Date : 20110714
Docket: DES-7-08
Citation:
2011 FC 887
Ottawa, Ontario,
July 14, 2011
PRESENT: The
Honourable Mr. Justice Blanchard
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 Mohamed Zeki
MAHJOUB
|
|
|
|
|
|
|
|
|
REASONS FOR ORDER AND
ORDER
[1]
By
oral motion made on June 9, 2011, Public Counsel on behalf of Mr. Mahjoub, seek
an order that solicitor client privilege has been waived and that disclosure
should be made of all communications in relation to legal advice to:
(a) Canadian Security Intelligence
Service (CSIS):
i.
In relation to section
21 of the Canadian Security Intelligence Service Act, RSC, 1985, c C-23,
(the CSIS Act) warrants in relation to CSIS counsel and the independent Department
of Justice (DOJ) counsel;
ii.
In relation to CSIS
interceptions of solicitor-client communications on behalf of Canadian Border
Services Agency (CBSA); and/or
iii.
In relation to how
CSIS should respond or react to the December 2008 Order of the Court; and/or
(b) CBSA in relation to CSIS
interceptions of communications on behalf of CBSA.
Introduction
[2]
Counsel
for Mr. Mahjoub contend that, as a result of evidence elicited by the Ministers
in direct examination of certain witnesses, namely Mr. Vrbanac and Mr.
Flanigan (both from CSIS), and Ms. Deschenes (from CBSA), the Ministers have
implicitly waived solicitor-client privilege in respect to legal advice
provided to CSIS and the CBSA.
Facts giving rise to the
issue
[3]
The
issue was
first raised during the cross-examination of Mr. Vrbanac when the Ministers, on
an objection, disavowed any reliance on legal advice to advance good faith.
[4]
During
his examination-in-chief, Mr. Vrbanac was asked questions relating to the
section 21 warrant application process followed by CSIS in order to obtain a
warrant. The questions related to: the preparation of the case brief in
collaboration with CSIS legal services; the reason CSIS legal services was
involved in the process; the draft affidavit reviewed by the independent DOJ
counsel, the independent DOJ counsel’s certificate; and the different roles of
the independent DOJ counsel and CSIS legal services unit. In explaining the
process and its various checks and balances, the witness stated that the
process included a review of the warrant affidavit by CSIS legal unit for the
purpose of ensuring the legal threshold was met to obtain the warrant powers
sought and satisfy the Court. The witness also testified that the process
provided for a review of the draft affidavit prepared in support of the warrant
by an independent DOJ counsel for the purpose of challenging the information.
Following the review the independent DOJ counsel would issue a certificate if
satisfied the facts and the operational information was justified.
[5]
The
examination-in-chief of Mr. Flanigan, for the most part, related to the CSIS
intercepts of solicitor-client communications on behalf of CBSA by CSIS. Mr.
Flanigan was asked about his understanding of the arrangement at the time it
was being negotiated. In response to questions from Ministers’ Counsel, he
stated that CSIS received legal advice relating to its role as agent for CBSA.
The witness also testified having received legal advice in response to the
December 2008 Court Order.
[6]
During
her examination-in-chief Ms. Deschenes was asked about CBSA’s logistics
relating to the monitoring of Mr. Mahjoub’s communications. Her responses
included that the CBSA was working with DOJ lawyers and other supervisors to
ensure CBSA’s compliance with the Court Order, the Privacy Act and
government rules.
[7]
The
issues relating to legal advice relied upon raised during examination-in-chief
were pursued on cross-examination by Public Counsel with each of the three
witnesses.
[8]
Transcripts
of the pertinent evidence adduced on examination-in-chief of each of the three
above-named witnesses relating to issues raised on this motion are reproduced
in the Annex to the within Reasons for Order and Order.
The Law
[9]
Waiver
of solicitor-client privilege is established when the possessor of the
privilege knows of the existence of the privilege and voluntarily indicates an
intention to waive it: K.F. Evans Ltd v Canada (Minister of Foreign
Affairs),
[1996] FCJ No 30 (Lexis), (1996), 106 FTR 210 (T.D.) There may also be waiver
by implication. The concept of implied waiver is addressed in Sopinka, Lederman
and Bryant, The law of Evidence in Canada 3d ed. (Toronto: LexisNexis Canada Inc.
2009) at 959:
As
to what constitutes waiver by implication, Wigmore said:
Judicial
decision gives no clear answer to this question. In deciding it, regard must be
had to the double elements that are predicated in every waiver, i.e. not only
the element of implied intention, but also the element of fairness and
consistency. A privileged person would seldom be found to waive, if his
intention not to abandon could alone control the situation. There is always
also the objective consideration that when his conduct touches a certain point
of disclosure, fairness requires that his privilege shall cease whether he
intended that result or not. He cannot be allowed, after disclosing as much as
he pleases, to withhold the remainder. He may elect to withhold or to disclose,
but after a certain point his election must remain final.
[10]
The
jurisprudence supports the following propositions relating to implied waiver of
the privilege:
(a) waiver
of privilege as to part of a communication will be held to be waiver as to the
entire communication. S. & K. Processors Ltd. v Campbell Ave. Herring
Producers Ltd (1983), 35 CPC 146, 45 BCLR 218 (SC) (S & K);
(b) where
a litigant relies on legal advice as an element of his claim or defence, the
privilege which would otherwise attach to that advice is lost. (S & K);
(c) in
cases where fairness has been held to require implied waiver, there is always
some manifestation of a voluntary intention to waive the privilege at least to
a limited extent. The law then says that in fairness and consistency, it must
be entirely waived. (S & K);
(d) the
privilege will deemed to have been waived where the interests of fairness and
consistency so dictate or when a communication between a solicitor and client
is legitimately brought into issue in an action. Bank Leu Ag v Gaming
Lottery Corp., [1999] OJ No 3949 (Lexis); (1999), 43 C.P.C. (4th)
73 (Ont. S.C.) at paragraph 5;
(e) the
onus of establishing the waiver rests on the party asserting waiver of the
privilege. (S & K at paragraph 10).
Mr. Mahjoub’s position
[11]
Mr.
Mahjoub argues that by eliciting the evidence of the three witnesses summarized
above, the Ministers have waived solicitor-client privilege in relation to the
legal advice described. He contends that there was no reason for the Ministers
to elicit the evidence except to indicate that they relied upon legal advice as
a justification for a position or approach they took on an issue, when that
position or approach is alleged to be an abuse of process. It is argued that by
necessary implication the witnesses were saying that they sought, obtained and
relied upon legal advice to ensure that they were acting properly and lawfully,
in other words, with due diligence and in good faith.
[12]
In
response to the contention that the Ministers made no express waiver of the
privilege and that Ministers’ Counsel expressly stated that the Ministers had
no intention of waiving the privilege, Mr. Mahjoub asserts that it is not
the position of the Ministers’ counsel, but rather the facts and the evidence
of the witness on behalf of the client that mattered in deciding whether
privilege is waived.
[13]
Mr.
Mahjoub also asserts a fairness argument by arguing that the Ministers cannot
voluntarily present evidence that clearly implies due diligence or good faith
by reliance on advice of counsel and then rely on privilege to prevent
challenge to that implication. Mr. Mahjoub relies on R. v Campbell, [1999] 1 S.C.R. 565, for
this proposition.
[14]
Finally,
Mr. Mahjoub points to certain excerpts of the evidence of Mr. Flanigan in
support of his contention that the Ministers have waived privilege by
testifying about the nature of the legal advice. Upon review of the evidence in
respect to this assertion by Mr. Mahjoub, I am satisfied that the allegation
has no merit. Considering the line of questions put to the witness in context,
I am satisfied that neither the nature of the legal advice nor any part thereof
was disclosed by this evidence. I reproduce the relevant passage of the
transcripts below:
Q. We’ll get to that. At the time when
the arrangement was being negotiated what was your understanding about dealing
with solicitor/client calls?
A. At the time the arrangement was being
put in place, the terms and conditions of the court order specified all
communications were to be monitored, this was a consensual arrangement. We had
legal advice on our role as an agent for CBSA and because it wasn’t something
that was falling under our normal warranted intercept programs under section
21, we put in place methodology that was consistent with the directions
contained in the Court order.
Q. What was that?
A. All communications were monitored and
reported to CBSA.
[15]
In
my view the witness’ answer, “All communications were monitored and reported to
the CBSA” was responsive to the methodology referred to in the prior answer
given and not the legal advice obtained on CBSA’s role.
The Ministers position
[16]
The
Ministers, in response, argue that, in all the circumstances, there has been no
implied waiver, nor any partial disclosure of privileged information which
would support a finding of waiver. The Ministers’ submit the jurisprudence is
clear that waiver implies an element of intention to waive on the part of the
client, and there is nothing on the record to indicate any manifestation of the
Ministers’ voluntary intention to waive solicitor-client privilege, explicitly
or implicitly. The Ministers’ argue the R. v Campbell decision relied on by
Mr. Mahjoub can be distinguished on the facts. The Ministers argue that the
critical point in R. v Campbell was that the Crown, after being cautioned
by the Court, expressly relied on the legal advice as evidence of good faith.
The Ministers’ submit they took a different approach in the present case by
stating their clear position of disavowing on any reliance on legal advice to
advance good faith. The Ministers are of the view the Court must take into
consideration this explicit statement of the Ministers and that a decision to
go behind solicitor-client privilege cannot be based simply on Mr. Mahjoub’s
inference of what the purpose of the evidence is.
Analysis
[17]
On
the evidence, I find no manifestation of a voluntary intention to waive the
privilege by the Ministers. In his examination-in-chief Mr. Vrbanac was questioned
in relation to certain process engaged in by CSIS to obtain a warrant under
section 21 of the CSIS Act. In my view, his testimony is about describing the
applicable process and not about injecting in the process the legal advice as
an element of the Ministers’ claim of defence. There is a difference between
adducing evidence to describe a particular process which involves legal advice
relating to the application of facts to certain legal thresholds and relying on
legal advice to justify an illegal activity. This is particularly so when the
process is described without reference or disclosure of any of the legal
advice. In the instant case, the Ministers took care in assuring the content of
the legal advice was not elicited in its examination-in-chief and advised the
Court the legal advice would not be relied upon to advance their argument that
they were acting properly and lawfully. The same reasoning is applicable to the
evidence of Mr. Flanigan and Ms. Deschenes.
[18]
The
Supreme Court decision of R v Campbell relied upon by Mr. Mahjoub can be
distinguished on the facts. The critical point in that case is that the Crown
relied on the legal advice as evidence of good faith. Further, in Campbell at paragraph 70, “the
existence or non-existence of the asserted good faith depended on the content
of that legal advice”. As stated above, the circumstances here are far
different.
[19]
The
circumstances that would lead a Court to find an implied waiver based on the
principles articulated at paragraphs 9 and 10 above simply do not arise on the
evidence before me. In the result, I do not find an implied waiver of
the privilege as alleged by Mr. Mahjoub.
Conclusion
[20]
For
the above reasons, the motion will be dismissed.
ORDER
THIS COURT
ORDERS that the motion is dismissed
“Edmond P. Blanchard”
ANNEX
Excerpts of transcript of evidence of Mr.
Vrbanac
June 3, 2011
Page
9 to 14
Q. Can you describe to the
court the internal process for the Service to initiate a section 21 warrant?
A. Certainly, before the
headquarters branch prepares the case brief, the regional office responsible
for the investigation determines that the investigation reached a point where
more intrusive techniques are required; consequently, the application or the
request to obtain technical and warranted powers under section 21 of the CSIS
Act, a request is submitted to the responsible headquarters branch. Before it
progresses from the branch to legal services, there is a determination made
within The Service that these powers are needed, and the threat has reached the
point of being reasonable, there’s a reasonable grounds to believe the
activities represent a threat to the security of Canada.
When that threshold
is met the case is presented to CSIS legal services who also review the facts
presented before them to ensure that that threshold has been met. In preparing
the case brief the headquarters branch uses information in The Service’s
operational data bases to justify the activities that represent a threat and to
demonstrate the need to seek intrusive powers. That case brief is prepared for
the legal services to begin the process.
Q. Without telling the
Court what advice is provided by legal services, can you tell us why CSIS legal
services is involved in this process?
A. Certainly. The
determination of whether or not the test has been set is made or is proposed by
both the headquarters and the regional branch and it’s put before legal counsel
to ensure that the threshold is consistent with the legal requirements to
satisfy the Court that the powers are required as stated under the warrant,
under the CSIS Act.
So it’s the legal
advice that challenges the facts presented by the officers to ensure that we
have that substantive case to present to the court.
Q. Thank you. The next
place I would like to take you to is marked as letter H on page 2. It’s
speaking about, “The draft affidavit along with the schedule of facts are
reviewed by independent counsel, another Department of Justice lawyer who does
not work in CSIS legal services.” Can you describe what information is provided
to independent counsel for their review?
A. Certainly, the
independent counsel is provided with all of the operational reporting used to
justify the affidavit. For almost every sentence in the affidavit that provides
a statement of fact there’s an operational report to coincide with that
statement and it’s the job of the independent counsel to challenge both The
Service and CSIS legal to explain how the statement in the affidavit is
consistent with the operational report and where the facts coincide to make
those statements in the affidavit.
Because the process
is done ex parte, the introduction of the independent counsel provides an
unbiased, I guess outside The Service review, review of the affidavit to ensure
there is substantial justification for the information in the affidavit.
Q. Continuing on in that
paragraph, I want to draw your attention to the second last, sorry, the last
sentence, where it speaks to the independent counsel’s certificate. Can you
describe to the Court what an independent counsel certificate is?
A. It’s my understanding
after the process of facting and a review of the affidavit and the facts are
completed, the independent counsel signs a certificate explaining that they
have gone through this process, they have reviewed the facts and are satisfied
that the operational information is justified by the operational information.
So that is their final certification that this process has been completed.
Q. Continuing on with that
sentence, it states that the IC certificate – the independent counsel
certificate – changed from, “I have challenged the operational information” to,
“I have challenged some of the operational information.” Can you describe why
that changed?
A. In this particular case
I wouldn’t know specifically why that statement would have changed. I could
assume that either the independent counsel didn’t review every piece of
information in the affidavit, if there is some obvious information, for example,
the address or the location of a building, that may not have been part of the
operational information that was specifically reviewed. So that could be the
reason why the sentence was changed. But in this case I don’t have any
information as to why it would have changed from one to the other.
Pages 16-17
Q. Now, the next point is
L on page 2 and this speaks to how an affidavit and the warrants are reviewed
and approved by CSIS legal services. It certifies that the material complies to
section 21 of the CSIS Act. You’ve spoken about independent counsel.
I just want you to
explain what is the difference between an independent counsel and the CSIS
Department of Legal Service Unit lawyer?
A. The legal services
lawyer represents The Service. It’s a solicitor for CSIS in these matters. In
the final review of the material and the warrant application, it is on CSIS
legal services to ensure that the powers being asked for are consistent with
the threat and the information provided in the affidavit suitably justifies the
request for those powers.
If we don’t have
enough information in the affidavit I would suspect that the advice from
counsel would be you can’t ask for five or ten different types of powers. So
it’s my belief that the information in the affidavit is, or legal services
ensures, there’s sufficient information to justify the powers being asked.
----------------------------------------------------
Excerpts from transcript of examination
of evidence of Mr. Flanigan
June 21, 2011
Page
43
Q. We’ll get to that. At
the time when the arrangement was being negotiated what was your understanding
about dealing with solicitor/client calls?
A. At that time the
arrangement was being put in place, the terms and conditions of the court order
specified all communications were to be monitored, this was a consensual
arrangement. We had legal advice on our role as an agent for CBSA and because
it wasn’t something that was falling under our normal warranted intercept
programs under section 21, we put in place methodology that was consistent with
the directions contained in the Court order.
Q. What was that?
A. All communications were
monitored and reported to CBSA.
Page 50-51
Q. Before appearing in
court, did you give any direction or what was your response to it?
A. In response to the
Court proceedings and legal advice we received we issued a direction to the
regions that they were to cease monitoring any solicitor/client communications
and to ensure that any copies of any material that may have been held relative
to CBSA monitoring was deleted.
Q. That would have been in
response to Justice Layden-Stevenson’s order?
A. That’s correct.
-----------------------------------------------------
Excerpts of the transcript of the
examination of evidence of Ms. Deschenes
June 27, 2011
Page
25
Q. Now, we talked about
arranging for CSIS to act on CBSA’s behalf. I’d like to ask you about the
logistics of how the monitoring was going to take place. Were you involved in
discussions in July of 2006 with respect to how that was going to happen?
A. I was involved at a
high level. Certainly I was involved with Ted Flanigan and CSIS brought sort of
a general framework of how they intercepted communications. We took that and
then my Director General of Intelligence, Caroline Melis, and Louis Dumont, the
Director of Security Review would have been working with our DOJ lawyers and
other supervisors to make sure what we were doing was meeting the requirements
of the Court, and we weren’t doing anything that was not appropriate under the
privacy act or the government rules.
Email this Content