R. v. Ribic, 2008 ONCA 790

Date: 2008-11-24

Docket: C44148

COURT OF APPEAL FOR ONTARIO

Cronk, Gillese and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Nicholas Nikola Ribic

Appellant

D’Arcy De Poe and Heather Perkins-McVey, for the appellant

Robin Parker, Robert Goldstein and François Lacasse, for the respondent

Heard: June 16 and 17, 2008

On appeal from the convictions entered by Justice Douglas J.A. Rutherford of the Superior Court of Justice, sitting with a jury, on June 12, 2005.

Cronk J.A.:

[1] In 1995, Bosnia was in the throes of a bitter and prolonged civil war between Bosnian Serbs and Bosnian Muslims. The war had a complicated and violent history. Throughout, a United Nations (UN) peacekeeping force, assisted by the North Atlantic Treaty Organization (NATO), was deployed in Bosnia.

[2] The appellant, Nicholas Nikola Ribic, is a Canadian citizen of Yugoslavian origin. At some point around 1995, he travelled to Bosnia and became involved with the Serbian war effort. On May 26, 1995, Ribic and several companions took three unarmed UN military observers hostage at gunpoint in the Bosnian town of Pale and used them as human shields by shackling them to Serbian ammunition bunkers that were the target of an ongoing NATO air strike. During the initial hostage-taking, Ribic repeatedly threatened to kill the hostages if the NATO bombing did not stop. The hostages were detained for almost three and a half weeks, until their negotiated release on June 18, 1995. News of this shocking incident was rapidly broadcast around the world by the international media.

[3] On February 17, 1999, Ribic was charged with four counts of hostage-taking in relation to two of the UN observers – one of whom is a Canadian citizen – under s. 279.1 of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (the Code). Ribic was then residing in Germany. He was extradited and brought to Canada to stand trial. Canada’s jurisdiction over the hostage-taking, assumed under s. 7(3.1) of the Code, was conceded by the defence.

[4] Ribic’s first trial began in October 2002. It ended on January 20, 2003 with the declaration of a mistrial. On June 12, 2005, following a second trial before a judge and jury, Ribic was convicted of two counts of hostage-taking and, on September 14, 2005, was sentenced to three years imprisonment.

[5] Ribic appeals his convictions. He argues that the trial judge erred by ruling that some of the substantive defences advanced by the appellant should not have been put to the jury and that he further erred in his instructions on certain of the defences left with the jury for its consideration. Ribic also contends that the trial judge erred by refusing to stay the prosecution on the grounds that Ribic’s rights under ss. 7 and 11(b) of the Charter of Rights and Freedoms to a fair trial, to make full answer and defence to the Crown’s case, and to trial within a reasonable time had been infringed. For the reasons that follow, I would dismiss the appeal.

I. FACTS

(1) Bosnian Conflict and UN Mission

[6] In April of 1992, Bosnia-Herzegovina declared independence from Yugoslavia, triggering a bloody civil war among Bosnian Serbs, Bosnian Muslims and Croats. Approximately two years later, the Bosnian Muslims and the Croats signed an agreement creating the Federation of Bosnia and Herzegovina. This reduced the warring factions to two – the Serbs and the Muslims.

[7] By May of 1995, Bosnia was splintered into areas controlled by one side or the other. The city of Sarajevo, the seat of the Bosnian Muslim government, was under siege from the Serbian army, which controlled a territory surrounding the city. The Serbs, under the leadership of their President, Radovan Karadzik, had established a rival government in Pale, situated about 15 kilometres from Sarajevo. The Serbian army and its Commander-in-Chief, General Ratko Mladić, had set up a large munitions depot at a site in close proximity to Pale. This depot and the armaments that it contained were an important Serbian military asset.

[8] A multinational UN protection force (UNPROFOR) was present in Bosnia to enforce a peace agreement between the Serbs and the Muslims, to monitor and enforce UN resolutions, and to protect the civilian population from hostilities. UNPROFOR was headquartered in Sarajevo under the command of a British military officer, General Rupert Smith. NATO backed UNPROFOR for enforcement purposes.

[9] The UN Security Council had designated several “safe areas” or “heavy weapons exclusion zones” within Bosnia, which were intended to be free from armed attacks and fighting. The warring factions were required to deposit all their heavy weapons (e.g., artillery and tanks) in the safe areas at UN monitored weapons collection sites. Pale was within a designated safe area surrounding Sarajevo. This meant that neither side was permitted to maintain any heavy weapons within that zone.

[10] UN military observers formed an integral part of the UN Bosnian mission. In contrast to UNPROFOR soldiers, who carried arms and lived in military compounds, the UN military observers worked in small teams in the region, living among the local population. They were strictly forbidden to carry arms. They acted as liaisons between the UN and local military and civilian agencies, including the Bosnian-Serb authorities.[^1]

[11] A 1994 cessation of hostilities agreement between the Serbs and the Muslims expired in April of 1995. By late May, the Serbian army had removed prohibited weapons from the UN collection points and both sides were engaged in armed hostilities from populated areas within the UN safe areas, including Sarajevo. As a result, on May 24, 1995, General Smith issued the following blunt warning to both factions:

In view of these grave circumstances and with the intent of stabilizing the situation, all heavy weapons, as previously defined, are to cease firing and the four heavy weapons removed from the … Weapons Collections Points are to be returned 1200 hrs local time Thursday 25 May 1995. All remaining heavy weapons are to be clear of the Heavy Weapons Exclusion Zone or in Weapons Collection Points by 1200 hrs local time Friday 26 May 1995. Failure to comply with either deadline will result in the offending party or parties being attacked from the air.

[12] On May 25, when the Serbian army did not comply with the deadline for the ceasefire and the return of its heavy weapons to the UN collection points, NATO commenced an air strike on two Serbian ammunition bunkers in the Pale area. At that time, a three-person UN military observer team, consisting of Captain Patrick Rechner – a Canadian and the leader of the team, Captain Oldrich Zidlik – a Czech officer, and Captain Pavel Teterevsky – a Russian officer, was stationed in Pale. Rechner’s team lived with a Serbian family. The team’s office was located in the garage of their host family’s home.

[13] The Serbian army retaliated for the NATO air strike by shelling safe areas in Sarajevo and other Bosnian towns, causing numerous civilian fatalities. This prompted General Smith to issue a second stern warning to the Serbian army. He wrote on May 25 to General Mladić, stating:

I want to stress that this afternoon an air strike was executed on the ammunition storage site at PALE because the 4 heavy weapons had not been returned to their WCP’s [weapons collection points] by 1200 hrs on 25 May 95. Since then your forces have shelled in retaliation the Safe Areas of Sarajevo, Gorazde, Srebrenica, Tuzla and Bihac.

These breaches of all the existing Agreements are taken very seriously. The violations against safety of civilians and UN personnel will not be accepted. You must understand that the failure to return the weapons and the subsequent shelling have taken the matter out of my hands; your forces must continue to expect NATO to react.

I remind you of the second deadline stated in my Warning of which you are very well aware, that will end tomorrow, 26 May 95, at 1200 hrs.

[14] The next morning, UN intelligence reports indicated that the Serbian army had still not complied with the UN demand for the return of the heavy weapons and was making no effort to remove its heavy weapons from the exclusion zones. Accordingly, after a telephone discussion between Generals Smith and Mladić failed to resolve the situation, NATO air strikes in Pale recommenced.

(2) The Hostage-Taking

[15] At about 10:00 a.m. on May 26, while the second round of NATO air strikes was in progress, two men armed with assault rifles entered the UN military observers’ office in Pale. Zidlik and Rechner were in the building. Teterevsky walked into the office shortly after the intruders’ arrival. Rechner immediately telephoned the offices of the Serbian president and was informed that the intruders had been “sent officially”. Shortly thereafter, the appellant and one or two companions arrived. They wore camouflaged Serbian military uniforms and were armed with AK – 47 automatic assault rifles. The appellant was also wearing a military helmet and, according to Rechner, was holding his weapon in a ready-to-fire position.

[16] The appellant quickly assumed control of the situation and demanded to be put in touch with General Smith. He was connected by telephone with Major Guy Lavender, General Smith’s military assistant. Throughout their ensuing discussion, the appellant repeatedly demanded of Lavender that the air strike be stopped, failing which the military observers would be killed. According to Rechner, the appellant also said, “[F]or every bomb that now falls, one of the [observers] will be shot.” Lavender confirmed that the appellant stated: “Unless you get General Smith on the phone, I’m going to kill the hostages that I’ve got here.” When the appellant thereafter spoke directly with General Smith, he further threatened: “I’m telling you now that this bombing is to stop, otherwise I’m going to kill the hostages that I’ve taken” and “You listen to me, if this bombing doesn’t stop then these hostages are going to be killed.”

[17] Additional Serbian soldiers soon arrived, including a man named “Srjan”, whom the appellant identified as his commander. The UN observers were then handcuffed together, forced into their SUV and driven to the Serbian munitions depot near Pale. When the hostages and their captors arrived at the depot, they encountered several civilians, one of whom attacked Rechner and, brandishing a pistol, threatened to kill all the hostages. Zidlik said that when the appellant and his companions intervened and stopped the attack, they told the assailant: “We need them alive. You don’t need to – we don’t – we don’t want them – we don’t want them to get killed at the moment”, or words to that effect.

[18] The Serbians broke the lock on the depot gate with a hammer and chisel and drove the hostages into the compound. En route, the appellant informed the UN military observers’ headquarters in Sarajevo by radio that the hostages were being taken to the bunkers and again threatened that if there was any more bombing, they would be killed. Subsequently, when the appellant again contacted UN headquarters, he stated: “This is a BSA [Bosnian Serb-army] soldier. Three UN observers are now at the site of the warehouse. Any more bombing, they’ll be the first to go. Understood?”

[19] While the NATO bombing continued unabated, the hostages were driven farther into the complex, towards the bunkers. Once at the bunkers, Rechner and Teterevsky were handcuffed to lightning rods located outside the bunkers. Zidlik was initially handcuffed to the main door of a bunker but was later moved, and handcuffed, at a different location. A Polish officer from another UN observer team was handcuffed in front of a bunker that contained exploding ammunition. The hostages were videotaped in these positions. The videotape was given to a Serbian news service and was soon broadcast around the world by international media organizations.

[20] The appellant and his companions then abandoned the hostages, leaving them secured in the area of the bunkers while the bombing continued. According to Rechner, before the appellant departed he told Rechner that: “As far as [Rechner] was concerned, he [the appellant] was never there. That he didn’t exist. That he … didn’t participate in the … [hostage taking].”

[21] The next day, Rechner was allowed to return to his office, guarded by the appellant and another Serbian soldier, to obtain supplies for his team. The three men stopped to watch a CNN broadcast that included footage of the hostages and the appellant, as well as one of the radio transmissions in which the appellant had threatened the lives of the hostages. While observing this broadcast, Rechner heard the appellant say, “I may as well rip up my Canadian passport.”

[22] At some point, NATO terminated the air strikes. Nevertheless, Rechner and Zidlik remained captive at a Serbian military barracks, along with other detained UN observers, until their negotiated release on June 18, 1995. It later emerged that their capture and detention were part of a much larger offensive by the Serbian army, in which about 350 UN personnel, including military observers, were taken hostage and used as human shields in various locations throughout Serbian-held territory. The evidence at trial suggested that hostage-taking was a tactic known to be employed by the Serbian army.

(3) Trial Proceedings

Evidence of Witnesses A and B

[23] The appellant’s first trial began on October 7, 2002 before Cunningham J. of the Superior Court of Justice. The Crown called six witnesses over eight days. On October 23, 2002, at the close of the Crown’s case, the defence sought to call as witnesses two former members of the Canadian Armed Forces who had served in Bosnia with UNPROFOR during the hostage-taking incident. The first proposed witness – Witness A – was a Canadian intelligence officer who acted as Canada’s country analyst for Bosnia-Herzegovina. The second proposed witness – Witness B – was a forward air controller who engaged in intelligence-gathering, helped select bombing targets and assisted in guiding NATO aircraft to identified targets. Neither of these individuals was present during the hostage-taking incident. As the process that was used to obtain the evidence of these witnesses is in issue on this appeal, it is discussed here in some detail.

[24] Both Witnesses A and B expressed concerns that their testimony might include “potentially injurious” or “sensitive” information concerning Canada’s international relations, national defence or national security, within the meaning of s. 38 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the CEA).[^2] When notice of these concerns was provided to the Attorney General of Canada in accordance with s. 38.01(1) of the CEA, the Attorney General declined to authorize the disclosure of Witness A’s and B’s information. The appellant then applied to the Federal Court for an order authorizing Witnesses A and B to testify without restriction at his criminal trial and permitting the entirety of their proposed evidence to be disclosed. The Attorney General opposed this application and moved for directions from the Federal Court.

[25] These developments led to the adoption of a special process for the conduct of examinations of Witnesses A and B, authorized by consent court order of Lutfy A.C.J. of the Federal Court, dated November 15, 2002 (the Disclosure Process). The witnesses were questioned under oath in camera by counsel designated by the Attorney General for that purpose (not Crown counsel in the appellant’s criminal trial), in accordance with questions devised by the appellant’s counsel. The questioning of the witnesses was extensive and produced in excess of 550 pages of transcript. Neither the appellant nor his counsel were present during or participated directly in the conduct of the examinations.

[26] The Attorney General subsequently agreed to the disclosure of much of the evidence of Witnesses A and B. However, he objected to the disclosure of other parts of their testimony on the ground that disclosure could occasion injury to Canada’s international relations, national defence or national security.

[27] By order dated January 9, 2003, Blanchard J. of the Federal Court prohibited Witnesses A and B from giving viva voce testimony at the appellant’s criminal trial. However, he authorized the disclosure of certain parts of their testimony “to be introduced in evidence at the [appellant’s] criminal trial as if the two witnesses had testified under oath and in lieu of their viva voce testimony” (the First Disclosure Ruling): Ribic v. Canada (Attorney General) (2003), 2003 FCT 10, 250 F.T.R. 161 (F.C.T.D.). By subsequent order dated January 17, 2003, he also authorized disclosure of certain contents of a videotape of some of the 1995 NATO bombing missions in Pale. However, he denied the disclosure of other parts of the videotape and prohibited Witness A from testifying at trial concerning the videotape: Canada (Attorney General) v. Ribic (2003), 2003 FCT 43, 250 F.T.R. 1 (F.C.T.D.), (collectively, the Disclosure Rulings).

[28] The appellant’s criminal trial had been suspended pending the outcome of the Federal Court disclosure proceedings. On January 20, 2003, the appellant appealed the Disclosure Rulings to the Federal Court of Appeal. On the same day, given the uncertainty as to when the trial might resume, the trial judge declared a mistrial and discharged the jury. By judgment dated June 4, 2003, the Federal Court of Appeal affirmed the Disclosure Rulings and dismissed the appellant’s appeal (the FCA Decision). The appellant’s subsequent application for leave to appeal to the Supreme Court of Canada was refused: Canada (Attorney General) v. Ribic (2003), 2003 FCA 246, 185 C.C.C. (3d) 129 (F.C.A.), leave to appeal to S.C.C. refused (2003), 185 C.C.C. (3d) 129n.

Sections 7 and 11(b) Charter Applications

[29] Prior to the commencement of his second trial, the appellant moved for a stay of the proceedings on the ground that his s. 11(b) Charter right to trial within a reasonable time had been infringed. On April 20, 2004, the trial judge dismissed this stay application: R. v. Ribic, 2004 CanLII 7091 (ON S.C.).

[30] At trial, Rechner and Zidlik testified for the Crown, as did three Canadian military officers, each of whom had contact with the appellant in Bosnia. The Crown was also permitted to play an audio recording of the testimony of Major Lavender (General Smith’s military aide), given at the appellant’s first trial.

[31] The appellant did not testify. The defence applied to read excerpts from the transcripts of the evidence given by Witnesses A and B in the Disclosure Process, in the form provided to the defence under the Disclosure Rulings, to the jury and to have both witnesses qualified as experts. The trial judge granted the first application, holding that the evidence of Witnesses A and B was admissible as an exception to the hearsay rule. However, he denied the second application, refusing to qualify either witness as an expert.

[32] After the defence read the expurgated testimony of Witnesses A and B to the jury, it closed its case. The appellant then moved for a stay of the proceedings on the basis that the presentation of the evidence of Witnesses A and B, in the form and manner mandated by the Disclosure Rulings, violated his s. 7 Charter rights to a fair trial and to make full answer and defence. He also renewed his s. 11(b) Charter application. On June 7, 2005, the trial judge dismissed both stay applications: R. v. Ribic, [2005] O.J. No. 2631 (S.C.).

Proposed Substantive Defences

[33] The appellant requested the trial judge to charge the jury on several substantive defences:

(i) the use of force to prevent the commission of an offence (s. 27 of the Code);

(ii) the use of force to defend property in one’s peaceable possession or to lawfully assist those in peaceable possession (s. 41(1) of the Code);

(iii) the use of force to defend one’s self or persons under one’s protection from assault (s. 37(1) of the Code);

(iv) the common law defence of necessity; and

(v) the common law defence of obedience to superior orders.

[34] The trial judge left the common law defences of necessity and obedience to superior orders and the defence of self and others under s. 37(1) of the Code with the jury. However, he refused to leave the jury with the statutory defences provided by ss. 27 and 41(1) of the Code, ruling that there was no “air of reality” to those defences in this case: R. v. Ribic, [2005] O.J. No. 2632 (S.C.).

II. ISSUES

[35] There are four issues on appeal:

(1) Did the trial judge err: (i) by refusing to instruct the jury on the defences provided by ss. 27 and 41(1) of the Code; and (ii) by misdirecting the jury on the defence provided by s. 37(1) of the Code and the common law defence of obedience to superior orders?

(2) Did the trial judge err by refusing to stay the proceedings under s. 24(1) of the Charter on the basis that the appellant’s s. 7 Charter right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice was violated?

(3) Did the trial judge err by failing to stay the proceedings under s. 38.14 of the CEA?

(4) Did the trial judge err by refusing to stay the proceedings on the basis that the appellant’s s. 11(b) Charter right to trial within a reasonable time was infringed?

III. ANALYSIS

(1) Trial Judge’s Charge on Substantive Defences

Proposed Defences under Sections 27 and 41(1) of the Code

[36] At trial, the appellant argued that the air of reality threshold was met for the defences provided under both ss. 27 and 41(1) of the Code. The trial judge rejected this argument, reasoning as follows:

[T]he real context of the case is the taking of hostages in a territory torn by civil war and the use of property by the Serb revolutionary forces in armed conflict with the forces of what remained of the legitimate government of the territory. I see no air of reality in those other two statutory defences, contem-plating, as the one does [s. 41], peaceable possession of property and as the other does [s. 27], preventing the commission of an offence, I see no appropriate role in the trial for the civil law concept of trespass upon private property in this civil war context and I also see no utility or value in considering the intervention by NATO and the United Nations, given their mandate to establish a peace in Bosnia and enforce it, as an offence, which could be lawfully repelled by the use of force.

[37] Before this court, the appellant renews his assertion that he was entitled to have the ss. 27 and 41(1) defences considered and decided by the jury. I disagree.

Governing Principles

[38] The air of reality test contemplates that an accused is entitled to have all defences put to the jury that are realistically available on the evidence. However, “a defence should be put to a jury if and only if there is an evidential foundation for it”: R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3, at para. 50, per McLachlin C.J. and Bastarache J. See also R. v. Gunning, 2005 SCC 27, [2005] 1 S.C.R. 627, at para. 29, per Charron J. Indeed, “[a] trial judge has a positive duty to keep from the jury defences lacking an evidential foundation”: Cinous at para. 51, per McLachlin C.J. and Bastarache J. The air of reality test applies to all defences (Cinous at paras. 57 and 82) and to all requisite elements of a defence. Thus, if evidential support for a necessary element of a defence is lacking, the air of reality test will not be met.

[39] In this case, the appellant requested the trial judge to charge the jury on multiple theories of self-defence. The trial judge, therefore, was obliged to consider whether, on the evidence, there was an air of reality to each of the defences advanced by the appellant. In their joint reasons in Cinous, at paras. 52-54, McLachlin C.J. and Bastarache J. explained the air of reality test and a trial judge’s task in applying this test to a proposed defence:

The air of reality test is concerned only with whether or not a putative defence should be “put in play”, that is, submitted to the jury for consideration.

In applying the air of reality test, a trial judge considers the totality of the evidence, and assumes the evidence relied upon by the accused to be true. … The evidential foundation can be indicated by evidence emanating from the examination in chief or cross-examination of the accused, of defence witnesses, or of Crown witnesses. It can also rest upon the factual circumstances of the case or from any other evidential source on the record. There is no requirement that the evidence be adduced by the accused.

The threshold determination by the trial judge is not aimed at deciding the substantive merits of the defence. That question is reserved for the jury. … The trial judge does not make determinations about the credibility of witnesses, weigh the evidence, make findings of fact, or draw determinate factual inferences. … Nor is the air of reality test intended to assess whether the defence is likely, unlikely, somewhat likely, or very likely to succeed at the end of the day. The question for the trial judge is whether the evidence discloses a real issue to be decided by the jury, and not how the jury should ultimately decide the issue. [Citations omitted; emphasis added.]

[40] Subsequently, in R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, the Supreme Court of Canada revisited the air of reality test. Justice Fish, writing for the court, described the underlying rationale for the test, at paras. 48 and 58:

Under our system of trial by judge and jury, the judge decides all questions of law and delimits the issues of fact to be considered and determined by the jury. To avoid manifest unfairness and undue confusion, no issues will be put to the jury in the absence of a sufficient evidential foundation.

This requirement of a sufficient evidential foundation aims primarily to avoid wrongful convictions and unwarranted acquittals, while at the same time leaving it to the jury to discharge the responsibilities that are by law within its exclusive domain.

[41] Justice Fish also addressed the application of the air of reality test to affirmative defences, stating at para. 56: “[t]here must be evidence in the record upon which a properly instructed jury, acting judicially, could entertain a reasonable doubt as to the defence that has been raised.”

[42] Justice Fish then added, at paras. 71-74:

The operative question is sometimes said to be whether there is any evidence “upon which a properly instructed jury acting reasonably could acquit if it believed the evidence to be true”. (Cinous, at para. 65.)

This formulation of the test signifies that the trial judge, in determining whether a defence is in play, must assume the truth of the evidence that tends to support it, leaving the reliability, credibility and weight of that evidence to be determined by the jury.

It was not meant to suggest that the evidential burden for all defences will be discharged only if the relevant evidence must be believed in order for the defence to succeed. As McLachlin J. explained in her dissent in R. v. S. (W.D.), 1994 CanLII 76 (SCC), [1994] 3 S.C.R. 521, at p. 543, an accused is entitled to be acquitted on the basis of exculpatory evidence that the jury does not reject, but either accepts or about which it is undecided.

In short, as regards all affirmative defences, I think it preferable to say that the evidential burden will be discharged where there is some evidence that puts the defence “in play”: see Cinous, at para. 52. And the defence will be in play whenever a properly instructed jury could reasonably, on account of that evidence, conclude in favour of the accused. [Emphasis in original.]

See also Gunning at para. 32.

[43] The question, therefore, is how these governing principles regarding the air of reality test apply to the affirmative defences relied on by the appellant at trial.

Section 27 Defence

[44] Section 27 of the Code states:

Every one is justified in using as much force as is reasonably necessary

(a) to prevent the commission of an offence

(i) for which, if it were committed, the person who committed it might be arrested without warrant, and

(ii) that would be likely to cause immediate and serious injury to the person or property of anyone; or

(b) to prevent anything being done that, on reason-able grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).

[45] In my opinion, the s. 27 defence did not merit being left with the jury on the facts of this case. This defence, viewed in its proper context, applies to force used in general law enforcement: R. v. Hebert, 1996 CanLII 202 (SCC), [1996] 2 S.C.R. 272, at para. 12. To invoke s. 27 of the Code, the appellant was required to point to some evidence on the basis of which the jury could have a doubt as to whether the appellant believed, on reasonable grounds, that in taking the UN observers hostage at gunpoint and forcibly confining them at the ammunition bunkers to serve as human shields against the NATO air strikes, he was preventing the commission of an offence.

[46] Counsel for the appellant suggested at trial and, in effect, again asserts before this court that the destruction of an ammunition bunker is an offence, such that it was reasonable for the appellant to believe that any action taken to prevent such destruction was justified in the circumstances.

[47] There was no evidence in this case to support this proposition. On the contrary, Rechner’s evidence of the appellant’s actions told strongly against the suggestion that, in acting as he did, the appellant believed that he was acting to prevent the commission of an offence. Consider that before abandoning the hostages at the ammunition bunkers, the appellant exhorted Rechner to forget that he had ever seen him. Consider also Rechner’s testimony that when the appellant viewed the CNN broadcast, he observed that he might as well “rip up [his] Canadian passport”. This evidence cut against the suggestion that there was a basis on which the jury could find or at least have a reasonable doubt concerning whether the appellant had a reasonable belief that his actions were justified to prevent the commission of an offence.

[48] Nor was there any evidence at trial that the NATO bombing of the munitions depot and the ammunition bunkers was illegal. UN Security Council Resolution 836, adopted on June 4, 1993, authorized the UN forces to take “the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them”.[^3] The appellant did not challenge the legality of this authorized use of force.

[49] In these circumstances, the requisite evidential foundation for the s. 27 defence was not made out. Simply put, on the evidence at trial, the defence was not in play.

Section 41(1) Defence

[50] The appellant’s reliance on s. 41(1) of the Code is similarly untenable. Section 41(1) provides:

Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

[51] In R. v. George (2000), 2000 CanLII 5727 (ON CA), 49 O.R. (3d) 144 (C.A.), at paras. 35-38, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 343, this court, citing R. v. Born with a Tooth (1992), 1992 ABCA 244, 76 C.C.C. (3d) 169 (Alta. C.A.), held that there are four elements of the s. 41(1) defence: (i) the accused must have been in possession of land; (ii) his possession must have been peaceable; (iii) the victim of the assault must have been a trespasser; and (iv) the force used to eject the trespasser must have been reasonable in the circumstances: see also Gunning at para. 25.

[52] For four reasons, I am persuaded that the trial judge did not err in holding that the s. 41(1) defence lacked the air of reality required to leave it with the jury. First, there is some merit to the Crown’s assertion that the evidence at trial failed to establish or at least to raise a reasonable doubt as to whether the appellant and his companions were in possession of the targeted munitions complex and the ammunition bunkers. Recall that they gained entry to the facility by breaking the lock on the depot gate. At the very least, there was no evidence that the appellant himself had any connection with the ammunition bunkers or the munitions depot, any right to be in possession of them, or any control over them.

[53] Second, and more importantly, even if the actual occupation of the munitions depot and the ammunition bunkers by the appellant and his associates met the requirement of possession under s. 41(1), there was no basis on which the jury could have a reasonable doubt that there was “peaceable” possession as contemplated by that provision. In George, at paras. 41-42, this court accepted that “peaceable” possession under s. 41(1) means possession that is “not seriously challenged by others” and that any challenge to the possession should be “unlikely to lead to violence”.

[54] But, as the munitions depot and the ammunition bunkers were the target of NATO bombings, the “possession” of this property by the Serbs was not possession unchallenged by others and unlikely to lead to violence. I agree with the Crown’s submission that, viewed against the backdrop of a fierce civil war and intense fighting over Bosnian territory, the evidence at trial was not capable of leaving the jury with a reasonable doubt that the appellant or the Serbian army was in “peaceable” possession of the munitions complex and the bunkers.

[55] This conclusion is sufficient to dispose of the appellant’s argument concerning s. 41(1). But there are additional impediments to his attempt to rely on the s. 41(1) defence. The actions of the UN and NATO in initiating the air strikes were sanctioned by the UN Security Council, acting under the authority of the UN Charter, to which Canada is a signatory. In his communications on May 24 and 25, 1995, General Smith clearly indicated that any air strikes would be for the purpose of enforcing the UN designated safe areas, as authorized by UN Security Council Resolution 836. As I have said, there was no evidence at trial that the NATO bombings were illegal. Thus, the third prerequisite to reliance on the s. 41(1) defence – trespass by “the victim of the assault” – was also not met.

[56] The appellant argues that this case did not involve the ejection of a trespasser but, rather, the prevention of a continuing trespass – the NATO air strikes. Relying on the evidence of Witnesses A and B, he submits that the only means available to the Bosnian Serbs and, hence, the appellant, to prevent this trespass was to take hostages. This argument presumes that the NATO bombings constituted a trespass, a contention that I have already rejected.

[57] Finally, in my view, there was no evidence at trial capable of leaving the jury with a reasonable doubt that using unarmed peacekeeping observers as human shields in the hope of averting or stopping an air strike was a reasonable response to NATO’s action. On the evidence, all that was required to avoid the bombings, in accordance with UN Security Council Resolution 836, was the return of the heavy weapons that had been removed by the Serbian army from the UN weapons collection areas by the designated deadline and the honouring of the safe zones. That the Serbian forces elected to reject this option did not render the use of human shields a justified and reasonable response to the NATO bombing.

Instruction on Self-Defence Under Section 37(1) of the Code

[58] The appellant also relied at trial on s. 37(1) of the Code, which reads:

Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

[59] The trial judge instructed the jury on self-defence under s. 37(1) of the Code in these terms:

[U]nder the defence of self or others, you have three issues and they can be posed in the form of three questions, the first of which is, was Mr. Ribic or anybody under his protection the subject of an unlawful assault? The second question is, did Mr. Ribic use - - assuming you answered the first either “Yes” or are left in a reasonable doubt about it, then, you would move to the second and say, well, did Mr. Ribic use force to defend himself or anyone under his protection from the unlawful assault? Was he protecting himself or other people in his use of force? And thirdly, did Mr. Ribic use more force than was reasonably necessary to prevent the assault or stop it from continuing or being repeated?

It does not matter whether Ribic or someone else provoked the assault or even assaulted first. It is essential, however, that Mr. Ribic or a person or persons under his protection were actually assaulted. It’s not enough that Mr. Ribic may have believed that he or some person under his protection might be or would be assaulted at some point in the future. [Emphasis added.]

[60] The appellant maintains that this instruction constituted misdirection because s. 37(1) affords a defence to the use of force in response to an apprehended future assault. He also submits that the jury should have been told that an honest but mistaken belief as to the existence of an assault, or the repetition of it, is sufficient to engage s. 37(1). I would reject these arguments.

[61] In this case, there was no issue of a perceived or apprehended future assault. A NATO air strike was underway when the hostages were captured and air strikes continued thereafter. In these circumstances, I agree with the trial judge’s observation during his post-charge discussions with counsel that the suggestion of an apprehended future assault was academic. As the trial judge put it: “The bombs are falling. I don’t think it’s a very live issue in the sense that if [the jurors are] going to find an assault, [they’re] going to find it was occurring, not that it was apprehended.”

[62] Moreover, the defence envisaged by s. 37(1) contemplates the use of “no more force than is necessary to prevent the assault or the repetition of it”. In other words, the force used must be both necessary and proportionate. The trial judge’s instruction tracked this statutory language. Indeed, it was modeled on Ontario’s Specimen Jury Instructions (Criminal), 2005 Supplement (Toronto: Carswell, 2005) at 208-215.

[63] Finally, on this record, there was no evidential support for an instruction on an honest but mistaken belief by the appellant concerning the existence of an assault on the munitions depot and the bunkers. Perhaps for this reason, the defence did not request an instruction on honest but mistaken belief in the occurrence or repetition of an unlawful assault. Nor did the trial judge’s charge on s. 37(1) draw an objection on this ground or a request for a recharge from the appellant’s trial counsel.

[64] I would not give effect to this ground of appeal.

Instruction on the Defence of Obedience to Superior Orders

[65] The trial judge provided the jury with a lengthy instruction on the defence of obedience to superior orders. In so doing, he described the elements of this defence in this fashion:

First, was Mr. Ribic a member of the Serb army organization or otherwise involved in it such as he was required to follow superior orders?

Second, was he ordered to do what he did … by someone he considered superior to him and felt required to obey?

Third, in doing so, did he act reasonably or were the acts he carried out under orders manifestly unreasonable and unlawful?

[66] The appellant mounts a two-pronged attack on the trial judge’s instruction on this defence. First, he argues that the jury should have been told that an honest but reasonably mistaken belief that the order was not manifestly illegal is sufficient to invoke this defence.

[67] R. v. Finta, 1994 CanLII 129 (SCC), [1994] 1 S.C.R. 701, the leading Canadian case on the defence of obedience to superior orders,[^4] is dispositive of this argument. Finta leaves no room for the proposition that an honest but mistaken belief about the manifest illegality of a superior’s order is sufficient to implicate the defence of superior orders. A subjective element to this defence was plainly rejected in Finta, at p. 844:

The trial judge correctly instructed the jury that the accused charged with an offence under s. 7(3.71) cannot claim that, although a reasonable person would in the circumstances have known that the actions allegedly performed had the factual quality of crimes against humanity or war crimes, he mistakenly thought that they were lawful and that therefore he was justified in following orders and performing the actions. If this were so then an accused could always claim the defence of obedience to military orders by stating that the illegality of the order simply did not occur to him or her at the time. This would be stretching the defence beyond all reasonable limits. If it were permitted it would require the Crown to establish that the accused knew the orders and his or her actions were manifestly unlawful.

[68] The second prong of the appellant’s challenge to the trial judge’s instruction on this defence is the submission that an order may not be manifestly unlawful if some justification for it was possible at the time that the order was carried out. The appellant relies on Witness A’s testimony that UNPROFOR, NATO and the UN military observers were regarded by the warring factions as part and parcel of the same enterprise. Both Witnesses A and B testified that once the UN and NATO began bombing, the Serbs considered them to be enemy combatants and parties to the Bosnian conflict, such that they became legitimate targets of hostile action. The appellant also stresses Witness A’s evidence that he had information from “direct [intelligence] sources” that the decision to take hostages came from a “very high level” of the Serbian leadership and points out that Witness A said that the appellant was a “very low-key player” who was not involved in command decisions, that he was following orders, and that he was not in a position to stop or prevent the hostage-taking.

[69] I would not accede to this argument. In Finta, a majority of the Supreme Court of Canada held, at pp. 845-46:

[The defence] will not be available where the orders in question were manifestly unlawful. Even where the orders were manifestly unlawful, the defence of obedience to superior orders … will be available in those circumstances where the accused had no moral choice as to whether to follow the orders. That is to say, there was such an air of compulsion and threat to the accused that the accused had no alternative but to obey the orders.

[70] These prerequisites to reliance on the defence of obedience to superior orders were not met here. In Finta, unlike this case, there was no question about the fact of a “military order” or that the accused was subject to the order. In contrast, there was no evidence in this case of any order concerning the hostage-taking that the appellant was obliged to follow.

[71] In particular, on the evidence, the appellant’s status and role with the Serbian forces was unclear. Witness A’s testimony concerning the existence of an order to take hostages that bound the appellant amounted to no more than an assumption. Witness A acknowledged that his evidence of an order was based on his “assessment” of the decision-making structure of the Serbian military and political leadership and his perception of the appellant’s role with the Serbian forces. He confirmed that he did not know where the alleged order or orders came from. Before this court, the appellant himself recognized the absence of evidence of an actual order when he indicated in his factum that “an order may have been given”.

[72] I conclude, therefore, that the appellant’s challenge to the trial judge’s instruction on the defence of obedience to superior orders must fail. Accordingly, it is unnecessary to address the remaining arguments advanced by the Crown in resistance to this ground of appeal.

(2) Section 7 Charter Challenge and Section 38.14 of the CEA

[73] There are two bases for the appellant’s argument that the trial judge erred by refusing to grant a stay of the proceedings on the ground of a violation of the appellant’s s. 7 Charter rights. First, the appellant attacks the Disclosure Process itself, describing it as “unprecedented and manifestly unfair”. He complains that neither he nor anyone who represented his interests was permitted to participate in the examinations of Witnesses A and B in the Federal Court disclosure proceedings, and no opportunity was afforded to his counsel to provide follow-up questions to be posed to the witnesses by examining counsel.

[74] Second, the appellant argues that the form and manner of the presentation of Witness A’s and Witness B’s evidence at trial as mandated by the Disclosure Rulings – the reading of excerpts from the redacted transcripts of their testimony to the jury in lieu of calling these witnesses to provide viva voce evidence – breached his s. 7 Charter rights. He also claims that the prejudicial effect of his inability to compel the oral evidence of these witnesses was illustrated, and exacerbated, by Crown counsel’s closing address to the jury, during which Crown counsel sought to impeach the reliability and credibility of Witnesses A and B by inviting the jury to compare their testimony as read to the jury with the “live” evidence of Crown witnesses who actually testified at trial.

[75] I do not accept these arguments for the following reasons.

Disclosure Process

[76] Section 38 of the CEA sets out a comprehensive scheme concerning the disclosure of information relating to Canada’s international relations, national defence or national security. It is unnecessary for the purpose of this appeal to review the s. 38 disclosure regime in detail, many of the key aspects of which are described in the FCA Decision. However, certain of its features provide important context for the appellant’s attack on the Disclosure Process.

[77] Under s. 38, the Attorney General of Canada is empowered, in his or her discretion, to authorize or agree to the disclosure of all or part of information or facts believed to be sensitive or potentially injurious to Canada’s state interests (ss. 38.03(1), 38.031(1) and 38.04(6)), or to apply to the Federal Court for an order with respect to the disclosure of such information (s. 38.04). In addition, under s. 38.04(2)(c), a person who wishes to disclose or cause disclosure of such information may apply to the Federal Court for an order with respect to disclosure of the information. The appellant invoked s. 38.04(2)(c) in this case.

[78] Absent the Attorney General’s authorization of or agreement to disclosure, a judge of the Federal Court is to determine disclosure requests. Unless the reviewing judge concludes that the disclosure of the information would be injurious to international relations, national defence or national security, he or she has the discretion to authorize the disclosure of the requested information (s. 38.06(1)).

[79] However, where the reviewing judge concludes that the disclosure of the information would be injurious to international relations, national defence or national security, he or she is obliged to weigh the public interest in disclosure against the public interest in non-disclosure. If, after undertaking this balancing exercise and considering “the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure”, the reviewing judge concludes that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the disclosure of the information may be authorized, in whole or in part (s. 38.06(2)). See also Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 77.

[80] The appellant does not challenge the constitutionality of the s. 38 statutory scheme. Nor do I understand him to dispute that the purpose of the scheme is to strike a balance between the need for protection of confidential information and the rights of the individual: Charkaoui at para. 77. Rather, the contentious issue is whether the Disclosure Process, and the Disclosure Rulings that flowed from it, violated the appellant’s s. 7 Charter rights.

[81] It is undisputed that the Disclosure Process was unusual in several respects. In the view of the Federal Court of Appeal, it was dictated by “urgency and necessity”: FCA Decision at para. 42. As that court explained in the FCA Decision, at para. 6:

This process was devised to assist the Trial Division in determining the relevancy of the two witnesses’ information to the prosecution of the appellant as well as identifying the sensitive information which could not be disclosed. I should add that the process was also conceived to obviate the lack of security clearance of the appellant’s counsel. Some of the information was accessible on a need to know basis only and required security clearance at the highest level. That the process so devised and followed was unusual is common ground.

[82] Section 38 of the CEA was significantly amended by the Anti-terrorism Act, S.C. 2001, c. 41, s. 43. We were informed that the Federal Court proceedings in this case were the first of their kind conducted under the amended legislation. As a result, some of the protective measures apparently now utilized under the amended s. 38 regime – e.g., the use of special counsel to serve as amicus curiae or as counsel on behalf of a disclosure applicant – were not yet employed.[^5] We were also advised that the Disclosure Rulings are the first rulings under s. 38 involving the disclosure of proposed defence evidence in a criminal trial.

[83] Unquestionably, the method of examination of Witnesses A and B under the Disclosure Process was far from ideal, involving as it did a filter between the appellant’s counsel and the witnesses and a proscription on the direct participation of the appellant’s counsel in the examination process. That said, it is my opinion that the appellant cannot rely on a challenge to the fairness of the Disclosure Process itself to support his claim in this court that a stay of the prosecution should have been granted due to the alleged infringement of his s. 7 Charter rights. I say this for several reasons.

[84] First, the parties acknowledge that the Disclosure Process was generated by the prevailing exigencies of time. However, these exigencies, at least in part, were precipitated by the defence. The defence first indicated its intention to call Witnesses A and B after the close of the Crown’s case at the appellant’s first trial. This tactical decision, a considered choice by the defence, placed the appellant’s criminal trial in ‘limbo’ by holding it in abeyance pending the outcome of a defence disclosure application and a motion for directions by the Attorney General to the Federal Court. Consequently, the timing of the defence decision to seek to adduce the evidence of Witnesses A and B generated urgency regarding the process to be followed for the determination of the disclosure proceedings. The matter was further complicated by the fact that the appellant’s counsel did not hold the security clearances necessary to review Witness A’s and Witness B’s information.

[85] Ultimately, the Disclosure Process was authorized by consent court order of the Federal Court. Under that order, the Disclosure Process involved examinations of Witnesses A and B based on areas of questioning identified by the appellant’s counsel. In addition, the order required that while examining counsel questioned the witnesses, the appellant’s counsel “will remain available to provide further explanations on relevancy and suggestions as to possible areas of questioning”. The appellant thus participated, through counsel, in the design and approval of the Disclosure Process of which he now complains. Although the appellant’s counsel did not personally conduct the examinations in question, they had a pivotal role throughout.

[86] Second, by renewing his attack on the fairness of the Disclosure Process before this court, the appellant seeks to relitigate issues that have already been judicially determined, with the expenditure of considerable judicial resources. At heart, this amounts to an impermissible collateral attack on the Disclosure Rulings that flowed from the Disclosure Process.

[87] The Federal Court of Appeal expressly considered the fairness of the Disclosure Process. That court addressed and rejected the defence claim that the Disclosure Process was flawed because the appellant and his counsel did not participate directly in the questioning of Witnesses A and B and were prevented from proposing supplementary or follow-up questions to be posed to the witnesses. The court pointed out that the record includes lists of supplementary questions provided by the appellant’s counsel to examining counsel. In the opinion of the court, the Disclosure Process included measures designed to ensure that “the appellant would obtain disclosure of all sensitive information that could be disclosed without unduly compromising national security, national defence or international relations”: FCA Decision at para. 45. The court concluded that the Disclosure Process was fair to the appellant in the circumstances.

[88] The Federal Court judge also reviewed all the evidence of Witnesses A and B in unexpurgated form and heard testimony from three witnesses concerning the confidentiality of the information at issue. Unlike the first trial judge, the Federal Court judge was informed of the nature of the appellant’s proposed defences at his criminal trial. Thus, he was able to fully assess the relevance and significance of Witness A’s and Witness B’s evidence to the appellant’s case. His consideration of the factors relevant to the balancing of the competing public interests in disclosure and non-disclosure of the witnesses’ information reveals that he was alert to the appellant’s interests in obtaining disclosure of the requested information.

[89] As I have indicated, the Attorney General eventually agreed to the disclosure of much of Witness A’s and Witness B’s testimony. The Federal Court judge reviewed the remainder of their testimony and concluded that it fell into three categories: (i) information not relevant to an issue at the appellant’s criminal trial; (ii) relevant information that need not be disclosed; and (iii) relevant information that needed to be disclosed. The area of controversy centred on the information in the second category. In respect of that information, the Federal Court judge made the following key findings in his First Disclosure Ruling, at para. 27:

In assessing the expurgated testimony of the witnesses, I think it fair to say that much of the expurgated information deals with operationally sensitive material which would serve to corroborate testimony, given in other parts of the transcripts, which has been disclosed to the applicant. … The expurgated information, although corroborative, would not, in my view, disclose any new information that would be helpful to the defence that is not already contained in the expurgated transcripts of the testimony of the two witnesses. It is my view that the testimony available to the applicant from the expurgated transcripts provides him with sufficient information, if found admissible by the trial judge, to fairly represent the evidence of the two witnesses which would otherwise be available to the defence. It is my view that, for the purposes of the defences intended to be raised at trial, the expurgated transcripts reflect fairly the nature and substance of the testimony of the two witnesses. I therefore conclude that the information which I include in this second category, although relevant, need not be disclosed. [Emphasis added.]

[90] Thus, after a full review of all the evidence, the Federal Court judge was satisfied, given the substantive defences sought to be raised by the appellant at trial, that the available information necessary for the appellant’s defences was contained in the expurgated versions of the testimony authorized for disclosure.

[91] This assessment was confirmed by three appellate judges of the Federal Court of Appeal. Those judges reviewed the evidence that the Federal Court judge directed should not be disclosed and, based on that independent review, held that, “the vetted sensitive information is neither necessary … nor crucial to the defences raised by the appellant” and that, “for the purposes of [the appellant’s proposed] defences, the expurgated transcripts reflect fairly the nature and substance of the testimony of the two witnesses and that the vetted information would not be helpful”: FCA Decision at para. 41.

[92] Accordingly, in the end, four judges of courts that are experienced in dealing with national security and national defence issues evaluated the fairness of the Disclosure Process and the nature and sufficiency of the information authorized for disclosure. They unanimously held that the information to be disclosed was fair and protective of the appellant’s interests to the extent possible, given the nature of the information at issue, the defences sought to be raised by the appellant at his criminal trial, and the urgency of the situation. As I have said, leave to appeal that determination to the Supreme Court of Canada was refused.

Presentation of Defence Evidence at Trial

[93] I turn now to the issue whether the impact of the Disclosure Rulings impaired the appellant’s s. 7 Charter rights on the resumption of his criminal trial.

[94] The appellant raises a number of points concerning the fairness of the presentation of the defence evidence at trial. He argues that: (i) the transcripts were repetitious, disjointed and confusing, with the result that reading the transcripts to the jury invited juror confusion and impaired juror concentration; (ii) the deletions in the transcripts of some of the witnesses’ responses, the contents of which are unknown to the appellant, deprived the defence of access to information necessary to meet the Crown’s case; (iii) because he was precluded from calling Witnesses A and B to testify at trial, the jury was deprived of the opportunity to assess their credibility and the defence was denied the chance to elicit further evidence from them that may have clarified any inconsistencies and confusion in their testimony or otherwise bolstered their credibility; and (iv) the resulting unfairness to the defence was exacerbated by Crown counsel’s closing address to the jury.

[95] First, the matter of the transcripts: I agree with the appellant’s submission that, given the transcript redactions made under the Disclosure Rulings, the resulting version of the transcripts does not always reveal a coherent and logical testimonial progression.

[96] But the trial judge was alive to this deficiency and, in particular, to the potential negative impact on the jury of evidence presented in this form. In his view, “[t]he jury was quite able to appreciate [the evidence] for what value it could be to the defence.” With respect to Witness A’s evidence, the trial judge held: “[T]he main important points to the defence came through very clearly, notwithstanding the form of the presentation of the evidence and of its edited content.” In the trial judge’s opinion, the core of Witness A’s evidence that was helpful to the defence was clearly communicated to the jury. He reached a similar conclusion concerning Witness B’s evidence, which he described as relating mainly to the process of NATO’s selection of bombing targets and associated matters, saying: “[it] hardly goes to the heart of any defence” and “I do not consider that the evidence of B and the jury’s evaluation of it will be significantly impaired by its form or edited substance.”

[97] Overall, the trial judge concluded:

I think the evidence of A … came through clearly and there being no evidence contrary to or challenging the credibility of A or the substance of [his] evidence on grounds relating to the manner in which it was given, I have concluded that the limits as to A and B’s evidence complained of by the defence do not go so far as to render the trial constitutionally unfair. The accused relies on A and B’s evidence for his defence and I think it was made available in a process of sufficient fairness in all the circumstances.

[98] These findings regarding the jury’s opportunity to understand the defence evidence and the fairness of its presentation attract great deference from this court. The trial judge was uniquely positioned to observe the jury as the defence evidence was read in at trial and to assess the impact of that procedure on the jury. Unlike the trial judge, this court is unable to evaluate firsthand the dynamics in the courtroom during the presentation of the defence evidence, the reaction of the jury throughout, and the jury’s attention to and opportunity to comprehend the evidence tendered. These are matters firmly within the domain of the trial judge: see for example, R. v. Shearing, 2002 SCC 58, [2002] 3 S.C.R. 33, at para. 73.

[99] Moreover, I am unable to accept the appellant’s claim that the transcript deletions removed “vital” information from the purview of the defence and, hence, from that of the jury. This suggestion is speculative at best. For example, although the defence stresses that one of the deletions involved the redaction of the names of the sources that Witness A relied on to express the view that, in carrying out the hostage-taking, the appellant was following orders, Witness A did not suggest that any of the identified sources actually gave or knew of such an order.

[100] The suggestion that the transcript deletions pertain to information “vital” to the defence is also inconsistent with the Disclosure Rulings and the FCA Decision. As I have emphasized, the Federal Court of Appeal reviewed all the evidence that was deleted from the transcripts and unanimously concluded, given the appellant’s proposed defences, that “[t]he expurgated transcripts reflect fairly the nature and substance of the testimony of the two witnesses and … the vetted information would not be helpful”: FCA Decision at para. 41. The Federal Court judge reached a similar conclusion: First Disclosure Ruling at para. 27.

[101] The Federal Court of Appeal also specifically considered whether the form in which the disclosure of Witness A’s and Witness B’s evidence was authorized (i.e., the expurgated transcripts) resulted in significant unfairness. The court noted Witness A’s and Witness B’s acknowledgement that they were “incapable of separating sensitive from non-sensitive information” and the Federal Court judge’s observation in his First Disclosure Ruling at para. 35 that: “In their testimony, the two witnesses wove innocuous information with information that cannot be publicly disclosed. … Implementing a demarcation line, in the context of a criminal trial conducted before a jury, is clearly not practical if not impossible”: FCA Decision at para. 51. The court then concluded at para. 52:

In the circumstances, release of the expurgated transcript[s] and an authorization to introduce them in evidence at the criminal trial amount[s] to a balancing of the competing interests which best serves the public interest while limiting as much as possible the injury [to Canada’s international relations, national defence or national security].

[102] Importantly, the defence also derived considerable benefit from the prohibition against calling Witnesses A and B at trial. Because these witnesses did not testify before the jury, they were insulated from cross-examination by the Crown. As a result, much of their evidence was uncontradicted. It is reasonable to assume that if they had been cross-examined by the Crown, any discrepancies or other weaknesses in their testimony would have been highlighted in an effort to undermine their credibility.

[103] In addition, as the Crown points out, much of these witnesses’ evidence constitutes hearsay or opinion evidence. The trial judge dismissed the defence applications to qualify Witnesses A and B as experts. However, throughout their testimony, both witnesses – especially Witness A – professed expertise and offered opinions about key events and participants in the Bosnian conflict. Witness A also offered his opinion of the appellant’s level of authority with the Serbian forces. If these witnesses had testified at trial, the admission of much of their evidence may well have been challenged and ultimately excluded. In the event, the Crown made no objection at trial to the admission of their evidence as read to the jury. This was a significant concession that enured to the benefit of the defence.

[104] Nor am I persuaded that Crown counsel’s closing address fatally compromised trial fairness. When urging the jury to prefer Rechner’s and Zidlik’s testimony over that of Witnesses A and B, Crown counsel described Rechner and Zidlik as the “witnesses you actually heard” and reminded the jury that it heard these witnesses give evidence “from this witness stand”. He also told the jurors that they were “going to have to be pretty careful before you use Witness A’s evidence to prove anything in this case”, that they “[couldn’t] rely on all of [Witness] B’s evidence”, and that, “[t]here may be parts of it you can, but there’s a lot of it you can’t and I think you have to question both A and B.”

[105] To begin, Crown counsel was entitled to attack the credibility and reliability of the defence witnesses in his closing address and to point out to the jury those factors that favoured the acceptance of the Crown’s evidence over that of the defence. The fact that Witnesses A and B did not testify at trial was not over-emphasized by Crown counsel. Rather, this factor was inferentially identified by him as one consideration, among others, to be taken into account by the jury when assessing the evidence. Importantly, as I have said, as Witnesses A and B did not testify, much of their evidence was uncontradicted. It is most unlikely that this fact escaped the jury’s attention.

[106] I note that no objection to the Crown’s closing address on this ground was made at trial by experienced defence counsel. Nor does it appear that defence counsel raised the issue of the presentation of Witness A’s and Witness B’s evidence with the trial judge during pre-charge discussions for the purpose of seeking the inclusion of a cautionary instruction in the jury charge.

[107] Nonetheless, the trial judge told the jury that both it and the defence were disadvantaged by not having heard the “live” evidence of Witnesses A and B. In providing this caution, which occupied almost four pages of his jury charge, the trial judge specifically referenced Crown counsel’s closing address and some of the factors that Crown counsel had suggested diminished these witnesses’ credibility. His warning included these comments:

[S]o be careful about the witnesses who you just heard their evidence read or heard the record of their evidence, because they’re not in the same position and it can cut both ways. They weren’t in the position to be questioned by both counsel here and have focused answers on certain things, so there’s a disadvantage possibly to you in not hearing them live and there may be an equal or more serious disadvantage in not - - the questioners not being able to focus their questioning the way they could in examination, cross-examination and re-examination live in your presence.

Take that into account when you’re examining the things that A and B said that you are weighing and evaluating.

This instruction was more than adequate to counter any prejudice to the defence arising from the impugned comments by Crown counsel.

Conclusion

[108] There is no doubt that it would have been preferable if the defence had been able to call Witnesses A and B to testify at trial. An accused’s rights to a fair trial and to make full answer and defence are principles of fundamental justice protected by s. 7 of the Charter. They encompass the right to defend against “all of the state’s efforts to achieve a conviction” (R. v. Rose, 1998 CanLII 768 (SCC), [1998] 3 S.C.R. 262, at para. 103) and to have “the opportunity adequately to state [one’s] case” (R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, at para. 32).

[109] However, these fundamental rights are not absolute. The jurisprudence of the Supreme Court of Canada recognizes that national security considerations can justify limitations on the extent and form of disclosure of confidential information to affected individuals. Moreover, s. 7 of the Charter does not include a guarantee that evidence may be tendered at a criminal trial in any particular form. In Charkaoui, the Supreme Court explained at paras. 20 and 23:

Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake. … The procedures required to meet the demands of fundamental justice depend on the context.

If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of s. 7. That is the bottom line. [Citations omitted.]

See also R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668, at paras. 72 and 75.

[110] I am satisfied that adequate measures were found in the context of this unusual case to respect the appellant’s s. 7 Charter rights. As a result, there is no basis for appellate interference with the trial judge’s discretionary decision to refuse the extraordinary remedy of a stay of the proceedings under s. 24(1) of the Charter based on the appellant’s s. 7 claim.

[111] It follows that I also disagree with the appellant’s submission that the trial judge erred by refusing to grant a stay under s. 38.14 of the CEA. That provision reads:

(1) The person presiding at a criminal proceeding may make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial, as long as that order complies with the terms of any order made under any of subsections 38.06(1) to (3) in relation to that proceeding, any judgment made on appeal from, or review of, the order, or any certificate issued under section 38.13.

(2) The orders that may be made under subsection (1) include, but are not limited to, the following orders:

(a) an order dismissing specified counts of the indict-ment or information, or permitting the indictment or information to proceed only in respect of a lesser or included offence;

(b) an order effecting a stay of the proceedings; and

(c) an order finding against any party on any issue relating to information the disclosure of which is pro-hibited.

[112] Under s. 38.14, a judge presiding over a criminal trial, in the exercise of his or her discretion, is authorized to make any order appropriate in the circumstances – including a stay order – to protect the right of an accused to a fair trial, as long as the order contemplated complies with the terms of any disclosure order made by the Federal Court. This remedial power is independent of the remedies afforded under s. 24(1) of the Charter for a violation of an accused’s Charter rights.

[113] In his s. 7 ruling, the trial judge expressly acknowledged that the appellant relied on both s. 24(1) of the Charter and s. 38.14 of the CEA to ground his stay request and indicated that he intended “to deal with both bases for the remedial order together”. This approach is unobjectionable. As the result would inevitably have been the same, a separate analysis by the trial judge of the relief sought and the standard to be met under s. 38.14 was unnecessary. All the factors that justified the denial of a stay under s. 24(1) of the Charter applied with equal force to the appellant’s request for a stay under s. 38.14 of the CEA.

(3) Section 11(b) Applications

[114] The right of an accused to be tried within a reasonable time is enshrined in s. 11(b) of the Charter. That section is designed to protect both an accused’s individual rights and the rights of society. The individual rights that s. 11(b) seeks to protect include the right to a fair trial: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 786. Section 11(b) jurisprudence recognizes that “the interests of the accused must be balanced by the interests of society in law enforcement”: Morin at p. 787. As this court has observed, “The societal rights protected by s. 11(b) include the community’s interests in law enforcement by having those who break the law tried quickly and in having those accused of crime dealt with fairly”: R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347, at para. 9; R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453, at para. 9.

[115] The assessment of a s. 11(b) Charter claim therefore involves the balancing of these interests against factors that “either inevitably lead to delay or are otherwise the cause of delay”: Morin at p. 787. This balancing exercise permits a judicial examination of whether the delay in a particular case is constitutionally unreasonable: Seegmiller at para. 10.

[116] The s. 11(b) reasonableness analysis requires scrutiny of the time from the date of the charge against the accused to the date of the end of trial. Four factors are critical: (i) the length of the delay; (ii) any waiver by the accused of time periods; (iii) the reasons for the delay; and (iv) any prejudice to the accused: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1231-32; Morin at pp. 787-88.

[117] In this case, the first two factors are not in issue. Approximately 79 months passed between the date on which the appellant was charged (February 17, 1999) and his sentencing (September 14, 2005). The trial judge found, and the Crown concedes, that the length of the delay warranted judicial examination and that there had been no constitutional waiver of the delay.[^6]

[118] Accordingly, the issues for determination are the reasons for the delay in bringing the appellant to trial and any prejudice occasioned by the delay. Both were addressed by the trial judge in his s. 11(b) rulings. I will consider each issue in turn.

Reasons for Delay

February 17, 1999 to November 5, 2001

[119] The first period of delay spans the time from the laying of the information on February 17, 1999 to November 5, 2001, when the appellant’s first trial was originally scheduled to commence. Several significant events occurred during this period.

[120] The appellant was arrested in Germany on February 20, 1999 and extradited to Canada in police custody on May 13, 1999. He was released on bail five days later, on condition that he reside with his parents in Edmonton. On September 27, 1999, a preliminary inquiry was scheduled to be conducted in provincial court on May 23 to May 29, 2000. The inquiry proceeded on those dates and the Crown completed its evidence. However, through no fault of the Crown, cross-examination by the defence of the last witness, General Smith (who had travelled to Canada from Europe to testify) was not completed before his scheduled return overseas the same day. As a result, the dates of November 15 to 17, 2000 were selected for the resumption of his cross-examination. However, on October 26, 2000, the Attorney General for Ontario agreed to prefer a direct indictment against the appellant. On November 3, 2000, the appellant made his first appearance in the Superior Court of Justice and a trial date of November 5, 2001 was set.

[121] The elapsed time from February 17, 1999 to November 5, 2001 was approximately 32 months. With respect to this period, the trial judge noted in his original s. 11(b) ruling that the intake period was “a little longer than usual because of the foreign arrest and extradition”, although the extradition was unopposed. The extradition process took about three months. The trial judge also observed: “[t]he case took a year to get to a preliminary inquiry” and, as a result of disclosure issues and various pre-trial motions – including a motion by the Crown to take commission evidence from a witness in Europe – “[g]etting the case to a scheduled trial date of November 5, 2001 took another year”.

[122] Before this court, the Crown argues that the initial intake period ended on September 27, 1999, when the date for the preliminary inquiry was fixed. On this approach, the Crown submits, the initial intake period of about seven and a half months was reasonable in the particular circumstances of this case and is neutral in the s. 11(b) delay calculation. The Crown further asserts that a second intake period began with the appellant’s November 3, 2000 first appearance in the superior court, when a trial date was set for the following November. The Crown argues that a period of 12 months for the preliminary inquiry and the first scheduled trial date is reasonable in this case.

[123] I agree. Various pre-trial disclosure issues and motions were being dealt with during this period, including a Crown motion for commission evidence that was later abandoned when the proposed witness proved unco-operative. As the trial judge observed in his original s. 11(b) ruling: “The disclosure issues adjudicated and the preparation to take commission evidence all seem to be complications of the sort inherent in proceedings involving events in another country, foreign witnesses, and sensitive information in an international context.”

[124] The more complicated the case, the greater the inherent time requirements will be. The delay in completing the preliminary inquiry was due, at least in part, to the defence request for an adjournment in order to prepare for the completion of cross-examination. Thereafter, it appears the delay in obtaining continuation dates for the preliminary inquiry was attributable to institutional factors. This case also involved a trial in superior court, coupled with a preliminary inquiry. Given all these factors, it is my view that the time expended between February 17, 1999 and the fall of 2001 was not constitutionally unreasonable.

September 2001 to October 2002

[125] The next key development involves the delay in the appellant’s November 2001 scheduled trial date. During the fall of 2001, an important issue arose regarding disclosure by the Crown of the lead police investigator’s file. Notwithstanding earlier defence requests, this copious file was not disclosed to the appellant’s counsel until September 19, 2001, prompting an adjournment of the November 5, 2001 scheduled trial date until April 2002.

[126] When the appellant’s lead defence counsel informed the court that he was unavailable for trial in April 2002 due to other commitments, the October 2002 trial date was set. The trial judge held that the resulting 11-month delay (from November 2001 to October 2002) was attributable to late Crown disclosure of the police investigator’s file.

[127] The Crown’s late disclosure of the investigator’s file clearly led to some delay in bringing the appellant to trial. It is less clear, however, that the entire 11-month delay should be laid at the feet of the Crown. In my view, three considerations support the conclusion that this delay was not unreasonable.

[128] First, the defence disclosure requests led to litigation involving third party records and information in the hands of both domestic and foreign agencies. Some of the information sought from domestic agencies triggered Crown privilege claims, which were then adjudicated in the Federal Court under s. 38 of the CEA. The complexity of this litigation is a proper consideration in assessing the reasonableness of the 11-month delay. I also agree with the Crown’s submission that even if the police investigator’s file had been disclosed earlier, these third party production and disclosure proceedings would have taken place and been considered as part of the inherent time requirements of the case.

[129] Second, an April 2002 trial date was offered, but the appellant’s lead counsel was unavailable that month. Based on this scheduling difficulty, at least five months additional delay transpired (April 2002 to October 2002).

[130] Third, I emphasize that the defence first learned of Witness A’s and Witness B’s information – from defence sources – during the 11-month delay that followed the adjournment of the first trial date. Consequently, if the trial had proceeded as originally scheduled in November 2001, the defence would not have benefited from this information and, ultimately, from any of the evidence of these witnesses. This evidence, it will be recalled, was the only defence evidence adduced at trial. It was characterized by the appellant’s counsel as “vital” and “fundamental” to the defence. In these circumstances, the delay in the commencement of the first trial produced an unintended yet critical advantage for the defence. The delay, therefore, was more prejudicial to the Crown’s case than it was to that of the defence.

October 2002 to May 2005

[131] The CEA s. 38 disclosure proceedings occasioned further delay. Before the trial judge, the Crown asserted that approximately a 20-month period was associated with these proceedings (from the close of the Crown’s case in October 2002 to the scheduled June 2004 commencement date of the appellant’s second trial), which time was attributable to the defence pursuit of evidence for its own purposes. In contrast, the defence argued that this delay was attributable to the Crown because “the government’s legislation” necessitated the s. 38 disclosure proceedings.

[132] The Federal Court proceedings were triggered in October 2002, when the defence sought to call the evidence of Witnesses A and B at trial. Approximately one year later, on October 22, 2003, the appellant’s application for leave to appeal the FCA Decision was refused by the Supreme Court of Canada. The Attorney General then applied for authorization to disclose in the public domain certain of the information and documents relating to the s. 38 proceedings, including the Disclosure Rulings. That authorization was provided by order of the Federal Court dated April 8, 2004.

[133] On April 1, 2004, a new trial judge was assigned. A trial management conference was held five days later, on April 6. At that conference, April 12, 2004 was set for argument of the appellant’s pre-trial s. 11(b) Charter application and a trial date was fixed for June 14, 2004. On April 20, 2004, after a four-day hearing, the appellant’s first s. 11(b) application was dismissed by the trial judge. The stage was set for the appellant’s trial.

[134] But on June 14, 2004, when jury selection was to begin, the parties jointly sought an adjournment to examine personal files retained by the former Canadian military attaché in Belgrade in 1995 (the Crandall materials), which apparently had only then come to light. The trial was adjourned and the Crown undertook a review of the Crandall materials for the purpose of disclosure. By mid-September 2004, the Crown had completed an inventory of what it said could be disclosed to the defence.

[135] However, the defence disputed the Crown’s approach to the disclosure of the Crandall materials and no agreement had yet been reached regarding a new trial date. The defence moved for further disclosure. This motion, argued on November 8, 2004, was dismissed by the trial judge on December 2, 2004. The parties then agreed to a tentative trial date of May 3, 2005. This trial date was confirmed when the defence indicated that May was the earliest time that the appellant’s counsel could be available for trial. In the end, the trial was postponed an additional week and jury selection commenced on May 9, 2005.

[136] On these facts, the time expended by the CEA s. 38 disclosure proceedings, including the associated appeals, accounted for approximately 18 months delay (October 2002 to April 8, 2004). Thereafter, about 13 months additional delay (April 2004 to May 2005) was occasioned by the Crown’s delayed disclosure of the Crandall materials, the subsequent defence motion for further disclosure of those materials, and conflicts in defence counsel’s trial schedule. Of this additional 13-month delay, the trial judge attributed about three months to the Crown by reason of late disclosure. He indicated that the remaining ten months was “at best, neutral” and “possibly arguably, could be laid, at least gently, at the feet of the defence”.

[137] With one variation, I agree with these delay allocations. Nothing turns on whether three or, as the Crown would have it, two months of this delay is attributable to the Crown. At least two months was associated with the late disclosure of the Crandall materials. Of the remaining delay, about three months was consumed with the unsuccessful defence application for further disclosure. That time should be assigned to the defence. The remaining delay until May 2005 was required to accommodate defence counsel’s trial schedule. That time should be regarded as neutral.

[138] It is also my view that the delay associated with the CEA s. 38 disclosure proceedings cannot be allocated to the Crown. The defence elected to pursue the evidence of Witnesses A and B, chose to wait until the close of the Crown’s case at the first trial to raise the admissibility of this evidence, and thereafter decided to exhaust all avenues of appeal concerning the Disclosure Rulings. The defence, of course, was entitled to take these actions. In so doing, it was obliged to comply with the national security-related disclosure scheme established by s. 38 of the CEA. The ensuing disclosure proceedings were complex and time-consuming. In the circumstances, although not blameworthy, these defence actions strongly undercut the conclusion of unreasonable delay in this case: see for example, Morin at pp. 793-94.

Prejudice

[139] In both of his s. 11(b) rulings, the trial judge held that the appellant suffered actual prejudice from the delay in reaching trial after his arrest. In his original s. 11(b) ruling, he stated:

[T]hese proceedings have had a very negative impact on the lives of the accused and on his immediate family. They have uprooted him and [his wife] from their lives in Germany, put his and her careers into neutral, placed them all under a great deal of stress and strain and eroded their financial security and their psychological health.

The trial judge concluded that, as at April 2004: “[T]he five years these proceedings have now taken have worked a significant and real and enduring prejudice on the accused.”

[140] On the appellant’s second s. 11(b) application, argued in June 2005, the appellant testified regarding the prejudice that he sustained in the year following the trial judge’s original s. 11(b) ruling. The trial judge accepted that the stress experienced by the appellant and his family, what appeared to be the appellant’s permanent marital separation from his wife, and the appellant’s medical need to undertake an anti-depression medication regime during the period from April 2004 to June 2005 established continuing prejudice. However, in the trial judge’s view, this prejudice had not “become worse in any significant degree”, although its duration had been extended.

[141] The trial judge’s findings of prejudice, which are amply supported by the record, are not challenged by the Crown on appeal.

Striking the Balance

[142] In his first s. 11(b) ruling, when attempting to balance society’s fundamental and important interest in bringing the accused to trial and those factors that led to significant delay and adverse impact on the appellant, the trial judge correctly noted that the crimes charged in this case are very serious offences, which are punishable by a maximum sentence of life imprisonment. He also expressly averted to Sopinka J.’s critical observation in Morin, at p. 787 that: “As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.”

[143] Ultimately, after weighing the competing interests in detail and referring to the applicable legal principles that guide the balancing inquiry, the trial judge concluded that the seriousness of the offences in this case and “the national and international interests in bringing this case to trial” substantially outweighed the injury to the appellant’s interests in an earlier trial.

[144] The trial judge came to a similar conclusion when he undertook a fresh s. 11(b) analysis at the conclusion of the evidential phase of the appellant’s second trial:

The passage of another year … brings the balance more towards a position favourable to the accused, but I do not see, now that I have heard all the evidence that the societal interests are lessened in any significant way. Indeed…it seems to me, at least in terms of Canada’s small role in endeavouring to assert the rule of law into the protection of UN personnel in such a civil conflagration, that the national and international societal interests in having this case prosecuted are every bit as weighty as they were a year ago, possibly even more so.

[145] I agree. The crimes charged against the appellant are grave indeed. As the trial judge observed in his original s. 11(b) ruling, they “[strike] at the core of the safety and security of [UN] personnel in every outbreak of hostilities into which they are sent”. Further, as the trial judge also stated, “Canada’s armed forces … who participate in [UN] peace-making and peace-keeping efforts around the globe … and the armed services of all of the member states of the [UN] have a very real interest in [the] trial of this case.”

[146] The delay in this case, although considerable, was not unreasonable. As this court recently stated in R. v. Godin, 2008 ONCA 466, [2008] 237 O.A.C. 324, at para. 46, appeal as of right to the S.C.C., [2008] S.C.C.A. No. 354, there will be circumstances where trial delay, even significant trial delay, will be caused by “a constellation of explicable factors”. This is such a case.

[147] I note three factors in particular. First, this was an unusual case involving previously untested procedures for the disclosure at an accused’s criminal trial of information beneficial to the defence that was captured by the reach of the confidentiality of information scheme contemplated by s. 38 of the CEA. Significant delay in this case – approximately 18 months – was attributable to the need to respond to the appellant’s interests in obtaining such confidential information while at the same time protecting Canada’s national security interests in accordance with the s. 38 legislative scheme. Ultimately, this period of delay resulted in the discovery of evidence that the appellant’s counsel regarded as critical to the defence. In this very real sense, therefore, the delay associated with the CEA s. 38 disclosure proceedings mitigated the prejudice suffered by the appellant and enhanced his ability to make full answer and defence.

[148] Second, this was a complicated case at the pre-trial preparation stage. Delay was caused by the nature of the case itself, including the need to explore and obtain information from a host of domestic and foreign witnesses and agencies, about events that transpired abroad, during another nation’s civil war. The information at issue included third party records located both in Canada and abroad, at least some of which were subject to litigation regarding substantive Crown privilege claims, and national security considerations.

[149] This court has recognized in other contexts that complex cases require substantial preparation and court time: see for example, in the context of complex fraud cases, R. v. Cranston, 2008 ONCA 751, at para. 38. Similar considerations resonate in this case and attenuate the impact of the delay in reaching trial.

[150] Finally, contrary to the appellant’s submission, the national and international interests engaged in this case were proper and important considerations in the balancing required by s. 11(b). Those interests recognized the context of a complicated prosecution for offences committed abroad, with national and international implications. The societal interest in the adjudication of this case on the merits weighed more heavily in the s. 11(b) balancing exercise than the adverse impact of the delay associated with the proceeding. Although the overall delay was most undesirable, it was not unreasonable in the unusual circumstances of this case. The trial judge, therefore, did not err in dismissing the appellant’s s. 11(b) Charter applications.

IV. DISPOSITION

[151] Accordingly, for the reasons given, I would dismiss the appeal.

RELEASED:

“NOV 24 2008” “E.A. Cronk J.A.”

“EEG” “I agree E.E. Gillese J.A.”

“I agree David Watt J.A.”

[^1]: At trial, the defence led some evidence that the UN observers may also have been involved in intelligence-gathering for UNPROFOR and NATO. The UN military observers who testified at trial denied this assertion.

[^2]: Under s. 38 of the CEA, “potentially injurious information” means “information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security”. In turn, the term “sensitive information” is defined to mean “information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard”.

[^3]: UN Security Council Resolution 836 (1993), adopted on 4 June 1993, S/RES/836 (1993).

[^4]: See also Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100.

[^5]: See Charkaoui for a discussion about the use of the special advocate procedure in various national defence or national security contexts.

[^6]: The Crown points out, and the appellant acknowledges, that the appellant requested a short delay in his sentencing hearing from June to September 2005 in order to complete an educational program in which he was then enrolled.