Madam Speaker, there are two reasons why the government must refrain from commenting on this matter.
First, it is important to respect the role of the director of public prosecutions and the independent prosecutor who reports to her. Second, according to the sub judice convention, it is inappropriate to discuss matters that are before the courts.
To begin with, it should be noted that the case in question is being prosecuted by the Public Prosecution Service of Canada, which operates independently from the Department of Justice. Lawyers with the Attorney General of Canada are meeting all their obligations to the court regarding counsel's third party record applications. It is also important to remember that the matter currently before the Ontario Court of Justice is an application for third party records at a criminal trial.
Defence counsel seek to obtain relevant documents from certain government departments and entities. To be very clear, these are not the relevant documents provided to defence counsel in a criminal proceeding under first party disclosure obligations, which is known as Stinchcombe disclosure. What is now before the court is third party disclosure, meaning relevant documents that are not in the possession of the prosecutors and presumed to be in the possession or control of a third party.
Third party record applications are a two-step process. In the first step, the court must decide whether the requested records are relevant to the criminal proceedings. In the second step, the court must carefully examine the records and determine whether those that have been deemed relevant truly are relevant. Next, the court issues a ruling as to the public interest immunity versus confidentiality, striking a balance between those interests and the degree to which the records are needed to allow the accused to make a full answer and defence. The court ultimately determines whether the relevant records are held by a third party and, if so, whether to order that they be shared with the defence.
Witnesses in third party record applications are called to provide evidence in respect of the existence and availability of relevant records. Counsel for the defendant may ask a wide range of questions and raise a variety of allegations in the course of the examination. However, nothing has been proven or accepted by the court as a fact at that point. Such determinations are for the court to make at the appropriate stages of the proceedings.
I would reiterate that it is improper to speak on matters that are under active deliberation before the courts and that counsel to the Attorney General of Canada is clearly fulfilling all of their obligations before the court with respect to third party record applications.