TOP SECRET Date: 20230811

Docket: DES-3-18 Citation: 2023 FC 1100

Ottawa, Ontario, August 11, 2023

PRESENT: Madam Justice St-Louis

BETWEEN:

THE ATTORNEY GENERAL OF CANADA

Applicant

and

ABOUSFIAN ABDELRAZIK AND LAWRENCE CANNON

Respondents

JUDGMENT AND REASONS

I. Overview

[1] On September 14, 2018, the Attorney General of Canada [the Applicant or the AGC] filed an application under subsection 38.04(1) of the Canada Evidence Act, RSC 1985, c C-5 [the CEA], asking the Court for an order with respect to disclosure of information about which notices were given to the AGC [the Information at Issue] under subsections 38.01(1) and 38.01(3) of the CEA [the Application].

[2] The AGC filed his Application in the broader context of a civil liability action [the underlying proceeding] commenced in September 2009 by Mr. Abousfian Abdelrazik, one of the Respondents in this Application. In his underlying proceeding, Mr. Abdelrazik claims damages against both His Majesty the King and Mr. Lawrence Cannon for serious violations of his fundamental human rights as protected and guaranteed by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (UK), 1982, c 11 [the Charter] and the customary international law prohibition against torture. Mr. Abdelrazik seeks a total of $27 million in damages from the Defendants for, generally (a) his arrest and detention in Sudan; (b) his alleged mistreatment and torture while in prison in Sudan; and (c) the alleged failure of Canadian officials to facilitate his return to Canada prior to June 2009. Approximately 6000 documents produced by the AGC to Mr. Abdelrazik in the underlying proceeding contained redactions under section 38 of the CEA.

[3] In the notices given to the AGC, Department of Justice counsel advised that they believed sensitive or potentially injurious information, contained in a total of 1469 documents, may be disclosed in connection with the underlying proceeding. The AGC thus brought his Application in respect of this subset of 1469 documents which contain Information at Issue that is redacted in said documents.

[4] In his Application, the AGC asks the Court for an order under subsection 38.06(3) of the CEA confirming the prohibition of disclosure of the Information at Issue, except as previously authorized by the AGC under subsection 38.03(1) of the CEA. In his Memorandum of Fact and Law, the AGC also asks the Court, where advisable, to authorize the issuance of his proposed summaries under subsection 38.06(2) of the CEA.

[5] Mr. Abdelrazik seeks an order pursuant to section 38.06 of the CEA authorizing the disclosure of some of the Information at Issue.

[6] As part of the proceedings in this Application, the Court appointed two amici curiae [the amici] to assist it in performing its statutory obligations under section 38 of the CEA. Before being given access by the Court to the classified information submitted for review, the amici met with counsel for Mr. Abdelrazik to discuss his position in the underlying proceeding and thus guide the amici in reviewing the Information at Issue. As detailed below, the amici have participated in the in camera ex parte proceeding; they ask the Court to direct the disclosure of any of the contested Information at Issue that is found not to be injurious and, for the Information at Issue that the Court determines would be injurious, they request the disclosure of their proposed summaries as part of the balancing exercise that they submit must be conducted under subsection 38.06(2) of the CEA.

[7] As the result of the considerable work they have accomplished, the AGC and the amici agree on required redactions and permissible summaries for over 90% of the documents at issue. They have produced three charts that set out their position about the Information at Issue in each of the 1469 documents subject to this Application. The charts divide the documents into the three subsets described below and they are each organized by AGC production document number.

A. Uncontested Documents Chart (Annex A)

[8] For a first subset of 1333 documents, referred to as the Uncontested Documents chart (or Annex A), the AGC and the amici agree that the Court should confirm the prohibition of disclosure (for 29 of these documents, the AGC has lifted, or removed, all section 38 redactions during the course of these proceedings).

B. Agreed-Upon Summaries Chart (Annex B)

[9] For a second subset of 17 documents and one overarching summary, referred to as the Agreed-Upon Summaries chart (or Annex B), the AGC and the amici agree that the Court should protect the Information at Issue, although they also agree that the Court should disclose some information in the form of summaries. Particularly, in four of these documents (AGC00851, AGC01152, AGC02679, and AGC05098) the AGC identifies information that is subject to third party approval, and in regards to which the amici are not themselves requesting disclosure, although they do not contest the information being disclosed in the form of summaries as proposed by the AGC. Therefore, if the third party, or foreign agency, request is denied, the amici do not contest the AGC removing these four summaries. As for the other documents, the amici agree that the summaries in Annex B, if disclosed, will provide adequate disclosure of the information relevant to the interests of Mr. Abdelrazik in the underlying proceeding, while in a format most likely to limit the injury, as outlined below.

C. Contested Summaries Chart (Annex C)

[10] For a third subset of 119 documents plus two overarching summaries, referred to as the Contested Summaries chart (or Annex C), the AGC seeks confirmation of the prohibition of disclosure or, alternatively, that the Court authorizes the disclosure of his proposed summaries, except where the AGC identifies that the disclosure is subject to third party approval, in which case the AGC asks for a confirmation of the prohibition of disclosure and does not submit any summaries. Again, in two documents (AGC01750 and AGC01824) the AGC identifies information that is subject to third party approval that the amici are not themselves requesting be disclosed, although they do not contest that the information be disclosed in the form of summary proposed by the AGC. Therefore, if the foreign agency request is denied, the amici do not contest the AGC removing this information in regards to these two documents.

[11] In regards to Annex C, in some instances the amici request that some Information at Issue actually be disclosed rather than a summary, and in other instances they agree that the disclosure of a summary is appropriate, but they request additions be made to the summaries proposed by the AGC.

D. Outline of the legal test and of the findings

[12] As is well settled, applications under section 38 of the CEA are determined on the basis of subsection 38.06, which is further detailed by subsection 38.06(2), and the test set out in the seminal decision of (Attorney General) v Ribic, 2003 FCA 246 [Ribic]. As recently summarized by the Federal Court of Appeal in Canada (Attorney General) v Hutton, 2023 FCA 45 at paragraph 31 [Hutton], this test requires the designated judge [the judge] to answer the following three main questions:

• (a)Is the information sought to be protected relevant to the underlying proceeding?

• (b)If so, is that information injurious to national security, national defence or international relations?

• (c)If the answer to (a) and (b) are both “yes”, does the public interest in non-disclosure outweigh [in importance] the public interest in disclosure?

[13] If the judge concludes that the public interest in non-disclosure outweighs in importance the public interest in disclosure, then the information sought to be protected will not be disclosed, and the judge shall confirm the prohibition of disclosure (subsection 38.06(3) of the CEA).

[14] If, on the contrary, the judge concludes that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge must, before ordering disclosure, consider, as required by subsection 38.06(2) of the CEA, the form of, and any potential conditions on, the disclosure that are most likely to limit the injury to national security, national defence or international relations (Hutton at paragraph 32).

[15] In brief, and for the reasons outlined below, after careful consideration of the material, the evidence, the parties’ submissions, the applicable law, and the legal test set out by the Federal Court of Appeal in Ribic, I find:

1. That the Information at Issue is relevant;

2. That the AGC has met his burden to establish that disclosure of the Information at Issue would be injurious to international relations or national defence or national security per subsection 38.06(1) of the CEA;

3. In regards to the Information at Issue in the production documents listed in Annex A: that the public interest in non-disclosure of the Information at Issue outweighs in importance the public interest in disclosure. Consequently, pursuant to subsection 38.06(3) of the CEA, I will confirm the prohibition of disclosure;

4. In regards to the Information at Issue in the production documents listed in the Annex B and in Annex C that is subject to third party approval—and in regards to which third parties have not yet responded to the AGC’s disclosure requests: that the public interest in non-disclosure outweighs in importance the public interest in disclosure. Consequently, pursuant to subsection 38.06(3) of the CEA, in those cases, I will confirm the prohibition of disclosure.

However, I will remain seized of the matter and will re-examine it if a response is received. I will cease to be seized on the first day of the hearing of the underlying proceeding and will also cease to be seized if the action is terminated prior to its hearing. I will thus remain seized of the matter until said time for the information identified in AGC01107, AGC01162, AGC01176, AGC01750, AGC01824, AGC02639, AGC02642, AGC02867, AGC03779, AGC07903, AGC00851, AGC01152, AGC02679, and AGC05098;

5. In regards to the Information at Issue in the production documents listed in Annex C that was subject to third party approval—and in regards to which third parties have refused disclosure requests, which includes disclosure of any summaries: that the public interest in non-disclosure outweighs in importance the public interest in disclosure. Consequently, pursuant to subsection 38.06(3) of the CEA, in those cases, I will confirm the prohibition of disclosure;

6. In regards to the Information at Issue that is not subject to third party approval in the production documents listed in Annex B and in Annex C—and having weighed a number of factors, that I enumerate at paragraphs 66 and following below, I find that: except in AGC02798, the public interest in disclosure outweighs in importance the public interest in non-disclosure per subsection 38.06(2) of the CEA.

Having further considered both the public interest in disclosure as well as the form of, and conditions to disclosure that are most likely to limit the injury, I find that the disclosure must be subject to the condition that it be disclosed in the form of summaries, again per subsection 38.06(2) of the CEA. With respect to Annex B, the Agreed-Upon Summaries—that are not subject to third party approval—are upheld. With respect to Annex C, the Contested Summaries, the AGC’s final position on summaries—that are not subject to third party approval—is upheld throughout with one notable exception that relates to a summary for a specific employee of the Canadian Security Intelligence Service [CSIS or the Service] found in AGC00318, AGC01089, AGC01097, AGC01098, AGC01101, AGC01107, AGC01176, AGC02642, AGC07820, and AGC07903; and

7. In regard to the Information at Issue in AGC02798 listed in Annex C, and having weighed the factors that I enumerate at paragraphs 66 and following below, I find that the public interest in non-disclosure outweighs in importance the public interest in disclosure and I will thus confirm the prohibition of disclosure pursuant to subsection 38.06(3) of the CEA.

[16] My order will thus:

1. Allow in part the AGC’s Application.

2. Confirm the prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex A, in application of subsection 38.06(3) of the CEA.

3. Confirm the prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex C that was subject to third party approval and to which foreign agencies have refused the disclosure requests, in application of subsection 38.06(3) of the CEA.

4. Confirm the prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex B and in Annex C that is subject to third party approval and to which foreign agencies have not yet responded to the disclosure requests, in application of subsection 38.06(3) of the CEA. However, in this regard, I will remain seized of the matter and will re-examine it if a response is received. I will cease to be seized on the first day of the hearing of the underlying proceeding and will also cease to be seized if the action is terminated prior to its hearing.

5. Confirm the prohibition of disclosure in regards to the Information at Issue contained in AGC02798 of Annex C, in application of subsection 38.06(3) of the CEA.

6. Authorize the disclosure of the Information at Issue in the production documents identified in Annex B and Annex C—that are not subject to third party approval. However, in application of subsection 38.06(2) of the CEA, and as a condition of disclosure, I will impose that the information be disclosed in the form of the summaries which are stated in Annex B and Annex C.

II. Background

[17] The AGC is the defendant in the underlying proceeding. On June 22, 2018, the parties signed a Partial Agreement of Facts setting out the facts that are not in dispute; on September 13, 2018, Mr. Abdelrazik filed an Amended Fresh as Amended Statement of Claim; and on September 17, 2018, the AGC filed an Amended Amended Statement of Defence. I will refrain from presenting any details of the underlying proceeding, apart from underlining, below, the elements counsel for Mr. Abdelrazik has stressed as being important in this Application.

[18] On September 17, 2018, considering the Notice of Application the AGC had filed just a few days before and considering the clear language of subsection 38.04(1) of the CEA, this Court reluctantly adjourned, until further order, the trial scheduled to begin the same day in the underlying proceeding.

[19] While approximately 6000 documents produced by the AGC to Mr. Abdelrazik in the underlying proceeding contained redactions under section 38 of the CEA, this Application was brought by the AGC in respect of the aforementioned subset of 1469 of those documents.

[20] Part of the proceeding in this Application was conducted publicly while another part was conducted in camera ex parte.

III. Public Proceeding

[21] In support of his Application, the AGC filed seven public affidavits: one for each of the seven government departments and agencies that made the claims, hence the affidavit of Joseph (CSIS), Yannick Michaud (Canadian Armed Forces), Scott Millar (Communications Security Establishment [CSE]), John Velho (Transport Canada), Rabih Adallah (the Royal Canadian Mounted Police [the RCMP]), Brett Bush (Canadian Border Service Agency [CBSA]), and Ian Myles (Global Affairs Canada [GAC]). Counsel for Mr. Abdelrazik cross-examined the affiants from the RCMP, CBSA, GAC, and Transport Canada. These affidavits were understandably general in nature as they cannot identify publicly or discuss the information which is the subject of the Application, and also because the affiants do not hold a personal knowledge of the Information at Issue.

[22] The AGC and Mr. Abdelrazik submitted public written submissions and, in September 2022, the Court held a public hearing where counsel for Mr. Abdelrazik had the opportunity to identify and stress certain points of particular importance in the underlying proceeding that he asserted have an impact on this Application.

A. Mr. Abdelrazik’s Submissions

[23] Mr. Abdelrazik submitted the affidavit of Ms. Trudy Moore, affirmed September 22, 2022 and introducing 21 exhibits, as well as the transcript of the cross-examination of the public affiants (the RCMP, CBSA, GAC, and Transport Canada) on November 6, 2020.

[24] Mr. Abdelrazik questioned the reliability and probative value of the public affidavits and he provided the Court with the factual and procedural background of the file. He confirmed that the first step in the Ribic test is not at issue in this Application as there is no dispute that the Information at Issue is relevant.

[25] On the second step of the test, relating to the injurious nature of the Information at Issue, Mr. Abdelrazik cautioned the Court regarding the third party rule as it is not an imperative rule and is not absolute, and stressed that the Court should thus carefully consider third party rule claims (Jama v Canada (Attorney General), 2019 FC 533 at paragraph 158 [Jama]; Canada (Attorney General) v Almalki, 2010 FC 1106 at paragraph 133 [Almalki FC]). Mr. Abdelrazik added that the Court should consider whether any specific evidence of harm was lead about concerns raised by the United States [U.S.] following the Court’s earlier judgement in Abdelrazik v Canada (Minister of Foreign Affairs), 2009 FC 580. Mr. Abdelrazik cautioned against other potential injury claims which he presented as largely prospective and speculative, such as the suggestion that foreign agencies may lose faith in Canada to protect third party information and that this may impact their willingness to provide information in the future, or the suggestion that disclosure of criticism of foreign officials could harm bilateral relationships. Finally, Mr. Abdelrazik noted that the CSIS public affiant testified that identifying the names of CSIS personnel “could” endanger their safety, which does not meet the “would cause” probable injury standard, and that the CBSA and GAC affiants were unconvincing.

[26] In balancing public interests in favour of disclosure or of non-disclosure, which is the third step in the test, Mr. Abdelrazik submitted that the Court should find that in any cases of risk to relationships with foreign countries or agencies, the public interest must weigh in favour of exposing egregious human rights violations. He identified the following four factors as relevant to the balancing exercise: (1) the extent or magnitude of the potential injury (non-existent or low at best); (2) the degree of relevance and the importance of the redacted information to key issues in the underlying proceeding ; (3) the importance of the open court principle (Sherman Estate v Donovan, 2021 SCC 25 at paragraph 1 [Sherman Estate]); and (4) whether there are higher interests at stake, such as fundamental human rights, democratic accountability, the rule of law and Canada’s international obligations (violations of customary international law norms such as the prohibition against torture and arbitrary detention are inherently different, Nevsun v Araya, 2020 SCC 5 at paragraph 124).

[27] Regarding the second factor, i.e., the degree of relevance of the Information at Issue to the key issues in the underlying proceeding, Mr. Abdelrazik submitted that, from his perspective, information was being withheld on the following nine issues he identified as key:

(a) The timing and nature of information shared by CSIS with foreign agencies in the days, weeks and months immediately prior to the Respondent’s arrest by Sudanese authorities on September 10, 2003;

(b) How, when and by whom CSIS was informed of the Respondent’s arrest on September 10, 2003;

(c) The nature of the relationship and agreement between CSIS and Sudan’s National Intelligence and Security Service [NISS], and how and under what conditions were questions sent by CSIS to be posed to the Respondent while in detention;

(d) The timing, nature and content of all communications between CSIS and NISS from December 18, 2003, until the Respondent’s release on July 22, 2004, including and in particular the meeting on December 22, 2003 in Khartoum and any other visits by CSIS to Sudan during that period;

(e) Any internal information, communications or views about the risk of torture faced by the Respondent in Sudanese custody;

(f) Any information communicated directly or indirectly to airlines that refused to carry the Respondent in July 2004, or any other information about the airlines’ decision;

(g) Any information that CSIS received from any foreign agencies about why the Respondent was detained on October 16, 2005;

(h) Any information that CSIS received at any time from [a] foreign country about the Respondent’s conditions of detention or information derived from any questioning or interrogation of the Respondent by foreign agencies, including the timing of when the information was received; and

(i) Any information or views received directly or indirectly by CSIS or the Respondent Cannon from foreign agencies regarding the Respondent’s safe haven in the Canadian Embassy in 2008 and the potential for his return to Canada in 2008 to 2009.

[28] Mr. Abdelrazik confirmed he had not contested the redactions under section 38 of the CEA, being concerned that the process would delay the underlying proceeding. He even went so far as to emphasize that he had enough to litigate his case without the Information at Issue. This being said, at the hearing he argued that in this case, the AGC had not established injury in regards to the third party rule claims and in regards to the identity of the Service employees. Mr. Abdelrazik stressed that these are of key importance to the underlying proceeding.

B. The AGC’s Submissions

[29] In his submissions, the AGC agreed that the applicable test in an application under section 38 of the CEA is the one set out by the Federal Court of Appeal in Ribic and that the 1469 documents are relevant to the underlying proceeding, so that the first part of the Ribic test is therefore not at issue in this Application.

[30] Regarding the second part of the Ribic test that relates to injury, the AGC outlined he was also filing classified affidavits from officials of the seven government departments or agencies that contain specific evidence of the injury. The AGC stressed that (1) the third party rule and necessity to maintain the confidentiality of the exchanges with foreign countries and foreign agencies has long been recognized by the Court (Tursunbayev at paragraph102; Almalki FC at para 150); (2) in Jama, the Federal Court recognized the importance of the third party rule and refused to disclose information that would identify foreign agencies unless consent was obtained; and (3) the Federal Court of Appeal (Canada (Attorney General) v Almalki, 2011 FCA 199 at paragraphs 35-37 [Almalki FCA]) overturned the Federal Court’s decision in Almalki FC and confirmed the principle.

[31] In regards to the balancing of public interests, the AGC agreed that the relevant factors included the ones identified by Mr. Abdelrazik, but noted other factors should also be considered, including the nature of the underlying proceeding, the remedy sought, and the usefulness of the information.

IV. In Camera Ex Parte Proceeding

[32] In the in camera ex parte proceeding, the AGC adduced seven additional affidavits to support the claims made in all 1469 documents subject to this Application; namely, the affidavits of |||||||||||||||||||||| (CSIS), |||||||||||||| (GAC), |||||||||||||||||||||| (CSE), |||||||||||||| (CBSA), |||||||| |||||||| (Department of National Defence), |||||||||||||||||||||||||||||| (the RCMP), and ||||||||||||||| (Transport Canada).

[33] In November 2022, the Court heard oral testimony from the affiants for CSE, GAC, and the Service on the contested Information at Issue as part of an in camera ex parte hearing. These three affiants were then cross-examined by the amici. The AGC and the amici subsequently filed written submissions, and on March 14, 2023 the Court heard their oral submissions.

[34] The AGC submits that (1) he has satisfied his burden to establish that disclosure of the Information at Issue would cause injury to Canada’s national security or national defence or international relations; and (2) on balance, the public interest in disclosure does not outweigh the public interest in protection of the sensitive Information at Issue, hence in non-disclosure. The AGC adds that if the Court determines that all or part of the Information at Issue ought to be disclosed, the Court may issue the summaries proposed by the AGC.

[35] The amici (1) generally agree that the AGC has met his burden to establish that disclosure would cause injury except in the three instances they confirmed at the hearing; and (2) in any event submit that on balance, the public interest in disclosure in the form of the summaries outweighs the public interest in non-disclosure. The amici disagree partly on the form the disclosure must take as to limit the injury, per subsection 38.06(2) of the CEA, and thus propose their own version of the summaries.

V. Issues

[36] Per the language of the CEA and the test set out by the Federal Court of Appeal in Ribic, the issues raised in this Application are to examine and decide:

1. Whether the Information at Issue is relevant to the underlying proceeding;

2. Whether the disclosure of the Information at Issue would be injurious to international relations, or national defence or national security, per subsection 38.06(1) of the CEA;

3. In the event that the disclosure of the Information at Issue is relevant and would be injurious, whether the public interest in disclosure outweighs in importance the public interest in non-disclosure of the Information at Issue, taking into consideration the relevant factors, which I enumerate at paragraphs 66 and following below, pursuant to subsection 38.06(2) of the CEA;

4. In the event that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge shall authorize disclosure (Ribic at paragraph 35).

However, before actually authorizing disclosure, the judge must consider both the public interest in disclosure and the form of conditions to disclosure that are most likely to limit the injury—and decide whether to subject the disclosure to any conditions, per subsection 38.06(2) of the CEA. A public summary of the Information at Issue sought to be kept secret is one such form contemplated by that provision (Hutton at paragraph 32);

5. In the event that the public interest in non-disclosure outweighs in importance the public interest in disclosure, the judge does not authorize disclosure and shall confirm the prohibition of disclosure of the Information at Issue pursuant to subsection 38.06(3) of the CEA.

[37] I will outline the legal test, as it informs how I must assess the issues raised, and I will subsequently examine these issues under each of the aforementioned subsets of documents (Annexes A, B, and C) established as between the AGC and the amici.

VI. Section 38 of the CEA: Legislative Framework and Applicable Legal Test

[38] Before addressing the aforementioned issues, it is important to outline the legislative framework and the applicable legal test in a proceeding under section 38 of the CEA.

[39] Section 38 of the CEA establishes a procedure whereby sensitive or potentially injurious information, as defined in the CEA, may be protected from disclosure before a court, person or body with the jurisdiction to compel production if its disclosure would be injurious to international relations or national defence or national security. In such a circumstance, pursuant to section 38.01, notice of the possibility of disclosure of sensitive or potentially injurious information is to be given to the AGC under any of subsections 38.01(1) to (4) of the CEA. Section 38.02 then prohibits disclosure of information about which notice is given.

[40] As Justice Gagné (as she then was) outlined in her decision Canada (Attorney General) v Charkaoui, 2018 FC 849 [Charkaoui], section 38 of the CEA contains a complex and comprehensive code governing the use and protection of “sensitive” or “potentially injurious” information.

[41] Where the AGC does not authorize disclosure under section 38.03, or does not enter into an agreement for partial or conditional disclosure under subsection 38.03(1), the AGC or a person described in the CEA may apply to this Court for an order with respect to the disclosure of information about which notice was given (subsections 38.04(1) and (2) of the CEA).

[42] Particularly, under subsection 38.04(1) of the CEA, the AGC may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given. This is the provision that allowed the AGC to file his Application on the eve of the start of the trial in the underlying proceeding, leading me to reluctantly adjourn the trial. Again, Mr. Abdelrazik had not challenged the prohibition of disclosure.

[43] Where the AGC applies to the Federal Court for an order to confirm the prohibition of disclosure, as he did in the present proceeding, subsections 38.06(1) to (3) provide the type of orders the Court may grant. The designated judge must thus determine whether to authorize the disclosure of the information subject to the notice pursuant to subsection 38.06(1), whether to authorize the disclosure pursuant to subsection 38.06(2)—which includes determining whether the information should be disclosed subject to conditions, or only partially or in the forms of summaries to limit any injury—or whether to confirm the prohibition of disclosure pursuant to subsection 38.06(3). The Federal Court of Appeal in Ribic set out a process in assessing whether the judge should make an order pursuant to section 38.06 of the CEA.

[44] It is thus the Court’s mandate under sections 38.04 and 38.06 of the CEA to decide whether to authorize the disclosure of information to which notice was given, and subject to what conditions or in what form, or whether to confirm the prohibition of disclosure. An application under section 38 of the CEA is not a judicial review of the AGC’s decision not to authorize disclosure. Rather, the designated judge must “make his [or her] own decision as to whether the statutory ban ought to be lifted or not and issue an order accordingly” (Ribic at paragraph 15).

A. Relevance

[45] First, the party seeking disclosure of the redacted information—the Information at Issue—bears the onus of establishing that said information is in all likelihood relevant evidence to the underlying proceeding (Ribic at paragraph 17). This is not a live matter here as the parties and the Court agree that the Information at Issue is relevant.

B. Subsection 38.06(1): Injury

[46] Second, if the redacted information is found to be relevant, the burden shifts to the party seeking the non-disclosure to demonstrate that disclosure of such information would be injurious to international relations or national defence or national security (Ribic at paragraph 20).

[47] Subsection 38.06(1) of the CEA states that:

38.06 (1) Unless the judge concludes that the disclosure of the information or facts referred to in subsection 38.02(1) would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information or facts.

[48] Subsection 38.06(1) requires the judge to authorize the disclosure of the redacted information, unless he or she concludes that the disclosure “would” be injurious to international relations or national defence or national security. This threshold must be applied keeping in mind the teachings of the Federal Court of Appeal in Ribic, that this second step involves an examination or inspection of the information to which notice was given, and that the judge must be satisfied that executive opinions as to potential injury have a factual basis which has been established by evidence. Put differently, the verb “would” means that the AGC must show a probability of injury: it cannot be speculative (Tursunbayev at paragraphs 83-84).

[49] Important to this proceeding, the Federal Court of Appeal in Ribic at paragraph 19 also stated that the AGC’s submissions regarding his assessment of the injury to national security or national defence or international relations should be given considerable weight, and if the AGC’s assessment of the injury is reasonable, the judge should accept it. Where the AGC can show a reasonable basis for his assessment that the disclosure of the redacted information would cause injury to international relations or national defence or national security, the judge must then proceed to the third step of the test (Almalki FC at paragraph 71; Huang v Canada (Attorney General), 2017 FC 662 at paragraph 46 [Huang]). Although the burden of establishing injury rests with the AGC, the Court must show a certain degree of deference to the AGC’s review of the matter. In short, the AGC assumes a protective role with respect to the security and safety of the public and if the AGC’s assessment of the injury is reasonable, the judge should accept it (Ribic at paragraph 19).

[50] The Court in Almalki FC at paragraphs 109 and 110 set out a few relevant factors to a determination of whether injury would result to the protected interests, such as the age of the investigation, the fact that the information or operating method in question is already publicly known, and the fact that the information concerns operating methods that are no longer used and policies that are no longer in effect because of identified deficiencies and flaws.

[51] If the AGC cannot satisfy his burden to establish that the disclosure of the Information at Issue would be injurious, the judge will authorize disclosure per subsection 38.06(1) of the CEA. If the AGC satisfies his burden, then the judge moves on to the third step of the assessment.

[52] As detailed below, I find the AGC has met his burden to establish that the disclosure of the Information at Issue would be injurious to international relations or national defence or national security.

C. Subsection 38.06(2): Balancing of Public Interests

[53] Lastly, if the redacted information is found to be both relevant and injurious, the burden shifts back to the party seeking disclosure to demonstrate that the public interest favours disclosure (Ribic at paragraph 21; Telbani v Canada (Attorney General), 2014 FC 1050 at paragraph 22).

[54] Subsection 38.06(2) reads as follows:

(2) If the judge concludes that the disclosure of the information or facts would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all or part of the information or facts, a summary of the information or a written admission of facts relating to the information.

[55] There is no question that the judge must conduct a balancing exercise of the public interests at play.

[56] If the judge finds the public interest in non-disclosure outweighs the public interest in disclosure and does not authorize disclosure, the judge shall confirm the prohibition of disclosure per subsection 38.06(3) of the CEA.

[57] As I outlined at the in camera ex parte hearing, if the public interest weighs in favour of the disclosure of the redacted information (first analysis), the judge will authorize the disclosure. However, before doing so, and per the clear language of the statute, the judge must consider both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit the injury resulting from the disclosure in order to decide whether to subject the disclosure to any conditions considered appropriate, namely to the issuance of summaries in this case (Hutton at paragraph 32; Ribic at paragraphs 37-39) (second analysis). The judge must resort to the means that are the least prejudicial to the injury (Ribic at paragraph 37).

[58] At the in camera ex parte hearing, the amici did not agree with my interpretation. The amici outlined that it was not entirely accurate to state that there are two distinct analyses to be conducted. They asserted that it is more accurate to say that there is an interplay between the summarizing process, or the generalizing process, and the identification of injury because it is often through the summary that you can remove the injury and tip the balance toward disclosure. Hence, the amici opined in essence, that I need not decide if the raw words subject to redaction ought to be disclosed, or that the public interest favours disclosure of those redacted words and then if so, if I can dial back the injury through summarizing. They asserted that it is more of an interaction.

[59] The AGC overall agreed with the amici, but noted that the injury that the AGC was talking about is in respect of lifting the redaction at the second step. The AGC added that for efficiency purposes, it makes more sense to engage in the consideration of specific summaries when considering the second and third steps of the Ribic test in order that solutions can be proposed if the judge does find injury in lifting a redaction.

[60] I agree with the amici that the summaries can play a role in the balancing of the public interests and I outline how below. However, this being said, I am convinced that the language of subsection 38.06(2) of the CEA does clearly mandate two distinct analyses.

[61] Notably, in Ribic, the Federal Court of Appeal examined which standard of review applied to the Federal Court judge’s orders and in its assessment. The Federal Court of Appeal made a distinction as between the power conferred by subsection 38.06(2) of the CEA, i.e., the condition that must first be met for it—the power—to be exercised, and the actual exercise of the power (Ribic at paragraph 36). The Federal Court of Appeal clearly indicated that the power conferred to the judge under subsection 38.06(2) is the one to disclose sensitive information which would otherwise be kept secret. It went on to state that this power is subject to a condition being met, that is to say, that the public interest in disclosure is greater than the public interest in keeping the information secret (Ribic at paragraph 35). Only if this condition is met, can the judge gain his or her power to authorize disclosure.

[62] Then, when exercising the power to authorize disclosure, and before actually authorizing disclosure, the judge, while bearing in mind the public interest in disclosure, must ensure that the form of and conditions to disclosure are most likely to limit any injury to national security, national defence or international relations resulting from disclosure (Ribic at paragraph 37).

[63] Hence, the Federal Court of Appeal actually considered subsection 38.06(2) contained two distinct successive analyses (Ribic at paragraphs 35-39), and examined the standard of review that applied to each. The first analysis consists in determining whether the public interest in disclosure is greater than the public interest in non-disclosure. Provided that the conditions to authorize disclosure under 38.06(2) are met, i.e., the public interest in disclosure outweighs the one in non-disclosure, then the judge must consider the public interest in disclosure with the form of and conditions to disclosure that are most likely to limit any injury resulting from disclosure before making its order to authorize disclosure (Ribic at paragraph 37). It may then subject its authorization to certain conditions, namely to the issuance of summaries instead of the disclosure of the integral information subject to the notice.

[64] This scheme has been confirmed by our Court in Telbani at paragraph 76, Huang at paragraph 82 and Tursunbayev at paragraphs 107 and 108, and more recently by the Federal Court of Appeal in Hutton at paragraphs 31 and 32. The Supreme Court of Canada has also stated that the judge may order the disclosure of all or part of the information on such conditions as he or she sees fits, provided the judge had first concluded that the public interest in disclosure outweighed in importance the public interest in non-disclosure (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at paragraph 77).

[65] The balancing exercise between the public interests that must first be conducted remains a case-by-case analysis, the factors to be considered are “rooted in the issues of the specific underlying proceeding” and the ones identified by the courts are not exhaustive (Tursunbayev at paragraph 90; Canada (Attorney General) v Khawaja, 2007 FC 490 at paragraph 163 [Khawaja]).

[66] When weighing the public interests at stake, each piece of information must be reviewed and the judge must determine which factors it deems necessary to consider in the circumstances (Khawaja at paragraph 93). Among the factors deemed to be relevant, the following non exhaustive list of factors can be identified (see e.g., Khan v Canada (Minister of Citizenship and Immigration), (1996) 1 FTR 81 at paragraph 26 [Khan]; Ribic at paragraph 22; Telbani at paragraph 78):

1. The nature of the public interest sought to be protected by confidentiality;

2. The seriousness of the criminal charges or issues raised in the underlying proceeding;

3. The admissibility of the documentation, its usefulness and the probative value of the information it contains;

4. Whether the party seeking disclosure has established that there are no other reasonable ways of obtaining the information;

5. Whether the disclosures sought amount to general discovery or a fishing expedition;

6. Whether the evidence in question will probably establish a fact crucial to the defence;

7. Whether the information is already known to the public, and if so, the manner by which the information made its way into the public domain;

8. The importance of open court principle; and

9. Whether there are higher interests at stake such as a breach of Charter rights, human rights issues, the right to make full answer and defence in the criminal context, etc.

[67] This being said, I am also guided by the words of the Supreme Court of Canada in R v Ahmad, 2011 SCC 6 at paragraph 44 [Ahmad] confirming that section 38 creates a scheme that is designed to operate flexibly and that subsection 38.06(2) of the CEA:

[…] affirmatively requires the Federal Court judge to consider the public interest in making disclosure along with what conditions are “most likely to limit any injury to international relations or national defence or national security” (s. 38.06(2)). In making this determination, the Federal Court judge may authorize partial or conditional disclosure to the trial judge, provide a summary of the information, or advise the trial judge that certain facts sought to be established by an accused may be assumed to be true for the purposes of the criminal proceeding.

[68] From this perspective, I am satisfied that the Court can also consider the fact that the Information at Issue can be summarized as one of the factors in balancing the public interests. Hence, depending on the circumstances, it may be beneficial to look at what the parties are actually seeking to disclose in weighing the public interests at stake.

[69] In the circumstances of the present case, I acknowledge that the Information at Issue can be summarized and I appreciate the importance the proposed summaries carry. I will consider the possibility to limit the injury with summaries as one of the factors in the balancing of the public interests. This will ensure the interplay and efficiency defended by the amici and the AGC as vital to the balancing of the public interests in play while adhering to the text of the statute and the teachings of the Federal Court of Appeal. In the end, the result will be the same in this case.

VII. Analysis

A. Uncontested Documents Chart (Annex A)

[70] With respect to the 1333 documents for which the AGC is seeking a prohibition of disclosure of the Information at Issue under subsection 38.06(3) of the CEA, I note that the amici agree that the prohibition of disclosure should be confirmed. As a reminder, for 29 of these documents, the AGC has lifted all section 38 redactions during these proceedings pursuant to subsection 38.03(1) of the CEA (see Annex A). For the remaining documents, I am satisfied that the elements of the CEA and of the Ribic test are met in that (1) the Information at Issue is relevant, keeping in mind the caveat outlined by the AGC (at paragraph 17 of the AGC’s ex parte Memorandum of Fact and Law); (2) the disclosure of the Information at Issue would be injurious to national security or national defence or international relations; and (3) the public interest in non-disclosure of the Information at Issue outweighs the public interest in disclosure.

[71] I will thus confirm the prohibitions of disclosure per subsection 38.06(3) of the CEA (see Annex A).

B. Agreed-Upon Summaries Chart (Annex B)

[72] With respect to the 17 documents and one overarching summary that have been summarized jointly by the AGC and the amici and that are proposed for disclosure by the Court (Annex B), and which are not subject to third party approval, I am satisfied that the elements of the CEA and of the Ribic test are met in that (1) the Information at Issue is relevant, keeping in mind the caveat outlined by the AGC (at paragraph 17 of the AGC’s ex parte Memorandum of Fact and Law); (2) the disclosure of the Information at Issue would be injurious to national security or national defence or international relations; and (3) the public interest in disclosure of the Information at Issue outweighs the public interest in non-disclosure, taking into account the factors enumerated at paragraphs 66 and following. Keeping in mind both the public interest in disclosure and the forms of and conditions to disclosure that are most likely to limit any injury, I will authorize the disclosure of the Information at Issue as it pertains to the production documents listed in Annex B subject to the condition that it be disclosed in the form of the summaries as agreed upon between the AGC and the amici, per subsection 38.06(2) of the CEA.

[73] As for the Information at Issue in the four production documents of Annex B (the Agreed-Upon Summaries chart) that remain subject to foreign agency approval (AGC00851, AGC01152, AGC02679, and AGC05098) and for which no response has yet been received following a request, the amici do not contest the prohibition of disclosure if the foreign agency request is denied. I am satisfied that (1) the Information at Issue is relevant, keeping in mind the caveat outlined by the AGC (at paragraph 17 of the AGC’s ex parte Memorandum of Fact and Law); (2) the disclosure of the Information at Issue would be injurious to national security or national defence or international relations; and (3) the public interest in non-disclosure outweighs the public interest in disclosure in regards to the Information at Issue in these four production documents and I will thus confirm the prohibition of disclosure pursuant to subsection 38.06(3) of the CEA. I will remain seized of the matter and will re-examine it if a response is received. I will cease to be seized on the first day of the hearing of the underlying proceeding and also cease to be seized if the action is terminated prior to its hearing.

C. Contested Summaries Chart (Annex C)

(1) Overview

[74] The Information at Issue remaining for litigation is contained in 119 documents and two overarching summaries and is claimed to be sensitive or potentially injurious by three agencies: CSE (one document), GAC (16 documents) and CSIS (105 documents and two overarching summaries). Some of the Information at Issue in the documents have overlapping claims from two different departments/agencies.

[75] The AGC (1) agrees that all the Information at Issue in this subset of documents is relevant as it has been identified for disclosure in the underlying proceeding; (2) contends that he has satisfied his burden to establish that disclosure of the Information at Issue would be injurious to Canada’s national security or international relations; and (3) contends that on balance, the public interest in disclosure does not outweigh the public interest in protection of the potentially injurious and sensitive Information at Issue. The AGC thus asks the Court to confirm the prohibition of disclosure of all the redacted information found in the documents listed in Annex C, pursuant to subsection 38.06(3) of the CEA.

[76] Alternatively, the AGC submits that the Court may authorize disclosure in the form of the summaries he proposes, pursuant to subsection 38.06(2) of the CEA.

[77] The amici (1) contend there is no dispute that the Information at Issue in this subset of documents is relevant to the proceedings; (2) generally agree that the AGC has met his burden to establish that disclosure would be injurious, but carve out three instances, or types of information, regarding which they assert the injury has not been made out (the information in the sole CSE document; the identity of the [Service employee] or |||||||| and |||||||||||||||||||||| (13 documents); and the information linked to testimony suggesting information “could” be injurious if released, in regards to the injury raised by the AGC of perceived criticism of |||||||| (11 plus one documents)); and (3) in any event submit that on balance, the public interest in disclosure in the form of the summaries outweighs in importance the public interest in non-disclosure. The amici thus request that the Court directs the disclosure of any of the Information at Issue that is found not to be injurious pursuant to subsection 38.06(1) of the CEA. As for the Information at Issue that the Court determines to be injurious, the amici request the disclosure of their proposed summaries.

[78] The chart the AGC and the amici have prepared (Annex C) outlines their respective proposed summaries and highlights the terms they disagree about.

[79] In 66 instances, the AGC has indicated that at least parts of the summaries are subject to foreign agency approval. Requests for disclosure have been made to all the foreign agencies, except for [one country and a second country] when the Information at Issue pertained to references to ||||||||||||||||||||||.

(2) Legal Test Set Out in Ribic

[80] I will examine each prong of the Ribic test for the Information at issue in Annex C.

(a) Relevance

[81] The threshold is “low” (Khawaja at paragraph 62; Khadr v Canada (Attorney General), 2008 FC 549 at paragraph 52; Ribic at para 17; Almalki FC at paragraph 60) and I agree that it has been met in this case. I agree with the parties the Information at Issue is relevant, keeping in mind the caveat outlined by the AGC (at paragraph 17 of the AGC’s ex parte Memorandum of Fact and Law).

[82] The first prong of the Ribic test is met.

(b) Injury

[83] As noted earlier, the AGC bears the burden to establish that the disclosure of the Information at Issue would be injurious to national security or national defence or international relations, per subsection 38.06(1) of the CEA. The use of the word “would” means that the AGC must satisfy the Court that the injury alleged must be probable, and not simply a possibility or merely speculative (Tursunbayev at paragraphs 83-84).

[84] In Ribic, the Federal Court of Appeal stated that the AGC’s submissions regarding his assessment of the injury to national security or national defence or international relations, because of his access to special information and expertise, should be given considerable weight by the judge required to determine, pursuant to subsection 38.06(1) whether disclosure of the Information at Issue would cause the alleged and feared injury. The AGC assumes a protective role vis-à-vis the security and safety of the public; if his assessment of the injury is reasonable, the judge should accept it. As Justice Mosley put it in Almalki FC at paragraph 70: “probable injury is assessed on a reasonableness standard”.

[85] At this stage, the injury is assessed in regards to the Information at Issue, not in regards to any summaries. This is clearly set out in subsection 38.06(1) which refers to subsections 38.02(1) to (4) (see Amalki FC at paragraph 194). It is only at the third prong of the Ribic test that the judge should consider summaries, as outlined earlier.

[86] The AGC submits that he has satisfied his burden to establish that disclosure of the redacted Information at Issue found in all of the 119 documents claimed by CSIS, GAC and CSE would be injurious to Canada’s national security or international relations.

[87] As outlined already, the Court heard from three AGC affiants in the in camera ex parte hearing and the amici cross-examined them. Each of the affiants identified categories of information which they considered posed a risk of injury to Canada’s national security or international relations.

[88] The CSIS affiant listed the categories of concern in relation to the claims CSIS made in 105 documents and two overarching summaries regarding national security. He testified that the disclosure of the Information at Issue would cause injury to national security as the information would:

• identify or tend to identify relationships that the Service maintains with foreign agencies, and the information exchanged in confidence with such agencies (third party rule) (CSIS Foreign Agency information |);

• identify or tend to identify the Service’s interest in individuals, groups or issues, including the existence or nonexistence of past or ongoing active investigation, the intensity of investigations, or the degree or lack of success of investigations (CSIS Investigative interest |);

• identify or tend to identify its employees or past employees which, if disclosed, would put their life in danger, that of their colleagues and the safety of their families, and negatively impact the capacity of CSIS to operate and identify or tend to identify the station (CSIS Identity of employees |).

[89] The GAC affiant listed the categories of concern in relation to the claims GAC made in the 16 documents regarding international relations. He testified that if released, the Information at Issue (i) would be perceived as criticism of a foreign government; or (ii) would jeopardize Canada’s relations with other countries by reducing their trust in Canada’s ability to maintain the confidentiality of information shared with Canada, thereby reducing the flow of information to Canada, as the information was provided in confidence by foreign governments or organizations or foreign officials (third party rule) (GAC International Relations ||||).

[90] The CSE affiant cited concerns in disclosing the one claim by CSE (AGC01630) as the information was exchanged in confidence from other intelligence agencies and if disclosed, it would injure the relationships with such agencies (CSE relationships with other intelligence agencies and information exchanged in confidence with such agencies ||||||).

[91] The amici submit that the AGC has not met the burden of establishing that the disclosure of certain types of redacted information would be injurious to national security or international relations. At the hearing, the amici confirmed their position that injury had not been established in regards to (1) the CSE Information contained in one document—AGC01630; (2) the identification of a particular service employee—employee title |||||||||| referred to in 13 documents; and (3) the Information at Issue referred to at paragraphs 37 and 52 of their ex parte Memorandum of Fact and Law pertaining to |||||||||||||||| references, regarding what can be described as the evidentiary threshold or the “could vs would” testimony referred to in 12 documents (AGC01059, AGC01061, AGC02582, AGC02605, AGC03752, AGC03800, AGC05877, AGC06010, AGC07903, AGC08132, AGC08693, and AGC06825).

[92] The amici also ask the Court, at this stage, to assess if the summaries they proposed are injurious or not. However, I must decline their invitation as I cannot assess, under the second prong of the Ribic test, hence, under injury, whether the disclosure of the summaries proposed by the parties would be injurious. As stated above, under the second prong of the test, the judge must consider whether the disclosure of the actual Information at Issue would be injurious; it is only at the third prong of the Ribic test that the judge can consider summaries as part of the analysis (see discussion at paragraphs 66 and following).

[93] The amici further assert, as counsel for Mr. Abdelrazik did in the public hearing, that in the circumstances they highlighted, the third party rule does not apply and the AGC has therefore not met his burden to establish injury.

[94] As for the rest of the documents in play in Annex C, the amici confirmed at the hearing that they agree with the AGC that the disclosure of the Information at Issue would be injurious to national security or international relations.

[95] The amici request that the Court direct the disclosure of any of the contested Information at Issue that is found not to be injurious pursuant to subsection 38.06(1) of the CEA. As for the Information at Issue that the Court determines would be injurious, the amici request the disclosure of their proposed summaries, which will be examined in the next section.

[96] First, in relation to the Information at Issue where injury is not contested by the amici, I am satisfied that the AGC has met his burden to establish that disclosure of the Information at Issue would be injurious to national security or international relations.

[97] Second, in relation to the Information at Issue where injury is contested, and for the reasons that follow, I am also satisfied that the AGC has met his burden to establish that disclosure of the Information at Issue would be injurious to national security or international relations. I will examine each contested injury matter in turn.

(i) CSE Information

[98] The Information at Issue is contained in AGC01630. It is a report dated December 1, 1999 from CSIS. CSE’s claim protects the information |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. CSE’s claim, highlighted 　|　 ||, is to protect CSE’s relationship with other intelligence agencies and information exchanged in confidence with such agencies.

[99] The AGC affiant for the CSE claim testified before the Court in the in camera ex parte proceeding and was cross-examined by the amici. She confirmed, generally, that CSE seeks to protect information that would identify, or tend to identify, information obtained by foreign agencies and exchanges with foreign agencies and information that would reveal details about ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||.

[100] Particularly, she confirmed that the information at |||||||||||||| of AGC01630, while contained in a CSIS case report, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| and ultimately shared by CSE with CSIS. She added that regarding this specific information, CSE went back to |||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||.

[101] The affiant testified that |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||| cannot be used without the express permission of that originator of the product or data. She added that disclosure would injure the trust that |||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||| to release it after a request has been denied and the sensitivity has been confirmed would call into question CSE’s ability to protect |||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||. She added that the passage of time, or the fact that the information was available in the public, did not limit the injury as the injury relates to the protecting and safeguarding of the |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||, the injury would remain because |||||||||||||| is aware and they have said no.

[102] The amici assert that there is no injury in providing the Information at Issue to Mr. Abdelrazik. The amici stress that the Information at Issue was provided 23 years ago and that it is not at all confidential: it would have been known to countless people, as well as everyone peripherally interested. The amici contend that the Information at Issue does not identify the source of the information. They add that due to the generalized language, the Information at Issue could have stemmed from any source, and that the Information at Issue was already in the public domain in several media stories as early as December 1999.

[103] The amici add that (1) the public disclosure of information that the Service obtained from intelligence partners could only be injurious if the partners were able to discern that it was their information that was being disclosed; (2) the injury would only be significant if the information itself were sensitive; and (3) where information in question consists of a bald fact about a public event, which just happened to be included in a report from an intelligence partner, neither the inference nor the injury is probable.

[104] In their ex parte Memorandum of Fact and Law, the amici initially took issue with the affiant’s testimony on the basis that she made a mistake in naming the underlying proceeding was before a Superior Court rather than the Federal Court, but they retracted their concern at the hearing.

[105] In the present Application, it is established that CSE made a foreign agency request 　|　 |||||| requesting that the information be disclosed, and that this request was refused—|||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||. The AGC submits that if this information is released |||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||, which was subject to the declined foreign agency request, was released.

[106] The affiant confirmed the information was public. While there is a presumption that information already in the public domain cannot be protected from disclosure as there will be no injury from its further disclosure (Almalki FC at paragraph 81), this presumption is rebuttable by evidence to the contrary. As Justice Noël observed in Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in relation to Maher Arar), 2007 FC 766, at paragraph 56 [Arar]:

There are many circumstances which would justify protecting information available in the public domain, for instance: where only a limited part of the information was disclosed to the public; information is not widely known or accessible; the authenticity of the information is neither confirmed nor denied; and where the information was inadvertently disclosed.

[107] I am satisfied the AGC has established that the disclosure of the information would be injurious to national security or international relations. His assessment of the injury is reasonable (Ribic at paragraph 19). Information that is shared |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| information, that is, it cannot be used without the express permission of that originator, who is, as noted above, ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, particularly after a request was made and refused, it would injure the trust |||||||||||||||||||||||||| Canada’s ability to protect ||||||||||||||||||||||||||||.

(ii) Service Employee |

[108] In regards to the 13 documents at issue in this section, CSIS redacted the information that identifies or tends to identify CSIS employees |||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||| which pertains, in this proceeding, to (1) a particular CSIS employee’s identity; (2) ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||; and (3) titles of the particular CSIS employee, ||||||||||||||||||||||||||||||||||||||||||||||||||||||.

[109] This information is claimed in production documents AGC00318, AGC01089, AGC01097, AGC01098, AGC01101, AGC01107, AGC01142, AGC01176, AGC02642, AGC07242, AGC07820, AGC07903, and AGC08711.

[110] The amici have confirmed to the Court their challenge of these claims as non-injurious. It is not entirely clear if the amici have based their assessment on the actual Information at Issue, i.e., the actual name, title |||||||||||||||| of the CSIS employee, or on the summarized information. As stated above, the assessment of the injury in the second prong of the Ribic test must be conducted against the actual redacted information (i.e., the Information at Issue), not against any summaries. Hence, out of caution, I will examine whether the AGC has met his burden to establish that the disclosure of the CSIS employee’s name, title |||||||||||||||| would be injurious and the same for ||||||||||||||||||||||||||||||||||||||||||||||||.

[111] The CSIS affiant testified before the Court in the in camera ex parte proceeding and he was cross-examined by the amici.

[112] The affiant affirmed that CSIS seeks to protect from disclosure information that would tend to identify its employees, information that includes their name, position title, work, location, including liaisons posts abroad that are not publicly acknowledged by CSIS, telephone numbers and e-mail addresses. He asserted that knowledge of this information would be valuable to those who interests are inimical to Canada. Generally, the affiant affirmed that identification of employees would impair the employees’ and the Service’s ability to investigate threats to the security of Canada and could endanger their personal safety. The affiant described the threats that can be leveraged against service employees should their identity or location become known, and he provided examples and the danger they, as well as their families, can be exposed to.

[113] The affiant affirmed that the Service is seeking to protect the |||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||| for Service employees |||||||||||||||||||||| in documents/context in which |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The Service is seeking to protect information that would reveal the Service’s |||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||. He also affirmed that the Service seeks to protect the term |||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||| because it divulges the official title used for Service employees 　|　 |||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||. Using the term |||| would permit an informed reader to determine that there are ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.

[114] The affiant confirmed that identification of an employee ||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||| could seriously jeopardize the Service |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||, it could potentially put the individual at grave risk.

[115] At paragraphs 72 to 74 of their ex parte Memorandum of Fact and Law, the amici take issue with the evidence provided by the CSIS affiant in relation to |||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||| a possible identification of the identity of the service employee. However, the amici then discussed the injury in regards to the summaries they propose, rather than the redacted information itself. As stated above it, injury must be assessed against the Information at Issue and not against the summaries proposed. I will thus examine this argument under the third prong of the test below.

[116] The amici note that the affiant testified that hostile states/agencies |||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| come to a relatively definitive conclusion about who a person was, where they were, and what their identity was at that particular time. The amici do not dispute that these |||||||||||||||||||||||||||||||| exist, but they assert that no evidence, of probable injury, was presented of |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||, that the affiant could not confirm as much in cross-examination and that he provided hypothetical scenarios, impossible to quantify, to justify his position on injury. They further assert that the information is so dated as to be even more difficult to uncover.

[117] I must be satisfied that executive opinions as to potential injury have a factual basis which has been established by evidence (Ribic at paragraph 18). As mentioned earlier, the AGC’s submissions regarding his assessment of the injury to national security or international relations, because of his access to special information and expertise, should be given considerable weight; if his assessment of the injury is reasonable, the judge should accept it. In this case, I am satisfied that the AGC has met his burden and established that disclosure of the CSIS employee’s identity, title |||||||||||||||| would be injurious to national security or international relations.

(iii) Could vs Would Testimony

[118] During the in camera ex parte hearing, the amici confirmed their position that the AGC had not met his burden to establish injury in regards to the injury linked with perceived criticism; specifically, they referred to paragraphs 37 and 52 of their ex parte Memorandum of Fact and Law. There are 12 documents at issue in this area.

[119] Paragraph 37 of the amici ex parte Memorandum of Fact and Law refers to AGC01059, AGC01061, AGC02582, AGC02605, AGC03752, AGC03800, AGC05877, AGC06010, AGC07903, AGC08132, and AGC08693. In those documents, CSIS redacted information that references ||||||||||||||||||||||. Each of these references to |||||||||||||||||||||| relate to information received from |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| (directly or indirectly). CSIS’s claim, highlighted in ||, is thus to protect information that would identify or tend to identify relationships that the Service maintains with foreign agencies, and the information exchanged in confidence with such agencies. The Service has not presented any request to |||||||||| in respect to disclosing references to |||||||||||||||||||||| because even the request, the AGC opines, could be construed as a criticism of ||||||||||. Needless to say the AGC opposes any mention of |||||||||||||||||||||| in his summaries.

[120] The amici refer to the CSIS affiant’s testimony during the hearing in regards to the criticism linked with making reference to |||||||||||||||| and to the fact that the perceived criticism is the reason for not seeking foreign approval. The amici cite the affiant who indicated that making reference to |||||||||||||||||||||||||| could be construed as a criticism […] it could open up an area of debate or criticism about ||||||||||||||||||||||||||||. The amici take issue with the choice of words and argue that the difference between the words “could” versus “would” is directly connected to the threshold required to prove injury. The word “would” imposes a higher degree of evidence. The amici contend that the AGC must satisfy the judge that the injury is probable, and not possible, and has not done so in this case.

[121] At paragraph 52 of their ex parte Memorandum, the amici refer to AGC06825 in which the information CSIS redacted describes a Service employee expressing concern about confronting another |||||||||||||||||||||||||||| and referred to ||||||||||||||||||||||. CSIS’s claim, highlighted in ||, is thus to protect information that would result in injury to the Service’s relationship with |||||||||| that would arise to the level of a national security injury.

[122] The amici contend that the AGC’s evidence falls short of establishing injury, as it describes a possibility of an injury and not a probability. Again, the amici take issue with the fact that the affiant, under cross-examination, used the word “could” when answering.

[123] As it relies on the use of the word “could” by the affiant, I consider the amici’s position is inconsistent with the teachings in Ribic at paragraph 19 and Almalki at paragraph 70; I agree with the AGC that the evidence to support the claims of national security must be considered as a whole and an undue focus on the use of the word “could” is unwarranted.

[124] In addition, I also agree that the use of the term “could” does not necessarily mean that there is no probability of injury. Prior to finding that injury had been made out, at paragraph 79 of Arar, Justice Noël explained the following in relation to the third party rule:

If Canada were to breach the third party rule, depending on the particular circumstances injury could occur. However, the extent of the harm which may follow would not be easy to assess as it is impossible to predict the future. In other words, a breach of the third party rule may cause harm and may affect the flow of information to Canada. However, in many cases, only the non-breaching party will fully know the effect of a breach to this rule.

[125] Further, the AGC confirmed at the hearing that CSIS often leans on the third party rule as the source of injury, and the criticism ground is identified as a reason why a foreign agency request was not made and was not invoked as a standalone injury.

[126] In the full context of the evidence before me, I am satisfied the AGC has met his burden and has established that disclosure of the information about references to the |||||||||||||||||||||||| or to |||||||||||||||||||||| would be injurious to international relations and national security.

(iv) Relationships and Third Party Information

[127] CSE, CSIS and GAC have claims on information they received in confidence by foreign agencies, states or government officials. The AGC submits that disclosure of this information would be injurious to national security or international relations under what is known as the third party rule. I have already determined that disclosure of the Information at Issue claimed by CSE would be injurious to the protected interests under the originator-controlled principle which, per the AGC’s representations, is akin to the third party rule. I will thus only examine CSIS’s and GAC’s claims under the third party rule.

[128] The majority of the contested Information at Issue claimed under the third party rule is information that (1) would identify or tend to identify relationships that CSIS maintains with foreign agencies or countries, or that would disclose or tend to disclose information exchanged with CSIS in confidence with such partners; or (2) was provided in confidence to GAC by foreign governments or organisations, intelligence agencies or foreign officials. With respect to GAC’s claims, the numerous excerpts sought to be protected by GAC under this category concern information related to security and intelligence reports, and assessments that were conveyed to GAC, or through GAC channels. Examples include the official positions, requests and intelligence assessments of foreign governments on sensitive bilateral and multilateral issues; the personal impressions of foreign officials concerning their own governments; and assessments of the motives, actions and intentions of a third government (i.e., neither Canada nor the source’s).

[129] As the AGC outlines, this information is usually subject to what is known as the third party rule. This means that the information is provided on the condition that it will not be further shared or disclosed by the receiving party without the permission of the party that provided it. The originating agency trusts that the recipient will respect the third party rule and prevent further dissemination without their consent.

[130] Counsel for Mr. Abdelrazik in the public hearing and the amici in the in camera ex parte hearing questioned the applicability of the third party rule in certain circumstances.

[131] In the public hearing, Mr. Abdelrazik acknowledged that the jurisprudence is clear that the designated judge assesses probable injury on a reasonableness standard, but also outlined that the courts have repeatedly expressed the caution that the government has a tendency to exaggerate claims of national security confidentiality. Mr. Abdelrazik pointed out that the Supreme Court of Canada in Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37, emphasized the judge’s role as “the gatekeeper against this type of overclaiming” (at paragraphs 63-64).

[132] Mr. Abdelrazik submitted that this Court should carefully consider third party rule claims. First, he stressed that this Court has held the third party rule is not an imperative rule of law and is not absolute. He added that Canada’s law enforcement and security agencies operate in a constitutional democracy and are subject to the rule of law and the courts and asserted that they are consequently unable to provide confidentiality guarantees to any foreign agency, outlining that any foreign country that Canadian agencies deal with would be aware of that fact. Mr. Abdelrazik argued that the Court should also be careful about accepting any generalized claims that foreign agencies, particularly those from the U.S., would be upset if information about their role in his detention were disclosed.

[133] Based on the public evidence, Mr. Abdelrazik submitted that the injuries appear to be largely prospective and speculative and that any testimony that referred to a disclosure that “could” harm or endanger does not meet the “would cause” injury standard.

[134] |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The amici add that a disclosure resulting from a Court’s ruling in a section 38 application could not cogently be described as a breach of the third party rule.

[135] It is not entirely clear if the amici request the disclosure of the redacted information or if they limit their submission to requesting disclosure of more detailed summaries than the ones proposed by the AGC. The amici have indicated that they were not challenging that the injury based on the third party rule was made out (second prong of the Ribic test) but they have also simultaneously argued that the third party rule did not apply in some circumstances. This is difficult to reconcile; if the third party rule was found not to apply to protect the redactions, it would logically entail that the claims of injury, based on the third party rule, would be unsustainable and that disclosure would ensue. I will thus, out of caution, examine whether the AGC has met his burden to establish that the third party rule applies and that its breach, i.e., disclosure of the Information at Issue, would cause injury to national security and international relations.

[136] As Justice De Montigny stated in Telbani, at paragraph 61, the third party rule:

[i]s an acknowledgement that foreign agencies provide information to the Service not only because agreements are entered into to ensure that that information will be utilized in confidence, but also because those agencies are confident that the Canadian government in general, and the Service in particular, are fully aware of and recognize the need to preserve the confidentiality of that information and have taken steps in that respect.

[137] I recognize that the third party rule is not absolute, as noted again by Justice de Montigny in Telbani at paragraph 70:

[…] There is no statutory basis for that “rule”, and the mere fact that a foreign agency did not relieve the Service (or any other Canadian agency) of its confidentiality obligation cannot suffice, on its own, to conclude that the disclosure of information thus obtained would be injurious to national security. Other factors must be considered, including the fact that the information in question was subsequently disclosed and is now in the public domain, as well as the passage of time. There must also consideration for how the sharing of information, both quantitative and qualitative, with a foreign agency might be important for Canada. My colleague, Justice Noël, stated the following in Arar (at paragraph 80):

When determining whether disclosure will cause harm, it is also important to consider the nature of Canada's relationship with the law enforcement or intelligence agency from which the information was received. It is recognized that certain agencies are of greater importance to Canada and thus that more must be done to protect our relationship with them. Consequently, care must be taken when considering whether to circumvent the third party rule in what concerns information obtained from our most important allies.

[138] In Charkaoui, Justice Gagné (as she then was) outlined that:

In addition, it is incumbent upon the AGC to show that the Canadian agencies concerned have made reasonable efforts to seek the consent of the foreign agency for the disclosure of the information in question (Ruby v Canada (Solicitor General), [2000] 3 FC 589 (FCA) at paragraphs 110-111, rev’d on other grounds in Ruby SCC), or if a request for disclosure had been made, it would have necessarily been refused (Canada (AG) v Canada (Commission of Inquiry into the Actions Canadian Officials in Relation to Maher Arar), 2007 FC 766 at paragraph 73). This obligation seems to carry more weight where the right to security of the person who has an interest in the information, guaranteed by section 7 of the Charter, is engaged (Almalki FC at paragraph 142). Such is not the case here.

In Khawaja, Justice Richard Mosley clearly set out the purpose of the rule and the limits to its exception: Clearly, the purpose of the third party rule is to protect and promote the exchange of sensitive information between Canada and foreign states or agencies, protecting both the source and content of the information exchanged to achieve that end, the only exception being that Canada is at liberty to release the information and/or acknowledge its source if the consent of the original provider is obtained.

[139] The evidence presented in camera ex parte establishes that the documentation in respect of which the third party rule is raised contains security intelligence from || foreign agencies from || countries.

[140] The Court has had the benefit of the CSIS affiant’s testimony that the Service |||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| information on potential or specific threats to Canada’s national security. He explained that the disclosure of information received in confidence from a foreign agency without their consent would deter these agencies from providing information in the future and would thus hinder the Service’s ability to investigate threats to the security of Canada and provide advice on matters of national security that could ultimately lead to loss of life or severe damage to property.

[141] In cross-examination, the CSIS affiant mentioned that foreign agencies would most likely view all unapproved disclosures of information to be breaches of the third party rule, even if the Court, as opposed to CSIS, ordered the disclosure. He gave two examples of other countries that have disclosed such information—through court proceedings similar to this one—without permission to do so, and that have faced either a suspension or reduction of information from that foreign agency. He testified that the same consequence would likely occur to Canada if it disclosed information received in confidence from a foreign agency, without permission to do so, even in the context of a section 38 proceeding.

[142] In addition, the GAC affiant testified that the Information at Issue was provided in confidence by |||||||||||||||||||||||||| government agencies and officials and that it must be protected. He testified that Canada’s international relations and foreign objectives require cooperation, confidence and trust from international partners. Failure to protect the information received pertaining to comments or assessments critical of foreign governments, information received in confidence and the sources of that information, information related to the personal information of certain foreign officials, or details of Canadian diplomatic efforts, such as this case, would erode trust, cause injury to those officials involved in the communications and could negatively impact the free flow of information to Canada.

[143] GAC’s affiant added that Canada’s relationship with |||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||| and must be protected. As for Canada’s relationship with ||||||, he says it must also be maintained, |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||.

[144] AGC has adduced evidence to confirm that requests from CSIS and GAC were made to all but || of the agencies in order to obtain their consent to the disclosure of the information (or summaries of such information) they had provided. |||| agencies approved the release of the information (which resulted in the lifts of the redactions or in agreed-upon summaries and are therefore not at issue here), while the others either denied or did not respond. Affiants from CSIS and GAC testified that disclosing information in the face of a declined or unanswered foreign agency request would be particularly injurious to national security and international relations by violating the foreign country’s expectations of confidentiality and, in the case of the denied foreign agency request, be a clear indication to that country that Canada ignored its request to protect it.

[145] In two instances, namely with |[one country] and, in regards to limited documents, with |[another country]||, no request was made. As for ||||||, the contested redaction that GAC is protecting concerns confidential assessments by |||||||||||||||||||||||||| which may differ from the views of their government and requesting to disclose the information could endanger the safety of the official in question. CSIS also did not make any requests to disclose information received from the |||||||||| for several reasons, including that such requests could have negative repercussions on Mr. Abdelrazik ||||||||||||||||||||||||||||||||||. As for ||||||||||, CSIS did not request permission from |||||||||||||||||||||||||||||| to disclose any references to |||||||||||||||||||||| as it could be perceived as criticism. Further, CSIS did not make a request when the information the amici seek to disclose is information that |||||||||| had themselves first received from other foreign agencies.

[146] I am satisfied that:

1. The Canadian agencies met their obligation of taking reasonable measures to obtain the consent of foreign agencies to the disclosure of the information provided by them;

2. The AGC has demonstrated the importance of Canada’s relationship with each of the foreign agencies, the importance to the security of Canada of preserving that relationship, and the fact that it is of utmost importance to Canada that the type of security intelligence in question, given the countries of origin, continue to be provided to Canadian agencies; and

3. The disclosure of the information as identified would result, if granted, in a breach of the third party rule with regard to each agency, which would be injurious to national security and international relations. The fact that no request was made in some instances in no way affects the confidential nature of this information and the expectations of the agency or individuals. The information, were it to be disclosed, would reveal the existence and the nature of the relationship between CSIS and this agency.

[147] Accordingly, I am satisfied that the AGC’s assessment of injury in regards to the Information at Issue received in confidence by foreign agencies or representatives is reasonable and that the AGC has established that the disclosure of the Information at Issue in breach of the third party rule would be injurious to national security and to international relations.

(v) Conclusion on the Second Part of the Ribic Test-Injury (Annex C)

[148] The other claims of injury as evidenced by the AGC were not challenged by the amici.

[149] I am satisfied that the AGC’s assessment is reasonable based on the evidence he adduced and that disclosure of the Information at Issue in the 119 documents would be injurious.

(c) Balancing of Public Interests

[150] Subsection 38.06(2) of the CEA provides that where a decision has been reached that the disclosure of information would be injurious, it must then be determined whether the public interest in disclosing the injurious information outweighs in importance the public interest in not disclosing that information.

[151] In balancing the competing public interests, the judge will consider many different factors that will vary from case to case. In Khan at paragraph 26, the Court outlined some of the relevant factors that may be considered “[i]n assessing whether an apparent case for disclosure has been made out”. The Supreme Court of Canada indicated, in Ahmad at paragraph 44, that the section 38 scheme was flexible and in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 at paragraph 77, the “considerable discretion” section 38 confers on the designated judge.

[152] In this case I find the appropriate factors for the balancing test are:

• The extent of the injury of disclosing the Information at Issue;

• The possibility of minimizing the injury by disclosing summaries;

• The seriousness of the issues involved;

• Whether the information will establish a fact crucial for Mr. Abdelrazik to argue his case;

• Whether the information is already known to the public; and

• The importance of the open court principle.

[153] In brief, the extent of the injury, the fact that the information is already known to the public and the fact that counsel for Mr. Abdelrazik has indicated, at the public hearing, that he had enough evidence without the Information at Issue, and that the Information at Issue would, save for one, not establish a crucial fact weigh in favor of the public interest in non-disclosure.

[154] On the other hand, the possibility of considerably minimizing the injury by disclosing summaries rather than the actual Information at Issue, the seriousness of the issues involved and, in one instance, the importance of the Information at Issue to establish a crucial point weigh in favor of public interest in disclosure.

[155] Violating the third party rule would be highly injurious in most instances. This case involves information shared with Canada ||||||||||||||||||||||||||||||||||||||||||, including |||||||||||||||| ||||||||||||||||||||||||||||||||||||||||, and involves countries where Canada’s |||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. The AGC made reasonable efforts to obtain consent for disclosure and evidence was presented that such requests were made or refused. When the AGC has not requested the disclosure of the information to the foreign partners, the AGC provided evidence of the injury that could result from the request.

[156] Further, disclosing CSIS employee names |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| would be highly injurious and would jeopardize employee safety. However, in respect to the identity of CSIS employees, I consider that the amici are not seeking to reveal the names of the employees, but simply the fact that in some instances it is the same employee, and both the AGC and the amici proposed summaries to limit the injury, as will be further discussed in the next section.

[157] Additionally, disclosing details of CSIS investigations would be injurious to national security. The Service cannot operate effectively if information identifying targets or past targets of an investigation, the intensity of the investigation, or even the eventual success of an investigation is disclosed (Telbani at paragraphs 45 and 50). This would allow subjects of investigation to actively circumvent the Service’s investigative efforts.

[158] There is also injury in disclosing information that could be perceived as a criticism of a foreign government, and more particularly, releasing some of the Information at Issue would be perceived as a criticism and cause friction to Canada’s intelligence-sharing relationship with ||||||||.

[159] The underlying proceeding is a civil action. While Mr. Abdelrazik’s liberty interests are not in play, he has raised serious allegations in the underlying proceeding concerning the Charter and human rights abuses. This Court has stated that while maintaining access to the courts to achieve redress for civil wrongs is an important public interest, the Court must be cognizant of the risk of present and future damage to Canada’s national interests if injurious information is ordered to be disclosed (Almalki FC at paragraphs 82-84).

[160] In a civil case, there must be consideration of whether the information sought would establish a fact crucial to the case of the party seeking it. I note, and took into consideration, that the key issue identified by Mr. Abdelrazik at the public hearing in regards to CSIS employees was that it was crucial for him to know when the same employee was being referred to; he did not raise particular concerns with respect to ||||||||||||||||||||||||||.

[161] I also consider, to a lesser extent, and as counsel for Mr. Abdelrazik raised at the public hearing, that the Supreme Court of Canada recently emphasized in Sherman Estate at paragraph 1, the importance of the open court principle as constitutionally protected and as “a central feature of a liberal democracy”. However, he has not challenged the constitutionality of the section 38 scheme which, in the precise circumstances that apply to it, allows for information to remain protected from disclosure.

[162] I take into account the fact that Mr. Abdelrazik did not challenge the prohibition of disclosure. Although he expressed the view that though some information is being withheld on some key issues, he stated that he already had enough information to establish the allegations raised in the underlying proceeding. This being said, I also must consider the degree to which some information is relevant to his claim (Canada (Attorney General) v Shen, 2017 FC 118; aff”d 2018 FCA 7, at paragraph 36).

[163] Some information in this case is in the public domain, either because it has been inadvertently disclosed, or has been disclosed through a leak. This Court has previously confirmed that there are many circumstances which would justify protecting information available in the public domain, including where the authenticity of the information is neither confirmed nor denied, and where the information was inadvertently disclosed. Inadvertent release of information for which a claim of privilege is advanced under section 38 is not a waiver (Arar at paragraphs 56 and57; Almalki FC at paragraph 190). This weighs in favour of the public interest in non-disclosure.

[164] Finally, and most importantly, the fact that the injury may be limited by disclosing the Information at Issue in the form of a summary weighs in favour of the public interest in disclosure. The summaries, when they are possible, avoid revealing particularly sensitive or injurious information such as the names of Service employees, ||||||||||||||||||||||||||||||||||, foreign officials or agencies, information for which third parties have refused disclosure, or the nature of information that was shared in confidence or/and consent to disclose has been received from the foreign agency in question. To the contrary, where I am satisfied that the injury cannot be neutralized or limited by a summary, having weighed the different factors, I find that the public interest in non-disclosure outweighs the public interest in disclosure.

[165] Having weighed the different factors, and particularly the fact that summaries of the Information at Issue are possible to limit the injury, I am satisfied that the public interest in disclosure outweighs the public interest in non-disclosure of the Information at Issue except in the cases highlighted below.

[166] I find that the public interest in non-disclosure outweighs the public interest in disclosure of information provided in confidence by third parties where a request to disclose has been denied by the foreign agency or where no request was possible without disrespecting the third party rule. In those instances, I am satisfied that the Information at Issue was sent by a foreign partner and/or discusses involvement of another third party agency. I am satisfied the AGC established that the third party rule applies, that a request for permission to disclose this information could not be made to the foreign agency without disrespecting the third party rule, or that a request for permission to disclose this information was refused.

[167] Finally, where I am satisfied that the third party rule applies and the response of the foreign agency for the disclosure requests have not been received, having balanced the different factors, I conclude that the public interest in non-disclosure outweighs the public interest in disclosure of the Information at Issue—specifically, AGC01064, AGC01107, AGC01176, AGC01750, AGC01824, AGC02579, AGC02639, AGC02642, AGC03763, AGC03779, AGC07903, and AGC08693—pending a response. Accordingly, I will remain seized of the matter and will re-examine it if a response is received. I will cease to be seized on the first day of the hearing of the underlying proceeding and also cease to be seized if the action is terminated prior to its hearing.

(d) The Form of and the Conditions of the Disclosure

[168] Where I found that public interest favors disclosure, the next step is to consider both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury before actually authorizing disclosure (Ribic at paras 37 -39; Almalki FCA at para 37; Hutton at para 32). Both parties presented summaries that, in their view, provide the gist or the essence of the redacted Information to ensure fairness in the underlying proceeding while also minimizing or limiting the injury to national security or international relations.

[169] The Federal Court of Appeal instructs me, while bearing in mind the public interest in disclosure, to ensure that the form of and conditions for disclosure are most likely to limit any injury to international relations or national defence or national security resulting from disclosure. It directs me to resort to the means that are the least prejudicial to these interests and stresses that Parliament’s intent is clear: any injury ought to be limited as much as possible and appropriate measures ought to be taken to that end, that is to say measures that are most likely to produce that result (Ribic at para 37).

[170] Bearing this in mind, I am satisfied that in all but one instance, the AGC’s proposed summaries, and the one overarching summary that was not subject to third party approval, are the most likely to limit any injury, and I will thus order disclosure in the form of and under the condition that it be in the form of the summaries proposed by the AGC. However, I will retain the amici’s proposition in regards to the designation of one specific employee.

[171] The amici have identified 11 documents referencing the involvement of a particular [Service employee]. The amici are not seeking to disclose the actual identity of the employee, but are seeking to disclose the fact that the same employee is indeed referenced throughout these 11 documents. In particular, the amici would like to identify this employee as “CSIS employee 1” in those 11 documents. They stressed that their summaries would limit the injury, if any, while allowing Mr. Abdelrazik to benefit from a key piece of information in the underlying proceeding.

[172] The AGC disagrees with the amici’s proposition in that regard and instead proposes for ten of the 11 documents identified by the amici that either a CSIS employee or CSIS be used in its summaries. The AGC asserts that if the amici’s summaries were to be preferred, identifying when an employee is the same individual in the documents at play |||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||.

[173] I find this issue is at play in the AGC s summaries in ten documents, hence: AGC00318, AGC01089, AGC01097, AGC01098, AGC01101, AGC01107, AGC01176, AGC02642, AGC07820, and AGC07903.

[174] In the present case, the information in question refers to events that took place about 20 years ago, and in this instance, the timeframe and the passage of time significantly reduce the injury. While the CSIS affiant testified that with the amici’s proposed summaries |||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||. Furthermore, counsel for Mr. Abdelrazik considered the identities of CSIS officials who were involved in Mr. Abdelrazik’s case as being a “crucial” piece of information in his proceeding. Having considered the form most likely to limit the injury and the public interest in disclosure, and I find that “CSIS employee 1” is an appropriate summary in the AGC’s summaries in those ten documents.

VIII. Conclusion

[175] As a last comment, I would like to thank counsel for the AGC as well as the amici for their helpful submissions and for their continuous cooperation, particularly in the exceptional circumstances of the pandemic. I also thank Mr. Abdelrazik for his patience throughout this process.

JUDGMENT in DES-3-18

THIS COURT’S JUDGMENT is that:

1. The AGC’s Application is allowed in part.

2. The prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex A is confirmed pursuant to subsection 38.06(3) of the CEA.

3. The prohibition of disclosure in regards to the Information at Issue contained in the documents listed in Annex C that was subject to third party approval, for which third parties have refused disclosure requests which includes disclosure of any summaries—regardless of whether or not the prohibition was challenged by the amici—is confirmed in application of subsection 38.06(3) of the CEA, in accordance with these reasons.

4. The prohibition of disclosure in regards to the Information at Issue contained in the production documents identified in Annex B and Annex C that is subject to third party approval—to which foreign agencies have not yet responded to the disclosure requests—is confirmed pursuant to subsection 38.06(3) of the CEA. In this regard, I will remain seized of the matter and will re-examine it if a response is received. I will cease to be seized on the first day of the hearing of the underlying proceeding and will also cease to be seized if the action is terminated prior to its hearing.

5. The prohibition of disclosure in regards to the Information at Issue contained in the document AGC02798 listed in Annex C is confirmed in application of subsection 38.06(3) of the CEA, in accordance with these reasons.

6. The disclosure of the Information at Issue in the production documents identified in Annex B and Annex C that are not subject to third party approval is authorized. However, in application of subsection 38.06(2) of the CEA, and as a condition of disclosure, the Court imposes that the information be disclosed in the form of the summaries which are stated in Annex B and Annex C.

7. The amici will be able to consult this classified judgment and reasons in the Federal Court’s Designated Proceedings Registry.

8. The AGC will propose, in consultation with the amici, a public version of this judgment and reasons for disclosure to the Respondent 20 days after the deadline for the AGC to appeal this classified judgment and reasons or on any other such earlier date if the AGC decides not to appeal.

9. The limitation period for the Respondent to appeal the public version of this judgment and reasons, under section 38.09 of the CEA, will only begin as of the date on which it is issued.

10. This classified judgment and reasons shall not form part of the public record.

11. The classified file of the Court shall be kept in the Designated Proceedings Registry, to which the public does not have access.

12. Should further applications pursuant to section 38 of the CEA related to the underlying proceeding be filed with the Court, I will remain seized of said applications.

13. Without costs.

		“Martine St-Louis”
	blank		Judge

 

ANNEX A

List of Uncontested Documents for which no summaries were authorized and for which redaction is confirmed in application of subsection 38.06(3) of the CEA

 

Count	AGC Production No	Count	AGC Production No	Count	AGC Production No
	AGC00001_R		AGC00359_R		AGC00730_R
	AGC00030_R		AGC00369		AGC00731_R
	AGC00042_R		AGC00378_R		AGC00733_R
	AGC00043_R		AGC00382_R		AGC00736_R
	AGC00049_R		AGC00383_R		AGC00737_R
	AGC00050_R		AGC00385_R		AGC00738_R
	AGC00058_R		AGC00386_R		AGC00739_R
	AGC00066_R		AGC00390_R		AGC00741_R
	AGC00092_R		AGC00394_R		AGC00749_R
	AGC00109		AGC00396_R		AGC00752_R
	AGC00110		AGC00403_R		AGC00755
	AGC00133_R		AGC00404_R		AGC00756_R
	AGC00156_R		AGC00410_R		AGC00757
	AGC00162		AGC00415_R		AGC00760
	AGC00172		AGC00416_R		AGC00764_R
	AGC00187_R		AGC00417_R		AGC00766
	AGC00205_R		AGC00419_R		AGC00770
	AGC00221		AGC00433_R		AGC00771_R
	AGC00222		AGC00435_R		AGC00772_R
	AGC00225_R		AGC00437_R		AGC00773_R
	AGC00239		AGC00438_R		AGC00774_R
	AGC00256_R		AGC00439_R		AGC00775_RR
	AGC00270_R		AGC00441_R		AGC00778
	AGC00276_R		AGC00442_R		AGC00779
	AGC00277_R		AGC00446_R		AGC00780_R
	AGC00278		AGC00517_R		AGC00782
	AGC00286		AGC00616_R		AGC00785_RR
	AGC00296_R		AGC00619		AGC00786_R
	AGC00300_R		AGC00624_R		AGC00788_R
	AGC00308_R		AGC00655		AGC00790_R
	AGC00309_R		AGC00658_R		AGC00795_R
	AGC00336_R		AGC00661_R		AGC00798
	AGC00338_R		AGC00662_R		AGC00800
	AGC00343		AGC00663		AGC00801
	AGC00344_R		AGC00727_R		AGC00802
	AGC00345_R		AGC00728		AGC00803

	AGC00804_R			AGC00899		AGC00990_R
	AGC00805_R			AGC00901_R		AGC00996_R
	AGC00806_R			AGC00902		AGC01003
	AGC00807_R			AGC00903		AGC01004
	AGC00808_R			AGC00905		AGC01005
	AGC00809_R			AGC00908		AGC01014
	AGC00810_R			AGC00909		AGC01015
	AGC00812			AGC00910		AGC01016
	AGC00813			AGC00911		AGC01017
	AGC00814			AGC00912_R		AGC01018
	AGC00815			AGC00913		AGC01019
	AGC00820_R			AGC00916		AGC01021_RR
	AGC00821			AGC00925_R		AGC01022_R
	AGC00822			AGC00929		AGC01023_R
	AGC00823			AGC00931_R		AGC01026
	AGC00826			AGC00937		AGC01028
	AGC00829			AGC00943		AGC01030
	AGC00830			AGC00946_R		AGC01031
	AGC00831_R			AGC00949_R		AGC01033
	AGC00838_R			AGC00950		AGC01034
	AGC00839_R			AGC00952		AGC01035
	AGC00844			AGC00953		AGC01036_R
	AGC00846_R			AGC00955_R		AGC01037
	AGC00848_R			AGC00956_R		AGC01038
	AGC00853			AGC00959_R		AGC01039_R
	AGC00854_R			AGC00963_R		AGC01040
	AGC00863			AGC00964_R		AGC01042
	AGC00865			AGC00966		AGC01044_R
	AGC00867			AGC00967		AGC01045_R
	AGC00872			AGC00969		AGC01046_R
	AGC00874_R			AGC00975		AGC01047_R
	AGC00876_R			AGC00976_R		AGC01048_R
	AGC00888			AGC00979_R		AGC01049_R
	AGC00890			AGC00980		AGC01050_R
	AGC00893_R			AGC00984		AGC01051_R
	AGC00897			AGC00988		AGC01052
	AGC00898_R			AGC00989		AGC01053_R
	AGC01054_R			AGC01154_R		AGC01279_R
	AGC01055_R			AGC01155_R		AGC01283_R
	AGC01057_R			AGC01156_R		AGC01284_R
	AGC01062			AGC01158_R		AGC01285_R
	AGC01063			AGC01159_R		AGC01286_R
	AGC01064			AGC01160_R		AGC01287_R
	AGC01065_R			AGC01161_R		AGC01289_R
	AGC01069_R			AGC01169_R		AGC01294
	AGC01071_R			AGC01170_R		AGC01296_R
	AGC01072			AGC01171_R		AGC01297_R
	AGC01074_R			AGC01172_R		AGC01300_R
	AGC01075_R			AGC01174_R		AGC01301_R
	AGC01076_R			AGC01177_R		AGC01302_R
	AGC01079_R			AGC01178_R		AGC01306_R
	AGC01083_R			AGC01188_R		AGC01313_R
	AGC01084_R			AGC01189_R		AGC01314_R
	AGC01091_R			AGC01192_R		AGC01315_R
	AGC01093_R			AGC01198_R		AGC01326_R
	AGC01096_R			AGC01200_R		AGC01328_R
	AGC01099_R			AGC01201_R		AGC01338_R
	AGC01106_R			AGC01210_R		AGC01367_R
	AGC01108_R			AGC01212_R		AGC01411
	AGC01109_R			AGC01214_R		AGC01455
	AGC01110			AGC01215_R		AGC01465_R
	AGC01111_R			AGC01217_R		AGC01470_R
	AGC01114_R			AGC01220_R		AGC01481_RR
	AGC01115_R			AGC01223_R		AGC01497_R
	AGC01116_RR			AGC01237_R		AGC01499_R
	AGC01120_R			AGC01247_R		AGC01501_R
	AGC01121_R			AGC01248_R		AGC01502_R
	AGC01125_R			AGC01262_R		AGC01525_R
	AGC01137_R			AGC01263_R		AGC01541
	AGC01144_R			AGC01267_R		AGC01542_R
	AGC01145_R			AGC01272_R		AGC01555
	AGC01147_RR			AGC01273_R		AGC01556_R
	AGC01149_R			AGC01276_R		AGC01560
	AGC01153_R			AGC01278_R		AGC01565_R
	AGC01573			AGC01735_R		AGC02066_R
	AGC01581_R			AGC01737_R		AGC02069_R
	AGC01587_R			AGC01749		AGC02073_R
	AGC01591_R			AGC01754_R		AGC02087_R
	AGC01605_R			AGC01755		AGC02106
	AGC01618_R			AGC01761_R		AGC02109_R
	AGC01622_R			AGC01762_R		AGC02117_R
	AGC01625			AGC01771		AGC02141_R
	AGC01628_R			AGC01791		AGC02160
	AGC01629			AGC01800_R		AGC02162_R
	AGC01631			AGC01814_R		AGC02173_R
	AGC01633_R			AGC01866_R		AGC02185_R
	AGC01639_R			AGC01870		AGC02188_R
	AGC01640_R			AGC01883_R		AGC02190
	AGC01642_R			AGC01891_R		AGC02197_R
	AGC01645_R			AGC01893		AGC02219_R
	AGC01664_R			AGC01895		AGC02223
	AGC01670_R			AGC01925_R		AGC02228
	AGC01673_R			AGC01930_R		AGC02230_R
	AGC01685_R			AGC01947_R		AGC02251
	AGC01686_R			AGC01954		AGC02252_R
	AGC01687_R			AGC01962		AGC02260_R
	AGC01688			AGC01966		AGC02262
	AGC01689_R			AGC01971		AGC02276
	AGC01690_R			AGC01973_R		AGC02281_R
	AGC01692_R			AGC01988		AGC02285_R
	AGC01697_R			AGC01993		AGC02292_R
	AGC01698_R			AGC02010_R		AGC02301
	AGC01700			AGC02015		AGC02309_R
	AGC01705_R			AGC02019		AGC02311_R
	AGC01707_R			AGC02022		AGC02316_R
	AGC01718			AGC02023		AGC02321
	AGC01722_R			AGC02028_R		AGC02323_R
	AGC01723_R			AGC02035_R		AGC02333_R
	AGC01728_R			AGC02058_R		AGC02342
	AGC01729_R			AGC02062		AGC02347_R
	AGC01733_R			AGC02063		AGC02348_R
	AGC02350_R			AGC02579		AGC02777_R
	AGC02358			AGC02581_R		AGC02784_R
	AGC02362_R			AGC02583		AGC02788_R
	AGC02363_R			AGC02584		AGC02797
	AGC02373_R			AGC02585_R		AGC02799
	AGC02398			AGC02587_RR		AGC02801_R
	AGC02415_R			AGC02588_R		AGC02802
	AGC02416_R			AGC02589		AGC02806_R
	AGC02417_R			AGC02590_R		AGC02809_R
	AGC02423_R			AGC02593_RR		AGC02811_R
	AGC02426_R			AGC02595_R		AGC02819
	AGC02434_R			AGC02598		AGC02822_R
	AGC02436			AGC02600		AGC02825_R
	AGC02447_R			AGC02602		AGC02829_R
	AGC02448_R			AGC02603		AGC02833_R
	AGC02450_R			AGC02607		AGC02834_R
	AGC02454			AGC02611		AGC02838_R
	AGC02471_R			AGC02615_R		AGC02848_R
	AGC02472			AGC02632_R		AGC02855_R
	AGC02493			AGC02638		AGC02859_R
	AGC02494_R			AGC02640_R		AGC02861
	AGC02496			AGC02641		AGC02864
	AGC02501			AGC02645_R		AGC02865
	AGC02518			AGC02665_R		AGC02869
	AGC02528_R			AGC02680		AGC02870_R
	AGC02529_RR			AGC02700		AGC02875_R
	AGC02533_R			AGC02714_R		AGC02886_R
	AGC02539_RR			AGC02717_R		AGC02888
	AGC02547			AGC02719_R		AGC02892_R
	AGC02559			AGC02723		AGC02902_R
	AGC02563_R			AGC02730		AGC02907_R
	AGC02565			AGC02731		AGC02917
	AGC02566_R			AGC02737_R		AGC02921_R
	AGC02567_R			AGC02760		AGC02923_R
	AGC02568_R			AGC02762_R		AGC02935
	AGC02569			AGC02772_R		AGC02947_R
	AGC02573_R			AGC02774_R		AGC02948
	AGC02950_R		AGC03694_R			AGC03820
	AGC02954_R		AGC03705_R			AGC03848_R
	AGC02974_R		AGC03714_R			AGC03856_R
	AGC02975		AGC03736			AGC03859_RR
	AGC02984_R		AGC03737			AGC03875
	AGC02985_R		AGC03742_R			AGC03888_R
	AGC03004		AGC03744_R			AGC04000_R
	AGC03009_R		AGC03747_R			AGC04226
	AGC03027_R		AGC03751			AGC04237
	AGC03081_R		AGC03753_R			AGC04246_RR
	AGC03090_R		AGC03757_R			AGC04247_R
	AGC03091_R		AGC03758			AGC04253
	AGC03112_R		AGC03761			AGC04304_R
	AGC03150_R		AGC03764			AGC04347_R
	AGC03181_R		AGC03765_R			AGC04397_R
	AGC03182_R		AGC03766			AGC04421_R
	AGC03187_R		AGC03767			AGC04438_R
	AGC03365_R		AGC03769_R			AGC04442
	AGC03369_R		AGC03777			AGC04444_R
	AGC03376_R		AGC03778_R			AGC04446_R
	AGC03382_R		AGC03780_R			AGC04448_R
	AGC03529_R		AGC03781			AGC04449_R
	AGC03541_R		AGC03783_R			AGC04450_R
	AGC03542_R		AGC03784_R			AGC04459
	AGC03554		AGC03785_R			AGC04472_R
	AGC03555_R		AGC03788			AGC04494
	AGC03556_R		AGC03789			AGC04497
	AGC03580_R		AGC03792_R			AGC04522
	AGC03585_R		AGC03793			AGC04526_R
	AGC03588_R		AGC03794_R			AGC04543
	AGC03614_R		AGC03795_R			AGC04560_R
	AGC03615		AGC03796			AGC04580_R
	AGC03616_R		AGC03798_RR			AGC04583
	AGC03648_R		AGC03805			AGC04590_R
	AGC03670_R		AGC03806_R			AGC04591_R
	AGC03681		AGC03807			AGC04621_R
	AGC03688_R		AGC03810_R			AGC04622_R
	AGC04623_R			AGC05071_R		AGC05474
	AGC04624_R			AGC05078		AGC05477
	AGC04626_R			AGC05081_R		AGC05478
	AGC04648_R			AGC05084		AGC05479
	AGC04650			AGC05085_R		AGC05480_R
	AGC04683_R			AGC05086		AGC05483
	AGC04686_R			AGC05091_R		AGC05484_R
	AGC04690_R			AGC05092_R		AGC05485
	AGC04700_R			AGC05126_R		AGC05486_R
	AGC04717_R			AGC05129_R		AGC05488_R
	AGC04732			AGC05141_R		AGC05490_R
	AGC04828			AGC05149		AGC05505_R
	AGC04863			AGC05152		AGC05506
	AGC04872			AGC05159_R		AGC05509
	AGC04958_R			AGC05161_R		AGC05510_R
	AGC04959			AGC05165		AGC05511
	AGC04965			AGC05169		AGC05539_R
	AGC04966_R			AGC05186_R		AGC05545_R
	AGC04987			AGC05188		AGC05548
	AGC04990			AGC05189		AGC05553_R
	AGC04992_R			AGC05202_R		AGC05554_R
	AGC05009			AGC05204		AGC05588_R
	AGC05014_R			AGC05210_R		AGC05590
	AGC05018			AGC05214_R		AGC05594
	AGC05024_R			AGC05215_R		AGC05595_R
	AGC05025			AGC05224_R		AGC05596_RR
	AGC05027			AGC05225_R		AGC05604_R
	AGC05030			AGC05229		AGC05605_R
	AGC05037			AGC05232		AGC05606_R
	AGC05039_R			AGC05384		AGC05610
	AGC05046_R			AGC05416_R		AGC05611_R
	AGC05048_R			AGC05417		AGC05613
	AGC05049_R			AGC05437_R		AGC05614
	AGC05050_R			AGC05439_R		AGC05615
	AGC05054_R			AGC05442_R		AGC05617
	AGC05056_R			AGC05454_R		AGC05618_R
	AGC05057_R			AGC05462_R		AGC05619_R
	AGC05620		AGC05747			AGC05869_R
	AGC05623		AGC05755			AGC05874_R
	AGC05624_R		AGC05756_R			AGC05879
	AGC05626_R		AGC05757			AGC05880_R
	AGC05627_R		AGC05759_R			AGC05881_R
	AGC05630		AGC05763			AGC05890
	AGC05631_R		AGC05767_R			AGC05892_R
	AGC05632		AGC05768_R			AGC05893_R
	AGC05634		AGC05769			AGC05894
	AGC05635		AGC05773_R			AGC05899_R
	AGC05636		AGC05777_R			AGC05917_RR
	AGC05637_R		AGC05783_R			AGC05927
	AGC05638		AGC05785			AGC05928_R
	AGC05640		AGC05787_R			AGC05934_R
	AGC05641_R		AGC05788_R			AGC05937
	AGC05644_R		AGC05789			AGC05941_R
	AGC05645_R		AGC05790_RR			AGC05952
	AGC05647_R		AGC05795_R			AGC05953_R
	AGC05662_R		AGC05800_R			AGC05965
	AGC05686_R		AGC05802_R			AGC05968
	AGC05690_R		AGC05804_R			AGC05969_R
	AGC05693_RR		AGC05808_R			AGC05978
	AGC05694		AGC05809_R			AGC05981
	AGC05695		AGC05813			AGC05984_R
	AGC05696		AGC05821_R			AGC05986
	AGC05697_R		AGC05826			AGC05988_R
	AGC05700_R		AGC05829			AGC05989_R
	AGC05701_R		AGC05833_RR			AGC05997_R
	AGC05702_R		AGC05834_R			AGC06000_R
	AGC05718_R		AGC05836_R			AGC06001_R
	AGC05719		AGC05847			AGC06009_R
	AGC05725		AGC05850_R			AGC06013_R
	AGC05728_RR		AGC05858_R			AGC06014_R
	AGC05729_RR		AGC05862_R			AGC06041_R
	AGC05736		AGC05866			AGC06048_R
	AGC05745_R		AGC05867_R			AGC06050
	AGC05746_R		AGC05868_R			AGC06052
	AGC06054		AGC06232_R			AGC06562_R
	AGC06056		AGC06238_R			AGC06577_R
	AGC06057_R		AGC06239_R			AGC06595_R
	AGC06058_R		AGC06249_R			AGC06597
	AGC06059_R		AGC06250_R			AGC06615_R
	AGC06062_R		AGC06251_R			AGC06618_R
	AGC06063		AGC06253			AGC06619
	AGC06070_R		AGC06270			AGC06631_R
	AGC06072_R		AGC06285_R			AGC06643_R
	AGC06074_R		AGC06303			AGC06646_R
	AGC06087_R		AGC06318			AGC06649_R
	AGC06088_R		AGC06319			AGC06655_R
	AGC06091_R		AGC06351			AGC06659_R
	AGC06095_R		AGC06354_R			AGC06677_R
	AGC06099_R		AGC06383_R			AGC06681_R
	AGC06100_R		AGC06391_R			AGC06698_R
	AGC06111_R		AGC06404_R			AGC06701_R
	AGC06122_R		AGC06405_R			AGC06718_R
	AGC06125		AGC06415_R			AGC06719
	AGC06126		AGC06424_R			AGC06730_R
	AGC06131		AGC06431			AGC06733_RR
	AGC06133		AGC06433_R			AGC06743_R
	AGC06144_R		AGC06437_R			AGC06760
	AGC06147_R		AGC06455_R			AGC06765_R
	AGC06149_R		AGC06458_R			AGC06770_R
	AGC06150_R		AGC06476			AGC06774
	AGC06178_R		AGC06490_R			AGC06789_R
	AGC06180_R		AGC06492_R			AGC06796_R
	AGC06181_R		AGC06504_R			AGC06805
	AGC06184		AGC06511_R			AGC06812_R
	AGC06186_R		AGC06514_R			AGC06817
	AGC06191		AGC06523_R			AGC06831_R
	AGC06192		AGC06526			AGC06837_R
	AGC06203		AGC06527_R			AGC06840
	AGC06206_R		AGC06532			AGC06849_R
	AGC06207		AGC06537_R			AGC06859_R
	AGC06215_R		AGC06551			AGC06862_R

 

	AGC06869_RR		AGC07236		AGC07403_R
	AGC06872_R		AGC07241_R		AGC07404_R
	AGC06908_R		AGC07243_R		AGC07407_R
	AGC06923		AGC07244		AGC07414_R
	AGC06924		AGC07245_R		AGC07469_R
	AGC06925		AGC07246_R		AGC07478_R
	AGC06934_R		AGC07247_R		AGC07489_R
	AGC06935_R		AGC07248_R		AGC07490_R
	AGC06938_R		AGC07249		AGC07499
	AGC06940		AGC07250_R		AGC07506_R
	AGC06957		AGC07251_R		AGC07528
	AGC06975_R		AGC07254_R		AGC07534_R
	AGC06982_R		AGC07255_R		AGC07538_R
	AGC07022_R		AGC07276		AGC07539_R
	AGC07034_R		AGC07292		AGC07552
	AGC07043_R		AGC07294_R		AGC07553_R
	AGC07054_R		AGC07304_R		AGC07554_R
	AGC07056		AGC07318_R		AGC07556_R
	AGC07057_R		AGC07319_R		AGC07559_R
	AGC07058_R		AGC07320_R		AGC07572_R
	AGC07059_R		AGC07322_R		AGC07575_R
	AGC07060_R		AGC07331_R		AGC07579
	AGC07063_R		AGC07333_R		AGC07583_R
	AGC07065_R		AGC07334_R		AGC07589_R
	AGC07066_R		AGC07345_R		AGC07598_R
	AGC07093_R		AGC07352_R		AGC07599_R
	AGC07104_R		AGC07360		AGC07603_R
	AGC07117_R		AGC07362		AGC07605
	AGC07119		AGC07369		AGC07607_R
	AGC07120_R		AGC07371_R		AGC07613
	AGC07125_R		AGC07373_R		AGC07622
	AGC07132_R		AGC07375_R		AGC07624
	AGC07142		AGC07384_R		AGC07632_R
	AGC07170		AGC07391		AGC07634_R
	AGC07172		AGC07395_R		AGC07635_R
	AGC07205_R		AGC07397_R		AGC07637_R
	AGC07206_R		AGC07402_R		AGC07638
	AGC07640		AGC07852		AGC08100_R
	AGC07642_R		AGC07861_R		AGC08101_R
	AGC07644_R		AGC07862		AGC08104_R
	AGC07649_R		AGC07864		AGC08108_R
	AGC07650_R		AGC07866		AGC08109_R
	AGC07654_R		AGC07867_R		AGC08110_R
	AGC07657_R		AGC07870_R		AGC08121_R
	AGC07658_R		AGC07871		AGC08122_R
	AGC07666_R		AGC07872_R		AGC08127_R
	AGC07669_R		AGC07873_R		AGC08131_R
	AGC07672		AGC07877		AGC08135_R
	AGC07677		AGC07888_R		AGC08136_R
	AGC07679		AGC07894_R		AGC08661_R
	AGC07688		AGC07896_R		AGC08665_R
	AGC07690_R		AGC07899_R		AGC08669_R
	AGC07691_R		AGC07919		AGC08674_R
	AGC07694		AGC07920_R		AGC08687_R
	AGC07698		AGC07928_R		AGC08691_R
	AGC07703		AGC07931_R		AGC08692_R
	AGC07730_R		AGC07932		AGC08696
	AGC07735_R		AGC07933		AGC08697
	AGC07742_R		AGC07935_R		AGC08698
	AGC07751		AGC07936_R		AGC08699
	AGC07766		AGC07954		AGC08700
	AGC07769_R		AGC07957_R		AGC08701
	AGC07785_R		AGC07960_R		AGC08702
	AGC07788_R		AGC07975_R		AGC08703
	AGC07793_R		AGC07998		AGC08704
	AGC07808		AGC08000_R		AGC08705
	AGC07809		AGC08011_R		AGC08707
	AGC07818_R		AGC08015_R		AGC08713
	AGC07822_R		AGC08024		AGC08714
	AGC07831_R		AGC08035_R		AGC08720
	AGC07838_R		AGC08037_R		AGC08721
	AGC07840_R		AGC08077_R		AGC08723
	AGC07843_R		AGC08097_R		AGC08726
	AGC07847_R		AGC08099_R		AGC08733
	AGC08734		AGC08829		AGC08923
	AGC08735		AGC08831		AGC08924
	AGC08738		AGC08833		AGC08926
	AGC08739		AGC08834		AGC08928
	AGC08742		AGC08835		AGC08931
	AGC08743		AGC08836		AGC08935
	AGC08747		AGC08837		AGC08937
	AGC08748		AGC08838		AGC08943
	AGC08749		AGC08839		AGC08945
	AGC08750		AGC08841		AGC08948
	AGC08752		AGC08842		AGC08951
	AGC08753		AGC08847		AGC08965
	AGC08754		AGC08850		AGC08966
	AGC08755		AGC08851		AGC08967
	AGC08756		AGC08852		AGC08985
	AGC08760		AGC08853		AGC08986
	AGC08761		AGC08859		AGC08987
	AGC08767		AGC08864		AGC08988
	AGC08773		AGC08870		AGC08989
	AGC08775		AGC08873		AGC08997
	AGC08780		AGC08876		AGC08998
	AGC08784		AGC08877		AGC09013
	AGC08785		AGC08878		AGC09015
	AGC08787		AGC08884		AGC09060
	AGC08788		AGC08894		AGC09064
	AGC08789		AGC08896		AGC09069
	AGC08790		AGC08900		AGC09074
	AGC08791		AGC08902		AGC09099
	AGC08792		AGC08903		AGC09101
	AGC08793		AGC08905		AGC09107
	AGC08795		AGC08910		AGC09108
	AGC08797		AGC08912		AGC09126
	AGC08798		AGC08913		AGC09131
	AGC08799		AGC08914		AGC09135
	AGC08806		AGC08916		AGC09155
	AGC08813		AGC08917		AGC09160
	AGC08827		AGC08922		AGC09177
	AGC09185
	AGC09187
	AGC09190
	AGC09192