ACCESS TO STATE SECRETS IN TERRORISM PROSECUTIONS: A CASE COMMENT ON R. V. ALIZADEH AND THE STRICTURES OF THIRD PARTY DISCLOSURE.
I PART I: GATEWAYS AND ROADBLOCKS TO LITIGATING STATE SECRETS 132 IN THE FIRST AND THIRD PARTY DISCLOSURE REGIMES I. Understanding the Common Law Disclosure Regime and its 134 Intersection with Terrorism Prosecutions II PART II: A CASE COMMENT ON R V ALIZADEH 136 I. An Outline of the Case 136 II. Dissecting Alizadeh and its Ramifications in Light of 140 CSIS' Amplified Powers III PART III: DEALING WITH SECTION 38 AND THE BIFURCATED COURT MODEL 151 IV CONCLUSION 154 The concern for fairness and the intention to prevent miscarriages of justice that animated Stinchcombe apply with equal force in terrorism cases. A wrongful terrorism offence conviction stemming from a failure by the Crown to make full disclosure would constitute an injustice. (1) --Air India Commission of Inquiry
When measured against the right to make "full answer and defence" (2) and the constitutionally enshrined right to a fair trial, (5) the preservation of state secrets fares stubbornly. This tension is made plain when a disclosure application is countered by a national security privilege claim, codified in section 38 of the Canada Evidence Act (4)--a framework designed to preserve state secrets. The right to disclosure in a criminal prosecution is an "adjunct" of the right to make full answer and defence under section 7 of the Charter of Rights and Freedoms. (5) Meanwhile, accused persons do not benefit from disclosure as of right in respect of intelligence, documents internal to intelligence services, communications with foreign agencies, or intelligence relating to suspects unrelated to the accused. (6) Whether the Canadian Security Intelligence Service (CSIS) will ever be considered an "investigating state authority" for the purposes of Stinchcombe disclosure remains unclear. (7) Given these issues, what happens when agencies like CSIS reserve the disclosure of intelligence to the accused on the basis of a "legal duty of secrecy", (8) all while possessing tools akin to law enforcement bodies?
The author submits that in light of CSIS's new powers in the Anti-terrorism Act, 2015? intelligence should ideally constitute first party disclosure. Alternatively, accused persons should benefit from a robust interpretation of the third party disclosure doctrine in O'Connor (10) applications. Rigid interpretations of what is "likely relevant" dilutes the value of the right to make full answer and defence, engendering unpredictable standards in relation to the disclosure of intelligence. In support of this argument, the author relies on R v Alizadeh, (11) a 2013 pre-trial decision from a terrorism prosecution in Ottawa, to expose the theoretical and practical implications of narrowly circumscribing assessments of intelligence deemed likely relevant.
This paper is divided into three segments. Part 1 unpacks the first and third party common law disclosure rules. Part II studies the court's reasoning in Alizadeh I, drawing on other cases which limit intelligence as third party disclosure. In this section, the author will also rely on CSIS's new powers to make the case for why intelligence ought to constitute first party disclosure. Furthermore, relying on extant issues explored by the Commission of Inquiry on Air India Flight 182, (12) Part III briefly comments on the bifurcated court model triggered by 38 of the CEA as an alternative area for reforms outside the common law, arguing that a single trial court is best left to decide matters involving disclosure and privilege.
I PART I: GATEWAYS AND ROADBLOCKS TO LITIGATING STATE SECRETS IN THE FIRST AND THIRD PARTY DISCLOSURE REGIMES
Scholarly references to the "intelligence-to-evidence conundrum" (13) embody the tension between intelligence in the pre-charge phase and evidence marshaled at trial in the post-charge phase. This tension lies in the "transition from collecting intelligence to collecting evidence, as an operation shifts from an intelligence-gathering exercise to a law enforcement investigation." (14) The dynamic creates a blurred line between the two that often yields contentious constitutional arguments about what ought to be disclosed.
In terrorism prosecutions, investigations are often triggered by the receipt of a disclosure or advisory letter from CSIS to the respective law enforcement agency. A disclosure letter is akin to a tip for investigative purposes, whereas an advisory letter may be relied upon to draft an Information to Obtain ("ITO") for a search warrant, subject to the conditions stated in the letter. (15) Intelligence sought in disclosure applications is sometimes referred to as a "source document" that supplements or provides further information on CSIS's investigation. (16) If disclosed, source documents may assist in supporting a Garofoli application, (17) or a Charter challenge that is not patently obvious in the disclosure record received by the defence. As Craig Forcese aptly provides, CSIS's hesitation to disclose source documents is explained by the "mosaic effect", (18) which is the idea that the release of benign or innocuous information can, when pieced together, or connected by a knowledgeable reader, cumulatively disclose matters of true national security significance. (19) In an age when reliance on "metadata" (20) grows more prominent, it will become increasingly difficult to discount the magnitude of the mosaic effect given the amount of data generated by individuals, and CSIS's abilities to weave information together to tell a tale about why any given subject is a threat to national security.
I. UNDERSTANDING THE COMMON LAW DISCLOSURE REGIME AND ITS INTERSECTION WITH TERRORISM PROSECUTIONS
The bedrock of the Crown's disclosure obligations can be found in R v Stinchcombe, (21) which describes the common law duty to disclose. Stinchcombe cautions the state to err on the side of disclosure, unless the material is clearly irrelevant, subject to privacy due to its injurious effects, or privileged. (22) However, the fruits of an investigation do not constitute the property of the Crown for use to secure a conviction, as they belong to the public to ensure that justice is done. (23) Since the Crown's obligation to disclose is not absolute, (24) obtaining intelligence poses difficulties for the defence.
On a review of Crown discretion, a trial judge must be guided by the principle that information ought not to be withheld if it impairs, or there is a reasonable possibility that it will impair, the right of the accused to make full answer and defence, unless privilege is triggered. (25) Critically, the obligation to disclose is an ongoing one when information is received, (26) which includes both the pre-trial and trial phase.
When information is not disclosed on grounds of privilege due to state security, the "overriding concern" is whether the failure to disclose "impedes the ability of the accused to make full answer and defence. (27) Writing for the Supreme Court of Canada in Stinchcombe, Sopinka J shed light on the constitutional dimension of the right to make full answer and defence, explaining it as follows:
This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice... The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. (28)
Despite broad interpretations about what constitutes Stinchombe disclosure, the Crown can dispute its disclosure obligations to the defence when information is sourced from third parties, such as CSIS, or is not within its immediate possession or control. (29) These disputes often prompt the defence to file a third party disclosure application, which applies to intelligence and other third party material. That is to say, CSIS intelligence is not necessarily immune from third party disclosure. (30)
The procedure for filing an O'Connor application is summarized as follows: (1) the defence typically serves a subpoena duces tecum (31) on the party possessing the record, and all parties with an influence on the records sought; (2) an application record filed with affidavit evidence, a factum to demonstrate that the records are "likely relevant" to an issue in the trial or the competence of a witness expected to testify on the subject of the records; (3) if the first stage is not passed, the analysis ends and the application fails. If the defence is able to meet the likely relevance threshold, the judge will request the party with the information to produce it to the court, typically in a sealed envelope; and (4) in reviewing the material in chambers, the judge must then balance the salutary and deleterious effects of ordering the production of the records. (32) The legal test for third party disclosure requires that the material be likely relevant to an issue at trial. (33) If the disclosure is ordered produced, the judge will review the documents, and weigh the privacy interests of the holder of the documents against the right of the accused to make full answer and defence. (34)
In any prosecution, what is likely relevant must be logically probative, or tending to prove a fact at issue and material to the trial proper. (35) Establishing a persuasive record on this point is a daunting endeavour for counsel, particularly without access to the documents. (36) Notably, counsel is not permitted to make assertions about credibility that aim blindly at undermining the credibility of a witness, or to speculate about their potential impropriety. Rather, there must be a nexus from the documents to "meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence". (37) The process of determining what is relevant is "fluid, rather than fixed". (38) As Kent Roach observes, the O'Connor regime standard "is higher than the Stinchcombe standard of relevance, but is not designed to be an onerous burden on an accused who is not engaged in a speculative or disruptive request for production". (39)
Notwithstanding these first principles, the context underpinning what is likely relevant is contingent on the type of document(s) sought. What is likely relevant is often a hypothetical exercise for counsel, and the judges, as the document is not actually produced to the judge until the first threshold of the test is met. The result is that discerning intelligence from evidence becomes a delicate assessment, as intelligence is often so closely enmeshed with the evidence that it becomes inextricably interwoven with the investigative steps of an investigation. Considered alongside one another, accessing state secrets through existing disclosure regimes amounts to a complex and voluminous exercise for the accused, trial counsel, and the presiding judge. Against this backdrop, Alizadeh I merits closer scrutiny, as it embodies the shortcomings of O'Connor applications.
II PART II: A CASE COMMENT ON R V ALIZADEH
I. AN OUTLINE OF THE CASE
Hiva Mohammad Alizadeh is an Iranian-born Canadian who was jointly charged in an Ottawa terrorism plot after a 2010 RCMP investigation. (40) Alizadeh was charged with conspiracy to facilitate terrorist activity, knowingly participating in or contributing to an activity of a terrorist group, and possession of an explosive substance with intent to endanger life or cause serious damage to property. (41) After extensive pre-trial applications, and some two years of litigation to obtain undisclosed intelligence, he pled guilty to the possession charge and received a 24-year sentence. (42)
Our primary focus is the decision on the third party records motion to compel CSIS records, rendered by McKinnon J of the Ontario Superior Court in Ottawa, Ontario. (43) In Alizadeh I, counsel for Mr. Alizadeh sought the disclosure of "all of the material reviewed by the [CSIS] affiant in preparation of warrants" issued under 12 and 21 of the CSIS Act by the Federal Court. (44) As a result of said warrants, CSIS gathered intelligence and provided the RCMP with disclosure and advisory letters between September of 2009 and January 2010, (45) each of which pointed to Mr. Alizadeh's suspected involvement in a terrorism ring. As a result, the RCMP spearheaded a separate investigation and obtained a series of tracking, dial-number-recorder, and wiretap warrants. (46) An affidavit commissioned by a CSIS affiant constituted the grounds upon which the wiretap warrants were issued. A bulk of the information in the affidavit relied on the CSIS intelligence. The CSIS affidavit, which was disclosed to counsel, referred to a human source, who described Mr. Alizadeh's relationship with a friend, Mr. Peshdary. The identity of the human source was disclosed to Mr. Alizadeh. Counsel argued that the material sought was relevant to an anticipated Garofoli wiretap challenge, and thus, crucial to making full answer and defence.
ii. Positions of the Parties
In the original application, defence counsel argued that the source documents constituted first party disclosure. Counsel eventually conceded that the CSIS affidavits fell under the third party records regime. (47) He further argued that the documents were "obviously relevant" because the propriety of the CSIS affidavit would affect the legal challenge to the RCMP warrants in assessing the candour, state of mind and accuracy of the affiant's mind. (48) In contrast, the Federal Crown argued that Mr. Alizadeh had all of the disclosure he needed to test the reliability of the affidavit material by cross-examining the human source, or speaking with his friend, Mr. Peshdary, whose conversations with a human source were the subject of contention and relevant to CSIS's investigation. (49)
iii Holding and Reasons
The application for disclosure was dismissed. The court found that the application amounted to a "pure fishing expedition" and that, "[r]egrettably for the applicant", he was "fishing without a hook". (50) Between the disclosure of the underlying affidavits for the CSIS warrant and the Part VI materials, the court found that Mr. Alizadeh had ample information to advance a defence. What mattered to the court were the materials provided by the RCMP in the affidavit, which met the statutory preconditions to judicially authorize the wiretap. (51) It seemed that what had already been disclosed was sufficient to conclude that the CSIS source records were not likely relevant.
In what reads as a perfunctory dismissal of the application, the court foreclosed the possibility that the Crown's common law obligations could constitute first party disclosure, writing that it had already fulfilled its obligations by facilitating the production of CSIS warrants and the underlying affidavit material. (52) Instead, the application judge went straight to the third party disclosure analysis.
In considering whether the source documents were likely relevant, the court acknowledged that the analysis in such applications is "contextual". (53) Likely relevance "... in the context of production imposes a higher threshold of relevance than that which exists in the disclosure context". (54) McKinnon J observed that in order to meet the threshold, the applicant must:
... raise a threshold factual basis that the cross-examination (or third party material) will produce probative evidence tending to discredit a material precondition to the authorization being granted or tending to show significant police misconduct in securing the search order. (55)
Adopting this rationale, the court concluded that Mr. Alizadeh failed to establish the threshold requirement of relevance primarily for two reasons, namely that: (1) the only information "clearly relevant" to a Garofoli application is that placed before the authorizing justice, which in this case, had already been disclosed; and (2) Mr. Alizadeh had first-hand knowledge about the statements attributed to him in the CSIS affidavit, given the involvement of a friend. After all, the Crown was not relying on the information obtained by CSIS (i.e. the Federal Court warrants), against Mr. Alizadeh. In effect, the wiretap was presumed to be lawful because it was reviewed by a Federal Court judge with extensive experience in this type of litigation.
During submissions, counsel for Mr. Alizadeh admitted that he did not know what could be discovered in the source notes, and that "the information could either help him or hurt him". (56) In fairness to counsel, it is difficult to pinpoint the precise contents of a source document to perfectly the the conceptual nexus between relevant source documents and material issues at trial in a sufficiently probative way. (57) Nevertheless, counsel for Mr. Alizadeh suspected the existence of a contradiction that was material to the credibility of the CSIS affiant, which could spoil the lawfulness of the wiretap.
iv. Application #2: Reconsidering the Likely Relevance Question [Alizadeh II]
Approximately one month after the disclosure ruling in Alizadeh I, counsel brought an application requesting that the court reconsider its decision to deny access to CSIS records and re-examine the RCMP and CSIS affiants. (58) The application was triggered by information that was made available at the Federal Court which revealed material known to CSIS that contradicted a statement made in the CSIS affidavit put before Noel J. (59) For the benefit of the reader, the contradiction discovered is worth reproducing:
The CSIS affidavit that was before Noel J., was sworn October 15, 2009. In that affidavit at para. 27, the affiant stated:
Source 2 also stated that Peshdary was actively looking for sources on the street that could sell him a gun. Peshdary was still working with the intention of travelling overseas for jihad and was accumulating money in order to follow through with his plans.
Information that apparently contradicts this statement is found in an email sent by Paul Mellon, a CSIS agent, to Greg Horton. the affiant of the information to obtain the Part VI wiretap authorizations and other relief. That email is dated October 23, 2009 and states:
On May 11, 2009 Cpl. Horton was advised by Sgt. Larin that Insp. Mellon spoke with CSIS on 2009-05-08. CSIS has spoke (sic) with PESHDARY about this incident and is confident that he is no longer looking to purchase a gun. Advised that there is no longer a concern and that... [redaction] Matter will no longer be pursued... (60)
For the benefit of clarity, Mr. Peshdary is the alleged ring leader of an Ottawa terror network in which Mr. Alizadeh was involved, which explains the relevance of this contradiction. Interestingly, recent media reports revealed that there were parallel investigations of Mr. Peshdary by the RCMP and CSIS, but that the agencies had not been sharing information at the time of the investigation. (61)
Having regard for this finding, the application judge concluded that the contradiction established a foundation tending to show that the material factual claims made by the CSIS affiant may have failed in meeting the obligation to make full, frank and fair disclosure in the ITO. (62) The court focused on the test for seeking leave to cross-examine the affiant on a Garofoli application, which demands the accused establish a reasonable likelihood that cross-examination will lead to a successful challenge to the authorization, (63) essentially concluding that they were one and the same. The judge found that the nexus between the allegation that the affiant lied, and what he or she ought to have known, was made out by the existence of contradictory evidence and the substantive challenge. He ordered the production of the CSIS source documents for review at the second stage of the O'Connor framework, noting that the matter would be heard in open court among the Crown and defence. (64)
II. DISSECTING ALIZADEH AND ITS RAMIFICATIONS IN LIGHT OF CSIS' AMPLIFIED POWERS
The holdings in Alizadeh I and II were selected to demonstrate how rigid judicial reasoning about what is "likely relevant" can stymie access to disclosure in terrorism prosecutions, potentially leading to erroneous findings. On its face, the reasoning in Alizadeh I thinly construed the relevance of the source documents, engaging in a prospective reasoning exercise supported less by fact and more by a hypothetical exercise about what type of intelligence could be relevant to the defence. Problematically, jurisprudence in both provincial courts and the Supreme Court of Canada are not ad idem with the positions articulated, throwing a wrench into this analysis.
Two observations from this case are noteworthy, namely: (1) what is likely relevant at the first stage of an O'Connor application ought not to be conflated with the threshold test to cross-examine an affiant at the Garofoli stage; and (2) CSIS source documents were presumptively treated as third party disclosure, while the intersectionality between intelligence and law enforcement agencies ought to be carefully studied before this determination is made.
i. Conflating "Likely Relevance" with "Reasonable Likelihood" in Garofoli
In Alizadeh I, the court acknowledged that while the applicant need not show that cross-examination or disclosure would result in a successful Garofoli application, a factual threshold must be established to demonstrate that the material is probative evidence tending to discredit a material precondition to the authorization being granted. (65) In effect, the Garofoli test, established by the Garofoli progeny (66) for challenging wiretaps and search warrants, was grafted on to the likely relevance threshold in the first prong of the O'Connor test. It is submitted that what is likely relevant to assist the accused in a Garofoli application, without any direct reference or knowledge of the contents of the documents, should not be equated with the reasonable likelihood that the same document will successfully challenge information sworn before the court to obtain a wiretap authorization.
Due to the conflation identified, the holding in Alizadeh I suggests that the application judge weighed the salutary and deleterious effects prematurely at the first stage of the O'Connor test, rather than the second, out of concern that disclosure would result in a fishing expedition. In other words, the application judge ought to have conducted this weighing exercise after ordering the production of the documents and reviewing them, rather than before.
The critique above is relevant for a few policy-based reasons. Conflating the likely relevance threshold with competing interests between disclosure and non-disclosure may chill third party applications, requiring an impossible standard. In effect, it would mandate a factual basis for how a source document can assist an accused while its contents are veiled. If judges are concerned with third party applications becoming fishing expeditions, the second stage of the O'Connor inquiry is best suited to filter them as a gatekeeping function, as it requires the court to weigh the benefits of disclosure with the privacy interests claimed in the documents. Labelling applications as fishing expeditions, absent overwhelming evidence to that effect, may also impair the independence of the bar, as counsel is ethically and duty-bound to defend their clients with the utmost zeal, (67) particularly in voluminous and complex terrorism prosecutions. Borrowing from the words of the Court in O'Connor, it is the balancing that "will prevent documents from being needlessly produced", (68) not what is likely relevant. To reiterate the holding in R v Mills from the Supreme Court of Canada, the threshold for likely relevance is not an onerous one, (69) and it should not be impossible to meet, especially since the application judge has not seen the document at the first stage. (70)
If the O'Connor analysis is to be properly tailored to the facts, then the types of source documents at issue are also germane to the success of a disclosure application. Alizadeh I ignores this proposition, and complicates disclosure in the intelligence-to-evidence dynamic, by turning the threshold analysis into a gatekeeping function where privileged interests are weighed. On the one hand, the author does not dispute that it is sound policy not to permit fishing expeditions in third party applications, in the interest of both respecting and preserving court resources and precluding the pursuit of frivolous or vexatious claims. On the other hand, the nature of the interests at stake in respect of the accused, at the very least, ought to be weighed. Application of the same standard between Garofoli and O'Connor paralyzes the likely relevance threshold without regard for the impact of non-disclosure on the accused. It effectively bars the accused from ever reaching the second stage of the O'Connor test and benefitting from the weighing exercise where Charter interests are at stake. Judges should be hard- pressed to halt the analysis after the first stage, given the close relationship between intelligence and evidence, and save the more rigorous analysis for the second stage of O'Connor to consider "true relevancy". (71) For a finding of true relevancy, as Charron J explains in R v McNeil, ultimately puts third party records in the same category as "fruits of the investigation" under Stinchcombe standards. (72)
ii. Is the conflation argument rendered moot by the World Bank Croup decision? (73)
The aforesaid argument was recently dispensed with by the Supreme Court of Canada in World Bank Group v Wallace, (74) where the Garofoli and likely relevance tests once again converged and were found to be one and the same.
In the World Bank case, an application was filed to compel a senior investigator from the World Bank to disclose documents to the applicants charged under a regulatory scheme. The RCMP obtained a wiretap after receiving a tip from the World Bank Group alleging that SNC Lavalin Inc., a global engineering firm, planned to bribe government officials to obtain a bidding contract in a project to build a bridge over the Padma River in Bangladesh. (75) The World Bank Group shared this information with the RCMP, which spurred a wiretap authorization and eventually resulted in regulatory charges against four individuals under the Corruption of Foreign Public Officials Act. The Court did not disclose the records, citing the World Bank Group's immunities over them and finding that the applicants failed to establish the relevance of the documents in their future Garofoli application. (76) Citing Alizadeh I in its decision, the Court adopted trends from the lower courts, deeming the likely relevance standard in O'Connor and Garofoli to be identical:
Lower courts have acknowledged these concerns, both as regards documents in the hands of the police and documents in the hands of third parties (Ahmed; R. v. Ali, 2013 ONSC 2629; R. v. Alizadeh, 2013 ONSC 5417; Croft; R. v. Way, 2014 NSSC 180, 345 N.S.R. (2d) 258)... [I]t is clear that lower courts consider disclosure and production of documents to be analogous to cross-examination. They have therefore applied the same relevance threshold. ... We agree that these two discovery tools--cross-examination of affiants and third party production orders--should be subject to the same relevance threshold.... The "reasonable likelihood" threshold is appropriate to the Garofoli context and fair to the accused. It does not require an accused to first prove the evidence which is being sought. By the same token, it prevents fishing expeditions and ensures efficient use of judicial resources. In short, it focuses on the issues relevant to a Garofoli application, which are narrower than those relevant to the case as a whole. (77)
Notwithstanding the obvious distinction between the argument posed earlier and these extracted findings, consider why the World Bank decision is distinguishable from terrorism prosecutions in four ways.
Firstly, the liberty interests of an accused charged under the Criminal Code are higher than those in the Corruption of Public Officials Act. Bribing a foreign official attracts a maximum term of imprisonment of not more than 14 years. (78) Many terrorism offences carry life sentences or invoke customary upper ranges between 15 and 20 years. (79) The liberty interest of a suspected terrorist, coupled with significant bars on parole, (80) is much higher than in the regulatory domain. In this way, the stakes are higher for the accused suspected of committing terrorism offences. A more liberal and purposive interpretation of what is "likely relevant" is commensurate with Charter standards compared to a one- size-fits-all approach.
Secondly, the nature of the documents in both cases is distinguishable. In Alizadeh I, the hand notes sought were in the possession of CSIS. They would have been used to support the CSIS affidavit, which informed the basis of the RCMP wiretaps. In World Bank, the RCMP officer swore an affidavit but did not make any handwritten notes of his work, and lost all his emails from the investigative period because his computer crashed and was re-imaged. (81) The applicants relied on these deficiencies in support of their claim. Likewise, the lead investigator of the case also lost emails due to a computer crash. (82) At issue was whether, in addition to the disclosure already received, the lost notes were at all relevant, which raised suspicions about the application constituting a fishing expedition. The relevant inquiry, as the Court aptly put it, would appropriately fall under the lost evidence framework afforded in R v La. (83) Querying whether lost documents are relevant to the lawfulness of a wiretap is much different than seeking source documents that were part and parcel of a material contradiction between an affidavit and the intelligence collected.
Thirdly, the operational capacity of CSIS is much wider than that of the World Bank. CSIS's power to collect, analyze and retain information and intelligence that may, on reasonable grounds, be suspected of constituting threats to the security of Canada, constitutes a broad intelligence mandate. (84) Importantly, CSIS is not subject to territorial limits within Canada in exercising its duties. (85) Surely, the breadth of CSIS's powers cannot be likened with that of the World Bank.
Fourthly, the World Bank case is an international law case touching on privileges and immunities of organizations outside of the Canadian disclosure regime. For example, the documents produced by the World Bank Group's Integrity Vice Presidency (the "INT"), which is responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the World Bank Group, were immune from the requirement to produce archival documents. The Court discerned that the work of the INT, as an investigating body, was captured by the Articles of Agreement of the International Bank for Reconstruction and Development and the International Development Association, notwithstanding INT's operational independence. (86) Those same immunities protected the investigators, since they were deemed to be employees acting in their official capacity when the documents were obtained. (87) Regardless of whether these immunities would have precluded the production of the documents sought, the production order should not have issued. (88) That is to say, the immunities placed protective shields around the documents as a function of treaty interpretation, not the common law or domestic statutory authorization. This added dimension of immunity carries unique policy ramifications that do not apply in the terrorism context.
The reader may consider the argument on the conflation of tests between Garofoli and O'Connor moot because it does not square with the ratio decidendi in the World Bank case. However, the blanket application of the World Bank decision is problematic, as it risks precluding access to documents that may have had a foundational underpinning on a case. Given that CSIS effectively "monopolizes most aspects of the initial response" (89) in terrorism cases, their involvement is often the basis upon which an investigation is spearheaded. Without documentation pertaining to these investigations, the right to make full answer and defence suffers.
If CSIS disclosed source documents to the Crown at the outset of a case, ceding them to Stinchcombe disclosure, the tenor of this argument would diminish significantly. However, as the Commission of Inquiry into the Air India bombing provides, CSIS is often "alarmed by the scope of Stinchcombe disclosure obligations which create a risk of public exposure of intelligence operations". (90) While the commission recommended that CSIS conform and adhere to common law disclosure standards when conducting investigations to facilitate the use of intelligence in criminal trials, (91) CSIS remains hesitant to disclose, for the same operational standards outlined earlier in this paper. Given this reality, the holding in World Bank leaves the accused with a tighter likely relevance threshold, and one that is difficult to satisfy. It is submitted that by softening the likely relevance burden imposed by World Bank and Alizadeh I, trial courts can, at the very least, assess the documents CSIS is loath to disclose, both as gatekeepers of sensitive information, and guardians of the constitution.
iii. Intelligence Ought Not to be Treated as Presumptive, Third Party Disclosure
In Alizadeh I, the parties eventually conceded that the CSIS source documents constituted third party disclosure. It is submitted that the degree of CSIS's role in an investigation should weigh into the court's assessment of whether source documents are captured by first or third party disclosure. This was the case in the Air India prosecution where the facts weighed in favour of Stinchcombe disclosure. (92) As Kent Roach notes in his study relating to the Air India investigation, while not all of CSIS's conduct is subject to Stinchcombe, source documents from investigations involving suspects who might be charged could very well make their way into the hands of the Crown, (93) which makes them no longer third party records.
Unlike Alizadeh I, other courts have considered the role or nexus of CSIS in relation to the investigation in a more scrupulous manner. For example, in the British Columbia Victoria Day bomb plot case, R v Nuttall, the co-accused filed an application for disclosure of CSIS-related source documentation in the possession of an officer who did not share it with the others involved in the investigation. (94) For the purposes of Stinchcombe disclosure, CSIS and the RCMP were distinct entities, even though they maintained parallel investigations. However, the court expressed the implications of intelligence-to-evidence investigations in this way:
It is only when the investigations become so interwoven that they are, in reality, one investigation leading to a prosecution that the disclosure obligations of Stinchcombe apply to both state agencies. Further, when another state agency such as CSIS takes an active role in the police investigation, the court may conclude that there was essentially only one investigation giving rise to a Stinchcombe disclosure obligation on the secondary state agency. (95)
Ultimately, the court concluded that the exchange of information did not bind CSIS to Stinchcombe, but it recognized that the roles of CSIS and the RCMP were much more intertwined in other cases, including that of Mr. Alizadeh. (96) Notwithstanding this finding, the holding correctly suggests that courts should assess the relationship and degree of collaboration between the police and CSIS in determining whether CSIS could be subject to first party disclosure, rather than presumptively concluding that source documents can only be classified as third party disclosure.
The argument that intelligence constitutes first party disclosure was accepted in the Air India prosecution of R v Malik, Bagri and Reyat. (97) To the author's knowledge, and at the time this paper was written, no other case has classified CSIS source documents as first party disclosure. Counsel for Mr. Bagri in the Air India prosecution, Michael Code (now Justice Code), successfully persuaded the court that CSIS was part of the Crown both in "law and logic", which the Crown conceded given CSIS's 1987 agreement with the RCMP to unfettered access to CSIS information. (98) Moreover, the Stinchcombe finding was partially attributable to the destruction of wiretaps and interview notes by CSIS, which triggered section 7 concerns, (99) and engendered remedial concerns.
Code J later presided over a third party disclosure application for CSIS documents in R v Jaser, (100) a co- accused in the Via Rail bomb plot conspiracy of 2013. In Jaser, CSIS was granted two intercept authorizations by the Federal Court, the fruits of which were disclosed to the RCMP and relied upon for Part VI wiretap authorizations. (101) Not unlike the 2009 Supreme Court of Canada decision in R v McNeil, (102) which dismissed the idea that all state agencies are subject to Stinchcombe disclosure, (103) the parties in Jaser agreed that the third party/McNeil common law regime applied to the request for production of the Federal Court Affidavit. (104) Similar to Alizadeh I, counsel for Mr. Jaser argued that the CSIS affidavit sought was likely relevant to a section 8 Charter motion to exclude the wiretap evidence because it led to the CSIS wiretap, and in turn the Part VI authorization. Code J found that it would be hard "to imagine a more centrally relevant item of disclosure, on a section 8 Garofoli review". (105) acknowledging that while small information may seem insignificant or unreliable, when shared with agencies it can become significant or reliable because of other agency abilities to "connect the dots." (106) This is a direct example of the mosaic effect referred to above. It seems that while the likely relevance hurdle was easier to overcome than it was in Alizadeh I, given that Code ) ordered the production of the affidavit, the prospect that the documents constituted first party disclosure was not considered.
Given the status quo on the classification of source documents as third party records, (107) it is not unreasonable to suggest that if counsel had advanced the argument that the affidavit ought to have constituted first party disclosure, the likelihood for success would have been grim. However, as CSIS's investigative powers become more enmeshed at the front-end of terrorism prosecutions, the propriety of intelligence continues to become a critical precondition for the collection of evidence by law enforcement officials in an investigation. These very concerns were addressed in R v Quesnelle, (108) in which the Supreme Court of Canada held that the Crown, for the purposes of first party disclosure, is simply the prosecuting Crown, (109) while other entities, like the police, constitute third parties. The rationale exemplified by interpretations of Quesnelle, Mills, O'Connor and Stinchcombe suggests that there is an institutional agreement supporting the classification of CSIS intelligence as third party records.
Notwithstanding jurisprudence on this point, it is advisable that courts remain mindful and open to the idea that as CSIS intelligence capacities grow more intrusive in nature, particularly due to its disruption and threat powers, it will become more and more difficult to detach CSIS from the role of a law enforcement agency whose fruits are destined for the hands of the Crown. Even when intelligence is not in the hands of the police and the Crown, the Crown has a legal duty to make reasonable inquiries when put on notice of material in the hands of the police or other Crown entities that is potentially relevant to the Crown or the defence. (110) In turn, the police also have a duty to disclose all material pertaining to its investigation of the accused as well as other information that is obviously relevant to the case. (111) The operative word all is indicative of the scope of the common law disclosure rules. If the Air India report has taught us anything, it is that CSIS should not be the unilateral arbiter of disclosure matters. (112) Disclosure ought to be provided to the police and to the Crown. If CSIS does not do so, then the O'Connor regime must be interpreted liberally. These robust disclosure duties merit a brief overview of CSIS's powers to better appreciate how closely related CSIS is to the Crown's prosecutorial function.
iv. Enhanced CSIS Powers under C-51
Since the codification of Bill C-51, the status of CSIS as an arms-length intelligence service was significantly bolstered, turning it into an entity with powers to disrupt and reduce threats. (113) Despite its non-prosecutorial capacity, CSIS has, for all intents and purposes, evolved into a law enforcement agency with a functional capacity that is no longer circumscribed to the mere collection and retention of intelligence.
Interestingly, section 12.1(4) of the CSIS Act (114) highlights that CSIS' threat reduction abilities do not "confer on the Service any law enforcement powers". Put another way, subsection (4) suggests that Parliament did not intend for CSIS to be considered a de facto law enforcement agency, presumably because this would trigger a host of disclosure obligations and extend its mandate too far. However, when reading subsection (4) harmoniously with the scheme of the Act, (115) the authority to reduce threats and disrupt them inflates CSIS's responsibilities beyond the collation of intelligence. Corroborating this observation, then Minister of Public Safety and Emergency Preparedness Steven Blaney, during the second reading of Bill C-51, stated that:
With this strengthened mandate, the Canadian Security Intelligence Service could use a variety of techniques to counter threats in order to thwart plans or even alter behaviour. For example, CSIS could talk to the family of a potential terrorist about his travel plans. This is a legal activity in which CSIS cannot currently participate because it does not fall within the services intelligence gathering mandate. (116)
These words suggest that the government intended to strengthen CSIS's law enforcement toolkit short of acknowledging that it has turned into a police force. Examples that further substantiate this position are readily apparent in the Act. For example, section 12.1 of the CSIS Act now authorizes CSIS to pursue extra-territorial measures. (117) These measures are not statutorily defined. However, if they impinge on Charter rights, they can only be taken when authorized by a warrant under section 21.1, which is not limited to threat reduction or disruption in Canada. (118) Powers available in such warrant authorizations may include entering, opening or obtaining access to anything, searching for, examining and/or extracting records, information, documents or things, installing, maintaining or removing anything, and doing any other thing that is reasonably necessary to take those measures. (119) Aside from not having the authority to lay charges, CSIS is just as capable as the police, if not in a greater capacity, in terms of its investigatory and threat reduction abilities. (120)
It is not entirely clear what the breadth of these measures encapsulates. Craig Forcese and Kent Roach have closely scrutinized the threat reduction and disruption powers afforded to CSIS in Bill C-51. They suggest that the "blank cheque approach... used in C-51 was not acceptable when it was enacted" and is no more acceptable "now that CSIS has already exercised its new powers in over twenty times, with its review body not being able to provide even a general outline about what was involved in the CSIS disruptions." (121) In their view, CSIS threat reduction powers are unclear in scope, allowing CSIS to exercise powers that are on parallel investigative tracks outside the legal system, and potentially in violation of the law, including the Charter. (122) In effect, the presumption inherent in the legislation is that CSIS can disrupt threats without, and by circumventing, traditional criminal justice tools. Some powers include disrupting financial transactions, manipulating goods intended for terrorist use, and interfering with terrorist communications, which suggests that they could be used "in close cooperation with the police in terrorism investigations". (123) Importantly, Professors Roach and Forcese remind us that where prosecutions involve disruption powers, CSIS's divisibility from the Crown becomes circumspect, raising the spectre of confusion between intelligence and evidence and resulting in a more complicated environment to protect state secrets. (124) To borrow the words of Michael Code, CSIS's enhanced abilities, as a matter of "logic and law", make it a part of the prosecuting agency.
It is trite law that the Crown is not an indivisible entity. (125) To be clear, the author does not purport that the Crown is indivisible from CSIS. Surely, there will be circumstances where CSIS's role may not be interwoven with an investigation. However, in cases where CSIS's investigation is linked to, and serves as, a condition precedent to a police investigation, or where it has disturbed or reduced threats during an investigation, intelligence produced ought to be disclosed to the Crown. Moreover, having regard for the reasoning in Nuttall and Jaser, both of which consider the degree of connection between CSIS and the RCMP in discerning whether source documents constitute first or third party disclosure, it seems that the door to Stinchcombe disclosure remains ajar. At the very least, if these reforms are too taxing on the preservation of state secrets, courts should be open to implementing Recommendation 32 from the Air India inquiry, which suggests that the Crown "should be able to disclose all other material that must be disclosed pursuant to Stinchcombe and Charkaoui by making it available to counsel for the accused for manual inspection". (126)
III PART III: DEALING WITH SECTION 38 AND THE BIFURCATED COURT MODEL
If the disclosure regime cannot be remedied by incremental changes to the common law by judges, then the procedural aspect of litigating state secrets is worth reforming. That is to say, the bifurcated court model, animated by section 38 of the CEA, should attract considerable review. Section 38 of the CEA carves out Crown privileges that categorically prohibit the disclosure of intelligence on the basis that it constitutes injurious or sensitive information that could harm international relations, national defence, or national security. (127) In essence, it codifies the common law privilege to protect state secrets. (128) The argument that follows captures the weaknesses of this model, arguing for a one court model process.
Importantly, section 38 proceedings can be initiated at any stage of a terrorism prosecution. When triggered, the trial proper is effectively paused until the litigation on the issue of privilege is determined at the Federal Court. To date, this type of bifurcated court model does not exist in other democracies. (129) Section 38 can seriously prolong, fragment, confuse and stifle the fluidity of litigation, imposing a great deal of stress on both counsel and the accused, particularly with respect to court costs. One can only imagine that section 38 would be triggered earlier if source documents constituted Stinchcombe disclosure obligations. Either way, it is not the point in time that section 38 is prompted that should be concerning, but rather its effects on the proceeding.
In 2011, a group of offenders referred to as the Toronto 18 challenged the constitutional validity of section 38 at the Supreme Court of Canada in R v Ahmad. (130) They argued that the nature of the bifurcated court model abrogated from the constitutional authority granted to courts of inherent jurisdiction pursuant to section 96 of the Constitution Act, 1867, and violated their 7 Charter rights. (131)
The bifurcated model passed constitutional muster. It was determined that the absence of disclosure could not "necessarily be equated with the denial of the right to make full answer and defence resulting in an unfair trial". (132) The Court also found the model did not infringe fair trial rights because its constitutionality was reinforced by section 38.14 of the CEA which enables the court to "make any order that he or she considers appropriate in the circumstances to protect the right of the accused to a fair trial". (133) The holding is at odds with some of the predictions advanced by Hamish Stewart prior to the decision, namely that section 38.14 could not categorically save the fair trial issues on the basis that Crown discretion is determined on a case-by-case basis, and thus fair trial rights could not be guaranteed. (134) Stewart's position is attractive because it reflects the reality of day-to-day discretion in the Crown's disclosure responsibilities. Subject to the strictures of Stinchcombe, disclosure is a creature of prosecutorial discretion, attracting a range of subjective, value-laden views about what ought to be disclosed and what is clearly irrelevant.
Critiques on the bifurcated court model, like those in Ahmad, are not new to the national security scene. (135) They confirm the fact that the bifurcated proceedings invoke a "time consuming and awkward process", fragmenting a criminal trial, (136) and begging the question as to why Federal Court judges are better equipped to hear matters involving national security.
A bifurcated court model not only disrupts a criminal trial, compromising judicial economy and scarce court resources, but it also promulgates two tiers of judicial calibre. Arguably, Superior Court judges are among the most knowledgeable in the trial divisions, as the inherent jurisdiction of the court requires them to be competent in a range of legal areas, including but not limited to criminal law, family law, civil procedure, summary conviction appeals, constitutional law, and administrative law. In contrast, the Federal Court typically hears matters involving immigration, administrative law, military law, tax law, relief against the Crown, federal tribunals, and intellectual property. (137) Additionally, Superior Court judges are well-equipped to deal with publication bans, and the cumbersome nature of jury trials. They are constantly balancing the rights of the accused with confidential information that, if made public, could compromise the integrity of a trial. As such, the breadth of legal knowledge required of a section 96 judge is simply broader in scope. Put simply, Superior Court judges are fully equipped to deal with matters of privilege, and secrecy, particularly given their jurisdiction over Part VI matters, the subject matter of which could compromise high stakes investigations. As such, the argument that Federal Court judges are more experienced in national security matters risks generating schisms between Superior and Federal Court judges.
Moreover, as observed in Mission Institution v Khela, "there is no reason to suppose that the Federal Court is more expert than the provincial superior courts when it comes to inmates' fundamental rights", since superior courts are "eminently familiar with the application of Charter principles and values". (138) From an access to justice standpoint, Superior Courts are more locally accessible. (139) Based on parallel reasoning, the concerns echoed in Khela may equally apply to terrorism prosecutions. While there is a patent national security dimension in terrorism prosecutions, the heart of the trial is criminal in nature, subject to the rules of criminal evidence, and more familiar to an accused who has already been assigned a trial judge. In that way, criminal dockets are simply visited upon Superior Court judges more frequently than Federal Court judges.
While the aforesaid propositions are tenable criticisms, they are met with gridlock given the Ahmed decision, which effectively leaves the fate of the bifurcated model in the hands of Parliament. For what it is worth, the Ahmed case is a firm soundbite upon which the government can rely to justify that section 38 does not require legislative reform. In fact, some courts suggest that despite the model adopted, delay in a terrorism prosecution is inevitable, given the need to safeguard secret information; and further, that relegating disclosure to the trial courts will perpetuate an endless cycle of disclosure and section 38 claims. (140) While this suggestion does not ring hollow, it fails to observe that the application of the law, despite the forum, remains the same, and the only difference would be its arbiter. For all the reasons suggested above, any disclosure model in the pre-trial context should be decided by a trial judge with knowledge of the entire record.
Alizadeh I invites pressing concerns for the future of O'Connor applications, particularly given the weight it received in the World Bank case. Interpreted in the broadest manner, Alizadeh I embodies the difficulty with separating intelligence from evidence on a conceptual level. It also exhibits the complexity of reconciling competing forces between O'Connor applications, and the right to make full answer and defence under section 7 of the Charter. In that way, it is a worthy model for study when considering what can go awry when the standard for what is likely relevant becomes more onerous than O'Connor ever intended.
While the right to disclosure is not necessarily co-extensive with the right to make full answer and defense, (141) courts should be alive to the fact that ordering disclosure has remedial value for the accused. Otherwise, when intelligence cannot be disclosed due to Crown privileges and the right to make full answer and defence is disturbed, trial judges are equipped with remedial tools to safeguard Charter rights and rectify these tensions by dismissing counts, finding against parties or issues to which the undisclosed information relates, or staying the proceedings. (142) Better explained, in discerning the appropriate remedy with respect to Charter breaches, judges should heed to the tripartite considerations identified by Kent Roach in the Air India report: namely, the need to need keep legitimate secrets, treat the accused fairly, respect the presumption of open courts, and provide an efficient process for the prosecution of terrorism cases. (143)
As such, judicial foresight to an order of disclosure as a remedial element ought to serve as the backdrop to O'Connor applications when a source document has not been disclosed. The notion that the applicant is only entitled to what was placed before the authorizing justice for an invasive search tool is unwieldly in the face of the intelligence-to-evidence dynamic, given their Siamese nature. In fact, both the RCMP and CSIS have recognized that criminal investigations may be pursued against individuals subjected to CSIS threat reduction measures, (144) signaling a greater appreciation for CSIS's involvement in terrorism prosecutions.
Disclosure applications provide judges with an opportunity to appreciate the relationship between intelligence to evidence. As expressed throughout this paper, courts demonstrate unique interpretations of which types of source documents are likely relevant to a material issue at trial, often doing so inconsistently. Because CSIS now benefits from enhanced powers of threat reduction and disruption, the relationship between intelligence and evidence is becoming a closer one. If a court does not view a source document, how can it determine what is likely relevant? More importantly, if the nexus between CSIS and the relevant law enforcement body is not assessed, how can one presumptively categorize source documents as third party disclosure? These are just a few of the questions that should weigh heavily on courts in assessing whether the right to make full answer and defence has been appropriately fulfilled. Therefore, the door to Stinchcombe disclosure in terrorism cases is not yet locked, and counsel should not be averse to fearlessly opening it.
* J.D. (University of Oitawio. LL.M- (University of Toronto).
(1) Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Air India Flight 182: A Canadian Tragedy: The Relationship Between Intelligence and Evidence and the Challenges of Terrorism Prosecutions, vol 3 (Ottawa: Public Works and Government Services Canada, 2010) at 109 [AI Report].
(2) The origins of this common law right are explored further in Part I of this paper.
(3) The right to a fair trial is enshrined in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 11(d): Any person charged with an offence has the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal" [Charter]. See also Kent Roach, "The Unique Challenges of Terrorism Prosecutions: Towards a Workable Relation Between Intelligence and Evidence" in Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Research Studies: Terrorism Prosecutions, vol 3 (Ottawa: Public Works and Government Services Canada, 2010) at 313-315.
(4) RSC 1985, c C-5 [CEA]. See also sections 37 and 39 of the CEA, which enumerate specified public interests and confidences of the Queen's Privy Council, respectively.
(5) Rv O'Connor.  4 SCR 411 at para 104, 130 DLR (4th) 235 [O'Connor]. See also section 650( 3) of the Criminal Code, RSC 1985, c C-46 [Code]. Charter, supra note 3, s 7 reads "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
(6) AI Report, supra note 1 at 116.
(7) R v Stinchcombe,  3 SCR 326, 8 CR (4th) 277 [Stinchcombe] (cited to SCR).
(8) A similar question was asked by John AE Vervaele in his assessment of intelligence-to-evidence in the United States and the Netherlands. See John AE Vervaele, "Terrorism and Information Sharing between the Intelligence and Law Enforcement Communities in the US and the Netherlands: Emergency Criminal Law" (2005) 1:1 Utrecht L Rev 1 at 3.
(9) SC 2015, c 20. For ease of reference, this Act is referred to as Bill C-51.
(10) O'Connor, supra note 5.
(11) R v Alizadeh, 2013 ONSC 5417, 116 WCB (2d) 263 [Alizadeh I].
(12) AI Report, supra note 1 at 158.
(13) As Craig Forcese and Kent Roach explain, intelligence-to-evidence "is about disclosure of intelligence secrets in court proceedings, which are almost always in open court and in many instances oblige disclosure to the other party." In their response to the Green Paper by the Government of Canada, they refer to the intelligence-to-evidence issue as a "conundrum": Craig Forcese & Kent Roach, "Righting Security: A Contextual and Critical Analysis and Response to Canada's 2016 National Security Green Paper" (2016) Ottawa Faculty of Law Working Paper No 2016-39 at 33, online: Social Science Research Network <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2849261> ["Righting Security"). 1 adopt the same phraseology for the purposes of this paper.
(14) AI Report, supra note 1 at 21.
(15) See Alizadeh I, supra note 11 at para 4, where McKinnon J explains that a Disclosure Letter provides the RCMP with lead information that can be used to initiate a prosecution or an investigation. An Advisory Letter is the means by which CSIS consents to the use of its intelligence in court, by the RCMP, for a judicial authorization, typically in the form of a wiretap.
(16) By "source document", the author refers to a record of CSIS intelligence that is produced in writing, or electronically, for the purposes of an investigation. For example, source documents may include affidavits sworn by CSIS intelligence officers, or top secret documents that are not typically disclosed to the defence. Information that may trigger opposition to disclosure can include information that may identify or tend to identify: (1) Service employees or internal procedures and administrative methodology of the Service, such as names and file numbers; (2) investigative techniques and methods of operation utilized by the Service; (3) Service interest in individuals, groups or issues, including the existence or absence of past or present files or investigations, or the degree or lack of success of investigations; (4) human sources of information for the Service or the content of information provided by a human source; (5) relationships that the Service maintains with foreign security and intelligence agencies; and (6) information concerning the telecommunication system utilized by the Service": Craig Forcese, National Security Law: Canadian Practice in International Perspective (Toronto: Irwin Law, 2008) at 419. See also Canada (AG) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maker Arar), 2007 FC 766 at para 69,  3 FCR 248.
(17) This hearing, pursuant to R v Garofoli,  2 SCR 1421, 60 CCC (3d) 161. challenges the lawfulness of a wiretap authorization by way of cross-examining the affiant who swore the Information to Obtain that was before the reviewing judge who authorized the wiretap.
(18) Forcese, supra note 16 at 419.
(19) Ibid at 419-420. See also comments from Kent Roach on the mosaic effect in Roach, supra note 3 at 371.
(20) See Office of the Privacy Commissioner of Canada, 2015-2016 Annual Report to Parliament on the Personal Information Protection and Electronic Documents Act and the Privacy Act: Time to Modernize 20th Century Tools (Ottawa: Minister of Public Services and Procurement Canada, 2016) at 22, where metadata is defined as "data about data". The Report also states that when metadata "is all combined and analyzed, it can reveal a great deal about who we are--not just our identity, but our habits and interests, the places we go and the people we associate with."
(21) Stinchcombe, supra note 7.
(22) Ibid at 335-336.
(23) Ibid at 333.
(24) Ibid at 339-340.
(25) Arid at 340.
(26) Mat 343.
(27) Ibid at 336.
(28) Ibid (emphasis added). In Ontario, the Crown Policy Manual provides that "Crown counsel must make disclosure according to law. Proper disclosure to the defence, of information in the Crown's possession, is one of the underpinnings of the fair trial process. The law also provides, however, for limited or delayed disclosure in order to protect privileges and other interests (for example, protection of witnesses). Thus, tensions can arise between the duty to disclose and the co-existing duty to protect those other interests". See Ontario, Ministry of the Attorney General, "Crown Policy Manual: Disclosure" (21 March 2005), online: Ministry of the Attorney General <https://www.attorneygeneral.jus.gov.on.ca/english/crim/cpm/2005/Disclosure.pdf>.
(29) O'Connor, supra note 5 at para 101.
(30) Roach, supra note 3 at 344.
(31) This type of subpoena requires the recipient to produce documents should the application judge decide the information is likely relevant in an O'Connor application.
(32) In terrorism prosecutions, the balancing exercise may include the extent to which the intelligence is necessary to make full answer and defence, carries probative value to a material issue at trial, and any prejudice that disclosure could cause to state interests and privacy or other rights: Roach, supra note 3 at 344.
(33) David M Paciocco & Lee Stuesser, The Law of Evidence, 6th ed, (Toronto: Irwin Law, 2008) at 240.
(34) Ibid at 242.
(35) O'Connor, supra note 5 at paras 138, 140.
(36) Ibid at para 141.
(37) AI Report, supra note 1 at 115, citing R v Egger,  2 SCR 451 at 467, 103 DLR (4th) 678.
(38) O'Connor, supra note 5 at para 146.
(39) Roach, supra note 3 at 344.
(40) Tonda Maccharles, "Ottawa Man Gets 24 Years after Surprise Guilty Plea in Terror Plot", The Toronto Star (17 October 2014), online: The Toronto Star <https://www.thestar.com/news/canada/2014/09/17/ottawa_man_gets_24_years_after_urprise_guilty_plea_in_terror_plot.html>.
(41) R v Alizadeh, 2014 ONSC 1907 at para 1; 116 WCB (2d) 643.
(42) Consider some of the numerous reported decisions in relation to this case: R v Alizadeh, 2013 ONSC 7540, 116 WCB (2d) 262 [Alizadeh II]; R v Alizadeh, 2014 ONSC 206, 116 WCB (2d) 83; R v Alizadeh, 2014 ONSC 1624, 315 CCC (3d) 295; R v Alizadeh, 2014 ONSC 1907, 116 WCB (2d) 643; R v Alizadeh, 2014 ONSC 5421 at paras 1, 3, 116 WCB (2d) 96.
(43) Alizadeh I, supra note 11.
(44) Ibid at para 1.
(45) Ibid at para 5.
(46) Ibid at paras 6-7.
(47) Ibid at paras 12-15.
(48) Ibid at paras 21, 23.
(49) Ibid at paras 41, 54.
(50) Ibid at para 38.
(51) Ibid at para 40.
(52) Ibid at paras 34-35.
(53) Ibid at para 56.
(54) Ibid at para 28.
(55) Ibid at para 30 (emphasis added).
(56) Ibid at para 51.
(57) See Peter Rosenthal. "Disclosure to the Defence after September 11: Sections 37 and 38 of the Canada Evidence Act" (2003) 48:2 Crim LQ 186 at 189.
(58) Alizadeh II, supra note 42.
(59) Ibid at para 7.
(60) Ibid at paras 9-10 (emphasis added).
(61) Gary Dimmock, "CSIS Aware of Terror Suspect's Flight from Canada, while RCMP Investigated" Ottawa Citizen (16 December 2016). online: Ottawa Citizen <http://ottawacitizen.com/news/local-news/csis-knew-intimate-details-of-suspected-terrorists-final-hours-before-leaving-canada>.
(62) Alizadeh II, supra note 42 at para 18.
(63) Ibid at paras 20-21.
(64) Ibid at para 50.
(65) Alizadeh I, supra note 11 at para 30.
(66) See R v Pires; R v Lising, 2005 SCC 66 at para 3,  3 SCR 343, where the Supreme Court of Canada states that "[t]he Garofoli threshold test requires that the defence show a reasonable likelihood that cross examination of the affiant will elicit testimony of probative value to the issue for consideration by the reviewing judge." See generally R v Morelli. 2010 SCC 8,  1 SCR 253.
(67) See Canada (AG) v Federation of Law Societies, 2015 SCC 7 at para 28,  1 SCR 401, where the Supreme Court discusses whether the independence of the bar is a principle of fundamental justice. McKinnon J's assertion in Alizadeh I. supra note 11, about counsel going on a "fishing expedition" was found to be unsubstantiated in Alizadeh II, supra note 42.
(68) O'Connor, supra note 5 at para 152.
(69) R v Mills,  3 SCR 668 at para 46, 180 DLR (4th) 1.
(70) For a similar argument, see AI Report, supra note 1 at 124. See also an unrelated, but similar issue in Carey v Ontario,  2 SCR 637, 35 DLR (4th) 161, where the Supreme Court of Canada considered whether the refusal to produce Cabinet documents as a class privilege was valid, and whether it was necessary for the appellant to establish that the documents were relevant and would assist his case. Writing for the Court, La Forest I considered the concerns of the Court of Appeal for Ontario about fishing expeditions for undisclosed documents. He stressed, at 678, as follows: "What troubles me about this approach is that it puts on a plaintiff the burden of proving how the documents, which are admittedly relevant, can be of assistance. How can he do that? He has never seen them; they are confidential and so unavailable. To some extent, then, what the documents contain must be a matter of speculation. But they deal with precisely the subject matter of the action and what one party was doing in relation to the relevant transactions at the time." The tenor of La Forest J's concerns should apply equally in the case of O'Connor applications in terrorism cases.
(71) R v McNeil, 2009 SCC 3 at para 39,  1 SCR 66 [McNeil].
(72) Ibid at para 42.
(73) The author is grateful for John Norris who pointed to this case as a counterargument to this paper.
(74) 2016 SCC 15,  1 SCR 207 [World Bank].
(75) Ibid at para 3.
(76) Ibid at paras 146-147.
(77) Ibid at paras 131-133 (emphasis added).
(78) Corruption of Foreign Officials Act. SC 1998, c 34, s 3(1)-(2).
(79) While the Supreme Court of Canada has stated that the 15- to 20-year sentencing range often invoked in terrorism cases is customary, it does not preclude longer sentences that nevertheless fall short of life imprisonment: R v Khawaja, 2012 SCC 69 at paras 125-126,  3 SCR 555.
(80) Section 743.6(1.2) of the Code, supra note 5, ascribes a mandatory limit on parole of ten years, or half the sentence, whichever is less, "unless the court is satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society's denunciation of the offence and the objectives of specific and general deterrence would be adequately served by a period of parole ineligibility determined in accordance with the Corrections and Conditional Release Act."
(81) World Bank, supra note 74 at para 18.
(82) Ibid at para 110.
(83)  2 SCR 680, 148 DLR (4th) 608.
(84) Canadian Security Intelligence Service Act, RSC 1985, c C-23, s 12(1) [CSIS Act].
(85) Ibid, s 12(2).
(86) World Bank, supra note 74 at para 50.
(87) Ibid at para 87.
(88) Ibid at para 100.
(89) AI Report, supra note 1 at 18.
(90) Ibid at 22.
(91) Ibid at 336.
(92) Roach, supra note 3 at 342-343.
(93) Ibid at 343.
(94) R v Nuttall, 2015 BCSC 1125 at para 9,  BCJ No 1394 (QL).
(95) Ibid at para 36 (emphasis added).
(96) Ibid at paras 43, 45.
(97) 2002 BCSC 864,  BCTC 864.
(98) AI Report, supra note 1 at 117.
(99) Ibid at 114.
(100) 2014 ONSC 6052, 120 WCB (2d) 241 [Jaser].
(101) Ibid at para 3.
(102) McNeil, supra note 71.
(103) AI Report, supra note 1 at 119.
(104) Jaser, supra note 100 at para 11.
(105) Ibid at para 23. Query whether the likely relevance stage is less onerous when counsel anticipates filing a section 8 application, as compared to a Garofoli challenge.
(106) Ibid at para 53, citing Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations, vol 3 (Ottawa: Public Works and Government Services Canada, 2006) at 102-4, 318-319.
(107) See for example, R v Ali, 2013 ONSC 2629,  OJ No 2074 (QL), and R v Ahmed, 2012 ONSC 4893,  OJ No 6643, in addition to the cases herein assessed.
(108) 2014 SCC 46,  2 SCR 390.
(109) Ibid at para 11.
(110) Ibid at para 12, citing McNeil, supra note 71.
(112) AI Report, supra note 1 at 18.
(113) See Kent Roach & Craig Forcese, "Legislating in Fearful and Politicized Times: The Limits of Bill C-51's Disruption Powers in Making Us Safer" in Edward M lacobucci & Stephen J Toope, eds, After the Paris Attacks: Responses in Canada. Europe, and Around the Globe (Toronto: University of Toronto Press, 2015) at 145-146, where they describe disruption tools as "kinetic powers" including, but not limited to, dissuading individuals from leaving Canada and contacting family members of terrorist suspects ["Legislating"].
(114) CSIS Act, supra note 84.
(115) See Bell Express Vu Limited Partnership v Rex, 2002 SCC 42 at para 26,  2 SCR 559, for affirmation of this principle of statutory interpretation.
(116) House of Commons Debates, 41st Pari, 2nd Sess, No 174 (18 February 2015) at 11362 (Hon Steven Blaney) (emphasis added).
(117) CSIS Act, supra note 84, s 12.1. Kent Roach and Craig Forcese believe that these new powers may include extraterritorial rendition and detaining people: Forcese & Roach, "Righting Security", supra note 13 at 15-16.
(118) CSIS Act, supra note 84, s 12.1(3). Exceptions codified in section 12.2 preclude measures that would "(a) cause, intentionally or by criminal negligence, death or bodily harm to an individual; (b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice; or (c) violate the sexual integrity of an individual".
(119) Ibid, s 21.1(3).
(120) For a supporting argument, see Roach & Forcese, "Legislating", supra note 113 at 146, 150-151, on the "kinetic powers" that broaden the mandate of CSIS through Bill C-51.
(121) Forcese & Roach, "Righting Security", supra note 13 at 13.
(122) Ibid at 14.
(123) Ibid at 15.
(125) McNeil, supra note 71 at para 13.
(126) AI Report, supra note 1 at 342.
(127) CEA, supra note 4, s 38. For a comprehensive overview on codified crown privileges from Bill C-36, now the Anti- terrorism Act, SC 2001, c 41, see Rosenthal, supra note 57, passim.
(128) Canada (AG) v Ribic, 2005 FCA 246 at para 49,  1 FCR 33.
(129) Roach, supra note 3 at 351.
(130) 2011 SCC 6 at paras 1, 8,  1 SCR 110 [Ahmad].
(131) Ibid at paras 1, 5. See Constitution Act. 1867 (UK), 30 & 31 Vict, c 3, s 96, reprinted in RSC 1985, Appendix II, No 5: "The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick."
(132) Ahmad, supra note 130 at para 30.
(133) CEA, supra note 4, s 38.14.
(134) Hamish Stewart, "Public Interest Immunity after Bill C-36" (2003) 47:3 CLQ 249 at 258.
(135) See Canada, Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182, Air India Flight 182: A Canadian Tragedy: The Overview, vol 1 (Ottawa: Public Works and Government Services Canada, 2010) at 33, where the commission recommends that matters of privilege be heard by a single judge. See also Ahmad, supra note 130 at paras 71-75.
(136) Roach, supra note 3 at 359.
(137) For specific areas in which the Federal Court has originating and exclusive jurisdiction, see the Federal Courts Act, RSC 1985, c F-7, ss 17-26. For the powers involving the jurisdiction of the Federal Court of Appeal, see ss 27-28.
(138) Mission Institution v Khela, 2014 SCC 24 at para 45,  1 SCR 502.
(139) Ibid at paras 46-47.
(140) Canada (AG) v Nuttall, 2016 FC 850 at paras 78-79,  FCJ No 809.
(141) R v La, supra note 83 at paras 23, 42, 44.
(142) Ahmad, supra note 130 at para 6.
(143) Roach, supra note 3 at 316.
(144) Canadian Security Intelligence Service, CSIS-RCMP Framework for Cooperation: One Vision 2.0, (Ottawa: 2015) at 10, online: The Globe and Mail <http://www.theglobeandmail.com/news/national/article31788061.ece/BINARY/na-security-web-document.pdt>.
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|Publication:||University of Toronto Faculty of Law Review|
|Date:||Jan 1, 2017|
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