Date:
20090507
Docket:
DES-4-08
Citation:
2009 FC 476
Ottawa, Ontario, May 7, 2009
Present: The Honourable
Madam Justice Tremblay-Lamer
BETWEEN:
IN THE MATTER
OF a certificate under subsection 77(1) of the Immigration and Refugee
Protection Act (IRPA);
IN THE MATTER
OF the referral of that certificate to the Federal Court under subsection 77(1)
of the IRPA;
AND IN THE
MATTER OF Adil Charkaoui;
AND THE BARREAU
DU QUÉBEC, Intervener
REASONS FOR ORDER AND ORDER
Introduction
[1]
This is an application by the special advocates
for an order to compel the Ministers to contact certain foreign agencies to seek
permission to disclose publicly information obtained from those agencies
concerning the person concerned. The application was made to the Court at a
hearing held in camera on April 30, 2009. The purpose of that
hearing was to hear submissions by counsel regarding the form and content of
the first proposal for disclosure by the special advocates.
1. Background
[2]
On February 24, 2009, the Court issued a
direction asking the Ministers whether, having regard to the consents given in
other cases, they intended to consent to disclosure of the content of any
intercepted communication in which the person concerned had participated
(content, month and year) and of the content of any surveillance report
relating to him (content, month and year).
[3]
On March 18, 2009, the Court ordered the
Ministers to act immediately on their proposal whenever they had indicated that
they were prepared to provide a statement or general description or summary
and/or to disclose information, as set out in their reply to the first proposal
made by the special advocates.
[4]
The Ministers submitted their reply to the
direction and order in the form of a summary of evidence in accordance with
paragraph 83(1)(e) of the Immigration and Refugee Protection Act,
2001, c. 27 (IRPA).
[5]
At the in camera hearing, the special advocates
presented argument on the question of the accuracy and completeness of the
summaries. On that point, they asked that certain wording be reviewed and that
information be added to reflect the evidence in the case of the person
concerned as accurately as possible, not including anything injurious to
national security. The first disclosure to the person concerned will therefore
be made under paragraph 83(1)(e) of the IRPA.
[6]
At the hearing, the Ministers called a witness
to support their objection to disclosing certain information from foreign
agencies that was included in the first proposal by the special advocates.
[7]
The witness, an employee of the Canadian
Security Intelligence Service (CSIS or the Service) cited the third party rule
to justify the objection to the disclosure and informed the Court that the
Service had made an executive decision that it would not request the foreign
agencies to lift the caveat in respect of the five security certificates
currently before the Court.
[8]
The special advocates then asked that the Court to
make an order compelling the Ministers to make all reasonable efforts to obtain
the consent of the foreign agencies involved in the Charkaoui case to the
disclosure of the information provided to the Service and referred to in the special
advocates’ proposals 1, 2 and 3.
[9]
This decision is the Court’s response to the
request made by the special advocates.
2. Issue
[10]
The issue to be decided is a question of mixed law
and fact in which the underlying facts of the case are classified and must
remain confidential in accordance with paragraph 83(1)(d) of the
IRPA.
[11]
At the outset, the Court notes that the issue is
not the importance of the third party rule, since that rule is recognized both
by the Court and by counsel at the hearing. The only issue is how the Service
and the Ministers have interpreted that rule and how it applies to the
certificate before me, i.e., the certificate relating to Mr. Charkaoui:
based on that interpretation, they will not make reasonable efforts to request
that the caveat be lifted or try to obtain consent to the disclosure of certain
information.
3. Public Version
[12]
This public version was facilitated by the
public release of a previous decision relating to, inter alia, the third
party rule: the decision of my colleague Justice Simon Noël in the
Arar case, Canada (Attorney General of Canada) and Commission of Inquiry
into the Actions of Canadian Officials in Relation to Maher Arar and Maher Arar,
[2007] F.C.J. No. 1080, 2007 FC 766. As a result, the general outline of the
legal arguments that follow could be given here. On reading the judgment by my
colleague, I saw that a position similar to the one submitted to me by counsel
for the Ministers seems to have been put before the Court in the past, in an
application under section 38.04 of the Canada Evidence Act, R.S.C.
1985, c. C-5 (the CEA). In that case, the Attorney General of Canada sought an
order from the Federal Court prohibiting the disclosure of certain redacted
portions of the public report issued by the Arar Commission on the basis that
disclosure of that information would be injurious to international relations,
national defence or national security, merely by requesting consent to
disclosure (paragraph 74). For the purposes of these reasons, I used the
public version of his judgment (a parallel confidential judgment exists that
applies the same legal principles to the specific facts of the case).
4. Position of the Ministers
[13]
Counsel for the Ministers, Nancie Couture, first
argued the importance of the testimony given by the witness they had called and
stressed his experience as an intelligence officer who was very familiar with
the third party rule and with the Service’s relations with foreign agencies.
The Ministers took the position that this was not a matter affecting only the
Charkaoui case; it affects the management of five security certificates
simultaneously, involving a number of different foreign agencies that have
provided various information used in the five security intelligence reports
(SIR). As a result, merely requesting that the third parties lift the caveat
could be injurious to national security. Counsel reiterated the clarifications
made by the witness, who had specified that depending on the country from which
consent was requested, the probability that the request would be injurious
would undoubtedly be different.
[14]
Counsel also cited the mosaic effect in support
of her submissions, and said that an order by the Court asking foreign agencies
to lift the caveat would have significant ramifications within the intelligence
community. In the Ministers’ submission, an order of that nature would be
perceived as a failure by the Canadian system to protect the information
shared. That would be a warning to the international community that information
shared in confidence as privileged information might eventually be disclosed
publicly.
5. Position of the Special Advocates
[15]
Denis Couture, for the special advocates,
pointed out that the third party rule does not mean a complete prohibition on
disclosing information; it simply means that the consent of the agency that
provided the information must be obtained before using it for purposes other
than the receiving agency’s purposes or before disclosing it. He noted that the
witness knew nothing about the facts in the case of the person concerned (or in
the other four cases) or the importance of the specific information that the special
advocates in this case believe should be brought to the attention of the person
concerned and his counsel.
[16]
Mr. Couture stated that the importance of
the third party rule is not in issue here. The issue is the Service’s decision
to not even make a request, contrary to the case law, which is clear on this
point: the courts have held that the Ministers must show that they have made
all reasonable efforts to obtain the consent of the foreign agencies to the disclosure
of the information provided to the Service.
6. Analysis
(a) Third Party Rule
[17]
The Canadian courts have repeatedly noted the
importance of the third party rule, which relates to the exchange of
information between security intelligence services and other similar agencies.
The Court wishes to make it plain at the outset that it has no intention of
minimizing the importance of the third party rule or of not recognizing Canada’s position as a net importer of
intelligence.
[18]
Essentially, the rule is that the receiving
agency may not disclose the source or content of the information without the
permission of the originating agency. (See Chief Justice Lutfy in Ottawa
Citizen Group Inc. v. Canada, [2006] F.C.J. No. 1969, 2006 FC
1552, paragraph 25).
[19]
In Canada v. Khawaja, [2007] F.C.J. No. 622, 2007
FC 490, Justice Mosely expressed the same opinion, at paragraph 145:
Clearly, the purpose of the third
party rule is to protect and promote the exchange of sensitive
information between Canada and foreign states or agencies, protecting both the
source and content of the information exchanged to achieve that end, the
only exception being that Canada is at liberty to release the information
and/or acknowledge its source if the consent of the original provider is
obtained. (Emphasis added)
[20]
In the Arar case, supra, Justice
Noël explained that the rule is sacrosanct among law enforcement and
intelligence agencies and is, he said, premised on mutual confidence,
reliability and trust. He summarized what the Federal Court of Appeal said in Ruby
v. Canada, [2000] F.C.J. No. 779, in which Justices Létourneau, Robertson and
Sexton commented on the third party rule in the context of the Privacy Act,
R.S. 1985, c. P‑ 21 and the Access to Information Act, R.S.
1985, c. A‑1, at paragraphs 101 to 111:
[101] Section 19 is a qualified mandatory
exemption: the head of a government institution must refuse to disclose
personal information obtained in confidence from another government or an
international organization of states unless that government or
institution consents to disclosure or makes the information public. This is
generally referred to as the third party exemption.
…
[103 It is true that the primary thrust of the section
19 exemption is non-disclosure of the information but, as we already mentioned,
it is not an absolute prohibition against disclosure. This exemption,
like the others, has to be read in the overall context of the Act which favours
access to the information held. Subsection 19(2) authorizes the head of a
government institution to disclose the information where the third party
consents.
…
[110] In our view, a request by an
applicant to the head of a government institution to have access to personal
information about him includes a request to the head of that government
institution to make reasonable efforts to seek the consent of the third
party who provided the information. In so concluding, we want to make it
clear that we are only addressing the question of onus and that we are in no
way determining the methods or means by which consent of the third party can be
sought. Political and practical considerations pertaining, among others, to the
nature and volume of the information may make it impractical to seek consent on
a case-by-case basis and lead to the establishment of protocols which respect
the spirit and the letter of the Act and the exemption.
[111] … This means that the
reviewing Judge ought to ensure that CSIS has made reasonable efforts to
seek the consent of the third party who provided the requested information.
If need be, a reasonable period of time should be given by the reviewing Judge
to CSIS to comply with the consent requirement of paragraph 19(2)(a).
(Emphasis added.)
[21]
In summary, as my colleague wrote, the Federal
Court of Appeal indicated in that case that consent to disclosure is necessary
to not violate the third party rule and that law enforcement and intelligence
agencies have a duty to prove that they made reasonable efforts to obtain
consent to disclosure or they must provide evidence that such a request would
be refused if consent to disclosure was sought (paragraph 73 of the
Arar case). (Emphasis added)
[22]
That statement, of course, presumes that there
may be cases in which a request is not possible, for example, because of
tenuous relations with the originating foreign state or agency. In such a case,
as the Federal Court of Appeal said in Ruby, supra, CSIS must at
least satisfy the court that a request for consent to disclosure would be
refused. That was not the evidence before me.
(b) Interpretation of the Third Party Rule by
the Ministers
[23]
As we saw earlier, the Ministers submit that
merely contacting the foreign agencies to request that they lift the caveat
would be injurious to CSIS’s ability to receive information in future, given the
number of requests that could occur in the five security certificate cases. The
fact that a considerable number of requests for consent to disclosure might be made
concurrently in the security certificate cases would soon become known, and
Canada would be perceived as an unreliable country, which would be injurious to
Canada.
(c) Issues
[24]
I find the Ministers’ arguments unconvincing,
given the case law cited above on this issue. In my opinion, it is not
sufficient for the government to decide that, as a general rule, it will not
request the consent of foreign agencies because of the number of agencies
involved at this point in the proceedings.
[25]
Although the decisions cited relate primarily to
other statutory schemes, i.e., the Canadian Human Rights Act (R.S. 1985,
c. H‑6), the Access to Information Act (R.S. 1985, c. A‑1)
and the Canada Evidence Act (R.S.C. 1995, c. C‑5), it seems
to me that the principles that emerge from them can also be applied in the IRPA
context.
[26]
In my opinion, the importance of the issues in
the security certificate cases for the persons concerned cannot be minimized.
[27]
The Ministers have the burden of proving, on a
balance of probabilities, that disclosure would be injurious to national
security or would endanger the safety of any person; see Charkaoui (Re),
[2009] F.C.J. No. 396, 2009 FC 342.
[28]
There are a number of factors in this case that
lead me to conclude that it would be incorrect to disregard the requirement to
demonstrate to the Court that reasonable efforts have been made to seek consent
in this case. I note the following factors:
(1) The fact that
the Ministers have used information in the past that came from the same foreign
agencies in support of the confidential security intelligence report (SIR);
(2) The fact that information
or intelligence exists that was provided by foreign agencies has been known
publicly since the public release of the summary of the intelligence report;
(3) The fact that
it is public knowledge that the Moroccan authorities are involved in this case.
Justice Noël’s decision in Charkaoui (Re), [2005] F.C.J. No. 2038,
2005 FC 1670, indicated that on September 10, 2004, Morocco signed an international arrest warrant for the person concerned
stating that Mr. Charkaoui was an active member of the Moroccan Islamic
Combatant Group (G.I.C.M);
(4) The fact that
at this stage what is being sought is only a request for consent;
(5) The fact that the
special advocates have narrowed their requests and given priority to
information that they regard as very important for the person concerned to be
able to make full answer and defence;
(6) The fact that
some information dates from several years ago and that it is therefore unlikely
that the secret and confidential nature of the information is still of
particular interest to the originating country: Canada (Attorney General) v. Ribic, [2002]
F.C.J. No. 1835, 2002 FCT 1044;
(7) The fact that
the case before the Federal Court is the only opportunity for the person
concerned to be adequately informed of the Ministers’ position with respect to
the proceedings and to be able to respond to it;
(8) The fact that
once the certificate is found to be reasonable, it is proof of inadmissibility
and constitutes an enforceable removal order;
[29]
It seems to me that the Court is entitled to expect,
at a minimum, a simple demonstration that reasonable efforts have been made to seek
consent. In my opinion, the fact that five security certificates have been
referred to the Court concurrently does not mean that the person concerned,
named in the certificate before me, is not entitled to the full application of
the third party rule. That rule may not be invoked and applied only when it supports
the position taken by the Ministers. It must be applied objectively.
[30]
It is not my role to decide the importance of
certain facts in the other cases that are not before me. It may be that some
information from foreign sources could be disclosed because the information has
been neutralized, for example because it came from more than one source.
[31]
In addition, the rule does not apply in a
vacuum; it is part of a whole, and, as the witness explained, it is applied in
the very concrete context of the day-to-day relations of the various
intelligence and law enforcement agencies. As a result, I find it difficult to
reconcile that statement with the flat refusal in this case, a refusal made
without regard for the circumstances and without an alternative being presented
by the Ministers.
[32]
With respect to the argument that disclosure
would be injurious, it is my opinion that this would in fact be the result if
the third party rule were violated. In this scenario, there is no proposal that
the third party rule be disregarded; rather, the aim is to make sure that it is
followed, since the third party rule means that authorization may be requested.
If that fact is known, I believe that it would reassure foreign agencies that
Canada honours its agreements but, at the same time, makes the necessary
efforts to give an individual the opportunity to answer the serious allegations
made against him or her, in accordance with Canadian values and the obligations
created by the Canadian Charter of Rights and Freedoms, Schedule B to
the Canada Act, 1982, c. 11 (U.K.).
[33]
The Supreme Court pointed out in Charkaoui v.
Canada, 2008 SCC 38, paragraphs 50 and 54, that
… [determining] whether a security
certificate is reasonable takes place in a context different from that of a
criminal trial. [T]he serious consequences of the procedure on the liberty
and security of the named person bring interests protected by s. 7 of the Charter
into play. . . .
… The consequences of
security certificates are often more severe than those of many criminal
charges. (Emphasis added)
[34]
Accordingly, the issuance of a certificate and
consequences thereof demand great respect for the named person’s right to
procedural fairness. Every effort must be made to enable the person to answer
the allegations made against him or her.
[35]
I further note that what is being sought here is
not that the foreign agencies be requested to disclose sensitive information
involving, for example, the identity of a target of investigation or
investigation methods; the request only covers the information that is the
subject of the special advocates’ proposals, and this information can be
neutralized by purging the parts that could be sensitive to the originating
country.
[36]
In any event, the Service has demonstrated its
ability in the past to summarize certain information from certain foreign
agencies so that it can be disclosed. That same good faith will surely make it
possible for the Service to ensure that reasonable efforts are made to seek
consent.
[37]
To meet their burden of satisfying the Court, on
a balance of probabilities, that disclosure to the person concerned is not
possible because it would be injurious to national security (paragraph 83(1)(c)
of the IPRA), the Court orders the Ministers to report to the Court the
reasonable efforts that the Service has made to obtain the consent of the
foreign agencies involved for the purpose of disclosing the information
referred to in the special advocates’ proposals in the case of Adil Charkaoui,
or to prove, with respect to each of the agencies concerned, that a request for
consent to neutral disclosure of the information would be refused. A hearing
for that purpose will be held in camera on a date to be set by the Court.
ORDER
To meet their burden of satisfying the Court, on a balance of
probabilities, that disclosure to the person concerned
is not possible because it would be injurious to national security (paragraph 83(1)(c)
of the IRPA), the Court orders the Ministers to report to the Court the
reasonable efforts that the Service has made to obtain the consent of the
foreign agencies involved for the purpose of disclosing the information
referred to in the special advocates’ proposals in the case of Adil Charkaoui,
or to prove, with respect to each of the agencies concerned, that a request for
consent to neutral disclosure of the information would be refused. A hearing
for that purpose will be held in camera on a date to be set by the Court.
“Danièle Tremblay-Lamer”
Judge
Certified true translation
Mary Jo Egan, LLB
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