Atwal v. Canada, (1987) 79 N.R. 91 (FCA)

• Judge: Mahoney, Hugessen and MacGuigan, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: August 12, 1987
• Jurisdiction: Canada (Federal)
• Citations: (1987), 79 N.R. 91 (FCA)

Atwal v. Can. (1987), 79 N.R. 91 (FCA)

MLB headnote and full text

Harjit Singh Atwal (appellant) v. Her Majesty The Queen (respondent)

(No. A-339-87)

Indexed As: Atwal v. Canada

Federal Court of Appeal

Mahoney, Hugessen and MacGuigan, JJ.

August 12, 1987.

Summary:

A judge of the Federal Court of Canada issued a warrant under s. 21(1) of the Canadian Security Intelligence Service Act authorizing the Security Service to intercept communications and to search for and seize documents pertaining to Atwal. Atwal was subsequently charged with conspiracy to commit murder contrary to s. 423(1)(a) of the Criminal Code. Atwal applied under rule 330 of the Federal Court Rules to rescind the warrant. A judge of the Federal Court in a decision reported at 78 N.R. 292, refused to rescind the warrant. The judge refused to order disclosure of the affidavit filed in support of the warrant. Atwal appealed.

The Federal Court of Appeal allowed the appeal in part. The court held that the warrant was valid on its face but that the trial judge should have ordered disclosure of the affidavit. The court remitted the matter back to the trial judge for continuation of the hearing.

Hugessen, J., dissenting in part, stated that s. 21 of the Act did not provide any reasonable standard by which the issuing judge could test the need for the warrant.

Civil Rights - Topic 1213

Security of the person - Lawful or reasonable search - For reasonable and probable cause - Pursuant to s. 21 of the Canadian Security Intelligence Service Act, a judge could issue a warrant to investigate a threat to the security of Canada - The validity of the warrant was challenged under s. 8 of the Charter on the ground that the section did not require the judge to believe on reasonable and probable grounds that an offence had been committed or that evidence of the offence could be found at the place of the search - The Federal Court of Appeal stated that s. 21 of the Act imposed an objective standard on the judge to ensure that, on reasonable and probable grounds, a threat to the security of Canada existed and that the warrant was required to enable its investigation - The court stated that the issuing of a warrant to investigate a threat to national security involved different considerations in determining the reasonableness of the warrant than when investigating an offence in the ordinary criminal context - See paragraphs 31 to 37.

Civil Rights - Topic 1381

Security of the person - National security - General - [See Civil Rights - Topic 1213 above].

Civil Rights - Topic 8557

Canadian Charter of Rights and Freedoms - Interpretation - Particular phrases - Secure against unreasonable search and seizure - The Federal Court of Appeal stated that s. 8 of the Charter encompasses a right to privacy extending beyond reasonable search and seizure - The court stated that the section applies to state authorized interception of private verbal communications for purposes of obtaining evidence under the Criminal Code, or intelligence under the Canadian Security Intelligence Service Act - See paragraphs 32 to 64.

Courts - Topic 4082

Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Appeals from judgments of Trial Division - Pursuant to s. 21 of the Canadian Security Intelligence Service Act, a warrant was issued by a judge of the Federal Court of Canada authorizing the interception of private communications - An application to rescind the warrant was dismissed and appeal made to the Federal Court of Appeal - The Crown challenged the jurisdiction of the Appeal Court to hear the appeal - The Federal Court of Appeal held that pursuant to s. 26(1) of the Federal Court Act, the Trial Division has "original jurisdiction in respect of any matter not specifically allocated to the Court of Appeal" - The court held that the refusal to rescind the warrant was a final judgment of the Trial Division and appealable to the Court of Appeal pursuant to s. 27(1) of the Federal Court Act - See paragraphs 3 to 14.

Evidence - Topic 4232

Witnesses - Privilege - Lawyer-client communications - Requirement of confidential communications - Pursuant to s. 21 of the Canadian Security Intelligence Service Act, a warrant issued under the section authorized the interception of private communications between a suspect and his solicitor - The section also required the destruction of the communications if the information was not necessary to achieve the objects of the Act - The Federal Court of Appeal held that the interception of privileged communications did not render the warrant invalid on its face - The court held that the destruction provisions of the Act "met the requirement that the confidentiality of solicitor-client communications be interfered with only to the extent absolutely necessary to achieve the objects of the Act" - See paragraphs 26 to 30.

National Security - Topic 2003

Investigation of security threats - General - State security interests distinguished from law enforcement interests - [See Civil Rights - Topic 1213 above].

National Security - Topic 2210

Investigation of security threats - Judicial control - Warrants - Evidence - Pursuant to s. 21(1) of the Canadian Security Intelligence Service Act, a warrant can be obtained to enable the Service to investigate a threat to the security of Canada - The validity of a warrant was challenged on the ground that it was insufficient to describe the threat in the warrant by merely reciting the statutory language - The Federal Court of Appeal held that "the failure to describe in the warrant the perceived threat to the security of Canada in terms other than the words of the Act, does not render the warrant invalid on its face" - See paragraphs 21 to 24.

National Security - Topic 2210

Investigation of security threats - Judicial control - Warrants - Evidence - Section 21(3) of the Canadian Security Intelligence Service Act required that before issuing a warrant the judge must be satisfied that 1) reasonable grounds exist to believe that a warrant is required to investigate a threat and 2) that other investigative procedures have been tried and failed - An applicant alleged that a warrant issued under the Act was invalid because it did not set out these two requirements - The Federal Court of Appeal affirmed the trial judge's decision that "for facial validity, the issuing judge should not be required to specify with particularity, his satisfaction with a specific requirement or requirements of the statute" - The court stated that "the absence of a recital, not expressly required by the authorizing statute, is not a basis for concluding that the warrant is invalid on its face" - See paragraphs 16 to 20.

National Security - Topic 2212

Investigation of security threats - Judicial control - Warrants - Disclosure of supporting material - A judge of the Federal Court issued a warrant under s. 21 of the Canadian Security Intelligence Service Act - The validity of the warrant was questioned and the applicant applied for disclosure of the affidavit filed in support of the warrant - The Federal Court of Canada, Trial Division, dismissed the application - The Federal Court of Appeal, on appeal, discussed the rights of disclosure of affidavits filed in support of a warrant - The court stated that pursuant to s. 36.1 of the Canada Evidence Act, the appropriate Crown minister must establish the interests of national security in nondisclosure - The court stated that it is not the function of a judge in an application for disclosure to invoke the national security interest.

Cases Noticed:

R. v. Church of Scientology and Zaharia (1987), 13 O.A.C. 17, refd to. [para. 6].

Herman et al., Re (1979), 26 O.R.(2d) 520, refd to. [para. 6].

Sada Ltée v. Collège Édouard-Montpetit, [1981] 2 F.C. 307, refd to. [para. 7].

Widmont v. Minister of Employment and Immigration, [1984] 2 F.C. 274; 56 N.R. 198, refd to. [para. 7].

Herman et al. v. Attorney General of Canada, [1979] 1 S.C.R. 729; 23 N.R. 235, consd. [paras. 12, 59].

Borden & Elliot and The Queen, Re (1975), 30 C.C.C.(2d) 337, refd to. [para. 17].

R. v. Walsh and Iannuzzi (No. 6) (1970), 32 C.C.C.(2d) 363, refd to. [para. 18].

Donnelly & Acheson and The Queen, Re (1976), 29 C.C.C.(2d) 58, refd to. [para. 18].

Bergeron v. Deschamps (1977), 33 C.C.C.(2d) 461, refd to. [para. 22].

R. v. Gill (1980), 56 C.C.C.(2d) 169 (B.C.C.A.), refd to. [para. 23].

R. v. Volpe (1981), 63 C.C.C.(2d) 506 (Ont. C.A.), refd to. [para. 23].

R. v. Finlay and Grellette (1985), 11 O.A.C. 279; 23 C.C.C.(3d) 48, refd to. [paras. 23, 31].

U.S. v. U.S. District Court (1972), 407 U.S. 292, refd to. [para. 24].

R. v. Grabowski, [1985] 2 S.C.R. 434; 63 N.R. 32, consd. [para. 25].

R. v. Dunbar and Logan (1982), 68 C.C.C.(2d) 13 (Ont. C.A.), refd to. [para. 28].

Descoteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, consd. [para. 29].

Solosky v. Government of Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 29].

Southam Inc. v. Hunter et al., [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 14 C.C.C.(3d) 97; 11 D.L.R.(4th) 641; 41 C.R.(3d) 97; 2 C.P.R.(2d) 1; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 9 C.R.R. 355; [1984] 6 W.W.R. 577, consd. [paras. 33, 60].

Realty Renovations Ltd. v. A.G. of Alberta, [1979] 1 W.W.R. 74, refd to. [para. 38].

MacIntyre v. Attorney General of Nova Scotia et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 38].

Gibson v. Canada (Government), [1983] 2 F.C. 463; 47 N.R. 64, consd. [para. 42].

Gold v. Canada, [1986] 2 F.C. 129; 64 N.R. 260, consd. [para. 42].

I.B.M. Canada Limited v. Xerox of Canada Limited and Xerox Corporation (1977), 16 N.R. 355, refd to. [para. 43].

R. v. Wilson, [1983] 2 S.C.R. 594; 51 N.R. 321, consd. [paras. 48, 57].

Statutes Noticed:

Canada Evidence Act - see Evidence Act.

Canadian Charter of Rights and Freedoms, 1982, sect. 8 [paras. 2, 31, 32, 36, 60, 64, 69]; sect. 10(b) [para. 27].

Canadian Security Intelligence Service Act, S.C. 1984, c. 21, sect. 2 [para. 4]; sect. 12 [paras. 30, 63]; sect. 18 [paras. 39, 54]; sect. 19 [paras. 39, 41]; sect. 19(2)(a) [paras. 30, 39]; sect. 21 [paras. 4, 15, 17, 31, 33, 36, 55, 60, 62, 64, 66, 71, 74]; sect. 21(1) [paras. 1, 2, 4]; sect. 21(2)(a) [paras. 36, 71]; sect. 21(3) [paras. 15, 16, 17, 30, 71]; sect. 27, sect. 28 [para. 39].

Criminal Code, R.S.C. 1970, c. C-34, sect. 423(1)(a) [para. 1].

Evidence Act, R.S.C. 1970, c. E-10, sect. 36.1 [paras. 52, 54]; sect. 36.2 [para. 52].

Federal Court Act, R.S.C. 1970 (2nd Supp), c. 10, sect. 3 [para. 12]; sect. 4, sect. 5(1) [para. 3]; sect. 26(1) [paras. 3, 13, 58]; sect. 27(1) [paras. 2, 13, 57]; sect. 28 [paras. 9, 59]; sect. 52(b)(iii) [para. 54].

Federal Court Rules, rule 330 [paras. 1, 7, 43, 44, 48, 55]; rule 1204 [para. 39].

Authors and Works Noticed:

Watt, David, Electronic Surveillance (1979), p. 175ff [para. 27].

Counsel:

David Gibbons and Michael Code, for the appellant;

Michael R. Dambrot and James W. Leising, for the respondent;

Alexander Budlovsky, for the Attorney General of British Columbia.

Solicitors of Record:

Ruby & Edwardh, Toronto, Ontario, for the appellant;

F. Iacobucci, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent;

Ministry of Attorney General, New Westminster, B.C., for the Attorney General of British Columbia.

This appeal was heard on June 24, 25 and 26, 1987, at Ottawa, Ontario, before Mahoney, MacGuigan and Hugessen, JJ., of the Federal Court of Appeal. The decision of the Court of Appeal was delivered on August 12, 1987, when the following opinions were filed:

Mahoney, J. (MacGuigan, J., concurring) - see paragraphs 1 to 54;

Hugessen, J., dissenting in part - see paragraphs 55 to 75.