Canada (Citizenship and Immigration) v. Mahjoub

Canada (Citizenship and Immigration) v. Mahjoub
Court (s) Database
Federal Court Decisions
Date
2012-05-31
Neutral citation
2012 FC 669
File numbers
DES-7-08
Notes
A correction was made on March 3, 2014
Reported Decision
Decision Content
Date: 20120531
Docket: DES-7-08
Citation: 2012 FC 669
Ottawa, Ontario, May 31, 2012
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
IN THE MATTER OF A CERTIFICATE SIGNED PURSUANT TO SUBSECTION 77(1) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT (IRPA);
IN THE MATTER OF THE REFERRAL OF A CERTIFICATE TO THE FEDERAL COURT OF CANADA PURSUANT TO SUBSECTION 77(1) OF THE IRPA;
AND IN THE MATTER OF MOHAMED ZEKI MAHJOUB
REASONS FOR ORDER AND ORDER
[1] By notice of motion dated September 16, 2011, Mr. Mahjoub seeks:
“(i) A permanent stay of proceedings in conformity with sections 7, 8 and 24(1) of the Canadian Charter of Rights and Freedoms, [Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11] (hereinafter the Charter) and section 50 of the Federal Courts Act [R.S.C. 1985, c. F-7];
(ii) An order for the release without conditions of the Applicant;
(iii) An order reserving the right of the parties to present further submissions for the retrieval, sealing or destruction of the co-mingled material;
(iv) in the alternative, such further and other remedy as this Honourable Court considers appropriate and just in the circumstances including the removal of [Department of Justice] DOJ counsel and legal staff on record and CBSA [Canadian Border Services Agency]/ CSIS [Canadian Security Intelligence Service] staff;”
[2] Mr. Mahjoub states the following grounds in support of his motion:
“1. The Department of Justice (DOJ) breached Mr. Mahjoub’s right to retain and instruct legal counsel in private, his rights to solicitor-client privilege and to litigation privilege by:
(i) The seizure and the possession, on or about July 20 and 21, 2011, of the entirety of confidential material from Mr. Mahjoub’s file, which was left in the confidential break out room at the Federal Court in Toronto by Public Counsel;
(ii) The manipulation of the confidential material from Mr. Mahjoub’s file by DOJ staff members and/or legal counsel between July 20-21 and September 1, 2011;
(iii) The co-mingling of confidential material from Mr. Mahjoub’s file by DOJ staff members and/or legal counsel with material from the DOJ’s file;
(iv) The review of confidential material from Mr. Mahjoub’s file by DOJ staff and one or more litigation counsel;
II. The separation and retrieval of the co-mingled documents would necessarily imply reading a part of the documents by both parties in order to assess what belongs to whom and it is therefore impossible to do without a risk of breach of solicitor-client privilege and/or litigation privilege and a risk of favouring the Ministers.
III. This breach of Mr. Mahjoub’s right to solicitor-client privilege and litigation privilege is aggravated by the fact that the Applicant’s right to retain and communicate in private with his lawyers has already been systematically violated by CSIS, since 1996, during the investigation by the application of OPS-211 and during the Court proceedings;”
[3] In essence, Mr. Mahjoub argues that there has been a violation of his section 7 and section 8 Charter rights as a result of the Ministers taking possession of his documents and that the only appropriate remedy is a permanent stay of proceedings.
[4] In response, the Ministers argue that Mr. Mahjoub has not established that the materials at issue are privileged, or that the materials have not lost their privileged status by virtue of the privileged information now being in the public domain. They contend that, should the Court find that privilege is established, they have rebutted the legal presumption. They argue that there is no risk that the information will be used to prejudice Mr. Mahjoub should the proceedings continue because no one from the Ministers’ team read Mr. Mahjoub’s documents. Finally, the Ministers argue that, were the Court to find that they have not rebutted the legal presumption of risk, a stay of proceedings is not the appropriate remedy in the circumstances.
FACTS
[5] The following events give rise to this motion.
[6] On July 14, 2011, the public portion of the reasonableness hearing in Toronto was adjourned. At this time, there remained four witnesses to be called. Although no dates for their testimony had been set, the reasonableness hearing was to resume in late August or early September 2011.
[7] On July 15, 2011, the Designated Registry Officer advised the parties to remove their materials from the Courtroom with the following email:
Just to let you all know that while Courtroom 6-D needs to be cleaned out by the end of next week you can continue to store any material in your respective breakout rooms until we reconvene in late August early September here in Toronto.
[8] On the same day, the Ministers advised the Designated Registry Officer by email that two legal assistants would arrive at the Court at approximately 2.00 p.m. to assess the situation and to possibly take some or all of the materials back to the DOJ. The Designated Registry Officer replied advising that the Commissionaires on the 6th floor would be expecting them.
[9] The Ministers’ legal assistants Ms. Kamal Dean and Ms. Irena Krakowksa attended the Court on that afternoon. A Commissionaire unlocked Courtroom 6-D as well as the adjacent breakout rooms 6013 (the Ministers’ breakout room) and 6011 (Mr. Mahjoub’s breakout room).
[10] In her affidavit, Ms. Dean claims that the Commissionaire asked them to move the documents from breakout room 6013 to breakout room 6011, as the former was going to be used before the resumption of Mr. Mahjoub’s case. A report by the Registry requested by the Court and provided to the parties revealed that the Commissionaire denies having given such instructions. Ultimately, the parties have not disputed the findings of the report nor have they pursued this issue.
[11] The evidence establishes that the Ministers’ legal assistants moved documents belonging to the Ministers from the courtroom and the Ministers’ breakout room into Mr. Mahjoub’s breakout room. Loose papers on the Ministers’ counsel table in the courtroom and on the tables in the breakout rooms were packed in several boxes.
[12] Upon their return to the DOJ on the same day, July 15, 2011, Ms. Dean sent an email to the Ministers’ litigation team working on the Mahjoub file (Mahjoub team) advising that she and Ms. Krakowska had “emptied courtroom 6D & prep room 6013 [and] moved everything to prep room 6011 for now.” The record does not establish who was on the Mahjoub team but the team includes legal counsel, legal assistants and a paralegal. The record also indicates that no one from the Mahjoub team responded to the email.
[13] On July 19, 2011, the Mahjoub team met and discussed the retrieval and organization of the materials still at the courthouse. It was decided that Ms. Dean would arrange for the return of the materials and Ms. Jill Schneider, a paralegal at the DOJ, would organize the materials once they arrived.
[14] On July 20, 2011, Ms. Dean returned to the Court with legal assistants for the Ministers Larissa Goodyear, Janet Lewicki and Genevieve Rondeau. They collected some of the boxes that were now in Mr. Mahjoub’s breakout room and brought them to office 916 at the DOJ in Toronto. Ms. Dean and Ms. Goodyear collected the remainder of the boxes on July 21, 2011. Ms. Dean attests that all of the documents were packed in boxes, which remained closed during transportation. Also on July 21, 2011, Ms. Dean emailed the Mahjoub team advising that all of the boxes from the Court were now in office 916 at the DOJ.
[15] During the mornings of July 25 to 27, 2011, Ms. Dean assisted Ms. Schneider in sorting documents in boxes stored in office 916. Ms. Dean helped Ms. Schneider verify that the boxes contained a complete copy of each exhibit, as established by an exhibit list. Ms. Dean only looked at the title page and back page of the documents and did not notice any handwritten annotations. Ms. Dean had no further involvement with the materials at issue after July 27, 2011. Ms. Schneider worked alone in office 916 for one to two hours in each of the afternoons of July 25-27, 2011.
[16] On August 8, 2011, Ms. Schneider met with Mr. Daniel Engel, counsel employed by DOJ and a member of the Mahjoub team, for approximately 10 minutes in office 916 for further instructions as to which materials needed to return to the Court for the eventual resumption of the hearing. Together, they opened two or three boxes and “flipped through the material.” “It became immediately clear that the contents of the boxes needed to be organized into categories” before further review could take place. Upon giving these instructions to Ms. Schneider, Mr. Engel left office 916 and had no further contact with the materials at issue. He does not recall having seen any materials belonging to Mr. Mahjoub.
[17] During the week of August 8, 2011, Ms. Schneider proceeded with the sorting and organization of the materials into categories on her own. Motion records filed by Mr. Mahjoub were filed in boxes labeled “Mahjoub Documents”; motion records filed by the Ministers were filed in boxes labeled “Ministers’ Documents”; exhibits filed in the open court were filed in boxes labeled “Exhibits” according to the exhibit list kept by the Court. Other boxes were labeled “Court orders and directions”, “SIRS”, and “Transcripts and summaries”.
[18] In organizing the materials, Ms. Schneider looked at the title and the back page of documents to identify them. She did not read or look at the content of the documents and does not recall seeing handwritten notations on the documents that she looked at. She had received instruction from Ministers’ counsel to ensure that there be three copies of the exhibits – one to return to the Court, one to remain in the DOJ’s offices and a third copy to be kept by the assistant to the lead counsel on the file. To that end, Ms. Schneider photocopied certain exhibits. In her estimation, she photocopied less than 100 pages. She also sent a small number of lengthy documents to be photocopied by Legal Print & Copy Inc., a bonded photocopying service used by the DOJ. The receipt the Ministers believe to be related to the documents sent to Legal Print & Copy Inc. by Ms. Schneider indicates that 1,151 letter sized pages and 2 legal sized pages were photocopied.
[19] Ms. Schneider removed duplicates of documents and placed them on the floor in office 916. She also set aside eight boxes that contained “miscellaneous documents” (correspondence, handwritten notes and case law) for which she required further instructions as to their organization.
[20] On August 12, 2011, Ms. Schneider sent an email to the Mahjoub team explaining how she had organized the materials and asking whether a counsel could “go into office 916 during [her] vacation the following week to review the eight boxes of miscellaneous documents and advise how these documents were to be organized.”
[21] Upon Ms. Schneider’s return to work on August 22, 2011, she noticed that the eight boxes of miscellaneous documents had not been touched during her absence. She sent another email to the Ministers’ team requesting assistance from counsel. Ms. Sharon Stewart Guthrie, counsel of record and member of the Mahjoub team, responded and met Ms. Schneider in office 916 for approximately 10-15 minutes to provide further instructions on organizing the eight boxes containing miscellaneous documents that had been set aside. Ms. Stewart Guthrie opened three of the boxes. In the first box, she saw file folders with French handwritten labels, which she did not open. She then closed the box. In the second box, she saw the first pages of publicly available reports before closing the box. In the third box, she saw printed copies of jurisprudence referred to by both parties during the proceedings, a printed copy of an email between two members of the Ministers’ litigation team, and a single handwritten page in handwriting she did not recognize with the name “Tyndale” on the left of the page. As she believed that no one from the Ministers’ litigation team would refer to lead counsel Mr. David Tyndale as “Tyndale”, she believed that some of the materials in those boxes did not belong to the Mahjoub team. Ms. Stewart Guthrie attests she did not read anything else on the page other than the name “Tyndale”. She closed the third box.
[22] After leaving office 916, Ms. Stewart Guthrie spoke with Ms. Nimanthika Kaneira, counsel employed by DOJ and member of the Mahjoub team, as well as with Ms. Dean. Ms. Stewart Guthrie then advised Mr. Tyndale, Senior Counsel of record for DOJ on the Mahjoub team, of the situation. Mr. Tyndale directed Ms. Stewart Guthrie to label and set aside those eight boxes “To be reviewed by Public counsel”, and draft an email to Public Counsel advising them of the situation and proposing that the parties meet to separate the materials.
[23] Ms. Schneider continued to work in office 916 and to organize the material contained in the boxes that had not been set aside for most of each day for the remainder of the week of August 22, 2011.
[24] On August 23, 2011, Mr. Tyndale sent the following email to Public Counsel:
In our review of the material that was returned to our office from the courtroom and our breakout room after we last adjourned, it came to our attention yesterday that some boxes may contain some documents that belong to you. We immediately put those boxes aside and have not read or reviewed these documents. In order to ensure that your materials are returned to you, I suggest we meet at our offices to review (separately, but in the same room) the contents of these boxes. Please let me know if this suggestion is acceptable to you and if so, when one (or more) of you might be available to review the materials.
[25] On August 30, 2011, Ms. Teresa Martins, an administration officer with the DOJ in Toronto, accompanied two movers to office 916 with boxes belonging to Ms. Amy Lambiris, a DOJ employee who had been on maternity leave and was to use that office upon her return. To make room for the boxes, the movers moved some stacks of documents from the floor to the desk. Ms. Martins did not read any of the documents in office 916 and did not see the movers read any of the documents.
[26] On September 1, 2011, Public Counsel Ms. Johanne Doyon and Ms. Salma El-Khodari, an assistant in the law office of Public Counsel Mr. Yavar Hameed, attended office 916 at the DOJ in Toronto. Ms. Jocelyn Espejo-Clarke, counsel and member of the Mahjoub team, and Ms. Kaneira accompanied them to office 916.
[27] At the time, Ms. El-Khodary estimated that office 916 contained approximately:
a. 24 boxes of documents that were marked as the Ministers’ boxes against one wall;
b. a dozen additional boxes along the other wall;
c. 5 boxes on a table in front of the window;
d. 8 boxes of material in a corner that were marked “to be reviewed by counsel”;
e. piles of unboxed and loose documents on a table in the middle of the room.
[28] It has now been established that once the loose documents were placed in boxes, office 916 contained 60 boxes of materials, in addition to the 15 boxes brought by the movers belonging to Ms. Lambiris who had been on maternity leave.
[29] Ms. El-Khodari and Ms. Doyon noticed that some of the loose documents on the table in office 916 appeared to belong to Public Counsel. Ms. Espejo-Clarke also noticed that some of those documents appeared to belong to the Ministers.
[30] Upon realizing that some of the documents on the table were co-mingled and that the co-mingling went beyond the 8 boxes that had been set aside, counsel agreed to seal the office. Ms. Espejo-Clarke provided an undertaking that no one would enter the office.
[31] All keys for office 916, except for those of the DOJ security office and of the landlord, were collected and put in the safe of the Regional Director General of the Ontario Regional Office of the DOJ. The security office and the landlord were instructed that no one could enter the room until further notice. The Ministers claim that no one has entered office 916 after September 1, 2011, until the boxes were eventually ordered returned to the courthouse by Prothonotary Aalto.
[32] Ms. Rhonda Marquis, Deputy Regional Director and Senior Counsel in the Immigration Law Division of the DOJ in Toronto, states in her affidavit:
Following the securing of office 916, I communicated with every member of the Mahjoub team including the two legal assistants who had originally boxed the materials for their return to our office and to the paralegal who had the most access to the materials. All members of the litigation team, both legal assistants and the paralegal have advised me that they did not review opposing counsel’s materials.
[33] Ms. Marquis also attests:
I have been advised by CSIS counsel, and do verily believe, that they have not entered office 916 at any time since July 15, 2011. I have also been advised and verily believe that no CBSA personnel assigned to the Mahjoub mater [sic] have entered office 916 at any time since July 15, 2011.
[34] On September 2, 2011, Mr. Tyndale emailed Public Counsel to advise them that the amount of Public Counsel’s material from the breakout rooms delivered to DOJ’s office was more than originally thought.
[35] On September 8, 2011, Mr. Tyndale emailed Public Counsel explaining how the events leading to the co-mingling of the documents unfolded. On the same day, Mr. Tyndale sent a similar letter to the Court.
[36] All members of the Mahjoub team who entered office 916 prior to it being sealed have been removed or temporarily removed from the Ministers’ litigation team pending a final determination of this motion. Ethical walls were put in place to ensure that the members of the litigation team who were removed received no further information on the litigation, as well as to ensure that the removed members would not discuss what they saw, if anything, of Mr. Mahjoub’s documents, except for purposes of providing affidavits or clarification to counsel representing the Ministers on this motion. The record does not indicate the number of individuals belonging to the Mahjoub team nor does it identify its members. The record also does not indicate when members of the team were removed or when the ethical walls were put in place. It appears from the record this would have occurred after September 1, 2011.
[37] Mr. Mahjoub served and filed his motion record for a permanent stay on September 20, 2011. The Ministers’ responding record was served and filed on September 23, 2011, accompanied with a motion to strike portions of certain affidavits. Mr. Mahjoub filed his reply on September 27, 2011. The parties were heard on the motions on October 3, 2011, in Toronto, and the Court reserved its judgment.
[38] On October 4, 2011, the Court ordered that to determine the proper remedy, if any, that may be appropriate in the circumstances, it was necessary to have the documents separated and returned to the respective parties for the purpose of affording them an opportunity to make submissions on the nature and extent of the alleged prejudice. The order is annexed to these reasons as Schedule A.
[39] Mr. Mahjoub’s appeal to the Federal Court of Appeal of the October 4, 2011 Order of the Federal Court was dismissed on October 24, 2011 (2011 FCA 294). His subsequent motion to the Federal Court of Appeal for a stay of the October 4, 2011 Order pending application for leave to appeal to the Supreme Court of Canada was dismissed by Madam Justice Gauthier on November 21, 2011 (2011 FCA 322).
[40] Pursuant to the October 4, 2011 Order, Prothonotary Aalto oversaw the development and execution of the separation process, which began with an initial case management conference on October 5, 2011. A full description of the process can be found in the Prothonotary’s report filed with the Court on February 10, 2012, which is annexed to these reasons as Schedule B (Aalto Report). For convenience, I summarize the process and the main findings of Prothonotary Aalto’s report below.
Summary of Prothonotary Aalto’s report
[41] With input from the parties, Prothonotary Aalto developed a separation protocol that ensured the integrity of the process, and included preserving the chain of continuity of the documents. Delegates designated by the parties who signed undertakings not to divulge any solicitor-client information to which they might be exposed during the process undertook the actual separation of the documents.
[42] The documents were separated into five categories: Neutral documents, Mahjoub documents, Ministers’ documents, Contentious documents, Solicitor-client intercept motion documents. Neutral documents are public documents such as motion records and affidavits that have no indicia of ownership, such as original initials or handwriting. Contentious documents are documents that have highlighting, tabs, stickies, underlining or markings but whose ownership could not be determined. As a result of the separation process, there were 32 boxes of Neutral documents; 12 boxes of Ministers’ documents; 12 boxes of Mahjoub documents; and 3 boxes containing 66 contentious documents. While Mr. Mahjoub concedes that these contentious documents will not affect his fair trial rights, he contends, nonetheless, that a lesser prejudice results from an incomplete separation process.
[43] The documents were moved from the DOJ to the courthouse on November 10, 2011, and the separation process commenced shortly thereafter. Following a November 24, 2011 case management conference, the Court ordered that the arguments relating to the alleged prejudice be heard on January 9 and 10, 2012. At case management conferences on January 3, January 19, and February 13, 2012, the parties informed the Court that the process was taking longer than anticipated and scheduled hearings dates were progressively pushed back. On January 18, 2012, Mr. Mahjoub started the review of his documents with the view of preparing descriptions as contemplated by the October 4, 2011 Order:
The parties may make further argument on the nature and extent of any alleged prejudice before the designated judge. To that end, Mr. Mahjoub may prepare a description of any of the returned documents relied upon to demonstrate that prejudice, which description shall not disclose any substantive information that would be subject to solicitor-client or litigation privilege.
[44] At the February 20, 2012 case management conference, Public Counsel informed the Court that they estimated needing an additional four to five weeks to review the documents, and prepare descriptions and arguments.
[45] Consequently, the Court adjourned the hearing until April 10-12, 2012, affording the parties an additional 6 weeks to prepare. These dates were ultimately changed to April 23 and 24, 2012, given a scheduling conflict on the part of Ministers’ counsel.
[46] In preparation for the hearing, Mr. Mahjoub prepared charts containing the descriptions for Prothonotary Aalto’s approval of the documents he would rely upon to show prejudice. The descriptions were then redacted to ensure that the designated judge would not have access to any privileged information.
[47] In addition to the descriptions, Mr. Mahjoub developed the following categories to describe the nature of the alleged prejudice in the chart:
“1. Strategy relating to (a) theory of the case (b) implementation of the theory (such as challenging evidence, presentation of new evidence or argument);
2. Tactics;
3. Questions (a) whether applicable to witness; (b) content of questions to be asked; (c) content of questions challenging evidence;
4. Assessment of the Evidence (a) value (b) knowledge (c) credibility;
5. Confidential information, which may not otherwise fit into 1 to 4 and 6;
6. Overview in terms of approach, knowledge and/or thought process of public counsel revealed, a) revealing approach and knowledge of public counsel by virtue of certain elements b) reveals though process in general terms.”
[48] Mr. Mahjoub also developed the following scale to codify the extent of the alleged prejudice for documents described in the Chart:
Code 1 – low privileged documents, difficult to articulate prejudice;
Code 2 – moderate privileged documents, generally public documents with highlighting, side bar, underlining or writing where the impact is functionally no different than a side bar or highlight;
Code 3 – high: privileged documents, created by Mr. Mahjoub or not disclosed in public, that could give or give an advantage to other side for cross-examination or submissions;
Code 4 – extreme: privileged documents created by Mr. Mahjoub or not disclosed in public, highly advantageous to other side;
Code 5 – highest prejudice: solicitor-client or litigation privileged communications that undermines Mr. Mahjoub’s case or that could affect the outcome of the case. [Examples cited by Mr. Mahjoub are omitted.]
[49] As a result of the above exercise, Prothonotary Aalto was presented with charts containing descriptions of the documents or parts of documents, which were individually categorized in one or more of the above noted categories and assigned a code of prejudice, 1 of 5, as described above. Prothonotary Aalto was then presented with a version of the charts where the privileged information contained in the descriptions had been redacted. These redacted charts were filed with the Court. See Schedule C as an example.
[50] Prothonotary Aalto approved the descriptions found in the charts and found that the codes and the descriptions were “reasonable.” He wrote at page 8 of the addendum to his report that:
[t]he coding is a subjective exercise by public counsel based on their approaches and strategy in conducting the case. Public counsel articulated to the Court why a particular code was selected for a particular document and such was based on counsel’s assessment of how the document would be used in the proceedings. The Court’s acceptance of a particular code is not final and binding on the designated judge. They are also not a finding of actual or any prejudice. Such findings are for the designated judge…It may be that the designated judge will require access to these [unredacted] charts in order to finally determine the nature and extent of any prejudice.
[51] Prothonotary Aalto also wrote at page 29 of his report that “[t]he types of documents that were found to belong to Mr. Mahjoub included … solicitor work product, solicitor-client privileged material, and litigation privileged material.”
[52] Mr. Mahjoub alleges that all of his documents were covered by solicitor-client and/or litigation privilege. He contends that approximately one third of the documents from the Mahjoub boxes have been included in the charts. He contends that all of the documents listed in the charts are prejudicial, regardless of their coding. He lists over fifty discrete pieces of information categorized as Code 5, which is the most prejudicial category.
[53] The Court heard the parties’ submissions on April 23 and 24, 2012, on the nature and extent of the alleged prejudice and appropriate remedy, if any, in the circumstances.
Preliminary Issue: Admissibility of affidavit of Martha Lori Hendriks
[54] By Order dated January 31, 2012, the Court allowed Mr. Mahjoub to file any additional affidavit evidence prior to the hearing of the final submissions on the nature and extent of the alleged prejudice. It also allowed the Ministers to file responding affidavits. The Ministers filed three affidavits including the affidavit of Martha Lori Hendriks. Mr. Mahjoub objects to the admissibility of paragraph 8 of the Hendriks affidavit on the basis that it does not flow from the opening and review of the boxes. The contested paragraph reads as follows:
In addition, on my instructions, on September 7, 2011, Ms. Marquis sent an email to all ILD [Immigration Law Division] staff (counsel and support staff), inquiring whether anyone had entered office 916 since July 21, 2011, July 21, 2011, is the date on which the documents were transported from the Court and placed in office 916 which was vacant at the time. I have been advised by Ms. Marquis, and verily believe, that there were no additional persons who responded as having entered office 916.
[55] Mr. Mahjoub argues that it is implicit in the Court’s January 31, 2012 Order that any additional evidence filed by Mr. Mahjoub must relate to the nature and extent of the alleged prejudice, as provided by the October 4, 2011 Order. Consequently, Mr. Mahjoub argues that the Ministers’ corresponding responding affidavits must in turn respond to Mr. Mahjoub’s additional affidavits. It is argued that paragraph 8 of the Hendriks’ affidavit does not.
[56] Mr. Mahjoub further contends that allowing the affidavit into evidence would allow the Ministers to split their case. He submits that it would be the equivalent of allowing the Ministers to reopen its case after having pointed out the gaps in their position and would be contrary to section 7 of the Charter pursuant to R. v. P. (M.B.), [1994] 1 S.C.R. 555, 113 D.L.R. (4th) 461.
[57] The Ministers acknowledge that paragraph 8 of the Hendriks’ affidavit goes some way towards addressing an evidentiary gap relating to who had access to Mr. Mahjoub’s documents at the DOJ in Toronto. The Ministers acknowledged the presence of the gap at the October 3, 2011 hearing. However, they argue that that gap was not gleaned from Mr. Mahjoub’s argument, but was rather observed and admitted to by the Ministers. Consequently, they contend they are not attempting to reopen the litigation as alleged by Mr. Mahjoub. The Ministers also acknowledge that the information contained in paragraph 8 of the Hendriks affidavit could have been adduced before the October 3, 2011 hearing. Nevertheless, the Ministers argue that the affidavit, including paragraph 8, merely attempts to provide a complete record for the benefit of the Court. They contend that the contested paragraph speaks to the presence and efficacy of their ethical walls, and should be received by the Court.
[58] The October 4, 2011 and January 31, 2011 Orders only allowed the filing of additional affidavit evidence in relation to the separation process and the alleged prejudice, if any. The information in paragraph 8 of the Hendriks affidavit does not result from the process of separating the documents. Rather it seeks to address a gap in the Ministers’ evidence that could and should have been dealt with earlier. In my view, it would be inappropriate to allow paragraph 8 into evidence. In the result, paragraph 8 of the Hendriks affidavit will be disregarded.
ISSUE
[59] Has there been a breach of Mr. Mahjoub’s Charter rights that warrants a permanent stay of proceedings?
APPLICABLE LAW
[60] Mr. Mahjoub claims a breach of his section 7 and section 8 rights and seeks a remedy under section 24(1) of the Charter. These sections and subsection are reproduced below:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
8. Everyone has the right to be secure against unreasonable search or seizure.
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu'en conformité avec les principes de justice fondamentale.
8. Chacun a droit à la protection contre les fouilles, les perquisitions ou les saisies abusives.
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s'adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
Section 8
[61] For a search and seizure to fall under the protection of the Charter, there must be a reasonable expectation of privacy in the place searched, the thing seized, or both (R. v. Evans, [1996] 1 S.C.R. 8, 131 D.L.R. (4th) 654). If such an expectation exists, the search or seizure will be considered reasonable if it is authorized by law, if the law that authorizes the search or seizure is itself reasonable, and if the manner in which the search or seizure is conducted is reasonable (R. v. Collins, [1987] 1 S.C.R. 265, 38 D.L.R. (4th) 508).
Section 7
[62] There is no dispute that Mr. Mahjoub’s section 7 rights are engaged. Mr. Mahjoub claims a breach of his section 7 rights under two separate categories: (i) a violation of his solicitor-client privilege and (ii) an abuse of process.
(i) Violation of solicitor-client privilege
[63] The Supreme Court, in Solosky v. The Queen, [1980] 1 S.C.R. 821 at p. 837, 105 D.L.R. (3d) 745, outlines the required criteria to establish solicitor-client privilege:
(i) a communication between solicitor and client;
(ii) which entails the seeking or giving of legal advice; and
(iii) which is intended to be confidential by the parties.
[64] Solicitor-client privilege has attained the status of a general principle of substantive law in Canada:
Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences. (Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 at para. 49, [2002] 3 S.C.R .209 [Lavallee]; see also Maranda v. Richer, 2003 SCC 67 at para. 12, [2003] 3 S.C.R. 193).
[My emphasis]
[65] The Supreme Court has recognized that solicitor-client privilege is “fundamental to the justice system,” (R. v. McClure, 2001 SCC 14 at para. 2, [2001] 1 S.C.R. 445), and that the courts are compelled to “adopt stringent norms to ensure its protection” (Lavallee, above at para. 36). A violation of the privilege also infringes a named person’s section 7 rights in the context of a security certificate proceeding (Jaballah (Re), 2010 FC 1084 at para. 48 [Jaballah]).
[66] Solicitor-client privilege should be distinguished from litigation privilege, which serves to ensure that the adversarial process is respected. Litigation privilege attaches to documents created for the dominant purpose of litigation (Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] S.C.R. 319).
(ii) Abuse of process
[67] The abuse of process doctrine has largely been subsumed into section 7 and amounts to “conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system [which] is also an affront of constitutional magnitude to the rights of the individual accused” (R. v. O’Connor, [1995] 4 S.C.R. 411 at para. 63, 130 D.L.R. (4th) 235 [O’Connor]).
[68] In this instance, the allegation of an abuse of process is separate from the alleged breach of section 7 resulting from the violation of solicitor-client privilege in that it focuses on the right to a fair trial affected by the Crown’s conduct, rather than the allegation that privilege has been violated. The propriety of the conduct and intention “are not necessarily relevant to whether or not the accused’s right to a fair trial is infringed” (O’Connor, above at para. 74). There is also a small residual category of conduct within the abuse of process analysis caught by section 7 of the Charter in which the individual’s rights to a fair trial are not implicated. This residual category “addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process” (O’Connor, above at para. 73; R. v. Regan, 2002 SCC 12 at para. 55, [2002] 1 S.C.R. 297 [Regan]; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 at para. 89, 151 D.L.R. (4th) 119 [Tobiass]).
Do the alleged Charter breaches require the existence of privilege?
[69] Aside from the residual category of an abuse of process, Mr. Mahjoub’s alleged Charter breaches require that privilege in the documents exists. To establish a reasonable expectation of privacy to show that his section 8 rights have been violated, he must demonstrate that his documents were protected by solicitor-client privilege and/or litigation privilege. Similarly, solicitor-client privilege and/or litigation privilege must also be established in order to maintain a section 7 violation.
[70] Once the existence of privilege is established, there is a legal presumption that the privileged information will be used to the prejudice of the opposing party. I will now turn to the law on this issue.
Rebutting the risk of prejudice
[71] In MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, 77 D.L.R. (4th) 249 [MacDonald Estate cited to S.C.R.], Justice Sopinka, writing for the majority of the Supreme Court, established the test to apply to disqualify counsel in cases where counsel allegedly has confidential information belonging to the other party:
(1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
(2) Is there a risk that it will be used to the prejudice of the client?
[72] This two-step test was reaffirmed by a unanimous Supreme Court decision in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189 [Celanese]. The Court applied the test in the context of an Anton Pillar order during which the searching party had come into the possession and reviewed privileged emails. Justice Binnie, on behalf of the unanimous Court, held that once possession of privileged information was established, the receiving party bore the onus of showing there is no real risk such confidences will be used to the prejudice of the moving party. The Court also held that for the presumption to apply, the initial onus was on the moving party to establish that the receiving party was in possession of privileged information.
[73] The presumption of prejudice can be rebutted, “on the basis of clear and convincing evidence” by showing that “the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur” to prejudice the moving party (MacDonald Estate, above at 1260 and 1262; see also Celanese, above at para. 42).
[74] Even though MacDonald Estate and Celanese, above, specifically address motions to remove solicitors of record, Justice Binnie in Celanese, held that:
The relevant elements of the MacDonald Estate analysis do not depend on a pre-existing solicitor-client relationship. The gravamen of the problem here is the possession by opposing solicitors of relevant and confidential information attributable to a solicitor-client relationship to which they have no claim of right whatsoever. (para. 46)
[75] This Court in Jaballah, above, held