| Federal Court of Canada Trial Division |
|
Section de première instance de la Court fédérale du Canada |
Date:20021004
Docket: DES-2-02
Neutral citation: 2002 FCT 1044
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
NICHOLAS RIBIC and
THE ATTORNEY GENERAL OF ONTARIO
Respondents REASONS FOR ORDER
(Delivered from the Bench on October 4, 2002 at Ottawa, Ontario)
HUGESSEN J.
[1] This is an application brought by the Attorney General of Canada seeking to prevent the disclosure of a single document which is in the possession of Canadian Forces. The background to the application and to the present charges pending against the accused Mr. Ribic, have already been dealt with in two judgments of this Court and I shall not repeat them here.
[2] There is at issue in this application a single document consisting of two pages only. The first page has already been largely disclosed to the respondent, Mr. Ribic and his counsel and such information that has not been disclosed which I have seen is of no conceivable interest to him or
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them being routing information and other matters of that sort for which they have specifically disclaimed any desire to inspect.
[3] The second page is of far more consequence. It is a cover sheet or transmission sheet accompanying an aerial photograph. The photograph is not in the material and there is no question of it being produced because it is not here. The objection which is taken is based on the fact that this transmission sheet emanates from a third country source with whom Canada has maintained friendly relations and with whom Canada has been in close cooperation for security and intelligence purposes.
[4] The basis of the objection is that the document was obtained by the Canadian Forces under cover of secrecy and upon Canada's undertaking to the third party government that the material would be kept secret. For Canada to reveal the document today, I am told, would imperil the future relationship and the continuing cooperation and collaboration between the security services of the two governments.
[5] The document is, in my view, relevant to the defence of the charge against the accused. It corresponds both as to time of day, date and a geographical location very closely to matters of fact which will be in issue at the trial. I am unable to say precisely how it may be of use to the defence, but I am equally quite unable to say that it will not be of use to the defence.
[6] 
Accordingly, I must enter into the balancing process of weighing and balancing the two public interests here at stake.
[7] The public interest in assuring a free and full and proper defence to a person charge with a very serious crime is not one upon which I need to expand at any length. Nor I think is the public interest in Canada maintaining close and confidential and friendly and collaborative relationships with friendly third powers, one that needs to be expanded upon very much. There is, however, here an additional consideration which I find to be controlling. The document as I have said was obtained by the Canadian military upon an undertaking of confidentiality. That was some 7 years ago. When it became apparent that the document might be required and that its production might be sought in connection with the pending proceedings against Mr. Ribic, an approach was made to the foreign authority in question to see if they would agree to have the document or some expurgated version of it made available. I am told that no response was received to that approach and that the approach has indeed been repeated on more than one occasion, the last being as recently as this morning. I am also told that in those approaches, it was indicated that the trial of this matter in the Superior Court was to commence on September 30 of this year.
[8] In my view, I am entitled to draw an inference from the failure of the foreign government to respond to those requests. While I would not perhaps put it quite as high as to say that that
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communications, I think I can with great confidence say that it is clearly not a matter of prime importance to them today. If it were, they would have responded before now.
[9] The upshot of these considerations is that, in my view, the public interest in disclosing relevant parts of the document in question outweighs the public interest in maintaining confidentiality. With that in mind, I have examined the document and will order the disclosure of a part but not all of it. No part of the document prior to the title line is to be disclosed, the information being contained in those parts of the document being of the type that I have previously held should not be disclosed and which, as I have indicated a few minutes ago, counsel for the respondent has disclaimed any interest in.
[10] The title of the document which is 3 lines long will be disclosed as well as the first full paragraph which is very short and is titled "Summary" and the second paragraph which is rather longer and is titled "Discussion". All parts of the document following the "Discussion" paragraph will be maintained confidential.
[11] An order will go accordingly.
"James K. Hugessen"
judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-2-02
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADAv. NICHOLAS RIBIC ET AL.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: OCTOBER 4, 2002
REASONS FOR ORDER OF JUSTICE HUGESSEN
DATED: OCTOBER 4, 2002
APPEARANCES:
ALAIN PREFONTAINE ON BEHALF OF THE APPLICANT
HEATHER PERKINS-McVEY ON BEHALF OF THE RESPONDENT NICHOLAS RIBIC
SOLICITORS OF RECORD:
MORRIS ROSENBERG FOR THE APPLICANT DEPUTY ATTORNEY
GENERAL OF CANADA
HEATHER PERKINS-McVEY FOR THE RESPONDENT OTTAWA, ONTARIO NICHOLAS RIBIC