ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 10-G30345
DATE: 2014/09/18
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
HIVA ALIZADEH
Applicant
– and –
CANADIAN SECURITY INTELLIGENCE SERVICE
Respondent
Martha M. Devlin, Q.C. and Jason Wakely, for the Federal Crown
Matthew C. Webber, and Michael Purcell for the Applicant
Tracey McCann, for the Respondent
HEARD: August 19 and 20, 2013
REASONS FOR DECISION ON MOTION
TO COMPEL PRODUCTION OF CSIS RECORDS
C. McKINNON J.
[1] At issue in this pre-trial motion is whether the Canadian Security Intelligence Service (CSIS) should produce to the applicant all of the material reviewed by the affiant in preparation of warrants obtained by CSIS from Noel J. of the Federal Court pursuant to sections 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act).
[2] The applicant, Mr. Hiva Alizadeh is charged, together with Mr. Misbahuddin Ahmed, with conspiracy to facilitate a terrorist activity, possessing or making explosive devices, and financing terrorism. Mr. Khurram Syam Sher was originally charged together with Mr. Alizadeh and Mr. Ahmed but is now before the court on a separate indictment following a successful application for severance (R. v. Sher, 2012 ONSC 1792 – to be reported following the trial of the applicant). Mr. Ahmed and Mr. Sher did not join in this application.
Facts
[3] CSIS is an independent intelligence agency with a statutory mandate of collecting and analyzing security intelligence and advising the Government of Canada about suspected threats to national security (CSIS Act, s. 12). CSIS has no policing or enforcement powers but does have the discretionary authority to disclose information to police agencies to be used in the investigation or prosecution of an alleged violation of Canadian law (CSIS Act, s. 19).
[4] CSIS strictly controls the intelligence it collects. When CSIS encounters information of a serious criminal nature and chooses to exercise its discretion to share such information with law enforcement agencies, it does so in a limited and highly controlled manner. CSIS has a formal memorandum of understanding with the RCMP with respect to the sharing of information. The sharing is effected by the use of “Disclosure Letters” and “Advisory Letters”. “Disclosure Letters” are intended to provide the RCMP with lead information which can be used to initiate or advance a criminal investigation. “Advisory Letters” are the formal means by which CSIS provides the RCMP with consent to use CSIS information in applications to the court for judicial authorization.
[5] In this case, CSIS provided the RCMP with intelligence information identifying the applicant and his suspected terrorist activities. The information sharing was initiated by a CSIS Disclosure Letter dated September 2009. Subsequent to the receipt of this letter, the Integrated National Security Enforcement Team of the Royal Canadian Mounted Police (RCMP) initiated its own independent investigation of the alleged criminal activities, code named “Project Samossa”. Between September 2009 and January 2010, at the RCMP’s request, a total of three Disclosure Letters and four Advisory Letters concerning the applicant were provided to the RCMP. With the exception of a CSIS operational report that the RCMP was permitted to read but not retain, no other CSIS intelligence information was shared with, or is in the possession or control of, the Crown.
[6] The charges against the applicant arise from the RCMP Project Samossa investigation. In the course of this investigation, the RCMP obtained initial tracking warrants and dial-number-recorder warrants under ss. 492.1 and 492.2, respectively, of the Criminal Code, R.S.C. 1985, c. C-46 (the Code) from Fraser J. of the Ontario Court of Justice. Information obtained from those warrants confirmed some of the information obtained by CSIS and shared with the RCMP.
[7] Subsequently, the RCMP sought an authorization to obtain a warrant to intercept private communications under Part VI of the Code as well as general warrants under s. 487.01 of the Code. The investigation resulted in the police obtaining a substantial body of evidence forming the case against the applicant. The Crown’s evidentiary case against the applicant is based solely on information obtained as a result of the RCMP warrants.
[8] The Part IV warrants were granted to the RCMP by McLean J. of the Ontario Superior Court on February 3, 2010. They were granted on the basis of an affidavit sworn by Cpl. Greg Horton of the RCMP (“the Horton affidavit”). The bulk of the Horton affidavit is based on information received from CSIS via “Disclosure Letters” and “Advisory Letters”. These letters were appended to the affidavit and have been disclosed, subject to legal redactions, to the applicant in accordance with the Crown’s disclosure obligations mandated by R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326.
[9] In the course of its own separate investigation, in October 2009, CSIS obtained two warrants pursuant to ss. 12 and 21 the CSIS Act. These warrants were granted by Noel J. of the Federal Court of Canada (“the CSIS warrants”). The warrants were granted on the basis of an affidavit sworn by a CSIS intelligence officer (“the CSIS affidavit”). The fruits of these warrants formed the basis of some of the information shared by CSIS in the Disclosure and Advisory Letters to the RCMP.
[10] On the basis of an earlier application by Mr. Alizadeh and his co-accused, Mr. Ahmed, the Crown and CSIS voluntarily agreed to provide redacted copies of the Federal Court warrants and the underlying CSIS affidavit. The vast majority of the information contained in the CSIS affidavit refers to human source information, in particular, from “source #2”. Source 2 described the relationship between the applicant and the applicant’s friend Awso Peshdary and attributed numerous statements made by the applicant to Mr. Peshdary. In essence, the information implicating the applicant emanates from conversations Mr. Peshdary had with source #2. Pursuant to correspondence between the Crown, CSIS, and the applicant, the identity of source #2 has been disclosed to the applicant.
[11] The applicant now seeks disclosure of the underlying source material relied upon by the CSIS affiant. He does so on the basis that the RCMP warrants were wholly dependent on information provided to the RCMP by CSIS. The applicant asserts that this information is crucial to his ability to make full answer and defence, particularly as part of his anticipated Garofoli challenge to the legality of the RCMP warrants (R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421).
Issues
[12] Two issues were identified by counsel.
Do the records sought in the application constitute first party disclosure material governed by Stinchcombe or third party material governed by R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411?
If the disclosure request is governed by the third party O’Connor regime, are the records sought “likely relevant” to the criminal proceedings against the accused?
[13] There was some initial confusion regarding the applicant’s position regarding the first issue. Counsel for the applicant advanced the argument that when two parties, such as CSIS and the RCMP, work intimately together in an investigative capacity by sharing information, the first-party, third-party distinction becomes blurred. This argument implied that, by virtue of the important role CSIS information played in initiating and advancing the RCMP investigation, CSIS should be subject to the same Stinchombe disclosure obligations as the Crown.
[14] Counsel for CSIS made extensive submissions regarding the independent role and mandate of the Service. I accept these submissions and adopt the findings of Dawson J. in R. v. Ahmad, 2009 84776 (ON SC), [2009] O.J. No. 6153 (Ruling No. 14). In that case the court concluded that where CSIS and RCMP investigations are separate, as they were in this case, CSIS is a third party for disclosure purposes.
[15] Ultimately, all parties conceded that the records sought in this application are third party material governed by the regime set out by the Supreme Court of Canada in O’Connor. The only issue that remains to be determined is whether the applicant has successfully demonstrated that the CSIS source materials are likely relevant to an issue at trial.
Position of the Parties
[16] In oral submissions, counsel for CSIS adopted the submissions of the Crown regarding the “likely relevance” standard. It is the position of both of the respondents that the applicant has submitted no evidence that the CSIS source records are likely relevant to his ability to challenge either the CSIS warrants or the RCMP warrants, and that the applicant is simply on a fishing expedition.
[17] It is the applicant’s position that he is entitled to the information underlying the CSIS warrants due to the almost complete dependence of the subsequent RCMP warrants on information derived from them. The applicant asserts that, as a matter of constitutional principle, if he successfully challenges the legality of the CSIS warrants, this will lead to a finding that the resulting information was obtained in violation of s. 8 of the Charter. Such a violation would then provide a basis upon which the applicant could challenge the legality of the RCMP warrants.
[18] In support of this proposition, the applicant referred the court to the decision of Dawson J. in in R. v. Ahmad, [2009] O.J. No. 6162 (Ruling No. 23) at paras. 85 and 86, in which he stated:
In the course of earlier pre-trial applications it became apparent that CSIS obtained some of the information it included in the Advisory Letters by intercepting private communications. As that information formed part of the information being used to obtain the Part VI authorizations, it raised the issue of whether the CSIS wiretaps were properly authorized. If they were not, the resulting information would have been obtained in violation of s. 8 of the Charter. If that were the case this court would be required to excise the unconstitutionally obtained material from the Part VI applications: R. v. Grant, 1993 68 (SCC), [1993] 3 S.C.R. 223; R. v. Plant, 1993 70 (SCC), [1993] 3 S.C.R. 281; R. v. Evans, 1996 248 (SCC), [1996] 1 S.C.R. 8.
In order to resolve this situation, counsel for the accused consented to my ex parte viewing of any relevant wiretap authorizations issued to CSIS by the Federal Court pursuant to s. 21 of the CSIS Act. At the same time the Director of CSIS authorized the release of those warrants to me pursuant to s. 19(2) of the CSIS Act. I have confirmed on an ex parte basis the existence of presumptively valid orders issued by the Federal Court authorizing CSIS to intercept private communications at the relevant times for the purpose of CSIS’s broader investigation. Those orders are classified as secret information. They have been marked as sealed exhibits and stored separately under my control pursuant to the protocol developed in this case for handling secret information.
[19] Counsel for the applicant specified that he was not seeking disclosure of the entire CSIS investigative file. The applicant seeks only the information reviewed by the CSIS affiant which, counsel asserted, is directly relevant to his ability to verify the grounds of the Federal Court warrants as he is constitutionally entitled to do.
[20] Applicant’s counsel further submitted that in other cases, where applications for production were denied (see for example: R. v. Ahmed et al., 2012 ONSC 4893 – a decision of MacDonnell J., not yet reported and R. v. Ali, 2013 ONSC 2629, [2013] O.J. No. 2074 – a decision of Trotter J.), the applicants had the benefit of the source notes forming the basis of the affidavit before the authorizing judge. Here, counsel contends that, in seeking to challenge the CSIS warrants, he is literally “empty-handed”.
[21] With regard to the legal threshold of “likely relevance” (as described below), it was the applicant’s position that the records sought are not only “likely relevant” to his Garofoli application, but that they are “obviously relevant”. Relevance, it was submitted, lies in the applicant’s ability to verify the propriety of the CSIS affidavit, which will, in turn, affect the challenge to the RCMP warrants.
[22] It was submitted by the respondents that, although the CSIS affidavit is redacted, virtually all of the information contained in the affidavit is within the knowledge of the applicant or is available to him through his friend Mr. Peshdary or by questioning source #2. It was asserted that given this information there is no one in a better position than the applicant to advance evidence that there is some reasonable possibility that the affidavit material is unreliable.
[23] The applicant’s counsel rejected the notion that the availability of this information could assist in challenging the legality of the warrants. Counsel asserted that it is not the truthfulness or accuracy of the content of the affidavit itself that is relevant, but rather the affiant’s state of mind, accuracy and candour that is relevant to a successful Garofoli challenge. A challenge to the latter, counsel asserted, is only available if the source material is disclosed.
The Legal Framework
[24] There are four lines of jurisprudence germane to this application:
- First party disclosure
[25] Pursuant to the Supreme Court of Canada’s ruling in Stinchcombe, the Crown is under an obligation to disclose any information in its possession that might reasonably be useful to an accused person in making full answer and defence. Such disclosure is required to allow the accused to exercise his/her right to make full answer and defence as required by s. 7 of the Charter.
[26] In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at paras. 25‑26, the Supreme Court clearly delineated the two types of disclosure to which the accused is entitled pursuant to Stinchcombe: i) all documents relating to the authorization and ii) all material in possession of the Crown that is potentially relevant to the case (ie. all investigative material).
[27] As aptly noted by MacDonnell J. in Ahmed, and what is key in this case, is that, in being entitled to “all documents relating to the authorization” the accused is only entitled to the material that was before the authorizing judge. This is the only information that is clearly relevant (Ahmed, para 30). “Once a disclosure request reaches beyond what was before the authorizing judge and the investigative file, any presumption of relevance is significantly attenuated” (Ahmed, at para. 30).
- Third party disclosure and the likely relevance test
[28] In O’Connor, the Supreme Court set out a two-step analysis governing the production of third party records. First, the applicant must demonstrate that the third party materials sought are “likely relevant” to the criminal proceeding. “Likely relevance” in the context of production imposes a higher threshold of relevance than that which exists in the disclosure context. The applicant must satisfy the court that “there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify” (para. 22). If likely relevance is established, the next stage of analysis requires the court, upon an analysis of the records, to consider whether production should be ordered, balancing on one hand the interests of privacy, and on the other the right to full answer and defence.
[29] In Ahmed, MacDonnell J. conducted a review of the relevant jurisprudence in determining the appropriate interpretation of “likely relevance” for the purposes of a Garofoli application. The court found that likely relevance is established if the defence can demonstrate some reasonable possibility that the third party materials would assist the defence in addressing the issues on the Garofoli application (paras. 37 and 40).
[30] In the context of an application to cross-examine the affiant on the material contained in the information to obtain a warrant (ITO), Paciocco J. in R. v. So (June 13, 2013), Ottawa 12‑F5771 (Ont. C.J) (unreported) clarified the circumstances in which leave should be granted. This standard is equally applicable in the context of a third party production request. The applicant is not required to show that there is a likelihood that the cross-examination/disclosure will result in a successful Garofoli application (para. 11). Rather, he 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 (para. 24).
[31] This standard does not put the applicant in a proverbial “Catch-22” situation. One must recall the facts of Garofoli. In that case, a wiretap search warrant was issued and the accused sought to cross-examine the affiant on an affidavit filed in support of the authorization. Relying on American jurisprudence, the Court of Appeal refused to allow the cross-examination unless the applicant could demonstrate that the affiant had intentionally made a false statement with reckless disregard for its truth (para. 82). The Supreme Court rejected this restrictive approach, which, in the court’s opinion, would have placed the applicant in a “Catch-22” situation. The court went on to outline the appropriate threshold that the applicant must meet in order to be granted leave to cross-examine. The court held that the accused must show some basis for the assertion that the cross-examination could discredit one of the preconditions for the warrant authorization (paras. 83 and 88). On the facts of that case, the court held that the applicant met this threshold. The applicant did so by filing an affidavit asserting that between 1977 and 1983 he lived in Florida and the affidavit that placed him in Hamilton Ontario in December 1982 was completely false.
- Presumptive regularity
[32] The reason for adopting the interpretation of likely relevance described above is explained by Charron J. in Pires. The interpretation is justified in light of the standard upon which a court will review a judicially authorized warrant. While Pires arose in the context of an application to cross-examine an affiant, the reasoning is equally applicable on an application for disclosure. At para. 30, the court stated:
However, the Garofoli review hearing is not intended to test the merits of any of the Crown's allegations in respect of the offence. The truth of the allegations asserted in the affidavit as they relate to the essential elements of the offence remain to be proved by the Crown on the trial proper. Rather, the review is simply an evidentiary hearing to determine the admissibility of relevant evidence about the offence obtained pursuant to a presumptively valid court order… The reviewing judge on a Garofoli hearing only inquires into whether there was any basis upon which the authorizing judge could be satisfied that the relevant statutory preconditions existed…
Hence, there is a relatively narrow basis for exclusion. Even if it is established that information contained within the affidavit is inaccurate, or that a material fact was not disclosed, this will not necessarily detract from the existence of the statutory pre-conditions. The likelihood that the proposed challenge will have an impact on the admissibility of the evidence will depend on the particular factual context. In the end analysis, the admissibility of the wiretap evidence will not be impacted under s. 8 if there remains a sufficient basis for issuance of the authorization.
[33] There is a presumption of facial validity of judicially authorized warrants as observed by the Ontario Court of Appeal in R. v. Chang, 2003 29135 (ON CA), [2003] O.J. No. 1076 (Ont. C.A.). The onus is on the applicant to establish that the statutory preconditions have not been met, specifically, that there was no basis for the authorization of the warrant (Pires, at para. 30, R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. at para. 131). Where a search warrant has been judicially authorized, it is considered to be presumptively valid by the reviewing justice (R. v. Brown, 2013 ONSC 2848, [2013] O.J. No. 2256).
- Third party disclosure and the obligations of the Crown
[34] The Supreme Court in R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 clarified that all state authorities are not one entity subject to the Stinchcombe disclosure principles. Only the investigating police authority and the Crown are subject to Stinchcombe obligations. However, the Crown, acting as a minister of justice, has a duty to inquire into potentially relevant evidence in the hands of third parties as well as a duty to facilitate the disclosure of such evidence.
[35] There is no question that the Crown in this case has fulfilled its McNeil obligations by facilitating the production of the CSIS warrants issued by Noel J., together with the underlying affidavit in support of the obtaining of the warrants. The information was produced pursuant to the Crown’s common law obligations and in no way constitutes a recognition that the CSIS materials are subject to first-party disclosure obligations.
Conclusion on the law
[36] In light of this jurisprudence, I conclude that:
a. An applicant seeking third party production for the purposes of a Garofoli hearing is entitled as of right only to the disclosure of the information that was before the authorizing judge.
b. The applicant must establish some basis for believing that there is a reasonable possibility that disclosure of additional information will be of assistance on the application.
c. On a Garofoli application, the question to be determined is whether there is some basis upon which the authorizing judge could have granted the order (Pires at para. 40).
d. In light of the Garafoli test and the presumption of regularity, what will be of assistance on the application under part (b) above, must amount to more than a possibility that there is an inconsistency or error in the materials underlying the information before the authorizing judge.
The Law Applied
[37] Notwithstanding the able argument advanced by Mr. Webber, it is my opinion that no sound basis has been advanced upon which I could find that there is a reasonable possibility that the CSIS source documents would be of assistance to the applicant in a Garofoli application or at the trial proper. What is lacking in this case is some evidentiary foundation, as existed in Garofoli, to establish likely relevance.
[38] Despite the fact that the applicant made it clear in oral argument what specific documents are being sought on the application, absent a ground of likely relevance, this application amounts to a pure fishing expedition. Regrettably for the applicant, he is fishing without a hook.
The RCMP warrants
[39] The applicant is only entitled to the information that was before the issuing judge. The applicant has been granted full disclosure of all the information that was before McLean J. in the issuance of the RCMP warrants. The only CSIS information that was reviewed by the affiant were the Advisory and Disclosure Letters. The applicant has received disclosure of those letters and is now seeking information beyond what was before the authorizing judge.
[40] Although the Horton affidavit placed heavy reliance on the CSIS Letters, it was evidently the opinion of McLean J. that the information before him met the statutory pre-conditions for authorization.
[41] The applicant, pursuant to the Crown’s McNeil obligations, has been granted access to the CSIS warrants and affidavit – more information than was before the authorizing judge. This additional information is even more compelling in leading me to the conclusion that the CSIS source records are not likely relevant to the validity of the RCMP warrants. As stated, the great bulk of the information to obtain the CSIS warrants emanated from source #2, who has been identified to the applicant.
[42] I acknowledge that pursuant to McNeil obligations, the applicants in Ahmad had the benefit of production of some underlying CSIS operational documents which the applicants relied upon in mounting their challenge to the RCMP warrants. However, there is little similarity between the position of the applicant in this case and that of the applicants in Ahmad. In Ahmad, Dawson J. was dealing with multiple accused, multiple sources and voluminous source material. As I have outlined above, the applicant in this case is in a unique position to mount an attack on the CSIS or RCMP affidavits because they are based almost exclusively upon information within the direct knowledge of the applicant, mainly conversations he had with Mr. Peshdary.
[43] Absent recognition by the Crown or CSIS that underlying operational documents are likely relevant as was the case in Ahmad, there lies a burden on the applicant to demonstrate that third party documents are likely relevant to a challenge of the grounds relied upon by McLean J. in the issuance of the RCMP warrants. No such argument was advanced in this case. To order production of the source documents would undermine the authority of this court which issued a presumptively valid warrant.
The CSIS warrants
[44] Production of the CSIS warrants is only relevant to the Crown’s McNeil obligations. The Crown is not relying on any of the information obtained by CSIS pursuant to these warrants in its case against the applicant.
[45] In regards to the Dawson J.’s comments in Ahmad (Ruling No. 23) cited above at para. 17, I accept the applicant’s argument that any illegally obtained CSIS information that was used in subsequent warrants would be required to be excised from the Part VI application.
[46] However, what counsel failed to acknowledge was that, in that case, the applicant did not have access to a copy of the CSIS warrants, as he does here. Dawson J. was able to satisfy himself, on an ex parte basis, of the existence of presumptively valid Federal Court warrants. Here, the applicant has even more information than was available to Dawson J. He has the affidavit sworn in support of the warrants.
[47] The applicant has failed to establish the likely relevance of the source documents to the validity of the Federal Court warrants. The only information that was before the Federal Court in the issuance of the CSIS warrants was the affidavit of the CSIS intelligence officer. Noel J. was satisfied that the statutory requirements were met for the issuance of the CSIS warrants on the basis of this affidavit. Noel J. is an experienced judge acknowledged as a specialist in cases involving terrorism. Recognizing this expertise, and the presumption of regularity, it is not the role of this court to engage in a collateral attack on the orders of another superior court (Chang, at para. 41).
[48] The fact remains that the only information that is “clearly relevant” to a potential Garofoli application is the information that was before the issuing justice. Here, that information has been disclosed to the applicant. Although somewhat redacted, virtually all of the information contained in the affidavit is within the knowledge of the applicant or is available to him through questioning Mr. Peshdary or source #2. Given the information at his disposal, the applicant himself would be in the best position to advance an argument that there is some reasonable possibility that the affidavit material was sufficiently unreliable to have justified the issuance of the warrants by Noel J.
[49] It is completely proper to require applicants to make reasonable allegations in light of information at their disposal that may lead to a finding that the third party information will be of assistance on a Garofoli application. As stated by MacDonnell J., “to hold that there is no such requirement would open the door to wide ranging, time consuming, and resource draining fishing expeditions” (Ahmed at para. 32).
[50] In a recent decision of this court, Clark J. applied similar reasoning (R. v. Arviko, 2013 ONSC 5327). In that case, the court denied an application for leave to cross-examine the affiant of an ITO by reasoning that the applicant must put forward some additional evidence that indicates the possibility of fraud, misleading disclosure or significant non-disclosure in the ITO. Clark J. explained that some information must be put forward that will assist the court in determining whether the information before the issuing justice was insufficient. The court made clear that while the test for relevance is not a stringent one, unless the applicant can provide some basis to suggest that there has in fact been fraud, misleading disclosure or non-disclosure in the case, the granting of leave would become a mere formality in every case.
[51] Counsel submitted that he sought the information to verify whether there were any inconsistencies or omissions in the CSIS affidavit and thus the first-hand knowledge of his client was not enough. Counsel himself admitted that he did not know what could be in the source notes, and that “the information could either help him or hurt him”.
[52] In Ali, where the applicant sought production of handlers notes underlying an ITO affidavit in order to uncover “yet unknown deficiencies”, the court dismissed the application. Trotter J. characterized the application as a “pure fishing expedition” (para. 9) and further explained that given that the application was made in furtherance of an application to challenge the ITO, different considerations apply beyond the simple assertion of relevance (para. 5).
[53] Counsel for the applicants pointed out that in Ali and Ahmed the applicant had disclosure of the source notes that formed the basis of the affidavit in the ITO. In those cases, the applicant was attempting to reach behind the source information by seeking disclosure of confidential handlers notes. Mr. Webber contrasted that situation to that of his client. He explained that, unlike the applicants in those cases, he is left completely empty-handed because he has none of the source notes underlying the CSIS affidavit and thus has no ability to determine the accuracy or candour of the affiant to challenge lawfulness of the warrants.
[54] The applicant in this case is not empty-handed. He is in the same position as the applicants in Ali and Ahmed. He is in possession of all information available for the Part VI authorization of McLean J. which constitutes the entirety of the Crown’s case, and is in possession of the ITO and warrants that were considered and issued by Noel J. which the Crown will not be relying upon at trial. Also, as I have explained, what is unique to this case is the applicant’s first-hand knowledge of the statements attributed to him in the CSIS affidavit which places him in a special position to mount a challenge to the candour or accuracy of the affiant.
Additional considerations
[55] I am in agreement with many of the principled arguments of the applicant regarding the significance of disclosure obligations. Clearly, essential constitutional principles must be upheld in the terrorism context. Investigative transparency, achieved through the Stinchcombe regime, is essential to an accused’s s. 7 right to make full answer and defence. However, the right to make full answer and defence, like any other Charter right, is not absolute. The burden placed on an applicant to show likely relevance in seeking disclosure of third party records strikes a fair and workable balance between the rights of the accused and the need to prevent time and resource consuming fishing expeditions. As explained by McLachlin J. (as she then was) in O’Connor at para. 194:
Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence…When other perspectives are considered however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interest of those who find themselves caught up in the justice system – all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.
[56] The analysis of likely relevance is by its very nature a contextual one (R. v. W.B., 2000 5751 (ON CA), [2000] O.J. No. 2184 (Ont. C.A.)). In W.B. the accused was convicted of sexual assault. On appeal, the accused challenged the refusal of the trial judge to order production of the therapeutic records of the complainants. In upholding the ultimate decision of the trial judge on this issue (on different reasons), the Court of Appeal examined the context in which the application was made. The court explained that on the particular facts, no evidence was advanced that the records sought could discredit the complainant in any particular way. The court held that the mere fact that the records would obviously relate to the complainants’ credibility in some way could not pass the likely relevance test. To set the “likely relevance bar” so low would eliminate its purpose.
[57] Similarly, a contextual analysis of the facts in this case compels the conclusion that the applicant is on a fishing expedition. The affidavit in support of the CSIS warrants is exceptionally narrow in compass, consisting primarily of the recounting of conversations between a friend of the applicant to a now identified undercover agent. To mount a challenge to this information would have been remarkably simple. A challenge has not been made. Given this context, the application is doomed to failure.
[58] I accept the acknowledgment of Dawson J. in Ahmad (Ruling No. 14) at para. 35 that the accused’s right to disclosure becomes more complicated when information collected by CSIS relating to a criminal offence forms the basis of a subsequent police investigation. There is potential for subversion of an accused’s Charter rights should CSIS become a de facto law enforcement agency. The present decision is not to be taken as closing the door on a potential order for CSIS production should the facts support it. The facts in this case do not support such an order.
Disposition
[59] For the foregoing reasons, I am in agreement with the respondents that Mr. Alizadeh has not demonstrated that the CSIS documents are likely relevant to the hearing of his anticipated Garofoli application. In the result, his application for disclosure is denied.
The Hon. Mr. Justice C. McKinnon
Originally released with publication ban: September 6, 2013
Released without publication ban: September 18, 2014
COURT FILE NO.: 10-G30345
DATE: 2014/09/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
HIVA ALIZADEH
Applicant
– and –
CANADIAN SECURITY INTELLIGENCE SERVICE
Respondent
REASONS FOR Decision
C. McKinnon J.
Originally released with publication ban: September 6, 2013
Released without publication ban: September 18, 2014