Date: 20101103
Docket: DES-6-08
Citation: 2010 FC 1084
Toronto, Ontario, November 3, 2010
PRESENT: Kevin R. Aalto, Esquire, Case Management Judge
BETWEEN:
IN THE MATTER OF a certificate
signed pursuant
to section 77(1) of the Immigration
and Refugee
Protection Act (IRPA);
AND IN THE MATTER OF the referral of a
certificate to the Federal Court pursuant
to
section 77(1) of the IRPA;
AND IN THE MATTER OF
MAHMOUD
ES-SAYYID
JABALLAH
REASONS FOR ORDER AND ORDER
Introduction
[1]
The
ability of a client to seek legal advice of counsel in absolute confidence is
one of the hallmarks of Canada’s judicial system. It
is a right held in the highest regard and solicitor-client communications can
only be accessed by third parties in the most exceptional of circumstances.
None apply here.
[2]
The
motion before the Court raises several issues concerning the interception of
solicitor-client telephone communications by the agents of the Minister of
Public Safety and the Minister of Citizenship and Immigration and Multiculturalism
(the Ministers) between Mr. Jaballah and his counsel. The first general issue
is whether or not Canada Border Services Agency (CBSA) and its agent, Canadian
Security Intelligence Services (CSIS), were authorized to intercept
solicitor-client communications between Mr. Jaballah and his legal counsel.
There is no doubt that CBSA and CSIS have done so. The second general issue is
whether as a result of intercepting solicitor-client communications CBSA and
CSIS are obliged to produce to Mr. Jaballah any collateral documents, such as
memos, e-mails, reports which were generated by CSIS or CBSA as a result of
recording or listening to the solicitor-client communications. On this motion,
Mr. Jaballah seeks to have any such collateral or secondary documentation
produced and, in addition, seeks the production of the following types of
documents:
·
A
copy of the July, 2006 Harkat “guidelines” and the subsequent September, 2007
replacement guidelines
·
Any
records or logs indicating when the solicitor-client intercept recordings were
accessed by CBSA and CSIS analysts,
along with the frequency and duration of these accesses
·
Any
memos, letters or other documents establishing practices or procedures
governing the sharing of information between CSIS and CBSA derived from the
interceptions in any of the security certificate cases (i.e. Harkat,
Mahjoub and Jaballah)
·
Any
memos, written instructions or other documents relating to the practices to be
followed by CBSA and CSIS analysts in
relation to solicitor-client intercepts
·
Any
reports, memos or other documents that refer to the content of any of the
Jaballah intercepts, whether solicitor-client privileged or otherwise
[3]
In the
Written Representations filed on behalf of Mr. Jaballah another category of
documents is referred to dealing with production of all documents (including
e-mails and other electronic documents) bearing on these issues:
·
The
decision-making process that led CBSA and CSIS to intercept, record and review
privileged solicitor-client telephone calls in Mr. Jaballah’s case and in other
certificate cases (Harkat and Mahjoub). These documents are wide-ranging and
include requests for internal memos and the like relating to the creation of
the Harkat guidelines; memos and the like relating to the scope of the release
orders in Harkat, Mahjoub and Jaballah; documents relating to the revelation
that solicitor-client communications had been intercepted; and any documents
relating to the what was done once it was determined that solicitor-client
communications had been intercepted.
·
The
steps taken to implement the undertaking given to the Court in December 2008
and the Court’s Order directing that CSIS cease listening to solicitor-client
communications and to destroy the recordings. On this issue Mr. Jaballah seeks
production any documents, electronic or otherwise, that directed analysts to
comply with Order and whether analysts continued to listen after December 2008.
[4]
Consideration
of these issues and the documentary production is reviewed below.
Background
[5]
Mr. Jaballah
is the subject of a certificate signed pursuant to section 77(1) of the Immigration
and Refugee Protection Act (IRPA) which has been referred to the
Federal Court. He
was released from custody in April, 2007 on lengthy and strict terms, having
been in custody since his arrest in 2001 on the security certificate.
Specifically, the release order (Release Order) made by Madame Justice Carolyn Layden-Stevenson
of the Federal Court (as she then was) included a term which allowed for the
monitoring of his telephone:
Mr.
Jaballah may use a conventional land-based telephone line located in the
residence (telephone line) other than the separate dedicated land based
telephone line referred to on condition that before his release from detention,
both Mr. Jaballah and the subscriber to such telephone service shall consent in
writing to the interception, by or on behalf of CBSA, of all communications
conducted using such service. For greater certainty, this includes allowing
CBSA to intercept the content of oral communications and also to obtain the
telecommunication records associated with such telephone line service.
[6]
The
terms of Mr. Jaballah’s release were substantially similar to those on which
Mohamed Harkat and Mohamed Zeki Mahjoub, two other security certificate
detainees, had been previously released. The release orders in each of these
cases authorized CBSA to intercept all communications, with no specific
provision allowing for the interception of solicitor-client communications.
[7]
In
November 2008, a CBSA official testified that CBSA had received a report about
Mr. Harkat, which included privileged solicitor-client information. It was
through this testimony, and the testimony of other officials, that Mr.
Jaballah’s public counsel discovered that CSIS analysts were listening to the
solicitor-client telephone calls of Mr. Harkat, Mr. Mahjoub and Mr. Jaballah.
CSIS Interception of
Solicitor-Client Communications
[8]
CBSA
and CSIS monitoring of solicitor-client communications began after Mr. Harkat
was released from detention in July 2006. Elizabeth Snow, manager of the
Counter Terrorism section of CBSA, testified in camera and in public that
CSIS analysts were directed to listen to all of Mr. Harkat’s calls, and then
destroy solicitor-client calls if they did not involve a threat to national
security or a potential breach of the terms of release. These guidelines were
contained in a letter dated July 21, 2006, sent from CBSA to CSIS, whose
communications analysts were acting as CBSA’s agents. These guidelines are
apparently referred to as the “Harkat Guidelines”. They have not been
disclosed to public counsel, but it appears they have been reviewed by the
Special Advocates.
[9]
There
were no specific guidelines governing the interception of Mr. Jaballah’s communications
when he was released. The evidence of an unnamed CSIS witness who testified in
camera was that it was
understood that Mr. Jaballah’s communications should be monitored according to
the same protocol governing Mr. Harkat’s communications. Thus, according to
this CSIS witness, all of Mr. Jaballah’s calls, including solicitor-client
communications, were monitored by CSIS for the purpose of determining whether a
communication involved a potential threat to national security or a breach of
the terms of release. The communications were then supposed to be destroyed.
[10]
CBSA and CSIS implemented
new guidelines concerning the interception of communications of Mr. Jaballah,
Mr. Mahjoub and Mr. Harkat in September 2007. Under these new guidelines, CSIS
analysts listened to solicitor-client telephone calls, but did not destroy
them. Instead, the calls were sent to CBSA to be processed. CSIS did not retain copies of
interceptions or call logs.
Handling of
Solicitor-Client Intercepts by CBSA and CSIS
[11]
There
is nothing in the record to date that suggests the Ministers have used or
relied on the solicitor-client intercepts in the certificate proceedings
against Mr. Jaballah.
[12]
According
to an unnamed CSIS analyst who testified in camera, CSIS analysts (acting
as agents for CBSA) would make a preliminary analysis of the intercepted
information. If the preliminary analysis indicated that Mr. Jaballah could be
in violation of the provisions of the terms of his release, the information
would be provided to CSIS for further analysis and follow up and investigation.
It appears from the record that four disclosures were made to CSIS, but the
CSIS witness testified that these four disclosures were not based on
solicitor-client communications. The CSIS witness also testified that “CSIS
has made no use of, and did not retain, any of Mr. Jaballah’s solicitor-client
communications”.
[13]
According
to the public summary of Ms. Snow’s in camera testimony, CBSA began
listening to the intercepted communications in November 2007. Analysts were
verbally instructed to stop listening to all calls involving a lawyer or law
office staff. The public summary of her testimony states:
Once
a CBSA analyst who is listening to an intercepted communication realizes that a
communication is subject to solicitor-client privilege, the analyst disengages.
This means that the analyst stops listening to that call and does not listen to
any further part of that call.
…
CBSA
adopts a broad definition of a solicitor-client communication. Any call from a
lawyer or anyone in the lawyer’s office to Mr. Jaballah or anyone in the
household is treated as privileged. Calls originating from the Jaballah
household to a law firm are similarly treated.
[14]
Ms.
Snow further testified that CBSA had not used any of Mr. Jaballah’s
solicitor-client communications arising from the intercepted telephone calls
and confirmed that CBSA was in the process of destroying any solicitor-client
communications in its possession.
[15]
Mr.
Jaballah’s Release Order also authorized CBSA to intercept and read the
Jaballah’s mail. As with the term authorizing the interception of telephone
conversations, this term did not specifically address solicitor-client
privileged mail. Yet, the evidence on the record indicates that CBSA officers
recognized that the Release Order did not authorize the interception of
solicitor-client privileged mail. As evidence of this, in December 2008, a
CBSA officer inadvertently opened a letter to Mr. Mahjoub from his counsel, but
immediately put the correspondence aside without reading it, and contacted his
supervisors for further direction. Counsel for the Ministers wrote to the
Court the next day, explaining what had occurred and providing assurances that
the letter had been inadvertently opened, but not read. In his sworn
statement, the officer states:
This
incident was entirely inadvertent on my part. I am aware that solicitor-client
mail is privileged and that the CBSA should not be reviewing such mail.
[16]
Mr.
Mahjoub and Mr. Jaballah were at the time represented by the same public
counsel. Therefore, Mr. Jaballah’s counsel became aware of the manner in
which CBSA interpreted the terms of the Release Order in Mr. Mahjoub’s case.
The Court’s Response to
the Solicitor-Client Intercepts
[17]
In
December 2008, when it was discovered that CSIS and CBSA were in fact
monitoring Mr. Jaballah’s solicitor-client communications, the Court acted
quickly to rectify the situation. On December 18, 2008, counsel for Mr.
Mahjoub applied to Justice Layden-Stevenson to have the Release Order amended
to clarify that it did not authorize interception of his solicitor-client
telephone calls. In response, Justice Layden-Stevenson stated:
Let
me say this, that I think the failure to provide some indication in the order
in the first instance was due to an oversight both on the part of counsel and
the court. There will be an amendment, you can be guaranteed of it, and I
think the nature of it is probably properly addressed at the conclusion of the
evidence, not in the middle of it.
[18]
Later
in the proceeding, Justice Layden-Stevenson stated that she would draft an
amendment to the release order overnight and get it to counsel. She then went
on to state:
For
the rest of us, the matter is resolved and I will draft the amendment, and I don’t
want to hear any more about it. It is done. It is over. It is finished. It
has happened. We understand it happened. It is unfortunate, but there is
nothing we can do to change the past. We can only look at what goes from here
in terms of where it will go from here.
[19]
When
this comment was made, public counsel had only received disclosure of the
evidence indicating that CSIS was intercepting solicitor-client communications
that morning. Mr. Mahjoub was scheduled to testify regarding changes to the conditions
of his release, and the Court was concerned that his testimony not be derailed
by the interception issue.
[20]
Counsel for the Ministers
consented to the proposed amendment, which was formally made the following day,
on December 19, 2008. Mr. Mahjoub’s amended release order read:
For
greater certainty, when
the content of the intercepted oral communications associated with the
land-based telephone line in the Mahjoub residence involves solicitor-client
communications, the analyst, upon identifying the communication as one between
solicitor and client, shall cease monitoring the communication and shall delete
the interception. [emphasis added]
[21]
Mr. Jaballah’s Release Order
was formally varied on March 9, 2009 to read:
When
an analyst reasonably believes that a solicitor or an employee of a solicitor
is a party to a communication, the analyst shall, whether the communication is
written or oral, cease monitoring the communication and shall delete the
interception as soon as is reasonably possible.
[22]
While
Mr. Jaballah’s Release Order was not formally varied until three months after
it was discovered that CBSA and CSIS were intercepting solicitor-client
communications, CSIS counsel and counsel for the Ministers provided written
assurances that Mr. Jaballah’s solicitor-client calls were being handled in
accordance with the variation of the Harkat and Mahjoub release orders.
The Interception of
Solicitor-Client Telephone Calls after December, 2008
[23]
Pursuant
to a Direction of the Court made in February, 2010, CBSA subsequently disclosed
recordings of 1503 intercepts of solicitor-client communications to Mr.
Jaballah. A selection of these recordings has been filed under seal with the
Court, but has not been provided to the Ministers’ counsel.
[24]
According
to public counsel, the disclosure does not include any recordings of calls
dated earlier then September 2007. This is consistent with an earlier protocol
of CSIS of destroying solicitor-client communications that did not indicate a
breach of the conditions of release or a potential threat to national security.
[25]
The
disclosure contains 591 calls over which Mr. Jaballah or his counsel claims
privilege. These calls were recorded between September 2007 to December 2008.
[26]
Surprisingly,
the disclosure also included 171 recordings intercepted from the Jaballah
telephone line between December 20, 2008 and May 8, 2010. Mr. Jaballah claims
solicitor-client privilege over at least 58 of these calls. This disclosure
indicates that CSIS continued to intercept and record solicitor-client
privileged communications, contrary to counsel’s assurances and the March 9,
2009 amendment to Mr. Jaballah’s Release Order.
[27]
Counsel
for Mr. Jaballah have indicated that they intend to bring a motion alleging,
among other things, that the interception of his privileged solicitor-client
communications amounted to an abuse of process. Counsel for the Ministers has
indicated that the Ministers will call two witnesses, a CBSA witness and a CSIS
witness, during the abuse of process motion to deal with the interception of
the solicitor-client communications in the post December 2008 period.
Currently, the record with respect to the period following December 2008 is
incomplete, and will be clarified in the abuse of process motion.
[28]
In
sum, the Ministers admit that CSIS analysts listened to, and then destroyed
solicitor-client communications between May and September 2007. The Ministers
further admit that from September 2007-December 2008 CSIS listened to
solicitor-client communications, but sent them to CBSA for processing, rather
than destroying them as per the earlier protocol. CBSA analysts were verbally
instructed not to listen to any solicitor-client calls.
[29]
While
the full record regarding the interception of solicitor-client calls post-December
2008 period will be established in the upcoming abuse of process motion, it is
reasonable to infer on the record before the Court in this motion that
interception of Mr. Jaballah’s solicitor-client communications took place after
December 2008, contrary to the Ministers’ written assurances, and the amended Release
Order. However, the circumstances surrounding these interceptions are not yet
known.
Issues
[30]
This
motion seeks production of documentation from CBSA and CSIS regarding the
practices and procedures of those entities in dealing with privileged solicitor-client
communications and any collateral documentation created by CBA or CSIS arising
from a review of such communications. While counsel for Mr. Jaballah have
raised six issues, these issues in fact can be conflated into four discrete
matters as follows:
1.
Did
the original release order authorize CBSA and CSIS to intercept Mr. Jaballah’s solicitor-client
communications? Does the fact of having the communications intercepted
pursuant to the Release Order eliminate solicitor-client privilege?
2.
Is
possession of the intercepts sufficient to make out a breach of
solicitor-client privilege or is it necessary for the Ministers to have used or
relied on the privileged material?
3.
Is
Mr. Jaballah entitled to disclosure of the secondary documents under s. 7 of
the Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK), c11 (the Charter)
and/or Charkaoui
v. Canada (MCI),
2008 SCC 38, [2008] 2 S.C.R. 326 (Charkaoui II)?
4.
What
is the scope of the documents to be produced, if any?
Issue
one:
Did the original release order authorize CBSA and CSIS to intercept Mr.
Jaballah’s solicitor-client communications? Does the fact of having the communications
intercepted pursuant to the Release Order eliminate solicitor-client privilege?
The Jaballah Position
[31]
Mr.
Jaballah advances four main reasons why the original Release Order did not
authorize the interception of his solicitor-client communications.
[32]
First,
counsel for Mr. Jaballah emphasizes that solicitor-client privilege is now
recognized as a substantive right that can only be overridden in very narrow
circumstances. They argue that solicitor-client privilege is recognized as a
principle of fundamental justice (Lavallee, Rackel and Heintz v. Canada (Attorney
General),
2002 SCC 61, [2002] 3 S.C.R. 209 at paras. 16, 21). Thus, as noted at
the outset of these reasons, solicitor-client privilege is afforded
“near-absolute protection”, and cannot be abrogated by inference (Blank v.
Canada (Department of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319 at para.
23; (Canada (Privacy Commissioner) v. Blood Tribe Department of Health,
2008 SCC 44, [2008] 2 S.C.R. 574 at para. 11). Therefore, an order authorizing
the interception of Mr. Jaballah’s solicitor-client communications would have
to be explicit.
[33]
Second,
it is argued that where there is doubt as to their meaning, court orders must
be construed to comply with the Charter: Dagenais v. Canadian Broadcasting
Corp., [1994] 3 S.C.R. 835 (Dagenais).
[34]
Third,
it is argued that Mr. Jaballah has not waived his Charter rights to a
fair process in accordance with the principles of fundamental justice. The
record demonstrates that Mr. Jaballah did not have the “requisite informational
foundation for a true relinquishment of the right” (R. v. Borden,
[1994] 3 S.C.R. 145 at para. 34). Mr. Jaballah’s public counsel, the
Designated Judge, and CBSA appear to have understood the Release Order as not
permitting interception of solicitor-client communications. Furthermore, it is
argued that Mr. Jaballah’s consent would not be truly voluntary, since it would
force him to choose between his Charter right to liberty and his right
to solicitor-client privilege.
[35]
Finally,
Mr. Jaballah’ counsel point to the factual record in support of the position
that the interception of solicitor-client communications was not authorized.
The record suggests that all parties understood the Release Order as not
authorizing the interception of solicitor-client privileged communications.
CBSA officers apparently understood that solicitor-client mail was privileged,
and also disengaged from solicitor-client calls. The Ministers did not attempt
to justify such an intrusion into Mr. Jaballah’s solicitor-client
communications and consented to varying the Release Order. Justice
Layden-Stevenson, the Designated Judge, specifically commented that “the failure to provide
some indication in the order in the first instance was due to an oversight both
on the part of counsel and the court”.
All of these facts suggest that no one intended the Release Order to authorize
the interception of Mr. Jaballah’s solicitor-client communications.
The Ministers’ Position
[36]
The
Ministers’ primary position is that it is unnecessary to determine whether the
telephone conversations between Mr. Jaballah and his counsel prior to December
2008 were privileged, as these communications have already been addressed by
the amended Release Order. Further, it is unnecessary to determine whether the
post-December 2008 communications were privileged, because there is nothing on
the record to establish any monitoring of solicitor-client communications after
December, 2008.
[37]
In
the alternative, the Ministers assert that the Release Order clearly authorized
interception of all communications because the Release Order was drafted
on consent and with the benefit of legal advice from senior counsel. Mr.
Jaballah’s counsel expressed some awareness that their communications could be
monitored.
Because Mr. Jaballah and his counsel did not have an expectation of
confidentiality around their communication, they do not meet the third criteria
to establish solicitor-client privilege, as set out in Solosky v. The Queen,
[1980] 1 S.C.R. 821. Therefore the solicitor-client communications at issue
were never in fact privileged.
[38]
In
response to Mr. Jaballah’s Charter arguments, the Ministers argue that
there is no principle that solicitor-client privilege cannot be abrogated by
inference, or waived on consent. This is because, so it is argued, that
privilege is not a free-standing Charter right, and does not engage the Charter
waiver issues.
[39]
Finally,
the Minsters take the position that Dagenais, above, applies to
court orders, but not to the Ministers.
Discussion
[40]
In
my view, the positions of the Ministers on Issue One cannot be sanctioned for
the reasons that follow.
[41]
As
noted at the outset, solicitor-client privilege is virtually sacrosanct in the
Canadian judicial system. While not enshrined per se in the Charter,
it is a fundamental underpinning of the judicial system that individuals are
able to seek legal advice in complete confidence without the state or anyone
else eavesdropping.
[42]
The
argument by the Ministers that the Release Order sanctioned the interception,
recording and monitoring of solicitor-client communications is simply not
tenable. In my view this conclusion is supported for many reasons.
[43]
First,
because privileged solicitor-client communications are an accepted fundamental element
of our judicial system, it cannot be said that the Ministers’ counsel at the
time the Release Order was granted honestly believed that CBSA were given an
open invitation to intercept, monitor and review solicitor-client
communications. To obtain such a wide ranging power to infringe a basic
precept of law requires a specific request of the Court and supporting
materials. No such specific authority was sought on the facts of this case. To
obtain such a wide ranging power to infringe Jaballah’s solicitor-client
privilege the Release Order would have to authorize that in clear and
unmistakeable terms.
[44]
Second,
Mr. Jaballah could not be said to have consented to his solicitor-client
communications monitored by CSIS. While it is easy, after the fact, for the
Ministers to point fingers at Mr. Jaballah’s counsel and the Court for granting
such a sweeping Release Order to justify their actions, the fact remains that
it was not in the contemplation of anyone that this would take place. For
example, as soon as it was learned that the interceptions were taking place an
amendment to the Release Order was immediately issued on consent. The
Ministers at that time did not try and justify their actions nor did they seek
leave of the Court to continue the interceptions. As Justice
Layden-Stevenson stated, the failure to carve out protections for
solicitor-client communications in the Release Order was an oversight. Furthermore,
when the Release Order was amended, the amendment specified in the Mahjoub case
that it was “for greater certainty”, indicating that the amendment was intended
to clarify the meaning of the original Release Order.
[45]
Third,
it is quite clear on the record that CBSA knew the importance of
solicitor-client communications. This is evident from the fact that a CBSA
officer inadvertently opened a letter from Mr. Mahjoub’s counsel and
immediately reported it to his superiors advising that as soon as he realized
it was from counsel he did not read it. Mr. Mahjoub’s release order and Mr.
Jaballah’s Release Order were identical in their substantive terms. CBSA knew
they were not to intercept solicitor-client mail even though the Release Orders
did not specifically exempt solicitor-client mail. Why is it different for
telephone communications?
[46]
Simply
put, I agree with the submission made on behalf of Mr. Jaballah that something
more than oversight is needed to authorize such a significant intrusion into solicitor-client
communications.
[47]
On
the factual record before the Court I am satisfied that the Release Order did
not authorize the interception of the Applicant’s solicitor-client
communications. Even if this were not so I accept Mr. Jaballah’s Charter
arguments on this point as further justification for this conclusion.
[48]
The authorities
cited provide more than ample authority to establish that solicitor-client
privilege is a principle of fundamental justice. Mr. Jaballah’s section 7
right to liberty is infringed by the fact that he is detained. Therefore, his
detention must be in accordance with the principles of fundamental justice,
including solicitor-client privilege, unless justified under section 1 of the Charter.
The Ministers have never suggested that it is necessary to monitor Mr.
Jaballah’s communications with his lawyers, and have never attempted to justify
the solicitor-client interceptions under section 1.
[49]
The
record does not establish that Mr. Jaballah intended to waive his right to
conditions of detention that are in accordance with the principle of
solicitor-client privilege. If none of the parties understood the Release Order
as authorizing the interception of his solicitor-client communications, Mr.
Jaballah could not have knowingly consented to this even though he was
represented by counsel.
[50]
Finally,
with respect to the argument that there is no evidence of interception of
solicitor-client communications post December 2008, there is evidence before
the Court in the form of the disc of recordings provided at the hearing. It is
a reasonable inference from all of the evidence before the Court that
monitoring of solicitor-client communications continued into 2010. The
Ministers cannot rationally be of the belief that this did not happen.
Issue
Two:
Is possession of the intercepts sufficient to make out a breach of solicitor-client
communications or is it necessary for the Ministers to have used or relied on
the privileged material?
The Jaballah Position
[51]
Mr.
Jaballah argues that possession is the triggering factor for a breach of
solicitor-client privilege. The party who is asserting the breach does not bear
the burden of establishing that the party who has come into possession of
solicitor-client material has relied on the material in some way.
[52]
Further,
Mr. Jaballah points to the Supreme Court’s decision in Celanese Canada Inc.
v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189 (Celanese)
to support this proposition. In this case, the Supreme Court repeatedly stated
that possession of solicitor-client information was sufficient to establish a
breach of solicitor-client privilege:
-
Paragraph
34: “Even granting that solicitor-client privilege is an umbrella that covers
confidences of differing centrality and importance, such possession by the
opposing party affects the integrity of the administration of justice.”
-
At
paragraph 42, the Court notes that in MacDonald Estate v. Martin, [1990]
3 S.C.R. 1235 Justice Sopinka held that the moving party need only establish
that the opposing party has obtained solicitor-client information relevant to
the matter at hand. There was no obligation to adduce further evidence of the
nature of the information.
-
Paragraph
46: “The gravamen of the problem here is the possession by opposing solicitors
of relevant and confidential information attributable to a solicitor-client
relationship to which they have no claim of right whatsoever.”
[53]
Finally,
at paragraphs 48-51, the Supreme Court also held that the onus of establishing
that the solicitor-client breach did not cause prejudice falls to the party in
receipt of the solicitor-client information.
[54]
In
Mr. Jaballah’s submission, Celanese is a complete answer to the Ministers’
argument that possession is not sufficient to trigger a breach of
solicitor-client privilege.
The Minister’s Position
[55]
The
Ministers argue that CBSA and CSIS’s possession of solicitor-client
communications is not sufficient to establish a breach of solicitor-client
privilege. The Ministers assert that Celanese is a case about removal
of counsel, and that the condition precedent for the Celanese principles
to apply is possession of solicitor-client information by counsel, not
the client.
[56]
In
the present case, there is no allegation that counsel has come into possession
of solicitor-client communications, and therefore it is argued that Celanese
has no application. In the Ministers’ view, the Court should distinguish
between counsel and client in this case, because CBSA and CSIS strictly control
the confidential information on a need-to-know basis. There is therefore no
basis for presuming that the monitoring of solicitor-client communications
resulted in any prejudice to Mr. Jaballah.
[57]
Further,
the Ministers also note that the original Release Order required them to
intercept solicitor-client communications. Thus, it cannot be that there is an
adverse inference of prejudice where the Ministers come into possession of
solicitor-client information as a natural consequence of a Court order.
Discussion
[58]
The
possession of the solicitor-client communications by an opposing party, as
noted by the Supreme Court in Celanese, “affects the integrity of the
administration of justice”. Having determined that the interception of
solicitor-client communications was not duly authorized, it is up to the
Ministers to demonstrate on the abuse of process motion that it did not cause
prejudice to Mr. Jaballah.
[59]
The
Ministers’ argument that Celanese has no application because it only
deals with removal of counsel and the possession by counsel of privileged
solicitor-client communications does not hold water.
[60]
The
Ministers are entirely correct that Celanese is a case about counsel,
and much of the Supreme Court’s analysis is focused on the right to be
represented by counsel of choice. It is also to be noted that some of the
reasoning in Celanese is predicated on the fact that the solicitor-client
material was obtained through an Anton Piller order, which placed
certain duties on the counsel executing the order. Notwithstanding these
differences, the general principles from Celanese should apply in this
case.
[61]
In Celanese,
the Supreme Court identified four reasons why a presumption of prejudice should
apply once possession of privileged information is established, and why the
party who obtained the confidential information to which they are not entitled
should bear the onus of rebutting this presumption. All of these reasons are
applicable to the case at bar, although with some modifications.
[62]
First,
the Ministers are best positioned to discharge the burden of establishing that
there was no prejudice to Mr. Jaballah. He has no knowledge of who had contact
with the solicitor-client communications and how the information was handled.
The Ministers do.
[63]
Second,
putting the onus on the party conducting the search (or in this case, the
monitoring) increases the incentive on its part to take care to ensure that
privileged information is appropriately protected in the first place. This
factor is particularly relevant in circumstances where Mr. Jaballah was
required to consent to the monitoring in order to be released from lengthy
detention, and where it appears that monitoring of solicitor-client
communications continued after December 2008, contrary to the Release Order and
the assurances given by the Ministers.
[64]
Third,
the Supreme Court found that in the circumstances of an Anton Piller
order, it was procedurally unfair to subject a party to a surprise search where
solicitor-client information is seized under an extraordinary order, and then
throw the onus on the party subjected to the seizure to demonstrate prejudice. While
the facts of this case are considerably different it is nonetheless
procedurally unfair to require Mr. Jaballah to bear the onus of demonstrating
prejudice caused by the solicitor-client breaches, in circumstances where he
was required to grant the Ministers extraordinary access to his communications
in order to be released from lengthy incarceration.
[65]
Finally,
the Supreme Court noted that under the terms of the Anton Piller order, Celanese
should have kept careful records, and should be able to discharge the onus of
rebutting the presumption of prejudice. While the Ministers in this case are
not subject to the terms of an Anton Piller order, Ministers’ counsel
emphasized that the handling of information by his clients is subject to very
strict regulation. The Ministers should therefore also be able to discharge the
onus to rebut the presumption of prejudice.
[66]
If
the Ministers’ argument that Celanese has no application is correct, and
it was only the client that had access to the solicitor-client communications,
how is one to know whether the instructions given to counsel in the conduct of
the proceeding were tailored to undermine positions or strategies of the
opposing party? There is no evidence on this motion that such is the case.
However, that prospect is clearly there if the client has access to
solicitor-client communications. In my view, this would bring the
administration of justice into disrepute. Thus, Celanese cannot be
narrowly interpreted to mean that only if solicitor-client communications fall
into the possession of the opposing party, as opposed to their counsel, there
has been a breach of solicitor-client privilege.
[67]
The
real issue is whether the Ministers can rebut the presumption of prejudice,
given the information in the record regarding CBSA and CSIS’ handling of
solicitor-client communications, and the assurances given that solicitor-client
information was not used or relied on.
[68]
Further,
although the Release Order can be read as permitting the interception of
solicitor-client privileged communications, for the reasons noted above this
does not legitimize the possession by the Ministers of the solicitor-client
information nor does the Release Order compel the Ministers to intercept
solicitor-client communications. It can be said just as easily that the
possession of solicitor-client mail was required by the Release Order, yet the
protocol utilized by CBSA was that such mail was not to be opened. The Release
Order is permissive and does not require CSIS to intercept. If there was any
doubt by CSIS, as there should have been, then all parties should have
immediately returned to Court.
[69]
For
all of these reasons, it is my view that a breach has been made out which opens
the door to production of documentation as discussed below.
Issue
Three:
Is Mr. Jaballah entitled to disclosure of the secondary documents under
s. 7 of the Charter and/or Charkaoui II?
Mr. Jaballah’s Position
[70]
In
his written representations, Mr. Jaballah states that this motion is intended
to provide him with the information he needs to litigate his forthcoming Charter
application fairly and efficiently. He asserts that he must have access to
this information in order to make full answer and defence in the proceedings
against him.
[71]
At
the hearing, Mr. Jaballah placed significant reliance on his section 7 right to
procedural fairness. In his view, the Minister’s breach of solicitor-client
privilege has the potential to compromise the fairness of the proceedings
against him. It would be contrary to the principles of fundamental justice for
the Ministers to breach solicitor-client privilege, and then use the fruits of
the breach against Mr. Jaballah, either directly or indirectly.
[72]
Refusing
disclosure of relevant documentation would therefore allow the state to breach solicitor-client
privilege in a fundamental way, and then force the individual to take their
word that the breach has been rectified. The state should not be allowed to
withhold information that goes directly to the fairness of the proceedings.
The Minister’s Position
[73]
The
Ministers contend that Mr. Jaballah’s motion must fail, because it is based on
the right to make full answer and defence, a concept which does not apply to
security certificate proceedings.
[74]
They
further argue that even if the concept of full answer and defence could be
imported into security certificate proceedings, it does not apply in the
context of an abuse of process motion, for two reasons. First, Mr. Jaballah’s
innocence is not at stake, and second, he is the moving party. Mr. Jaballah
cannot claim a right to make full answer and defence in regard to his own
application. He cannot engage in a fishing expedition under cover of full
answer and defence by launching an abuse of process motion.
[75]
The
Ministers argue that the right to disclosure in security certificate cases is
founded on the section 7 right to procedural fairness, not on full answer and
defence. Specifically, it is founded on the right to know the case made by the
Ministers in support of the reasonableness of the certificate. The documents
sought by Mr. Jaballah have nothing to do with the case made by the Ministers,
or the reasonableness of the certificate. Therefore, Mr. Jaballah is not
entitled to production of these documents under the Charkaoui II principles.
Discussion
[76]
Security
certificate cases are not conducted pursuant to principles evolved from
criminal law. They are sui generis proceedings (see Charkaoui v. Canada (MCI),
2004 FCA 421, [2005] 2 F.C.R. 2009 at para. 53). They are a hybrid
proceeding with a different burden of proof and a legislative admonition (see paragraph 83(1)(a) of IRPA)
which requires that these proceedings be conducted as informally and
expeditiously as the circumstances and considerations of fairness and natural
justice permit.
[77]
Full
answer and defence is a criminal law concept. It has no automatic application
to certificate cases. While Mr. Jaballah raises this concept in support of his
forthcoming Charter application, whether it applies or not need not be
decided on this motion.
[78]
The
simple answer to this issue is based on procedural fairness. It is neither
procedurally nor fundamentally fair for the Ministers to access
solicitor-client communications, many of which are privileged, and have the
ability to use that information directly or indirectly against the interests of
Mr. Jaballah. There is no evidence that either CBSA or CSIS have done so, but
the fact remains that they have accessed and were in possession of such
communications. The documents sought in question go to the fundamental fairness
of the proceeding. It is not a question of Mr. Jaballah knowing the case he
has to meet, but rather knowing the extent to which information obtained
through the intercepts has been used, directly or indirectly.
[79]
In Charkaoui
II the Supreme Court emphasized the flexible nature of the Charter’s
section 7 rights to procedural fairness. Section 7 does not require a
particular procedure. The appropriate procedural protections are determined
through a contextual analysis, based on the factors set out in Suresh v.
Canada (MCI), 2002 SCC 1, [2002] 1 S.C.R. 3: the nature of the decision to
be made, the role of the particular decision in the statutory scheme, the
importance of the decision to the individual affected, the legitimate
expectations of the person challenging the decision, and the choice of
procedure made by the agency (Charkaoui II, at para. 57).
[80]
Applying
the Suresh factors to the security certificate context, the Supreme
Court held that:
In
the context of information provided by CSIS to the ministers and the designated
judge, the factors considered in Suresh confirm the need for an expanded
right to procedural fairness, one which requires the disclosure of information,
in the procedures relating to the review of the reasonableness of a security
certificate and to its implementation. As we mentioned above, these procedures
may, by placing the individual in a critically vulnerable position vis-à-vis
the state, have severe consequences for him or her (Charkaoui II at
para. 58).
[81]
The Ministers
argue that Charkaoui II disclosure should be limited to information
relating to the reasonableness of the certificate. I do not agree that Charkaoui
II should be read so restrictively. As Mr. Jaballah’s counsel noted, when
discussing the procedural rights accorded by section 7, the Supreme Court used
the word ‘includes’ (see, for example, paragraph 56), which does not suggest a
restrictive approach.
[82]
More
importantly, I do not think that Mr. Jaballah’s right to procedural fairness is
limited to the determination of the reasonableness of his certificate. While
it is clear that the procedure for determining the reasonableness of Mr.
Jaballah’s security certificate must be in accordance with the principles of
fundamental justice, it is also true that Mr. Jaballah’s detention engages his
section 7 rights by limiting his liberty. The circumstances of his detention,
including the monitoring of his communications, must also be in accordance with
the principles of fundamental justice. Fundamental justice includes the
principle of solicitor-client privilege (Lavallee, Rackel & Heintz,
above, at para. 26), and also includes the common law principles of procedural
fairness (Suresh, above, at para. 113). Thus, even if Charkaoui
II could be read as limited to disclosure relating to the reasonableness of
the certificate, section 7 procedural fairness rights are still applicable in
this motion.
[83]
The
link between disclosure and the fairness of the proceedings is most obvious
when the disclosure is related to the reasonableness of the certificate;
because Mr. Jaballah must know the case he has to meet. The difficulty on this
motion is that the link between the disclosure requested by Mr. Jaballah and
the fairness of the proceedings is much less direct. This motion does not
directly challenge the fairness of the proceedings against Mr. Jaballah: “the
Court is not at this stage being called on to decide whether the
interception of Mr. Jaballah’s solicitor-client telecommunications has
prejudiced the fairness of the proceedings against him” (para. 38 of the
Jaballah Written Representations). Yet, in order to grant the remedy requested
under section 7, the Court must find that disclosure is necessary to ensure the
proceedings are fair.
[84]
Similarly,
the motion is not simply a claim for breach of solicitor-client privilege, an
issue which presumably will also be dealt with in the Charter
application. Because solicitor-client privilege is a substantive right, this
may be sufficient grounds on which to order the relief requested, without
relying on the Charter. In Descôteaux v. Mierzeinski, [1982] 1
S.C.R. 860, the Supreme Court recognized that a breach of solicitor-client
privilege can give rise to a variety of remedies:
Like other personal, extra-patrimonial rights, it gives rise to
preventive or curative remedies provided for by law, depending on the nature of
the aggression threatening it or of which it was the object. Thus a lawyer who
communicates a confidential communication to others without his client's
authorization could be sued by his client for damages; or a third party who had
accidentally seen the contents of a lawyer's file could be prohibited by
injunction from disclosing them.
[85]
Instead,
Mr. Jaballah argued that he needs disclosure in order to pursue his forthcoming
Charter application. I am not satisfied this is sufficient grounds to
justify granting disclosure, particularly if full answer and defence does not
apply outside of the criminal law context. However, under section 7 of the Charter,
the question is whether production of the collateral documents is necessary in
order to ensure the proceedings against Mr. Jaballah are fundamentally fair.
[86]
In
this motion, given that the impact of the interceptions on the fairness of the
proceeding cannot be determined yet, is it not reasonable to find that
disclosure of the collateral documents are necessary in order to determine whether
the solicitor-client breach has impaired the fairness of the proceedings? When
viewed in this light, disclosure is necessary to ensure the proceedings are
fair.
[87]
There
are several factors which suggest these documents should be disclosed in order
to ensure the procedure against Mr. Jaballah is fair. As the Supreme Court
noted at paragraph 54 of Charkaoui II, “[i[nvestigations by CSIS
play a central role in the decision on the issuance of a security certificate
and the consequent removal order”. If CSIS (or CBSA) agents have been
monitoring solicitor-client communications, the potential impact on the
fairness of the proceedings, depending on the ultimate evidence before the Designated
Judge hearing the abuse motion, against Mr. Jaballah may be very significant.
[88]
In
this case the record establishes at least a prima facie breach of
solicitor-client privilege. As solicitor-client privilege has now been
recognized as a principle of fundamental justice, this may mean, again
contingent on the evidence, that the proceedings against Mr. Jaballah have not
been conducted in accordance with the principles of fundamental justice. In
order to ensure the proceedings are fair, Mr. Jaballah should be assured that
the monitoring has stopped, and should know the extent to which his
solicitor-client communications have been used and handled by the CBSA and
CSIS. Currently, only the Ministers know exactly how the solicitor-client
communications were handled, while Mr. Jaballah’s knowledge remains limited. Ordering
disclosure would put the parties on a level playing field on this issue.
[89]
Even
if CBSA and CSIS have not used or relied on the solicitor-client communications
such that the fairness of the proceedings against Mr. Jaballah would be
substantively impaired, the appearance of fairness is also important.
[90]
While
Charkaoui II deals with knowing the case which must be met, it does not
throw out the concept of fundamental or procedural fairness. Documentation
must therefore be produced.
[91]
Finally,
it should be noted that there is no evidence that ordering production would
cause any prejudice to the Ministers in this proceeding. Any disclosure is
subject to the Ministers’ own claims of privilege.
Issue
Four:
What is the scope of the documents to be produced, if any?
Position of the Parties
[92]
The
list of documents requested is set out at the outset of theses reasons as
enumerated at paras. 41-43 of the Jaballah Written Representations. As noted
during argument, the request is wide-ranging because counsel do not know what
documents there are or what documents may have been generated in the course of
the monitoring of the solicitor-client communications. Thus, Mr. Jaballah has
requested documents related to the question of how far information from the
solicitor-client intercepts was disseminated, as well as documents bearing on
the decision-making process that led CBSA and CSIS to intercept, review and
record solicitor-client communications, and steps taken to implement CSIS
counsel’s December 2008 undertaking and the Court’s March 9, 2009 amended
Release Order requiring CSIS analysts to stop listening to all solicitor-client
interceptions and destroy them.
[93]
The
Ministers simply take the position that no collateral documents should be
produced.
Discussion
[94]
Based
on the conclusions on the first three issues, it is my view that Mr. Jaballah
is entitled to production of documentation relating to the interception of his solicitor-client
communications. The scope of that production is more problematic, as it is
understandable that a wide net has been cast by Mr. Jaballah in search of
documentation to assist in the abuse of process of motion.
[95]
However,
production
should only be ordered to the extent it is necessary to ensure the fairness of
the proceedings against Mr. Jaballah. As discussed above, in order to
determine whether the proceedings are fair, it is important to know how the
solicitor-client intercepts were handled. Further, Mr. Jaballah should be
satisfied that the monitoring has stopped, and should know what has been done
to ensure it has stopped. However, document production should not be an
endless fishing expedition. There must be reasonable limits.
[96]
Thus,
dealing with the various categories of documents outlined in Mr. Jaballah’s Written
Representations:
·
the
July, 2006 Harkat Guidelines and the subsequent September, 2007 replacement
guidelines
In my view, as these documents appear to set out
a protocol for the interception of solicitor-client communications they are
relevant and should be produced. The Special Advocates appear to have received
or reviewed copies of them but public counsel have not. It is not readily
apparent why such guidelines have not also made available to public counsel
except to say that national security privilege must have been asserted by the
Ministers. In keeping with the protocol established for this production motion
(the Production Protocol), if the Ministers continue to assert national
security privilege over these guidelines then they will be reviewed by a
Designated Judge to determine if they should be produced to public counsel in
their entirety or in some redacted form.
·
Records
or logs indicating when the solicitor-client intercept recordings were accessed
by CBSA and CSIS analysts, along with the frequency and duration of these
accesses
Any such documents are also relevant to the
issue of knowing the scope of knowledge of the Ministers regarding discussions
between Mr. Jaballah and his counsel.
·
Any
memos, letters or other documents establishing practices or procedures
governing the sharing of information between CSIS and CBSA derived from the
interceptions in any of the security certificate cases (i.e. Harkat,
Mahjoub and Jaballah)
The argument for their
production was that these documents deal with how the fruits of the
interceptions could be disseminated. As opposed to fairness, they are more
directed to the abuse of process motion. To the extent that there are documents
which establish any practices of sharing information between CSIS and CBSA they
would be relevant and should be produced.
·
Any
memos, written instructions or other documents relating to the practices to be
followed by CBSA and CSIS analysts in relation to solicitor-client intercepts
This category of documents appears to be the
same as the Harkat Guidelines. To the extent there are documents in addition
to the Harkat Guidelines which fall within this description they should also be
produced.
·
Any
reports, memos or other documents that refer to the content of any of the
Jaballah intercepts, whether solicitor-client privileged or otherwise
Any such documents are directly relevant to fairness
in this proceeding as they will demonstrate the extent to which any
solicitor-client information was accessed or in any way used. Again, if
national security privilege is claimed in respect of any of these documents
then the Production Protocol will apply.
·
Documents
relating to the decision-making process that led CBSA and CSIS to intercept,
record and review privileged solicitor-client telephone calls in Mr. Jaballah’s
case and in other certificate cases (Harkat and Mahjoub)
This request appears to be largely repetitive of
other groups of documents i.e. the Harkat Guidelines, and related documents
which have been dealt with above. The individual descriptions of the
categories of documents casts the net too wide as they may include, for
example, privileged communications. This category must therefore be limited to
documents relating to: the creation of the two sets of Harkat Guidelines; the
scope of the Release Order relating to Mr. Jaballah and the handling of
solicitor-client communications; and the discovery that CSIS was intercepting
Mr. Jaballah’s solicitor-client communications. Documents are also sought from
the Harkat and Mahjoub proceedings because the discovery that solicitor-client
communications were being intercepted occurred in the Harkat case. However,
this request is too open-ended. Production must be limited to communications
between CBSA and CSIS that directly relate to the approach taken in this case
involving Mr. Jaballah.
·
Documents
relating to the steps taken to implement the undertaking given to the Court in
December 2008 and the Court’s Order directing that CSIS cease listening to
solicitor-client communications and to destroy the recordings.
The post-December 2008 period is relevant to
fairness and abuse of process. Thus, documents relating to the continued
interception of solicitor-client communications should be produced and would
encompass any documents of CSIS or CBSA regarding the handling, review and
destruction of solicit-client communications; documents relating to the
knowledge of CSIS or CBSA regarding the undertaking to the Court and the
revised term of the Release Order concerning solicitor-client communications;
and documents relating to the continuation of the interception of
solicitor-client communications after December 2008.
Conclusion
[97]
In
the end result, for all of the reasons noted above I am satisfied that Mr.
Jaballah is entitled to production of documents which directly impact on his
ability to know the extent of the policies of CBSA and CSIS regarding
solicitor-client interceptions generally and as they relate specifically to him
and the extent to which either or both of CBSA or CSIS have used any
information gleaned from listening to intercepts. As was conceded during
argument by Mr. Jaballah’s counsel, those documents are difficult to more
accurately define because they do not know the nature of the documents
maintained by CBSA and CSIS. Thus, the parties may return to the Court for
further clarification in the event there is any issue concerning the scope of
production that is not apparent from these reasons.
Email this Content