Case Report – Principles endorsed in Arar secrecy decision

18 Aug

On July 24, the Federal Court ordered a portion of the information that had been redacted from the report of the Maher Arar Commission to be released.

In September 2006 the Commission objected to the government’s decision to redact 1500 words from its public report on the grounds their disclosure would cause injury to Canada’s international relations, national defence or national security. It gave notice of its position and, in response, the government applied for an order prohibiting disclosure under section 38.04 of the Canada Evidence Act.

The information ordered to be released by the Federal Court can only be discerned by viewing the Commission’s Addendum because the publicly-available court decision (for security reasons) discusses principles but does not apply them to the information in dispute.

The Court applied the three-part test from Canada (Attorney-General) v. Ribic while also acknowledging that its jurisdiction should be exercised in a manner respectful of the uniqueness and utility of commissions of inquiry. Here are some of the principles it endorsed:

  • A section 38.04 application is not a judicial review proceeding, and the Federal Court does not owe any measure of deference to government or its delegate. At the same time, the Court held that the Commission’s decision should be considered in answering the first and third part of the Ribic test.
  • In determining whether disclosure would be injurious to national security, national defence or international relations, courts should give deference to decisions of the executive. However, the executive’s opinion must have a factual basis and be established by evidence.
  • Disclosure of information that is in the public domain may still be injurious. It depends on how much information has been disclosed, whether it is widely-known, whether its authenticity has been confirmed or denied and the circumstances in which inadvertence led to its disclosure.
  • Information that is critical of or embarrassing to the government cannot be protected on that basis.
  • “National security,” as it is protected by the Canada Evidence Act, means “the preservation of the Canadian way of life, including the safeguarding of the security of persons, institutions and freedoms in Canada.”
  • The “third party rule” (an understanding that intelligence agencies providing information to other agencies will control the information’s subsequent use and disclosure) is “of essence to guarantee the proper functioning of modern police and intelligence agencies.” Intelligence allegiances of importance should be given greater protection.
  • The “mosaic effect” (an understanding that information which in isolation appears meaningless or trivial could, when fitted together, permit a comprehensive understanding of the information being protected) on its own will not usually provide sufficient reason to prevent disclosure of what would otherwise appear to be an innocuous piece of information. There must be some factual basis for the government’s mosaic effect claim.

The Court also identified seven factors to be assessed and weighed against one another to determine whether the public interest lies in disclosure or in non-disclosure.

Canada (Attorney-General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, 2007 FC 766 (CanLII).

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