedings in criminal cases (para. 39), but made no corresponding ruling that the trial judge should receive access to the section 38 information. It follows that Ahmad did not create a general rule mandating disclosure of the section 38 information to the trial judge in all cases, and that the Federal Court judge’s refusal to order disclosure to the Trial judge in this case was not a failure to follow Ahmad.

[38]  It is true, and the Federal Court judge correctly acknowledged, that in some cases it will be clear from the outset that the trial judge will require information beyond what has been ordered disclosed to the accused in order to properly assess trial fairness (see Reasons at para. 84). In those instances, it will generally be appropriate for the section 38 judge to exercise his or her discretion under subsection 38.06(2) to authorize additional disclosure to the trial judge alone. On the other hand, when the section 38 judge is of the view that the trial judge has sufficient information to assess trial fairness, then an order issuing further disclosure is not necessary. The refusal to issue such an order in those cases is not to be taken as a finding by the section 38 judge that the accused’s fair trial rights will not be affected by the non-disclosure. Rather, it is to be understood as a belief that the trial judge possesses sufficient information to assess the impact of non-disclosure on an accused’s fair trial interests (see Reasons at para. 82).

[39]  In this case, the Federal Court judge considered that the non-disclosed information is “not unique and does not reflect information … that is potentially extremely significant but not disclosed” (Reasons at para. 84). Although, as discussed above, the reference to Telbani may not have been felicitous, the substantive exercise undertaken by the Federal Court judge was correct. He determined whether, in his opinion, further disclosure beyond what was ordered disclosed to the appellant was required in order to assist the Trial judge in assessing trial fairness. He found that it was not and it was within his purview to come to that conclusion. He was also careful to add that it remained the Trial judge’s role to arrive at his own determination of whether he possessed sufficient information to adequately assess trial fairness (Reasons at para. 85). The Federal Court judge did not step outside of his role as a section 38 judge and make a finding regarding trial fairness himself. As a result, the Federal Court judge’s refusal to order disclosure of sensitive information to the Trial judge alone for the purposes of assessing trial fairness discloses no reviewable error.

D.  Should the Federal Court judge have communicated certain strategic advice to the appellant and his counsel, or allowed the amicus to do so?

[40]  The appellant and the amicus have advanced a final argument that the Federal Court judge should have permitted communication between them or, alternatively, should have communicated with the appellant himself. The purpose of the communication was to inform the appellant and his counsel that they may wish to consider certain courses of action.

[41]  The Federal Court judge did not err in declining the invitation to communicate with the appellant or his counsel. As the Federal Court judge held, it is not a court’s role to advise or guide counsel (Reasons at para. 86). As for permitting communication between the appellant and the amicus, this was a discretionary decision of the Federal Court judge which reveals no reviewable error. I recall that the role of the amicus is to assist the Court, and not the appellant. There is also no basis to intervene on this ground.

IV.  Conclusion

[42]  For the reasons set out above, the appeal should be dismissed. The respondent has not taken a position on costs, and I accordingly decline to make any order as to costs.

[43]  These public reasons were first released on a classified basis on May 25, 2018 to ensure compliance with national security requirements prior to public release.

“Richard Boivin”

“I agree

  David Stratas J.A.”

“I agree

  Yves de Montigny J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

Docket:

A-291-17

(APPEAL FROM A JUDGMENT OF THE FEDERAL COURT (per GLEESON J.) DATED SEPTEMBER 25, 2017 (2017 FC 838 (DES-4-17))

STYLE OF CAUSE:	ALI OMAR ADER V. THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING:		Ottawa, Ontario
DATE OF HEARING:		April 24 and 25, 2018
CLASSIFIED REASONS FOR JUDGMENT BY:		boivin J.A.
CONCURRED IN BY:		STRATAS J.A. DE MONTIGNY J.A.
DATED:		may 25, 2018

APPEARANCES:

Tyler Botten Sarah Ahsan	For The Appellant
Andre Seguin Jennifer George	For The Respondent
Ian Carter	AMICUS CURIAE

SOLICITORS OF RECORD:

May Irwin Adam Barristers and Solicitors Ottawa, Ontario	For The Appellant
Nathalie G. Drouin Deputy Attorney General of Canada	For The Respondent

 

Bayne Stellar Ertel Carter Barristers and Solicitors Ottawa, Ontario

amicus curiae