R. v . Stinchcombe, 2021 QCCQ 13103

Ghaddar c.

R. 2021 QCCQ 13103COURT OF QUÉBEC CANADAPROVINCE OF QUÉBECDISTRICT OFMONTREALTOWN OFMONTREALCriminal and Penal DivisionNo: 500-73-004634-198 DATE: December 8, 2021______________________________________________________________________ BYTHE HONOURABLETHIERRY NADON, J.C.Q.______________________________________________________________________ KAMEL GHADDARNADER GRAMIAN-NIKTANIA GERAMIAN-NIKTHOMAS HSUEHMOHAMAD JABERSHABNAM MANSOURIFREDERICK RAYMANMOHAMMADREZA SHEIKHHASSANISAHAR SHOJAEIAPPLICANTS/Accusedv.HER MAJESTY THE QUEENRESPONDENT/Prosecutrix______________________________________________________________________ JUDGMENT ON VETTING REVIEW (DA1-DA2)______________________________________________________________________ Overview of the Process [1] As part of a disclosure process that can be described as gigantic, the Applicants in the course of applications DA1 and DA2requested that the Court review the vetting applied by the Crown to disclosed documents.

They also requested that the Court review theProsecution’s decision not to disclose documents because of irrelevance or privilege. [2] The Crown produced a “Laporte” table. For every document, it indicates the nature of the information, a

summary of thedocument, the task associated to it, the origin of the document and a judicial

summary of the vetted information. [3] The Crown also produced a response to the applications. In it, it details when disclosure of the vetted document was made, thereason for the vetting and a reference to the judicial

summary produced under CR1-P1. [4] For the better part of the hearing, the Court heard the parties in open court. [5] When it was necessary due to the asserted privilege, a part of the hearing was conducted ex parte and in camera in the presenceof the Crown and the lead investigators. Afterwards, the Court asked the Crown to prepare a judicial

summary of the hearing. The Courtreviewed it and confirmed its accuracy. The judicial

summary was made public and given to the Applicants. [6] The parties each had the opportunity to make representations. [7] In the end, the vetting of numerous documents was revised by the Crown. Moreover, almost all undisclosed documents weredisclosed, some with and some without vetting. The Applicants abandoned their request for review for some of the documents. Thisdecision lists all the documents, the agreements and the decision on the vetting review where the parties disagree. A Review of the Law Disclosure: A Brief

Summary [8] In R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, at p. 343 the Supreme Court wrote: With respect to what should be disclosed, the general principle to which I have referred is that all relevant information must be disclosed

subject to the reviewable discretion of the Crown. The material must include not only that which the Crown intends to introduce intoevidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence..….The Crownmust, therefore, disclose relevant material whether it is inculpatory or exculpatory. [9] In R. v. Taillefer, R. v. Duguay, 2003 SCC 70, at para. 59 the Supreme Court summarized the law: The rules may be summarized in a few statements.

The Crown must disclose all relevant information to the accused, whether inculpatoryor exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainlyirrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevantinformation must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea (p. 343).

Moreover,all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding thatthey are not proposed as Crown witnesses (p. 345). This Court has also defined the concept of “relevance” broadly, in R. v. Egger, (SCC), [1993] 2 S.C.R. 451, at p. 467: One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it isrelevant and should be disclosed — Stinchcombe, supra, at p. 345.

This requires a determination bythe reviewing judge that production of the information can reasonably be used by the accused either in meeting the casefor the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of thedefence such as, for example, whether to call evidence. [10] In R. v.

Gubbins, 2018 SCC 44, para. 22, Justice Rowe for the majority of the Supreme Court, quoting a decision of the OntarioCourt of Appeal, wrote on relevance: Relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as anyinformation in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make fullanswer and defence.

The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or thereliability of evidence that may form part of the case to meet. In its normal, natural everyday sense, the phrase “fruits of the investigation” posits a relationship between the subject matter sought andthe investigation that leads to the charges against an accused. The Vetting Review The First Question: Relevance [11] Justice Boucher of the Superior Court in R. v.

Dancause, 2018 QCCS 1981, at para. 22, summarized the first question to beanswered when vetting review is conducted: D’abord, il convient de maintenir le caviardage à l’égard des renseignements qui ne satisfont pas au critère minimal de pertinence énoncédans l’arrêt Stinchcombe, sans égard aux revendications de la Couronne en matière de privilège d’intérêt public. En d’autres termes, ils’agit de maintenir le caviardage à l’égard des renseignements que la Couronne pourrait refuser de divulguer de toute manière parcequ’ils sont manifestement non pertinents.

Il est ici question de renseignements qui ne présentent aucune utilité raisonnable pour laconduite de la défense des accusés, que ce soit pour répondre aux accusations, présenter une défense, attaquer la crédibilité des témoinsou encore prendre des décisions relatives au déroulement du procès (R. c. Stinchcombe, précité, p. 340, 345-346; R. c. McNeil, précité,par. 17; R. c. Taillefer, précité; R. c. Duguay, précité, par. 59-60). [12] If the information is relevant, the Crown will have to establish that the information that it has not disclosed is covered byprivilege.

The Second Question: Privilege [13] Authors Hill, Tanovich and Strezos articulated the reasons behind the existence of privileges, they wrote: Privileges exist solely to advance policy goals, as such, serve to generally exclude evidence without regard to usefulness in the trialprocess. …privileges exist when the social policy concerns related to protecting the confidentiality of information or the privacy ofcommunications are so strong as to demand that the truth-seeking process be qualified or sacrificed in favour of this overwhelming policy concern (S. Casey Hill, David M. Tanovich & Louis P.

Strezos, McWilliams’ Canadian Criminal Evidence, 5th ed., Toronto,Thomson Reuters, 2013, 13:10 ). [14] Privileges are “robust but few in numbers and generally narrow in scope” (McWilliams, supra, 13:10:20). Two types of privilegeexist: class and case-by-case. [15] Once a class privilege is established, “the information or communications in question are covered over with a “blanket” of non-admissibility, subject only to very narrow exceptions” (McWilliams, supra, 13:10:30). [16] On the other hand, where a case-by-case privilege is asserted, the information or communications do not enjoy the sameprotections.

There is “a prima facie assumption that they are not privileged” (R. v. Gruenke, (SCC), [1991] 3 SCR 263,at p. 286). The party asserting the privilege has to establish it. Once it has, the Court needs to balance the competing interests, i.e. thepolicy reasons for excluding relevant evidence, with other interests, for example, the right to full answer and defence, in order todetermine which should prevail. Class Privilege

Informer Privilege [17] The informer privilege is a common law rule. It protects any information that could reveal the identity of a confidentialinformer. Apart from the innocence at stake exception, it is absolute. It acts as a complete bar to the disclosure of the informer’s identity.The police, the Crown and the courts are bound to uphold it (R. v. Durham Regional Crime Stoppers, 2017 SCC 45, at para. 1). Solicitor-Client Privilege [18] The solicitor-client privilege in Canada is a “fundamental and substantive rule of law” (R. v. McClure, 2001 SCC 14, at para.17).

It is based “on the functional needs of the administration of justice. The legal system, complicated as it is, calls for professionalexpertise” (R. v. Campbell, (SCC), [1999] 1 S.C.R. 565, at para. 49). It is trite law that “the communications betweensolicitor and client are essential to the effective operation of the legal system” (Gruenke, supra, at page 289). The protection of theprivilege “must remain as close to absolute as possible” (Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, at para.36). [19] The privilege applies to any communication so long as it: (

a) is a communication between solicitor and client; (

b) entails the seeking or giving of legal advice; and (

c) is intended to be confidential by the parties. (Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821, at p. 83.) [20] The most important question is “whether the communications took place within the context of a solicitor-client relationship”(British Columbia (Attorney General) v. Lee, 2017 BCCA 219, at para. 32). Once privilege is established, it applies to allcommunications made within the framework of the solicitor-client relationship. [21] The privilege applies equally to communications in government (Pritchard v. Ontario, 2004 CSC 31, Procureur général duQuébec v.

Beaulieu, 2021 QCCA 1305, at para. 74). [22] Strategic advice falls within the ambit of the privilege, as legal advice “is not confined to merely telling the client the state ofthe law”, it includes “advice as to what should be done in the relevant legal context” (Gower v. Tolko Manitoba Inc., 2001 MBCA 11, atpara. 19; Lee, at para. 43).

That said, “policy advice that has nothing to do with their legal training or expertise, but draws ondepartmental know-how” and ”[a]dvice given by lawyers on matters outside the solicitor-client relationship” is not protected (Campbell,supra, at para. 50). [23] The breadth of the privilege includes the continuum of communications in which the solicitor provides advice.

In determiningwhere the protected continuum ends, the Federal Court of Appeal in Minister of Public Safety and Emergency Preparedness and TheMinister of Justice and The Information Commissioner of Canada, 2013 FCA 104, wrote at para. 28: Put another way, does the disclosure of the communication have the potential to undercut the purposes behind the privilege namely, theneed for solicitors and their clients to freely and candidly exchange information and advice so that clients can know their true rights andobligations and act upon them? (See also The Blood Tribe v.

Canada (Attorney General) 2010 ABCA 112, at para. 26) [24] The severance of particular communications within that continuum is possible when the advice given by lawyers fall outsidematters covered by the solicitor-client relationship (Lee, at paras. 32-33, 36). That said, “severance should only be considered when itcan be accomplished without any risk that the privileged legal advice will be revealed or capable of ascertainment” (Lee, at para. 40). [25] In the case of complicated and prolonged mandates, the Supreme Court in Société d’énergie Foster Wheeler Ltée v.

Sociétéinternationale de gestion et d’élimination des déchets (SIGED) inc., 2004 CSC 18, at paras. 41-42 wrote: In the case of complicated and prolonged mandates, the obligation of justifying each case as one where confidentiality and, by extension,immunity from judicial disclosure apply is poorly adapted to the nature of professional relationships and the safeguards required tomaintain secrecy in an effective manner.

In a case such as the one before this Court, the client and lawyer would be expected to dissectall facets of their relationship in order to characterize them and consequently invoke immunity from disclosing some elements, but notothers (Québec (Sous-ministre du Revenu) v. Legault, supra, at p. 231). Proceeding in this manner multiplies the risks of disclosingconfidential information and further weakens professional secrecy, an institution that the legislature and the courts have afforded strongand generous protection (Poulin v. Prat, (QC CA), [1994] R.D.J. 301 (C.A.), at p. 307; McClure, supra, at para. 33).

In such cases, a different method would be preferable. It would be enough to have the party invoking professional secrecy establish that ageneral mandate had been given to a lawyer for the purpose of obtaining a range of services generally expected of a lawyer in his or herprofessional capacity. At this stage, there would be a presumption of fact, albeit a rebuttable one, to the effect that all communicationsbetween client and lawyer and the information they shared would be considered prima facie confidential in nature.

Although the caseconcerned a different field of law, namely criminal procedure, this Court recommended an analogous method in the initial steps of theexamination of difficulties arising out of potential conflicts between solicitor-client privilege in the common law and the need to protectthe presumption of innocence (McClure, supra, at paras. 46-51).

The opposing party would then have to give a specific indication of thenature of the information sought and show that it is subject neither to the obligation of confidentiality nor to immunity from disclosure,or that this is a case where the law authorizes disclosure notwithstanding professional secrecy. This method would have proceduralconsequences. The opposing party would be obliged to ask precise and limited questions about the information sought.

This sort ofquestion would better take into account the sensitive nature of any line of questioning regarding professional relationships betweenclients and lawyers and the need to minimize violations of professional secrecy. This would prevent “fishing expeditions” in whichlawyers, through the files they handle and reports they prepare for their clients, are used as a source of information for building cases

against their own clients. One would also hope that every effort would first be made to obtain the information from available sourcesother than lawyers. A sound judicial policy, mindful of the social importance of lawyers’ professional secrecy and the need to protect it,should certainly not attempt to facilitate this sort of questioning, but rather restrain it as much as possible. Crown Counsel who Provide Legal Advice to Police Officers in the Course of an Investigation [26] The modern complexities of investigations require police forces to seek legal advice on a continuous basis.

As the SupremeCourt wrote in Campbell, supra, at para. 49: It is of great importance that the RCMP be able to obtain legal advice in connection with criminal investigations without the chillingeffect of potential disclosure of their confidences in subsequent proceedings. [27] This case is a prime example of this importance. The investigation was long and complex with international ramifications. Thejudicial phase is also long and complex. As said in a previous decision, the trial is set for a period of six months and the Crown predictscalling approximately 350 witnesses.

The object of this decision is just part and parcel of very delicate and complex questions. It is thuslogical and essential that the officers seek legal advice on a range of topics. [28] One of the topics is disclosure. In Stinchcombe, supra, Justice Sopinka for the Supreme Court wrote that he was: “confident thatdisputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose allrelevant information” (underlined in the decision).

Unfortunately, thirty some years later, this has not come to pass. [29] Disputes are omnipresent and require ample, sometimes warranted, sometimes not, court time. [30] On its face, the law is straightforward: everything in the possession of the Crown that is not manifestly irrelevant has to bedisclosed, subject to privilege. This deceivingly simple standard is often marred with difficult questions. [31] This case demonstrates that relevancy is a more complicated concept than it seems.

Furthermore, when privilege is added to theequation, the complexities require legal advice. [32] Justice Moldaver for the majority of the Supreme Court in Henry v. British Columbia (Attorney General), 2015 SCC 24, atpara. 60 recognized these difficulties: I readily acknowledge that disclosure decisions often involve difficult judgment calls.

As the intervener Attorney General of Ontarioobserves, disclosure decisions may require consideration of numerous factors, such as whether the information is subject to specialprotections for sexual assault complainants, special considerations concerning highly sensitive material, or one of the various privilegesthat attach to information obtained in the course of a criminal prosecution.

Even the basic question of relevance may be difficult to assessbefore the Crown is made aware of the defence theory of the case, and where disclosure requests are not explained or particularized.Furthermore, disclosure obligations are ongoing, which requires prosecutors to continuously evaluate the information in their possession. [33] Moreover, these difficult decisions are often and routinely subject to judicial review (Henry, supra, at para. 63) hence theimportance of obtaining legal advice. Therefore, the seeking of legal advice by police officers for disclosure purposes is necessary andessential.

Litigation Privilege [34] The law recognizes that information that a lawyer creates or collects to prepare a case in the adversarial process is covered by alitigation privilege. It is a class privilege (McWilliams, supra, 13:10:10). [35] The rationale for this privilege is pretty obvious: it would be unfair to allow the opposing party to have access to it.

The properfunctioning of the trial system requires that a lawyer be able to prepare litigation without fear of having to disclose it to the opposingparty (McWilliams, supra, 13:30). [36] The privilege “shelters the mental processes of the attorney, providing a privileged area within which he can analyze andprepare his client’s case” (United States v. Nobles, (1975) 95 S.Ct. 2150, 2170), McWilliams, supra, 13:30.10). [37] When this privilege is raised and contested, the Court needs to control its validity (R.L. v.

R., 2014 QCCA 1743, at para. 9). [38] The precise contours of this privilege remain to be defined (R.L., supra, at para. 9). The distinction between solicitor-client andlitigation privilege “has been murky at best” (McWilliams, supra, 13:30). That said, the privilege: “protects documents created orcollected for the purposes of preparing for pending or anticipated litigation” (McWilliams, supra, 13:30:40). [39] The “litigation privilege will be applicable to the work of Crown counsel in the course of a prosecution” (British Columbia(Ministry of Attorney General Criminal Justice Branch) v.

British Columbia (Commission of Inquiry into the Death of Frank Paul DaviesCommission, 2009 BCCA 337, at para. 108). [40] In a prosecution: “the Crown may claim privilege for material fairly characterized as work product as long as that material doesnot contain “material inconsistencies or additional facts not already disclosed to the defence” (Toronto Star Newspaper v. R., (Ont. S.C.J.), at para. 20, see also McWilliams, supra, 13:30:40).

Case by Case Privilege [41] As an introduction, it bears repeating that “les chances sont minces qu’on puisse prétendre avec succès qu’un document nedevrait pas être communiqué en raison de la catégorie à laquelle il appartientʺ (R. v. Dubé, 2010 QCCA 1377, at para. 26, Carey v.Ontario, (SCC), [1986] 2 S.C.R. 637, at p. 655). The Court has to examine the information contained in a document andcannot limit itself to its type or category.

The Public Interest Privilege and its Subsets: Investigative Techniques/Ongoing Investigation/Security [42] The common law recognizes that some matters are required to be kept secret because failure to do so could hamper legitimatepublic interests such as national security, government relations and criminal investigations (Toronto Star Newspaper, supra, at para. 14;Dancause, supra, at para. 25; R. v. Anderson, 2013 SKCA 92, at para. 134). [43] The party that claims the privilege needs to demonstrate its existence by balance of probabilities (R. v. Auger, 2013 QCCS2490, at para. 41).

It has to be based on the evidence and not just on a bold, generalized assertion. [44] In criminal investigations, the use of a particular technique to investigate, if revealed, could undermine the use of that techniquefor current or future investigations. Disclosure could also reveal the measures taken by a police force to ensure the safety of the officersinvolved (R. v. Hassan, 2014 SKQB 256, at para. 12).

It goes without saying that evidence to establish the existence of the privilege canstem from the vetted information, as sometimes the information obviously relates to and establishes an investigative technique. [45] Once the privilege is established the Court needs to review the impact of the information on the right to full answer anddefence. In A. (L.L.) c.

B. (A.), (SCC), [1995] 4 S.C.R. 536, at para. 51, Chief Justice Lamer and Justice Sopinka wrote: En matière criminelle, l'immunité de droit public ne peut empêcher la divulgation ou entraîner l'irrecevabilité de documents susceptiblesde permettre à l'accusé de réfuter une allégation de crime ou d'établir son innocence. (…) À cet égard, les tribunaux anglais ont statuéque l'intérêt du public d'assurer au défendeur un procès équitable avait préséance sur l'intérêt de protéger de tels dossiers confidentiels sileur divulgation est nécessaire à la défense pleine et entière du défendeur. [References omitted] [46] Nondisclosure of the information is maintained when the interest of keeping the information secret outweighs the right to fullanswer and defence.

In order to weigh these competing interests the Court will weigh the charges, the probative value of the elements theCrown wishes to keep secret and, on the other hand, the public interest in keeping it secret (Auger, supra, at para. 48). The Protection of Privacy [47] There is a right to privacy that is protected. The inquiry to determine its extent is contextual and fact-based (R. v. McNeil, 2009SCC 3, at para. 12). If the information is in possession of the Crown, it is presumed to be relevant. If relevant, the balance will tip infavour of disclosure (McNeil, supra, at para. 20, 41).

That said, the Court can impose conditions to the disclosure so that no “unnecessaryinvasion of privacy follows from production to the accused” (McNeil, supra, at para. 41). Analysis: The Vetting Review [48] The Court, mindful of the sensitive nature of some of the information, will refrain from describing in minute detail thedocuments and the vetting. The Court has examined all of them (M.(

A) v. Ryan, (SCC), [1997] 1 S.C.R. 157, at para.39). 1- DA1 Doc 5831: DA1-P-4: [49] The vetted portions of the document are cell phone numbers of two agents of the Drug Enforcement Agency (DEA). [50] Justice Norheimer in Toronto Star Newspaper, supra, writes at para. 13: [13] The other grounds to justify the edits are challenged.

At the outset, I will say that I accept that specific personal information suchas birth dates, addresses, telephone numbers and the like may remain secret where it has no real relevance to the investigation and would,if publicized, represent an undue invasion of the personal privacy of the individuals involved. [51] The vetted information is personal information that is manifestly not relevant. The vetting is maintained. Doc 6426: DA1-P-6: [52] The vetted portions of the document are telephone numbers of RCMP officers. This is personal information that is manifestlynot relevant. The Applicants agree.

The vetting is maintained. Doc 13: DA1-P-7: [53] What remains vetted can be found at pages 1 and 3. The rest of the document was unvetted by the Crown. [54] At page 1, the judicial

summary provided by the Crown is “Eric Bouchard’s cell phone number”. It is accurate. It is manifestlynot relevant and is personal information of a police officer. It will remain vetted. [55] At page 3, the judicial

summary of the Crown is “V2-06 UC Ben”. The Crown asserts investigative techniques privilege. TheApplicants submit that the information was already disclosed and provide a document to prove it. The Crown replies that if so, it wasdone inadvertently.

[ 56 ] To quote the British Columbia Court of Appeal in Lee , supra , par. 1 : “Extensive disclosure of documents has become a feature of modern litigation. Occasionally mistakes are made, and privileged information is unintentionally disclosed.” [ 57 ] The Court does not consider that the privilege was waived by inadvertent disclosure ( Lee , supra , at para. 55 , also see McWilliams, supra, 13:10:50). At this point, the Court will maintain the vetting. The name of an undercover agent is information that is relevant but privileged under the public interest/investigative technique privilege.

The privilege outweighs, at this point, the right to full answer and defence. Doc 6427: DA1-P-9: [ 58 ] What is vetted is found at p. 173. The judicial

summary provided by the Crown states: “V4- work in unrelated file”. In court, the Crown added that the vetted information included the file number. This is an accurate

summary. The Applicants have nothing to add. It is manifestly not relevant and can remain vetted. Doc 38270: DA1-P-11: [ 59 ] What is vetted at p. 14 is claimed to be privileged information as it deals with an investigative technique. The information is relevant under the Stinchcombe test. That said, the public interest (investigative technique) outweighs the interest of the Applicants in disclosure of the techniques. The vetting does not impede on the right to full answer and defence. [ 60 ] At page 15, what is vetted is information that could reveal the identity of the cover agents.

It is claimed to be privileged information by the Crown as it deals with an investigative technique. The information is relevant under the Stinchcombe test. That said, at this point, the public interest (investigative technique) outweighs the interest of the Applicants in disclosure. The vetting does not impede on the right to full answer and defence. Doc 52609: DA1-P-20 and Doc 36941: DA1-P-23: [ 61 ] The judicial

summary provided by the Crown is V2-03: attorney-client privilege. The Crown agrees to disclose the date of the meeting. [ 62 ] Members of the RCMP and the Crown were meeting on a continuous basis throughout the investigation in order for the RCMP to seek legal advice. [ 63 ] The vetted information from both documents stems from a meeting that took place to prepare the judicial phase of the investigation. Numerous topics were discussed. According to the evidence heard ex parte , Crown counsel present was giving legal advice.

The vetted information is covered by solicitor-client privilege and will remain vetted. 2- DA2-P-18A: List of documents not disclosed to be reviewed Docs 13328 and 44642: [ 64 ] The Crown has unvetted some of the information, the rest is privileged as part of the solicitor-client privilege between the Crown and the RCMP. Doc 15884: [ 65 ] This is a document in which an officer of the Special I

section of the RCMP proposes changes to a “ plan de sécurité ” draft. This is manifestly irrelevant and will remain vetted. Furthermore, it is covered by public interest privilege. Doc X84: [ 66 ] The Crown reviewed it and unvetted part of the information. The Applicants are satisfied with the result. Docs 18764 and X105: [ 67 ] They contain the resume/CV of a proposed undercover agent for an operation that was aborted. The agent was not used. The Court fails to see the relevance. Furthermore, the Crown asserts it is privileged as an investigative technique, and the Court agrees.

Moreover, it does not impede on the right to full answer and defence. Finally, the Applicants do not insist on getting the information. The vetting is maintained. Doc 21993: [ 68 ] The judicial

summary of the Crown is V4 (others) human and financial planning. It argues that the information is clearly irrelevant. The Applicants left the matter to the Court’s discretion and the Court finds that it is manifestly irrelevant. Doc 21994: [ 69 ] The judicial

summary of the Crown is V2-06 (page 13): capacities of the RCMP, V2-06 (others) information that could reveal the identity of an undercover agent, V4: human and financial planning. [ 70 ] Almost all of the document is disclosed. What is vetted is privileged and at this point will remain vetted as it deals with the name of the cover agent and investigative techniques. The nondisclosure does not impede on the right to full answer and defence. The human and financial planning of the RCMP is manifestly irrelevant. Docs 22530-22531:

[ 71 ] The documents were disclosed. Docs 26264-26269, 43806-43810: [ 72 ] The judicial

summary of the Crown is V2-06: preparation for police operation (which never occurred), V4 (not relevant). Furthermore, there is what is considered a judicial

summary in task 3110 (DA2-P20, Doc ID 94432) according to the pleadings of M e Simon for the Crown. [ 73 ] In the course of the ex parte hearing, informer privilege was added to the privileges that apply to these documents. [ 74 ] The Court concludes that the informer privilege applies. The information is also privileged as it relates to an investigative technique. An operation was prepared but not acted upon. The nondisclosure does not impede on the right to full answer and defence. Doc 26270: [ 75 ] The document was disclosed. Doc 73443: [ 76 ] The review is no longer necessary.

It was disclosed and the Applicants do not require the Court to review it. THE “ PLAN DE SÉCURITÉ ” [ 77 ] Numerous “plan d’opération” or “plan de sécurité” were prepared by the RCMP. This document is a report prepared by officers at the RCMP in the course of planning an operation. It is the expected play by play with alternative plans in case things do not unfold according to the original plan. It details the expected role of each team of officers and the officers’ roles. It provides the location and pictures of the location of the operation. Finally, there is personal information of the officers involved.

As mentioned in the title of the document, this is a plan: it can be changed, officers can be replaced, etc. [ 78 ] At the hearing, the Crown unvetted the titles of the headings of the information that was vetted. Doc 38269: DA1-P-3 [ 79 ] The document is the “ plan d’opération ” for the May 17, 2016 operation. This is the original operation that started the investigation. It is, according to the Applicants, important that they receive disclosure of the information as the origin of the investigation is contested and part of application DA-1. [ 80 ] Parts of the documents were disclosed namely: - Situation : a

summary of the facts leading up to the operation - Historique de l’enquête - Mission - Exécution/autorisations judiciaires: detailing the judicial authorization the RCMP planned on seeking - Sujet ciblé et d’intérêt - Commandement et contrôle - Autorisations - Pictures - Évaluation des facteurs de risque pour une intervention planifiée: which provides ample information of the planned operation: location,

summary of the risk assessment - Demande pour le GTI - Demande de surveillance aérienne - Demande d’utilisation de matériel/services des Affaires spéciales I - Email [ 81 ] What is vetted is: - Phases de l’opération - Horaires

- Groupements et tâches - Administration: endroits visés par l’opération - Communication - Parts of liste téléphonique [ 82 ] All the evidence relevant to the actual operation and what happened has been disclosed. According to the Crown, the Applicants have all the notes, reports, and documents relevant to the facts. [ 83 ] The Crown provided a judicial

summary of the vetted information. It asserts that the vetted information is either irrelevant or privileged as an investigative technique. [ 84 ] The information is privileged. At this point, the nondisclosure of most of the information does not impede on the right to full answer and defence. That said, some of the information should be disclosed as it relates to the arguments raised by the Applicants on the origin of the investigation and also, the effect on the public interest privilege is minimal.

For this information, the public interest privilege is outweighed by the right to full answer and defence. [ 85 ] Therefore, the vetting will be maintained except for the following words: p. 32: ʺ le matin de l’opération, soit le 2016-05-18 vers 10h00, une rencontre aura lieu…à la salle de conférence… ʺ p. 33: ʺ … rencontrera le sujet vers 13:15 et lui dira le code et prendra possession de l’argent aux abords du véhicule de l’AI ʺ p. 39: ʺ Nom: Carrefour Angrignon, Numéro civique: 7077, Rue: boulevard Newman Ville: Lasalle Code postal: H8N1X1 Type de bâtiment: Commercial (stationnement), lampadaire 25 ʺ Docs 73461 and 74004 : [ 86 ] These documents are security plans.

They are identical, save for the handwritten notes of a police officer that appear on Doc 74004. Their purpose is the search of the residence of Applicants Gramian-Nik and Geramian-Nik as well as the vehicle of Gramian-Nik. [ 87 ] Parts of the documents were disclosed namely: - Situation - Background of the investigation - Mission - Execution detailing the judicial authorization the RCMP obtained. - DEOC Command and control - Target location and subjects targeted - Authorizations - Appendix A: Warrant - Appendix B: Photo/Map [ 88 ] What is vetted is: - Teams and Tasks -

Schedule - Phases of the Operation - Communications - Status Codes - Contingency Plan - Phone numbers and Name of Teams of Officers [ 89 ] According to the Crown, everything that relates to the actual operation, the arrests, and what happened was disclosed. [ 90 ] The Crown provided a judicial

summary of the vetted information. It asserts that the vetted information is either irrelevant or

privileged as an investigative technique. [ 91 ] The information is privileged. At this point, nondisclosure of most of the information does not impede on the right to full answer and defence. That said, some of the information should be disclosed as it relates to the arguments raised by the Applicants on the use of force.

For this information the public interest privilege is outweighed by the right to full answer and defence. [ 92 ] The vetting will be maintained except for the following words: p. 8 of 21: “ On February 10, 2019 a briefing will be held by…..at the RCMP building located at 345 Harry Walker Parkway S, Newmarket, ON with all the teams involved with this search. The security plan will be presented… ” p. 8 of 21: ʺ Following risk assessment, ERT is required for this search location. Investigation shows that Gramian-Nik might be in possession of a firearm ”.

Doc 18033 : [ 93 ] This document is a plan de sécurité for an undercover operation that was scheduled for the week of December 4, 2017. The operation had been ongoing but did not take place. [ 94 ] What is disclosed is: - Situation - Historique de l’enquête - Mission - Exécution/autorisations judiciaires - Autorisations -

Annexe A: Photo [ 95 ] What is vetted is: - A sentence under the Situation title - Endroit visé - Groupements et tâches - Horaire - Endroit visé par l’opération - Phases de l’opération - Administration: commandements et contrôle, communications - Codes d’état de la situation - Plan de contingence - Endroits visés par l’opération - Cartes et lieu de rencontre - Liste téléphonique [ 96 ] According to the Crown, everything that relates to that part of the investigation has been disclosed. [ 97 ] The Crown provided a judicial

summary of the vetted information. It asserts that the vetted information is either irrelevant or privileged as an investigative technique. [ 98 ] The Court finds that the information is irrelevant and privileged. Furthermore, at this point it does not impede on the right to full answer and defence. Doc 72633: [ 99 ] The document is a security plan. The purpose of the plan is the search of 6032, Yonge St., North York, ON, on February 11, 2019. [ 100 ] Parts of the documents were disclosed namely: - Situation

- Background of the investigation - Mission - Execution - Judicial Authorizations - Target location and subjects targeted - Authorizations - Appendix A: Warrant - Appendix B: Photo/Map [ 101 ] What is vetted is: - Teams and Tasks -

Schedule - Phases of the Operation - Communications - Status Codes - Contingency Plan - Phone numbers and Name of Teams of Officers [ 102 ] According to the Crown everything that relates to the actual operation was disclosed. [ 103 ] The Crown provided a judicial

summary of the vetted information. It asserts that the vetted information is either irrelevant or privileged as an investigative technique. [ 104 ] The information is privileged. At this point, nondisclosure of most of the information does not impede on the right to full answer and defence. That said, some of the information should be disclosed as it could relate to the arguments raised by the Applicants on the use of force.

For this information the public interest privilege is outweighed by the right to full answer and defence. [ 105 ] The vetting will be maintained except for the following parts of the document: p. 7 of 15: ʺ On February 10, 2019 a briefing will be held by…..at the RCMP building located at 345 Harry Walker Parkway S, Newmarket, ON with all the teams involved with this search. The security plan will be presented… ” p. 7 of 15: “ Following risk assessment, ERT is not required for this search location ” Sourcing de l’affiante Jessica Bertrand consulté mais non utilisé [ 106 ] A document was disclosed by the Crown.

It is 500 pages long and is being reviewed by the Applicants. Administrative documents prepared by the Gestion des cas graves since April 27, 2019 [ 107 ] What is asked for is the disclosure of scanning logs, SQL requests and drafting of Laporte inventories, i.e. administrative forms of the RCMP. [ 108 ] The Court heard evidence from RCMP employee Remy Beauchemin. He described the type of documents we are dealing with. They are administrative forms used by employees who scan documents, make computer inquiries in order to prepare a Laporte inventories and so on. [ 109 ] The documents are manifestly irrelevant.

Doc X107: [ 110 ] The judicial

summary of the Crown is V4-Administrative matter. The

summary is: Note d’information concernant les enquê tes de faits pour l’identification de l’utilisateur du numéro de téléphone 514-[...] enregistré à alias ʺ Jean Pitre ʺ. [ 111 ] The information was already disclosed in another form. What is vetted is privileged as an administrative matter of the RCMP. Furthermore, it involves the protection of privacy and public interest. The nondisclosure of the information does not impede on the right to full answer and defence. 3- DA2-PN-4: Docs X90, X97, 53140 :

[ 112 ] These items were disclosed. 4- DA2-PN-5: Doc 24924 : [ 113 ] This item was disclosed. FOR THESE REASONS The Applications for review are granted in part and dismissed in part as per the conclusions enumerated herein for each document. __________________________________ Thierry Nadon, J.C.Q. M e Richard F. Prihoda (Kamel Ghaddar) M e Isabel J. Schurman, Ad.E. (Nader Gramian-Nik and Tania Geramian-Nik) M e Lida Sara Nouraie M e Louis Belleau, Ad.E. (Thomas Hsueh) M e Isabelle Teolis M e Jean Dury (Mohamad Jaber) M e Marc-Antoine Rock M e Éric Sutton (Shabnam Mansouri) M e Raphael H.

Schachter, Ad.E. (Frederick Rayman) M e Gabriel Babineau M e Nicholas St-Jacques ((Mohammadreza Sheikhhassani) M e Giuseppe Battista, Ad.E. (Sahar Shojaei) M e Laurence Juillet Counsels for the Applicants M e Fabienne Simon M e Sabrina Delli Fraine Counsels for the Respondent Dates of hearing: October 27 and 28, 2021 and November 15, 16 and 17, 2021