The complaint concerns the RCMP’s investigation into Abdulrahman El-Bahnasawy, who was arrested in the United States on terrorism charges in 2016 and sentenced to 40 years in a maximum security prison.
In an Aug. 15 decision in Canada v. El-Bahnasawy, 2024 FC 1269, released on Aug. 26, Federal Court Justice Peter G. Pamel held that it was in the interest of justice to permit the director to intervene, noting that the issues raised by the director, including the impact of the proposed disclosure on prosecutorial independence, were of significant importance.
“If, as the Director states, there are constitutional principles that prevent the disclosure of documents that would negatively impact his office’s prosecutorial independence, the Court would be well served by hearing the Director’s submissions on this issue,” Justice Pamel wrote.
The underlying application for judicial review concerned a complaint brought by the respondent Osama El‑Bahnasawy. The respondent claimed that his son Abdulrahman was the subject of an RCMP investigation and that the RCMP was involved in the events leading to his son’s arrest in the United States.
Abdulrahman was convicted of conspiring with ISIS operatives in an unsuccessful plot to bomb Times Square in New York City and the New York City subway system. An investigation by the Federal Bureau of Investigation (FBI), which the RCMP assisted, led to his arrest. Abdulrahman was 17 when he first got involved with the plot.
The parents have previously stated that their son was diagnosed as having bipolar or manic depressive disorder and that the RCMP and the FBI were aware of his illness.
Prior to the arrest, Toronto’s Centre for Addiction and Mental Health confirmed to the RCMP that Abdulrahman had been an inpatient there in 2014.
In January 2022, NSIRA requested that the RCMP provide all documents relating to legal advice it sought or obtained in relation to its investigation of Abdulrahman, excluding any legal advice specific to the NSIRA investigation into the complaint.
The RCMP refused to disclose the documents identified as being relevant to NSIRA’s request on the grounds that NSIRA lacked the statutory authority to compel production of legal advice protected by solicitor-client privilege
The applicant, the Attorney General of Canada (AGC), advised NSIRA that while s.9 of the National Security and Intelligence Review Agency Act expressly allows NSIRA to seek documents subject to solicitor-client privilege within the context of a review, s. 10 of the Act, which deals with investigating complaints, does not.
In October 2023, NSIRA released a final report in relation to the complaint but reserved for itself the authority to make further inquiries with respect to the documents withheld by the RCMP.
The respondent filed an application for judicial review of the final report seeking, among other things, an order requiring NSIRA to exercise its power to compel the RCMP to produce the documents it was withholding.
In December 2023, NSIRA advised the AGC that it would consider issuing a summons requiring the RCMP to produce the documents in question.
The AGC reiterated his refusal and added that the NSIRA had expended its authority under the Act to investigate with the issuance of the final report.
In February 2024, NSIRA issued a procedural ruling that it had the legal authority to issue a summons to compel the RCMP to produce documents subject to solicitor-client privilege in respect of a complaint investigation for which it had issued a final report.
The AGC filed an application for judicial review seeking a declaration that NSIRA does not have jurisdiction to issue such a summons in the context of section 10 of the Act and that NSIRA was functus officio, having expended all powers to investigate after the issuance of its final report.
Director of Public Prosecutions George Dolhai sought leave to intervene in the proceeding.
The director submitted that the relationship of his office with the RCMP was different from a simple solicitor-and-client relationship as legal advice from the director’s office to an investigative agency is often also a predictive statement as to how the director will exercise his discretion in a particular circumstance.
The proposed intervener argued that this advice thus falls within the realm of prosecutorial discretion and independence.
The director submitted that he was duty-bound to challenge the disclosure of materials that may infringe upon the prosecutorial independence of the Public Prosecution Service of Canada (PPSC) and the exercise of prosecutorial discretion, so that his office may remain free from outside influence and interference.
“I must admit that an argument regarding how, why and to what extent the disclosure of the relevant information to NSIRA may impact the prosecutorial independence of the PPSC is an argument a judge of this Court may be eager to hear, and I cannot see how either of the other parties is in a position to legitimately make it,” Justice Pamel wrote.
The court held that the issues raised by the director were of significant importance and that it was in the interests of justice to permit the intervention.
Justice Pamel granted the motion to intervene.
Counsel for the respondent, John-Otto Phillips of Waddell Phillips, said that the RCMP’s position “reeks of a coverup” and does not give the El-Bahnasawy family or the Canadian public confidence that the RCMP is being open and transparent with a critical national security regulator.
“The situation suggests that the RCMP has information it does not want the NSIRA to see, and we believe that this information is directly relevant to what happened to Abdulrahman,” he told Law360 Canada in an email.
He added that the information at issue could support the El-Bahnasawys’ suspicion that the RCMP did not want to arrest Abdulrahman and charge him in Canada as he would face worse imprisonment conditions in the United States, without crucial procedural and substantive Charter protections that are afforded to Canadian citizens.
“Arresting and charging Abulrahman in the U.S. would further ensure that he would not be subject to Canadian criminal law as a minor under the Youth and Criminal Justice Act. It would also deprive him of Canada’s comparatively more forgiving approach in criminal justice for persons with mental illness,” he said.
He added that it was “deeply troubling” that the PPSC was intervening and trying to establish a constitutional hurdle to the oversight of a statutorily appointed regulator that has explicit jurisdiction to compel the production of solicitor-client privileged information.
“The reason the NSIRA has that explicit legislative authority is to ensure that unlawful conduct cannot be buried from its oversight by hiding behind, potentially improper, claims of privilege,” he said.
John Phillips and Flora Yu of Waddell Phillips also acted as counsel for the respondent.
The remaining parties were not immediately available for comment.
Mark Covan and Samir Adam acted as counsel for the Public Prosecution Service of Canada.
Derek Rasmussen acted as counsel for the Attorney General of Canada.
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