R v Amer, 2017 ABQB 728

Court of Queen’s Bench of Alberta Citation: R v Amer, 2017 ABQB 728 Date: 20171129 Docket: 160544938Q1, 160530259Q1 Registry: Calgary Between: 160544938Q1 Her Majesty the Queen Crown - and - Talal Amer, Abdul Rahman Ali Amer, Bader Eddin Amer, Barakat Amer and Tarek Abdul El-Rafie Defendants

And Between: 160530259Q1 Her Majesty the Queen Crown - and - Bader Eddin Amer and Tarek Abdul El-Rafie Defendants _______________________________________________________ Decisio n Regarding Application to Disclose Information Subject to Public Interest Privilege of the Honourable Mr. Justice G.H. Poelman _______________________________________________________ I. Introduction [ 1 ] On May 12, 2017, two of the accused in these case-managed proceedings, Mr. El-Rafie and Mr.

Barakat Amer, applied for “disclosure of certain enumerated items relating to the development of any Mobile Device Identifiers (“MDI,” also known as Cell Site Simulator, IMSI catcher, “Stingray,” etc.) as part of Operation Hybrid.” The Crown responded by seeking

summary dismissal of the application without allowing the defence to call evidence in support of its motion. I denied the Crown’s application for

summary dismissal, stating in part of my oral ruling as follows: I will allow evidence, but only going to the narrow issue of what a negative result might mean in the context of the incidents identified in Sergeant Campbell’s will-state. That will, of course, involve describing exactly what unit was used, what features were activated, and the circumstances in the area that might have affected results. [ 2 ] Following my ruling, the Crown objected to disclosure of the information by certificate under

section 37 of the Canada Evidence Act , R.S.C. 1985, c. C-5. It ultimately disclosed much of the information requested but maintained its claim of privilege to the make, model and software details of the Calgary Police Service device. [ 3 ] Following an in camera hearing, I upheld the Crown’s assertion that disclosure of the information would encroach upon police investigative technique privilege, by decision of August 15, 2017.

Since then, redacted versions of my decision, an affidavit relied upon by the Crown in the in camera hearing, and the transcript of the in camera hearing were released to defence counsel. [ 4 ] Counsel for the applicants Mr. El-Rafie and Mr. Barakat Amer now seek disclosure of the information which I found to be privileged, pursuant to the provisions of section 37(5) of the Canada Evidence Act . No additional materials were filed for this application.

II. Test for Disclosure of Privileged Information [5] The phrasing of subsection (5) is awkward, and thus I set it out in full:

(5) If the court having jurisdiction to hear the application concludes that the disclosure of the information to which the objection wasmade under subsection (1) would encroach upon a specified public interest, but that the public interest in disclosure outweighs inimportance the specified public interest, the court may, by order, after considering both the public interest in disclosure and the form ofand conditions to disclosure that are most likely to limit any encroachment upon the specified public interest resulting from disclosure,authorize the disclosure, subject to any conditions that the court considers appropriate, of all of the information, a part or

summary of theinformation, or a written admission of facts relating to the information. [6] In my view, the

section means the following:

a) It applies where the court concludes that disclosure of the requested information would encroach upon a specified public interest(which, to avoid confusion, I will refer to as “investigative privilege”). That finding was made in my August 15, 2017 decision.

b) The court must next consider whether the public interest in disclosure outweighs in importance the investigative privilege.

c) If the public interest in disclosure outweighs in importance the investigative privilege, the court may order disclosure of theprivileged information after considering what form and conditions of disclosure are appropriate. III. Application [7] Section 37(5) requires a weighing of competing public interests: here, investigative privilege and the public interest indisclosure which, for most purposes, equates to an accused’s right to disclosure in aid of being able to make full answer and defence tocharges.

Such a weighing requires consideration of the importance of the specific interests affected in the individual case underconsideration. [8] The applicants, in their able and concise submissions, identify six reasons supporting their positions that the informationshould be disclosed, notwithstanding the existence of an investigative privilege: 1. The applicants are seeking “first-party material” to which they have a constitutional right as set out in the seminal case of R vStinchcombe, (SCC), [1991] 3 S.C.R. 326 and its progeny. 2.

The information requested is covered by a qualified privilege, not a class privilege. 3. Partial disclosure or conditional disclosure is possible. 4. The CPS relied heavily on the views of the Royal Canadian Mounted Police in determining whether it should claim privilege overthe requested information. 5. CPS does not have a non-disclosure agreement with the supplier and manufacturer, an indication that the supplier and manufacturerdo not consider confidentiality necessary to maintain the device’s value. 6.

Evidence from the in camera hearing only raises a possibility that disclosure of the information would negatively affect the abilityof CPS to fulfill its function. [9] With respect, I do not find these arguments persuasive. Stinchcombe does not override section 37(5) of the Canada EvidenceAct in giving an accused presumptive disclosure rights to privileged information.

Further, the distinction between qualified or classprivilege speaks more to the analysis in determining whether privilege applies than to protection of the privilege once it is determined. [10] While section 37(5) wisely allows for different levels of disclosure, in my view that analysis is proper only if it is determinedthat the public interest in disclosure outweighs the investigative privilege. Determining what form the disclosure should take is a matterof shaping the relief, not determining entitlement to relief.

Also relevant in the weighing exercise is that the Crown voluntarily disclosedmuch of the represented information after its initial privilege-based objection. [11] It is true that Sgt. Campbell’s evidence indicates that CPS obtained and gave significant weight to the views of the RCMP onthe importance of maintaining confidentiality over information respecting the MDI device.

However, as he also made clear, the twoagencies worked cooperatively and CPS merely only wanted to take the RCMP’s position into account in determining how to proceed.Furthermore, the claim of privilege is not made by CPS but by the Attorney General of Alberta pursuant to a certificate under

section 37. [12] It is of limited relevance that the manufacturer and supplier appear not to have imposed a non-disclosure agreement. That is amatter going to their perceived commercial interests and the contractual basis upon which the device was purchased.

The informationsought to be protected here is information within the possession of CPS, and part of that information is the identification of the source ofits device. [13] Finally, in my August 15, 2017 decision, I determined that requiring a higher level of evidence on whether current counter-surveillance products could adversely affect use of CPS’s device would place too heavy an onus for establishing the investigativeprivilege claim.

Similar reasoning applies here, subject to compelling countervailing arguments in support of disclosure. [14] The weakest part of the applicants’ position is that they have been unable to show any meaningful basis for their concern thatthe information is material to the making of full answer and defence. Paragraphs 24 and 25 of my earlier decision explain why MDI

results for Mr. El-Rafie and Mr. Amer were not meaningful: Mr. El-Rafie stayed in a certain area of Calgary, thus precluding use of the “subtraction analysis.” [ 15 ] CPS was only able to deploy the device at one location for Mr. Amer, and thus likewise could not perform the subtraction analysis. Paragraphs 27 and 28 of my decision further explain, from the evidence, why there are many reasons deployment could yield no results even though surveillance might indicate targets were in the area. [ 16 ] Thus, even in the best of conditions for deployment, the results respecting Mr. El-Rafie and Mr.

Amer would have been negative because insufficient data were generated for the analysis. Further, even if more data were generated, there were a host of reasons why a “false negative” might have been generated. [ 17 ] This is not a case, as was R v Mirarchi , 2015 QCCS 6628 , where the Crown heavily relied on the results of MDI deployment to the extent it would have no case without the resulting information. Here, the Crown has stated that use of the MDI did not obtain any evidence.

Further, as I explained earlier, there are reasons why the absence of such evidence says nothing definitive or meaningful regarding the applicants. [ 18 ] Thus, the public interest in disclosure of what I have found to be information governed by investigative privilege is minimal, while the reasons favouring protecting the privileged material are strong, as set out in my August 15, 2017 decision. In weighing the competing public interests, I conclude the investigation privilege prevails. [ 19 ] Therefore, the application for disclosure of the privileged information is dismissed.

Heard on the 14 th day of November, 2017. Dated at the City of Calgary, Alberta this 29 th day of November, 2017. G.H. Poelman J.C.Q.B.A. Appearances: Brian Holtby, Q.C. for the Crown Anil Kapoor Amicus Curiae Clayton Rice for Barakat Amer Kelsey Sitar for Tarek Abdul El-Rafie S.E. Rankin (Agent for G. Wolch) for Abdul Amer