Haroutine (Harout) Kevork, Raffle Balian and
Haig Gharakhanian (Applicants)
v.
The Queen and Mel Deschenes, Director General
of the Bureau of Counter Terrorism, Canadian
Security Intelligence Service (Respondents)
Addy J.—Ottawa, December 18, 19, 20 and 31,
1984.
Evidence — Application for ruling on Act s. 36.2 objection
to disclosure — National security — Applicants alleged
Armenian terrorists charged with conspiring and attempting to
murder Turkish diplomat — Information sought during pre
liminary inquiry — Questions regarding surveillance — Secu
rity Service profiles of informers — S. 36.2 matters still
extremely important — Interest in administration of justice
rarely outweighing interest in national security — Onus on
person seeking disclosure to show evidence will probably
establish crucial fact — Disclosure of evidence as to credibility
not to be considered — Defence theory not negating culpability
— Mere possibility helpful evidence exists — Disclosure must
be only reasonable means of proving facts — Profiles consist
ing of hearsay — Seriousness of charges — Consequences of
non-disclosure — S. 36.2 objection cannot be overridden at
preliminary inquiry since committal for trial worst conse
quence — Immunity from disclosure reduced if confidentiality
of documents previously relaxed — No cross-examination on
affidavit in support of s. 36.2 objection — S. 36.2 hearing a
civil matter — Application dismissed — Canada Evidence Act,
R.S.C. 1970, c. E-10 (as am. by S.C. 1980-81-82-83, c. 111, s.
4), ss. 36.1, 36.2(1) — Criminal Code, R.S.C. 1970, c. C-34,
ss. 222, 423(1)(a).
Practice — Affidavits — Cross-examination — Application
for permission to cross-examine on affidavit in support of Act
s. 36.2 objection to disclosure — Application submitted at
opening of hearing — Applicants acting unfairly and disrup-
tively in seeking permission subsequent to giving of directions
— Cross-examination within Court's discretion, not absolute
right — Nature of proceeding — Nature of issue — S. 36.2
procedure subject to significant constraints — National secu
rity questions extremely important — Cross-examination
entailing security hazards — No cross-examination on s. 36.2
application — Canada Evidence Act, R.S.C. 1970, c. E-10 (as
am. by S.C. 1980-81-82-83, c. 111, s. 4), s. 36.2 — Canadian
Bill of Rights, R.S.C. 1970, Appendix III, ss. 1(a), 2(e) —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
I1 (U.K.).
Judicial review — Prerogative writs — Habeas corpus —
Applicants wanting to attend hearing on Act s. 36.2 objection
to disclosure — No jurisdiction to issue habeas corpus for
purpose other than giving evidence — Right to attend proceed
ings not guaranteed by Charter — Right to attend probably
not giving initiator of judicial proceedings entitlement to
habeas corpus simply to ensure presence — Habeas corpus not
available for mere edification or to avoid disillusionment with
judicial system — Canada Evidence Act, R.S.C. 1970, c. E-10
(as am. by S.C. 1980-81-82-83, c. 111, s. 4), s. 36.2 —
Canadian Charter of Rights and Freedoms, being Part I of the
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.), ss. 6-15, 24(1), 26 — Federal Court Rules, C.R.C.,
c. 663.
Constitutional law — Charter of Rights — Habeas corpus
sought for attendance at hearing of objection to disclosure
under Canada Evidence Act s. 36.2 — S. 24(1) of Charter not
empowering Court to issue order sought — Right to attend
proceeding in which interested not guaranteed by Charter —
Common law not recognizing right to cross-examine on
affidavit evidence — Charter not changing law in that regard
— Canadian Charter of Rights and Freedoms, being Part I of
the Constitution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.), s. 24(1) — Canada Evidence Act, R.S.C.
1970, c. E-10 (as am. by S.C. 1980-81-82-83, c. 111, s. 4), s.
36.2.
The applicants, allegedly members of an Armenian terrorist
organization, were in custody, charged with attempted murder
and conspiracy to commit murder. The charges related to the
serious wounding of a Turkish diplomat. During a preliminary
inquiry, certain matters were raised by counsel for the appli
cants: one police officer was asked whether he was aware of the
existence of any electronic surveillance against the accused;
another was called upon to produce profiles of two informers
which profiles had been prepared by the Security Service
(CSIS); and a member of the CSIS was requested to name the
persons who had been involved in the surveillance of the
applicants and the informers. The respondent Deschenes object
ed to the disclosure of this information, certifying orally that to
disclose it would be injurious to the national security of
Canada.
Pursuant to section 36.2 of the Canada Evidence Act, an
application was then brought in the Federal Court, in order to
obtain a ruling upon the objection. At the opening of the
hearing on this application, the applicants sought an order
permitting them to cross-examine the Director of the CSIS on
an affidavit made by him in support of the objection, and also
requested a writ of habeas corpus to enable them to attend the
hearing on the section 36.2 application.
Held, all three applications are denied.
Cross-examination: Several weeks prior to the hearing, the
applicants submitted an application for directions. No reference
was made, in connection with that application, to the possibility
of cross-examination. Directions were duly provided; this
entailed, among other things, the fixing of a hearing date. In
now seeking the opportunity to cross-examine, the applicants
are acting unfairly towards the respondents and the Court, and
are disrupting proceedings unnecessarily.
In any event, though, the application fails on its merits. The
common law has never recognized an absolute right to cross-
examine on affidavit evidence. No such absolute right is
imposed by the rules of natural justice. Nor do the provisions of
the Canada Evidence Act provide a right of cross-examination.
The authorities establish that a refusal to permit cross-exami
nation does not offend against the Bill of Rights; and such a
refusal has been upheld since the enactment of the Charter.
Accordingly, whether to allow cross-examination is a matter
within the discretion of the Court. In the decision as to how this
discretion should be exercised, the nature of the proceeding in
respect of which cross-examination is sought, and the nature of
the issue in that proceeding, are most important factors.
The procedure provided for by section 36.2 is one that
involves very considerable constraints. And the importance of
any question pertaining to national security is difficult to
exaggerate.
A given piece of information may actually be extremely vital,
even though, to a person unschooled in intelligence matters, it
might appear unrevealing. For this reason, and because security
matters are extremely sensitive ones, it would be very hazard
ous for a judge to attempt to decide whether a certain question
should be answered on cross-examination. In fact, simply by
responding with an objection to disclosure the witness might
divulge the answer to the question posed. Furthermore, it might
well develop that many of the questions posed on a cross-exami
nation would themselves be objected to—leading to further
applications, to a consequent prolongation of the proceedings,
and thus to a real danger that security ultimately would be
breached.
Consequently, on an application such as the section 36.2
application herein, no cross-examination should be allowed.
Only where very weighty and exceptional circumstances are
established might an exception perhaps be made to this rule.
The applicants have identified specific paragraphs of the
Director's affidavit on which they would like to cross-examine.
In so far as most of these paragraphs are concerned, the
applicants would derive no assistance from any cross-examina
tion thereon. They do not relate specifically either to the
applicants or to the evidence which is the focus of the objection.
With respect to the one other paragraph at issue, what the
applicants are seeking is information on CSIS profiles which
deal with Armenian terrorist activities in Canada. Those pro
files are documents of the most sensitive kind and, in view of
the reasons adduced by the deponent in this particular para
graph, cross-examination on the paragraph must be refused.
Habeas corpus: There is absolutely no authority to support
the issuing of habeas corpus or any similar order where the
objective is to ensure the attendance of a party as a mere
observer. Indeed, it has been conclusively determined that an
order cannot be made for this purpose: in McCann v. The
Queen, the Court of Appeal ruled that the Trial Division has
"no jurisdiction ... to require that a person in lawful custody
be brought to the trial of a civil matter otherwise than for the
purpose of giving evidence." The present proceeding is, in
essence, strictly a civil matter.
Subsection 24(1) of the Charter does not give the Court any
power to issue the order sought. While there is no doubt that, in
general, a person does have a right to attend any proceedings in
which he has an interest, that right is not mentioned in the
Charter. Therefore, it is not a right "guaranteed by this
Charter"; and since subsection 24(1) is concerned only with
rights which are so guaranteed, that provision does not confer
upon the Court any additional jurisdiction relevant in the
present circumstances.
Furthermore, it is very doubtful that the aforementioned
right to attend extends so far as to give to one who initiates a
judicial proceeding, and who happens to be in custody, a right
to habeas corpus for the purpose simply of ensuring his pres
ence at the proceedings—especially when such an applicant is
well represented by counsel, and when he can contribute noth
ing to the outcome. Habeas corpus is not available either for
the mere edification of the person involved, or to ensure that
that person will not be "disillusioned" with the judicial system.
If an absolute right to attend did exist, the floodgates would be
open to the commencement of numerous proceedings by
inmates interested only in securing a few days' leave from the
institutions in which they were confined.
Disclosure: The decision on an application under section 36.2
must be governed by certain basic principles. To begin with,
while Parliament has chosen to allow the Federal Court to
consider objections to disclosure which are concerned with
national security, national defence or international relations,
and thus has removed the exclusiveness of jurisdiction which
the executive formerly enjoyed in respect of these matters, this
circumstance should not be taken to indicate that these matters
are any less important than they were before the change was
enacted. They are in fact matters of tremendous importance.
Rarely will the public interest in national security be out
weighed by the public interest in the administration of justice;
and when the former interest demands that information be kept
immune from disclosure, rarely will the latter interest suffice to
make disclosure appropriate. The onus of proof rests upon the
person who maintains that disclosure should be required. It is a
heavy onus, for the courts have been very loath to order
disclosure even where the issue has been whether to reveal
ordinary police sources. To justify the overriding of an objec
tion to disclosure based upon national security, it must be
shown that the evidence in question will probably establish a
fact crucial to the defence.
One of the two chief purposes for which the applicants would
use the evidence in question is the destruction of the credibility
of the two informers. Those informers, though, have already
made admissions at the preliminary inquiry which amount to a
quite complete indictment of their general credibility. Further
more, credibility is not an issue to be decided at the preliminary
inquiry, and evidence directed to that issue normally should not
be admitted there. The judge presiding at the preliminary has,
however, ruled such evidence admissible, and this fact must be
accepted. But in any event, evidence as to the credibility of a
witness is simply not the type of evidence disclosure of which
should be considered in the face of an objection based upon one
of the grounds specified in section 36.2. Even at trial, the
credibility of a witness is merely a side-issue. Evidence
addressed to that issue does not contribute directly to the
disproof of any element of the offence alleged; nor is its
production of critical importance to the defence.
The other main function projected for the evidence at issue
was to further the theory that one of the informers was the
person who actually attempted to commit the murder. Even if
that theory were to be substantiated, though, the applicants
might still be parties to either of the offences of which they are
accused.
There are several additional reasons for rejecting the present
application. In the first place, disclosure is here being sought on
the basis of a mere possibility that it will yield evidence helpful
to the defence. There is nothing to indicate a probability that
such evidence exists. Thus, to order discovery would be to
authorize the applicants to conduct a fishing expedition.
In order to obtain disclosure of the information and docu
mentation in question, the applicants must establish that this
disclosure is the only reasonable means whereby evidence of the
facts concerned can be obtained. This they have not done.
The applicants' principal wish is to have a look at the profiles
of the informers. These profiles, however, are simply collections
of the most blatant kind of hearsay, and could not be used in
evidence. They are general discovery documents, and produc
tion of general discovery documents of this nature has never
even been contemplated in previous cases dealing with disclo
sure of state documents.
Where the request for disclosure pertains to a criminal
action, the Court must take into account the seriousness of the
charges involved; and in the case at bar, the offences of which
the applicants stand accused are very serious indeed.
At the same time, though, one must consider the conse
quences which might flow from an absence of disclosure. On a
preliminary inquiry, the accused is faced with the possibility
only of being committed for trial, not of being found guilty as
charged. (In fact, in this case it has already been conceded that
the applicants should be committed for trial at least on the
conspiracy charges.) Accordingly, the gravity of the charges is
a factor of relatively minor significance at that stage.
Moreover, since an obligation to stand trial is the worst that
can result from non-disclosure at a preliminary inquiry, it
would seem that in the context of a preliminary inquiry, the
public interest which demands disclosure could never be sub
stantial enough to prevail against an objection based upon a
section 36.2 ground. There would appear to be no occasion
when evidence—no matter how vital to the object of the
preliminary inquiry it might be—would be ordered disclosed if
there were a bona fide certification of objection with respect to
it. In the instant case, the Court has before it the affidavit of
the Director, which is both complete and convincing with
respect to the threat to national security.
This affidavit does contain a flaw, inasmuch as it states
baldly that the informer profiles were made available to certain
police forces "on a confidential basis". Since there are many
possible degrees of confidentiality, it would have been much
better if the affidavit had set out details of this disclosure.
Broad distribution or lax conditions as to confidentiality might
divest the documents of any state-secret character which they
possess, and the degree of immunity from disclosure to be
accorded them by the Court would then be only that which was
appropriate to confidential police information.
CASES JUDICIALLY CONSIDERED
FOLLOWED:
Vardy v. Scott, et al., [1977] 1 S.C.R. 293; McCann, et
al. v. The Queen et al., [1975] F.C. 272 (C.A.).
APPLIED:
Goguen et al. v. Gibson, [ 1983] 1 F.C. 872; Armstrong v.
The State of Wisconsin et al., [1973] F.C. 437 (C.A.);
Re United States of America and Smith (1984), 44 O.R.
(2d) 705 (C.A.).
CONSIDERED:
Goguen et al. v. Gibson, [1983] 2 F.C. 463 (C.A.);
Bisaillon v. Keable, [1983] 2 S.C.R. 60; Reg. v. Secre
tary of State for Home Affairs, [1977] 1 W.L.R. 766
(Eng. C.A.); D. v. National Society for the Prevention of
Cruelty to Children, [1978] A.C. 171 (H.L.); Marks v.
Beyfus (1890), 25 Q.B. 494 (Eng. C.A.).
COUNSEL:
Marlys A. Edwardh for applicant Haroutine
(Harout) Kevork.
Norman D. Boxall and Yves Fricot for appli
cant Raffic Balian.
Symon Zucker for applicant Haig Gharak-
hanian.
H. Lorne Morphy, Q.C., John B. Laskin and
David Akman for respondents.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicant
Haroutine (Harout) Kevork.
Bayne, Sellar, Boxall, Ottawa, for applicant
Raffic Balian.
Danson & Zucker, Toronto, for applicant
Haig Gharakhanian.
Tory, Tory, DesLauriers & Binnington,
Toronto, and Deputy Attorney General of
Canada for respondents.
The following are the reasons for order ren
dered in English by
ADDY J.: The applicants herein are in custody
and are charged with attempted murder (Criminal
Code [R.S.C. 1970, c. C-34], section 222) and
conspiracy to commit a murder (Criminal Code,
paragraph 423(1)(a)) in connection with the
shooting and serious wounding of one Kani
Gungor, a Turkish diplomat.
During the course of a preliminary inquiry on
the matter before Provincial Court Judge Cross-
land of the Ontario Provincial Court (Criminal
Division) in Ottawa, their counsel, at the prelim
inary hearing, asked certain questions and request
ed the production of certain material by police
constables being examined. Objection to disclosure
of same was taken by the respondent Mel Des-
chenes, as a person interested, pursuant to section
36.1 of the Canada Evidence Act [R.S.C. 1970, c.
E-10], on one of the grounds mentioned in subsec
tion 36.2(1) of the Act, namely that the disclosure
would be injurious to national security [sections
36.1 and 36.2 enacted by S.C. 1980-81-82-83, c.
111, s. 4]. As a result, the present application was,
pursuant to that subsection, brought before me as
a Judge designated to hear the matter by the Chief
Justice of the Federal Court to determine whether
the objection to disclosure should be upheld.
The preliminary inquiry which commenced in
May 1984 was, on the 13th of November,
adjourned for the purpose of having those issues
determined.
The material submitted for consideration con
sisted of a joint affidavit by the three applicants,
an affidavit by T. D. Finn, the Director of the
Canadian Security Intelligence Service (CSIS)
and one by the respondent Deschenes, who is the
Director General of the Counter Terrorism Branch
of the CSIS, and various extracts from the tran
script of evidence at the preliminary inquiry.
At the opening of the hearing before me two
preliminary motions were made on behalf of the
applicants, one for an order for the cross-examina
tion of Mr. Finn and the other for a writ of habeas
corpus to enable the applicants to be present at the
hearing. I disposed of both these applications;
copies of my reasons which were delivered orally
at the time, are annexed hereto as Schedules "A"
and "B".
On the question of the right of counsel for the
applicants to cross-examine Mr. Finn I wish only
to add to my reasons given at the time that, had
the respondents in turn requested and been grant
ed the right to cross-examine the applicants on
their affidavit, the latter would have been put in an
almost untenable position, as they had not testified
at the preliminary inquiry and, I presume, most
probably would choose not to and as the question
of whether or not they committed the alleged
offences would certainly be relevant in weighing
the ultimate issue which would require to be decid
ed in any case such as the present one, namely
whether the public interest in disclosure for the
purpose of the inquiry did in fact outweigh the
public interest in national security to be protected
by non-disclosure.
The case Goguen et al. v. Gibson, [ 1983] 1 F.C.
872 was the first and only other application to date
made pursuant to subsection 36.2(1) of the
Canada Evidence Act. In his detailed reasons,
Thurlow C.J., whose decision in the Goguen case
was unanimously upheld by the Court of Appeal
([1983] 2 F.C. 463) analysed the meaning and
effects of the relatively new amendments to the
Canada Evidence Act which replaced former sec
tion 41 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10, rep. by S.C. 1980-81-82-83, c.
111, s. 3] and determined that applications of this
nature should be considered in two stages. At page
902 of his decision he states:
... On an application of this kind the Court should proceed in
two stages, that is to say, to determine first whether on the
evidence for and against disclosure there is any need for the
Court to examine the documents and that if the certificate and
any supporting material indicate that there has been a careful
consideration of the documents requested and provide clear and
convincing reasons for non-disclosure, as it was submitted they
do in this case, the Court should dismiss the application without
examining the documents save in exceptional circumstances
which may be made out in a criminal case, but which are not
made out here, where an applicant has demonstrated that a
particular document of which he seeks production contains
information that is necessary to establish his innocence. Only if
the Court concludes that it is necessary to examine a document
should the Court proceed to make such examination to weigh
the competing interests and to determine whether the public
interest in non-disclosure has been outweighed.
and again at pages 887-888:
However, apart altogether from rules of court, what subsec
tion 36.1(2) appears to me to do is to vest in the Court
authority to examine the information sought. The subsection
uses the word "may" which is not mandatory but permissive
and it appears to me that the nature of the application is such
that before exercising the authority to examine the information
the judge hearing the application will have to be persuaded on
the material that is before him either that the case for disclo
sure, that is to say, the importance of the public interest in
disclosure, in the circumstances outweighs the importance of
the public interest in keeping the information immune from
disclosure or, at the least, that the balance is equal and calls for
examination of the information in order to determine which
public interest is more important in the particular circum
stances.... In it [i.e. subsection 36.1(2)] the object of the
Court's examination, when an examination takes place, will be
to ascertain whether a preponderance of importance in favour
of disclosure exists. That seems to be the expressed intention of
the subsection. On the other hand, if no apparent case for
disclosure has been made out, if the balance does not so much
as appear to be even, the preponderance obviously favours the
upholding of the objection and in such a situation I do not think
the subsection requires the Court to examine the information to
see if it will tip the balance the other way.
Pursuant to the above principles counsel were
invited to make their submissions on the applica
tion on the basis of the material filed, on the
understanding that I would examine the actual
evidence to the disclosure of which objections had
been taken, only if I was convinced that there was
a need to do so after considering the evidence and
arguments for and against disclosure.
There were four matters to the disclosure of
which the respondent Deschenes objected by certi
fying orally at the preliminary inquiry that the
disclosure would be injurious to the national secu
rity of Canada:
1. Staff Sergeant Nadori of the Ottawa Police was
asked whether he was aware of the existence of
any electronic surveillance against the accused
before, during or after the shooting of Mr. Kani
Gungor in April 1982.
2. RCMP Constable McKelvey was asked to pro
duce and disclose a profile prepared by the CSIS
pertaining to an informer, one Sarkis Mareshlian.
3. A similar request was made concerning the
production of a profile on one Hratch Bekredjian.
4. The following request was also put to one
Murray Nicolson of the CSIS:
[i] Could you advise the court, sir, of the names of the persons
who conducted the actual surveillance, that is, the persons who
made the first-hand observations of Harout Kevork, Raffic
Balian, Haig Gharakhanian, Sarkis Mareshlian, Hratch Bek-
redjian, the persons—what I'm interested in is the operatives or
the watchers who had surveillance on those five persons, both in
Montreal and Toronto, on the following dates: April 8th; April
9th, 10th, 12th, 16th, 17th, 20th, April 22nd, April 28th, 29th,
and 30th, May first and 5th, 1982.
[ii] Could you provide the names of the team leaders of the
groups of the teams of surveillance that was conducted on the
previously mentioned five persons on those dates mentioned
earlier.
There are certain basic principles which must
govern any decision on an application of this kind
under this section. Most of these principles were
canvassed in the Goguen case but would bear
repeating here.
The mere fact that Parliament has chosen to
allow this Court to consider an objection to disclo
sure on the grounds of national security, national
defence or international relations when the
subject-matter was previously within the exclusive
realm of the executive arm of government, is not
any indication that it is in any way less important
than before the statutory enactment. In this regard
I quoted from Chief Justice Thurlow's reasons in
the Goguen case in my preliminary decision
regarding the eight to cross-examine the witness
Finn. I have annexed hereto a copy of my reasons
for that decision. The Chief Justice also stated at
page 884:
Important as that public interest [i.e. in the administration of
justice] is, however, I think it is apparent from the nature of the
subject-matter of international relations, national defence and
national security that occasions when the importance of the
public interest in maintaining immune from disclosure informa
tion the disclosure of which would be injurious to them is
outweighed by the importance of the public interest in the due
administration of justice, even in criminal matters, will be rare.
Mr. Justice Marceau on the appeal in the
Goguen case stated at page 479 ([1983] 2 F.C.
463):
That there can be no public interest more fundamental than
national security is as true today as it was yesterday.
Lord Denning M.R. in Reg. v. Secretary of
State for Home Affairs, [1977] 1 W.L.R. 766
(Eng. C.A.), stated at page 782:
The public interest in the security of the realm is so great that
the sources of the information must not be disclosed—nor
should the nature of the information itself be disclosed—if
there is any risk that it would lead to the sources being
discovered. The reason is because, in this very secretive field,
our enemies might try to eliminate the sources of information.
So the sources must not be disclosed. Not even to the House of
Commons. Nor to any tribunal or court of inquiry or body of
advisers, statutory or non-statutory. Save to the extent that the
Home Secretary thinks safe. Great as is the public interest in
the freedom of the individual and the doing of justice to him,
nevertheless in the last resort it must take second place to the
security of the country itself.
That great jurist also stated at page 779 of the
same report:
So it seems to me that when the national security is at stake
even the rules of natural justice may have to be modified to
meet the position. I would refer in this regard to the speech of
Lord Reid in Reg. v. Lewes Justices, Ex parte Secretary of
State for Home Department [1973] A.C. 388, 402.
Lord Simon in D. v. National Society for the
Prevention of Cruelty to Children, [1978] A.C.
171 (H.L.), expressed the same general principle
in the following terms at page 233:
Then, to take a further step still from the public interest in
the administration of justice, the law recognises other relevant
public interests which may not always even be immediately
complementary. For example, national security. If a society is
disrupted or overturned by internal or external enemies, the
administration of justice will itself be among the casualties.
Silent enim leges inter arma. So the law says that, important as
it is to the administration of justice that all relevant evidence
should be adduced to the court, such evidence must be withheld
if, on the balance of public interest, the peril of its adduction to
national security outweighs its benefit to the forensic process—
as to which, as regards national security in its strictest sense, a
ministerial certificate will almost always be regarded as conclu
sive....
A heavy onus as to whether there should be
disclosure of the evidence rests on the applicants.
Turning again to the Goguen case (supra) Thur-
low C.J. stated at page 890:
One of the points dealt with by counsel in their arguments
was that of which side had the onus of proof. In my view it is
apparent from the foregoing as well as from the form of
subsection 36.1(2) that the onus of showing that the public
interest in disclosure, in the circumstances, outweighs in impor
tance the public interest in national security and international
relations put forth in the respondent's certificate rested on the
applicants.
Beetz J. in the Supreme Court of Canada deci
sion of Bisaillon v. Keable, [1983] 2 S.C.R. 60,
when commenting on the importance of protecting
the identity of a police informer which of necessity
is of much lesser importance than the protection of
national security, stated at page 93 that even that
rule
... is subject to only one exception, imposed by the need to
demonstrate the innocence of an accused person. [Emphasis
added.]
In French he stated [at page 93]:
nécessité de démontrer l'innocence de l'accusé.
The protection from disclosure of ordinary police
sources of information generally, has always been
closely guarded by the courts, even when such an
important matter as national security is not
involved. In the case of Marks v. Beyfus (1890),
25 Q.B. 494 (Eng. C.A.), at page 498, Lord Esher
M.R. said:
I do not say it is a rule which can never be departed from; if
upon the trial of a prisoner the judge should be of opinion that
the disclosure of the name of the informant is necessary or right
in order to shew the prisoner's innocence, then one public policy
is in conflict with another public policy, and that which says
that an innocent man is not to be condemned when his inno
cence can be proved is the policy that must prevail. But except
in that case, this rule of public policy is not a matter of
discretion; it is a rule of law, and as such should be applied by
the judge at the trial, who should not treat it as a matter of
discretion whether he should tell the witness to answer or not.
Bowen L.J., in the same case, (see also [1983] 1
F.C. 872, at page 882), stated [at page 500]:
The only exception to such a rule would be upon a criminal
trial, when the judge if he saw that the strict enforcement of
the rule would be likely to cause a miscarriage of justice, might
relax it in favorem innocentice; if he did not do so, there would
be a risk of innocent people being convicted.
It is also clear that to justify disclosure it must
be established that the evidence in question is such
that it will probably establish a fact crucial to the
defence. In the Goguen case the applicants were
constables of the RCMP who had been committed
for trial on charges of breaking and entering and
committing theft in the course of a police opera-
tion undertaken by the Security Service of the
RCMP. Premises of the Parti québécois were
entered, computer tapes of membership lists were
taken, removed, copied and replaced. The defence
was one of lack of mens rea, that they had entered
under honest belief that they were acting pursuant
to a real duty to act and that, although they were
innocent they were concerned that, under the cir
cumstances, their evidence to that effect might not
be accepted by a Quebec jury. Thurlow C.J.,
assuming that some of the documents sought to be
disclosed would be relevant in some way, refused
nevertheless to examine them stating at page 906
of the Goguen case:
From their descriptions I do not perceive that any of the items
is by itself evidence of a fact to be proved to establish the
defences indicated by the applicants in their memorandum of
points to be argued. [Emphasis added.]
and at page 907:
And the affidavit of the applicant Goguen includes the expres
sions "are very likely to contain" and "I might be deprived of
the means of proper presentation of my case." After giving the
matter the best consideration I can give it, I am unable to
regard the disclosure of the documents and information as
being of critical importance to the defences of the applicants,
particularly having regard to the availability to them of wit
nesses who will be able to give in general terms evidence of at
least some of the matters that they express their need to prove
to confirm their own evidence. [Emphasis added.]
Marceau J. in commenting on that very subject on
the appeal had this to say in the very last sentence
of his reasons at page 488 of the report:
To accept that national security and international relations be
injured, even to only the slightest extent, in order that such a
remote risk of extreme incredulity on the part of twelve mem
bers of a jury be avoided, would appear to me, I say it with
respect, totally unreasonable.
The merits of the application must therefore be
examined in the light of the above-mentioned
principles.
It must be stated at the outset that one of the
facts to be considered where the disclosure sought
pertains to a criminal action, is the seriousness of
the charge or charges involved. Attempted murder
and conspiracy to commit murder are among the
most serious offences provided for in our Criminal
Code, especially when viewed in the context of
international terrorism and when directed against
representatives of foreign countries who reside
among us cloaked with the protection of diplomat-
is immunity and to whom our law, in conformity
with its obligations under international law,
extends special protection.
Counsel for the applicants stated that one of the
main purposes for insisting on disclosure was to
enable them to impugn the evidence of the two
informers by destroying their credibility and the
other one was to further a theory of the defence to
the effect that one of the informers was in fact the
person who attempted to commit the murder.
On the question of credibility, both informers
have admitted at the inquiry to being co-conspira
tors, thieves and liars. It would be difficult to
imagine what more could be added on the issue of
the general credibility of those witnesses. Further
more, credibility is not an issue to be decided at
the preliminary inquiry and, in my view, evidence
of that type should not normally be admitted
there. The presiding judge, however, has apparent
ly ruled it to be admissible and, in the present
circumstances, that fact must be accepted. Were I,
however, to conclude that evidence as to credibility
is the type of evidence which is capable of being
weighed in an application of this kind, I would still
have to consider its importance and probative
value, having regard to all of the circumstances.
More importantly, however, I find that evidence
regarding the credibility of a witness is of its very
nature, not the type of evidence which must be
considered or taken into account where an objec
tion has been raised pursuant to section 36.2.
Credibility of a witness is not the main issue to be
determined even at trial but merely a side-issue. It
does not go towards directly countering any of the
elements of the offence and it is clearly not evi
dence the production of which is "of critical
importance to the defence" (See Goguen case,
supra). This test of course applies with equal force
to evidence sought to be produced at the trial of an
accused as well as upon the preliminary hearing.
All of the jurisprudence, both Canadian and Eng-
lish, relating to this principle in fact deals with it
in the context of an actual trial.
One comes to precisely the same conclusion
when considering the other purpose for which evi
dence is sought by the applicants, namely the
theory of the defence that one of the informers had
in fact committed the offence of attempted
murder. This would not necessarily mean that the
three applicants who stand so accused would still
not be parties to either the offence of attempted
murder or of conspiracy to commit murder.
On the above ground alone I would be obliged to
hold that the present application must fail.
There are, however, several additional grounds
which should be mentioned:
1. All of the disclosures are sought on the mere
basis of a possibility of there being evidence which
might be helpful to the defence and there is noth
ing to indicate the probability of the evidence
being there. The applicants are hoping that some
thing might be unearthed which would be helpful.
The proposed exercise amounts to nothing less
than a fishing expedition or a general discovery.
This would be fatal to the application even if the
evidence sought to be obtained were of vital impor
tance and had a direct bearing upon the issue of
guilt or innocence.
2. There is no evidence that no other reasonable
way exists of obtaining the desired evidentiary
facts sought by the applicants except by disclosure
of the protected evidence. This also must be estab
lished as a preliminary element by the applicants.
3. Counsel for the applicants indicated that they
were interested above all in the production and
examination of the profiles pertaining to the infor
mants prepared by the Security Service. These
profiles which were made available on a confiden
tial basis to the RCMP and to the Ottawa Police,
are briefs consisting of compilations of information
gathered from a variety of sources and deal with
the activities of Armenian terrorists in Canada. It
is obvious that the documents are by their very
nature but a collection of the most glaring type of
hearsay and could not be used in evidence even if it
had been shown that they probably contained
information vital to the defence. The documents
could be used neither in examination-in-chief nor
in cross-examination of the officers in whose
possession they might be. The documents are
really general discovery documents which, were it
not for the subject-matter, might possibly be com-
pellable in an examination for discovery in a civil
suit but their production could never be compelled
at trial in any type of action governed by the rules
of evidence. I fail to see how they possibly could be
ruled admissible in any way. Production of docu
ments of general discovery of this nature has never
even been contemplated in the various cases deal
ing with the disclosure of protected state
documents.
4. At the outset I stated that the charges were very
serious, but above all one must consider the possi
ble consequences which might flow from any fail
ure to disclose the evidence requested. In a prelim
inary inquiry all the accused is facing is a possible
committal for trial and not a finding of guilt on
the charges. Therefore, the seriousness of the
charge is of relatively minor consequence at that
particular stage. I might add that counsel for the
applicants stated that they had already conceded
before the judge hearing the preliminary that their
clients should be committed, in any event, on the
charge of conspiracy to commit murder. The only
issue remaining is, therefore, whether they should
be committed on the charge of attempted murder.
In so far as evidence on preliminary inquiries is
concerned, I cannot at the present time at least,
conceive of any occasion when any evidence, no
matter how vital to the object of the inquiry it
might be, would be ordered to be produced in an
application under subsection 36.2(1) if it was the
subject of a bona fide certificate of objection on
the grounds of national defence, national security
or international relations, by an interested party
pursuant to section 36.1. It would appear that the
relative public interest in disclosure could never be
high enough since it can entail at the most an
obligation to stand trial.
I have carefully examined the affidavit of Mr.
Finn submitted on behalf of the respondents and
find it to be most complete and convincing in so
far as the threat to national security is concerned,
covering all the evidence objected to. It seems to
me, however, that the objection could also have
been founded on the grounds of international rela
tions. Finally, the affidavit in paragraph 19 states
that the profiles were made available to the
Ottawa City Police and to the RCMP "on a
confidential basis". Since there are many possible
degrees of confidentiality it would have been much
preferable to indicate precisely and in detail the
restrictions and conditions under which the docu
ments were in fact made available, the persons to
whom they were made available and finally the
persons, if any, to whom the information contained
in them could be further communicated. It is not
clear either whether they were made available by
merely showing them to the police officers or by
handing out copies.
A broad distribution or lax conditions as to
confidentiality might well destroy any fundamen
tal character of state secret which the documents
possessed previous to being released. The degree of
protection from disclosure would then be con
sidered on the basis of confidential police informa
tion as opposed to the much higher degree of
protection founded on national security, national
defence or international relations. Had there been
any real issue as to whether profiles should be
produced I would have required further evidence
regarding the nature of the confidential basis on
which they were made available and precisely to
whom they were made available.
An order was issued on the 21st of December,
1984, dismissing the present application, the par
ties being advised at the time that these written
reasons would follow.
SCHEDULE "A"
At the opening of the hearing in this matter, an
application was made by counsel for the applicants
herein for an order to cross-examine the deponent
Thomas D'Arcy Finn.
I wish to point out first of all that several weeks
previous to this hearing an application was made
by the present applicants for directions, following
which an order was issued indicating the procedure
to be followed, when affidavits and briefs were to
be exchanged and fixing a date for the motion to
be argued. On that preliminary application no
mention whatsoever was made of any possible
provision for cross-examination. It is in my view
unfair to the respondents and to the Court and
unnecessarily disruptive of proceedings to make
such a demand at the present time and to now
request an adjournment for the purpose of cross-
examination. Notwithstanding this however, in
view of the importance of the question, it should be
dealt with on the merits.
The affidavit of Mr. Finn consisted in essence of
sixteen paragraphs identifying the Service, outlin
ing its duties, activities and methods of operation,
and stating why a minimum of disclosure had to be
maintained regarding all of its activities. The re
maining nine paragraphs of the affidavit dealt with
the specific information requested by the appli
cants, which he affirmed to have examined in
detail. The affiant was of the view that the disclo
sure would be injurious to national security
because it would reveal or tend to reveal the
methods used for surveillance, the capacity and
ability of the Service to carry out electrical surveil
lance, the places and means used for same and the
identity of the persons involved in conducting it.
The first legal issue is whether there exists any
absolute right to cross-examination in a case such
as the present one.
The common law itself has never recognized any
absolute right to cross-examine on affidavit evi
dence submitted in a proceeding. The present
application is made pursuant to section 36.2 of the
Canada Evidence Act. There is no provision in the
Act nor are there any rules which provide for a
right of cross-examination. The rules of natural
justice as well as the requirements of a fair hearing
do not include any absolute right to cross-examine
on affidavits. See the case of Armstrong v. The
State of Wisconsin et al., [1973] F.C. 437 (C.A.),
at pages 439 to 444, where Thurlow J., as he then
was, dealt specifically and most comprehensively
with that very matter and stated quite categorical
ly that neither paragraph 1(a) nor 2(e) of the
Canadian Bill of Rights [R.S.C. 1970, Appendix
III] changed the principle in any way. Leave to
appeal to the Supreme Court of Canada from this
decision was refused. Furthermore his statement of
the law was approved and followed by the
Supreme Court of Canada in the case of Vardy v.
Scott, et al., [1977] 1 S.C.R. 293. The question in
that case was whether there was a right to cross-
examine on a deposition taken for the purpose of
deportation of the applicant. The Supreme Court
of Canada held that no such right existed.
The same result was arrived at by the Ontario
Court of Appeal, since the enactment of the
Charter of Rights [Canadian Charter of Rights
and Freedoms, being Part I of the Constitution
Act, 1982, Schedule B, Canada Act 1982, 1982, c.
11 (U.K.)]. See Re United States of America and
Smith (1984), 44 O.R. (2d) 705 (C.A.) where
Houlden J.A., in delivering the judgment of the
Court of Appeal of Ontario, stated at page 718:
Third, in Vardy v. Scott et al., [1977] 1 S.C.R. 293, 28
C.C.C. (2d) 164, 66 D.L.R. (3d) 431, Dickson J., delivering the
majority judgment of the Supreme Court of Canada, referred
with approval to the judgment of Thurlow J. in Re State of
Wisconsin and Armstrong, supra, which I have quoted above,
that the refusal to permit cross-examination on affidavit evi
dence was not a denial of a fair hearing in contravention of s.
2(e) of the Bill of Rights.
and at page 719:
Similarly, here, I do not believe that the concepts of funda
mental justice have changed since 1976 when a majority of the
Supreme Court of Canada referred with approval to the deci
sion of the Federal Court of Appeal in the Armstrong case. If
the refusal of cross-examination on affidavits in extradition
proceedings was not contrary to the principles of fundamental
justice at the time that Vardy v. Scott was decided, I do not
think that it is contrary to the principles of fundamental justice
some eight years later.
The question of whether cross-examination
should be allowed in an application such as the
present one therefore becomes a matter of discre
tion for the judge.
In exercising this discretion, the nature of the
issue and of the proceeding before the Court are
most important. I am required in effect to deter
mine what is fundamentally a question of immuni
ty from disclosure of evidence as opposed to one of
admissibility, although admissibility must be con
sidered, otherwise immunity would become irrele
vant and would not arise.
Until the recent enactment of the section on
which the present application is founded, an objec
tion by the executive arm of government to pro
duction of evidence on the grounds of national
security was final and absolute. The new statute
now provides that the objection may be judicially
examined. The procedure however is very restric
tive. The matter can only be decided by the Chief
Justice of the Federal Court of Canada or his
nominee. The objection is originally made by oral
or written certification as was the case previously
when the right was an absolute one. Not only is
there no provision for cross-examination in the
statute but the Judge, during the hearing, if
requested by the person who made the objection,
must hear ex parte any representation he or she
wishes to make without the other party being
informed of its nature or content. All proceedings
must be in camera and, if requested by the person
objecting, must be heard in the National Capital
Region. It is difficult to imagine a type of proceed
ing which is not ex parte, being more restrictive.
In reading this section one can easily realize with
what caution Parliament partially opened the door
to what previously was a permanently closed room.
It is difficult to exaggerate the importance of
any question pertaining to national security. As
stated by Thurlow C.J. in the recent case of
Goguen et al. v. Gibson, [1983] 1 F.C. 872 at
pages 880-881:
But it is, I think, important to note that while the authority
to determine the matter is transferred from a Minister of the
Crown to the Court, the public interest in maintaining immune
from disclosure information the disclosure of which would be
injurious to national defence or national security or internation
al relations remains the same. Its importance is as great and as
weighty as it always has been. One is reminded of the maxim:
Salus populi est suprema lex. What seems to be recognized by
the legislation, however, is that there may be instances in
which, depending on the particular circumstances, that public
interest may be outweighed in importance by another public
interest, that of the disclosure in the public interest, that is to
say, in civil and criminal litigation, that of the due administra
tion of justice, an interest the importance of which will itself
depend on the circumstances of the particular case.
What might appear to the uninitiated, untrained
layman to be a rather innocent and unrevealing
piece of information might very well, to a trained
adversary or a rival intelligence service, prove to
be extremely vital when viewed in , the light of
many other apparently unrelated piéces of infor-
mation. Because of this and by reason of the
extreme sensitivity surrounding security matters it
would be a very risky task indeed for a judge to
decide whether a certain question should or should
not be answered on cross-examination. Further
more the person being cross-examined might be
put in the difficult position of in fact revealing the
answer by objecting to disclosure. Finally it is easy
to foresee that many of the questions in cross-
examination would be objected to in the same
manner as the original questions which form the
basis of the present application. This would inevi
tably lead to further inquiries and further applica
tions, thus prolonging the matter indefinitely,
creating a real danger of an eventual breach of
security.
I therefore conclude that in an application of
this nature, unless perhaps very weighty and
exceptional circumstances are established, no
cross-examination should be allowed.
As to the actual substance of the request itself,
the applicants stated that they wished to cross-
examine on paragraphs 8 to 13 and 19 of the
affidavit. I fail to see how any cross-examination
on the matters contained in paragraphs 8 to 13
could help them in any way since, as previously
stated, these paragraphs merely cover the general
operation of the Security Service and do not relate
specifically to the applicants or to the evidence
objected to on the grounds of national security. As
the request regarding paragraph 19 deals with
profiles consisting of briefs prepared by the Secu
rity Service concerning Armenian terrorist activi
ties in Canada, it appears that this matter is, by its
very nature, most sensitive as it deals with that
terrorist organization in a general way.
Having regard to the reasons stated by Mr. Finn
in that paragraph, I do not hesitate to refuse to
allow cross-examination thereon.
The application for cross-examination is there
fore denied.
SCHEDULE "B"
The applicants are detained in custody, and,
following a preliminary application by their coun-
sel for leave to cross-examine on an affidavit and
for an adjournment to permit cross-examination,
an application was made on their behalf for a
habeas corpus to have them brought before this
Court in order to be present during the time that
their counsel would be arguing on the application.
The reasons invoked were their basic right to be
present at the application since it was taken on
their behalf, their right to be aware of all the
proceedings and to see that justice was being done.
It was argued that the denial of this right to be
present would create in them a distrust or a lack of
confidence in our judicial system. It was not
indicated however how they could possibly contrib
ute in any concrete way to the advancement of
their cause or to the ultimate success of the
application. I pointed out during argument that
there appears to be no authority whatsoever for me
to ensure their appearance by means of habeas
corpus or any other similar order. Even with
regard to Federal Court trials the Rules [Federal
Court Rules, C.R.C., c. 663] only provide for a
writ of habeas corpus ad testificandum and do not
provide for the presence of a party as a mere
observer.
The matter was conclusively determined in a
unanimous decision of the Federal Court of
Appeal in the case of McCann, et al. v. The Queen
et al., [1975] F.C. 272, where Jackett C.J. (Pratte
and Urie JJ., concurring), in upholding a trial
ruling of Heald J. ([1976] 1 F.C. 570) stated at
page 274 of the above report:
I agree with the Trial Division that that Court had no
jurisdiction or discretion, this being a civil action as opposed to
a criminal prosecution, (I express no opinion as to whether the
Court has any authority in connection with the matter in the
trial of a criminal charge.) to require that a person in lawful
custody be brought to the trial of a civil matter otherwise than
for the purpose of giving evidence. Indeed, counsel for the
appellants made no submission, in so far as this appeal was
concerned, that the Trial Division had any such jurisdiction.
The present proceeding although it arose as the
result of and in the context of a criminal proceed
ing remains in essence strictly a civil matter.
Counsel for the applicants argued however that
subsection 24(1) of the Charter of Rights gives me
the power and indeed imposes on me the duty to
issue the required order to the sheriff responsible
for their detention to bring them forward and have
them present for the duration of the hearing. That
subsection reads as follows:
Enforcement
24. (1) Anyone whose rights or freedoms, as guaranteed by
this Charter, have been infringed or denied may apply to a
court of competent jurisdiction to obtain such remedy as the
court considers appropriate and just in the circumstances.
The Charter of Rights has been much abused of
late by certain members of the legal profession
who attempt to read into it legal principles and
indeed legal dogma which it obviously does not
contain. In my view, although it does render many
of our basic rights which are enumerated therein
inviolate and beyond the whim of Parliament or of
the provincial legislatures and although it annuls
and renders anti-constitutional statutory provisions
which are contrary to it and although it creates a
limited number of new remedies, it in fact creates
very few new basic rights, but on the contrary
largely enumerates, expresses and codifies what
has long been accepted as the law of the land.
Specifically, in the case before me, subsection
24(1) only refers to the rights "as guaranteed by
this Charter" (emphasis added) and not to the
many other basic rights which exist and which are
declared to remain unaffected by the Charter pur
suant to section 26. Nowhere in the mobility rights
(section 6), the legal rights (sections 7 to 14) or
the equality rights (section 15) is there any men
tion of a right to be present at a hearing. It follows
that although there is no doubt that, generally
speaking, a person has a right to attend any pro
ceedings in which he or she has an interest, that
right is not one guaranteed by the Charter and
subscction 24(1) does not give me any additional
jurisdiction in the circumstances. Furthermore, in
spite of the right to attend, there is very serious
doubt as to whether an applicant who initiates a
judicial proceeding and who happens to be in
custody at the time, is entitled as of right to a writ
of habeas corpus to ensure his presence there,
especially when he is well represented by counsel
and there is absolutely nothing he can contribute
to the outcome of the proceeding which he himself
has instituted. Habeas corpus is not provided
merely for the edification of the subjects applying
for it or to ensure that they will not be "disillu-
sioned" (as counsel has expressed it) with the
judicial system. If any absolute right to attend
every proceeding actually existed then one can
imagine the number of proceedings which would
be instituted at public expense by inmates of vari
ous institutions for the mere opportunity of getting
out for a few days.
Having regard to the fact that the Crown has
elected to take no position in this matter and
therefore to not oppose it, I will not, because of
those circumstances deny the applicants in this
particular case the right to attend, in spite of the
nature of the subject-matter being considered and
of the type of organization with which the Crown
alleges the applicants are involved. They are free
to attend if they so desire and if need be to take
before the proper authorities whatever action may
be advisable in order to attempt to ensure their
attendance.
Should they succeed however and, as I stated
previously, I entertain serious doubts on this sub
ject, I wish to make it abundantly clear that,
having regard to the nature of the crimes of which
they stand accused and of the nature of and past
actions of the organization to which it is alleged
they belong, should they be allowed to attend the
hearing, it cannot and will not be held in the
Supreme Court of Canada Building, but will have
to be adjourned to some place in the National
Capital Region where proper security against
escape and full protection against outside interfer
ence can be assured.
The application for habeas corpus is denied.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.