[2014] 1 F.C.R. 457
DES-7-08
2012 FC 669
In the Matter of a Certificate Signed Pursuant to Subsection 77(1) of the Immigration and Refugee Protection Act (IRPA);
In the Matter of the Referral of a Certificate to the Federal Court of Canada Pursuant to Subsection 77(1) of the IRPA;
And in the Matter of Mohamed Zeki Mahjoub
Indexed as: Mahjoub (Re)
Federal Court, Blanchard J.—Toronto, April 23, 24; Ottawa, May 31, 2012.
Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Security Certificate — Motion for, inter alia, permanent stay of proceedings in conformity with Canadian Charter of Rights and Freedoms, ss. 7, 8, 24(1), Federal Courts Act, s. 50 — Respondent (Mahjoub) stating, in particular, that Department of Justice (DOJ) breaching his right to retain, instruct legal counsel in private, rights to solicitor-client privilege, to litigation privilege by seizure, possession of all confidential material from file — Respondent’s file left in confidential breakout room at Federal Court in Toronto by public counsel — Ministers arguing applicant not establishing materials at issue privileged or not losing their privileged status — DOJ office sealed off when co-mingling of some documents becoming obvious — Order issued to have documents separated, returned to respective parties — Respondent claiming that all documents covered by solicitor-client and/or litigation privilege; claiming breach of Charter, s. 7 rights resulting from violation of solicitor-client privilege, abuse of process within residual category — Whether respondent establishing that confidential information attributable to solicitor-client relationship or to litigation privilege in ministers’ possession; if so, whether ministers rebutting presumption of risk that privileged material belonging to respondent, held by ministers, would be used to respondent’s prejudice should proceedings continue; whether ministers’ conduct connoting unfairness or vexatiousness to degree of contravening fundamental notions of justice, undermining integrity of judicial process; if so, what remedy considered appropriate — Ministers indisputably taking documents from respondent’s breakout room — Prothonotary’s report confirming that materials seized including solicitor work product, solicitor-client privileged material, litigation privileged material — Therefore, respondent meeting onus, establishing that ministers’ counsel having possession of confidential information attributable to solicitor-client relationship; however, ministers rebutting presumption of prejudice — Respondent’s contention that permanent stay of proceedings needed on basis of abuse of process that fell within residual category rejected — Ministers’ conduct, although negligent, unintentional, not affecting fairness of underlying proceeding — While ministers’ conduct not impacting fairness of proceeding or prejudicing respondent, circumstances in present case leading to conclusion that appearance of fairness compromised — Consequently, abuse of process in residual category existing in this case — Remedy warranted to ensure that ministers’ conduct not undermining society’s expectation in administration of justice — Given circumstances herein, not clearest of cases that would warrant permanent stay of proceedings — Rather, lesser remedy available to ensure that any affront to appearance of fairness would not be manifested, perpetuated or aggravated through conduct of proceedings or by outcome — In interest of ensuring public confidence in administration of justice, certain members of ministers’ team who accessed respondent’s documents permanently removed from file — Although taking of respondent’s documents constituting Charter, s. 8 “seizure”, permanent stay of proceedings not appropriate remedy herein — Motion allowed in part.
Constitutional Law — Charter of Rights — Life, Liberty and Security — In motion for, inter alia, permanent stay of proceedings in conformity with Canadian Charter of Rights and Freedoms, ss. 7, 24(1), respondent (Mahjoub) claiming that Department of Justice breaching his rights resulting from violation of solicitor-client privilege, abuse of process within residual category — Respondent meeting onus of establishing that ministers’ counsel possessing confidential information attributable to solicitor-client relationship relevant to matter at hand but ministers rebutting presumption of prejudice — Based on evidence, reasonably informed person would be satisfied, in circumstances, that no real risk existing that respondent’s privileged materials would be used to respondent’s prejudice should proceeding continue — Nonetheless, circumstances herein leading to conclusion that appearance of fairness compromised; consequently, abuse of process in residual category existing — Therefore, remedy warranted to ensure that ministers’ conduct not undermining society’s expectation in administration of justice — Although permanent stay of proceedings not warranted herein, lesser remedy available, granted.
Constitutional Law — Charter of Rights — Unreasonable Search or Seizure — In motion for, inter alia, permanent stay of proceedings in conformity with Canadian Charter of Rights and Freedoms ss. 7, 8, 24(1), respondent (Mahjoub) claiming that Department of Justice breaching his rights to retain, instruct legal counsel in private, rights to solicitor-client privilege, to litigation privilege by seizure, possession of all confidential material from file — Taking by ministers of respondent’s documents constituting “seizure” under Charter, s. 8 — Although lesser remedy than permanent stay of proceedings provided herein, would nonetheless be appropriate for Federal Court to consider violation of respondent’s Charter, s. 8 rights, significant delay caused thereby as factors in respondent’s underlying motion for abuse of process.
This was a motion, inter alia, for a permanent stay of proceedings in conformity with sections 7, 8 and subsection 24(1) of the Canadian Charter of Rights and Freedoms, and section 50 of the Federal Courts Act, an order releasing the respondent without conditions, an order reserving the parties’ right to present further submissions for the retrieval, sealing or destruction of the co-mingled material, or, in the alternative, another appropriate remedy. In support of his motion, the respondent (Mahjoub) stated, in particular, that the Department of Justice (DOJ) breached his right to retain and instruct legal counsel in private, his rights to solicitor-client privilege and to litigation privilege by the seizure and possession of all the confidential material from his file which was left in the confidential break out room at the Federal Court in Toronto by public counsel. The ministers argued in particular that the respondent did not establish that the materials at issue were privileged or that they did not lose their privileged status by virtue of the privileged information now being in the public domain.
After the public portion of the reasonableness hearing in this case was adjourned,the parties were advised to remove their materials from the courtroom. Some of the ministers’ legal assistants attended the court where they moved documents belong to the ministers from the ministers’ breakout room into the respondent’s breakout room. The ministers’ litigation team (minsters’ team) working on the respondent’s file discussed the retrieval and organization of the materials still at the courthouse. It was decided that some DOJ staff members would arrange for the return of the materials and organize them once they arrived. All of the boxes at the court were eventually transported to the offices of the DOJ. The material was sorted and organized into categories by a DOJ staff member. During the review of the material contained in the boxes, it was noted that some of the materials therein did not belong to the ministers’ team but rather to public counsel, which was notified of this situation. Members of public counsel attended the DOJ’s office to sort things out and both parties noticed that some of the loose documents were co-mingled. When the co-mingling of some of the documents became apparent, the office was sealed off and security measures were taken. No one was allowed to enter the room which housed the boxes until further notice. All members of the ministers’ team who had entered the DOJ’s office housing the documents at issue before it was sealed off were removed or temporarily removed from the ministers’ litigation team pending a final determination of the respondent’s motion.
After the hearing on the motions took place, it was ordered that to determine the proper remedy, if any, it was necessary to have the documents separated and returned to their respective parties to give them an opportunity to make submissions on the nature and extent of the alleged prejudice. The separation process of the documents took place overseen by a prothonotary who then filed his report with respect thereto. The report noted that the types of documents found to belong to the respondent included solicitor-work product, solicitor-client privileged material and litigation privileged material.The respondent alleged that all of his documents were covered by solicitor-client and/or litigation privilege
The respondent claimed a breach of his section 7 rights resulting from a violation of his solicitor-client privilege and abuse of process. In this case, the violation of solicitor-client privilege focussed on the right to a fair trial affected by the Crown’s conduct.
The issues were whether the respondent established that confidential information attributable to a solicitor-client relationship or to litigation privilege was in the ministers’ possession; if so, whether the ministers rebutted the presumption that there was a risk that privileged material belonging to the respondent and held by the ministers would be used to the prejudice of the respondent should the proceedings continue; and whether the ministers’ conduct connoted unfairness or vexatiousness of such a degree that it contravened fundamental notions of justice and thus undermined the integrity of the judicial process; and, if so, what was the appropriate remedy in this case.
Held, the motion should be granted in part.
While the ministers did not dispute that some of the documents in their possession might contain privileged information, they argued that the respondent’s evidence lacked the sufficient detail or the identification of specific documents to discharge his evidentiary burden. The ministers indisputably took documents from the respondent’s breakout room located in immediate proximity to the courtroom after an adjournment late in the proceedings. The Prothonotary’s report confirmed that materials seized included solicitor-work product, solicitor-client privileged material and litigation privileged material. The Prothonotary was well-suited to make such determinations. As a motions judge, he is routinely tasked with determining whether solicitor-client privilege attaches to contested documents during the disclosure stage of a proceeding. Such decisions determine the content of the record that is before the hearing judge. Therefore, the respondent met his onus and established that the ministers’ counsel had possession of confidential information attributable to a solicitor-client relationship which was relevant to the matter at hand. The ministers thus bore the onus of rebutting the legal presumption that there was a risk that such confidences would be used to the respondent’s prejudice.
Following public counsel’s visit to the DOJ’s office, the office was locked and a yellow caution tape was affixed to the entrance to the office. Keys of the office were secured and the office remained sealed until the materials were ordered back to the courthouse. All members of the ministers’ litigation team who had entered the office before it was sealed were temporarily removed from the team pending final determination of the motion. Further, certain ethical walls were set up to ensure that the removed members of the team would not discuss what they saw, if anything, of the documents in the office in question nor did they have access to the files relating to the case. The ethical walls put in place were rigidly applied and were respected since their implementation. The measures put in place by the ministers after public counsel’s visit of the office in question to secure that office and the materials therein were appropriate and effective in the circumstances. The evidence adduced by the ministers established that the members of the respondent’s team who accessed the respondent’s documents performed only a cursory and superficial review of the said documents. No member of the respondent’s team reviewed the documents belonging to the respondent. As well, based on the evidence, representatives of departmental clients involved did not enter the office in question at the DOJ in Toronto; thus, they did not have access to the respondent’s privileged materials. In the result, no prejudice to the respondent’s fair trial rights resulted from the office in question remaining unlocked prior to public counsel’s visit thereof. Furthermore, the proceeding mandated by the court order led by the Prothonotary was meticulously carried out and did not in any way further contribute to any prejudice the taking of the documents may have caused. No prejudice to the respondent resulted from the separation process conducted by the Prothonotary pursuant to the court order. Based on the evidence, the ministers rebutted the presumption of prejudice. A reasonably informed person would be satisfied, in the circumstances, that there was no real risk that the respondent’s privileged materials, which were in the possession of the ministers, would be used to his prejudice should the proceeding continue. The fairness of the trial was not in question.
The respondent contended that a permanent stay of proceedings should be granted on the basis of an abuse of process that fell within the residual category. It had to be determined whether the taking and co-mingling of the documents undermined society’s expectations of fairness in the administration of justice to the point that the carrying forward of the prosecution would offend society’s sense of justice. Based on the evidence, the ministers’ conduct, although negligent, was unintentional and did not affect the fairness of the underlying proceeding. The privileges in play on this motion are central to the administration of justice in an adversarial system. Notwithstanding the determination that the ministers’ conduct did not impact on the fairness of the proceeding or prejudice the respondent, the appearance of fairness in the judicial process is of utmost importance. The circumstances in this case led to the conclusion that the appearance of fairness was compromised. Consequently, there was an abuse of process in the residual category. A remedy was warranted to ensure that the ministers’ conduct did not undermine society’s expectation in the administration of justice. In the circumstances, this was not the clearest of cases that would warrant a permanent stay of proceedings. Rather, a lesser remedy was available to ensure that any affront to the appearance of fairness would not be manifested, perpetuated or aggravated through the conduct of the proceedings or by their outcome. An essential balancing exercise is required where an abuse of process is found in the residual category of cases which involves weighing the interests that would be served in granting a stay of proceedings against society’s interest in having a final decision on the merits. The affront to fair play and decency caused by the ministers’ taking and co-mingling of the respondent’s privileged documents in this case was not disproportionate to the societal interest of having the underlying proceeding continue and be ultimately decided on the merits. In the interest of ensuring public confidence in the administration of justice, certain members of the ministers’ team who accessed the respondent’s documents were permanently removed from the file and barred from having access to any of the materials or information relating to the file. Permanently removing those members of the ministers’ team constituted a lesser remedy that was reasonably capable of removing the prejudice found to arise by reason of the abuse of process in the residual category. A person reasonably informed of the totality of the circumstances would be satisfied that the proceedings could continue without a loss of confidence in the integrity of the administration of justice.
The taking by the ministers of the respondent’s documents constituted a “seizure” under section 8 of the Charter. The permanent stay of proceeding sought by the respondent was not appropriate in the circumstances but a lesser remedy was available and to be provided. It would nonetheless be appropriate for the Federal Court to consider the violation of the respondent’s section 8 Charter rights and the significant delay caused thereby as factors in the respondent’s underlying motion for abuse of process.
STATUTES AND REGULATIONS CITED
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], ss. 7, 8, 24.
Federal Courts Act, R.S.C., 1985, c. F-7, s. 50.
CASES CITED
applied:
MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235, (1990), 77 D.L.R. (4th) 249, [1991] 1 W.W.R. 705; Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189, 269 D.L.R. (4th) 193, 30 C.P.C. (6th) 193; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, 502 A.R. 18, 335 D.L.R. (4th) 565.
considered:
Solosky v. The Queen, [1980] 1 S.C.R. 821, (1979), 105 D.L.R. (3d) 745, 50 C.C.C. (2d) 495; Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209, 312 A.R. 201, 216 D.L.R. (4th) 257; Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, 232 D.L.R. (4th) 14, 178 C.C.C. (3d) 321; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, 195 D.L.R. (4th) 513; Jaballah (Re), 2010 FC 1084, [2012] 2 F.C.R. 179; R. v. O’Connor, [1995] 4 S.C.R. 411, (1995), 130 D.L.R. (4th) 235, [1996] 2 W.W.R. 153; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, 201 N.S.R. (2d) 63, 209 D.L.R. (4th) 41; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, (1997), 151 D.L.R. (4th) 119, 1 Admin. L.R. (3d) 1; R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721; R. v. La, [1997] 2 S.C.R. 680, (1997), 200 A.R. 81, 148 D.L.R. (4th) 608; Canada (Information Commissioner) v. Canada (Minister of the Environment), 1999 CanLII 9120, 179 F.T.R. 125 (F.C.T.D.), revd in part 2000 CanLII 15247, 187 D.L.R. (4th) 127, 21 Admin. L.R. (3d) 1, 256 N.R. 162 (F.C.A.); R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, 309 D.L.R. (4th) 1, 245 C.C.C. (3d) 1.
referred to:
Mahjoub v. Canada (Citizenship and Immigration), 2011 FCA 294, [2013] 3 F.C.R. 36, 341 D.L.R. (4th) 681, 4 Imm. L.R. (4th) 1; Mahjoub v. Canada (Minister of Citizenship and Immigration), 2011 FCA 322; R. v. P. (M.B.), [1994] 1 S.C.R. 555, (1994), 113 D.L.R. (4th) 461, 89 C.C.C. (3d) 289; R. v. Evans, [1996] 1 S.C.R. 8, (1996), 131 D.L.R. (4th) 654, 69 B.C.A.C. 81; R. v. Collins, [1987] 1 S.C.R. 265, (1987), 38 D.L.R. (4th) 508, [1987] 3 W.W.R. 699; Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319, 270 D.L.R. (4th) 257, 47 Admin. L.R. (4th) 84; R. v. Bruce Power Inc., 2009 ONCA 573, 98 O.R. (3d) 272; F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, 297 D.L.R. (4th) 193, [2008] 11 W.W.R. 414; Al Yamani v. Canada (Minister of Citizenship and Immigration), 2003 FCA 482; Harkat (Re), 2010 FC 1243, 224 C.R.R. (2d) 167, 95 Imm. L.R. (3d) 1, 380 F.T.R. 255, revd 2012 FCA 122, [2012] 3 F.C.R. 635, 349 D.L.R. (4th) 519, 260 C.R.R. (2d) 290.
MOTION, in particular, for a permanent stay of proceedings involving the reasonableness of a security certificate, in conformity with sections 7, 8 and subsection 24(1) of the Canadian Charter of Rights and Freedoms and section 50 of the Federal Courts Act or another appropriate remedy in the circumstances. Motion granted in part.
APPEARANCES
Donald MacIntosh, Ian Hicks and Kevin Doyle for applicants.
Paul Slansky and Johanne Doyon for respondent.
Anil Kapoor as special advocate.
SOLICITORS OF RECORD
Deputy Attorney General of Canada for applicants.
Doyon & Associés Inc., Montréal, and Paul Slansky, Toronto, for respondent.
Anil Kapoor, Toronto, as special advocate.
The following are the reasons for order and order rendered in English by
[1] Blanchard J.: By notice of motion dated September 16, 2011, Mr. Mahjoub seeks:
(i) A permanent stay of proceedings in conformity with sections 7, 8 and [subsection] 24(1) of the Canadian Charter of Rights and Freedoms, [Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11] (hereinafter the Charter) and section 50 of the Federal Courts Act [R.S.C. 1985, c. F-7];
(ii) An order for the release without conditions of the Applicant;
(iii) An order reserving the right of the parties to present further submissions for the retrieval, sealing or destruction of the co-mingled material;
(iv) in the alternative, such further and other remedy as this Honourable Court considers appropriate and just in the circumstances including the removal of [Department of Justice] DOJ counsel and legal staff on record and CBSA [Canadian Border Services Agency]/ CSIS [Canadian Security Intelligence Service] staff.
[2] Mr. Mahjoub states the following grounds in support of his motion:
1. The Department of Justice (DOJ) breached Mr. Mahjoub’s right to retain and instruct legal counsel in private, his rights to solicitor-client privilege and to litigation privilege by:
(i) The seizure and the possession, on or about July 20 and 21, 2011, of the entirety of confidential material from Mr. Mahjoub’s file, which was left in the confidential break out room at the Federal Court in Toronto by Public Counsel;
(ii) The manipulation of the confidential material from Mr. Mahjoub’s file by DOJ staff members and/or legal counsel between July 20-21 and September 1, 2011;
(iii) The co-mingling of confidential material from Mr. Mahjoub’s file by DOJ staff members and/or legal counsel with material from the DOJ’s file;
(iv) The review of confidential material from Mr. Mahjoub’s file by DOJ staff and one or more litigation counsel;
II. The separation and retrieval of the co-mingled documents would necessarily imply reading a part of the documents by both parties in order to assess what belongs to whom and it is therefore impossible to do without a risk of breach of solicitor-client privilege and/or litigation privilege and a risk of favouring the Ministers.
III. This breach of Mr. Mahjoub’s right to solicitor-client privilege and litigation privilege is aggravated by the fact that the Applicant’s right to retain and communicate in private with his lawyers has already been systematically violated by CSIS, since 1996, during the investigation by the application of OPS-211 and during the Court proceedings.
[3] In essence, Mr. Mahjoub argues that there has been a violation of his section 7 and section 8 Charter [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]] rights as a result of the ministers taking possession of his documents and that the only appropriate remedy is a permanent stay of proceedings.
[4] In response, the ministers argue that Mr. Mahjoub has not established that the materials at issue are privileged, or that the materials have not lost their privileged status by virtue of the privileged information now being in the public domain. They contend that, should the Court find that privilege is established, they have rebutted the legal presumption. They argue that there is no risk that the information will be used to prejudice Mr. Mahjoub should the proceedings continue because no one from the ministers’ team read Mr. Mahjoub’s documents. Finally, the ministers argue that, were the Court to find that they have not rebutted the legal presumption of risk, a stay of proceedings is not the appropriate remedy in the circumstances.
FACTS
[5] The following events give rise to this motion.
[6] On July 14, 2011, the public portion of the reasonableness hearing in Toronto was adjourned. At this time, there remained four witnesses to be called. Although no dates for their testimony had been set, the reasonableness hearing was to resume in late August or early September 2011.
[7] On July 15, 2011, the designated Registry officer advised the parties to remove their materials from the courtroom with the following email:
Just to let you all know that while Courtroom 6-D needs to be cleaned out by the end of next week you can continue to store any material in your respective breakout rooms until we reconvene in late August early September here in Toronto.
[8] On the same day, the ministers advised the designated Registry officer by email that two legal assistants would arrive at the Court at approximately 2.00 p.m. to assess the situation and to possibly take some or all of the materials back to the DOJ. The designated Registry officer replied advising that the commissionaires on the 6th floor would be expecting them.
[9] The ministers’ legal assistants Ms. Kamal Dean and Ms. Irena Krakowska attended the Court on that afternoon. A commissionaire unlocked courtroom 6-D as well as the adjacent breakout rooms 6013 (the ministers’ breakout room) and 6011 (Mr. Mahjoub’s breakout room).
[10] In her affidavit, Ms. Dean claims that the commissionaire asked them to move the documents from breakout room 6013 to breakout room 6011, as the former was going to be used before the resumption of Mr. Mahjoub’s case. A report by the Registry requested by the Court and provided to the parties revealed that the commissionaire denies having given such instructions. Ultimately, the parties have not disputed the findings of the report nor have they pursued this issue.
[11] The evidence establishes that the ministers’ legal assistants moved documents belonging to the ministers from the courtroom and the ministers’ breakout room into Mr. Mahjoub’s breakout room. Loose papers on the ministers’ counsel table in the courtroom and on the tables in the breakout rooms were packed in several boxes.
[12] Upon their return to the DOJ on the same day, July 15, 2011, Ms. Dean sent an email to the ministers’ litigation team working on the Mahjoub file (Mahjoub team) advising that she and Ms. Krakowska had “emptied courtroom 6D & prep room 6013 [and] moved everything to prep room 6011 for now”. The record does not establish who was on the Mahjoub team but the team includes legal counsel, legal assistants and a paralegal. The record also indicates that no one from the Mahjoub team responded to the email.
[13] On July 19, 2011, the Mahjoub team met and discussed the retrieval and organization of the materials still at the courthouse. It was decided that Ms. Dean would arrange for the return of the materials and Ms. Jillian Schneider, a paralegal at the DOJ, would organize the materials once they arrived.
[14] On July 20, 2011, Ms. Dean returned to the Court with legal assistants for the ministers Larissa Goodyear, Janet Lewicki and Geneviève Rondeau. They collected some of the boxes that were now in Mr. Mahjoub’s breakout room and brought them to office 916 at the DOJ in Toronto. Ms. Dean and Ms. Goodyear collected the remainder of the boxes on July 21, 2011. Ms. Dean attests that all of the documents were packed in boxes, which remained closed during transportation. Also on July 21, 2011, Ms. Dean emailed the Mahjoub team advising that all of the boxes from the Court were now in office 916 at the DOJ.
[15] During the mornings of July 25 to 27, 2011, Ms. Dean assisted Ms. Schneider in sorting documents in boxes stored in office 916. Ms. Dean helped Ms. Schneider verify that the boxes contained a complete copy of each exhibit, as established by an exhibit list. Ms. Dean only looked at the title page and back page of the documents and did not notice any handwritten annotations. Ms. Dean had no further involvement with the materials at issue after July 27, 2011. Ms. Schneider worked alone in office 916 for one to two hours in each of the afternoons of July 25–27, 2011.
[16] On August 8, 2011, Ms. Schneider met with Mr. Daniel Engel, counsel employed by DOJ and a member of the Mahjoub team, for approximately 10 minutes in office 916 for further instructions as to which materials needed to return to the Court for the eventual resumption of the hearing. Together, they opened two or three boxes and “flipped through the material”. “It became immediately clear that the contents of the boxes needed to be organized into categories” before further review could take place. Upon giving these instructions to Ms. Schneider, Mr. Engel left office 916 and had no further contact with the materials at issue. He does not recall having seen any materials belonging to Mr. Mahjoub.
[17] During the week of August 8, 2011, Ms. Schneider proceeded with the sorting and organization of the materials into categories on her own. Motion records filed by Mr. Mahjoub were filed in boxes labeled “Mahjoub Documents”; motion records filed by the ministers were filed in boxes labeled “Ministers’ Documents”; exhibits filed in the open court were filed in boxes labeled “Exhibits” according to the exhibit list kept by the Court. Other boxes were labeled “Court orders and directions”, “SIRS”, and “Transcripts and summaries”.
[18] In organizing the materials, Ms. Schneider looked at the title and the back page of documents to identify them. She did not read or look at the content of the documents and does not recall seeing handwritten notations on the documents that she looked at. She had received instruction from ministers’ counsel to ensure that there be three copies of the exhibits—one to return to the Court, one to remain in the DOJ’s offices and a third copy to be kept by the assistant to the lead counsel on the file. To that end, Ms. Schneider photocopied certain exhibits. In her estimation, she photocopied less than 100 pages. She also sent a small number of lengthy documents to be photocopied by Legal Print & Copy Inc., a bonded photocopying service used by the DOJ. The receipt the ministers believe to be related to the documents sent to Legal Print & Copy Inc. by Ms. Schneider indicates that 1 151 letter sized pages and 2 legal sized pages were photocopied.
[19] Ms. Schneider removed duplicates of documents and placed them on the floor in office 916. She also set aside eight boxes that contained “miscellaneous documents” (correspondence, handwritten notes and case law) for which she required further instructions as to their organization.
[20] On August 12, 2011, Ms. Schneider sent an email to the Mahjoub team explaining how she had organized the materials and asking whether a counsel could “go into office 916 during [her] vacation the following week to review the eight boxes of miscellaneous documents and advise how these documents were to be organized”.
[21] Upon Ms. Schneider’s return to work on August 22, 2011, she noticed that the eight boxes of miscellaneous documents had not been touched during her absence. She sent another email to the ministers’ team requesting assistance from counsel. Ms. Sharon Stewart Guthrie, counsel of record and member of the Mahjoub team, responded and met Ms. Schneider in office 916 for approximately 10-15 minutes to provide further instructions on organizing the eight boxes containing miscellaneous documents that had been set aside. Ms. Stewart Guthrie opened three of the boxes. In the first box, she saw file folders with French handwritten labels, which she did not open. She then closed the box. In the second box, she saw the first pages of publicly available reports before closing the box. In the third box, she saw printed copies of jurisprudence referred to by both parties during the proceedings, a printed copy of an email between two members of the ministers’ litigation team, and a single handwritten page in handwriting she did not recognize with the name “Tyndale” on the left of the page. As she believed that no one from the ministers’ litigation team would refer to lead counsel Mr. David Tyndale as “Tyndale”, she believed that some of the materials in those boxes did not belong to the Mahjoub team. Ms. Stewart Guthrie attests she did not read anything else on the page other than the name “Tyndale”. She closed the third box.
[22] After leaving office 916, Ms. Stewart Guthrie spoke with Ms. Nimanthika Kaneira, counsel employed by DOJ and member of the Mahjoub team, as well as with Ms. Dean. Ms. Stewart Guthrie then advised Mr. Tyndale, Senior Counsel of record for DOJ on the Mahjoub team, of the situation. Mr. Tyndale directed Ms. Stewart Guthrie to label and set aside those eight boxes “To be reviewed by Public counsel”, and draft an email to public counsel advising them of the situation and proposing that the parties meet to separate the materials.
[23] Ms. Schneider continued to work in office 916 and to organize the material contained in the boxes that had not been set aside for most of each day for the remainder of the week of August 22, 2011.
[24] On August 23, 2011, Mr. Tyndale sent the following email to public counsel:
In our review of the material that was returned to our office from the courtroom and our breakout room after we last adjourned, it came to our attention yesterday that some boxes may contain some documents that belong to you. We immediately put those boxes aside and have not read or reviewed these documents. In order to ensure that your materials are returned to you, I suggest we meet at our offices to review (separately, but in the same room) the contents of these boxes. Please let me know if this suggestion is acceptable to you and if so, when one (or more) of you might be available to review the materials.
[25] On August 30, 2011, Ms. Teresa Martins, an administration officer with the DOJ in Toronto, accompanied two movers to office 916 with boxes belonging to Ms. Amy Lambiris, a DOJ employee who had been on maternity leave and was to use that office upon her return. To make room for the boxes, the movers moved some stacks of documents from the floor to the desk. Ms. Martins did not read any of the documents in office 916 and did not see the movers read any of the documents.
[26] On September 1, 2011, public counsel Ms. Johanne Doyon and Ms. Salma El-Khodari, an assistant in the law office of public counsel Mr. Yavar Hameed, attended office 916 at the DOJ in Toronto. Ms. Jocelyn Espejo-Clarke, counsel and member of the Mahjoub team, and Ms. Kaneira accompanied them to office 916.
[27] At the time, Ms. El-Khodari estimated that office 916 contained approximately:
a. 24 boxes of documents that were marked as the ministers’ boxes against one wall;
b. a dozen additional boxes along the other wall;
c. 5 boxes on a table in front of the window;
d. 8 boxes of material in a corner that were marked “to be reviewed by counsel”;
e. piles of unboxed and loose documents on a table in the middle of the room.
[28] It has now been established that once the loose documents were placed in boxes, office 916 contained 60 boxes of materials, in addition to the 15 boxes brought by the movers belonging to Ms. Lambiris who had been on maternity leave.
[29] Ms. El-Khodari and Ms. Doyon noticed that some of the loose documents on the table in office 916 appeared to belong to public counsel. Ms. Espejo-Clarke also noticed that some of those documents appeared to belong to the ministers.
[30] Upon realizing that some of the documents on the table were co-mingled and that the co-mingling went beyond the 8 boxes that had been set aside, counsel agreed to seal the office. Ms. Espejo-Clarke provided an undertaking that no one would enter the office.
[31] All keys for office 916, except for those of the DOJ security office and of the landlord, were collected and put in the safe of the Regional Director General of the Ontario Regional Office of the DOJ. The security office and the landlord were instructed that no one could enter the room until further notice. The ministers claim that no one has entered office 916 after September 1, 2011, until the boxes were eventually ordered returned to the courthouse by Prothonotary Aalto.
[32] Ms. Rhonda Marquis, Deputy Regional Director and Senior Counsel in the Immigration Law Division of the DOJ in Toronto, states in her affidavit:
Following the securing of office 916, I communicated with every member of the Mahjoub team including the two legal assistants who had originally boxed the materials for their return to our office and to the paralegal who had the most access to the materials. All members of the litigation team, both legal assistants and the paralegal have advised me that they did not review opposing counsel’s materials.
[33] Ms. Marquis also attests:
I have been advised by CSIS counsel, and do verily believe, that they have not entered office 916 at any time since July 15, 2011. I have also been advised and verily believe that no CBSA personnel assigned to the Mahjoub mater [sic] have entered office 916 at any time since July 15, 2011.
[34] On September 2, 2011, Mr. Tyndale emailed public counsel to advise them that the amount of public counsel’s material from the breakout rooms delivered to DOJ’s office was more than originally thought.
[35] On September 8, 2011, Mr. Tyndale emailed public counsel explaining how the events leading to the co-mingling of the documents unfolded. On the same day, Mr. Tyndale sent a similar letter to the Court.
[36] All members of the Mahjoub team who entered office 916 prior to it being sealed have been removed or temporarily removed from the ministers’ litigation team pending a final determination of this motion. Ethical walls were put in place to ensure that the members of the litigation team who were removed received no further information on the litigation, as well as to ensure that the removed members would not discuss what they saw, if anything, of Mr. Mahjoub’s documents, except for purposes of providing affidavits or clarification to counsel representing the ministers on this motion. The record does not indicate the number of individuals belonging to the Mahjoub team nor does it identify its members. The record also does not indicate when members of the team were removed or when the ethical walls were put in place. It appears from the record this would have occurred after September 1, 2011.
[37] Mr. Mahjoub served and filed his motion record for a permanent stay on September 20, 2011. The ministers’ responding record was served and filed on September 23, 2011, accompanied with a motion to strike portions of certain affidavits. Mr. Mahjoub filed his reply on September 27, 2011. The parties were heard on the motions on October 3, 2011, in Toronto, and the Court reserved its judgment.
[38] On October 4, 2011, the Court ordered that to determine the proper remedy, if any, that may be appropriate in the circumstances, it was necessary to have the documents separated and returned to the respective parties for the purpose of affording them an opportunity to make submissions on the nature and extent of the alleged prejudice. The order is annexed to these reasons as Schedule A.
[39] Mr. Mahjoub’s appeal to the Federal Court of Appeal of the October 4, 2011 order of the Federal Court was dismissed on October 24, 2011 ([Mahjoub v. Canada (Citizenship and Immigration)], 2011 FCA 294, [2013] 3 F.C.R. 36). His subsequent motion to the Federal Court of Appeal for a stay of the October 4, 2011 order pending application for leave to appeal to the Supreme Court of Canada was dismissed by Madam Justice Gauthier on November 21, 2011 (2011 FCA 322).
[40] Pursuant to the October 4, 2011 order, Prothonotary Aalto oversaw the development and execution of the separation process, which began with an initial case management conference on October 5, 2011. A full description of the process can be found in the Prothonotary’s Report filed with the Court on February 10, 2012, which is annexed to these reasons as Schedule B (Aalto Report [Report to Justice Blanchard Regarding the Separation of Documents]). For convenience, I summarize the process and the main findings of Prothonotary Aalto’s Report below.
Summary of Prothonotary Aalto’s Rreport
[41] With input from the parties, Prothonotary Aalto developed a separation protocol that ensured the integrity of the process, and included preserving the chain of continuity of the documents. Delegates designated by the parties who signed undertakings not to divulge any solicitor-client information to which they might be exposed during the process undertook the actual separation of the documents.
[42] The documents were separated into five categories: neutral documents, Mahjoub documents, ministers’ documents, contentious documents, solicitor-client intercept motion documents. Neutral documents are public documents such as motion records and affidavits that have no indicia of ownership, such as original initials or handwriting. Contentious documents are documents that have highlighting, tabs, stickies, underlining or markings but whose ownership could not be determined. As a result of the separation process, there were 32 boxes of neutral documents; 12 boxes of ministers’ documents; 12 boxes of Mahjoub documents; and 3 boxes containing 66 contentious documents. While Mr. Mahjoub concedes that these contentious documents will not affect his fair trial rights, he contends, nonetheless, that a lesser prejudice results from an incomplete separation process.
[43] The documents were moved from the DOJ to the courthouse on November 10, 2011, and the separation process commenced shortly thereafter. Following a November 24, 2011 case management conference, the Court ordered that the arguments relating to the alleged prejudice be heard on January 9 and 10, 2012. At case management conferences on January 3, January 19, and February 13, 2012, the parties informed the Court that the process was taking longer than anticipated and scheduled hearings dates were progressively pushed back. On January 18, 2012, Mr. Mahjoub started the review of his documents with the view of preparing descriptions as contemplated by the October 4, 2011 order:
The parties may make further argument on the nature and extent of any alleged prejudice before the designated judge. To that end, Mr. Mahjoub may prepare a description of any of the returned documents relied upon to demonstrate that prejudice, which description shall not disclose any substantive information that would be subject to solicitor-client or litigation privilege.
[44] At the February 20, 2012 case management conference, public counsel informed the Court that they estimated needing an additional four to five weeks to review the documents, and prepare descriptions and arguments.
[45] Consequently, the Court adjourned the hearing until April 10-12, 2012, affording the parties an additional six weeks to prepare. These dates were ultimately changed to April 23 and 24, 2012, given a scheduling conflict on the part of ministers’ counsel.
[46] In preparation for the hearing, Mr. Mahjoub prepared charts containing the descriptions for Prothonotary Aalto’s approval of the documents he would rely upon to show prejudice. The descriptions were then redacted to ensure that the designated judge would not have access to any privileged information.
[47] In addition to the descriptions, Mr. Mahjoub developed the following categories to describe the nature of the alleged prejudice in the chart:
1. Strategy relating to (a) theory of the case (b) implementation of the theory (such as challenging evidence, presentation of new evidence or argument);
2. Tactics;
3. Questions (a) whether applicable to witness; (b) content of questions to be asked; (c) content of questions challenging evidence;
4. Assessment of the Evidence (a) value (b) knowledge (c) credibility;
5. Confidential information, which may not otherwise fit into 1 to 4 and 6;
6. Overview in terms of approach, knowledge and/or thought process of public counsel revealed, a) revealing approach and knowledge of public counsel by virtue of certain elements b) reveals though[t] process in general terms.
[48] Mr. Mahjoub also developed the following scale to codify the extent of the alleged prejudice for documents described in the chart:
Code 1 – low privileged documents, difficult to articulate prejudice;
Code 2 – moderate privileged documents, generally public documents with highlighting, side bar, underlining or writing where the impact is functionally no different than a side bar or highlight;
Code 3 – high: privileged documents, created by Mr. Mahjoub or not disclosed in public, that could give or give an advantage to other side for cross-examination or submissions;
Code 4 – extreme: privileged documents created by Mr. Mahjoub or not disclosed in public, highly advantageous to other side;
Code 5 – highest prejudice: solicitor-client or litigation privileged communications that undermines Mr. Mahjoub’s case or that could affect the outcome of the case. [Examples cited by Mr. Mahjoub are omitted.]
[49] As a result of the above exercise, Prothonotary Aalto was presented with charts containing descriptions of the documents or parts of documents, which were individually categorized in one or more of the above-noted categories and assigned a code of prejudice, 1 of 5, as described above. Prothonotary Aalto was then presented with a version of the charts where the privileged information contained in the descriptions had been redacted. These redacted charts were filed with the Court. See Schedule C as an example.
[50] Prothonotary Aalto approved the descriptions found in the charts and found that the codes and the descriptions were “reasonable”. He wrote at page 8 of the addendum to his Report that:
[t]he coding is a subjective exercise by public counsel based on their approaches and strategy in conducting the case. Public counsel articulated to the Court why a particular code was selected for a particular document and such was based on counsel’s assessment of how the document would be used in the proceedings. The Court’s acceptance of a particular code is not final and binding on the designated judge. They are also not a finding of actual or any prejudice. Such findings are for the designated judge…It may be that the designated judge will require access to these [unredacted] charts in order to finally determine the nature and extent of any prejudice.
[51] Prothonotary Aalto also wrote at page 29 of his Report that “[t]he types of documents that were found to belong to Mr. Mahjoub included … solicitor work product; solicitor-client privileged material; and litigation privileged material.”
[52] Mr. Mahjoub alleges that all of his documents were covered by solicitor-client and/or litigation privilege. He contends that approximately one third of the documents from the Mahjoub boxes have been included in the charts. He contends that all of the documents listed in the charts are prejudicial, regardless of their coding. He lists over 50 discrete pieces of information categorized as code 5, which is the most prejudicial category.
[53] The Court heard the parties’ submissions on April 23 and 24, 2012, on the nature and extent of the alleged prejudice and appropriate remedy, if any, in the circumstances.
Preliminary Issue: Admissibility of affidavit of Martha Lori Hendriks
[54] By order dated January 31, 2012, the Court allowed Mr. Mahjoub to file any additional affidavit evidence prior to the hearing of the final submissions on the nature and extent of the alleged prejudice. It also allowed the ministers to file responding affidavits. The ministers filed three affidavits including the affidavit of Martha Lori Hendriks. Mr. Mahjoub objects to the admissibility of paragraph 8 of the Hendriks affidavit on the basis that it does not flow from the opening and review of the boxes. The contested paragraph reads as follows:
In addition, on my instructions, on September 7, 2011, Ms. Marquis sent an email to all ILD [Immigration Law Division] staff (counsel and support staff), inquiring whether anyone had entered office 916 since July 21, 2011, July 21, 2011, is the date on which the documents were transported from the Court and placed in office 916 which was vacant at the time. I have been advised by Ms. Marquis, and verily believe, that there were no additional persons who responded as having entered office 916.
[55] Mr. Mahjoub argues that it is implicit in the Court’s January 31, 2012 order that any additional evidence filed by Mr. Mahjoub must relate to the nature and extent of the alleged prejudice, as provided by the October 4, 2011 order. Consequently, Mr. Mahjoub argues that the ministers’ corresponding responding affidavits must in turn respond to Mr. Mahjoub’s additional affidavits. It is argued that paragraph 8 of the Hendriks’ affidavit does not.
[56] Mr. Mahjoub further contends that allowing the affidavit into evidence would allow the ministers to split their case. He submits that it would be the equivalent of allowing the ministers to reopen its case after having pointed out the gaps in their position and would be contrary to section 7 of the Charter pursuant to R. v. P. (M.B.), [1994] 1 S.C.R. 555.
[57] The ministers acknowledge that paragraph 8 of the Hendriks’ affidavit goes some way towards addressing an evidentiary gap relating to who had access to Mr. Mahjoub’s documents at the DOJ in Toronto. The ministers acknowledged the presence of the gap at the October 3, 2011 hearing. However, they argue that that gap was not gleaned from Mr. Mahjoub’s argument, but was rather observed and admitted to by the ministers. Consequently, they contend they are not attempting to reopen the litigation as alleged by Mr. Mahjoub. The ministers also acknowledge that the information contained in paragraph 8 of the Hendriks affidavit could have been adduced before the October 3, 2011 hearing. Nevertheless, the ministers argue that the affidavit, including paragraph 8, merely attempts to provide a complete record for the benefit of the Court. They contend that the contested paragraph speaks to the presence and efficacy of their ethical walls, and should be received by the Court.
[58] The October 4, 2011 and January 31, 2011 orders only allowed the filing of additional affidavit evidence in relation to the separation process and the alleged prejudice, if any. The information in paragraph 8 of the Hendriks affidavit does not result from the process of separating the documents. Rather it seeks to address a gap in the ministers’ evidence that could and should have been dealt with earlier. In my view, it would be inappropriate to allow paragraph 8 into evidence. In the result, paragraph 8 of the Hendriks affidavit will be disregarded.
ISSUE
[59] Has there been a breach of Mr. Mahjoub’s Charter rights that warrants a permanent stay of proceedings?
APPLICABLE LAW
[60] Mr. Mahjoub claims a breach of his section 7 and section 8 rights and seeks a remedy under subsection 24(1) of the Charter. These sections and subsection are reproduced below:
Legal Rights
| Life, liberty and security of person |
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. |
| Search or seizure |
8. Everyone has the right to be secure against unreasonable search or seizure. … |
Enforcement
| Enforcement of guaranteed rights and freedoms |
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. |
Section 8
[61] For a search and seizure to fall under the protection of the Charter, there must be a reasonable expectation of privacy in the place searched, the thing seized, or both (R. v. Evans, [1996] 1 S.C.R. 8). If such an expectation exists, the search or seizure will be considered reasonable if it is authorized by law, if the law that authorizes the search or seizure is itself reasonable, and if the manner in which the search or seizure is conducted is reasonable (R. v. Collins, [1987] 1 S.C.R. 265).
Section 7
[62] There is no dispute that Mr. Mahjoub’s section 7 rights are engaged. Mr. Mahjoub claims a breach of his section 7 rights under two separate categories: (i) a violation of his solicitor-client privilege and (ii) an abuse of process.
(i) Violation of solicitor-client privilege
[63] The Supreme Court, in Solosky v. The Queen, [1980] 1 S.C.R. 821, at page 837, outlines the required criteria to establish solicitor-client privilege:
… (i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties.
[64] Solicitor-client privilege has attained the status of a general principle of substantive law in Canada (Lavallee, Rackel & Heintz v. Canada (Attorney General); White Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, 2002 SCC 61, [2002] 3 S.C.R. 209 (Lavallee), at paragraph 49; see also Maranda v. Richer, 2003 SCC 67, [2003] 3 S.C.R. 193, at paragraph 12):
Solicitor-client privilege is a rule of evidence, an important civil and legal right and a principle of fundamental justice in Canadian law. While the public has an interest in effective criminal investigation, it has no less an interest in maintaining the integrity of the solicitor-client relationship. Confidential communications to a lawyer represent an important exercise of the right to privacy, and they are central to the administration of justice in an adversarial system. Unjustified, or even accidental infringements of the privilege erode the public’s confidence in the fairness of the criminal justice system. This is why all efforts must be made to protect such confidences. [My emphasis.]
[65] The Supreme Court has recognized that solicitor-client privilege is “fundamental to the justice system” (R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445, at paragraph 2), and that the courts are compelled to “adopt stringent norms to ensure its protection” (Lavallee, above, at paragraph 36). A violation of the privilege also infringes a named person’s section 7 rights in the context of a security certificate proceeding (Jaballah (Re), 2010 FC 1084, [2012] 2 F.C.R. 179 (Jaballah), at paragraph 48).
[66] Solicitor-client privilege should be distinguished from litigation privilege, which serves to ensure that the adversarial process is respected. Litigation privilege attaches to documents created for the dominant purpose of litigation (Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319).
(ii) Abuse of process
[67] The abuse of process doctrine has largely been subsumed into section 7 and amounts to “conducting a prosecution in a manner that contravenes the community’s basic sense of decency and fair play and thereby calls into question the integrity of the system [which] is also an affront of constitutional magnitude to the rights of the individual accused” (R. v. O’Connor, [1995] 4 S.C.R. 411 (O’Connor), at paragraph 63).
[68] In this instance, the allegation of an abuse of process is separate from the alleged breach of section 7 resulting from the violation of solicitor-client privilege in that it focuses on the right to a fair trial affected by the Crown’s conduct, rather than the allegation that privilege has been violated. The propriety of the conduct and intention “are not necessarily relevant to whether or not the accused’s right to a fair trial is infringed” (O’Connor, above, at paragraph 74). There is also a small residual category of conduct within the abuse of process analysis caught by section 7 of the Charter in which the individual’s rights to a fair trial are not implicated. This residual category “addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process” (O’Connor, above, at paragraph 73; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297 (Regan), at paragraph 55; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391 (Tobiass), at paragraph 89).
Do the alleged Charter breaches require the existence of privilege?
[69] Aside from the residual category of an abuse of process, Mr. Mahjoub’s alleged Charter breaches require that privilege in the documents exists. To establish a reasonable expectation of privacy to show that his section 8 rights have been violated, he must demonstrate that his documents were protected by solicitor-client privilege and/or litigation privilege. Similarly, solicitor-client privilege and/or litigation privilege must also be established in order to maintain a section 7 violation.
[70] Once the existence of privilege is established, there is a legal presumption that the privileged information will be used to the prejudice of the opposing party. I will now turn to the law on this issue.
Rebutting the risk of prejudice
[71] In MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235 (MacDonald Estate), Justice Sopinka, writing for the majority of the Supreme Court, established the test to apply to disqualify counsel in cases where counsel allegedly has confidential information belonging to the other party:
(1) Did the lawyer receive confidential information attributable to a solicitor and client relationship relevant to the matter at hand?
(2) Is there a risk that it will be used to the prejudice of the client?
[72] This two-step test was reaffirmed by a unanimous Supreme Court decision in Celanese Canada Inc. v. Murray Demolition Corp., 2006 SCC 36, [2006] 2 S.C.R. 189 (Celanese). The Court applied the test in the context of an Anton Piller order during which the searching party had come into the possession and reviewed privileged emails. Justice Binnie, on behalf of the unanimous Court, held that once possession of privileged information was established, the receiving party bore the onus of showing there is no real risk such confidences will be used to the prejudice of the moving party. The Court also held that for the presumption to apply, the initial onus was on the moving party to establish that the receiving party was in possession of privileged information.
[73] The presumption of prejudice can be rebutted, “on the basis of clear and convincing evidence” by showing that “the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur” to prejudice the moving party (MacDonald Estate, above, at pages 1260 and 1262; see also Celanese, above, at paragraph 42).
[74] Even though MacDonald Estate and Celanese, above, specifically address motions to remove solicitors of record, Justice Binnie in Celanese, held that (at paragraph 46):
The relevant elements of the MacDonald Estate analysis do not depend on a pre-existing solicitor-client relationship. The gravamen of the problem here is the possession by opposing solicitors of relevant and confidential information attributable to a solicitor-client relationship to which they have no claim of right whatsoever.
[75] This Court in Jaballah, above, held that the principles in Celanese were not restricted to the context of removing counsel for having in their possession privileged information belonging to the opposing party (paragraphs 58–68). Here, both parties accept that the principles in Celanese are applicable in the circumstances. Accordingly, if a breach of solicitor-client or litigation privilege is established and the risk of prejudice is not rebutted, it is open for the Court to grant an appropriate remedy, which may include a permanent stay of proceedings (R. v. Bruce Power Inc., 2009 ONCA 573, 98 O.R. (3d) 272).
Determining the appropriate remedy
[76] A permanent stay of proceedings is a drastic remedy to be awarded only in the “clearest of cases” (O’Connor, above, at paragraph 68). As explained by Justice LeBel writing for the majority in Regan, above, at paragraphs 54-56, it will only be appropriate when two criteria are met:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
[77] Where uncertainty remains about whether the abuse of process is sufficient to warrant a stay of proceedings, a third criterion is considered: the interests that would be served by the granting of a stay of proceedings are balanced against the interest that society has in having a final decision on the merits (Tobiass, above, at paragraph 92; Regan, above, at paragraph 225).
[78] The courts have also engaged in the balancing exercise in cases falling within the residual category where the fairness of the trial is not in question, but rather where the act of going forward would put the administration of justice into disrepute. For example, the Ontario Court of Appeal in R. v. Zarinchang, 2010 ONCA 286, 99 O.R. (3d) 721, at paragraphs 58-61, wrote:
Where the residual category is engaged, a court will generally find it necessary to perform the balancing exercise referred to in the third criterion. When a stay is sought for a case on the basis of the residual category, there will not be a concern about continuing prejudice to the applicant by proceeding with the prosecution. Rather, the concern is for the integrity of the justice system.
When the problem giving rise to the stay application is systemic in nature, the reason a stay is ordered is to address the prejudice to the justice system from allowing the prosecution to proceed at the same time as the systemic problem, to which the accused was subjected, continues. In effect, a stay of the charge against an accused in the residual category of cases is the price the system pays to protect its integrity.
However, the “residual category” is not an opened-ended means for courts to address ongoing systemic problems. In some sense, an accused who is granted a stay under the residual category realizes a windfall. Thus, it is important to consider if the price of the stay of a charge against a particular accused is worth the gain. Does the advantage of staying the charges against this accused outweigh the interest in having the case decided on the merits? In answering that question, a court will almost inevitably have to engage in the type of balancing exercise that is referred to in the third criterion. It seems to us that a court will be required to look at the particulars of the case, the circumstances of the accused, the nature of the charges he or she faces, the interest of the victim and the broader interest of the community in having the particular charges disposed of on the merits.
Thus, in our view, a strong case can be made that courts should engage in the balancing exercise set out in the third criterion in most cases coming within the residual category. [My emphasis.]
[79] Where the abuse of process falls within the residual category, in “exceptional” and “relatively rare cases” a stay of proceeding will be granted where past conduct is so egregious that going forward would be offensive to society’s sense of justice. At paragraph 55 of Regan, above, the Supreme Court of Canada wrote:
As discussed above, most cases of abuse of process will cause prejudice by rendering the trial unfair. Under s. 7 of the Charter, however, a small residual category of abusive action exists which does not affect trial fairness, but still undermines the fundamental justice of the system (O’Connor, at para. 73). Yet even in these cases, the important prospective nature of the stay as a remedy must still be satisfied: “[t]he mere fact that the state has treated an individual shabbily in the past is not enough to warrant a stay of proceedings” (Tobiass, at para. 91). When dealing with an abuse which falls into the residual category, generally speaking, a stay of proceedings is only appropriate when the abuse is likely to continue or be carried forward. Only in “exceptional”, “relatively very rare” cases will the past misconduct be “so egregious that the mere fact of going forward in the light of it will be offensive” (Tobiass, at para. 91). [My emphasis.]
[80] A permanent stay should be assessed against a complete factual record concerning the prejudice. In R. v. La, [1997] 2 S.C.R. 680, at paragraph 27, the Supreme Court wrote that:
This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit.
[81] Where a permanent stay of proceedings is not an appropriate remedy, the Supreme Court in Celanese, above, at paragraph 59, suggested the following six non-exhaustive factors to be considered in determining whether solicitors should be removed:
(1) how the documents came into the possession of the plaintiff or its counsel;
(2) what the plaintiff and its counsel did upon recognition that the documents were potentially subject to solicitor-client privilege;
(3) the extent of review made of the privileged material;
(4) the contents of the solicitor-client communications and the degree to which they are prejudicial;
(5) the stage of the litigation;
(6) the potential effectiveness of a firewall or other precautionary steps to avoid mischief.
[82] If the risk of prejudice has not been rebutted and a remedy short of removing the solicitors will address the violation of privilege, it should be considered (Celanese, above, at paragraph 56).
ANALYSIS
[83] I propose to address the issue raised in this motion by answering the following questions:
(1) Has Mr. Mahjoub established that confidential information attributable to a solicitor-client relationship or to litigation privilege was in the possession of the ministers?
(2) If so, have the ministers rebutted the presumption that there is a risk that privileged material belonging to Mr. Mahjoub and held by the ministers will be used to the prejudice of Mr. Mahjoub should the proceedings continue?
(3) If the presumption is not rebutted, does the gravity of the breach of Mr. Mahjoub’s Charter rights warrant a stay of proceedings or a lesser remedy?
(4) Does the conduct of the ministers connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process? If so, what is the appropriate remedy?
(1) Has Mr. Mahjoub established that confidential information attributable to a solicitor-client relationship or to litigation privilege is in the possession of the ministers?
[84] In Celanese, above, the Supreme Court adopted its prior jurisprudence in MacDonald Estate, where it held that in circumstances where the opposing firm of solicitors is shown to have received (at paragraph 42):
…“confidential information attributable to a solicitor and client relationship relevant to the matter at hand” (p. 1260), the court will infer “that lawyers who work together share confidences” (p. 1262) and that this will result in a risk that such confidences will be used to the prejudice of the client, unless the receiving solicitors can show “that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur” (p. 1260).
[85] The affidavit evidence filed on behalf of Mr. Mahjoub attests that the materials at issue consist of the following:
• Pleadings/procedures annotated by public counsel and by Mr. Mahjoub;
• Handwritten and/or computerized notes on legal strategy and other privileged information by public counsel and by Mr. Mahjoub;
• Public counsel’s preparation of cross-examinations of past and future witnesses;
• All exhibits with handwritten annotations, underlining and marginal notes.
[86] The affidavits filed in support of Mr. Mahjoub’s motion also attest more specifically that:
• “one folder had [the handwriting of an assistant working for Mr. Mahjoub’s counsel] on it” and another document “contained Me Hameed’s [counsel for Mr. Mahjoub] initials and a piece of paper stuck to the document with Hameed’s handwritten notes/comments containing visible confidential information”.
• “Many of public counsel’s documents in the break-out room contained, on their cover page, post-it notes written by [counsel for Mr. Mahjoub] and by Mr. Mahjoub that could easily be read by any person who looks at the document.”
• Documents in public counsel’s breakout room “contained strategic information sensitive to the preparation of Mr. Mahjoub’s case”.
• “[M]ost of the documents on the table on their face belonged to public counsel including, among others: public counsel’s notes, public counsel’s marginal notes, underlining, annotations and other information added to most if not all exhibits, transcripts and other materials belonging to public counsel, Mr. Mahjoub’s notes on exhibits, public counsel’s cross-examination preparation documents, etc.”
[87] Mr. Mahjoub contends that the above evidence establishes that some of the material in the possession of the ministers is privileged.
[88] The ministers “do not dispute that some of the documents in [their] possession may contain privileged information” but contend that Mr. Mahjoub’s evidence “lacks the sufficient detail or the identification of specific documents as required at law to discharge their evidentiary burden.” The ministers argue that affidavits supporting the existence of privilege must establish a sufficient factual basis and be construed strictly. They also submitted at the October 3, 2011 hearing that it may be appropriate for the Court to review the materials to determine whether privilege attaches to any of the documents. Finally, the ministers contend that it is necessary for Mr. Mahjoub to establish privilege over every document.
[89] The jurisprudence teaches that there is (Celanese, above, at paragraphe 42):
… no onus on the moving party to adduce any further evidence as to the nature of the confidential information beyond that which was needed to establish that the receiving lawyer had obtained confidential information attributable to a solicitor and client relationship which was relevant to the matter at hand.
[90] There is no dispute that the ministers took documents from Mr. Mahjoub’s breakout room, situated in immediate proximity to the courtroom, after an adjournment late in the proceedings. The ministers acknowledge that some of the materials at issue “may” be privileged.
[91] There is also no dispute that the materials at issue belonged to Mr. Mahjoub, were stored in a breakout room assigned to Mr. Mahjoub’s litigation team and were documents used by Mr. Mahjoub in the conduct of the litigation. Mr. Hameed’s affidavit confirms that some of the documents contained handwritten and/or computerized notes on legal strategy and other privileged information written by public counsel and by Mr. Mahjoub.
[92] I accept Mr. Mahjoub’s submission made at the October 3, 2011 hearing that it would have been difficult to adduce more information on the nature or content of his documents since the documents were not in his possession at the time he filed his record.
[93] Further, the Report subsequently filed by Prothonotary Aalto following the separation process mandated by the Court’s October 4, 2011 order, confirms that materials seized included “solicitor work product, solicitor-client privileged material, and litigation privileged material” belonging to Mr. Mahjoub (Aalto Report, at page 29).
[94] The Prothonotary is well suited to make such determinations. As a motions Judge, he is routinely tasked with determining whether solicitor-client privilege attaches to contested documents during the disclosure stage of a proceeding. Such decisions determine the content of the record that is before the hearing judge.
[95] I am therefore satisfied that Mr. Mahjoub has met his onus and has established that the ministers’ counsel had possession of confidential information attributable to a solicitor-client relationship which was relevant to the matter at hand. It follows from the above-cited jurisprudence that the ministers now bear the onus of rebutting the legal presumption that there is a risk that such confidences will be used to the prejudice of Mr. Mahjoub.
(2) Have the ministers rebutted the presumption that there is a risk that privileged material belonging to Mr. Mahjoub and held by the ministers will be used to the prejudice of Mr. Mahjoub should the proceedings continue?
[96] The ministers have the onus of demonstrating on a balance of probabilities (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41), with “clear and convincing evidence” (McDonald Estate, above, at page 1262; Celanese, above, at paragraph 42) “that the public represented by the reasonably informed person would be satisfied that no use of confidential information would occur” (McDonald Estate, above, at page 1260).
[97] Mr. Mahjoub argues that the seizure of the materials at issue by the ministers was egregious and negligent. He maintains that no explanation is offered as to why certain members of the ministers’ litigation team did not file affidavit evidence. Mr. Mahjoub further points to the fact that the ministers admit that at least one counsel for the ministers viewed contents of several boxes. As a result, he argues the ministers are aware of the substance of some of his privileged information. Mr. Mahjoub argues that the ministers’ evidence fails to provide sufficient basis to rebut the legal presumption of risk of prejudice. He also contends the seizure is but one of several violations of solicitor-client privilege since 1996 and that the Court should consider these past violations as context when considering the alleged violation at issue.
[98] Regarding the latter argument advanced by Mr. Mahjoub, the Court is well aware of the record in the underlying proceedings relating to the alleged violations of Mr. Mahjoub’s solicitor-client privilege. However, those allegations are disputed and have yet to be decided. Both parties agree that those issues are not to be decided on this motion. Consequently, such disputed allegations cannot be relied upon to decide the within motion.
[99] The ministers contend that they have rebutted the presumption of risk of prejudice “because the documents in question were either not reviewed or reviewed only in a cursory fashion before the access to the documents was completely sealed”.
[100] The taking and co-mingling of Mr. Mahjoub’s documents with the ministers’ documents were the direct result of a serious lack of diligence by members of the ministers’ team in the conduct of the litigation. In particular, senior members of the team failed to give proper and clear direction to junior members and legal assistants. The seriousness of the possible consequences that flow from such negligent conduct on behalf of the ministers cannot be overstated. At a minimum, the negligent actions of the ministers’ litigation team resulted in a further significant delay in proceedings already plagued by numerous procedural delays. The ministers alone bear responsibility for this delay. However, notwithstanding the seriousness of the failures of the ministers’ litigation team, I am satisfied that the mistakes made were not intentional or pre-mediated. On the evidence, I find no mala fides on the part of the ministers or their litigation team.
[101] The ministers first recognized that they were in possession of materials that belonged to Mr. Mahjoub when Ms. Stewart Guthrie attended office 916 on August 22, 2011, in response to the email sent on the same day by Ms. Schneider to review the contents of the miscellaneous boxes. Upon seeing a single handwritten page in one of the boxes, she saw the name “Tyndale” written on the left of the page in handwriting she did not recognize. It is at this point that Ms. Stewart Guthrie believed that some of the notes may not belong to the ministers. She closed the box and spoke with Ms. Schneider, a paralegal, and Ms. Kaneira, DOJ counsel, both on the Mahjoub team, telling them she believed they had brought back materials from the Court that were not theirs.
[102] Mr. Tyndale, Senior Counsel on the Mahjoub team, upon being informed of the situation by Ms. Stewart Guthrie, instructed her to label the boxes containing Mr. Mahjoub’s materials “To be reviewed by Public counsel” and to draft an email to public counsel advising them of the situation and proposing that the parties review the materials to separate them. This was done on the same day.
[103] While I accept that the eight miscellaneous boxes containing “correspondence, handwritten notes and case law” were set aside for review by public counsel and so labeled, Ms. Schneider continued to work in the office for the remainder of the week sorting documents in other boxes. No action was taken to seal and control access to the room until public counsel visited the office on September 1, 2011. Given that certain materials found in the eight miscellaneous boxes may have contained privileged information, the ministers should have moved to seal the eight boxes at that time.
[104] I also note that no actions were taken by anyone on the Mahjoub team on July 15, 2011, when Ms. Dean, upon her return from Court, had sent an email to the team advising its members that she and Ms. Krakowska, a legal assistant on the Mahjoub team, had “emptied courtroom 6D and prep room 6013 [ministers’ breakout room] and had moved all of the materials into prep room 6011 [Mr. Mahjoub’s breakout room]”. At this juncture, before any materials were moved to the DOJ, the ministers’ team should have known that there was a problem with members of the team accessing both breakout rooms and moving “all” of the materials in Mr. Mahjoub’s breakout room. Immediate action at that time may have served to mitigate potential harm that, arguably, would flow from the taking and co-mingling of documents.
[105] Following public counsel’s visit to office 916 on September 1, 2011, where the extent of the problem involving the co-mingling of the documents was made clear, the office was locked and a yellow caution tape was affixed to the entrance to the office. Keys of the office were secured at that point and the office has remained sealed until the materials were ordered back to the courthouse pursuant to the order of Prothonotary Aalto.
[106] All members of the ministers’ litigation team, including the paralegal with the most exposure to the documents, who had entered office 916 prior to it being sealed, have been temporarily removed from the team pending final determination of the motion.
[107] Further, certain ethical walls were set up to ensure that the removed members of the team would not discuss what they saw, if anything, of the documents in office 916 nor have access to the files relating to the case. The evidence of the Regional Director with the DOJ in Toronto, Martha Hendriks, indicates that the ethical walls put in place were rigidly applied and have been respected since their implementation.
[108] I find that the measures put in place by the ministers after September 1, 2011, to secure office 916 and the materials were appropriate and effective in the circumstances.
[109] To rebut the legal presumption that there is a real risk that Mr. Mahjoub’s privileged materials will be used to the prejudice of Mr. Mahjoub, the ministers filed a number of affidavits in evidence. The Deputy Regional Director and Senior Counsel in the Immigration Law Division of the Ontario Regional Office of the DOJ, Ms. Rhonda Marquis, attests that she communicated with every member of the Mahjoub team, including the two legal assistants who had originally boxed the materials for their return to office 916, Ms. Dean and Ms. Krakowska, and the paralegal who had the most access to those materials, Ms. Schneider, and confirmed that the members of the Mahjoub team with whom she communicated had advised her that they did not review opposing counsel’s materials. There is no evidence that Ms. Marquis entered office 916 or otherwise had access to the Mr. Mahjoub’s documents. Ms. Marquis further attests that CSIS [Canadian Security Intelligence Service] counsel advised her that they had not entered office 916 at any time since July 15, 2011. She was also advised that no CBSA [Canada Border Services Agency] personnel assigned to the Mahjoub matter have entered office 916 at any time since July 15, 2011.
[110] In addition to the affidavit of Ms. Marquis, the ministers filed the affidavits of Kamal Dean, Jillian Schneider, Daniel Engel, Sharon Stewart Guthrie, Jocelyn Espejo-Clarke, Nimanthika Kaneira, Maria Teresa Martins and Martha Lori Hendriks. For the reasons set earlier at paragraph 57 of these reasons for order, paragraph 8 of the affidavit of Martha Lori Hendriks has been disregarded and is not part of the record.
[111] With the exception of Ms. Marquis and Ms. Hendriks, all of the other affiants who filed affidavits on behalf of the ministers on this motion had access to Mr. Mahjoub’s documents. They either accessed the breakout rooms and/or office 916 at the DOJ. I will now review the evidence of each of these affiants.
[112] Ms. Kamal Dean, a legal assistant with the Mahjoub team, was asked by another legal assistant, Ms. Irena Krakowska, on July 15, 2011, to accompany her to the Court to retrieve the ministers’ materials. Ms. Dean attests that she “did not read any of the documents that were in the courtroom or in the breakout rooms and was unaware that any of the documents belonged to counsel representing Mr. Mahjoub”. Ms. Dean also attests that she had been advised by Ms. Krakowska and verily believes that “Irena did not read any of the documents in the courtroom or in the breakout rooms and that she was unaware that any of the documents belonged to counsel representing Mr. Mahjoub”. Ms. Dean further attests that Ms. Krakowska advised her “she did not know that one of the breakout rooms was being used by counsel for Mr. Mahjoub”. Ms. Dean helped Ms. Schneider organize the documents in office 916 on the mornings of July 25–27, 2011. Ms. Dean attests that she only looked at the title page and the back page of documents and did not notice any handwritten annotations.
[113] Ms. Jillian Schneider, a paralegal on the Mahjoub team, attests that she was asked to organize the materials once they arrived in office 916. She proceeded to do so on July 25–27, 2011. She attests that on August 8, 2011, she sought the assistance of Mr. Engel to determine which documents needed to go back to Court for the resumption of the hearing. On the same day, in office 916, they “opened two or three boxes of the documents and flipped through the material”. She states that it became clear that the contents of the boxes needed to be organized into categories before it could be decided what needed to be returned to Court. She states that she then proceeded on her own to organize the materials in categories of documents. When organizing the documents, she looked at the title of the document and occasionally at the back page. She attests that she “did not read or look at the content of the documents” and did not recall “having seen any handwritten notations on any of the documents”. It is also noted that Ms. Schneider attests that in continuing to organize the documents in office 916, she never looked into the eight boxes after Ms. Stewart Guthrie labeled them for public counsel’s review.
[114] Mr. Daniel Engel, counsel on the ministers’ litigation team, attests that he attended office 916 at the DOJ on August 8, 2011, to review the contents of the boxes of documents to determine what material needed to return to Court upon resumption of the hearing. He states that with Ms. Schneider, he opened two or three boxes and “flipped” through the material. He attests that he was in the office for approximately 10 minutes and has not returned to the office since. He attests that “[he] do[es] not recall having seen any of Public Counsel’s materials while [he] flipped through the contents of the 2-3 boxes on August 8, 2011”.
[115] Ms. Sharon Stewart Guthrie, DOJ counsel on the Mahjoub team, attended office 916 on August 22, 2011, in order to assist Ms. Schneider in identifying certain documents. Her affidavit evidence relating to her contact with the materials in office 916 can be summarized as follows:
1. She reviewed the labels on boxes that were put aside to go back to Court. She did not open these boxes.
2. She reviewed the labels on two or three boxes of exhibits in file folders. She opened the boxes and “quickly flipped through the file folders”. She then closed the boxes and left them on the desk.
3. She opened three of the eight boxes containing miscellaneous documents that were stacked against the window. Inside the first, she noticed a file folder with French handwritten labels. She did not open the folder and closed the box and set it aside.
4. Upon opening the second box by the window, she noticed the first pages of publicly available reports, which she did not flip through. She closed the box and put it aside.
5. Upon opening the third box, she saw printed copies of jurisprudence that had been referred to in the proceeding by both parties. She did not flip through these. Deeper in this box she saw a copy of an email between two of the ministers’ litigation team members. She then saw a single page of handwriting she did not recognize with the name “Tyndale” written on the left of the page. She attests that “she did not read anything else on the page other then the name ‘Tyndale’”. She states that it is at this point she believed that the notes did not belong to her team. She closed the box and put it aside.
6. She was in office 916 for approximately 10 to 15 minutes.
[116] Ms. Nimanthika Kaneira, DOJ counsel on the Mahjoub team, attests that she was called to office 916 on September 1, 2011, by Ms. Espejo-Clarke who was in the office with Ms. Doyon and an assistant on public counsel’s litigation team. She was asked if she knew how documents on the desk in office 916 appearing to belong to public counsel may have ended up there. Ms. Kaneira speculated that this could be a repeat of what had occurred earlier in February when certain boxes belonging to the ministers were moved to Mr. Mahjoub’s breakout room. Ms. Kaneira saw stacks of documents on the desk most of which were blue covered and bound, such as motion records. She attests that she “did not review any of the documents and apart from remembering blue covers on some of the documents; [she] did not know anything about them”.
[117] On August 30, 2011, Ms. Maria Teresa Martins, an administrative officer with the DOJ in Toronto, accompanied two movers to office 916 with boxes belonging to Ms. Amy Lambiris who was on maternity leave. She attests that the movers entered office 916 with Ms. Lambiris’ boxes while she supervised from the doorway. They were in the office for a matter of minutes, just enough time to move the boxes into the office. She further attests that she “did not read any of the documents that were in office 916”. She also attests that “she did not see the movers read any of the documents that were in office 916”.
[118] Ms. Espejo-Clarke, DOJ counsel on the Mahjoub team, attests that she, along with Ms. Doyon, “briefly reviewed some of [the] materials and [she] noticed that there were also documents appearing to belong to the ministers. After a brief review of some of the documents, [in the presence of Ms. Doyon, she] realized that [they] could not sort them and should not look at any other documents”.
[119] Mr. Mahjoub argues that the ministers have not rebutted the presumption that there is a real risk that his privileged materials in the possession of the ministers will be used to his prejudice should the proceeding continue.
[120] Mr. Mahjoub points to certain gaps in the evidence adduced by the ministers. He argues that no evidence was led to establish that the door to office 916 was locked from July 20 to September 1, 2011. Consequently, it is not known who would have had access to the materials stored in the office during this period of time. It is submitted this is further complicated by the fact the evidence fails to identify all of the members of the ministers’ litigation team.
[121] Mr. Mahjoub further argues that certain persons who were obviously members of the ministers’ litigation team did not provide affidavit evidence, namely Ms. Krakowska, Mr. Larouche and Mr. Tyndale. No explanation is offered as to why the evidence of these members of the Mahjoub team was not adduced. It is submitted that while the affidavits filed describe only a “cursory review” of some of the privileged documents, this is insufficient to rebut the legal presumption. Further, Mr. Mahjoub maintains that the assertions by Ms. Marquis that no member of the Mahjoub team reviewed opposing counsel’s materials and that CSIS and CBSA did not have access to office 916 are hearsay, and consequently, an adverse inference should be drawn. Mr. Mahjoub maintains that if no adverse inference is drawn, the evidence should not be considered or be given little weight.
[122] In sum, Mr. Mahjoub argues that we do not know if some of the documents at issue were taken out of office 916; we do not know who had access to the office, including CSIS or CBSA; we do not know who the other members of the ministers’ litigation team are and what they saw in relation to the documents. Mr. Mahjoub contends that these questions remain unanswered on the record. In the result, it is submitted that there is a real risk his privileged materials in the possession of the ministers will be used to his prejudice should the proceeding continue.
[123] For the reasons that follow, I am satisfied that the evidence adduced by the ministers establishes that the members of the Mahjoub team who accessed Mr. Mahjoub’s documents performed only a cursory and superficial review of the said documents. I find that no member of the Mahjoub team reviewed the documents belonging to Mr. Mahjoub. I also find that the gaps in the ministers’ evidence raised by Mr. Mahjoub are insufficient to warrant an adverse finding.
[124] In Canada (Information Commissioner) v. Canada (Minister of the Environment), 1999 CanLII 9120, 179 F.T.R. 25 the Federal Court [then the Federal Court Trial Division] dealt with the issue of adverse inferences in similar circumstances at paragraph 47 of its reasons:
I am not prepared to draw such an inference in these circumstances. Rule 81(1) of the Federal Court Rules, 1998 expressly permits statements of information and belief as evidence on motion. Although Ms. MacCormick did not prepare the documents in questions, as a senior official of the Privy Council Office, she is well placed to give evidence that the Privy Council Office never intended to disclose the Schedule. Moreover, there is additional evidence which strengthens the respondent's contention that the Schedule was inadvertently produced. [My emphasis.]
[125] The Federal Court of Appeal in reversing in part the trial Court’s decision did not disturb its above-noted finding (Canada (Information Commissioner) v. Canada (Minister of Environment), 2000 CanLII 15247, 187 D.L.R. (4th) 127 (F.C.A.)).
[126] In the instant case, Ms. Marquis, as Deputy Regional Director and Senior Counsel in the Toronto office of the DOJ and former counsel on the ministers’ litigation team in these proceedings, is well placed to give evidence on matters relating to the within proceedings. Given her position in the Department of Justice, she is well aware of the make up of the ministers’ litigation team in the underlying proceedings and familiar with counsel and personnel representing the client departments, CSIS and CBSA.
[127] Moreover, there is direct evidence from other members of the Mahjoub team corroborating Ms. Marquis’ evidence. All of the members of the ministers’ litigation team who did provide affidavit evidence had access to Mr. Mahjoub’s documents either in the breakout rooms or in office 916 at the DOJ. Each of these affiants confirms that they did not review Mr. Mahjoub’s documents. In the circumstances, I draw no adverse inference in respect to Ms. Marquis’ evidence. I find her evidence persuasive and give it significant weight.
[128] Four members of the team who also had access to the documents did not provide affidavits, namely, Ms. Krakowska, Ms. Lewicki, Ms. Rondeau and Ms. Goodyear. It would have been preferable had affidavits been adduced for each of these individuals. However, I find their failure to do so is not fatal in the circumstances. Ms. Lewicki, Ms. Rondeau and Ms. Goodyear, legal assistants, were involved in transporting the boxes from Mr. Mahjoub’s breakout room on July 20 and 21, 2011, to office 916. Two other legal assistants, Ms. Dean and Ms. Krakowska, boxed the materials. The evidence shows that the boxes remained closed during transportation. Consequently, I am satisfied that these three legal assistants did not review the materials and that no prejudice to Mr. Mahjoub would result from their involvement.
[129] Ms. Krakowska attended the courtroom and breakout rooms with Ms. Dean on July 15, 2011, for the purpose of packing and retrieving the boxes from the courthouse. Ms. Dean’s evidence is that Ms. Krakowska informed her she did not read any of the materials in the courtroom or the breakout rooms. Further, Ms. Marquis’ evidence states that Ms. Krakowska, as one of the legal assistants who originally boxed the materials, did not review any of Mr. Mahjoub’s documents.
[130] While it would have been preferable for Mr. Tyndale, Mr. Larouche and Ms. Krakowska to file affidavit evidence on this motion, I find that their failure to do so is not fatal to the ministers on this motion since I accept the evidence of Ms. Marquis that no member of the “Mahjoub team” reviewed opposing counsel’s materials. In my view, since no member of the team reviewed Mr. Mahjoub’s documents, it matters not that the identity of each member of the ministers’ litigation team is not revealed on the record.
[131] Mr. Mahjoub argues that since the ministers did not establish who had access to his documents, they have failed to rebut the presumption. He maintains that evidence should have been led by all persons “with an interest in the proceeding” who had access to the unlocked office. Counsel for Mr. Mahjoub acknowledged that this would not mean that every DOJ lawyer in Canada would have to file evidence.
[132] I essentially agree with public counsel’s suggestion of the proposed pool of interested individuals. In the circumstances, I find that the relevant pool of “persons with an interest in the proceeding” who would have had access to the unlocked office 916 prior to it being sealed on September 1, 2011, consists of those individuals who were members of the Mahjoub team and representatives of the departmental clients, namely counsel for CSIS and CBSA personnel. It is my view that the ministers adduced the required evidence from those individuals.
[133] The ministers’ evidence concerning access to Mr. Mahjoub’s materials by members of the Mahjoub team has been reviewed above. On the basis of that evidence, I have determined that no member of the Mahjoub team reviewed Mr. Mahjoub’s materials. I also find, on the evidence, that counsel for CSIS and CBSA personnel did not enter office 916 at the DOJ in Toronto. It follows that they did not have access to Mr. Mahjoub’s privileged materials. In the result, I find that no prejudice to Mr. Mahjoub’s fair trial rights results from office 916 remaining unlocked prior to September 1, 2011.
[134] Mr. Mahjoub raises concerns relating to the photocopying of certain documents both within and outside the DOJ, as well as concerns relating to the separation process. These concerns relate to the risk of tampering with the documents and having more people accessing Mr. Mahjoub’s privileged documents. Although it would have been preferable had no internal or outside copying of documents occurred, the evidence shows that the outside service used to copy a limited number of the larger documents was a bonded service that had been used by the DOJ on prior occasions. The evidence also establishes that the legal assistant responsible for internal copying of documents, Ms. Schneider, was tasked to ensure that sufficient copies of certain exhibits were made for the court proceeding as directed by counsel. Ms. Schneider is identified as a member of the ministers’ litigation team and her evidence is that she did not conduct a review of the documents. In the circumstances, I find that no prejudice to Mr. Mahjoub flows from the copying of his documents.
[135] Further, I find that the proceeding mandated by the October 4, 2011 Court order, led by Prothonotary Aalto, was meticulously carried out and did not, in any way, further contribute to any prejudice the taking of the documents may have caused. To be clear, on the evidence, I find that no prejudice to Mr. Mahjoub results from the separation process conducted by Prothonotary Aalto pursuant to the October 4, 2011 Court order.
[136] On the basis of the evidence adduced, I find that the ministers have rebutted the presumption of prejudice. A reasonably informed person would be satisfied, in the circumstances, that there is no real risk that Mr. Mahjoub’s privileged materials which were in the possession of the ministers will be used to his prejudice should the proceeding continue. The fairness of the trial is not in question.
(4) Does the conduct of the ministers connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process? If so, what is the appropriate remedy?
[137] Having determined that the ministers have rebutted the presumption of risk to Mr. Mahjoub’s fair trial rights if the proceedings continue, I now turn to Mr. Mahjoub’s abuse of process argument. He argues that since solicitor-client privilege is central to the administration of justice, and that the ministers had possession of his privileged information, continuing the proceeding would bring the administration of justice into disrepute. Consequently, Mr. Mahjoub contends that the Court should grant a permanent stay of proceedings on the basis of an abuse of process that falls within the residual category.
[138] Mr. Mahjoub argues that since the underlying purpose for the residual category of abuse of process, the long term, forward-looking societal interest in maintaining confidence in the justice system, is the same as that addressed by subsection 24(2) of the Charter, the Court should adopt the test used in subsection 24(2) cases. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court set out the applicable test in such cases at paragraph 71 of its decision:
A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
[139] In my view, adopting the test as laid out in Grant, above, is unnecessary in this instance. In R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566, the Supreme Court has recently provided guidance on how the courts are to deal with cases that fall within the residual category of an abuse of process. At paragraphs 41–42 of its decision the Court wrote:
Under the residual category of cases, prejudice to the accused’s interests, although relevant, is not determinative. Of course, in most cases, the accused will need to demonstrate that he or she was prejudiced by the prosecutorial conduct in some significant way to successfully make out an abuse of process claim. But prejudice under the residual category of cases is better conceptualized as an act tending to undermine society's expectations of fairness in the administration of justice. This essential balancing character of abuse of process under the residual category of cases was well captured by the words of L’Heureux-Dubé J. in R. v. Conway, [1989] 1 S.C.R. 1659. She stated the following:
Under the doctrine of abuse of process, the unfair or oppressive treatment of an appellant disentitles the Crown to carry on with the prosecution of the charge. The prosecution is set aside, not on the merits (see Jewitt, supra, at p. 148), but because it is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court. The doctrine is one of the safeguards designed to ensure “that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society” (Rothman v. The Queen, [1981] 1 S.C.R. 640, at p. 689, per Lamer J.).It acknowledges that courts must have the respect and support of the community in order that the administration of criminal justice may properly fulfill its function. Consequently, where the affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases, then the administration of justice is best served by staying the proceedings. [Emphasis in original [added by Charron J.]; p. 1667.]
The test for granting a stay of proceedings for abuse of process, regardless of whether the abuse causes prejudice to the accused’s fair trial interests or to the integrity of the justice system, is that set out in Canada (Minister of Citizenship & Immigration) v. Tobiass, [1997] 3 S.C.R. 391, and R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297. A stay of proceedings will only be appropriate when: “(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice” (Regan, at para. 54, citing O'Connor, at para. 75).
[140] At issue is whether the circumstances of the taking and co-mingling of the documents has undermined society’s expectations of fairness in the administration of justice to the point that “the carrying forward of the prosecution will offend society’s sense of justice” (Tobiass, above, at paragraph 91).
[141] Mr. Mahjoub essentially argues that the ministers’ conduct in this instance is unfair and affects the integrity of the administration of justice so as to undermine the integrity of the judicial process. He points to the following events in support of his argument:
a. the ministers seized his privileged materials;
b. the ministers co-mingled his documents with theirs;
c. the ministers failed to act on the July 15, 2011 email sent to their team indicating that all documents were in a single breakout room;
d. the ministers did not seal the eight boxes of miscellaneous documents once it was believed that some of the documents may belong to him;
e. the ministers did not initially inform him about the photocopying of some of his documents;
f. the ministers did not initially inform him about movers entering office 916 with boxes belonging to Amy Lambiris.
[142] The circumstances that led to the taking and co-mingling of Mr. Mahjoub’s documents have been canvassed earlier in these reasons. Based on the evidentiary record, I have found that the conduct of the ministers, although negligent, was unintentional and does not affect the fairness of the underlying proceeding.
[143] As the Supreme Court stated in Nixon, above, prejudice as it is understood under the residual category of cases concerns conduct that undermines society’s expectations of fairness in the administration of justice. The privileges in play on this motion, in particular, confidences shared between solicitor and client, are central to the administration of justice in an adversarial system. The public has an interest in maintaining the integrity of the solicitor-client relationship. The physical possession of privileged documents by the opposing party is a serious matter that in some circumstances could have a devastating long-term impact on societal confidence in the administration of justice. Notwithstanding my determination that the ministers’ conduct did not impact on the fairness of the proceeding or prejudice Mr. Mahjoub, the appearance of fairness in the judicial process is of utmost importance. In my view, the circumstances here lead me to conclude the appearance of fairness has been compromised. Consequently, I find there to be an abuse of process in the residual category.
[144] I am of the view that a remedy is warranted to ensure that the ministers’ conduct does not undermine society’s expectation in the administration of justice. In the circumstances, this is not the clearest of cases that would warrant a permanent stay of proceedings. Rather, a lesser remedy, to be discussed below, is available to ensure that any affront to the appearance of fairness will not be manifested, perpetuated or aggravated through the conduct of the proceedings or by their outcome.
[145] As found by the Supreme Court in Nixon, above, an essential balancing exercise is required where an abuse of process is found in the residual category of cases. This balancing exercise involves weighing the interests that would be served in granting a stay of proceedings against society’s interest in having a final decision on the merits. In balancing these interests, I have considered the following factors, namely: the particulars of the case and the nature of the proceedings, Mr. Mahjoub’s circumstances, the seriousness of the ministers’ conduct and its impact on the integrity of the administration of justice, and society’s interest in the adjudication of the case on its merits. For the most part, these factors have been canvassed earlier in these reasons. There is an important societal interest in having such cases decided on the merits, both for the named individual who seeks to have his or her name cleared and for the ministers who are obligated to protect Canada’s national security (O’Connor, above, at paragraph 81; Al Yamani v. Canada (Minister of Citizenship and Immigration), 2003 FCA 482; Harkat (Re), 2010 FC 1243, 224 C.R.R. (2d) 167, revd on other grounds 2012 FCA 122, [2012] 3 F.C.R. 635).
[146] Upon considering the record in this instance, I find that the affront to fair play and decency caused by the ministers’ taking and co-mingling of Mr. Mahjoub’s privileged documents is not disproportionate to the societal interest of having the underlying proceeding continue and be ultimately decided on the merits.
[147] In the circumstances, in order to dispel any lingering perception that counsel for the ministers may have reviewed privileged materials belonging to Mr. Mahjoub and ensure that public confidence in the system of justice is maintained, I will consider permanently removing from the file certain members of the Mahjoub team. In doing so, I am guided by the six non-exhaustive factors to be considered in determining whether solicitors should be removed suggested by the Supreme Court in Celanese, above, and set out at paragraph 81 above. I will briefly review each of these factors.
[148] As to the first factor, I have reviewed in significant detail the ministers’ taking and co-mingling of Mr. Mahjoub’s documents earlier in these reasons. Suffice it to say that the documents came into the ministers’ possession as a result of an unintentional and negligent mistake by members of the Mahjoub team.
[149] As to the second factor, upon recognizing that they were in possession of some of Mr. Mahjoub’s documents, the ministers set aside eight boxes of miscellaneous documents believed to contain some of Mr. Mahjoub’s materials. The ministers labeled these boxes “To be reviewed by Public counsel”. However, office 916 was not sealed at this point. As the ministers subsequently discovered on September 1, 2011, documents belonging to Mr. Mahjoub, other than those in the eight boxes, were also found in office 916.
[150] As to the third factor, my findings on the extent of the review of the privileged material are canvassed earlier in these reasons. While I have determined that the members of the Mahjoub team did not conduct a review of the materials, certain members of the team nevertheless had access to and handled the materials. Ms. Schneider, tasked with organizing the materials, spent over a week sorting documents. Other members of the Mahjoub team, including Ms. Stewart Guthrie, Mr. Engel, Ms. Dean and Ms. Espejo-Clarke, also handled, looked at and/or flipped through materials that belonged to Mr. Mahjoub, which likely included privileged documents.
[151] With respect to the fourth factor, I am satisfied, based on the Report of Prothonotary Aalto, that prejudicial privileged materials belonging to Mr. Mahjoub were in the possession of the ministers.
[152] As to the fifth factor, there remained only four witnesses to be called by Mr. Mahjoub when the taking of the documents occurred. Since lead counsel would remain on the file, there is less concern should certain counsel on the Mahjoub team be removed permanently at this late stage of the proceedings.
[153] As to the sixth factor, I have already determined that the ethical walls put in place and precautionary measures taken by the ministers were appropriate and effective from the time they were implemented. No such measures were in place from July 20, 2011, until September 1, 2011.
[154] Upon considering the above factors, in the interest of ensuring public confidence in the administration of justice, I will order that the following members of the Mahjoub team who accessed Mr. Mahjoub’s documents be removed permanently from the file and be barred from having access to any of the materials or information relating to the file. Further, they will be ordered not to discuss any information relating to the file with anyone or communicate such information to anyone:
1. Ms. Stewart Guthrie;
2. Ms. Krakowska;
3. Ms. Rondeau;
4. Ms. Goodyear;
5. Ms. Lewicki;
6. Ms. Schneider;
7. Ms. Kaneira;
8. Ms. Martins;
9. Mr. Engel;
10. Ms. Dean; and
11. Ms. Espejo-Clarke.
[155] In my view, permanently removing these members of the Mahjoub team constitutes a lesser remedy that is reasonably capable of removing the prejudice found to arise by reason of the abuse of process in the residual category. A person reasonably informed of the totality of the circumstances would be satisfied that the proceedings could continue without a loss of confidence in the integrity of the administration of justice.
SECTION 8 CHARTER VIOLATION
[156] In the circumstances, I am satisfied that the taking by the ministers of Mr. Mahjoub’s documents constitutes a “seizure” under section 8 of the Charter.
[157] The impact of the seizure of Mr. Mahjoub’s documents by the ministers has been canvassed in the above reasons. In the result, I have determined that the permanent stay of proceedings sought by Mr. Mahjoub is not appropriate in the circumstances. As discussed above a lesser remedy was available and will be provided. Nonetheless, I am of the view that it will be appropriate for the Court to consider the violation of Mr. Mahjoub’s section 8 Charter rights and the significant delay caused thereby as factors in Mr. Mahjoub’s underlying motion for abuse of process.
ORDER
THIS COURT ORDERS that:
1. Mr. Mahjoub’s motion is granted in part.
2. The following members of the ministers’ litigation team are permanently removed from the file, barred from working on the proceedings or having access to any of the materials or information relating to the file, and ordered not to discuss any information relating to the file with anyone or communicate such information to anyone:
1. Ms. Stewart Guthrie;
2. Ms. Krakowska;
3. Ms. Rondeau;
4. Ms. Goodyear;
5. Ms. Lewicki;
6. Ms. Schneider;
7. Ms. Kaneira;
8. Ms. Martins;
9. Mr. Engel;
10. Ms. Dean; and
11. Ms. Espejo-Clarke.
3. All other relief sought on the motion is denied.