November 13, 2004

Reveal evidence, RCMP told

By JEFF SALLOT

OTTAWA — Citing the importance of open courts, an Ottawa judge yesterday ordered the RCMP to disclose much of the evidence it had relied upon to obtain a search warrant for the home of a newspaper reporter.

The ruling yesterday gives reporter Juliet O'Neill and her newspaper, the Ottawa Citizen, fresh ammunition in a legal battle to protect the identity of sources who provided information for an article she wrote about Maher Arar, the Ottawa software engineer who was imprisoned in Syria for more than a year.

Madam Justice Lynn Ratushny of the Ontario Superior Court gave the RCMP and the federal government 12 days to appeal her decision or to turn over the secret material.

The ruling is not a complete victory for the journalist. After reviewing the sealed documents, Judge Ratushny said some of the information, including code names for RCMP operations should indeed remain secret for national security reasons.

But the original orders of a justice of the peace sealing the documents in their entirety “were too broad” and hurt the principle of court proceedings being open to the public, the decision said.

Among the things the federal government tried to keep secret was the location of a RCMP building that has an RCMP sign outside.

“Fundamental to Canada's rule of law and to the operation of our democracy is the principle that all of our judicial proceedings should be open to public scrutiny and public criticism,” Judge Ratushny said in a 24-page ruling.

This openness principle also applies to the work of justices of the peace who issue search warrants, she said.

“Every time the public is excluded from some part of Canada's court process, there exists the potential that the operation of Canada's rule of law and its democracy is being secretly undermined,” the ruling continued.

Claims of national security are to be taken seriously, but they don't automatically trump the principle of open courts, the judge said, adding, “. . . There is no presumption in favour of secrecy, even in the face of national-security confidentiality issues arising during judicial proceedings.”

Justices of the peace typically issue search warrants to police on the basis of affidavits signed by the officers setting out why they believe a search of particular private premises will turn up evidence of a crime. JPs sometimes also issue orders to keep the police affidavits secret even after the search has been conducted.

Ms. O'Neill, whose house and office were searched by the RCMP 10 months ago, is trying to find out as much as she can about why the Mounties believed they would find evidence that she'd received documents that had been leaked illegally.

Richard Dearden, the lead lawyer for Ms. O'Neill and the Citizen's legal team, said his clients are “quite pleased with what we got [in yesterday's ruling]. We've got a lot of information” if the ruling is not appealed.

Ms. O'Neill wrote an article, citing an official document, concerning the alleged activities of Mr. Arar.

The Ottawa man was deported to his native Syria — he's a dual national — by U.S. officials as an alleged terrorist. After a year of imprisonment, during which Mr. Arar says he was tortured, the Syrians released him without ever charging him with any crime. A federal commission of inquiry is now trying to determine whether the RCMP or other federal agencies provided information to the U.S. that led to his deportation.

Ms. O'Neill is trying to get the warrants used to search her home and office thrown out as an unconstitutional violation of press freedom. The Globe and Mail, the Toronto Star, the CBC and the Canadian Civil Liberties Union have joined the legal battle on her behalf as intervenors in the case.

© The Globe and Mail 2004