Second Review of Amendments to the National Defence Act Pursuant to S.C. 1998, c. 35, s. 96

MPCC Supplementary Submission:
Access to Sensitive Information per the Canada Evidence Act

Further to our meeting on June 29, 2011, MPCC wishes to clarify one important point with respect to its proposal that it be added to the CEA Schedule of Designated Entities (found at the end of tab 5 of the MPCC Book of Authorities, vol. I). Through this proposal, MPCC does not seek the authority to decide on the merits of privilege claims made under s. 38 of the CEA, but only to access unredacted documents for the purposes of conducting its investigations or preparing for its hearings. Any subsequent public release of the information – either as exhibits during hearings or as part of an MPCC report – would still have to be authorized by the Attorney General of Canada, subject to possible review in the Federal Court, as is the case under the current procedure. In this respect, the MPCC situation differs from that faced by Superior Courts conducting criminal trials where “sensitive” or “potentially injurious” information is sought to be produced or disclosed, and the remedy sought by the MPCC also differs significantly from that which has been recommended for Superior Courts.

The problem faced by Superior Courts conducting criminal trials where s. 38 privilege claims are made is not only that they cannot see the information, but that they cannot make decisions about whether it should be disclosed. This has significant procedural and substantive consequences. First, significant delay is created in the criminal process because of the need to litigate the s. 38 privilege issues in the Federal Court (including appeals). Second, this process requires the Federal Court to make certain determinations that trial judges would likely be in a better position to make, and could likely make more expeditiously. In order to determine whether a non-disclosure order will be made, the Federal Court has to determine not only whether disclosing the information would cause harm to international relations, national security or national defence (s. 38.06(1)), but also first whether the information is relevant to the trial under the Stinchcombe test^{Footnote 1} and then whether the public interest in disclosure outweighs the public interest in non-disclosure (s. 38.06(2)). This latest determination, as well as the determination of relevance, involves an examination of the impact of the information on the fairness of the trial and on a potential ability for the accused to demonstrate his innocence on the basis of the information.^{Footnote 2} Finally, under s. 38.14, the trial judge retains the responsibility to rule on any remedies available where a non-disclosure order from the Federal Court violates fair trial rights, but has the ability neither to see the information withheld nor to make any decisions about the need to disclose any part of the information as part of the remedy. As a result of these significant flaws in the system, it has been recommended that Superior Courts be granted the authority to decide whether information can be released under s. 38 of the Canada Evidence Act, at least when such decisions must be made during a criminal trial before them.^{Footnote 3}

The problem faced by the MPCC is of a different nature. Under the current system, the MPCC is not provided with an opportunity to review unredacted versions of the documents it requests as potentially relevant to its investigations or hearings. As a result, the procedures are significantly delayed while the Government undertakes to redact what can sometimes amount to massive documentation that could potentially be responsive to Commission subpoenas or requests for documents. When the information is finally received by the Commission, the Commission has no ability to view the redacted information, and hence is not in a position to make informed decisions about whether any of the redactions should be challenged before the Federal Court. If the Commission became a listed entity under the Schedule to the CEA (as the new RCMP Review and Complaints Commission will soon be), the practical impact would be that it could receive potentially relevant documents much more expeditiously. It could then be in a position to determine which of the documents are truly relevant to its proceedings, and it could request redaction of only those documents. This would lead to a more efficient use of Government resources as well as Commission resources. Once the relevant documents are redacted, the Commission would also be able to determine whether any challenges to the redactions should be made in order to ensure that as much information as possible is released publicly, without injury to national security, international relations or national defence. At no time would the Commission be authorized to publicly release any information subject to s. 38 privilege claims without either the consent of the Attorney General or the authorization of the Federal Court.

Under s. 38.01(6)(d) of the CEA, the only impact of an entity being listed on the Schedule is to authorize it to receive the information without immediately triggering the s. 38 process (issuance of the Notice and determination of disclosure by the Federal Court). The entity must still treat the information in accordance with its classification – and for this purpose the MPCC has both the secure facilities and the security-cleared personnel. Any intention to further release the information – either to the public at large or to any non-scheduled entity – will still automatically trigger the s. 38 process, and the Federal Court will retain authority to make the ultimate decision about the disclosure.