R v Borhot, 2023 ABKB 559

Court of King’s Bench of Alberta Citation: R v Borhot, 2023 ABKB 559 Date: 20230724 Docket: 200970341Q1 Registry: Calgary Between: His Majesty the King Crown - and - Jamal Taan Borhot Defendant _______________________________________________________ voir dire Decision of the Honourable Justice N.F. Dilts _______________________________________________________ This is a written version of the oral decision delivered July 24, 2023. This written version is subject to the Restricted Court Access Order issued June 5, 2023.

I have edited this written version to add citations and headings, to ensure proper punctuation, spelling and grammar. I have not supplemented my oral reasons. The oral decision remains the official ruling of the Court. Introduction [ 1 ] On September 24, 2020, Mr. Borhot was charged with three counts of participating in the activities of a terrorist group contrary to s. 83.18(1) of the Criminal Code , RSC 1985, c C-46 ( Criminal Code ) . A direct indictment was preferred by the Crown on February 4, 2021. Mr.

Borhot is alleged to have traveled to Syria between May 9, 2013 and April 8, 2014 for the purpose of enhancing the ability of a terrorist group to carry out terrorist activities. [ 2 ] Mr. Borhot seeks records from the Canadian Security Intelligence Service (CSIS) relating to its investigation into Mr. Borhot’s activities in Syria. CSIS is Canada’s civilian security intelligence agency whose mandate is to collect and analyze information from multiple sources for the purpose of advising the Canadian Government on matters relating to national security.

CSIS members are not police officers and CSIS is not mandated to gather evidence for use in criminal prosecutions. [ 3 ] The CSIS records Mr. Borhot seeks fall into three categories: 1) potential witness records, including interview notes, records, and recordings of interviews of potential witnesses, including records as to whether any assurances were made to witnesses that could have influenced the information they provided to CSIS or the

RCMP; 2) CSIS human source information, including human source credibility assessments, incentives provided by CSIS to any humansources, and records relating to CSIS human sources; including CSIS reliability assessments [REDACTED]; and 3) the affidavit in support of and the warrant issued under s. 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23(CSIS Act) which authorized CSIS to intercept conversations in Mr. Borhot’s home. [4] The parties all agree that CSIS is a third party to the criminal prosecution of Mr. Borhot and has no duty to providedisclosure to Mr. Borhot.

As such, the production and/or disclosure of CSIS records is subject to the third party records regime set out inR v O’Connor, (SCC), [1995] 4 SCR 411 and R v McNeil, 2009 SCC 3. Background [5] The charges against Mr. Borhot arose out of a seven-year investigation by the RCMP into Mr. Borhot’s alleged criminalactivity. The impetus for the RCMP investigation, known as Project Saddle II, was a call made to the Calgary Police Service in March2013 by a friend of Mr. Borhot’s mother who reported that Mr. Borhot wanted to “go jihad” and travel to Syria.

Project Saddle IIinvolved interviews by the RCMP of several potential witnesses, including friends, family and other acquaintances of Mr. Borhot,numerous judicial authorizations to gather evidence about Mr. Borhot’s activities in the Middle East between May 2013 and April 2014,and RCMP undercover operations and wiretapping. [6] At the same time that the RCMP was investigating Mr. Borhot’s alleged criminal activities, CSIS was conducting anintelligence investigation that included inquiries into Mr. Borhot’s activities.

As part of its investigation into matters relating to Mr.Borhot’s alleged travel to Syria, CSIS obtained a warrant under s. 21 of the CSIS Act (the CSIS Act warrant) to install wiretap interceptdevices in Mr. Borhot’s residence.

Section 21 of the CSIS Act authorizes the Director or the Director’s designate to make an applicationfor a warrant where they believe on reasonable grounds that a warrant is required to enable CSIS to investigate a threat to nationalsecurity, whether within or outside of Canada, or to collect information or intelligence relating to the capabilities, intentions or activitiesof any foreign state, group, or person (as long as that person is not a Canadian citizen or permanent resident). [7] As part of Project Saddle II, the RCMP obtained two judicial authorizations under which it was authorized to interceptcommunications in Mr.

Borhot’s residence. The first authorization, PA 1881, was issued March 3, 2020. After obtaining PA 1881,members of the RCMP investigative team learned that CSIS already had intercept devices installed in Mr. Borhot’s home (the CSIS-installed intercept devices). On March 13, 2020, CSIS transferred the CSIS-installed intercept devices to the RCMP. On March 18, 2020,some of the CSIS-installed intercept devices were activated by the RCMP.

These CSIS-installed intercept devices remained activated bythe RCMP until March 20, 2020 when a senior RCMP official ordered that the intercepts cease until the issuing Justice was notified thatthe intercept devices in Mr. Borhot’s residence were shared from a separate agency. [8] On March 24, 2020, CSIS issued an Advisory Letter to the RCMP for use by the RCMP in its criminal investigation orprosecution of Mr. Borhot (the CSIS Advisory Letter).

At that time, a CSIS Advisory Letter was the formal process by which CSISprovided information to the RCMP for use by the RCMP to obtain search warrants or authorizations for electronic surveillance, or foruse in court. In the CSIS Advisory Letter, CSIS disclosed the following information: On March 13, 2020, [CSIS] transferred to the RCMP intercept capabilities that had previously been installed at … [Mr. Borhot’sresidence]. These intercept capabilities were installed pursuant to warrants issued by the Federal Court under

section 21 of the CanadianSecurity Intelligence Service Act, prior to the RCMP obtaining authorizations. [9] On March 30, 2020, the RCMP affiant swore a further affidavit in support of a second authorization, PA 1882. The affidavitfor PA 1882 provided additional confidential information to the authorizing Justice, including disclosure regarding the RCMP’s use ofthe CSIS-installed intercept devices.

The affidavit in support of PA 1882 included the following information: 1) On March 11, 2020, the RCMP affiant learned from the RCMP Primary Investigator and the RCMP Team Commander forProject Saddle II that there “may be intercept capabilities from another agency capable of intercepting communications at … [Mr.Borhot’s residence].” 2) On March 11, 2020, the affiant learned from the Program Manager of the Special Investigation

Section of the RCMP about theexistence of the CSIS-installed intercept devices; the RCMP Program Manager learned of the existence of the CSIS-installed interceptdevices on March 9, 2020. 3) On March 13, 2020, the RCMP affiant was advised by the RCMP Primary Investigator and the RCMP Team Commander thatthey made the decision to use the CSIS-installed intercept devices to facilitate the interception of communications in Mr. Borhot’sresidence.

Their decision to do so was based on several factors including the limited time period in which the undercover operatorremained available to Project Saddle II, the COVID-19 pandemic, and imminent school closures. At the time, Mr.

Borhot was a studentat SAIT; SAIT classes were cancelled as of Monday March 16, 2020. 4) On March 18, 2020, the RCMP activated the CSIS-installed intercept devices; the CSIS-installed intercept devices were shutdown on March 20, 2020; 5) On March 24, 2020, the RCMP received the CSIS Advisory Letter with the authority to provide the information contained in thatletter to the authorizing Justice. [10] The RCMP affiant confirmed that should the authorizing Justice grant the application for PA 1882, the RCMP intended torely on the CSIS-installed intercept devices to facilitate the interception of communications at Mr.

Borhot’s residence. PA 1882 was

issued on April 2, 2020. [11] Other than what was disclosed in the CSIS Advisory Letter and the additional confidential information included in theaffidavit in support of PA 1882, the RCMP’s reasonable and probable grounds for obtaining PA 1881 and 1882 was derived from itsProject Saddle II investigation. Legal Framework [12] The third party records regime recognizes that third parties may possess records that are directly relevant to a material issue ina criminal proceeding or that relate to the competence of a witness to testify. [13] The legal framework to obtain third party records is not disputed.

Determining whether an accused is entitled to disclosure ofrecords in the hands of a third party proceeds in two stages. At stage one, the accused bears the burden of establishing that the recordssought are likely relevant to a material issue at trial or to the competence of a witness to testify: R v Gubbins, 2018 SCC 44 at para 26.The likely relevance threshold is intended to be material to preclude fishing expeditions: Gubbins at paras 28-29.

At the same time, theburden is not onerous, recognizing that an accused cannot be expected to know what the third party records contain: Gubbins at para 28.Requiring an accused to meet the threshold of likely relevance operates as a screening mechanism to prevent “speculative, fanciful,disruptive, unmeritorious, obstructive and time consuming requests for production”: Gubbins at para 26, quoting O’Connor at para 24. [14] To obtain disclosure of third party records, an accused must establish a basis for disclosure in one of two ways:

i) bydemonstrating how the records sought are likely relevant to an issue at trial or, ii) where the accused seeks a record believing it to belikely relevant to the credibility of a witness, by pointing to some case specific information to justify that assertion: R v Batte (2000), (ON CA), 49 OR (3d) 321 (CA) at para 75.

Regarding the former, the Court will consider whether there is evidencethat the records have direct relevance to the question of whether the accused committed the unlawful acts alleged against them, orwhether the records would be admissible as a free-standing piece of evidence going to the question of whether the unlawful conductoccurred: Batte at para 68. Regarding the latter, the records must contain information not already available to the defence or they musthave some impeachment value: Batte at para 72.

In either instance, an accused must identify how the content of the record is likely to beprobative to a fact in issue or to the credibility of a witness. [15] If the accused establishes that the records are likely relevant, the records are produced for judicial review to allow the Courtto assess their actual relevance. At this second stage, the Court engages in a balancing exercise, considering competing interests relatingto the disclosure of the records, weighing the right to full answer and defence against other societal considerations: Gubbins at para 27,citing McNeil at para 39.

Potential Witness Records Defence Position [16] Mr. Borhot seeks what the parties call the “potential witness records.” Specifically, Mr. Borhot seeks “all interview notes,records and recordings of interviews of any potential witness in this matter in the possession of CSIS” (paragraph 1B of Mr. Borhot’sapplication). He specifies [REDACTED] witnesses believed to have been interviewed by CSIS. Mr. Borhot seeks potential witnessrecords relating to those [REDACTED] witnesses and any other potential witness records of further unnamed witnesses (the interviewrecords).

He also seeks witness credibility assessments on any of those witnesses, and CSIS reliability assessments [REDACTED]. Heargues that these records have obvious relevance as they relate to the very facts in issue at trial. He also argues that the potential witnessrecords have likely relevance to the credibility of the witnesses as prior interviews can be used to impeach a witness, or to aid a witness’recollection. Crown Position [17] The Crown opposes the production of the potential witness records and argues that Mr. Borhot has failed to demonstrate thelikely relevance of the potential witness records.

The Crown submits that the mere fact that there were parallel investigations by twofederal agencies does not establish the necessary foundation for production of the potential witness records. It submits that while thepotential witness records may have the appearance of relevance, witness interviews were undertaken by CSIS for a different purpose andsubject to different rules of collection. The Crown submits that Mr. Borhot has not established a sufficient connection between the CSISand RCMP investigations to render the potential witness records relevant to this criminal prosecution.

Rather, it says there is ampleevidence that a firm division was maintained by the two agencies to protect their respective mandates. [18] In any event, the Crown maintains that the RCMP interviews of the named potential witnesses show that many of them haveno relevant information to the criminal prosecution with the result that the reasonable inference is that the CSIS interviews of the samewitnesses will also not be relevant.

Moreover, the Crown argues that there is no evidence that the memory of any of the named witnesseshas been confabulated, amplified, or otherwise altered as a result of being interviewed by two investigating agencies. Absent some casespecific justification for production, the Crown submits that Mr. Borhot’s application amounts to a fishing expedition. CSIS Position [19] Counsel for CSIS characterizes Mr. Borhot’s application for the potential witness records as akin to a discovery, suggestingthat Mr.

Borhot is improperly using the third party records regime to determine whether persons interviewed by CSIS have relevant

evidence and should be called as witnesses at Mr. Borhot’s criminal trial. CSIS argues that the mere fact that CSIS members interviewedthe same potential witnesses as the RCMP cannot be enough to entitle Mr. Borhot to production of the potential witness records and thatto so order would render the likely relevance threshold too low. CSIS maintains that Mr.

Borhot has not articulated a purpose for thepotential witness records by demonstrating how the CSIS interviews engage issues of witness competence or how they relate to amaterial issue at trial. [20] CSIS directed me to R v Ahmad, [2009] OJ No 6153, (ONSC) as support for the suggestion that the factof parallel CSIS/RCMP investigations does not render CSIS records likely relevant even if the two agencies were talking to the samepeople about the same things. In my view, the Ahmad case does not stand for the principle for which it was offered.

In Ahmad, after anextensive analysis of the role and mandate of CSIS and the RCMP generally and in the context of the specific investigation in that case,the Court concluded that CSIS and the RCMP maintained separate and distinct functions and investigations with the result that CSIS wasa third party record holder.

Notwithstanding that conclusion, the Court noted that all parties agreed that CSIS was in possession of someinformation that was likely relevant to issues in the case, including the grounds for an RCMP search warrant, and information relating totwo CSIS human sources who became police agents, including their credibility and reliability, and whether they engaged as an agentprovocateur during the investigation. CSIS records likely relevant to issues in that case were voluntarily produced.

Analysis [21] The very nature of the third party records regime is to consider the relevance of records created in a very differentenvironment than that of an investigating police agency.

Almost exclusively, the Court is asked to evaluate the relevance of third partyrecords that were created for a different purpose, with different rules or no rules as to their collection, and with a different intended use.In this case, the fact that potential witness interviews were undertaken by CSIS for a different purpose and with a different objective thanthe RCMP does not preclude their relevance. [22] Whether the potential witness records are likely relevant to Mr.

Borhot’s criminal liability requires consideration of thesubject matter of the interviews, their concurrent timing to the RCMP investigation, and the fact that they were obtained by aninvestigating agency before charges were laid.

Likely relevance is engaged where the right to make full answer and defence is implicatedby the information contained in the records: O’Connor at para 21. “Likely relevance” is a lower threshold than “true relevance,” and hasa “wide and generous connotation” that “includes information in respect of which there is a reasonable possibility that it may assist theaccused in the exercise of the right to make full answer and defence”: Gubbins at para 27.

In this case, likely relevance may attach torecords by considering the topic, timing, and creation of the record. [23] The evidence on this application makes clear that both the RCMP and CSIS conducted interviews of some of the samepotential witnesses, although for different investigative purposes. It is not only reasonable but expected that the CSIS interviews ofpotential witnesses covered the same ground as the RCMP interviews: discussing the facts underlying Mr.

Borhot’s alleged extremism,travel to Syria, and participation in the activities of a terrorist organization. [24] I acknowledge that CSIS members are not police officers. I am similarly confident that they are sophisticated investigators.While their mandate is not criminal prosecution, their inquiries in the interests of national security related to Mr. Borhot’s alleged travelto and activities in Syria.

The CSIS interviews will not have been conducted with the rigor required for evidence collection, nor with aview to their use in criminal proceedings; however, they are similarly not likely an informal or imprecise third party record of anunrecorded conversation. [25] The characteristics and context of the CSIS interviews make the interview records Mr. Borhot seeks likely probative of factsin issue in this prosecution. Given their topic and timing, there is a reasonable likelihood that the CSIS interviews will containinformation directly relating to the guilt or innocence of Mr.

Borhot, including whether he espoused ISIS ideology, whether he enteredSyria with the intention to enhance the ability of a terrorist group to carry out a terrorist activity, and whether he actively participated inthe activities of a terrorist organization. I agree with Mr. Borhot that likely relevance is not determined by whether the Crown proposesto rely on the particular witness at trial, but by the nature of the record and its probative value to the guilt or innocence of the accused orto the credibility of a witness at trial.

There is sufficient evidence to satisfy me that the interview records may be relevant to proof of therequired mens rea and actus reus of the offence with which Mr. Borhot is charged. [26] Given my conclusion, I am satisfied that Mr. Borhot need not demonstrate that the CSIS interviews resulted in some taintingof a potential witness’ memory or that they expose an inconsistency from other disclosed statements. That would be an unrealisticthreshold for Mr. Borhot to overcome at this stage of the third party records process.

It is reasonable to infer that the CSIS interviewrecords concern “the unfolding of events which form the subject matter of the proceedings”: R v Jackson, 2015 ONCA 832 at para 129.On that basis they are likely relevant. I am satisfied that the CSIS interview records relate directly to Mr. Borhot’s right to make fullanswer and defence and that there are legitimate defence interests engaged by the CSIS interview records. The CSIS interview recordslikely capture first-hand knowledge regarding Mr. Borhot’s activities that form the subject of the criminal charges.

Moreover, the CSISinterview records were generated in an investigative context where honesty is requested, enhancing their potential value. I am satisfiedthat Mr. Borhot has demonstrated that the witness interviews of the [REDACTED] named persons, so far as they relate to Mr. Borhot,are likely relevant to the question of his guilt or innocence and ought to be produced to the Court for judicial review. [27] The potential witness records reflected in paragraph 1B of Mr. Borhot’s application relating to the [REDACTED] namedpotential witnesses identified therein and relating only to Mr.

Borhot are therefore ordered to be produced to determine whetherdisclosure to Mr. Borhot is warranted. In so ordering, I recognize that there may be special handling requirements relating to the recordsand/or that an application may be brought under s. 38 of the Canada Evidence Act, RSC 1985, c C-5 (CEA) or s. 18.1 of the CSIS Actwith respect to the records. [28] With respect to the information sought in paragraphs 1E (CSIS credibility assessments) and 1F (information regarding CSISnegotiations and assurances to potential witnesses) of Mr. Borhot’s application as they relate to potential witnesses, Mr.

Borhot has notestablished that such records exist, nor has he provided adequate justification for their production for judicial review if they do. Where arecord is sought on the basis that it is relevant to the competence of a witness to testify, a mere assertion as to the relevance of the record

is not enough: Batte at para 75 . Mr. Borhot’s request for records in paragraphs 1E and 1F of his application as they relate to potential witnesses is therefore denied. CSIS Human Source Information [ 29 ] The concept of a “human source” is a creation of legislation under the CSIS Act . In s. 2 of the CSIS Act , “human source” is defined as “an individual who, after having received a promise of confidentiality, has provided, provides or is likely to provide information to [CSIS].” [ 30 ]

Section 18.1 of the CSIS Act creates a statutory class of privilege designed to ensure that the identity of a human source is kept confidential to protect the life and security of the human source and to encourage individuals to provide information to CSIS. The

section contains a statutory prohibition on the disclosure of the identity of a human source or any information from which the identity of a human source could be inferred in a proceeding before a court. In that way, the

section protects both the person and any records from which the identity of the human source could be inferred.

There are limited statutory exceptions to this broad prohibition: the first exception arises where both the human source and the Director consent to the disclosure of the information; the second is where disclosure of the identity of the human source is essential to establish the innocence of an accused, known as “innocence at stake.” [ 31 ] While McNeil at para 27 provides that a party’s claim of privilege over records should be addressed before the court undertakes the two stage test for production of third party records, in the present case the parties agreed that to resolve the privilege claim first would cause substantial delay as CSIS would necessarily assert national security privilege over all of the requested documents pursuant to s. 38 of the CEA .

The parties therefore agreed that I would determine the likely relevance of the CSIS records prior to any privilege being asserted. Defence Position [ 32 ] Mr. Borhot seeks “all rough notes, preliminary drafts, drawings, diagrams, photographs, calculations, audio or video recordings, electronically stored information or other material made by an employee which was to be used in the preparation of a record of CSIS pertaining to a real or possible human source connected to this prosecution” (paragraph 1A).

He further seeks “psychological assessments of human sources (if any) connected to this prosecution” (paragraph 1C) , “financial payments or other promised and/or delivered benefits by CSIS or other agency to human sources connected to this prosecution” (paragraph 1D), and “source [which I take to mean “human source”] credibility assessments connected to this prosecution and any credibility assessments conducted on the source from prior occasions” (paragraph 1E). [ 33 ] Mr.

Borhot seeks the production of information regarding the existence and nature of any incentives provided by CSIS to potential witnesses, or human source contact with any potential witnesses. He argues that CSIS had human sources in play prior to and during the RCMP investigation into Mr. Borhot’s activities, and that those human sources actively participated in gathering information that forms part of the RCMP investigation.

He alleges that there is sufficient information in the first party disclosure and in the Affidavit of Michael Saunders sworn February 16, 2023 (the Saunders Affidavit) to conclude that CSIS caused people to take certain actions to inquire of Mr. Borhot, and that by doing so, those people either themselves were influenced by CSIS or had contact with other witnesses in ways that could have impacted the evidence of those witnesses. [REDACTED] [ 34 ] Mr.

Borhot argues that he is entitled to human source information in the possession of CSIS and particularly all records of CSIS interactions with human sources that may have had an impact on a witness. He submits that the RCMP and CSIS investigations were connected, pointing to certain RCMP witness interviews in which a witness mentions CSIS involvement, [REDACTED]. He also points to what he says is evidence of agency cooperation in deconfliction activities and otherwise.

Without access to the CSIS records regarding human sources, he argues there is no way to determine the impact CSIS had on a potential witness’ recollection or motivations for acting. [ 35 ] Mr. Borhot submits that an order should be made for the production of the CSIS records regarding human sources following which counsel for CSIS can make an application under s. 18.1 of the CSIS Act or s. 38 of the CEA for a determination of whether CSIS can assert a valid claim of privilege over the records.

He relies in part on R v Nuttall , 2016 BCSC 28 and R v Peshdary , 2017 ONSC 1225 as examples of where the Court has ordered production of CSIS human source materials. CSIS Position [ 36 ] CSIS maintains that the statutory privilege in s. 18.1 of the CSIS Act precludes disclosure of the human source information and is an absolute response to Mr. Borhot’s application. Further, CSIS submits that the innocence at stake exception is not available to Mr. Borhot on the facts of the case, pointing out that Mr.

Borhot made a similar argument before the Federal Court when seeking the production of certain first party records. In Borhot v Attorney General of Canada and the Public Prosecution Service of Canada , 2023 FC 772 , the Federal Court concluded at paras 19 to 21 that: The Court agrees that Mr. Borhot has not provided a sufficient factual basis to support his

Section 18.1 Application. Counsel for Mr. Borhot speculates that several possible witnesses are human sources because they may have spoken with CSIS at some point. This speculation overlooks that the CSIS Act sets out a very specific definition of human source at

section 2. He also speculates that the memory of these persons may be “confabulated”. … … In any event, Mr. Borhot has not established that the information he seeks is essential to establish his innocence. Analysis

[ 37 ] As with all third party records applications, Mr. Borhot must establish the likely relevance of the records sought by reference to case specific information. [ 38 ] Leaving aside the question of whether s. 38 of the CEA or s. 18.1 of the CSIS Act precludes production of the human source records, when I consider whether Mr.

Borhot has met the threshold of likely relevance required for the production of the human source records sought, I conclude that he has not. [ 39 ] In both Peshdary and Nuttall , the Court considered whether the evidence on the application established a connection between CSIS and the potential witness, and whether the connection might have a bearing on the competence of the witness to testify or on the issue to be determined. [ 40 ] In Peshdary , the Court ordered the production of CSIS human source information and credibility assessments regarding Abdullah Milton. Mr.

Milton was a paid police asset and former paid CSIS asset in a CSIS investigation in which the accused was a target. Mr. Milton was described as a crucial crown witness whose credibility would be a material issue at trial. On the application, there was no need for the Court to infer a connection between Mr. Milton and CSIS; the connection between Mr. Milton and CSIS was disclosed and defence outlined how the human source material might impact Mr. Milton’s credibility.

In that context, human source records were ordered produced. [ 41 ] In Nuttall , the two accused were convicted by a jury of two terrorism offences after which the accused sought stays of proceedings on the grounds of abuse of process and entrapment based on the conduct of the RCMP during its undercover investigation. In that context, the accused sought records from CSIS under the O’Connor regime relating to records provided to CSIS by witness X or with the cooperation of witness X. The Court considered the likely relevance of the records in the context of the issues of abuse of process and entrapment.

The Court noted that the evidence at trial gave rise to a reasonable inference that there was a connection between witness X and CSIS. No such evidentiary foundation exists in the present case. [ 42 ] Mr. Borhot has not established that the human source records he seeks relate to a paid asset or that there is a significant connection between a witness and CSIS. [REDACTED] [ 43 ] [REDACTED] [ 44 ] There is no dispute that the RCMP and CSIS undertook parallel investigations into Mr. Borhot’s activities.

There is also no dispute that when interviewing potential witnesses, the RCMP guarded the process carefully to preclude witnesses from discussing CSIS contact or interviews. That evidence undoubtedly establishes that the two agencies interviewed the same witnesses. However, it falls far short from establishing an evidentiary foundation from which to infer that there was a connection between a witness and CSIS that did or may have influenced the witness’ actions or competence to testify. [ 45 ] What Mr.

Borhot submits is the case-specific basis for production of the human source records is conjecture drawn from the chronology of events and the deliberate effort by the RCMP, for legitimate investigative reasons, to prevent witnesses from discussing any dealings they had with CSIS. There is at best only a speculative connection between the witnesses and CSIS. Speculation cannot form the basis for the production of third party records. Mr. Borhot has failed to meet the threshold of likely relevance for the production of the human source information.

His application is the very speculative endeavour that the third party records regime was designed to weed out. [ 46 ] Given my conclusion, I make no comment on the s. 18.1 CSIS Act privilege issue or on the question of whether Mr. Borhot can establish on the evidence a viable innocence at stake exemption to that privilege. CSIS Act Affidavit and Warrant Defence Position [ 47 ] Mr. Borhot seeks production of the affidavit and warrant issued under s. 21 of the CSIS Act that authorized the installation of the CSIS-installed intercept devices (the CSIS Act affidavit and warrant) (application paragraph 1I). Mr.

Borhot argues that the CSIS Act affidavit and warrant are relevant to his application pursuant to s. 8 of the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 ( Charter ) in which he seeks: 1) an order allowing him to cross-examine the RCMP affiant on her affidavit in support of PA 1882; 2) an order setting aside PA 1881 and PA 1882 (the RCMP warrants) (and other judicial authorizations) on the basis of a. the violation of the duty of full and frank disclosure regarding the existence of “unauthorized intercept capabilities”; b. unauthorized wiretapping by the RCMP between March 18, 2020 when the CSIS-installed intercept devices in Mr.

Borhot’s residence were activated to March 20, 2020 when the activation was stopped; and c. unauthorized wiretapping of Mr. Borhot’s residence by CSIS; and 3) exclusion of all evidence obtained pursuant to the RCMP warrants (and other judicial authorizations) or alternatively exclusion of all recordings obtained from the CSIS-installed intercept devices transferred to the RCMP on March 13, 2020. Preliminary Issue [ 48 ] As a preliminary issue, I am required to address the scope of the likely relevance threshold on this portion of Mr. Borhot’s application.

In World Bank Group v Wallace , 2016 SCC 15 at para 116 , the Supreme Court of Canada determined that where third party

records are sought in the context of an application to challenge a Criminal Code

Part VI wiretap authorization pursuant to R v Garofoli, (SCC), [1990] 2 SCR 1421, the likely relevance threshold must relate to the narrow issues to be decided on the Garofoliapplication. The records sought must be relevant to the issue of whether the affiant for the Criminal Code

Part VI wiretap authorizationhad reasonable and probable grounds to believe that an offence had been committed and that information concerning the offence wouldbe obtained if the wiretap authorization was issued. [49] The principle in World Bank was applied in Peshdary. In Peshdary, the Court concluded that where the issue for which therecords were sought is the admissibility of evidence obtained through judicial authorization, the test is whether there is a reasonablelikelihood that the records sought would be of probative value to the issues on that application: Peshdary at para 37.

In Nuttall, the trialjudge came to a similar conclusion with respect to whether the CSIS third party records related to the issues on the application, beingabuse of process and entrapment. I am satisfied on these authorities that the likely relevance of a third party record must relate to theissue for which the record is sought. Where third party records are sought in relation to an application that engages an issue narrowerthan the guilt or innocence of the accused, the likely relevance threshold applies in reference to that narrower issue. [50] Mr.

Borhot must therefore show a reasonable likelihood that the CSIS Act affidavit and warrant will be of probative value tohis application challenging the RCMP warrants, including the right to cross examine the RCMP affiant, or to his application to excludeevidence obtained as a result of an alleged breach of Mr. Borhot’s privacy interests protected under s. 8 of the Charter. Analysis [51] Mr. Borhot seeks production of the CSIS Act affidavit and warrant on the basis that the CSIS-installed intercept devices wereused by the RCMP to intercept communications in Mr. Borhot’s residence. Mr.

Borhot relies on R v Jaser, 2014 ONSC 6052 as anexample of where the Court ordered production and disclosure of a CSIS affidavit because it was likely relevant to the accused’s s. 8Charter application under which the accused sought to exclude RCMP wiretap evidence. [52] In Jaser, CSIS obtained two CSIS Act warrants in May and August 2012 to intercept communications relating to the accused.Through a series of Advisory Letters issued by CSIS to the RCMP, CSIS disclosed to the RCMP the communications that CSISintercepted pursuant to the CSIS Act warrants. The RCMP then obtained two Criminal Code

Part VI wiretap authorizations. The firstCriminal Code authorization depended on the CSIS-intercepted communications to establish reasonable and probable grounds for theCriminal Code warrant: Jaser at para 15. The second Criminal Code authorization relied on the fruits of the first authorization for itsreasonable and probable grounds. The Crown’s case depended heavily on the intercept evidence collected by the RCMP under the twoCriminal Code

Part VI wiretap authorizations. [53] The accused brought a s. 8 Charter application to exclude the RCMP intercept evidence. The Crown obtained and disclosedto the accused the CSIS Act warrant. The accused sought the CSIS Act affidavit that remained in the possession of CSIS. The Courtordered the CSIS Act affidavit to be produced. The Court concluded that the CSIS Act affidavit was relevant to the accused’s s. 8 Charterapplication in two ways.

First, the Crown conceded that there was a sufficient nexus between the CSIS-intercepted communications andthe first Criminal Code authorization obtained by the RCMP such that the CSIS Act affidavit was relevant to the alleged s. 8 Charterviolation and application under s. 24 of the Charter to exclude evidence collected by the RCMP. Second, the Court concluded that theCSIS Act affidavit could be relevant to the alternate remedy of excision of unlawfully obtained evidence.

The Court concluded that thelawfulness of the CSIS Act warrant would be determinative of whether there was a violation of the accused’s s. 8 Charter rights: Jaser atpara 18. [54] Mr. Borhot similarly argues that the lawfulness of the CSIS-installed intercept devices will be determinative of whether therewas a violation of his s. 8 Charter rights.

He argues that the devices themselves form the necessary connection between the CSIS Actaffidavit and warrant and the RCMP warrants such that the CSIS Act affidavit and warrant should be produced to the Court for review.He argues that if the CSIS-installed intercept devices were not lawfully installed, they were not lawfully available to the RCMP to use.As such, he submits that the legality of the CSIS-installed intercept devices depends entirely on the lawfulness of the CSIS Act warrant.He submits that the Court must therefore order the production of the CSIS Act warrant to determine whether the CSIS-installed interceptdevices were lawfully available to the RCMP to use.

He argues that production of the CSIS Act affidavit and warrant will allow the Courtto determine if the technical nature of the CSIS-installed intercept devices exceeded the authority granted in the RCMP warrants. He alsoargues that because neither PA 1881 nor PA 1882 disclosed the technical nature of the CSIS-installed intercept devices, production of theCSIS Act affidavit and warrant will allow the Court to determine if the authorizing Justice was precluded from considering the necessaryminimization measures to be included in the terms of the RCMP warrants. [55] To succeed on this argument, Mr.

Borhot must establish a sufficient connection between the reasonable and probable groundson which the RCMP warrants were issued and the CSIS Act affidavit and warrant. He has failed to do so. The reliance by the RCMP onthe CSIS-installed intercept devices during the implementation stage of what was then a judicially authorized intercept is not sufficient torender the CSIS Act affidavit and warrant likely relevant to the questions engaged on an application to cross-examine the RCMP affiantor to set aside the RCMP warrants.

On a sub-facial challenge to a wiretap authorization, the Court’s inquiry is whether the affiant, basedon what the affiant knew or ought to have known at the time they swore the affidavit, had reasonable and probable grounds to believe anoffence had been committed and information concerning the offence would be obtained. In this case, it is uncontroverted that the RCMPdid not incorporate or rely on any information collected by CSIS as a basis for obtaining the RCMP warrants other than the CSISAdvisory Letter in PA 1882.

This case is distinguishable from Jaser where the fruits of the CSIS investigation formed a material part ofthe information on which the RCMP affiant relied to establish reasonable and probable grounds for the Criminal Code

Part VI warrant tobe issued. In the present case, the CSIS Act affidavit and warrant are not relevant to what the RCMP affiant knew or ought to have knownat the time she swore the affidavits in support of PA 1881 and PA 1882. [56] Mr. Borhot also seeks production of the CSIS Act affidavit and warrant on the basis that the CSIS Act search breached his s. 8privacy interests. Mr. Borhot argues that he has standing to challenge the CSIS Act warrant because he has a privacy interest in the CSIS-intercepted conversations that were captured using the CSIS-installed intercept devices.

He argues that his privacy interest in the subjectmatter of the CSIS search entitles him to production of the CSIS Act affidavit and warrant.

[57] Mr. Borhot has not provided any case law in the context of a dual agency investigation to support his argument that on thefacts before me, I can order the production of records in service of the review of the lawfulness of the CSIS Act warrant outside of achallenge to the validity of the RCMP warrants. He did, however, offer R v Sandhu, 2018 ABQB 112 where separate policeinvestigations intersected and resulted in the accused being charged with offences relating to an alleged home invasion robbery.

In thatcase, the accused were not previously suspected of any wrongdoing until their actions were captured in video recordings from anapartment complex hallway camera installed by the police in a separate investigation not related to the accused. Those video recordingsformed a critical portion of the affidavit sworn to obtain a search warrant in the investigation that resulted in the accused being charged.The accused were found to have a reasonable expectation of privacy in the hallway camera recordings.

By concession of the Crown,once the evidence from the hallway camera recordings was excised from the search warrant that gave rise to the charges against theaccused, the warrant could not have validly issued. [58] Sandhu was not a third party records application. Nor did Sandhu relate to parallel investigations being conducted byseparate agencies. Most importantly, in Sandhu, the fruits of the separate investigation formed a critical portion of the affidavit sworn toobtain the search warrant in the investigation regarding the accused. These facts are more akin to Jaser than the present case and do notadvance Mr.

Borhot’s argument. [59] It is not sufficient on this application that Mr. Borhot asserts a privacy interest in the subject matter of the CSIS Act search toobtain production of the CSIS Act affidavit and warrant. There must be a sufficient relationship between the CSIS Act affidavit andwarrant and the RCMP warrants to entitle him to stage one production of the CSIS Act affidavit and warrant. The connection Mr. Borhotattempts to draw between the CSIS Act affidavit and warrant and the RCMP warrants is the transfer and use of the CSIS-installedintercept devices.

The RCMP’s use of the CSIS-installed intercept devices is not sufficient to establish the necessary connection betweenthe CSIS Act affidavit and warrant and the RCMP warrants. Mr. Borhot does not have a privacy interest in the CSIS-installed interceptdevices, but in the CSIS-intercepted communications. There is no privacy interest in the equipment deployed but only in the privatecommunications captured by the equipment. The RCMP’s use of the CSIS-installed intercept devices does not make the CSIS Actaffidavit and warrant likely relevant to Mr.

Borhot’s s. 8 Charter application. [60] In addition, the RCMP warrants authorized the interception of private oral communications, telecommunications, and radio-based telephone communications of specified people and their specified devices in specified places by means of specific types oftechnology.

They did not specify that certain intercept devices had to be used even after the CSIS-installed intercept devices weredisclosed by the RCMP affiant. [61] Finally, on the facts of this case, I am not satisfied that this Court has the jurisdiction to review the CSIS Act warrant todetermine whether the CSIS search was reasonable or violated Mr. Borhot’s s. 8 Charter rights, nor to order production of those recordsin furtherance of such a review. [62] On a challenge to a warrant, the warrant is presumed valid. On the evidence before me, Mr.

Borhot has not provided asufficient basis from which to infer that the CSIS Act warrant or its execution breached his Charter rights, that the Federal Court did nothave jurisdiction to authorize the CSIS Act warrant, or that the lawfulness of the RCMP warrants was contingent on the lawfulness of theCSIS Act warrant.

While a police agency that is relying on the fruits of an investigation from another agency cannot turn a blind eye tored flags about the other agency’s lawful authority to obtain evidence (see R v Ahmad, 2020 ONSC 590 at para 40), there is no basis todisturb the presumption of validity of the CSIS Act warrant in this case.

In these circumstances, there is no authority for this Court toconduct what would amount to a Garofoli review of the CSIS Act warrant: R v Chang, [2003] OJ No 1076, at para41. [63] I am satisfied that this Court’s only authority to order the production of the CSIS Act affidavit and warrant on this applicationis in the context of the challenge to the RCMP warrants, and only then if the RCMP relied on the fruits of the CSIS investigation toobtain the RCMP warrants. Whether I approach Mr.

Borhot’s application for production of the CSIS Act affidavit and warrant in thecontext of his challenge to the RCMP warrants, or in the context of his reasonable expectation of privacy in the subject matter of theCSIS Act search, I conclude that Mr. Borhot has not established that the CSIS Act affidavit and warrant are likely relevant to his s. 8Charter application. Conclusion [64] Counsel will need time to consider their actions given the production ordered in this decision. I will await the advice fromcounsel regarding the production of the records captured in paragraph 1B of Mr.

Borhot’s application and whether a stage two analysis isrequired. Heard on the 6th, 7th and 8th day of June, 2023. Dated at the City of Calgary, Alberta this 24 day of July, 2023.

N.F. Dilts J.C.K.B.A. Appearances: Andre Seguin, Maria Barrett-Morris, Amanda Bergmann for the Canadian Security Intelligence Service Kent Brown, Domenic Puglia and Ben Rogers for the Crown Respondent Pawel Milczarek, Michael Nesbitt For the Accused Applicant