Date: 20090402
Docket: DES-4-08
Citation:
2009 FC 342
Ottawa, Ontario, April 2, 2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
IN THE MATTER OF a certificate
pursuant to subsection 77(1)
of the Immigration and Refugee Protection
Act (IRPA)
IN THE MATTER OF the referral of
This certificate to the Federal Court
pursuant to subsection 77(1) of the IRPA
AND IN THE MATTER OF
Adil Charkaoui
AND LE BARREAU DU QUÉBEC,
intervenor
ORDER AND REASONS FOR ORDER
Introduction
[1]
Further
to the order issued by this Court on September 3, 2008, granting the motion by
Mr. Charkaoui (the named party) and ordering the Ministers to disclose
“party-to-party” any relevant evidence or information whose disclosure would
not be injurious to national security or to the safety of any person, the Ministers
filed a memorandum from the Assistant Director (Operations), Canadian Security
Intelligence Service (CSIS), dated September 12, 2008, confirming the
following:
[translation]
This is further to the September 3 order
by Madam Justice Tremblay-Lamer.
On February 22, 2008, a summary that did
not contain any item whose disclosure would be injurious to national security
or to the safety of any person was provided to the named person to enable him to
be reasonably informed of the case made by the Ministers. The document provided
to the named person was 60 pages long (including the appendices) and was
accompanied by a binder containing approximately 64 documents. A revised
summary was sent to the named person on September 11, 2008. It was accompanied
by a binder containing four documents. This revised summary did not contain any
item whose disclosure would be injurious to national security or to the safety
of any person.
To the best of my knowledge, through
these summaries and appended documents, CSIS has disclosed to the named person
all of the information and other relevant evidence, whether favourable or not
to the Ministers’ case, that could be disclosed to the named person without
being injurious to national security or to the safety of any person.
[2]
The
purpose of this Order was to respond to the concerns of the Court and to
confirm that the Ministers had applied the principles established in Charkaoui
v. Canada (Citizenship and Immigration), [2008] S.C.J. No. 39, 2008 SCC 38
(Charkaoui II), that information and other evidence that they had filed in
the Court docket at the same time as the certificate and on which they based
their arguments, and any evidence that could be disclosed to the named
person, had been.
[3]
This
Order was based strictly on the evidence that had already been filed by the Ministers,
and the term “party-to-party” communication in this context was intended to
determine whether other classified information could be placed in the public
file and thus provided to the named person.
[4]
Since
then, the context has changed. After hearing in camera the testimony of
Canadian Security Intelligence Service (CSIS) employees, who described the
extent of disclosure needed to comply with Charkaoui II, the Court learned that
additional evidence was to be provided.
[5]
On
October 28, 2008, the Court issued an order explaining that the Ministers and
CSIS had filed before the designated proceedings section of the Court all the
information and all intelligence linked to Mr. Adil Charkaoui, including rough
copies, diagrams, recordings and photographs in the possession of CSIS.
[6]
In
a public direction dated February 18, 2009, the Court specified that this
additional disclosure was to be received but not filed at this
point in the proceeding, pending a decision by the Court on the merits of this
issue.
[7]
Since
these orders, the named person has taken note of questions asked in four
similar cases by Chief Justice Allan Lutfy in his Order of January 2, 2009, 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 (Minister of 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 solicitors 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 solicitors be placed
in the Court’s public files in these proceedings? If so, when?
[9]
The
special advocates also asked the Court in a communication dated December 5,
2008, to have the parties argue certain questions of law before the in camera
hearings on their proposals for supplementary disclosure. These questions are
as follows:
- What are
the content and validity of the national security standard provided under the
Act?
- Who
bears the burden (through presentation or persuasion) of proving whether or not
the disclosure would be injurious to national security or to the safety of any
person?
- What
standard of proof is associated with this burden?
[10]
The
parties filed written submissions on all of these issues of law, and public
hearings were held on March 10 and 11, 2009.
[11]
This
judgement aims to answer these questions.
1. “Party-to-party”
disclosure
[12]
I
believe that there is a distinction to be made between the supplementary
disclosure of information filed by the Ministers in support of the certificate
(relevant information) and the additional information received but not filed
(additional information) further to the order of October 28, 2008.
[13]
Hence,
I shall address the upcoming disclosure in two categories: the supplementary
disclosure of relevant information (Phase I) and the disclosure of additional
information further to Charkaoui II, above (Phase II).
A. The
supplementary disclosure of relevant information (Phase I)
[14]
Subsection
77(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA)
requires the Minister to file with the Court the information and
other evidence on which the certificate is based and a summary of this evidence
for the named person:
|
(2) When the certificate is referred, the Minister shall file with
the Court the information and other evidence on which the certificate is
based, and a summary of information and other evidence that enables the
person who is named in the certificate to be reasonably informed of the case
made by the Minister but that does not include anything that, in the
Minister’s opinion, would be injurious to national security or endanger the
safety of any person if disclosed.
|
(2) Le ministre dépose en même temps que le certificat les
renseignements et autres éléments de preuve justifiant ce dernier, ainsi
qu’un résumé de la preuve qui permet à la personne visée d’être suffisamment
informée de sa thèse et qui ne comporte aucun élément dont la divulgation
porterait atteinte, selon le ministre, à la sécurité nationale ou à la
sécurité d’autrui.
|
[15]
As
pointed out by the Ministers, any additional summary that would be provided by
the Court to the named person would address evidence that is already on file.
[16]
Other
evidence that until then had been classified would be provided to the named
person pursuant to paragraphs 83(1)(d) and 83(1)(e) of the IRPA
and further to the proposals for disclosure and the answers from the Ministers,
if the Court decides that the evidence can be disclosed without being injurious
to national security or to the safety of any person. The IRPA does not have any
provisions conferring on the named person the discretion to veto their being placed
in the public files.
[17]
On
this point, my colleague, Madam Justice Dawson, in Minister of Public Safety
and Emergency Preparedness and the Minister of Citizenship and Immigration v.
Almrei, Harkat, Jaballah, and Mahjoub, 2009 FC 240, at paragraph 60,
recently stated that the open court principle requires that the information be placed
in the public files:
[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 in the Court’s public files.
[18]
What
about privacy considerations in such a case? For the named person, placing the supplementary
evidence and information in the public file even before it is provided to the named
person may further compromise the procedural fairness owed to him or her
because this practice would destroy that party’s right to protect the
confidentiality of personal information that would be unduly prejudicial,
contrary to the interests of justice.
[20]
In
this case, Rule 151(1) of the Federal Courts Rules, SOR/98-106 (Rules)
permits the Court, on motion, to order that material to be filed be treated as
confidential. Unless there is disclosure preceding the public filing with the
Court, this power is or may be compromised.
[21]
Counsel
also claim that Rule 151 may be applied to enable the named person to assert
his rights not only with respect to the evidence concerning his privacy but
also regarding the admissibility and reliability of this evidence.
[22]
In
my opinion, a distinction should be made between the procedure to follow in determining
the confidentiality of a document and its admissibility or reliability.
[23]
Rule
151 enables the Court, on motion, to order that certain documents be treated as
confidential. The reasons why the Court would make such an order have to do with
privacy, for instance, the fear of reprisal against an applicant or his or her
family (Ishmela v. Canada (Minister of Citizenship and Immigration),
[2003] F.C.J. No. 1085, 2003 FC 838; A.B. v. Canada (Minister of Citizenship
and Immigration), [1997] F.C.J. No. 1528 (T.D.); A.C. v. Canada
(Minister of Citizenship and Immigration), [2003] F.C.J. No. 1861, 2003 FC
1452); proprietary, commercial and scientific interests (Apotex Inc.
v. Wellcome Foundation LT.D., [1993] F.C.J. No. 1117 (T.D.);
competitive harm (International Water-Guard Industries Inc. v. Bombardier
Inc., [2007] F.C.J. No. 372, 2007 FC 285).
[24]
It
was never intended that a motion under this provision would address the
admissibility of evidence. Thus, I am prepared to accept the possibility that
information to be disclosed could be the subject of a motion under Rule 151
(where it concerns the named person’s privacy), but there is nothing to suggest
that it could go beyond the context of a motion for a confidentiality order.
[25]
As
well, I would point out that Rule 151 applies only to documents that have
not yet been filed with the Court.
[26]
Rule
151 on the filing of confidential documents reads as follows:
Motion for order
of confidentiality
151. (1) On motion, the Court may order
that material to be filed shall be treated as confidential.
Demonstrated
need for confidentiality
(2) Before making an order under
subsection (1), the Court must be satisfied that the material should be treated
as confidential, notwithstanding the public interest in open and accessible
court proceedings. [my emphasis]
[27]
In
Harkat (Re), [2009] F.C.J. No. 228, 2009 FC 167, Mr. Justice Noël
applied Rule 151 under circumstances similar to those in the case of
Mr. Charkaoui. Rule 151 was used to mitigate the risks of violating Mr.
Harkat’s privacy and the serious harm he could suffer if certain summaries were
placed in the Court’s public files; all this was done in order to protect his
most basic rights. Justice Noël gave Mr. Harkat the opportunity to review the
summaries before placing them in the Court’s public file, so that Mr. Harkat
could decide whether he would file a motion for a confidentiality order under
Rule 151.
[28]
I
agree with Justice Noël’s reasoning. However, I would add that, in order to
avoid the difficulty associated with the terms of Rule 151, which applies only
to documents that have not yet been filed, I would invoke the rarely used Rule
4 of the Rules, which pertains to matters not provided for, and is often called
the “gap provision”. Rule 4 reads as follows:
Matters not provided for
4.
On motion, the Court may provide for any procedural matter not provided for in
these Rules or in an Act of Parliament by analogy to these Rules or by
reference to the practice of the superior court of the province to which the
subject-matter of the proceeding most closely relates.
[29]
The
novelty of the current situation, namely the requirement to produce summaries
of the evidence and the de facto inapplicability of Rule 151, means that
Rule 4 has not yet been applied in this context. However, the statements of Mr.
Justice Evans in Levi Strauss & Co. v. Era Clothing Inc., [1999]
F.C.J. No. 1181 (T.D.) are relevant. That case was an action for
trademark infringement, in which one of the parties brought a motion for a protective
confidential order with respect to documents that had not yet been placed in
the court file because the parties were not yet at the discovery stage. Justice
Evans stated in paragraph 27 of the decision:
27 No rule appears to
provide specifically for the making of confidentiality orders with respect to
material that is not to be filed, and thus does not fall under Rule 151.
However, no such rule was contained in the previous Rules either. Nonetheless,
the undertaking of confidentiality that is implied with respect to material
disclosed in the course of discovery and elsewhere during the litigation
process is sufficient to authorize the Court to issue confidentiality orders
that cover material not included in Rule 151. This would seem to be an
appropriate occasion for invoking Rule 4, the “gap” provision.
[30]
Rule
4 is used to fill the gaps in procedural issues, not in substantive questions (Vespoli
v. Canada, [1988] 2 F.C. 125 (T.D.)). The difference between “to be
filed” and “have been filed” is a practical and procedural matter.
[31]
I
recognize that Rule 4 must apply in a restrictive manner, and only to overcome
certain difficulties in the application of the Rules, difficulties that could
not have been foreseen when the Rules were written (see, Maple Leaf Mills LT.D..
v. Baffin Bay (The) [1973] F.C. 1097 (T.D.)). It would be a
euphemism to say that the problem caused by the expression “to be filed” in the
context of summaries of confidential evidence, where the confidential evidence
was filed and the summaries must also be considered filed, could have been
avoided when the Rules were drafted. The application of a new legislative scheme
(February 2008) in light of a subsequent judgment (Charkaoui II) raises
factors that were difficult, if not impossible, to foresee.
[32]
Even
if we were to start from the premise that the Rules are in and of themselves a
complete code, and that they provide the tools needed to settle the issues
brought to the Court, as indicated in Khadr v. Canada (Minister of Foreign
Affairs), [2004] F.C.J. No. 1699, 2004 FC 1393, Rule 4 is used as a last resort
because, in this context, there would be no other way for Mr. Charkaoui to assert
his rights with regard to the confidentiality of certain information that could
affect his privacy.
[33]
In
brief, allowing the named person to bring a confidentiality motion is the
appropriate remedy for the serious harm that he could suffer if he did not have
the opportunity to bring such a motion. Preventing him from doing so because of
the wording of a procedure that was written at a time when it would have been impossible
to imagine the circumstances would needlessly aggravate the harm.
[34]
The
special advocates will be able to identify the prima facie evidence that
could be the basis of a motion under Rule 151 and bring it to the Court’s
attention in camera before public disclosure of the information. In
fact, the Ministers themselves have agreed to such an approach:
[translation]
…so, at this point, you agree that this
information, which would be raised by the special advocates, could be placed
under seal and presented to the public counsel?
Mr. JOYAL: Absolutely, if the
special advocates raise the argument, it will be given fair consideration and
they will have to make a prima facie case, as they did before Justice
Nöel, that Rule 151 applies. (Transcripts of March 11, 2009, pages 109 and
110).
[35]
In
my opinion, the powers granted to the special advocate in paragraph 85.2(c)
of the IRPA to “exercise, with the judge’s authorization, any other powers that
are necessary to protect the interests of the permanent resident or foreign
national”, enable them to proceed in this manner with my authorization.
[36]
The
Court would then delay placing this information in the public file. The
information would be provided to the named person’s solicitors “party-to-party”
for a period of fourteen days to give them the opportunity, if necessary, to
review the information and decide whether the named person wants to bring a
motion under Rule 151.
[37]
At
the end of this 14-day period, if no such motion has been served and filed, the
information will be placed in the public file. If a motion is brought, the
documents will be kept under seal until the Court has disposed of the matter.
[38]
The
Court points to the applicable principles for bringing such a motion. The test
that must be met to make an order of confidentiality under Rule 151 was set out
in Sierra Club of Canada v. Canada (Minister of Finance), [2002] S.C.J.
No. 42, 2002 SCC 41, paragraph 53:
A confidentiality order under Rule 151 should only be
granted when:
(a) such an order is necessary in order to prevent a serious
risk to an important interest, including a commercial interest, in the context
of litigation because reasonably alternative measures will not prevent the
risk; and
(b) the salutary effects of the confidentiality order,
including the effects on the right of civil litigants to a fair trial, outweigh
its deleterious effects, including the effects on the right to free expression,
which in this context includes the public interest in open and accessible court
proceedings.
[39]
McCabe
v. Canada (Attorney
General),
[2000] F.C.J. No. 1262 (T.D.), reiterates that concerns about confidentiality,
absent the presence of subjective and objective criteria, are not sufficient to
grant a confidentiality order:
8 The justifiable desire to keep
one’s affairs private is not, as a matter of law, a sufficient ground on which
to seek a confidentiality order. In order to obtain relief under Rule 151, the
Court must be satisfied that both a subjective and an objective test are met.
See: AB Hassle v. Canada (Minister of National Health
and Welfare), [1999] F.C.J. No. 808 (A-289-98, A-315-98, A-316-98, May 11,
1999, F.C.A.) affirming (1998) 81 C.PAGER. (3d) 121. Subjectively, the party
seeking relief must establish that it believes its interest would be harmed by
disclosure. Objectively, the party seeking relief must prove, on a balance of
probabilities, that the information is in fact confidential.
[40]
This
position is also reflected in the area of immigration. In Canada (Minister of
Citizenship and Immigration) v. Fazalbhoy, [1999] F.C.J. No. 51 (T.D.),
a motion had been brought for an order of confidentiality to protect the
information provided by the named person in his application for Canadian
citizenship. Mr. Justice Gibson denied this motion, stating as follows in
paragraph 11:
Any undertaking of confidentiality given
by the Minister is not binding on this Court. The respondent has provided no
special reasons to justify protection of his personal information on the
records of this Court. His reliance on the words on the form provided for his
use, the desire to which he attests to keep his affairs private and the fact
that his personal information is before this Court not by reason of his own
initiative provide a basis for sympathy for the respondent’s position. But
those considerations do not discharge the onus on him to justify a
confidentiality order.
[41]
Unfortunately,
when it comes to admissibility and reliability, Rule 151 is of no use. As
indicated above, exhaustive research of the jurisprudence clearly demonstrates
that the reasons for a motion for confidentiality never address the exclusion
of evidence.
[42]
Moreover,
Rule 4 cannot be used to fill this gap because it is not a matter of procedure
but of substance, to which Rule 4 does not apply (Vespoli v. Canada, above).
[44]
In
my opinion, it would be up to the special advocates to make a specific motion
to the Court if an issue were raised concerning the admissibility or
reliability of classified evidence to be placed in the public file. In this
case, the placing on the public file would be delayed until the Court has ruled
on the issue.
Additional information
under Charkaoui II (Phase II)
[45]
The
Ministers agree with the named person that the additional information that the
Court ordered be communicated under Charkaoui II, above, should not
automatically be filed in the Court docket.
[46]
The
Ministers submit that this evidence must be distinguished from the information
and other evidence that the Ministers already filed in the docket at the same
time as the certificate, in accordance with subsection 77(2) of the IRPA,
on which they rely in arguing their positions.
[47]
I
agree that to start, non-confidential information, if any, would first be transmitted
“party-to-party” to the named person.
[48]
With
regard to information that is confidential, the designated judge would not have
to verify the reliability and accuracy of the information that the Ministers
and special advocates agree is not relevant.
[49]
On
this point, Madam Justice Dawson, in Almrei, Harkat, Mahjoub and Jaballah,
above, was of this opinion. She stated as follows:
[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 relevant.
[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.
[50]
I
am of the same opinion. When the Ministers and special advocates agree that the
confidential information received by the Court further to Charkaoui II, above,
is not relevant, the Court can rely on this agreement.
[51]
With
regard to confidential information that might be considered relevant
(particularly by the special advocates since the Ministers have stated that
only information filed with the Court at the same time as the certificate is
relevant), a summary would be provided to the named person on a
“party-to-party” basis where disclosure would be injurious to national security
or endanger the safety of any person (paragraph 83(1)(e) of the IRPA).
[52]
Any
disagreement between the Ministers and special advocates that might arise will
be arbitrated by the Court. The information in question or any summary that
could result from it would only be part of the Court docket if one of the
parties or the special advocates filed it in evidence.
2. The
national security standard
A.
The content and validity of the national security standard
Positions
of the parties
(i)
The named person
[53]
Counsel
for the named person submit that a constitutional interpretation of the
standard under the IRPA in accordance with the principles of fundamental
justice requires that the national security standard set out in the IRPA be
aimed at the life of the nation, its territorial integrity or its political
independence.
[54]
The
evidence provided by the Ministers regarding the existence of a public interest
privilege in the broad sense and the determination of non-disclosure based on
part of the criteria from the jurisprudence decided under the Canada
Evidence Act, R.S. 1985, c. C-5 (CEA) are insufficient in the context of
section 9 of the IRPA to meet the security standard requirement for
non-disclosure of evidence that the Ministers filed in support of the security
certificate or the inadmissibility of the named person.
[55]
The
constitutional interpretation that is used must comply with the international
instruments to which Canada is signatory because the IRPA contains
this requirement of compliance with international law in paragraph 3(3)(f),
which is determinative and which is not in the CEA or the former Immigration
Act.
[56]
Counsel
for the named person point out that the provisions of section 38 of the CEA set
out a complete code whereby the judge is required to weigh the public interest
despite any injury to national public security, and may disclose evidence that
may be injurious to national security if it is in the public interest to do so (Canada
(Attorney General) v. Khawaja, [2007] F.C.J. No. 622, 2007 FC 490),
unlike the IRPA, which does not confer any similar residual
discretionary power (Charkaoui v. Canada (Citizenship and Immigration),
[2007] S.C.J. No. 9, 2007 SCC 9 (Charkaoui 1).
[57]
Thus,
under the International Covenant on Civil and Political Rights, Can.
T.S. 1976 No. 47 (Civil Pact) and the related tools (including the Siracusa
Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights (1984), UN Doc E/CN.4/1984/4 (1984)
(Siracusa Principles), restated in the Johannesburg Principles:
National Security, Freedom of Expression and Access to Information, UN Doc
E/CN.4/1996/39 (1996) (Johannesburg Principles), national security may
only be invoked to justify measures to protect the life of the nation, the
integrity of its territory or its political independence against force or
threat.
[58]
In
applying these principles, the House of Lords in A (FC) and others (FC) v.
Secretary of State for the Home Department, [2004] UKHL 56, set aside the
indefinite detention of foreigners who cannot be deported from the United
Kingdom, stating that national security demands more than a threat of isolated
terrorism and cannot be assimilated to the national interest. The national
interest is defined as that which “concerns the defence and maintenance of the
social, political and economic stability of Canada” (Government
Security Policy, February 1, 2002, Treasury Board of Canada Secretariat,
available at http://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=12322).
[59]
The
definitions of national security adopted by the Federal Court before the
Supreme Court’s Charkaoui cases cannot be used without violating the
requirements of paragraph 3(3)(f) of the IRPA.
[60]
In
the past, the principles of fundamental justice recognized in criminal matters
were not applicable to immigration or security certificate matters, but this is
no longer so since the Supreme Court’s Charkaoui cases.
(ii) The Ministers
[61]
After
taking into consideration the general objectives of the IRPA and its
context, including provisions on inadmissibility, the Ministers pointed out
that the overriding public interest is the protection of information whose
disclosure would be injurious to national security or to the safety of any
person. They submit that the named person proposes an approach that would
render ineffective the legislative protections for information and other
evidence whose disclosure would be injurious to national security.
[62]
They
also point out that the Canadian courts have often emphasized the pre-eminence
of the public interest in maintaining the confidentiality of information
sources that concern national security (Chiarelli v. Canada (Minister of
Employment and Immigration), [1992] 1 S.C.R. 711, page 744 (Chiarelli))
and that the most important public interest is national security (Goguen v.
Gibson, [1983] 2 C.F. 463 (C.A.), page 479).
[63]
In
Suresh v. Canada, [2002] S.C.J. No. 3, 2002 SCC 1, the Supreme
Court ruled on the meaning of the expression “danger to the security of Canada”
and found that this phrase “is not unconstitutionally vague” (paragraph 83) and
should be given a “large and liberal interpretation in accordance with
international norms” (paragraph 85). It specified that “not only an immediate
threat but also possible future risks must be considered”.
[64]
The
Ministers also rely on the decision of Justice Noël in Canada (Attorney
General) v. Canada (Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar - O'Connor Commission), [2007] F.C.J.
No. 1081, 2007 FC 766 (Arar Commission
of Inquiry), which addressed the meaning of “national
security” under CEA 38.06, and found that “‘national security’ means at minimum
the preservation of the Canadian way of life, including the safeguarding of the
security of persons, institutions and freedoms in Canada” (paragraph 68). [my
emphasis]
[65]
In Almrei v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 509, 2004 FC 420, the Court emphasized the consequences to
national security of the inopportune disclosure of information obtained by
CSIS.
[66]
The different types of
information whose confidential nature has to be protected were addressed in Harkat
(Re), [2005] F.C.J. No. 481, 2005 FC
393. They include information obtained from human sources, information obtained
from CSIS agents where the disclosure would identify the agent and put the
agent’s life in danger, information about ongoing investigations, secrets
obtained from foreign countries or foreign intelligence agencies where
unauthorized disclosure would cause other countries or agencies to decline to
entrust their own secret information to an insecure or untrustworthy recipient,
and information about the technical means and capacities of surveillance used
by CSIS.
ANALYSIS
[67]
At
the outset, I would like to point out that it is important that the Court
analyze the concept of the national security standard in light of the
objectives of the IRPA, in the context of the relevant jurisprudence on this
issue, which cannot be set aside merely because legislative amendments to
section 9 of the IRPA were adopted, specifically paragraph 3(3)(f) of
the IRPA.
[68]
Despite
the suggestion by counsel for the named person to simply erase the teachings of
prior jurisprudence and “start afresh”, such an approach would not be desirable
because it would run the risk of an interpretation that is contrary to the
intention of Parliament and the principles and policies underlying immigration
law.
[69]
The
relevant objectives in the IRPA are in subsection 3(1) of the Act, and
explicitly show Parliament’s intent to give priority to security.
[70]
In
Medovarski v. Canada (Minister of
Citizenship and Immigration), [2005] S.C.J. No. 31, 2005 SCC
51, the Supreme Court recognized that these objectives marked “a change from
the focus in the predecessor statute, which emphasized the successful
integration of named persons more than security” (paragraph 10).
[71]
Moreover,
as the Ministers stated, Canadian courts have recognized the legitimate public
interest in protecting the sources of information involving national security (Chiarelli,
above; Ruby v. Canada (Solicitor General), [2002] S.C.J. No. 73,
2002 SCC 75, restated in Charkaoui I, above, paragraph 58).
[72]
How
does the concept of national security apply in this context?
[73]
The
concept of national security was primarily interpreted by the Supreme Court in Suresh,
above, and restated several times afterwards. The Supreme Court found that this
concept is not unconstitutionally vague, while recognizing that the phrase
“danger to the security of Canada” is difficult to define. However, the
Court stated that the phrase “danger to the security of Canada” should be given
a large and fair interpretation in accordance with international norms, that
“the determination of what constitutes a ‘danger to the security of Canada’ is
highly fact-based and political in a general sense” and that “all this suggests
a broad and flexible approach to national security” (paragraph 85). The Court
also concluded “that to insist on direct proof of a specific threat to Canada” would set
the bar too high.
[74]
More
recently, in De Guzman v. Canada (Minister of Citizenship and Immigration),
[2005] F.C.J. No. 2119, 2005 FCA 436, the Federal Court of Appeal was asked to
review the scope of paragraph 3(3)(f) of the IRPA. It confirmed that the
IRPA had to be interpreted and applied in a manner that complies with the
relevant international instruments under paragraph 3(3)(f), unless this
is impossible under the modern legislative interpretation.
[75]
However,
the Court noted that a “consideration of the range of instruments potentially
falling within paragraph 3(3)(f) may suggest that Parliament did not
intend them all to be determinative” (paragraph 84), that the range of
instruments is “uncertain” (paragraph 86), and that “Parliament intended
them to be used as persuasive and contextual factors in the interpretation and
application of IRPA, and not as determinative” (paragraph 89).
[76]
As
seen above, the named person is proposing a restrictive interpretation of the
national security standard whereby the government would be justified to claim
confidentiality only to protect the life of the nation, the integrity of its
territory or its political independence against force or threat.
[77]
The
named person is relying on the interpretation manual of the Civil Pact,
the Siracusa Principles restated by the Johannesburg Principles
in which the international experts found that any restriction on access to
information based on security can only be justified when the life of the nation
or the integrity of its territory would be in peril.
[78]
In
my opinion, such an interpretation is too restrictive and does not take into
consideration Canadian domestic law, which has recognized the validity of
claiming confidentiality in other situations.
[79]
In
Charkaoui I, above, the Supreme Court noted that the scope of
non-communication in connection with national security can be quite broad (paragraph
61). One of the examples it gave in this regard was the need to protect
society or when information has been provided by countries or informants on
condition that it not be disclosed or that information may be so sensitive that
it cannot be communicated without compromising public security. These
illustrations demonstrate that in Canadian domestic legislation, the scope of
the communication is not limiting to the point where the only acceptable reason
for non-disclosure would be the very life of the nation, its territorial
integrity or its political independence, as advanced by counsel for the named
person.
[80]
As
my colleague Justice Simon Noël pointed out in the Arar Commission of
Inquiry, above, after an exhaustive review of Canadian domestic law, “’national security’ means at minimum the
preservation of the Canadian way of life, including the safeguarding of the
security of persons, institutions and freedoms in Canada” (paragraph 68).
[81]
The information that has to be protected by the Court was
“codified” by my colleague Justice Eleanor Dawson in Harkat (Re), [2005]
F.C.J. No. 481, 2005 FC 393,
paragraph 89. The relevant passage is reproduced here:
[89] Examples of information of the type that must be
kept confidential include:
1. Information
obtained from human sources, where disclosure of the information would identify
the source and put the sources’ life in danger (see the decision of Madam
Justice McGillis in Ahani, above at paragraph 19 where Justice McGillis
discusses when human source information may be disclosed). As well,
jeopardizing the safety of one human source will make other human sources or
potential human sources hesitant to provide information if they are not assured
that their identity will be protected.
2. Information obtained from agents of the
Service, where the disclosure of the information would identify the agent and
put the agent’s life in danger.
3. Information about
ongoing investigations where disclosure of the information would alert those
working against Canada’s
interest and allow them to take evasive action.
4. Secrets obtained
from foreign countries or foreign intelligence agencies where unauthorized
disclosure would cause other countries or agencies to decline to entrust their
own secret information to an insecure or untrustworthy recipient. (See Ruby,
above at paragraph 43 and following for discussion of the fact that Canada is a net importer of intelligence information,
and such information is necessary for the security and defence of Canada and its allies.)
5. Information about
the technical means and capacities of surveillance and about certain methods or
techniques of investigation of the Service when disclosure would assist persons
of interest to the Service to avoid or evade detection or surveillance or the interception
of information.
[82]
These criteria are well established in Canadian domestic law and
correspond in large part to the examples provided by the Supreme Court in Charkaoui
I to illustrate the reasons that the government may invoke for
non-disclosure. I see no reason to derogate from them.
[83]
In brief, I believe that the role of the designated judge in
determining disclosure of information to the named person where the government
claims confidentiality is to apply the criteria established through jurisprudence
while taking into consideration, on the one hand, the need to preserve
confidentiality and, on the other, the importance of providing the fullest
possible disclosure with the smallest impact on the named person’s right to
know the evidence against him to enable him to refute the Ministers’
allegations.
B. Who bears
the burden of proving whether or not the disclosure would be injurious to
national security?
[84]
Counsel
for the named person submit that the IRPA requires that the Ministers prove, on
the balance of probabilities, to the judge’s satisfaction, that the disclosure
of information or evidence would imminently imperil the life of the nation, its
territorial integrity or its political independence. The burden is on the party
that is opposed to the disclosure to prove that this disclosure would be
injurious to national security. The Supreme Court has frequently confirmed that
the Crown bears the burden of justifying the non-disclosure of information to
the accused in a criminal case (R. v. Stinchcombe, [1991] 3 S.C.R. 326; R
v. Egger, [1993] 2 S.C.R. 451).
[85]
Although
the Ministers admit that they bear the burden of proving that disclosure would
be injurious to national security, they submit that they have clearly
discharged this burden.
[86]
I
agree with the named person’s solicitors in light of the jurisprudence that the
burden clearly falls on whoever claims that the disclosure would be injurious
to national security or to the safety of any person, hence the government.
[87]
I
note that in Charkaoui II, above, the Supreme Court emphasized the
obligation of communication based on section 7 of the Charter attached to the
seriousness of the consequences of the proceeding for the named person, and
that there is no formal distinction between the different areas of law. In my
opinion, this means that, to the extent possible, without injuring national
security, procedural fairness demands that the principles established in
criminal cases be fully applied, taking into consideration the applicable
administrative and immigration law in similar cases in the context of
disclosure. Consequently, as in criminal cases, the Crown must justify its
refusal to disclose any information.
C. The
standard of proof associated with this burden
[88]
Counsel
for the named person maintain that the requisite standard of proof is the balance
of probabilities. Under section 9 of the IRPA, the Ministers have to prove,
based on the balance of probabilities and to the judge’s satisfaction, that the
disclosure of information or evidence would be injurious to the life of the
nation, its territorial integrity or its political independence, without
deference to the opinions of the Ministers.
[89]
In
the Commission of Inquiry into the Actions of Canadian Officials in Relation
to Maher Arar, a commission of inquiry set up on February 5, 2004, by Order
2004-48, under Part I of the Inquiries Act, R.S. 1985, c. I-11,
Commissioner O’Connor was of the opinion that the use of the phrase “would be
injurious” in the “Terms of Reference” in the Order setting up the Arar
Commission demanded a stricter standard of proof than the one in section 38.01
of the CEA.
[90]
Similarly,
counsel for the named person note that, given the phrase used in the English
version “would be injurious to national security” in paragraph 83(1)(d) of
the IRPA, the standard of proof is stricter than the one in section 38.01
of the CEA or in section 15 of the Access to Information Act, R.S.,
1985, c. A-1.
[91]
On
the contrary, the Ministers consider that it would be incongruous, on judicial
review, to believe that a higher standard than that of reasonable grounds for
believing should be applied to determine whether the disclosure of information
would be injurious to national security or to the safety of any person.
[92]
The
standard of reasonable grounds for believing is consistent with the objective
of the IRPA to ensure that foreigners or permanent residents who pose a risk to
national security are inadmissible to Canada. In view of the
prospective nature of the exercise in which the Court is engaged, it would be
inappropriate to impose a more onerous burden than that of reasonable grounds.
[93]
The
Ministers rely on the decision of Justice Noël in Charkaoui (Re), [2003]
F.C.J. No. 1816, 2003 FC 1419, where he stated in paragraph 126 that “national
security is such an important interest that its protection warrants the use of
standards other than the preponderance of evidence standard”.
[94]
I
note at the outset that Justice Noël did not have to decide on the
interpretation of the new provisions of section 9 of the IRPA dealing with the
confidentiality of information.
[95]
I
agree with the Ministers that the judge’s exercise is prospective and that the
risks inherent in the inopportune disclosure of information related to national
security call for prudence because once the information is disclosed, there is
no going back.
[96]
However,
the terminology used in the applicable provisions, i.e., paragraphs 83(1)(d)
and (e) of the IRPA, indicate that it is up to the Court to guarantee
the confidentiality of information whose disclosure “would be injurious” to
national security.
[97]
According
to statutory interpretation, “[t]oday there is only one principle or approach,
namely the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.” (Rizzo & Rizzo
Shoes LT.D.. (Re), [1998] 1 S.C.R. 27, at paragraph 21).
[98]
The
Canadian Oxford Dictionary, Oxford University Press, 2004 (2nd ed.)
defines “would” as “to express probability”.
[99]
In
my opinion, Parliament therefore chose not to adopt an overly speculative
approach to determining whether certain information should not be disclosed.
[100] Moreover, I
note that the terms used by Parliament in paragraph 83(1)(c) are less strict
because the judge can hold an in camera hearing if the disclosure
“could” be injurious to national security. This difference in language suggests
to me that Parliament wanted a higher standard for non-disclosure.
[101] The
jurisprudence supports the use of the balance of probabilities standard in interpreting
the expression “could be injurious” to national security. Several legal
interpretations of the distinction between what “could be injurious” to
national security and what actually is injurious to national security have been
formulated in connection with the application of the CEA.
[102] The Arar
Commission of Inquiry decision, above, paragraph 49, states as follows:
49
The CEA at section 38 offers the
following definition of “potentially injurious information”:
|
“potentially
injurious information” means information of a type that, if it were disclosed
to the public, could injure international relations or national
defence or national security. [Emphasis added]
|
« renseignements
potentiellement préjudiciables » Les renseignements qui, s’ils sont
divulgués, sont susceptibles de porter préjudice aux relations
internationales ou à la défense ou à la sécurité nationales. [Je
souligne]
|
Of
interest, this definition uses the word “could” whereas section 38.06 of the CEA
states that a judge is to determine whether the disclosure of information
“would” be injurious to international relations, national defence, or national
security. The Federal Court of Appeal in Jose Pereira E. Hijos, S.A.
v. Canada (Attorney General), 2002 FCA 470 at
paragraph 14, spoke to the meaning of the words “would” and “could” in the
context of the CEA:
Counsel for the appellants
also contended that even if it could be said that Parts D and E of the Buckley
certificate were effectively adopted by the respondent, the certificate is
itself defective because nowhere therein is it stated, in compliance with
subsection 38(1), that the release of the information “would” be injurious to
Canada’s international relations. That phraseology suggests that in order to
secure the benefit of sections 37 and 38 a party must show a probability that a
feared injury will result from disclosure. The record contains nothing showing
that the disclosure of information sought by the series of “vote buying”
questions “would be injurious to international relations”. It is noted that the
phraseology employed in Parts D and E to the Buckley certificate is “could” and
“could reasonably” rather than “would”. The statute would seem to require a
showing of probability of injury instead of mere possibility.
[Emphasis added]
I agree with
the Federal Court of Appeal. The use of the word “would” by the legislator
indicates that the Government under section 38.06 of the CEA must
satisfy the reviewing judge that the injury alleged must be probable, and not
simply a possibility or merely speculative.
[103] Consequently,
the Arar Commission of Inquiry decision, above, clearly indicates the
application of the balance of probabilities standard to determine what “would be
injurious” to national security.
[104] Also, in Canada
(Attorney General) v. Ribic, [2003] F.C.J. No. 1964, 2003 FCA
246 (Ribic), also in connection with the application of the CEA,
when determining whether the disclosure “would be injurious”, the Federal Court
of Appeal, at paragraph 20, indicated that the applicable standard is that of
the balance of probabilities:
20
An authorization to disclose will issue if the judge is
satisfied that no injury would result from public disclosure. The burden of
convincing the judge of the existence of such probable injury is on the party
opposing disclosure on that basis.
[105] Outside of
the CEA, the jurisprudence supports applying the balance of probabilities standard
in interpreting the expression “would be injurious”.
[106] In
interpreting the provisions of the Canada Labour Code, R.S.C., 1985, c.
L-2 (Code), the decision in Chalk River Technicians & Technologists v.
Atomic Energy of Canada LT.D. et al, [2002] F.C.J. No. 1742, 2002 FCA 489, relying
on Hijos, above, in order to interpret the expression “could pose” in
the Code, indicated the following at paragraph 52:
52
The words which appear in
the statute, both in the English and French versions, require, in my view, less
certainty on the part of the Board in reaching a conclusion concerning the
existence of an immediate and serious danger than if the statute had used the
words “would pose”.
[107] In Li v.
Canada (Minister of Citizenship and Immigration), [2005]
F.C.J. No. 1, 2005 FCA 1, regarding the interpretation of Article 3 of the
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment (1984) (GA res. 39/46, annex., 39 U.N. GAOR suppage (No. 51),
at 197, U.N. Doc. A/39/51 (1984)), which states “No State Party shall expel,
return (“refouler”) or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being subjected
to torture,” the Federal Court of Appeal at paragraph 22, relied on Hijos,
above, and Chalk River, above, in interpreting the expression “would
be”:
22
This Court has found that use of the word
“would” requires a showing of probability. See Jose Pereira E Hijos, S.A. v.
Canada (Attorney General), 2002 FCA 470, [2002] F.C.J. No. 1658, at
paragraph 14 per Stone J.A. and Chalk River Technicians and Technologists v.
Atomic Energy of Canada LT.D.. (C.A.), [2003] 3 F.C. 313, at paragraph 52. Had
the Convention used the words “could”, “might”, or “may”, I think a lower level
test might be implied. But the word “would” in the Convention, together with
the other words used by the Committee, imply that the Committee adopted a
probability test.
[108] The
jurisprudence supports using the balance of probabilities standard to interpret
the expression “would be injurious”.
[109] Consequently,
I conclude that the standard of proof required for non-disclosure is that of
the balance of probabilities.
D. Opposing
future disclosure
[110] The parties
agree that in the absence of a concrete factual situation, it is premature at
this stage to discuss this issue. However, I note that, in general, it would be
difficult for the Ministers to argue that evidence that was not filed in
support of the certificate, that is not part of the information that the Ministers
characterize as “relevant information”, and after the Ministers have stated
that their evidence-in-chief is closed, the Phase II disclosure would be
set up against the named person.
CONCLUSION
[111] For these
reasons I conclude that:
1. Party-to-party
disclosure
A. Future
supplementary disclosure (Phase I):
(a)
I
believe that giving the named person the opportunity to bring a confidentiality
motion is the appropriate remedy for the serious harm that he could suffer if
he did not have the opportunity to bring such a motion. Preventing him from
doing so because of the wording of a procedure written at a time when it would
have been impossible to imagine the circumstances would needlessly aggravate
the harm.
(b)
Consequently,
the special advocates will be able to identify the prima facie evidence
that could be the basis of a motion under Rule 151 and bring it to the Court’s
attention in camera before the public disclosure of the information. The
Court will then delay placing this information in the public file. It will be provided
to counsel for the named person “party-to-party” for a period of fourteen days to
give them the opportunity, if necessary, to decide whether the named person wants
to bring a motion under Rule 151.
(c)
At
the end of this period, if no such motion has been served and filed, the
information will be placed in the public file. If a motion is brought, the
documents shall be kept under seal until the Court disposes of the matter.
(d)
With regard to the admissibility and reliability of the evidence,
given that Rule 151 is not available, it will be up to the special advocates to
file with the Court a specific motion if an issue arises as to the
admissibility or reliability of classified evidence to be placed in the public
file.
B.
The disclosure of additional information further to Charkaoui II
(Phase II):
(a) Non-confidential
information, if any, would first be forwarded “party-to-party” to the named
person.
(b) When the Ministers
and special advocates agree that confidential information received by the Court
further to Charkaoui II, above, is not relevant, the Court may rely on
such an agreement.
(c) With regard
to confidential information that might be considered relevant (particularly by
the special advocates since the Ministers have stated that only information filed
with the Court at the same time as the certificate is relevant), a summary
would be provided to the named person “party-to-party” where the disclosure
would be injurious to national security or endanger the safety of any person (paragraph
83(1)(e) of the IRPA).
(d) Any disagreement
between the Ministers and special advocates that might arise will be arbitrated
by the Court. The information in question or any summary would not be placed in
the Court docket unless one of the parties or the special advocates file it as
evidence.
2) The
national security standard
(a)
The role of the designated judge in determining whether to disclose
information to the named person where the government claims confidentiality is
to apply the criteria established through jurisprudence while taking into
consideration, on the one hand, the need to preserve confidentiality, and on
the other, the importance of providing the fullest possible disclosure with the
smallest impact on the named person’s right to know the evidence against him to
enable him to refute the Ministers’ allegations.
(b)
The burden is on the Ministers to prove that the disclosure would
be injurious to national security.
(c)
The requisite standard of proof for non-disclosure is the balance
of probabilities.
[112] As Justice
Dawson suggested in Almrei, Harkat, Mahjoub and Jaballah, above, a party
that wants an order based on these reasons will submit a proposal in writing to
the Court stating the reasons why an order is required, as well as a draft order.
“Danièle Tremblay-Lamer”
Certified true translation
Mary Jo Egan, LLB
Email this Content