Llewellyn v. Canada (Attorney General)

Llewellyn v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2024-12-10
Neutral citation
2024 FC 2002
File numbers
T-1086-22
Decision Content
Date: 20241210
Docket: T-1086-22
Citation: 2024 FC 2002
Ottawa, Ontario, December 10, 2024
PRESENT: The Honourable Madam Justice Kane
BETWEEN:
GARETH LLEWELLYN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] The Applicant, Gareth Llewellyn [Mr. Llewellyn], seeks judicial review of the decision of the National Security Intelligence Review Agency [NSIRA], dated May 9, 2022, which dismissed Mr. Llewellyn’s complaint against the Canadian Security Intelligence Service [CSIS].
[2] Mr. Llewellyn argues that NSIRA erred in finding that it did not have jurisdiction to investigate his complaint and erred in finding that his complaint was frivolous. Mr. Llewellyn also argues that NSIRA breached the duty of procedural fairness owed to him.
[3] Mr. Llewellyn seeks relief against the allegedly erroneous decision and procedurally unfair process, initially requesting that the Court order NSIRA to investigate his complaint, and subsequently to provide the results of NSIRA’s investigation of his complaint to the Prime Minister of Canada and the Director of CSIS. At the hearing of this Application, he focussed on the alternative relief of remitting the complaint to NSIRA for reconsideration.
[4] For the reasons that follow, the Application for Judicial Review is dismissed. NSIRA reasonably found that it did not have jurisdiction to investigate Mr. Llewellyn’s complaint, which set out 53 allegations, including because the complaint was frivolous. NSIRA did not misinterpret or narrow its mandate to investigate “any activity carried out by the Canadian Security Intelligence Service”, nor did NSIRA conflate the two criteria to establish jurisdiction by focussing on its finding that the complaint was frivolous. NSIRA did not err in finding that Mr. Llewellyn had made a similar complaint in 2008 regarding similar allegations to the Security Intelligence Review Committee [SIRC], which found that the SIRC had no jurisdiction, and that the similar allegations in the 2021 complaint were res judicata. Nor did NSIRA breach the duty of procedural fairness owed to Mr. Llewellyn; NSIRA followed its stated process and Mr. Llewellyn was not denied a meaningful opportunity to participate in the complaint process.
[5] The Court reiterates the same sentiment noted by Justice Noël in Llewellyn v Canadian Security Intelligence Service, 2014 FC 432 at para 40, which dismissed Mr. Llewellyn’s two applications for judicial review of decisions of CSIS and the Canada Border Services Agency [CBSA] respectively, regarding his requests pursuant to the Privacy Act, RSC 1985, c P-21 for personal information :
Before signing this judgement, the Court would like to reach to the Applicant in order to appease his impression about his views that he is investigated by the CSIS and the CBSA with the participation of Prime Minister Harper. This Court informs that, having had a full view of all the information, it did not identify any CBSA or CSIS investigation that would have involved the Prime Minister. Therefore, if that can be understood by the Applicant, he should go on in his life in peace and with the satisfaction that there is no investigation involving him.
[6] The Court again notes that while Mr. Llewellyn may sincerely believe that the incidents he describes were orchestrated by CSIS, including that CSIS has taken several threat reduction measures [TRMs] against him to address a perceived national security threat, there is no objective basis to support this belief. The incidents he describes do not appear to have any potential to reduce any threat that he could possibly pose to the security of Canada, nor is their any evidence of why he would be perceived as a threat, other than his description of his early career and involvement in the Northern Foundation in the mid-1980s, which is long in the past.
[7] Mr. Llewellyn may wish to consider that there are many other reasonable explanations for the conduct he labels as surveillance and harassment by CSIS. For example, many men wear baseball hats, many people park on the street and walk in neighbourhoods and in the Experimental Farm, accidents happen, flat tires occur from time to time, noisy occupants in neighbouring hotel rooms are not uncommon and Bell linesmen climb telephone poles to do their work.
I. Background A. The Complaint to NSIRA [8] Mr. Llewellyn’s 2021 complaint to NSIRA includes allegations against CSIS of violations of several statutes, such as the Canadian Charter of Rights and Freedoms [Charter], the Canada Labour Code, RSC 1985, c L-2, the Criminal Code, RSC 1985, c C-46 [Criminal Code], the Canadian Security Intelligence Service Act, RSC 1985, c C-23 [CSIS Act], and the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Punishment, Can TS 1987 No 36.
[9] Mr. Llewellyn’s complaint is set out in a document totalling 203 pages and includes 53 specific allegations against CSIS regarding incidents he describes and attributes to CSIS spanning over 30 years. The Certified Tribunal Record [CTR] includes at least two complete copies of the complaint, which includes detailed narratives and several appendices (for example, email exchanges, newspaper clippings, and photographs), all of which were submitted by Mr. Llewellyn to NSIRA, as well as other correspondence between Mr. Llewellyn and NSIRA and the NSIRA decision.
[10] The background to the complaint was described in Canada (Attorney General) v Llewellyn, 2024 FC 143 at paras 11-13 [Llewellyn 1]:
[11] In his complaint, Mr. Llewellyn describes his career, noting that in 1997 he was engaged as a researcher for the “back bench committee” designed to identify potential candidates for federal election. He subsequently co-founded the Northern Foundation [NF], also designed to attract potential federal candidates. Mr. Llewellyn states that the NF was infiltrated by a neo- Nazi. Mr. Llewellyn also states that he reported the infiltration of the neo-Nazi to CSIS, which led to CSIS associating Mr. Llewellyn with the neo-Nazi and, in turn, led to CSIS’s ongoing interest in Mr. Llewellyn.
[12] Mr. Llewellyn also describes his past employment with Revenue Canada and the Canadian Border Security Agency [CBSA]. He claims that he was investigated by CSIS while in these roles.
[13] Mr. Llewellyn claims that CSIS surveyed and harassed him over a period of several years. He describes most of his complaints as relating to TRMs that he contends were taken against him by CSIS. In his request to NSIRA to review and investigate CSIS’s activities, he alleges that the former Prime Minister directed a campaign to have him “deemed” as involved in terrorist activity, which derailed his career and affected his health. The key aspects of his allegations of harassment are summarized in the NSIRA decision.
[11] The Respondent groups Mr. Llewellyn’s 53 allegations into several categories: entrapment and collusion by CSIS with other individuals and foreign governments; defamation, use of TRMs and other actions because he was allegedly viewed as a Neo-Nazi, spy or asset and a threat to the security of Canada; interference with his employment, particularly at the CBSA; and, interference in his personal life and treatment for health conditions, including discouraging countless lawyers from assisting him, disrupting his wedding, and exposing him to COVID-19 while awaiting treatment at the University of Ottawa Heart Institute.
[12] Mr. Llewellyn’s affidavit, filed in support of this Application, characterizes and re‑characterizes the incidents underlying his complaint and adds other information. As noted below, he seeks to admit “new” evidence that was not part of his complaint to NSIRA.
[13] Mr. Llewellyn’s affidavit describes the incidents which led to his complaint, the complaint process and the outcome. Mr. Llewellyn recounts, among other things, that he was exposed to TRMs or disruption activities in the late 1980s, which he attributed to attention that he drew to himself by challenging government legislation. He recounts his involvement in the Northern Foundation and asserts that this involvement led to him being perceived as a neo-Nazi or associated with a neo-Nazi. He also recounts his various employment opportunities, including with the Canada Customs and Revenue Agency and the CBSA. He reiterates allegations that CSIS orchestrated a campaign of surveillance and harassment on and off since the early 1990s, which ramped up in the 2000s. He refers to incidents, including vandalism, parked cars, mysterious packages, “honey traps”, disruption of his honeymoon, being followed in his neighbourhood, being forced off walking paths in parks, making complaints to the Ottawa Police Service that were taken by fake police (impersonators) and having his complaints ignored; travelling to Maine and New York to obtain a safety deposit box for his documents and being detained and advised by border guards that CSIS was concerned he would release classified information; unsuccessfully seeking refugee status in South America and being surveilled by CSIS in South America. He states that CSIS “TRM personnel” followed him into the University of Ottawa Heart Institute while he was undergoing medical procedures and influenced or interfered in assessments done by medical personnel. He further asserts that CSIS operatives were present in the operating room when he underwent various medical procedures.
B. Chronology of the Complaint Process [14] In 2008 Mr. Llewellyn made a complaint to the Security Intelligence Review Committee [SIRC] (the predecessor to NSIRA) with similar allegations, including that CSIS had engaged in a harassment campaign against him, interfered with his career via his CBSA manager, surveilled him, intercepted his communications and accessed his work computer to induce security lapses. SIRC concluded that it had no jurisdiction to investigate his complaint.
[15] On April 6, 2021, Mr. Llewellyn filed a complaint with NSIRA, which made 53 specific allegations against CSIS.
[16] NSIRA invited submissions from both CSIS and Mr. Llewellyn. On July 29, 2021, CSIS provided classified representations to NSIRA. NSIRA provided a copy of NSIRA’s unclassified submissions to Mr. Llewellyn. On September 21, 2021, Mr. Llewellyn made written submissions to NSIRA indicating that NSIRA has jurisdiction to investigate his complaints and that his complaints were not frivolous or vexatious, but rather showed clear instances of his contact with CSIS, including that his name appeared in CSIS documents.
[17] On March 7, 2022, Mr. Llewellyn advised NSIRA that on January 16, 2022 he had sent an updated complaint to NSIRA via mail. This addendum referred to his polygraph examination in 2005 and discussions with CSIS employees.
[18] On March 11, 2022, NSIRA advised Mr. Llewellyn that it had made its determination with respect to its jurisdiction on February 16, 2022, and that the reasons for the determination would be provided to him by letter. NSIRA advised that it would communicate again with Mr. Llewellyn once NSIRA received his updated complaint.
[19] On April 5, 2022, NSIRA advised Mr. Llewellyn that its February 16, 2022 determination was made based on its review of the information available at that time. NSIRA had not received Mr. Llewellyn’s updated complaint via mail and requested that he provide a copy by email. Mr. Llewellyn did so.
[20] NSIRA rendered its decision on May 9, 2022.
[21] Mr. Llewellyn filed this Application for Judicial Review of NSIRA’s decision on May 27, 2022, which he amended on July 18, 2022.
C. The Section 38 Canada Evidence Act Application [22] The Attorney General of Canada [AGC] filed a Notice of Application (as amended) on October 19, 2022, pursuant to section 38.04 of the Canada Evidence Act, RSC 1985, c C-5 [CEA] [the Section 38 Application], seeking an order confirming the statutory prohibition on disclosure of certain sensitive or potentially injurious information, as those terms are defined in the CEA. The information was redacted in several documents that NSIRA produced to Mr. Llewellyn in the Certified Tribunal Record [CTR] in accordance with Rule 317 of the Federal Courts Rules, SOR/98-106 for the purpose of his Application for Judicial Review. The Court’s determination of the AGC’s Section 38 Application is set out in Llewellyn 1.
[23] As noted in Llewellyn 1, the majority of documents in the CTR are documents provided by Mr. Llewellyn to NSIRA, including his complaint, appendices that elaborate on his complaint, correspondence with various people and agencies regarding, among other things, past grievances against his employers and less formal employment-related issues. Although some information in the CTR is redacted and cannot be made public, Mr. Llewellyn is aware of the vast majority of this information. There are only three documents that did not originate from Mr. Llewellyn that have been redacted in part:
A letter dated July 29, 2021, from the Director General External Review and Compliance at CSIS to the Registrar of NSIRA describing the results of CSIS’s search of its holdings and noting that NSIRA can attend CSIS’s premises to review the holdings electronically. Spaces in three lines have been redacted. The letter also notes “[t]he Service does not have any submissions to make with respect to the Review Agency’s [NSIRA’s] jurisdiction at this time.”
A one-and-a-half-page email memo dated August 19, 2021, from the Registrar of CSIS to Nathalie Pelletier (copied to two others) bearing the subject line “NSIRA File 07-403-53 (Gareth Llewellyn) Memo to file regarding Quality Assurance Check”. The memo describes the Registrar’s findings based on her attendance at the CSIS premises to conduct a quality assurance check. It notes the words used to search a database. The redactions are to three blocks and a few additional spaces.
The Record of Decision and Determination of Jurisdiction by the designated member of NSIRA, Mr. Craig Forcese, dated February 16, 2022 is redacted in one and a half lines on two pages and a few paragraphs on page 3, which reiterate the results of the Quality Assurance Check as set out in the August 19, 2021 memo noted above. The redactions are identical.
II. The Relevant Statutory Provisions [24] Section 12.1 of the CSIS Act states:
12.1 (1) If there are reasonable grounds to believe that a particular activity constitutes a threat to the security of Canada, the Service may take measures, within or outside Canada, to reduce the threat.
12.1 (1) S’il existe des motifs raisonnables de croire qu’une activité donnée constitue une menace envers la sécurité du Canada, le Service peut prendre des mesures, même à l’extérieur du Canada, pour réduire la menace.
(2) The measures shall be reasonable and proportional in the circumstances, having regard to the nature of the threat, the nature of the measures, the reasonable availability of other means to reduce the threat and the reasonably foreseeable effects on third parties, including on their right to privacy.
(2) Les mesures doivent être justes et adaptées aux circonstances, compte tenu de la nature de la menace et des mesures, des solutions de rechange acceptables pour réduire la menace et des conséquences raisonnablement prévisibles sur les tierces parties, notamment sur leur droit à la vie privée.
(3) Before taking measures under subsection (1), the Service shall consult, as appropriate, with other federal departments or agencies as to whether they are in a position to reduce the threat.
(3) Avant de prendre des mesures en vertu du paragraphe (1), le Service consulte, au besoin, d’autres ministères ou organismes fédéraux afin d’établir s’ils sont en mesure de réduire la menace.
(3.1) The Canadian Charter of Rights and Freedoms is part of the supreme law of Canada and all measures taken by the Service under subsection (1) shall comply with it.
(3.1) La Charte canadienne des droits et libertés fait partie de la loi suprême du Canada et toutes les mesures prises par le Service en vertu du paragraphe (1) s’y conforment.
(3.2) The Service may take measures under subsection (1) that would limit a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms only if a judge, on an application made under section 21.1, issues a warrant authorizing the taking of those measures.
(3.2) Le Service ne peut, en vertu du paragraphe (1), prendre des mesures qui limiteraient un droit ou une liberté garanti par la Charte canadienne des droits et libertés que si, sur demande présentée au titre de l’article 21.1, un juge décerne un mandat autorisant la prise de ces mesures.
(3.3) The judge may issue the warrant referred to in subsection (3.2) only if the judge is satisfied that the measures, as authorized by the warrant, comply with the Canadian Charter of Rights and Freedoms.
(3.3) Le juge ne peut décerner le mandat visé au paragraphe (3.2) que s’il est convaincu que les mesures, telles qu’autorisées par le mandat, sont conformes à la Charte canadienne des droits et libertés.
(3.4) The Service may take measures under subsection (1) that would otherwise be contrary to Canadian law only if the measures have been authorized by a warrant issued under section 21.1.
(3.4) Le Service ne peut, en vertu du paragraphe (1), prendre des mesures qui seraient par ailleurs contraires au droit canadien que si ces mesures ont été autorisées par un mandat décerné au titre de l’article 21.1.
(3.5) The Service shall, after taking measures under subsection (1), notify the Review Agency of the measures as soon as the circumstances permit.
(3.5) Dans les plus brefs délais possible après la prise de mesures en vertu du paragraphe (1), le Service avise l’Office de surveillance de ces mesures.
(4) For greater certainty, nothing in subsection (1) confers on the Service any law enforcement power.
(4) Il est entendu que le paragraphe (1) ne confère au Service aucun pouvoir de contrôle d’application de la loi.
12.2 (1) In taking measures to reduce a threat to the security of Canada, the Service shall not
12.2 (1) Dans le cadre des mesures qu’il prend pour réduire une menace envers la sécurité du Canada, le Service ne peut :
(a) cause, intentionally or by criminal negligence, death or bodily harm to an individual;
a) causer, volontairement ou par négligence criminelle, des lésions corporelles à un individu ou la mort de celui-ci;
(b) wilfully attempt in any manner to obstruct, pervert or defeat the course of justice;
b) tenter volontairement de quelque manière d’entraver, de détourner ou de contrecarrer le cours de la justice;
(c) violate the sexual integrity of an individual;
b) tenter volontairement de quelque manière d’entraver, de détourner ou de contrecarrer le cours de la justice;
(d) subject an individual to torture or cruel, inhuman or degrading treatment or punishment, within the meaning of the Convention Against Torture;
d) soumettre un individu à la torture ou à d’autres peines ou traitements cruels, inhumains ou dégradants, au sens de la Convention contre la torture;
(e) detain an individual; or
e) détenir un individu;
(f) cause the loss of, or any serious damage to, any property if doing so would endanger the safety of an individual.
f) causer la perte de biens ou des dommages importants à ceux-ci si cela porterait atteinte à la sécurité d’un individu.
(2) [Repealed, 2019, c. 13, s. 99]
(2) [Abrogé, 2019, ch. 13, art. 99]
[25] Section 8 of the National Security and Intelligence Review Agency Act, SC 2019, c 13, s 2 [NSIRA Act] states:
8 (1) The mandate of the Review Agency is to
8 (1) L’Office de surveillance a pour mandat :
(a) review any activity carried out by the Canadian Security Intelligence Service or the Communications Security Establishment;
a) d’examiner toute activité exercée par le Service canadien du renseignement de sécurité ou le Centre de la sécurité des télécommunications;
(b) review any activity carried out by a department that relates to national security or intelligence;
b) d’examiner l’exercice par les ministères de leurs activités liées à la sécurité nationale ou au renseignement;
(c) review any matter that relates to national security or intelligence that a minister of the Crown refers to the Agency; and
c) d’examiner les questions liées à la sécurité nationale ou au renseignement dont il est saisi par un ministre;
(d) investigate
d) de faire enquête sur :
(i) any complaint made under subsection 16(1), 17(1) or 18(3),
(i) les plaintes qu’il reçoit au titre des paragraphes 16(1), 17(1) ou 18(3),
(ii) any complaint referred to the Agency under subsection 45.53(4.1) or 45.67(2.1) of the Royal Canadian Mounted Police Act,
(ii) les plaintes qui lui sont renvoyées au titre des paragraphes 45.53(4.1) ou 45.67(2.1) de la Loi sur la Gendarmerie royale du Canada,
(iii) reports made to the Agency under section 19 of the Citizenship Act, and
(iii) les rapports qui lui sont adressés en vertu de l’article 19 de la Loi sur la citoyenneté,
(iv) matters referred to the Agency under section 45 of the Canadian Human Rights Act.
(iv) les affaires qui lui sont transmises en vertu de l’article 45 de la Loi canadienne sur les droits de la personne.
(2) In the course of its review of activities carried out by the Canadian Security Intelligence Service, the Review Agency must, each calendar year, review at least one aspect of the Service’s performance in taking measures to reduce threats to the security of Canada.
(2) Dans le cadre de l’examen des activités du Service canadien du renseignement de sécurité, l’Office de surveillance examine, chaque année civile, au moins un aspect de la prise, par le Service, de mesures pour réduire les menaces envers la sécurité du Canada.
[…]
[…]
16(1) Any person may make a complaint to the Review Agency with respect to any activity carried out by the Canadian Security Intelligence Service and the Agency must, subject to subsection (2), investigate the complaint if
16 (1) Toute personne peut porter plainte contre des activités du Service canadien du renseignement de sécurité auprès de l’Office de surveillance; sous réserve du paragraphe (2), celui-ci fait enquête à la condition de s’assurer au préalable de ce qui suit :
(a) the complainant has made a complaint to the Director with respect to that activity and the complainant has not received a response within a period of time that the Agency considers reasonable or is dissatisfied with the response given; and
a) d’une part, la plainte a été présentée au directeur sans que ce dernier ait répondu dans un délai jugé normal par l’Office de surveillance ou ait fourni une réponse qui satisfasse le plaignant;
(b) the Agency is satisfied that the complaint is not trivial, frivolous or vexatious or made in bad faith.
b) d’autre part, la plainte n’est pas frivole, vexatoire, sans objet ou entachée de mauvaise foi.
III. NSIRA’s Decision [26] On May 10, 2022, the Registrar of NSIRA sent Mr. Llewellyn an email noting that a letter dated May 9, 2022, setting out the decision had been mailed to him and citing the contents of the letter verbatim (which is described below). The email also explained that the updated information sent by Mr. Llewellyn had been sent to the wrong address but had subsequently been located, redirected to NSIRA and considered, but did not change the outcome of the decision. The email also referred to motions that Mr. Llewellyn had made to NSIRA.
[27] The letter from the Registrar of NSIRA, dated May 9, 2022, was sent to Mr. Llewellyn by registered mail. The letter states that NSIRA conducted a preliminary review of the information received from Mr. Llewellyn and determined that some of the allegations were not substantially different from allegations he made in his 2008 complaint to NSIRA’s predecessor, SIRC. With respect to the new or additional allegations since 2008, NSIRA noted it had conducted a preliminary review of the information available, including the complaint and the written representations, and determined that NSIRA did not have jurisdiction to investigate these allegations pursuant to section 16 of the NSIRA Act.
[28] The letter notes that section 16 of the NSIRA Act provides the mandate for NSIRA “to investigate complaints regarding any activity carried out by the Service” and cites subsection 16(1) with respect to the criteria to investigate a complaint. The letter notes that NSIRA carefully reviewed the complaint, conducted an independent verification of the allegations against CSIS, and determined that the allegations “do not refer to an activity carried out by CSIS”. The letter states that “the first criteria to establish jurisdiction pursuant to subsection 16(1) has not been met. Because your complaint is not directed to an activity done by CSIS, it is not within [NSIRA’s] mandate to initiate an investigation…” [Emphasis added].
[29] The letter also states that NSIRA determined that there was a lack of an evidentiary basis to support the allegations and accordingly, NSIRA is satisfied that the complaint is frivolous pursuant to paragraph 16(1)(b) of the NSIRA Act.
[30] NSIRA’s Record of Decision and Determination of Jurisdiction [Determination] rendered by Mr. Craig Forcese, a member of NSIRA, along with the letter described above, constitute the reasons for NSIRA’s decision [the Decision].
[31] The Determination notes that a single member of NSIRA can determine whether NSIRA has jurisdiction to investigate a complaint or to refer it to NSIRA for investigation.
[32] The Determination sets out the background, noting that Mr. Llewellyn submitted a complaint to the Director of CSIS in January 18, 2021, alleging that he was the subject of “unjust and illegal activities”, including TRMs. The Determination notes several of Mr. Llewellyn’s allegations, including that CSIS regarded him as a neo-Nazi in or around 1988 and launched “a TR or disrupt” campaign against him; placed eavesdropping devices in his home; lured him to join Revenue Canada’s investigation unit in 2002; launched a “counterfeit sting” operation against him in Paris; harassed him in 2006; intruded on his wedding in 2008; monitored his computer; blocked his attempt to seek refugee status in another country; interfered with his complaint to the Law Society of Upper Canada; obscured his entry to the University of Ottawa Heart Institute in January and February 2021; and conducted a defamation campaign against him.
[33] The Determination notes that Mr. Llewellyn alleged that CSIS breached several statutes including the Charter, Criminal Code and CSIS Act and incorrectly identified him as a threat to the security of Canada, as well as entrapped, defamed, overtly surveilled, harassed, subjected him to “medical surveillance” and stole his documents and mail.
[34] The Determination acknowledges that Mr. Llewellyn submitted many documents with his complaint, including the documents submitted regarding his 2008 complaint to SIRC, photos, medical information, court documents, news articles, information related to a security screening interview and information related to a grievance.
[35] The Determination also notes the similar complaints made by Mr. Llewellyn in 2008 to SIRC, alleging that CSIS had undertaken a harassment campaign against him, and SIRC’s conclusion that it did not have the jurisdiction to deal with the complaint because some allegations did not pertain to “an act or thing” done by CSIS and other allegations were frivolous.
[36] The Determination acknowledges that the current complaint includes additional allegations and refers to CSIS’s use of TRMs, which was not a power available to SIRC in 2008. The Determination states “to the extent that the matter duplicates allegations made to SIRC, those allegations were already dealt with and should be considered res judicata or issue estoppel.”
[37] With respect to the allegations of CSIS activity, the Determination explains that CSIS provided representations to NSIRA indicating that CSIS had searched its corporate and operational holdings and that initial searches revealed two security screening requests for upgraded security clearances in 1995 and 2004. The corporate holdings revealed correspondence and administrative documents related to ATIP requests, complaints to the Director of CSIS, responses from CSIS, the 2008 complaint to SIRC, records from CSIS’s Global Operations Centre relating to Mr. Llewellyn, and records related to Mr. Llewellyn’s candidacy for a secondment to CBSA.
[38] The Determination notes that the Registrar of NSIRA had attended at CSIS to review their holdings. The results of the Registrar’s “Quality Assurance Check” and their repetition in the Determination are redacted pursuant to Llewellyn 1, however, the Court has reviewed the unredacted documents.
[39] With respect to the additional allegations against CSIS post-2008, including the alleged TRMs, the Determination concludes that “there is no evidence of activity in the sense of operational conduct by the Service. As such, the first criteria to establish jurisdiction pursuant to subsection 16(1) of the NSIRA Act has not been met”.
[40] The Determination also concludes that, due to the apparent lack of any evidentiary basis to support Mr. Llewellyn’s allegations, the allegations met the definition of frivolous. The Determination states:
Furthermore, a complaint is frivolous when, on its face, it is devoid of substance and/or where there is no rational argument in support of the allegation ... (citations omitted). Based on my review of the submissions of the parties, and the apparent lack of any evidentiary basis to support the Complainant’s allegations, the allegations raised in this complaint meet this definition.
[41] The Determination notes that subsequent to filing his 2021 complaint, Mr. Llewellyn alleged that CSIS was interfering with his ability to retain a lawyer. The Determination concludes that “there is no information available that supports [Mr. Llewellyn’s] assertion that the Service is interfering with his ability to retain a lawyer”.
IV. The Applicant’s Submissions [42] Mr. Llewellyn’s written submissions recount the incidents that he described in his complaint to NSIRA, with some differences. Mr. Llewellyn reiterates that he was subjected to a longstanding campaign by CSIS of surveillance and harassment which has had a devastating impact on his health and his safety. This includes CSIS’s alleged use of TRMs against him since 2015 (the date that the CSIS Act was amended to authorize TRMs).
[43] Mr. Llewellyn’s submissions at the hearing of this Application focussed on: the interpretation of section 16 of the NSIRA Act; the differences in NSIRA’s mandate from that of its predecessor, SIRC; NSIRA’s role in providing broad oversight for CSIS’s activities and the national security related activities of other government agencies and departments; and, highlighting an incident that was the subject of the 2008 complaint to SIRC. Mr. Llewellyn emphasized that the purpose of this Application was not to revisit the merits of his complaint and his specific allegations, but rather to determine if NSIRA erred in finding that it did not have jurisdiction to investigate. In his view, NSIRA misinterpreted and narrowed its mandate and should have found that it had jurisdiction to investigate his complaint and that there was an air of reality and evidence to support his allegations—at least one of them.
[44] Mr. Llewellyn first submits that new evidence should be admitted and considered by the Court. In particular, Mr. Llewellyn seeks to rely on his own affidavit filed in support of this Application, which summarizes his complaint and adds additional details to some incidents described therein. He also seeks to rely on the affidavit of the AGC’s affiant in the section 38 Application, who provided a public affidavit describing, in general, the types of information that CSIS seeks to protect from public disclosure in accordance with the CEA. He also seeks to rely on the transcript of the cross-examination of the affiant.
[45] Mr. Llewellyn argues that these documents provide general background information and/or fill in gaps in the record before the Court regarding the meaning of “activity” in section 16 of the NSIRA Act and fall within exceptions to the general principle that the Court reviews a decision on the basis of the record before the decision-maker.
[46] Mr. Llewellyn submits that the applicable standard of review for all the issues in this Application is correctness, in particular regarding NSIRA’s interpretation of its enabling legislation. Mr. Llewellyn submits that the determination of NSIRA’s mandate, in particular, the meaning of “any activity” is a question of general importance to the legal system as a whole and that one single interpretation is required. Alternatively, if the reasonableness standard applies, Mr. Llewellyn submits that the principles of statutory interpretation lead to only one interpretation of the relevant provisions.
[47] Mr. Llewellyn argues that the Decision that it did not have jurisdiction to investigate the complaint is incorrect or unreasonable; Mr. Llewellyn submits that NSIRA erred in interpreting its jurisdiction narrowly, contrary to the plain meaning of the NSIRA Act; Mr. Llewellyn also submits that NSIRA’s determination that it lacked jurisdiction pursuant to paragraph 16(1)(a) was tainted by its finding pursuant to paragraph 16(1)(b) that the complaint was frivolous.
[48] Mr. Llewellyn argues that NSIRA incorrectly or unreasonably found that his complaint was frivolous. Mr. Llewellyn points to documents that support his account of CSIS conducting a polygraph examination in 2005 and requiring that he permit CSIS and CBSA to retrieve documents from his home, which he characterizes as an attempt by CSIS to thwart his security clearance and secondment to the CBSA. He submits that these documents provide an air of reality to his complaint about the activity of CSIS and CBSA.
[49] Mr. Llewellyn further argues that NSIRA incorrectly or unreasonably found that his complaint was “largely” res judicata. He argues that NSIRA’s mandate is broader than that of its predecessor, SIRC, and that SIRC’s determination of his 2008 complaint did not address the conduct of CSIS together with CBSA, which NSIRA could now address pursuant to its broader mandate and review of activities of government departments related to national security. He adds that it is not clear which allegations NSIRA found to be res judicata.
[50] Mr. Llewellyn contends that NSIRA breached its duty of procedural fairness. He recounts that he was advised by NSIRA that he would be provided with a copy of CSIS’s Protected B submissions in response to the complaint on the issue of NSIRA’s jurisdiction and that he would have an opportunity to reply. He argues that he did not have a meaningful opportunity to participate due to the redaction of the documents in the CTR and due to the lack of any submissions from CSIS on the issue of NSIRA’s jurisdiction.
V. The Respondent’s Submissions [51] The Respondent submits that the Decision is reasonable and NSIRA did not breach the duty of procedural fairness owed to Mr. Llewellyn.
[52] The Respondent submits that NSIRA reasonably interpreted its enabling statute when it found that it did not have jurisdiction to investigate the complaint. NSIRA is owed deference in its interpretation and the Court should not proceed with its own interpretation.
[53] The Respondent emphasizes that the Decision responds to Mr. Llewellyn’s complaint: NSIRA did not expound on its interpretation of its mandate to investigate complaints in general. NSIRA reasonably found that Mr. Llewellyn’s complaint did not refer to an “activity carried out by CSIS”. The Respondent submits that this conclusion is supported by the independent verification by NSIRA of CSIS’s holdings.
[54] The Respondent further submits that NSIRA reasonably determined that res judicata applied to the similar 2008 allegations and no exceptions apply in this case. The Respondent notes that NSIRA did not find that the doctrine applied to all of the allegations, only those raised in the 2008 complaint. NSIRA considered the new allegations.
[55] The Respondent notes that the definition of frivolous as cited by NSIRA fits the allegations and reflects the hallmarks of finding a complaint to be frivolous (for example, as addressed in Ontario’s Rules of Civil Procedure, RRO 1990, Reg 194); NSIRA reasonably determined that the complaint is frivolous.
VI. The Standard of Review [56] Mr. Llewellyn submits that the issues on the Application relate to the interpretation of the CSIS Act and the NSIRA Act and, as such, raise general questions of law that are of central importance to the legal system, requiring the correctness standard of review.
[57] Mr. Llewellyn argues that the reasonableness standard is rebutted because the rule of law requires a single answer and greater legal certainty to guide NSIRA’s review of other complaints (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 32, 62 [Vavilov]). Mr. Llewellyn submits that the interpretation of section 16 is of central importance to the legal system because the issue goes beyond his complaint and informs the mandate of NSIRA to review complaints about CSIS.
[58] Mr. Llewellyn relies on recent jurisprudence, including Del Grande v Toronto Catholic District School Board, 2024 ONCA 769 at para 17, where the Ontario Court of Appeal cited Vavilov regarding correctness applying where the rule of law so requires (but found on the facts of that case that reasonableness remained the presumptive standard) and Association of Management, Administrative and Professional Crown Employees of Ontario v Ontario (Ministry of the Attorney General), 2024 ONSC 1555, where the Divisional Court cited para 59 of Vavilov regarding the need for questions of law to result in a consistent answer given their impact on the administration of justice as a whole.
[59] Mr. Llewellyn alternatively argues that if the reasonableness standard applies, the precise language in the NSIRA Act limits the interpretation of section 16 to a single interpretation (Vavilov at para 68).
[60] The Respondent submits that there is no basis to rebut the presumptive standard of review of reasonableness.
[61] The Court notes that the recent jurisprudence relied on by Mr. Llewellyn applies the principles established in Vavilov to the facts and this jurisprudence does not break new ground.
[62] In Vavilov, the Supreme Court of Canada stated at para 32:
That being said, our starting position that the applicable standard of review is reasonableness is not incompatible with the rule of law. However, because this approach is grounded in respect for legislative choice, it also requires courts to give effect to clear legislative direction that a different standard was intended. Similarly, a reviewing court must be prepared to derogate from the presumption of reasonableness review where respect for the rule of law requires a singular, determinate and final answer to the question before it. Each of these situations will be discussed in turn below.
[63] The Supreme Court then identified five types of questions or issues where the standard of reasonableness is rebutted: when there is a legislated standard of review or statutory appeal mechanism; and, when required by the rule of law, for constitutional questions, general questions of law of central importance to the legal system and for questions regarding the jurisdictional boundaries between two or more administrative bodies. The Supreme Court noted that other types of questions could emerge where correctness review applies.
[64] I agree with the Respondent that the issues raised in this Ap