Docket: DES-9-22
Citation: 2024 FC 143
Ottawa, Ontario, January 31, 2024
PRESENT: The Honourable Madam Justice Kane
BETWEEN: |
ATTORNEY GENERAL OF CANADA |
Applicant |
and |
GARETH LLEWELLYN |
Respondent |
CLASSIFIED ORDER AND REASONS
[1] The Attorney General of Canada [AGC] filed a Notice of Application (as amended) on October 19, 2022, pursuant to section 38.04 of the Canada Evidence Act, RSC 1985, c C-5 [CEA] [the Section 38 Application], seeking an order confirming the statutory prohibition on disclosure of certain sensitive or potentially injurious information, as those terms are defined in the CEA. The information was redacted in several documents that the National Security and Intelligence Review Agency [NSIRA] produced to the Respondent, Mr. Llewellyn, as the Certified Tribunal Record [CTR] in accordance with Rule 317 of the Federal Courts Rules, SOR/98-106. The underlying proceeding is Mr. Llewellyn’s Application for Judicial Review of NSIRA’s decision dated May 9, 2022, which dismissed Mr. Llewellyn’s complaint against the Canadian Security Intelligence Service [CSIS] (Court file T‑1086-22).
[2] The CTR is 465 pages and includes various documents and correspondence, including Mr. Llewellyn’s complaint to CSIS and NSIRA (included at least twice), and several attachments. Fourteen documents have been redacted to protect the disclosure of sensitive or potentially injurious information, as those terms are defined in the CEA.
[3] The issue on the Section 38 Application is whether the prohibition on the disclosure of the redacted information in the 14 documents should be confirmed by this Court pursuant to subsection 38.06(3), or whether disclosure should be permitted, in full or subject to certain conditions, pursuant to subsections 38.06(1) or (2).
[4] The Court notes that Mr. Llewellyn provided many of the documents to NSIRA, which are now in the CTR. Some of these documents have been redacted to prevent further disclosure of sensitive or potentially injurious information. As a result, Mr. Llewellyn is aware of the information that has been redacted in 11 of the 14 redacted documents. Whether this information can be publicly disclosed, including by him, must be determined.
[5] A public hearing was held on January 31, 2023, at which time Counsel for Mr. Llewellyn and the AGC made public submissions.
[6] The Court held an in camera, ex parte hearing on June 14, 2023. Written submissions were made by the AGC and the Court appointed amicus curiae [amicus], Ms. Audrey Boctor. A further in camera, ex parte hearing was held on October 4, 2023.
[7] In determining the Section 38 Application, the Court has considered all the information on the record, the public affidavit filed by the AGC, the public oral and written submissions of Mr. Llewellyn and the AGC, the classified affidavits filed by the AGC, the ex parte submissions of Counsel for the AGC and the amicus and the relevant jurisprudence.
[8] The Classified Order sets out the information that remains prohibited from disclosure and the information that can be replaced with a summary to mitigate the injury that would arise from its disclosure. The AGC has agreed to lift (i.e., remove) the redactions of some information and will provide replacement pages for the CTR. The uncontested redactions are noted in the Chart provided jointly by the AGC and amicus. The AGC will also provide replacement pages for the CTR with summaries of redacted information to specific parts of the documents at issue. All other redactions are confirmed. The Designated Judge hearing the Application for Judicial Review will have access to all documents in the CTR, in unredacted form.
I. Background
A. Mr. Llewellyn’s complaint to NSIRA
[9] A brief description of Mr. Llewellyn’s complaint to NSIRA is required to provide the context for the Section 38 Application. More extensive details, if necessary, are best left to the Application for Judicial Review.
[10] Mr. Llewellyn submitted his complaint to NSIRA on March 29 and March 30, 2021. Mr. Llewellyn’s complaint form attached a letter to NSIRA with a summary of his complaint, his letter to CSIS dated January 10, 2021, a 47-page document setting out 53 allegations against CSIS dating back to the late 1980s, and referring to several appendices. He seeks relief from the Government of Canada, including compensatory damages and an end to all Threat Reduction Measures [TRMs] that he alleges were conducted by CSIS against him.
[11] In his complaint, Mr. Llewellyn describes his career, noting that in 1997 he was engaged as a researcher for the “back bench committee”
designed to identify potential candidates for federal election. He subsequently co-founded the Northern Foundation [NF], also designed to attract potential federal candidates. Mr. Llewellyn states that the NF was infiltrated by a neo- Nazi. Mr. Llewellyn also states that he reported the infiltration of the neo-Nazi to CSIS, which led to CSIS associating Mr. Llewellyn with the neo-Nazi and, in turn, led to CSIS’s ongoing interest in Mr. Llewellyn.
[12] Mr. Llewellyn also describes his past employment with Revenue Canada and the Canadian Border Security Agency [CBSA]. He claims that he was investigated by CSIS while in these roles.
[13] Mr. Llewellyn claims that CSIS surveyed and harassed him over a period of several years. He describes most of his complaints as relating to TRMs that he contends were taken against him by CSIS. In his request to NSIRA to review and investigate CSIS’s activities, he alleges that the former Prime Minister directed a campaign to have him “deemed”
as involved in terrorist activity, which derailed his career and affected his health. The key aspects of his allegations of harassment are summarized in the NSIRA decision.
II. NSIRA’s decision
A. The letter of May 2022
[14] The Registrar of NSIRA sent Mr. Llewellyn an email on May 10, 2022, advising him of NSIRA’s decision and replicating the contents of the signed letter of decision sent to him by mail, dated May 9, 2022.
[15] The letter states that NSIRA conducted a preliminary review of the information received from Mr. Llewellyn and determined that a number of the allegations were not substantially different from allegations made in his 2008 complaint to NSIRA’s predecessor, the Security Intelligence and Review Committee [SIRC]. With respect to new or additional allegations since 2008, the letter states that NSIRA determined that it did not have jurisdiction to investigate the allegations pursuant to section 16 of the National Security Intelligence Review Act, SC 2019, c 13, s 2 [NSIRA Act].
B. The Record of Decision and Determination of Jurisdiction
[16] NSIRA’s Record of Decision and Determination of Jurisdiction [NSIRA Decision] rendered by Mr. Craig Forcese, a member of NSIRA, along with the letter described above, constitutes the reasons for NSIRA’s decision.
[17] NSIRA’s Decision provides a summary of Mr. Llewellyn’s complaint, noting that in his letter to the Director of CSIS (which underlies the complaint to NSIRA), he alleged that he was the subject of unjust and illegal activities by CSIS, including that TRMs were used against him. These TRMs allegedly included harassment, defamation, computer interference, and intense surveillance that began in 1988 following CSIS’s determination that he either was, or was associated with, a neo-Nazi. The Decision lists several allegations, including that CSIS placed eavesdropping devices in his home, lured him to join Revenue Canada’s investigation unit in 2002, launched a “counterfeit sting”
operation against him in Paris, harassed him in 2006, intruded on his wedding in 2008, monitored his computer, blocked his attempt to seek refugee status in another country, interfered with his complaint to the Law Society of Upper Canada, obscured his entry to the Ottawa Heart Institute in January and February 2021, and conducted a defamation campaign against him.
[18] The Decision also notes the similar complaints made by Mr. Llewellyn in 2008 to NSIRA’s predecessor, the SIRC. SIRC concluded, in accordance with its governing legislation, that it did not have the jurisdiction to deal with the complaint because some allegations did not pertain to “an act or thing”
done by CSIS and other allegations were frivolous.
[19] The Decision describes the results of searches conducted by CSIS of its holdings and the results of a Quality Assurance Check conducted by NSIRA at CSIS’s premises to confirm the results of the search.
[20] With respect to the jurisdiction of NSIRA to investigate a complaint, the Decision notes that a member of NSIRA, on his or her own motion, can address the issue of jurisdiction. The Decision cites subsection 16(1) of the NSIRA Act:
16(1) Any person may make a complaint to the Review Agency with respect to any activity carried out by the Canadian Security Intelligence Service and the Agency must, subject to subsection (2), investigate the complaint if
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16(1) Toute personne peut porter plainte contre des activités du Service canadien du renseignement de sécurité auprès de l’Office de surveillance; sous réserve du paragraphe (2), celui-ci fait enquête à la condition de s’assurer au préalable de ce qui suit :
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(a) the complainant has made a complaint to the Director with respect to that activity and the complainant has not received a response within a period of time that the Agency considers reasonable or is dissatisfied with the response given; and
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a) d’une part, la plainte a été présentée au directeur sans que ce dernier ait répondu dans un délai jugé normal par l’Office de surveillance ou ait fourni une réponse qui satisfasse le plaignant;
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(b) the Agency is satisfied that the complaint is not trivial, frivolous or vexatious or made in bad faith.
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b) d’autre part, la plainte n’est pas frivole, vexatoire, sans objet ou entachée de mauvaise foi.
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[21] The Decision notes that Mr. Llewellyn’s 2008 complaint to SIRC was similar in nature to the current complaint and allegations. The Decision states that, to the extent the current allegations duplicate those made to SIRC in 2008, these allegations were previously dealt with and are res judicata (as noted, SIRC found that it did not have jurisdiction to investigate the complaints). With respect to the additional or new allegations – in particular regarding the alleged TRMs – NSIRA concluded that “there is no evidence of activity in the sense of operational conduct by the Service. As such, the first criteria to establish jurisdiction pursuant to subsection 16(1) of the NSIRA Act has not been met”
.
[22] NSIRA also found that, due to the apparent lack of any evidentiary basis to support Mr. Llewellyn’s allegations, the allegations meet the definition of frivolous. The Decision states,
Furthermore, a complaint is frivolous when, on its face, it is devoid of substance and/or where there is no rational argument in support of the allegation … (citations omitted). Based on my review of the submissions of the parties, and the apparent lack of any evidentiary basis to support the Complainant’s allegations, the allegations raised in this complaint meet this definition.
III. The Proceedings to Date
[23] On May 27, 2022, Mr. Llewellyn filed a Notice of Application for Judicial Review of NSIRA’s decision. By Order dated July, 15, 2022, the Court granted his request to file an Amended Notice of Application.
[24] Counsel for the NSIRA gave notice to the AGC on June 27, 2022, that information included in the CTR, which would be produced to Mr. Llewellyn, was sensitive or potentially injurious information. The AGC reviewed the information and identified certain information in the CTR as sensitive or potentially injurious. The AGC subsequently made the Section 38 Application to this Court to confirm the prohibition on the disclosure of the redacted information in 14 documents.
[25] By Order dated November 23, 2022, the Court appointed Ms. Audrey Boctor, 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 38 of the CEA. The Order provided, among other things: that the amicus would have access to the confidential information in the Section 38 Application (i.e. the redacted information); that until such time as the amicus had access to the confidential information and documents, she could communicate with Mr. Llewellyn (or his counsel) for the purpose of understanding the information and documents to be reviewed; that once the amicus had access to the confidential information and documents, she could not have any further communication with Mr. Llewellyn (or his counsel) without leave of the Court; and, that the amicus was required to keep all information and documents to which she had access confidential from Mr. Llewellyn and from any other person not participating in the in camera, ex parte hearing. The Order further provided that the amicus could participate in any public hearing and make submissions and could participate in the in camera, ex parte hearing and cross-examine the AGC’s witness(es).
[26] The AGC filed a public affidavit, Mr. Llewellyn cross-examined the AGC’s public affiant and, as noted, a public hearing and two in camera, ex parte hearings were held.
IV. The Section 38 Application in General
[27] Sections 38 to 38.15 (referred here collectively as section 38) of the CEA governs how information relating to international relations, national defence and national security may be protected from disclosure before a court, person, or body with the jurisdiction to compel the production of information.
[28] Where information is otherwise required to be disclosed by a participant or other person in connection with a proceeding and that participant or other person believes that the information relates to international relations, national defence, or national security (i.e., is sensitive or potentially injurious), that person must give notice to the AGC (section 38.01). The AGC, upon review of the information, may authorize disclosure of all or part of the information (section 38.03). However, where the AGC does not authorize disclosure or does not enter into an agreement to permit disclosure of some facts or information subject to conditions (section 38.031), the AGC may apply to the Federal Court for an order confirming the prohibition on disclosure (section 38.04).
[29] In the present case, Counsel for NSIRA gave notice to the AGC. The AGC then reviewed the documents, identified redactions and brought the Section 38 Application.
[30] The Court must now determine whether: the prohibition on disclosure of the redacted information should be confirmed pursuant to subsection 38.06(3) of the CEA or whether the information, or parts of it, should be permitted to be disclosed pursuant to subsection 38.06(1); or, alternatively, whether the information or parts of it should be permitted to be disclosed subject to conditions to limit any injury to international relations, national defence, or national security pursuant to subsection 38.06(2) of the CEA.
[31] The test to be applied by the Court in making this determination was established by the Federal Court of Appeal in Canada (Attorney General) v Ribic, 2003 FCA 246 [Ribic].
[32] In Khawaja v Canada (Attorney General), 2007 FCA 388 at para 8 [Khawaja FCA], the Federal Court of Appeal reiterated the three-part Ribic test in the form of questions to be addressed:
(a) Is the information in question relevant to the proceeding in which disclosure is sought? If no, the information should not be disclosed. If yes, then,
(b) Will disclosure of the information in question be injurious to national security, national defence, or international relations? If no, the information should be disclosed. If yes, then,
(c) Does the public interest in disclosure of the information in question outweigh the public interest in prohibiting disclosure of the information in question? If yes, then the information should be disclosed. If no, then the information should not be disclosed.
[33] The test is not in dispute.
[34] The party seeking disclosure of the information must demonstrate that the redacted information is relevant to an issue in the underlying proceeding (Ribic at para 17). In the present case, the AGC acknowledges that the information redacted in the CTR is relevant to the issues in the Application for Judicial Review. This acknowledgement reflects that this information was before the decision maker (NSIRA), and that the threshold for establishing relevance in a civil proceeding is low (Attorney General of Canada v Almalki et al, 2010 FC 1106 at para 60 [Almalki]).
[35] Where the relevance of the redacted information is established or acknowledged, the party seeking to protect the information and prohibit disclosure – in this case, the AGC – must demonstrate that the disclosure of the information would be injurious to international relations, national defence, or national security (Ribic at para 20). The injury must be probable, not simply possible or speculative. Although some deference is owed to the AGC’s assessment of probable injury due to the AGC’s expertise and access to the information, the Court must still ensure that non‑disclosure is justified (Canada (Attorney General) v Tursunbayev, 2021 FC 719 at para 86 [Tursunbayev]).
[36] Where both relevance and injury are established, the party seeking disclosure – in this case, Mr. Llewellyn – must demonstrate that the public interest in disclosure of the injurious information is greater than the public interest in the non-disclosure (i.e., protection) of the injurious information (Ribic at para 21).
[37] Mr. Llewellyn is aware of the information that has now been redacted in 11 out of 14 documents at issue because he provided these documents to NSIRA with his complaint and these documents are in the CTR. However, despite Mr. Llewellyn’s knowledge of the redacted information in 11 documents, disclosure of this information must remain prohibited pending the Court’s determination of the Section 38 Application. Mr. Llewellyn is not aware of the redacted information in three of the other documents included in the CTR, and he has not been a participant at the in camera, ex parte hearing. Therefore, the Court’s assessment of the injury and the balancing of the public interest in disclosure against the public interest in non-disclosure must be conducted by the Court taking into account the public submissions, the ex parte submissions of the AGC and the amicus, and the relevant factors as established in the jurisprudence.
[38] The relevant factors (see for example Canada (Attorney General) v Khawaja, 2007 FC 490 at paras 74 and 93 [Khawaja FC]; Tursunbayev, at paras 88–89) include, among many others: the nature of the public interest sought to be protected; whether the information will probably establish a fact crucial to the case to be made (i.e., the degree of relevance or importance, or the significance or probative value of the information in the underlying proceeding); the nature and extent of the injury arising from public disclosure; the open court principle; whether higher interests are at stake; and, whether the redacted information is already known to the public, and if so, how.
[39] If the Court concludes that the public interest favours disclosure of some or all of the information, the Court may permit the disclosure of information in the form and under the conditions that are most likely to limit any injury to international relations, national defence, or national security pursuant to subsection 38.06(2) of the CEA, for example, by providing non-injurious summaries.
V. The Documents at Issue
[40] AGC 0001 is a 203-page document which includes the letter of complaint by Mr. Llewellyn to NSIRA with attachments, a 47-page document setting out 53 allegations, and other attachments. Identifying information of persons have been redacted. Other redactions are minimal.
[41] AGC 0002 is a three-page email confirming that NSIRA received the complaint. Identifying information is redacted.
[42] AGC 0003 is an email from the Registrar of NSIRA acknowledging receipt of a letter (attached as AGC 0005) regarding submissions on jurisdiction. Identifying information is redacted.
[43] AGC 0004 is letter dated July 29, 2021, from the Director General External Review and Compliance at CSIS to the Registrar of NSIRA describing the results of CSIS’s search of its holdings and noting that NSIRA can attend CSIS’s premises to review the holdings electronically. Spaces in three lines are redacted. The letter also notes “[t]he Service does not have any submissions to make with respect to the Review Agency’s [NSIRA’s] jurisdiction at this time.”
[44] AGC 0005 is a letter from Mr. Llewellyn to Madame Deschamps, Chair of NSIRA, dated “Summer 2021”
, suggesting that CSIS had interfered with the submission of his complaint. It attaches a Canada post tracking receipt and an email sent from Mr. Llewellyn to Dr. Holloway (NSIRA), which attached Mr. Llewellyn’s March 18, 2021 letter of complaint to CSIS. The letter of complaint to CSIS is redacted consistently with redactions made to same document in AGC 0001.
[45] AGC 0006 is the same Canada Post tracking document noted in AGC 0005 and other documents noted in AGC 0005 (e.g., letter of complaint to NSIRA) and is consistently redacted.
[46] AGC 0007 is a one-and-a-half-page email memo dated August 19, 2021, from the Registrar of CSIS to Nathalie Pelletier and copied to two others. The subject line notes “NSIRA File 07-403-53 (Gareth Llewellyn) Memo to file regarding Quality Assurance Check.”
The memo describes the Registrar’s findings based on her attendance at the CSIS premises to conduct a quality assurance check. It notes the words used to search a database. The redactions are to three blocks and a few additional spaces.
[47] The Memo notes that the search yielded (a redacted number of) results, regarding the previous complaint, the current complaint, correspondence sent to the Director of CSIS by Mr. Llewellyn, correspondence between government departments, ATIP requests, and correspondence regarding Mr. Llewellyn’s employment with CBSA. It concludes “[n]o other results were found regarding the Complainant.”
[48] The contents of the Quality Assurance Check are also included in Record of Decision described above.
[49] AGC 0008 is an email to the Registrar of NSIRA (from name redacted) acknowledging that a Protected B version of CSIS’s classified representations on jurisdiction was sent to NSIRA by secure means, as requested by the Registrar of NSIRA.
[50] AGC 0009 is an email dated August 23, 2021 from the Registrar of NSIRA to a name redacted and two others (Peter Bell and Nathalie Pelletier) acknowledging receipt of CSIS’s Protected B representations on jurisdiction.
[51] AGC 0010 is an email chain from January 16, 20, and 22, 2022, between the Registrar of NSIRA and Mr. Llewellyn confirming, among other things, that a copy of the complaint by registered mail was not required. The document includes additional information submitted by Mr. Llewellyn regarding a response to an ATIP request made in 2010, a copy of correspondence from SIRC dated June 5, 2008, and a copy of Mr. Llewellyn’s March 18, 2021 complaint to NSIRA. The information is the same as AGC 0001 and AGC 0005 and is redacted consistently.
[52] AGC 0011 is the Record of Decision and Determination of Jurisdiction by the designated member of NSIRA, Mr. Craig Forcese, dated February 16, 2022. The redactions to AGC 0011 consist of one and a half lines on page 2, one and a half lines on page 4, and a few paragraphs on page 3, which reiterate the results of the Quality Assurance Check as set out in the memo (AGC 0007) and are redacted in an identical manner.
[53] AGC 0012 is an email to the Registrar of NSIRA from Mr. Llewellyn dated April 6, 2022, noting that he has attached a “better redaction of [his] complaint from yesterday.”
The March 18, 2021 complaint to NSIRA is attached along with the long document setting out the allegations and is redacted in an identical manner as AGC 0001, AGC 0005, and AGC 0010.
[54] AGC 0013 is an email from Mr. Llewellyn to the Registrar of CSIS dated April 22, 2022, responding to the Registrar’s request to send documents referred to in Mr. Llewellyn’s several recent emails in PDF form. The documents attached are an unredacted, unsigned, and undated letter to “Dear Sir or Madam”
and Mr. Llewellyn’s unsworn affidavit, which appears to be part of his complaint, redacted in a few spaces.
[55] AGC 0014 is an email, date unknown, from a Case Management Officer at NSIRA to an unknown recipient and copied to the Registrar of CSIS and another person, attaching a letter to CSIS regarding a determination on jurisdiction. The attached letter (unredacted), dated May 9, 2022, is the letter from the Registrar of NSIRA to the Director of CSIS informing him of NSIRA’s decision with respect to Mr. Llewellyn’s complaint.
[56] Mr. Llewellyn submits that AGC 0004, AGC 0007, and AGC 0011 are the key documents he seeks. These documents were not provided by him to NSIRA and he is unaware of the redacted information. He submits that these documents contain information about CSIS activities directed to him.
VI. The AGC’s Public Submissions
[57] As noted above, the AGC acknowledges that the redacted information would be relevant given the inclusion in the CTR and the low threshold for establishing relevance. The AGC notes, however, that not every piece of information has the same degree of relevance, and that the degree of relevance is a factor at the balancing stage.
[58] With respect to the injury that would result from disclosure, the AGC points to the public affidavit of “Catherine”
, an intelligence officer at CSIS, who explained the five broad/general categories of information that CSIS seeks to protect from disclosure and the type of injuries to national security that could result from disclosure of information that falls within any one or more of these categories. The AGC elaborated on the injury that would result from the disclosure of the redacted information at issue at the ex parte, in camera hearing.
[59] The AGC disputes Mr. Llewellyn’s submission that the AGC’s affiant made key admissions regarding the characterisation of five categories of information to be protected and that all relate to “operational activities”
of CSIS.
[60] The AGC submits that Mr. Llewellyn’s submissions regarding a possible distinction between “activity”
and “operational activity”
by CSIS or whether this has any bearing on the jurisdiction of NSIRA to review Mr. Llewellyn’s complaint is an issue for the Application for Judicial Review and has no bearing on the Section 38 Application.
[61] With respect to the balancing to be conducted at the third stage of the Ribic test, the AGC submits that the public interest in non-disclosure outweighs the public interest in disclosure. The ACG submits that the factors to be considered by the Court in balancing the competing interests all support this conclusion, including the nature of the public interest to be protected (i.e., national security), the extent of the injury arising from disclosure, the nature of the underlying proceeding, whether the redacted information will establish a crucial fact in the Application for Judicial Review, and the importance of the open court principle.
VII. Mr. Llewellyn’s Submissions
[62] Mr. Llewellyn notes the wording of subsection 16(1) of the NSIRA Act and submits that the mandate of NSIRA, among other things, requires it to review “any activity”
carried out by CSIS and to investigate a complaint made pursuant to subsection 16(1). Mr. Llewellyn explains that on his Application for Judicial Review, he will argue that the NSIRA Act does not limit complaints about CSIS activity to “operational conduct.”
[63] Mr. Llewellyn contends that the redacted information – including that which is known to him – is probative of the issues on judicial review. Mr. Llewellyn notes that NSIRA’s Decision states that NSIRA determined that his complaint did not refer to an activity carried out by CSIS. However, the Record of Decision stated that “there is no evidence of activity in the sense of operational conduct by the Service.”
He argues that NSIRA improperly narrowed its mandate by adding qualifying language/ criteria, contrary to subsection 16 (1) of the NSIRA Act, which refers to “activity”
which is a broader concept than “operational activity.”
He submits that information that has been redacted could be very relevant to both operational and other activities engaged in by CSIS.
[64] Mr. Llewellyn submits that he needs all relevant information regarding NSIRA’s refusal to investigate his complaint, including information related to CSIS activity, whether operational conduct or otherwise, in order to challenge NSIRA’s decision on judicial review. He argues that any redactions that reveal any kind of CSIS activity, including that of third parties, directed to him or involving him are inherently relevant. He argues that this information will demonstrate that NSIRA has jurisdiction pursuant to subsection 16(1).
[65] Mr. Llewellyn relies on the cross-examination of the AGC’s affiant. He contends that the affiant stated that CSIS national security interests are all concerned with operational conduct, such as investigative techniques, targets and sources, and that the key categories of information CSIS seeks to protect all relate to operational activities “in some way, shape or form.”
In other words, that all CSIS activity is operational activity.
[66] As noted above, Mr. Llewellyn submits that documents in the CTR, in particular, AGC 0004, AGC 0007, and AGC 0011, are relevant to his submission that CSIS engaged in various activities against him. Mr. Llewellyn submits that to the extent that the redactions in AGC 004, 0007, and 0011 refer to the NF or related investigations, this information would be operational activity and would fall within one or more of the categories of information described by the AGC’s affiant.
[67] With respect to AGC 0004, Mr. Llewellyn argues that CSIS’s failure to make submissions to NSIRA regarding NSIRA’s jurisdiction to investigate his complaint supports an inference that CSIS was of the view that NSIRA had such jurisdiction. He submits that if CSIS disputed NSIRA’s jurisdiction, it would have made such submissions and hence, CSIS must be of the view that NSIRA has jurisdiction to investigate his complaints.
[68] Mr. Llewellyn submits that the AGC must establish that every redaction, if disclosed, would be injurious. He further submits that if the AGC establishes any injury from disclosure of each redaction, the public interest in its disclosure outweighs the public interest in non-disclosure.
[69] Mr. Llewellyn submits that the Court should consider the higher interests at stake, which include his ability to effectively seek judicial review and hold NSIRA to its mandate.
[70] With respect to the redactions on documents that Mr. Llewellyn provided, he submits that this information (including names and file numbers) lends credibility to his complaint and he should be able to rely on this information.
VIII. The AGC’s ex parte, in camera Submissions
[71] The AGC agrees to “lift”
(i.e., remove) some of the redactions from the documents at issue. The AGC submits that, apart from these lifts and the provision of summaries for some other redactions, all other redactions should be confirmed due to the injury to national security that would result if disclosed. The AGC adds that further disclosure of this information would be of very little assistance in the underlying Application for Judicial Review.
[72] The AGC submits that information that discloses the names of current and former CSIS employees must remain redacted as disclosure would be injurious to national security. Mr. Llewellyn cannot publicly disclose the names; however, he knows the names at issue (although it is unknown how he obtained the names) and must be cautioned that he cannot publicly disclose them.
[73] With respect to information relating to the search of CSIS holdings (AGC 0004, 0007, 0011), the AGC submits that disclosure of the fact that a CSIS operational database was searched is not injurious, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[74] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | ||||||||||||.
[75] The AGC adds that disclosing |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| would be injurious as it could reveal ||||||||||||||||||||||||||||||||||||||||||||||||||||||. For example, if it is disclosed that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[76] With respect to the disclosure of information ||||||||||||||||||||||||||||||||||||||, the AGC submits that disclosing the name(s) |||||||||||||||||||||||||||||||||| would be injurious. The name could reveal ||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. In addition, the disclosure of the number of results would reveal |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||.
[77] The AGC submits that the redacted information in dispute will not establish a fact crucial to the Application for Judicial Review.
[78] The AGC submits that the identity of current or former CSIS employees is not a crucial fact. Mr. Llewellyn can pursue his argument that CSIS “planted”
people around him without naming them ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The AGC and amicus agree that certain current CSIS employees be identified by a number. The AGC also notes that Mr. Llewellyn stated that he does not need names to be disclosed of current or former CSIS personnel.
[79] The AGC also submits that information related to CSIS’s holdings is not crucial to the Application for Judicial Review. |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||. NSIRA found that Mr. Llewellyn’s complaint duplicated – to a considerable extent – his previous complaint that was determined in 2008 and is res judicata. |||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[80] The AGC disputes the amicus’ position that there would be no injury from the disclosure of the same or similar information that is unredacted in another document. The AGC submits that the redacted information must be considered in the context of the document, or placement within it, to assess the injury. It is not inconsistent to redact similar information in one document and not in the other because the preceding or subsequent paragraphs permit different inferences to be drawn from the other unredacted information.
[81] The AGC notes that their review of injury focuses on each document separately. The AGC explains that the content of the preceding and subsequent words or paragraphs leads to inferences being drawn or obvious, which would disclose injurious information. The AGC submits that disclosure |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| would be injurious – so information that permits that conclusion or inference is also injurious.
[82] The AGC submits that the redacted information will not prevent the Court from determining the issues in the Application for Judicial Review, nor will it prevent Mr. Llewellyn from making his arguments regarding the scope of NSIRA’s jurisdiction or the statutory definition. In response to the submissions of the amicus, the AGC submits that Mr. Llewellyn does not require further disclosure in order to advance his argument that NSIRA misinterpreted or narrowed its mandate and focussed only on operational activity. Mr. Llewellyn made these submissions in the public hearing and can do so on his Application for Judicial Review.
[83] The AGC submits that the reasonableness of the decision of NSIRA can be assessed without access to the unredacted information. The CTR is voluminous and most of it is unredacted. In addition, the Court will have the unredacted documents.
[84] The AGC adds that the redacted information |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||| or that would undermine NSIRA’s finding that the complaint is frivolous. The AGC suggests that the redacted information would more likely harm Mr. Llewellyn’s position on his Application for Judicial Review.
[85] The AGC submits that the Court must first determine whether disclosure would be injurious and, if so, then consider whether the public interest in disclosure outweighs the public interest in non-disclosure. The AGC notes that summaries or conditions on the disclosure of information are only an option if the Court first finds that the public interest in disclosure outweighs that of non-disclosure.
IX. The Amicus’ Submissions
[86] The amicus notes that two issues arise on judicial review: the interpretation of subsection 16(1), and the reasonableness of NSIRA’s decision. The amicus submits that further disclosure is necessary to evaluate whether the decision is coherent and justified in relation to the law and facts constraining the decision maker (Canada (Minister of Immigration and Citizenship) v Vavilov, 2019 SCC 65 at para 105).
[87] The amicus submits that in order for Mr. Llewellyn to advance his argument regarding the way NSIRA interpreted its jurisdiction, he needs to be able to refer to |||||||||||||||||||||||||||| noted in the documents.
[88] The amicus submits that the AGC has not established how some of the redacted information would be injurious if disclosed, given that the same or similar information is unredacted in other documents.
[89] The amicus further submits that if there is no injury, there is no reason to propose summaries; the information should be disclosed. The amicus adds that summaries would be an option to mitigate any injury, if any injury is established and the balancing favours disclosure.
[90] With respect to the balancing at the third stage, the amicus submits that the relevant factors include: the extent of the injury, which in the amicus’ view is minimal; the fact that Mr. Llewellyn already knows much of the redacted information; the importance of providing the parties with accurate information to permit a fair and just resolution of the Application for Judicial Review; the open court principle; and, the higher interest of a judicial determination of the scope of NSIRA’s jurisdiction to consider a complaint and the definition of “activity carried out by CSIS.”
[91] With respect to the nature of the injury, the amicus submits that unredacted information reveals that ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, and therefore redacting the same information elsewhere is not justified. The amicus suggests that to avoid referring to the name of a database, a summary be provided to state |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||.
[92] With respect to the search of an operational database, the amicus submits that |||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Other agreed upon lifts of redactions result in the disclosure of a reference to CSIS’s “search of its operational database.”
The amicus submits that given what has been disclosed in AGC 0004, there would be no injury resulting from similar references in AGC 0007 and AGC 0011.
[93] The amicus submits that no injury would arise from the disclosure of the number of search results (AGC 0007 at page 265 and AGC 0011 at page 346) and these redactions should be lifted.
[94] The amicus submits that no injury arises from disclosing |||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||; any injury is only speculative and not probable. The amicus disputes that disclosure of |||||||||| would reveal |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||.
[95] The amicus submits that if there were an injury from such disclosure, in the interests of fairness, Mr. Llewellyn needs confirmation that |||||||||||||||||||||||||||||||||| and that disclosure, via a summary, be provided to indicate that, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The amicus submits that this information is essential to Counsel for Mr. Llewellyn to evaluate the merits of the case and advise their client.
[96] The amicus and AGC agree that the names of current CSIS employees will remain redacted and be referred to by number.
[97] With respect to ||||||||||||||||||||||||||||||||||, who Mr. Llewellyn |||||||||||||| and alleges were engaged to harass him, the amicus agrees that |||||||||||||||||||||||||||||||||| should not be publicly disclosed. However, Mr. Llewellyn should be able to rely on his characterization |||||||||||||||| |||||||||||||| to advance his arguments on the Application for Judicial Review. The amicus submits that this information, which is known to Mr. Llewellyn, lends credibility to his claims and is relevant to NSIRA’s finding that the complaint is frivolous. The amicus proposes that counsel for Mr. Llewellyn provide written confidential submissions on any issues related to the role of these persons, which would be considered by the judge determining the Application for Judicial Review, but not raised in the public hearing.
[98] The amicus relies on Canada (Attorney General) v Hutton, 2023 FCA 45 at para 53 [Hutton], in support of the importance of considering the need to provide the parties with accurate information to permit the fair and just resolution of the Application for Judicial Review as a factor at the balancing stage. The amicus notes that NSIRA dismissed Mr. Llewellyn’s complaint on the basis that it lacked jurisdiction due to the absence of evidence of “activity in the sense of operational conduct”
and found the complaint frivolous due to the lack of an evidentiary basis to support his allegations. The amicus submits that further disclosure of as much as possible is needed regarding the evidentiary foundation upon which NSIRA’s conclusions are based.
[99] In Hutton, the FCA stated at para 53:
Here the application judge considered that the public interest in disclosure related to both of the underlying proceedings and encompassed the value of providing the parties with accurate information regarding Mr. Hutton’s allegations.
[100] The amicus submits that for the remaining contested redactions, the public interest in disclosure outweighs that of non-disclosure.
X. The Section 38 Determination
[101] The Court must determine – in accordance with the statutory provisions and the governing jurisprudence, as explained above, and the submissions received – whether the prohibition on disclosure of the remaining redacted information should be confirmed.
[102] The Notice of Application for Judicial Review, the record and the submissions of Counsel for Mr. Llewellyn’s public affidavit, have provided the Court with the theory of his challenge to the NSIRA’s decision.
[103] As noted, the AGC acknowledges the relevance of the information; in other words, the first stage of the Ribic test has been established. With respect to the third stage of the Ribic test, the Court has considered what information may or may not be material or probative of the issues in the Application for Judicial Review, which focuses on Mr. Llewellyn’s argument that NSIRA erred in interpreting its mandate and narrowed its jurisdiction by focussing on operational activity of CSIS rather than simply “activity”
as stated in the statute.
[104] The Court has reviewed the unredacted documents and has considered the submissions of the amicus and the AGC against the backdrop of all the information in the CTR.
[105] The redacted information is minimal in comparison to the amount of information in the CTR that is unredacted. As noted, Mr. Llewellyn is aware of the content of the redacted information in 11 of the 14 documents.
[106] In considering whether the public interest in disclosure of the injurious information outweighs the public interest in protecting the injurious information from disclosure, the Court has considered, among other relevant factors, the low probative value of the redacted information to Mr. Llewellyn’s argument that NSIRA erred in dismissing his complaint for lack of jurisdiction. The information that cannot be disclosed to him or to the public does not assist in advancing Mr. Llewellyn’s argument that NSIRA narrowed its jurisdiction or misinterpreted its statute. These arguments can be made without the redacted information.
[107] Similarly, Mr. Llewellyn can argue that CSIS’s failure to make submissions to NSIRA regarding NSIRA’s jurisdiction to investigate his complaint supports an inference that CSIS was of the view that NSIRA had such jurisdiction without disclosure of the additional redacted information in AGC 0004. This argument relates only to NSIRA’s process, including to provide an opportunity for CSIS to make submissions on jurisdiction.
[108] The AGC has established that injury to national security would arise from disclosure of information regarding ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, the names of databases and the type of databases ||||||||||||||||||||||||||||||||||. As the AGC explained, even though some information has been disclosed and other redacted information appears to be the same or similar, the context or placement of that information must be considered, including the inferences that can be drawn from the surrounding information.
[109] The AGC has also explained why disclosure of the number of search results (AGC 0007 at page 265 and AGC 0011 at page 346) would be injurious, as the numbers may suggest the extent of CSIS’s interest in a person and lead to speculation. Context is important; for example, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||. However, the numbers in conjunction with other information could reveal CSIS’s interest or lack of interest.
[110] With respect to the amicus’ reliance on Hutton regarding the importance of providing the parties and court with accurate information, the Court is not of the view that this is a factor of general application. The facts in Hutton differed significantly, including that CSIS had disclosed its interest in Mr. Hutton, which is contrary to its usual practice, and Mr. Hutton had made allegations against several persons and publicly named them. Although the importance of providing accurate information may have been relevant in Hutton at the balancing stage, it is far less relevant here. The judge determining the Application for Judicial Review will have the “accurate”
information – i.e., all the information in the CTR, unredacted – and as noted, Mr. Llewellyn can make his arguments without the redacted information.
[111] The lack of probative value of the redacted information considered in the context of the nature and extent of the injury that would result if the redacted information were disclosed, leads the Court to conclude that the public interest in disclosure of the redacted information would be outweighed by the public interest in non-disclosure of that information. Some redactions can be replaced by non-injurious summaries.
[112] The Court appreciates the amicus’ diligence in emphasizing the open court principle and in probing the injury to national security that would arise from public disclosure of the redacted information and how this could be mitigated. However, the Court does not agree with all the amicus’ proposals, as explained below.
[113] In conclusion, the prohibition on the disclosure is confirmed with respect to the information that remains redacted in the 14 documents.
A. The redactions and summaries for AGC 0004, 0007 and 00011
[114] The amicus and AGC have provided a chart setting out their mutual agreement with respect to lifting some redactions, proposed summaries of other redactions to mitigate injury from disclosure and the redactions that must be confirmed.
[115] The amicus and AGC have also provided a chart setting out the contested redactions in AGC 0004, 0007, and 0011. Other redactions are also contested by the amicus in AGC 0001, 0010, 0012, 0013, which refer to the characterisation of ||||||||||||||||||||||||||||||||||||||. However, given that Mr. Llewellyn is aware of the names but cannot disclose them, confidential written submissions may be filed in the Designated Proceedings Unit to ensure that these names are not publicly disclosed and will be considered by the Designated Judge who will hear the Application for Judicial Review. The names of current CSIS employees (redacted in other documents) will be referred to by number, as noted in the uncontested chart.
[116] The amicus questions whether any injury would result from the disclosure of some of the redactions in AGC 0004, 0007, and 0011and has noted the need for consistency in the redacted words or phrases. The amicus proposes summaries to mitigate any injury to national security that may arise from public disclosure.
[117] The AGC disputes that the injury to national security would be mitigated by these proposed summaries.
[118] With respect to AGC 0004, the Court finds that the proposed summaries would not mitigate the injury from the disclosure of |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||| or the databases searched. The redactions must remain.
[119] With respect to AGC 0007, at pages 264-265, the amicus proposes as a summary: “the redactions in paragraph 2 relate to the name of a database ||||||||||||||||||||||||||||||||||||||||||||||||. The redactions that follow relate ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[120] The AGC submits that this summary is injurious as it would |||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||| and it would reveal that |||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||. This would be injurious |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.
[121] As an alternative, the summary should state: “the redactions in paragraph 2 relate to the search of a database.”
While this may be vague, it provides an indication of the nature of the redacted information.
[122] Also, with respect to AGC 0007, the amicus proposes as a summary “
the redaction relates to |||||||||||||||||||||||||||||||||||| database”
(rather than stating the name of the database).
[123] The AGC submits that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| is injurious. The information |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| and would confirm that ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. As an alternative, the AGC proposes “
the redaction relates to the name of a CSIS database.”
The Court agrees that this summary indicates the nature of the redaction without permitting the injurious inferences to be drawn.
[124] With respect to AGC 0011 at page 346, the amicus proposes “
The redactions |||||||||||| |||||||||||||||||||||||||| contained in AGC 0007.”
[125] The AGC submits that the term ||||||||||||||||||||||
is injurious as it reveals that |||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| Mr. Llewellyn. As an alternative, the AGC proposes “
the redactions in AGC 0011 are substantially the same as the redactions in AGC 0007.”
The Court agrees with this summary.
[126] The Court notes that the present circumstances are somewhat unique in that Mr. Llewellyn is aware of the information he provided, which includes information that must be protected from public disclosure, including by him. Mr. Llewellyn is aware of the redactions in the vast majority of the documents. However, the redactions overall are minimal and as a result, Mr. Llewellyn has a great deal of unredacted information that he can publicly refer to in his Application for Judicial Review.
[127] As noted, and as set out in the Annex, some redactions have been lifted by the AGC. The summaries noted above will provide additional non-injurious information to Mr. Llewellyn. The approach to ensure that persons are not named, as jointly proposed by the amicus and AGC, may permit Mr. Llewellyn to support some of his arguments regarding the nature of his complaints on judicial review. In addition, a Case Management Conference will be convened with Counsel for Mr. Llewellyn and Counsel for the AGC (counsel with carriage of the Application for Judicial Review) to canvas how to ensure the non-disclosure of this information by Mr. Llewellyn at the public hearing.
[128] The Court does not agree that Mr. Llewellyn will be thwarted in his Application for Judicial Review if he is denied access to the redacted information. As noted, very little information in the CTR is redacted and Mr. Llewellyn is aware of much of the information that is redacted because he filed this information with his complaint to NSIRA. In addition, consistent with the Court’s customary practice, the same Designated Judge that determines the Section 38 Application will also determine the Application for Judicial Review and will have access to all the information (i.e., unredacted). If this is not possible due to scheduling or other conflicts, another Designated Judge will hear the Application with full access to the unredacted documents. However, Mr. Llewellyn will not be able to make any references to the redacted information in the courtroom open to the public.
[129] The Attorney General of Canada and amicus may propose any necessary redactions to this Order and Reasons within 20 days of receipt, following which a public Order and Reasons will be issued.
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