Date: 20101126
Docket: DES-7-08
Citation: 2010
FC 1193
Ottawa, Ontario, November
26, 2010
PRESENT: The Honourable
Mr. Justice Blanchard
BETWEEN:
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IN
THE MATTER OF a certificate signed
pursuant to
section 77(1) of the Immigration
and
Refugee Protection Act
(IRPA);
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AND IN THE
MATTER OF the referral of a
certificate
to the Federal Court pursuant to
section
77(1) of the IRPA;
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AND
IN THE MATTER OF Mohammed Zeki
Mahjoub
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REASONS
FOR ORDER AND ORDER
[1]
By
notice of motion dated November 12, 2010, the Minister of Citizenship and
Immigration and the Minister of Public Safety (the Ministers) seek:
(a) an Order quashing
subpoenas issued on November 8, 2010 in this proceeding requiring the attendance
of Richard Fadden, Stephen Rigby, The Hon. Diane Finley, the Hon. Stockwell
Day, Ted Flanigan and Michael Duffy;
(b) an Order
prohibiting the Respondent from seeking subpoenas in this matter without leave
of the Court, to be obtained on notice to the Ministers;
(c) such other relief
as counsel may request and the Court may permit.
[2]
The
Ministers’ stated grounds for the motion are the following:
(a) It has not been
demonstrated that the proposed witnesses are likely to give evidence that is
relevant to the issues in this proceeding;
(b) the subpoenas
issued to Richard Fadden and Stephen Rigby have been obtained in violation of
the Court’s order requiring the Respondent to provide notice of witnesses to be
called, which constitutes an abuse of process;
(c) the Hon. Diane
Finley, the Hon. Stockwell Day cannot be compelled to give evidence, as they
are subject to Parliamentary privilege;
(d) Michael Duffy’s
proposed evidence is protected by solicitor/client and litigation privilege;
(e) the documents
requested to be produced in the subpoenas include documents which the Court has
ruled are properly the subject of another motion. It is abusive for the
Respondent to issue subpoenas for the purpose of circumventing the Court’s
previous ruling;
(f) the information
sought from the proposed witnesses is available on the public record without
the need for subpoenas;
(g) the subpoenas and
requests for documents in general constitute an impermissible fishing
expedition;
(h) Rules 41 and 42 of
the Federal Courts Rules;
(i) such further and
other grounds as counsel may advise and this Honourable Court permit.
[3]
The
Ministers’ motion record was served and filed on November 12, 2010, the
Respondent record was served and filed on November 17, 2010, and the parties
were heard on the motion on November 18, 2010, in Ottawa. Mr. Mahjoub
attended via video conference.
[4]
The
Respondent contests the motion and contends that the subpoenas are properly
issued and necessary for the purpose of adducing evidence in his outstanding
motions and for his defence in the reasonableness proceeding.
[5]
The
matter was taken under reserve at the close of the hearing. Prior to the
issuance of these reasons, counsel for the Ministers advised the Court that the
Ministers were prepared to produce Mr. Paul Vrbanac as a witness to speak
on behalf of the Canadian Security Intelligence Service (CSIS or the Service)
and Mr. Brett Bush, as a witness to speak on behalf of the Canadian Border
Services Agency (CBSA). The parties agreed that these two witnesses would be
substituted for Mr. Richard Fadden, the Director of CSIS, and Mr. Stephen
Rigby, President of the CBSA, who are currently under subpoena as witnesses on
behalf of the CSIS and the CBSA, respectively. The parties further agreed to
the attendance of these two witnesses. All other issues raised in the
Ministers’ motion to quash the subpoenas remain in dispute. I will now turn to
address the remaining outstanding issues on the motion.
Issue
[6]
Should
the subpoenas duces tecum at issue be quashed?
The Law
[7]
In Laboratoires
Servier v Apotex Inc. 2008 FC 321, Justice Snider conducted a
comprehensive and useful review of the jurisprudence and principles applicable
when quashing a subpoena. I agree with the following articulation of the
general test:
(a) Is there a
privilege or other legal rule which applies such that the witness should not be
compelled to testify? (Re (Zündel) 2004 FC 798); Samson Indian Nation
and Band v Canada 2003 FC 975).
(b) Is the evidence
from the witness subpoenaed relevant in regard to the issues the Court must
decide? (Jaballah (Re) 2001 FCT 1287; Merck & Co v Apotex
1998 FCJ No. 294).
[8]
The
jurisprudence also teaches that while the threshold for relevance is low, a
party must do more than merely assert relevance. It is not sufficient for the
party calling the witness to simply state that the witness might have relevant evidence;
rather, the party has to establish that it is likely that the witness will give
relevant evidence, Zündel Re, 2004 FC 798.
[9]
The
Respondent contends that the onus is on the person challenging a subpoena to
establish a lack of relevance and cites Zündel, above, in support of his
argument. Upon review of the jurisprudence, I am of the view that the burden of
proof remains with the party seeking to sustain the subpoena to establish that
the witness would probably have evidence relevant to the issues raised before
the Court. See: Servier, above, and R. v Harris (1994), 93 CCC
(3d) 478 (Ont.
CA).
Analysis
[10]
I
propose to deal with each subpoena in turn. In doing so, I will review the
respective position of the parties.
Subpoenas issued to the
Ministers
[11]
The
Hon. Diane Finley is currently the Minister of Human Resources and Skills Development.
In 2008, she was the Minister of Citizenship and Immigration and signed the
current certificate against Mr. Mahjoub. The Hon. Stockwell Day is the
President of the Treasury Board and the Minister for the Asia-Pacific Gateway.
In 2008, he was the Minister of Public Safety and Emergency Preparedness and
signed the current certificate against Mr. Mahjoub.
[12]
The
Ministers argue that the Hon. Diane Finley and the Hon. Stockwell Day are
subject to Parliamentary privilege and that their evidence is not relevant to
the issues before the Court.
[13]
Mr.
Mahjoub does not dispute the existence of the privilege but contends that the
scope of the privilege is unclear in Canadian law.
[14]
The
lack of clarity relates to whether the privilege applies during a recess of a
session of Parliament; more specifically in this case, over the holiday
adjournment in December. Counsel for Mr. Mahjoub acknowledge that the
jurisprudence of this Court has indeed extended the scope of he privilege to
the entire session of Parliament, but argues that this conclusion was made in
the absence of consideration of the relevant circumstances surrounding the
exceptional nature of the procedures in place for the recall of Parliament
during such recesses.
[15]
In
my view, the law is settled. Parliamentary privilege will apply while
Parliament is in session, even if not sitting. In Samson Indian Nation and
Band v Canada 2003 FC 975, at paragraph 43, Justice Teitelbaum stated:
I find that the privilege exists and has
existed historically, and that it persists for the direction of a session, as
opposed to the more narrow “sitting” advanced in Telezone. I agree with
the words of Low J.A. in Ainsworth, at paragraph 56, and make them mine:
When Parliament is in session it can be
called to sit at any time. When it is in session, it is assembled, whether
actually sitting or not…The business of Parliament and the duties of
parliamentarians are not at rest just because Parliament, during a session, is
not physically sitting.
[16]
There
is no dispute that Parliament is currently in session. The Respondent seeks to
have the Ministers appear before the Court in early January 2011, during which
time Parliament is recessed for the holidays. I find that Parliamentary privilege
applies during this period. As a consequence, the impugned subpoenas directed
to the Hon. Diane Finley and the Hon. Stockwell Day will be quashed. Given this
finding I need not address relevancy.
Subpoena issued to
Michael Duffy
[17]
Mr.
Duffy is currently Senior General Counsel in the National Security Law, Public Safety
Defence and Immigration Portfolio with the Department of Justice. On June 4,
2009, while he was employed as Senior General Counsel with CSIS legal Services,
Mr. Duffy signed a letter to the Court meant to address developments in another
certificate proceeding (DES-5-08, concerning Mr. Harkat). In that letter,
issues relating to certain deficiencies in the disclosure of information regarding
source matrices by the Service are addressed. The letter also indicates that this
omission of relevant information may raise similar concerns relating to the integrity
of other source matrices in outstanding certificate proceedings and even in the
warrant application process.
[18]
The
Ministers argue that all of the proposed areas of examination of this witness
fall within the ambit of solicitor/client or litigation privilege, because Mr.
Duffy was employed by the Department of Justice as head of the Legal Services unit
of the Service at the time he issued the letter, that is the period identified in
his subpoena. The Ministers further submit that Mr. Duffy’s evidence is not
relevant or necessary to the proceedings. The Ministers argue that the
circumstances leading up to Mr. Duffy’s letter are the subject of public
judgments in the Harkat case and that nothing prevents Mr. Mahjoub from
reviewing the public record with respect to these events and to file
information relevant to the within proceeding.
[19]
Mr.
Mahjoub argues that Mr. Duffy is a “material” witness for the defence since he
signed the June 4, 2009, public letter wherein concerns are raised as to the
reliability of the information and evidence in support of other outstanding
security certificates. This disclosure constituted a waiver of the
solicitor/client and litigation privileges. Mr. Mahjoub further submits that
Mr. Duffy’s evidence is relevant to the within proceeding, as it concerns the
reliability of the information and evidence in support of all outstanding
security certificates and therefore may have a direct impact on Mr. Mahjoub’s
case.
[20]
Contrary
to the Ministers’ submissions, this letter is not a communication between a
solicitor and a client. Rather, it is a public communication to the Court and
accordingly no solicitor/ client or litigation privileges attaches.
[21]
In
my view, Mr. Duffy may be called as a witness in respect to the matters that
are raised in his letter. I am satisfied that his evidence is likely to be relevant
in regard to the issues before the Court. Should questions arise that
potentially engage issues of solicitor/client privilege, these will be dealt
with at the hearing.
[22]
The
subpoena requires Mr. Duffy to bring with him and produce at the hearing the
following documentation:
All material, documents and information
that you reviewed in preparation of your letter dated June 4, 2009 in respect
of the review of human source matrices within CSIS relating to , in particular,
security certificate cases.
All material, documents relating to
follow up actions taken in respect of CSIS practice and/or policy relating to
all security certificate cases including the case of Mr. Mahjoub since June 4,
2009.
[23]
In
the circumstances of the within proceeding, the request is unreasonable. It is
known to Public Counsel that the Ministers place no reliance on information
tendered in private from human sources in support of their case against Mr.
Mahjoub. Therefore information relating to human sources is not relevant. What
is relevant is information that concerns other source matrices which may have
an impact on all certificate proceedings. Mr. Duffy’s evidence in this respect
does not require the production of the requested materials relating to human
sources, which are likely protected information in any event. Mr. Duffy will
be required to produce documentation, if any, that relates to “follow up
action” by the Service. Objections on solicitor/ client privilege, or
litigation privilege regarding the production of any such documentation, will
be dealt with at the hearing.
Subpoena issued to Ted
Flanigan
[24]
Mr.
Flanigan is a former manager at CSIS and is now retired. In 2009, he was the
Assistant Director of CSIS.
[25]
The
Ministers argue that Mr. Flanigan’s evidence, as a retired CSIS official, is
neither relevant nor necessary to the proceedings. Mr. Flanigan, while he was
still working with CSIS, gave evidence in the Charkaoui certificate
process and was cross-examined over two days on the Service’s policies and
practices. The Ministers submit that it is unnecessary to have a retired CSIS
official attend to give evidence if there is a public record through which
similar evidence can be tendered. The Ministers also argue that Mr. Flanigan is
unlikely to have relevant information about the proposed areas of examination
set out by Mr. Mahjoub and that a number of those areas are not relevant to this
proceeding.
[26]
Mr.
Mahjoub argues that Mr. Flanigan is a competent witness from CSIS and is able
to testify on the basis of his personal knowledge of pending security
certificate cases and about facts related to Mr. Mahjoub’s security
certificate. Mr. Flanigan’s position when employed by the Service as an
Executive member and Assistant Director required a high level involvement
dealing with the analysis and review of all the security certificate files. Mr.
Mahjoub also points out that the CSIS witness provided by the Ministers for the
reasonableness hearing, Mr. Guay, did not have the same involvement and
personal knowledge of Mr. Mahjoub’s file as Mr. Flanigan and that during his
examination, Mr. Guay was unable to answer questions about the Classified
Security Intelligence Report and about the manner by which it was compiled.
[27]
No
privilege is claimed in the case of Mr. Flanigan. The only issue is whether his
evidence would be relevant in regard to the issues the Court must decide. I am
satisfied, in the context of the within proceeding, and particularly in respect
to the motion on abuse of process, that his evidence is likely to be relevant.
Accordingly, the subpoena requiring his attendance as a witness in this
proceeding will stand.
Subpoenas issued to
Stephen Rigby and Richard Fadden
[28]
By
agreement between the parties, the attendance of Mr. Richard Fadden and Mr. Stephen
Rigby will not be required. They are substituted by Mr. Paul Vrbanac and Mr.
Brett Bush as stated above. Accordingly, the subpoenas issued for the attendance
of Mr. Richard Fadden and Mr. Stephen Rigby, will be quashed. I will therefore
not address the arguments raised relating to their attendance. However, the
documents requested to be produced by the substituted witnesses is still
contested and will be dealt with below.
[29]
The
Ministers’ main argument is that the Respondent is attempting to obtain
evidence, the disclosure of which is a matter currently before Prothonotary
Aalto. The Ministers say that it is abusive to seek the production of the same
documentation by way of a subpoena duces tecum, particularly when this
Court already determined that it would not intervene.
[30]
A
review of the two subpeonas duces tecum at issue reveals that the
documentation required to be produced at the hearing is essentially the same documentation
ordered produced by Prothonotary Aalto in his November 3, 2010,
reasons in the Jaballah matter. The related information, as it applies
to Mr. Mahjoub, will be released to him within a week. While accepting
that the issue is resolved for the most part, counsel for Mr. Mahjoub, nevertheless
contend that their request is broader in scope than the disclosure ordered by
Prothonotary Aalto. I disagree. Should issues arise regarding a discreet
document that is not otherwise produced, the Respondent may seek the Ministers’
undertaking to produce such a document and the Court will resolve any dispute
that may flow from such a request. The documentation requested is essentially
the same documentation to be disclosed as a result of a separate proceeding. It
is improper to seek to obtain the same documentation by way of subpoena duces
tecum. As a consequence, the substituted witnesses will not be required to
produce at the hearing the documents requested in the subpoenas. This finding
is also applicable to Mr. Flanigan.
[31]
The
Ministers also seek an Order prohibiting the Respondent from seeking subpoenas
in this matter without leave of the Court, to be obtained on notice to the
Ministers. The time lines set for the filing of the Respondent’s witness list
has expired. Any subpoenas required for the attendance of the Respondent’s
witnesses should have issued by now. Consequently, any further subpoenas may
only issue with leave of the Court on notice to the Ministers.
Conclusion
[32]
For
the above reasons, the subpoenas issued to the Hon. Diane Finley, the Hon.
Stockwell Day, Mr. Richard Fadden and Mr. Stephen Rigby will be quashed. The
subpoena issued to Mr. Flanigan is proper and he can be called to give
evidence in the court hearing of this proceeding. However, as is the case with
Mr. Paul Vrbanac and Mr. Brett Bush, he need not produce the documentary
evidence requested in the subpoena. Mr. Duffy may be called as a witness and
shall produce only documentation relating to the “follow up actions” of the
Service referred to in the subpoena.
ORDER
THIS COURT
ORDERS that:
1. The motion is allowed in part;
2. The
subpoenas duces tecum directed to the Hon. Diane Finley, the Hon.
Stockwell Day, Mr. Richard Fadden and Mr. Stephen Rigby are quashed;
3. The
subpoena duces tecum directed to Mr. Duffy will stand, however he is
required to produce at the hearing only documentation relating to the “follow
up actions” of the Service referred to in the subpoena;
4. The
subpoena directed to Mr. Flanigan will stand and, as in the case of Mr. Paul
Vrbanac and Mr. Brett Bush, the substituted witnesses for Director Fadden and President
Rigby, he need not produce at the hearing the documentation requested in the
subpoena.
5. Any
further subpoenas in this proceeding may only issue with leave of the Court on
notice to the Ministers.
“Edmond P. Blanchard”
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