Endorsement

COURT FILE NO.: 10-30345

DATE: 2014/09/18

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Her Majesty the Queen v. Hiva Alizadeh & Misbahuddin Amhed

BEFORE: The Hon. Mr. Justice C. McKinnon

COUNSEL: Counsel for the Federal Crown, Martha Devlin, Q.C. and Jason Wakely

Counsel for the Applicant Mr. Alizadeh, Matthew Webber and Leonardo Russomanno

Counsel for the Applicant Mr. Ahmed, Mark Ertel and Ian Carter

HEARD: December 16 and 17, 2013

ENDORSEMENT: ADDENDUM to PRODUCTION aPPLICATION #2

[1] Pursuant to my decision dated December 6, 2013 (see R. v. Alizadeh, 2013 ONSC 7540, “Production Application #2”), I ordered that CSIS produce all source documents that were relied upon by a CSIS affiant in the swearing of an affidavit in support of warrants granted under ss. 12 and 21 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (the “CSIS affidavit”). As a result of this order, the applicant was provided with two binders of source materials reviewed by the CSIS affiant, as redacted by me.

[2] Prior to my ruling in Production Application #2, the applicant had available to him a document entitled “Exhibit B” which was appended to the CSIS affidavit. This document indicated that the human source (“source 2”), upon whom the CSIS affiant was almost entirely reliant, had received financial remuneration and reimbursement for expenses from the Service.

[3] The source material produced by CSIS pursuant to the Production Application #2 order did not include any information pertaining to the remuneration or reimbursements that source 2 had received from CSIS.

[4] As a result, after receipt of the source documents, counsel for the applicant launched a further application seeking production of all CSIS records pertaining to the date, amount, and nature of the remuneration and reimbursements received by source 2 from CSIS and any CSIS records pertaining to an assessment of the reliability of Mr. Awso Peshdary.[^1]

[5] After hearing submissions from counsel I ordered production of the CSIS records relating to all remuneration and reimbursement of expenses paid by CSIS to source 2 in the context of the investigation involving Mr. Peshdary and Mr. Alizadeh.

[6] I made that order because I deemed the documents to be likely relevant on a pending Garofoli voir dire. What is critical in assessing the merits of a Garofoli application is whether leave to cross-examine the affiant will aid in demonstrating that the affiant knew or ought to have known that certain information in the affidavit was false or misleading.

[7] First, the case law recognizes that the absence of financial remuneration is a relevant factor for the court to consider with respect to the assessment of a source’s credibility: R. v. Baldwin (2007), 2007 41427 (ON SC), 52 C.R. (6th) 13, [2007] O.J. No. 3781, at para 52 (Ont. S.C.); R. v. Debot, 1989 13 (SCC), [1989] 2 S.C.R. 1140, 52 C.C.C. (3d) 193, at para 59. The converse is equally true. Logic and human experience teaches us that the existence of a financial motive may affect a person’s credibility. When dealing with statements made by confidential informants, the fact that such individuals were remunerated might have a bearing on whether the affiant knew or ought to have known that the individual was conveying false information. If significant sums of money are being expended on an informant in order to gain information, then common sense tells us that an informant might have a motive to lie in order to continue receiving such sums of money. This incentive makes the details of remuneration and reimbursements made to source 2 relevant to the CSIS affiant’s stated belief that source 2 is a reliable source.

[8] Second, in a third party affidavit submitted on behalf of the applicant, the affiant deposes that that source 2 made payments to Mr. Peshdary in the amounts of $1,300.00, $2,000.00, and $5,000.00. Counsel submits that this information raises the logical possibility that source 2 was reimbursed by CSIS for payments made to Mr. Peshdary. Without commenting on the propriety or evidentiary value of the affidavit, if in fact these monies were paid to Mr. Peshdary with the knowledge of CSIS then an issue arises whether the use of the phrase “reimbursement for expenses” as used in the CSIS affidavit fairly and accurately describes the payments made to Mr. Peshdary. This fact would make the nature of the reimbursements given to source 2 by CSIS likely relevant and thus production must be ordered.

[9] With respect to the applicant’s request for disclosure of any assessments conducted by CSIS relating to Mr. Peshdary’s reliability, I decline to order production of such materials.

[10] Counsel submitted that since Mr. Peshdary was the true “source” of information, in that it was he who attributed incriminating statements to Mr. Alizadeh, CSIS was obliged to conduct a reliability assessment of Mr. Peshdary as they are required to do for traditional sources or police informants. Counsel submitted that any such assessment (or absence thereof) would be likely relevant on a Garofoli voir dire.

[11] As is plain and obvious from the CSIS affidavit and source documents produced thus far, Mr. Peshdary was a target of the CSIS investigation, not a source whose reliability would be required to be assessed and disclosed in an information to obtain a warrant. In this case it is pure speculation to assert that CSIS would have conducted a reliability assessment on the target of a terrorism investigation. I would think it is highly unlikely that they would do so.

[12] Notwithstanding the fact that Mr. Peshdary was not a traditional source whose reliability ought to have been assessed, counsel argued that Mr. Peshdary was nonetheless a de facto source of information whose reliability would have been assessed by CSIS had the circumstances dictated a need for such an assessment (i.e. had CSIS had some grounds to question Mr. Peshdary’s reliability). Counsel argued that the CSIS source material indicates that Mr. Peshdary was not mentally stable which raises the inference that if CSIS knew Mr. Peshdary was mentally unstable then a reliability assessment would or should have been conducted.

[13] CSIS’s mandate is to investigate threats to national security. Arguably, numerous targets of CSIS investigations might be mentally unstable to the extent that they desire to commit violent acts against Canadian citizens. I disagree that the references highlighted by counsel (for example Mr. Peshdary’s gullibility, impecuniosity, or desire to understand and act on dreams) are in any manner whatsoever capable of indicating that Mr. Peshdary’s mental health was so tenuous so as to raise the inference that CSIS conducted or ought to have conducted a reliability assessment of Mr. Peshdary as a terror suspect.

The Hon. Mr. Justice C. McKinnon

Originally released with publication ban: January 9, 2014

Released without publication ban: September 18, 2014

COURT FILE NO.: 10-30345

DATE: 2014/09/18

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen

AND

Hiva Alizadeh, Applicant

AND

Misbahuddin Amhed, Applicant

BEFORE: C. McKinnon J.

COUNSEL: Martha Devlin, Q.C. and Jason Wakely, Counsel, for the Federal Crown

Matthew Webber and Leonardo Russomanno, Counsel for the Applicant Mr. Alizadeh

Mark Ertel and Ian Carter, Counsel for the Applicant Mr. Ahmed

ENDORSEMENT: ADDENDUM to PRODUCTION aPPLICATION #2

C. McKinnon J.

Originally released with publication ban: January 9, 2014

Released without publication ban: September 18, 2014

[^1]: The relationship of Mr. Peshdary to the applicant and source 2 is detailed in my decision dated December 6, 2013 (2013 ONSC 7540) at para. 40 and my decision dated September 6, 2013 (2013 ONSC 5417) at para. 10.