Judgments

[1996] 2 F.C. 316

DES-2-95

Mohammed Nazir Khan, Marek Kalenski, Baldev Singh Gill and Nasreen Begum Nazir (Applicants)

v.

Her Majesty the Queen (Respondent)

Indexed as: Khan v. Canada (T.D.)

Trial Division, Rothstein J.—Edmonton, February 7, 8, 9, 10 and 11; Ottawa, February 14, 1996.

Criminal justice — Evidence — Applicants charged with drug trafficking — Provincial Court judge directing Crown to disclose correspondence between RCMP, liaison officers in Pakistan, Switzerland — Crown filing complaint under CEA s. 37(1) objecting to disclosure on basis of specified public interest and as injurious to international relations — Jurisdiction of designated Federal Court Judge — Factors considered in cases under ss. 37(2), 38(1) — General disclosure obligation of Crown — Must disclose material relevant, useful to defence — Rule against disclosing information identifying informers, statutory provisions regarding injury to international relations exceptions to general disclosure obligation — Standards, procedure in ss. 37(2), 38(1) cases — “Likely relevance” test — “Likely relevance”, balancing stages separate — “Likely relevance” not onerous burden on accused but higher than usefulness to defence — Admissibility not a consideration — Credibility issue not basis for disclosure — Whether apparent case for disclosure herein — Applicants failing to show how disclosure concerning foreign bank accounts logically probative of any issue at trial — Court not satisfied grounds for seeking disclosure more than fishing expedition — “Likely relevance” test unmet.

Federal Court jurisdiction — Jurisdiction of designated judge under Canada Evidence Act, s. 38(1) — Validity of objections to disclosure to be decided by Chief Justice or designated judge of Federal Court where objections based on injury to international relations, defence, security — Objection herein involving injury to international relations, thereby engaging Federal Court jurisdiction — Designated judge having jurisdiction to decide validity of Crown’s entire objection.

This was an application for disclosure of information pertaining to foreign bank accounts. The Crown has objected to such disclosure on the grounds that it would reveal the identity of police informants and the targets of criminal investigations and that it would jeopardize international relations and arrangements of the RCMP. The applicants have been charged with various offences relating to drug trafficking in the Provincial Court of Alberta. A judge of that Court directed the Crown to disclose the correspondence it had in its possession; instead, the latter filed a certificate under subsection 37(1) of the Canada Evidence Act objecting to disclosure on the basis of a specified public interest and because such disclosure would be injurious to international relations. An RCMP officer has filed an amended certificate which withdrew the objection to disclosure for certain information and went into further detail as to the reasons for confidentiality of specific documents. Although being filed late, the amended certificate complied with the statute that authorized it. Shortly before the disclosure proceedings commenced on April 3, 1995, the case involving one of the applicants was severed and was no longer a part of the proceedings that commenced on that date. Therefore, the applicant in question did not have status in these proceedings. This case raised two issues: 1) a preliminary issue concerning the jurisdiction of the designated judge under subsection 38(1) of the Canada Evidence Act and 2) whether the applicants have made out an apparent case for disclosure.

Held, the application should be dismissed.

1) In the case of an objection to disclosure based on injury to international relations, national defence or security, subsection 38(1) of the Canada Evidence Act provides that only the Chief Justice of the Federal Court or a judge of the Federal Court designated by him may decide the validity of the objection. In this case, the objection was made before the Provincial Court of Alberta. Had the objection not involved a claim of injury to international relations, but only the protection of informers and the confidentiality of targets of criminal investigations, the validity of the objection could have been decided by the Court of Queen’s Bench of Alberta. However, the objection embraced an allegation of injury to international relations, thereby engaging the jurisdiction of the Chief Justice or designated judge of the Federal Court. In cases in which an objection is made on the grounds of injury to international relations, national defence or security as well as other grounds, the designated judge has jurisdiction to decide the validity of the Crown’s objection in its entirety.

2) Under subsection 37(2) of the Act, the court must be satisfied that the public interest in disclosure outweighs the importance of the specified public interest in confidentiality. The party seeking disclosure must first make out an “apparent case” for disclosure before any documents are inspected. The Crown is under a duty to disclose to the defence all material evidence whether favourable to the accused or not and regardless of whether the Crown proposes to adduce it. There are exceptions to that general obligation such as where information is clearly irrelevant or subject to privilege. Although it has been held that where documents as therapeutic records are in the hands of the Crown, they must be considered relevant as information which may be useful to the defence, that does not extend to information which might identify informers. The procedure to be followed in cases under CEA subsections 37(2) and 38(1) is that the applicants must first demonstrate that the information is likely to be relevant. Once the “likely relevance” test is established, the accused must demonstrate that the salutary effect of ordering documents produced to the Court for inspection outweighs the deleterious effects of seeking production. A judge would need to review the material in order to engage in this balancing analysis. The “likely relevance” test is higher than “whether the information may be useful to the defence”. The judge must be satisfied that the information is logically probative of an issue at trial or of the competency of a witness to testify. The “likely relevance” test is appropriate for the “apparent case for disclosure” stage in proceedings under subsections 37(2) and 38(1) of the Act. Admissibility should not be taken into account in proceedings under those provisions.

The arguments relied on by the applicants to establish an apparent case for disclosure were ill-founded. The decision of the Provincial Court of Alberta was based on the lower threshold — whether the information may be useful to the defence. The standard of relevance for purposes of establishing an apparent case for disclosure in the context of the Canada Evidence Act is whether the information is likely relevant. The Crown has not disclosed further information voluntarily but was ordered by the Provincial Court of Alberta to do so. This is not a case of waiver, nor a case in which the Crown could be said to be conceding relevance at the level applicable to a proceeding under subsections 37(2) and 38(1). The disclosure of some information did not estop the Crown from arguing that the balance of the information is not relevant at the applicable standard. Counsel for the applicants were unable to explain how disclosure of information about bank accounts in Switzerland or Pakistan would be logically probative of any issue at trial. The applicants gave no indication why information about these accounts would be helpful to them, and what issue they intend to raise to which such information would relate. The Court was not satisfied that the grounds for seeking disclosure proved to be more than speculation or a fishing expedition. Credibility is always an issue in trial proceedings and therefore, credibility at large cannot provide a basis for disclosure of information in a proceeding under sections 37 and 38 of the Act. The assertions of counsel for the applicants amounted to nothing more than speculation. Nothing specific has been indicated, and the “likely relevance” test has not been met.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 37, 38.

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 24.

Criminal Code, R.S.C., 1985, c. C-46, s. 465(1)(c).

Federal Court Rules, C.R.C., c. 663, R. 1618 (as enacted by SOR/92-43, s. 19).

Narcotic Control Act, R.S.C., 1985, c. N-1, ss. 4(1),(2), 19.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 42, s. 12), 19.2 (as enacted idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. O’Connor, [1995] 4 S.C.R. 411.

CONSIDERED:

R. v. Harrer, [1995] 3 S.C.R. 562; (1995), 128 D.L.R. (4th) 98.

REFERRED TO:

Kevork v. The Queen, [1984] 2 F.C. 753 (1984), 17 C.C.C. (3d) 426 (T.D.); Goguen v. Gibson, [1983] 1 F.C. 872(T.D.); Goguen v. Gibson, [1983] 2 F.C. 463 (1984), 7 D.L.R. (4th) 144; 3 Admin. L.R. 225; 10 C.C.C. (3d) 492; 40 C.P.C. 295; 50 N.R. 286 (C.A.); Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (1988), 53 D.L.R. (4th) 568 (T.D.); Gold v. R., [1986] 2 F.C. 129 (1986), 25 D.L.R. (4th) 285; 18 Admin. L.R. 212; 64 N.R. 260 (C.A.); R. v. Stinchcombe, [1991] 3 S.C.R. 326; (1991), 120 A.R. 161; [1992] 1 W.W.R. 97; 83 Alta. L.R. (2d) 93; 68 C.C.C. (3d) 1; 8 C.R. (4th) 277; 130 N.R. 277; 8 W.A.C. 161; R. v. Egger, [1993] 2 F.C. 451 (1993), 141 A.R. 81; 103 D.L.R. (4th) 678; 82 C.C.C. (3d) 193; 21 C.R. (4th) 186; 15 C.R.R. (2d) 193; 45 M.V.R. (2d) 161; 153 N.R. 272; 46 W.A.C. 81; R. v. Chaplin, [1995] 1 S.C.R. 727; (1995), 162 A.R. 272; 27 Alta. L.R. (3d) 1; 96 C.C.C. (3d) 225; 36 C.R. (4th) 201; 26 C.R.R. (2d) 189; 178 N.R. 118; 83 W.A.C. 272; R. v. Scott, [1990] 3 S.C.R. 979; (1990), 116 N.R. 361; 43 O.A.C. 277.

APPLICATION for disclosure of information objected to by the Crown under sections 37 and 38 of the Canada Evidence Act. Application dismissed.

COUNSEL:

Robert H. Davidson, Q.C., for applicant Mohammed Nazir Khan.

Shawn Beaver for applicants Marek Kalenski and Nasreen Begum Nazir.

Karl R. Wilberg for applicant Baldev Singh Gill.

Barbara S. Ritzen for respondent.

SOLICITORS:

Davidson, Gregory, Edmonton, for applicant Mohammed Nazir Khan.

Pringle, Renouf & Associates, Edmonton, for applicants Marek Kalenski and Nasreen Begum Nazir.

Andrew, Donahoe & Oake, Edmonton, for applicant Baldev Singh Gill.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order of the Court delivered orally in English by

Rothstein J.:

Introduction

The Crown has refused to disclose to the applicants, who are the accused in criminal proceedings in the Provincial Court of Alberta, certain information on the grounds that disclosure would reveal the identity of police informants and the targets of criminal investigations, and as well, because disclosure of criminal intelligence information received from police, security and governmental forces of other countries would jeopardize international relations and arrangements of the RCMP.

The issue in this application is whether there should be disclosure to the applicants. The matter comes before a designated judge of this Court by virtue of subsections 37(2) and 38(1) of the Canada Evidence Act, R.S.C., 1985, c. C-5, as amended, (CEA), because the Crown’s objection is based in part, at least, on injury to international relations.[i]

The information in question, pertaining to bank accounts in Switzerland and Pakistan, had been sought by the applicants commencing in August 1994. The Crown consistently refused disclosure. On April 3, 1995, the issue of disclosure came before Judge E. Walter of the Provincial Court of Alberta who was seized with the criminal prosecutions of the applicants. (A few days before the disclosure proceedings commenced on April 3, 1995, the case involving the applicant Nasreen Begum Nazir, was severed and was no longer a part of the proceedings that commenced on that date.)

On April 4, 1995, the learned Judge directed the Crown “to disclose the correspondence which is in its possession and to do so in a timely and meaningful time frame”. The correspondence was specified to be “the correspondence between the office of the RCMP and liaison officers of the RCMP in Pakistan and Switzerland”.

The Crown did not disclose pursuant to Judge Walter’s directive but rather, on or about April 27, 1995, filed a certificate in the proceedings in the Provincial Court of Alberta pursuant to subsection 37(1) of the CEA objecting to disclosure “on the basis of a specified public interest and on the basis that such disclosure would be injurious to international relations”. On May 2, 1995, the applicants filed an application in this Court asking that the certificate be set aside and that disclosure be ordered.

The Proceedings in the Provincial Court of Alberta

The applicants Khan, Kalenski, and Gill have been charged with various offenses relating to drug trafficking:

February 24, 1993:  Khan charged with trafficking in cocaine contrary to subsection 4(1) of the Narcotic Control Act, R.S.C., 1985, c. N-1, as amended, (NCA).

July 16, 1993:           Khan, Kalenski and Gill charged with trafficking in cocaine between March and June 1993 contrary to subsection 4(1) of the NCA.

July 16, 1993:           Kalenski and Gill charged with possession of cocaine for thepurpose of trafficking contrary to subsection 4(2) of the NCA.

July 16, 1993:           Kalenski charged with possession of the proceeds of crime contrary to section 19.1 of the NCA [as enacted by R.S.C., 1985 (4th Supp.), c. 42, s. 12].

February 7, 1994:     Kalenski pleads guilty to all charges.

March 1994:              Khan charged with laundering contrary to section 19.2 of the NCA [as enacted idem].

April 19, 1994:          Khan, Kalenski and Gill charged with conspiracy to traffic in cocaine contrary to subsection 4(1) of the NCA and paragraph 465(1)(c) of the Criminal Code, R.S.C., 1985, c. C-46, as amended.

On May 26, 1994, Nasreen Begum Nazir was charged with being in possession of the proceeds of crime contrary to section 19.1 of the NCA and laundering the proceeds of crime contrary to section 19.2 of the NCA.

After preliminary motions, the trial of Khan, Kalenski and Gill on all outstanding criminal charges commenced before Judge Walter on May 1, 1995. By December 14, 1995 the trial had proceeded to the point at which the Crown’s evidence had been completed and the Crown had closed its case. The trial is to continue on February 20, 1996.

The certificate that has given rise to these proceedings was made by Superintendent François Hummel of the RCMP. It makes no reference to specific documents in this case. On January 12, 1996 an amended certificate of Inspector Garry William Gordon Clement of the RCMP was filed in the proceedings in this Court which withdrew the objection to disclosure for certain information and went into some further detail as to the reasons for confidentiality of specific documents.

The Amended Certificate

Applicant’s counsel objected to the filing of the amended certificate of Inspector Clement. However, the filing of such certificate was provided for in an order for directions of January 3, 1996. Counsel for all parties participated in the directions hearing and there was no objection at that time.

In addition, the certificate withdraws the objection to disclosure in respect of some documents, and in that sense, is favourable to the applicants.

Further, subsection 38(6) of the CEA entitles the person making the objection to make representations ex parte. It seems that even if the certificate was rejected, counsel for the Crown could make ex parte submissions as to the reasons for confidentiality contained in the amended certificate.

While I can see no objection in principle to the filing of an amended certificate, it has indeed been filed at a late date in these proceedings. The amended certificate indicates that it was occasioned by changed circumstances. Crown counsel says that changed circumstances giving rise to further disclosure include the fact that information from Switzerland had been disclosed. Therefore, the confidentiality of some information based on injury to international relations was no longer necessary.

The disclosure under the amended certificate was made because of the April 4, 1995 order of Judge Walter. It will be for Judge Walter to deal with whether the late disclosure under the amended certificate complies with his order that disclosure be “in a timely and meaningful time frame”.

In the context of the proceedings before me, timely disclosure is to be encouraged and late disclosure can be the subject of an award of costs. Further, I will take this opportunity to comment on the generality of the Hummel certificate. Subsections 37(1) and 38(1) prescribe nothing further than a requirement that a certificate contain an objection “that the information should not be disclosed on the grounds of a specified public interest” (subsection 37(1)) or “on grounds that the disclosure would be injurious to international relations or national defence or security” (subsection 38(1)). Strictly speaking, therefore, the Hummel certificate (and the Clement certificate) comply with the statute that authorizes them.

Of course, a certificate cannot be so specific as to breach the confidentiality it seeks to maintain. However, it is hard to believe that some further specificity could not have been provided without resulting in inadvertent disclosure of what is intended to be kept confidential. At least the documents could have been listed even if only by number. Perhaps had this been done, the Crown might have concluded that some further disclosure could have been made in respect to the April 4, 1995 order of Judge Walter.

Jurisdiction

In the case of an objection to disclosure based on injury to international relations, national defence or security, subsection 38(1) of the CEA provides that only the Chief Justice of the Federal Court or a judge of the Federal Court designated by him may decide the validity of the objection. In this case, the objections are based not just on injury to international relations, but also on informer privilege and the harm that might result from disclosure of the names of targets of criminal investigations. Is the jurisdiction of the designated judge under subsection 38(1) limited to dealing with the international relations objection only, or may the objection on the other specified public interest grounds also be decided by the designated judge?

The scheme under section 37 indicates that a minister or other person interested may object to disclosure before the court, person or body with jurisdiction to compel the production of information. If the proceedings are before a superior court, the superior court judge may decide the objection. If the objection is made before any other court, the objection is to be determined by a judge of the superior court of the province in which the other court exercises jurisdiction. In the case of objections made before a person or body other than a court, the objection is to be decided by the Federal Court Trial Division. In all cases, however, if the objections are based on injury to international relations, defence or security, the validity of the objection must be decided by the Chief Justice or designated judge of the Federal Court.

The legislation is explicit as to which court is to decide objections, depending upon the original court, person or body before whom the objection was made. In this case, the objection was made before the Provincial Court of Alberta. There is no doubt that had the objection not involved a claim of injury to international relations, but only the protection of informers and of the confidentiality of targets of criminal investigations, the validity of the objection should be decided by the Court of Queen’s Bench of Alberta. However, in this case, the objection also involved injury to international relations, thereby engaging the jurisdiction of the Chief Justice or designated judge of the Federal Court.

I am of the view that in cases in which an objection is made on the grounds of injury to international relations, national defence or security as well as other grounds, the designated judge may decide the validity of the entire objection. While I think the word “only” in subsection 38(1) makes it clear that a superior court of a province could not decide an objection on one of the grounds referred to therein, there is no express limitation on the designated judge deciding an objection which involves both grounds under subsection 38(1) and other grounds. Further, subsections 37(2) and (3) are expressly made subject to section 38.

In terms of practicality, any other course of action would appear to be unnecessarily cumbersome, expensive and confusing. Further, the distinction between international relations and other specified public interests may not be easily made. The same documentary material may pertain to both grounds, and the information pertaining to both may be inextricably intertwined.

While the legislation is not beyond doubt on this point, I think there is a basis, both in the opening words of subsections 37(2) and (3), and in the words of subsection 38(1), for the designated judge to decide the validity of the entire objection when the objection is based both on the grounds set forth in subsection 38(1) and on other grounds.

In the circumstances of this case, I am of the view that a designated judge has jurisdiction to decide the validity of the objection of the Crown in its entirety in this proceeding.

Law

The jurisprudence of this Court has established a procedure to be followed in cases under subsections 37(2) and 38(1) of the CEA. By virtue of subsection 37(2), the court must be satisfied that the public interest in disclosure outweighs the importance of the specified public interest in confidentiality. The party seeking disclosure must first make out an “apparent case” for disclosure before any documents are inspected. If the party seeking disclosure establishes an apparent case for disclosure, the court then proceeds to examine the documents in issue.

In assessing whether an apparent case for disclosure has been made out, the following factors have been considered:

(a)       The nature of the public interest sought to be protected by confidentiality; Kevork v. The Queen, [1984] 2 F.C. 753(T.D.), at pages 762 to 764; Goguen v. Gibson, [1983] 1 F.C. 872(T.D.), at page 884; Goguen v. Gibson, [1983] 2 F.C. 463(C.A.) at page 479.

(b)       Whether the evidence in question will “probably establish a fact crucial to the defence”; Kevork v. The Queen, supra, at pages 764 and 765; Goguen v. Gibson, supra, (T.D.), at page 906.

(c)        The seriousness of the charge or issues involved; Kevork v. The Queen, supra, at pages 765 and 766; Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229(T.D.), at page 238.

(d)       The admissibility of the documentation and the usefulness of it; Kevork v. The Queen, supra, at pages 766 to 768; Goguen v. Gibson, supra, (T.D.), at page 906; Gold v. R., [1986] 2 F.C. 129(C.A.).

(e)       Whether the applicants have established that there are no other reasonable ways of obtaining the information; Kevork v. The Queen, supra, at page 767.

(f)        Whether the disclosures sought amount to general discovery or a fishing expedition; Kevork v. The Queen, supra, at page 767; Gold v. R., supra, at pages 139 to 140.

Counsel for the applicants argue that the law in respect of disclosure by the Crown in criminal proceedings has undergone significant changes in recent years in light of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) (Charter). They submit that the designated judge, in applications under subsections 37(2) and 38(1) of the CEA should, where criminal proceedings are involved, be guided by recent jurisprudence of the Supreme Court of Canada in respect of disclosure. I agree.

The general obligation of the Crown to disclose relevant information to the defence is set forth in the well-known case of R. v. Stinchcombe, [1991] 3 S.C.R. 326 (Stinchcombe). In the usual case, the Crown is under a duty to disclose to the defence all material evidence whether favourable to the accused or not and regardless of whether the Crown proposes to adduce it. This obligation however is not absolute. There are exceptions such as where information is clearly irrelevant or is subject to privilege.

Applicants’ counsel also argue that the law set forth in the recent case of R. v. O’Connor, [1995] 4 S.C.R. 411 (O’Connor), is also relevant to a consideration of the procedure to be followed in cases under subsections 37(2) and 38(1) of the CEA O’Connor outlines the procedures to be followed when an accused seeks production of material in the hands of third parties such as medical or therapeutic records of a complainant in rape or sexual assault prosecutions.

In O’Connor, Lamer C.J. and Sopinka J., for the majority on this point, held that when such records are in the hands of the Crown, the disclosure obligation of the Crown is to produce that which is relevant. Relevance in such circumstances is expressed in terms of whether the information may be useful to the defence (see R. v. Egger, [1993] 2 S.C.R. 451 (Egger) and R. v. Chaplin, [1995] 1 S.C.R. 727 (Chaplin) which follow the reasoning in Stinchcombe). They further held that the relevance of therapeutic records must be presumed when the records are in the possession of the Crown as any concern relating to privacy or privilege disappears when the documents in question have fallen into the Crown’s possession.

Before me, applicants’ counsel argue that, as the information in question here is in the hands of the Crown, it must be presumed to be relevant and therefore the disclosure obligation prescribed by Egger and Chaplin must be observed.

I do not agree. We are dealing here with an objection to the disclosure of information involving informers, targets of criminal investigations and international relations. In respect of informers, the rule against the disclosure of information which might identify the informers is one of long standing. The rule, of course, is not absolute and there are specific exceptions: see R. v. Scott, [1990] 3 S.C.R. 979 (Scott). Nothing in O’Connor alters the privilege attaching to the identity of informers as set out in Scott. As to the targets of criminal investigations, Stinchcombe recognizes that, although not to be encouraged, disclosure might have to be delayed in order to complete investigations (see page 328). Injury to international relations as a basis for nondisclosure, is statutorily recognized in subsection 38(1) of the CEA. All of these cases are exceptions to the general obligation to disclose.

On the other hand, the comments of Lamer C.J. and Sopinka J. in O’Connor, again for the majority on the point, in respect of information in the hands of third parties, shed some further light on the standards to be applied and the procedure to be followed in cases under subsections 37(2) and 38(1) of the CEA. Although the reasons for nondisclosure in O’Connor are different, the analysis to be performed in deciding whether to order disclosure is similar to cases under the CEA.

The approach in O’Connor first requires that the applicants demonstrate that the information is likely to be relevant. Once the “likely relevance” test is established, the accused must demonstrate that the salutary effect of ordering documents produced to the Court for inspection outweighs the deleterious effects of seeking production. A judge will only be in an informed position to engage in this required balancing analysis by reviewing the material in question. Lamer C.J. and Sopinka J. state at paragraph 21 of O’Connor [at pages 435-436]:

According to L’Heureux-Dubé J., once the accused meets the “likely relevance” threshold, he or she must then satisfy the judge that the salutary effects of ordering the documents produced to the court for inspection outweigh the deleterious effects of such production. We are of the view that this balancing should be undertaken at the second stage of the procedure. The “likely relevance” stage should be confined to a question of whether the right to make full answer and defence is implicated by information contained in the records. Moreover, a judge will only be in an informed position to engage in the required balancing analysis once he or she has had an opportunity to review the records in question.

With respect to the likely relevance test, the standard is higher than “whether the information may be useful to the defence”. The judge must be satisfied that the information is logically probative of an issue at trial or to the competency of a witness to testify. The Chief Justice and Sopinka J. state at paragraph 22 [at page 436]:

In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to the defence (see Egger, supra, at p. 467, and Chaplin, supra, at p. 740). In the context of production, the test of relevance should be higher: the presiding judge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. When we speak of relevance to “an issue at trial”, we are referring not only to evidence that may be probative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and to the reliability of other evidence in the case. See R. v. R. (L.) (1995), 39 C.R. (4th) 390 (Ont. C.A.), at p. 398.

O’Connor more clearly separates the “likely relevance” or “apparent case for disclosure” stage, from the balancing stage than prior jurisprudence under the CEA As Lamer C.J. and Sopinka J. point out, the balancing analysis requires a review of the records in question. There can be no balancing at the “likely relevance” stage. In terms of the approach under the CEA, this simply means that the “apparent case for disclosure” stage is to be primarily concerned with whether the information in question is likely relevant, leaving the balancing analysis to the stage when information is reviewed, once an apparent case for disclosure has been made out. Of course, it is still appropriate, at the “apparent case for disclosure” stage, to consider whether there is another reasonable way of obtaining the information.

The considerations in previous CEA jurisprudence e.g., will the evidence in question “probably establish a fact crucial to the defence” or whether the disclosure sought amounts to a general discovery or fishing expedition, indicate a standard of relevance similar to the “likely relevance” standard set out in O’Connor. Lamer C.J. and Sopinka J. say in O’Connor that the “likely relevance” test is a significant burden, but that it should not be interpreted as an onerous burden on the accused. It is to prevent speculative, unmeritorious and time consuming requests for production (paragraph 24 [at page 437]). Nonetheless, it is a higher test than that of usefulness to the defence as set out in Egger and Chaplin. The “apparent case for disclosure” test as it has been expressed in CEA jurisprudence, is also higher, and in that sense it is similar to the “likely relevance” test in O’Connor. I am satisfied that the “likely relevance” test in O’Connor is appropriate for the “apparent case for disclosure” stage in proceedings under subsections 37(2) and 38(1) of the CEA.

One condition specified in CEA jurisprudence for the “apparent case for disclosure” stage is the admissibility of the documentation. In her reasons, L’Heureux-Dubé J., for the majority in O’Connor, states at paragraphs 164 and 166 [at pages 507-508]:

I cannot emphasize enough that the guidelines outlined above are clearly not synonymous with the test for admissibility of evidence at trial, outlined in Seaboyer and in s. 276 of the Code. Disclosure and production are broader concepts than admissibility and, as such, evidence which is produced to the defence will not necessarily be admissible at trial.

…

In any event, the admissibility of the records as evidence must be determined if and when the accused seeks to introduce them. The fact that records have been ordered produced to the defence does not mean that the records are necessarily admissible.

I think these observations, which were endorsed by Lamer C.J. and Sopinka J. (see paragraph 24 [at page 437]) suggest that disclosure and production are broader concepts than admissibility, and that admissibility is not a factor to be taken into account in the analysis leading to a decision on disclosure of information. For this reason, I am of the view that admissibility should not be taken into account in proceedings under subsections 37(2) and 38(1) of the CEA.

I would add one further observation which flows naturally from the likely relevance test in O’Connor. Credibility is always in issue and therefore, as L’Heureux-Dubé J. stated (paragraph 142 [at page 497]), an applicant may not simply claim credibility at large as a basis for disclosure of information. If this were so, disclosure would be inevitable in all cases. Some foundation, albeit limited, is necessary to invoke credibility as a reason for disclosure so as to take it out of the realm of speculation. I think this approach to questions of credibility is consistent with the “likely relevance” test established by Lamer C.J. and Sopinka J. in O’Connor.

Status of Nasreen Begum Nazir

Ms. Nazir is named as an applicant in the proceedings before me. However the proceedings involving her were severed from the proceedings involving the other three applicants. The first step in a case involving an objection to disclosure is the filing of a certificate before a court with jurisdiction to compel production. In view of the fact that the proceedings involving Ms. Nazir were severed from those involving the other applicants, I am not satisfied that the Crown has certified, orally or in writing to a court with jurisdiction to compel production, its objection to disclosure in Ms. Nazir’s case as required under subsection 37(1). Until that occurs, there is no basis for an application to this Court under subsections 37(2) and 38(1). In other words, a condition precedent to the bringing of an application under subsections 37(2) and 38(1) in the case of Ms. Nazir has not been satisfied.

Counsel for Ms. Nazir argued that a designated judge could be considered a judge under subsection 37(2) and as the certificate is now filed in this proceeding and indeed there has been an amended certificate filed only in these proceedings, there is jurisdiction to consider the objections to disclosure in respect of Ms. Nazir. However, the scheme of the legislation is clear that the courts referred to in section 37 are the courts in which the primary litigation is proceeding. While that might be the Federal Court in some circumstances, there is never primary litigation before a designated judge.

In the circumstances, I am of the view that Ms. Nazir does not have status in these proceedings. She may continue to seek disclosure of information in the normal course from the Crown. It is only if and when the Crown certifies orally or in writing, in proceedings in the court having jurisdiction to compel production, its objection to disclose under the CEA, that Ms. Nazir will have the status to bring an application pursuant to subsections 37(2) and 38(1) of the CEA.

Is there an Apparent Case for Disclosure?

The applicants rely on three arguments.

1. Judge Walter ordered disclosure.

2. The Crown filed an amended certificate disclosing some information which implies that all the information is relevant.

3. The disclosed information suggests that information not yet disclosed is likely to be relevant.

I will deal with each argument in turn. First, Judge Walter was governed, in his approach to disclosure, by the Egger and Chaplin standard. His decision was based on the lower threshold—whether the information may be useful to the defence. The standard of relevance for purposes of establishing whether there is an apparent case for disclosure in the context of the CEA is whether the information is likely relevant. As previously indicated, this is a higher standard of relevance than that prescribed by Egger and Chaplin. Therefore, Judge Walter’s ruling does not assist the applicants because it was decided on the basis of a lower threshold of relevance than is applicable in these proceedings.

Second, the Crown has disclosed further information. Had the Crown disclosed this information voluntarily, it might suggest that the balance of information must also be disclosed on the grounds of waiver. That, however, is not the case here. Judge Walter had ordered the material in question disclosed. The amended certificate withdraws the objection in respect of certain information, leaving that information fully subject to the disclosure order of Judge Walter. Under these circumstances, the Crown was obligated to disclose the documents to which no objection now applied. This is not a case of waiver, nor a case in which the Crown could be said to be conceding relevance at the level applicable to a proceeding under subsections 37(2) and 38(1).

There may be a question as to the lateness of the Crown’s amended certificate and disclosure. If so, it is to be dealt with before the Provincial Court of Alberta. The issue before me is simply whether the disclosure of some information estops the Crown from arguing that the balance of the information is not relevant at the applicable standard, and I have decided that it does not. Having said this, I do not rule out late filing of an amended certificate as a consideration in the award of costs in these proceedings.

I now turn to whether, having regard to the circumstances of this case and what has been argued by the applicants, there is a reasonable possibility that the information that is sought is logically probative to an issue at trial or the competency of a witness to testify, including questions of credibility of witnesses and reliability of other evidence.

The documents in question constitute correspondence between the RCMP in Canada, and RCMP liaison officers in Switzerland and Pakistan. The subject-matter of the correspondence is the existence and ownership of, and the amounts in, bank accounts in Switzerland and Pakistan. It is said by applicants’ counsel that this type of information is relevant to the charges of being in possession of proceeds of crime, money laundering, and conspiracy to traffic in cocaine.

Before me, the parties agreed that there had been no foreign evidence called at the trial before Judge Walter. The only evidence relating to foreign accounts was given by Canadian witnesses who testified to transfers to foreign accounts. Counsel for the applicants were unable to explain to me how disclosure of information about bank accounts in Switzerland or Pakistan would be logically probative to any issue at trial. The Crown has not relied on such information in its case against the applicants and the Crown’s case is closed. I agree with counsel for the applicants that the fact that the Crown has closed its case is not determinative of relevance. However, if the Crown has not raised, as an issue at trial, anything about foreign bank accounts, then it is incumbent on the applicants to give some indication why information about these accounts would be helpful to them, and what issue they intend to raise to which such information would relate. They have not done so.

The applicants argue that should they be convicted, the Crown may yet call evidence of foreign bank accounts in order to establish the extent of the alleged conspiracy, thereby affecting their potential sentences. Crown counsel has undertaken that there is no intention to call such evidence at the sentencing stage, but that if such evidence is called, the information will be disclosed. I am satisfied to accept the undertaking of the Crown in this respect. It must be made clear of course, that should the undertaking not be honoured, the accused have not lost their right to renew their application for disclosure in this Court and, if necessary, it will be heard and dealt with on an expedited basis.

It is then argued that the information not disclosed may show that the Crown unduly delayed in charging Mr. Kalenski with conspiracy. This delay had originally been argued before Judge Walter as an abuse of process which should result in a stay of proceedings against Mr. Kalenski. Judge Walter refused to stay the proceedings. Applicants’ counsel argue before me that the information that has now been disclosed shows that Corporal Duguay of the RCMP, who was involved in the investigation, was of the opinion that the conspiracy charge would be laid by March 1, 1994. They say that the charge was not laid until April 19, 1994 and that this gives rise to the argument that there is unexplained delay.

Judge Walter dealt with the issue of abuse of process in his ruling dated April 26, 1995. He stated at page 7:

All the evidence which would support a conspiracy charge was not, in my opinion, in Detective Murphy’s possession until February 2nd of 1994 at the earliest and really in a usable form not in his possession until the tape of Majcharzak’s statement was transcribed and reviewed by Detective Murphy in March of 1994. The accused was apprised of the fact that a conspiracy charge would likely be laid and this was prior to pleading guilty to the substantive charges. I do not accept the argument that the accused has suffered any prejudice in terms of global disposition geared towards a global sentence in the event of a conviction on the conspiracy. I can find no evidence before me of a pre-charge delay and no prejudice or unfairness to the accused.

Counsel for the applicants argue that Judge Walter did not have information about Corporal Duguay’s view that the charge would be laid by March 1, 1994, when he made his ruling. They say this gives rise to a conflict between the evidence relied upon by Judge Walter in his April 26, 1995 ruling and the information pertaining to Corporal Duguay’s view.

Corporal Duguay’s opinion has now been disclosed and is available to counsel for Mr. Kalenski to use in a renewed stay of proceedings application if he chooses to make one. It will be Judge Walter who will ultimately make the decision on such an application.

To obtain further disclosure, what the applicants must demonstrate is that the statement of Corporal Duguay gives rise to an inference that there is other information in the confidential material that in some way would be logically probative to the issue of unreasonable delay in charging Mr. Kalenski with conspiracy. No such connection has been made. All that counsel can say is the information that has now been disclosed is helpful, that it was not previously disclosed, and that this suggests there may be other information that may also be helpful. This is nothing more than speculation. Indeed, if there was unreasonable delay, it arose after February 2, 1994 when Judge Walter found the Crown was in possession of the evidence to support the conspiracy charge. I have been given no reason to think that correspondence between the RCMP in Canada, Switzerland and Pakistan relates to this issue. Counsel conceded that he had to satisfy the Court that the grounds for seeking disclosure proved to be more than a fishing expedition. I am not satisfied that this has been done on this issue.

It was then argued that a search warrant used for the purposes of searching the homes and business premises of the applicants was obtained on information obtained from Switzerland or Pakistan. The applicants wish to challenge the validity of the search warrant. If they are successful, they will argue under section 24 of the Charter, that any evidence obtained through the use of the search warrant should be excluded. They argue that the reason for challenging the validity of the search warrant is that the information used for obtaining the search warrant was unreliable or illegally obtained.

The information in question was sworn by Detective J. W. Anderson, a member of the Edmonton Police Service on April 6, 1994. The applicants refer to two paragraphs in the information which make reference to bank accounts in Switzerland held by Mr. Khan, Ms. Nazir and Mr. Kalenski, and in Pakistan by Mr. Khan. Paragraph 54 states that documentation regarding the Swiss accounts is located at the Vancouver office of the Swiss Bank Corporation. Paragraph 57 states that the identification of three accounts in Pakistan was made as a result of a search of Mr. Khan’s residence in Canada.

Nothing in paragraph 54 suggest that any information was obtained from foreign sources respecting Swiss bank accounts. Paragraph 57 does indicate that Corporal Duguay ascertained that the amount in two accounts exceeded $850,000 and that two other accounts were also held, but that the amounts in the accounts were not available. This information might have been obtained from the RCMP liaison officer at Islamabad.

There was no suggestion before me that the information in paragraph 57 was untrue. To make an argument that evidence is unreliable, there is an obligation on the applicants to provide at least some explanation. That has not been done here. The only other argument that could be made is that the information was illegally obtained and therefore not properly used in the Anderson Information to obtain the search warrant. Counsel relied on R. v. Harrer, [1995] 3 S.C.R. 562 (Harrer). Harrer stands for the proposition that evidence obtained in other countries that does not conform to Canadian procedures should not be rejected if, in the particular context, its admission would not make the trial unfair.

It should be remembered that the issue here is not evidence at trial, but information leading to a search warrant. The standard applicable is reasonable and probable grounds. There is no indication by the applicants of any unfairness involved in obtaining information in Pakistan. Indeed, even assuming some unfairness in obtaining the information from Pakistan, Detective Anderson’s information is some 89 paragraphs long. While it is not for a designated judge to make conclusive findings on such issues, it is necessary to determine if the arguments made in terms of disclosure are realistic. In the circumstances, I conclude that the argument in respect of information obtained from Pakistan is not realistic, but is speculative only.

The applicants argue that they are entitled to test the credibility of informers and for that purpose they must receive the undisclosed information. As I earlier indicated, credibility is always an issue in trial proceedings and therefore it cannot be credibility at large that provides a basis for disclosure of information in a proceeding under sections 37 and 38 of the CEA. There must be a reasonable possibility that the information to be disclosed is logically probative in the context of credibility. While the standard may not be high, there must be some indication beyond vague assertions to meet the relevance test applicable in cases under subsections 37(2) and 38(1). Here, the assertions of counsel, in my view, amount to nothing more than speculation. Nothing specific has been indicated, and the “likely relevance” test has not been met.

Having regard to all the submissions made by counsel for the applicants and all the reasons they have given, I am not satisfied that the applicants have established that the information they seek meets the “likely relevance” test. In the circumstances, there is no foundation to proceed further to inspect the documents and conduct a balancing analysis between the public interest in favour of disclosure and the specified public interest in favour of continued confidentiality.

Costs

The applicants sought costs on a solicitor/client basis. However, I see no misconduct by counsel for the Crown in these proceedings that would justify such an award.

Pursuant to Rule 1618 of the Federal Court Rules, C.R.C., 1978, c. 663 [as enacted by SOR/92-43, s. 19], costs may only be awarded in the case of special circumstances. The Crown argues that the applicants have not met the test for apparent disclosure, as they did not submit an affidavit upon which to base their claims of relevancy (although not strictly required to do so), and that many of their arguments were not contained in their memorandum, but were first argued at the oral hearing. I would think that these constitute special circumstances in an appropriate case. However, the Crown did not file its amended certificate until late in the proceedings. There may be reasons for late filing not entirely attributable to the Crown, but nonetheless, the applicants were faced with, what might be termed a change of pleadings late in the process. The late filing of the amended certificate has undoubtedly caused the applicants some difficulty in preparing for this hearing.

In all the circumstances, this is a case in which there should be no award of costs.

Conclusion

The application is dismissed.

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