I PART I: GATEWAYS AND ROADBLOCKS TO LITIGATING STATE SECRETS 132 IN THE FIRST AND THIRD PARTY DISCLOSURE REGIMES I. Understanding the Common Law Disclosure Regime and its 134 Intersection with Terrorism Prosecutions II PART II: A CASE COMMENT ON R V ALIZADEH 136 I. An Outline of the Case 136 II. Dissecting Alizadeh and its Ramifications in Light of 140 CSIS' Amplified Powers III PART III: DEALING WITH SECTION 38 AND THE BIFURCATED COURT MODEL 151 IV CONCLUSION 154 The concern for fairness and the intention to prevent miscarriages of justice that animated Stinchcombe apply with equal force in terrorism cases. A wrongful terrorism offence conviction stemming from a failure by the Crown to make full disclosure would constitute an injustice. (1) --Air India Commission of Inquiry When measured against the right to make "full answer and defence" (2) and the constitutionally enshrined right to a fair trial, (5) the preservation of state secrets fares stubbornly. This tension is made plain when a disclosure application is countered by a national security privilege claim, codified in section 38 of the Canada Evidence Act (4)--a framework designed to preserve state secrets. The right to disclosure in a criminal prosecution is an "adjunct" of the right to make full answer and defence under section 7 of the Charter of Rights and Freedoms. (5) Meanwhile, accused persons do not benefit from disclosure as of right in respect of intelligence, documents internal to intelligence services, communications with foreign agencies, or intelligence relating to suspects unrelated to the accused. (6) Whether the Canadian Security Intelligence Service (CSIS) will ever be considered an "investigating state authority" for the purposes of Stinchcombe disclosure remains unclear. (7) Given these issues, what happens when agencies like CSIS reserve the disclosure of intelligence to the accused on the basis of a "legal duty of secrecy", (8) all while possessing tools akin to law enforcement bodies?
The author submits that in light of CSIS's new powers in the Anti-terrorism Act, 2015? intelligence should ideally constitute first party disclosure. Alternatively, accused persons should benefit from a robust interpretation of the third party disclosure doctrine in O'Connor (10) applications. Rigid interpretations of what is "likely relevant" dilutes the value of the right to make full answer and defence, engendering unpredictable standards in relation to the disclosure of intelligence. In support of this argument, the author relies on R v Alizadeh, (11) a 2013 pre-trial decision from a terrorism prosecution in Ottawa, to expose the theoretical and practical implications of narrowly circumscribing assessments of intelligence deemed likely relevant.
This paper is divided into three segments. Part 1 unpacks the first and third party common law disclosure rules. Part II studies the court's reasoning in Alizadeh I, drawing on other cases which limit intelligence as third party disclosure. In this section, the author will also rely on CSIS's new powers to make the case for why intelligence ought to constitute first party disclosure. Furthermore, relying on extant issues explored by the Commission of Inquiry on Air India Flight 182, (12) Part III briefly comments on the bifurcated court model triggered by 38 of the CEA as an alternative area for reforms outside the common law, arguing that a single trial court is best left to decide matters involving disclosure and privilege.
I PART I: GATEWAYS AND ROADBLOCKS TO LITIGATING STATE SECRETS IN THE FIRST AND THIRD PARTY DISCLOSURE REGIMES
Scholarly references to the "intelligence-to-evidence conundrum" (13) embody the tension between intelligence in the pre-charge phase and evidence marshaled at trial in the post-charge phase. This tension lies in the "transition from collecting intelligence to collecting evidence, as an operation shifts from an intelligence-gathering exercise to a law enforcement investigation." (14) The dynamic creates a blurred line between the two that often yields contentious constitutional arguments about what ought to be disclosed.
In terrorism prosecutions, investigations are often triggered by the receipt of a disclosure or advisory letter from CSIS to the respective law enforcement agency. A disclosure letter is akin to a tip for investigative purposes, whereas an advisory letter may be relied upon to draft an Information to Obtain ("ITO") for a search warrant, subject to the conditions stated in the letter. (15) Intelligence sought in disclosure applications is sometimes referred to as a "source document" that supplements or provides further information on CSIS's investigation. (16) If disclosed, source documents may assist in supporting a Garofoli application, (17) or a Charter challenge that is not patently obvious in the disclosure record received by the defence. As Craig Forcese aptly provides, CSIS's hesitation to disclose source documents is explained by the "mosaic effect", (18) which is the idea that the release of benign or innocuous information can, when pieced together, or connected by a knowledgeable reader, cumulatively disclose matters of true national security significance. (19) In an age when reliance on "metadata" (20) grows more prominent, it will become increasingly difficult to discount the magnitude of the mosaic effect given the amount of data generated by individuals, and CSIS's abilities to weave information together to tell a tale about why any given subject is a threat to national security.
UNDERSTANDING THE COMMON LAW DISCLOSURE REGIME AND ITS INTERSECTION WITH TERRORISM PROSECUTIONS
The bedrock of the Crown's disclosure obligations can be found in R v Stinchcombe, (21) which describes the common law duty to disclose. Stinchcombe cautions the state to err on the side of disclosure, unless the material is clearly irrelevant, subject to privacy due to its injurious effects, or privileged. (22) However, the fruits of an investigation do not constitute the property of the Crown for use to secure a conviction, as they belong to the public to ensure that justice is done. (23) Since the Crown's obligation to disclose is not absolute, (24) obtaining intelligence poses difficulties for the defence.
On a review of Crown discretion, a trial judge must be guided by the principle that information ought not to be withheld if it impairs, or there is a reasonable possibility that it will impair, the right of the accused to make full answer and defence, unless privilege is triggered. (25) Critically, the obligation to disclose is an ongoing one when information is received, (26) which includes both the pre-trial and trial phase.
When information is not disclosed on grounds of privilege due to state security, the "overriding concern" is whether the failure to disclose "impedes the ability of the accused to make full answer and defence. (27) Writing for the Supreme Court of Canada in Stinchcombe, Sopinka J shed light on the constitutional dimension of the right to make full answer and defence, explaining it as follows:
This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice... The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. (28) Despite broad interpretations about what constitutes Stinchombe disclosure, the Crown can dispute its disclosure obligations to the defence when information is sourced from third parties, such as CSIS, or is not within its immediate possession or control. (29) These disputes often prompt the defence to file a third party disclosure application, which applies to intelligence and other third party material. That is to say, CSIS intelligence is not necessarily immune from third party disclosure. (30)
The procedure for filing an O'Connor application is summarized as follows: (1) the defence typically serves a subpoena duces tecum (31) on the party possessing the record, and all parties with an influence on the records sought; (2) an application record filed with affidavit evidence, a factum to demonstrate that the records are "likely relevant" to an issue in the trial or the competence of a witness expected to testify on the subject of the records; (3) if the first stage is not passed, the analysis ends and the application fails. If the defence is able to meet the likely relevance threshold, the judge will request the party with the information to produce it to the court, typically in a sealed envelope; and (4) in reviewing the material in chambers, the judge must then balance the salutary and deleterious effects of ordering the production of the records. (32) The legal test for third party disclosure requires that the material be likely relevant to an issue at trial. (33) If the disclosure is ordered produced, the judge will review the documents, and weigh the privacy interests of the holder of the documents against the right of the accused to make full answer and defence. (34)
In any prosecution, what is likely relevant must be logically probative, or tending to prove a fact at issue and material to the trial proper. (35) Establishing a persuasive record on this point is a daunting endeavour for counsel, particularly without access to the documents. (36) Notably, counsel is not permitted to make assertions about credibility that aim blindly at undermining the credibility of a witness, or to speculate about their potential impropriety. Rather, there must be a nexus from the documents to "meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence". (37) The process of determining what is relevant is "fluid, rather than fixed". (38) As Kent Roach observes, the O'Connor regime standard "is higher than the Stinchcombe standard of relevance...