Canada (Attorney General) v. MacDonald

Canada (Attorney General) v. MacDonald
Court (s) Database
Federal Court Decisions
Date
2024-05-15
Neutral citation
2024 FC 716
File numbers
DES-5-23
Decision Content
Date: 20240515
Docket: DES-5-23
Citation: 2024 FC 716
Ottawa, Ontario, May 15, 2024
PRESENT: The Honourable Mr. Justice Fothergill
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
PATRICK GORDON MACDONALD
Respondent
and
THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
ORDER
UPON the Application of the Attorney General of Canada [AGC] pursuant to s 38.04(1) of the Canada Evidence Act, RSC 1985, c C-5 [CEA] for an Order confirming the prohibition of disclosure of information contained in documents referred to in a notice given by counsel for the Public Prosecution Service of Canada [PPSC] to the AGC pursuant to s 38.01(1) of the CEA;
AND CONSIDERING that:
(a)on July 4, 2023, Mr. Macdonald was charged with offences pursuant to ss 83.18, 83.19 and 83.02 of the Criminal Code, RSC, 1985, c C-46 (Ontario Court of Justice Court File No 4011 998 23 1140453500);
(b)on September 14, 2023, counsel for the PPSC provided notice to the AGC pursuant to s 38.01(1) of the CEA that sensitive or potentially injurious information may be disclosed in connection with the criminal proceeding against Mr. Macdonald; and
(c)on March 18, 2024, the Court appointed Mr. Harout Haladjian as amicus curiae in this Application;
AND UPON reading the materials filed, including the classified affidavits submitted on behalf of the AGC, and hearing from counsel for the AGC and the amicus curiae during an in camera, ex parte hearing on May 2, 2024;
AND CONSIDERING that Mr. Macdonald and his counsel have communicated to the amicus curiae their theory of the defence and the categories of information that may be of interest to them, and have indicated that no public hearing is required and take no position on the Application;
AND CONSIDERING that counsel for the AGC and the amicus curiae have made a joint submission to the Court with their recommendations respecting the disposition of the Application;
AND CONSIDERING that, notwithstanding the joint recommendations of the AGC and the amicus curiae, the Court must determine, in accordance with the applicable statutory provisions and governing jurisprudence, whether the prohibition of disclosure of the information in issue should be confirmed (Canada (Attorney General) v Meng, 2020 FC 844 at para 71);
AND CONSIDERING the tripartite test to determine whether the Court should maintain the confidentiality of information the disclosure of which is alleged to be injurious to international relations, national defence or national security (Ribic v Canada (2003), 185 CCC (3d) 129 (FCA)), namely:
(a)whether the information the AGC seeks to protect is relevant to the underlying proceeding;
(b)if so, whether disclosure of the information would be injurious to international relations, national defence or national security; and
(c)if so, whether the public interest in disclosure outweighs in importance the public interest in non-disclosure;
AND UPON being satisfied that:
(a)the materiality of the information in issue to the underlying proceeding is not always evident, but its potential relevance may be inferred from the disclosure of the documents to Mr. Macdonald in accordance with R v Stinchcombe, [1991] 3 SCR 326; the threshold requirement for disclosure in the context of a criminal trial and the threshold applied at the first step of the Ribic test are both quite low (Canada (Attorney General) v Ortis, 2022 FC 142 at para 74);
(b)courts should accord deference to decisions of the executive in matters of national security, national defence and international relations, as the executive is considered to have greater knowledge and expertise in such matters; but the AGC nevertheless has the burden to prove that disclosure would be injurious to international relations, national defence or national security (Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766 at paras 46-48);
(c)disclosure of the information in issue would be injurious to national security, insofar as it tends to reveal: (i) the names and contact information of personnel employed by the Department of National Defence and Canadian Armed Forces [DND/CAF], the Canadian Security and Intelligence Service [CSIS], and the Financial Transactions and Reports Analysis Centre of Canada [FINTRAC]; (ii) the identities of individuals, groups or issues of investigative interest; and (iii) confidential techniques and capabilities;
(d)disclosure of the summaries of information jointly proposed by counsel for the AGC and the amicus curiae will not be injurious to international relations, national defence or national security, and will provide meaningful disclosure to Mr. Macdonald;
(e)given the tenuous materiality of the information in issue to the underlying criminal proceeding, the public interest in disclosure does not outweigh in importance the public interest in non-disclosure; and
(f)some of the information in issue cannot be summarized in a manner that would prevent injury to national security if disclosed;
THIS COURT ORDERS that:
The attached table summarizing the information in issue shall be disclosed pursuant to s 38.06(2) of the CEA for use in the underlying criminal proceeding.
In all other respects, the application of the AGC pursuant to s 38.04 of the CEA to prohibit the disclosure of information is granted, and the prohibition of disclosure is confirmed pursuant to s 38.06(3) of the CEA.
“Simon Fothergill”
Judge
ATTACHMENT
No.
AGC ID
Public Summary
1
AGC0001
The redacted information identifies the name of DND/CAF member.
2
AGC0002
The redacted information identifies the name, email address and phone number of a DND/CAF member.
3
AGC0003
The redacted information identifies the names and email addresses of DND/CAF members, including the member who made the weapons assessment.
4
AGC0004
The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
5
AGC0005
The redacted information identifies the phone number of a FINTRAC employee.
6
AGC0006
The redacted information identifies the phone number of a FINTRAC employee.
7
AGC0007
The redacted information identifies the phone number extension of a DND/CAF member.
8
AGC0008
The redacted information identifies the phone number of a DND/CAF member.
9
AGC0009
The redacted information identifies the name of a DND/CAF member.
10
AGC0010
The redacted information identifies the phone number of a FINTRAC employee.
11
AGC0011
The redacted information identifies the name of a DND/CAF member.
12
AGC0012
The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
13
AGC0013
The redactions refer to a period of time within the CSIS investigation.
14
AGC0014
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
15
AGC0015
The redacted information identifies the names and email addresses of FINTRAC employees.
16
AGC0016
The redacted information identifies the name and phone number of a FINTRAC employee.
17
AGC0017
The redactions refer to a period of time within the CSIS investigation.
18
AGC0018
Part of the redacted information identifies the name of a DND/CAF member who made the weapons assessment. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
19
AGC0019
Part of the redacted information describes a CSIS investigative technique. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
20
AGC0020
Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
21
AGC0021
The redacted information identifies the names of CSIS employees.
22
AGC0022
Part of the redacted information identifies the name and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
23
AGC0023
The redacted information identifies the names of CSIS employees.
24
AGC0024
Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
25
AGC0025
The redacted information identifies the names of CSIS employees.
26
AGC0026
Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
27
AGC0027
The redacted information identifies the names of CSIS employees.
28
AGC0028
Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
29
AGC0029
The redacted information identifies the names of CSIS employees.
30
AGC0030
Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
31
AGC0031
The redacted information identifies the names of CSIS employees.
32
AGC0032
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
33
AGC0033
The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
34
AGC0034
The redacted information identifies the name of a CSIS employee.
35
AGC0035
The redacted information identifies the name of a CSIS employee.
36
AGC0036
The redacted information identifies the names of CSIS employees.
37
AGC0039
The redacted information identifies the names and email addresses of CSIS employees.
38
AGC0040
Part of the redacted information identifies the names and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
39
AGC0041
The redacted information identifies the names of CSIS employees.
40
AGC0044
The redacted information identifies the name of a CSIS employee.
41
AGC0045
The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
42
AGC0046
Part of the redacted information identifies the names and an email address of CSIS employees. The redactions also relate to the response to the deconfliction process.
43
AGC0047
The redacted information identifies the name of a CSIS employee.
44
AGC0048
Disclosure of the redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
45
AGC0049
The redactions relate to the response to the deconfliction process.
46
AGC0050
The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
47
AGC0051
The redacted information identifies a CSIS phone number, internal procedures and administrative methodologies.
48
AGC0052
The redacted information identifies a CSIS phone number, internal procedures and administrative methodologies.
49
AGC0053
The redacted information identifies the name and email address of a CSIS employee.
50
AGC0054
The redacted information identifies the name and email address of a CSIS employee.
51
AGC0055
The redacted information identifies the name and email address of a CSIS employee.
52
AGC0056
The redacted information describes a CSIS Technique.
53
AGC0057
The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
54
AGC0058
The redacted information identifies the name of a CSIS employee.
55
AGC0059
The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
56
AGC0060
The redacted information identifies the name of a CSIS employee.
57
AGC0061
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
58
AGC0062
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
59
AGC0063
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
60
AGC0064
Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
61
AGC0065
The redacted information identifies the names of CSIS employees.
62
AGC0066
Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
63
AGC0067
The redacted information identifies the names of CSIS employees.
64
AGC0068
Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
65
AGC0069
The redacted information identifies the names of CSIS employees.
66
AGC0070
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
67
AGC0071
The redacted information identifies the email address of a CSIS employee.
68
AGC0072
The redacted information identifies the name and phone number of a FINTRAC employee.
69
AGC0073
The redacted information identifies the phone number of a FINTRAC employee.
70
AGC0074
The redacted information identifies the phone number of a FINTRAC employee.
71
AGC0075
The redacted information identifies the phone number of a FINTRAC employee.
72
AGC0076
The redacted information identifies the name and phone number of a FINTRAC employee.
73
AGC0077
The redacted information identifies the phone number of a FINTRAC employee.
74
AGC0078
The redacted information identifies the name of a FINTRAC employee.
75
AGC0079
The redacted information identifies the name and phone number of a FINTRAC employee.
76
AGC0080
The redacted information identifies the phone number of a FINTRAC employee.
77
AGC0081
The redacted information identifies the phone number of a FINTRAC employee.
78
AGC0082
The redacted information identifies the name and phone number of a FINTRAC employee.
79
AGC0083
The redacted information identifies the name and phone number of a FINTRAC employee.
80
AGC0084
The redacted information identifies the name and phone number of a FINTRAC employee.
81
AGC0085
The redacted information identifies the phone number of a FINTRAC employee.
82
AGC0086
The redacted information identifies the name and phone number of a FINTRAC employee.
83
AGC0087
The redacted information identifies the phone number of a FINTRAC employee.
84
AGC0088
The redacted information identifies the name and phone number of a FINTRAC employee.
85
AGC0089
The redacted information identifies the phone number of a FINTRAC employee.
86
AGC0090
The redacted information identifies the name and phone number of a FINTRAC employee.
87
AGC0091
The redacted information identifies the phone number of a FINTRAC employee.
88
AGC0092
The redacted information identifies the phone number of a FINTRAC employee.
89
AGC0093
The redacted information identifies the name and phone number of a FINTRAC employee.
90
AGC0094
The redacted information identifies the phone number of a FINTRAC employee.
91
AGC0095
The redacted information identifies the name and phone number of a FINTRAC employee.
92
AGC0096
The redacted information identifies the names of CSIS employees.
93
AGC0097
The redacted information identifies the name and phone number of a FINTRAC employee.
94
AGC0098
The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
95
AGC0099
The redacted information identifies the name of a DND/CAF member.
96
AGC0127
The redacted information identifies phone numbers of a DND/CAF member.
97
AGC0129
The redacted information identifies the name of a DND/CAF member. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
98
AGC0130
The redacted information identifies the name of a DND/CAF member.
99
AGC0131
The redacted information identifies the name of a DND/CAF member.
100
AGC0132
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
101
AGC0133
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
102
AGC0134
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
103
AGC0135
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
104
AGC0136
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
105
AGC0137
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
106
AGC0138
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
107
AGC0139
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
108
AGC0140
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
109
AGC0141
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
110
AGC0142
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
111
AGC0143
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
112
AGC0144
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
113
AGC0145
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
114
AGC0146
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
115
AGC0147
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
116
AGC0148
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
117
AGC0149
The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
118
AGC0150
The redacted information identifies the names of CSIS employees.
119
AGC0151
Disclosure of the redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
120
AGC0152
The redactions relate to the response to the deconfliction process.
121
AGC0153
The redactions relate to the response to the deconfliction process.
122
AGC0154
Part of the redacted information identifies the names and an email address of CSIS employees. The redactions also relate to the response to the deconfliction process.