CSIS 66-85
Harjit Singh Atwal (Applicant)
v.
The Queen (Respondent)
INDEXED AS: ATWAL V. CANADA
Heald J.—Ottawa, September 11 and October 1,
1987.
Security intelligence — Wiretap and search warrant —
Rescission thereof for inadequacy of supporting affidavit and
in view of respondent's express consent — At hearing, request
for disclosure of affidavit — Rescission of warrant making
disclosure pointless — Request for disclosure different matter
from motion to rescind warrant — Motion for disclosure
should be directed to Trial Division to be dealt with by judge
appointed to Trial Division, not to Appeal Court Judge acting
as Trial Division Judge.
Judges and courts — Jurisdiction of Federal Court under
Canadian Security Intelligence Service Act (CSIS Act) — At
hearing where wiretap and search warrant rescinded, motion
for disclosure of supporting affidavit presented — Disclosure
no longer needed for purpose of motion to rescind warrant —
Request for disclosure, different matter from motion to
rescind, to be directed to Trial Division and dealt with by
judge appointed to Trial Division, not by Appeal Court Judge
acting as Trial Division Judge for purposes of CSIS Act —
Allowing applications for access to documents under jurisdic
tion of one Division made to other would wreak havoc with
work of both.
The Federal Court of Appeal set aside a judgment whereby
Heald J., acting under the Canadian Security Intelligence
Service Act (CSIS Act), refused to rescind a wiretap and
search warrant issued pursuant to section 21 of that Act. The
matter was referred back to His Lordship on the basis that he
had erred in law in refusing to order the production of the
affidavit submitted in support of the warrant after the appro
priate security editing. At the subsequent hearing before Heald
J., the respondent advised the Court that extensive and serious
errors had been discovered in the supporting affidavit and that,
as a consequence, insufficient evidence remained upon which to
sustain the warrant.
The main issue, however, arises from the applicant's request,
at the hearing, for disclosure of the supporting affidavit.
Held, the warrant should be rescinded and the request for
disclosure of the affidavit denied.
Since it is well established that the judge who makes an ex
parte order is competent to rescind it, and in view of the
respondent's admissions and express consent, the warrant is
rescinded.
The request for disclosure is denied because the affidavit is
no longer needed for the purposes of obtaining what was
originally sought in these proceedings: the rescission of the
warrant. This has been granted. What is now asked for is
something completely exterior to and apart from the Rule 330
motion to rescind. It is irrelevant that the affidavit could be
useful to the applicant in civil or criminal proceedings.
It is true that a judge appointed to the Court of Appeal, as in
this case, is ex officio member of the Trial Division, and vice
versa. It is also true that a Court of Appeal judge who issues a
warrant under the CSIS Act is acting as a judge of the Trial
Division. This does not mean, however, that a judge of the
Court of Appeal can routinely be asked to exercise an inherent
control over Court documents under the jurisdiction of the
Trial Division when that is not incident or ancillary to the
powers exercised under the CSIS Act. Such a request should be
directed to a judge appointed to the Trial Division. To allow
applications for access to documents under the jurisdiction of
one Division to habitually be made to judges of the other
Division would wreak havoc with the work of both Divisions of
the Court.
Finally the request for disclosure was not properly before the
Court. It should have been submitted, and it still may be, by
way of a separate notice of motion with supporting material as
required by Rule 319.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Evidence Act, R.S.C. 1970, c. E-10, s. 36.2 (as
added by S.C. 1980-81-82-83, c. Ill, s. 4).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), s. 8.
Canadian Security Intelligence Service Act, S.C. 1984, c.
21, s. 21.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
5(1)(c) (as am. by S.C. 1985, c. 38, s. 11), 26(1).
Federal Court Rules, C.R.C., c. 663, RR. 319, 330 (as
am. by SOR/79-58, s. 1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Wilson v. The Queen, [1983] 2 S.C.R. 594; Dickie v.
Woodworth (1883), 8 S.C.R. 192.
DISTINGUISHED:
Attorney General of Nova Scotia et al. v. Maclntyre,
[1982] 1 S.C.R. 175; 65 C.C.C. (2d) 129.
COUNSEL:
Michael Code for applicant.
John H. Sims, Q.C. for respondent.
SOLICITORS:
Ruby & Edwardh, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: These reasons relate to the continua
tion on September 11, 1987, of the within applica
tion under Rule 330 [Federal Court Rules,
C.R.C., c. 663 (as am. by SOR/79-58, s. 1)] for an
order rescinding a warrant which I issued on July
26, 1985 pursuant to the provisions of section 21 of
the Canadian Security Intelligence Service Act,
S.C. 1984, c. 21. The affidavit filed in support of
the warrant application was sworn by Archie M.
Barr on July 18, 1985 (the Barr affidavit). Subject
application to rescind was originally argued before
me on March 26 and 27, 1987. By judgment dated
April 30, 1987 [[1987] 2 F.C. 309], I dismissed
the within application to rescind.
By a judgment of the Federal Court of Appeal
dated August 12, 1987 [1988] 1 F.C. 107], my
judgment refusing to rescind subject warrant was
set aside and the matter was referred back to me
for a continuance of the hearing of the application
to rescind "on the basis that it was an error in law
to refuse to order production of the affidavit of
Archie M. Barr referred to in the recitals to the
said warrant after deleting therefrom anything
from which the identity of any person described in
paragraphs 18(1)(a) and/or (b) of the Canadian
Security Intelligence Service Act can be inferred."
The hearing on September 11, 1987 was sched
uled as a continuation of the application to rescind
in accordance with the judgment of the Federal
Court of Canada (supra). Prior to the September
11 hearing, it was indicated to the Registry by
counsel for the respondent that he intended to
object to the disclosure of the Barr affidavit pursu
ant to the provisions of section 36.2 of the Canada
Evidence Act [R.S.C. 1970, c. E-10 (as added by
S.C. 1980-81-82-83, c. 111, s. 4)].
However, when the hearing began on September
11, counsel for the respondent did not pursue this
course of action. To the contrary, he advised the
Court that extensive and serious errors had been
discovered by the Canadian Security Intelligence
Service (CSIS) in the Barr affidavit. The conse
quence of these errors, in his submission, was that
insufficient evidence remained upon which the
warrant could be sustained. Accordingly, respond
ent's counsel supported the position of counsel for
the applicant that the warrant issued on July 26,
1985 in respect of the applicant should be
rescinded.
In support of this submission, the respondent's
counsel filed the affidavit of Francis Elmer Saun-
ders sworn on September 11, 1987 (the Saunders
affidavit). Mr. Saunders is the Regional Director
General of the Toronto Region of CSIS. He was
requested on August 27, 1987 by Mr. T. D. Finn
(then the Director of CSIS) to conduct an immedi
ate investigation to ascertain, inter alia, if any
information contained in the Barr affidavit was
unreliable or incorrect and, if so, to determine how
and why such errors had been made. Mr. Saunders
deposes that, as a result of his investigation, he
was able to identify four instances wherein the
Barr affidavit contained statements of fact which
were inaccurate or could not be substantiated on
the basis of the information known to CSIS when
the affidavit was sworn on July 18, 1985. He
deposes further that the internal audit group of
CSIS found two other instances of unsubstantiated
statements in the Barr affidavit.
I have re-read the original Barr affidavit as filed
in support of the warrant application. I have also
read it deleting therefrom the impeached informa
tion as identified in the Saunders affidavit. Coun
sel for the respondent stated that Mr. Finn had
instructed him to advise the Court that the war
rant would never have been applied for on the
basis of the remaining facts set out in the affidavit
which have not been found to be inaccurate or
unsubstantiated. I agree that the supporting Barr
affidavit, stripped of the tainted material, would
not likely form a proper basis for the issuance of a
warrant pursuant to section 21 of the Canadian
Security Intelligence Service Act.
Accordingly, and in view of the express consent
of the respondent, I propose to rescind the within
warrant. The jurisprudence makes it clear that I
have jurisdiction to do so. In the case of Wilson v.
The Queen, ([1983] 2 S.C.R. 594), Mr. Justice
McIntyre, in writing for the majority of the Court
cited with approval the decision of Dickie v.
Woodworth (1883), 8 S.C.R. 192 where Ritchie
C.J. said at page 195:
The judge having in the first instance made an ex parte
order, it was quite competent for him to rescind that order, on
its being shown to him that it ought not to have been granted,
and when rescinded it was as if it had never been granted ....
The applicant is also entitled to his costs of the
application to rescind under Rule 330 on a party
and party basis.
Before the hearing on September 11, 1987 was
concluded, counsel for the applicant requested that
I order the Registry of this Court to permit him
access to the Barr affidavit. I expressed doubts as
to the propriety of my doing so in this proceeding.
Since respondent's counsel resisted the applicant's
request, I reserved judgment on the form the order
should take and gave leave to both parties to file
written argument in respect of this request by
counsel for the applicant.
From the written argument, filed by counsel, it
is clear that, on September 15, 1987, the Supreme
Court of British Columbia stayed the proceedings
against this applicant and eight other persons
accused of conspiring to commit the murder of
Malkiat Singh Sidhu. The basis for the stay was
said to be the concession on behalf of the Crown
that the wiretap evidence of the conspiracy
obtained pursuant to the within warrant would be
inadmissible at trial. It is also evident that this
applicant, who had been imprisoned pending trial,
has now been freed.
It is urged however, that the applicant requires
access to the Barr affidavit:
(a) so that he may be advised by counsel con
cerning a possible civil action; and
(b) in order to further protect himself against
the criminal charges still before the Supreme
Court of British Columbia (which, according to
counsel, are capable of being reinstituted within a
twelve month period following the issuance of the
stay of proceedings).
Counsel relies on the Maclntyre case' as well as
the comments by Mahoney J. in the majority
decision of the Federal Court of Appeal in the
instant case where he stated at page 38:
The public interest in the administration of justice must, it
seems to me, invariably weigh in favour of the openness of all
judicial processes.
In the submission of counsel, I should follow the
directions of the Federal Court of Appeal and
order disclosure of the Barr affidavit in this
proceeding.
In order to assess the validity of this submission,
I think it necessary to keep in mind the context
within which the Federal Court of Appeal issued
the instructions quoted supra. On the original
motion to rescind pursuant to Rule 330, the appli
cant asserted three broad grounds on which he
attacked subject warrant: firstly, facial invalidity
because of failure to comply with the authorizing
section of the Canadian Security Intelligence Ser
vice Act, namely, section 21 thereof; secondly, and,
in the alternative, and assuming compliance with
section 21, facial invalidity because of failure to
comply with the minimum constitutional standards
for a reasonable search and seizure pursuant to
section 8 of the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act 1982,
1982, c. 11 (U.K.)]; and, thirdly, in the further
alternative, sub-facial invalidity because the sup
porting affidavit did not justify its issuance. Essen
tial to this argument and a pre-condition to its
' Attorney General of Nova Scotia et al. v. Mac/ntyre,
[1982] 1 S.C.R. 175, at p. 180; 65 C.C.C. (2d) 129, at p. 142,
per Dickson J. (as he then was).
being made was the production of the supporting
affidavit for inspection by the applicant.
As I perceive the majority reasons of the Feder
al Court of Appeal, the first and second grounds of
appeal were not accepted. However, the Court did
conclude that the third ground of appeal was
well-founded and that the Barr affidavit should be
produced subject to certain exceptions as specified
in the order of the Court.
In my view, it is obvious that the reasons given
by Mahoney J. for reaching this conclusion must
be read in the context of the proceedings before
the Court. The Court of Appeal had before it an
appeal from my decision pursuant to Rule 330
wherein I refused to rescind subject search war
rant. The consequence of the order of the Court of
Appeal would be to enable counsel for the appli
cant to inspect the supporting affidavit in order to
advance his argument of sub-facial invalidity.
However, since the subject warrant is being
rescinded, the applicant no longer needs to see the
Barr affidavit in order to make the sub-facial
invalidity argument or any other argument for that
matter. The notice of motion herein filed on
March 20, 1987 by the applicant asked only for an
order rescinding the warrant issued by me on July
26, 1985. The applicant is going to receive all of
the relief asked for in that notice of motion. What
he is now asking for is something completely
exterior to and apart from the Rule 330 motion to
rescind.
Counsel for the applicant, however, submitted
that, since the application was made before me
acting as a judge of the Trial Division, I would
have inherent power and jurisdiction to make an
order requiring the Registry to disclose the Barr
affidavit to the applicant and should do so pursu
ant to the Maclntyre case and the instructions
given by the Federal Court of Appeal herein.
Insofar as the order of the Court of Appeal is
concerned, it is my view, for the reasons expressed
supra, that the directions given therein were given
in the context of the proceeding before them,
namely the Rule 330 motion. I did not have before
me, at the outset, nor do I have before me now, a
motion to the Trial Division for an order that the
Registry open the contents of a file rendered secret
by the provisions of the Canadian Security Intelli
gence Service Act. In the normal course of events,
such a motion would be directed to the Trial
Division and be dealt with by a judge appointed to
the Trial Division. Furthermore, in the normal
course of events, it would require a supporting
affidavit.
Insofar as the Maclntyre case supra, is con
cerned, the applicant in that case was a journalist
who made an application to the Trial Division of
the Supreme Court of Nova Scotia for an order in
the nature of mandamus and/or a declaratory
judgment that he was entitled to inspect search
warrants and the informations used to obtain them
after he was refused access to such documents by
the Court Clerk. As indicated supra, it is my view
that a similar procedure would have been the
proper procedure to follow in this case.
It is true as a judge appointed to the Court of
Appeal, I am ex officio a member of the Trial
Division pursuant to paragraph 5(1)(c) of the
Federal Court Act [R.S.C. 1970 (2nd Supp.), c.
10] (as am. by S.C. 1985, c. 38, s. 11)]. It is also
true, pursuant to the same paragraph that judges
appointed to the Trial Division are ex officio
members of the Court of Appeal. This is not to
say, however, that in the orderly and efficient
conduct of the business of both Divisions of the
Court, judges of the two Divisions should be
expected to assert jurisdiction in the other Division
on a customary and normal basis. Mahoney J.
speaking for the majority of the Federal Court of
Appeal in the instant case (A-339-87, August 12,
1987) said at page 8:
In my opinion a judge designated by the Chief Justice for the
purposes of the Canadian Security Intelligence Service Act, in
exercising functions under that Act, is doing so as a Federal
Court judge. [Emphasis added.]
He went on to observe, that pursuant to subsection
26(1) of the Federal Court Act, the original juris
diction conferred by that Act is conferred on the
Trial Division.
Accordingly, it is clear that I was acting as a
judge of the Trial Division when I was exercising
functions under the Canadian Security Intelli
gence Service Act. However, what I am being
asked to do here is to exercise an inherent control
over Court documents generally and not something
incidental or ancillary to the powers exercised by
me under the Canadian Security Intelligence Ser
vice Act. The request for the exercise of such an
inherent power should be directed to a judge
appointed to the Trial Division. If it were not so,
then an application normally directed to the Fed
eral Court of Appeal in respect of access to the
documents under its jurisdiction and control could,
for example, routinely be made to a judge of the
Trial Division since he is, ex officio a member of
the Federal Court of Appeal. Such a proposition is
clearly impractical and calculated to wreak havoc
with the work of both Divisions of the Court.
Accordingly, and for the reasons expressed
supra, I decline to exercise any jurisdiction that I
may have as an ex officio judge of the Trial
Division to grant the applicant's request in respect
of the Barr affidavit. Quite apart from any other
considerations, the matter is not properly before
me by way of a separate notice of motion with
supporting material as required by Rule 319. If
the applicant is still of the opinion that access to
the Barr affidavit is required, I know of no present
impediment that would foreclose such an applica
tion to the Trial Division.
In conclusion, then, the application pursuant to
Rule 330 for an order rescinding the warrant
issued herein by me on July 26, 1985, is granted
and said warrant is set aside with costs payable by
the respondent to the applicant on a party and
party basis.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.