Date: 20231220
Docket: DES-14-22
Citation: 2023 FC 1729
Ottawa, Ontario, December 20, 2023
PRESENT: The Honourable Madam Justice Kane
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BETWEEN: |
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JAMAL TAAN BORHOT |
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Applicant |
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andA |
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ATTORNEY GENERAL OF CANADA
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Respondent/Moving Party |
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and
DIRECTOR OF PUBLIC PROSECUTIONS |
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Respondent |
CONFIDENTIAL ORDER AND REASONS
[1] The Attorney General of Canada [AGC] brings this motion to strike out the Notice of Constitutional Question [NCQ] filed by the amicus curiae [amicus], who was appointed to assist the Court in the Application by Mr. Jamal Borhot [Mr. Borhot] pursuant to section 18.1 of the Canadian Security Intelligence Service Act [the CSIS Act]. The AGC requests that the NCQ be struck from the record without leave to amend, removed from the record, or that the Court refuse to accept the NCQ. Some background information is set out below before addressing the AGC’s motion.
1. Background
[2] On February 16, 2021, Mr. Borhot was charged with several counts pursuant to section 83.18 of the Criminal Code which allege that he participated in the activities of a terrorist group.
[3] The Director of Public Prosecutions [DPP] has provided disclosure to Mr. Borhot. Some of the documents disclosed by the DPP were redacted to protect sensitive or potentially injurious information, as those terms are defined in section 38 of the Canada Evidence Act [CEA]. The AGC brought an application in this Court pursuant to section 38 of the CEA in file number DES-3-22 [the Section 38 Application], and the Court confirmed the redactions by Order dated May 25, 2023 (2023 FC 693). A subsequent and related section 38 Application remains to be determined.
[4] Mr. Borhot filed an application on December 23, 2022, pursuant to subsection 18.1(4) of the CSIS Act for the disclosure of the identity of a human source or information from which the identity of a human source could be inferred [the First Section 18.1 Application].
[5] In the First Section 18.1 Application Mr. Borhot advanced the position that civilian and police witnesses relied on by the DPP were, or may have been, human sources, and that the disclosure of the identity of these witnesses and other information is essential to establish Mr. Borhot’s innocence.
[6] By Order dated January 12, 2023, the Court appointed Mr. Solomon Freidman, a security cleared lawyer, bound to secrecy in perpetuity in accordance with the Security of Information Act, RSC 1985, c O-5, as amicus to assist the Court in performing its statutory obligations under section 18.1 of the CSIS Act. Mr. Freidman was previously appointed, on September 29, 2022, as amicus for the Section 38 Application. The Order provided, among other things: that the amicus shall have access to the section 18.1 information contained in the documents; that in the event the amicus has already had access to the section 18.1 information, he shall not have any communication with Counsel for Mr. Borhot or Mr. Borhot without prior leave of the Court; and, that the amicus must keep all information and documents to which he has had access confidential from Mr. Borhot, his counsel, and any other person not participating in the in camera, ex parte hearing. The Order further provided that the amicus could attend any public hearing and, with leave of the Court, make submissions as directed by the Court, and could participate in the in camera ex parte hearings and cross-examine the AGC’s ex parte witness(es) and make submissions as directed by the Court.
[7] The Court received public submissions from Counsel for Mr. Borhot, the DPP and the AGC. The Court also received in camera, ex parte submissions from the AGC and amicus.
[8] In his written submissions and at the public hearing, Counsel for Mr. Borhot argued that based on the disclosure provided, concerns arose that the credibility and reliability of potential witnesses may have been compromised by the parallel investigations by the Royal Canadian Mounted Police [RCMP] and the Canadian Security Intelligence Service [CSIS].
[9] On June 6, 2023 the Court dismissed the First Section 18.1 Application and issued a Confidential Order and Reasons (2023 FC 772). The Court found that Mr. Borhot had not established that his innocence was at stake by the non-disclosure of the information he sought. The Court noted the parameters of section 18.1 and that the innocence at stake exception was a high threshold, noting at paras 22-25,
22 The Court has applied the statutory provision, properly interpreted, and the relevant jurisprudence. The jurisprudence recognizes that the section 18.1 CSIS Act regime is distinct from the section 38 CEA regime. Considerations that apply in section 38 applications cannot be imported into section 18.1 applications (Almrei at para 35).
23 In AGC v Almalki 2016 FCA 195 [Almalki], the Federal Court of Appeal considered both section 38 of the CEA and section 18.1 and concluded that their differences were intentional (see paras 60-67).
24 In Almalki at para 60, the Court of Appeal stated,
Thus, when one considers the historical context and the legislative evolution of section 38 of the CEA and section 18.1 of the CSIS Act, it is evident that the new provision deprives the respondents of the benefit of the more liberal version of the privilege set out in section 38 of the CEA pursuant to which the question of the identity of sources and information tending to identify them was dealt with up until now.
25 The amicus has highlighted that circumstances may arise where the stringent test in section 18.1 cannot be reconciled with the Charter rights of an accused. However, on the Section 18.1 Application before the Court, and on the jurisprudence that binds this Court, the Court cannot find that Mr. Borhot’s innocence is at stake. In addition, the jurisprudence establishes that the role of the amicus is to assist the Court in the Application before it (Ader v Canada 2018 FCA 105 at paras 40 – 41) and he has done so.
[10] At the time of the June 6, 2023 Order, the Court was aware and acknowledged that Mr. Borhot had sought further disclosure from the DPP and production of records from third parties, including CSIS. The Court noted that further section 18.1 applications could result from the production of additional records.
[11] The Alberta Court of Kings Bench considered Mr. Borhot’s motion seeking third party records in accordance with R. v O’Connor [1995] 4 S.C.R. 411 and R. v Mc Neil 2009 SCC 3. The motions judge considered the likely relevance of the documents sought, ordered production of several documents for her review and then determined the actual relevance of the documents. The motions judge reviewed some documents that were later subject to privilege claims; |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The motions judge issued her ruling on August 22, 2023, and provided directions on the production of specific documents or parts thereof. ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[12] On September 6, 2023, Mr. Borhot filed his Second Section 18.1 Application seeking the identity of an alleged human source or sources. In the Second Section 18.1 Application, Mr. Borhot refers to the further documents that were ordered to be produced to him by the Alberta Court of Kings Bench but subsequently subject to privilege claims. He generally asserts that Section 18.1 should not apply.
[13] Hearing dates were scheduled for the Second Section 18.1 Application in mid-September, but were adjourned pending the potential resolution of other related issues. The Court held several case management conferences [CMC] with the amicus and AGC and issued public communications to Mr. Borhot to keep him apprised of the status of the Second Section 18.1 Application.
[14] The CMCs canvassed, among other issues, whether and how (including in which court) the amicus’ concerns about the constitutionality of section 18.1, as it applied to the present circumstances, could be addressed. The amicus and Counsel for the AGC discussed the wording of a question that would identify the issue in a general way without disclosing any privileged information. Other options discussed included that the Court could request submissions on specific questions in the context of determining the Second Section 18.1 Application.
[15] Based on the amicus’ access to and review of the unredacted information and in order to highlight the importance of the concerns he identified and/or to expedite a process to address them, the amicus initiated the NCQ.
[16] On September 22, 2023, the amicus filed the NCQ in this Court and served it on Mr. Borhot, the DPP (Public Prosecution Service of Canada [PPSC]), and on provincial and territorial Attorneys General. The question reflects the same careful language previously canvassed by the amicus with Counsel for the AGC.
[17] The AGC raised preliminary concerns, including the authority of the amicus to bring a NCQ and other procedural deficiencies. A public CMC was convened on October 5, 2023 at which time the Court relayed a proposal developed by the AGC and amicus intended to avoid the AGC’s preliminary concerns. The proposal canvassed whether Mr. Borhot would adopt the NCQ as his own and amend his second Notice of Application to link the NCQ to the Second Section 18.1 Application, including by seeking some constitutional remedy. Counsel for Mr. Borhot declined.
[18] On October 23, 2023, the AGC filed the current motion to strike the NCQ filed by the amicus.
[19] On October 26, 2023, Counsel for Mr. Borhot wrote to the AGC, DPP, amicus and the Court seeking to clarify the position they had stated at the October 5, 2023 CMC. Counsel for Mr. Borhot reiterated that they declined to adopt the NCQ as their own and that “without seeing the documents counsel for the applicant is unable to determine if it agrees with the characterization of the
amicus of the relevant documents and/or the application of informant privilege for the purpose of the NCQ”
. Counsel explained their concerns about not seeing the underlying factual basis for the NCQ as posing a risk to their overall Section 18.1 Application. Counsel for the Applicant added that their inability to adopt the amicus’ position should not be interpreted as suggesting that they are opposed to the NCQ being addressed.
2. The AGC’s Motion
[20] The Court agrees, and the amicus acknowledges, that the amicus cannot bring a NCQ that is not attached to an underlying application. Mr. Borhot has made two applications pursuant to section 18.1, but he has not raised a NCQ in the context of his applications. As noted, Counsel for Mr. Borhot are aware of the NCQ and have advised the Court that they are not opposed to the amicus’ initiative to raise the NCQ, however, they have clearly stated that they will not amend their Notice of Application for the Second Section 18.1 Application or adopt the NCQ as their own.
[21] The AGC’s motion to strike the NCQ and to remove it from the record is, therefore, granted.
3. The Alternative Proposal
[22] Although the amicus agrees that he cannot bring this NCQ, the amicus alternatively submits that the Court should rely on its inherent jurisdiction and raise the constitutional issue on its own motion and continue the appointment of the amicus to assist in the determination of the issue.
[23] The AGC responds that the circumstances do not warrant the Court taking the exceptional step of raising the issue on its own and seeking submissions on the constitutionality of section 18.1.
[24] The amicus and AGC interpret the position of Counsel for Mr. Borhot regarding the NCQ differently.
[25] The amicus submits that Counsel for Mr. Borhot have taken the only position possible position, which is a principled position, given that Counsel have no knowledge of the information that has been withheld and could not participate in any meaningful way, including by amending their Notice of Application for the Second Section 18.1 Application, given this lack of knowledge. The amicus emphasizes that Counsel for Mr. Borhot are not opposed to the amicus pursuing the issue.
[26] The AGC emphasizes that Mr. Borhot was given the opportunity to adopt the NCQ and to rely on the amicus’ submissions and access to the records to advance issues regarding whether reliance on section 18.1 to withhold information breached Mr. Borhot’s right to full answer and defence, but declined. The AGC submits that the Court should not proceed to explore the same issues as this would interfere with Mr. Borhot’s control of his defence and could impact the progress of his trial.
[27] The AGC notes that, although this Court has an integral role in ensuring fairness in national security related proceedings and has the discretion to raise constitutional issues on its own motion, the Court should not exercise its discretion to do so in this case. The AGC submits that this is not an exceptional case, the issue is not novel and raising the constitutional issue will not serve to prevent an injustice or ensure fairness. The AGC notes that there are safeguards to prevent any unfairness, including the role of the prosecutor as an officer of the Court. The AGC also notes that pursuing the issue may impact Mr. Borhot’s right to be tried in a reasonable time.
[28] The AGC acknowledges, however, that if Mr. Borhot had adopted the NCQ and amended his Notice of Application for the Second Section 18.1 Application to seek a remedy, the Court would have proceeded to invite submissions, continued the appointment of the amicus to assist, and the AGC would have then made submissions on a complete record.
[29] The AGC also acknowledges that there will be circumstances (in the future) where the constitutionality of section 18.1 should be litigated, but reiterates that the present circumstances do not warrant such Charter litigation. The AGC submits that Mr. Borhot has had sufficient disclosure and production to make full answer and defence and that there is no concern about trial fairness.
[30] The amicus responds that based on his review of the information sought to be protected from disclosure—which in the amicus’ view would not meet the high threshold of establishing the innocence of the accused, but would be relevant and probative information that would otherwise be disclosed to Mr. Borhot to respect his right to make full answer and defence, but which in this case has also not been disclosed to the prosecutor and would not be available to the trial judge—these circumstances demand that the issue be explored further.
[31] The Court observes that based on the record, the same issues arise on the Second Section 18.1 Application as arose on the First Section 18.1 Application and the outcome would be the same. Mr. Borhot has not established that the information he seeks—which this Court has reviewed—would meet the threshold of innocence at stake. The interpretation of section 18.1 is strict and it does not permit the Court to balance interests or to provide any summary of information—even to the trial judge alone. As noted in the Court’s previous order, section 18.1 is a different regime than section 38 of the CEA. It is the differences between the two regimes—in particular, where the underlying proceeding is a criminal prosecution—that lead to the constitutional question.
4. The Constitutionality of Section 18.1 has not been previously challenged
[32] The section 18.1 statutory class privilege has been described as “akin”
to police informer privilege. In Canada (Attorney General) v Almalki 2016 FCA 196, at para 38, [Almalki] the Federal Court of Appeal noted that “the class privilege created at section 18.1 is akin (albeit somewhat different) to the common law class privilege which is described by this Court in
Almalki 2011 as “a legal rule of public order by which a judge is bound (see paragraphs 15-18)”
. The FCA added that its enactment reflects the Supreme Court of Canada’s finding in Canada (Minister of Citizenship and Immigration) v Harkat [2014] 2 S.C.R. 33 [Harkat] that only Parliament could create a class privilege for human sources.
[33] In Almalki, at para 66, the Court of Appeal described the statutory class privilege as “filling a perceived gap”
following the decision in Harkat, adding at para 70, that “one can assume that Parliament saw the need to deal with the mischief addressed by the adoption of Section 18.1 as urgent. That mischief was the perception that CSIS human sources were not automatically protected by a privilege of confidentiality akin to police informers…”
[34] In AGC v Almrei 2022 FCA 206, the Federal Court of Appeal described the section 18.1 privilege as an absolute class privilege and stated that section 18.1 was intended to be more restrictive than section 38 of the CEA (at paras 21 and 28). The Court of Appeal clearly stated that summaries of information could only be provided in the event that the Court found that innocence was at stake. The Court of Appeal rejected the analogy with police informer privilege that may permit summaries of “carefully crafted”
information, which do not disclose the identity of the informer, to be provided when the right of an accused to make full answer and defence is at issue (at para 44). The Court of Appeal concluded that this was not an option where section 18.1 applied. Of note, in Almrei, the underlying matter is a civil action.
[35] Police informer privilege has been scrutinized by the Courts and it is well established that the innocence at stake exception is the only exception to the privilege. There is no exception for the right to make full answer and defence (R. v Leipert [1997] 1 S.C.R. 281, at para 24). The section 18.1 statutory privilege has not yet been the subject of any constitutional challenge. While the section 18.1 privilege also provides for the single exception of innocence at stake, there are differences, which will vary from case to case, that do not permit the Court to simply conclude that the jurisprudence on the constitutionality of police informer privilege automatically applies to the section 18.1 statutory class privilege.
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[37] The jurisprudence has not addressed the constitutionality of section 18.1, but it has confirmed that it is an absolute privilege and that no options exist to permit summaries of information, except where the innocence at stake exception is established. The Courts have not been presented with the circumstances that arise in the present case, which pit the absolute privilege against the right to make full answer and defence in a context where some information, which has been found to be actually relevant, will not be known to the prosecutor or trial judge, let alone the accused. The safeguards that the AGC suggests would address trial fairness may not be applicable in the current circumstances. While the information found to be relevant would not establish the innocence of the accused, this Court cannot speculate about how it could otherwise be used in his defence.
[38] The Court notes that in Canada (Minister of Public Safety and Emergency Preparedness) v Ewen 2023 FCA 225, the Federal Court of Appeal provided guidance regarding the scope of the court’s discretion to raise new, including constitutional, issues on its own. In the present case, the issue is not new, as it was raised by the amicus early in the proceedings and the AGC did not previously reject the need to explore the issue, and unlike Ewan, it arises from the application before the Court.
[39] As noted above, the AGC and amicus interpret the October 26, 2023 communication from Counsel for Mr. Borhot differently. What is clear is that Counsel are not opposed to the amicus raising the constitutional issue. If Counsel are not opposed to the issue being raised by the amicus, then they would likely not oppose the Court’s request that submissions be made to the Court on the same or similar issue.
[40] In the event that Counsel for Mr. Borhot has concerns about the Court’s request to the amicus and AGC to make submissions, including concerns about the potential delay in finally determining the Second Section 18.1 Application and the impact on the progress of Mr. Borhot’s trial, the Court invites Counsel to advise the Court forthwith.
[41] The Court finds that the issues raised by the amicus—which relate to how section 18.1 applies in the circumstances of the criminal prosecution against Mr. Borhot—cannot be ignored by this Court. The Court, therefore, requests that the amicus and the AGC make submissions to the Court regarding the constitutionality of section 18.1 of the CSIS Act as it applies to the circumstances that arise in Mr. Borhot’s Second Section 18.1 Application.
[42] The general questions posed by the amicus remain appropriate:
Does section 18.1 of the CSIS Act, as applied in a criminal proceeding where the section 18.1 information is not essential to establish the accused’s innocence, violate the right of the accused to make full answer and defence, contrary to section 7 and paragraph 11(d) of the Canadian Charter of Rights and Freedoms [Charter]?
If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Charter?
[43] In addressing the general question, the related questions include whether the statutory privilege in section 18.1 is analogous to police informer privilege, whether and how it differs and whether the jurisprudence regarding police informer privilege is applicable, with or without adaptations.
[44] In addition, if section 18.1 were found to infringe the Charter as it applies in the present circumstances, what would be an appropriate remedy?
[45] The Court also requests that Counsel for the AGC and the amicus identify any necessary redactions to this Classified Order and Reasons no later than January 10, 2024, following which a public version will be issued.
ORDER in DES 14-22
THIS COURT ORDERS that:
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The AGC’s motion to strike the Notice of Constitutional Question filed by the amicus is granted.
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The Court seeks submissions from the AGC and amicus on the constitutional validity of Section 18.1 of the CSIS Act as it applies in the context of the criminal prosecution of Mr. Borhot and in the context of the particular information that cannot be produced or disclosed due to the statutory privilege and the impact the lack of production and disclosure has on Mr. Borhot’s right to make full answer and defence. The questions to be addressed may be further refined, if necessary, by the Court, AGC and amicus.
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The Court requests that the submissions be provided by the AGC and amicus by February 2, 2024, not to exceed 20 pages and reply submissions by February 9, 2024, not to exceed 5 pages.
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The Court requests that the AGC and amicus identify any necessary redactions to this Classified Order and Reasons no later than January 10, 2024.
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There is no Order for Costs.
"Catherine M. Kane"
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