R. v. Alizadeh, 2013 ONSC 7540
Court File No.: 10-30345 Date: 2014-09-18 Ontario Superior Court of Justice
Between:
Her Majesty the Queen Respondent
– and –
Hiva Alizadeh Applicant
– and –
Misbahuddin Ahmed Applicant
Counsel: Martha Devlin, Q.C. and Jason Wakely, for the Crown Matthew C. Webber and Leonardo Russomanno, for the Applicant Hiva Alizadeh Mark Ertel and Ian Carter, for the Applicant Misbahuddin Ahmed
Heard: November 18, 20, 21, 25, 2013
Reasons for Decision on the Motion to Reconsider Production of CSIS Records and for a Garofoli Voir Dire
C. McKinnon J.
Background
[1] On August 19 and 20, 2013, the applicant, Mr. Hiva Alizadeh, brought an O’Connor application (“Production Application”) to compel the production of third party records. The records sought were in the possession of the Canadian Security and Intelligence Service (CSIS). Specifically, the applicant sought production of the source information relied upon by an unidentified CSIS affiant that formed the basis of two warrants granted by Noel J. of the Federal Court of Canada pursuant to ss. 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (“the CSIS warrants”).
[2] The information obtained as a result of the CSIS warrants subsequently formed the basis of an RCMP affidavit that was used to obtain warrants from the Ontario Superior Court pursuant to Part VI of the Criminal Code, R.S.C. 1985, c. C-46. The Crown acknowledges that the lawfulness of the RCMP warrants is premised on the lawfulness of the CSIS warrants and as a result, the applicant has standing to challenge the constitutionality of the issuance of the CSIS warrants.
[3] Despite the RCMP’s reliance on material derived from the CSIS warrants, as I found in my previous decision on the Production Application dated September 6, 2013, CSIS is a third party to these proceedings and production of records in the possession of CSIS is governed by the regime laid out by the Supreme Court in R. v. O’Connor, 1995 51 (SCC), [1995] 3 S.C.R. 411.
[4] On the Production Application, the applicant did not point to any basis upon which I could find that there was a reasonable possibility that the CSIS source documents would be of assistance to the applicant on a Garofoli application or at the trial proper. As a result, the applicant failed to meet the “likely relevance” threshold set out in O’Connor and for the reasons set out in my September 6, 2013 judgment, I denied the application for disclosure of the CSIS source documents (see R. v. Alizadeh, 2013 ONSC 5417).
[5] This is an application to reconsider my decision denying access to the CSIS records and to cross-examine the RCMP and CSIS affiants as part of a challenge to the lawfulness of the issuance of the RCMP and CSIS warrants. Due to the RCMP’s almost complete reliance on information derived from the CSIS warrants, the applicant has only made submissions with regard to the CSIS warrants. The co-accused, Mr. Ahmed, joins in this application and adopts the submissions advanced by counsel for Mr. Alizadeh.
[6] Prior to the present hearing, on a separate application before the Federal Court, the applicant applied for an order seeking the removal of redactions on disclosed material that had been subject to privilege claims under s. 38 of the Canada Evidence Act, R.S.C., 1985, c. C-5. Barnes J. of the Federal Court ordered that some redactions be removed.
Existence of an apparent contradiction
[7] During the course of the applicant’s argument it became clear that information made available as a result of the proceedings in the Federal Court revealed the existence of material known to CSIS that seemingly contradicted a statement made in the CSIS affidavit filed in support of the warrants before Noel J.
[8] By way of background, the CSIS investigation centered on Mr. Awso Peshdary and his friend Mr. Alizadeh, the applicant in these proceedings. The charges against the co-accused Mr. Ahmed arose as a result of intercepted communications obtained as a result of the RCMP investigation. In the affidavit underlying the CSIS warrants, almost the entirety of the information refers to human source information obtained by CSIS through “source 2”. Source 2 was a confidant of Mr. Peshdary. In essence, source 2 relayed to CSIS conversations that took place between Mr. Peshdary and Mr. Alizadeh. The incriminating statements implicating Mr. Alizadeh emanate from conversations Mr. Peshdary recounted to source 2.
[9] 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.
[10] 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…
[11] It should be noted that this piece of information was in fact disclosed by the RCMP in an affidavit dated February 24, 2010, being one of a series of affidavits filed in support of continuing the Part VI authorizations issued February 3, 2010 by the Ontario Superior Court, together with other relief.
[12] From this newly available information, it appears on its face that in May 2009 CSIS knew that Mr. Peshdary was no longer searching for a gun, yet in October 2009 the CSIS affiant stated in the information before Noel J. that Mr. Peshdary was actively looking for a gun.
[13] I am satisfied that this seeming contradiction requires reconsideration of my September 6, 2013 decision regarding the Production Application as discussed below.
Preliminary decision on leave to cross-examine with regard to the apparent contradiction
[14] This application began as an application for leave to cross-examine the RCMP and CSIS affiants. In R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 at para. 3 the Supreme Court explained the applicable threshold test to cross-examine an affiant: “[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.”
[15] In R. v. Iman (August 13, 2012), Ottawa, 11-A8849 (Ont. C.J.) (unreported) Paciocco J. conducted a thorough review and analysis of the jurisprudence relating to when leave to cross-examine will be granted. In his reasons, Paciocco J. explained in practical detail the way in which the threshold test of “reasonable likelihood” outlined in R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at p. 349 can be met. At para. 14 of Iman, Paciocco J. sets out the test for leave to cross-examine as follows:
a) Does the proposed cross-examination relate to a material precondition to an authorization being granted, namely that:
There must be reasonable and probable grounds to believe that an offence has been committed (or that consent has been obtained) [^1];
There must be reasonable and probable grounds to believe that evidence will be discovered as a result of the authorized interception; and
The use of an authorization to intercept must be, in the circumstances of the case, an “investigative necessity” and
Each of the 3 conditions must be established by sworn [or affirmed] evidence.
Or, alternatively, does the proposed cross-examination relate to significant police misconduct in securing the search order? And if so,
b) Has a threshold factual basis been shown raising a reasonable likelihood that cross-examination 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? This can include for example (but is not confined to),
A foundation (resting in either internal or external contradictory information) showing that material factual claims made by the affiant may not be accurate;
A foundation (resting in either internal or external contradictory information) showing that material factual claims that are made by someone other than the affiant but which are relied upon by the affiant in support of the search may be inaccurate, coupled with a basis for concluding that the affiant knew or should have known that those facts may be inaccurate;
A factual foundation (resting in external information) showing that the affiant may have failed to disclose information known to the affiant that should have been disclosed pursuant to the obligation of full, frank and fair disclosure; or
Conclusory statements of material fact baldly asserted in the “Information to Obtain” affidavit in circumstances where it would have reasonably been expected that supporting information would have been provided.
[16] In my view, this test accurately and conveniently reflects the Supreme Court’s holding in Pires (at para. 41) that proof that the informant was lying is of little, if any, consequence, if the unreliability of the information cannot be linked to what the affiant knew or ought to have known. It is the credibility and reliability of the affiant, not the informant, that is the focus of the analysis.
[17] Supplementing the test outlined above, Paciocco J. specified that “[w]here there is a foundation showing that statements by the affiant may not be accurate, cross-examination will be relevant” (emphasis added; at para. 9) and “[i]f there is a threshold establishing a reasonable likelihood that the affiant failed to include information known to the affiant that is inconsistent with the affiant’s stated belief, cross-examination is called for” (emphasis added; at para. 10).
[18] At this moment in time, subject to what information might be revealed as a result of ordering production of materials as described hereafter, I would find that the contradiction mentioned above establishes a foundation for showing that a material factual claim made by the affiant may not be accurate, as well as a factual foundation showing that the affiant may have failed to disclose information known to the affiant that should have been disclosed pursuant to the obligation of full, frank, and fair disclosure. As a result, given the information available at this point in time, there is a reasonable likelihood that cross-examination on this issue will produce probative evidence tending to discredit the first statutory precondition for a CSIS authorization, namely the requirement that there be reasonable and probable grounds to believe that there is a threat to national security.
[19] Crown counsel urged me to consider the overall context of the CSIS warrants. Counsel highlighted the fact that the purpose of the CSIS warrants was to permit investigation into matters relating to national security and that the reference to Mr. Peshdary seeking a gun is peripheral to the more broad national security concerns outlined by the affiant. Counsel further submitted that the gun was not the sole basis upon which the warrant was granted and asserted that the rest of the affidavit is not undermined by this error. With respect, at this particular stage of the application and again, subject to what the materials that shall be ordered produced may reveal, these considerations are not relevant and would result in an incorrect application of the law as articulated by the Supreme Court in Pires.
[20] In Pires, the Supreme Court specifically explained that the threshold issue of whether leave to cross-examine should be granted is separate and distinct from the ultimate question of whether the authorization is valid. At para. 69 the court explained:
The threshold test for determining whether cross-examination should be allowed is separate and distinct from the ultimate question of whether the authorization is valid. Hence, in determining whether the threshold test has been met, the trial judge cannot decide the question simply on the basis that other parts of the affidavit would support the authorization. The focus, rather, must be on the likely effect of the proposed cross-examination and on whether there is a reasonable likelihood that it will undermine the basis of the authorization. If the test is met, it is only at the conclusion of the voir dire that the trial judge will determine whether, on the basis of the amplified record, there still remains a basis for the authorization. [Emphasis added.]
[21] The threshold test may be narrow but it is not onerous (Pires at paras. 40-44). The law does not require that leave can only be granted if the accused shows that there is a reasonable likelihood that cross-examination will lead to a successful challenge to the authorization (Pires, at para. 40).
[22] The purpose of cross-examination is to assist the court in determining the ultimate issue of the constitutional validity of the search authorization. In this case, though cross-examination in relation to the inconsistency may not prove to be determinative of the validity of the CSIS warrants, it might nonetheless be relevant to whether the CSIS affiant accurately and fairly disclosed what he or she knew to the issuing justice. At this point in time, I am prone to find that the applicant has met the test for leave to cross-examine the CSIS affiant of the October 15, 2009 information that was placed before Noel J., subject to what information may be revealed as a result of my ruling with respect to the production of CSIS source material, as detailed later in these reasons.
Decision on leave to cross-examine with regard to an affidavit filed by Mr. Alizadeh
[23] Mr. Alizadeh has filed an affidavit that relates to information provided by him to Mr. Peshdary as recounted by Mr. Peshdary to source 2 including the fact that he met and spoke with Mr. Peshdary over key time frames described in the CSIS affidavit. In essence, Mr. Alizadeh simply denies making all incriminating statements attributed to him by his friend Mr. Peshdary.
[24] It is important to emphasise that my initial view that the threshold to cross-examine has been met arises from counsel’s identification of an apparent contradiction in the CSIS affidavit, and not from the affidavit filed by Mr. Alizadeh in support of this application. As noted above, the apparent contradiction may be relevant to the issue of whether the affiant made full, frank, and fair disclosure or whether the affiant made claims that he or she knew or ought to have known were inaccurate. In contrast, Mr. Alizadeh’s affidavit provides no basis upon which the statutory preconditions for the CSIS authorizations could be challenged.
An analogous situation to Garofoli?
[25] Counsel for the applicant Mr. Alizadeh acknowledged that what is relevant on the Garofoli hearing is the state of mind of the affiant. Nonetheless, it was counsel’s position that this court’s prior ruling on the Production Application invited his client to file an affidavit contesting the truthfulness of statements attributed to him in the CSIS affidavit. Counsel submitted that in accordance with this “invitation” his client filed an affidavit in the same manner as was done in Garofoli, and by doing so created a material challenge to the accuracy of the CSIS affidavit. This material challenge, counsel submitted, necessarily meets the threshold for leave to cross-examine.
[26] In support of this argument, counsel directed me to the facts of Garofoli as outlined by the Ontario Court of Appeal ((1988) 1988 3270 (ON CA), 27 O.A.C. 1). Counsel submits that Mr. Alizadeh’s assertion that he did not make the incriminating statements attributed to him in the CSIS affidavit is equivalent to Mr. Garofoli’s assertion that he was not in Hamilton at the time the affiant stated he was.
[27] I acknowledge that the Court of Appeal’s decision sheds light on the fact that the affidavit filed by Mr. Garofoli did not advance concrete proof that the informant was lying. I further acknowledge that the Supreme Court explicitly rejected the more stringent test for leave to cross-examine applied by the Court of Appeal in Garofoli, namely that the affiant had made a false statement knowingly and intentionally, or with reckless disregard for the truth. I also acknowledge that Garofoli does not stand for the proposition that an applicant must establish “proof of impossibility” that the actions or statements attributed to an applicant in an affidavit must be demonstrated before leave to cross-examine an affiant will be permitted. That said, it remains my position that the facts in Garofoli are significantly different from those in the case at bar and the applicant’s position on this issue is untenable.
[28] In Pires at para. 42 the court characterized Mr. Garofoli’s affidavit as one that amounted to more than a mere allegation that the source lied, but as one that supported the proposition that the affiant had knowledge of the source’s alleged error. At para. 42 the court explained:
The fact situation in Garofoli itself provides a good example of a situation where the proposed cross-examination was directed not only at the lack of credibility of the informant but at the affiant's likely awareness of that fact. The informant alleged that he had been approached by Garofoli and another individual in Hamilton with an offer to supply him with two kilograms of cocaine. In his affidavit, Garofoli stated that he lived in Florida at the relevant time. He further stated that the officer in charge of the case was well aware that he was living in Florida and that he only travelled back to Hamilton in connection with his court appearances. Furthermore, information from the informant person was critical to establishing the requisite reasonable grounds. Sopinka J., for the majority, found that the appellant had shown a basis for the cross-examination (p. 1466):
In my opinion, the appellant has shown a basis for the cross-examination here. In view of the degree of reliance by the police on the informant in this case, if the informant is discredited then the factual basis for the authorization is undermined. If it is shown that the informant lied, then it could raise the inference that the police knew or ought to have known that he lied. If the police were not warranted in their belief that the information was true, then the basis for belief that a crime was to be committed disappears. Accordingly, the appellant should have been permitted to cross-examine. Cross-examination having been denied, there must be a new trial.
[29] As outlined by the Court of Appeal, in his affidavit Mr. Garofoli stated that allegations contained in the officer’s affidavit were totally false and that he was not in Hamilton during the relevant time period and did not meet with the named individual during the visits he did take to Hamilton on other occasions. This is what counsel described as unsubstantiated assertions akin to Mr. Alizadeh’s assertion. However, importantly, Mr. Garofoli’s affidavit also stated that:
the officer in charge of the fraud and conspiracy case was well aware that he was living in Florida and travelled to Hamilton only in connection with his court appearances, and that if [the affiant] Officer Campbell had made any inquiries he would readily have been aware that [Mr. Garofoli] was living in Florida during December, 1982” (Garofoli, Ont. C.A. at p. 130).
[30] The Supreme Court’s decision makes it clear that Mr. Garofoli was granted leave because he raised some reasonable basis to conclude that the cross-examination of the affiant could elicit evidence challenging the affiant’s belief that the information was true (at para. 90).
[31] It cannot be the law that a bald allegation that an informant is lying, even coupled with a bald allegation that the investigating agency knew the informant was lying, can provide the basis upon which an affiant may be subjected to cross-examination. To do so would render the filing of such an affidavit the norm and the granting of leave a mere formality in every case. Moreover, it would result in a meaningless exercise of cross-examination in which lies allegedly told by informants would be impossible to resolve through cross-examination of the affiant. In the vast majority of cases, information is gleaned from confidential informants, whose identity cannot be revealed, unless innocence is at stake (Garofoli, S.C.C. at para. 87). Informants cannot be called on a Garofoli voir dire so that they may be cross-examined to test their credibility. Thus the law requires that there be more than a mere “tip” from an informer in order to satisfy the granting of a warrant or authorization. The informant should be “tried and true” so that the authorizing judge can have faith in the reliability of the information being divulged by the confidential source (R v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140; R. v. Greffe, 1990 143 (SCC), [1990] 1 S.C.R. 755).
[32] It is for these reasons that an allegation that an informant is lying must be such that a nexus is created that puts what the affiant knew or ought to have known in issue. From my reading of Garofoli, this nexus can be found in either (or both)
i) a reasonable assertion that the investigative agency had contradictory information that the affiant knew of or ought to have known of; and/or
ii) the substantive nature of the challenge itself is such that it can reasonably be inferred that the affiant knew or ought to have known that the informant was lying or was otherwise unreliable.
[33] It is my opinion that the three affidavits filed in Garofoli independently met both of the threshold requirements outlined above.
[34] First, the assertion that “the officer in charge of the fraud and conspiracy case was well aware that he was living in Florida and travelled to Hamilton only in connection with his court appearances” (Garofoli, Ont. C.A. at p. 130) is much more than a bald allegation. Such an allegation implies that a specific officer who was a member of the investigating body was in contact with Mr. Garofoli and thus had direct knowledge of Mr. Garofoli’s whereabouts and the reasons for and timing of his travels to Hamilton. Such a specific allegation is independently capable of raising the inference that the affiant ought to have known this information.
[35] Second, Mr. Garofoli’s assertion that he was not in Hamilton during the relevant time period and did not meet with the named individual during visits when he was in Hamilton on other occasions is also more than a bald allegation. Though Mr. Garofoli’s affidavit did not adduce proof of impossibility, the nature of his affidavit goes to such a fundamental aspect of the allegation against him (that he could not physically have been in the location in question at the time alleged) that it reasonably raises the possibility that the affiant knew or ought to have known that the informant was lying or was otherwise unreliable.
[36] Where an accused files an affidavit in support of an application for a Garofoli voir dire, the imposition of a threshold requirement with respect to the nature of the affiant’s allegations is what assures that the proposed cross-examination falls within the narrow confines of the Garofoli review. This initial threshold does not conflate the test for the granting of leave to cross-examine with the second step of determining the ultimate lawfulness of the impugned authorization. As explained in Pires at para. 40:
[T]he Garofoli leave requirement is simply a means of weeding out unnecessary proceedings on the basis that they are unlikely to assist in the determination of the relevant issues. The reason that the test will generally leave just a narrow window for cross-examination is not because the test is onerous - it is because there is just a narrow basis upon which an authorization can be set aside. Hence, in determining whether cross-examination should be permitted, counsel and the reviewing judge must remain strictly focussed on the question to be determined on a Garofoli review - whether there is a basis upon which the authorizing judge could grant the order. If the proposed cross-examination is not likely to assist in the determination of this question, it should not be permitted. However, if the proposed cross-examination falls within the narrow confines of this review, it is not necessary for the defence to go further and demonstrate that cross-examination will be successful in discrediting one or more of the statutory preconditions for the authorization. Such a strict standard was rejected in Garofoli. A reasonable likelihood that it will assist the court to determine a material issue is all that must be shown. [Emphasis added.]
[37] Thus, even if an affiant challenges the truthfulness of an informant on an issue that may appear to be peripheral and unlikely to be determinative of the Garofoli hearing, if there is some reasonable basis upon which it can be inferred that the affiant knew or ought to have known about the untruth of the statement then cross-examination on the issue should be permitted. Nonetheless the issue raised must be material, namely an issue of some substance, and not some trivial matter that could not seriously challenge the overall candour and accuracy of the affiant. The law does not concern itself with trifles.
[38] I acknowledge that due to the third party status of CSIS in these proceedings and my ruling on the Production Application, Mr. Alizadeh did not have the benefit of the material relied on by the affiant as the accused generally has available to him or her in a more traditional Garofoli challenge. Mr. Alizadeh was thus left in a difficult position to meet the Garofoli threshold for leave to cross-examine in any other way than by filing an affidavit as Mr. Garofoli did.
[39] However, although Mr. Alizadeh’s challenge does go to the core of the allegations against him, in this case, Mr. Alizadeh was three parties removed from the CSIS affiant. Thus his bald allegation that his friend Mr. Peshdary lied to source 2 who in turn provided this information to the CSIS affiant does not raise the inference that the affiant knew or ought to have known that the information he or she received from source 2 was false. Nor would it have been sufficient for Mr. Alizadeh to simply include in his affidavit the bald allegation that CSIS knew Mr. Peshdary was lying, absent a reasonable basis to believe that this fact could be true.
Analysis of Mr. Alizadeh’s “unique position”
[40] When I observed in my reasons for decision on the Production Application that Mr. Alizadeh occupied a unique position to mount a challenge to the candour or accuracy of the affiant who affirmed the CSIS warrant, I meant that because of the factors listed below, that are unique to this case, Mr. Alizadeh could have canvassed with Mr. Peshdary and source 2 whether the alleged statements had been correctly reported to CSIS. The factors relevant in this case are:
Mr. Alizadeh was “close friends” with Mr. Peshdary.
Almost the entirety of the CSIS affidavit as it relates to Mr. Alizadeh outlines conversations he allegedly had with Mr. Peshdary that were then reported by Mr. Peshdary to source 2.
On the face of the ITO, it is apparent that Mr. Peshdary was a confidant of source 2 and must have trusted him implicitly in order to impart such incriminating and damaging statements.
The identity of source 2 had been made available to the applicant.
[41] As such, when I speak of this applicant being in a unique position to mount a challenge on the affiant’s candour and accuracy, I meant that it would be up to Mr. Alizadeh and Mr. Peshdary to explain in some manner why source 2 cannot be believed and that this fact should have been known to the CSIS affiant (see para. 48 of my decision dated September 6, 2013).
[42] Instead, Mr. Alizadeh filed an affidavit which in essence deposes that his close friend Mr. Pesdary is a liar. In effect, he has raised a credibility contest with his own friend which is incapable of being resolved through cross-examination of the affiant. To permit an accused person the right to cross-examine an affiant based on the bald allegation that a source is lying would be a complete waste of the court’s time. It is for this reason that the test in Garofoli is whether the police knew or ought to have known that the informant was lying (at para. 90; Pires, at paras. 41-42).
Reconsideration of the Production Application
[43] In light of the views I expressed during oral argument with respect to the application for leave to cross-examine, Mr. Alizadeh formally renewed his Production Application.
[44] The production of third party records is governed by the regime set out by the Supreme Court in O’Connor and R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66. As I noted in my September 6, 2013 decision on the Production Application, the jurisprudence relating to the “likely relevance” test in the context of leave to cross-examine is equally applicable in the context of a third party production request.
[45] In light of the potential contradiction identified by counsel, at this stage, for the purposes of the Production Application, I find that the applicant has shown that the source documents relied upon by the CSIS affiant are likely relevant to the Garofoli voir dire and whether the CSIS affiant made full, frank, and fair disclosure.
[46] Thus, unlike the applicant’s previous Production Application in which counsel did not point to anything upon which I could have found that there was a reasonable possibility that the CSIS source documents would be of assistance to the applicant on a Garofoli application, the applicant has now successfully raised a threshold factual basis that this material may produce probative evidence tending to determine a material issue in the affidavit to obtain the warrant.
[47] Crown counsel argued that the applicant has only established likely relevance in relation to the source material relating to the gun and thus should only be entitled to see the source information relating to that one issue. Counsel submits that it would be mere speculation to say that the existence of one discrepancy means there might be others and thus the applicant’s access to other source documents should be restricted.
[48] This position is unduly restrictive and fails to appreciate the grounds upon which I found likely relevance to have been established with respect to production. Even accepting the Crown’s argument that the gun is a peripheral matter,[^2] at this point the existence of an apparent contradiction in the CSIS affidavit raises the inference that the CSIS affiant made claims that he or she knew to be incorrect or failed to comply with the obligations of full, frank, and fair disclosure. It is the fact that this inference has been raised, and that the seeming contradiction is material in nature, that makes all of the source documents relied upon by the affiant likely relevant on a potential Garofoli hearing.
The Order
[49] For the foregoing reasons I find that the source documents relied on by the CSIS affiant are likely relevant to the applicant’s Garofoli application and I hereby order that the source documents be made available to me for review as to their materiality and relevancy to a Garofoli voir dire.
[50] Counsel have agreed that at this stage of the proceedings, the court will proceed by reviewing the CSIS documents as prescribed by the second stage of the O’Connor analysis. Upon completion of this process, the CSIS documents I deem relevant, after balancing the privacy interests at stake with the applicant’s right to make full answer and defence, will be reviewed in open court with Crown counsel. This hearing shall be conducted in the presence of counsel for the defence and their clients. After hearing submissions from the Crown with respect to the relevance and materiality of the documents, I shall determine what information contained in the documents shall be disclosed to the defence.
[51] Counsel for the defence will then be given an opportunity to review the documents and bring an application for leave to cross-examine on any new issues that might have arisen from the production of documents. It is impossible to say whether the issue respecting the gun will be resolved by the documents. Thus, it is premature to decide whether cross-examination of the affiant of the CSIS warrant shall be permitted, now that production of the source documents has been ordered.
The Hon. Mr. Justice C. McKinnon
Originally released with publication ban: December 6, 2013
Released without publication ban: September 18, 2014
CITATION: R. v. Alizadeh, 2013 ONSC 7540
COURT FILE NO.: 10-30345
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 –
MISBAHUDDIN AHMED Applicant
REASONS FOR DECISION ON THE MOTION TO RECONSIDER PRODUCTION OF csis RECORDS AND FOR A gAROFOLI VOIR DIRE
C. McKinnon J.
Originally released with publication ban: December 6, 2013
Released without publication ban: September 18, 2014
[^1]: The first statutory pre-condition for authorization under the CSIS Act is different than that required in the Criminal Code. It is required that a CSIS ITO set out reasonable and probable grounds to believe that there is a threat to national security and that the search warrants sought are required in order for CSIS to perform its statutory duties in relation to national defence and national security: CSIS Act, s. 21(2), see also R. v. Atwal (1987), 1987 8975 (FCA), [1988] 1 F.C. 107 (C.A) and R. v. Ahmad, [2009] O.J. No. 6161 at para. 29.
[^2]: This is a position I do not agree with; I believe that an assertion by an affiant that a person of interest had the intention of committing violent acts in Canada and is actively seeking a gun in order to follow through with this plan would have categorized the individual as a potentially highly dangerous person, a factor that would have been salient in the mind of the authorizing judge.