Date: 20100409
Docket: DES-7-08
Citation: 2010
FC 379
Ottawa, Ontario, April 09, 2010
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
IN
THE MATTER OF a certificate
signed pursuant to section
77(1) of the Immigration and Refugee Protection Act (IRPA);
AND IN THE MATTER OF the
referral of a certificate to the Federal Court pursuant to section 77(1) of the
IRPA;
AND IN THE MATTER OF Mohamed
Zeki Mahjoub.
REASONS FOR ORDER AND ORDER
[1]
Mr.
Mahjoub proposes that Henry Garfield Pardy be qualified as an expert in the
motion for the exclusion of evidence pursuant to section 83(1.1) of the Immigration
and Refugee Protection Act, 2001, c.27 (IRPA). Mr. Mahjoub seeks to have Mr. Pardy
qualified as an expert on the following matters:
(1)
Consular
services and the consular program in Canada.
(2)
Flow of
information from nation to nation through diplomatic policing and security
channels.
(3)
The amount
of sharing of information through those channels.
(4)
Factors
affecting the reliability of the information.
(5)
The
assessment of information, including intelligence information.
(6)
How
intelligence information may have affected Canadian detainees held abroad.
(7)
The real
culture of the Canadian Security Intelligence Service (Service) in respect of
human rights of Canadian detainees held abroad in the period from 1998 through
to 2003.
[2]
With
respect to the last proposed area of expertise, Counsel for Mr. Mahjoub amended
the request for qualification during oral submissions. Counsel recognized that
Mr. Pardy could not speak to the real culture of the Service, but argued that
he could speak to the effect that he observed of the Service’s conduct
vis-à-vis sharing of information on Canadian detainees held abroad.
[3]
In
submissions, Counsel for Mr. Mahjoub also argued that Mr. Pardy be qualified to
give opinion evidence about
matters that relate to torture and mistreatment and how to make judgments about
the likelihood of torture or mistreatment in relation to detainees held abroad.
[4]
The
Ministers agree that Mr. Pardy has expertise in the area of consular affairs
and diplomatic relations. They accept that he may give opinion evidence on
consular services and the consular program in Canada.
[5]
The
Ministers do not agree that Mr. Pardy has any expertise in relation to the flow
of information from nation to nation through policing and security channels.
They agree that Mr. Pardy may opine on the flow of information from nation to
nation through diplomatic and consular channels insofar as the information in question
involves diplomatic and/or consular affairs. The Ministers acknowledge that Mr.
Pardy did receive intelligence but maintain that it was ancillary to his
mandate in Foreign Affairs. The Ministers therefore take issue with the ambit
of expertise proposed in these areas.
[6]
The
Ministers further agree that Mr. Pardy may opine on the amount of information
shared through diplomatic and consular channels and the factors affecting the
reliability of such information. It is also agreed that Mr. Pardy may give
opinion evidence on how one assesses information of a diplomatic or consular
nature including intelligence information.
[7]
The
Ministers further argue that Mr. Pardy does not have any expertise with respect
to how intelligence may have affected Canadian detainees held abroad or with
respect to the effect of the Service sharing information on the detainees held
abroad.
[8]
The
parties agree that the test for the admissibility of expert opinion evidence is
set out in R. v. Mohan, [1994] 2 S.C.R. 9. Of the requisite criteria,
the Ministers take issue, primarily, with whether Mr. Pardy is a properly
qualified expert. The parties agree that, for a witness to be qualified to give
opinion evidence on a particular subject, the witness must possess special
knowledge or experience on the subject going beyond that of the trier of fact.
[9]
The issue
to be determined, therefore, is whether Mr. Pardy should be qualified as an
expert to give evidence in this motion? And if so, what are the areas of
expertise in which Mr. Pardy is qualified to give opinion evidence?
[10]
The
evidence shows that throughout his long and varied career at Foreign Affairs,
Mr. Pardy was required to interact with foreign governments and different
entities, including intelligence agencies, as a representative of the
government of Canada. By reason of his employment
at Foreign Affairs, he held many positions including liaison officer and
Ambassador. In these functions, he received information and intelligence which
he assessed and passed on to the government of Canada. The evidence demonstrates that Mr.
Pardy, for example:
·
Received
information from foreign military entities for the purpose of analysing the
build up of military forces towards conflict in the Indo-Pakistani War (1969
-1972 – Second Secretary, Canadian High Commission, New Delhi, India.)
·
Obtained
information on potential threats of terrorism, from Foreign Affairs missions
overseas and domestic agencies, for the purpose of informing the Canadian
government on such threats so that the appropriate security policies for the
Montreal Olympics could be developed (1972-1978 Ottawa. National Security
Section, Security Liaison Division.)
·
Acted as a
conduit to provide Canadian information to American agencies and to receive
information from American agencies, including the Central Intelligence Agency
(CIA), for the government of Canada, with respect to
non-proliferation issues. In this role he reported on the information received,
based on his understanding of American policy (1978-1982 Counsellor, Canadian
Embassy, Washington D.C. Intelligence Liaison Officer, Central Intelligence
Agency; Non-Proliferation issues.)
·
Received
information from foreign intelligence services for the purpose of determining
the Canadian policy with respect to the insurgency in Sri Lanka (1985-89. Ottawa. Director, Asia Pacific South
Division).
[11]
Mr. Pardy
has never worked for the Service, nor has he worked for any other intelligence
agency. He would have no basis upon which to give expert evidence on the flow
or transmission of information and intelligence through security channels. While
it is true he received and assessed information and intelligence from intelligence
and policing agencies, including the CIA, this was done in his capacity as an official
with Foreign Affairs. This experience does not make him an expert on policing
nor on the flow of information and intelligence from nation to nation through
security channels. Nor does it make him an expert on the amount of sharing of
information and/or intelligence through those channels.
[12]
I do find
that Mr. Pardy has expertise with respect to the assessment of information,
including intelligence information, and factors affecting the reliability of
such information. This expertise, however, is limited to information received through
diplomatic and/or consular channels, and is based on Mr. Pardy’s experience of
having assessed information and intelligence as part of his diplomatic and
consular duties.
[13]
Considering
Mr. Pardy’s background and experience, and in particular his limited knowledge
of information sharing between intelligence agencies as well as his limited
knowledge of the operations of the Service and other intelligence agencies, I
find that he does not have the requisite expertise to give opinion evidence on
the consequences or effect of the Service’s sharing of information on Canadian
detainees held abroad. Further, he does not have the expertise to speak to how information
and/or intelligence shared between intelligence agencies may have affected
Canadian detainees held abroad.
[14]
I
now turn to whether Mr. Pardy is qualified to give opinion evidence on the overarching
issue of torture and mistreatment of Canadian detainees held abroad. Mr. Pardy’s
mandate, as the Director General of the Consular Affairs Bureau (1995-2003), included
the protection of the rights of Canadian persons abroad. Through this mandate, he
assessed the likelihood of mistreatment or torture of Canadian detainees held
abroad. Mr. Pardy gave evidence that his assessments were based, for the most part,
on public information provided by secondary sources, such as Amnesty
International, and in certain cases, on information obtained directly from
Canadian personnel. In my view, Mr. Pardy’s experience provides a sufficient
foundation for him to provide opinion evidence on the conditions of detention
and treatment of detainees held abroad.
ORDER
THIS COURT ORDERS that
1. For the
reasons set out above, I am satisfied that Mr. Pardy is qualified to give
opinion evidence based on his experience in diplomatic and consular functions,
with respect to:
a)
Consular
services and the consular program in Canada.
b)
Flow of
information from nation to nation through diplomatic and/or consular channels.
c)
The amount
of sharing of information through diplomatic and/or consular channels.
d)
Factors
affecting the reliability of the information, received through diplomatic
and/or consular channels.
e)
The
assessment of information, including intelligence, received through diplomatic
and/or consular channels.
f)
The
conditions of detention and treatment of detainees held abroad.
“Edmond P. Blanchard”
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