Docket No.: DES-5-02
Neutral Citation: 2003 FCT 43
Ottawa, Ontario, this 17th day of January, 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
- and -
NICHOLAS RIBIC and
THE ATTORNEY GENERAL OF ONTARIO
Respondents
REASONS FOR ORDER AND ORDER
a) The respondent, Nicholas Ribic, a Canadian citizen, is charged with four serious criminal offences resulting from a hostage taking incident while he was a member of the Serb forces in Bosnia in 1995. He is being tried before judge and jury in the Ontario Superior Court of Justice. The respondent, the Attorney General of Ontario, has closed its case and the trial was adjourned to allow this Court to determine, on application by the Attorney General of Canada, whether certain information should be disclosed and authorized to be produced in evidence at the trial, pursuant to s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (as amended by S.C. 2001, c. 41, s. 43), (the "Act"). The trial is scheduled to resume on January 20, 2003.
b) Mr. Ribic wishes to produce in evidence a videocassette depicting aerial bombings that are said to have taken place around Pale, Bosnia, in 1995. The bombings are said to have been carried out at the time and near the place where the hostage taking incident occurred. On December 3, 2002, counsel for Mr. Ribic sent a written notice pursuant to s. 38.01 of the Act advising that he intended to produce the seven minute videocassette in evidence and expressed the belief that the videocassette contained "sensitive information" or "potentially injurious information" as defined by s. 38 of the Act.
c) The applicant seeks an order pursuant to s. 38.06 of the Act for a determination whether the disclosure of the videocassette must be prohibited because its disclosure would be injurious to international relations, national defence or national security.
d) At the in camera hearing, I heard from counsel for the applicant and counsel for the respondent, Mr. Ribic. In addition the applicant led evidence and made submissions ex parte. At the ex parte portion of the hearing, I heard from one witness, a member of the Directorate General Intelligence Division of the Canadian Forces, who testifies to the potential injury to Canada's national interests should the information at issue be disclosed.
e) In Ribic v. Canada (Attorney General of Canada) 2003 FCT 10 (application DES-3-02), I wrote that a "...designated judge has a very broad discretion to exercise in deciding whether to look at the material withheld prior to entering upon the balancing process mandated by the statute." In the exercise of this discretion, I decided to view and hear the information recorded on the videocassette.
f) Even if I am wrong with the views I expressed in Ribic, supra, with respect to the applicability of the two step procedure followed by Chief Justice Thurlow in Goguen v. Gibson [1983] 1 F.C. 822, I am of the view that, in the circumstances of this case, the respondent Mr. Ribic has satisfied the test of showing that the information on the videocassette is likely to be relevant to an issue in the case. I base this determination essentially on the affidavit evidence of [...], filed by the respondent, Mr. Ribic. The affiant attests that he is capable, because of his expertise, to analyse sensitive video imagery and to identify the location and source of imagery for intelligence purposes. He consequently attests that:
(a) he is able to determine with 100% accuracy that this is video footage taken from bombing missions in Bosnia-Herzegovina;
(b) the clips in this footage relate to bombing missions which occurred in or around the Pale/Johorina Potok area of Bosnia;
(c) he is 100% certain that the video depicts NATO bombing runs in Bosnia in 1995;
(d) the bombing campaign conducted by NATO in the Pale region on May 25 and 26, 1995, was carried out in the same fashion as depicted on the video tape at issue.
g) It is noteworthy that the applicant's witness has confirmed that the images on the video tape are indeed images depicting bombing missions in Bosnia, in or around Pale, in 1995. The applicant's affidavit evidence adduced during the ex parte hearing establishes that all of the bombing missions depicted on the videocassette were conducted within a forty-three (43) kilometre radius of Pale, the closest being within five (5) kilometres of Pale.
h) I am satisfied that [...] is capable of authenticating the information contained on the videocassette. In my view, his evidence is sufficient to establish that the information contained on the videocassette is likely probative to an issue at trial. I am satisfied that this is information that could assist the jury in putting events leading up to the hostage taking and the event itself in proper context.
The Information
i) The videocassette is approximately seven minutes in duration and shows footage of what appears to be images of bombs being dropped or fired from aircraft and finding their various targets. The footage depicts a number of "bombing sorties" or missions, and the destruction of different structures, amongst them a bridge, buildings, and what appears to be a telecommunications tower. Certain missions on the videocassette are depicted on a split screen which also shows information from a "heads up display" revealing laser codes and other sensitive information which would allow the aircraft from which the images were taken to be identified. Longitudinal and latitudinal coordinates are also shown on the videocassette which would enable a trained person to geographically locate the scenes being depicted. Finally, the videocassette's sound track recorded voices and conversations between the pilots of the aircraft and others on the ground responsible for directing the missions. The applicant's witness testified that from the conversations and comments on the sound track, call names of the pilots and other codes used by NATO forces in such missions are identifiable. The sound track also allows a listener to identify the voices by their accents. With respect to the call names, the evidence of the applicant's witness is that these are recorded and known to others, at least in the military. From this information, it is therefore possible to determine the identity of the pilots.
The Process
j) Having decided to review the information, I must next determine whether disclosure of the information would be injurious to international relations or national defence or national security: subsection 38.06(1) of the Act. Once the applicant Attorney General has satisfied me of such injury, there is then, in my view, a requirement on the party seeking disclosure to present evidence and to show why disclosure is necessary. The Court will then proceed to weigh the competing interests: subsections 38.06(2) of the Act.
Competing interests
k) Mr. Ribic has declined to provide any information concerning the source of the videocassette. The applicant, in his written submissions, advised that because of the lack of information as to the origin of the videocassette, he was not in a position to authorize the disclosure of the videocassette under s. 38.03 of the Act. During the ex parte part of the hearing, evidence was led that essentially confirmed that the Department of National Defence (DND) did not believe that the information was information in its possession or information from a Canadian source. The witness for the applicant was also able to confirm that the information was sourced from one of Canada's allies. The applicant's witness also testified that the ally would consider as potentially injurious information contained in the videocassette that could lead to the identification of its pilots or would reveal military capability, including the disclosure of latitude/longitude coordinates; laser codes, weapons range; voice and radar equipment.
l) A second secret affidavit was received during the ex parte hearing. The affiant, a member of the Canadian Forces, based on his experience and understanding, attests to the elements of an agreement controlling armed forces relations between Canada and the ally from which the videocassette was sourced. The affiant attests that Canada was a party to a reciprocal agreement with this ally which provides for the concept of "originator control", meaning that the country of origin of the sensitive information has the authority to decide if the classified information will be released and in what format. As a consequence of this agreement, the Attorney General takes the position that Canada has an international obligation to protect this information to the fullest extent possible since its ally has yet to agree to its disclosure. The applicant argues that to do otherwise would injure the conduct of international affairs and result in a diminished level of trust and confidence in Canada's ability to protect against disclosure, sensitive information. This could affect Canada's ability to access sensitive information from its allies in the future. Consequently, the applicant argues that the information must be protected since its disclosure would be injurious to Canada's national interests; its international relations.
m) The respondent, Mr. Ribic, argues that the video is essential to his defence as it will show the jury the nature and extent of NATO air superiority over the Serbs. It is also argued that the images depict the lack of air defences by the Serbs which can be inferred from the limited ground fire against the attacking force and the apparent ease with which the pilots hit the identified targets, without any material interference. The respondent, Mr. Ribic, contends that this leads to an inference that the Serbs were unable to defend the ammunitions bunkers near Pale. As well, the video depicts the ability of the NATO forces to strike their targets with accuracy. This evidence, argues counsel for Mr. Ribic, might be probative to a defence to be advanced at trial and to the issue whether the hostages were ever in harm's way, which also could be an important fact on sentencing. Mr. Ribic's position is that the information contained in this videocassette, accurately depicting the nature and timing of the bombing, is key to the defences and other issues intended to be advanced at trial, and that the public interest in disclosure outweighs in importance the public interest in non disclosure. It is argued that the entirety of the video tape must be produced so that Mr. Ribic can make full answer and defence to his criminal trial.
Injury to National Interests
n) I am satisfied that the witness at the ex parte portion of the hearing was competent to address the Court on the potential injury that would likely occur in the event the videocassette was made public. Disclosure of the video tape could likely breach an agreement by disclosing information that would otherwise be protected by virtue of an international agreement between Canada and its ally.
o) I am satisfied that the video cassette contains information that is sourced from one of Canada's NATO allies and is information for which the said ally has yet to authorize disclosure. I am also satisfied that the disclosure by Canada of this information would be injurious to Canada's international relations for one or more of the following reasons in that it would:
1. undermine the trust amongst allies that is needed to make NATO effective;
2. compromise Canada's role as a member of the alliance and as participant in future peace support operations;
3. make Canada's allies more reluctant to share intelligence in the future, thereby denying Canada access to vital information that would be required to protect civilians or members of the Canadian Forces;
4. breach a reciprocal agreement with one of Canada's allies, which would be injurious to Canada's relations with the ally and NATO;
5. compromise NATO's ability and, by extension, Canada's ability as a member of NATO, to conduct future operations because it disclosed information on how Canada's ally and/or NATO runs its operations;
6. injure the conduct of international affairs and result in a diminished level of trust and confidence amongst allies and NATO allies.
Weighing the Competing Interests
p) Subsection 38.06(2) of the Act provides as follows:
| 38.06 (2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
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38.06 (2) Si le juge conclut que la divulgation des renseignements porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d'intérêt public qui justifient la divulgation l'emportent sur les raisons d'intérêt public qui justifient la non-divulgation, il peut par ordonnance, compte tenu des raisons d'intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu'il estime indiquées, la divulgation de tout ou partie des renseignements, d'un résumé de ceux-ci ou d'un aveu écrit des faits qui y sont liés.
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q) I must therefore consider whether the public interest in disclosure of the information contained on the videocassette outweighs the public interest in non-disclosure. If I determine that disclosure is warranted, I may authorize the disclosure of all or part of the information in severed or summary form, and under the conditions that are most likely to limit injury to Canada's national interests.
r) In Ribic, supra, I wrote at paragraphs 22 and 23:
[22] Subsection 38.06(2) of the Act does not specify the test or the factors to be considered in weighing the competing interests nor does the Act contemplate an obvious imbalance between the public interest in national security and the public interest in the administration of justice. I am of the view that the Court may consider different factors in balancing the competing public interests. The breadth of the factors may well vary from case to case.
[23] In the context of a case involving serious criminal charges, as in this case, the issue of whether the information at issue will probably establish a fact crucial to the defence is indeed an important factor to be taken into consideration in the balancing process. Other factors also warrant the Court's consideration such as: the nature of the interest sought to be protected; the admissibility and usefulness of the information; its probative value to an issue at trial; whether the applicant has established that there are no other reasonable ways of obtaining the information; whether the disclosures sought amount to a fishing expedition by the applicant; the seriousness of the charges or issues involved. [See Jose Pereira E. Hijos, S.A. v. Canada (Attorney General) [2002] F.C.J. No. 1658, 2002 FCA 470, Docket A-3-02 at paras 16 and 17]. These factors, by no means constitute an exhaustive list. Other factors may also require consideration in the appropriate circumstances. It is important, in my view, that each application be dealt with on its own merits.
s) I have considered the above factors in weighing the competing interests for the purposes of the within application. Having applied these factors and having considered the submissions and arguments of the parties, I have determined that certain information contained on the video tape should be disclosed. I make this determination on the understanding that the information so disclosed is relevant to an issue at trial, and while fully appreciating that its disclosure could potentially be injurious to Canada's interests for reasons canvassed earlier. With limited disclosure, however, such injury, if any, would be minimal. In my view, the graphic images depicted in this video would certainly have a greater impact on a jury than a written transcript of the depicted missions. I am also satisfied that certain injurious information which is contained on the videocassette is of very little use, if any, to Mr. Ribic's defence and I will confirm prohibition from disclosure of this information. I will review below the information from the videocassette that is included in this prohibition.
t) I also note that the applicant did inquire whether the ally would consent to the disclosure of the information after being advised of the nature of this application before the Court and the delays involved with the trial scheduled to resume soon. The ally responded initially that it would take a long time to secure an official response to such a request. In the meantime it was urged that the video tape should be protected. Subsequent testimony of the applicant's witness given during the ex parte hearing has satisfied me that every effort is being made to obtaining an expedited decision from the ally. Nevertheless, at the time of the issuance of these reasons, the ally has yet to provide a final answer on whether the information at issue should be disclosed.
u) For the above reasons, I will confirm a prohibition to disclose the following injurious information expurgated from the original videocassette:
(a) call names or nicknames which could be used to identify the pilots;
(b) operational code words that could be used to identify a NATO military operation or communication;
(c) the latitude and longitude co-ordinates appearing on the upper right-hand corner of the image;
(d) the "heads up display" showing laser codes, weapons range, and radar equipment.
v) I will also authorise the disclosure of the remaining information contained in the videocassette. To that end, I have directed that an expurgated copy of the original videocassette be prepared by the applicant.
w) I agree with the applicant's counsel that the affidavit of [...] sworn December 24, 2002, contains sensitive information that, for one or more of the reasons concerning the effects upon Canada's international relations, could be injurious if disclosed. Consequently, pursuant to s. 38.12 of the Act, I will order that the affidavit of [...] sworn December 24, 2002, be sealed.
x) I am also satisfied that [...] should not be permitted to testify at the trial for the purpose of authenticating the videocassette. I make this determination essentially for the same reasons canvassed at paragraph [35] of my earlier reasons in Ribic, supra. I will, however, authorize for disclosure an expurgated version of [...]'s affidavit evidence for introduction into evidence at the trial of the respondent Mr. Ribic as if [...] had testified under oath and in lieu of his viva voce testimony. The comments made at paragraph 37 of my earlier reasons in Ribic, supra, with respect to the evidence at trial, are equally applicable to the within application.
ORDER
THIS COURT:
1. CONFIRMS, pursuant to paragraph 38.06(3) of the Canada Evidence Act, the prohibition on disclosure of the following injurious information expurgated from the original of the videocassette, produced as Exhibit 'B' to the affidavit sworn by Colonel MacLean on December 18, 2002, in these proceedings:
a) the latitude and longitude co-ordinates appearing on the upper right-hand corner of the image;
b) the heads up display, including the laser codes, the weapons range and radar equipment; and
c) from the sound track of the videocassette, all call signs, nicknames or code words.
2. AUTHORISES, pursuant to paragraph 38.06(2) of the Canada Evidence Act, the disclosure of the remaining information contained in the videocassette. Attached to this Order as Annex 'A' is a copy of the expurgated videocassette authorised to be disclosed by this Order.
3. PROHIBITS, pursuant to paragraph 38.06(3) of the Canada Evidence Act, [...] from testifying with respect to the videocassette.
4. AUTHORISES, pursuant to paragraph 38.06(2) of the Canada Evidence Act, the disclosure of the expurgated version of the affidavit sworn by [...] in these proceedings on December 24, 2002, attached to this Order as Annex 'B' and of the summary of information in parentheses added by the Court to paragraph 14 of that expurgated affidavit.
5. AUTHORISES, pursuant to paragraph 38.06(4) of the Canada Evidence Act, the introduction into evidence, at the criminal trial of the respondent, Mr. Ribic, of the expurgated videocassette attached to this order as Annex "A".
6. AUTHORISES, pursuant to paragraph 38.06(4) of the Canada Evidence Act, the introduction into evidence, at the criminal trial of the respondent, Mr. Ribic, of the expurgated affidavit of [...] attached to this Order as Annex 'B', in lieu of his viva voce testimony, as if [...] had testified under oath, under the same conditions mentioned in the Reasons for Order and Order issued by the Court in Ribic v. Canada (Attorney General of Canada) 2003 FCT 10 (application DES-3-02).
7. ORDERS, pursuant to section 38.12(1) of the Canada Evidence Act, Mr. D'Arcy DePoe and Ms. Heather Perkins-McVey, counsel for Mr. Ribic, not to disclose to anyone either the unexpurgated videocassette or the unexpurgated version of the affidavit of [...] sworn in these proceedings on December 24, 2002;
8. ORDERS, pursuant to section 38.12(1) of the Canada Evidence Act, Mr. D'Arcy DePoe and Ms. Heather Perkins-McVey, counsel for Mr. Ribic, to deliver up their copies of the unexpurgated videocassette and of the unexpurgated version of the affidavit of [...] sworn in these proceedings on December 24, 2002, and any reproduction thereof, to the Registry of this Court, forthwith;
9. ORDERS, pursuant to section 38.12(2) of the Canada Evidence Act, that the unexpurgated videocassette and the unexpurgated version of the affidavit of [...] sworn in these proceedings on December 24, 2002 be sealed, along with the records of this application and kept in a location to which the public has no access;
10. ORDERS the Attorney General of Canada, pursuant to paragraph 38.02(2)(b) and section 38.07 of the Canada Evidence Act, to immediately communicate the Reasons for Order and Order, less its annexes, to the judge presiding at the criminal trial of Mr. Ribic and to the prosecution team.
11. DIRECTS, pursuant to paragraph 38.02(2)(b) of the Canada Evidence Act, that the information contained in Annex "A" and Annex "B" attached to this order be released to the respondent, Mr. Ribic, upon the expiry of the period for appeal provided in sections 38.09 and 38.1 of the Act, or such earlier date as the Attorney General of Canada may indicate.
"Edmond P. Blanchard"
Judge