Docket: DES-4-16
Citation: 2018 FC 369
Ottawa, Ontario, May 3, 2018
PRESENT: The Honourable Mr. Justice O'Reilly
| BETWEEN:
|
| ATTORNEY GENERAL OF CANADA
|
| Applicant
|
| and
|
| AWSO PESHDARY
|
| Respondent
|
PUBLIC ORDER AND REASONS
(Top Secret Order and Reasons issued April 6, 2018)
[1]
The Attorney General of Canada (AGC) requests, on grounds of national security, an Order prohibiting disclosure to Mr Awso Peshdary of information contained in two documents. The first is an affidavit filed in support of an application for warrants that this Court issued in 2012 in respect of Mr Peshdary under s 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23, [CSIS Act]. The second is a slide presentation prepared by the Canadian Security Intelligence Service (CSIS).
[2]
I received evidence and submissions from the AGC, and representations by the amicus curiae, Mr Ian Carter, at an oral hearing on March 21, 2018. I also received ex parte submissions from counsel for Mr Peshdary, Mr Solomon Friedman, at an oral hearing on March 29, 2018.
[3]
The AGC and Mr Carter agree that certain information contained in the CSIS presentation should not be disclosed to Mr Peshdary as there is a clear national security interest in keeping it secret and it is of little value to Peshdary’s defence. However, where the information in the presentation and the affidavit is the same, the lifting of redactions in the affidavit should result in corresponding lifts in the presentation.
[4]
There is no agreement in respect of allegedly sensitive information contained in the affidavit. The AGC wishes to protect information that could serve to identify the affiant, as well as references to methods and techniques used by the service to obtain information about Mr Peshdary, and the extent of their interest in Mr. Peshdary.
[5]
The affidavit was provided to a judge of this Court in support of warrants under the CSIS Act, the fruits of which nourished a subsequent warrant sought and obtained by the Royal Canadian Mounted Police to investigate Mr Peshdary in respect of suspected criminal conduct, namely, involvement in the furthering of terrorist activities. Without the information about Mr Peshdary derived from the CSIS Act warrant, the RCMP may not have had sufficient evidence to acquire a Criminal Code authorization, and may not have assembled the evidence relied on for the charges that were subsequently laid against Mr Peshdary. In other words, the charges Mr Peshdary faces are traceable directly to warrants issued by this Court. At his trial, Mr Peshdary intends to challenge the validity of the CSIS Act warrants and, in order to do so, he submits, he needs to understand the basis on which those warrants issued; that is, he requires access to the supporting affidavit.
[6]
The trial judge, the Honourable Julianne Parfett of the Superior Court of Justice of Ontario, has already seen the affidavit and has ruled that much of it is relevant to Mr Peshdary’s defence. Unless the AGC can point to national security grounds that supersede Mr Peshdary’s interests in making full answer and defence to the charges against him, the contested information should be disclosed.
[7]
Mr Carter agrees that the affiant’s identity should be protected. However, he points out that much of the information the AGC is unwilling to disclose relates to the background and expertise of the affiant. The affiant’s knowledge and experience would have been important factors for the issuing judge to consider in weighing the evidence set out in the affidavit and, accordingly, that information, submits Mr Carter, should be disclosed to Mr Peshdary. Mr Carter proposes that certain details be redacted or substituted with more general information. I agree. I have set out in the Annex appropriate redactions and substitutions that should be made, most of them in accordance with Mr Carter’s suggestions.
[8]
As for the other proposed redactions, the AGC argues that there is a strong national security interest in protecting CSIS’s methods, techniques and interests. In particular, the AGC points out that disclosing the methods and techniques employed by CSIS will also disclose gaps and limitations in its powers. Releasing information about CSIS’s interests will alert potential persons of interest and may cause them to take evasive action.
[9]
While I accept the AGC’s position that there is a general national security interest in protecting from disclosure methods and techniques employed by CSIS, and their interest in certain persons or activities, I find that the national security interest is outweighed in this case by the public interest in disclosure to Mr Peshdary.
[10]
In order to mount a challenge to the validity of the CSIS Act warrants, which he is fully entitled to pursue, Mr Peshdary will need access to much of the information the affiant put before the issuing judge in support of the request. Mr Peshdary will then be able to challenge the validity of the warrant on the face of the information provided, or compare that information against other evidence to determine whether the affiant met the obligation to provide the Court with full, frank, and fair disclosure of all the relevant circumstances.
[11]
There is a strong interest in permitting the person charged with serious criminal offences a meaningful opportunity to mount a full answer and defence to those charges. Further, some of the matters that CSIS seeks to protect, while not explicitly in the public domain, can readily be inferred from the circumstances. For example, CSIS does not wish to disclose the fact that previous warrants were obtained in respect of Mr Peshdary. However, it is already publicly known that a warrant was issued against him in 2009 and, obviously, in 2012. It can reasonably be inferred that other warrants issued in 2010 and 2011
[12]
For present purposes, however, I see no reason why Mr Peshdary needs to know the particular kinds of intercept that were employed. Accordingly, I would preserve the redactions relating to that information.
[13]
In the chart I have set out in an Annex, I have listed the redactions sought by the AGC and my response to them, in keeping with the foregoing reasons.
[14]
As a final matter, I have preserved the redactions the AGC sought under s 18.1 of the CSIS Act in respect of human sources, and those that might inferentially disclose a human source.
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