Date: 19990305
Docket: DES-2-98
BETWEEN:
THE HONOURABLE VAL MEREDITH
Applicant
- and -
FRANK PRATT and
CANADIAN SECURITY INTELLIGENCE SERVICE
Respondents
REASONS FOR ORDER
TEITELBAUM, J.
[1] This is a Notice of Motion filed on behalf of the applicant, the Honourable Val Meredith (Ms. Meredith), to order Barry Denofsky to answer proper questions on his affidavit sworn to on September 11, 1998.
[2] The grounds for the present motion can be found in the Notice of Motion, at pages 2, 3, 4 and 5 of the applicant"s Motion Record.
[3] It is important to note that Mr. Denofsky, representing the respondent, Canadian Security Intelligence Service (CSIS), refused to answer fifty-one questions as his counsel objected to the said questions.
[4] At the hearing before me, it was conceded by counsel for CSIS that thirty-nine of the fifty-one questions were proper questions. That is to say, counsel for CSIS withdrew her objection to thirty-nine of the fifty-one questions. Those thirty-nine questions were answered by counsel for CSIS in writing.
[5] In my Order of October 5, 1998, I ordered that the affiant of the respondent CSIS, Mr. Denofsky, be examined without prejudice to CSIS objecting to any question put to the affiant should the question relate to issues of national security.
[6] It is clear from my October 5, 1998 Order that an objection should only have been made by counsel for CSIS if the question was not relevant, was frivolous or related to issues of national security.
[7] The fifty-one questions objected to need not be reproduced in this decision. For those interested in reading the fifty-one questions objected to, they can be found under Tab "D" in the applicant"s Motion Record.
[8] As I have stated, counsel for CSIS now objects to twelve of the fifty-one questions. These are numbers 1 to 9, 11, 34 and 51.
[9] To better understand my decision, I believe it necessary to reproduce the twelve questions to which CSIS continues to object because, in the opinion of CSIS" counsel, the questions relate to issues of national security.
[10] Number 1, Question 62, states:
| Do you know how much time Mr. Corcoran spent in carefully reviewing and considering the list of questions attached to his Certificate dated June 30, 1998? |
[11] Mr. Corcoran is a Deputy Director of Operations (see page 5 of cross-examination of Denofsky, October 20, 1998). He signed a Certificate pursuant to sections 37 and 38 of the Canada Evidence Act on June 30, 1998.
[12] The question relates to how much time Mr. Corcoran spent in "carefully" reviewing and considering the list of questions attached to his Certificate. I see no need for Mr. Denofsky to answer this question as I cannot see the relevancy of same. The amount of time Mr. Corcoran may have spent in reviewing and considering the questions attached to the Certificate does not, in my opinion, make the Certificate more or less valid.
[13] The Certificate was filed for purposes of national security and I will decide that issue, if necessary, at a later time.
[14] Numbers 2 and 3, Question 62, state:
| Would you ask Mr. Corcoran what he did to carefully review and consider the questions in the Certificate? |
| Will you ask Mr. Corcoran how much time he spent, what the nature of his review was, what documents he may have reviewed, and who he may have spoken with to come to the conclusion that he did? |
[15] I am of the same view as question number 1. In addition, I am satisfied that for Mr. Corcoran to state what documents he may have reviewed and to whom he may have spoken with to come to the conclusion that he did may involve the issue of national security.
[16] Number 4, Question 64, states:
| Are you prepared to ask Mr. Corcoran or make inquiries of anyone else within CSIS as to how they learned that the Defendant was pursuing a motion (which was held in the Ontario Court General Division July 7, 1998)? |
[17] I see no reason why this question should not be answered.
[18] Number 5, Question 65, states:
| Wall objects to answering questions related to the Certificate, how it was filed or why it was filed. |
[19] This is not a question but is a statement. What can Mr. Denofsky say regarding this statement?
[20] Number 6, Question 65, states:
| Was the Service aware of the date of the July 7 motion in the Ontario Court (General Division) by June 30, 1998? |
[21] I believe that this question may be relevant and does not, on the evidence before me, relate to issues of national security.
[22] Number 7, Question 66, states:
| Was it, by June 30, 1998, CSIS" position that disclosure of the information contained in the list of objections attached to the Certificate would be injurious to the national security of Canada? |
[23] I am satisfied that this question can be answered by a simple yes or no. If the answer is yes, Mr. Denofsky cannot be asked any questions as to why CSIS is of the view that the issue of national security is involved.
[24] Number 8, Question 68, states:
| Do you have any evidence to suggest that counsel for CSIS was not in attendance at the motion on July 7, 1998 in the Ontario Court (General Division)? |
[25] The question is not relevant to the issue of the validity of the Certificate and need not be answered.
[26] Number 9, Question 69, states:
| Do you agree that no appeal was launched in respect of the Order of Justice MacLeod, dated July 7, 1998? |
[27] This question need not be answered as I do not see the relevancy of the question. Surely, whether Mr. Denofsky agrees or disagrees as to whether an appeal was filed from the Order of Justice MacLeod, does not make, by itself, the Certificate filed by Mr. Corcoran more or less valid.
[28] Number 11, Question 85, states:
| Was CSIS" concern in filing the Certificate that it did not want information to come out into the public record about the nature of the CSIS investigation into this Russian translator? |
[29] This question can have serious consequences relating to national security and should not be answered. It may, at a later date, be determined that there is no issue of national security but even to state, with a yes answer, that CSIS has a concern about the nature of CSIS"s investigation may, indirectly, affect Canada"s national security.
[30] This question should not be answered.
[31] Numbers 34 and 51, Questions 139 and 192, state:
| Do you feel that Hensler"s comments would be injurious to the national security of Canada? |
| Do you have information respecting the date on which CSIS reported back to SIRC following SIRC"s recommendations? |
[32] With due respect for the submission of counsel for the applicant, I do not see how Mr. Hensler"s comments could be relevant or help the Court to determine the validity of the Certificate. Nor do I believe it would be helpful to the Court to determine the validity of the Certificate, at this time, to know the date on which CSIS reported back to SIRC following SIRC"s recommendations.
[33] These two questions need not be answered.
[34] I believe it must be made abundantly clear that the only issue before this Court is to determine the validity of the Certificate filed pursuant to sections 37 and 38 of the Canada Evidence Act.
[35] Counsel for the applicant states that "the central issue for this Court (Federal Court) to determine is whether that Certificate can effectively nullify Justice MacLeod"s Order".
[36] I am not sitting in judgment of Justice MacLeod"s Order. I know that Madame Justice MacLeod issued an Order and I am satisfied it is a valid Order if not overturned on appeal. Nevertheless, her Order does not bind me in making a decision on the validity of Mr. Corcoran"s Certificate filed pursuant to the Canada Evidence Act . The fact that Mr. Corcoran"s Certificate is dated before Justice MacLeod"s Order does not, in itself, nullify the effects of the Certificate filed.
[37] Madame Justice MacLeod"s Order did not concern itself with the issue of national security. It concerned itself with whether the questions to be asked were relevant to the case proceeding in the Ontario General Court. The issue before me is to determine the validity of the Certificate and to ultimately determine if the issue of national security will be an issue if answers to questions are given.
[38] Although an individual such as Mr. Denofsky who signs an affidavit is subject to cross-examination on the affidavit, pursuant to the Canada Evidence Act, sections 37 and 38, a Certificate filed pursuant to these sections may prevent replies to certain questions if national security issues become involved.
[39] Having considered the twelve questions objected to by the respondent CSIS, I hereby order that Mr. Denofsky return to be cross-examined on his affidavit at a time and place agreed to by the parties and answer questions numbered 4, 6 and 7 (questions 64, 65 and 66 respectively).
COSTS
[40] Counsel for the applicant made a strong submission that costs be awarded to the applicant notwithstanding my decision with regard to the present application.
[41] Normally, costs are awarded to the side in whose favour judgment is pronounced. In the present case, there is a mixed decision. My order is that Mr. Denofsky is to answer three of the twelve questions objected to.
[42] In a case where both parties have established submissions as to why some questions should be answered and some not answered, I would either award no costs or costs in the cause would be awarded.
[43] In the circumstances of the present case, I award costs, in a lump sum of $2,500.00, to the applicant.
[44] At the cross-examination of Mr. Denofsky, counsel for the respondent CSIS objected to fifty-one questions. This is her right. In the present case, after making fifty-one objections at the cross-examination, it was not until one or two working days before the hearing of the applicant"s motion that counsel for CSIS decided to concede thirty-nine of the said objections. This meant that counsel for the applicant had to prepare and file a Notice of Motion for all fifty-one questions objected to and had to prepare to make submissions on all fifty-one objections.
[45] How much simpler matters would have been if counsel for CSIS had reviewed, soon after the cross-examination, the questions to which she objected and then inform counsel for the applicant that she maintains her objection only with regard to twelve questions. It is quite possible that had counsel for the applicant been made aware that twelve questions remained a problem, the matter might have been amicably agreed to saving much time and expense.
CONCLUSION
[46] Mr. Denofsky shall return to be cross-examined in accordance with these reasons and the respondent shall pay to the applicant costs in the sum of $2,500.00.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
March 5, 1999