Court File and Parties
Court File No.: 15-30545 Date: 2018/09/26 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 Celine Harrington, for the Federal Crown Solomon Friedman and Fadi Mansour, for the Applicant Andre Seguin, for Third Party Records Holder: Canadian Security Intelligence Service
Heard: September 17, 2018 (Ottawa)
Reasons for Decision
Parfett J.
[1] The Applicant requests disclosure of the source documents in the possession of the Canadian Security Intelligence Service (CSIS) relating to a s. 21 CSIS Act [1] warrant issued in 2012. He has made this request on two previous occasions and has been denied on both those occasions. He now renews his request on the basis that there has been a material change in circumstances.
[2] Counsel for CSIS objects to the renewal of this application on two bases: first, that the validity of the CSIS Act warrant has already been ruled on in Federal Court, thereby preventing defence from challenging the warrant in this court and, second, that there has not in fact been any material change in circumstances warranting re-visitation of the previous decision.
Background to this Application [2]
[3] Awso Peshdary is charged with two counts of conspiracy to commit the indictable offence of knowingly participating in the activities 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 [3], 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 and one count of knowingly facilitating a terrorist activity contrary to s.83.19 of the Code.
[4] There have been in total three previous third party records applications in this matter. [4] In the first of those decisions, access was denied to the ITO or any source documents in relation to the CSIS warrant. However, disclosure of information in the possession of CSIS relating to an informant – Mr. Milton – who will be a key witness for the Crown was ordered. In the second decision and based on information disclosed by CSIS as a result of the first decision, disclosure of a redacted copy of the ITO for the CSIS warrant was ordered. However, the Applicant’s request for the source documents underlying the warrant was denied on the basis that this material would not have been known to the issuing justice and there was no factual basis for believing the source documentation could produce evidence tending to discredit the CSIS authorization. [5] In the third decision, the Applicant argued that he could point to many discrepancies between the source documents already in his possession and the ITO such that there was a factual foundation for the assertion that the affiant did not discharge his/her duty to make full, frank and fair disclosure. That argument was not successful and the application was denied.
[5] After the release of the third, third party records application, the Applicant applied in Federal Court for a determination of the validity of the CSIS warrant. On September 12, 2018, the Federal Court released its decision upholding the validity of the CSIS warrant. [6]
[6] The Applicant now brings this fourth, third party records application alleging that findings made in the Federal Court have provided evidence that the affiant did not discharge his/her duty to make full disclosure. Consequently, the Applicant argues that with this finding, there is now a factual basis for believing that the remaining source documentation could produce evidence tending to discredit the CSIS authorization.
Issues
[7] There are two issues to be decided on this application. First, whether the Applicant can challenge the CSIS warrant in this court given the Federal Court’s decision upholding that warrant. Second, if the Applicant can challenge the CSIS warrant in this court, whether there is a material change in circumstances justifying re-visiting the decision in the third, third party records application.
Positions of the parties
[8] The Applicant contends there has been a material change in circumstances given the Federal Court found that Mr. Milton’s psychiatric assessment was material and could have significantly affected the issuing judge’s assessment of Mr. Milton’s reliability. Although the assessment was not made until after the issuance of the warrant, in accordance with jurisprudence in the Federal Court in relation to CSIS Act warrants, the affiant had a duty to return to the issuing judge with the new information. The Applicant argues that if the affiant failed in his/her duty to advise the issuing judge of this material, it follows that there may be other material omissions such that the Applicant should receive disclosure of the remaining source documentation.
[9] The Applicant argues that this court has jurisdiction to hear this third party records application because the issues on a third party records application are not the same as those on a Wilson [7] application. Consequently, issue estoppel does not apply. At this point in time, the only application before the court is a disclosure application, not a challenge to the validity of the CSIS authorization. The Applicant contends, in addition, that even if the court finds that the validity of the CSIS warrant is in issue at this time, the tests in Wilson and Garofoli [8] are different. Furthermore, the Applicant states that the purpose of the disclosure request is to challenge the validity of the CSIS warrant on a different basis than it was challenged in Federal Court. Therefore, issue estoppel does not apply.
[10] Counsel for CSIS argues the Applicant is precluded from challenging the CSIS warrant given the Federal Court’s decision. Consequently, the third party records application, which is being brought for the purpose of challenging the CSIS warrant, is moot. In the event that this court finds the Applicant may challenge the CSIS warrant, then counsel for CSIS argues that there has not been any material change in circumstances.
[11] The Federal Crown agrees with counsel for CSIS that this court has no jurisdiction to hear this fourth third party records application, but he argues that this application is in effect a collateral attack on the Federal Court decision. Such an attack is expressly forbidden by the Wilson decision. That case states,
[It] has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is set aside on appeal or lawfully quashed. It is also well settled in the authorities that such an order may not be attacked collaterally – and a collateral attack may be described as an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. [9]
[12] I agree with counsel for CSIS and the Federal Crown that the issue of whether the Applicant can challenge the validity of the CSIS warrant in this court given the Federal Court’s decision is an issue that must be decided first. If the warrant cannot be challenged in this court, then the third party records application that is brought for the sole purpose of challenging the warrant is moot.
Analysis
[13] As noted earlier, the Applicant brought a Wilson application in the Federal Court challenging the validity of the CSIS warrant issued in 2012. The Federal Court dismissed the application.
[14] CSIS contends that with that decision, the Applicant is now estopped from challenging the CSIS warrant in this court.
[15] Issue estoppel has been held in the jurisprudence to be a branch of the doctrine of res judicata. It is a doctrine which precludes the relitigation of issues previously decided in court in another proceeding. For issue estoppel to be successful, three pre-conditions must be met: (1) the issue must be the same as the one decided in the prior decision; (2) the prior judicial decision must have been final: and (3) the parties to both proceedings must be the same. [10]
[16] The Applicant contends that the first precondition has not been met on two bases: first, because the issues on a third party records application are not the same as in a Wilson application and second, because even if the validity of the CSIS warrant is before the court, the tests in Garofoli and Wilson are not the same. As pointed out by counsel for CSIS, the entire purpose of this third party records application is to challenge the validity of the CSIS warrant. Therefore, in my view the challenge to the CSIS warrant is effectively before the court.
[17] With respect to the Applicant’s second argument, the jurisprudence with respect to Wilson applications indicates that while Wilson applications are used in situations where a Garofoli application is not available and the procedure is somewhat different, the tests with respect to validity are functionally the same. [11]
[18] However, while the Applicant’s argument on these points fails, in my view issue estoppel does not apply in any event in the circumstances of this case.
[19] In R. v. Mahalingan [12], the Supreme Court of Canada concluded that historically, issue estoppel applied in both the criminal and civil context. [13] However, this case makes it clear that ‘only issues which were decided in the accused’s favour, whether on the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel’. [14] In the present case, the issue of the validity of the CSIS warrant was not decided in the accused’s favour. Consequently, in my view, issue estoppel cannot apply in the circumstances of the present case.
[20] However, that finding is not dispositive of the issue of jurisdiction. There are two other doctrines related to res judicata. They are: collateral attack and abuse of process. As noted earlier, a collateral attack occurs where an attack is made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment. The doctrine of abuse of process may be established where: (1) the proceedings are oppressive or vexatious; and, (2) violate the fundamental principles of justice underlying the community’s sense of fair play and decency. [15]
[21] The doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would …bring the administration of justice into disrepute.” [16] The doctrine of abuse of process has been found to have a significant advantage over issue estoppel in that it is more flexible and can be applied in circumstances where issue estoppel or res judicata do not. [17]
[22] In Toronto v. C.U.P.E, the court noted that the abuse of process doctrine acts to prevent an ‘attempt to impeach a judicial finding by the impermissible route of relitigation in a different forum’. [18] The motivation for such relitigation is irrelevant. In essence, the doctrine of abuse of process
[c]oncentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [19]
[23] Both the doctrine of collateral attack and abuse of process rest on the assumption that the present proceeding deals with the same issue as that in the Federal Court. As noted earlier, in my view the issue in the Federal Court was the validity of the CSIS warrant and that identical issue is to be litigated in this court. It matters not that the grounds for the challenge may be somewhat different, a challenge in this court is nonetheless an effort to relitigate the same issue in a different forum. Effectively, this application constitutes a collateral attack on the Federal Court decision in that it is ‘an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment’. [20] Given the purpose of this application is to obtain disclosure in order to relitigate the issue of the validity of the CSIS warrant, it clearly meets the definition of collateral attack.
[24] In the alternative, the doctrine of abuse of process also applies in the circumstances of this case. The Applicant chose to challenge the validity of the CSIS warrant in Federal Court. The decision was not in his favour. He now seeks to challenge the CSIS warrant in this court. The Applicant has argued that the basis for the challenge will be different than it was in Federal Court, but that argument does not change the essence of what the Applicant proposes to do, which is relitigate the validity of the warrant in a different court.
[25] In this day and age, it is important not to waste precious judicial resources. The Applicant’s decision to attempt to relitigate the validity of the CSIS warrant engages precisely the problems that the doctrine of abuse of process is designed to control – the integrity of the judicial process and wasting judicial resources. The validity of the CSIS warrant has been determined in a final manner by the Federal Court. Unless, and until, it is overturned on appeal, that decision stands and the Applicant may not challenge the warrant in this court. Given that decision, the application for disclosure is moot.
[26] The application is therefore, dismissed.
Madam Justice Julianne Parfett
Date: September 26, 2018