Court File and Parties
Court File No.: 15-G30545 Date: 2018/11/23 Ontario Superior Court of Justice
Between: Her Majesty the Queen – and – Awso Peshdary, Applicant
Counsel: Roderick W. A. Sonley, Celine Harrington and Pierre Lapointe, for the Crown Solomon Friedman and Fadi Mansour, for the Applicant
Heard: November 19, 2018 (Ottawa)
Reasons for Decision
Parfett J.
[1] The Applicant requests an order excising any information obtained from a Canadian Security Intelligence Service (CSIS) Act Authorization and used by the Royal Canadian Mounted Police (RCMP) in obtaining a s.186 Criminal Code authorization to intercept private communications. The Applicant alleges that his rights pursuant to s. 8 of the Canadian Charter of Rights and Freedoms (Charter) have been infringed by the use of that information.
Background
[2] 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, 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.
[3] In January 2013, the 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. The evidence indicates that, once overseas, Maguire joined the Islamic State in Iraq and Syria (ISIS). As noted in earlier arguments 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 and consequently, could not leave the country. However, it is alleged that 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. 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] In October 2012, the Federal Court granted a s. 21 CSIS Act authorization. One of the targets of that authorization was Peshdary. In 2013, the RCMP began conducting their own investigation into Peshdary. The RCMP asked CSIS for information and in August 2013, CSIS sent out two Advisory letters. The information in those letters was incorporated into the affidavit that was used to obtain a s. 186 authorization to intercept the private communications of Peshdary (and others).
Issues
[9] The Applicant raises two issues in this matter:
- whether the CSIS Act warrant fails to meet the minimum criteria for a lawful search; and
- whether the Applicant’s right to full answer and defence has been violated. The basis for this issue is the Applicant’s assertion that there can be no meaningful review of the Criminal Code warrant given the source documents for the CSIS Act warrant are not accessible in light of World Bank Group v. Wallace.
Legal Principles
1. Does the CSIS Act warrant meet the minimum criteria for a lawful search?
[10] Any intrusion into a person’s right to privacy must meet the criteria of section 8 of the Charter. As noted R. v. Collins, ‘a search will be reasonable if it is authorized by law, if the law itself is reasonable and if the manner in which the search was carried out is reasonable.’ In Hunter v. Southam Inc., dealing with the requirements for an authorization, the court noted that ‘the state’s interest in detecting and preventing crime begins to prevail over the individual’s interest in being left alone at the point where credibly-based probability replaces suspicion.’ This latter statement is more generally referred to as the requirement for reasonable and probable grounds to justify the issuance of a warrant. Importantly, while the court noted that this was the basic requirement, it also noted that the requirement might be different if national security issues were at stake or where the intrusion involved a violation of a person’s bodily integrity.
[11] The issue of whether warrants obtained pursuant to s. 21 of the CSIS Act infringed s. 8 of the Charter was addressed in Atwal v. Canada. In that case, the Federal Court decided that,
Since the [CSIS Act] does not authorize the issuance of warrants to investigate offences in the ordinary criminal context, nor to obtain evidence of such offences, it is entirely to be expected that section 21 does not require the issuing judge to be satisfied that an offence has been committed and that evidence thereof will be found in the execution of the warrant. What the Act does authorize is 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. …. The Act fully satisfies, mutatis mutandis, the prescription of Hunter et al. v. Southam Inc. as to the minimum criteria demanded by section 8 of [the Charter]. The judge is required to be satisfied on reasonable and probable grounds established by sworn evidence, that a threat to the security of Canada exists and that a warrant is required to enable its investigation.
[12] As noted in both this decision and in R. v. Alizadeh, the standard for issuance of a s.21 CSIS Act warrant is not a lower standard, it is simply a standard that takes into account the different reality of an agency whose role is to investigate threats to national security.
[13] This issue was also discussed in R. v. Ahmad, [2009] O.J. no. 6161 (SCJ). As in the present case, CSIS provided the police with Advisory letters. The information contained in those letters was then used in the Information to Obtain (ITO) a Part VI authorization. The court in Ahmad made three observations in relation to this issue:
(a) Section 19(2)(a) of the CSIS Act provides CSIS with the authority to release information in its possession to the police; (b) The provisions in s. 21 of the CSIS Act parallel the minimal constitutional requirements for a Part VI wiretap authorization; and (c) The police did not use the information as evidence against the accused, they used the lawfully obtained information to apply for a judicial authorization to intercept private communications.
[14] I agree with the first two propositions set out in R. v. Ahmad, [2009] O.J. no. 6161 (SCJ). The third proposition is more problematic as can be seen in the following cases.
[15] In R. v. Colarusso, blood samples were taken from the appellant at the request of the coroner. Those samples were tested for the presence of alcohol and it was determined that the appellant had well over the legal limit of alcohol in his blood. At trial, the Crown called the analyst who analysed the blood sample to give evidence of the appellant’s blood alcohol concentration. The Supreme Court of Canada determined that the coroner’s actions were lawful in that the seizure was for a valid, non-criminal purpose. However, when the police decided to use the samples as part of their criminal investigation, the standards as set out in Hunter v. Southam Inc. had to be complied with. The failure of the police to do so in the circumstances of this case infringed s. 8 of the Charter.
[16] In R. v. Jarvis, an investigation had been undertaken by the audit department of Revenue Canada. The information obtained by the audit department indicated that tax evasion may have occurred. Using the information gathered by the audit department, the investigative arm of Revenue Canada obtained a search warrant. The Supreme Court of Canada held,
The material that the trial judge excluded from the Information to Obtain a search warrant owing to a Charter violation was in fact validly gathered pursuant to the auditor’s inspection and requirement powers. Accordingly, the searches ultimately carried out were authorized by warrant, and no s. 8 violation occurred.
[17] In R. v. Porter the appellant was involved in a traffic accident. Pursuant to the Traffic Safety Act of Alberta, the appellant was obliged to give the police a statement concerning the accident. Using information provided to police by the appellant, the police obtained a search warrant to seize the appellant’s vehicle. The issue in the case was whether the information obtained pursuant to compelled statements could be used in the ITO. The court indicated that it could not. The court followed the principle in R. v. White that ‘statements made under compulsion of [provincial highway traffic legislation] are inadmissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination.’ In R. v. Soules, the Ontario Court of Appeal held that compelled statements could not be used to establish grounds to make an approved screening device demand. Using the same logic, the court in Porter concluded that compelled statements could not be used for the purpose of establishing reasonable and probable grounds to obtain a search warrant or production order.
[18] It is difficult to reconcile the principles in these cases. Colarusso stands for the proposition that information validly obtained for a non-criminal purpose cannot be used as evidence in a criminal prosecution because the state cannot circumvent the requirements for a lawful seizure. Jarvis stands for the proposition that information validly obtained for a non-criminal purpose can be used to provide grounds for a search warrant. On the other hand, Soules stands for the proposition that such information cannot be used for establishing the grounds for a search or seizure.
[19] While the conundrum provides an intellectual challenge, it is not necessarily relevant to the debate in the present case. The issue, more properly framed, is whether the CSIS Act warrant conformed to the requirements for a valid search. If so, the information derived from it does not infringe s. 8 of the Charter. As noted in the cases cited above, a s.21 CSIS Act warrant does comply with the minimum standards for a lawful search.
[20] Consequently, the present situation is unlike the situation in Colarusso. In that case, the seizure was valid, but did not conform to the requirements set out in Hunter v. Southam Inc., and therefore, could not be used in a criminal proceeding. The information in the present case was validly obtained, was obtained in a manner that meets the minimum standards for a lawful search and therefore, does not violate s. 8 of the Charter.
[21] Therefore, the Applicant’s first argument fails.
2. Has the Applicant’s right to full answer and defence been denied by virtue of an inability to conduct a meaningful review of the warrant?
[22] The Applicant contends that regardless of whether the information obtained pursuant to the CSIS Act warrant was lawfully obtained, he cannot properly mount a challenge to the authorization in the criminal case given the requirements of the World Bank Group v. Wallace decision.
[23] Generally speaking, when an authorization is challenged, the reviewing judge is required to assess whether ‘on the material before the authorizing judge, there was no basis upon which he could be satisfied that the pre-condition for the granting of the authorization exist.’ The Supreme Court of Canada added the following proviso to that test:
The reviewing judge does not substitute his or her view for that of the authorizing judge. If, based on the record which was before the authorizing judge as amplified on the review, the reviewing judge concludes that the authorizing judge could have granted authorization, then he or she should not interfere. In this process, the existence of fraud, non-disclosure, misleading evidence and new evidence are all relevant, but, rather than being a prerequisite to review, their sole impact is to determine whether there continues to be any basis for the decision of the authorizing judge.
[24] In R. v. Pires; R. v. Lising, the Supreme Court of Canada noted that the Criminal Code provided an accused with access to all the documents relating to the authorization and that access is granted on the simple assertion that the admissibility of the evidence is challenged. The documents that are disclosed necessarily include the affidavit in support of the authorization as well as all other disclosure in the possession of the Crown.
[25] The situation is somewhat different when a defendant seeks to challenge a Criminal Code warrant that was obtained using information acquired pursuant to a CSIS Act warrant. The ITO and other source documents that were used to obtain the CSIS Act warrant are not in the possession of the Crown. Consequently a third party records application must be brought to obtain those materials. The World Bank Group v. Wallace case states that where a defendant is seeking third party disclosure in the context of a Garofoli challenge, the relevance threshold is narrower than on an ordinary third party records application. Consequently, it is more difficult for an accused to obtain information to challenge the warrant.
[26] The Applicant argues that this narrower test effectively prevents an accused from obtaining information needed to challenge the Criminal Code warrant. As a result, the Applicant contends that information obtained pursuant to a CSIS Act warrant ought not to be used to establish grounds for a Criminal Code warrant. According to the Applicant, if the necessary information cannot be reasonably obtained and the authorization cannot be effectively challenged, his right to full answer and defence has been infringed.
[27] The Applicant argues that although s. 19(2)(a) of the CSIS Act permits CSIS to disclose information obtained in its investigation to law enforcement agencies, it does not address the issue of what use the law enforcement agencies can make of that information.
[28] The relevant parts of s. 19(2)(a) state,
(2) The Service may disclose information…., (a) where the information may be used in the investigation or prosecution of an alleged contravention of any law of Canada…to a peace officer having jurisdiction to investigate the alleged contravention.
[29] The Crown says that this section does address the use to which the information may be put in that the section states it can be used in the ‘investigation or prosecution’ of a criminal offence.
[30] The decision in R. v. Ahmad, [2009] O.J. no. 6161 (SCJ) supports the Crown’s contention that any information disclosed pursuant to s. 19(2)(a) may be used to establish grounds for a Criminal Code authorization. However, the matter does not end there. The issue remains whether the requirements of the World Bank Group v. Wallace case preclude a defendant from accessing sufficient information in relation to the CSIS Act warrant so as to be able to meaningfully challenge the Criminal Code warrant.
[31] The answer to this argument lies in what actually occurred in the present case. In its first third party records application, the Applicant was successful in obtaining disclosure of source documents in the possession of CSIS in relation to the primary informant, Abdullah Milton. In its second third party records application, the Applicant was successful in obtaining disclosure of the ITO in relation to the CSIS Act warrant. Consequently, the Applicant obtained a large part of the source documentation in relation to that warrant.
[32] In the circumstances, it is difficult to see how the narrower test for disclosure as set out in World Bank Group v. Wallace has impeded the Applicant’s ability to obtain disclosure and therefore, to challenge the authorization. To paraphrase R. v. Pires; R. v. Lising, the Applicant does not arrive empty-handed at the evidentiary hearing. Consequently, I cannot find that the Applicant’s right to full answer and defence has been infringed.
[33] In the circumstances, the Applicant’s request for an order excising the information obtained for the CSIS Act authorization is denied.