Charkaoui, Re, 2005 FC 149

Date: 20050201

                                                                                                                             Docket: DES-3-03

Citation: 2005 FC 149

BETWEEN:

IN THE MATTER OF a certificate

pursuant to subsection 77(1) of the

Immigration and Refugee Protection Act,

S.C. 2001, c. 27 (the IRPA),

signed by the Minister of Immigration and

the Solicitor General of Canada (the Ministers),

implicating Mr. Adil Charkaoui (Mr. Charkaoui);

IN THE MATTER OF the referral

of this certificate to the Federal Court

of Canada pursuant to subsection 77(1)

and sections 78 and 80 of the IRPA;

IN THE MATTER OF the warrant for the

arrest and detention and the review of the

reasons justifying continued detention pursuant

to subsections 82(1), 83(1) and 83(3) of the IRPA;

AND IN THE MATTER OF a motion asking that

the certificate be vacated and that Mr. Charkaoui

consequently be released and, in the alternative,

that the summary of evidence of additional information,

dated January 6, 2005, be excluded

REASONS FOR ORDER

THE HONOURABLE MR. JUSTICE SIMON NOËL

[1]         These reasons are pursuant to the order signed on January 20, 2005.

INTRODUCTION

[2]         Within the context of the fourth review of Mr. Charkaoui's detention (see section 83(2) of the IRPA), he has filed a two-pronged motion: the first requesting that the certificate be vacated and that he be released, and the other, in the alternative, requesting that the summary of additional information, the new evidence dated January 6, 2005, be excluded.

[3]         Briefly, the factual basis for the first request is the communication to Mr. Charkaoui on January 5, 2005, of a summary of interviews (held on January 31 and February 2, 2002) that Mr. Charkaoui had with one or more representatives of the Canadian Security Intelligence Service (hereinafter the CSIS), the reason being that there were no notes or recordings of the interviews in the possession of the CSIS (the CSIS policy being that when the report is finalized, the notes and recordings are destroyed). Mr. Charkaoui's counsel argues that these interviews constitute a breach of the principle of procedural fairness in that Mr. Charkaoui is unable to use all of the information communicated in the course of these interviews, including information favourable to him, and that this contravenes section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B to the Canada Act 1982, (U.K.) 1982, c. 11 (hereinafter the Charter).

[4]         In the alternative, should the Court not accept the first request, the second request asks, to put it briefly, that the summary of additional information communicated to Mr. Charkaoui (pursuant to section 78(h) of the IRPA) on January 6, 2005, be excluded from the record for the following reasons:

-            the additional information was communicated belatedly, thereby resulting in harm to Mr. Charkaoui;

-            the information was not reviewed in light of factors that might cast doubt on its reliability;

-            the information is not reliable or credible and was obtained by hearsay; and

-            this belated communication results in harm that is disproportionate to any possible probative value of the information.

[5]         For the reasons expressed below, the Court concludes that Mr. Charkaoui's requests ought to be dismissed.

The request that the certificate be vacated and that Mr. Charkaoui consequently be released

[6]         As soon as the certificate had been referred and Mr. Charkaoui arrested (in May 2003), a summary of the information in support of the issuance of the certificate and the arrest was prepared and, following a review of the file, I authorized the disclosure of this summary. Included among these documents were all of the summaries of interviews that Mr. Charkaoui had had with the CSIS representatives (on February 27 and September 14, 2001, and on July 26, 2002).

[7]         On January 5, 2005, at the commencement of the hearing requested by the Ministers in the absence of Mr. Charkaoui and his counsel, pursuant to section 78(e) of the IRPA, counsel for the Ministers informed me that in the course of preparing for the hearing, the CSIS had discovered in a further document a summary of two interviews with Mr. Charkaoui with the CSIS (dated January 31 and February 2, 2002) that had not been disclosed in May 2003.

[8]         For the purposes of understanding the request and the decision, the summary of the interviews reads as follows:

[translation]

INTRODUCTION

Adil CHARKAOUI was seen on 2002 01 31 and 2002 02 02. On the first contact, CHARKAOUI said he was prepared to clarify point by point what the Service might hold against him. He said he was prepared to undergo a polygraph, although he made fun of that tool. On the second contact, CHARKAOUI reverted to his defensive mode, saying he was being persecuted by the authorities, by the Service. Saying he has never done anything wrong, he refutes our allegations to the effect that some accused such as RESSAM had recognized him. He says this time that he refuses to undergo a polygraph and storms out. CHARKAOUI left many points unsettled, for example: CHARKAOUI says he never went to Afghanistan, but he admits he went to Pakistan, without indicating what he was doing there. Failing any second thoughts and a change in attitude, CHARKAOUI did not leave us under the impression that he would see the Service again.

[9]         Following this disclosure, the Court checked this document (containing the summary quoted above), which is several pages long, and personally observed that it was a document containing a number of summaries of interviews with several individuals and that the identification of any particular interview was not self-evident. It was further ordered that Mr. Charkaoui's counsel (hereinafter Ms. Larochelle) be given forthwith a copy of the summary of the interviews involving Mr. Charkaoui, which was done on January 5, 2005.

[10]       Ms. Larochelle argues that the lack of timely disclosure of the summary, and the fact that the investigators' notes and the copy of the recording (if there was one) were destroyed under a CSIS policy, have adversely affected Mr. Charkaoui. In her view, these indicate that not all of the information based on these interviews was disclosed to the Ministers at the time the initial decision was made (that is, when the certificate and the arrest warrant were signed). Therefore, they could not have had all of the necessary information to make such a decision. Furthermore, the "favourable" information based on these interviews does not appear there. In her view, this amounts to a breach of procedural fairness and thus of the principles recognized by section 7 of the Charter. She adds that CSIS, as a government agency, is subject to the rules of natural justice and that consequently it must act with objectivity and in compliance with the fundamental rights guaranteed by the Charter when conducting investigations.

[11]       Counsel for the Ministers reply that this was an unintentional omission and that as soon as the summary was discovered, the necessary steps were taken and explanations were communicated to Mr. Charkaoui. They add that the summary is of very little importance, considering the record as a whole. In their view, the belated disclosure of the summary does not result in any harm and Mr. Charkaoui may testify about these two interviews, and that his testimony will be the most complete reflection of the interviews. They explain that CSIS has a special mandate, to conduct investigations to the extent necessary, and that it may not retain the information collected in the course of investigations unless the information is essential for the purposes of the mandate (see section 12 of the Canadian Security and Intelligence Service Act, R.S.C. 1985, c. C-23, as amended).

[12]       As mentioned, I consider this situation, with the disclosure of this information at the hearings on January 5 and 10, 2005, regrettable. It is important that all the information that may be disclosed be communicated from the outset of the proceedings, other than such information as originates in the course of ongoing investigations and becomes communicable to the extent that a designated judge so authorizes, taking into account the judge's statutory duty to "ensure the confidentiality of the information ... if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person" (see section 78(b) of the IRPA). The summary of the interviews of January and February 2002 should have been disclosed in May 2003. However, the error is human, and this explains the belatedness in communicating the summary of the interviews.

[13]       At the public hearing concerning the review of the detention, the Court informed Mr. Charkaoui and his counsel that it did not want him to be adversely affected by testifying at this point, given the belated disclosure of the summary of the interviews and the communication of the summary of the additional information several business days prior to the commencement of the hearing on the review of Mr. Charkaoui's detention. The content of this summary will be discussed in the context of the second request. I think that a short period of time in which to assimilate the new evidence is needed and that it was in Mr. Charkaoui's interest to testify later rather than sooner, contrary to what Ms. Larochelle had initially announced. The objective of this recommendation was to neutralize the harm, if any.

[14]       The Court has analyzed Mr. Charkaoui's submissions from every angle but the conclusion sought is not the one adopted. There is no infringement of procedural fairness that cannot be remedied (if such is the case). Mr. Charkaoui may testify about these interviews and communicate his version. This would be the version that would most adequately reflect the interviews. So there can be no harm in such circumstances and if there was an infringement of procedural fairness it would be neutralized.

[15]       As mentioned at the hearing, it is inconceivable to the Court that it would vacate the certificate on the basis of a one-page document, taking into account both the very voluminous overall evidence that has been disclosed and the evidence that is protected for national security purposes. It would not be in the interest of justice to make such a decision. Furthermore, a careful reading of the evidence (both public and protected) indicates that the facts and allegations at the basis of the certificate and the detention do not originate in any way in the summaries of interviews but are instead elsewhere in the evidence. Of course, these summaries are part of the evidence but they are not necessary in order to demonstrate directly or indirectly the foundation of the facts and the allegations on which the proceeding is based.

[16]       Ms. Larochelle argues that the duty of CSIS is to present to the Ministers, without reservation and before the decision on the certificate is made, all of the information (both favourable and unfavourable) that it has, and that the destruction of the notes and the copy of the recording (if there was one) removes the possibility of communicating all of the information. The Court agrees with part of the argument, to the effect that all of the information collected by the CSIS and relevant for the purposes of the proceeding must be communicated to the Ministers. However, this case demonstrates, as mentioned previously, that the interview summaries are of no significance to the foundation of the facts and allegations on which the certificate and the detention are based. The same allegations and facts are found elsewhere in the evidence. A reading of the summaries of the information communicated to Mr. Charkaoui is edifying in this regard. There are, of course, some references to the interview summaries but these are not the source of facts supporting the allegations.

[17]       In view of what is stated above, it is not necessary to address the other submissions, for there was no breach of procedural fairness as defined in section 7 of the Charter, the facts and allegations in the present proceeding not being based on these summaries. Nor, for the same reasons, is it necessary to discuss the role of CSIS in the investigation, other than to say that CSIS is not a police agency and that it is not its role to lay charges. As such, it cannot be subject to the same obligations as those attributed to a police force. Moreover, we are dealing here with immigration law, not the criminal law. The standpoint is different: see Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at para. 88, in which Mr. Justice Bastarache, on behalf of the majority, states: "This Court has often cautioned against the direct application of criminal justice standards in the administrative law area. We should not blur concepts which under our Charter are clearly distinct." See also Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711; R. v. Lyons, [1987] 2 S.C.R. 309.

[18]       So the request that the certificate be vacated and that Mr. Charkaoui accordingly be released cannot be granted.

The request for exclusion of the summary of additional information dated January 6, 2005

[19]       On December 30, 2004, the solicitors for the Ministers requested a hearing in the absence of Mr. Charkaoui and his counsel, since they had some new information to communicate under the seal of national security (see section 78(e) of the IRPA). Being informed of this request, Ms. Larochelle objected.

[20]       After reviewing and analyzing the information submitted by the Ministers, I held such a hearing, in the absence of Mr. Charkaoui and his counsel, on January 5, 2005.

[21]       At the hearing, I examined two witnesses for several hours for the purpose of verifying the reliability of the facts taking into account, inter alia, the time they were obtained, the source (or sources) of these facts, the type of source(s) and the documentary verification in light of the record as a whole. (The role of the designated judge in such a procedure is explained in detail in Charkaoui (Re), [2004] 1 F.C.R. 528 (F.C.), at paras. 36-46.)

[22]       Once this painstaking exercise was completed, the Court turned to identifying what could be disclosed to Mr. Charkaoui and his counsel to enable them to be reasonably informed of these facts, including the allegations resulting therefrom, while preserving the confidentiality of the information, bearing in mind national security and the safety of any person (see sections 78(b) and 78(h) of the IRPA).

[23]       This procedure resulted in the production of a summary of the additional information.

[24]       This summary was disclosed to Ms. Larochelle on January 6, 2005 (one business day prior to the commencement of the hearing on the review of detention). The Court inquired as to whether these new facts and allegations could have been communicated earlier. They could have been communicated but the investigation producing these facts would have been incomplete. The origin of these new facts dates back to the end of February 2004 and it was not until the end of November 2004 that this part of the investigation was concluded.

[25]       Bearing in mind the lack of time available to Mr. Charkaoui and his counsel to study and analyze these new facts before the commencement of the hearing at which, it was announced, he would testify, the Court informed Mr. Charkaoui's counsel that it did not want Mr. Charkaoui to be adversely affected and that if a request for postponement was requested, it would be completely appropriate to grant it. The Ministers informed the Court that they would not object to any such request. Given the filing of the present motion, Mr. Charkaoui did not testify.

[26]       In the interests of transparency, and taking into account the constraints imposed by the IRPA, the summary indicates that the disclosed information is corroborated by means and/or sources other than the newspaper articles included as an appendix. Moreover, the information disclosed represents about 95% of the allegations and/or facts disclosed to me at the hearing of January 5, 2005.

[27]       Briefly, the summary of the evidence discloses the following:

-            the investigation concerning Mr. Charkaoui is ongoing;

-            the Moroccan authorities have identified Mr. Charkaoui as being a member of the Groupe islamique combattant marocain (GICM) [Moroccan Islamic Combatant Group];

-            the GICM is a group linked to Al-Qaida and is allegedly responsible for the attacks of May 16, 2003, in Casablanca and of March 11, 2004, in Madrid;

-            during a trip to Afghanistan in early 1998, Mr. Charkaoui is alleged to have taken military training and theological training in the Sharia institute at Khalden;

-            the emir of the GICM, Noureddine Nafia, who is being held in Morocco, reveals that Mr. Charkaoui was indoctrinated by a Libyan imam;

-            some funds have allegedly been collected in order to establish cells in Canada, Pakistan, Germany, France and the United Kingdom;

-            Mr. Charkaoui has maintained contact with and allegedly sent CAN$2,000.00 to the GICM and allegedly gave a laptop computer to a member of the GICM.

[28]       Mr. Charkaoui, through his counsel, requests that the summary be excluded for the reasons cited in paragraph 4 herein.

[29]       In greater detail, Ms. Larochelle complains that during two conference calls (on November 26 and December 7, 2004), the Ministers' solicitors failed to inform her that some new facts would be communicated to the Court under the seal of national security, and that the belated communication of the summary of two interviews (on January 5, 2005) and of the summary of the additional information (on January 6, 2005) a few days from the commencement of the hearing scheduled for January 10, 2005, clearly was adverse to Mr. Charkaoui.

[30]       The other submission goes to the unreliability of the facts and allegations contained in the summary. The references are some journalistic sources having little if any credibility. Moreover, the consul of Morocco in Montréal (Ms. Souriya Otmani) was met with by Mr. Mohammed Charkaoui and Ms. Hind Charkaoui, Mr. Charkaoui's father and sister respectively, on December 23, 2004, and she informed them that he is not being sought by the Moroccan authorities and that there was no arrest warrant outstanding against him.

[31]       It is further submitted that in addition to being neither reliable nor credible, the facts communicated in the summary are hearsay and that although this type of evidence is admissible in this kind of proceeding (see section 78(j) of the IRPA), the situation is different in this case given that the facts on which the hearsay is based have no guarantee of reliability.

[32]       The Ministers reply to these arguments as follows:

(a)         It was not possible to file the new information before January 6, 2005;

(b)         The role of the CSIS is to investigate; however, these are not criminal investigations but investigations for the purpose of anticipating the threat and deterring it;

(c)         In the context of proceedings under Division 9 of the IRPA, the CSIS is filing corroborated evidence insofar as this is possible, and this partly explains the delay; and

(d)         Furthermore, the CSIS has the difficult task of protecting the information associated with national security and it is not easy to comply with the statutory objective to deliver a summary that is reasonably informative (see section 78(h) of the IRPA).

[33]       Before commenting on the submissions by both parties, I should note that Parliament has anticipated the possibility that the Ministers might file with the Court new facts in support of the allegations (see section 78(e) of the IRPA). The English text is more explicit when it states: "On each request... made at any time during the proceedings...". The latter clause does not appear in the French text. Accordingly, during the proceedings the Ministers inform the Court of new facts (favourable or unfavourable) arising out of the ongoing investigation. Consequently, a summary of information may disclose some information in order to inform the individual of the circumstances giving rise to the passing on of information from the Ministers to the Court, but the summary must not be injurious to national security. This means, then, that the designated judge may be in possession of more information than the Ministers had at the time of the initial decision.

[34]       However, the transmission of the summary of information not yet disclosed should not be made in such a way that it would result in harm to the person involved. The Court must be on guard for such a possibility and neutralize such harm, if such be the case, by granting a postponement if it is appropriate or by compensating in other ways. Bearing in mind the exceptional features of these proceedings, the Court must go out of its way to avoid such a situation.

[35]       Through its knowledge of the record as a whole, the Court knows that the Ministers, via CSIS, were in possession of all of the new information by the end of November 2004. It was therefore possible to at least communicate to Ms. Larochelle the intention to request such a hearing during the conference call of December 7, 2004. Having a certain knowledge of the case, the Court considers that the Ministers' solicitors should have informed Ms. Larochelle once the Ministers were contemplating the serious possibility of requesting a hearing under section 78(h) of the IRPA.

[36]       Bearing in mind the remarks by Madam Justice Arbour (as she then was) in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, supra, at paragraphs 27 and 47, and the remarks by Chief Justice Richard of the Federal Court of Appeal in Charkaoui (Re), [2004] F.C.J. No. 2060 (F.C.A.), at paragraphs 153-54, the Ministers, CSIS and their counsel should have been more transparent in this exceptional type of proceeding. In my humble opinion, this extraordinary duty exists in regard to both the Court and the person involved and his counsel. The Court does not wish to speculate (and that is not its role) as to the reasons motivating the Ministers' counsel in conveying the request for a hearing in the absence of the person involved and his counsel to Ms. Larochelle only on December 30, 2004, rather than December 7, during the conference call (or between December 7 and 30), but it remains that this information should have been conveyed to her before this year-end date.

[37]       Having said this, the Court considers that the presentation of the present motion allows Mr. Charkaoui and his counsel to study and analyze the summary and to be prepared to testify during a forthcoming hearing on the review of the detention (if that is his choice) taking into consideration the record as a whole. The harm that would have existed if Mr. Charkaoui had testified in the days following the communication of the summary is neutralized. In fact, the dates of February 7 and 8, 2005, have been selected for the continuation of the review of the detention. The order was communicated orally at the hearing of January 18, 2005, which gives Mr. Charkaoui and his counsel close to three weeks in which to prepare.

[38]       In regard to the other submission concerning the unreliability of the facts and allegations and their lack of credibility, the Court repeats that it sought, during the hearing held in the presence solely of the Ministers' counsel and their witnesses, to find out whether the facts originated from a single source or several sources or whether there were other means of corroboration in support of the facts. The result of the exercise is that the facts did originate from more than one source and that other means were used to give them reliability. That is why the Court wanted to insert in the summary, on the first page, that

[translation] Furthermore, the information contained in this report, including the references in support of it, is corroborated by other means and (or) sources.

[39]       Having said this, I specify that it is impossible at this point to have a final determination as to the reliability and credibility of the facts. It is only after hearing all of the evidence of both parties that the Court can make a definitive ruling.

[40]       The Court's comments at paragraph 38 do not dispute what the consul of Morocco said during the meeting of December 23, 2004. A careful reading of diplomatic note No. Agh 0080 of the Department of Foreign Affairs and International Trade of Canada, dated February 18, 2004, and the reply by the Ministry of Foreign Affairs and Cooperation of the Kingdom of Morocco, under cover of the Moroccan Embassy, dated April 18, 2004, indicates that these exchanges are concerned with Mr. Charkaoui's treatment should he be returned to his country of birth. More specifically, assurances are being sought that he will be treated humanely and would not be subject to torture or other cruel, inhuman or degrading acts, and that he would not be subject to the death penalty or that measures would be taken to ensure that any such sentence is not executed. While stating that it is bound by article 10 of the Moroccan Constitution, the laws of the Kingdom of Morocco and the international conventions to which Morocco is a signatory, the diplomatic note indicates that Mr. Charkaoui is not the subject of any search or any legal proceeding in Morocco and the government has not undertaken to request his extradition. As to the weight to be given to the commentary contained in the diplomatic note, I intend to defer this issue until I have heard the evidence of both parties concerning this documentation, which will occur subsequently in the course of the proceedings under Division 9 of the IRPA.

[41]       Concerning the final submission, while I do not wish to confirm whether or not the new facts were obtained in the form of hearsay, or to generalize as to the particular details of these facts, I note that section 78(j) of the IRPA allows the judge to "receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence" (see paragraph 37 herein).

[42]       For all of these reasons, the request for exclusion of the summary of additional information, dated January 6, 2005, is dismissed.

[43]       The continuation of the hearing on the review of Mr. Charkaoui's detention may therefore resume and the dates of February 7 and 8, 2005, are chosen.

                          "Simon Noël"

                                Judge

Ottawa, Ontario

February 1, 2005

FEDERAL COURT

SOLICITORS OF RECORD

DOCKET:                                      DES-3-03

STYLE:                                          IN THE MATTER OF a certificate pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), signed by the Minister of Immigration and the Solicitor General of Canada (the Ministers), implicating Mr. Adil Charkaoui (Mr. Charkaoui);

IN THE MATTER OF the referral of this certificate to the Federal Court of Canada pursuant to subsection 77(1) and sections 78 and 80 of the IRPA;

IN THE MATTER OF the warrant for the arrest and detention and the review of the reasons justifying continued detention pursuant to subsections 82(1), 83(1) and 83(3) of the IRPA;

AND IN THE MATTER OF a motion asking that

the certificate be vacated and that Mr. Charkaoui

consequently be released and, in the alternative,

that the summary of evidence of additional information,

dated January 6, 2005, be excluded

PLACE OF HEARING:                          Montréal, Quebec

DATE OF HEARING:                           January 18, 2005

REASONS FOR THE ORDER

OF THE COURT:                                  February 1, 2005

DELIVERED FROM THE

BENCH BY:                                          MR. JUSTICE SIMON NOËL

APPEARANCES:

Daniel Roussy                               FOR THE SOLICITOR GENERAL OF CANADA

Luc Cadieux

Daniel Latulippe                            FOR THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Dominique Larochelle                               FOR ADIL CHARKAOUI

Karine Giguère

SOLICITORS OF RECORD:

John H. Sims                                            FOR THE SOLICITOR GENERAL OF CANADA

Deputy Attorney General of Canada          AND THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Des Lonchamps, Bourassa,Trudeau          FOR ADIL CHARKAOUI

et Lafrance

Montréal, Quebec