REASONS FOR DECISION WITH RESPECT TO THE AIVFA'S REQUEST FOR DIRECTIONS REGARDING ACCESS TO UNREDACTED DOCUMENTS AND IN CAMERA AN EX PARTE HEARINGS

INTRODUCTION

1.    This motion for direction is dismissed. The families in this Inquiry have been promised full participation in the Air India Inquiry in accordance with Terms of Reference. The failure of this application requires a full explanation as to why the limit on their counsel attending in camera hearings or viewing redacted (edited) documents that could have been injurious to international relations, national defence or national security (hereinafter collectively referred to as "national security") is necessary and does not hamper the families participation.

2.    Counsel for the families correctly acknowledge that if they were able to attend the in camera hearings, of which there have not been any as of yet, and or view security related documents they are and would be prohibited by law from disclosing, however innocuous, any aspects of those proceedings or documents to their clients who are members or relations of the families of the victims of the Air India explosion. That raises the question of what possible value such attendance or viewing documents would be to the families.

3.    As a corollary to that restriction there is an obligation on this Commission to ensure to the extent possible that all hearings and document production be public. The reasons for hearings and production in camera camera for reasons of national security, which encompasses all Canadians, must be clearly demonstrated to the commission by the Government of Canada ("G.O.C.") when such procedure is sought.

4.    While counsel are not entitled to attend in camera hearings, they are entitled to make submissions and call relevant evidence if any, to show that the particular request by the G.O.C. for an in camera hearing should not be ordered. The only basis for having the in camera hearings will be if the G.O.C. has demonstrated that the matter involved could in the opinion of the Commissioner, be injurious to national security.

5.    The foregoing summary needs elaboration. The elaboration is intended to explain that any fear by the families of being excluded, misinformed or not being able to fully participate within the terms of reference is misplaced. The absence of their counsel from in camera hearings on national security will not affect their full participation.

THE POSITION OF THE PARTIES

6.    AIVFA submits that their counsel who have top secret clearance granted by the Government of Canada be admitted to in camera hearings and be granted access to unredacted documents. They submit there should be no national security concerns in allowing them to participate in in camera hearings and to see unredacted documents. Their counsel further submits that for them to have this access would ensure that AIVFA will be engaged, through its counsel, as a full contributor to the Commission's work while increasing the confidence and trust of family members in the Inquiry itself. AIVFA points specifically to the goal alluded to at the end of Stage 1 of the Inquiry, namely "to ensure that when parties leave this hearing that they feel they have had a full opportunity to explore the cause [of the failure to prevent the bombing] and be satisfied they know what happened to the extent that is possible." AIVFA submits that the access it seeks for its counsel is a means to achieve this goal and that nothing in the Inquiry's Terms of Reference prevents me from granting the direction or order being sought.

7.    The Government of Canada opposes the motion. In support of its position, it cites the Terms of Reference of the Inquiry and the procedures set out in Section 38 of the Canada Evidence Act for dealing with top secret matters as well as the way national security is treated in other legal proceedings. G.O.C. submits that the Terms of Reference and the procedure set out in Section 38 preclude counsel for AIVFA, although holding top security clearance, being granted the access sought.

DISPOSITION

8.    The explicit provisions of the Terms of Reference of this Inquiry and the procedural provisions outlined in Section 38 of the Canada Evidence Act support G.O.C. application preclude me from granting AIVFA counsel the access requested. From a functional point of view, even if I did have jurisdiction to grant access, it is difficult to see how such access could improve the knowledge or understanding of the families with respect to the subject matter of the Inquiry. Even if such access were possible, it would serve no practical benefit for the families themselves as penal sanctions prevent any disclosure to anybody including their clients of anything seen or heard at the in camera hearings or in unredacted documents. G.O.C. also submits that if the issue is seen as one of fairness, there are other guarantees of fairness in the Inquiry process that make the access sought unnecessary.

9.    I agree that the concern advanced by the families demonstrates the necessity of holding as much of this Inquiry as possible in public but, that fact does not give me jurisdiction to allow the motion for attendance applied for.

IN CAMERA HEARINGS

10.    Unlike a court of inherent jurisdiction, a Commission of Inquiry only has the powers granted to it by statute or by its Terms of Reference. The Commission's Powers and Duties respecting the matters raised by AIVFA are found at paragraphs d, f, m, n and o of the Terms of Reference:

4. that the Commissioner be authorized to adopt any procedures and methods that he may consider expedient for the proper conduct of the Inquiry, and to sit at any times and in any places in or outside Canada that he may decide

6. that the Commissioner be authorized to grant to the families of the victims of the Air India Flight 182 bombing an opportunity for appropriate participation in the Inquiry

13. the Commissioner, in conducting the Inquiry, to take all steps necessary to prevent disclosure of information which, if it were disclosed, could, in the opinion of the Commissioner, be injurious to international relations, national defence or national security and to conduct the proceedings in accordance with the following procedures, namely,


(i) on the request of the Attorney General of Canada, the Commissioner shall receive information in camera and in the absence of any party and their counsel if, in the opinion of the Commissioner, the disclosure of that information could be injurious to international relations, national defence or national security

14. that nothing in that Commission shall be construed as limiting the application of the provisions of the Canada Evidence Act

15. the Commissioner to follow established security procedures, including the requirements of the Government Security Policy, with respect to persons engaged pursuant to section 11 of the Inquiries Act and the handling of information at all stages of the Inquiry.

11.    At present AIVFA's request with respect to access to in camera proceedings is premature since there has not been any request by the Attorney General of Canada as set out in paragraph m(i) of the Terms of Reference, nor have I made any ruling to date that any session be in camera. However, undoubtedly such a request will be made and that it is necessary to determine the principles at this point, that will govern the conduct of in camera hearings. This provides procedural clarity and it is hoped will avoid unnecessary delay if such a request is made.

12.    It should be noted that a mere request by the Attorney General of Canada is not sufficient to obtain an order that some particular matter be heard in camera. Pursuant to paragraph m(i) of the Terms of Reference, the Attorney General must satisfy me that disclosure of the information in question could be injurious to international relations, national defence or national security before I can order that the information be dealt with through in camera hearings. G.O.C. concedes that the parties in this Inquiry, including AIVFA through its counsel, have a right to make submissions in response to any such request and to oppose any specific request for an in camera hearing.

13.    Paragraph m(i) of the Terms of Reference is clear that if I am satisfied by the Attorney General that disclosure of such information could be injurious to international relations, national defence or national security, I have no jurisdiction other than I "shall" receive the information "in camera and in the absence of any party and their counsel."

14.    Paragraph d. of the Terms of Reference, which authorizes me to adopt any procedures and methods that I may consider expedient for the proper conduct of the Inquiry does not allow me to modify or ignore the clear instructions set out in paragraph m(i). I disagree with the proposed reading by AIVFA of paragraph m(i) which would, for purposes of the present motion, read the test to be whether "disclosure of that information and could be injurious…" as meaning that I should assess whether "disclosure to counsel with top secret clearance of that information could be injurious …". I do not agree with this innovative argument as it is inconsistent with the express requirement that information, the disclosure of which could be harmful, must be received in camera "and the absence of any party and their counsel." Wording to prevent this result could easily have been used had that been the G.O.C. intent.

ACCESS TO UNREDACTED DOCUMENTS

15.    Paragraph n of the Terms of Reference provides that nothing in the Terms of Reference establishing the Commission is to be construed as limiting the application of the provisions of the Canada Evidence Act.

16.    Pursuant to Section 38.11(2) of that Act, the Attorney General is entitled to make ex parte representations (i.e. representations outside of the presence of any party or its counsel) concerning the redaction of sensitive or potentially injurious information. I am not bound to accept the submissions of the Attorney General and Commission counsel may argue either in support of or in opposition to these submissions, but there is no doubt that the redaction process is not one in which counsel for the parties, with or without security clearance, may participate. I agree with the Attorney General's submission, that sensitive or potentially injurious information must be redacted from documents prior to their use in public hearings and that there is nothing that authorizes me to grant counsel for AIVFA access to unredacted versions of such documents.

FUNCTIONAL CONSIDERATIONS

17.    A consideration of the functional implications of the directions being requested by AIVFA reinforces the conclusions that I have reached.

18.    Counsel for G.O.C. submits the case law with respect to national security issues makes it clear that the potentially injurious consequences of disclosure have lead courts to take a very cautious approach. See Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877. The principle stated there was accepted by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at para. 33:

"It is not only that the executive has access to special information and expertise in these matters [of national security]. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only be entrusting them to persons responsible to the community through the democratic process."

19.    The principle that has been adopted by the Government of Canada in dealing with disclosure of information potentially injurious to national security or to the national interest, is to restrict disclosure on the basis of "need to know". This principle has been approved by the Federal Court of Appeal in connection with the "informer privilege" in Canada (R.C.M.P. Public Complaints Commission) v. Canada (Attorney General), 2005 FCA 213^*. There, disclosure was sought by the RCMP Complaints Commissioner in order to "ensure the highest possible standard of justice." Lètourneau J.A. responded that "as laudable as this goal may be, it cannot justify granting access to persons who are not persons who need to know such information for law enforcement purposes." (paras 43-48)

20.    This same "need to know" principle should be applied with respect to in camera hearings and access to unredacted documents. In the present circumstances, it cannot be said that in their role as counsel, counsel for AIVFA "need to know" the information to which access is being sought. As AIVFA acknowledges, counsel would not be able to disclose any information learned in the course of the in camera hearings nor could they disclose the redacted portions of documents to their clients. AIVFA explicitly acknowledges that counsel would be required to give an undertaking not to make such disclosure. In those circumstances, it is impossible to see how access to in camera hearings or unredacted documents would add to the families' "opportunity to explore the cause" or allow them "to be satisfied that they know what happened." Counsel themselves might believe that they had more information about what happened, but they could not communicate that information to their clients. This would not justify treating granting of access as capable of outweighing the Government's interest in restricting disclosure, and that would be the case even if the Terms of Reference allowed me to do such balancing, which, they do not. In fact, even if they were allowed to attend in camera sessions, counsel for AIVFA could only subsequently make arguments and submissions as if they had not attended them.

21.    It is important that the public interest (which includes the interest of the families) with respect to a full exploration of all the facts is not left unguarded. At the restricted in camera hearing and/or the redaction of document it is the responsibility of the Commission and the role of Commission counsel to protect that public interest. As noted by Mr. Justice Dennis O'Connor, Commissioner at the Arar Inquiry, in his non-judicial article, "The Role of Commission Counsel in a Public Inquiry":

"… commission counsel's role is not to advance any particular point of view, but rather to investigate and lead evidence in a thorough, but completely impartial and balanced manner. In this way, the commissioner will have the benefit of hearing all the relevant evidence unvarnished by the prospective of someone with an interest in a particular outcome." (2003), 22 Advocates Soc. J. No. 1, at para. 12.

22.    As also noted by Justice O'Connor, where a public inquiry does hear evidence in camera, the role of Commission counsel in representing the public interest allows Commission counsel to depart somewhat from his or her normal role and to engage in pointed cross-examination where necessary, so as to ensure that evidence heard in camera is thoroughly tested -- a procedure intended to be followed by this Commission.

CONCLUSION

23.    There is no doubt, as submitted by AIVFA, that there is a valid interest in the fullest possible airing of all information relevant to the subject matter of the Inquiry. For that reason, to the extent that it is possible, hearings should be public and the information disclosed publicly. That is the principle set out in rule 22 of our Rules of Practice and Procedure. The operative concept, however, is the phrase "to the extent that that is possible", words that I also used in the passage cited by AIVFA in describing the educational goal of the Inquiry.

24.    By the Terms of Reference of this Inquiry, I have no jurisdiction to grant access to counsel for AIVFA to any in camera hearings that may be held nor to unredacted versions of documents that have been redacted for national security reasons. Functional considerations, including the deference due to government with respect to matters touching on national security and the appropriateness of the "need to know" principle, lead in the present case, to the same result. For all the above as previously stated this application for direction is dismissed.

*Citation corrected from previous version.