Docket: DES-3-15
Citation:
2015 FC 1398
Ottawa, Ontario, December 18, 2015
PRESENT: The Honourable Madam Justice Kane
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BETWEEN:
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JOHN STUART
NUTTALL and
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AMANDA MARIE
KORODY
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Applicants
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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PUBLIC ORDER AND REASONS
I.
Background
[1]
On June 2, 2015, following a jury trial in the
British Columbia Supreme Court, the applicants were convicted on two counts of
terrorism related offences arising from events which occurred in June 2013. The
Trial Judge has not entered the guilty verdicts pending the determination of a
motion by the applicants seeking a remedy based on entrapment and abuse of
process. In the context of the applicants’ motion, the Trial Judge has
considered and ordered production and disclosure of other specific documents,
including from the Royal Canadian Mounted Police (RCMP) and the Canadian
Security Intelligence Service (CSIS).
[2]
This Court has reviewed, among other
information, the Trial Judge’s Chronology of Events and Overview of the
Evidence, the June 25, 2015 Oral Ruling on the Disclosure of CSIS related
Information, the affidavit of Ms. Marilyn Sandford dated October 5, 2013 which
references the Order of the British Columbia Supreme Court dated September 17 ,
2015 and the documents ordered to be produced to the applicants based on the
Trial Judge’s review of the documents in accordance with the two step O’Connor
approach. This material has provided context for the consideration of the
issues before this Court.
[3]
On July 10, 2015 the applicants filed an
application with this Court pursuant to section 18.1 of the Canadian
Security Intelligence Service Act (CSIS Act ) seeking an order with
respect to whether a particular individual is a human source as defined in
section 2 of the CSIS Act.
[4]
The applicants seek, pursuant to paragraph
18.1(4) (a) an order declaring that the particular individual is not a human
source. Alternatively, the applicants seek an order pursuant to paragraph
18.1(4)(b), that if this Court determines that the particular individual is a
human source, information in the possession of CSIS relating to that individual
be disclosed to the applicants or that a judicial summary of the information in
the possession of CSIS be provided by this Court to the applicants for the
purpose of their defence, more particularly, their allegations of entrapment
and abuse of process, in the proceedings before the British Columbia Supreme
Court. The applicants submit that such disclosure is essential to establish
their innocence in those proceedings.
[5]
This Court has held several case management
conferences to advance the application and address the procedure that should be
followed with respect to section 18.1, a recently enacted provision, which does
not provide details of the procedure to be followed and does not set out the
threshold to be met.
[6]
The parties agreed that the application should
be considered in three stages: first, to determine whether the affidavit of Ms.
Sandford, which sets out the facts relied on in support of the application, is
appropriate and may be received by this Court; second, to determine the scope
of the definition of “human source”, the
threshold that the applicants’ must meet to advance their application for an
order that the individual is or is not a human source and whether the
applicants have met the applicable threshold; and, third, to determine whether
an order should be made pursuant to subsection 18.1(4)(a) or (b) and the
conditions, if any, that should be imposed pursuant to subsection 18.1(8).
[7]
The applicants have diligently pursued their
application and have highlighted that its determination should be made in a
timely manner given that the section 18.1 determination will have an impact on
the ongoing proceedings in the British Columbia Supreme Court.
[8]
In an Order dated November 25, 2015, the Court
found that the affidavit of Ms Sandford is admissible and that it sets out
sufficient facts to permit the application to proceed to the next stages. The
Court also noted that the parties had made preliminary submissions on the threshold
to be met, and expressed the preliminary view that the jurisprudence in the
criminal context provides helpful guidance. The parties were invited, as
agreed, to make more detailed submissions on the applicable threshold and
whether it had been met.
[9]
Given the Reasons for Judgment issued by Justice
Mosley in Attorney General of Canada v Almalki et al 2015 FC 1278, (Almalki
2015) issued on November 23, 2015, the parties were invited, by a Direction
dated November 25, 2015, to provide submissions on the impact of Almalki
2015 on this application along with their submissions on the threshold to
be met pursuant to section 18.1.
II.
The Issue
[10]
Upon consideration of the submissions of the
parties and of the amicus on the impact of Almalki 2015 and the
jurisprudence cited therein, the issue to now be addressed is whether this
Court has the jurisdiction to determine the section 18.1 application now before
it.
[11]
The Reasons for Judgment of Justice Mosley in Almalki
2015 arose in the context of civil proceedings which were initiated over a
decade ago in the Superior Court of Justice of Ontario. In those proceedings,
the Attorney General of Canada applied for an order to prohibit the disclosure
of information pursuant to section 38 of the Canada Evidence Act.
[12]
In an earlier decision (Almalki 2010 in
DES-1-10), the disclosure of certain human source information had been sought.
The Order issued in Almalki 2010 did not authorize the disclosure of the
identities of human sources but did authorize the release of information in some
documents from which the Attorney General argued that the identity of a human
source could be inferred. The Court was not persuaded that disclosure of the
information would in fact reveal the identity of the source (see Almalki
2015 at para. 23).
[13]
The current review of the claims in relation to
the redacted information was initiated by Justice Mosley’s Order of September
19, 2011 where the initial section 38 proceeding continued.
[14]
Due to the coming into force of Bill C- 44, the Protection
of Canada from Terrorists Act, on April 23, 2015, Justice Mosley considered
the submissions of counsel on the interpretation and application of the
amendments, in particular, section 18 and the new section 18. 1 of the CSIS
Act.
[15]
Justice Mosley noted that Bill C- 44 did not
include any transitional provisions to address the temporal application of the
new provisions.
[16]
Justice Mosley described the differences between
the pre-Bill C-44 law and the post-Bill C- 44 law, including that the amended
section 18 maintained the offence of disclosing information about a CSIS
employee and added the requirement that the offence be committed knowingly, but
removed the offence of disclosing information about a CSIS source. The new
section 18.1 created a statutory privilege to protect CSIS human sources.
[17]
One of the issues before Justice Mosley was
whether the statutory human source privilege enacted by section 18.1 applied to
the information sought in the proceedings before him.
[18]
Justice Mosley considered the principles of
statutory interpretation and the jurisprudence governing the temporal
application of legislation. He noted, among other principles, that: it is
presumed that legislation does not operate retroactively or retrospectively,
although the presumption can be rebutted by clear statutory language; purely
procedural provisions have immediate effect and apply to pending and future
matters; rules of evidence are generally regarded as procedural and subject to
the principle that they would apply to pending and future matters; if a rule of
evidence affects substantive or vested rights, it is not purely procedural and
would apply only prospectively; the principles yield where there is clear statutory
language to the contrary (Almalki 2015 at paras 57-62).
[19]
Justice Mosley disagreed with the Attorney
General of Canada’s argument that the relevant point in time to determine the
application of section 18.1 is when the privilege is asserted and not when any
promise of confidentiality may have been given. He noted that CSIS maintains
records on their relationships with human sources and could determine when the
source was promised confidentiality. He further noted that the Parliamentary
record did not suggest that Parliament had considered the application of section
18.1 to matters underway.
[20]
Justice Mosley commented that it appears that
the new class privilege is in response to the Supreme Court of Canada decision
in Canada (Citizenship and Immigration) v Harkat 2014 SCC 37 which found
that a human source privilege did not exist at common law. Therefore, the
legislation could have stated that it was intended to apply to proceedings that
arose before enactment and were continuing, if that were Parliament’s
intention, but it did not. He concluded that for any “fresh
proceedings”, i.e. proceedings enacted after April 23, 2015, section
18.1 would protect the confidentiality “of those
engaged as human sources after April 23, 2015”. In other words, section
18.1 would apply where the proceedings and the relationship with the human
source, (the promise of confidentiality), arose on or after April 23, 2015.
[21]
Justice Mosley also disagreed with the Attorney
General of Canada’s contention that disclosure (in the context of a section 38
proceeding) is a precise event within a proceeding, and, that because
disclosure has not yet taken place, no vested rights to disclosure exist (see Almalki
2015 at para. 107).
[22]
In the proceedings before Justice Mosley, he
noted that the relationships at issue were developed thirteen or more years
previously and the actions were launched at least ten years previously. He
found that applying section 18.1 to information obtained many years earlier
would give the legislation retrospective effect, and went on to consider
whether retrospective effect should be given or whether the legislation affected
substantive rights.
[23]
Justice Mosley noted that the parties agreed
that section 18.1 creates a new rule of evidence, but did not agree whether
that new rule of evidence created substantive rights. He concluded that the
section 18.1 privilege does create substantive rights for human sources and
could have a substantive effect on the scope of the permissible disclosure in
the proceedings before him. He found that it would limit the ability of the
respondents to prove their claims against the Attorney General of Canada and
their ability to establish that their constitutional rights were infringed. As
a result, section 18.1 did not apply. Pre-existing human sources would continue
to be protected by section 38 of the Canada Evidence Act.
[24]
The Court is aware that the Attorney General of
Canada has filed a notice of appeal of Almalki 2015. The Court is also
aware that the Attorney General of Canada argued that section 18.1 should apply
as a rule of evidence to matters underway and that the privilege arises only
when asserted. The Attorney General of Canada makes consistent arguments in the
present case, as noted below. The Court also observes, as noted by the
applicants, that counsel for the Attorney General of Canada also participated
in Almalki 2015 and was aware that the application of section 18.1 was a
live issue in that case and provided submissions to Justice Mosley many weeks
ago, yet did not raise this issue in the context of this application.
III.
The Applicants’ Submissions
[25]
The applicants submit that as a result of Almalki
2015, section 18.1 does not apply to the information sought by the
applicants; the Court does not have jurisdiction to continue to determine the
section 18.1 application.
[26]
The applicants provided an analysis of Almalki
2015 noting the conclusion that the new class privilege enacted by section
18.1 creates substantive rights for human sources which could have a
substantive effect on the scope of permissible disclosure. Therefore, section
18.1 cannot have retrospective application.
[27]
The applicants submit that, although the
decision in Almalki 2015 is not strictly binding, based on the
convention of horizontal stare decisis, the reasoning in Almalki 2015
should be followed because there are no compelling reasons not to do so.
[28]
The applicants submit that the material facts
underpinning the Court’s decision in Almalki 2015 in respect of the
application of section 18.1 are the same in the current circumstances.
[29]
The applicants note that the relationship with
the potential human source at issue in this case would have been developed
before the enactment of section 18.1 and the underlying proceeding (the
criminal prosecution) was initiated prior to the enactment and the proceedings
are ongoing with respect to the applicants’ motion for a stay of proceedings
based on their allegations of entrapment and abuse of process. The applicants
add that the application of section 18.1 to protect or prevent disclosure of
information obtained by CSIS years earlier would impact the scope of
permissible disclosure and may have an impact on the vindication of the
applicants’ Charter rights.
[30]
Accordingly, the applicants ask the Court to
declare that it is without jurisdiction to continue to determine their
application.
[31]
The applicants highlight that if the Court
agrees that it lacks jurisdiction to continue to determine the section 18.1
application, i.e., that section 18.1 does not apply in these circumstances, the
applicants will seek disclosure of the information from the Trial Judge. If
disclosure is ordered, the applicants note that the respondent would then
determine whether to apply for protection of that information pursuant to
section 38 of the Canada Evidence Act. The proceedings to determine that
issue would be determined by the Federal Court.
[32]
The applicants note their efforts in pursuing
the section 18.1 application since July 2015 and note that a change of approach
and reliance on the pre-Bill C-44 law will likely cause further delays. The
applicants emphasize the need for any section 38 application that may eventually
be made to be considered expeditiously.
IV.
The Submissions of the Amicus
[33]
The amicus agrees with the submissions of
the applicants that the Court should follow Almalki on the basis of
horizontal stare decisis and judicial comity.
[34]
The amicus notes the findings of Justice
Mosley, that: applying section 18.1 to information obtained by CSIS prior to
the enactment of the provision would give the enactment retrospective effect;
section 18.1 creates a new class privilege and creates substantive rights for
human sources; and, there could be a substantive effect on the permissible
disclosure. The amicus submits that, as a result, section 18.1 should
not be applied retrospectively.
V.
The Respondent’s Submissions
[35]
The respondent submits that Almalki 2015
is wrongly decided and should not be followed. Alternatively, the respondent
argues that the present case is distinguishable from the circumstances in Almalki
2015 and, therefore, the Court is not precluded from making a determination
on the section 18.1 application.
[36]
The respondent distinguishes Almalki 2015
in three respects: (1) according to the respondent, there was no prior and
ongoing section 38 proceeding and, therefore, the Court’s jurisdiction would
not be ousted; (2) there is no pre-existing proceeding that would have created any
pre-existing substantive right to disclosure, analogous to the situation relied
on in Almalki 2015, which would prevent retrospective application, if
indeed it is retrospective application; and, (3) the applicants have no vested
right to an established disclosure regime given that their application for
disclosure was commenced in June 2015 (the date of the O’Connor
application in the British Columbia Supreme Court) which was after the
enactment of Bill C-44.
[37]
The respondent submits that section 18.1 applies
on a go-forward basis to the potential disclosure of human source information
that may take place after the enactment of section 18.1. In the present
circumstances, it cannot be retrospective in effect.
[38]
The respondent adds that even if Almalki 2015
is upheld on appeal, its application should be limited to its particular
litigation context, which differs from the present case.
[39]
Alternatively, the respondent agrees that if
this Court follows Almalki 2015 and finds that section 18.1 does not
apply, the applicants would need to seek a disclosure order from the British
Columbia Supreme Court and, if they do so, the respondent would determine
whether to make privilege claims pursuant to the Canada Evidence Act and
/or the common law.
VI.
The Reasons in Almalki 2015 Are Adopted
and Apply to the Present Case
[40]
I agree with the applicants and amicus
that on the principle of judicial comity and horizontal stare decisis I
should be guided by the Reasons of Justice Mosley in Almalki 2015 issued
on November 23, 2015. Justice Mosley thoroughly analyzed the relevant
principles regarding the retroactive and retrospective application of
legislation in a broader context as well as with respect to the facts before
him. Upon consideration of Almalki 2015, the relevant jurisprudence and
the submissions of counsel before me, I find that there is no basis to depart
from Justice Mosley’s well-reasoned conclusions.
[41]
Despite the respondent’s able arguments, I do
not agree that Almalki 2015 can be sufficiently distinguished from the
facts of this case to permit a different outcome. While the facts differ in
some respects, the applicable principles remain the same.
[42]
First, the Court is not concerned about losing
jurisdiction but about ensuring it has the jurisdiction to determine the
application. The Court is concerned with the proper application of section 18.1
which, as noted by Justice Mosley, does not include any transitional provisions
to address its temporal application.
[43]
Second, with respect to the argument that
section 18.1 applies on a go-forward basis to the disclosure of human source
information after its enactment, the respondent’s view is that in the present
case, the issue remains to be determined i.e., to date there has been no such
disclosure and, therefore, there is no pre-existing proceeding that has created
any substantive right to disclosure. While it is true that the application for
disclosure, within the proceedings for abuse of process, was made in June 2015
after the enactment of Bill C-44, I do not agree that there was no pre-existing
right to seek disclosure. If the applicants had not relied on section 18.1,
based on their view at that time that the application for disclosure of human
source information was governed by the new statutory privilege and should be brought
in this Court, the applicants would have included a request for the disclosure
of the same information from CSIS in the context of their broad disclosure
application in the British Columbia Supreme Court, pursuant to the two step O’Connor
approach. The criminal proceedings which are the subject of a motion for a stay
of proceedings based on the allegations of abuse of process and entrapment were
commenced in 2013. While it cannot be predicted what the determination of a
broader disclosure application would have been, the applicants would have had
an established approach to pursue and the respondent could have then considered
whether to advance a claim for privilege or rely on section 38 of the Canada
Evidence Act.
[44]
Third, the new rule of evidence created by Bill
C- 44 is a statutory privilege which cannot be characterized as merely
procedural to permit retrospective application. As Justice Mosley noted in Almalki
2015, the section 18.1 statutory privilege creates substantive rights for
human sources. In the present case, the evidence provided to date establishes
that if there is any human source involved, the relationship existed long before
section 18.1 was enacted. The application of the new statutory privilege could
have a substantive effect on the permissible disclosure and, as a result,
section 18.1 should not be applied retrospectively. A pre-existing human source
relationship would still have triggered the protection of section 38 of the Canada
Evidence Act.
[45]
The result that section 18.1 does not apply in
these circumstances, given that the relationship which may involve a human
source relates to information dating back to before the enactment of the
provision means that the applicants should pursue an application in the British
Columbia Supreme Court which may lead to further proceedings in this Court. The
ultimate determination whether information regarding a possible human source
should be disclosed may not be resolved in the time frame originally
contemplated. However, this Court would endeavour to address any subsequent
applications expeditiously.
VII.
The Threshold for a Section 18.1 Application
[46]
The applicants, amicus and respondent
also provided comprehensive submissions on the threshold that should apply to
applications pursuant to section 18.1. In summary, the applicants and amicus
take the position that a threshold similar to that applicable to police
informer privilege should apply although they note that police informer
privilege differs from the human source privilege and the different contexts must
be considered. The respondent argues that the disclosure or confirmation of a
human source requires careful consideration and the articulation of a much more
robust threshold to ensure that the purpose of the statutory privilege is
respected and that current and future sources are appropriately protected.
[47]
Given the determination that section 18.1 has no
application to the present circumstances and the Court is without jurisdiction
to determine the application before it, there is no need to determine the
applicable threshold and whether it has been met in the present circumstances.
[48]
However, the Court notes, based on the
submissions provided, that although the respondent stresses the importance of a
robust threshold as a “gatekeeper”, the threshold cannot be so high as to lock
the gate and absolutely prevent any disclosure of essential information
regarding a particular human source in the name of protection of all current
and future human sources. Section 18.1 permits the disclosure of a human source
where it is essential to establish the accused’s innocence and provides
appropriate safeguards for the information disclosed. The appropriate threshold
must be one that permits the Court to make that determination and not to demand
that the applicant prove the ultimate issue. Determinations pursuant to section
18.1 will, of course, be made carefully with full consideration of the
interests at stake. To date, the Court has exercised extreme caution with
respect to this application in accordance with the provisions of subsection
18(10).
[49]
In conclusion, the applicants’ application for a
declaration pursuant to section 18.1 of the CSIS Act is dismissed due to
lack of jurisdiction to determine the application.
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