Date: 20091014
Docket: DES-4-08
Citation: 2009 FC 1030
[REVISED ENGLISH TRANSLATION]
Ottawa,
Ontario, October 14, 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 THE BARREAU DU QUÉBEC, Intervener
REASONS FOR JUDGMENT AND
JUDGMENT
INTRODUCTION
[1]
This
is an application by the Minister of Public Safety and Emergency Preparedness
and the Minister of Citizenship and Immigration (the Ministers), dated
July 31, 2009, for an immediate determination, in accordance with
section 78 of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (IRPA), of the reasonableness of a certificate issued on
February 22, 2008. The certificate attests that Adil Charkaoui, a
permanent resident, is inadmissible on grounds of security.
[2]
This
application was made after the Ministers withdrew certain information and other
evidence which, in their opinion, would be injurious to national security or
endanger the safety of any person if disclosed. However, the Ministers specify
that the withdrawal of this information cannot be taken to mean that they no
longer considered it reliable.
HISTORY OF
THE PROCEEDINGS
[3]
The
Court will discuss only the facts relevant to the outcome of this matter.
[4]
On
February 22, 2008, the Ministers referred the certificate under section 77
of the IRPA. Also, in accordance with subsection 77(2) of the
IRPA, the Minister of Public Safety and Emergency Preparedness filed information
and other evidence in support of the certificate, seeking to keep a considerable amount of it
confidential on the basis that it would be injurious to national security or
would endanger the safety of any person if disclosed.
[5]
On
September 3, 2008, at a public hearing, the Ministers acknowledged that they owe
a duty to disclose to Mr. Charkaoui the evidence on which the certificate is
based — a duty that is adapted to public safety requirements, as held by the
Supreme Court of Canada in Charkaoui v. Canada (Citizenship and
Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 [Charkaoui II].
I will discuss the scope and impact of this duty at paragraphs 75 to 80 of
these reasons.
[6]
At
the hearing, the Court repeatedly noted the duty, conferred by Parliament on
the designated judge, to ensure the confidentiality of the information if its
disclosure would be injurious to national security (transcript of September 3,
2008, at pages 12, 14, 16, 27, 28, 30, 33, 35, 71, 72, 79 and 82).
[7]
On September 12, 2008, counsel representing the Ministers in the
five cases involving security certificates notified the Court, by unclassified
letter, that in accordance with the Supreme Court’s decision in Charkaoui
II they had asked CSIS to scrutinize the information and other evidence in
each of the five cases in order to determine whether the original operational
notes had been retained.
[8]
As
a result, it was determined that certain original operational notes had been
retained. The Ministers thought it important to specify that none of these
notes pertained to CSIS’ interviews of Mr. Charkaoui.
[9]
Counsel
for the Ministers specified that these original notes would be sent to the
Court and the special advocates, who would be called upon to examine all the
information and other evidence (including original operational notes) which, on
grounds of national security or safety of any person, was not disclosed to Mr.
Charkaoui.
[10]
On
the same day, September 12, 2008, in response to an order of this Court, the Assistant Director
(Intelligence) for CSIS wrote that, to the best of his knowledge, CSIS had disclosed
all relevant information and other evidence that could be disclosed to Mr.
Charkaoui without causing injury to national security or the safety of any
person.
[11]
Mr. Charkaoui then asked to cross-examine a CSIS representative about
the sufficiency of the disclosure of public evidence.
[12]
On
September 19, 2009, this Court, reiterating the judge’s obligation to ensure the
confidentiality of information, dismissed that application. The Court was of
the opinion that it had to examine the evidence in an in camera
proceeding, with the assistance of the special advocates, before determining
whether any additional information would be disclosed.
[13]
The
hearings in camera were held in April and May 2009. In the
course of those hearings, the special advocates carried out their duty, under
paragraph 85.1(2)(a) of the IRPA, to “challenge the Minister’s
claim that the disclosure of information or other evidence would be injurious
to national security or endanger the safety of any person”.
[14]
Having
heard the special advocates’ and Ministers’ arguments, the Court held that the
disclosure of certain evidence would not be injurious to national security or
the safety of a person, and it issued a number of orders requiring its disclosure.
[15]
The
Ministers disagreed with the Court’s determinations, and decided to withdraw
that evidence rather than disclosing it in accordance with the Court’s orders.
The Ministers have the right to withdraw evidence under paragraph 83(1)(j)
of the IRPA, which provides that the judge determining the reasonableness of a
security certificate “shall not base a decision on information or other
evidence provided by the Minister . . . if the Minister
withdraws it”.
[16]
On
July 31, 2009, the Ministers stated that, in their opinion, the evidence remaining
in the file was not sufficient to meet their burden of showing that the
certificate was reasonable. They also asked the Court to determine whether
the certificate was reasonable.
[17]
On
August 5, 2009, the Court asked the parties to state their positions on the
following two questions (among others):
- Given
the Ministers’ admission that the evidence is not sufficient to meet the
burden of proof imposed by the IRPA, is it appropriate for the Court to
determine whether the certificate is reasonable, or should the certificate
simply be withdrawn by the Ministers without further formalities?
- If the Court has to determine whether the certificate is
reasonable and quash it, what questions, if any, should it certify for the
Court of Appeal?
[18]
On
September 4, 2009, the Ministers made further written submissions, both public
and secret, in response to these questions. In those submissions, the
Ministers reiterated that they were not prepared to withdraw the certificate, and
asked the Court to certify two questions for the Federal Court of Appeal, in
accordance with section 79 of the IRPA.
[19]
On
September 17, 2009, Mr. Charkaoui made further written submissions in response
to the Court’s questions, asking that the security certificate be quashed, and
objecting to the certification of the questions proposed by the Ministers.
[20]
The
special advocates also made further written submissions, both public and
secret, on September 22, 2009.
[21]
A
public hearing, at which the Court heard the Ministers and Mr. Charkaoui, was
held in Montréal on September 24, 2009. In addition, upon the Ministers’
request, a hearing in camera, during which the Court heard the Ministers
and the special advocates, was held in Ottawa on September 30, 2009.
the issues
[22]
The
issues that the Court must now decide are as follows:
A.
Is
the certificate valid and reasonable?
B.
Should
the questions proposed by the Ministers be certified?
A. Is the certificate valid and
reasonable?
[23]
Subsection
77(2) of the IRPA states that when the Ministers refer a security certificate in
respect of a person, the Minister of Public Safety and Emergency Preparedness
“shall file with the Court the information and other evidence on which the
certificate is based”.
[24]
The
Ministers cannot legally refer a certificate without filing the evidence on
which it is based. Such action would not be authorized by the IRPA, which
requires that the certificate be referred and that the evidence be filed
at the same time. Thus, a certificate referred without the filing of the
evidence on which it is based would be ultra vires the Ministers,
illegal, and void. Obviously, that was not the situation in this case: the
Ministers did file the evidence which, in their opinion, justified the
certificate against Mr. Charkaoui. However, as permitted by the IRPA, they
chose to withdraw a significant part of that evidence.
[25]
Now
that this information has been withdrawn, the Ministers admit that the evidence
is no longer sufficient to support the certificate. Consequently, the
certificate no longer exists within the criteria established by Parliament. Despite
the Ministers’ insistence on it, the fact that the evidence in support of the
certificate physically exists and that the Ministers would like to add it back
to the file without actually disclosing it is of no import. Paragraph 83(1)(j)
of the IRPA states that the designated judge “shall not base a decision on
information or other evidence provided by the Minister . . . if the Minister
withdraws it”.
[26]
For
greater accuracy, one might refer to Gérard Cornu, Association Henri Capitant, Vocabulaire
juridique, which defines the [translation]
“withdrawal” of an [translation]
“administrative act” as the “disappearance of such an act by virtue of
the subsequent intent of its maker, with prospective or retroactive effect, as
the case may be”. [Emphasis added.]
[27]
Thus,
once the evidence is withdrawn by the Ministers and returned to them, it can no
longer be considered “filed”. Yet this is a requirement of the IRPA.
[28]
Consequently,
since the Ministers’ admission that the remaining evidence is no longer
sufficient to justify it, the certificate has been ultra vires the
Ministers. It is void.
[29]
This
is because the executive power can only be exercised under the conditions and
within the limits set by the IRPA. As the Supreme Court notes in Dunsmuir v.
New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190,
. . . [a]ll decision-making
powers have legal limits, derived from the enabling statute itself, the common
or civil law or the Constitution. . . . Administrative powers are exercised by
decision makers according to statutory regimes that are themselves confined. A
decision maker may not exercise authority not specifically assigned to him or
her. By acting in the absence of legal authority, the decision maker transgresses
the principle of the rule of law.
[30]
The
Ministers are not concealing the reasons why they are not withdrawing the
certificate. They want to force the Court to make a decision as to whether
the certificate is reasonable, thereby enabling them to ask that certain
questions be certified for the Court of Appeal so that they can get a judgment
from that Court in the hope that they can add back key information in support
of the certificate without having to disclose it to Mr. Charkaoui. As for
Mr. Charkaoui’s counsel, they submit that in view of the circumstances, the
certificate should be quashed, because the withdrawal of the evidence has
removed the legal basis for the certificate and undermined its validity.
The
appropriate remedy
[31]
The
corollary of the prohibition against the executive acting in the absence of
legal authority is that each person has the right not to be subject to such
action. This raises the question of what remedy is appropriate in view of the
inaction of the Ministers, who failed to revoke the certificate against Mr. Charkaoui
even though it became ultra vires (due to its inconsistency with
section 77 of the IRPA) when the evidence on which it is based was
withdrawn.
[32]
In
the Ministers’ submission, the only avenue open to this Court under the IRPA is
a determination of whether the certificate is reasonable. Specifically, the
IRPA provides the following:
|
78. The judge shall
determine whether the certificate is reasonable and shall quash the
certificate if he or she determines that it is not.
|
78. Le juge décide du
caractère raisonnable du certificat et l’annule s’il ne peut conclure qu’il
est raisonnable.
|
The Ministers
stress that this provision is mandatory (as suggested by, among other things,
the use of the imperative “shall” in the English version.)
[33]
Although
this argument might initially appear persuasive, it disregards the fact that if
the certificate has been voided by the withdrawal of the evidence on which it
is based, there is simply no certificate the reasonableness of which this Court
can determine anymore.
[34]
In
my opinion, the Ministers’ power to withdraw a certificate unsupported by the
evidence is not discretionary. On the contrary, it flows directly from the
wording of the IRPA itself. The Ministers challenge the very existence of
this power. But it would be absurd for the Ministers to be unable to withdraw a
certificate if, for example, following a change of circumstances (such as
the receipt of new information exculpating the person named in the
certificate) they formed the opinion that the person no longer poses a danger
to national security.
[35]
Although
the IRPA does not expressly state that a security certificate can be withdrawn,
it would, in my opinion, run counter to section 7 of the Canadian
Charter of Rights and Freedoms to interpret it as though it cannot. Indeed,
under such an interpretation, an individual could remain subject to a security
certificate, and the restrictions on his or her liberty that it entails, even
if the Ministers do not believe that those restrictions are justified. This
would be contrary to the principles of fundamental justice and to all logic.
[36]
What
must the Court do in view of the Ministers’ inaction following their withdrawal
of the evidence in support of the certificate?
[37]
Under
paragraph 18(1)(a) of the Federal Courts Act, R.S.C. 1985,
c. F-7, “. . . the Federal Court has exclusive
original jurisdiction to . . . grant declaratory relief, against any federal
board, commission or other tribunal”.
[38]
For
a century now, the declaration has been considered “the most convenient
method of enabling the subject to test the justifiability of proceedings on the
part of permanent officials purporting to act under statutory provisions”: Dyson
v. Attorney General (1910), [1912] 1 Ch. 158, at page
165. Indeed, “given the flexible nature of the declaration, there are few
limitations on its availability” (David Philip Jones and Anne S. de Villars,
Principles of Administrative Law, 5th ed. (Toronto: Thomson
Reuters Canada, 2009), at page 758). Perhaps the most important limitation is
that “there must be some basis on which the application is brought and not
merely some abstract desire to obtain clarification . . . . Absent a factual
foundation within the jurisdiction of the Court, remedies are meaningless” (Pieters
v. Canada, 2004 FC 27, [2004] F.C.J. No. 72 (QL), at paragraph
17). In other words, the declaration must serve a practical purpose related to
a specific set of facts.
[39]
That
requirement is met in this case. The factual circumstances surrounding the
security certificate that names Mr. Charkaoui are clear, since the Ministers
acknowledge having withdrawn evidence that is essential to support the
existence of the certificate. Consequently, a declaration that the certificate
is void is, in my opinion, the most appropriate remedy.
[40]
When
did the certificate become void?
[41]
Mr.
Charkaoui submits that the withdrawal of the evidence shows that the Ministers acted
in bad faith because they never intended to disclose the evidence even though
they should have known that they would be required to do so. He submits that,
given these circumstances, it was improper to refer the certificate in the
first place, and that the Court should issue a declaration to that effect.
[42]
However,
the Court cannot accept Mr. Charkaoui’s allegation in the absence of a full
debate regarding the evidence confirming or infirming it; it is a grave
allegation, and the Ministers should have the opportunity to contradict it.
[43]
Thus,
I find that when the Ministers admitted, on July 31, 2009, that the
evidence remaining in the record was insufficient to justify the certificate’s
existence, the certificate became ultra vires the Ministers and void.
[44]
However,
it is clear that if this Court were not declaring the certificate void due to
its being ultra vires the Ministers, it would still find the certificate
unreasonable because the evidence on which it is based is insufficient.
[45]
In
addition, the questions that the Ministers seek to have certified do not depend
on the precise form of the Court’s judgment as to the validity or
reasonableness of the certificate. Thus, it is this Court’s duty to decide on request
for certification.
B. Should
the questions proposed by the Ministers be certified?
Introduction:
The right of appeal and its limits
[46]
A
party who loses his or her case does not have an absolute right to appeal.
Indeed, as the Supreme Court reiterated in Kourtessis v. M.N.R., [1993]
2 S.C.R. 53 [Kourtessis] at pages 69-70,
…[a]ppeals are solely
creatures of statute; see R. v. Meltzer, [1989] 1 S.C.R. 1764, at
p. 1773. . . Nowadays, however, this basic proposition tends at times to
be forgotten. Appeals to appellate courts and to the Supreme Court of Canada
have become so established and routine that there is a widespread expectation
that there must be some way to appeal the decision of a court of first
instance. But it remains true that there is no right of appeal on any matter
unless provided for by the relevant legislature.
[47]
As
the Supreme Court explained in its well-known decision in Housen v.
Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, limiting the number
and length of appeals (and their cost) is one of the public policy objectives
that courts must take into account. However, Parliament can pursue the same
objectives by determining the appropriate way to circumscribe the right of
appeal within a statutory scheme.
[48]
There
is every reason to believe that Parliament was pursuing these objectives by limiting
the right of appeal in the context of proceedings under Division 9 of the IRPA.
In fact, the structure of Division 9 suggests that Parliament wanted
the procedure for reviewing the reasonableness of security certificates to be
as brief as possible. Thus, paragraph 83(1)(a) of the IRPA provides
that, in such proceedings, “the judge shall proceed as informally and
expeditiously as the circumstances and considerations of fairness and natural
justice permit”. Consistent with this desire for brevity, Parliament decided,
in section 79 of the IRPA, that “[a]n appeal from the determination [as to
whether a security certificate is reasonable] may be made to the Federal Court
of Appeal only if the judge certifies that a serious question of general
importance is involved and states the question. However, no appeal may be made
from an interlocutory decision in the proceeding.”
[49]
Here,
the Ministers are asking the Court to certify serious questions of general
importance in accordance with section 79 of the IRPA. The proposed
questions are worded as follows:
A.
What
are the criteria to be applied by a designated judge when considering the issue
raised under paragraph 83(1)(d) of the IRPA, namely whether, in the
judge’s opinion, the disclosure of information and other evidence provided by
the Ministers would be injurious to national security or endanger the safety of
any person? More specifically:
i.
How
can the designated judge resolve the inherent tension between his or her duty
to ensure the confidentiality of information and other evidence which, if
disclosed, would be injurious to national security or endanger the safety of
any person in accordance with paragraph 83(1)(d) of the IRPA, and
his or her duty to ensure throughout the proceeding that the permanent resident
or foreign national is provided with a summary of information and other
evidence that enables him or her to be reasonably informed of the case made by
the Ministers in the proceeding under paragraph 83(1)(e) of the IRPA?
ii.
When
a designated judge considers how the inherent tension described in point i.
above can be resolved in order to protect the rights of the permanent resident
or foreign national, what weight must the judge give to the fact that the
procedure established in Division 9 of the IRPA provides that, in paragraph
85.1(2)(b), the special advocate appointed by the judge is responsible
for challenging the relevance, reliability and sufficiency of, and the weight
to be given to, the evidence that is not disclosed to the person named in the
certificate?
1. The criteria to apply to the question
of certification
[50]
Although
the “serious question of general importance” test has not yet been analyzed in
depth in a security certificate proceeding, it has been explained in numerous
cases arising under other provisions of the IRPA. Indeed,
paragraph 74(d) of the IRPA states that “an appeal to the
Federal Court of Appeal may be made only if, in rendering judgment, the judge
certifies that a serious question of general importance is involved and states
the question”.
[51]
It
is no accident that paragraph 74(d) and section 79 of the IRPA employ
the same wording. During the debates on Bill C-3, Bill MacKenzie, Parliamentary
Secretary to the Minister of Public Safety, stated that the limited right of
appeal under the new section 79 of the IRPA “is consistent with the
way other decisions under the Immigration and Refugee Protection Act may
be appealed” (House of Commons Debates, No. 44 (5 February 2008) at
1325). The case law regarding “the way other decisions . . . may be appealed”
is therefore applicable to a security certificate proceeding. Besides, the
parties seem to agree on the criteria applicable to the certification of
questions for the Court of Appeal.
[52]
The
leading case on the concept of “serious question of general importance” is Canada (Minister
of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J.
No. 1637 (QL) [Liyanagamage], where the Federal Court of Appeal explained,
at paragraph 4, that in order for a question to be certified as being a
“serious question of general importance”, the judge must find that it is
one which . . . transcends the
interests of the immediate parties to the litigation and contemplates issues of
broad significance or general application . . . but it must also be one that
is determinative of the appeal. The certification process . . . is neither to
be equated with the reference process established by section 18.3 of the Federal Court
Act, nor is it to be used as a tool to obtain from the Court of Appeal
declaratory judgments on fine questions which need not be decided in order to
dispose of a particular case.
[53]
The
Federal Court of Appeal has recently had the opportunity to re-explain this
test in Varela v. Canada (Citizenship and
Immigration), 2009 FCA 145, [2009] F.C.A. No. 549 (QL).
The Court began by pointing out, at paragraph 28, that it would be
exceptional for more than a single question of general importance to be
dispositive of an appeal. The Court then noted, at paragraph 29, that
“a serious question of general importance arises from the issues in the
case and not from the judge’s reasons”. In addition, the Court reiterated, at
paragraphs 32, 35, 37 and 40, the importance of the requirement that the
question proposed for certification be dispositive of the appeal. Moreover, at
paragraph 42, it overturned the certification of a question to which there was
a clear answer. The Federal Court of Appeal concluded, at paragraph 43, by
noting that “[i]t is a mistake to reason that because all issues on appeal may
be considered once a question is certified, therefore any question that could
be raised on appeal may be certified”. If the question certified by the judge
does not meet the criteria established by Parliament, “the pre‑condition
to the right of appeal has not been met”.
[54]
Moreover,
in order to be of “general application” and “transcend the interests of the
immediate parties to the litigation”, a question must normally pertain to law,
not facts. As Justice Marc Noël (then of the Federal Court
(Trial Division)) noted, “[a] question whose answer turns on the facts is
unlikely to transcend the interests of the immediate parties and hence, will
rarely be of general importance” (Baldizon‑Ortegaray v. Canada (Minister of
Employment and Immigration) (1993), 20 Imm. L.R. (2d) 307,
[1993] F.C.J. No. 440 (QL)).
2. The
parties’ positions
The
Ministers’ position
[55]
The
Ministers submit that the questions they propose for certification under
section 79 of the IRPA meet the criteria for the certification of a
“serious question of general importance” developed by the case law, and, in
particular, in Liyanagamage, above.
[56]
The
Ministers argue that these questions raise concerns that could come up in any security
certificate proceeding and are therefore of general importance. Moreover, this
would be the first appeal in a proceeding involving the review of a security
certificate since Parliament changed the procedure in 2008.
The Ministers reiterate their disagreement with the Court’s disclosure
orders in this matter, and submit that it would be appropriate to have the
Federal Court of Appeal clarify the factors that a judge must take into account
before issuing such orders.
Mr.
Charkaoui’s position
[57]
Mr.
Charkaoui objects to the certification of the questions proposed by the
Ministers, and argues that they are questions of fact that cannot be regarded
as being of “general importance” and therefore do not pass the Liyanagamage
test. In this regard, Mr. Charkaoui relies on Suresh v. Canada (Minister of
Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at paragraph 85,
where the Supreme Court expressed its opinion that “the determination of what
constitutes a ‘danger to the security of Canada’ is highly fact-based”.
[58]
In
addition, Mr. Charkaoui submits that the courts, including the Supreme Court of
Canada, have already defined the criteria applicable to the disclosure of the information
that the Ministers seek to keep confidential. Consequently, he submits that
there is no need to obtain additional explanations from the Federal Court of
Appeal.
The special advocates’
position
[59]
The
special advocates submit that the Ministers’ main question is about the criteria
applicable to the disclosure of information. They point out that these criteria
have already been analyzed in depth by Justice Dawson in Harkat (Re),
2005 FC 393, [2005] F.C.J. No. 481. In this case, the Court
has followed that analysis. The Ministers themselves refer to and accept
it implicitly.
[60]
However,
the special advocates submit that what is motivating the Ministers to petition
the Court of Appeal is not a need to clarify the criteria applicable to the
disclosure of information, but rather their disagreement with the disclosure
orders made by the Court in this matter. The special advocates submit that
this objective does not warrant the certification of questions for the Court of
Appeal. Their argument is twofold.
[61]
First,
the special advocates argue that the Ministers take issue with this Court for
having erred by “balancing” Mr. Charkaoui’s procedural rights with the
requirements of national security. In other words, the Court has weighed
national security and procedural fairness, and, in the process, has permitted
information to be disclosed which would be injurious to national security, based
on a finding that procedural fairness outweighs national security.
[62]
However,
the special advocates submit that the Court has done no such “balancing” and
that, instead of finding that one of these values outweighs the other, the
Court has reconciled them. The examples that the Ministers raise in their
confidential written submissions show that the approach used in the in
camera disclosure process was to neutralize information prejudicial to
national security (or the safety of a person) by summarizing that information
in such a way as to remove from the summary submitted to Mr. Charkaoui any information
the disclosure of which would be injurious to national security.
[63]
This
“neutral summary” approach simultaneously respects all the parameters set by
Parliament in the IRPA. It allows the designated judge to ensure the
confidentiality of sensitive information while ensuring that the person named
in the certificate has enough information throughout the proceeding. It also
enables the special advocates to fulfil their duty, under paragraph 85.1(2)(a)
of the IRPA, to challenge the assertions that the information is confidential.
[64]
This
approach is consistent with the reasoning of the Supreme Court of Canada in Charkaoui
II, above, with respect to disclosure, and with the descriptive criteria
for identifying national security information, provided by Justice Eleanor Dawson
in Harkat, above.
[65]
Second,
the special advocates submit that, to the extent that the Ministers’ problems
with this Court pertain to the contents of some of its disclosure orders, the
objections to those orders raise questions of mixed fact and law. In their
submission, such questions are not “of general importance” and cannot be
certified. A dispute that is solely about the contents of the summaries would
not, in their submission, meet the threshold for a question of general
importance.
3. The
questions proposed by the Ministers
[66]
The
questions proposed by the Ministers are, at first glance, theoretical questions
that could arise in other proceedings under Division 9 of the IRPA. The
Ministers appear to want the Federal Court of Appeal to specify the criteria that
a designated judge must apply when considering requests for disclosure in such
proceedings—criteria that include the significance of the special advocates’
role.
[67]
However,
this first impression is misleading. An analysis of the context in which the questions
were prepared shows that the Ministers are not truly using them to obtain an
explanation of the law governing a request for disclosure in a designated
proceeding.
[68]
Contrary
to what the proposed questions might suggest, the Ministers are not arguing
that the Court has applied the wrong criteria to the request for disclosure in
this matter. Indeed, the Ministers themselves are relying on
Justice Dawson’s “codification” of the criteria in Harkat, above,
at paragraph 89. As the special
advocates argue, the Court has relied on the very same “codification” in this
matter, both in the judgment on the national security standard (Charkaoui (Re),
2009 FC 342, [2009] F.C.J. No. 396 (QL)) and in the disclosure
orders that the Ministers have challenged in their confidential submissions.
[69]
Thus,
upon a reading of the Ministers’ submissions as a whole, it appears that what
they seek to challenge are not the criteria applicable to disclosure requests,
but the Court’s application of those criteria.
[70]
In
essence, what the Ministers are criticizing is the Court’s “balancing” of national
security against procedural fairness. In the Ministers’ submission, no such
“balancing” should take place because national security must outweigh procedural
fairness. The question whether the Court is entitled to weigh the requirements
of national security and procedural fairness was raised in Almrei (Re),
2009 FC 322, [2009] F.C.A. No. 681, at paragraphs 54 to 59. My
colleague Justice Mosley held that, absent a factual matrix, the question
was premature. I would note, however, that Justice Mosley then ordered the
disclosure of the interception summaries and an overview of the surveillance
reports relevant to Mr. Almrei’s file.
[71]
A
question on this subject could have been certified as a general question if
such an exercise had taken place here. But as the special advocates have shown,
by taking the Ministers’ examples in context, the Court has consistently
refused to engage in such a balancing exercise.
[72]
At
this stage, it would be helpful to explain the methodology that the Court
followed before making the disclosure orders with which the Ministers disagree.
The Court’s methodology
with respect to disclosure
[73]
The
statutory and jurisprudential framework in which the Court has operated should
first be explained.
[74]
First,
it must be recalled that, in paragraph 85.1(2)(a) of the IRPA,
Parliament has expressly given the special advocate the role of “challeng[ing]
the Minister’s claim that the disclosure of information or other evidence would
be injurious to national security or endanger the safety of any person”. Thus,
the special advocates played an active role in the disclosure process.
[75]
It
should also be noted that the IRPA confers an important role on the designated
judge, who, under paragraph 83(1)(d), “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”. [Emphasis added.] Thus, each time the
question arises, the designated judge must determine whether the disclosure of
information would be injurious to national security or the safety of any
person.
[76]
Although
their expertise is taken into consideration in this delicate mandate, the judge
owes no deference to the assertions made by CSIS or the Ministers in this
regard; nor does it owe any deference to the special advocates. The decision is
the designated judge’s alone. This is what Parliament decreed.
[77]
Second,
the Supreme Court provided several clarifications regarding the approach that
designated judges must take when deciding applications for the disclosure of
information and other evidence.
[78]
As
I have stated, the Supreme Court of Canada considered the disclosure process in
the context of an examination of the reasonableness of a security certificate
in Charkaoui II, above. At the outset of its analysis, the Supreme
Court stressed, at paragraph 56, that the procedural fairness requirement,
adapted to this context, includes “the disclosure of the evidence” on
which the certificate is based “to the named person, in a manner and
within limits that are consistent with legitimate public safety interests”.
[Emphasis added.]
[79]
The
Court also specified, at paragraph 62, that in order to respect these limits, “[t]he 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”.
[80]
In
other words, the judge’s role, as stated at paragraph 63, is to “filter
the evidence he or she has verified and determine the limits of the access to
which the named person will be entitled at each step of the
process . . . ”.
[81]
It
should be recalled that, in September 2008, the Ministers acknowledged that
they have a duty to disclose the evidence on which the certificate is based. It
should also be recalled that the Assistant Director of CSIS wrote to the Court
that all the evidence that could be disclosed to Mr. Charkaoui without causing
prejudice to national security had already been disclosed.
[82]
With
the statutory and case law framework discussed above in mind, the Court then ordered
that a hearing in camera would have to be held before the
disclosure of any further evidence would be permitted. In keeping with
paragraph 83(1)(d) of the IRPA, ensuring the confidentiality of
information that, if disclosed, would be injurious to national security or
endanger the safety of any person has always been a central preoccupation of
the Court, as the numerous orders, directions and communications issued by the
Court in these proceedings will attest. (The most relevant documents are attached
as Appendix “A”.)
[83]
The
purpose of the hearings in camera was to enable the Court, with the
assistance of the special advocates and the Ministers’ lawyers, to achieve this
objective by means of a process of filtering and of producing neutralized summaries.
[84]
To
facilitate this process, the special advocates prepared disclosure proposals
based on the themes developed by Justice Dawson in Harkat, above: Canadian
and foreign agencies, human sources, interceptions, and investigative
techniques. These proposals were submitted to the Ministers, who could give or
withhold their consent to the disclosure as proposed by the special advocates.
[85]
Hearings
in camera were later held with respect to the evidence that the Ministers
did not agree to disclose. Applying paragraph 83(1)(d) of the IRPA,
quoted above, the Court decided, item by item, whether its disclosure would injure
national security or endanger the safety of any person. Whenever the Court
found that it would, it refused the disclosure of the item, regardless of its
potential importance to Mr. Charkaoui. In doing so, the Court rejected the
special advocates’ proposal that the Court weigh the interests in play and
order the disclosure of information important to Mr. Charkaoui’s defence
despite the risk to national security.
[86]
In
the course of these hearings in camera, following the Ministers’
consent to the disclosure of the content of the interceptions, the Court
sought to ensure that the summaries that the Ministers had provided were in
conformity with the originals.
[87]
The
Court issued certain oral orders intended to achieve this objective. At the
same time, the Court demanded that the Ministers tell Mr. Charkaoui whether the
original evidence had been retained or not, in accordance with paragraph 42 of the decision in Charkaoui II, above, where
it was specified that “the retention and accessibility of this information is
of particular importance where the person named in the certificate and his or
her counsel will often have access only to summaries or truncated versions of
the intelligence . . .”. In the Court’s opinion, this was the logical
consequence of the letter of September 12, 2008, in which the
Ministers acknowledged that certain notes had been retained.
[88]
However, as counsel for the Ministers acknowledged at the public
hearing of September 24, 2009, the Ministers responded to these
orders by withdrawing all the interceptions from the evidence in support of the
certificate.
[89]
The
withdrawal of this evidence, which was crucial to the Ministers’ case, fatally
obstructed the disclosure process. Given the reduced breadth of the information
sources, which prevented the information from being neutralized, it became
difficult to provide Mr. Charkaoui with an accurate summary of the evidence
without disclosing evidence that could be injurious to national security and
endanger the safety of any person.
[90]
This
was the breaking point that resulted in the Court’s issuance of the direction
dated July 9, 2009, in which the parties and the special advocates
were asked for written submissions on the effect of the withdrawal of certain
information tendered in support of the certificate.
Conclusion on
the certification of a question for the Court of Appeal
[91]
Thus,
the true question proposed by the Ministers, which pertains to the legitimacy
of a judicial balancing of national security against procedural fairness as
part of the disclosure of evidence on which a security certificate is based, is
not relevant to these proceedings, because the Court has never engaged in such an
exercise. Thus, the question cannot be determinative of the outcome of a future
appeal, and the Court cannot certify it.
[92]
What
the Ministers are truly seeking to do is to challenge certain disclosure orders
made by this Court. In fact, they themselves assert that their ultimate goal is
to “reinsert” evidence in support of the certificate, albeit without (one has
to assume) having to disclose it in accordance with the Court’s orders. In sum,
as the special advocates point out, the Ministers’ objections invite an item-by-item
re-assessment of the specific summaries to the disclosure of which the
Ministers object. This objection pertains to the facts of this case. It
does not transcend the parties’ interests and is not of general importance. It
raises no question that meets the criteria of section 79 of the IRPA.
[93]
Accordingly,
this Court is bound by the IRPA the decisions of the Federal Court of Appeal, to
refuse to certify the question proposed by the Ministers.
4. Reservation
of rights
[94]
Mr.
Charkaoui is asking that this Court “reserve its rights” so that, after
quashing the certificate, it can rule on an application seeking recognition
that Mr. Charkaoui’s constitutional rights were violated in the course of the
proceedings concerning him, and seeking a remedy under section 24 of the Canadian
Charter of Rights and Freedoms.
[95]
Mr.
Charkaoui is relying on section 24 of the Charter, which provides that
“[a]nyone whose rights or freedoms, as guaranteed by this Charter, have been
infringed or denied may apply to a court of competent jurisdiction to obtain
such remedy as the court considers appropriate and just in the circumstances”.
[96]
Mr.
Charkaoui submits that this Court, being the designated judge assigned to this
matter, is the court of competent jurisdiction, principally because his
application is closely tied to the facts of this case, with which this Court is
familiar.
[97]
Mr.
Charkaoui is relying on the decision in Charkaoui (Re), 2004 FCA 421,
[2004] F.C.J. No. 2060, 247 D.L.R. (4th) 405 (Charkaoui I) where
the Federal Court of Appeal held that a designated judge tasked with examining
the reasonableness of a security certificate has jurisdiction to decide
constitutional questions submitted by way of a motion.
[98]
The
Ministers reject Mr. Charkaoui’s position, and submit that once the certificate
is quashed or declared unreasonable, the designated judge’s jurisdiction is
exhausted. They submit that if Mr. Charkaoui wishes to apply for a
remedy under section 24 of the Charter, he should do so in another proceeding.
[99]
I
agree with the Ministers’ position. Mr. Charkaoui’s application for a remedy
under section 24 of the Charter is a proceeding distinct from the determination
whether the security certificate is reasonable; the decision of the Federal
Court of Appeal in Charkaoui I, above, on which Mr. Charkaoui relies, is
not applicable to this case, and this Court is not necessarily “a court of
competent jurisdiction” within the meaning of the Charter.
[100] At paragraph
57 of its reasons in Charkaoui I, the Federal Court of Appeal held that
“it would work against the best interests of justice to force litigants to
undertake parallel proceedings based on a single decision, a fortiori
when such proceedings are brought in the same Court”.
[101] However, that
reasoning does not apply here. As the Federal Court of Appeal noted at
paragraph 58 of its decision in Charkaoui I, “the appellant, in
challenging his detention, is simply pleading in his defence that some
provisions of the IRPA are unconstitutional. Logically, this defence ought to
be arguable by a motion within the framework of the original proceeding without
the need to initiate a parallel proceeding or to open a new file.” It would
indeed be absurd and contrary to the rule of law and the supremacy of the
Constitution to prevent a person, who is the object of a legal proceeding,
from defending him- or herself within the framework of that same proceeding by
arguing that the law on which the proceeding is based is unconstitutional. In
this case, however, Mr. Charkaoui’s application is not “parallel” to the
examination of the certificate. On the contrary, as he himself acknowledges,
that proceeding is subsequent to the quashing of the certificate.
[102] Since the
certificate has been declared void, the Court’s jurisdiction is exhausted. This
can no longer be considered a “mini-trial within a trial” [emphasis
added] as it was in Charkaoui I (paragraph 59).
[103] As for Mr.
Charkaoui’s argument based on the concept of “court of competent jurisdiction”
within the meaning of subsection 24(1) of the Charter, it cannot succeed,
because a remedy under that provision “must be fitted into the existing scheme
of Canadian legal procedure” in order to be granted (R.
v. Mills, [1986] 1 S.C.R. 863, at page 953). Subsection 24(1) of the
Charter does not have the effect of broadening the jurisdiction of this Court
or any other court. It simply seeks to ensure that there will always be a
competent court to grant a remedy for a Charter breach. If Mr. Charkaoui goes
ahead with his application for a remedy and establishes that his application
has merit, the Federal Court can be such a court.
[104] However,
it is not up to a party seeking relief from the Federal Court to choose the
judge who will decide his or her application, unless of course it is “parallel”
to a matter that is already before the Court—for instance, a counterclaim. Mr.
Charkaoui has the right to seek relief from the Federal Court, but does
not have a right to have the matter decided by the same judge who
examined the certificate. The assignment of files is a prerogative of the
Chief Justice.
CONCLUSION
[105]
Having
devoted a great deal of time and effort to this file, the Court understands and
shares the frustration of those who would have preferred that it end with a
judgment on the merits based on an assessment of all the evidence in support of
the certificate. However, the IRPA gives the Ministers the option to withdraw
that evidence, and the Court, like the Ministers, Mr. Charkaoui, and the
public, must live with the consequences of the Ministers’ exercise of that
option.
[106] Like the
Supreme Court in Kourtessis, above, this Court is aware that “there is a
widespread expectation that there must be some way to appeal the decision of a
court of first instance”, and it is aware that this expectation is even
stronger when the decision from which the appeal is sought is important in the
eyes of the public.
[107] The fact
remains that this Court’s duty is to apply the laws enacted by Parliament. Parliament
has provided, in adopting the IRPA, precise and stringent limits on the right
of appeal. These limits differ, for example, from the criteria that govern
applications for leave to appeal to the Supreme Court under
subsection 40(1) of the Supreme Court Act, R.S.C. 1985,
c. S‑26. Those criteria emphasize the national importance and the
novelty of the questions that an appeal would raise. Under Division 9 of
the IRPA, the Court is required to decline to certify a question unless it is a
“serious question of general importance”.
[108] The Court
agrees that if it had carried out a judicial balancing process and had found
that procedural fairness outweighed national security, the question whether it
was entitled to do so would have been a question of law that would have met the
threshold for certifying a question of general importance.
[109] However, the
Court did not do so. In truth, the disagreement between the Ministers and the
Court pertains solely to case-by-case decisions to the effect that the
disclosure of certain evidence would not, in the Court’s opinion, be injurious
to national security. Parliament has expressly given the designated judge the
responsibility to determine which information must remain confidential.
The Ministers are not complaining that the Court has exceeded this
mandate; rather, they are complaining that the Court erred in fact in carrying
it out.
[110] It is
understandable that a disagreement about the assessment of certain evidence has
caused the Ministers to believe that the Court has allowed individual rights to
prevail over national security requirements. However, this belief is
unfounded.
[111] In this
regard, it is worth recalling the extent to which the concept of national
security is a matter of perspective. There can be grey areas which leave room
for disagreement. The example of the Court’s order that the Ministers undertake
efforts to contact foreign intelligence agencies with a view to obtaining their
consent to the disclosure of evidence is illustrative: the Ministers’ position
on the national security repercussions of such efforts changed from one week to
the next.
[112] In short, the
Court reiterates that the questions proposed by the Ministers are inextricably
bound up with the facts of this case. A disagreement about the implementation
of certain interlocutory orders with which the Ministers disagree does not meet
the threshold established for the certification of a question.
JUDGMENT
THE COURT ORDERS THAT:
1. The certificate issued on
February 22, 2008, attesting that Adil Charkaoui is inadmissible on grounds of
security, is declared void.
2. There is no question to certify
for the Federal Court of Appeal.
“Danièle
Tremblay-Lamer”
APPENDIX “A”
|
Federal Court
|
|
Cour fédérale
|
Date:
20080903
Docket:
DES-4-08
Montréal, Quebec,
September 3, 2008
PRESENT: The Honourable
Madam Justice Tremblay-Lamer
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
IN THE MATTER OF the change to the
conditions
of the named person’s release
AND IN THE MATTER OF Adil Charkaoui
ORDER
UPON
the
preliminary motion brought by Mr. Charkaoui (the named person) for “party-to-party”
disclosure of the information and other evidence related to the security
certificate concerning him under subsection 77(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, as amended;
CONSIDERING
the
parties’ written submissions following the decision in Charkaoui v. Canada (Citizenship
and Immigration), 2008 SCC 38 (Charkaoui 2008);
CONSIDERING
the
public hearing held on September 3, 2008;
CONSIDERING
that,
at this hearing, the parties recognized the principle, established by the
Supreme Court of Canada in Charkaoui 2008, that procedural
fairness includes a duty of disclosure to the named person “in a manner and
within limits that are consistent with legitimate public safety interests”;
CONSIDERING
that,
in this context, the Supreme Court has held that a form of disclosure of all
the evidence that goes beyond the mere summaries provided to the Ministers and the
designated judge is required to protect the named person’s fundamental rights;
CONSIDERING
that
Mr. Joyal, representing the Ministers as their counsel, has asserted that the
government evidence that, if disclosed, would not be injurious to national security
or the safety of any person has been disclosed completely to the named person
and that no further evidence exists that could be disclosed to him;
CONSIDERING
that
he also stated that a letter to this effect would be filed within a few days;
AND
CONSIDERING that Mr. Joyal did not object to the Court’s issuance of an
order requiring that all government evidence that can be disclosed without
endangering national security or the safety of any person be disclosed on a
“party-to-party” basis, but, rather, merely stated that such an order would be
redundant;
AND
CONSIDERING this Court’s opinion that such an order is in the interests
of justice,
THE
COURT ORDERS THAT:
The
motion is granted. Within ten days of this order, the Ministers shall either disclose
on a “party-to-party” basis all relevant evidence or information, whether
favourable or unfavourable to the Ministers’ case, that they can disclose
without injury to national security or danger to the safety of any person, or
they shall confirm that this duty has been met.
“Danièle
Tremblay-Lamer”
Federal Court Cour
fédérale
Date: 20089019
Docket: DES-4-08
Ottawa,
Ontario, September 19, 2008
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
IN THE MATTER OF a certificate
pursuant to subsection 77(1)
of the Immigration and Refugee
Protection Act (IRPA)
AND the referral of this certificate to
the Federal Court
pursuant to subsection 77(1) of the IRPA
AND the appointment of a special advocate
pursuant to paragraph 83(1)(b) of
the IRPA
AND Adil CHARKAOUI
ORDER
UPON
the
Court’s order dated September 3, 2008, which stated that the Ministers were to either
disclose on a “party-to-party” basis all relevant evidence or information,
whether favourable or unfavourable to the Ministers’ case, that they could
disclose without injury to national security or danger to the safety of any
person, or confirm that this duty had been met;
CONSIDERING the
Ministers’ response, set out in the two letters and appendices dated September 11
and September 12, 2008;
CONSIDERING that
paragraph 83(1)(a) of the IRPA provides that, in this proceeding, the
judge shall proceed as informally and expeditiously as the circumstances and
considerations of fairness and natural justice permit;
CONSIDERING
that,
after reading the letters of counsel for the named person and of the special
advocates, dated September 8 and September 12, 2008, and the letter of the
Ministers, dated September 18, 2008, the Court is of the opinion that
the request by counsel for the named person to examine a CSIS representative
with respect to the sufficiency of the government evidence (such as the
protection of human sources) involves information or other evidence which
would, be injurious to national security or endanger the safety of any person
if disclosed within the meaning of in paragraph 83(1)(c) of the IRPA;
AND
CONSIDERING the designated judge’s obligation under paragraph 83(1)(d)
of the IRPA to ensure the confidentiality of such information,
The
Court dismisses the application of counsel for the named person to examine, at
this stage, a CSIS representative with respect to the sufficiency of the
disclosure of the government evidence; this process shall be conducted in
camera by the designated judge with the assistance of the special
advocates, and the Court shall, throughout the proceeding, ensure that the
named person is given a summary of the evidence that contains no elements that
would be injurious to national security or endanger the safety of any person if
disclosed (paragraph 83(1)(e));
CONSIDERING, however,
that the special advocates were unable to meet the timeline set by the Court
for consulting the classified evidence commencing on
September 8, 2008, and that the Court accepts that the timeline
established for the in camera hearings be changed accordingly;
THE
COURT ORDERS THAT:
(1) The
special advocates shall have until October 24, 2008, to study the classified
evidence and prepare for the in camera hearings;
(2) The
in camera hearings shall begin on October 27, 2008, and shall resume the
week of November 3, 2008. At that time, it shall be decided whether a
third week is necessary;
(3) For
the time being, the timeline already set by the Court on June 20, 2008, shall
not be changed with respect to the subsequent stages.
“Tremblay-Lamer
J.”
Judge
|
Federal Court
|
|
Cour fédérale
|
Date: 20081028
Docket: DES-4-08
Ottawa, Ontario, October 28, 2008
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
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 this certificate to the Federal Court
pursuant to subsection 77(1) of the IRPA
AND IN THE MATTER OF Adil Charkaoui
ORDER
HAVING
taken into account the effect of the Supreme
Court of Canada’s decision in Charkaoui v. Canada (Citizenship and
Immigration), 2008 SCC 38 (Charkaoui No. 2) on the
Ministers’ duties of disclosure of information and other evidence related to
Mr. Adil Charkaoui — including drafts, diagrams, recordings and photographs in
the possession of the Canadian Security Intelligence Service (CSIS) — to the
designated judge for the purposes of the ex parte and in camera
proceedings;
HAVING
considered the testimony (on examination and cross-examination) of two CSIS
employees, who described the scope of the disclosure necessary for compliance
with the decision in Charkaoui No. 2, and whose description shall define
what the Ministers and CSIS shall have to disclose under this order but shall
not limit subsequent case‑by‑case motions by the special advocates
during the upcoming in camera hearings;
HAVING considered
the representations made by counsel for the Ministers and by the special
advocates on this point;
HAVING
been informed by one of the CSIS witnesses that it would take six months to
bring together and send this information with a view to complying with Charkaoui
No. 2;
AND
CONSIDERING the request that the Ministers and CSIS
carry out their disclosure obligations under Charkaoui No. 2 as
expeditiously as possible,
THE
COURT ORDERS that:
-The
Ministers and CSIS file, with the designated proceedings section of the Court,
all information and all evidence related to Mr. Adil Charkaoui, including,
among other things, drafts, diagrams, recordings and photographs in the
possession of CSIS.
- The
Ministers shall report to the Court on the progress at an in camera hearing
to be held within six (6) weeks of this order.
“Danièle Tremblay-Lamer”
|
Federal Court
|
|
Cour fédérale
|
Date: 20081205
Docket:
DES-4-08
Ottawa, Ontario, December 5,
2008
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
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 this certificate
to
the Federal Court pursuant to subsection 77(1) of the IRPA
AND
IN THE MATTER OF Adil Charkaoui
AND
THE BARREAU DU QUÉBEC, Intervener
Communication by the Court to Mr. Adil Charkaoui and
his Solicitors of Record
·
Counsel
for the Ministers, and the special advocates, were consulted prior to the
issuance of this communication.
·
In
accordance with its Direction dated November 26, 2008, the Court held an in
camera hearing on December 3, 2008, to hear the report of a witness
concerning the status of the Ministers’ disclosure obligations under the
decision in Charkaoui v. Minister of Citizenship and Immigration and
Solicitor General of Canada, 2008 SCC 38 (Charkaoui II).
·
The
witness explained that the process put in place at the Canadian Security
Intelligence Service (CSIS), in accordance with the witness’s testimony of
October 27, 2008, identified a few thousand documents (and although the
exact number will be confirmed in January 2009, the witness said the range
was from 2,500 to nearly 3,500 documents) that will be subject to a preliminary
review at the first stage of disclosure in accordance with Charkaoui II.
·
The
witness specified that the second stage of disclosure under Charkaoui II
would consist in telling the Court and the special advocates whether originals
of the few thousand documents identified exist.
·
This
second stage must take place at the same time as the process of reviewing,
validating and analyzing the identified documents, and will end in early
April 2009.
·
The
deadline for the first stage of disclosure is January 28, 2009.
·
In
accordance with the Court’s communication dated November 26, 2008,
and with their responsibilities under subsection 85.1(2) of the IRPA, the
special advocates filed their proposals challenging the Minister’s assertions
that the disclosure of certain information or other evidence (in relation to
the paragraphs of the classified Security Intelligence Report, but also from
the CSIS reports which, the Ministers say, support those paragraphs) would be
injurious to national security.
·
Counsel
for the Ministers shall make their position on the proposal known on or before
January 28, 2009.
·
At
the same time as they filed their proposal, the special advocates also argued
that their statutory mandate to challenge the assertions of secrecy was
ongoing, and could be exercised again in the future due to their ever-increasing
mastery of the file, which, it should be added, is entirely consistent with
additional disclosure under Charkaoui II.
·
The
special advocates also thought it important to specify, in relation to the
implementation of that disclosure, that they were aware of future written
submissions and of the arguments regarding the final interpretation of the
phrase “party-to-party” proposed by counsel for the named person.
·
The
special advocates asked that the Court allow some questions of law to be argued
by the parties prior to the in camera hearings that would later be held
with respect to their disclosure proposal.
·
They
formulated the following questions of law:
- What is the
content and validity of the national security standard in the law?
- Who bears
the burden (the evidentiary burden and the burden of persuasion) of proving
that disclosure does or does not pose a danger to national security or the
safety of any person?
- What
standard of proof is associated with this burden?
· In light of
the special advocates’ arguments, the Court allowed their questions of law to
be argued both by them and by the parties, prior to the in camera
hearings that would later be held in connection with the special advocates’
challenges. These questions shall be attached to the other question of law
(“party-to-party disclosure”) for which counsel for the named person must file
their written submissions on January 9, 2009, and for which counsel
for the Ministers must file their written submissions on January 16, 2009.
·
As
the Court was preparing to issue this communication, the special advocates
raised the following new question, with four associated sub-questions:
- Can the
upcoming disclosure be used against the named person?
(a) Under subsection 77(2) of
the IRPA, are the Ministers bound by the allegations in the Security
Information Report and by the information and other evidence from CSIS that
substantiate it, and that was filed with the Court at the same time as the
certificate?
(b) In
this regard, although the CSIS investigation may be ongoing (Charkaoui II,
at paragraph 73), can additional disclosure that alleges no facts subsequent
to the Security Information Report stemming from an ongoing CSIS investigation
be used against the named person?
(c) If
so, must the Court personally verify each document to be disclosed? This is a
question that Justice Dawson appears to have asked herself in issuing her
public Direction dated October 23, 2008, in Jaballah.
(d) If
the upcoming disclosure can be used against the named person, will he be
entitled to a remedy under the Charter to prevent the relief granted to him by
the Supreme Court in Charkaoui II from being turned against him in this
way?
The
special advocates believe it is essential that the named person know his
“legal jeopardy” and have submitted that these questions have a direct
impact on the way in which the Court, the special advocates and the parties use
this additional disclosure in the near future. In this regard, they believe
that these questions are of fundamental importance to the named person.
·
After
being informed of the position of counsel for the Ministers on this subject,
the Court will allow the parties to argue these questions of law prior to the
first stage of the additional disclosure so that everyone will be apprised of
the legal rules that apply to this “new” material.
·
Since the
parties are already dealing with various questions of law, the Court suggests
that this last question and its sub-questions also be included in the written
submissions due from the parties on January 6 and January 19, 2009,
and that they then be the subject of public argument during the week of
January 19, 2009.
“Danièle Tremblay-Lamer”
Judge
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Federal Court
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Cour fédérale
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Date: 20081210
Docket: DES-4-08
Montréal, Quebec, December 10, 2008
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
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 THE BARREAU DU QUÉBEC, Intervener
ORDER
After holding an in camera hearing, ex
parte the named person and his counsel, in which the witness Jean-Paul was
heard, and after hearing the oral arguments of counsel for the Ministers and the
special advocates, the Court is satisfied that the disclosure of the witness’s
identity by name would endanger his safety (paragraph 83(1)(d) of
the IRPA). Consequently, the Court shall proceed by way of public hearing,
commencing with the testimony of the witness Jean-Paul.
Since the question is a
question of mixed fact and law and is closely bound up with the confidential
evidence, the Court determined that it was not possible, in this particular
instance, for it to be argued in public.
“Danièle Tremblay-Lamer”
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Federal Court
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Cour fédérale
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Date:
20090123
Docket:
DES-4-08
Montréal, Quebec, January 23,
2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
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 THE BARREAU DU QUÉBEC,
Intervener
COMMUNICATION TO MR. ADIL
CHARKAOUI AND HIS SOLICITORS OF RECORD
At the public hearing of
January 22, 2009, Ms. Doyon asked whether both sides have made a case
supported by evidence—that is to say, whether counsel for the Ministers have
provided evidence that makes the government’s case, and whether the special
advocates have provided evidence that makes a case against the government. The
Court considers it important to answer that, at this stage, there is no evidence
against the government’s case.
The Court also considers it important to
provide the following additional information:
Certain
documents may have been filed by the special advocates at hearings held in the
absence of Mr. Charkaoui and his counsel in support of their role to protect
Mr. Charkaoui’s interests, in accordance with section 85.2 of the Immigration
and Refugee Protection Act, during any part of the proceeding that is held in
the absence of the public and of Mr. Charkaoui and his counsel, as well as
at a hearing held ex parte in the absence of the Ministers’ counsel on
January 12, 2009.
To the extent
that the disclosure of such document(s) would not injure national security or
endanger public safety, the document(s) will be disclosed as part of the
upcoming disclosure.
Moreover,
when the Ministers have fully adduced their evidence (Phase II), the law
enables the special advocate to exercise, with the judge’s authorization, any
power necessary to protect the interests of the named person. The special
advocates could ask the Court for leave to present evidence against the
government’s case, in accordance with paragraph 85.2(c) of the Immigration
and Refugee Protection Act.
“Danièle Tremblay-Lamer”
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Federal Court
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Cour fédérale
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Date:
20090227
Docket:
DES-4-08
Ottawa, Ontario,
February 27, 2009
Present: The Honourable
Madam Justice Tremblay-Lamer
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
COMMUNICATION TO ADIL
CHARKAOUI
AND HIS SOLICITORS OF RECORD
On February
18, 2009, the Court registry received the copy of the disclosure ordered in Charkaoui
v. Canada (Citizenship
and Immigration), 2008 SCC 38 (Charkaoui II). The computer medium
submitted included approximately 3,000 documents.
The Court wishes to inform the
person concerned and his solicitors that it appears from the letter from the
Ministers attached to the disclosure that the copy provided to the special
advocates has been redacted, while the version provided to the Court simply
highlights the passages expunged from the version provided to the special
advocates, so that the passages in question can still be read.
The reasons advanced by the
Ministers to justify the redacting of the copy provided to the special
advocates are:
(a) investigations,
whether underway or not, that do not relate to the person concerned;
(b) identification
of human sources;
(c) identification
of employees of the Canadian Security Intelligence Service (CSIS);
(d) matters/subjects/individuals/groups
of interest to foreign agencies that do not relate to the person concerned;
(e) solicitor-client
privilege; and
(f) Cabinet
confidences.
The Court attaches hereto a
letter from the special advocates dated February 25, 2009. You will
note, in the second salient point on page 2 of the letter, that the special
advocates intend to request de‑redacting for their benefit and that their
requests be heard in camera in the event that the Ministers refuse.
The Court wished to bring this
information to the attention of the person concerned and his solicitors so that
they would also have an opportunity to present legal arguments regarding the
rules that apply in determining the requests to be made by the special
advocates, in camera, regarding the documents covered by disclosure
under Charkaoui II, to the extent possible, during the public argument
on questions of law to take place on March 10 and 11.
The Court also issued a written
direction to the Ministers on February 24, 2009, asking whether they were
prepared to consent to disclosure of the content of any intercepted
communication to which the person concerned was a party and any surveillance
report concerning him. A similar approach has been taken in other cases.
As well, after considering the
first proposal for disclosure made by the special advocates and the Ministers’
response, and in order to make a ruling regarding possible disclosure to the
person concerned, the Court also ordered that the Ministers immediately obtain
the approvals that seem to be required in relation to information originating
from the domestic agencies involved, and one foreign agency, which they said
they were prepared to disclose, subject to approval from the foreign agency in
question.
Danièle Tremblay-Lamer
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Federal Court
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Cour fédérale
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Date:
20090318
Docket:
DES-4-08
Ottawa, Ontario, March 18,
2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
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 THE BARREAU DU QUÉBEC, Intervener
ORDER
After considering
the special advocates’ first disclosure proposal and the Ministers’ response
thereto, the Court issues the following order:
1)
THE
COURT ORDERS the Ministers, in accordance with what they proposed in
their response to the special advocates’ first proposal, to act on their
proposal immediately each time they have said that they are ready to
issue a declaration, a general statement or a summary and/or to disclose
information. The Court wishes to note that the declaration, statement or
summary must reflect the information stated in the Security Intelligence
Report. No change shall be justified unless it is for national security
considerations, or considerations related to the safety of a person.
“Danièle Tremblay-Lamer”
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Federal Court
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Cour fédérale
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Date:
20090616
Docket:
DES-4-08
Ottawa, Ontario,
June 16, 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 THE BARREAU DU QUÉBEC, Intervener
COMMUNICATION TO MR. ADIL CHARKAOUI AND HIS SOLICITORS
OF RECORD
The Court is hereby forwarding you a
summary of the hearing held in camera on June 11, 2009.
During that hearing, the Ministers called a witness to explain their
change of position having regard to the refusal to return to the foreign
agencies to ask for the reservation to be lifted.
After hearing the witness, the Court finds
that a significant part of the witness’s testimony contains no elements that
put national security at risk. This has made it possible to prepare
a sufficiently detailed summary of the testimony while excluding
confidential elements.
“Danièle Tremblay-Lamer”
Federal Court
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Cour fédérale
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Date: 20090618
Docket: DES-4-08
Ottawa, Ontario, June 18,
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 THE BARREAU DU QUÉBEC, Intervener
COMMUNICATION TO MR. ADIL
CHARKAOUI AND HIS SOLICITORS OF RECORD
The
Court, deeming that there is no national security element, is forwarding you a
copy of the recently issued correspondence.
The
Court also hereby informs you that the in camera hearings on the
disclosure proposals, including the Charkaoui II documents that fall
under the third party rule, will take place on July 7 and 8, 2009.
“Danièle Tremblay-Lamer”
Judge
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Federal Court
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Cour fédérale
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Date:
20090720
Docket: DES-4-08
Ottawa, Ontario,
July 20, 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 THE BARREAU DU QUÉBEC, Intervener
DIRECTION
In
a top secret letter dated July 8, 2009, the Ministers notified the
Court that they were withdrawing more information and evidence from the
Security Information Report concerning Adil Charkaoui (DES-4-08), in
addition to withdrawing the interceptions. The reason that the Ministers gave
for doing this is harm to national security, and, in particular, the human
sources program. This withdrawal took place after orders were issued on May 25,
26 and 27, 2009, and on June 1, 2009, directing the public disclosure of
certain evidence.
The
Court refuses to change the content of the orders because it made its decision
following lengthy argument in camera with respect to the disclosure of
information on which the certificate is based. The Court is satisfied that the
information in question has been neutralized and does not constitute
information or other evidence that is injurious to national security or
endangers the safety of any person.
Before
permitting the disclosure of the new summary to Mr. Charkaoui and his counsel,
the Court asks that the Ministers confirm, no later than July 22 at noon,
that the withdrawal of new evidence does not affect the proposed summary.
“Danièle Tremblay-Lamer”
Judge
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Federal Court
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Cour fédérale
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Date: 20090805
Docket: DES-4-08
Ottawa,
Ontario, August 5, 2009
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
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 THE BARREAU DU QUÉBEC, Intervener
DIRECTION
First of all, the Court wishes to clear any confusion by
specifying that the disclosure orders that this Court issued orally in
April and May 2009 were issued in the context of a set of disclosure
proposals made by the special advocates, and were therefore not limited to the
information and other evidence derived from the interceptions.
One illustration of this, and it should be sufficient, is
all the analysis that this Court requested with regard to the legal consequences
of the Ministers’ initial refusal to seek the lifting of the third party rule.
The Court ruled on each disclosure proposal when discordance
remained between the Ministers’ assertions that the disclosure of the
information would harm national security or the safety of any person, and the
special advocates’ assertions to the contrary. These orders led to the
withdrawal of certain information because the Ministers, contrary to the
opinion of the Court, believed that their disclosure would be injurious to
national security or would endanger the safety of one or more persons. Whatever
may have been stated at these hearings has already been the subject of
communications issued by the Court.
Secondly, the Court wishes to repeat that, after the parties
and special advocates make their written submissions, public and in camera
hearings will be scheduled for September, after the summer break. (See the
direction of this Court dated July 9, 2009.)
However, in light of the Ministers’ written submissions that
their evidence does not meet the burden of proving that the certificate issued
against the named person is reasonable, and in light of their request that this
Court make a decision about this question (and about the certification of
certain questions for the Court of Appeal); and
In light of the named person’s application for an
unconditional release, the public hearings (and perhaps the hearings in
camera) shall pertain to all these elements, and, in particular, to the
following:
- Is the Ministers’ conclusion a
change of circumstances within the meaning of section 82.1 of the
IRPA, resulting in the lifting of the named person’s conditions of
detention without further delay?
- In view of the
Ministers’ admission that the evidence is not sufficient to meet their
burden of proof under the IRPA, is it appropriate for the Court to make a
decision about the reasonableness of the certificate, or should it not
simply be revoked by the Ministers without further ado? (See the
judgment of Justice Mitting of the England and Wales High Court of
Justice, Queen’s Bench Division, Administrative Court, in the matter of the
Prevention of Terrorism Act 2005: Secretary of State for the
Home Department v. AN, [2009] EWHC 1966 (Admin.)
(31 July 2009): http://www.bailii.org/ew/cases/EWHC/Admin/2009/1966.html.)
- If the Court were to
make a decision with respect to the reasonableness of the certificate and
quash it, should it certify questions for the Court of Appeal? If so,
which questions should it certify?
Once the Court is apprised of the availability of counsel for
the public hearings (and possibly hearings in camera), it will establish
deadlines for the filing of further written submissions in response to these
questions.
“Danièle Tremblay-Lamer”
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