Date: 20090527
Docket: DES-5-08
Citation: 2009FC553
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 Mohamed
HARKAT
REASONS FOR
ORDER
NOËL S. J.
[1]
On
May 26, 2009, at 12 p.m., a Top Secret letter containing two Top Secret attachments
(together, the “Ministers’ letter”) was delivered to this Court by the Canadian
Security Intelligence Service. The Ministers’ letter provided new information
dating from 2002 and 2008 concerning the reliability of a human source who
provided information in relation to the investigation of Mr. Harkat.
[2]
In
the Ministers’ letter, counsel for the Ministers acknowledges that it is:
“…clear that the Court and the Special
Advocate should have been made aware of [this information] and the failure to
do so is a serious matter. The Service is investigating why this information
was not provided and will report to the Court as soon as the investigation is
complete.”
[3]
The
information provided in the Ministers’ letter is significant and goes to the
weight to be given to the evidence of a human source however the information
was not provided to the Court or the Special Advocates:
·
in
Exhibit “A”. As noted in Re Harkat 2009 FC 204 at paragraph 66, Exhibit
“A” is an exhibit prepared by CSIS assessing the reliability of the source and
his or her relationship with CSIS. It is intended to permit the Court to make
findings on the reliability of the information provided by the source.
·
as
a part of the disclosure resulting from the Order of this Court dated September
24, 2008 made pursuant to Charkaoui v. Canada 2008 SCC 38 (“Charkaoui
2”).
·
in
response to the Court order issued November 28, 2008, requiring the Ministers
to file information found in either administrative or operational files
relating to the reliability of information provided by a human source.
·
by
the CSIS witness who testified in September 2008 in relation to the
reasonableness of the certificate even when specifically questioned on the
reliability of the source by the Court.
·
by
a CSIS witness, who appeared on request of the Court. The Court asked the
witness to familiarize himself with the contents of the human source file and
provide evidence to the Court regarding the contents of the file.
[4]
When
the Ministers’ letter was received, this Court had under reserve a request made
by the Special Advocates to access the human source file in question. Access
to the human source file would inevitably result in the Special Advocates
learning the identity of the source in question.
[5]
In
their submissions in support of their request to review the human source file,
the Special Advocates asserted a need to know the information contained in the
human source file to fulfill their statutory role of protecting the interests
of Mr. Harkat in his absence by testing the reliability of confidential information
relied on by CSIS. They submitted that they would not be able to fulfill their
statutory role if they were required to rely on CSIS to provide them with the
relevant information.
[6]
The
Ministers objected to the request on the grounds that the Special Advocates had
already been given sufficient information with which to test the reliability of
the information provided by the human source and thus did not have a need to
know the identity of the source. It is only in the recent Ministers’ letter
that they come to the conclusion that the Special Advocates may have access to
the file if the Court so orders.
[7]
During
closed hearings, the Court has reminded counsel for the Ministers of the
Ministers’ obligation to act in utmost good faith in these proceedings. In
particular, relying on the jurisprudence, the Court commented on the duty of
the Ministers to provide all information which would tend to weaken their case
against Mr. Harkat.
[8]
On
May 15, 2009, counsel for the Ministers wrote to the Court and indicated that he
would be providing further information to the Court which could have a bearing
on the Court’s decision in relation to the Special Advocates’ request. That
information was provided by way of the Ministers’ letter.
[9]
The
rule of law is an essential component of any functioning democratic society.
In British
Columbia (Attorney General) v. Christie As
the Supreme Court observed at paragraph 20:
The rule of law is a
foundational principle. This Court has described it as a “fundamental postulate
of our constitutional structure” […] that “lie[s] at the root of our system of
government”. […] It is explicitly recognized in the preamble to the
Constitution Act, 1982, and implicitly recognized in s. 1 of the Charter, which
provides that the rights and freedoms set out in the Charter are “subject only
to such reasonable limits prescribed by law as can be demonstrably justified in
a free and democratic society”. And, as this Court recognized in Reference
re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 750, it is implicit
in the very concept of a constitution.
[10]
In
Christie the Supreme Court set out three essential, but not exclusive,
principles of the rule of law. The first is that the “law is supreme over
officials of the government as well as private individuals, and thereby
preclusive of arbitrary power.” The second “requires the creation and
maintenance of an actual order of positive laws which preserves and embodies
the more general principle of normative order.” The third principle is that
“the relationship between the state and the individual be regulated by law.”
[11]
The
judiciary is the guardian of the rule of law. The Courts, guaranteed
independence by the judicature sections of the Constitution Act, 1982, have the
duty and responsibility to ensure that all Canadians, irrespective of their
wealth, position or influence, respect and comply with the rule of law.
Persons in positions of authority within government whose actions impact on the
rights and liberties of Canadians must be held to account for even the
slightest disregard for this principle.
[12]
Recent
disclosures made to this Court on May 26, 2009, raise questions in relation to:
·
the
compliance of the Canadian Security Intelligence Service with orders of this
Court, in particular the Orders of September 24, 2008, and November 28, 2008;
·
possible
prevarication by CSIS witnesses called to testify concerning the reliability of
the information provided by the human source; and,
·
CSIS’
compliance with the obligation of utmost good faith required by the
jurisprudence in the context of the ex parte proceedings. See Ruby v. Canada, 2002
SCC 75 at para. 27 and Charkaoui v. Canada (Minister of
Citizenship and Immigration), 2004 FCA 421 at para. 153-154.
[13]
In
Re Harkat, 2009 FC 204 this Court recognized a covert human intelligence
source privilege. The privilege establishes an absolute bar to the
identification of a human source in the public domain. The Court recognized
one exception to the absolute bar which would only be made in the context of a
closed ex parte hearing pursuant to section 83(1)(c) of the Immigration
and Refugee Protection Act, S.C. 2001, c.27 (“IRPA”). As noted in
Re Harkat 2009 FC 204 at paragraph 46, the “need to know” exception:
…will only be established
where evidence is adduced demonstrating that the identity of the covert human
intelligence source must be disclosed to prevent a flagrant breach of
procedural justice which would bring the administration of justice into
disrepute.
[14]
This
Court finds that as a result of the review of the Ministers’ letter, the
Special Advocates have a “need to know” the contents of the human source file
even if this results in the revelation of the source’s identity. The rule of
law requires no less. Once the Court has evidence that leads it to question
the completeness of the information being provided to it by the Ministers, in apparent
violation of their obligation of utmost good faith, it must allow the Special
Advocates access to all information which they have a need to know. To do
otherwise would bring the administration of justice into disrepute.
[15]
This
Court will also be reviewing all orders issued and evidence provided to date in
this proceeding to see if any further judicial action is required to preserve
the integrity of the administration of justice. This review will require the
recalling of several CSIS witnesses.
[16]
This
troubling situation may also raise questions in relation to the information
presented, or not, to the designated judge presiding over the first security
certificate naming Mr. Harkat. The Court will be asking for submissions on
this important issue.
[17]
In
conclusion, the Court notes that counsel for Mr. Harkat has made a request to
postpone the hearing into the reasonableness of the certificate as a consequence
of the search by CBSA of Mr. Harkat’s residence on May 12, 2009. They have
also filed submissions on the legality of this search. A hearing into the
legality of the search will be held on June 2, 2009.
[18]
In
light of all the recent developments in this proceeding, the Court has no
choice but to temporarily adjourn the reasonableness hearing. The litigation
plan of January 16, 2009, will be amended by the Court after consultation with
counsel for Mr. Harkat, counsel for the Ministers and the Special Advocates on
June 2, 2009.
THEREFORE, THIS
COURT ORDERS that:
- The
Ministers shall file 3 complete and unredacted copies of the human source
file with the Court forthwith and no later than 4 p.m. on June 1, 2009.
The Special Advocates will be provided with full access to the unredacted
file.
- A
hearing to determine the legality of the May 12, 2009, search of Mr.
Harkat’s residence will be held at 10 a.m. on June 2, 2009.
- The
hearing to determine the reasonableness of the certificate is temporarily adjourned.
The Court will hear the submissions of counsel and the Special Advocates
in relation to an amended litigation plan on June 2, 2009.
“Simon Noël”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-5-08
STYLE OF CAUSE: 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 MOHAMED HARKAT
REASONS FOR JUDGMENT: NOËL S. J.
DATED: May
27, 2009
APPEARANCES:
|
Mr. Andre
Seguin
|
FOR THE APPLICANT
|
|
Mr. P.
Copeland,
Mr. P.
Cavalluzzo
|
AS SPECIAL ADVOCATES
|
SOLICITORS
OF RECORD:
|
JOHN H. SIMS
DEPUTY
ATTORNEY GENERAL OF CANADA
Ottawa Ontario
|
FOR THE APPLICANT
|
|
WEBBER
SCHROEDER GOLDSTEIN ABERGEL,
And
BAYNE SELLAR
BOXALL
Ottawa Ontario
|
FOR THE RESPONDENT
|
|
Paul COPELAND
And
Paul
CAVALLUZZO
|
AS SPECIAL ADVOCATES
|
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