Court File and Parties

COURT FILE NO.: 15-30545 DATE: 2020/04/08

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

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

COUNSEL: Roderick Sonley, Pierre Lapointe and Celine Harrington, for the Crown Solomon Friedman and Fadi Mansour, for the Applicant/Defendant Andre Seguin, for Third Party Records Holders: Canadian Security Intelligence Service

HEARD: December 5, 9 and 12, 2019 (at Ottawa)

Reasons for Decision on Third Party Records Application

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 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 [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 Code.

[2] The trial of this matter is ongoing. The evidence portion of this trial has been concluded, and the Applicant has brought two applications: one pursuant to s. 7 of the Canadian Charter of Rights and Freedoms [2] and the other pursuant to s. 38.14 of the Canada Evidence Act [3]. On the Charter application, the Applicant is seeking either a stay of proceedings, or the exclusion of A.M.’s evidence or the exclusion of all evidence related to the CSIS Act Authorization. With respect to the s. 38.14 CEA application, the Applicant is seeking (1) an order staying all counts predicated on A.M.’s evidence; and/or (2) an order excluding the evidence of A.M. or (3) a finding against the Crown in relation to the issues under consideration in the Applicant’s s. 7 Charter application or (4) an order staying the proceedings.

[3] Both applications are based on the destruction of notes prepared by a key Crown witness, A.M. These notes were prepared while he was a human source working for the Canadian Security Intelligence Service (CSIS) and the notes were destroyed at the behest of his handlers.

[4] As part of its response to these applications, the Crown sought an in camera, ex parte hearing of the evidence of one of A.M.’s handlers in relation to the destruction of the notes. The Applicant opposed this procedure on the basis it would be unfair for the Crown to present evidence on the s. 7 Charter application that defence counsel and the Applicant would not be able to hear or adequately assess. Moreover, the Applicant contended that if the information in the possession of the handler concerning the destruction of the notes has been ruled privileged by the Federal Court, then Crown must live with the consequences of that ruling. In an oral ruling, the Court agreed with this position.

[5] The Crown led evidence via affidavit of an employee of CSIS. This person testified pursuant to a publication ban and was identified in court solely as ‘John’. ‘John’ advised the court that CSIS had an unwritten policy that handlers would discourage human sources from taking notes for safety and security reasons and that if the human source nonetheless took notes, those notes were to be destroyed. Defence counsel was in the process of cross-examining this witness on their affidavit when this third-party records application was brought.

[6] The Applicant requests disclosure of documents in the possession of CSIS. Specifically, he is seeking the following:

• All CSIS policies, manuals and other similar documents regarding the handling of human sources, specifically with respect to maintaining the safety and security of human sources;
• All previous drafts of ‘John’s’ affidavits;
• Any written input as to form or content of ‘John’s’ affidavit provided by anyone other than a lawyer;
• All material prepared by Analyst A related to ‘John’s’ affidavit, including:
  • Any correspondence;
  • Any notes, reports or other written material;
  • The briefing book ‘John’ testified had been prepared by Analyst A prior to his drafting his affidavit;
• The affidavits prepared by the handler for use in this proceeding and any material related to the preparation of those affidavits, including notes, briefing books, reports or correspondence;
• The updated Operations Policies and Procedures-217 in relation to note-taking by employees of CSIS; and
• All materials related to the ‘Task Force’ report and recommendations, including the final report and recommendations, referred to in the DDO Directive of July 8, 2008.

[7] The Applicant sought other material in the possession of CSIS and referred to by ‘John’ in his testimony. Specifically, two ministerial directives, two DDO directives and Operations Policies and Procedures 501. All this material related to note-taking by CSIS employees. That material was provided, subject to redactions in relation to relevance that were reviewed by the court.

Positions of the parties

[8] Defence counsel argues that all the material that he is seeking is clearly relevant to the issue on the s. 7 Charter and s. 38.14 CEA applications. He contends that the Crown has led evidence that the destruction of A.M.’s notes was done at the request of his CSIS handlers and that the reason for that unwritten policy was the safety and security of the human source. Consequently, any and all CSIS policies in relation to note-taking are relevant. In addition, prior drafts of ‘John’s’ affidavit are relevant to his credibility.

[9] Crown counsel and counsel for CSIS take similar positions: first, that the policies sought are irrelevant and second, the affidavit prepared by A.M.’s handler, the prior drafts of ‘John’s’ affidavit, as well as any advice or information he received from other personnel at CSIS in preparing his affidavit are covered by either solicitor/client privilege or litigation privilege. In addition, the handler’s affidavit is covered by s. 38 CEA privilege.

Legal Principles

[10] Unlike previous third-party records applications that the court has dealt with in relation to this case, this application falls squarely within the parameters of the procedure set out in R. v. O’Connor [4].

[11] At this point, the court is at the first stage of the process. The issue is: has the Applicant demonstrated that the documents sought are likely relevant to a material issue in the two applications? As noted in O’Connor, “if the information does not meet this threshold of relevance, then the analysis ends here and no order will issue.” [5] The Supreme Court also stated that this onus should not be interpreted as an onerous burden and that in borderline cases, the judge should err on the side of production to the court. [6]

[12] In assessing whether the Applicant has met the onus of demonstrating likely relevance, the Supreme Court indicated,

The records here in question are not within the possession or control of the Crown, do not form part of the Crown’s “case to meet”, and were created by a third party for a purpose unrelated to the investigation or prosecution of the offence. In my opinion, it cannot be assumed that such records are likely to be relevant, and if the accused in unable to show that they are, then the application for production must be rejected as it amounts to nothing more than a fishing expedition. [7]

[13] The Court was also careful to point out that issues such as privilege must be considered separately from the issue of likely relevance and that if records are privileged then they are not to be disclosed despite the fact such evidence might further the truth-seeking process. [8] As stated in R. v. McNeil,

If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest of cases where the accused’s innocence is at stake, the existence of privilege will effectively bar the accused’s application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O’Connor process. [9]

[14] Crown counsel and counsel for CSIS have claimed solicitor/client privilege and litigation privilege in relation to some of the material sought by the Applicant. Specifically, they have claimed privilege in relation to the following material:

• All previous drafts of ‘John’s’ affidavits;
• Any written input as to form or content of ‘John’s’ affidavit provided by anyone other than a lawyer;
• All material prepared by Analyst A related to ‘John’s’ affidavit, including:
  • Any correspondence;
  • Any notes, reports or other written material;
  • The briefing book ‘John’ testified had been prepared by Analyst A prior to his drafting his affidavit.
• The affidavits prepared by the handler for use in this proceeding and any material related to the preparation of those affidavits, including notes, briefing books, reports or correspondence.

[15] In R. v. Campbell [10], the Supreme Court of Canada set out the basis for the existence of solicitor/client privilege in relation to legal advice provided to government departments. The Court noted,

The solicitor-client privilege is based on the functional needs of the administration of justice. The legal system, complicated as it is, calls for professional expertise. Access to justice is compromised where legal advice is unavailable. It is of great importance, therefore, that the RCMP be able to obtain professional legal in advice in connection with criminal investigations without the chilling effect of potential disclosure of their confidences in subsequent proceedings. As Lamer C.J. stated in R. v. Gruenke, [1991] 3 S.C.R. 263 at p. 289:

The prima facie protection for solicitor-client communications is based on the fact that the relationship and the communications between solicitor and client are essential to the effective operation of the legal system. Such communications are inextricably linked with the very system which desires the disclosure of the communication. [11]

[16] The only exception to solicitor/client privilege is where the accused’s innocence is at stake. [12]

[17] Draft documents may fall within the parameters of solicitor/client privilege. As noted in Canada (Office of the Information Commissioner) v. Canada (Prime Minister), 2019 FCA 95,

These two draft letters also meet the second requirement of the Solosky test insofar as they are within the continuum of communications which entail the seeking or giving of legal advice. In Samson Indian Nation and Band v. Canada, [1995] 2 F.C. 762 (C.A.), this Court has defined as follows the scope of the “legal advice” notion:

…The legal advice privilege protects all communications, written or oral, between a solicitor and a client that are directly related to the seeking, formulating or giving of legal advice; it is not necessary that the communication specifically request or offer advice, as long as it can be placed within the continuum of communication in which the solicitor tenders advice; it is not confined to telling the client the law and it includes advice as to what should be done in the relevant legal context.

In the present case, the draft response letters reflect the legal advice. Disclosing them could therefore have the effect of revealing the nature of the legal advice that was given by counsel. As a result, they ought to be protected by solicitor-client privilege. [13]

[18] Crown counsel and counsel for CSIS also raise litigation privilege as a bar to the disclosure of these documents.

[19] Litigation privilege is a variant of solicitor/client privilege and, like that privilege, is considered a class privilege. [14] Litigation privilege creates an immunity from disclosure for documents and communications whose dominant purpose is preparation for litigation. Examples of litigation privilege include the lawyer’s file or written communications between a lawyer and third parties, such as expert witnesses. [15]

[20] Although solicitor/client privilege and litigation privilege are similar, they are not the same. The differences between the two privileges are set out as follows:

• The purpose of solicitor/client privilege is to protect a relationship, while that of litigation privilege is to ensure the efficacy of the adversarial process;
• Solicitor/client privilege is permanent, whereas litigation privilege is temporary and lapses when the litigation ends;
• Litigation privilege applies to non-confidential documents; and
• Litigation privilege is not directed at communications between solicitors and clients as such. [16]

[21] As noted in Blank v. Canada (Minister of Justice), 2006 SCC 39 [17], the object of litigation privilege is,

…to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure. [18]

[22] The Supreme Court of Canada has stated that the exceptions to litigation privilege are the same as those that apply to solicitor/client privilege, which are public safety, the innocence of the accused, criminal communications and evidence ‘of the claimant party’s abuse of process or similar blameworthy conduct.’ [19]

[23] Defence counsel contends that litigation privilege in the criminal context is a very different concept. He pointed to the case of R. v. Toronto Star Newspapers Ltd., 2005 ONSC 47737 [20]. In that case, the accused was seeking access to an Information to Obtain a search warrant. The ITO had been sealed and Crown was prepared to provide a redacted version of the ITO. The accused wanted access to the unredacted ITO and Crown objected on the basis the ITO contained privileged information, including information subject to litigation privilege. The judge stated,

In my view, litigation privilege cannot be relied upon for the edits made for two reasons. First, litigation privilege has a relatively narrow role in civil proceedings and even a narrower role in criminal proceedings. In the criminal context, the Crown may claim privilege for material fairly characterized as work product as long as that material does not contain “material inconsistencies or additional facts not already disclosed to the defence”. The Crown may, for example, claim work product privilege for a memorandum that outlines the Crown’s case and is prepared for the purpose of obtaining legal advice as long as the memorandum does not contain facts not already disclosed to the defence. [21]

[24] The facts in the Toronto Star case are very different to the ones in the present case. In the present case, the disclosure sought by defence is in the possession of a third party. Therefore, unlike material in the possession of the Crown, it is not subject to the much broader disclosure requirements set out in R. v. Stinchcombe [22]. It seems apparent given those broad requirements that the Crown would only be able to claim litigation privilege in relatively narrow circumstances. However, in the present case, the disclosure request is governed by the principles in O’Connor where the court has made it clear that the Crown is not under any obligation to produce material in the possession of a third party. [23]

Analysis

[25] There are three categories of disclosure requested by Defence counsel: 1) policies in relation to human sources, 2) draft copies of ‘John’s’ affidavit and related material and 3) the handler’s affidavit along with related material. Each one will be dealt with separately.

Policy documents

[26] Defence counsel seeks the following documents:

• All CSIS policies, manuals and other similar documents regarding the handling of human sources, specifically with respect to maintaining the safety and security of human sources;
• The updated Operations Policies and Procedures-217 in relation to note-taking by employees of CSIS; and
• All materials related to the ‘Task Force’ report and recommendations, including the final report and recommendations, referred to in the DDO Directive of July 8, 2008.

[27] Crown counsel and counsel for CSIS oppose production of this material on the basis that the threshold requirement of likely relevance has not been met.

[28] The assessment of relevance must be done in the context of this trial and the applications brought by the Accused. A.M. was a key Crown witness in this trial. He worked as an informant with the RCMP. Prior to working with the RCMP, A.M. was a human source working for CSIS. The information he provided CSIS led to the issuance of a s. 21 CSIS Act warrant. Some of the information obtained through that warrant later found its way into the Information to Obtain a Part VI wiretap authorization in which Mr. Peshdary was the primary target. During his time with CSIS, A.M. took notes of his interactions with various people, including Mr. Peshdary. He was later advised by CSIS to destroy those notes.

[29] Crown counsel concedes that A.M.’s notes, prepared during his time as a human source for CSIS have been destroyed. However, Crown contends that the destruction of those notes is not equivalent to the loss of evidence during a criminal investigation. Furthermore, Crown argues there is a reasonable explanation for the destruction of the notes.

[30] As part of its response to the s. 7 Charter and s. 38.14 CEA applications, Crown called ‘John’, an employee of CSIS who testified to the policies and procedures in relation to note-taking by human sources. A second witness – A.M.’s handler at CSIS – was to be called in an in camera, ex parte hearing. In an earlier ruling, this Court held that such a procedure was not appropriate, and Crown decided not to call that witness.

[31] It is against this backdrop that the issue of likely relevance of the documents Defence counsel is seeking must be assessed.

[32] The burden on the applicant to demonstrate likely relevance is not seen to be an onerous burden. [24] On the other hand, it is not enough for the applicant to simply invoke credibility ‘at large’. Rather, the applicant must ‘provide some basis to show that there is likely to be information in the impugned records which would relate to….a material issue at trial.’ [25]

[33] The material issue on these applications is whether the destruction of A.M.’s notes has led to an infringement of Mr. Peshdary’s right to make full answer and defence. With respect to the s. 7 Charter application, the explanation for the destruction of the notes is an aspect of the court’s assessment of whether there has been a breach of that right. Consequently, any information that impacts on the explanation is relevant.

[34] In his affidavit and in his testimony, ‘John’ emphasized that the destruction of the notes was done in order to preserve the safety and security of the human source. Therefore, in my view, CSIS policies relating to the safe and secure handling of human sources is relevant to the issues on the s. 7 Charter application. Moreover, the change in how note-taking by CSIS employees was dealt with after the release of the Supreme Court of Canada’s decision in R. v. Charkaoui, 2008 SCC 38 [26] is also relevant to CSIS’ position on that issue in relation to its human sources.

[35] Consequently, I find that the Applicant has met his onus of demonstrating likely relevance in relation to the documents listed above and those documents should be disclosed to the court for review.

‘John’s’ draft affidavits and related material

[36] The next category of documents requested by Defence are as follows:

• All previous drafts of ‘John’s’ affidavits;
• Any written input as to form or content of ‘John’s’ affidavit provided by anyone other than a lawyer;
• All material prepared by Analyst A related to ‘John’s’ affidavit, including:
  • Any correspondence;
  • Any notes, reports or other written material;
  • The briefing book ‘John’ testified had been prepared by Analyst A prior to his drafting his affidavit;

[37] The Applicant argues that these materials are also likely relevant to the issues in this hearing. Before the issue of relevance can be dealt with, the issue of privilege must be addressed. Crown counsel and counsel for CSIS contend that these documents are covered by solicitor/client privilege and/or litigation privilege.

[38] In his testimony, ‘John’ indicated that he consulted with colleagues and superiors in the preparation of his affidavit and he submitted drafts of the affidavit to these people for review. In addition, he received a briefing book prepared by an analyst that set out the relevant policies. Although counsel indicated that ‘John’ would necessarily have also consulted with counsel, there is no actual evidence of that fact. As a result, I cannot conclude that the affidavit is covered by solicitor/client privilege.

[39] On the other hand, the draft affidavits and any material received by ‘John’ for the purpose of preparing his affidavit are clearly covered by litigation privilege. That privilege has not been waived by CSIS and does not fall within any of the possible exceptions.

[40] Even if I am wrong in my determination that this material is privileged, I could not find any likely relevance to the draft versions of the affidavit or any of the other documents sought by the Applicant. The issue in this hearing, as noted earlier, is whether the destruction of the notes breached the Applicant’s Charter rights. The material sought by the Applicant could not assist with that determination. None of the material set out above is to be disclosed.

Handler’s affidavit

[41] The Applicant is seeking the affidavits prepared by the handler for use in this hearing and any material related to the preparation of those affidavits, including notes, briefing books, reports or correspondence.

[42] As noted earlier, the Crown initially sought to have the handler file an affidavit and testify in this hearing. However, as the material to which the handler would testify was covered by the s. 38 rulings of the Federal Court in this case, the only way that could occur was if the hearing was held in camera and in the absence of the Applicant and his counsel. I previously ruled that that procedure was inappropriate. Therefore, the Crown decided not to call this evidence.

[43] The privilege issue in relation to this material has already been ruled on by the Federal Court. In my view, that provides a complete answer to the Applicant’s request to receive this material.

[44] In any event, the Crown has elected not to call this evidence. The Applicant cannot on the one hand argue this material should not be put before the court and then insist that it is necessary to the hearing of this matter.

[45] This material will also not be disclosed.

Conclusion

[46] For the reasons set out above, I find that the following material meets the test of likely relevance:

• All CSIS policies, manuals and other similar documents regarding the handling of human sources, specifically with respect to maintaining the safety and security of human sources;
• The updated Operations Policies and Procedures-217 in relation to note-taking by employees of CSIS; and
• All materials related to the ‘Task Force’ report and recommendations, including the final report and recommendations, referred to in the DDO Directive of July 8, 2008.

[47] None of the other material requested by the Applicant will be disclosed.

Madam Justice Julianne Parfett

Released: April 8, 2020

Footnotes

[1] R.S.C. 1985, c. C-46. [2] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [3] Canada Evidence Act, RSC 1985, c. C-5 [4] [1995] S.C.J. No. 411. [5] At para. 137. [6] At paras. 141 & 152. [7] At para. 141. [8] At para. 147. [9] 2009 SCC 3, [2009] S.C.J. No. 3 at para. 27. [10], [1999], 1 S.C.R. 565. [11] At para. 49. [12] McNeil at paras. 13, 22 & 25. [13] At paras. 72-73. [14] Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52, [2016] 2 S.C.R. 521 at paras. 1 & 4. [15] At para. 19. [16] At par. 22. [17] 2006 SCC 39, [2006] 2 S.C.R. 319. [18] At para. 27. [19] At para. 41. [20], [2005] O.J. No. 5533 (SCJ). [21] At para. 20, citing O’Connor at para. 87. [22], [1991] 3 S.C.R. 326. [23] O’Connor at para. 87. [24] O’Connor at para. 141. [25] At para. 142. [26] Charkaoui (Re), 2008 SCC 38, [2008] 2 SCR 236