Federal Court Decisions

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 26^th 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:

[32]           “Sensitive Information” is defined in that section as follows:

[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]           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 assumed that information will reach persons with a knowledge of Service targets and the activities subject to this investigation. In the hands of an informed reader, seemingly unrelated pieces of information, which may not in themselves be particularly sensitive, can be used to develop a more comprehensive picture when compared with information already known by the recipient or available from another source”. He cites the case of Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229, (T.D.), affirmed 140 N.R. 315 (F.C.A.), as a case where the mosaic effect received recognition in Canada. He also cites U.S. jurisprudence.

[63]           Mr. Sylvain confirms that by fitting the information disclosed by CSIS with what is already known, the informed reader can determine far more about CSIS targets, methods of operation, sources and techniques than the document on its face reveals to an uninformed reader.

THE INFORMATION

(1)        What the plaintiff was told

(a)        in the amended statement of defence

[64]           Basically, the respondent/plaintiff was told two things. In paragraph 6 of the amended statement of defence, HMQ “categorically denies that the Canadian Security Intelligence Service (“CSIS”), its employees and its agents have committed any acts at any time which have caused any harm or injury to the Plaintiff”. The second matter the respondent/plaintiff was told is at paragraph 15 that “generally, the Defendant [HMQ] states that the Plaintiff’s action is time-barred pursuant to section 32 of the federal Crown Liability and Proceedings Act, and/or section 3 of the British-Columbia Limitation Act, and/or section 3 of the Alberta Limitations Act”.

(b)        In the non-confidential affidavit

[65]           The respondent/plaintiff was served with a non-confidential affidavit of Warren Sunstrum who is now Director General of the British Columbia Office of CSIS and is one of its intelligence officers employed by CSIS since 1984 and who, during his career, participated in numerous sensitive investigations which involved classified information of a sensitive nature and who has in-depth knowledge of the mandate of the Service, its methods of operation, its priorities, its policies and management.

[66]           Warren Sunstrum’s non-confidential affidavit informs the plaintiff on a number of matters including the following opening statement at paragraph 3 which reads:

3.             I have never known the Service to undertake campaigns against individuals so as to cause them personal or professional harm, or specifically with regard to Mr. Kempo. (Redacted). I base the aforementioned statements on my numerous years of experience with the Service, the mandate of the Service and my checks of Service databases (Redacted). [emphasis mine]

[67]           Mr. Sunstrum then describes the mandate of the Service which dovetails with certain paragraphs of Ivan Sylvain’s non-confidential affidavit which has already been referred to.

[68]           At paragraphs 10 to 13 of his affidavit, Mr. Sunstrum describes the approval process for the deployment of CSIS resources in the investigations it conducts. I find it useful to reproduce those paragraphs:

10.           In conducting “threat” related investigations under Section 12 of the CSIS Act, the Service cannot deploy surveillance resources of any kind against any individual without a valid investigative authority, pursuant to a ministerial directive from the Solicitor General of Canada, designating an individual as an authorized target of investigation. Because higher investigative levels permit deployment of more intrusive investigative techniques these are authorized by increasingly higher levels of management.

11.           Investigative levels which authorize the deployment of surveillance assets are subject to approval by a targeting committee chaired by the Director of the Service and which includes the Deputy Solicitor General or designate. Interception by technical warrants is accomplished only following obtention of a Federal Court warrant subsequent to the Solicitor General’s approval and leave to make application.

12.           As stated above, what must be demonstrated concerning a subject of an investigative authority or warrant application to the Federal Court, is that there are reasonable grounds to believe that subject constitutes a “threat to the security of Canada” as defined in section 2 of the CSIS Act.

13.           Once authorizations have been given, the deployment of Service surveillance assets including surveillance teams and human and technical source surveillance, is subject to further approval and monitoring mechanisms. Service operational activities involving the use of intrusive techniques are reviewed by both Security Intelligence Review Committee and the Inspector General. (Redacted). [emphasis mine]

[69]           Under a heading entitled “Service operational databases” Mr. Sunstrum states: “I conducted a search of the Service’s operational databases for any information concerning Mr. Kempo (Redacted).”  All of Mr. Sunstrum’s search results have been redacted.

(c)        In HMQ’s memorandum

[70]           HMQ’s memorandum of fact and law in support of its motion for summary judgment generally builds on its amended statement of defence and the affidavit filed in support.

[71]           In order to provide a flavour of what was further disclosed to the plaintiff in that document, I cite the following.

(1)        In paragraph 2, HMQ states, “[O]n its face, Mr. Kempo’s claim can only be described as bizarre, fanciful, frivolous and vexatious. It is common knowledge that Canada is a constitutional democracy subject to the rule of law and that neither CSIS nor any other department or agency of the Government of Canada engages in deliberate “campaigns” to cause harm to individuals”. The next three paragraphs are redacted and paragraph 6 states: “In sum, Mr. Kempo’s claim presents no genuine issue for trial and deserves to be dismissed by way of summary judgment at this stage of the proceedings in order to ensure that no further resources are expended unnecessarily on this forlorn litigation”.

(2)        At paragraph 10, HMQ states the plaintiff alleges he became aware of “this campaign” by CSIS in 1993 and has been “gathering evidence” against CSIS since that time. “Notwithstanding the fact the plaintiff discovered what he believes to be a cause of action in January 1993, he waited for a period of over 9 years before commencing this action in September 2002".

            (3)        At paragraph 13, HMQ states “[I]n order to respond to Mr. Kempo’s amended statement of claim, the Defendant arranged for Warren Sunstrum, a senior CSIS official, to search for any information within CSIS’ operational databases concerning (Redacted) Brad Kempo (Redacted). Mr. Sunstrum swore an (redacted) affidavit setting out the result of this search”.

(4)         The next two paragraphs are redacted and paragraph 16 reads: “[F]urthermore, the (Redacted) affidavit of Mr. Sunstrum confirms the commonly known fact that CSIS does not undertake campaigns against individuals so as to cause them harm”.

(5)        At paragraph 17, HMQ states “[O]n June 30, 2002, the Defendant produced her amended statement of defence ... .The defendant’s defence can be summarized as follows:

(a)            CSIS, its employees and its agents have never committed any acts at any time which have caused any harm or injury to the Plaintiff;”

The next four paragraphs are redacted with paragraph (f) reading: “as CSIS has not committed any acts which have caused any harm to the Plaintiff, the action must be dismissed in its entirety”.

[72]           Reference to some of the submissions of HMQ in its memorandum are also useful. The memorandum reaffirms CSIS has not conducted a campaign against the plaintiff and states at paragraph 24 “[T]he Plaintiff’s primary allegation against the Defendant is that he is the victim of a deliberate campaign orchestrated by CSIS since 1987 to cause the Plaintiff harm in order to prevent him from fulfilling his destiny of being appointed a judge”.

[73]           Paragraph 25 of HMQ’s memorandum states “[T]his allegation is, on its face, absurd” because “CSIS has no mandate to undertake campaigns to harm individuals for any purpose, including to prevent individuals from being named to the judiciary”. Its primary mandate is “to collect information and intelligence respecting activities that may constitute threats to the security of Canada”.

[74]           Paragraphs 26, 27 and 28 of HMQ’s memorandum are worth reproducing:

26.           A review of the Plaintiff’s amended statement of claim reveals that the Plaintiff has failed to plead any plausible material facts which could support a finding that CSIS has indeed deliberately decided to undertake an organized campaign since 1987 to cause the Plaintiff harm. Instead, the Plaintiff merely recounts a litany of unpleasant events he has experienced and baldly concludes that they must have been caused by CSIS. It is trite law that a plaintiff cannot simply allege that he or she has suffered damages for which a defendant is liable without setting out the material facts which would demonstrate that in fact the defendant caused these damages.

27.           In addition to denying the Plaintiff’s fanciful allegation that CSIS has engaged in a systematic campaign to cause the Plaintiff harm since 1987, the Defendant has produced an (Redacted) affidavit sworn by Warren Sunstrum, Director General of the Prairie Regional Office of CSIS. Mr. Sunstrum has been employed by CSIS since 1984 in various capacities and therefore has significant knowledge of the mandate of CSIS and how CSIS operates. Mr. Sunstrum testifies that he has never known CSIS to undertake campaigns to cause harm to any individuals, including the Plaintiff. He bases this testimony on his numerous years of experience with CSIS, the mandate of CSIS and his checks of CSIS internal databases and files.

28.           Furthermore, Mr. Sunstrum verified the CSIS operational databases for any information concerning the Plaintiff, Brad Kempo (Redacted). [emphasis mine]

[75]           At paragraph 30 of HMQ’s memorandum, HMQ sets out the plaintiff’s allegation of the “unpleasant events he has experienced over the past fifteen years” recounting “a myriad of occasions when an individual or an organization he has dealt with has allegedly caused him harm and baldly concludes that all of these individuals or organizations are ‘street level operatives’ acting under CSIS’ orders to inflict suffering upon the Plaintiff”. The evidence in support of that proposition is contained in the next four paragraphs which are redacted.

[76]           The final chapter in HMQ’s memorandum relates to the proposition the plaintiff’s action is time-barred, a further reason why there is, in HMQ’s view, no genuine issue for trial. HMQ cites the six-year limitation period set out in section 32 of the CPLA if the cause of action cannot be said to arise within a province.

[77]           HMQ states the plaintiff admits in his amended statement of claim he has been aware of the alleged “campaign” since 1993 and, applying the discoverability rule to the calculation of the six-year limitation period, the plaintiff had until 1999 to bring a claim in respect of the alleged “CSIS campaign” but he waited more than three years until September 13, 2002, to do so.

[78]           HMQ argues, on the other hand, at paragraph 39, if the plaintiff’s claim is understood to be in respect of all of the specific incidents which the plaintiff alleges caused him harm, these discreet incidents took place either in the Province of Alberta or in the Province of British Columbia and the applicable limitation periods are in the Limitations Act of each province where in both provinces the applicable limitation period is two years. HMQ concludes his claim with respect to any specific incidents which took place prior to September 13, 2002, is time-barred.

[79]           Finally, paragraph 42 of HMQ’s memorandum reads:

42.           The Plaintiff alleges that in or around March 1990, he entered into an agreement with CSIS to permit CSIS to install surveillance equipment in his Edmonton home in order to enable CSIS to effect surveillance of another residence located nearby. The Plaintiff also alleges that this agreement was a pretext to permit CSIS to begin conducting a “long-term cognition experiment” on the Plaintiff whereby CSIS “aided and abetted in the procuring of perceptual inaccuracies, both visual and audio, and involuntary body motor functions by the Plaintiff”.

[80]           The evidence answering that proposition has been redacted in the next three paragraphs.

(2)        What the plaintiff was not told

[81]           I outline briefly the nature of the redactions which understandably must be limited to generalizations. They were:

(a)        From the amended statement of defence

(i)         except for one admission, whether HMQ denied or had no knowledge of any of the allegations in the other paragraphs of the amended statement of claim;

(b)        From the affidavit of Warren Sunstrum

(i)         identification of CSIS’ methods of gathering information;

(ii)        details of the information in CSIS’ operating databases and files;

(iii)       how the Security Intelligence Review Committee and the Inspector General review CSIS’ activities;

(iv)       methods and results of his search of the operational databases and other records at CSIS.

(c)        From HMQ’s memorandum of fact and law in support of its motion for summary judgment

(i)         the results of the operational database and file searches.

ANALYSIS

[82]           In Ribic, supra, the Federal Court of Appeal laid out the three sequential steps which the designated judge must follow when seized with a section 38 Canada Evidence Act application.

[83]           Those steps, as previously explained, are as follows. First, a determination of the relevance of the information to the issues pleaded which Justice Létourneau expressed as “a low threshold”; second, if relevance is established, then a determination whether the disclosure of the redacted information in this case would be injurious to national security; and third, if injury is established, a determination whether the public interest in disclosure outweighs the public interest in non-disclosure.

[84]           In the case at hand, I am of the opinion the first two gates were easily cleared by the Attorney General.

[85]           The redacted information was relevant to HMQ’s amended statement of defence and motion for summary judgment. That redacted information provides particulars of HMQ’s defence to the plaintiff’s case as well as the facts upon which HMQ asserts in its motion for summary judgment there is no genuine issue for trial on the basis its evidence shows HMQ or CSIS never were involved in a conspiracy to harm the plaintiff.

[86]           As to the second gate, the Attorney General has satisfied me the disclosure of the redacted information is sensitive information which, if disclosed, would be injurious to national security and I have heeded Justice Létourneau’s words the Attorney General’s submissions on this point should be given considerable weight. I find the Attorney General’s assessment of injury to national security to be reasonable if the redacted portions were disclosed.

[87]           I previously described Ivan Sylvain’s non-confidential affidavit. In his confidential affidavit, Mr. Sylvain linked each of the four heads of injury he had identified with the redacted evidence in HMQ’s three documents.

[88]           The case before me was carefully framed by the Attorney General as is evident from a consideration of two of the cases which his counsel drew to my attention. First, I was referred to the case of Gold v. The Queen in Right of Canada, [1986] 2 F.C. 129 (C.A.).

[89]           This case was a civil case where the plaintiff sued HMQ for tortious conspiracy and in which HMQ claimed that disclosure of certain documents would be injurious to national security. At page 139, Justice Mahoney who delivered reasons for judgment of the Federal Court of Appeal wrote as follows:

¶ 18      The documents in issue, numbered 1 to 150, were delivered in two sealed volumes. The amended certificate asserts the injury to national security anticipated if they are disclosed in the following terms:

4.  More particularly, disclosure of information contained in the said documents would:

(a)  identify or tend to identify human sources and technical sources of the former Security Service of the Royal Canadian Mounted Police or the present Canadian Security Intelligence Service both hereinafter referred to as the "Service";

(b)  identify or tend to identify targets of the Service;

(c)  identify or tend to identify methods of operation and the operational and administrative policies of the Service;

(d)  jeopardize or tend to jeopardize the security of the Service's telecommunications cypher system;

                                                                      . . .

[90]           Justice Mahoney concluded the amended certificate taken with a complimentary affidavit “establishes entirely rational bases upon which the designated judge and this Court ought to conclude that disclosure of the information could reasonably result in injury to national security” [emphasis mine]. This is the very test adopted by Justice Létourneau in Ribic, supra.

[91]           The second case referred to is the decision of Justice Addy of this Court, in Henrie, supra, who provided his views on the types of information which required protection because of potential injury to national security. I cite paragraphs 29, 30 and 31 of his reasons for judgment:

¶ 29      When considering the issue of the relative merits of the public interest in non‑disclosure as opposed to the public interest in disclosure, it is evident that the considerations and circumstances to be taken into account which might militate against the proper control or suppression of threats to national security are considerably more numerous and much more complex than the considerations which involve a national interest other than those mentioned in section 36.2 of the Canada Evidence Act. In criminal matters, the proper functioning of the investigative efficiency of the administration of justice only requires that, wherever the situation demands it, the identity of certain human sources of information remain concealed. By contrast, in security matters, there is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the methods of operation of the service, the identity of certain members of the service itself, the telecommunications and cypher systems and, at times, the very fact that a surveillance is being or is not being carried out. This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that CSIS is in possession of it would alert the targeted organization to the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.

¶ 30      It is of some importance to realize than an "informed reader", that is, a person who is both [page243] knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the service; (3) the typographic and teleprinter systems employed by CSIS; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation.

¶ 31      An examination of the documents and of the evidence mentioned in the certificate of objection convinces me that the disclosure of whatever information in those documents which might in any way pertain to the issue of whether the WCPM‑L or the GMLL were organizations which might or might not constitute a threat to the security of Canada, would prove injurious to national security because, generally speaking, such disclosure would either (a) identify or tend to identify human sources and technical sources; (b) identify or tend to identify past or present individuals or groups who are or are not the subject of investigation; (c) identify or tend to identify techniques and methods of operation for the intelligence service; (d) identify or tend to identify members of the service; (e) jeopardize or tend to jeopardize security of the services telecommunications and cypher systems; (f) reveal the intensity of the investigation; (g) reveal the degree of success or of lack of success of the investigation. I also find that most documents fall under two or more of the above categories. [emphasis mine]

[92]           I note that my colleague, Justice Dawson, in Re Harkat, [2003] FCT 285, quoted Justice Addy’s views with approval in a case involving the reasonableness of a certificate under section 77 of the Immigration and Refugee Protection Act and, in particular, on the issue whether disclosure of certain information would be injurious to national security.

[93]           Having cleared the first two steps of the Ribic analysis, the ultimate and final step in that analysis is the balancing of competing interests which subsection 38.06(2) requires.

[94]           Ribic, supra, was a criminal case. The case before me is a civil one. Justice Létourneau, in his reasons in Ribic, supra, referred to the Federal Court of Appeal’s decision in Jose Pereira E Hijos, S.A. v. Canada (Attorney General), 2002 FCA 470 (“Hijos, S.A.”), a civil case where, on discovery, the Crown raised an objection to questions asked on the grounds the answers would be injurious to international relations. Justice Létourneau wrote the following at paragraph 22 in Ribic, supra:

¶ 22      Balancing the competing interests at stake requires the application of a more stringent test than the usual relevancy rule. Otherwise, as evidenced by the appellant's position, relevant sensitive information would always be disclosed to the detriment of international relations, national defence or national security. It means in effect no balancing at all. This is what this Court said in the civil case of Jose Pereira E Hijos, S.A. et al. v. The Attorney General of Canada, [2002] F.C.J. No. 1658, 2002 FCA 470, where Stone J.A., in relation to former sections 37 and 38 of the Act, wrote at paragraphs 17 and 18:

Thus, whether a question is relevant in the context of a section 37 and 38 determination is not to be viewed in the narrow sense of whether it is relevant to an issue pleaded, but rather to its relative importance in proving the claim or in defending it.

I respectfully agree with the Motions Judge, at paragraph 28, that "the information which the plaintiffs seek to obtain will not establish a fact crucial to the plaintiffs' case". As I read his reasons, this was a significant factor in determining whether the importance of disclosure was outweighed by the importance of protecting the specified public interest.

The Court considered the factors enumerated in R. v. Kahn, [1996] 2 F.C. 316 (F.C.T.D.): the nature of the public interest sought to be protected by confidentiality, the seriousness of the charge or issues involved, the admissibility of the documentation and the usefulness of it, whether there were other reasonable ways of obtaining the information, whether the disclosure sought amounted to general discovery or a fishing expedition and whether the information will probably establish a fact crucial to the defence. Obviously, the last two factors impose a higher threshold than simple relevancy. [emphasis mine]

[95]           When discussing one of the factors affecting the balancing, Justice Létourneau noted that part of the State secrecy privilege invoked in the case before him aims at protecting the safety and security of a whole nation. He added “[A]s Lord Hoffmann, . . ., mentioned, the cost of failure can be high if matters of national security are ignored or taken lightly”.

[96]           Before drawing conclusions on the assessment of the recognized factors relevant to balancing, I revert, once again, to the Federal Court of Appeal’s decision in Gold, supra. As mentioned, the Gold case was a civil case in which the plaintiff sued the federal Crown for conspiracy to injure him. Underlying his action was his security clearance and, intertwined with that, his inability to receive a promotion.

[97]           On balancing, Justice Mahoney expressed himself as follows:

The public interest in national security, served by non‑disclosure of information in the present circumstances, is self‑evident. While it may be taken for granted by the judiciary, the competing public interest which would be served by its disclosure may not be so generally recognized. It is the very essence of any judicial system deserving of public confidence that, above all else, every litigant be given a fair chance and be seen to have been given it. Justice may not be done, and it is most unlikely that it will be seen to have been done, if a party, even by reason of compelling public interest, is prevented from fully making out its case or answering the opposing case. The events ensuing on the unaccountable loss of the submarine "Thetis" afford a textbook example: vide Duncan et al. v. Cammell, Laird & Co., Ltd., [1942] A.C. 624. [emphasis mine]

[98]           Justice Mahoney took issue with one statement made by the designated judge whose decision he was reviewing and who had written the following:

 In the face of such a certificate where, on the one hand, we have the public interest to be served by non‑disclosure consisting of protection of such a vital matter as national security and, on the other hand, a public interest in disclosure of information which in essence would be in furtherance of claim for monetary compensation, it is difficult for me to conceive of any set of circumstances where the Court would be required to consider it advisable to examine the documents covered by the certificate, as there exists such an obvious imbalance between the two public interests to be served. [emphasis mine]

[99]           Justice Mahoney stated the following in reaction to that statement:

I am also concerned with the approach I perceive, perhaps wrongly, .... Parliament has recognized that the public interest in national security, militating against disclosure, may be outweighed by the public interest in the administration of justice, militating in favour of disclosure. There is not, in the legislative scheme, an obvious imbalance between the two. The subject‑matter of a particular legal proceeding is only one of the relevant factors to be considered by the judge, whom Parliament has charged with weighing the competing public interests in each application. In my opinion, just as the subject‑matter, or substance, of a given legal proceeding is properly to be considered, so must the particulars or substance of a given claim of risk to national security. [emphasis mine]

[100]       Justice Mahoney concluded with these words

Effective judicial supervision is an essential element of the . . .system. Among other aspects of the . . . system, its credibility is dependant on a public appreciation that the competing public interests are, in fact, being judicially balanced. It will not be well served if it appears that the exercise of judicial discretion is automatically abdicated because national security is accepted as so vital that the fair administration of justice is assumed incapable of outweighing it. Each application under s. 36.2 must be dealt with on its own merits. [emphasis mine]

[101]       Also, on the importance of the public interest in the administration of justice and the openness of the judicial process, see Henrie, supra, at page 238.

[102]       I also set out Justice Blanchard’s views to which I totally subscribe on the application of the balancing factors. It was Justice Blanchard’s two decisions Justice Létourneau was reviewing and upheld.  This is what he wrote at paragraphs 22 and 23 in Ribic v. Canada (Attorney General), 2003 FCT 10:

¶ 22      Subsection 38.06(2) of the Act does not specify the test or the factors to be considered in weighing the competing interests nor does the Act contemplate an obvious imbalance between the public interest in national security and the public interest in the administration of justice. I am of the view that the Court may consider different factors in balancing the competing public interests. The breadth of the factors may well vary from case to case.

¶ 23      In the context of a case involving serious criminal charges, as in this case, the issue of whether the information at issue will probably establish a fact crucial to the defence is indeed an important factor to be taken into consideration in the balancing process. Other factors also warrant the Court's consideration such as: the nature of the interest sought to be protected; the admissibility and usefulness of the information; its probative value to an issue at trial; whether the applicant has established that there are no other reasonable ways of obtaining the information; whether the disclosures sought amount to a fishing expedition by the applicant; the seriousness of the charges or issues involved. [See Jose Pereira E. Hijos, S.A. v. Canada (Attorney General) [2002] F.C.J. No. 1658, 2002 FCA 470, Docket A‑3‑02 at paras 16 and 17]. These factors, by no means constitute an exhaustive list. Other factors may also require consideration in the appropriate circumstances. It is important, in my view, that each application be dealt with on its own merits.

[103]       In particular, I agree with Justice Blanchard that breath of the factors may well vary from case to case and that the list set out in Hijos S.A., supra, is not an exhaustive list; other factors may be relevant in appropriate circumstances.

CONCLUSIONS ON BALANCING

[104]       The decision which section 38.06(2) calls for in this case is, having already decided the disclosure of the redacted information would injure national security, is whether the importance of the public interest in disclosure outweighs the importance of the public interest in non-disclosure. In other words, of those two competing and legitimate interests, which one predominates, is more important or is paramount.

[105]       The case law indicates that this determination of the relative importance of a particular public interest, for example, the public interest in disclosure in civil or criminal litigation which concerns the fair administration of justice will depend upon the particular circumstances of each case.

[106]       For example, Chief Justice Thurlow in Goguen v. Gibson, [1983] 1 F.C. 872, at 881, wrote:

In a small claims action its importance might not easily prevail over that of the public interest in national security or international relations.  In a criminal prosecution for a capital or other serious offence its importance could weigh very heavily if the information is shown to be of critical importance for the defence or for the prosecution.

[107]       In a civil case such as the one before me, the case law instructs me to apply the factors identified in Hijos S.A., supra, as endorsed in Ribic, supra.

[108]       At the outset of the analysis, the scales are equally balanced, that is, the legislation does not in its terms favour the public interest in non-disclosure over the public interest in disclosure. It is in the application of the factors the scales are tipped one way or another.

[109]       After applying and weighing these factors, I am satisfied on the evidence before me, the importance of disclosing the redacted information does not outweigh the public interest in keeping that information from disclosure.

[110]       As to the nature of the public interest sought to be protected, the redacted information relates to how CSIS, Canada’s intelligence service, operates. Clearly, as I have found, such disclosure is injurious to the public interest. I adopt the words chosen by Justice MacKay in Singh (J.B.) v. Canada (Attorney General), [2000] F.C.J. No. 1007, a case where the R.C.M.P. Public Complaints Commission sought disclosure of documents related to the 1997 APEC Conference. Justice MacKay, at paragraph 32, stated:

The public interest served by maintaining secrecy in the national security context is weighty. In the balancing of public interests here at play, that interest would only be outweighed in a clear and compelling case for disclosure. [emphasis mine]

[111]       The case for disclosure is measured in this case by factors such as whether the redacted information would provide evidence which would assist the plaintiff to prove a fact crucial to his claim; whether there exists alternative ways of proving the plaintiff’s case without disclosing the injurious information and how serious is the issue being litigated. In my assessment, none of those factors favour disclosure of the information to the plaintiff.

[112]       First, the redacted information will not help the plaintiff prove his claim. The whole thrust of the redacted information is to tell him HMQ’s records or that of its agent CSIS demonstrate HMQ or its agent is not engaged in any conspiracy to harm him. HMQ’s redacted information is a shield and I do not see how the plaintiff can transform it into a sword to support his claim.

[113]       It is true the redacted information provides HMQ with evidence in support of its motion for summary dismissal. The plaintiff, however, knows the case he has to meet, that there is no evidence in the relevant records of a conspiracy against him. The rules on summary judgment compel him to respond by filing affidavit evidence putting his best foot forward demonstrating he has a case to be met. The plaintiff has complete opportunity to introduce responding affidavit evidence to prove the material facts to his claim. The redacted information does not hinder his doing so in any way.

[114]       Second, the plaintiff has not demonstrated to my satisfaction he does not have reasonable ways to bringing forward his own evidence to counter the redacted information. After all, he must prove his claim on the balance of probabilities.

[115]       Third, it is the plaintiff who launched this action against HMQ; he is not a defendant. His action is a civil suit seeking money against HMQ; his life or liberty are not at stake. At this stage, I refrain from making any comment on the merits of his claim for obvious reasons.

[116]       I comment briefly on the two items which the Attorney General seeks to carve out of the prohibition from disclosure.

[117]       First is the summary. Having closely questioned Mr. Sunstrum on his confidential affidavit, I am satisfied the summary is accurate. My questioning of Mr. Sunstrum focussed on the following points which Mr. Sunstrum had disclosed in his public affidavit: how CSIS obtains approval to deploy resources for an authorized target, how CSIS maintains its records and how its operational database functions.

[118]       As stated before, what HMQ is telling the plaintiff/respondent is that the evidence it has which is based on how CSIS operates, establishes CSIS or its employees and agents, is not behind any conspiracy to cause him harm.

[119]       At this point, I am not prepared, however, to authorize the disclosure of the summary because I am uncertain the legislation and, in particular, section 38.06(2), authorizes the issuance of a summary after I have found the public interest in disclosure does not outweigh the public interest in non-disclosure.

[120]       This point was not argued before me and I will be seeking input from the parties by way of written representations.

[121]       I have the same concerns with respect to the authorization sought under section 38.06(4). Having found disclosure is not authorized under section 38.06(2), is there any scope left for the application of subsection 38.06(4)?

[122]       In making this observation, I have in mind  the motions judge dealing with summary dismissal need not be a designated judge of this Court and in many cases may well be a judge of the superior court of a Province or Territory and would have, if the order requested is made, access to the redacted materials but the plaintiff would not.

[123]       Again, this point was not argued and, in fairness, the parties should have an opportunity to address the Court’s concerns.

[124]       There will be a telephone conference call Friday, December 3, 2004, at 12h00 noon, Ottawa time, to schedule the receipt of written representations on these two points.

[125]       For all of these reasons:

(1)        The Attorney General’s application is allowed;

(2)        The prohibition upon disclosure of the following information is confirmed;

(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 (Brad Kempo v. Her Majesty the Queen);

(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]

(3)        I specifically leave open for future determination the requests made by the Attorney General for the authorization sought in paragraphs 3 and 4 of the order requested.

[126]       This is not the kind of case where costs should be awarded in favour of the Attorney General.

“Francois Lemieux”

                                                                                            J U D G E                

OTTAWA, ONTARIO

NOVEMBER 30, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  DES-5-03

STYLE OF CAUSE:  THE ATTORNEY GENERAL OF CANADA

                                                                                          Applicant

and

                                        BRAD KEMPO

                                                                                     Respondent

PLACE OF HEARING:                    Vancouver, B.C.

DATE OF HEARING:                      February 19, 2004

REASONS FOR ORDER:               The Honourable Mr. Justice Lemieux

DATED:                                             November 30, 2004 - Confidential version

September 19, 2006 - Public version

APPEARANCES:

SOLICITORS OF RECORD: