COURT FILE NO.: 15-30545 DATE: 2017/02/22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen – and – Awso Peshdary Applicant – and – Canadian Security Intelligence Service Respondent/ Third Party Records Holder

Counsel: Roderick Sonley and Douglas G. Curliss, for the Crown Solomon Friedman, for the Applicant Marc Edmunds & André Seguin for Third Party Records Holder: Canadian Security Intelligence Service

HEARD: January 24 & 26, 2017

REASONS FOR Decision

Parfett J.

[1] The Applicant, Awso Peshdary is charged with two counts of conspiracy to commit the indictable offence of knowingly participating in the activities of a terrorist group with the purpose of enhancing the ability of such a group to carry out terrorist activities contrary to s. 83.18 of the [Criminal Code] [1], one count of participating in the activity of a terrorist group for the purpose of enhancing the ability of such a group to carry out terrorist activities contrary to s. 83.18 of the Criminal Code and, one count of knowingly facilitating a terrorist activity contrary to s. 83.19 of the Criminal Code.

[2] Mr. Peshdary requests production of material from the Canadian Security Intelligence Service (CSIS). Both the Crown and CSIS oppose the production of any of this material.

Background

[3] In January 2013, the Royal Canadian Mounted Police (RCMP) initiated an investigation into John Maguire.

[4] Maguire was a university student who had converted to the Muslim faith and apparently become radicalized. He left Canada in December 2012. [2] The evidence indicates that, once overseas, Maguire joined the Islamic State in Iraq and Syria (ISIS). As noted by Applicant’s counsel, there is extensive open source evidence showing that ISIS is known for using brutal terrorist tactics in Syria and Iraq. It is listed by Public Safety Canada as a terrorist entity.

[5] A connection between Maguire and Peshdary was discovered when authorities learned that Peshdary had attempted to purchase an airline ticket for the same date and flight as Maguire. However, Peshdary was unable to obtain a passport. According to the Crown, Peshdary maintained contact with Maguire. The Crown further alleges that Maguire and Peshdary conspired to send other Canadians to Syria to join ISIS.

[6] Peshdary and Maguire were subsequently linked to another man, Khadar Khalib. He also travelled from Canada to Syria to join ISIS.

[7] Finally, it is alleged that Peshdary and Khalib conspired to assist another man to travel to Syria in order to join ISIS. This man is Abdullah Milton. Milton was a paid police agent. He initially worked for CSIS and was later transferred to the RCMP. During the period of time he was working for CSIS, he made notes of his interactions with Peshdary. Peshdary was a target of a CSIS investigation and Milton was one of their assets used in that investigation. The charges against Peshdary cover the period when he was being investigated by CSIS.

[8] The Applicant is requesting materials in relation to the initial involvement of CSIS in this investigation. Specifically, he is seeking:

• All materials related to any reliability assessment of Mr. Abdullah Milton by CSIS and any information relating to Milton’s financial arrangements with CSIS;
• All materials, affidavits and source documents related to the warrant against Mr. Peshdary obtained by CSIS pursuant to s. 21 of the [CSIS Act] [3], which was in force between October 22, 2012 and October 22, 2013; and
• All materials pertaining to the CSIS investigation of Awso Peshdary obtained by Abdullah Milton.

Legal Principles

[9] The parties are in agreement that records in the possession of Crown entities other than the prosecuting Crown are third parties. [4] They also agree that the governing legal principles are those found in the decision of [R. v. O’Connor] [5].

[10] The procedure to be followed therefore is the following:

1. The Accused must first obtain a subpoena duces tecum pursuant to ss. 698(1) and 700(1) of the Criminal Code. This subpoena is served on the third party;
2. The Accused must also bring an application supported by affidavit evidence, showing that the records sought are likely to be relevant at trial;
3. If the production is unopposed, no hearing is required;
4. If the production is opposed, either by the record holder or by some other interested party, then a hearing must be held before the trial judge; and
5. Where privilege is not in issue, the judge must determine whether production should be compelled in accordance with the two-stage procedure established in O’Connor. [6]

[11] At the first stage of the two-stage process, the judge must be satisfied that the record is likely relevant to the proceeding against the accused and may order production of the record for the court’s inspection. At the next stage, with the records in hand, the judge must determine whether, and to what extent, production should be ordered to the accused. [7]

[12] The Supreme Court of Canada has described the burden on the Applicant of establishing likely relevance as one that is ‘significant, but not onerous’. [8] As noted by the Supreme Court of Canada,

[I]t is important for the effective administration of justice that criminal trials remain focussed on the issues to be tried and that scarce judicial resources not be squandered in “fishing expeditions” for irrelevant evidence. The likely relevance threshold reflects this gate-keeper function. [9]

[13] On the other hand the statement in O’Connor that the burden is not ‘onerous’ is a reflection of the fact an accused cannot make specific or detailed statements about the records being sought or the use to which they will be put in circumstances where those records have never before been seen. [10]

[14] The concept of relevance at this stage of the proceeding is a broad one. As noted in [R. v. McNeil] [11],

As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence. In considering the ambit of the information that can assist in the trial, regard must be given to the particular issue in the case and to the governing rules of evidence and procedure.

[15] Finally, the accused in seeking third party records must do more than merely state that the record may be relevant to the credibility of a witness. Instead, the applicant must point to some case specific information to justify that assertion. [12] However, it has been equally held that the evidence sought does not have to be in and of itself admissible; it is nonetheless disclosable if its only purpose is to assist with the credibility of a witness. [13]

[16] At the second stage of the inquiry, the court must review the record and consider a variety of factors in balancing privacy interests and the right of the accused to make full answer and defence. The factors to consider are as follows:

• The extent to which the record is necessary for full answer and defence;
• The probative value of the record;
• The nature and extent of the reasonable expectation of privacy;
• Whether production would be premised on prejudicial or discriminatory beliefs; and
• The potential prejudice to the complainant’s dignity, privacy or security of the person. [14]

[17] This list is not to be applied mechanically. Instead, the Supreme Court of Canada has made it clear that,

Ultimately, what is required at this second stage of the common law regime is a balancing of the competing interests at stake in the particular circumstances of the case. No exhaustive list can be crafted to suit every situation. [15]

[18] Ultimately, however the Supreme Court of Canada has noted that “absent an overriding statutory regime governing the production of the record in question, a third party privacy interest is unlikely to defeat an application for production.” [16]

Analysis

[19] It is helpful to begin this analysis with an outline of how these accusations came to be made and the purpose for which the Applicant is seeking these records.

[20] As noted earlier, the RCMP began its investigation in January 2013. Their investigation led them to Abdullah Milton. Unbeknownst to them, Milton had been a CSIS asset since 2011.

[21] In April 2013, the RCMP applied for a search warrant and production orders in relation to John Maguire. This application was refused. A further application was sought in August 2013. It was once again refused; this time with written reasons from the judge indicating that the Applicant had fallen ‘very far short of the requisite standards expected at law.’ [17]

[22] During this same period of time, the RCMP was asking CSIS whether they had any information to ‘substantiate and clarify the linkage between Maguire and Peshdary’. [18]

[23] In August 2013, CSIS sent two ‘advisory’ letters to the RCMP. The first indicated that CSIS had obtained a warrant pursuant to s. 21 of the CSIS Act that targeted Peshdary and, pursuant to that warrant, CSIS had recorded conversations between Peshdary and Maguire. They provided disclosure of those recorded conversations to the RCMP. The second advisory letter indicated that Maguire had been driven to the Montreal airport and was accompanied by Peshdary. [19]

[24] In September 2013, the RCMP again applied for a judicial authorization to intercept communications as well as various production orders. [20] With the addition of the material from CSIS, the RCMP was finally successful in obtaining a judicial authorization.

[25] Defence contends that the material they are seeking is relevant to two issues. First, they state that Milton is a crucial Crown witness. He acted initially as a paid CSIS asset and later as a paid police agent for the RCMP. Peshdary was one of his targets and it is his testimony that will provide a significant portion of the evidence in relation to the allegations. Consequently, Milton’s credibility will be a material issue at trial.

[26] The second issue that Defence wishes to explore as part of their defence is the validity of the judicial authorization obtained by the RCMP. They point out that the first successful RCMP judicial authorization relied on material obtained by CSIS through their warrant. Consequently, defence assets it needs the Information to Obtain (ITO) and source documents used to obtain the CSIS warrant to assess the validity of that warrant.

Materials in relation to Abdullah Milton

[27] In respect of Milton’s credibility, Defence states that CSIS would not have used Milton as a paid asset had they not first investigated him to determine his reliability. Consequently, there must be material in relation to that assessment. In addition, Defence contends that the financial motive of an agent is a central aspect of any assessment of that agent’s credibility. Defence is seeking information concerning what the agreement was between CSIS and Milton and whether that agreement was fulfilled.

[28] CSIS takes the position that Defence has failed to outline with any specificity how the material in their possession could relate to a material issue at trial. I disagree. As Defence has made clear, Milton’s credibility is a material issue at trial. They have gone further to outline how the material in the possession of CSIS might impact on that credibility. In my view, Defence has met the likely relevance test and any materials related to any reliability assessments of Milton by CSIS as well as information relating to Milton’s financial arrangements with CSIS are to be disclosed to the court for review.

Materials in relation to the CSIS Act warrant

[29] Defence relies on the case of [R. v. Jaser] [21] as authority for the proposition that where the RCMP judicial authorization relies on information obtained pursuant to a CSIS warrant, then the ITO in relation to the CSIS warrant meets the likely relevance test and is disclosable.

[30] There is no question but that the facts in Jaser are very similar to the facts in the present case. However, Crown argues that a recent Supreme Court of Canada case, [World Bank Group v. Wallace] [22] has changed the legal landscape in relation to third party records applications where the purpose for the request is a potential challenge to a judicial authorization.

[31] The Crown argues that in the present case, CSIS stands in the same position that World Bank stood in the World Bank case and therefore, the Supreme Court of Canada’s decision in that case should apply equally in this case. Defence counters that the two cases are factually different. In Jaser, the Applicant was attempting to bring a facial challenge to the judicial authorization. In World Bank, the Applicant was solely attempting to bring a sub-facial challenge.

[32] A review of each of the cases will assist in untangling the arguments.

[33] As noted earlier, the facts in Jaser mirror those in the present case. In Jaser, information obtained in a CSIS warrant provided part of the basis for obtaining a Criminal Code warrant. The Applicant brought a third party records application to obtain disclosure of the ITO for the CSIS warrant. The Crown argued that relevance was contextual. The likely relevance test set out in O’Connor related to information that was relevant to a material issue at trial. According to the Crown, the context of the application in Jaser was a Charter motion seeking to exclude evidence and consequently, it was the test of relevance set out in [R. v. Garofoli] [23] that ought to apply. The court disagreed and order production of the ITO for the CSIS warrant.

[34] In World Bank, the World Bank had received information via emails that one of the companies bidding on a contract to build a bridge in Bangladesh may have bribed local and other officials in order to obtain the contract. They conducted an investigation, then turned over their report and copies of the emails to the RCMP for further investigation. The RCMP used the information provided by the World Bank to obtain judicial authorizations to intercept communications. The Applicants brought a third party records application to obtain source documents in the possession of World Bank with a view to bringing a Garofoli application. World Bank challenged that application on two grounds, one of which is not relevant to the present case. The second ground was that the trial judge had not properly assessed relevance in the particular circumstances of that case. The Supreme Court of Canada agreed and refused to order production of the source documents.

[35] The Court in World Bank concluded that,

A typical O’Connor application is designed to deal with production of documents that relate to material issues at trial bearing directly on the guilt or innocence of the accused. A Garofoli application is more limited in scope, relating as it does to the admissibility of evidence, namely intercepted communications. This is an important distinction – and one which requires clarification. An O’Connor application made in the context of a Garofoli application must be confined to the narrow issues that a Garofoli application is meant to address. Policy consideration in this context dictate a similar narrow approach. [24]

[36] This is precisely the argument that the Crown made in Jaser. It is also the argument the Crown is making in the present case.

[37] In my view, whether the challenge to the judicial authorizations is facial or sub-facial does not change the basic principle outlined in World Bank that when the issue is the admissibility of evidence obtained through a judicial authorization, the narrower test as set out in Garofoli is the appropriate one – that there is a reasonable likelihood that the records sought will be of probative value to the issues on the application. [25] The Applicant in this case has not met that test.

Materials pertaining to the CSIS investigation of Awso Peshdary obtained by Milton

[38] Finally, Defence stated that if Milton took notes of his interactions with Peshdary, they constitute a contemporaneous record of his interactions and would clearly be relevant to his credibility.

[39] This part of the Applicant’s request was never seriously challenged by either Respondent. In any event, the likely relevance of such material to the Applicant’s right to make full answer and defence is self-evident. Consequently, the Applicant has met the test for likely relevance and the materials are to be disclosed to the court for review.

Justice Julianne Parfett Released: February 22, 2017

Footnotes

[1] R.S.C., 1985, c. C-46. [2] It is unclear in the materials whether McGuire is alleged to have travelled directly to Syria or whether he went initially to Turkey. [3] R.S.C. 1985, c. C-23. [4] See R. v. Quesnelle, 2014 SCC 46 at para. 11. [5] , [1995] S.C.J. No. 98. [6] Taken from R. v. McNeil, 2009 SCC 3, [2009] S.C.J. No. 3 at para. 27. [7] O’Connor at para. 153. [8] At paras. 24 & 32. [9] McNeil at para. 28. [10] O’Connor at para. 25. [11] McNeil at para. 44. [12] R. v. W.B., [2000] O.J. No. 2184 at paras. 70-72. [13] McNeil at para. 17. [14] O’Connor at para. 31. [15] McNeil at para. 35. [16] At para. 41. [17] Exhibit #2. [18] Exhibit #3. [19] Exhibit #4. [20] See Exhibit #5. [21] 2014 ONSC 6052. [22] 2016 SCC 15. [23] (1990), , 60 C.C.C. (3d) 161 (S.C.C.) [24] World Bank at para. 116 [emphasis added]. [25] At para. 124.