Date: 20090305
Dockets:
DES-3-08
DES-5-08
DES-6-08
DES-7-08
Citation:
2009 FC 240
Ottawa, Ontario, March 5, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
IN
THE MATTER OF a certificate signed pursuant
to
section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND
IN THE MATTER OF the referral of a
certificate
to the Federal Court pursuant to
section 77(1)
of the IRPA;
AND
IN THE MATTER OF Hassan ALMREI
AND
IN THE MATTER OF Mohamed HARKAT
AND
IN THE MATTER OF Mahmoud JABALLAH
AND IN THE MATTER
OF Mohamed Zeki MAHJOUB
REASONS FOR ORDER
[1] By
order dated January 2, 2009, the Chief Justice ordered that the Court
adjudicate upon two common issues of law that have arisen in these four
proceedings. The two common issues were identified in the order as follows:
a) What
is the role of the designated judge with respect to the additional information
disclosed by the ministers pursuant to the decision of the Supreme Court of
Canada in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC
38? More specifically, does paragraph 62 of that decision require the judge to
"verify" all information disclosed by the ministers if the special
advocates and counsel for the ministers all agree that a portion of that
information is irrelevant to the issues before the Court?
b) Should
the information disclosed to the named persons and their counsel be placed on
the Court's public files in these proceedings? If so, when?
[2] Oral
submissions were to be made on January 26, 2009. As well, on January 14, 2009,
the Court requested, by way of a direction, that on January 26, 2009 counsel
also be prepared to make oral submissions on the following issue:
Paragraph
83(1)(e) of the Immigration and Refugee Protection Act requires
the designated judge to ensure that, throughout the proceeding, the person
concerned is provided with a summary of information and other evidence that
reasonably informs them of the case made by the Ministers.
Is there a
distinction to be drawn between how information relied upon by the Ministers
and disclosed pursuant to paragraph 83(1)(e) of the Act is to be
treated, and how information not relied upon by the Ministers, but disclosed
pursuant to Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC
38 is to be treated?
[3] These
reasons set out the Court's determination of the two common issues of law.
The First Issue
Background
[4] In
Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326,
2008 SCC 38 (Charkaoui 2) the Supreme Court of Canada considered the
nature of the duty owed by the Canadian Security Intelligence Service (Service)
to retain and disclose information in its possession about a person named in a
security certificate issued under subsection 77(1) of the Act. Up to that
point in time it had been the policy of the Service to destroy all operational
notes (as defined in Service Policy OPS-217) after they had been transcribed
into a report. The Supreme Court found such policy to be based upon a flawed
interpretation of section 12 of the Canadian Security Intelligence Service
Act, R.S.C. 1985, c. C-23 (CSIS Act). Section 12 of the CSIS Act, properly
interpreted, was found to require the Service to "acquire information to
the extent that it is strictly necessary in order to carry out its mandate, and
[to] then analyse and retain relevant information and intelligence"
(Charkaoui 2, at paragraph 38).
[5] Turning
to the duty owed to a person named in a security certificate, the Court wrote
as follows at paragraph 62:
As things stand, the destruction by CSIS officers of their
operational notes compromises the very function of judicial review. To uphold
the right to procedural fairness of people in Mr. Charkaoui's position, CSIS
should be required to retain all the information in its possession and to
disclose it to the ministers and the designated judge. The ministers and the
designated judge will in turn be responsible for verifying the information they
are given. If, as we suggest, the ministers have access to all the
undestroyed "original" evidence, they will be better positioned to
make appropriate decisions on issuing a certificate. The designated judge, who
will have access to all the evidence, will then exclude any evidence that might
pose a threat to national security and summarize the remaining evidence --
which he or she will have been able to check for accuracy and reliability --
for the named person. [emphasis added]
[6] Implicit
in the requirement that the Service retain and disclose to the Court "all
the information in its possession" is that the Ministers may rely only
upon a portion of the information that is in the Service's possession.
Similarly, the person concerned (either through his special advocate, or
through his counsel if the Service's information has been disclosed or
summarized to him) may not rely upon all of the information in the Service's
holdings. It follows that a portion of the information in the Service’s
possession may not be considered to be relevant or pertinent by either party.
[7] Thus,
in the in camera hearings held in these proceedings an issue arose as to
whether the Court was responsible for verifying all of the information in the
Service's holdings (as suggested by a reading of paragraph 62 of Charkaoui 2)
or whether the Court was only required to verify information or evidence that a
party seeks to rely upon.
The position of the parties
[8] The
special advocates for Messrs. Almrei, Harkat, Jaballah and Mahjoub (named
persons) submit that:
a. Paragraph
62 of Charkaoui 2 does not apply to these proceedings.
b. The designated judge is not to have regard to any information which
is not "relied upon by the parties (through their counsel) with the
assistance of the Special Advocates." The role of the designated judge
"is to adjudicate the issues with reference to the information/evidence
relied upon by the parties (through their counsel) with the assistance of the
Special Advocates."
[9] Counsel
for the named persons express agreement with, and simply adopt, the position
taken by the special advocates.
[10] The
Ministers argue that the designated judge is not required to verify information
disclosed by the Ministers pursuant to paragraph 62 of Charkaoui 2 "if the
special advocates and Ministers agree that a portion of that information is irrelevant
to the issues before the Court."
Consideration of the issue
[11] Both
the special advocates and the Ministers premise their submissions upon the fact
that in Charkaoui 2 the Supreme Court was considering what it had previously
described, in Charkaoui v. Canada (Citizenship and Immigration), [2007]
1 S.C.R. 350 (Charkaoui 1), to be the "pseudo-inquisitorial role"
then assigned to designated judges under the Act (see, for example, paragraph
51 of Charkaoui 1).
[12] I
agree. At paragraph 18 of its reasons in Charkaoui 2, the Supreme Court was
careful to state that no issues were then before it about the proper
interpretation of the "Act to amend the Immigration and Refugee
Protection Act (certificate and special advocate) and to make a
consequential amendment to another Act, S.C. 2008, c. 3" (Bill C-3). At
paragraph 60 of its reasons, the Supreme Court noted that the statutory
framework before it did not include Bill C-3.
[13] Turning
to the current legislative framework which governs these proceedings, as its
long title suggests, Bill C-3 provided for the creation of the position of
special advocate. To be a special advocate one must be a member in good
standing of the bar of a province and have at least 10 years experience at
the bar. Salient provisions of the new legislative scheme are that after his
or her appointment, a special advocate may meet with the person concerned, and
his counsel. At such time, the special advocate may be briefed by the person
concerned and his counsel, and may be informed about the theory of their case.
Thereafter, the special advocate is to receive a copy of all of the information
and other evidence that is provided in confidence to the Court (subsection 85.4(1)
of the Act).
[14] The
role of the special advocate is to "protect the interests" of a
person named in a security certificate when evidence is received in camera
(subsection 85.1(1) of the Act). In that role, the special advocate may
challenge the Ministers' claim that the disclosure of information or evidence
would be injurious to national security or endanger the safety of a person, and
may challenge the "relevance, reliability and sufficiency" of
information or evidence that is provided by the Ministers, but not disclosed to
the person named in a security certificate (subsection 85.1(2) of the
Act).
[15] To
those ends, the special advocate may cross-examine witnesses who testify in the
in camera proceedings, may make submissions with respect to the
information or evidence that is led in the in camera proceedings, and
may, with the judge's authorization, exercise any other powers that are
necessary to protect the interests of the person named in the security
certificate (section 85.2 of the Act). All of the provisions of the Act
currently in effect and referred to in these reasons are set out in the
appendix to these reasons.
[16] The
provision for a special advocate, clothed with such a mandate and
responsibilities, reflects Parliament's presumed intent to assure a fair
hearing in compliance with section 7 of the Charter. The special advocate is
in a position to be familiar with the case to be advanced on behalf of the
person named in a security certificate and to assist the person concerned to
know, to the extent possible, the case to be met, as required by the Supreme
Court in Charkaoui 1 at paragraphs 64 and 65.
[17] Having
regard to the special advocate’s experience at the bar, his or her opportunity
to be briefed by the person named in a security certificate, and the mandate
and powers given to the special advocate, I am satisfied that the situation is
distinguishable from that before the Supreme Court in Charkaoui 2. I am also
satisfied by those factors that the special advocate has the means at his or
her disposal to protect the interests of the person named in the security
certificate by, amongst other things, identifying confidential information or
evidence that is not pertinent.
[18] Thus,
where the Ministers and the special advocate agree that material disclosed by
the Ministers pursuant to Charkaoui 2 (Charkaoui 2 disclosure) is irrelevant to
the issues before the Court, the Court may rely upon that agreement. In such a
case, the Court need not verify information that the Ministers and the special
advocate agree to be irrelevant.
[19] There
is a second reason for reaching this conclusion. I accept the submission of
the Ministers that the focus in Charkaoui 2 was on "verification" of
the allegations of fact made against the named person, and on the evidence and
information relied upon by the Ministers to support those allegations. This is
reflected in paragraphs 60 and 61 of Charkaoui 2, the paragraphs that directly
lead to the paragraph at issue. There, the Court wrote:
60. Within
the statutory framework applicable to the appeal, which does not include Bill
C-3, only the ministers and the designated judge have access to all the
evidence. In Charkaoui, this Court noted the
difficulties that the Act then in force caused in the review of the
reasonableness of the certificate and in the detention review, particularly
with respect to the assessment of the allegations of fact made against the
named person:
Despite the judge's best efforts to question the
government's witnesses and scrutinize the documentary evidence, he or she is
placed in the situation of asking questions and ultimately deciding the issues
on the basis of incomplete and potentially unreliable information. [para. 63]
61. The
destruction of the original documents exacerbates these difficulties. If the
original evidence was destroyed, the designated judge has access only to
summaries prepared by the state, which means that it will be difficult, if not
impossible, to verify the allegations. In criminal law matters, this
Court has noted that access to original documents is useful to ensure that the
probative value of certain evidence can be assessed effectively. In R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38, at para. 46,
the Court mentioned that viewing a videotape of a police interrogation can
assist judges in monitoring interrogation practices, and that interview notes
cannot reflect the tone of what was said and any body language that may have
been employed. [emphasis added]
[20] The
thrust of the Court’s concern was with respect to the ability of the Court to
assess the state’s allegations concerning the person named in the security
certificate.
[21] There
is nothing in the reasons of the Supreme Court to suggest that this Court need
focus upon the irrelevant. Indeed, subsection 78(f) of the Act, in
force at the relevant time, provided that the designated judge should not base
a decision upon irrelevant information or evidence. Rather, the judge was to
return such evidence or information to the Ministers. It is unreasonable to
suggest that any duty existed to verify information or evidence which was to
have been returned to the Ministers.
[22] This
is dispositive of the first common issue of law.
[23] The
written and oral submissions of the special advocates and the Ministers go
beyond this issue and discuss generally the role of the designated judge. Two
points are raised. The first concerns the role of the designated judge when
counsel for the Ministers and the special advocates agree that a portion of the
Charkaoui 2 disclosure may be released to the named person. The second
concerns the ability of the designated judge to have regard to the
Charkaoui 2 disclosure or to raise any concern about a document or an
issue.
[24] Turning
to the first concern, in their written and oral submissions, the special
advocates submit that when, after the Charkaoui 2 disclosure has been filed in
confidence with the Court, the Ministers and the special advocates agree that a
portion of the disclosure may be released to the named person, the Court has no
role in reviewing that decision. They submit that it is up to the Ministers to
make a claim for privilege, and where no claim for privilege is made,
disclosure should automatically follow.
[25] In
response, counsel for the Ministers agree that disclosure should be automatic
where the source of the information is not confidential. After initially
expressing some doubt about what the Court's role would be if the information
emanated from a confidential source, counsel for the Ministers ultimately
submitted that “the Ministers can take stock of what can go out and should go
out.” This was said to be what happened at the commencement of these
proceedings when the Ministers prepared and filed the initial public summaries
without judicial approval.
[26] As
a practical matter, absent inadvertent error on the part of the Ministers, it
is difficult to imagine a situation where the Court would conclude that
information that the Ministers were willing to disclose could not be disclosed
for reasons of national security or the safety of any person. However, as a
matter of law, I disagree with the submission that any portion of the Charkaoui
2 disclosure that is filed in confidence with the Court can be disclosed to the
person named in the certificate without the prior approval of the Court.
[27] In
my respectful view, the submissions made to the Court fail to properly consider
paragraph 83(1)(d) of the Act which provides that "the judge shall
ensure the confidentiality of information and other evidence provided by the
Minister if, in the judge's opinion, its disclosure would be injurious to
national security or endanger the safety of any person." Paragraph 83(1)(d)
of the Act applies not just to information and evidence relied upon by the
Ministers, but also applies to the information and evidence “provided” by the
Minister.
[28] The
predecessor of paragraph 83(1)(d) was one of the provisions of the
legislative scheme that led the Supreme Court to observe that
“[c]onfidentiality is a constant preoccupation of the certificate scheme.”
See: Charkaoui 1 at paragraph 55.
[29] The
submission that the Ministers must assert a claim for privilege before the
Court may assess the validity of that claim is contrary to the plain wording of
paragraph 83(1)(d) of the Act.
[30] Similarly,
the analogy drawn by counsel for the Ministers with the issuance of the initial
public summary by the Minister of Public Safety and Emergency Preparedness
fails, in my respectful view, to take into account that subsection 77(2) of the
Act expressly obliges the Minister to exercise his own opinion as to what
information may be disclosed in that summary without injuring national security
or endangering the safety of any person. No other provision in Division 9 of
the Act reposes a similar discretion in the Minister.
[31] It
follows, in my view, from a plain reading of the Act that none of the Charkaoui
2 disclosure may be disclosed to the named person or his counsel without first
affording to the designated judge the opportunity to fulfill his or her
obligation under paragraph 83(1)(d) of the Act.
[32] Turning
to the second concern, the special advocates urge that the designated judge’s
role is limited to deciding the case on the basis of the information relied
upon by the parties, as assisted by the special advocates. The role of the
designated judge with respect to the Charkaoui 2 disclosure is limited to
adjudicating claims of relevance and national security privilege. The
designated judge is not to have regard to any portion of the Charkaoui 2
disclosure unless it is the subject of some disagreement or is relied upon by a
party. In oral argument the special advocates submitted, and the Ministers'
counsel agreed, that the designated judge should not be permitted to raise a
concern about a document or an issue with the special advocates and counsel for
the Ministers.
[33] These
issues were not put before the Court by the order of the Chief Justice. At the
time these matters were argued the Charkaoui 2 disclosure had not been filed in
confidence with the Court in a number of cases. Thus, in a number of cases,
neither the Court nor the special advocates are aware of the form, nature and
content of the Charkaoui 2 disclosure. In that circumstance it is, in my view,
premature to make pronouncements circumscribing the role of the designated
judge.
[34] To
illustrate, it is possible that the Charkaoui 2 disclosure may contain
information that has been redacted on grounds including solicitor-client
privilege, cabinet confidence, or that the information relates to the
investigation of other persons and does not touch upon the named person. The
designated judge may, therefore, have a role in reviewing the propriety of
redacted information. Each case will depend on its own circumstances.
[35] The
role of the designated judge is best determined on a proper evidentiary basis
where counsel and the special advocates may address submissions that are informed
by the facts and matters before the Court.
[36] As
to the propriety of the designated judge raising concerns about a document or
issue, there are a myriad of different circumstances that might give rise to a
concern on the part of a designated judge. The variety of those circumstances
makes it unwise to make unequivocal pronouncements.
[37] I
note, however, that in written submissions filed on this issue in DES-3-08 (prior
to the issuance of the Chief Justice’s order) the position of the special
advocates was different. At paragraph 14 of those submissions they wrote:
The proper action to be taken by
a judge who considers that the parties have not identified an issue or brought
sufficient evidence with respect to an issue is to make this known to the
parties so that they may address the deficiency in the record.
[38] To
a similar effect were the oral submissions in reply of Ms. Edwardh, counsel for
Messrs. Jaballah and Mahjoub. She noted that "[s]ometimes the court is
best suited to at least raise a question to ensure the ultimate fairness of the
process. That is also your responsibility […]." No one disavowed that
submission.
[39] Ms.
Edwardh’s submission is consistent with jurisprudence such as R. v.
Brouillard, [1985] 1 S.C.R. 39 where, at page 44, Justice Lamer (as he then
was) wrote for the Supreme Court that “[…] it is clear that judges are no
longer required to be as passive as they once were; to be what I call sphinx
judges. We now not only accept that a judge may
intervene in the adversarial debate, but also believe that it is sometimes
essential for him to do so for justice in fact to be done. Thus a judge may and
sometimes must ask witnesses questions, interrupt them in their testimony and
if necessary call them to order.”
[40] To
similar effect is the comment in John Sopinka et al., The Trial of An
Action, 2nd ed. (Canada: Butterworths, 1998) at page 137, that a
judge's ability to question a witness "is not limited to questions
designed to clear up doubtful points, but extends to questions concerning
matters not dealt with by counsel."
[41] Thus,
I reject the oral submission of the special advocates and the Ministers that,
in proceedings brought under Division 9 of the Act, a designated judge may not
raise concerns or documents with counsel and the special advocate. As in any
other proceeding, circumstances may require a designated judge to intervene in
a variety of circumstances in order for justice to be done, and to be seen to
be done.
[42] I
now turn to the second common issue.
The Second Issue
Background
[43] The
second issue also relates to the Charkaoui 2 disclosure. Such disclosure, it
is to be remembered, consists of disclosure to the designated judge and the
special advocate of all of the information in the possession of the Service
concerning the named person. Because, in these cases, the Ministers have
already filed with the Court, and put into evidence, "the information and other
evidence on which the [security] certificate is based" (as required by
subsection 77(2) of the Act), what is contemplated is disclosure of information
which is not relied upon by the Ministers.
[44] The
parties agree that once the information is filed in confidence with the Court,
in each case a determination must be made about what information should and may
be disclosed or summarized to the person named in the security certificate and
his counsel. Once that has been decided, the second question of law now before
the Court inquires as to whether that disclosure is made directly to the named
person and his counsel, without also being filed on the Court's public file.
The position of the parties
[45] The
special advocates submit that such information produced, or summarized, to a
person named in a security certificate should be provided privately, that is “party
to party”. This production or disclosure should not be filed in the Court's
public registry. Counsel for the named persons and the Ministers agree with
this submission.
[46] In
making this submission, the special advocates and counsel for the Ministers
argue that:
a. In litigation, production or disclosure between the parties is
treated differently than the record of the proceedings. Such production is
private between the parties.
b. The open court principle does not attach to private disclosure
of information that is not relied upon or placed on the record of the
proceeding.
[47] The
Ministers also rely upon one paragraph contained in the reasons of the Supreme
Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326. There, when
considering the Crown's obligation to make disclosure to the defense in a
criminal proceeding, at page 338, the Court wrote:
In my opinion there is a wholly natural evolution of the
law in favour of disclosure by the Crown of all relevant material. As long ago
as 1951, Cartwright J. stated in Lemay v. The King, [1952] 1 S.C.R. 232, at p.
257:
I wish to make it
perfectly clear that I do not intend to say anything which might be regarded as
lessening the duty which rests upon counsel for the Crown to bring forward
evidence of every material fact known to the prosecution whether favourable to
the accused or otherwise .... [Emphasis added.]
This
statement may have been in reference to the obligation resting on counsel for
the Crown to call evidence rather than to disclose the material to the defence,
but I see no reason why this obligation should not be discharged by disclosing
the material to the defence rather than obliging the Crown to make it part of
the Crown's case. Indeed, some of the information will be in a form that cannot
be put in evidence by the Crown but can be used by the defence in
cross-examination or otherwise. Production to the defence is then the only way
in which the injunction of Cartwright J. can be obeyed. [emphasis added]
Consideration of the issue
[48] Consideration
of this issue properly begins with the open court principle.
[49] The
Supreme Court of Canada has often emphasized that the open court principle is a
constitutionally protected cornerstone of the common law. See, for example, Vancouver
Sun (Re), [2004] 2 S.C.R. 332 at paragraphs 22 to 26. The principle
requires "public openness, both in the proceedings of the dispute, and in
the material that is relevant to its resolution." See: Sierra Club of
Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522 at paragraph 1.
[50] A
fuller description of the principle is found in the reasons of Justice LeBel
(in dissent, but not on this point) in Named Person v. Vancouver Sun,
[2007] 3 S.C.R. 253. At paragraph 81, he wrote:
The open court principle is now well established in
Canadian law. This Court has on numerous occasions confirmed the fundamental
importance and constitutional nature of this principle […]. In general terms,
the open court principle implies that justice must be done in public. Accordingly,
legal proceedings are generally open to the public. The hearing rooms where the
parties present their arguments to the court must be open to the public, which
must have access to pleadings, evidence and court decisions. Furthermore,
as a rule, no one appears in court, whether as a party or as a witness, under a
pseudonym. [emphasis added]
[51] As
suggested by the quotations from the Sierra Club and Named Person
cases set out above, the open court principle has not been held to apply
to information disclosed or produced in the course of litigation, but not put
into evidence by a party.
[52] Thus,
in the passage from Stinchcombe relied upon by the Ministers, in the
context of the criminal law, the Supreme Court contemplated disclosure of
information to an accused and his counsel privately, and not by way of calling
evidence in public.
[53] Similarly,
in Juman v. Doucette, [2008] 1 S.C.R. 157, at paragraph 21, the Supreme
Court observed that, in the civil context, pre-trial discovery does not take
place in open court. Therefore, it followed that the "only point at which
the ‘open court’ principle is engaged is when, if at all, the case goes to
trial and the discovered party's documents or answers from the discovery transcripts
are introduced as part of the case at trial."
[54] In
the cases now before the Court, the Charkaoui 2 disclosure consists, or will
consist, of information not relied upon by the Ministers, and therefore not before
the Court in evidence1. Further, that information may never be
relied upon by the named person. In those circumstances, I accept the
submissions of counsel that the open court principle does not require that
information or evidence contained in the Charkaoui 2 disclosure be placed on
the Court's public file. Such an outcome in this administrative proceeding would
be inconsistent with the manner in which production or disclosure is treated in
both the criminal and civil context. The Charkaoui 2 disclosure should be made
directly to counsel for each named person.
[55] Moreover,
nothing in the Act requires the Ministers to file the Charkaoui 2
disclosure as evidence in either the public or private proceeding. Subsection
77(2) and paragraph 83(1)(c) of the Act contemplate the Ministers
adducing evidence on which the certificate is based, or evidence to refute
evidence relied upon by a named person. The Ministers are not obliged to put
into evidence information they do not rely upon.
[56] Turning
to the Court's direction of January 14, 2009, and the treatment of the
information that is relied upon by the Ministers, I begin by briefly reviewing
the disclosure regime set out in the Act.
[57] Certificate
proceedings are commenced when the Ministers refer a duly executed security
certificate to the Court (subsection 77(1) of the Act). At that time, the
Ministers must file with the Court, in confidence, the information and other
evidence on which the certificate is based. They must also file on the Court’s
public record a summary of information. That summary should enable the person
named in the security certificate to be reasonably informed of the case made by
the Ministers. The summary must not, however, include anything that, in the
opinion of the Minister of Public Safety and Emergency Preparedness, would be
injurious to national security or endanger the safety of any person if
disclosed (subsection 77(2) of the Act).
[58] The
requirement that a summary be filed with the Court, and be available for review
by the public, is consistent with the requirement of the open court principle
that pleadings and evidence be publicly available. At the same time, the
summary balances that need for openness against the need to protect information
that, if disclosed, would be injurious to national security or endanger the
safety of any person.
[59] Thereafter,
there is an ongoing obligation on the part of the designated judge to ensure
that the person named in the certificate is provided with summaries of
information and other evidence that enables them to be reasonably informed of
the case made by the Ministers (paragraph 83(1)(e) of the Act) and what
transpired in the in camera proceedings. The latter information would
include, for example, salient information obtained in the course of the
cross-examination of a witness called by the Ministers. Such summaries must
not disclose information injurious to national security or endanger the safety
of any person.
[60] The
parties and the special advocates submit, and I agree, that because these
summaries relate to information which is provided and relied upon by the
Ministers, and to what transpired in the in camera proceedings, the open
court principle requires that these summaries be placed on the Court's public
files. In the words of Mr. Kapoor, one of the special advocates, these
summaries are "essentially a proxy for the attendance of the named person […]
and a proxy for the attendance of the public" at the Court's in camera
proceeding.
[61] This
is dispositive of the second, common issue of law.
Conclusion
[62] For
the above reasons, I conclude that:
(a)
Where the Ministers and the special advocate agree that material
disclosed by the Ministers pursuant to Charkaoui 2 is irrelevant to the issues
before the Court, the Court may rely upon that agreement. In such a case, the
Court need not verify information that the Ministers and the special advocates
agree to be irrelevant.
(b)
No information filed with the Court in confidence pursuant to Charkaoui
2 can be disclosed to the person named in a security certificate without the
prior approval of the Court.
(c)
Information or evidence disclosed to the named persons pursuant to
Charkaoui 2 should be disclosed directly to counsel for each person named in a
security certificate. The Charkaoui 2 disclosure should not be placed on the
Court’s public file. Such information or evidence would only become public if
it is relied upon by a party and placed into evidence.
(d)
Summaries of evidence or information made pursuant to paragraph 83(1)(e)
of the Act must be placed on the Court’s public file because they relate to
information relied upon by the Ministers and to what transpired in the in
camera proceedings.
[63] In
the event that any party wishes that an order issue in relation to these
reasons, a brief written submission may be filed containing that request and
setting out the proposed content of the requested order.
“Eleanor
R. Dawson”
1. It may be that the Ministers might later seek to
augment the information upon which the security certificate is based, or to
amend the report filed in support of the certificate, by relying upon a portion
of the Charkaoui 2 disclosure. I make no determination about the
permissibility of this.
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