ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-30345
DATE: 20140313

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION AS SET OUT IN THE FINAL PARAGRAPH OF THIS DECISION

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

HIVA ALIZADEH
Applicant

– and –

MISBAHUDDIN AHMED
Applicant

Martha Devlin, Q.C., for the Crown

Matthew C. Webber and Leonardo Russomanno, for the Applicant
Mark Ertel, for the Applicant

HEARD: January 28-29, 2014 (Ottawa)

REASONS FOR DECISION wITH RESPECT TO AN APPLICATION TO CROSS- EXAMINE THE CSIS AFFIANT

C. MCKINNON J.

[1] Hiva Alizadeh and Misbahuddin Ahmed stand charged with terrorism-related offences under the Criminal Code, R.S.C. 1985, c. C-46.

[2] In earlier applications, Mr. Alizadeh was partially successful in seeking the production of third party records from the Canadian Security Intelligence Service (“CSIS”). The source records produced related to an Information to Obtain (“ITO”) warrants granted by the Federal Court under ss. 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-24 (“CSIS Act”).

[3] Subsequent to the receipt of the source documents underlying the ITO affidavit, Mr. Alizadeh brought the present application for leave to cross-examine the CSIS affiant in relation to four issues:

1. Contradictions in the source material in relation to Mr. Awso Peshdary’s desire to purchase a gun;

2. The structure and timing of Source 2’s remuneration paid by CSIS;

3. The status of Source 2 as an “agent” rather than a traditional source; and

4. The possibility of Source 2 meeting directly with Mr. Alizadeh, stated to relate to the issue of “investigative necessity”.

Counsel for Mr. Alizadeh also seeks to cross-examine the affiant with respect to his understanding of the duty to provide full, fair, and frank disclosure relating to each of these issues.

[4] On January 30, 2014, I informed the parties that cross-examination would be permitted only on the contradiction in the source material in relation to Mr. Awso Peshdary’s desire to purchase a gun, together with whether the affiant was aware of his duty to provide full, fair and frank disclosure in relation to the issue of the gun, with reasons to follow. These are those reasons.

Applicable legal principles

Threshold for leave

[5] There is no dispute with regard to the applicable legal principles on an application for leave to cross-examine. The test is clear: R. v. Garofoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421 at para. 88.

Leave should be granted when the trial judge is satisfied that cross-examination is necessary to enable the accused to make full answer and defence. A basis must be shown by the accused for the view that the cross-examination will elicit testimony tending to discredit the existence of one of the pre-conditions to the authorization, as for example the existence of reasonable and probable grounds.

[6] This test was affirmed by the Supreme Court in R. v. Pires; R. v. Lising, 2005 SCC 66, [2005] 3 S.C.R. 343 wherein the threshold was characterized as “not onerous” (at paras. 40-44). There is no requirement on a leave application for the accused to demonstrate that the proposed cross-examination will lead to a successful challenge to the authorization (at para. 40). 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 (at para. 69). Despite the low threshold, the Supreme Court has emphasized that the focus of the analysis at this stage must be narrow and focused on whether there is a reasonable likelihood that cross-examination will undermine the basis for authorization. If the proposed cross-examination does not fall within this narrow purpose, cross-examination should not be permitted (at para. 40).

[7] Most recently, our Court of Appeal in R. v. Sadikov, 2014 ONCA 72, confirmed this to be the appropriate legal analysis that must be undertaken on applications for leave to cross-examine an affiant.

The duty to provide full frank and fair disclosure

[8] There is no dispute that CSIS was under an obligation to provide full, frank, and fair disclosure in the ex parte proceedings before the Federal Court when seeking the ss. 12 and 21 warrants (R. v. Ahmad, 2009 84784, at para. 18, “Ruling No. 23”). However, the failure to comply with that duty is not in and of itself an independent ground upon which a warrant may be set aside on a Garofoli hearing. As clearly stated by the Court in Garofoli at para. 58, “the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a pre-requisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.” [Emphasis added.]

[9] Thus, in the context of an application for leave to cross-examine, it must be remembered that an affiant’s duty of full, fair, and frank disclosure is only relevant on the ultimate Garofoli hearing to the extent that the failure to comply with that duty may undermine one of the statutory pre-conditions for authorization.

[10] Where an applicant has established a factual foundation for concluding that an affiant may have failed in his or her duty to make full, fair, and frank disclosure, this failure must relate to a material issue, namely, directed to a matter in issue in the specific case. In such a circumstance, cross-examination in relation to the material point, and not the duty itself, becomes relevant if it is capable of undermining a statutory pre-condition to the authorization which, in turn, may assist the court in determining the ultimate issue on the Garofoli hearing (Pires at para. 40; R. v. Alizadeh, 2013 ONSC 7540 at para. 37).

[11] In R. v. G.B., [2003] O.T.C. 785 at para. 11, Macdonald J. of this court characterized the duty of disclosure as follows:

Material facts are those which may be relevant to an authorizing judge in determining whether the criteria for granting a wiretap authorization have been met. For the disclosure to be frank, meaning candid, the affiant must turn his or her mind to the facts which are against what is sought and disclose all of them which are known, including all facts from which inferences may be drawn. Consequently, the obligation of full and frank disclosure means that the affiant must disclose in the affidavit facts known to the affiant which tend to disprove the existence of either reasonable and probable grounds or investigative necessity in respect of any target of the proposed authorization.

[12] The Supreme Court commented on the scope and content of the duty of full, frank, and fair disclosure R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992. The court stated that to be full and frank, an affidavit must never attempt to trick its readers. However, at para 46 the court stated that:

[s]o long as the affidavit meets the requisite legal norm, there is no need for it to be as lengthy as À la recherche du temps perdu, as lively as the Kama Sutra, or as detailed as an automotive repair manual. All that it must do is set out the facts fully and frankly for the authorizing judge in order that he or she can make an assessment of whether these rise to the standard required in the legal test for the authorization. Ideally, an affidavit should be not only full and frank but also clear and concise. It need not include every minute detail of the police investigation over a number of months and even of years. [Emphasis in original]

[13] What is crucial to note is that the duty of full, frank, and fair disclosure is intended to ensure that the issuing justice is presented with a clear and concise summary of the evidence. In virtually every case, it will be possible for counsel to argue that the affiant ought to have included more details or more information. Ultimately, in assessing an affiant’s candour, the court must evaluate any argument that the affiant ought to have included more detail in the affidavit by asking whether such an omission was material. Stated otherwise, would the justice have had reason to be concerned about issuing the warrant had he or she been made aware of these other facts? Alternatively, would the accumulation of individual errors or omissions have left the issuing justice with a skewed or inaccurate understanding of the information being placed before the court? If either of these questions compels an affirmative answer then there would be grounds upon which a court could find that cross-examination would be of assistance in determining whether the affiant complied with the duty to make full, fair, and frank disclosure for the purposes of the Garofoli hearing.

Statutory framework

[14] It is crucial to observe that the statutory pre-conditions required for the issuance of a warrant under the Criminal Code are different than those outlined in s. 21 of the CSIS Act under which the impugned warrants were issued.

[15] Section 185(1)(c-h) of the Criminal Code outlines the requirements of the affidavit that must be sworn on an application for authorization.

185. (1) An application for an authorization to be given under section 186 shall be made ex parte and in writing to a judge of a superior court of criminal jurisdiction or a judge as defined in section 552 and shall be signed by the Attorney General of the province in which the application is made or the Minister of Public Safety and Emergency Preparedness or an agent specially designated in writing for the purposes of this section by

(a) the Minister personally or the Deputy Minister of Public Safety and Emergency Preparedness personally, if the offence under investigation is one in respect of which proceedings, if any, may be instituted at the instance of the Government of Canada and conducted by or on behalf of the Attorney General of Canada, or

(b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case,

and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or public officer deposing to the following matters:

(c) the facts relied on to justify the belief that an authorization should be given together with particulars of the offence,

(d) the type of private communication proposed to be intercepted,

(e) the names, addresses and occupations, if known, of all persons, the interception of whose private communications there are reasonable grounds to believe may assist the investigation of the offence, a general description of the nature and location of the place, if known, at which private communications are proposed to be intercepted and a general description of the manner of interception proposed to be used,

(f) the number of instances, if any, on which an application has been made under this section in relation to the offence and a person named in the affidavit pursuant to paragraph (e) and on which the application was withdrawn or no authorization was given, the date on which each application was made and the name of the judge to whom each application was made,

(g) the period for which the authorization is requested, and

(h) whether other investigative procedures have been tried and have failed or why it appears they are unlikely to succeed or that the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. [Emphasis added.]

[16] Section 186(1) of the Criminal Code further outlines the following requirements:

186. (1) An authorization under this section may be given if the judge to whom the application is made is satisfied

(a) that it would be in the best interests of the administration of justice to do so; and

(b) that other investigative procedures have been tried and have failed, other investigative procedures are unlikely to succeed or the urgency of the matter is such that it would be impractical to carry out the investigation of the offence using only other investigative procedures. [Emphasis added.]

[17] Section 487.01 of the Code introduces the requirement that the judge be satisfied that there are reasonable grounds to believe that an offence against this, or any other Act of Parliament, has been or will be committed and that information concerning the offence will be obtained through the use of the requested technique, procedure or device.

[18] It is highly noteworthy that section 185(1.1)(c) of the Criminal Code specifically removes the requirement of s. 185(1)(h) (“investigative necessity”) where the offence alleged is “a terrorism offence”.

[19] Section 21 of the CSIS Act sets out the statutory requirements for the issuance of a warrant as follows:

21. (1) Where the Director or any employee designated by the Minister for the purpose believes, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada or to perform its duties and functions under section 16, the Director or employee may, after having obtained the approval of the Minister, make an application in accordance with subsection (2) to a judge for a warrant under this section.

(2) An application to a judge under subsection (1) shall be made in writing and be accompanied by an affidavit of the applicant deposing to the following matters, namely,

(a) the facts relied on to justify the belief, on reasonable grounds, that a warrant under this section is required to enable the Service to investigate a threat to the security of Canada or to perform its duties and functions under section 16;

(b) that other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures or that without a warrant under this section it is likely that information of importance with respect to the threat to the security of Canada or the performance of the duties and functions under section 16 referred to in paragraph (a) would not be obtained; [Emphasis added.]

(c) the type of communication proposed to be intercepted, the type of information, records, documents or things proposed to be obtained and the powers referred to in paragraphs (3)(a) to (c) proposed to be exercised for that purpose;

(d) the identity of the person, if known, whose communication is proposed to be intercepted or who has possession of the information, record, document or thing proposed to be obtained;

(e) the persons or classes of persons to whom the warrant is proposed to be directed;

(f) a general description of the place where the warrant is proposed to be executed, if a general description of that place can be given;

(g) the period, not exceeding sixty days or one year, as the case may be, for which the warrant is requested to be in force that is applicable by virtue of subsection (5); and

(h) any previous application made in relation to a person identified in the affidavit pursuant to paragraph (d), the date on which the application was made, the name of the judge to whom each application was made and the decision of the judge thereon.

[20] In interpreting s. 21(2)(b), I shall refer to each of the listed criteria as “rubrics”, the first being the requirement that “other investigative procedures have been tried and have failed or why it appears that they are unlikely to succeed, the second being “that the urgency of the matter is such that it would be impractical to carry out the investigation using only other investigative procedures”, and the third being “that without a warrant under this section it is likely that information of importance with respect to the threat to the security of Canada or the performance of the duties and functions under section 16 referred to in paragraph (a) would not be obtained.”

[21] Counsel for Mr. Alizadeh characterized the requirements under s. 21(2)(b) of the CSIS Act as analogous to the “investigative necessity” requirements under s. 186(1)(b) of the Criminal Code. I find the use of the term “investigative necessity” to be inapposite when used in reference to s. 21 of the CSIS Act. “Investigative necessity” is at the core of the ability to obtain a warrant under s. 186 of the Criminal Code. In stark contrast, in the context of a CSIS Act warrant application, “investigative necessity” is included in only two of the three rubrics under which a warrant may be issued.

[22] The requirement of investigative necessity in the context of a Criminal Code authorization was explained by the Supreme Court in Araujo at para. 26 as follows:

In other words, we need to give the section a fair and liberal reading as part of our country's criminal justice legislation. Second, however, we must not forget that the text of s. 186(1) represents a type of constitutional compromise. In particular, the investigative necessity requirement embodied in s. 186(1) is one of the safeguards that made it possible for this Court to uphold these parts of the Criminal Code on constitutional grounds (Duarte, supra, at p. 45; Garofoli, supra, at p. 1444). As a result, s. 186(1) must be read with a simultaneous awareness of the competing values of enabling criminal investigations and protecting privacy rights.

[23] At para. 29 the court stated: “[i]n the final analysis, the potentially competing values in this area must be acknowledged. The words of the Code must be read with some common sense having regard both to the nature and purpose of the particular investigation which the police wish to undertake.”

[24] These interpretive principles may be conveniently adapted to assist in the interpretation of s. 21(2)(b) of the CSIS Act. On a plain reading of that section, there are three disjunctive rubrics pursuant to which a warrant may issue. The judge must be satisfied of the existence of only one of these rubrics in order to issue a warrant. In this case, it is only the third rubric that was relied on by the CSIS affiant, namely, that without a warrant it was likely that information of importance with respect to the threat to the security of Canada would not be obtained.

[25] Applying the spirit of the judgment in Araujo, this third rubric ought to be read in conjunction with the other two as imposing some meaningful threshold reflecting the seriousness of the privacy interests at stake and informing the nature of the circumstances in which wiretapping and other highly intrusive aids should be accepted as appropriate investigative tools. However, what must be remembered when applying this reasoning in the context of s. 21 of the CSIS Act is the unique context and countervailing factors that must be balanced against an individual’s right to privacy in the context of this legislation. It is this context that distinguishes the requirements under the CSIS Act from the “investigative necessity” requirement embedded in the Criminal Code.

[26] CSIS is an 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 is not a police agency.

[27] In Atwal v. Canada, 1987 8975 (FCA), [1988] 1 F.C. 107, [1987] F.C.J. No. 714 (F.C.A.) the court analyzed whether s. 21 of the CSIS Act complies with the constitutional standards required under s. 8 of the Canadian Charter of Rights and Freedoms as defined in the seminal decision of Hunter et al. v. Southam Inc., 1984 33 (SCC), [1984] 2 S.C.R. 145. In concluding that s. 21 is Charter compliant, the court explained that the CSIS Act authorizes the “investigation of threats to the security of Canada and, inter alia, the collection of information respecting activities that may, on reasonable grounds, be suspected of constituting such threats” (p. 133). The court further concluded that this requirement is not necessarily a lower standard, rather it is simply a standard that takes into account different realities where national security is involved (p. 133; see also R. v. Ahmad, [2009] O.J. No. 6161, “Ruling No. 1”).

[28] Also, the court in Atwal offered the following comments with respect to the nature of the “threat to the security of Canada” that must be identified in seeking a warrant under the CSIS Act. At page 127 the court stated:

It seems to me that it will be generally less practically possible to be specific, in advance, in authorizations to intercept private communications under the Act than under the Criminal Code. The Code contemplates interception as an investigative tool after or during the event while the Act is directed primarily to gathering information in an attempt to anticipate future occurrences. The distinction was recognized by the United States Supreme Court in U.S. v U.S. District Court, (1972) 407 U.S. 292 at 322.

Moreover, we do not hold that the same type of standards and procedures prescribed by Title III are necessarily applicable to this case. We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime". The gathering of security intelligence is often long range and involves the interrelation of various sources and types of information. The exact targets of such surveillance may be more difficult to identify than in surveillance operations against many types of crime specified in Title III. Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.

[29] These important observations assist in the interpretation of s. 21. Under the third rubric of s. 21(2)(b) of the CSIS Act, there is no need to demonstrate that other investigative procedures have been tried and exhausted. Rather, taking into account the practical and complex realities required for CSIS to fulfil its mandate to investigate ongoing and future national security threats, the likelihood of loss of important information with respect to these future threats is a distinct, legitimate, and necessary ground upon which a justice can issue a warrant. There are internal limitations found in the wording of this provision, namely, that the information must be “important” and that there must be a “likelihood” that the information would not otherwise be obtained. These words must be interpreted in a meaningful way so as to protect the important privacy interests of Canadian citizens and residents.

[30] It may be noted that in Ahmad, “Ruling No. 1”, Dawson J. denied the applicants leave to cross-examine the CSIS affiant on issues relating to investigative necessity. In making this decision, Dawson J. found that cross-examination on this issue would not assist him on the ultimate Garofoli application because “investigative necessity is not a pre-requisite to the issuance of an authorization for terrorist offences” (para. 20). I appreciate that Dawson, J. was dealing with the provisions of the Criminal Code, but his ruling is instructive with respect to the manner in which the interpretation of the CSIS Act should be informed by the reality of the nature of threats to national security, and how investigative authorities should be armed to respond to such threats.

Application of the law

The contradictions regarding the gun

[31] As outlined in my reasons for decision dated December 6, 2013 (R. v. Alizadeh, 2013 ONSC 7540 at paras. 9-12), there existed a contradiction between the CSIS source material and para. 27 of the affidavit with respect to Mr. Peshdary’s “active” attempt to obtain a gun. As noted in that decision, I deemed there to have been a factual foundation for showing that there was a reasonable likelihood that cross-examination on this issue could produce probative evidence tending to discredit the belief that there existed a threat to national security (para. 18).

[32] Subsequent to the production order contained in the December 6 decision and the subsequent addendum dated January 9, 2014 (R. v. Alizadeh, 2014 ONSC 206), no information was brought to my attention that explained the contradiction. In this application, the applicant maintained his position and sought leave to cross-examine the affiant with respect to this contradiction.

[33] In the affidavit, the statement that Mr. Peshdary was actively looking for sources that could sell him a gun was made in the context of a paragraph that also described Mr. Peshdary’s active intention of travelling overseas for jihad. Read in this context, I find that this issue is material and relevant to the reasonable and probable grounds to believe that there existed a threat to national security. Although in the context of the affidavit as a whole, the gun issue may at this point appear to be peripheral, as noted earlier in Pires, the Supreme Court rejected an onerous standard and made it clear that “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” (para. 69).

[34] I continue to believe that a statement in an affidavit that a person of interest was seeking to commit violent acts in Canada and was actively seeking to obtain a gun would have been a salient factor in the mind of the issuing justice. Though it is questionable whether a challenge to the warrants themselves will succeed on this point alone, at this stage of the analysis, this is not for me to consider. I find that the inconsistency relating to the gun may amount to a mischaracterization of the evidence in breach of the duty of full, fair, and frank disclosure. It is possible that Noel J. was misled on this point.

[35] On the basis of these findings, the applicant has met the threshold established in Garofoli for leave to cross-examine. I believe that it is possible that cross-examination on this point might assist me in understanding the reasons for this contradiction which, in turn, will allow me to know what use to make of this information in ultimately evaluating whether there existed grounds upon which Noel J. could have issued the warrant.

The nature of Source 2’s remuneration

[36] Counsel for Mr. Alizadeh argued that the CSIS source documents that outline the dates and amounts of Source 2’s remuneration indicate a “suspicious” payment structure. They submit that the failure to include the details of Source 2’s payment in the affidavit constitutes a breach of the applicant’s duty of full, fair, and frank disclosure, as this information amounted to a material fact that ought to have been disclosed to the issuing justice. It was submitted that due to the way in which Source 2’s payments were structured, Source 2 had an incentive to embellish or falsify information provided to CSIS about Mr. Peshdary and/or Mr. Alizadeh in order to continue to receive compensation. It was submitted that this “incentive structure” was something that the issuing justice ought to have known about, as it was a countervailing factor that could have undermined the affiant’s stated belief with respect to Source 2’s accuracy and, in turn, the existence of reasonable and probable grounds.

[37] The “suspicious” payment structure was so characterized on the basis that there existed a pattern in which bonuses were paid to Source 2 in exchange for “more valuable” or “a higher yield of” information.

[38] I acknowledge that if, in fact, such an atypical payment structure existed, that fact would likely be required to be disclosed to the issuing justice. Such a monetary incentive could have an impact on the reliability of the information provided to CSIS, in turn undermining the existence of reasonable and probable grounds. However, in this case, I do not find this argument to have merit, for two reasons.

[39] First, I do not find the way in which Source 2 was remunerated to fit any “suspicious pattern” as identified by counsel. For each of the bonuses Source 2 received, a full explanation was provided by CSIS in the source documents. The source documents are comprised of standard issue forms that include “bonus” as part thereof; the forms require details respecting “date”, “function”, “maximum monthly amount”, “bonus”, “expenses”, “total”, together with “remarks” where bonuses are sought to be paid. Detailed addenda are attached to the forms setting out the reasons justifying the request for payment of a bonus. The amount and timing of the bonuses appear to be completely appropriate in light of the explanations offered. It is apparent from the documents that Source 2 was paid more when his work and reporting load increased and the subject matter of his discussions with targets revealed more dangerous intentions. All of the bonuses were paid after Source 2 had provided CSIS with compelling information.

[40] In Appendix B to the CSIS affidavit, the affiant described Source 2’s remuneration in the following words: “Source 2 has received financial remuneration from the Service, both for information provided and as reimbursement for expenses.” I find this description to be both accurate and sufficient. There is no reasonable basis upon which I could conclude that the remuneration received by Source 2 had any impact on the accuracy or reliability of his reporting.

[41] I acknowledge that the affiant could have described in more detail the precise details and timing of the payments and bonuses received by Source 2. However, as noted earlier, it is always possible for an affiant to include more information. In light of the guidance provided in Araujo that an affiant should be concise, though not misleading, I find that the inclusion of additional details with respect to the remuneration issue would not have left the issuing justice with any different understanding of the affiant’s stated belief with respect to Source 2’s accuracy or reliability.

[42] Second, in this case, the CSIS affiant’s belief as to Source 2’s accuracy, and thus the existence of reasonable and probable grounds, was in large part based on the fact that CSIS had confirmed Source 2’s truthfulness by requiring him to undertake a polygraph test which Source 2 successfully passed. This fact was disclosed to the issuing justice in the affidavit and is highly corroborative of the reliability of Source 2. Any concerns about Source 2’s reliability due to the existence of a monetary “incentive” would have been neutralized by the polygraph examination results.

[43] For these reasons, I do not find that cross-examination on this point could be of any assistance to me. I deny leave to cross-examine the CSIS affiant in relation to the remuneration received by Source 2.

The status of Source 2 as an “agent” and the possibility of a meeting between Source 2 and Mr. Alizadeh

[44] I consider the applicant’s arguments on these two points together because, as counsel argued, both of these issues relate to what they term the “investigative necessity” requirement found in s. 21(2)(b) of the CSIS Act. Counsel maintained the position that, while there are three distinct rubrics under which a warrant can be issued under s.21(2)(b) of the CSIS Act, taken together, these provisions are analogous to a requirement for “investigative necessity” as is required under the Criminal Code warrant process.

[45] Counsel submitted that information available in the source documents indicates that CSIS did not exhaust or pursue viable alternative investigative methods. Counsel pointed to the fact that Source 2 may have been in fact acting for CSIS as an agent, as well as the fact that there was a real possibility that Source 2 could have met with Mr. Alizadeh in person. It was submitted that both of these facts ought to have been disclosed to the issuing justice as they undermined the statutory pre-condition for authorization of “investigative necessity”.

[46] While I accept that the source documents do in fact indicate that Mr. Alizaedh was willing and ready to meet directly with Source 2, I reject counsel’s characterization of Source 2 as a CSIS agent. Counsel referred the court to various terms found in the CSIS source documents, describing Source 2 as “committed”, “responsive to direction”, and as having an “active role”, as indicia of Source 2’s status as a CSIS agent. Based on a contextual reading of these references, I do not find them to be capable of raising the inference that Source 2 was a CSIS agent. There is no reason to doubt, as recounted in the CSIS affidavit, that Source 2, acting in his own right, was motivated to communicate with CSIS for any other reason than his strong ideological belief against extremism and a desire to protect the Muslim identity in Canada.

[47] As I find that there is no factual foundation for asserting that Source 2 was a CSIS agent, I do not find that the affiant breached his duty of full, frank, and fair disclosure in this regard. Based on the affidavit filed, the issuing justice would have been left with an accurate understanding of Source 2’s relationship with CSIS. Cross-examination on this issue would be of no assistance to me on the Garofoli application.

[48] The source material indicated that Mr. Alizadeh trusted Source 2 and was willing and ready to meet with him in person. Counsel for Mr. Alizadeh argued that this avenue of investigation ought to have been pursued by CSIS prior to the seeking of warrants that intruded so greatly upon the privacy of Mr. Peshdary and Mr. Alizadeh. Furthermore, counsel submitted, this information would have been vital to the issuing justice’s assessment under s. 21(2)(b) of the CSIS Act and ought to have been disclosed by the affiant pursuant to his obligation of full, frank, and fair disclosure.

[49] At para. 50 of the CSIS affidavit, the affiant unequivocally outlines the grounds upon which the warrant was being sought; that without warrants, important information with respect to threat-related activities would not be obtained. The affiant further outlined the need for warrants in order to further the investigation beyond information that could be provided by Source 2. At para. 52 of the affidavit the affiant stated:

I am aware that the interception of communications, in addition to corroborating and supplementing information obtained from other sources, also provides unique insight into the contacts, tasking, and priorities of persons engaged in threat-related activities. As interceptions take place in the context of private communications, the information gleaned from them can be spontaneous, candid, and incisive. This information is not readily available through other investigative means. Often topical, this information frequently provides timely intelligence on current threat-related activities and issues. [Emphasis added.]

[50] As has been stated, investigative necessity is only one basis upon which a warrant may be obtained under s. 21(2)(b). Although the first and second rubrics of the provision mirror the investigative necessity requirements in the Criminal Code, these are only two of three distinct grounds upon which a warrant may be granted under s. 21(2)(b). What is crucial in this case is that the CSIS affidavit made it clear to the issuing justice that the warrant was being sought on the ground that there was a likelihood that information of importance to Canada’s national security would be lost.

[51] As explained above, the affiant’s duty of full, fair, and frank disclosure is only relevant where it relates to information that may undermine one or more of the statutory pre-conditions upon which the warrant was authorized. In this case, I do not deem the fact that Source 2 could have been used by CSIS to communicate directly with Mr. Alizadeh to be relevant to the third rubric of s. 21(2)(b).

[52] CSIS initiated the s. 21 application shortly after receipt of information from Source 2 that Mr. Alizadeh’s behaviour and plans were becoming increasingly serious and potentially dangerous. Source 2 reported that Mr. Alizadeh was seeking to gain access to “big weapons, including C-4 explosives” and had a “solid group of brothers back in Winnipeg”. He was also seeking to recruit other individuals to his cause.

[53] CSIS was under a statutory mandate to expand its investigation into these serious threats to national security in a manner that could produce new leads and more substantive evidence or information than could result from any further conversations between Source 2, Mr. Peshdary and Mr. Alizadeh. In this respect, the possibility of contact between Source 2 and Mr. Alizadeh did not present a viable alternative opportunity that could negate the likelihood that important information would otherwise have be