COURT OF APPEAL FOR ONTARIO
CITATION: XY v. United States, 2013 ONCA 497
DATE: 20130724
DOCKET: M42144 (C54886)
Rouleau J.A. (In Chambers)
BETWEEN
XY
Applicant/Person Sought
and
The United States of America
Requesting State
and
The Minister of Justice of Canada and the Attorney General of Canada
Respondent
Daniel Moore, for the applicant/person sought
Nancy Dennison, for the respondent
Paul B. Schabas and Daniel Stern, for the interveners Toronto Star Newspapers Limited, Postmedia Network Inc., Canadian Broadcasting Corporation, and Global Montreal, a Division of Shaw Television Limited Partnership
Heard: July 23, 2013
ENDORSEMENT
[1] The applicant, XY, brings this motion to seal the court record of his application for judicial review and to hold the hearing of the matter in camera.
[2] This motion arises from extradition proceedings brought against the applicant, XY. The United States requested XY’s extradition from Canada. XY consented to his committal for extradition, but resisted his surrender to the United States on the basis that it would violate his right to life, liberty, and security of the person, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. In his submissions to the Minister of Justice, XY argued that he risks being killed while in custody in the United States, in retaliation for his cooperation with American law enforcement in the investigation of organized crime. The Minister, concluding that the United States could adequately protect XY while he remained in their custody, ordered XY’s unconditional surrender to the United States. XY applied to this court for judicial review of the Minister’s decision.
[3] This motion is XY’s further application to the court for an order that the court record in this case be sealed and the hearing of his application for judicial review be held in camera, pursuant to the court’s duty to protect XY’s informer privilege. I previously ordered that the court file be sealed on an interim basis pending the determination of the motion.
[4] Several members of the media were granted leave to intervene in XY’s motion to seal the court record and to hold the hearing in camera. Counsel for the media, the applicant, and the respondent came before me on February 26, 2013 to speak to the matter. Pursuant to the procedure set out by the Supreme Court of Canada in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253, at paras. 45-61, proceedings commenced in camera, and I determined that XY qualifies as a confidential informer and is therefore entitled to claim informer privilege. I then received preliminary submissions from counsel as to what elements of the record could be safely disclosed to the public without tending to reveal XY’s identity. The matter was adjourned and a written endorsement was issued directing counsel for XY and the Crown to file a redacted record and factums to be reviewed by the court and ultimately released to the media and to the public. Counsel reattended before me on July 23, 2013 to argue whether the extent of this proposed disclosure was satisfactory, or ought to be more fulsome still in order to comply with the open court principle. The parties to this motion largely agreed on the extent to which the hearing should be held in camera.
[5] The media interveners argued that the redaction of the record went beyond what was necessary to protect XY’s identity. Citing Vancouver Sun, at para. 40, counsel for the media argued that the guiding principle is always that
the informer privilege cover[s] only that information which would in fact tend to reveal an informer’s identity; all other information regarding the proceeding would continue to be information which should be published under the open court principle. [Emphasis added.]
Further, while acknowledging that the Dagenais/Mentuck test does not apply when informer privilege is at stake, counsel for the media submitted that the court ought to be mindful of the holding in R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, at paras. 34-35, that a court should only order limits on the open court principle when it is necessary to prevent a “‘real and substantial’ risk”, “the reality of which is well-grounded in the evidence”, to the proper administration of justice, which includes the use of police informers.
[6] With these principles in mind, counsel for the media conducted a detailed review of the redacted record and suggested several places where further disclosure was necessary in order to respect the open court principle. The following omissions from the record were particularly objected to by the media: first, the particular law enforcement agency with which XY cooperated was omitted; second, the charges for which XY is sought for extradition were entirely redacted; third, the Minister’s reasons for surrender were heavily edited; fourth, XY’s notice of application for judicial review had large excisions; and fifth, XY’s edited statement was only about half the length of its unredacted counterpart.
[7] Counsel for XY and counsel for the Crown argued that their burden is not to establish that, taken in isolation, each excision from the record tends to reveal XY’s identity. Rather, they must show and the court must consider whether the information sought, when added to the information already publicly available, will narrow to a dangerous degree the pool of people that XY could be. In their submission, the disclosure requested by the media would reduce the pool to very few individuals and put XY at risk of being exposed.
[8] I reiterate that XY qualifies as a confidential informer and is therefore entitled to claim informer privilege. First and foremost, the requesting state, with its greater access to the information relevant to this determination, has acknowledged that XY acted as an informant to the authorities in that country and has advised the Crown accordingly. In the extradition context, significant weight ought to be given to representations made by Canada’s treaty partners. Second, the fact that XY has acted as an agent for law enforcement in certain investigations in no way removes his informer status and privilege in several other investigations where he has not stepped outside of his protected role as an informant: R. v. Named Person B, 2013 SCC 9, 356 D.L.R. (4th) 264, at para. 43; R. v. G.B. (2000), 146 C.C.C. (3d) 465 (Ont. C.A.), at para. 35.
[9] Since the privilege applies, the court’s role is to “accommodate the open court principle to as great an extent possible without risking a breach of the informer privilege”: Vancouver Sun, at para. 55. I do not agree with the media’s submission that the privilege only covers information that poses a ‘real and substantial’ risk, to be proven by evidence, of revealing an informer’s identity. The privilege protects any information that might implicitly reveal or would in fact tend to reveal the informer’s identity: R. v. Leipert, [1997] 1 S.C.R. 281, at para. 18; Vancouver Sun, at para. 40. I agree with Crown counsel that the analysis of the extent of informer privilege in a given case should not become a trial about what individual pieces of information would or would not actually reveal the informant’s identity. The court must apply logic and common sense, and also look to the available evidence, in deciding what information would tend to reveal an informer’s identity; the court must consider the entire context, and behave judiciously in the circumstances.
[10] In the fairly exceptional context of this case, I agree with counsel for the applicant and the Crown that XY is already somewhat vulnerable to identification. The number of people extradited from Canada to the United States each year is not large. Neither the court nor the parties knows with any degree of certainty what information exists in the public domain in the United States or Canada regarding the subjects of particular extradition proceedings.
[11] The further information the media seeks would narrow the pool of people XY might be to an unacceptable level of specificity. Crown counsel submitted, and I agree, that the redactions in the record consistently protect one of three types of information that would tend to reveal XY’s identity in the circumstances of this case: the nature of the offences for which the United States seeks to extradite XY; the type and extent of assistance XY provided to American law enforcement; and any of XY’s personal characteristics, history, or relationships. I am satisfied that these types of redacted information would, on the facts of this case, tend to reveal XY’s identity. I need not be satisfied that each redaction will in fact reveal his identity.
[12] Any redaction is imperfect. Reasonable people may disagree as to what information will tend to reveal a person’s identity. I recognize that there are instances in this case where words, names, or small pieces of information were redacted from the record when they likely could have been released to the public without tending to reveal XY’s identity. For example, the media argued, in a point illustrative of their central contention that the redaction in this case was too sweeping, that the names of certain lawyers and articling students who were involved in this proceeding, and appear in the record, were needlessly redacted. This may be so. However, I am satisfied that the applicant and the Crown made a good faith effort to release all of the information they could and that nothing of any significance that could be released was redacted. The court must take a realistic approach to the process of redaction and recognize that where hundreds of pages of material need to be meticulously combed through in order to extract revelatory information, errors will be made and some shortcuts will be taken. For example, removing a full page of the record rather than redacting everything but the articles and conjunctions is a reasonable approach. Although the parties must always strive for perfection, the court will nonetheless be satisfied where good faith efforts were made and the result achieves the objective of respect for the open court principle.
[13] I note that the Crown conceded that the total redaction of paragraph (g) in XY’s notice of application for judicial review was an error, and that it ought to have been only partially redacted. Counsel for XY agreed. That page in the redacted record should therefore be corrected.
[14] Subject to any ruling by the panel hearing the application for judicial review, there will be a sealing order applicable to the court record in this case. The public record will be composed of the redacted record (with the correction noted above) and redacted factums filed with and approved by the court.
[15] With respect to the format of the hearing of the application for judicial review, subject again to the panel’s discretion, counsel for the parties are to tailor their submissions so that the hearing will take place to the greatest extent possible in public. Only those portions of the oral argument that cannot be made without disclosing information tending to reveal XY’s identity are to proceed in camera.