TOP SECRET
Date: 20160721
Docket: DES-2-16
Citation:
2016 FC 850
Ottawa, Ontario, July 21, 2016
PRESENT: The Honourable Madam Justice Kane
|
BETWEEN:
|
|
THE ATTORNEY
GENERAL OF CANADA
|
|
Applicant
|
|
and
|
|
JOHN STUART
NUTTALL and
AMANDA MARIE KORODY
|
|
Respondents
|
PUBLIC ORDER AND REASONS
(REDACTED
– Confidential Order and Reasons issued June 8, 2016)
[1]
This Order responds to the application of the amici
curiae for the Court to consider and determine two issues raised in the
context of the above noted application made pursuant to section 38 of the Canada
Evidence Act, RSC, 1985, c C-5 (as amended by SC 2001, c 41, s 43) [the
Act] despite that the application has been discontinued.
I.
The Background
[2]
On June 2, 2015, following a jury trial before
Justice Catherine Bruce in the Supreme Court of British Columbia, the
Respondents were convicted on two counts of terrorism related offences arising
from events which occurred in July 2013. The guilty verdicts have not been
entered pending the determination of the Respondents’ application seeking a
stay of proceedings based on entrapment and abuse of process.
[3]
The Respondents initially sought production of
documents held by the Canadian Security Intelligence Service [CSIS] shortly
following the conclusion of their trial in June 2015. However, due to the
nature of the information sought and the recent enactment of section 18.1 of
the Canadian Security Intelligence Service Act, RSC 1985, c C-23, as
amended, [CSIS Act], the Respondents made an application to this Court
pursuant to section 18.1 for the information.
[4]
In December 2015, this Court dismissed the
Respondents’ section 18.1 application (Nuttall and Korody v Attorney General
of Canada, 2015 FC 1398) for lack of jurisdiction based on principles
regarding the retroactive and retrospective application of legislation and
following the guidance provided by Justice Mosley in Attorney General of
Canada v Almaki et al, 2015 FC 1278. Both decisions are under appeal.
[5]
The Respondents then immediately applied to the
Supreme Court of British Columbia for production and disclosure of the
information held by CSIS.
II.
The Proceedings in the Supreme Court of British
Columbia; December 2015- January 2016
[6]
Justice Bruce considered the Respondents’
application for an order that CSIS produce to the Court “all records in its possession, whether they are written,
photographic, electronic, videotaped, or recorded by any other means, that
reflect information provided to CSIS by a person who will be referred to as Xx. X, or provided to CSIS with the cooperation
of Xx. X, where such records relate to
Mr. Nuttall and/or Ms. Korody.” On January 6, 2016, (2016 BCSC 28),
Justice Bruce found that the records were likely relevant to the allegations of
entrapment and abuse of process and ordered CSIS to produce the documents to
her for review, in accordance with the two-stage procedure for the production
of records from third parties established in R v O’Connor (1995), 4 SCR
411[O’Connor].
[7]
On January 26, 2016, Justice Bruce found that
the records were relevant (2016 BCSC 154). Justice Bruce conducted a
page-by-page review of the records as part of the second stage of the O’Connor
procedure, in camera, but in the presence of counsel for the Attorney
General on behalf of CSIS, and identified the parts of those records to be disclosed
to the Respondents.
III.
The Proceedings in this Court; The Section 38
Application
[8]
On February 2, 2016, counsel for the Attorney
General, on behalf of CSIS, notified the Attorney General that the Order of
Justice Bruce required CSIS to disclose information that
counsel believed is sensitive or potentially injurious in the proceeding in the
Supreme Court of British Columbia.
[9]
On February 16, 2016, the Attorney General filed
a Notice of Application in this Court pursuant to subsection 38.04(1) of the
Act for an order pursuant to subsection 38.06(3) of the Act, to confirm the
prohibition of disclosure of the information referred to in the notice given on
February 2, 2016. The notice covers the same records and information ordered to
be disclosed by Justice Bruce.
[10]
Two security cleared counsel permanently bound
to secrecy with criminal law expertise were appointed to act as amici curiae
to assist this Court in the determination of the section 38 application.
[11]
The Applicant filed a public affidavit and an ex
parte affidavit. Counsel for the Respondents also filed an affidavit
setting out the chronology of events up to and including the proceedings which
continue in the Supreme Court of British Columbia with respect to their
application for a stay of proceedings based on entrapment and abuse of process.
The affidavit on behalf of the Respondents attached exhibits, including: the “Trial Judge’s Chronology of Events and Overview of the
Evidence” which covers the period February 23, 2013 to July 1, 2013 and
which was provided to the jury at the conclusion of the trial; excerpts of
transcripts of testimony at the hearing of the entrapment and abuse of process
proceedings; and other material disclosed to the Respondents.
[12]
This Court held several case management
conferences [CMC] to advance the determination of the application. A CMC was
convened immediately following receipt of the Attorney General’s Notice of
Application on February 17, 2016, followed by two CMCs on February 18, 2016 to
address the appointment of amici and the scheduling of the public
hearing and the ex parte hearing. The hearings were initially scheduled
for March 7 and 8, 2016 respectively, and to continue on March 9 to 11, 2016 as
required. These dates were re-scheduled at the request of the parties to March
21 and 24, 2016, and to continue on March 29, April 7 and 8, 2016.
[13]
The Applicant’s public affidavit was filed on
February 24, 2016 and the ex parte affidavit on March 3, 2016. The
Respondents also filed a confidential affidavit with supporting exhibits on
March 3, 2016.
[14]
CMCs were also held on March 2, 9 and 11, April
13 and 21, 2016.
[15]
A public hearing was held on March 21, 2016
which canvassed the broader issues of the importance of the protection of
information of the type gathered in the present case. The affiant, an
experienced CSIS Intelligence Officer, provided helpful contextual information,
although he did not possess any information about this case. Counsel for the
Respondents participated in the public hearing and made written and oral
submissions on the relevant issues and the applicable law.
[16]
An ex parte, in camera hearing was
also held on March 21, 2016 in the presence of counsel for the Respondents and
the amici and in the absence of counsel for the Attorney General of
Canada, as contemplated by paragraph 38.04(5)(d).
[17]
An ex parte, in camera hearing, in
the absence of counsel for the Respondents, commenced on March 24, 2016 and
continued on April 6 and 7, 2016. The ex parte affiant, also an
experienced CSIS Intelligence Officer, testified that he had consulted
classified information before testifying, including, but not restricted to, the
information for which the section 38 notice was given. The ex parte
affiant’s written and oral evidence provided explanations and additional
context for the information for which the section 38 notice was given,
including general practices in similar circumstances and the type of
information generally recorded by CSIS. Among other information, the affiant
elaborated on the rationale for CSIS and the Attorney General to seek
protection of sensitive information and the importance to the operational
effectiveness of CSIS, as well as on the content of the specific records
subject to the section 38 notice.
[18]
On April 7, 2016 at the conclusion of the in
camera cross-examination of the ex parte affiant, the amici
curiae highlighted jurisdictional issues, including whether this Court had
all the available contextual information to determine whether the information
subject to the section 38 notice is injurious to national security and whether
the “public interest in disclosure outweighs in
importance the public interest in non- disclosure”. The Court agreed
that submissions on two specific issues should be received from the amici and
the Attorney General by the first week in
May, and once the issues were considered and determined, the hearing would
resume and dates for the final submissions on the section 38 application would
be scheduled.
[19]
On April 13, 2016, this Court issued a
Communication to apprise Justice Bruce and the parties to the proceedings in
the Supreme Court of British Columbia of the status of the section 38
proceedings in this Court, given that the proceedings in the Supreme Court of
British Columbia were scheduled to resume in mid-April.
IV.
The Discontinuance of the Section 38 Application
[20]
On April 15, 2016, counsel for the Respondents
informed this Court that they had appeared before Justice Bruce on April 14,
2016 and advised that due to the delay that would be caused to the ongoing
criminal trial by the resolution of the section 38 application, their clients
had instructed counsel to abandon their request for disclosure of information
from CSIS. As a result, Justice Bruce directed that her January 26, 2016 Order,
which ordered the disclosure of records and information from CSIS to the
Respondents, be rescinded. Counsel for the Respondents invited the Attorney
General to discontinue the section 38 application.
[21]
The Attorney General filed a Notice of
Discontinuance of the section 38 application on April 20, 2016.
[22]
On April 19, 2016, the amici wrote to
this Court and to the Attorney General requesting that the Court consider the
submissions of the amici on the issues raised at the conclusion of the
April 7, 2016 hearing which were being completed, noting that, despite the decision
by counsel for the Respondents to withdraw their request for disclosure of
information from CSIS which renders the section 38 application moot, the issues
should be determined.
[23]
The issues are:
- Whether the
Federal Court on a section 38 application has jurisdiction to expand the
material covered by the application XXXXXX
XXXXXX XXXXX XXXXXX XXXX; and,
- Whether the
Federal Court has jurisdiction to order disclosure to the amici of
additional relevant material to provide context to the issue in section
38.6.
[24]
In an exchange of correspondence, the amici
argued that the Court should exercise its jurisdiction to consider the issues,
although moot, with reference to the relevant factors established in Borowski
v Canada (Attorney General), [1989]1 SCR 342 [Borowski].
[25]
The Attorney General disputes that the Borowski
factors, as they relate to the current facts, support the exercise of the
Court’s jurisdiction.
[26]
The amici and the Attorney General
elaborated on their preliminary submissions in further written submissions.
V.
The Submissions of the Amici curiae
[27]
The amici note that in the course of the
section 38 proceedings they had raised the same jurisdictional issues in an
effort to provide an opportunity for the Attorney General to consider producing
additional information XXXXXX XXXXX XXXXX XXXXXX
XXXXXX XXX XXXX and to avoid potential further delays that might result
from additional disclosure requests to the Supreme Court of British Columbia
that could, in turn, trigger a further section 38 application.
[28]
The amici reiterated the two specific
issues noted above following the cross-examination of the ex parte
affiant which revealed that XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXXXXXXX XXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX XX. In
their preliminary and expanded submissions, the amici argue that
although the application is now moot, the Court should exercise its discretion
and proceed to determine the two issues, and that the Borowski factors
(the existence of an adversarial context, concern for judicial economy and the
need to avoid intruding into the role of the legislative branch) support the
Court exercising its discretion to consider and determine the issues.
[29]
The amici note that these important
issues, if resolved, would add to the jurisprudence related to the application of
the section 38 bifurcated process following the Supreme Court decision in R
v Ahmad (2011), SCC 6, at para 44, [Ahmad], which called for a
flexible approach to make the process work, and would facilitate expeditious
resolution of future litigation in similar circumstances.
[30]
The amici submit that an adversarial
relationship continues to prevail although there is no live controversy. The amici
acknowledge that, as friends of the Court, they are not adversaries in the
typical sense. However, in the context of a section 38 application, where the
Respondents are precluded from full participation, the amici’s role as
friend of the Court should be expanded to both assist the Court and raise
issues that would not otherwise be raised in order to provide a balance and to
ensure fairness for the Respondents and that this constitutes an adversarial
context.
[31]
With respect to judicial economy or the
appropriate use of judicial resources, the amici submit that the Court
should consider whether the current use of judicial resources to hear an
academic argument is appropriate, as well as whether the use of judicial
resources to resolve on-going uncertainty will have benefits for the more
efficient use of judicial resources in the future.
[32]
The amici note that judicial resources
have already been expended, as have the resources of the amici, the
Attorney General and counsel for the Respondents. In addition, the issues
raised are likely to arise again in other proceedings. The efforts to date
should not be wasted.
[33]
The amici add that these issues may be
evasive of review if the delays occasioned by their resolution in the context
of other ongoing section 38 applications lead the party seeking the information
to abandon their underlying application for production and/or disclosure (as
occurred in this case). The amici suggest that the Attorney General’s
resistance to their earlier
submissions, that it consider voluntarily providing additional contextual
information, frustrated the Respondents’ ability to obtain the disclosure they
sought.
[34]
The amici add that there is no concern
that the determination of the issues will encroach on the legislative role,
rather these issues fall within the Court’s jurisdiction to determine.
VI.
The Submissions of the Attorney General
[35]
The Attorney General, in its preliminary and
more detailed submissions, emphasizes that the Borowski factors do not
support the Court’s exercise of discretion to determine the issues, which are
clearly moot.
[36]
The Attorney General disputes the amici’s
assertion that the ex parte affiant XXX
XXXXX XXXXX XXXXX XXXXX XXXXXX XXXXX XXXXX XXXXX XXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXX XXXXXX XXXXXX XXXX XXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX XXXXX XXXXXXX XXXXX XXXXXX XXXXXX XXXXXX
XXXXXXX XXXXXXX XXXXXX XXXXXX XXXXXXX. The Attorney General also noted
on several occasions in the course of the section 38 proceedings that this
Court should focus only on the information that is subject to the section 38
application.
[37]
The Attorney General relies on Canada
(Minister of National Revenue) v McNally, (2015) FCA 248, where the Court
of Appeal notes that the discretion to determine a moot case should be
exercised prudently and cautiously. The Attorney General submits that caution
should be exercised in the present case.
[38]
With respect to the application of the Borowski
factors, the Attorney General argues that the issues raised by the amici are
not rooted in the adversarial system. The amici are not parties to the
proceedings, merely friends of the Court to assist the Court to determine the
section 38 application. Common sense dictates that the mootness exception can
only apply where at least one party wants to proceed. The Order of Justice
Bruce was rescinded and, as a result, there is no disclosure request by the
Respondents. The section 38 application is discontinued.
[39]
The Attorney General submits that the Court
should not address the issues because, by their actions, it is clear that neither
the Applicant nor the Respondents support that the issues be addressed. The
Attorney General adds that the issues raised by the amici are not the
issues initially raised in the application.
[40]
The Attorney General also submits that there are
no parties remaining and the amici cannot be characterized as a party.
The Attorney General acknowledges that in other circumstances, amici
could be appointed to provide an adversarial context, however, this would only
be appropriate where one of the parties seeks to have the issues determined. In
the present circumstances, none of the real parties support the Court’s
continued attention to the issues.
[41]
The Attorney General notes that if the Court
were to determine or rule on the issues raised by the amici, in the
absence of any parties, the decision would be academic. In addition, there
would be no way for the Attorney General or the Respondents to appeal since
appeals lie only from orders.
[42]
The Attorney General further submits that
judicial resources should not be expended to address jurisdictional issues that
are now academic and which are best left to be determined in a particular
factual context. Although the amici may have prepared legal arguments on
the issues raised, the Attorney General must prepare the responding arguments,
a hearing would be required, and additional judicial resources would be
expended.
[43]
With respect to potentially saving judicial
resources in the future by resolving or clarifying issues now, the Attorney
General notes that the Court’s ruling would be akin to obiter comments
with limited persuasive effect and, therefore, would not clarify issues for
future cases.
[44]
With respect to the third Borowski factor, the
Attorney General submits that the Court’s consideration of the issues, divorced
from a real dispute, would exceed the Court’s judicial role and set an
unnecessary precedent.
[45]
Finally, the Attorney General submits that given
the content of the submissions of both parties, which includes reference to
information and assertions that were made in the ex parte, in camera
proceedings, the submissions and this Order should be classified.
VII.
Should the Court exercise its discretion to
consider the issues raised by the amici?
[46]
With respect to the Attorney General’s response
to the amici’s assertion XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXX XXXXX XXXXXX XXXXXX XXXXX XXXXX XXX,
these issues are beyond this Court’s jurisdiction to determine. The ex parte
affiant’s evidence clearly indicated that XXXXX
XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXX XXXXXX XXXXXX XXXXX XXXXX XXXXX XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXXX XXXXX XXXXX
XXXXXX XXXXX XXXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXX
XXXXX XXXXX.
[47]
To determine whether the Court should exercise
its jurisdiction to consider and determine the issues raised by the amici,
although the case is moot, the considerations set out in Borowski have
been applied: whether an adversarial relationship continues to exist; whether
judicial resources should be expended; and, whether the court should focus on
its role as the adjudicative branch of government. Some factors may not be
relevant or applicable. As noted at para 42, “[t]he
presence of one or two of the factors may be overborne by the absence of the
third, and vice versa”.
A.
Does an adversarial relationship or context
continue?
[48]
In Borowski, the Supreme Court of Canada
noted at para 31:
The first rationale for the policy and
practice referred to above is that a court’s competence to resolve legal
disputes is rooted in the adversary system. The requirement of an adversarial
context is a fundamental tenet of our legal system and helps guarantee that
issues are well and fully argued by parties who have a stake in the outcome. It
is apparent that this requirement may be satisfied if, despite the cessation of
a live controversy, the necessary adversarial relationships will nevertheless
prevail.
[49]
The Attorney General’s argument that there is no
adversarial context because neither the Respondents nor the Attorney General
are parties given that the section 38 application is discontinued and the amici
are merely friends of the Court overlooks that the Respondents were not full
participants in the section 38 proceedings and remain unaware of the issues of
concern raised by the amici. In section 38 proceedings, the amici
should raise issues that would otherwise not be brought to the Court’s
attention.
[50]
The role of the Attorney General in a section 38
application differs from the role of the Attorney General where it is also the
prosecutor. In the section 38 application, the Attorney General seeks to ensure
that information the disclosure of which would be injurious to international
relations, national defence or national security is safeguarded and that the
prohibition on disclosure resulting from the section 38 notice is confirmed by
the Court. The Attorney General’s evidence and submissions inform the Court’s
consideration, in accordance with the test established in Ribic v Canada
(Attorney General), 2003 FCA 246 [Ribic], of whether the importance
of the public interest in disclosure outweighs that of the public interest in
non-disclosure. Although there is some adversarial role between the Attorney
General seeking to prohibit the disclosure and the party seeking disclosure,
this differs from the adversarial role between the Attorney General and the
Respondents in the prosecution and in the entrapment proceedings.
[51]
As noted in Ahmad, where the Court
determines that the information sought to be protected in a section 38
application must be disclosed, the prosecuting Attorney General faces the
decision whether to continue with the prosecution or to continue to protect the
information and withhold it from the accused. This reflects the primary
importance of an accused’s right to make full answer and defence.
[52]
The Attorney General notes that neither she nor
the Respondents now have any stake in the outcome of the determination of the
issues raised by the amici. This is true only because the Respondents
abandoned their disclosure application and the Attorney General discontinued
the section 38 application. The Respondents are unaware of the issues raised by
the amici. However, if they were aware, they would likely be very interested in
the issues and their resolution, despite that there will be no practical effect
on the current proceedings in the Supreme Court of British Columbia because the
disclosure Order is rescinded.
[53]
The Attorney General notes that the issues
raised by the amici were not the issues raised in the application. This is
true only because it would have been impossible for the Respondents to
anticipate that the information ordered to be disclosed would only include
information relayed by XXX X to CSIS as
recorded by CSIS XXXXX XXXXX XXXXX XXXXX XXXX
XXXX
XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX.
[54]
If the Court were to exercise its discretion to
consider the issues raised by the amici, the participation of the amici
and the Attorney General would ensure that the Court heard from all
perspectives and would provide an analogous adversarial context. However, as
noted by the Attorney General, it would be exceptional to proceed without at
least one party supporting the determination of the issues and without the
determination having some practical effect on the parties.
B.
Should judicial resources be expended to
determine the issues now?
[55]
The Court, the amici, the Attorney
General and counsel for the Respondents have invested significant time and
effort in this application.
[56]
In Borowski at para 35, the Court noted:
The concern for conserving judicial
resources is partially answered in cases that have become moot if the court's
decision will have some practical effect on the rights of the parties
notwithstanding that it will not have the effect of determining the controversy
which gave rise to the action.
[57]
As noted above, the Respondents may be
interested in the issues and supportive of their resolution if they were aware
of the issues. However, due to the rescission of the disclosure Order and the
discontinuance of the section 38 application, there would be no practical
effect on the parties if the Court determines the issues.
[58]
I appreciate that the amici have
developed legal arguments on the issues raised. If the Court declines to
exercise its jurisdiction, their efforts will have been in vain, at least in
the context of the present case. I agree that the resolution of the issues, or
the development of additional principles in the section 38 jurisprudence, could
benefit future proceedings and save judicial resources in the longer term.
However, this factor alone is not enough for the Court to pursue the issues
now. As the Attorney General notes, in the absence of a full adversarial
context or live dispute, the Court’s determination may offer little more than obiter
comments and have minimal persuasive value.
[59]
I have considered the amici’s argument
that the issues raised could evade resolution if, in future cases, questions
arise about the scope of a disclosure order or a production order made by a
trial court that is subject to a section 38 application and where the time
necessary to hear the evidence, review the material, and determine the issues
leads to the abandonment of the request for disclosure or production, as in
this case. The amici note the risk that the rights of the party seeking
disclosure or production, in this case the rights of the Respondents who allege
entrapment and abuse of process, are at stake.
[60]
I am concerned about these issues and their
impact on the rights of accused persons and on the proper administration of
justice. However, I am not persuaded that the issues raised by the amici
will evade resolution in future cases. I am not aware of other instances where
a section 38 application has been discontinued due to the rescission of a
disclosure order. The circumstances of the present application raise several
concerns but, so far, appear to be unique. There is nothing to suggest that
this will be a recurring approach to section 38 applications.
[61]
As noted at para 36 of Borowski:
The mere fact, however, that a case raising
the same point is likely to recur even frequently should not by itself be a
reason for hearing an appeal which is moot. It is preferable to wait and
determine the point in a genuine adversarial context unless the circumstances
suggest that the dispute will have always disappeared before it is ultimately
resolved.
[62]
While more clarity on the jurisdiction of this
Court to order the production to it of additional information would provide
guidance to prospective parties, in the event that similar circumstances do
arise, it is preferable for this issue to be addressed in the context of
particular facts in an ongoing application.
C.
Will the determination of the issues encroach on
the role of the legislative branch of Government?
[63]
At para 40 of Borowski, the Supreme Court
of Canada noted:
The third underlying rationale of the
mootness doctrine is the need for the Court to demonstrate a measure of
awareness of its proper law-making function. The Court must be sensitive to its
role as the adjudicative branch in our political framework. Pronouncing
judgments in the absence of a dispute affecting the rights of the parties may
be viewed as intruding into the role of the legislative branch. …. In
considering the exercise of its discretion to hear a moot case, the Court
should be sensitive to the extent that it may be departing from its traditional
role.
[64]
I do not agree with the Attorney General that
the Court would exceed it judicial role or would encroach on the role of the
legislative branch if it were to consider and determine the issues raised by
the amici. The law on disclosure from the Crown and production and disclosure
from third parties has been established and has evolved through the
jurisprudence. However, to determine the issues without a real adversarial
context or “live dispute” and without practical
effects or benefits for the parties of the determination would not be
appropriate.
[65]
As noted in Borowski, there is no factor
that trumps the other in the determination whether the Court should exercise
its discretion. In the present circumstances, there are no remaining parties to
the proceedings in this Court, although the amici remain committed to
ensure the proper administration of justice by raising issues that the
Respondents cannot raise because they are not full participants in the section
38 application. Any determination this Court may make would have no impact on
the parties and may have minimal impact on any future applications. Considering
all the relevant factors and the circumstances, it would not be appropriate for
the Court to exercise its discretion to consider and determine the issues
raised by the amici. The Court appreciates the contribution of the amici,
who have at all times provided the Court with valuable assistance and have
highlighted that the rights of the Respondents must not be overlooked, while at
the same time respecting their role as amici.
VIII.
Other Observations
[66]
The circumstances of this application have
raised several issues of concern that cannot be addressed in the context of the
particular facts due to the discontinuance of the section 38 application.
However, in the interest of how future applications may unfold, particularly
those that arise in the context of criminal proceedings, some comments are
offered.
[67]
With respect to the section 38 application, this
Court was placed in an awkward position, partly due to the approach taken by
the Attorney General.
[68]
Although it appears that counsel for the
Attorney General, acting on behalf of CSIS, anticipated that, at some point in
the entrapment proceedings in the Supreme Court of British Columbia, CSIS would
be required to disclose information that it considered to be injurious to
national security, counsel did not give notice to the Attorney General as
contemplated by section 38 until after disclosure of that information to the
Respondents had been ordered by Justice Bruce.
[69]
At the time that the Respondents applied to this
Court pursuant to section 18.1 of the CSIS Act in July 2015, the
material filed by the Respondents (who were applicants in that proceeding)
included the relevant Orders of Justice Bruce. The Orders of Justice Bruce
clearly suggested that if a section 38 issue arose, it would be preferable for
the Attorney General to make that application simultaneously with the
Respondents’ section 18.1 application to avoid additional delay. That did not
occur. Ultimately, for other reasons, the section 18.1 application was
dismissed in December 2015. However, the Attorney General was clearly aware of
the Respondents’ request for disclosure of information from CSIS as early as
July 2015. The
Attorney General should have and likely did anticipate that the Respondents
would renew their application for disclosure of the same information.
[70]
The Respondents pursued their disclosure
application for the same information in December 2015. Counsel for the Attorney
General could have given notice in accordance with the section 38 procedure at
that time, but did not do so. Instead, CSIS provided the information that it
claimed was injurious to national security to Justice Bruce for her review. It
was only on February 2, 2016 and after Justice Bruce determined that the
information was relevant and should be disclosed to the Respondents that
counsel for the Attorney General, on behalf of CSIS, gave notice to the
Attorney General that the information was injurious to national security and
should not be disclosed.
[71]
Justice Bruce’s review of the information held
by CSIS and produced to her was conducted in camera, but in the presence
of counsel for the Attorney General, acting on behalf of CSIS, and with
submissions only from counsel for the Attorney General regarding the nature of
the information and the parts of the information that reflected Justice Bruce’s
Order.
[72]
In this Court, the material already found to be
relevant by Justice Bruce was the subject of the section 38 application.
Generally, the first step in the application of the Ribic test is to
determine if the information is relevant to issues in the underlying action. In
this case, that determination had already been made, within the context of the
issues before Justice Bruce and with the benefit of her understanding of the
issues in the prosecution and the entrapment
proceedings. However, Justice Bruce did not have the benefit of evidence of the
CSIS affiant who testified in the public hearing or the ex parte affiant who
provided evidence in camera and ex parte in this Court. The
experienced CSIS Intelligence Officers explained the information that is
typically recorded, how and why it is recorded, and the nature of other
information that may exist. The ex parte affiant provided extensive
testimony about XXXXX XXXXXX and the
sources of information in the present case, the type of information that would
customarily or usually be collected by CSIS, and the absence of some of this
information in the present case. Justice Bruce did not have this context.
Justice Bruce was not informed that XXXXXX XXXXX
XXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX. Rather, Justice Bruce
only had the submissions of counsel for the Attorney General, on behalf of
CSIS, regarding the CSIS documents. In my view, this did not provide balanced
or complete information to Justice Bruce to permit her to determine whether the
Order for production by CSIS had been XXXXX
XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX.
[73]
Counsel for the Attorney General emphasized that
this Court should focus on the section 38 application and should not look
beyond the information found relevant by Justice Bruce (in counsel’s
expression, to “stick to its knitting”).
However, such a narrow focus ignores the reality that this Court is aware XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XXXXX XX XXXXX
XXXXX XXXXX XXXXX.
[74]
XXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXXXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX. Similarly, if the Respondents had been XXXXXX XXXXXX XXXXXX XXXX XXXX, they may have expanded their
application for disclosure to include more that one-way communication XXXXXX XXXXXX XXXXXX XXXXXX XXXXX.
[75]
This Court noted its concern throughout the
proceedings XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXX. As noted above, this concern was met
with the Attorney General’s response to focus only on the information that was
the subject of the section 38 notice, which was only the information found to
be relevant by Justice Bruce.
[76]
This Court heard the ex parte affiant who
provided important context for the information that was produced and XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXXX XXXXXX XXXXXX. Justice
Bruce, who has the jurisdiction to order production and disclosure, found some
information to be relevant to the Respondents’ allegations of entrapment and
abuse of process XXXXXX XXXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XX XXX XXXXXX X XXXXXX XXXXX XXXXXX XXXXXX XXXXXX XXXXXXXX XXX
XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXX.
[77]
In other section 38 applications, this Court has
ordered the production to it of additional information for context to assist
the Court to determine if the information should be protected from disclosure.
However, this Court appears not to have ordered the disclosure of additional information
where a trial Court has already determined what is relevant. This raises the
question how, XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXX XXX, further disclosure applications
should be conducted and in which Court. If the trial court is the only forum in
which to bring the application for production and disclosure, how can the
necessary information be conveyed to the XXXXXX
XXXXXX XXX party seeking disclosure to provide the foundation for a further
production or disclosure application without revealing the information sought
to be protected n a section 38 application?
[78]
If this Court had the jurisdiction to order
additional production or disclosure, the information would remain protected.
However, this would likely invite the criticism that this Court is not
sufficiently aware of the issues at trial in order to determine production and disclosure.
If the trial Court is the only forum to order production or disclosure, there
could be a continuing cycle of disclosure orders followed by section 38
applications, with the consequent delays to the ongoing trial proceedings. The
impact of additional disclosure applications in the
trial court and further section 38 applications in this Court was noted in the
present proceedings and the possibility for delay was flagged. As noted by the amici,
the Attorney General was not receptive to the suggestion that it consider
disclosing some information to the Respondents to avoid the likelihood of
further applications for production and disclosure, or that it assert additional
section 38 claims in anticipation of the disclosure of additional information
to avoid the delays that could ensue.
[79]
The past criticisms of the bifurcated section 38
process include the delay inherent in the need for this Court to determine the
application while the trial process is held in abeyance. Delay is likely
inevitable regardless of bifurcation given the volume of material sought to be
protected, the need to ensure that the information is securely held and
carefully safeguarded, the time required for careful review of the information
and other factors. In the present circumstances, this Court proceeded as
expeditiously as possible. As noted above, if the Attorney General had chosen
to bring the section 38 application at an earlier stage, the application would
likely have been resolved within a time frame to permit the continuance of the
proceedings in the British Columbia Supreme Court as scheduled, even if the
outcome of the section 38 application resulted in additional applications by
the Respondents for production and disclosure. Additional requests for
production were contemplated by Justice Bruce’s earlier orders.
[80]
As noted above, the Attorney General filed its
notice of application in this Court on February 16, 2016. The Court was
cognisant of the impact of delay and convened a CMC immediately upon receipt of
the notice by the Attorney General, then moved expeditiously to set
aside time to ensure the application was determined in a time frame to respect
the ongoing proceedings in the Supreme Court of British Columbia. A section 38
application cannot be determined without evidence. In this case, the records
sought to be protected were filed a few days after the notice of application
and the affidavits of the public affiant and the ex parte affidavit were
filed one and two weeks later. The Court accommodated the parties and the affiants
with respect to the scheduling of the hearings. In the future, the Court may be
more inclined to set firm dates for filing the documents and the hearings to
permit a timely determination of the application, particularly where the
material is not voluminous, and balanced with the need for the full
consideration of the issues.
[81]
The time necessary to determine the section 38
application was clearly a factor in the Respondents’ decision to abandon their
request for the CSIS documents. While this was the Respondents’ decision to
make, and they are represented by capable counsel, the Court is of the view
that had the application proceeded earlier, as it could have, the Respondents
would not have been faced with the decision to request an adjournment of the
proceedings in the British Columbia Supreme Court or to forego their request
for disclosure of information from CSIS which could possibly support their
allegations of entrapment and abuse of process. This Court will continue to
ensure that in other cases the application proceeds as expeditiously as
possible. The steps in the process, some of which can be influenced by the
steps that the Attorney General must take to file the application, provide the
documents and file the affidavits and other evidence should not exhaust the
resources of the party seeking the information or impair their rights or the
proper administration of justice.
[82]
The outcome of the present proceedings was not
anticipated by this Court. In hindsight, perhaps it should have been. It is
possible that if this Court had required specific time frames for filing all
material and affidavits and scheduling the hearings, along with permitting some
limited and specific communication between the amici and counsel for the
Respondents, there would have been a different outcome. It is also possible
that had the Respondents been advised that jurisdictional issues were raised,
they may have alerted the Court to their preference (if it had been their
preference) that the Court focus on its determination of the section 38
application with the evidence provided to date. If that had occurred, the Court
would have requested, by mid- April, the submissions of the Attorney General
and the amici on whether the information sought to be protected as
injurious to national security should be protected. History cannot be re-
written and the jurisdictional issues raised by the amici are important
and should have been raised. There may be no easy resolution to the
jurisdictional issues. The approach to this application has highlighted
concerns to be addressed or avoided in the future and that the rights of all
parties must be considered.
[83]
This Court remains concerned that XXXXX XXXXX XXXXX XXXXX XXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX XXXXXX
XXXXXX XXXXXX XXXXXX XXXXXX. This Court acknowledges that the entrapment
and abuse of process
allegations focus on the conduct of the investigating police service and that
CSIS is a third party in these proceedings. XXXXXX
XXXXXX XXXXXX XXXXX XXXXX XXXXXX XXXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXX XXXXXX
XXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXXXXXX XXXXXX XXXXXX XXXXXX XXXXX XXXXXX
XXXXXX XXXXX.
[84]
As noted above, the role of the Attorney General
in this section 38 application is to protect the disclosure of information that
would be injurious to national security. The determination of a section 38
application requires a balancing of interests. The success of the prosecution
is not part of that balancing.
THIS COURT ORDERS that it declines to
exercise its discretion to determine the jurisdictional issues given the
discontinuance of the section 38 application.
“Catherine M. Kane”
Email this Content