Canada (Attorney General) v. Kempo

Canada (Attorney General) v. Kempo
Court (s) Database
Federal Court Decisions
Date
2004-11-30
Neutral citation
2004 FC 1678
File numbers
DES-5-03
Decision Content
Date: 20041130
Docket: DES-5-03
Citation: 2004 FC 1678
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
BRAD KEMPO
Respondent
REASONS FOR ORDER
LEMIEUX J.:
PREFACE:
1. On November 30, 2004 this Court released to the parties a confidential version of these reasons for order which it now releases on September 19, 2006 to the public unexpurged, that is, without any change from the confidential version.
2. These reasons are concerned with the Attorney General of Canada’s (the Attorney General) application under subsection 38.04 (2) of the Canada Evidence Act seeking to prohibit sensitive or potentially injurious information which, in its context, was linked to a lawsuit initiated by Brad Kempo and a corporation he controls, as Plaintiffs, in Federal Court action T-1114-02. Throughout this proceeding, Mr. Kempo, who had been called as a barrister and solicitor, remained self-represented.
3. In action T-1114-02, the Plaintiffs sued the Federal Crown for several million dollars on account of damages suffered through an alleged conspiracy against him and his corporation by Crown and other agents.
4. As is seen in paragraphs 11, and 119 to 123 of these reasons, I was not prepared, without further input from the parties, to approve the authorizations requested by the Attorney General set out in paragraphs 3 and 4 of these reasons relating to the contents of a summary and the use of undisclosed materials in the Attorney General’s contemplated summary judgment motion.
5. In order to establish a schedule for the receipt of additional representations in respect of the two outstanding questions, the telephone conference call with the parties referred to at paragraph 124 of these reasons was held.
6. At that time, Mr. Kempo challenged on grounds of bias the authority of any judge of this Court to continue the proceedings. Counsel for the Attorney General agreed the bias motion should be heard and decided before the proceeding could be completed.
7. A schedule for the serving and filing of motion materials was established. For a variety of reasons, Mr. Kempo never served and filed a proper applicant’s record. The hearing of his bias motion never took place.
8. Ultimately, this Court, by Order dated the 26th day of October, 2005 dismissed for delay the Plaintiffs’ action in court file T-1114-02, making the Attorney General’s proposed summary judgment motion unnecessary.
9. The underlying proceeding connected to his subsection 38.04 applications in DES-1-03 and in this application (DES-5-03) having been dismissed, counsel for the Attorney General rightly considered there was no longer remaining a live issue to those applications and, as a result, discontinued them.
10. In sum, the two outstanding issues which concerned the Court were never decided by it.
INTRODUCTION
[1] The issue in this application made by the Attorney General of Canada (the “applicant”) under subsection 38.04(2) of the Canada Evidence Act (the “Act”), is whether this Court should, subject to two items of authorized disclosure, confirm, pursuant to subsection 38.06(3) of the Act, the prohibition of disclosure of the following:
(a) the redacted portions of the amended statement of defence dated June 30, 2003 and produced by the Defendant Her Majesty the Queen in Federal Court matter no. T-1114-02;
(b) the redacted portions of the affidavit of Warren Sunstrum sworn June 27, 2003 and produced by the Defendant Her Majesty the Queen in Federal Court matter no. T-1114-02 in support of the Defendant’s motion for summary judgment, including all of the documents attached as exhibits “A” to “I” of said affidavit;
(c) the redacted portions of the Defendant’s memorandum of fact and law dated July 7, 2003 and produced by the Defendant Her Majesty the Queen in Federal Court matter no. T-1114-02 in support of the Defendant’s motion for summary judgment; [emphasis mine]
[2] The two items of authorized disclosure sought by the Attorney General are the following.
[3] First, pursuant to subsection 38.06(2) of the Act, the following summary of the redacted information:
The [redacted] information in question is consistent with and does not contradict in any way the Defendant Crown’s pleading at paragraph 6 of the amended statement of defence, namely, the denial that CSIS, its employees and its agents have committed acts causing harm to Mr. Kempo. Furthermore, the information in question is consistent with and does not contradict in any way the Defendant Crown’s pleading at paragraph 15 of the amended statement of defence, namely, that Mr. Kempo’s action is time-barred. Finally, the information in question is consistent with and does not contradict in any way the Defendant Crown’s position that there is no genuine issue for trial with respect to Mr. Kempo’s claim. [emphasis mine]
[4] The second authorized disclosure sought pursuant to section 38.06(4) is:
The defendant Her Majesty the Queen in Federal Court matter no. T-1114-02 is permitted pursuant to s. 38.06(4) of the Canada Evidence Act to introduce the information contained in the affidavit of Warren Sunstrum and set out at subparagraph (2)(b) above as evidence for the purposes of her motion for summary judgment in that proceeding on an ex parte basis with disclosure to the Plaintiff Brad Kempo and the public at large to be limited to the evidence contained in the summary. . . .
[5] From the very outset it is important to appreciate the context of the Attorney General’s application for prohibition from information disclosure:
(1) it is a civil litigation context in which the respondent (plaintiff) who is self-represented, is suing Her Majesty the Queen in Right of Canada (“HMQ” or the “Crown”) in tort for which he seeks substantial damages;
(2) the information whose prohibition is sought is in HMQ’s or her agent’s possession and is said to be “sensitive information or potentially injurious information”;
(3) the redacted information is contained as part of the federal Crown’s statement of defence;
(4) that information is also part of an affidavit sought to be used by the Crown in support of a motion for summary judgment seeking the dismissal of the plaintiff’s action in T-1114-02 and is also found in the Crown’s memorandum of fact and law in that motion.
[6] It was CSIS who notified the Attorney General, pursuant to subsection 38.01(1) about the sensitive or potentially injurious information which would be disclosed in the amended statement of defence, the motion for summary judgment which HMQ intended to launch and Mr. Sunstrum’s affidavit in support of that motion.
[7] The Attorney General advised CSIS he did not authorize the disclosure of the information with the result that at the end of June 2003, HMQ served and filed on the plaintiff only the redacted version of those documents.
[8] When the Attorney General made his application in July 2003, he also filed with the Court, on a confidential basis, the complete documentation which included the redacted portions.
[9] The effect of CSIS’ notice was to prohibit HMQ from disclosing the redacted information unless authorized by the Attorney General under subsection 38.02(1) of the Act or authorized by this Court under subsections 38.06(1) or 38.06(2).
[10] In sum, the Court has in its record and has examined all of the information HMQ will rely on to seek the dismissal of the plaintiff’s action and the plaintiff has only parts of that material which excludes the redacted portions. Under the legislation and its strictures, the primary issue thus centers on whether the information which the plaintiff does not have should be disclosed to him or not in the context of his civil action.
[11] Another issue raised is whether the court has the authority in the circumstances to authorize the two items of disclosure sought by the Attorney General.
[12] The importance of the redacted information to the plaintiff is obvious. He, at this stage, would say he does not know HMQ’s full defence and he is confronted with a motion for summary judgment seeking the dismissal of his action on evidence which is only partially disclosed to him.
[13] I should mention that a confidentiality order was issued in action T-1114-02 by Justice Campbell at the plaintiff’s request when he first filed his original statement of claim in September 2002. I extended that confidentiality order to cover his amended statement of claim again at the plaintiff’s request who felt that his claim should not be publicized because of the sensitive nature of the allegations which not only involve him but his family.
[14] The plaintiff may himself have breached the confidentiality order by posting the amended statement of claim on his website.
BACKGROUND
[15] As noted, the plaintiff in the action, respondent in the application, is a self-represented litigant. At the present time, he is a suspended member of the Law Society of Alberta.
[16] On September 13, 2002, he issued a statement of claim in this court’s file T-1114-02 against the defendant HMQ, alleging a variety of tortious conduct principally by Her agent, the Canadian Security Intelligence Service (“CSIS”).
[17] The essence of the conduct ascribed in the plaintiff’s action is that the defendant HMQ, through CISIS and its operatives or agents, conspired to do him harm through unlawful, fraudulent, negligent or intentional actions including assault, battery, cognitive trespass, conspiracy, deceit, defamation, fraud, intentional infliction of mental distress, interference with contractual relations, interference with economic relations, invasion of privacy, nuisance, trespass to real property, negligence, negligent and fraudulent misrepresentation.
[18] The plaintiff says the unlawful conduct described in his original claim arose in October 1990 and has continued to date. He seeks by way of reparation several millions of dollars in general and compensatory damages, special damages, aggravated, exemplary and punitive damages, as well as an injunction prohibiting the agents of HMQ from engaging in medical experimentation and other unlawful conduct on or towards him.
[19] As stated, CSIS is not the only actor alleged to be involved. According to the plaintiff, others in the conspiracy, in the commission of intentional torts or otherwise, include the RCMP, municipalities, municipal police forces, named corporations and named individuals.
[20] The plaintiff pinpoints on or about April 1, 1990, as the source of his problems with CSIS when he says he was requested by that organization to assist in a surveillance operation; he alleges the surveillance operation was a sham and that he was really the target of a long-term hypnosis operation spawned by CSIS whose purpose was to inflict upon him intentional mental and physical suffering, to emotionally and professionally destabilize him, to embarrass and humiliate him amongst his professional peers and to disgrace him in the eyes of the Law Society of Alberta and the general public in the city where he resided. For these purposes, the plaintiff alleges HMQ’s agents enlisted the support of police forces and street operatives using them to engage in a protracted campaign of emotional and professional destabilisation, interference with contractual and economic relations, defamation, stalking and harassment, impairing his ability to generate income, preventing the accumulation of wealth and having a normal personal, social and domestic life.
[21] HMQ served on the plaintiff and filed a redacted statement of defence on October 28, 2002. In answer to the whole of the statement of claim, HMQ did not admit any of the allegations of fact set out in the plaintiff’s statement of claim except for one paragraph. In paragraph 2, it stated, as a result of the duty of CSIS to investigate, analyse and retain information concerning threats to the security of Canada, the Service could not confirm or deny knowledge of the individuals or facts stated in the statement of claim. As further answer, HMQ stated CSIS was created in 1984 as a civilian security intelligence service. The statement of defence outlined the duties and functions of CSIS, stated its operations and performance of the duties and functions of CSIS were monitored for compliance by the Inspector General and the Security Intelligence Review Committee. HMQ stated the statement of claim did not disclose an action in law, or in the alternative, a reasonable cause of action, or in the further alternative, is an abuse of process. HMQ stated the statement of claim was so doubtful it did not deserve consideration and should be dismissed by this Court pleading the CSIS Act, the Crown Liability and Proceedings Act, (“CLPA”) and the Canada Evidence Act.
[22] After seeking particulars from the plaintiff, the parties exchanged affidavits of documents. HMQ claimed privilege to nine documents invoking then section 37 of the Act. Mr. Kempo then sought the production of those nine documents invoking Rule 229 of the Federal Court Rules, 1998, and section 37 of the Act.
[23] HMQ resisted that motion by stating CSIS, on December 12, 2002, had given the Attorney General notice pursuant to section 38.01 of the Act, that the nine privileged documents contained sensitive information or potentially injurious information which required protection from disclosure. HMQ also indicated at that time its intention to launch a motion to strike the plaintiff’s statement of claim.
[24] The Attorney General of Canada concurred with CSIS’ view and on February 6, 2003, launched proceedings under section 38.04 of the Act seeking confirmation for continued prohibition of disclosure of the nine documents. That proceeding is known as DES-1-03.
[25] No substantive steps occurred under DES-1-03. The Attorney General’s application was adjourned sine die by me on May 12, 2003 as a result of the granting of leave on consent to the plaintiff filing an amended statement of claim and HMQ’s response through an amended statement of defence and a motion for summary judgment which resulted in the current application under consideration, namely DES-5-03.
[26] I do not intend to describe in any detail the amended statement of claim. It is a lengthy document consisting of 168 pages containing 505 paragraphs.
[27] Its theme is identical to the original claim filed by the plaintiff in September of 2002. CSIS is at the centre of the conspiracy, a campaign to cause him harm and, in particular, to deny him the success and prestige so he could realize his life’s ambition of being appointed as a member of the judiciary.
[28] The amended statement of claim identifies a number of failures or setbacks whose causes he attributes to the tortious conduct of CSIS and its agents or operatives. I simply list some of them:
(1) in the late1980s, the failure of a computer business;
(2) the sham CSIS operation in 1990 which in fact he alleges converted into a long-term medical cognition experiment on him;
(3) a conspiracy to entice him to launch a court action accusing a solicitor of fraud in a transaction which led to the plaintiff’s suspension as a member of the Law Society;
(4) since 1987, the launching of a campaign which he describes as social engineering involving street level operatives of two police forces in order to get him into trouble such as inciting him to launch a slander action arising from an incident in a nightclub, falsely accusing him of a serious motor infraction, entrapping him to use cocaine, causing him to abuse alcohol, planting cocaine in his home and in his robes, and conspiracy with a staff member at a detox facility to spike his fruit juice;
(5) his troubles caused him to move to Vancouver where he immediately turned to welfare being without money or shelter. He says he came under surveillance and CSIS’s campaign continued;
(6) he described his life as a vagrant and points to CSIS agents thwarting his every efforts to rehabilitate himself and to find work. He described CSIS’s tactics to destabilize him including the use of remote electronic interference devices and the use of anti-psychotic medicines. He describes various stays in hospital on involuntary committal, stays at an addiction recovery house;
(7) over the balance of his claim, he describes the activities of various CSIS agents to cause him harm.
[29] In short, he attributes all the negative events in his life from 1987 onwards to CSIS’s conspiracy to harm him.
THE LEGISLATION
[30] The relevant legislation is section 38 of the Canada Evidence Act headed “International Relations and National Defence and Security”. The legislation substantially modified the previous regime in place for the vetting of sensitive Crown information; the amendments were made when Parliament enacted the Anti-terrorism Act, assented to on December 18, 2001. Justice Létourneau of the Federal Court of Appeal, in Canada (Attorney General) v. Ribic, 2003 FCA 246, stated section 38 of the Act, “codified the common law privilege to protect State secrets” (see, paragraph 49).
[31] “Potentially injurious information” is defined in section 38 as follows:
"potentially injurious information" means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security. [emphasis mine]
«_renseignements potentiellement préjudiciables_» Les renseignements qui, s'ils sont divulgués, sont susceptibles de porter préjudice aux relations internationales ou à la défense ou à la sécurité nationales.
[32] “Sensitive Information” is defined in that section as follows:
"sensitive information" means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard. [emphasis mine]
«_renseignements sensibles_» Les renseignements, en provenance du Canada ou de l'étranger, qui concernent les affaires internationales ou la défense ou la sécurité nationales, qui se trouvent en la possession du gouvernement du Canada et qui sont du type des renseignements à l'égard desquels celui‑ci prend des mesures de protection.
[33] Sections 38 to 38.16 establish a special statutory scheme to protect information that, if it were disclosed, could injure international relations, national defence or national security. These sections create a comprehensive and self-contained scheme which is triggered not by an objection to disclosure but rather by notice to the Attorney General for Canada under section 38.01. That notice obliges every participant who, in connection with a proceeding, is required to disclose or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information to notify the Attorney General of Canada in writing of the possibility of the disclosure and of the nature, date and place of the proceeding.
[34] It is important to appreciate that the “proceeding” referred to encompasses not only a proceeding before the Federal Court but includes a civil, criminal or other proceeding before provincial courts or tribunal having the power to compel the production of information. (See the definition of “proceeding” in section 38.)
[35] As previously mentioned, the effect of the notice is to preclude disclosure of the information unless and until disclosure is authorized either by the Attorney General or by the Chief Justice or his designated judge of the Federal Court on application under the scheme.
[36] Once the application is made, subsection 38.04(5) describes the steps which the Chief Justice or his designated judge must take upon being seized of an application by the Attorney General. Amongst other matters, the Chief Justice or the designated judge decides whether a hearing should be held in respect of the application.
[37] The powers of the Court are provided for in section 38.06 which I reproduce:
38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information.
38.06(2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non‑disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
38.06(3) Order confirming prohibition
(3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure.
38.06(3.1) Evidence
(3.1) The judge may receive into evidence anything that, in the opinion of the judge, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base his or her decision on that evidence.
38.06(4) Introduction into evidence
(4) A person who wishes to introduce into evidence material the disclosure of which is authorized under subsection (2) but who may not be able to do so in a proceeding by reason of the rules of admissibility that apply in the proceeding may request from a judge an order permitting the introduction into evidence of the material in a form or subject to any conditions fixed by that judge, as long as that form and those conditions comply with the order made under subsection (2).
38.06(5) Relevant factors
(5) For the purpose of subsection (4), the judge shall consider all the factors that would be relevant for a determination of admissibility in the proceeding. [emphasis mine]
2001, c. 41, s. 43.
38.06 (1) Le juge peut rendre une ordonnance autorisant la divulgation des renseignements, sauf s'il conclut qu'elle porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales.
(2) Si le juge conclut que la divulgation des renseignements porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d'intérêt public qui justifient la divulgation l'emportent sur les raisons d'intérêt public qui justifient la non‑divulgation, il peut par ordonnance, compte tenu des raisons d'intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu'il estime indiquées, la divulgation de tout ou partie des renseignements, d'un résumé de ceux‑ci ou d'un aveu écrit des faits qui y sont liés.
38.06(3) Confirmation de l'interdiction
(3) Dans le cas où le juge n'autorise pas la divulgation au titre des paragraphes (1) ou (2), il rend une ordonnance confirmant l'interdiction de divulgation.
38.06(3.1) Preuve
(3.1) Le juge peut recevoir et admettre en preuve tout élément qu'il estime digne de foi et approprié — même si le droit canadien ne prévoit pas par ailleurs son admissibilité — et peut fonder sa décision sur cet élément.
38.06(4) Admissibilité en preuve
(4) La personne qui veut faire admettre en preuve ce qui a fait l'objet d'une autorisation de divulgation prévue au paragraphe (2), mais qui ne pourra peut‑être pas le faire à cause des règles d'admissibilité applicables à l'instance, peut demander à un juge de rendre une ordonnance autorisant la production en preuve des renseignements, du résumé ou de l'aveu dans la forme ou aux conditions que celui‑ci détermine, dans la mesure où telle forme ou telles conditions sont conformes à l'ordonnance rendue au titre du paragraphe (2).
38.06(5) Facteurs pertinents
(5) Pour l'application du paragraphe (4), le juge prend en compte tous les facteurs qui seraient pertinents pour statuer sur l'admissibilité en preuve au cours de l'instance.
2001, ch. 41, art. 43.
[38] Finally, subsection 38.11(2) provides for ex parte representations to the Court.
[39] Justice Létourneau in Ribic, supra, explained the statutory scheme established under section 38 of the Act created three potential tasks to be undertaken by a judge hearing the Attorney General’s application:
(1) The first task of a judge hearing the application is to determine whether the information sought to be disclosed is relevant or not “in the usual and common sense [in a criminal proceeding] of the Stinchcombe rule, that is to say in the case at bar information, whether inculpatory or exculpatory, that may reasonably be useful to the defence”. This step was “undoubtedly a low threshold” but remained necessary because “if the information is not relevant, there is no need to go further and engage scarce judicial resources”.
(2) If the first step is cleared, the next task is to determine “whether the disclosure of the information would be injurious to international relations, national defence or national security”. Justice Létourneau added at paragraphs 18 to 20 as follows:
[18] This second step will also involve, from that perspective, an examination or inspection of the information at issue. The judge must consider the submissions of the parties and their supporting evidence. He must be satisfied that executive opinions as to potential injury have a factual basis which has been established by evidence... . It is a given that it is not the role of the judge to second‑guess or substitute his opinion for that of the executive... .
¶ 19 This means that the Attorney General's submissions regarding his assessment of the injury to national security, national defence or international relations, because of his access to special information and expertise, should be given considerable weight by the judge required to determine, pursuant to subsection 38.06(1), whether disclosure of the information would cause the alleged and feared injury. The Attorney General assumes a protective role vis‑à‑vis the security and safety of the public. If his assessment of the injury is reasonable, the judge should accept it. I should add that a similar norm of reasonableness has been adopted by the House of Lords: see Rehman, supra, at page 895 where Lord Hoffmann mentions that the Special Immigration Appeals Commission may reject the Home Secretary's opinion when it was "one which no reasonable minister advising the Crown could in the circumstances reasonably have held".
¶ 20 An authorization to disclose will issue if the judge is satisfied that no injury would result from public disclosure. The burden of convincing the judge of the existence of such probable injury is on the party opposing disclosure on that basis. [emphasis mine]
(3) Justice Létourneau then described the third step at paragraph 21: “[U]pon a finding that disclosure of the sensitive information would result in injury, the judge then moves to the final stage of the inquiry which consists in determining whether the public interest and disclosure outweighs in importance the public interest in non-disclosure”.
THE PROCEEDING
[40] It was in early July, 2003, the Attorney General of Canada made his application in the DES-5-03 proceeding after the plaintiff had amended his statement of claim and after the plaintiff was served with the redacted versions of the amended defence, motion for summary judgment and supporting redacted affidavit.
[41] The Court decided a hearing or hearings were required to decide the Attorney General’s application and a scheduling order was issued on August 28, 2003, providing for, inter alia:
(a) the filing of the respondent’s notice of appearance by late August 2003;
(b) the filing of the Attorney General’s affidavits by September 8, 2003;
(c) the serving and filing of the respondent/plaintiff’s affidavits by September 15, 2003;
(d) cross-examinations to be completed by September 22, 2003;
(e) the serving and filing of the applicant’s and respondent’s motion records;
(f) ex parte hearing in Ottawa to be held in October 2003 and in camera hearing with both parties present to be held on a date to be fixed by the Judicial Administrator.
[42] On September 5, 2003, the Attorney General served and filed on the respondent/plaintiff a non-confidential version of the affidavit of Ivan Sylvain, Director General, Operations Support of CSIS, and also filed a confidential version with the Court. The purpose of Mr. Sylvain’s affidavits was to explain to the Court why the redacted information should not be disclosed.
[43] The respondent/plaintiff missed the deadline set in the scheduling order for the serving and filing of his notice of appearance and responding affidavits to the non-confidential affidavit of Ivan Sylvain which had been served on him.
[44] A number of case management meetings were held concerning the respondent/plaintiff’s non-compliance with the scheduling order as amended. It was only on December 8, 2003, he filed and served a responding affidavit and written representations to Mr. Sylvain’s affidavit. This affidavit and written representation demonstrates the plaintiff/respondent completely misconceived the opportunity which was being accorded him. Needless to say such a mis-step hindered the work of the Court.
[45] In the meantime, on September 26, 2003, the Attorney General filed but did not serve on the plaintiff an application record which contained the redacted information and Mr. Sylvain’s confidential affidavit.
[46] On October 15, 2003, I heard counsel for the Attorney General ex parte in respect of the submissions made by him for non-disclosure of the redacted information as argued in his confidential applicant’s record.
[47] I then heard both parties in Vancouver on February 17, 2004, in camera. As stated, the result of this hearing was of limited value to the Court or to the Attorney General because the respondent/plaintiff misconceived its purpose. He wanted an order disclosing to him the nine documents which were the subject matter of the now adjourned DES-1-03 application. He made no substantive arguments in favour of disclosure of the redacted portions. If he had asked, he would have been told the nine documents he was seeking disclosure of were specifically identified as part of Mr. Sunstrum’s affidavit and are subsumed in this application.
[48] On November 29, 2004, at an ex parte hearing, I required Mr. Sunstrum to appear before me. He was sworn as a witness and provided answers to the several questions I posed concerning the points made in his affidavits.
THE EVIDENCE
[49] It is appropriate, in my view, to cite several portions of the non-confidential version of Mr. Sylvain’s affidavit. Mr. Sylvain has 23 years of experience in security and intelligence work focussed in the management and direction of security investigations and intelligence operations having dealt with sensitive information relating to intelligence regarding the security, foreign affairs and national defence of Canada.
[50] As noted, the purpose of his affidavit was to explain why the redacted information in the three documents noted could not be disclosed. He expressed his belief, based on his experience as an intelligence officer, policy advisor to the Privy Council Office in security and intelligence matters and manager of the security operations, that none of the redacted information in the three documents could be disclosed because the information is sensitive and its disclosure would be injurious to the national security of Canada.
[51] More particularly, at paragraph 7 of his non-confidential affidavit, Mr. Sylvain expressed the view the disclosure of the information contained in the three documents may:
7. . . .
a. identify or tend to identify Service interests in individuals, groups or issues, including the existence or absence of past or present files or investigations, the intensity of investigations, or the degree or lack of success of investigations;
b. identify or tend to identify investigative techniques and methods of operation utilized by Service,
c. identify or tend to identify Service employees or internal procedures and administrative methodology of the Service such as file numbers, and;
d. jeopardize or tend to jeopardize essential international relations.
[52] In the second part of his affidavit, Mr. Sylvain described the mandate of CSIS which was created in July 1984 as a civilian security intelligence agency to replace the security service branch of the RCMP. He identifies the duties and functions of the Service as being set out in sections 12 through 20 of the Canadian Security Intelligence Service Act (the “CSIS Act”). He states the primary mandate of the Service is found in section 12 which directs the Service to “collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada”. The definition of threat to the security of Canada is found in section 2 of the CSIS Act.
[53] In the third part of his affidavit, Mr. Sylvain addresses the issue of information injurious to the national security of Canada. He makes two points. First, he states “secrecy is intrinsic to security intelligence matters” and “the requirement for secrecy with respect to the past and current activities of a security intelligence agency is essential” because CSIS “must have access to information and its knowledge of that information, its extent, and of the methods by which it is obtained, must remain secret”.
[54] The second point he makes is found at paragraph 15 of his affidavit which I cite:
15. Unlike law enforcement investigations, security intelligence investigations are directed towards future events and result in an attempt to predict future events through the discovery of a pattern of occurrences in past and present events. A group or organization enjoys a life and continuity of operation and accordingly a security intelligence investigation does not end with the departure or prosecution of one or more members of the group. A security intelligence investigation is carried out to determine the size and composition of the group involved, its geographic dimensions, its past acts and intended goals, in order to determine its capacity for future harm. There is no completed “offence” to provide a framework for the investigation and it requires the fitting together of bits and pieces of information, many meaningless by themselves, as well as the discerning of the interrelationship of various sources and types of information, to determine whether a pattern of activity exists. This type of an investigation is long range and the age of the information does not itself determine whether its disclosure would be injurious to national security. Rather, it is the nature of the information, the methods by which it was obtained, and the fact of disclosure that may affect national security interests. [emphasis mine]
[55] At paragraphs 16 and 17, Mr. Sylvain discusses the targets of CSIS investigations. He describes the targets of CSIS as including “those individuals or groups involved or suspected of being involved in activities constituting a threat to the security of Canada” (subversion or hostile activity such as espionage, sabotage, terrorism and violent overthrow of government). He states “disclosure of information which would identify or assist in identifying subjects of investigations, thereby confirming the Security Service’s or the Service’s current or previous interest in the target, could jeopardize the efficacy of the operations and investigations of the Service by prompting the targets to take counter-measures to thwart the investigation by the Service and to introduce false or misleading information in the investigative process” thus “nullifying the usefulness of human or technical sources”.
[56] The disclosure of targets “would also provide those engaged in activities constituting a threat to the security of Canada with information that could enable them to access the depth, deployment and sophistication of the resources, as well as the degree of expertise of the Service”.
[57] At paragraphs 18 and 19 of his affidavit, Mr. Sylvain discusses technical sources and states the disclosure of a particular use of technical sources such as electronic surveillance against a target of investigation by CSIS “will compromise any investigation where electronic surveillance is in use”. He adds the “disclosure of the use of a technical source could seriously prejudice the efficacy of any future use of this technique against the same subject or other individuals associated with the target as it would enable them to devise means of rendering ineffective the use of the technical source”.
[58] At paragraphs 20 through 22 of his affidavit, Mr. Sylvain describes methods of operation and personnel and states disclosure of information “which would identify or assist in identifying the methods of operation and the operational policies of CSIS would assist current and future targets of investigation to counter the efforts of the Service”. He states the “methods of operation of CSIS include the specific methodology and techniques used in security intelligence operations as well as operational deployments, structure and strength” and deposes “similarly, disclosure of such information in relation to specific investigations could reveal the Service’s knowledge of or interest in the activities of targets and reveal the capabilities as well as deficiencies of the Service”.
[59] He states the ability to engage in effective covert surveillance operations is essential to the Service’s proper discharge of its duties with the purpose of surveillance being to obtain information and intelligence such as surveillance conducted, in many cases, on a long-term basis. He confirms CSIS “maintains covert operatives who observe and report on the activities of various targets” and that “the disclosure of the identities of these covert operatives would end their continued usefulness to the Service and would seriously prejudice ongoing observations of the targets whose activities they are observing” adding “the disclosure of their identities could pose a danger to their safety and could affect the recruitment of new covert operatives and the continued servicing of current covert operatives if they were aware their identities were subject to disclosure”.
[60] At paragraph 23 of his affidavit, Mr. Sylvain states there would be harm to international relations as certain information would disclose the countries of interest to Canada that have been targeted by its intelligence agencies and the disclosure of these “targets would cause an international furor or backlash with the possibility of diplomatic and trade sanctions being applied against Canada and possibly its allies”.
[61] In the final part of his affidavit, Mr. Sylvain talks about the mosaic effect and his having taken account of its effect when forming his opinion on the likelihood of damage to national security resulting from the disclosure of the information in the three stated documents.
[62] At paragraph 25 of his affidavit he states “assessing the damage caused by disclosure of information cannot be done in the abstract or in isolation. It must be ass