Docket: T-1322-13
Citation:
2015 FC 548
Ottawa, Ontario, April 29, 2015
PRESENT: The
Honourable Mr. Justice S. Noël
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BETWEEN:
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ABOUSFIAN ABDELRAZIK
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Plaintiff
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and
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HER MAJESTY THE
QUEEN IN RIGHT OF CANADA
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Defendant
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JUDGMENT AND REASONS
I.
Introduction
[1]
This is a motion by Abousfian Abdelrazik [the
Plaintiff] pursuant to Rule 225 of the Federal Courts Rules, SOR/98-106
for an order for disclosure of relevant documents that are in the possession,
power, or control of Her Majesty the Queen in Right of Canada [the Defendant].
II.
Facts
[2]
The Plaintiff commenced an action before the
Federal Court claiming damages arising from a leak to the media of Canadian
government documents containing prejudicial and unsubstantiated allegations
against him. This leak occurred in August 2011 [the August 2011 leak or 2011
leak].
[3]
The Plaintiff’s claim is for compensatory and
punitive damages based on allegations regarding a pattern of behaviour for
which the Defendant is said to be responsible. This pattern of behaviour concerns:
1. Deliberate leaks of government documents to discredit individuals
suspected of terrorist activities;
2. Failure to properly investigate and identify perpetrators when such
leaks occur; and
- Failure to
improve safeguards over sensitive and highly confidential personal
information concerning former targets of national security investigations
in order to prevent future leaks (Plaintiff’s Motion Record [PMR] page 198,
at para 4).
[4]
The Plaintiff alleges that the Defendant tacitly
encouraged efforts to damage his reputation by ensuring that he remained a
terrorist suspect in the public’s eyes.
[5]
The Plaintiff sent a letter, dated April 1,
2014, to the Defendant requesting him to identify documents said to be relevant
to the action. The Plaintiff requested that they be included in the Defendant’s
affidavits of documents. The Plaintiff requested the following documents:
1. All investigation reports (criminal or administrative) and related
records regarding leaks of government information pertaining to: i) Maher Arar
(which occurred between July 2003 and July 2005) and; ii) Adil Charkaoui (which
occurred in or around June 2007) [the 2007 leak]; and
- All briefing
materials, emails, notes, “media lines” or
other communications to or from the office of Immigration Minister Jason
Kenney regarding the leak, including but not limited to such records prior
to Mr. Kenney’s media comments regarding this matter. This includes any
email correspondence regarding this issue that may have been sent to or
from Minister Kenney’s private email accounts (Plaintiff’s Motion Record [PMR],
page 200 at para 9).
[6]
In a case management conference and via written
correspondence, the Defendant objected to disclosing investigation reports and
related records regarding leaks of government information pertaining to Maher
Arar [Mr. Arar] and Adil Charkaoui [Mr. Charkaoui] on grounds of relevance.
[7]
The Plaintiff then filed a motion before this Case
Management Judge seeking an Order pursuant to Rule 225 of the Federal Courts
Rules. This motion is the subject matter of these Reasons and Judgment.
III.
Plaintiff’s Submissions
[8]
The Plaintiff argues that his claim is “based on an allegation of a pattern of behaviour including
leaks to the media of Canadian government documents or information about other
individuals including Maher Arar and Adil Charkaoui who were, like the
Plaintiff, subjects of national security investigations”. He adds that
the comments of high-ranking Canadian officials tacitly encouraged efforts to
damage his reputation (PMR, page 205 at para 21).
[9]
The Plaintiff submits “that
the Defendant’s failure to improve safeguards over sensitive and highly confidential
information concerning former targets of national security investigations will,
if proven, contribute to a finding of unreasonable conduct causing injury, and
warrant a remedy including compensatory and punitive damages” (PMR page
206, at para 24). The Plaintiff states that these documents are relevant and
that the disclosure of the earlier investigations would provide relevant
information that goes to the heart of the issue.
[10]
Moreover, the Plaintiff states that the
disclosure regarding the investigations related to leaks prior to the August
2011 leak would provide him with relevant information that goes to the issues
of fact that separates the parties.
[11]
The Plaintiff further submits that the documents
already disclosed by the Defendant demonstrate that the comments made by CSIS
Director Richard Fadden and Minister Kenney’s comments following the August
2011 leak were construed as part of a communication strategy intended to shape the
public’s opinion about him, that CSIS evaluated whether non-publicly available
information could be released in order to promote a “counter
narrative” about him and that the media reports about the Plaintiff were
monitored and reviewed by the Defendant. The Plaintiff therefore argues that
the requested documents are directly relevant to the issues raised in his claim
and ought to be disclosed.
IV.
Defendant’s Submissions
[12]
Regarding Minister Kenney’s comment published on
August 5, 2011, by the Globe and Mail, the day after the La Presse article,
the Defendant states that a further affidavit produced by Mr. Michel Dupuis,
Director General of the Case Management Branch at Citizenship and Immigration
Canada [CIC] dated March 18, 2015, confirms that, to date, no documents were
found regarding the “briefing notes and other
preparatory materials relating to Immigration Minister Jason Kenney’s media
comments” in relation to the present matter. The affidavit of Mr. Chris
Day, Chief of Staff to the present Minister of Citizenship and Immigration,
dated March 25, 2015, also confirms the same information. The Defendant adds
that there is no indication that CIC is seeking not to produce any documents or
material on this matter. The Defendant thus argues that since no briefing notes
and other preparatory materials concerning Minister Kenney have been found, he
has satisfied his obligation to produce affidavits of documents for the present
matter pursuant to Rule 223(2) of the Federal Courts Rules.
[13]
Regarding the Plaintiff’s request for disclosure
of the reports and related documents relative to the unauthorized disclosure of
information concerning Mr. Arar and Mr. Charkaoui that is said to have taken
place between 2003 and 2005 and in 2007, the Defendant refers the Plaintiff to
the affidavit of documents of Mr. Bradley Evans, Director General of the
Litigation and Disclosure Branch at CSIS, dated August 14, 2014. According to
the Defendant, Schedule 1 of the affidavit of documents contains a number of
draft versions of Mr. Fadden’s October 29, 2009, speech to the Canadian
Association for Security and Intelligence Studies [CASIS], including document “AGC 0611”. Thus, no further disclosure can be made to
the Plaintiff regarding this speech.
[14]
The Defendant also submits that this Court
should not render an order that goes beyond the parameters of this action,
which concerns only Mr. Abdelrazik and not Mr. Arar or Mr. Charkaoui. Doing so
would amount to authorizing a fishing expedition. The Defendant submits that
the documents regarding Mr. Arar or Mr. Charkaoui do not fall under any of the
four categories of documents that may be discovered as noted in AstraZeneca
Canada Inc. v Apotex Inc., [2009] 4 FCR 243 at paragraph 11, which include:
(1) The parties own documents which the parties rely upon; (2) Adverse
documents; (3) Documents that are part of the story or background to the case;
(4) Train of Inquiry documents. The Defendant further argues that “they are not part of the “story” or “background” of the Plaintiff’s
case nor will they likely serve to establish a “train of inquiry” of use to the
Plaintiff. The requested documents are neither necessary nor relevant for trial”
(Defendant’s Motion Record [DMR] page 62, at para 19).
[15]
The Defendant further submits, with regard to
the documents requested by the Plaintiff concerning Mr. Arar and Mr. Charkaoui,
that the Plaintiff has no legal standing to make arguments for third parties,
and that the “Defendant’s fault, if any, and the
Plaintiff’s damages, if any, rests with the events that led to the August 2011
article published in La Presse. Actions of the government between 2003 and 2005
(Arar) and in 2007 (Charkaoui) are of no relevance to events that occurred
years later” (DMR page 64, at para 24). The Order for further disclosure
sought by the Plaintiff should thus be denied.
[16]
The Defendant also explains that the Affidavit
of Documents from Inspector Randal Walsh of the RCMP, dated May 29, 2014,
states that the RCMP “O” Division Ottawa
Integrated National Security Enforcement Team [INSET] is conducting an ongoing
investigation into the August 2011 alleged unauthorized disclosure of CSIS
documents to La Presse and the Montreal Gazette. It is submitted
that such investigation, at least at this stage, is protected from any
disclosure. The Defendant notes that this investigation began days after the
newspapers’ disclosure.
[17]
The Defendant is therefore of the opinion that
the affidavits of documents provided satisfies his obligation to provide
documents relevant to the present litigation.
V.
The Recent Disclosure of the Transcript of the
Minister of CIC Press Conference of August 15, 2011
[18]
On April 16, 2015, 16 days after the hearing
held at the end of March 2015, counsel for the Defendant forwarded to the Court
a transcription of a news conference given by Minister Kenney on August 5,
2011, a day after the publication of the 2011 newspapers leak disclosing among
other things the discussion between the Plaintiff and Mr. Charkaoui about the
hijacking of an Air France plane and exploding it, the subject matter of the
Abdelrazik disclosure request.
[19]
Counsel for the Plaintiff in response to this
disclosure responded by letter on the same day and said the following:
a. Although the disclosure of the transcript is not done pursuant to
the Rules of the Federal Courts, the Plaintiff does not object to its
production;
b. Such disclosure calls into question the thoroughness of the searches
made to identify relevant documents in response to the requests made and the
affiants statements that all documents have been disclosed;
c. It gives crucial support to the argument made by the Plaintiff’s
counsel that further documents from Minister Kenney’s news conference needed to
be disclosed and also that there was a CSIS media strategy developed in 2009.
This media strategy suggests that the Ministers would be better spokespersons than
CSIS director Mr. Fadden and furthermore that the reference by the Minister to Mr.
Fadden’s speech of two years before had to be supported by a media line and
should not be seen as coincidental;
- Such important
disclosure gives weight to the conclusion sought that: “The Defendant is directed to conduct a further search
and prepare and serve further better affidavit(s) of documents listing
documents relevant to Mr. Kenney’s comments to the media on August 5,
2011.”
The Plaintiff also requests costs to be paid
forthwith pursuant to Rule 401(2) of the Federal Courts Rules.
[20]
In reply to the response of the Plaintiff, the
Defendant had this to say:
a. The Rules of the Federal Courts did not have to be followed since
the transcription of the news conference was produced as a result of an
undertaking made at the hearing by counsel for the Defendant following a
request from the Court;
b. The subject of the news conference was the Minister’s trip to New
Zealand and Thailand the discussion that occurred on the 2011 leak was limited
to one question and answer. One of the affiants, Mr. Day, the Chief of Staff of
the current Minister, provided his own affidavit of documents which already
disclosed the response given by the Minister on the specific subject matter and
there was no attempt to conceal the transcript;
- The Defendant
does not concede that the previous affidavits of documents were deficient
and submits that the reference to the CSIS Director’s speech by the
Minister does not give support to the argument that there were documents
given to the Minister which suggested to him some media response in
relation to the 2011 leak.
[21]
On the costs issue, the Defendant submits that
the production of the transcription and his submissions to the disclosure
requests were reasonable and in no way abusive. Therefore, there is no basis to
depart from the principle that costs should be dealt with at the conclusion of
this matter.
[22]
I have reviewed my notes of the hearing and can
only agree with counsel for the Defendant when he says that the transcript came
as a result of an undertaking made by counsel for the Defendant in response to
a suggestion made by the undersigned. I would add that the discussion about the
transcript began with comments made by counsel for the Plaintiff at the
beginning of his reply and resulted in the undertaking made. The disclosure of
this transcript does not in the present circumstances give support to the
argument that the disclosure process followed by the Defendant is incomplete or
inappropriate.
[23]
Should that transcript have been disclosed in
one of the affidavits of documents in response to the disclosure requests? It
may have been better but the Defendant says that the pertinent extract of the
question and answer about the 2011 leak was disclosed as part of the disclosure
process and that this information was in specific response to the Plaintiff
disclosure request as formulated.
[24]
In light of all of that, this Court cannot make a
negative finding about the disclosure made by the Defendant and more so when
the transcript was disclosed in response to a request from the Court as a
result of an exchange with counsel from the Plaintiff. In addition, the
pertinent question and answer had already been disclosed and the remaining part
of the transcript deals with other matters not related to the August 2011 leak.
I will now deal with the substantial matters related to the motion for
disclosure.
VI.
Issue
[25]
I have reviewed the parties’ submissions and
respective records and I frame the issue as follows:
- Are the
documents at issue relevant for purposes of discovery of documents
pursuant to Rules 223 to 232 and 295 of the Federal Courts Rules?
VII.
Analysis
A.
Introduction
[26]
My colleague Justice Richard Mosley summarized the
test for disclosure in Khadr v Canada, 2010 FC 564 at paragraphs 9 to 11
in the following way:
[9] Discovery of documents in Federal
Court actions is governed by Rules 222 to 233 of the Federal Courts Rules.
The test as to which documents are required to be produced by a party is
relevance (Rule 222(2)). A document is relevant if it either directly or
indirectly advances a party’s case or damages that of its adversary or may
fairly lead to a “train of inquiry” that may have either of these two consequences:
Apotex Inc. v. Canada, 2005 FCA 217, [2005] F.C.J. No. 1021.
[10] There are limits to the reach of
the “train of inquiry” line of discovery. The test is whether there is a
reasonable likelihood that a document sought for production would lead to
information relevant under Rule 222(2): Eli Lilly Canada Inc. v. Novopharm
Ltd., 2008 FCA 287, [2008] F.C.J. No. 1372. The focus of the rule is
clearly on matters that are necessary and relevant for the trial: AstraZeneca
Canada Inc. v. Apotex Inc., 2008 FC 1301, [2008] F.C.J. No. 1696, at para
6.
[11] Relevance is to be determined by
reference to the issues of fact which separate the parties, as defined by the
pleadings: Merck Frosst Canada Inc. v. Canada (Minister of Health),
(1997), 146 F.T.R. 249, [1997] F.C.J. No. 1847, at para. 7. […]
[27]
In the case at bar, the Plaintiff seeks to
obtain the following documents from the Defendant:
1. All Investigation Reports (Criminal or Administrative) and related
records regarding leaks of government information pertaining to: i) Maher Arar
(which occurred between July 2003 and July 2005) and; ii) Adil Charkaoui (which
occurred in or around June 2007); and
- All briefing
materials, emails, notes, “media lines” or
other communications to or from the office of Immigration Minister Jason
Kenney regarding the leak, including but not limited to such records prior
to Mr. Kenney’s media comments regarding this matter. This includes any
email correspondence regarding this issue that may have been sent to or
from Minister Keeney’s private email accounts (PMR page 200 at para 9).
[28]
The Plaintiff seeks these documents on the basis
that the Defendant took actions to damage his reputation by making sure he
remained a terrorist suspect in the public’s eyes, similarly to what had been
done to Maher Arar and Adil Charkaoui.
[29]
In order to dispose of all the requests made by
the Plaintiff in this motion, I intend to deal with each one of them in the
following manner:
1. All Investigation Reports (Criminal or Administrative) and related
records regarding leaks of government information pertaining to Maher Arar (the Arar leaks disclosure request);
2. All Investigation Reports (Criminal or Administrative) and related
records regarding a leak on or about June 2007 of government information
pertaining to Adil Charkaoui (the “Charkaoui leak
disclosure request”);
- All briefing
materials, e-mails, notes, “media lines” or
other communications to or from the Office of Minister Jason Kenney regarding
the leak of August 2011 concerning the Plaintiff and Mr. Charkaoui,
including but not limited to such records prior to Mr. Kenney’s media comments
regarding this matter. This includes any e-mail correspondence regarding
this issue that may have been sent to or from Minister Kenney’s private
e-mail account (“the media response to the Abdelrazik
leak disclosure request”).
[30]
During the hearing, counsel for the Defendant at
the end of his submissions suggested a different wording for the Charkaoui leak
disclosure request which was agreed by counsel for the Plaintiff:
“Any Criminal
and Administrative Investigation Reports and any corrective measures taken that
relate to a leak of government information to the media in or around June 2007
that became the subject matter of a La Presse Newspaper Article on June 22,
2007.”
B.
General Comments about the Three (3) Requests
[31]
It became evident at the hearing that both the
Charkaoui and Abdelrazik leaks (June 2007, August 2011) had common points. Both
leaks concerned at least two (2) of the same individuals (Charkaoui and Abdelrazik)
and the same subject matter (a conversation between them discussing the
hijacking of an airplane, etc.). They both relate to secret government
documents which were disclosed to “La Presse”
journalists in early summer 2007 and journalists of “La
Presse” and “The Montreal Gazette”
in early August 2011. A CSIS Administrative Investigation began in 2007 but was
then replaced by a RCMP investigation and in 2011, a RCMP investigation was
undertaken which has not been finalized as of the date of these reasons.
[32]
The same cannot be said about the Arar leaks
disclosure request. The leaks refer to Mr. Arar and others and do not relate to
either Mr. Charkaoui nor the Plaintiff. There were RCMP investigations into the
leaks and also of importance was that the Report of the Commission of Inquiry
into the actions of Canadian Officials in relation to Maher Arar (2006) (the Arar Inquiry) dealt at length with these leaks and
made pertinent, informative and insightful findings about them. The same cannot
be said about the other leaks disclosure requests.
[33]
The Plaintiff argues that the main common point
on the three (3) sets of leaks is that there is a pattern for the government of
disclosing information on specific non accused individuals to discredit them,
and failing to properly investigate and successfully identify the perpetrators
of such leaks. It is also submitted that the Defendant did not improve
safeguards of sensitive information concerning personal information that relate
to former targets of national security investigations in order to prevent
future leaks. It is also suggested that there may be a common thread among them
since some of the evidence shows that following the 2011 leak, CSIS officials
inquired about the procedures followed to investigate the Arar and Charkaoui
leaks and that there is no evidence that proper measures were instigated in
order to prevent further occurrences of these types of leaks.
C.
The Arar Leaks Disclosure Request
[34]
These leaks go back to ten years and more. They
do not relate to the Plaintiff. As mentioned earlier, they refer to Mr. Arar
and to some other individuals. As noted above, the Arar Inquiry has dealt
substantially with the leaks that relate to Mr. Arar and made important
findings and conclusions on the matter. The request as formulated is general,
large in scope and gives an impression that it is made without specific
reference to any particular documents that could be of some use. It is most
general and would probably generate the production of a list of documents which
would have very little use to the Plaintiff, if any. By making such a general
request, the Plaintiff gives an impression that he wants to replace the Arar
Inquiry. This is not what Rules 225, 227 and 229 of the Federal Courts Rules
contemplate. Relevancy has to be rooted in a factual foundation to which the
request may be linked. Here, the Arar leaks disclosure request does not relate
to the Plaintiff. It is based on leaks that go back to more than six (6) years
at least, if compared to the Abdelrazik August 2011 leak. It has also been investigated
by the Arar Commission and findings and conclusions were made which can surely
be of some use for the Plaintiff in support of the allegations made in this
Statement of Claim.
[35]
As for the train of inquiry test, Justice Mosley
in Khadr (already referred to) at paragraph 10 said that there were
limits to it. The test is that there must be “reasonable
likelihood” that a category of documents sought would be relevant to
what separates the parties as the pleadings may show. Again here, the fact that
an investigation into a leak occurred does not in itself make this document
relevant nor does it create a “reasonable likelihood”
that it will be relevant. I say this with full knowledge of what the Arar
Inquiry said about the Arar leaks and the conclusions it made. They shall be
useful to the Plaintiff if it is his intention to use them to support his
claim.
[36]
Counsel for the Plaintiff drew the attention of
the Court to a few e-mails created as a result of the 2007 and 2011 leaks which
disclosed that officials at the time inquired as to what was respectively done
on the matter of investigation into the “Arar leak”
and then the “Chark Fil” (see PMR at pages 159
and 153). What these exchanges show was that the officials were seeking
precedents as to how to do the investigation of the leaks but also that no
administrative investigation would be ongoing if the RCMP began its own
investigation. Counsel argued that the enquiries justified the disclosure of
documents related to these respective investigations. I do not think that these
e-mails exchanges create any relevancy as to the documents being sought nor
does it give support to the train of inquiry approach. They are inquiries on
how to proceed about the leaks. As a brief reminder, a document is relevant if
it can advance directly or indirectly the cause or damages being claimed by a
party or that there is a reasonable likelihood that the document sought would
lead to relevant documents. Such is not the case here.
[37]
For all these reasons, the Arar leak disclosure
requests should not be granted. Again, I emphasize that the real danger of such
request is to turn this litigation into a lot more than what the Statement of
Claim and Defence call for. As said earlier, the Arar Inquiry dealt with the
Arar leaks and the Plaintiff will be able to rely on the findings and
conclusions made subject to the applicable rules of evidence in such cases.
D.
The Charkaoui Disclosure Request
[38]
The Charkaoui leak disclosure request calls for
a different conclusion. As mentioned before, the facts common to both leaks do
create a context of relevancy. Both the 2007 and 2011 leaks relate to the same
discussion that would have been held by at least the Plaintiff and Mr.
Charkaoui. Another common fact is that both leaks were published by journalists
of “La Presse”. I also note that in
reference to the 2007 leak, it was also published in “Le
Droit”. As for the 2011 leak, it was also published in “The Montreal Gazette” by one of its journalists.
In both cases, the RCMP was or is investigating. These common threads, contrary
to the Arar leaks disclosure request, do indicate that such request can be
relevant to the issues at play framed in the Statement of Claim and the Defence.
I would also add that the leaks are closer in time than the 2003-2005 Arar
leaks.
[39]
Therefore, I will grant the Charkaoui leak
disclosure request as newly formulated by counsel for the Defendant.
E.
The Media Response to the Abdelrazik disclosure Request
[40]
The Plaintiff is seeking the production of
documents that would relate to any document that would have permitted the then
Minister of Citizenship and Immigration, Mr. Kenny to comment on the August
2011 leak in the following way:
“I read the protected confidential dossiers
on such individuals, and I can tell you that, without commenting on any one
individual, some of this intelligence makes the hair stand up on the back of
your neck”, he said, “I just think people should be patient and thoughtful and
give the government and its agencies the benefit of the doubt” (PMR, page 157).
[41]
Counsel for the Defendant submits that the
documents that exist have already been produced and on some of them a privilege
is claimed. Mr. Chris Day, Chief of Staff of the current Minister of
Citizenship and Immigration and Mr. Michel Dupuis, Director General of the Case
Management Branch at Citizenship and Immigration Canada, have both signed
recent affidavits in which they certify that in relation to the disclosure
request: “no such documents have been found”.
[42]
Counsel for the Plaintiff submits that it is
surprising and very unlikely that there would have been no briefing notes or
other preparatory materials within the CIC Minister’s Office prior to the
Minister’s comments to the media. As said earlier, the recent disclosure of the
transcript of the Minister’s press conference does not add any support to this
argument.
[43]
An affidavit is a very sacro-saint document. An
individual under oath affirms that what is written in the affidavit is the
truth. In our case, two senior officials have sworn that there are no such
documents. An affidavit creates a presumption of veracity which can only be
reversed by contradictory evidence (Maldonado v Canada (Minister of
Employment and Immigration), [1980] 2 FC 302; Villarroel v Canada
(Minister of Employment and Immigration), [1979] FCJ No 210 (CA); Thind
v Canada (Minister of Employment and Immigration), [1983] FCJ No 939 (CA)).
The Plaintiff had the opportunity to cross-examine the affiants but did not do
so.
[44]
The Court, being put in such a situation, has no
reason to doubt the sworn statement. No such documents have been found.
Therefore, in such a case, a Court will not order the production of documents
when the non-contradicted evidence shows that no documents have been found. It
would be presumptuous to issue such an order with the evidence presented.
VIII.
Conclusion
[45]
I will therefore grant in part the motion for
disclosure by granting the Charkaoui disclosure request but will not grant neither
the Arar disclosure request nor the media response to Abdelrazik’s disclosure
request. Costs will be in the cause.
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