Date: 20100525
Docket: T-536-04
Citation: 2010 FC 564
Ottawa, Ontario, May 25, 2010
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
OMAR
AHMED KHADR
by his Next Friend FATMAH ELSAMNAH
Plaintiff
and
HER MAJESTY THE QUEEN
IN THE RIGHT OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
[1]
By
motion in writing dated April 1st, 2010, the plaintiff seeks an
Order pursuant to rule 225 of the Federal Courts Rules, SOR/98-106 directing
: (1) that the defendant disclose in an affidavit of documents all of the
material that was submitted by any agencies of the defendant to the Security
Intelligence Review Committee (SIRC) in relation to the inquiry or proceeding
which resulted in the SIRC Study 2008-05 of July 8, 2009, entitled CSIS’s
Role in the Matter of Omar Khadr (the Report); (2) that the defendant
disclose in an affidavit of documents an unredacted copy of the Report; and (3)
that the plaintiff have his costs of this motion.
[2]
The
Statement of Claim in this action was filed on March 15, 2004 and has since
been amended twice. Among other claims, the plaintiff alleges that Canadian
officials interviewed him in Guantanamo Bay, Cuba, in September 2003 and February
2004 for the purpose of assisting the United States’ prosecution against him
and in so doing violated his rights under the Canadian Charter of Rights and
Freedoms, Part
I of the Constitution Act, 1982, being Schedule B to the Canada Act,
1982 (U.K.), 1982, c.11 (the “Charter”).
[3]
The
actions of Canadian Security Intelligence Service (CSIS) officials in relation
to the interviews at Guantanamo were examined by SIRC
under its mandate pursuant to section 54 of the Canadian Security
Intelligence Service Act, R.S.C. 1985, c. C-23, to review any matter that
relates to the performance of its duties and functions. Such reports are
submitted to the Minister of Public Safety and Emergency Preparedness. The only
copy of the Report available to the plaintiff is the redacted version on the
SIRC website.
[4]
On
January 29, 2010 the Supreme Court of Canada released its decision in Canada
(Prime Minister) v. Khadr, 2010 SCC 3, [2010] S.C.J. No. 3, in which the
Court held that the CSIS interviews constituted a violation of the plaintiff's
rights under section 7 of the Charter. At paragraphs 20 and 24 of its
decision, the Supreme Court referenced certain findings contained in the SIRC Report.
[5]
The
plaintiff submits that the Report and the materials reviewed by the SIRC in
preparing the Report, are relevant documents in the possession of, or under the
control of the defendant and should therefore be disclosed in the discovery
process.
[6]
The
defendant’s position is that documents reviewed by the SIRC would be produced
to the extent that they are relevant and subject to whatever privileges or immunities
apply. The defendant argues that the scope of the SIRC review encompassed a
time-frame and events broader than those that are the subject of this action
and that the content of the Report is beyond the parameters of relevance fixed
by the former case management judge in a 2005 document production order.
Moreover, the defendant submits, the Report itself is not a document that could
be tendered as evidence. It consists of an analysis conducted by a specialized
body for a specific statutory purpose. As such, its findings would not be
admissible on the trial of the action.
[7]
In
reply, the plaintiff objects to the defendant determining the relevance of any
documents considered by the SIRC and submits that they should be produced to
the Court in unredacted form for the Court to review as the first stage of an
application to consider whether any information in the documents should be
protected under claims of public interest privilege as set out in section 38.04
of the Canada Evidence Act, R.S.C. 1985, c. C-5, or whether other claims
of privilege apply.
ISSUES:
[8]
This
motion raises the following issues:
a. Is the defendant
required to disclose in its affidavits of documents all of the material in its
possession related to the plaintiff that was reviewed by the SIRC in the
preparation of the Report?
b. Is the defendant
required to disclose in its affidavits of documents an unredacted copy of the
SIRC Report?
ANALYSIS:
The defendant is not required to disclose in its affidavits of documents all of
the material reviewed by the SIRC.
[9]
Discovery
of documents in Federal Court actions is governed by Rules 222 to 233 of the Federal
Courts Rules. The test as to which documents are required to be produced by
a party is relevance (Rule 222(2)). A document is relevant if it either
directly or indirectly advances a party’s case or damages that of its adversary
or may fairly lead to a “train of inquiry” that may have either of these two
consequences: Apotex Inc. v. Canada, 2005 FCA 217, [2005] F.C.J. No.
1021.
[10]
There
are limits to the reach of the “train of inquiry” line of discovery. The test
is whether there is a reasonable likelihood that a document sought for
production would lead to information relevant under Rule 222(2): Eli Lilly
Canada Inc. v. Novopharm Ltd., 2008 FCA 287, [2008] F.C.J. No. 1372. The
focus of the rule is clearly on matters that are necessary and relevant for the
trial: AstraZeneca Canada Inc. v. Apotex Inc., 2008 FC 1301, [2008]
F.C.J. No. 1696, at para 6.
[11]
Relevance
is to be determined by reference to the issues of fact which separate the
parties, as defined by the pleadings: Merck Frosst Canada Inc. v. Canada (Minister of Health), (1997), 146 F.T.R.
249, [1997] F.C.J. No. 1847, at para. 7. In this case, the statement of claim has
been amended since the June 20, 2005 case management order was issued. By order
dated May 13, 2009 the plaintiff was granted leave to file a further amended
Statement of Claim expanding the grounds on which he was seeking a remedy.
[12]
The
defendant can not, therefore, simply rely on the terms of the 2005 order, as it
proposes, without regard to whether the subsequent amendments to the pleadings
have altered the landscape of what may be relevant to the issues at trial. But
the initial determination of what is relevant and must be listed and produced
must, as a practical matter, rest with the defendant, its affiants and its
solicitors.
[13]
The
Rules set out the requirements for each party’s affidavit and supplementary
affidavits of documents. The parties are under a continuing obligation to serve
and file supplementary affidavits where they become aware of deficiencies or
inaccuracies in the original disclosure.
[14]
The
plaintiff seeks an order for the disclosure of all of the material submitted by
any agency of the defendant to SIRC in relation to the inquiry which resulted
in the Report. According to the section of the Report dealing with the
methodology of its review, SIRC examined all electronic and hard-copy
documentation held by CSIS and related directly or incidentally to the plaintiff
for the period of May 1, 2002 to September 30, 2005, inclusive. From that
description of its methodology, I infer that the documents that were examined
in the course of the SIRC review were not submitted to SIRC by government
agencies but were accessed by SIRC staff in either electronic or paper form in the
course of their examination of CSIS records. SIRC staff have access to CSIS
records and maintain an office at CSIS headquarters for such purposes.
[15]
As
conceded by the defendant, there are undisclosed records which were reviewed by
SIRC for the purposes of the 2008 review. I doubt that all of the material reviewed
by the SIRC would be legally relevant in the sense contemplated by Rule 222(2),
that is that it could assist in determining whether or not the remedies being
sought by the plaintiff in the action should be granted: Altagas Marketing
Inc. v. Canada, 2004 FC 910, [2004] F.C.J. No. 1161, at para. 16. But it
appears clear that there is some relevant material that remains to be
disclosed.
[16]
In
my view, ordering disclosure of all of the material reviewed by SIRC that
relates “directly or incidentally” to the plaintiff would inevitably produce
documents and information that would be outside the issues delineated by the
pleadings. I do not consider that it would be an economical use of the Court’s time
for it to review whatever there may be in the CSIS records related to the
plaintiff to determine whether there are documents relevant to this action. I
do not intend, therefore, to issue the type of broad, sweeping order requested
by the plaintiff.
[17]
The
defendant must, however, respect its obligations to ascertain the potential
relevance of all of its documents including those that were reviewed by the
SIRC in preparing its 2008 Report and produce those that are relevant. The
Court takes judicial notice that CSIS holds its records very closely and that
knowledge of their content is restricted on a need to know basis. Solicitors
for the defendant may not be aware of the existence of relevant documents. The
question remains, therefore, how is the Court to be satisfied that adequate
disclosure has been achieved, subject to any legitimate claims of privilege?
[18]
As
set out in Rule 224, the deponent of an affidavit of documents must make
reasonable inquiries of any present or former officer, servant, agent or
employee of the party who might reasonably be expected to have knowledge
relating to any matter in question to the action. The solicitors of record must
certify that they have explained the necessity of making full disclosure under
Rule 223 and the possible consequences of failing to do so.
[19]
The SIRC
is an independent body that reports to Parliament through the Minister of
Public Safety and Emergency Preparedness, its members are appointed by Order-in-Council
and it is treated as a government institution for administrative purposes and
application of access to information and privacy statutes. While I do not need to determine whether it is part
of the defendant Crown for present purposes, I am satisfied that it is a
"federal board, commission or tribunal”, as defined in section 2 of the Federal
Courts Act. The committee exercises powers conferred under an Act of
Parliament, in particular broad rights of access to the information held by
CSIS granted by section 39 of the Canadian Security Intelligence Service Act. The small group of
officials that support the committee are subject to the Public Service
Employment Act S.C. 2003, c. 22. I am
satisfied that the committee’s staff fall within the class of “officer,
servant, agent or employee” of the defendant who might reasonably be expected
to have knowledge relating to this action as contemplated by Rule 224(2).
[20]
As
the requirement to disclose documents is to be interpreted liberally, I think
it appropriate to order that the defendant file a supplementary affidavit of
documents and that the affidavit include a statement that the deponent has made
reasonable inquiries of present or former SIRC staff and CSIS officials to
ensure that all relevant documents relating to the plaintiff in the possession
of the defendant that were examined in the course of the SIRC review and
preparation of the 2008 Report have been identified and listed in a schedule to
the affidavit. That will not require disclosure of the documents pending a
determination of any claims of privilege that may attach to the documents or
the information they contain. I recognize that the SIRC may have reviewed
documents obtained from other sources that are not in the possession of the
defendant.
The
defendant is required to list an unredacted copy of the SIRC Report in its
affidavit of documents
[21]
As
noted above, the 2008 Report was a special review conducted by SIRC under
section 54 of the Canadian
Security Intelligence Service Act and the Report was submitted to the Minister of
Public Safety and Emergency Preparedness. I am satisfied, therefore, that the
unredacted version of the Report is a document within the “possession, power or
control” of the defendant as specified by Rule 223(2)(a)(i).
[22]
The
defendant objects to production of an unredacted version of the 2008 Report
principally on the ground that it would not be admissible evidence at trial and
is, therefore, outside the proper scope of document production. The defendant
submits the Report was created well after the events at issue in this action
and reviews time periods outside the scope of the action. Where it touches on
the subject of the litigation, the statements that reference the events at
issue are analogous to opinion evidence going to the ultimate issue to be
determined by the Court.
[23]
The
plaintiff argues that the Report contains findings of facts derived from the
evidence that was before SIRC, most of which is not in the plaintiff’s
possession. In his view, it is necessary to have the Report included in the
evidentiary record for trial rather than in a Book of Authorities as it was in
the proceedings before the Supreme Court of Canada. Additionally, the
plaintiff argues, the unredacted version of the SIRC Report and its supporting materials
may lead to a “train of inquiry” giving rise to relevant evidence independent
from the SIRC’s own findings.
[24]
Counsel
have filed excerpts of the transcript of the oral hearing before the Supreme
Court in which questions were raised as to the status of the Report in those
proceedings. It appears from those excerpts that it was not clear to the Supreme
Court whether the Report was to be treated as part of the evidentiary record. That
question does not appear to have been resolved during the hearing although I
note that findings in the Report were referenced twice by the Court in its
reasons for decision: Khadr, above, at paragraphs 20 and 24.
[25]
I
doubt that the Report is admissible as proof of the statements of fact that it
contains. At first impression, it does not appear to meet the tests of
admissibility of public documents. But that is a question that would have to be
decided at trial or on a pre-trial motion under Rule 220. And relevance, not
admissibility, is the test for discovery: Steier v. University Hospital Board (Sask. C.A.), (1988), 67 Sask.R. 81,
[1988] S.J. No. 138.
[26]
As
discussed above, a party is entitled to discovery of documents that may
reasonably lead to information that would assist its case, undermine that of
its adversary or lead, on inquiry, to such information. Disclosure of a relevant
document in an affidavit does not determine its admissibility and it remains
open to the opposing party to raise that issue at trial: Glaxo Group Ltd. v.
Novopharm Ltd. (1996), 122 F.T.R. 192 (T.D.), [1996] F.C.J. No. 1423.
[27]
I am
satisfied that the unredacted version of the Report must be listed in schedule
2 of the defendant’s supplementary affidavit of documents. The document itself
need not be disclosed to the plaintiff until such time as any possible claims
of public interest privilege with respect to the information redacted from the
public version of the report are resolved on application to the Court under
subsection 38.04(1) of the Canada Evidence Act.
ORDER
THIS
COURT ORDERS that:
- The
plaintiff’s motion is granted:
(a)
The defendant shall
list the 2008 SIRC Report entitled CSIS’s Role in the Matter of Omar Khadr in schedule 2 of its supplementary affidavit
of documents and file an unredacted version of the Report with the Designated
Proceedings Registry of the Court;
(b)
The deponent of the
defendant’s supplementary affidavit shall consult present and former members of
the SIRC staff to ensure that all relevant documents in the possession of the
Canadian Security Intelligence Service that were reviewed by SIRC in the
preparation of the Report are listed in the supplementary affidavit;
(c)
Any participant in
this proceeding who is required to disclose information in the Report or
relevant documents in the possession of CSIS or in the affidavit and schedule
to be filed, that the participant has reason to believe is sensitive or
potentially injurious shall notify the Attorney General of Canada who may consent
to the disclosure of the information or bring an application to the Court under
section 38.04 of the Canada Evidence Act for an order to protect the
information;
(d)
The defendant shall
file redacted and unredacted copies of the documents in the Designated
Proceedings Registry of the Court for the determination of any application
brought by the Attorney General of Canada
- The
plaintiff shall have his costs of this motion in any event of the cause.
“Richard
G. Mosley”
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