CSIS 66-85
Harjit Singh Atwal (Applicant)
v.
The Queen (Respondent) *
INDEXED AS: ATWAL v. CANADA
Heald J.-Ottawa, March 26, 27 and April 30,
1987.
Security Intelligence - Warrant issued after hearing under
CSIS Act, s. 21 - Evidence obtained thereunder to be used in
conspiracy to commit murder prosecution - Intercepted tele
communications - Motion to rescind warrant for non-compli
ance with s. 21, as contravening search and seizure standards
of Charter s. 8 and as affidavit in support not justifying
issuance - Non-applicability of Criminal Code case law to
CSIS warrants since objectives of Code and CSIS Act different
- Canadian Security Intelligence Service Act, S.C. 1984, c.
21, ss. 2, 7(1)(b), 21, 26, 27, 30-40 - Criminal Code, R.S.C.
1970, c. C-34, ss. 178.13 (as added by S.C. 1973-74, c. 50, s. 2;
1976-77, c. 53, s. 9), 423(1)(a) (as am. by S.C. 1985, c. 19, s.
62), 443(1)(b) (as am. idem, s. 69), 577(3) - Federal Court
Rules, C.R.C., c. 663, R. 330 (as am. by SOR/79-58, s. 1).
Constitutional law - Charter of Rights - Criminal process
- Search or seizure - Canadian Security Intelligence Service
Act s. 21 wiretap and search warrant - No "unreasonable"
search or seizure - No requirement Court be satisfied, before
issuing warrant, offence committed or evidence thereof to be
found at place of search - Provisions of CSIS Act not
required to coincide with standards established by Southam
case for Criminal Code matters - Canadian Security Intelli
gence Service Act, S.C. 1984, c. 21, ss. 2, 7(1)(b), 21, 26, 27,
30-40 - Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 1, 8 - Combines Investigation
Act, R.S.C. 1970, c. C-23.
* Editor's note: This decision has now been reversed on
appeal (Mahoney and MacGuigan JJ. with Hugessen J. dis
senting in part). The majority held that "in the absence of an
objection under section 36.1 of the Canada Evidence Act, the
learned Judge should have ordered disclosure of the affidavit
after deleting therefrom anything from which the identity of
any person described in paragraph 18(1)(a) and/or (b) of the
Act can be inferred". The reasons for judgment of the Federal
Court of Appeal will be published in the Canada Federal Court
Reports on a top priority basis.
Practice - Privilege - Solicitor-client privilege - Inter
ception of solicitor-client communications under Canadian
Security Intelligence Service Act s. 21 warrant - State secu
rity versus solicitor-client confidentiality - Validity of war
rant not affected where curtailment of privilege sufficiently
limited in warrant - Canadian Security Intelligence Service
Act, S.C. 1984, c. 21, ss. 2, 7(1)(b), 21, 26, 27, 30-40
Penitentiary Act, R.S.C. 1970, c. P-6.
Practice - Discovery - Production of documents - Na
tional security - Secret affidavit sworn in support of applica
tion for warrant under Canadian Security Intelligence Service
Act s. 21 - Special circumstances permitting Court to depart
from general rule of full disclosure of all Court documents to
all parties - Canada Evidence Act, R.S.C. 1970, c. E-10, ss.
36.1 (as added by S.C. 1980-81-82-83, c. 111, s. 4), 36.2 (as
added idem) - Canadian Security Intelligence Service Act,
S.C. 1984, c. 21, ss. 2, 7(1)(b), 21, 26, 27, 30-40 - Criminal
Code, R.S.C. 1970, c. C-34, ss. 178.13 (as added by S.C.
1973-74, c. 50, s. 2; 1976-77, c. 53, s. 9), 423(1)(a) (as am. by
S.C. 1985, c. 19, s. 62), 443(1)(b) (as am. idem, s. 69), 577(3)
- Federal Court Rules, C.R.C., c. 663, R. 330 (as am. by
SOR/79-58, s. 1).
On July 26, 1985, a Federal Court judge issued a wiretap
and search warrant directed against the applicant pursuant to
section 21 of the Canadian Security Intelligence Service Act
(CSIS Act) for the investigation of a threat to the security of
Canada. In September 1986, the applicant was charged, along
with eight other individuals, with conspiracy to commit murder.
The prosecutor proposes to introduce into evidence at trial
certain tapes and transcripts of telecommunication intercepted
pursuant to the section 21 warrant. Two of the intercepted
telephone calls involved a solicitor. They were both dealt with
in accordance with the conditions of the warrant: an authorized
member of the Service determined that they did not relate to
the threat to the security of Canada specified in the warrant
and ordered those conversations erased from the tape.
This is an application pursuant to Rule 330 for an order
rescinding the warrant. The applicant submits: a) that the
warrant is invalid on its face because it fails to comply with
section 21 of the CSIS Act; b) that the warrant and its
authorizing statute are invalid on their face because they
violate the Charter guarantee against unreasonable search and
seizure; c) that the warrant may be invalid because the affida
vit filed in support thereof did not justify its issuance (which
raises the issue of the disclosure of a secret affidavit dealing
with national security).
Held, the application should be dismissed.
Because of the distinctly different legislative purposes, there
is, necessarily, a different focus to be applied when interpreting
"information-oriented" and "open-ended" domestic surveil
lance legislation as opposed to the focus to be given to the
application and interpretation of normal "result-oriented" and
"closed" law enforcement legislation such as the Criminal Code
of Canada. There was, therefore, no need for the issuing judge
to specify in writing that he was satisfied as to the matters
specified in paragraphs 21(2)(a) and (b). Nor was it necessary
to specify the alleged threat to which the warrant relates or to
limit more precisely the seizures of oral or written communica
tions or things to those which relate to the alleged threat. The
very nature of the investigation and the prevention of terrorism
necessitate a broad authority to intercept.
Solicitor-client confidentiality is not to be interfered with
lightly. Interference should be allowed only to the extent abso
lutely necessary in order to achieve the ends sought by the
enabling legislation. The detection and prevention of political
terrorism represents a compelling public interest entitled to
great weight when placed on the scale to be weighed against
possible curtailment of solicitor-client confidentiality. The con
ditions of the warrant in this regard represent a reasonable
balancing of the competing interests.
The warrant does not violate the guarantee against unreason
able search or seizure in section 8 of the Charter. The decision
of the Supreme Court of Canada in Hunter et al. v. Southam
Inc., setting out the principal requirements for a valid search or
seizure, is relied upon by the applicant. That same case,
however, adds that "where State security is involved ... the
relevant standard might well be a different one". Thus, the
requirements that the presiding judge be satisfied that there are
reasonable and probable grounds to believe that an offence has
been committed and that evidence of the offence will be found
at the place of the search do not apply herein. Nothing in the
CSIS Act requires evidence of the commission of an offence to
be before the Court when a section 21 warrant is issued since
the Act seeks not to react to events but rather advance warning
of security threats. Furthermore, the safeguards and procedures
set out in the Act satisfy the criteria of reasonableness required
under section 8 of the Charter.
The Crown cannot rely on sections 36.1 and 36.2 of the
Canada Evidence Act to oppose the disclosure of the supporting
affidavit based on injury to national security because it has
failed to raise the objection in the manner required by that Act.
Although, as a general rule, the applicant in a proceeding such
as this is entitled to disclosure of all documents in the Court
record, that right is not absolute. The judge has a discretion to
deny access to any Court document when, as in the present
case, it is warranted by special circumstances such as preserv
ing the Security Service's ability to investigate political terror
ism and to discharge its mandate in the interests of national
security.
CASES JUDICIALLY CONSIDERED
APPLIED:
The Eastman Photographic Materials Company Limited
v. The Comptroller-General of Patents, Designs, and
Trade Marks, [1898] A.C. 571 (H.L.); United States v.
United States District Court for the Eastern District of
Michigan, Southern Division et al., 32 L.Ed. (2d) 752
(U.S.S.C. 1972); Regina v. Finlay and Grellette (1985),
23 C.C.C. (3d) 48 (Ont. C.A.); Solosky v. The Queen,
[1980] 1 S.C.R. 821; 50 C.C.C. (2d) 495; Gold v. The
Queen, [1985] 1 F.C. 642; 4 C.P.C. (2d) 20 (T.D.),
affirmed [1986] 2 F.C. 129; 25 D.L.R. (4th) 285 (C.A.);
Kevork v. The Queen, [1984] 2 F.C. 753; 17 C.C.C. (3d)
426 (T.D.); R. v. Kevork, Balwin and Gharakhanian
(1986), 27 C.C.C. (3d) 523 (Ont. H.C.J.); Goguen v.
Gibson, [1983] 1 F.C. 872 (T.D.); affirmed [1983] 2 F.C.
463; (1984), 10 C.C.C. (3d) 492 (C.A.); Attorney Gener
al of Nova Scotia et al. v. Maclntyre, [1982] 1 S.C.R.
175; 65 C.C.C. (2d) 129; Cadieux v. Director of Moun
tain Institution, [1985] 1 F.C. 378; (1984), 9 Admin.
L.R. 50 (T.D.); Rice v. National Parole Board (1986),
16 Admin. L.R. 157 (F.C.T.D.).
DISTINGUISHED:
Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860;
70 C.C.C. (2d) 385; Hunter et al. v. Southam Inc.,
[1984] 2 S.C.R. 145; 14 C.C.C. (3d) 97; Volckmar v.
Krupp, [1958] O.W.N. 303 (Ont. H.C.J.); Bunker Ramo
Corp. v. TRW Inc., [1980] 2 F.C. 488; 47 C.P.R. (2d)
159 (T.D.).
CONSIDERED:
Regina v. Welsh and lanuzzi (No. 6) (1977), 32 C.C.C.
(2d) 363 (Ont. C.A.); Lyons et al. v. The Queen, [1984]
2 S.C.R. 633; 15 C.C.C. (3d) 417.
REFERRED TO:
Grabowski v. The Queen, [1985] 2 S.C.R. 434; 22 C.C.C.
(3d) 449; Wilson v. The Queen, [1983] 2 S.C.R. 594; 9
C.C.C. (3d) 97.
COUNSEL:
Michael Code and David Gibbons for
applicant.
John H. Sims, Q.C. and Douglas R. Wyatt
for respondent.
Alexander Budlovsky for Attorney General of
British Columbia.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
Attorney General of British Columbia for the
Province of British Columbia.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is an application pursuant to
Rule 330 of the Federal Court Rules [C.R.C., c.
663 (as am. by SOR/79-58, s. 1)] for an order
rescinding a warrant dated July 26, 1985, and
issued by me after an ex parte hearing in Federal
Court File CSIS 66-85 pursuant to the provisions
of section 21 of the Canadian Security Intelligence
Service Act, S.C. 1984, c. 21 (CSIS Act). Rule
330 provides:
Rule 330. The Court may rescind
(a) any order that was made ex parte, or
(b) any order that was made in the absence of a party who
had failed to appear through accident or mistake or by
reason of insufficient notice of the application;
but no such rescission will affect the validity or character of
anything done or not done before the rescinding order was
made except to the extent that the Court, in its discretion, by
rescission order expressly provides.
My jurisdiction to issue the impugned order is
derived from section 2 of the CSIS Act wherein
"judge" is defined as "a judge of the Federal
Court of Canada designated by the Chief Justice
thereof for the purposes of this Act;". On the date
of the issuance of the impugned order, I was and
continue to be, as of this date, a judge so desig
nated by the Chief Justice of this Court.
For a proper understanding of the issues raised
by this application, it will be helpful to recite
section 21 of the CSIS Act in its entirety. The
section reads:
21. (1) Where the Director or any employee designated by
the Minister for the purpose believes, on reasonable grounds,
that a warrant under this section is required to enable the
Service to investigate a threat to the security of Canada or to
perform its duties and functions under section 16, the Director
or employee may, after having obtained the approval of the
Minister, make an application in accordance with subsection
(2) to a judge for a warrant under this section.
(2) An application to a judge under subsection (1) shall be
made in writing and be accompanied by an affidavit of the
applicant deposing to the following matters, namely,
(a) the facts relied on to justify the belief, on reasonable
grounds, that a warrant under this section is required to
enable the Service to investigate a threat to the security of
Canada or to perform its duties and functions under section
16;
(b) that other investigative procedures have been tried and
have failed or why it appears that they are unlikely to
succeed, that the urgency of the matter is such that it would
be impractical to carry out the investigation using only other
investigative procedures or that without a warrant under this
section it is likely that information of importance with
respect to the threat to the security of Canada or the
performance of the duties and functions under section 16
referred to in paragraph (a) would not be obtained;
(c) the type of communication proposed to be intercepted,
the type of information, records, documents or things pro
posed to be obtained and the powers referred to in para
graphs (3)(a) to (c) proposed to be exercised for that
purpose;
(d) the identity of the person, if known, whose communica
tion is proposed to be intercepted or who has possession of
the information, record, document or thing proposed to be
obtained;
(e) the persons or classes of persons to whom the warrant is
proposed to be directed;
(/) a general description of the place where the warrant is
proposed to be executed, if a general description of that place
can be given;
(g) the period, not exceeding sixty days or one year, as the
case may be, for which the warrant is requested to be in force
that is applicable by virtue of subsection (5); and
(h) any previous application made in relation to a person
identified in the affidavit pursuant to paragraph (d), the date
on which such application was made, the name of the judge
to whom each such application was made and the decision of
the judge thereon.
(3) Notwithstanding any other law but subject to the Statis
tics Act, where the judge to whom an application under subsec
tion (1) is made is satisfied of the matters referred to in
paragraphs (2)(a) and (b) set out in the affidavit accompa
nying the application, the judge may issue a warrant authoriz
ing the persons to whom it is directed to intercept any com
munication or obtain any information, record, document or
thing and, for that purpose,
(a) to enter any place or open or obtain access to any thing;
(b) to search for, remove or return, or examine, take extracts
from or make copies of or record in any other manner the
information, record, document or thing; or
(c) to install, maintain or remove any thing.
(4) There shall be specified in a warrant issued under
subsection (3)
(a) the type of communication authorized to be intercepted,
the type of information, records, documents or things author
ized to be obtained and the powers referred to in paragraphs
(3)(a) to (c) authorized to be exercised for that purpose;
(b) the identity of the person, if known, whose communica
tion is to be intercepted or who has possession of the informa
tion, record, document or thing to be obtained;
(c) the persons or classes of persons to whom the warrant is
directed;
(d) a general description of the place where the warrant may
be executed, if a general description of that place can be
given;
(e) the period for which the warrant is in force; and
(J) such terms and conditions as the judge considers advis
able in the public interest.
(5) A warrant shall not be issued under subsection (3) for a
period exceeding
(a) sixty days where the warrant is issued to enable the
Service to investigate a threat to the security of Canada
within the meaning of paragraph (d) of the definition of that
expression in section 2; or
(b) one year in any other case.
It will be equally instructive, in my view, to set
out, in full, the contents of the warrant under
review. It reads as follows:
IN THE FEDERAL COURT OF CANADA
WARRANT PURSUANT TO SECTION 21 OF THE
CANADIAN SECURITY INTELLIGENCE SERVICE ACT
ISSUED AGAINST
Court No. CSIS 66-85
Harjit Singh ATWAL
UPON the ex parte application in writing of Archie M. BARR,
made pursuant to section 21 of the Canadian Security Intelli
gence Service Act, S.C. 1983-84, c. 21 for a warrant
thereunder;
WHEREAS the applicant is Archie M. BARR, an employee of
the Canadian Security Intelligence Service, designated for this
purpose by the Solicitor General of Canada pursuant to subsec
tion 21(1) of the Act who has consulted with the Deputy
Solicitor General and who has obtained the approval of the
Solicitor General of Canada for this purpose;
AND WHEREAS I have read the affidavit of the applicant and
considered all of the evidence submitted in support of said
application;
AND WHEREAS I am satisfied that a warrant under section
21 of the Canadian Security Intelligence Act is required to
enable the Canadian Security Intelligence Service to investigate
a threat to the security of Canada, namely:
activities within or relating to Canada directed toward or
in support of the threat or use of acts of serious violence
against persons or property for the purpose of achieving a
political objective within Canada or a foreign state,
which does not include lawful advocacy, protest or dissent,
unless carried on in conjunction with any of the activities
referred to above.
NOW THEREFORE I HEREBY AUTHORIZE THE DIRECTOR OF
THE CANADIAN SECURITY INTELLIGENCE SERVICE AND THE
EMPLOYEES ACTING UNDER HIS AUTHORITY OR ON HIS
BEHALF:
A. to intercept communications as hereinafter mentioned
namely:
the oral communications and telecommunications within
Canada addressed or destined to, received by, or originat
ing from Harjit Singh ATWAL, wherever he may be, or any
person at 12471 — 79A Avenue, Surrey, British Columbia,
or any other person at any other place in Canada which
Harjit Singh ATWAL may be using as a temporary or
permanent residence, whether stationary or mobile;
AND
for such purpose to enter:
a) the said premises at 12471 — 79A Avenue, Surrey, British
Columbia, or any other place in Canada which Harjit Singh
ATWAL may be using as a temporary or permanent residence,
whether stationary or mobile;
b) any vehicle used by Harjit Singh ATWAL;
c) any other place in Canada where the Service has reason
able grounds to believe Harjit Singh ATWAL will be present,
in order to install, maintain or remove any thing necessary to
effect the said interceptions,
AND
for such purpose:
d) to install, maintain, or remove any thing necessary to
effect, at the places described at A. above, the interception of
oral communications and telecommunications.
B. to search for, remove or return, or examine, take extracts
from or make copies of or record in any other manner:
recorded communications outside the course of post, within
Canada, addressed or destined to, received by or originating
from:
a) Harjit Singh ATWAL;
b) 12471 — 79A Avenue, Surrey, British Columbia,
AND
for such purpose to enter:
c) 12471 — 79A Avenue, Surrey, British Columbia, or any
other place in Canada which Harjit Singh ATWAL may be
using as a temporary or permanent residence, whether sta
tionary or mobile;
d) any vehicle used by Harjit Singh ATWAL:
d) sic any other place where the said Harjit Singh
ATWAL has been present and where the Service has reason
able grounds to suspect that recorded communications of
. Harjit Singh ATWAL may be found.
c. This warrant shall be valid for the period commencing on
the 26th day of July 1985 A.D. and expiring on the 25th day
of July 1986 A.D.
THE PRESENT WARRANT SHALL BE SUBJECT TO THE FOL
LOWING CONDITIONS:
CONDITION 1: Except for the purpose of determining
whether the communication is addressed or
destined to, received by, or originating from
Harjit Singh ATWAL no cognizance will be
taken of the contents of any oral communi
cation or telecommunication intercepted at
any place described in paragraph A.c)
through any thing installed for the purpose
of such interception. Where the person
charged with monitoring the intercepted
communication determines that the com
munication is not addressed or destined to,
received by, or originating from Harjit
Singh ATWAL, all recordings or transcrip
tions of same shall be forthwith erased or
destroyed, as the case may be, and the con
tents of same shall never in any manner be
further communicated to any person. If the
person charged with monitoring the inter
cepted communication determines that the
intercepted oral communication or telecom
munication is addressed or destined to,
received by, or originating from Harjit
Singh ATWAL, it shall be subject to intercep
tion pursuant to the authority conferred by
this warrant.
CONDITION 2: It is a condition of this warrant that no
private oral communication, telecommunica
tion or recorded communication may be
intercepted pursuant hereto at the office or
residence of a solicitor or any other place
ordinarily used by a solicitor and by other
solicitors for the purpose of consultation
with clients.
CONDITION 3: It is a further condition of this warrant that
an oral communication, telecommunication
or recorded communication between Harjit
Singh ATWAL and a solicitor or the solici
tor's employee may be intercepted initially
only to enable the Director or a Regional
Director General of the Canadian Security
Intelligence Service to determine whether
that communication relates to the threat to
the security of Canada as hereinbefore
specified in this warrant. If the Director or
the Regional Director General determines
that the communication does not so relate,
all records of the communication shall be
destroyed and no further disclosure thereof
shall be made. If the Director or the Region
al Director General determines that the
communication does so relate, it shall be
subject to interception pursuant to the au
thority conferred by this warrant. Where
necesssary to the making of his determina
tion, the Director or the Regional Director
General may authorize the translation of the
communication that is the subject of this
condition. Where that occurs, the translator
shall disclose the contents of the communi
cation only to the Director or the Regional
Director General.
The applicant herein was, on September 10,
1986, charged along with eight other individuals
with conspiracy to commit the murder of one
Malkait Singh Sidhu, contrary to the provisions of
subparagraph 423(1)(a) of the Criminal Code
[R.S.C. 1970, c. C-34 (as am. by S.C. 1985, c. 19,
s. 62)]. The time frame of the alleged conspiracy
as set out in the preferred Indictment is said to be
between May 14 and May 25, 1986. The applicant
has been denied bail on this charge and is current
ly awaiting trial which is expected to take place in
May or June of 1987. Since the alleged conspiracy
is said to have taken place at various places in the
Province of British Columbia, the trial will take
place in that province.
Crown counsel for the Attorney General of Brit-
ish Columbia having carriage of the prosecution of
the applicant and his eight alleged co-conspirators
proposes to introduce into evidence at trial certain
tapes and transcripts of telecommunications inter
cepted pursuant to the warrant issued by me on
July 26, 1985. These telecommunications were
said to be originally intercepted by the Canadian
Intelligence Security Service (the Service) in the
period May 17, 1986 to May 26, 1986 inclusive. It
is stated, on behalf of Crown counsel, that at the
conspiracy trial, the Crown will rely on no other
information or intelligence obtained pursuant to
subject warrant. Specifically, it is said that the
Crown will not tender any physical evidence
authorized under paragraph B of the warrant
herein impugned (paragraph B of the warrant
authorizes the Service to search for, remove or
return, or examine, take extracts from or make
copies of or record in any other manner certain
recorded communications pertaining to the appli
cant) since the Service did not utilize the powers
granted to it pursuant to paragraph B. The Crown
advises further that all of the telecommunications
proposed to be tendered in evidence at the conspir
acy trial were intercepted by the Service on two
telephone lines located at the applicant's residence
at 12471 — 79A Avenue in Surrey, British
Columbia. The wiretaps in question were effected
at and on the property of B.C. Telephone Com
pany and did not require entry into the residence
of the applicant or into any other residence or
place of business or any vehicle. It appears that the
Service, during the period May 17, 1986 to May
26, 1986, intercepted only two telephone calls
involving a solicitor. The evidence establishes that
both of these calls were dealt with in accordance
with Condition III of subject warrant. The
Regional Director General of the Service for Brit-
ish Columbia personally listened to each of these
calls, only once. In each case, he determined that
the communication in question did not relate to
the threat to the security of Canada specified in
the Atwal warrant. Accordingly, he ordered that
the portion of the tape containing the communica
tions with a solicitor be erased. This was done. No
one other than the Regional Director General
listened to the two solicitor conversations in ques
tion. Furthermore, the content of those two tele
phone calls was not disclosed either to the police or
to Crown counsel.
On the motion to rescind, counsel attacked the
validity of the warrant in issue on a threefold
basis:
(a) subject warrant is invalid on its face because
it fails to comply with, the statutory power that
authorized its issuance, namely section 21 of the
CSIS Act;
(b) in the alternative, assuming compliance with
section 21, the impugned warrant and its authoriz
ing statute are invalid on their face, in the sense
that they fail to comply with the minimum consti
tutional standards for a reasonable search and
seizure pursuant to section 8 of the Charter
[Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)]; and
(c) in the further alternative, subject warrant
may be invalid upon a sub-facial examination in
the sense that the sworn affidavit filed in support
of the application for the warrant did not justify its
issuance. Counsel concedes that this ground of
review cannot be argued without production of the
CSIS officer's affidavit sworn in support of the
warrant and, in this connection, seeks an order
producing the said affidavit, subject to the "editing
of any privileged contents in the affidavit."
(A) NON-COMPLIANCE WITH THE AUTHORIZING
STATUTE
The applicant asserts non-compliance on a four
fold basis:
(i) failure to meet the two statutory precondi
tions said to be specified in subsection 21(3) of the
CSIS Act;
(ii) failure to specify the alleged "threat" to
which the warrant relates;
(iii) failure to relate the seizures to those things
which relate to the alleged threat; and
(iv) the authorization in the warrant violates the
solicitor-client privilege.
I propose now to deal with these submissions
seriatim:
(A) (i) Subsection 21(3) of the CSIS Act
In the submission of counsel for the applicant,
subsection 21(3) of the statute requires the issuing
judge to be "satisfied" of the matters referred to in
paragraphs (2)(a) and (2)(b) of section 21 before
a warrant can issue. In his view, those paragraphs
provide the only two statutory preconditions to the
issuance of a section 21 warrant. After observing
that the two statutory conditions in the impugned
warrant resemble, but have important differences
from the statutory preconditions for the issuance
of Criminal Code search warrants under para
graph 443(1)(b) [as am. by S.C. 1985, c. 19, s. 69]
and wiretap authorizations under section 178.13
[as added by S.C. 1973-74, c. 50, s. 2; 1976-77, c.
53, s. 9], counsel nevertheless relies on jurispru
dence under those sections of the Criminal Code to
support his proposition that the impugned warrant
must show, on its face, that the issuing judge was
satisfied as to the matters specified in both para
graphs (2)(a) and (2)(b) of section 21. Put
another way, the applicant submits that the war
rant does not comply with section 21. It is invalid
because the warrant fails to specify, in writing,
that the issuing judge did, in fact, have a justified
belief that reasonable grounds existed for the
granting of the warrant and because the warrant
fails to set out in writing that other investigative
procedures had been tried and had failed or were
unlikely to succeed.
I reject this submission for a number of reasons.
First of all, it should be observed that subsection
(4) of section 21 supra, lists the matters which
must be specifically included in the warrant.
Nowhere in that subsection is there any require
ment for the inclusion in the warrant of a specific
declaration by the issuing judge of his satisfaction
that the paragraphs 21(2)(a) and (b) precondi
tions have been met. Secondly, paragraph (4) of
the recitals states that I, as issuing judge, was
"satisfied that a warrant under section 21 ... is
required to enable ... the Service ... to investigate
a threat to the security of Canada." Since para
graphs 21(2)(a) and (b) are an integral part of
section 21 of the Act, surely it is unnecessary and
redundant to require a specific averment with
respect to those provisions. A judge issuing a war
rant under the CSIS Act is required to be satisfied
of many things before the warrant can be issued.
For example, subsection (2) of section 21 has eight
different paragraphs which detail the different
requirements which must be contained in the
affidavit filed in support of the warrant applica
tion. In my view, the supporting affidavit, in this
case, meets each and every one of those require
ments. It also meets the other requirements of the
statute.' For facial validity, the issuing judge
should not be required to specify with particulari
ty, his satisfaction with a specific requirement or
requirements of the statute. In my view, surely it
can be presumed that when the issuing judge
declares that he is issuing a warrant under the
authorizing section of a statute, he is satisfied that
there has been a full compliance with the appli
cable provisions of that statute. In the case at bar,
the supporting affidavit containing more than
eleven typewritten pages, set out the basis for the
application in considerable detail and satisfied me
that the warrant asked for was necessary for the
purposes specified therein and that it fully com
plied with the relevant requirements of the statute.
Finally, I do not find counsel's references to and
reliance upon decisions relating to provisions in the
Criminal Code particularly helpful or persuasive.
In my view, criminal law jurisprudence is not the
appropriate jurisprudence to be applied under the
CSIS Act. The authorities establish that a Court is
entitled to refer to particular species of extrinsic
evidence when interpreting legislation for the sole
purpose of determining the mischief or defect
which the Act being construed was intended to
remedy. 2 Included in such permitted species are
Parliamentary Committee Reports, Royal Com
mission or Public Inquiry Reports together with
the legislative history of a particular statute.' As
pointed out by counsel for the Attorney General of
Canada, four Commissions of Inquiry had investi
gated various aspects of hostile intelligence activi
ties and other threats in Canada prior to the
enactment of the CSIS Act: The Taschereau-Kel-
lock Commission, the Wells Commission, the
Mackenzie Commission and the McDonald Com
mission. Furthermore, the Report of the Special
Committee of the Senate on the Canadian Secu
rity Intelligence Service (the Pitfield Report)
examined carefully the provisions of Bill C-157,
' For example, and inter alia: the requirement in subsection
21(1) for prior approval by the Solicitor General and the
requirement in paragraph 7(1)(b) for consultation with the
Deputy Solicitor General in respect of every application for a
warrant under section 21.
2 The Eastman Photographic Materials Company Limited v.
The Comptroller-General of Patents, Designs, and Trade
Marks, [ 1898] A.C. 571 (H.L.), at p. 573, per Halsbury L.C.
' See: Driedger (E.A.), Construction of Statutes, (2d)
(1983), at pp. 153-154 and 159-161.
the forerunner to the CSIS Act. That Report is
dated November of 1983 and articulates with
clarity and precision the fundamental differences
between a system established for enforcement of
the law, and a system established for the protec
tion of security. At pages 5 and 6, that Report
states:
There are similarities between such systems, and a distinct area
of overlap in which the interests of a police force in certain
crimes against the state, or against particular individuals, are
identical to the interests of a security intelligence agency.
14 But the differences are considerable. Law enforcement is
essentially reactive. While there is an element of information-
gathering and prevention in law enforcement, on the whole it
takes place after the commission of a distinct criminal offence.
The protection of security relies less on reaction to events; it
seeks advance warning of security threats, and is not necessari
ly concerned with breaches of the law. Considerable publicity
accompanies and is an essential part of the enforcement of the
law. Security intelligence work requires secrecy. Law enforce
ment is "result-oriented", emphasizing apprehension and
adjudication, and the players in the system—police, prosecu
tors, defence counsel, and the judiciary—operate with a high
degree of autonomy. Security intelligence is, in contrast, "infor-
mation-oriented". Participants have a much less clearly defined
role, and direction and control within a hierarchical structure
are vital. Finally, law enforcement is a virtually "closed"
system with finite limits—commission, detection, apprehension,
adjudication. Security intelligence operations are much more
open-ended. The emphasis is on investigation, analysis, and the
formulation of intelligence.
Another concise statement of the fundamental dif
ference between police investigations and intelli
gence gathering is to be found in the Keith case, a
decision of the U.S. Supreme Court. 4 Mr. Justice
Powell, in delivering the opinion of the Court said:
We recognize that domestic security surveillance may involve
different policy and practical considerations from the surveil
lance of "ordinary crime". The gathering of security intelli
gence is often long range and involves the interrelation of
various sources and types of information. The exact targets of
such surveillance may be more difficult to identify than in
surveillance operations against many types of crime specified in
4 United States v. United States District Court for the East
ern District of Michigan, Southern Division et al., 32 L.Ed.
(2d) 752 (1972), at p. 769.
Title III. Often, too the emphasis of domestic intelligence
gathering is on the prevention of unlawful activity or the
enhancement of the unlawful activity or the enhancement of
the government's preparedness for some possible future crisis or
emergency. Thus, the focus of domestic surveillance may be
less precise than that directed against the more conventional
types of crime.
Because of the distinctly different legislative pur
poses, there is, necessarily, a different focus to be
applied when interpreting domestic surveillance
legislation in contradistinction to the focus to be
given to the application and interpretation of
normal law enforcement legislation such as the
Criminal Code of Canada. The McDonald Com
mission which provided much of the impetus for
the enactment of the CSIS Act comments exten
sively on political violence and terrorism. 5 At
pages 435 and 436, it is stated:
26. The democratic process in Canada requires that political
objectives be pursued through public discussions, legislative
debate and lawful representation of interests. The democratic
process is jeopardized when groups or individuals attempt to
gain their political objective by threatening to carry out acts of
serious violence or actually carrying out such acts ... the
protection of the democratic process should be the central
purpose of Canada's security arrangements. Thus, we believe
that Canada's security intelligence agency should be empow
ered to provide intelligence about any activities of an individual
or group which involve the threat or use of serious violence
against persons or property for the purpose of accomplishing
political objectives.
27. For more than a decade the most prominent form which
this threat to security has taken is terrorism. The political
fanaticism and frustration which engender terrorism are not,
unfortunately, likely to disappear in the foreseeable future ...
the kind of terrorist acts which should be of concern to the
security intelligence agency are those which have political
objectives ....
28. The security of Canada requires the detection of activities
of persons who belong to or support terrorist groups before
there is evidence which would support a criminal prosecution.
Recent experience with terrorist groups has shown that their
success has often depended on their ability to maintain their
cover and security while operating in a modern community ....
30. The security agency's mandate should provide for the
collection of intelligence about the activities of terrorists in
Canada (including activities in preparation for and in support
of terrorist acts) whether such activities are directed against
Canadians or Canadian governments or against foreigners or
5 McDonald Commission [Commission of Inquiry Concern
ing Certain Activities of the Royal Canadian Mounted Police],
Second Report, August 1981, Vol. 1, at pp. 435 and 436.
foreign governments. In an era which has witnessed a startling
expansion of international terrorism, Canada must not become
a haven for those planning to use the methods of terrorism to
gain their political ends in other countries.
Accordingly, I must respectfully decline the
invitation of counsel for the applicant to apply the
Criminal Code jurisprudence to a warrant issued
under the CSIS Act. In my opinion, Parliament, in
passing the CSIS Act, was enacting a comprehen
sive code for dealing with the threats to the secu
rity of Canada as therein defined. Accordingly I
think that the validity of a section 21 warrant must
be determined in the context of the requirements
set out in the CSIS Act and not by analogy to any
other legislation which has a completely different
objective and raison d'être. Since, in my view, the
requirements of the CSIS Act have been met, I do
not find any merit in this submission.
(A) (ii) Failure to specify the alleged "threat" to
which the warrant relates
In order for a proper appreciation of this sub
mission, it is necessary, in my view, to set out the
definition of "threats to the security of Canada" as
enumerated in section 2 of the CSIS Act. That
definition reads:
2....
"threats to the security of Canada" means
(a) espionage or sabotage that is against Canada or is
detrimental to the interests of Canada or activities directed
toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to
Canada that are detrimental to the interests of Canada
and are clandestine or deceptive or involve a threat to any
person,
(c) activities within or relating to Canada directed toward
or in support of the threat or use of acts of serious violence
against persons or property for the purpose of achieving a
political objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert
unlawful acts, or directed toward or intended ultimately to
lead to the destruction or overthrow by violence of, the
constitutionally established system of government in
Canada,
but does not include lawful advocacy, protest or dissent, unless
carried on in conjunction with any of the activities referred to
in paragraphs (a) to (d).
Counsel for the applicant submits that the
impugned warrant fails to specify the alleged
threat to which the warrant relates and that this
"defect" is fatal to the warrant's validity. Here
again, in this submission, the applicant relies on
the law of search and seizure under the Criminal
Code which requires the offence to be specifically
set out in the warrant. It is said that a warrant
such as this which simply recites one of the section
2 definitions of "threats to the security of Cana-
da," is so broad in its description of the alleged
"threat", that, effectively, it confers upon the Ser
vice carte blanche with no judicial control. In
counsel's submission, the Courts have routinely
struck down warrants phrased so broadly under
the provisions of the Criminal Code.
I do not agree with this submission. For the
reasons expressed earlier herein under A(i) supra,
I have the view that the validity of a CSIS warrant
should not be determined by criminal law stand
ards. It is more appropriate, in my view, to look to
the CSIS statute itself to ascertain whether this
ground of attack can be sustained. There is no
requirement therein that the "threat to the secu
rity of Canada" be described with any more
specificity than the subject warrant which identi
fies paragraph (c) of section 2 as the "threat"
being investigated. As noted supra, subsection
21(4) specifies the mandatory requirements of a
warrant issued under subsection 21(3). Further
specificity with respect to the "threat" is not
included in that mandatory list. When it is remem
bered that the Service is geared to detection and
prevention as opposed to after the fact apprehen
sion, it becomes apparent that it would be impos
sible to be any more specific in description. I
suppose the Service, at the point in time when it is
applying for a warrant under section 21 might be
able to describe the activity sought to be moni
tored as "acts of terrorism" or "acts against Cana-
da" but such descriptions are even less specific
than the four definitions contained in section 2 of
the CSIS Act. Bearing in mind that security intel
ligence work is often a long range and continuous
activity embracing various kinds and sources of
information, it follows, in my view, that the focus
of security intelligence activities is necessarily less
precise than surveillance under the Criminal Code.
It is for these reasons, in my opinion, that Parlia-
ment has deliberately left the definition of
"threats" general and has not provided for more
particularity in the mandatory requirements of the
warrant.
Counsel for the Attorney General of Canada
pointed out that notwithstanding the provisions of
paragraph 178.13(2)(a) of the Criminal Code
requiring the issuing judge to state the offence in
respect of which private communications may be
intercepted, the practice under that section has
been similar to the description set out in the
warrant here under review. Counsel referred to the
case of Regina v. Welsh and Ianuzzi (No. 6)
(1977), 32 C.C.C. (2d) 363 (Ont. C.A.), at page
366, where the description of the offence reads
"(a) engaging in bookmaking, contrary to section
186(1)(e) of the Criminal Code of Canada;".
Similary, in another case in the Ontario Court of
Appeal Regina v. Finlay and Grellette ( 1985), 23
C.C.C. (3d) 48, at page 52, the first offence
described was "(a) conspiracy to import narcotics
contrary to Section 423(1)(d) of the Criminal
Code;". In both of these cases, other offences were
particularized in like manner. Counsel summarizes
his submission as follows:
... in stating the offence in respect of which private communi
cations may be intercepted, wiretap authorizations routinely
track the language of the Code citing the applicable section of
the Criminal Code, which is the very practice that the applicant
condemns in the case at bar.
For all of these reasons, then, I would reject this
submission.
(A) (iii) Failure to relate the seizures to those
things which relate to the alleged threat
Counsel for the applicant attacks subject war
rant on the basis that it fails to limit the seizures
of oral or written communications or things to
those which relate to the alleged threat. In his
submission, the warrant is so broad that it com
pletely ignores the regime of judicial control
envisaged by section 21. More specifically he sub
mits that the language of the warrant does not
specify "the type of communication authorized to
be intercepted" or "the type of information to be
obtained" in any meaningful way. Accordingly, in
his view, subject warrant is so general as to be
invalid.
To assess the validity of these submissions, it is
necessary, in my opinion, to examine subject war
rant in the light of the requirements of subsection
21(4) of the Act. Paragraph (a) of subsection
21(4) requires that the type of communication
authorized to be intercepted be specified. Clause A
of the warrant specifies that "the oral communica
tions and telecommunications within Canada" of
the target, the applicant herein, are authorized to
be intercepted. As pointed out by counsel for the
Attorney General of Canada, the language in the
warrant at bar is almost identical to that used in
the wiretap authorizations in the Courts. 6 Further
more, Condition I of the warrant at bar provides
additional protection to the privacy of uninvolved
third parties. In my view, Condition I is not
required pursuant to the provisions of the CSIS
Act nor is it to be found in the Canadian jurispru
dence referred to supra. Nevertheless, it was
added as additional protection for innocent third
parties.
When it is considered that the gathering of
security intelligence is usually an activity of
lengthy duration involving many different kinds
and sources of information and that there is dif
ficulty in identifying surveillance targets, the
broad language used in subsection (4) of section
21 is •understandable and justifiable, in my view.
For example, paragraph 21(4) (b) specifies the
identity of the target, "if known". Paragraph
21(4)(d) requires a general description of the
place where the warrant may be executed, "if a
general description of that place can be given;".
The threat with respect to which the subject war
rant was issued relates to political violence and
terrorism. The McDonald Commission found that
for the last decade, the most prominent threat to
security in Canada was terrorism. It also conclud
ed that Canada's security required the detection of
activities of persons who belong to or support
terrorist groups which may be largely active prior
to the commission of any criminal offence. On this
6 See for example: Regina v. Finlay and Grellette, supra, at
p. 53; Regina v. Welsh and lanuzzi (No. 6), supra, at p. 366;
Lyons et al. v. The Queen, [1984] 2 S.C.R. 633, at pp. 645-646;
15 C.C.C. (3d) 417, at p. 427, per Estey J.
basis, the interception of communications to and
from a target must, of necessity, be devoid of
much specificity. The very nature of the investiga
tion and prevention of terrorism necessitates a
broad authority to intercept. In my view, the lan
guage used in clause A complies with all of the
provisions of subsection 21(4) on a fair construc
tion of the language used therein. The types of
communication are identified as required by para
graph (a). The identity of the target is disclosed as
required by paragraph (b) and a general descrip
tion of the places where the warrant may be
executed are given as required by paragraph (d).
The warrant also complies with the requirements
of paragraphs (c),(e) and (f). Turning to clause B,
I have concluded that, for the reasons expressed
supra, with respect to clause A, it meets the
requirements of subsection 21(4).
Counsel for the Attorney General of Canada, in
his factum, submits that any attack on the validity
of clause B of the warrant is moot and academic
because none of the powers authorized under
clause B were exercised in this case. I have dif
ficulty with this submission because I doubt that
the facial validity of the warrant will depend on
the extent to which the powers granted therein are
exercised. In any event, since, in my view, for the
reasons expressed supra, both clauses A and B of
subject warrant are valid, it is unnecessary to sever
any portion of the warrant although this appears
to be permissible pursuant to the recent decision of
the Supreme Court of Canada in the Grabowski
case.'
(A) (iv) Solicitor-Client Communications
Counsel for the applicant submits that the
impugned warrant violates the solicitor-client
privilege by allowing and authorizing the seizure
of such privileged oral and written communica
tions. In his view, there is no provision in the CSIS
Act which permits an interception of a target's
lawful consultation with his solicitor. Accordingly,
it is said, the common law prevails and protects
such conversations from intrusion. Counsel relies
on the decision of the Supreme Court of Canada in
' Grabowski v. The Queen, [1985] 2 S.C.R. 434, at p. 453;
22 C.C.C. (3d) 449, at p. 463.
the case of Descôteaux. 8 That was a case involving
a search warrant under section 443 of the Crimi
nal Code. At pages 875 S.C.R.; 400 C.C.C., Mr.
Justice Lamer enumerates four rules which deal
with the issue of when and to what extent solicitor-
client communications should be protected. Those
rules read as follows:
1. The confidentiality of communications between solicitor and
client may be raised in any circumstances where such com
munications are likely to be disclosed without the client's
consent.
2. Unless the law provides otherwise, when and to the extent
that the legitimate exercise of a right would interfere with
another person's right to have his communications with his
lawyer kept confidential, the resulting conflict should be
resolved in favour of protecting the confidentiality.
3. When the law gives someone the authority to do something
which, in the circumstances of the case, might interfere with
that confidentiality, the decision to do so and the choice of
means exercising that authority should be determined with a
view to not interfering with it except to the extent absolutely
necessary in order to achieve the ends sought by the enabling
legislation.
4. Acts providing otherwise in situations under paragraph 2 and
enabling legislation referred to in paragraph 3 must be
interpreted restrictively.
The applicant relies on rule No. 2 as set out by
Lamer J. supra. However, in my view, rule No. 2
has no application to warrants under the CSIS Act
because of the provisions of subsection 21(3) of
that Act which commences with the words "Not-
withstanding any other law but subject to the
Statistics Act". In my opinion, it is clear from
these words of paramountcy that Parliament
intended that all other laws of Canada, be they
statutory or common law, are to be read as being
subject to the powers conferred upon a judge
under that section to issue a warrant. Because of
this paramountcy, therefore, it is doubtful that the
provisions of the Criminal Code and decisions
pursuant thereto would have any application in the
8 Descôteaux et al. v. Mierzwinski, [1982] 1 S.C.R. 860; 70
C.C.C. (2d) 385.
case at bar. 9 However, assuming the applicability
of the Descôteaux tests, it seems to me that the
relevant test for our purposes would be the third
test which introduces the concept that where, as
here, the Service is authorized to interfere with
solicitor-client confidentiality, that interference
should be allowed only "to the extent absolutely
necessary in order to achieve the ends sought by
the enabling legislation."
The issue then is whether the impugned warrant
satisfies the test of proportionality. Conditions II
and III relate to solicitor-client confidentiality. As
noted by counsel for the Attorney General of
Canada, Condition II herein has some similarities
to the terminology employed by subsection
178.13 (1.1) of the Code. However, that subsection,
as noted by counsel for the applicant, is more
restrictive since the authority to intercept covers
only situations where the applicant is satisfied, on
reasonable grounds, that a solicitor, his employee,
or member of the solicitor's household "has been
or is about to become a party to an offence."
Accordingly, therefore, Condition II when taken
by itself, would represent a lower level of protec
tion for solicitor-client confidentiality than the
standard prescribed in the Criminal Code. How
ever, Condition II does not stand alone. It is
accompanied by Condition III. This Condition
does not appear in any of the warrants in the
decisions under the Criminal Code to which I was
referred. Accordingly, I think that the addition of
Condition III enhances considerably the protection
of solicitor-client confidentiality. In this regard, I
consider the decision of the Supreme Court of
Canada in the case of Solosky v. The Queen 10 to
be instructive. That case involved the interception
of correspondence between an inmate of a federal
penitentiary and his solicitor. The interception and
opening of the inmate's mail was authorized under
9 When drawing analogies between the provisions of the
Criminal Code and the CSIS Act relative to the interception of
communications, the provisions of section 26 of the CSIS Act
should also be kept in mind. That section reads: "Part IV.I of
the Criminal Code does not apply in relation to any intercep
tion of a communication under the authority of a warrant
issued under section 21 or in relation to any communication so
intercepted."
10 [1980] 1 S.C.R. 821; 50 C.C.C. (2d) 495.
certain Regulations made pursuant to the Peniten
tiary Act [R.S.C. 1970, c. P-6]. The rationale of
this action was said to be for "the reformation and
rehabilitation of inmates or the security of the
institution." Dickson J. (as he then was) in deliver
ing the majority judgment of the Court said (at
pages 837-838 S.C.R.; 509 C.C.C.):
The complication in this case flows from the unique position
of the inmate. His mail is opened and read, not with a view to
its use in a proceeding, but by reason of the exigencies of
institutional security. All of this occurs within prison walls and
far from a court or quasi-judicial tribunal. It is difficult to see
how the privilege can be engaged, unless one wishes totally to
transform the privilege into a rule of property, bereft of an
evidentiary basis.
And at pages 840 S.C.R.; 511 C.C.C.:
The result, as I see it, is that the Court is placed in the
position of having to balance the public interest in maintaining
the safety and security of a penal institution, its staff and its
inmates, with the interest represented by insulating the solici-
tor-client relationship. Even giving full recognition to the right
of an inmate to correspond freely with his legal adviser, and the
need for minimum derogation therefrom, the scale must ulti
mately come down in favour of the public interest. But the
interference must be no greater than is essential to the mainte
nance of security and the rehabilitation of the inmate.
The learned Justice then directed himself to a
consideration of the kind of mechanism which
would provide the kind of balance which is neces
sary in the circumstances. At pages 841-842
S.C.R.; 512 C.C.C., he set out the following sug
gested procedure:
(i) the contents of an envelope may be inspected for contra
band; (ii) in limited circumstances, the communication may be
read to ensure that it, in fact, contains a confidential communi
cation between solicitor and client written for the purpose of
seeking or giving legal advice; (iii) the letter should only be
read if there are reasonable and probable grounds for believing
the contrary, and then only to the extent necessary to determine
the bona fides of the communication; (iv) the authorized
penitentiary official who examines the envelope, upon ascer
taining that the envelope, contains nothing in breach of secu
rity, is under a duty at law to maintain the confidentiality of
the communication.
Counsel for the Attorney General of British
Columbia notes that Condition III in the warrant
at bar is "remarkably similar" to the directions
given by Dickson C.J. in Solosky, supra. This
similarity is not coincidental. Condition III was an
attempt to comply with the mechanism suggested
by the learned Chief Justice in the Solosky case.
In the case at bar, the competing interests are
the public interest in, inter alia, the detection and
prevention of political terrorism in Canada and the
collection of intelligence concerning the activities
of terrorists in Canada whether such activities are
directed against Canadians, Canadian Govern
ments, foreigners or foreign Governments on the
one hand and the interest involved in protecting
the solicitor-client relationship on the other hand.
The affidavit filed in support of the warrant
issued satisfied me, when filed, and continues to
satisfy me, that the deponent thereof believed, on
reasonable grounds, which were expressed in con
siderable detail, that a warrant under section 21
was required to enable the Service to investigate
the threat to the security of Canada which is
particularized in paragraph 2(c) of the CSIS Act.
Condition III allows a senior official of CSIS to
intercept, inter alia, an oral communication, for
the sole purpose of determining whether that com
munication relates to the threat to the security of
Canada specified in the warrant. If it is deter
mined that the communication does not so relate,
all records of the communication must be
destroyed and no further disclosure thereof shall
be made. If it is determined that the intercepted
communication does relate to the security threat
being investigated, then it shall be subject to inter
ception pursuant to the authority conferred by the
warrant. As noted supra, of all the tapes and
transcripts of telecommunications in issue, only
two telephone calls involve a solicitor. The condi
tions specified in Condition III were followed and
in each case it was determined that neither com
munication related to the security threat specified
in the warrant in issue. Accordingly, and pursuant
to Condition III, the portion of the tape containing
the communications with a solicitor were erased.
Only the authorized CSIS officer listened to the
two solicitor conversations and the contents there
of were not disclosed either to the police or to
Crown counsel (see affidavit of Daniel Patrick
Murphy sworn March 24, 1987).
In my view, Conditions II and III represent a
reasonable balancing of the competing interests
which are present in this case. That Condition III
was carried out as intended and resulted in a
minimal abrogation of the solicitor-client privilege
may be some indication that the compromise
arrived at was a reasonable one. It follows closely
upon the mechanism suggested by Chief Justice
Dickson. The detection and prevention of political
terrorism represents a compelling public interest
entitled to great weight when placed on the scale
to be weighed against possible curtailment of
solicitor-client confidentiality.
Counsel for the applicant, in his reply, at the
oral hearing before me, noted that both the
Descôteaux case and the Solosky case were pre-
Charter cases. However, I agree with counsel for
the Attorney General of British Columbia that the
decision of the Ontario Court of Appeal in R. v.
Finlay and Grellette, supra, is persuasive author
ity for the view that the Charter has not altered
the law relating to solicitor-client communications.
In that case, Part IV. I of the Code which contains
subsection 178.13 (1.1) was held to be constitution
al. While Condition II in the warrant at bar may
afford less protection than subsection 178.13(1.1),
Condition III, for the reasons expressed supra,
affords considerably more protection for the solici-
tor-client privilege. I thus conclude that the advent
of the Charter has not affected the relevance of the
jurisprudence relied upon in this case to support
the validity of subject warrant from the perspec
tive of solicitor-client confidentiality.
(s) UNREASONABLE SEARCH AND SEIZURE—SEC-
TION 8 OF THE CHARTER
The applicant submits that the warrant at bar
violates section 8 of the Charter." Section 21 of
the CSIS Act is deficient and thus contrary to
section 8 of the Charter because it does not require
the presiding judge to be satisfied that:
" Section 8 reads: "Everyone has the right to be secure
against unreasonable search or seizure."
(i) there are reasonable and probable grounds to believe that an
offence has been committed; and
(ii) there are reasonable and probable grounds to believe that
evidence of the offence will be found at the place of the search.
This submission is based, principally, on the deci
sion of the Supreme Court of Canada in Hunter et
al. v. Southam Inc. 12 In the view of applicant's
counsel, that case sets out four principal require
ments for a valid section 8 search or seizure:
(a) prior authorization for the search or seizure, where feasible;
(b) the determination as to whether or not to grant the prior
authorization is to be made by a judge, or at the minimum, an
individual capable of acting judicially;
(c) the determination must be based on sworn evidence; and
(d) "the objective standard on which the determination is to be
based must include reasonable and probable grounds to believe
that evidence of the offence is to be found at the place of the
search." 13
Counsel for the applicant concedes that section 21
of the CSIS Act clearly complies with require
ments (a), (b) and (c) supra. His submission
relates exclusively to paragraph (d) supra.
Counsel for the Attorney General of Canada
agrees that electronic surveillance authorized
under the CSIS Act constitutes a "search or sei
zure" within the meaning of section 8 of the
Charter. However, it is his submission that section
21 of the CSIS Act is in conformity with section 8.
Counsel for the Attorney General of British
Columbia, while not agreeing that section 8 of the
Charter protects the right to privacy in respect of
intercepted communications, submits that, never
theless, Part II of the CSIS Act is still in compli
ance with section 8. Additionally, he makes the
following submission:
Without conceding, even for a moment, that the CSIS Act
may, in any way offend any of the rights and freedoms protect
ed by the Charter, it is submitted that in any event section 1 of
the Charter would uphold it. One cannot help but to conclude
that in the name of national security, the protection of which is
so clearly in the interest of any free and democratic society, the
object of the CSIS Act is such as to be of sufficient importance
to warrant overriding a constitutionally protected right or
12 [1984] 2 S.C.R. 145; 14 C.C.C. (3d) 97.
13 See applicant's Factum—p. 20, para. 25(d).
freedom; also, it is submitted, the means chosen—that is via a
judicially authorized warrant—are reasonable and demonstra
bly justified. 14
The seminal decision by the Supreme Court of
Canada in respect of section 8 is, of course, the
Southam case supra. In that case the Director of
Investigation and Research under the Combines
Investigation Act [R.S.C. 1970, c. C-23] was
investigating alleged offences by Southam under
that Act. He had issued a certificate authorizing
entry into premises occupied by Southam pursuant
to authority given to him under the Act. The issue
before the Court was whether the legislative provi
sions upon which the certificate was based were
invalid because they were contrary to section 8 of
the Charter. However, for our purposes, the gener
al principles enunciated by the Court relative to
the scope to be given to the section 8 rights are
more important than the specific disposition of the
case itself. The reasons for judgment of the Court
were given by Dickson J. (as he then was). At
pages 159-160 S.C.R.; 108 C.C.C., he stated:
The guarantee of security from unreasonable search and sei
zure only protects a reasonable expectation. This limitation on
the right guaranteed by s. 8, whether it is expressed negatively
as freedom from "unreasonable" search and seizure, or posi
tively as an entitlement to a "reasonable" expectation of priva
cy, indicates that an assessment must be made as to whether in
a particular situation the public's interest in being left alone by
government give way to the government's interest in intruding
on the individual's privacy in order to advance its goals, notably
those of law enforcement.
And then at pages 168 S.C.R.; 115 C.C.C., he
said:
Where the state's interest is not simply law enforcement as, for
instance, where state security is involved ... the relevant
standard might well be a different one.
The case at bar and the statute herein being
considered do involve state security. Hence, the
above quoted dictum is particularly apposite in the
present case.
14 See: Written Submissions of Counsel for the Attorney
General of British Columbia, para. 53, p. 26.
As noted earlier herein, it is clear from the
legislative history of the CSIS Act that Parlia
ment, in enacting that Act, empowered the Service
to investigate threats to Canada's security for the
purpose of preserving its democratic institutions
and processes and with the further objective of
maintaining Canada's integrity abroad. As
observed by counsel for the Attorney General of
Canada, the Service is not charged with enforcing
the laws of Canada. Its mandate is to gather
information and intelligence relating to threats to
the security of Canada and report it to the con
cerned departments of the Government of Canada.
In addition to the requirements for prior authori
zation by a judge based on sworn evidence, the
Service is also subjected, in its actions and activi
ties, to oversight by the Inspector General (sec-
tions 30 to 33 inclusive of the CSIS Act). The
Inspector General is required to report the activi
ties of the Service annually to the Solicitor Gener
al. Additionally, the statute in sections 34-40
inclusive, creates a committee known as the Secu
rity Intelligence Review Committee. Pursuant to
section 34, this Committee, is appointed by the
Governor in Council "from among members of the
Queen's Privy Council for Canada who are not
members of the Senate or House of Commons,
after consultation by the Prime Minister of
Canada with the Leader of the Opposition in the
House of Commons and the leader in the House of
Commons of each party, having at least twelve
members in that House." Furthermore, the Review
Committee has power "to review generally the
performance by the Service of its duties" (section
38). In my view, it seems evident that Parliament,
in enacting the CSIS Act, designed a detailed,
well-considered, and prudent system of checks and
balances which, while empowering the Service to
fulfill its mandate on the one hand, has developed,
simultaneously, adequate safeguards for the pro
tection of individuals' rights and liberties as ensh
rined in the Charter.
Having regard to the statements by the present
Chief Justice of Canada in Southam, supra, and
keeping in mind the elaborate scheme established
by the CSIS Act, I think it possible to argue
persuasively that, insofar as the CSIS Act is con
cerned, a lower standard than that established in
Southam might satisfy the requirements of section
8 of the Charter. However, in my view of the
matter, such an exercise need not be undertaken in
the case at bar since I am satisfied that the
Southam tests have been complied with. Neither
of the two reasons cited by counsel for the appli
cant supra, convince me that a section 8 violation
has occurred in the case at bar or that the South-
am tests have not been complied with. However,
for completeness, I will deal specifically with the
two defects alleged by counsel for the applicant:
(i) Section 21 is deficient because it does not require the
presiding judge to be satisfied that there are reasonable and
probable grounds to believe that an offence has been
committed.
Initially, it should be noted that the relevant provi
sion in the CSIS Act, paragraph 21(2)(a), requires
the affiant to set out the facts relied on to justify
the belief on reasonable grounds that a warrant is
required to enable the Service to investigate a
threat to the security of Canada. Thus, the
requirement in subsection 21(3) that the judge be
satisfied of the matters referred to in paragraph
(2)(a) of section 21 refers to threats and not to
offences. I can find nothing in the scheme of the
statute which requires evidence of the commission
of an offence to be before the Court when a section
21 warrant is issued. As noted earlier herein, state
security does not focus on reaction to events. It
seeks, rather, advance warning of security threats
and is not necessarily concerned with breaches of
the law. The security process is, by its very nature,
usually a longer process. This accounts for the
provisions in the CSIS Act which enable the Court
to issue warrants for a period not exceeding one
year except in the case of threats as defined in
paragraph 2(d) where the maximum period is sixty
days (see subsection 21(5)). While it is certainly
possible that offences under the Criminal Code
will occur while threat activities are taking place,
it is equally possible to have threat activities taking
place without breaches of the Criminal Code and,
as discussed supra, it would be likely, in some
factual situations that the threat activities would
precede any Criminal Code infractions. Further
more, the reference to "offence" in test (d) in the
Southam case, was apt in that case but is not
necessarily applicable here where the objectives of
the statute are quite different. The tests enunciat-
ed in Southam do not necessarily apply mutatis
mutandis when another completely different legis
lative scheme is under review. Dickson C.J. made
this quite clear in the passage quoted supra from
page 108 of his reasons where he said that the
"assessment" must be made "in a particular
situation."
Since I was satisfied at the time the warrant at
bar was issued and since I continue to be satisfied
of the matters referred to in paragraph (2)(a) of
section 21, this represents compliance with the
provisions of the statute, which are not required to
coincide with the standards established by the
Southam case for Criminal Code matters.
(ii) Section 21 is deficient because it does not require the
presiding judge to be satisfied that there are reasonable and
probable grounds to believe that evidence of the offence will be
found at the place of the search.
My conclusion in (i) supra, that the standard set
in the CSIS statute of referring to threats to the
security of Canada rather than to offences in the
criminal law context, is equally applicable to the
submission in (ii) supra. I therefore see no merit in
this latter submission for the reasons expressed
under (i) supra. Furthermore, I observe that the
requirements in paragraph 21(2)(f) and in para
graph 21(4)(f) relating to place of execution of the
warrant were complied with in the supporting
affidavit in this case and I consider them to be
reasonable requirements in the context of national
security. What is unreasonable in the context of
law enforcement, is not necessarily unreasonable in
the context of legislation relating to security of the
state. The reverse is also true. By way of example,
I refer to the requirement in subsection 21(3) that
the judge, before issuing a warrant, must be satis
fied of the matters, inter alia, referred to in para
graph (2)(b) of section 21. Paragraph (2)(b)
requires the affiant to depose to the fact that:
21. (2) ...
(b) ... other investigative procedures have been tried and
have failed or why it appears that they are unlikely to
succeed, that the urgency of the matter is such that it would
be impractical to carry out the investigation using only other
investigative procedures or that without a warrant under this
section, it is likely that information of importance with
respect to the threat to the security of Canada ... would not
be obtained.
In my view this is a highly desirable and innova
tive safeguard which has been fashioned by Parlia
ment to meet the special nature of the activities
envisioned and authorized by the CSIS Act. This
paragraph is a recognition by Parliament that the
powers granted by a CSIS warrant are sweeping
and highly intrusive. Accordingly, it requires the
affiant to justify the intrusive powers being sought
in specific terms. The conditions enumerated in
paragraph (2)(b) are: that other investigative
procedures have been tried and failed or why they
are unlikely to succeed; that because the matter is
urgent, it would be impractical to employ only
more conventional procedures or that unless a
warrant is issued, it is likely that important infor
mation with respect to the security threat specified
in the affidavit would not be obtained. As is the
case in respect of paragraph (2)(a) of section 21, I
was satisfied at the time the warrant was issued
and continue to be satisfied of the matters set out
in paragraph (2)(b) of section 21. In my view,
when considered from the perspective of section 8
of the Charter, the procedures set out (and fol
lowed in the case at bar) in the CSIS Act satisfy
the criteria of reasonableness required under sec
tion 8 of the Charter.
Accordingly, and for all of the above reasons, I
conclude that the provisions of section 8 of the
Charter have not been infringed in this case.
(c) SUB-FACIAL VALIDITY OF THE EX PARTE
ORDER BASED ON AN EXAMINATION OF THE
AFFIDAVIT SWORN IN SUPPORT OF THE APPLICA
TION FOR THE WARRANT
As pointed out by counsel for the applicant, this
argument cannot be made without disclosure to
the applicant of the affidavit filed in support of the
warrant issued herein. This raises, for the first
time, the question of disclosure of the subsection
21(2) affidavit required to be filed by the Director
or an employee designated by the Minister for this
purpose. Section 27 of the Act requires the
section 21 application "to be heard in private in
accordance with regulations made under section
28." To this date, no such regulations have been
promulgated. Heretofore, insofar as I am aware,
the affidavits filed in support of applications for
warrants under section 21 have not been disclosed.
In my view, this issue raises two basic questions:
(i) Has the Attorney General of Canada object
ed in this Court to the disclosure of the support
ing affidavit sworn by Archie M. Barr, an
employee of the Service designated for this pur
pose by the Solicitor General of Canada pursu
ant to subsection 21(1) of the CSIS Act (the
Barr affidavit) in this Rule 330 application
either through an oral or written certification to
the effect that such disclosure would be injuri
ous to national security thereby invoking sec
tions 36.1 and 36.2 of the Canada Evidence Act
[R.S.C. 1970, c. E-10 (as added by S.C. 1980-
81-82-83, c. 111, s.4)]?
(ii) Is this Court obliged to order disclosure, or
does it have the discretion to order that the
affidavit not be disclosed?
I will deal with each of these questions in turn.
(i) Has the Attorney General of Canada objected
to the disclosure of the Barr affidavit pursuant to
sections 36.1 and 36.2 of the Canada Evidence
Act?
Sections 36.1 and 36.2 read:
36.1 (1) A Minister of the Crown in right of Canada or other
person interested may object to the disclosure of information
before a court, person or body with jurisdiction to compel the
production of information by certifying orally or in writing to
the court, person or body that the information should not be
disclosed on the grounds of a specified public interest. [Empha-
sis added.]
(2) Subject to sections 36.2 and 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a superior court, that court may examine or hear the
information and order its disclosure, subject to such restrictions
or conditions as it deems appropriate, if it concludes that, in the
circumstances of the case, the public interest in disclosure
outweights in importance the specified public interest.
(3) Subject to sections 36.2 and 36.3, where an objection to
the disclosure of information is made under subsection (1)
before a court, person or body other than a superior court, the
objection may be determined, on application, in accordance
with subsection (2) by
(a) the Federal Court—Trial Division, in the case of a person
or body vested with power to compel production by or
pursuant to an Act of Parliament if the person or body is not
a court established under a law of a province; or
(b) the trial division or trial court of the superior court of the
province within which the court, person or body exercises its
jurisdiction, in any other case.
(4) An application pursuant to subsection (3) shall be made
within ten days after the objection is made or within such
further or lesser time as the court having jurisdiction to hear
the application considers appropriate in the circumstances.
(5) An appeal lies from a determination under subsection (2)
or (3)
(a) to the Federal Court of Appeal from a determination of
the Federal Court—Trial Division; or
(b) to the court of appeal of a province from a determination
of a trial division or trial court of a superior court of a
province.
(6) An appeal under subsection (5) shall be brought within
ten days from the date of the determination appealed from or
within such further time as the court having jurisdiction to hear
the appeal considers appropriate in the circumstances.
(7) Notwithstanding any other Act of Parliament,
(a) an application for leave to appeal to the Supreme Court
of Canada from a judgment made pursuant to subsection (5)
shall be made within ten days from the date of the judgment
appealed from or within such further time as the court
having jurisdiction to grant leave to appeal considers appro
priate in the circumstances; and
(b) where leave to appeal is granted, the appeal shall be
brought in the manner set out in subsection 66(1) of the
Supreme Court Act but within such time as the court that
grants leave specifies.
36.2 (1) Where an objection to the disclosure of information
is made under subsection 36.1(1) on grounds that the disclosure
would be injurious to international relations or national defence
or security, the objection may be determined, on application, in
accordance with subsection 36.1(2) only by the Chief Justice of
the Federal Court, or such other judge of that court as the
Chief Justice may designate to hear such applications.
(2) An application under subsection (1) shall be made within
ten days after the objection is made or within such further or
lesser time as the Chief Justice of the Federal Court, or such
other judge of that court as the Chief Justice may designate to
hear such applications, considers appropriate.
(3) An appeal lies from a determination under subsection (1)
to the Federal Court of Appeal.
(4) Subsection 36.1(6) applies in respect of appeals under
subsection (3), and subsection 36.1(7) applies in respect of
appeals from judgments made pursuant to subsection (3), with
such modifications as the circumstances require.
(5) An application under subsection (1) or an appeal brought
in respect of such application shall
(a) be heard in camera; and
(b) on the request of the person objecting to the disclosure of
information, be heard and determined in the National Capi
tal Region described in the schedule to the National Capital
Act.
(6) During the hearing of an application under subsection (1)
or an appeal brought in respect of such application, the person
who made the objection in respect of which the application was
made or the appeal was brought shall, on the request of that
person, be given the opportunity to make representations ex
parte.
Subsection 36.1(1) provides for an oral or written
certification to the Court. The question to be
answered, therefore, is whether, in this case, coun
sel for the Attorney General of Canada, made
such an objection to the Court, either orally or in
writing. I can recall no such oral objection being
made at the hearing and my rather fulsome notes
taken at the hearing confirm that recollection.
Insofar as a written certification is concerned, I
have the view that, likewise, no written objection
was provided to the Court. Counsel's written sub
missions on this issue are contained in paragraph
67 of his Memorandum of Fact and Law where, in
referring to the production of a secret affidavit he
stated:
Parliament has decided, however, that where one of the com
peting values to be weighed is national security, the decision as
to production or protection shall only be made in accordance
with sections 36.1 and 36.2 of the Canada Evidence Act. It
would constitute an unacceptable circumvention of Parlia
ment's legislative scheme for the protection of national security
information to decide the applicant's argument on this branch
of his case in the context of the present Rule 330 motion.
In my view, these submissions are simply that, and
nothing more. They cannot, by themselves be used
to trigger section 36.1. This conclusion is con
sistent with the practice followed in all of the cases
within my knowledge where section 36.1 objections
have been raised based on disclosures that would
be injurious to national security. 15 A review of this
jurisprudence leads me to conclude that the words
used in section 36.1 of the Canada Evidence Act
require a certain formality when the Crown is
raising objections based on injury to national secu
rity. The oral or written objection to disclosure
must be clear and unequivocal, in my view. The
objection, if it is an objection rather than a sub
mission, set out in paragraph 67 supra, does not
meet this test. Accordingly, I conclude that a
section 36.1 objection has not been made in this
proceeding. It follows, therefore, that the section
36.1 and section 36.2 process has not been
triggered.
(ii) Disclosure of documents—applicant's right or
judicial discretion?
This motion under Rule 330 to rescind an ex
parte order is a civil proceeding. Accordingly, the
normal rules of civil procedure could be expected
to apply. The applicant herein submits that it is his
right to have access to all documents necessary to
make his rescission motion meaningful. He asserts
his absolute right to such disclosure on a threefold
basis:
(a) absent any express statutory prohibition
against disclosure of the Barr affidavit on this
motion, and given that disclosure is necessary to
the proper functioning of the Rule 330 remedy,
disclosure ought to be made;
(b) there is a presumption in favour of openness
in judicial proceedings and since the Barr affidavit
was filed in Court in support of the warrant
application, it is, prima facie, a public document
and should be disclosed; and
(c) there is a necessity of disclosure in order to
give effect to the remedy of judicial review of the
original ex parte order.
15 See: Gold v. The Queen, [1985] 1 F.C. 642; 4 C.P.C. (2d)
20 (T.D.); affirmed [1986] 2 F.C. 129; 25 D.L.R. (4th) 285
(C.A.); See also: Kevork v. The Queen, [1984] 2 F.C. 753; 17
C.C.C. (3d) 426 (T.D.); See also: R. v. Kevork, Balwin and
Gharakhanian (1986), 27 C.C.C. (3d) 523 (Ont. H.C.J.); And
finally see: Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.);
affirmed [1983] 2 F.C. 463; (1984), 10 C.C.C. (3d) 492
(C.A.).
In support of (b) and (c) supra, the applicant
cites the case of Attorney-General of Nova Scotia
et al. v. Maclntyre, [1982] 1 S.C.R. 175; 65
C.C.C. (2d) 129 and Wilson v. The Queen,
[1983] 2 S.C.R. 594; 9 C.C.C. (3d) 97. I would
agree that, as a general rule, the applicant in a
proceeding such as this is entitled to disclosure of
all documents in the Court record but I do not
agree that he has an absolute right thereto. This
general entitlement forms a cornerstone of the
concept of fairness and openness in our judicial
system. Dickson J. (as he then was) in Maclntyre,
supra, when dealing with a member of the public's
entitlement to access to expired search warrants
said at pages 183-184 S.C.R.; 144-145 C.C.C.:
By reason of the relatively few judicial decisions it is dif
ficult, and probably unwise, to attempt any comprehensive
definition of the right of access to judicial records or delinea
tion of the factors to be taken into account in determining
whether access is to be permitted. The question before us is
limited to search warrants and informations. The response to
that question, it seems to me, should be guided by several broad
policy considerations, namely, respect for the privacy of the
individual, protection of the administration of justice, imple
mentation of the will of Parliament that a search warrant be an
effective aid in the investigation of crime, and finally, a strong
public policy in favour of "openness" in respect of judicial acts.
The rationale of this last-mentioned consideration has been
eloquently expressed in Bentham in these terms:
`In the darkness of secrecy, sinister interest, and evil in every
shape have full swing. Only in proportion as publicity has
place can any of the checks applicable to judicial injustice
operate. Where there is no publicity there is no justice.'
`Publicity is the very soul of justice. It is the keenest spur to
exertion and surest of all guards against improbity. It keeps
the judge himself while trying under trial.'
The concern for accountability is not diminished by the fact
that the search warrants might be issued by a justice in camera.
On the contrary, this fact increases the policy argument in
favour of accessibility. Initial secrecy surrounding the issuance
of warrants may lead to abuse, and publicity is a strong
deterrent to potential malversation.
In short, what should be sought is maximum accountability
and accessibility but not to the extent of harming the innocent
or of impairing the efficiency of the search warrant as a
weapon in society's never-ending fight against crime.
I agree that where, as here, we have a party to a
proceeding seeking disclosure, the party's right to
disclosure rests on a firmer basis than that of
members of the general public. I also acknowledge
that there is jurisprudence to the effect that, in
proceedings akin to this Rule 330 application, the
applicant should not only be given an opportunity
to see the affidavit but to cross-examine the affiant
thereon. 16 However, neither of the authorities cited
have any factual resemblance to the case at bar.
There was no question of a secret affidavit nor was
there a national security basis for the issuance of
the ex parte orders in those cases. The issue for
determination on this branch of the within pro
ceeding is whether or not there are special circum
stances here which would permit the Court to
depart from the general rule of full disclosure of
all Court documents to all parties, absent a section
36.1 certificate? I state the issue in this way
because of jurisprudence which, in my view, enti
tles the Court to depart from the general rule, if,
in its view, disclosure would be inimical to the best
interests of the administration of justice.
Coming now to the relevant jurisprudence on
this issue, I would refer, initially, to a clear and
unequivocal statement by Dickson J. (as he then
was) at pages 189 S.C.R.; 149 C.C.C. of the
Macdntyre case supra:
Undoubtedly every Court has a supervisory and protecting
power over its own records. Access can be denied when the ends
of justice would be subverted by disclosure or the judicial
documents might be used for an improper purpose. The pre
sumption, however, is in favour of public access and the burden
of contrary proof lies upon the person who would deny the
exercise of the right. [Emphasis added.]
This passage makes it clear that a judge has a
discretion to deny access to any Court document
"when the ends of justice would be subverted by
disclosure." The question of non-disclosure in a
prison environment was canvassed by Reed J. in
Cadieux v. Director of Mountain Institution,
[1985] 1 F.C. 378, at pages 397-398; (1984), 9
Admin. L.R. 50 (TD.), at pages 78-79:
16 See Volckmar v. Krupp, [1958] O.W.N. 303 (Ont. H.C.J.)
(ex parte order for service ex furls); Bunker Ramo Corp. v.
TRW Inc., [1980] 2 F.C. 488; 47 C.P.R. (2d) 159 (T.D.) (ex
parte order for service ex juris).
I think it will be rare that an inmate cannot be told at least
the g of the reasons against him. This would especially be so
if the alleged conduct took place outside the institution when
the inmate was at large. I can, however, more easily envisage
some situations when it might be necessary to refuse to disclose
even the gist of the case against him when the information
relates to conduct occurring within the institution. This might
be necessary if the content of the information was such that its
disclosure would automatically lead to the identity of the
informer becoming known. (It is trite law that the identity of
informers is protected from disclosure.) Refer: Solicitor Gener
al of Canada et al. v. Royal Commission of Inquiry (Health
Records in Ontario) et al., [1981] 2 S.C.R. 494 [23 C.P.C. 99;
23 C.R. (3d) 338; 62 C.C.C. (2d) 193; 128 D.L.R. (3d) 193; 38
N.R. 588] and Bisaillon v. Keable, [1983] 2 S.C.R. 60; 2
D.L.R. (4th) 193. In the context of the prison situation, safety
and order within the prison may particularly require the non-
disclosure of the identity of informers. Non-disclosure might
also be necessary if such disclosure would automatically lead to
the revealing of information collection methods and thus sub
stantially undermine the future functioning of the Board. In
circumstances such as these, I do not think the Board should be
denied the right to rely on and use information which comes to
its knowledge even though it does not pass the gist of that
information on to the inmate. The public interests in preventing
repeat offences while the inmate is at large, in maintaining
security and order in the penal institution, and in preserving the
Parole Board's ability to function effectively may outweigh the
normal rule that a person is entitled to know the gist of the case
against him. But, the occasions on which this is justified must
be rare. There must be an element of necessity; mere conve
nience for the functioning of the Board is not enough. [Empha-
sis added.]
and at pages 401 F.C.; 81 Admin. L.R.:
The House of Lords decision in Science Research Council y
Nassé, [1979] 3 All ER 673 is instructive. In that case an
employee who felt she had been discriminated against sought
access to the annual performance appraisals prepared by the
employer on other employees with whom she had been in
competition for promotion. Disclosure was resisted on the
ground that such reports were confidential. The House of Lords
held that under the relevant rules of court disclosure was a
matter of discretion, to be exercised if it was in the interest of
justice to do so. Factors to be considered in assessing this would
be: whether disclosure was necessary for fairly disposing of the
proceedings, or for saving costs; whether the documents had
been prepared in confidence and the extent to which their
disclosure would affect the interests of third parties. The Court
held that in coming to a decision as to whether disclosure
should be ordered, it was perfectly proper to consider whether
justice could be done by special measures, such as covering up
confidential but irrelevant parts of the documents or by sub
stituting anonymous references for specific names.
Finally, I would refer to the judgment of Pinard J.
in Rice v. National Parole Board (1986), 16
Admin. L.R. 157 (F.C.T.D.), at pages 167-168:
In the case at Bar it has been established that three members
of the Board re-examined the possibility of providing the
confidential information requested by the applicant and that
they decided that this was impossible without the source of the
said information being revealed; they also concluded that the
lives of those who had provided this confidential information
would be endangered if the said information was disclosed; they
stated, finally, that if the identity of the source was revealed
and the information disclosed, the National Parole Board's
ability to obtain confidential information would be impaired
and the institutional order of the Correctional Service of
Canada also endangered. At the hearing of this case Serge
Lavallée, a regional executive officer with the National Parole
Board, reaffirmed under oath these reasons for the Board's
decision not to disclose the confidential information requested
by the applicant.
These reasons, supported by the oath of an officer of the
Board having authority, in view of all the circumstances of this
case, including the other information disclosed to the applicant,
justify the non-disclosure of the confidential information
requested. This is a serious and exceptional situation where the
Court is satisfied that the Board duly considered the conse
quences of disclosing the privileged information as regards the
revelation of its source and the safety of the lives of the persons
in question. In this context, the National Parole Board's ability
to obtain confidential information and the Correctional Service
of Canada's institutional order are relevant considerations. All
these grounds of public interest invoked by the Board in the
case at Bar take precedence. [Emphasis added.]
Since I have concluded, for the reasons enumer
ated supra, that I have the discretion to depart
from the general rule of full disclosure, based on
the Court's supervisory and protecting power, are
there special circumstances in this case which
require such a departure? I have reached the
conclusion that such special circumstances are
present in this case. The first special circumstance
is the fact that the secret Barr affidavit deals with
national security, and, more specifically, "activi-
ties within or relating to Canada directed toward
or in support of the threat or use of acts of serious
violence against persons or property for the pur
pose of achieving a political objective within
Canada or a foreign state." The competing public
interest advanced by the applicant is the public
interest in the due administration of criminal jus-
tice. However, as pointed out by counsel for the
Attorney General of British Columbia, an impor
tant distinction needs to be made between the
rights of an accused in a criminal trial and the
right of this applicant in proceedings under section
21 of the CSIS Act. There is no issue in this Court
as to the guilt or innocence of the applicant. The
impugned warrant was issued approximately ten
months before the alleged occurence of the offence
with which the applicant is charged. Thus it is
evident that subject warrant was not issued to
investigate that alleged offence. It was issued as an
aid to the investigation of political terrorism,
which is a matter of national security. The issu
ance of the impugned warrant does not in any way
influence or impair the presumption of innocence
enjoyed by the applicant with respect to the crimi
nal charge which he faces. The accused is in no
way precluded from making full answer and
defence pursuant to subsection 577(3) of the
Criminal Code. I also agree with counsel for the
Attorney General of British Columbia that section
21 warrants are issued under circumstances so
different from those issued under Part IV.I of the
Code that "it would be dangerous to seek analogy
between disclosures." I also agree with him that
"Section 26 of the CSIS Act which makes Part
IV.I of the Code inapplicable to section 21 war
rants clearly militates against such analogies".
In the Goguen case supra, (which was a case
under. sections 36.1 and 36.2 of the Canada Evi
dence Act), after referring to the competing public
interests, (international relations, national defence
or national security on the one hand and the due
administration of criminal justice on the other
hand), Chief Justice Thurlow stated at pages
883-884:
It is quite apparent from these authorities that the public
interest in the due administration of criminal justice is one of
great importance, an importance that is particularly weighty
when disclosure is required in order to establish the innocence
of a person accused of a crime. Even so, however, the impor
tance will, I think, vary with the gravity of the charge and the
severity of the punishment which could be expected to result
from a conviction. In Rex v. Hardy, to which reference has
been made, the charge was high treason, the punishment for
which at that time was to be publicly hanged and quartered.
The importance of the public interest in the due administration
of justice would hardly be as great if the information were
required today for the defence of a traffic charge, though even
in such a case the principle applies and the public interest in the
due administration of justice can never be downgraded or
regarded as light or weak.
Important as that public interest is, however, I think it is
apparent from the nature of the subject-matter of international
relations, national defence and national security that occasions
when the importance of the public interested in maintaining
immune from disclosure information the disclosure of which
would be injurious to them is outweighed by the importance of
the public interest in the due administration of justice, even in
criminal matters, will be rare.
Because the threat to the security of Canada as
quoted supra, relates to political terrorism and
violence, I do not consider this to be one of the
rare occasions mentioned by Chief Justice Thur-
low. Furthermore, it is clear that Parliament has
manifested its will in this regard with the passage
of sections 36.1 and 36.2 supra. Those sections
provide a definite mechanism and code of proce
dure for determination of the priority to be given
the competing public interests in a particular case.
At the oral hearing before me, there was some
discussion as to the means available to this appli
cant to "trigger" the sections 36.1 and 36.2 proce
dures. I understood counsel for the Attorney Gen
eral of Canada to express the view that sections
36.1 and 36.2 would be "triggered" in the event
the applicant was to serve CSIS with a subpoena
for the production of the Barr affidavit. At that
juncture, the Service or the Attorney General of
Canada or the Solicitor General of Canada would
be in a position to respond with a section 36.1
objection. There may well be other mechanisms
for triggering the section 36.1 and section 36.2
procedures. In any event, it is unnecessary and
perhaps improper for me to speculate on the ave
nues open to the applicant insofar as the criminal
prosecution against him in British Columbia is
concerned. This is particularly so since I am not a
judge designated by the Chief Justice to hear a
subsection 36.2(1) application.
To summarize then, I decline to exercise the
discretion vested in me to order disclosure to the
applicant of the secret Barr affidavit. I do so for
two reasons: firstly, that affidavit relates to politi-
cal terrorism which was in the course of being
investigated in the interests of national security.
Disclosure might well result in the revelation of
security investigatory methodology which could
lead to the significant impairment of the effective
ness of this and future security investigations. The
public interest in protecting and preserving the
Security Service's ability to discharge the onerous
and important mandate given to it under the CSIS
Act in the interests of national security cannot be
disregarded or ignored. Secondly, and in any
event, and for the reasons expressed supra, I have
the view that insofar as this applicant is concerned
and relating to the criminal charge against him in
British Columbia, other avenues of redress may
well be open to him relating to disclosure of the
Barr affidavit.
CONCLUSION
Since, in my view, no grounds of invalidity have
been shown, it follows that the within application
to rescind the warrant in issue must be dismissed.
Before concluding however, I would like to com
ment briefly on section 1 of the Charter since it
was relied on by counsel for the Attorney General
of British Columbia (although not referred to or
relied on by counsel for the Attorney General of
Canada). In view of my conclusion supra, that
section 8 of the Charter has not been infringed in
this case, it is not necessary to consider the rela
tionship between section 8 and section 1 of the
Charter. As stated by Dickson J. (as he then was)
in Hunter et al. y. Southam Inc., supra, pages
169-170 S.C.R.; 116 C.C.C.:
I leave to another day the difficult question of the relationship
between those two sections and, more particularly, what further
balancing of interests, if any, may be contemplated by s. I,
beyond that envisaged by s. 8.
I find myself in a similar position in the case at
bar. Accordingly, I adopt the approach of the
learned Chief Justice of Canada and will say no
more about section 1 of the Charter in these
reasons, since it is unnecessary to do so.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.