Canada (Attorney General) v. MacDonald, 2024 FC 716

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2024 FC 716

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Text of decision

Date: 20240515

Docket: DES-5-23

Citation: 2024 FC 716

Ottawa, Ontario, May 15, 2024

PRESENT: The Honourable Mr. Justice Fothergill

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

PATRICK GORDON MACDONALD

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

ORDER

UPON the Application of the Attorney General of Canada [AGC] pursuant to s 38.04(1) of the Canada Evidence Act, RSC 1985, c C-5 [CEA] for an Order confirming the prohibition of disclosure of information contained in documents referred to in a notice given by counsel for the Public Prosecution Service of Canada [PPSC] to the AGC pursuant to s 38.01(1) of the CEA;

AND CONSIDERING that:

(a)on July 4, 2023, Mr. Macdonald was charged with offences pursuant to ss 83.18, 83.19 and 83.02 of the Criminal Code, RSC, 1985, c C-46 (Ontario Court of Justice Court File No 4011 998 23 1140453500);
(b)on September 14, 2023, counsel for the PPSC provided notice to the AGC pursuant to s 38.01(1) of the CEA that sensitive or potentially injurious information may be disclosed in connection with the criminal proceeding against Mr. Macdonald; and
(c)on March 18, 2024, the Court appointed Mr. Harout Haladjian as amicus curiae in this Application;

AND UPON reading the materials filed, including the classified affidavits submitted on behalf of the AGC, and hearing from counsel for the AGC and the amicus curiae during an in camera, ex parte hearing on May 2, 2024;

AND CONSIDERING that Mr. Macdonald and his counsel have communicated to the amicus curiae their theory of the defence and the categories of information that may be of interest to them, and have indicated that no public hearing is required and take no position on the Application;

AND CONSIDERING that counsel for the AGC and the amicus curiae have made a joint submission to the Court with their recommendations respecting the disposition of the Application;

AND CONSIDERING that, notwithstanding the joint recommendations of the AGC and the amicus curiae, the Court must determine, in accordance with the applicable statutory provisions and governing jurisprudence, whether the prohibition of disclosure of the information in issue should be confirmed (Canada (Attorney General) v Meng, 2020 FC 844 at para 71);

AND CONSIDERING the tripartite test to determine whether the Court should maintain the confidentiality of information the disclosure of which is alleged to be injurious to international relations, national defence or national security (Ribic v Canada (2003), 185 CCC (3d) 129 (FCA)), namely:

(a)whether the information the AGC seeks to protect is relevant to the underlying proceeding;
(b)if so, whether disclosure of the information would be injurious to international relations, national defence or national security; and
(c)if so, whether the public interest in disclosure outweighs in importance the public interest in non-disclosure;

AND UPON being satisfied that:

(a)the materiality of the information in issue to the underlying proceeding is not always evident, but its potential relevance may be inferred from the disclosure of the documents to Mr. Macdonald in accordance with R v Stinchcombe, [1991] 3 S.C.R. 326; the threshold requirement for disclosure in the context of a criminal trial and the threshold applied at the first step of the Ribic test are both quite low (Canada (Attorney General) v Ortis, 2022 FC 142 at para 74);
(b)courts should accord deference to decisions of the executive in matters of national security, national defence and international relations, as the executive is considered to have greater knowledge and expertise in such matters; but the AGC nevertheless has the burden to prove that disclosure would be injurious to international relations, national defence or national security (Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766 at paras 46-48);
(c)disclosure of the information in issue would be injurious to national security, insofar as it tends to reveal: (i) the names and contact information of personnel employed by the Department of National Defence and Canadian Armed Forces [DND/CAF], the Canadian Security and Intelligence Service [CSIS], and the Financial Transactions and Reports Analysis Centre of Canada [FINTRAC]; (ii) the identities of individuals, groups or issues of investigative interest; and (iii) confidential techniques and capabilities;
(d)disclosure of the summaries of information jointly proposed by counsel for the AGC and the amicus curiae will not be injurious to international relations, national defence or national security, and will provide meaningful disclosure to Mr. Macdonald;
(e)given the tenuous materiality of the information in issue to the underlying criminal proceeding, the public interest in disclosure does not outweigh in importance the public interest in non-disclosure; and
(f)some of the information in issue cannot be summarized in a manner that would prevent injury to national security if disclosed;

THIS COURT ORDERS that:

The attached table summarizing the information in issue shall be disclosed pursuant to s 38.06(2) of the CEA for use in the underlying criminal proceeding.
In all other respects, the application of the AGC pursuant to s 38.04 of the CEA to prohibit the disclosure of information is granted, and the prohibition of disclosure is confirmed pursuant to s 38.06(3) of the CEA.

“Simon Fothergill”

Judge

ATTACHMENT

No.

AGC ID

Public Summary

AGC0001

The redacted information identifies the name of DND/CAF member.

AGC0002

The redacted information identifies the name, email address and phone number of a DND/CAF member.

AGC0003

The redacted information identifies the names and email addresses of DND/CAF members, including the member who made the weapons assessment.

AGC0004

The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.

AGC0005

The redacted information identifies the phone number of a FINTRAC employee.

AGC0006

The redacted information identifies the phone number of a FINTRAC employee.

AGC0007

The redacted information identifies the phone number extension of a DND/CAF member.

AGC0008

The redacted information identifies the phone number of a DND/CAF member.

AGC0009

The redacted information identifies the name of a DND/CAF member.

AGC0010

The redacted information identifies the phone number of a FINTRAC employee.

AGC0011

The redacted information identifies the name of a DND/CAF member.

AGC0012

The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.

AGC0013

The redactions refer to a period of time within the CSIS investigation.

AGC0014

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

AGC0015

The redacted information identifies the names and email addresses of FINTRAC employees.

AGC0016

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0017

The redactions refer to a period of time within the CSIS investigation.

AGC0018

Part of the redacted information identifies the name of a DND/CAF member who made the weapons assessment. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.

AGC0019

Part of the redacted information describes a CSIS investigative technique. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.

AGC0020

Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.

AGC0021

The redacted information identifies the names of CSIS employees.

AGC0022

Part of the redacted information identifies the name and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.

AGC0023

The redacted information identifies the names of CSIS employees.

AGC0024

Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.

AGC0025

The redacted information identifies the names of CSIS employees.

AGC0026

Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.

AGC0027

The redacted information identifies the names of CSIS employees.

AGC0028

Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.

AGC0029

The redacted information identifies the names of CSIS employees.

AGC0030

Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.

AGC0031

The redacted information identifies the names of CSIS employees.

AGC0032

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

AGC0033

The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.

AGC0034

The redacted information identifies the name of a CSIS employee.

AGC0035

The redacted information identifies the name of a CSIS employee.

AGC0036

The redacted information identifies the names of CSIS employees.

AGC0039

The redacted information identifies the names and email addresses of CSIS employees.

AGC0040

Part of the redacted information identifies the names and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.

AGC0041

The redacted information identifies the names of CSIS employees.

AGC0044

The redacted information identifies the name of a CSIS employee.

AGC0045

The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.

AGC0046

Part of the redacted information identifies the names and an email address of CSIS employees. The redactions also relate to the response to the deconfliction process.

AGC0047

The redacted information identifies the name of a CSIS employee.

AGC0048

Disclosure of the redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.

AGC0049

The redactions relate to the response to the deconfliction process.

AGC0050

The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.

AGC0051

The redacted information identifies a CSIS phone number, internal procedures and administrative methodologies.

AGC0052

The redacted information identifies a CSIS phone number, internal procedures and administrative methodologies.

AGC0053

The redacted information identifies the name and email address of a CSIS employee.

AGC0054

The redacted information identifies the name and email address of a CSIS employee.

AGC0055

The redacted information identifies the name and email address of a CSIS employee.

AGC0056

The redacted information describes a CSIS Technique.

AGC0057

The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.

AGC0058

The redacted information identifies the name of a CSIS employee.

AGC0059

The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.

AGC0060

The redacted information identifies the name of a CSIS employee.

AGC0061

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

AGC0062

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

AGC0063

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

AGC0064

Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.

AGC0065

The redacted information identifies the names of CSIS employees.

AGC0066

Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.

AGC0067

The redacted information identifies the names of CSIS employees.

AGC0068

Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.

AGC0069

The redacted information identifies the names of CSIS employees.

AGC0070

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

AGC0071

The redacted information identifies the email address of a CSIS employee.

AGC0072

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0073

The redacted information identifies the phone number of a FINTRAC employee.

AGC0074

The redacted information identifies the phone number of a FINTRAC employee.

AGC0075

The redacted information identifies the phone number of a FINTRAC employee.

AGC0076

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0077

The redacted information identifies the phone number of a FINTRAC employee.

AGC0078

The redacted information identifies the name of a FINTRAC employee.

AGC0079

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0080

The redacted information identifies the phone number of a FINTRAC employee.

AGC0081

The redacted information identifies the phone number of a FINTRAC employee.

AGC0082

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0083

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0084

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0085

The redacted information identifies the phone number of a FINTRAC employee.

AGC0086

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0087

The redacted information identifies the phone number of a FINTRAC employee.

AGC0088

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0089

The redacted information identifies the phone number of a FINTRAC employee.

AGC0090

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0091

The redacted information identifies the phone number of a FINTRAC employee.

AGC0092

The redacted information identifies the phone number of a FINTRAC employee.

AGC0093

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0094

The redacted information identifies the phone number of a FINTRAC employee.

AGC0095

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0096

The redacted information identifies the names of CSIS employees.

AGC0097

The redacted information identifies the name and phone number of a FINTRAC employee.

AGC0098

The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.

AGC0099

The redacted information identifies the name of a DND/CAF member.

AGC0127

The redacted information identifies phone numbers of a DND/CAF member.

AGC0129

The redacted information identifies the name of a DND/CAF member. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.

AGC0130

The redacted information identifies the name of a DND/CAF member.

AGC0131

The redacted information identifies the name of a DND/CAF member.

100

AGC0132

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

101

AGC0133

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

102

AGC0134

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

103

AGC0135

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

104

AGC0136

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

105

AGC0137

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

106

AGC0138

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

107

AGC0139

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

108

AGC0140

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

109

AGC0141

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

110

AGC0142

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

111

AGC0143

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

112

AGC0144

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

113

AGC0145

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

114

AGC0146

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

115

AGC0147

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

116

AGC0148

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

117

AGC0149

The redacted information identifies the name of a DND/CAF member who made the weapons assessment.

118

AGC0150

The redacted information identifies the names of CSIS employees.

119

AGC0151

Disclosure of the redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.

120

AGC0152

The redactions relate to the response to the deconfliction process.

121

AGC0153

The redactions relate to the response to the deconfliction process.

122

AGC0154

Part of the redacted information identifies the names and an email address of CSIS employees. The redactions also relate to the response to the deconfliction process.

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Canada (Attorney General) v. MacDonald, 2024 FC 716

Citations2024 FC 716

Case tabs

Citations
2024 FC 716