R. v. Nuttall, 2015 BCSC 1125

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Nuttall, 2015 BCSC 1125 Date: 20150625 Docket: 26392 Registry: Vancouver Regina v. John Stuart Nuttall and Amanda Marie Korody Restriction on Publication: Pursuant to ss. 486.5(1) and 486.5(9) of the Criminal Code there shall be no publication, broadcast or transmission in any way of any information that could identify any undercover police officers including any pseudonyms used by the undercover police officers involved in the investigation of the Accused. This publication ban applies until further order of the Court.

These reasons for judgment comply with this publication ban. Before: The Honourable Madam Justice Bruce Oral Ruling re Disclosure of CSIS-related Information In Chambers Counsel for the Crown: Peter A. Eccles Sharon K. Steele Counsel for CSIS: Donnaree G. Nygard Counsel for the Accused, John Stuart Nuttall: Marilyn E. Sandford Alison M. Latimer Counsel for the Accused, Amanda Marie Korody: Marilyn E. Sandford (As agent for Mark R. Jetté and Scott Wright) Place and Date of Hearing: Vancouver, B.C. June 22 and 23, 2015 Place and Date of Judgment: Vancouver, B.C.

June 25, 2015 [ 1 ] THE COURT: This is an application by the accused for production of records, reports, and intelligence information from CSIS and the Crown that relate to the issues raised by the defence case on entrapment and abuse of process.

The nature of the information sought is referred to in paragraphs 1 and 2 of the notice of application, disclosure of CSIS-related information, filed on June 15, 2015. [ 2 ] Although the accused initially sought orders for production of the files of CSIS regarding two persons who may or may not have been human sources for CSIS during the period of the RCMP undercover operation, they have abandoned this part of their application.

Section 18.1 of the Canadian Security Intelligence Service Act , R.S.C. 1985, c. C-23, which governs CSIS, prohibits the disclosure of any information concerning its human sources without the consent of the Director and the person involved. Further, a challenge to this prohibition is exclusively within the jurisdiction of the Federal Court. [ 3 ] The accused’s application in relation to the Crown seeks full disclosure of any and all information related to Mr. Nuttall and/or Ms.

Korody that was shared with the RCMP by CSIS, and any and all evidence that was gathered as a result of information shared with the RCMP by CSIS. The accused also seek an order compelling the Crown to make an official request to CSIS to provide any relevant information from its files. [ 4 ] In relation to CSIS, the accused seek a broad range of records, reports, and information relevant to their claim of entrapment and abuse of process on the ground that the CSIS investigation of Mr.

Nuttall during the period of late 2011 until July 2013 was so intertwined with the RCMP investigation that they were essentially one and the same investigation leading to the prosecution of the accused.

In the alternative, the accused claim that the disclosure sought from CSIS meets the O'Connor test of likely relevance and should thus be disclosed to the court in the first phase of that process. [ 5 ] The Crown opposes the accused’s application for disclosure on the ground that it has already produced all of the relevant information that was shared with the RCMP by CSIS, and subject to some limited exceptions that it has undertaken to investigate, it has produced all of the evidence derived from information shared with the RCMP by CSIS. [ 6 ] Further, the Crown says that it has made a request for disclosure to CSIS, and CSIS has declined to disclose any further

information. [ 7 ] CSIS opposes the accused’s application for disclosure on the ground that the evidence falls far short of establishing that its investigation of the accused was so interwoven with that of the RCMP that it should be subject to any first party disclosure obligation consistent with Stinchcombe . Further, CSIS argues that the disclosure sought by the accused does not meet the test of likely relevance under the O’Connor test.

Crown Disclosure and Production Orders [ 8 ] Addressing the accused’s application for Crown disclosure, it is common ground that any information that was shared with the RCMP by CSIS must be produced to the Crown for vetting and disclosure pursuant to the principles in Stinchcombe . The Crown argues that it has fulfilled its obligation in this regard by disclosing all of the information provided by CSIS to the RCMP that was relevant to their investigation of the accused, subject to redaction for national security.

Apart from the material already disclosed to the defence, the Crown maintains the records and information sought by the accused are irrelevant to the entrapment argument. [ 9 ] The defence argues that the disclosure to date indicates that CSIS shared information with Inspector Bond of the RCMP that was not passed on to the officers involved in the undercover operation regarding the accused and was similarly not produced to the defence.

Further, the accused say that while certain information was produced that came from CSIS, the RCMP failed to produce the actual documents or records. [ 10 ] The defence claim of entrapment renders any evidence related to the instigation of the RCMP investigation into Mr. Nuttall and, latterly, into Ms. Korody potentially relevant and therefore producible pursuant to the principles of Stinchcombe . The defence argue that the RCMP did not have a reasonable suspicion that the accused were engaged in similar criminal activity when they provided them with an opportunity to commit the index offences.

Accordingly, any information that CSIS shared with the RCMP that is potentially relevant to the commencement of the RCMP investigation into the accused’s criminal activities must be produced to the defence.

Further, any evidence gathered by the RCMP as a result of information shared by CSIS that led to its own investigation must be produced to the defence. [ 11 ] I am also satisfied that information CSIS shared with the RCMP after the RCMP investigation began is potentially relevant to the defence of entrapment because the CSIS information may have played a role in the RCMP investigation, the crafting of the scenarios, and the determination of the objects of the scenarios. What the RCMP learned about Mr.

Nuttall from outside sources such as CSIS may also be potentially relevant to the credibility of police witnesses, if any, who testify at the trial. [ 12 ] I have reviewed the disclosure materials provided by the Crown to the defence that relate to communications and liaison between CSIS and the RCMP, primarily through Inspector Bond. In my view, it is apparent that Inspector Bond learned things about the CSIS investigation into Mr. Nuttall’s activities that he did not commit to writing in his notes.

In addition, it is apparent that the inspector received and reviewed documents shared by CSIS that were not provided to the defence. [ 13 ] Inspector Bond was in contact with CSIS about Mr. Nuttall as early as December 2012. On December 19, 2012, the inspector recorded his intention to request information from CSIS about Mr. Nuttall. He also recorded that he had a discussion with CSIS regarding investigations CSIS may have an interest in regarding Mr. Nuttall.

However, the inspector recorded nothing specific about his discussions with CSIS employees. [ 14 ] On January 16, 2013, Inspector Bond recorded that during a meeting with CSIS in Ottawa he learned that CSIS had “unverified general concerns about one John Stuart Nuttall”. The inspector then commented that Mr. Nuttall was well known to the police and could present a threat to public safety. As a result of his meeting with CSIS, the inspector directed an investigation into Mr. Nuttall to determine if CSIS’s concerns could be verified.

In my view, it would be highly unusual for a senior RCMP officer to direct an investigation where all that was shared was unverified general concerns without any specifics as to the nature of those concerns. [ 15 ] Moreover, a few days later, on January 29, 2013, the inspector was shown a disclosure letter by CSIS that indicated these unverified general concerns rendered Mr. Nuttall a present “threat to public safety”. Disclosure letters, I have learned, are to be treated as a tip and are to be used by the RCMP to do their investigation to determine whether it can be verified.

The additional elaboration regarding the “nature of the concerns” CSIS had about Mr. Nuttall as recorded in the disclosure letter suggests that the inspector must have been privy to additional, even if minimal, information about Mr. Nuttall that was disclosed by CSIS at their earlier meeting. [ 16 ] Further, an internal RCMP document dated January 28, 2013, indicates that the concern about Mr. Nuttall being a risk to public safety was regarded as coming from a “reliable source”. This reference also suggests the inspector knew more about the source of CSIS’s intelligence than he recorded in his notes.

The disclosure letter contained no details regarding the source of the information. Consequently, it is logical to conclude that Inspector Bond learned this information from CSIS. [ 17 ] On January 21, 2013, the inspector’s notes indicate that a disclosure letter was received from CSIS that related to Mr. Nuttall. However, the RCMP indicated in an information to obtain dated February 16, 2013, for a dial number recorder warrant, that it only reviewed such a document. The Crown confirmed during the hearing that the RCMP did in fact receive the disclosure letter regarding Mr. Nuttall.

This document was not disclosed to the defence. [ 18 ] In late January 2013, there were several discussions between the inspector and CSIS about providing an advisory letter regarding Mr. Nuttall. An advisory letter is more carefully prepared by CSIS than a disclosure letter. Its contents are reviewed by their legal counsel to determine the risks posed by the disclosure of any information contained therein. Inspector Bond provided a will-say for the Court that indicates CSIS will source and confirm the contents of an advisory letter if required by the Court.

However, the Crown informed the Court during the hearing that CSIS may refuse to source and confirm the contents of an advisory letter even if it has previously approved the use of the advisory letter and its contents in a warrant application.

[ 19 ] On January 28, 2013, the inspector recorded that he was disappointed about the level of cooperation exhibited by CSIS regarding the investigation of Mr. Nuttall. However, subsequent notes made by the inspector indicate that CSIS continued to share information. On February 2, 2013, the inspector made very brief notes of what was disclosed to him by CSIS about Mr. Nuttall which clearly had to have been elaborated upon to have any meaning whatsoever.

For example, the inspector wrote the following: “has serious intentions”, “on the move”, “activities attempting to recruit”, without any indication as to what these phrases meant in relation to Mr. Nuttall. Clearly, more information was provided to the inspector to permit him to understand the nature of the information provided as he has recorded it. [ 20 ] The inference that more information was provided is made apparent by the inspector’s immediate insistence that an advisory letter be forwarded to the RCMP so that the information could be acted upon and used to obtain a warrant.

The fact that the inspector’s notes later the same day include references to certain details regarding Mr. Nuttall that were not provided by CSIS is in sharp contrast to the earlier notes which contain no such references to omissions by CSIS in regard to such details. [ 21 ] Moreover, at the February 2, 2013 meeting with CSIS, the inspector recorded that information he received from CSIS would not be passed on to the investigators handling Mr. Nuttall’s surveillance and investigation.

The inspector failed to record the information that he received from CSIS that was not going to be given to the officers investigating Mr. Nuttall. The inspector also recorded that CSIS shared with him “another method of engagement” and that he was not going to pass on to other RCMP officers and which he failed to record any details of. Lastly, he recorded that the “tactics of CSIS” were not going to be passed on to the investigators, which clearly suggests that he was made aware of their tactics. [ 22 ] On February 4, 2013, the inspector referred to closing “the gap of activities that is concerning to CSIS”.

Although the inspector recorded that the details of this reference could not be shared, he obviously knew what CSIS was referring to, but his cryptic notes obfuscate their meaning. [ 23 ] On April 13, 2013, the inspector recorded, in a discussion with another RCMP officer, the fact that communications with CSIS about Mr. Nuttall were not to be recorded as long as this would not have an adverse impact on grounds for a warrant.

This is another clear indication that some of the matters disclosed by CSIS were not included in the inspector’s notes. [ 24 ] In my view, the inspector’s notes as a whole lead invariably to a conclusion that they are not a complete record of his communications with CSIS about Mr. Nuttall. Further, it is beyond question that the RCMP failed to disclose the disclosure letter regarding Mr. Nuttall to the defence. Production orders are therefore required to ensure the defence have all of the disclosed and shared information that flowed from CSIS to the RCMP about Mr.

Nuttall both before and during the RCMP investigation. [ 25 ] Accordingly, I order that the Crown obtain from Inspector Bond a will-say statement that includes an explanation and elaboration of all of his notes of the discussions with the CSIS employees regarding Mr. Nuttall to ensure that the defence have a complete description of what was said and a full understanding of the inspector’s abbreviated references and phrases. [ 26 ] Further, I order that the Crown obtain from Inspector Bond a will-say statement that includes any information he obtained from CSIS regarding Mr.

Nuttall that was not recorded in his notes at the time. The will-say statement must also include the names of any RCMP officer with whom Inspector Bond shared this unrecorded information and the circumstances surrounding the passing on of this information. [ 27 ] Because it may well be that Inspector Bond has no memory of the information he obtained from CSIS about Mr. Nuttall that was not reduced to writing at the time of the events, I order the Crown to make official inquiries of CSIS in regard to the information provided by its employees to the RCMP regarding Mr.

Nuttall during the period December 2012 to July 1, 2013, and to request production of the same for the purpose of disclosure to the defence. This order is pursuant to the Crown’s duty to bridge the gap of disclosure as an officer of the court: R. v. McNeil , 2009 SCC 3 at paras. 48-51 . [ 28 ] Although the Crown has previously requested disclosure from CSIS, this official request is specifically limited to the notes and records maintained by CSIS with regard to its shared communications with the RCMP concerning Mr. Nuttall.

It is not a general request to open up its files and disclose any relevant information. [ 29 ] Lastly, and in respect of this matter, I order the Crown to produce to the defence the disclosure letter concerning Mr. Nuttall that was received by the RCMP from CSIS in or about January 2013. Redactions will be permitted regarding the identification of any human sources and any information that does not relate to Mr. Nuttall.

In this regard, the Crown indicated that the disclosure letter may include references to other files. [ 30 ] Turning to the evidence derived from the advisory letter received by the RCMP from CSIS on February 7, 2013, I find that this evidence is clearly relevant to whether the RCMP had a reasonable suspicion to commence an investigation into Mr. Nuttall’s activities.

It is apparent that while some of this evidence has been produced to the defence, much of the police investigation into the advisory letter was redacted on the grounds of national security (and here I am referring to the RCMP Task Force Report number 76 and the notes of Constable Drummond) and other portions of the derived evidence was withheld from the defence. [ 31 ] If the only information obtained from CSIS is that contained in the advisory letter dated February 7, 2013, it follows that nothing in the task force reports or the notes of the investigators could be redacted on the grounds of national security.

The advisory letter was not redacted on the grounds of national security, and the RCMP notes and reports relate to evidence gathered to verify the contents of the advisory letter. [ 32 ] It is also apparent that while the defence were given a brief description of the security video footage obtained from the pharmacy, the defence has not been given a copy of the video footage. During the hearing of this matter the Crown indicated that it now had a copy of the video surveillance and was attempting to make it viewable.

The Crown does not object to producing the video to the defence. [ 33 ] In order to properly fulfil the Crown’s disclosure obligation in Stinchcombe , the Crown must produce to the defence all

evidence derived from its investigation into the veracity and reliability of the contents of the advisory letter of February 7, 2013.

This would include all notes of investigating officers, including any previously redacted portions of their notes, subject to the usual exceptions for privilege; contact numbers and addresses of witnesses; all task force reports, including any previously redacted portions of the reports, subject to the same usual exceptions; any video surveillance obtained by the police; and whether or not any witnesses were interviewed and, if so, the notes of their interviews and/or statements of witnesses interviewed, if any. [ 34 ] The balance of the defence application regarding production by the Crown concerns the disclosure of information concerning two persons who may or may not be CSIS human sources.

As set out earlier, I have treated this part of the application as essentially withdrawn or abandoned. CSIS Production [ 35 ] CSIS and the RCMP are independent state agencies and are not indivisible for the purposes of compliance with Stinchcombe . CSIS is primarily an investigative body and has no power to prosecute. Where CSIS comes across information that may involve criminal activity, it may provide this information to the RCMP to investigate.

Section 19 of the Canadian Security Intelligence Service Act prohibits disclosure of information gathered by CSIS in the performance of its mandate, except in limited circumstances including where the information is required to be disclosed to the police for the purposes of conducting a criminal investigation.

In contrast, the RCMP has full authority to investigate for the purpose of prosecuting criminal offences. [ 36 ] McNeil establishes that where two state agencies maintain separate but parallel investigations into a suspect, they remain distinct for the purpose of compliance with Stinchcombe and any application for production or disclosure of information has to be based on the principles of O’Connor . It is only when the investigations become so interwoven that they are, in reality, one investigation leading to a prosecution that the disclosure obligations of Stinchcombe apply to both state agencies.

Further, when another state agency such as CSIS takes an active role in the police investigation, the court may conclude that there was essentially only one investigation giving rise to a Stinchcombe disclosure obligation on the secondary state agency. [ 37 ] In this case, CSIS and the Crown maintain that the RCMP investigation of Mr. Nuttall and Ms. Korody remained independent and did not become so intertwined or interwoven as to essentially be one investigation. The defence argues that CSIS and the RCMP not only shared information with each other, but CSIS also provided surveillance coverage of Mr.

Nuttall when the RCMP was unable to do so. CSIS instigated the police investigation through a disclosure letter and an advisory letter and attempted to direct the intensity of the RCMP surveillance. [ 38 ] In my view, this is not a case where the two investigations became intertwined to the extent that they must be regarded as one investigation or, alternatively, a case where CSIS played an active role in the RCMP investigation to the extent that they must be regarded as bound by the Stinchcombe disclosure obligation. There was a single disclosure letter indicating that Mr.

Nuttall was a public safety concern and a single advisory letter indicating that Mr. Nuttall had attempted to purchase potassium nitrate on January 28, 2013. There was some sharing of information derived from their respective investigations; however, this sharing of information did not lead to a combined investigation by the two state agencies. [ 39 ] CSIS was investigating Mr. Nuttall pursuant to its mandate, and it coordinated some periods of surveillance with the RCMP when the police or CSIS was not available for coverage. The RCMP file information regarding their surveillance of Mr.

Nuttall was available to CSIS; however, the evidentiary record before me does not indicate that CSIS shared any of their surveillance with the RCMP and counsel for CSIS confirmed that CSIS did not share surveillance reports with the RCMP. [ 40 ] Unlike the circumstances in R. v. Malik , 2002 BCSC 864 , CSIS and the RCMP did not have full access to each other’s files. Further, in the case at hand, most of the interaction between CSIS and the RCMP regarding their respective investigations of Mr. Nuttall was to ensure there were no conflicts or misunderstandings caused by the parallel investigations.

The fact that this type of communication was necessary does not indicate that the two investigations were interwoven within the meaning of McNeil . It is natural that when two state agencies undertake clandestine surveillance of a target, problems can arise if neither agency knows of the existence of the other or how the other is interacting with the target. The RCMP could easily unwittingly compromise the CSIS investigation by the actions of its undercover officers or its surveillance officers, and vice versa. [ 41 ] There were instances when CSIS raised concerns with the RCMP, such as Mr.

Nuttall purchasing a gun and whether the Boston Marathon bombing would trigger any response from Mr. Nuttall. However, these types of communications only indicate that the two state agencies were investigating the same person and had similar concerns about his behaviour.

It does not indicate that their investigations were interconnected in the manner contemplated by McNeil . [ 42 ] Further, while it appears the RCMP was providing CSIS with details of its scenarios and surveillance, it did so to avoid any conflict with the parallel CSIS investigation, and there appears to have been little reciprocation by CSIS in terms of the sharing of information they gathered pursuant to their own investigation. [ 43 ] The defence maintains that it is not known how extensive the information sharing was between CSIS and the RCMP because the notes of Inspector Bond are incomplete and CSIS has refused to disclose its records regarding Mr.

Nuttall. I agree that the basis of my orders in regard to the Crown stem from a conclusion that Inspector Bond learned more from CSIS than is contained in his notes. Nevertheless, the fact that additional information sharing occurred does not, in itself, result in a conclusion that the two investigations were intertwined in a manner that justifies the imposition of a Stinchcombe disclosure obligation on CSIS. [ 44 ] The CSIS investigation and the RCMP investigation were, in their essence, independent and separate investigations into Mr.

Nuttall’s activities despite the ongoing communication between the two state agencies during the RCMP undercover operation. It is significant that Inspector Bond kept some of the information he learned from CSIS from the officers who were involved in the operation to ensure their investigations remained untainted and essentially independent.

[45] There is far less interaction and consultation in the case at hand than occurred in R. v. Ahmad, (Ont. S.C.J.),where the court concluded that the Stinchcombe disclosure obligation did not apply. The same can be said for the facts in R. v. Jaser,2014 ONSC 6052, and R. v. Alizadeh, 2013 ONSC 5417, and yet in these cases CSIS was treated as a third party vis-à-vis its disclosureobligation. [46] I am thus satisfied that the proper procedure for compelling disclosure by CSIS is found in the O’Connor test.

It must beregarded as a third party for purposes of the disclosure in this case. [47] The threshold test in O’Connor is whether the records requested are likely relevant, which has been defined as a reasonablepossibility that the information is logically probative to an issue at trial. As the Supreme Court of Canada said in McNeil at para. 33: [33] “Likely relevant” under the common law O’Connor regime means that there is “a reasonable possibility that the information islogically probative to an issue at trial or the competence of a witness to testify” (O’Connor, at para. 22 (emphasis deleted)).

An “issue attrial” here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, butalso “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case” (O’Connor, at para. 22). At thisstage of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be usedat trial.

The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossibleCatch-22 position. [48] I will address each of the defence requests for production and disclosure in order as follows. [49] First, the defence says that in late 2011 or early 2012, Mr. Nuttall’s landlord, with Mr. Nuttall’s knowledge and consent,contacted CSIS to express concerns about some people with whom Mr. Nuttall had become acquainted and who appeared to have radicaljihadist views. Mr. Nuttall voluntarily met with CSIS to discuss these persons.

The defence seek all information in the possession ofCSIS concerning Mr. Nuttall’s contact with CSIS and disclosure of any investigations that subsequently led to Mr. Nuttall becoming aCSIS target. Although the defence also seeks to know whether any of the persons disclosed by Mr.

Nuttall became human sources, Imust treat this part of their application as withdrawn in light of s. 18.1 of the Canadian Security Intelligence Service Act. [50] The issues at stake in the balance of the trial of the accused are limited to those relevant to an abuse of process and entrapment.The other substantive issues have been decided by the jury who convicted the accused on Counts 1 and 4 of the indictment. The nature ofthe issues to be decided at this stage in the trial inform the “likely relevant” test. [51] I have found that the CSIS investigation of Mr.

Nuttall was not intertwined with the RCMP investigation such that CSIS issubject to the Stinchcombe disclosure obligation. The evidentiary record before me does not indicate that CSIS played any significantrole in the undercover operation apart from conducting parallel surveillance that was not shared with the RCMP. Thus the only stateagency that can be found to have violated the accused’s Charter rights or found to have entrapped them is the RCMP. [52] Consequently, records of any meeting with Mr.

Nuttall or information concerning any subsequent investigation flowing fromsuch a meeting that were not shared with the RCMP are not likely relevant to the issue of entrapment or abuse of process or likelyrelevant to the credibility of witnesses. [53] If CSIS’s investigation of Mr. Nuttall, as a result of an interview with him in 2011 or 2012, produced information that wasshared with the RCMP before or in or about the time the RCMP commenced its own investigation, then it is likely relevant in the senseof being logically probative of an issue at trial.

In this regard, the basis for the commencement of the RCMP investigation into Mr.Nuttall’s activities is a key issue in the entrapment defence. Information received from CSIS regarding Mr. Nuttall would likely havebeen a consideration in the commencement of the RCMP investigation. [54] Accordingly, pursuant to the first step of the O’Connor procedure, I order CSIS to produce to the Court, any informationconcerning Mr. Nuttall that it shared with the RCMP in or about November 2012 to February 2013, which was derived from a meetingwith Mr.

Nuttall or any investigation that was commenced as a result of a meeting with Mr. Nuttall. [55] Second, the defence seeks from CSIS disclosure of any information in its possession related to the accused that formed the basisfor its communications with the RCMP between November 2012 and February 7, 2013, the date of the advisory letter. This part of thedefence application is based on their theory that CSIS’s investigation was an integral part of the RCMP investigation. However, asoutlined earlier, I have rejected this argument.

In my view, based on my conclusion that CSIS’s investigation remained independent ofthe RCMP investigation of the accused, only information that was actually shared with the RCMP can be logically probative of an issuerelated to an abuse of process or entrapment.

It is only the RCMP that can be found to have entrapped the accused or breached theirCharter rights, and if the RCMP had no knowledge of the information, it cannot have affected or influenced their actions. [56] For these reasons, I do not grant an O’Connor order regarding this request for production. [57] Third, the defence seek production from CSIS of all the information derived from its investigation of Mr. Nuttall during theperiod of the RCMP investigation between February and July 2013.

Again, I must conclude that unless this information was shared withthe RCMP, it cannot be relevant to the issues of abuse of process or entrapment. I have ordered the Crown to make an official request forCSIS’s notes and records of its communications with the RCMP regarding Mr.

Nuttall during the period December 2012 to July 2013.This is the only information that could be logically probative of an issue related to entrapment or abuse of process because it came intothe possession of the RCMP before and during its own investigation. [58] If CSIS refuses to comply with this request, the defence may renew their application for disclosure under the O’Connorprocedure. However, the Court will not grant an open-ended disclosure order regarding CSIS’s investigation of Mr.

Nuttall because onlyinformation actually shared with the RCMP could be probative of an issue at trial. [59] Lastly, the defence seeks production from CSIS of the source and background information in its possession that led to theadvisory letter of February 7, 2013. The defence argues that the veracity and reliability of the contents of the advisory letter are relevant

to whether the RCMP acted on a reasonable suspicion when it commenced its own investigation into Mr. Nuttall’s activities. CSIS argues that unless the RCMP was provided with source and background information regarding the advisory letter, it is irrelevant to the issue of reasonable suspicion. [ 60 ] I agree with CSIS’s submission. The statements contained in the advisory letter do not include anything about the source of the information or the reliability of the source. The fact that the advisory letter came from CSIS cannot, standing alone, provide any assurance of reliability.

It was up to the RCMP to verify the information contained in the advisory letter before relying on the letter as a basis for embarking upon its own investigation.

The advisory letter could not be used to establish a reasonable suspicion on its own without any indication of its reliability or veracity beyond being on CSIS letterhead. [ 61 ] Accordingly, how CSIS obtained this information and whether CSIS verified the information through sources is irrelevant to the issues of entrapment or abuse of process if the RCMP was not apprised of this information. [ 62 ] If, on the other hand, CSIS shared background and source information concerning the contents of the advisory letter with the RCMP, it is likely relevant to the issue of reasonable suspicion.

Thus pursuant to the first step of the O’Connor procedure, I order CSIS to disclose to the Court whether or not it shared with the RCMP any further information about the advisory letter and, if so, what information was shared with the RCMP concerning this letter and when it was shared.

Summary [ 63 ] Both in terms of the orders directed at the Crown to make official requests for disclosure from CSIS and in terms of the O’Connor orders made directly against CSIS, the Court has limited the scope of the orders to information regarding Mr. Nuttall contained in CSIS records that was actually shared with the RCMP immediately before and during the RCMP undercover operation. The orders made by the Court do not encompass any information that was not shared with the RCMP during this timeframe.

The Court expects that CSIS will redact any material that could identify its human sources as well as the identity of its employees. [ 64 ] It is apparent that both the Crown and CSIS will require some time to comply with the orders made by the Court. In the case of CSIS, it will require time to consider whether a proceeding under s. 38 of the Canada Evidence Act , R.S.C. 1985, c. C-5 is necessary. Accordingly, I would like your submissions on what a reasonable timeframe for completion of this process might be.

If there is to be a s. 38 proceeding in Federal Court and the defence intends to bring its own application in Federal Court under s. 18.1 of the Central Security Intelligence Act , these applications should, if possible, be pursued jointly to save some time, expense and resources. “Bruce J.”