Federal Court Decisions

Decision Information

Canada (Attorney General) v. MacDonald

Court (s) Database	Federal Court Decisions
Date	2024-05-15
Neutral citation	2024 FC 716
File numbers	DES-5-23

Decision Content

Date: 20240515

Docket: DES-5-23

Citation: 2024 FC 716

Ottawa, Ontario, May 15, 2024

PRESENT: The Honourable Mr. Justice Fothergill

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

PATRICK GORDON MACDONALD

Respondent

and

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

ORDER

UPON the Application of the Attorney General of Canada [AGC] pursuant to s 38.04(1) of the Canada Evidence Act, RSC 1985, c C-5 [CEA] for an Order confirming the prohibition of disclosure of information contained in documents referred to in a notice given by counsel for the Public Prosecution Service of Canada [PPSC] to the AGC pursuant to s 38.01(1) of the CEA;

AND CONSIDERING that:

(a)on July 4, 2023, Mr. Macdonald was charged with offences pursuant to ss 83.18, 83.19 and 83.02 of the Criminal Code, RSC, 1985, c C-46 (Ontario Court of Justice Court File No 4011 998 23 1140453500);
(b)on September 14, 2023, counsel for the PPSC provided notice to the AGC pursuant to s 38.01(1) of the CEA that sensitive or potentially injurious information may be disclosed in connection with the criminal proceeding against Mr. Macdonald; and
(c)on March 18, 2024, the Court appointed Mr. Harout Haladjian as amicus curiae in this Application;

AND UPON reading the materials filed, including the classified affidavits submitted on behalf of the AGC, and hearing from counsel for the AGC and the amicus curiae during an in camera, ex parte hearing on May 2, 2024;

AND CONSIDERING that Mr. Macdonald and his counsel have communicated to the amicus curiae their theory of the defence and the categories of information that may be of interest to them, and have indicated that no public hearing is required and take no position on the Application;

AND CONSIDERING that counsel for the AGC and the amicus curiae have made a joint submission to the Court with their recommendations respecting the disposition of the Application;

AND CONSIDERING that, notwithstanding the joint recommendations of the AGC and the amicus curiae, the Court must determine, in accordance with the applicable statutory provisions and governing jurisprudence, whether the prohibition of disclosure of the information in issue should be confirmed (Canada (Attorney General) v Meng, 2020 FC 844 at para 71);

AND CONSIDERING the tripartite test to determine whether the Court should maintain the confidentiality of information the disclosure of which is alleged to be injurious to international relations, national defence or national security (Ribic v Canada (2003), 185 CCC (3d) 129 (FCA)), namely:

(a)whether the information the AGC seeks to protect is relevant to the underlying proceeding;
(b)if so, whether disclosure of the information would be injurious to international relations, national defence or national security; and
(c)if so, whether the public interest in disclosure outweighs in importance the public interest in non-disclosure;

AND UPON being satisfied that:

(a)the materiality of the information in issue to the underlying proceeding is not always evident, but its potential relevance may be inferred from the disclosure of the documents to Mr. Macdonald in accordance with R v Stinchcombe, [1991] 3 SCR 326; the threshold requirement for disclosure in the context of a criminal trial and the threshold applied at the first step of the Ribic test are both quite low (Canada (Attorney General) v Ortis, 2022 FC 142 at para 74);
(b)courts should accord deference to decisions of the executive in matters of national security, national defence and international relations, as the executive is considered to have greater knowledge and expertise in such matters; but the AGC nevertheless has the burden to prove that disclosure would be injurious to international relations, national defence or national security (Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766 at paras 46-48);
(c)disclosure of the information in issue would be injurious to national security, insofar as it tends to reveal: (i) the names and contact information of personnel employed by the Department of National Defence and Canadian Armed Forces [DND/CAF], the Canadian Security and Intelligence Service [CSIS], and the Financial Transactions and Reports Analysis Centre of Canada [FINTRAC]; (ii) the identities of individuals, groups or issues of investigative interest; and (iii) confidential techniques and capabilities;
(d)disclosure of the summaries of information jointly proposed by counsel for the AGC and the amicus curiae will not be injurious to international relations, national defence or national security, and will provide meaningful disclosure to Mr. Macdonald;
(e)given the tenuous materiality of the information in issue to the underlying criminal proceeding, the public interest in disclosure does not outweigh in importance the public interest in non-disclosure; and
(f)some of the information in issue cannot be summarized in a manner that would prevent injury to national security if disclosed;

THIS COURT ORDERS that:

The attached table summarizing the information in issue shall be disclosed pursuant to s 38.06(2) of the CEA for use in the underlying criminal proceeding.
In all other respects, the application of the AGC pursuant to s 38.04 of the CEA to prohibit the disclosure of information is granted, and the prohibition of disclosure is confirmed pursuant to s 38.06(3) of the CEA.

“Simon Fothergill”

Judge

ATTACHMENT

No.	AGC ID		Public Summary
1	AGC0001	The redacted information identifies the name of DND/CAF member.
2	AGC0002	The redacted information identifies the name, email address and phone number of a DND/CAF member.
3	AGC0003	The redacted information identifies the names and email addresses of DND/CAF members, including the member who made the weapons assessment.
4	AGC0004	The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
5	AGC0005	The redacted information identifies the phone number of a FINTRAC employee.
6	AGC0006	The redacted information identifies the phone number of a FINTRAC employee.
7	AGC0007	The redacted information identifies the phone number extension of a DND/CAF member.
8	AGC0008	The redacted information identifies the phone number of a DND/CAF member.
9	AGC0009	The redacted information identifies the name of a DND/CAF member.
10	AGC0010	The redacted information identifies the phone number of a FINTRAC employee.
11	AGC0011	The redacted information identifies the name of a DND/CAF member.
12	AGC0012	The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
13	AGC0013	The redactions refer to a period of time within the CSIS investigation.
14	AGC0014	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
15	AGC0015	The redacted information identifies the names and email addresses of FINTRAC employees.
16	AGC0016	The redacted information identifies the name and phone number of a FINTRAC employee.
17	AGC0017	The redactions refer to a period of time within the CSIS investigation.
18	AGC0018	Part of the redacted information identifies the name of a DND/CAF member who made the weapons assessment. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
19	AGC0019	Part of the redacted information describes a CSIS investigative technique. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
20	AGC0020	Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
21	AGC0021	The redacted information identifies the names of CSIS employees.
22	AGC0022	Part of the redacted information identifies the name and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
23	AGC0023	The redacted information identifies the names of CSIS employees.
24	AGC0024	Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
25	AGC0025	The redacted information identifies the names of CSIS employees.
26	AGC0026	Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
27	AGC0027	The redacted information identifies the names of CSIS employees.
28	AGC0028	Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
29	AGC0029	The redacted information identifies the names of CSIS employees.
30	AGC0030	Part of the redacted information identifies the name and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
31	AGC0031	The redacted information identifies the names of CSIS employees.
32	AGC0032	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
33	AGC0033	The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
34	AGC0034	The redacted information identifies the name of a CSIS employee.
35	AGC0035	The redacted information identifies the name of a CSIS employee.
36	AGC0036	The redacted information identifies the names of CSIS employees.
37	AGC0039	The redacted information identifies the names and email addresses of CSIS employees.
38	AGC0040	Part of the redacted information identifies the names and email address of a CSIS employee. The redactions also relate to the response to the deconfliction process.
39	AGC0041	The redacted information identifies the names of CSIS employees.
40	AGC0044	The redacted information identifies the name of a CSIS employee.
41	AGC0045	The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
42	AGC0046	Part of the redacted information identifies the names and an email address of CSIS employees. The redactions also relate to the response to the deconfliction process.
43	AGC0047	The redacted information identifies the name of a CSIS employee.
44	AGC0048	Disclosure of the redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
45	AGC0049	The redactions relate to the response to the deconfliction process.
46	AGC0050	The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
47	AGC0051	The redacted information identifies a CSIS phone number, internal procedures and administrative methodologies.
48	AGC0052	The redacted information identifies a CSIS phone number, internal procedures and administrative methodologies.
49	AGC0053	The redacted information identifies the name and email address of a CSIS employee.
50	AGC0054	The redacted information identifies the name and email address of a CSIS employee.
51	AGC0055	The redacted information identifies the name and email address of a CSIS employee.
52	AGC0056	The redacted information describes a CSIS Technique.
53	AGC0057	The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
54	AGC0058	The redacted information identifies the name of a CSIS employee.
55	AGC0059	The redacted information identifies the names and email addresses of CSIS employees as well as administrative procedures.
56	AGC0060	The redacted information identifies the name of a CSIS employee.
57	AGC0061	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
58	AGC0062	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
59	AGC0063	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
60	AGC0064	Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
61	AGC0065	The redacted information identifies the names of CSIS employees.
62	AGC0066	Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
63	AGC0067	The redacted information identifies the names of CSIS employees.
64	AGC0068	Part of the redacted information identifies the names and email addresses of CSIS employees. The redactions also relate to the response to the deconfliction process.
65	AGC0069	The redacted information identifies the names of CSIS employees.
66	AGC0070	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
67	AGC0071	The redacted information identifies the email address of a CSIS employee.
68	AGC0072	The redacted information identifies the name and phone number of a FINTRAC employee.
69	AGC0073	The redacted information identifies the phone number of a FINTRAC employee.
70	AGC0074	The redacted information identifies the phone number of a FINTRAC employee.
71	AGC0075	The redacted information identifies the phone number of a FINTRAC employee.
72	AGC0076	The redacted information identifies the name and phone number of a FINTRAC employee.
73	AGC0077	The redacted information identifies the phone number of a FINTRAC employee.
74	AGC0078	The redacted information identifies the name of a FINTRAC employee.
75	AGC0079	The redacted information identifies the name and phone number of a FINTRAC employee.
76	AGC0080	The redacted information identifies the phone number of a FINTRAC employee.
77	AGC0081	The redacted information identifies the phone number of a FINTRAC employee.
78	AGC0082	The redacted information identifies the name and phone number of a FINTRAC employee.
79	AGC0083	The redacted information identifies the name and phone number of a FINTRAC employee.
80	AGC0084	The redacted information identifies the name and phone number of a FINTRAC employee.
81	AGC0085	The redacted information identifies the phone number of a FINTRAC employee.
82	AGC0086	The redacted information identifies the name and phone number of a FINTRAC employee.
83	AGC0087	The redacted information identifies the phone number of a FINTRAC employee.
84	AGC0088	The redacted information identifies the name and phone number of a FINTRAC employee.
85	AGC0089	The redacted information identifies the phone number of a FINTRAC employee.
86	AGC0090	The redacted information identifies the name and phone number of a FINTRAC employee.
87	AGC0091	The redacted information identifies the phone number of a FINTRAC employee.
88	AGC0092	The redacted information identifies the phone number of a FINTRAC employee.
89	AGC0093	The redacted information identifies the name and phone number of a FINTRAC employee.
90	AGC0094	The redacted information identifies the phone number of a FINTRAC employee.
91	AGC0095	The redacted information identifies the name and phone number of a FINTRAC employee.
92	AGC0096	The redacted information identifies the names of CSIS employees.
93	AGC0097	The redacted information identifies the name and phone number of a FINTRAC employee.
94	AGC0098	The redacted information identifies the names of DND/CAF members, including the member who made the weapons assessment.
95	AGC0099	The redacted information identifies the name of a DND/CAF member.
96	AGC0127	The redacted information identifies phone numbers of a DND/CAF member.
97	AGC0129	The redacted information identifies the name of a DND/CAF member. Disclosure of the remaining redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
98	AGC0130	The redacted information identifies the name of a DND/CAF member.
99	AGC0131	The redacted information identifies the name of a DND/CAF member.
100	AGC0132	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
101	AGC0133	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
102	AGC0134	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
103	AGC0135	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
104	AGC0136	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
105	AGC0137	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
106	AGC0138	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
107	AGC0139	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
108	AGC0140	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
109	AGC0141	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
110	AGC0142	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
111	AGC0143	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
112	AGC0144	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
113	AGC0145	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
114	AGC0146	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
115	AGC0147	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
116	AGC0148	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
117	AGC0149	The redacted information identifies the name of a DND/CAF member who made the weapons assessment.
118	AGC0150	The redacted information identifies the names of CSIS employees.
119	AGC0151	Disclosure of the redacted information would be injurious to national security, and the public interest in non-disclosure outweighs in importance the public interest in disclosure.
120	AGC0152	The redactions relate to the response to the deconfliction process.
121	AGC0153	The redactions relate to the response to the deconfliction process.
122	AGC0154	Part of the redacted information identifies the names and an email address of CSIS employees. The redactions also relate to the response to the deconfliction process.

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