



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.

A.

Background and Procedural History

[2]

This motion arises from extradition proceedings brought against the
    applicant, XY. The United States requested XYs 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
    XYs unconditional surrender to the United States. XY applied to this court for
    judicial review of the Ministers decision.

[3]

This motion is XYs 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 courts duty to
    protect XYs 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 XYs
    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 XYs 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
.

B.

Arguments of the parties

[5]

The media interveners argued that the redaction of the record went
    beyond what was necessary to protect XYs 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 informers 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 Ministers reasons for surrender were heavily
    edited; fourth, XYs notice of application for judicial review had large excisions;
    and fifth, XYs 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 XYs 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.

C.

Analysis

[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 Canadas 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 courts 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 medias submission that the privilege only covers information that poses a
    real and substantial risk, to be proven by evidence, of revealing an
    informers identity. The privilege protects any information that might implicitly
    reveal or would in fact tend to reveal the informers 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 informants
    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 informers
    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 XYs 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 XYs personal characteristics, history, or
    relationships. I am satisfied that these types of redacted information would,
    on the facts of this case, tend to reveal XYs 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 persons 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 XYs 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 XYs
    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.

D.

order

[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 panels 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 XYs identity are to proceed
in
    camera
.


