Date: 20081222
Docket: DES-5-08
Citation: 2009
FC 204
Ottawa, Ontario, December 22,
2008
PRESENT: The Honourable Mr. Justice Simon Noël
BEFORE THE COURT:
IN THE MATTER OF a certificate
signed pursuant to subsection 77(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c.27, (the "Act");
IN THE MATTER OF the referral of that
certificate to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND
IN THE MATTER OF Mohamed HARKAT
EXPURGATED PUBLIC REASONS FOR
JUDGMENT AND JUDGMENT
[1] On February 22, 2008, a certificate
naming Mohamed Harkat as a person inadmissible to Canada on grounds of national security was referred to the Federal
Court pursuant to section 77 of the Immigration and Refugee Protection Act,
S.C. 2001, c.27 (IRPA).
[2] The Chief Justice designated me to hear
this proceeding on May 6,
2008. Orders establishing
a schedule for the determination of the reasonableness of the certificate and
appointing two special advocates to represent the interests of Mr. Harkat
during the closed hearings
were issued on June 4, 2008.
[3] To date, the Court has heard the
submissions of the Ministers and the Special Advocates on the extent of
disclosure required by Charkaoui v. Canada (Citizenship and Immigration) 2008
SCC 38 (Charkaoui #2) and, on September 24, 2008, ordered that the
Ministers comply with their obligation to disclose. The Court has not yet
received full disclosure in compliance with Charkaoui #2.
[4] Two weeks of closed hearings were held in
September, 2008 and public hearings were conducted in October and November
2008. During these hearings, the Ministers presented their evidence in support
of the reasonableness of the certificate and the danger associated with Mr.
Harkat. The Court has also heard evidence and oral submissions in December
2008 in relation to Mr. Harkat’s request to review the conditions of his
release.
[5] The evidence currently before this Court
discloses that […] human source(s) provided information to the Service in
relation to the intelligence investigation into Mr. Harkat’s activities. No
determination of the reliability or weight to be given to this information has
been made. Nothing in these reasons should be interpreted as giving any
probative value to any of the reports originating from human sources.
[6] In September, 2008, during a closed hearing,
the Special Advocates sought an order of this Court compelling the Ministers to
produce for cross-examination covert human intelligence source(s) who provided
information about Mr. Harkat to the Canadian Security and Intelligence Service
(the “Service”). They propose to conduct their cross-examination during a closed
hearing before this Court.
[7] They are also requesting that they be
granted an opportunity to interview the human source(s) prior to any evidence
being given during a closed hearing.
[8] The Special Advocates wish to test the
credibility of the human source(s) and possibly corroborate future explanations
which may be testified to by Mr. Harkat in relation to his motives for coming
to Canada in the mid-1990s. They provide no further
justification to the Court beyond this general objective.
[9] The Ministers note that this is the first
time that a request has been made for human source(s) to testify in the context
of a security certificate proceeding. It is their position that the police
informer privilege is applicable to these proceedings and that no “innocence at
stake” exception exists in the context of a non-criminal proceeding pursuant to
IRPA. The closed nature of the proceeding does not, according to the
Ministers, render inoperative legal privileges. Such privileges are applicable
in the absence of clear statutory language suspending them; see, for example, Canada
(Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44 (Blood
Tribe), at para.11.
[10]
The Special Advocates
acknowledge that the police informer privilege would ordinarily be applicable
to covert human intelligence sources recruited by the Service in public
proceedings. However, they assert that the privilege has no application to the
closed portion of these proceedings.
[11]
Should the Court find
that the police informer privilege applies to the closed portion of these
proceedings, the Special Advocates argue that they have established that the information
they seek to compel falls within the “innocence at stake” exception as set out
in the criminal jurisprudence.
[12]
The Ministers take
the position that the police informer privilege is applicable to human sources
of the Service and is absolute in the context of this certificate proceeding.
The Scope of the Confidential
Police Informer Privilege
[13]
In a leading case on
the informer privilege, R. v. Leipert, [1997] 1 S.C.R. 281 (Leipert),
the Supreme Court stated that “informer privilege is an ancient and hallowed
protection which plays a vital role in law enforcement.” The receipt of
information about criminal activity from confidential police informants is of
“fundamental importance to the workings of the criminal justice system.” (Leipert
at p. 391). However, it is clear that a police informant is at “…risk of
retribution from those involved in crime” (Leipert). Thus, the police
informer privilege plays a two-fold role: to protect the confidential police
informer and, in doing so, encourage others to come forward with essential
information which will aid in the protection of the public at large.
[14]
The privilege is a
“rule of public policy that is not a matter of discretion” (Canada (Solicitor General) v. Royal Commission (Health Records),
[1981] 2 S.C.R. 494 (“Health Records”)). See also Bisaillon v.
Keable [1983] 2 S.C.R. 60 (“Bisaillon”) at p. 93; and Marks v.
Beyfus (1890), 25 Q.B.D. 494 at 498). Once it is properly invoked, the
Court is obligated to protect the police informer’s identity. Indeed, even
where the Crown does not invoke the privilege, the Court is under a duty to
apply it (Bisaillon at p.98). The only exception to this rule of law is
where a person’s innocence is at stake. In Marks v. Beyfus, Lord Esher
clearly set out the “innocence at stake” exception:
I do not say it is a rule which can never
be departed from; if upon the trial of a prisoner the judge should be of the
opinion that the disclosure of the name of the informant is necessary or right
in order to shew the prisoner’s innocence, then one public policy is in
conflict with another public policy, and that which says that an innocent man
is not to be condemned when his innocence can be proved is the policy that must
prevail.
[15]
The innocence at
stake exception to the informer privilege is only applicable in a criminal
proceeding and is based on the principle that the “…right of an individual
accused to establish his or her innocence by raising a reasonable doubt as to
guilt [is] paramount.” (R. v. Scott, (1990) 61 C.C.C. (3d) 300
(S.C.C.) (Scott) at p. 315).
[16]
The courts have given
precision to the “innocence at stake” exception. Where the police informer is
a material witness to the crime or acts as an agent provocateur the privilege
will be set aside (Scott at p. 315; see also Named Person v.
Vancouver Sun, 2007 SCC 43 (Named Person) at para. 29). In Scott,
the Supreme Court also noted that “…a third exception may exist where the
accused seeks to establish that the search was not undertaken on reasonable
grounds and therefore contravened the provisions of s. 8 of the Charter” (Scott
p. 315).
[17]
Police informer
privilege is absolute in a civil context, even where the identity of the
informant is sought in the context of a public inquiry into police wrong-doing
(see Health Records at p. 539 Named Person at para. 27 and Scott
at p. 315).
Does the police informer privilege apply
in these proceedings?
[18]
In the cases relied
on by the Special Advocates and by the Ministers, the confidential informant
whose identity was at issue was a police informer. The covert human
intelligence source(s) at issue in this motion for production are recruited by
a civilian intelligence agency; they are not “police” informers providing
information to police in the course of their duties. Moreover, a certificate
proceeding is not a criminal proceeding. Covert human intelligence sources are
individuals who have been promised confidentiality in return for their
assistance in gathering information relating to the national security concerns
of Canada. Thus the common law privilege
protecting police informers and the innocence at stake exception to that
privilege are not applicable per se to the covert human intelligence
sources recruited by the Service.
[19]
However, a form of
police informer privilege has been extended, by way of analogy in the
incremental tradition of the common law, to statements made by informants to
the National Parole Board (Rice v. Canada (National Parole Board),
([1985] F.C.J. No. 600), as well as statements made by confidential informants
to child welfare authorities (D. v. National Society for the Prevention of
Cruelty to Children, [1978] AC 171 (D. v. N.S.P.C.C.)) and gambling
regulators in England (Reg. v. Lewes Justices ex parte the Home
Secretary [1973] A.C. 388). The courts have recognized that the public
policy justifications for extending an analogous privilege to informants in the
prison system or in the child protection context may be sufficient to override
“…the public interest that information which might assist a judicial tribunal
to ascertain facts relevant to an issue upon which it is required to adjudicate
should be withheld from that tribunal.” (D. v. N.S.P.C.C. per
Lord Diplock).
[20]
In Wigmore on
Evidence, the author sets out the four fundamental conditions which must be
met before a common law privilege is extended or recognized:
1)
The communications
must originate in a confidence that they will not be disclosed.
2)
This element of
confidentiality must be essential to the full and satisfactory maintenance of
the relation between the parties.
3)
The relation must be
one which in the opinion of the community ought to be sedulously fostered.
4)
The injury that would
inure to the relation by the disclosure of the communication must be greater
than the benefit thereby gained for the correct disposal of the litigation.
[cited in Imwinkelried, E.J. The New Wigmore: Evidentiary Privileges
(New York: Aspen Law & Business, 2002) at 3.2.3).
[21]
Similarly, in
Sopinka’s The Law of Evidence in Canada the authors note:
Where the court is asked to extend the
rule beyond the traditional parameters, a careful inquiry into the public
policy aspects is required. Society’s need to foster the informal relationship
must be clearly evidenced (J. Sopinka, S. Lederman & A. Bryant, The Law
of Evidence in Canada, (2ed.) (Butterworths: Toronto, 1999) at p. 883).
[22]
The policy
justifications underlying the existence of the privilege in the law enforcement
context and, the extension of the privilege to parole board and child
protection matters, apply with equal or greater force to the relationship
between covert human intelligence sources and the Service (Rice, supra,
at paras. 16-17 and D. v. N.S.P.C.C. supra at p.
4).
[23]
As noted in Canada
(Solicitor General) v. Ontario (Royal Commission of Inquiry into the Confidentiality
of Health Records), supra the Supreme Court perceived an even
“stronger” police informer privilege in national security matters than in
criminal investigations (notably, in this case, the informants were police
informers who provided information to the police in the course of their
investigation). Justice Martland writing for a majority of the Court observed
at page 537:
The foundation for the existence of [the
informer rule], which evolved in respect of the field of criminal
investigation, is even stronger in relation to the function of the police in
protecting national security. A large number of the instances in which, in the
present case, it was sought to obtain from the police the names of their
informants concerned police investigation into potential violence against these
officers of the state, including heads of state. These investigations were
admittedly proper police functions. The rule of law which protects against the
disclosure of informants in the police investigation of crime has ever greater
justification in relation to the protection of national security against
violence and terrorism.
[24]
Covert human
intelligence sources are vital to the functioning of intelligence agencies and
to the national security of Canada.[1]
They are not limited to passive intelligence gathering as technical methods
are, but rather are able to actively solicit and obtain information that would
otherwise be inaccessible. They do so often at great risk to themselves and to
their families. Fundamentally, information provided by covert human
intelligence sources allows intelligence agencies to make more accurate and
timely assessments of threats to the security of Canada.
As such, they are essential national security assets.[2]
[25]
The Commission of
Inquiry Concerning Certain Activities of the Royal Mounted Canadian Police (the
McDonald Commission) observed at page 536 of volume 1 of its Second Report,
“Freedom and Security under the Law” (Ottawa: 1981) that:
58. The use of human sources and
undercover members, collectively referred to by us as “undercover operatives”,
is the most established method of collecting information about threats to
security. Despite the technological revolution which has provided a variety of
technical alternatives as a means of penetrating secretive organizations, the
undercover operative is likely to remain an extremely important source of
information to a security intelligence agency.
59. An undercover operative can be a much
more penetrating means of collecting information than any technical device. A
technical source (…) is essentially a passive instrument which can record only
what is said or done at one particular place. In contrast, undercover
operatives – human spies – have frequently penetrated the innermost circles of
groups, probed the intentions of their leading members (…)
[26]
To fulfill their
role, sources must remain anonymous and fully protected; at no time can they be
identified explicitly or implicitly by the agencies. To this end, upon
recruitment, the Service gives a source a guarantee of confidentiality […].
Access to information about covert human intelligence sources is severely
restricted and compartmentalized in an area that is separate from other Service
information.[3]
[27]
Confidentiality
ensures the safety of covert human intelligence sources who often place
themselves in harms way to fulfill the investigatory objectives of the
Service. Given the nature of the tasks performed by covert human intelligence
sources, confidentiality is required to protect them from reprisals or
ostracization from their community.[4]
[28]
If the Service is
unable to protect the identity of its sources or is required to produce them in
the context of a Court proceeding (even one that is closed to the public), the
number of individuals willing to come forward with information would be
reduced. Indeed, there is evidence before this Court that the recruitment of
human sources would be harmed if the guarantees of confidentiality given by the
Service were not upheld by this Court.[5]
I accept this evidence.
[29]
Finally, it is important
to note that, unlike police or criminal investigations, intelligence
investigations do not end with the filing of criminal charges or the
commencement of court proceedings. Intelligence investigations can be of a
short-term nature, but they may also extend over longer periods of time – even
decades. Investigations can be suspended, just as they can be reactivated. How
an intelligence investigation unfolds hinges on many factors, including the
purpose of the investigation and the persistence of threats associated with the
subjects of investigation. […] Evidence before the Court establishes that
identifying a source to a Special Advocate or requiring a source to testify in
a closed proceeding, even anonymously, will almost certainly end the Service’s
relationship with that source.[6]
[30]
Parliament itself has
spoken on the importance of protecting human sources and covert operatives.
Subsection 18(1) of the Canadian Security Intelligence Service Act, R.S.
1985, c. C-23, (CSIS Act) provides:
|
18.(1)
Subject to subsection (2), no person shall disclose any information that the
person obtained or to which the person had access in the course of the
performance by that person of duties and functions under this Act or the
participation by that person in the administration or enforcement of this Act
and from which the identity of
(a)
any other person who is or was a confidential source of information or
assistance to the Service, or
(b)
any person who is or was an employee engaged in covert operational activities
of the Service can be inferred.
(…)
|
18. (1) Sous réserve du paragraphe
(2), nul ne peut communiquer des informations qu’il a acquises ou auxquelles
il avait accès dans l’exercice des fonctions qui lui sont conférées en vertu
de la présente loi ou lors de sa participation à l’exécution ou au contrôle
d’application de cette loi et qui permettraient de découvrir l’identité :
a) d’une autre personne qui fournit ou a fourni au Service des
informations ou une aide à titre confidentiel;
b) d’une personne qui est ou était un employé occupé à des
activités opérationnelles cachées du Service.
(…)
|
[31]
I conclude, on the
evidence before me, that the relationship between the Service and a covert
human intelligence source meets the four conditions enumerated by Wigmore in
his treatise and should therefore be protected. Covert human intelligence
sources are given absolute promises that there identity will be protected.
These assurances not only foster long-term, effective relationships with the
sources themselves, but increase, exponentially, the chances for success of
future intelligence investigations. Confidentiality guarantees are essential
to the Service’s ability to fulfill its legislative mandate to protect the
national security of Canada while protecting the source from
retribution. It also encourages others to come forward with essential
information that would not otherwise be available to the Service. The
relationship between the Service and the source as well as the identity of the
source is protected by a covert human intelligence source privilege.
Is there an exception to the immunity
provided by a covert human intelligence source privilege?
[32]
In the Charkaoui
decisions (Charkaoui v. Canada (Citizenship and Immigration), [2007] 1
S.C.R. 350 (Charkaoui #1) and Charkaoui #2, supra) the
Supreme Court has found that the seriousness of the potential impact on the
liberty and security interests of the named person engages section 7 of the
Canadian Charter of Rights and Freedoms (Charter) and the right to
procedural fairness set out therein. Accordingly, this Court must consider
whether, in the circumstance of this proceeding, the principles of procedural
fairness set out in s.7 mandate an exception, however limited and constrained,
to the covert human intelligence source privilege.
[33]
Procedural fairness
is to be determined in the context of this proceeding, which is a determination
of the reasonableness of a certificate referred to the Federal Court pursuant
to subsection 77(2) IRPA. A finding of reasonableness would constitute
conclusive proof that Mr. Harkat is inadmissible to Canada on the grounds of
national security, pursuant to one or more of paragraphs 34(1) (c), (d), and
(f) of IRPA, and would have the effect of a removal order. That
removal order could be subject to a further proceeding in which the Minister
would be asked to assess the risk that the named person would be subjected
torture or other mistreatment if he was returned to his country of origin or
some other country (see procedures for pre-removal risk assessment at section
112 IRPA).
[34]
The
person named in a certificate is in jeopardy of losing his status in Canada and being deported, and
is subject to detention until such time as they leave Canada or are released by
Order of this Court. The Supreme Court noted that, given the exception set out
by it in Suresh v. Canada (Citizenship and Immigration), [2002] 1 S.C.R.
3, there is a possibility that the circumstances may be exceptional enough to
warrant the deportation of the person named in certificate to a country in
which the security of that person is in question. Recently, in the 2008 Symons
Lecture, Chief Justice McLachlin noted that the Supreme Court has not yet
considered what might constitute “exceptional circumstances”, but continued to
say that these would “necessarily be very rare.” (p.29 Symons Lecture notes)
[35]
In light of both Charkaoui
decisions of the Supreme Court, a person named in a security certificate is
entitled to an elevated level of procedural fairness such that, where
ordinarily an informer privilege analogous to the “police informer privilege”
would be absolute, the engagement of section 7 may justify an exception to the
privilege. I find that this exception will only be applicable in the closed
portion of the proceeding where a Special Advocate has established that he or
she has a “need to know” the identity of a covert human intelligence source to
prevent a flagrant denial of procedural fairness which would bring the
administration of justice into disrepute.
[36]
This exception is
based on the “need to know” rule which is a fundamental principle of the
intelligence world. It is reflected in both domestic and international
legislation and policies. Fundamentally, classified information is protected
by compartmentalization; the integrity of which is maintained by the “need to
know” principle[7].
Only those with a direct operational requirement are given access to classified
information - even those cleared to the highest level. The following
paragraphs provide a brief, and limited, overview of some of the instances in
which the “need to know” principle has been recognized, referred to, and relied
on.
[37]
On February 1, 2002,
the Treasury Board Secretariat issued a “Government Security Policy” which is
designed to “protect employees, preserve the confidentiality, integrity,
availability and value of assets…”. Paragraph 10.8 deals with “access
limitations” and sets out the need to know principle: “Departments must limit
access to classified and protected information and other assets to those
individuals who have a need to know the information…”.
[38]
In R. c. Treu,
[1979] J.Q. no. 202, the Quebec Court of Appeal noted that a security system is
based on two principles: “l’idée d’accessibilité en faveur seulement des
personnes habilitées (cleared persons) et ayant besoin de les connaître (need
to know).” (para 57) References to these principles have also been made by the
Federal Court of Appeal in Canada (Attorney General) v. Ribic,
[2003] F.C.J. No. 1964 at para. 6, and by the Ontario
Court of Appeal in R. v. Ribic, 2008 ONCA 790.
[39]
A similar principle
is found in the United
Kingdom Regulation of Investigatory
Powers Act 2000 at paragraph 29(5)(e) which requires that:
(e) records maintained by the
relevant investigating authority that disclose the identity of the source will
not be available to persons except to the extent that there is a need for access
to them to be made available to those persons
[40]
Part 4 of Executive
Order 12356 sets out the classification and access policies of the executive
branch of the United States
of America as follows:
Sec. 4.1 General Restrictions on Access.
(a) A person is eligible for access to classified information
provided that a determination of trustworthiness has been made by agency heads
or designated officials and provided that such access is essential to the
accomplishment of lawful and authorized Government purposes. [Emphasis
added]
[41]
In New Zealand, the government’s security policy is set
out in a publication entitled “Security in the Government Sector” which was
published by the Department of the Prime Minister and Cabinet in 2002. The
authors of the New Zealand publication acknowledge, in the preface, that some
of the manual content is “based on or drawn from similar overseas publications
– in particular, Australia’s “Commonwealth Protective Security
Manual”, and the United
Kingdom’s “Manual of protective
Security.” Access is restricted to both of these manuals. Chapter 4 of the
Manual is entitled “Control of Classified Material”. This chapter sets out the
need-to-know principle as follows:
4.
Fundamental to all
aspects of security is that the only people who received classified information
are those who need it to complete the business in hand. Thus, employees
receive access to classified information:
·
only because they
“need to know” it to complete their duties
·
not because it would
be convenient for them to know
·
not by virtue of
their status, position, rank or level of authorized access.
5.
Adherence to the need
to know principle helps protect the employees as well as the information.
6.
The need to know
principle applies both within an organization and when dealing with people
outside it.
[42]
The very manner in
which the Service handles human sources provides an illustration of the “need
to know” principle in play.
[43]
Evidence heard in closed
hearings establishes that […] files concerning human sources are handled by a
separate division within the Service which is contained in a highly protected
area within an already secure environment.[8]
[…]. This assists the Service in fulfilling its duty to protect the human
source and allows the Service to control and assure the quality of the
information provided to them by that source. The greater the pool of persons
given access to the identity of a human source, the more difficult it becomes
to prevent inadvertent disclosures and to investigate security breaches.[9] Widening the number of
people with access to the identity of a human source puts both the personal
safety of the source and the national security of Canada into jeopardy.
[44]
Those who work in the
Human Source Directorate are required to meet certain security standards
greater than those imposed on most other Service employees. […]
[45]
[…] Communications
about human sources, more so than other classified information, are on a
need-to-know basis only.[10]
Documents referring to sources […] must be classified […]. Indeed, there is
evidence before the Court that even the Director of the division would not
normally have access to the identities of the human sources except where he has
an operational need to know that information.[11]
[46]
A “need to know” this
closely protected information, given the concerns of individual safety and
operational control, 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. In defining when such a
threshold will be met, I refer to the words of the European Court of Human
Rights which characterized the use of the term “flagrant” as denoting “a breach
so fundamental as to amount to a nullification, or destruction of the very
essence” of the right to procedural fairness. (See EM (Lebanon) v. UK
Home Sec’y (2008), citing Mamatkulov and Askarov v. Turkey (2005) 41 EHRR 494 at 537-539). Such a need to know may
arise where, in the judge’s opinion, there is no other way to test the
reliability of critical information provided by a covert human intelligence
source except by way of cross-examination.
[47]
This exception to the
covert human intelligence source privilege is also consistent with the intent
of Parliament set out in subsection 18(2) of the CSIS Act, which
provides for limited disclosure of information concerning human sources and
covert operatives.
[48]
The covert human
intelligence source privilege, and its necessarily limited exception, is
designed to balance the rights of individuals with those of the collective. A
similar concern was expressed by Justice Iacobucci, regarding the need: “…to do
everything possible to protect our country” and the need to do so “…with
genuine respect for the fundamental rights and freedoms of Canadian citizens.”
(Internal Inquiry into the Actions of Canadian Officials in Relation to
Abdullah Almalki, Ahmed Abou-Elmaati and Muayyed Nureddin (Ottawa: Public Works and Government Services Canada, 2008) at 5.
Impact of the closed nature of the
proceeding and the Special Advocate
[49]
The Special Advocates
take the position that they are entitled to access any information, related to
the investigation of Mr. Harkat, held by the Service because of their top secret
clearance and because they have been appointed as Special Advocates in this
file, as well as the fact that they are persons permanently bound to secrecy
under the Security of Information Act. The Special Advocates maintain
that their right to access information includes the opportunity to
cross-examine covert human intelligence sources and implicitly, if not
explicitly, know the identity of these sources.
[50]
The
Ministers take the opposite position and assert that nothing in IRPA
abrogates the operation of common law privileges. I agree.
[51]
Parliament
may abrogate common law privileges by legislation; however, it must do so
explicitly (see Blood Tribe at para 11).
Section 39 of the CSIS Act provides an example of the clear language
required to abrogate common law privileges:
|
39. (1)
Subject to this Act the Review Committee may determine the procedure to be
followed in the performance of any of its duties or functions.
(2) Notwithstanding
any other Act of Parliament or any privilege under the law of evidence,
but subject to subsection (3), the Review Committee is entitled:
(a) to
have access to any information under the control of the service or of the
Inspector General that relates to the performance of the duties and functions
of the committee and to receive from the Inspector General, Director and
employees such information, reports and explanations as the Committee deems
necessary for the performance of its duties and functions; and
(b)
during any investigation referred to in paragraph 38 (c), to have access to
any information under the control of the deputy head concerned that is
relevant to the investigation.
(3) No
information described in subsection (2) other than a confidence of the
Queen's Privy Council for Canada in respect of which subsection 39(1) of the Canada Evidence Act applies may be withheld
from the committee on any grounds. (Emphasis added)
|
39. (1) Sous réserve des autres
dispositions de la présente loi, le comité de surveillance peut déterminer la
procédure à suivre dans l’exercice de ses fonctions.
Accès aux informations
(2) Par dérogation à toute autre loi
fédérale ou toute immunité reconnue par le droit de la preuve, mais sous
réserve du paragraphe (3), le comité de surveillance :
a) est autorisé à avoir accès aux informations qui se rattachent à
l’exercice de ses fonctions et qui relèvent du Service ou de l’inspecteur
général et à recevoir de l’inspecteur général, du directeur et des employés
les informations, rapports et explications dont il juge avoir besoin dans cet
exercice;
b) au cours des enquêtes visées à l’alinéa 38c),
est autorisé à avoir accès aux informations qui se rapportent à ces enquêtes
et qui relèvent de l’administrateur général concerné.
Idem
(3) À l’exception des renseignements
confidentiels du Conseil privé de la Reine pour le Canada visés par le
paragraphe 39(1) de la Loi sur la preuve au Canada, aucune des informations
visées au paragraphe (2) ne peut, pour quelque motif que ce soit, être
refusée au comité.
|
[52]
There
is no analogous provision in IRPA. If Parliament had intended the Special
Advocates to have access to all information, including information over which
the government claims solicitor client or other privilege, it would have
explicitly stated so in the legislation. The limited powers given to Special
Advocates in s. 85.2 do not, without this Court’s authorization, permit them to
call witnesses or require the production of a witness or document particularly
where to do so would pierce a common law privilege.
[53]
The
Ministers’ obligation to disclose information is set out in section 77(2) of
IRPA and was expanded by the decision of the Supreme Court in Charkaoui #2.
The Act requires the Ministers to “file with the Court the information and
other evidence on which the certificate is based…” (s. 77(2) IRPA). Once
filed, the judge must determine whether the information provided by the
Minister meets the disclosure requirements in Charkaoui #2 which
requires that all operational notes and information relating to Mr. Harkat be
provided to the Court. This information will be made available to the Special
Advocates at a time set by direction of the Court (s. 85.4(1) IRPA). The
Service’s obligation to disclose information does not extend to purely
administrative files unless such information is shown to be necessary for the
Court to meet its obligation to verify the accuracy and reliability of the allegations
in relation to the reasonableness of the certificate. In such a case the Court
has the power to order the information to be provided to the Court for review. (see
Blood Tribe, at paras. 23, 31, 33-34 see also R. v. Chaplin at
para. 25) Where the information is determined to be relevant and not excluded
by privilege a direction will be issued requiring the information to be filed
and granting the Special Advocates access to the information.
[54]
Nothing
in Charkaoui #2 indicates that the Supreme Court intended to abrogate
the application of common law privileges in the context of a security
certificate proceeding. The limits on disclosure were recognized by the
Supreme Court in R. v. Stinchcombe, [1995] 1 S.C.R. 754, a
criminal proceeding, when it stated that information to be provided to an
accused is subject to the common law of privilege (see paras 16 & 22; see
also Chaplin, supra at para. 21).
[55]
The closed
nature of the proceedings may limit the harm where a designated judge finds it
necessary to apply the need to know exception to the covert human intelligence
source privilege in the context of a security certificate proceeding. However,
the private closed nature of the hearing merely minimizes the impact of the
disclosure order on an individual human source; it does not abrogate the
privilege or eliminate the policy basis on which it is founded.
[56]
The
Special Advocates also assert that they are entitled to obtain copies of any
information provided by the Ministers to the Court. This cannot be the case.
[57]
Special
advocates are not in the same position as the Court. They are participants in
the closed hearings solely for the purpose set out in IRPA namely, to represent
the best interests of the person named in the certificate. The Court will always
have the power to order that information be provided to it to determine whether
that information is relevant or privileged. That is the role of the
independent and impartial arbiter. Where the information is relevant and not
otherwise excluded by statute or common law privilege, the Court will order the
information to be filed and provided to the Special Advocates. The provisions
of IRPA and the reasons of the Supreme Court in the Charkaoui decisions
do not remove this overarching superintending role of the judge.
Have
the Special Advocates established that they have a “need-to-know” this
information to prevent a flagrant denial of procedural justice such that an
exception to the covert human intelligence source privilege rule should be
applicable?
[58]
Special Advocates
play a unique but limited role in a certificate proceeding. While their
communications with the named person are deemed to be covered by
solicitor-client privilege, there is no solicitor client relationship between
the Special Advocate and the named person. The primary role of the Special
Advocate is to protect the interests of the named person where evidence is
heard in his or her absence. This is accomplished in two steps: by maximizing
the disclosure to be made to the named person and counsel and by testing the
reliability and credibility of evidence in the closed portion of the
proceedings by cross-examining witnesses produced by the Ministers. Any
further action proposed to be taken by the Special Advocates must be authorized
by the judge who is charged with ensuring that the proceeding move forward as
expeditiously, informally and fairly as possible (IRPA provisions s.
85.2(c), and Almrei v. Canada, 2008 FC 1216, at para. 57-59).
[59]
Subsection 83(1) of IRPA
puts the ultimate responsibility for the safeguarding of the sensitive
information on the shoulders of the designated judge. This obligation must
inform any consideration of whether the Special Advocates have a need to know
the identity of the covert human intelligence source(s).
[60]
The Special Advocates
assert that the human source(s) [see paragraph 8 supra for summary of argument]
[…] This argument is not supported by evidence. No additional information or
evidence is offered to justify the Special Advocates’ request.
[61]
The “need
to know” exception cannot be used as an instrument of corroboration. In the
context of security certificate proceedings, the need to know exception may
only apply if it is the only way to establish that the proceeding will
otherwise result in a flagrant denial of procedural justice which would bring
the administration of justice into disrepute. It is not to be used as a part
of an arsenal of litigation strategy.
[62]
The Special
Advocates also seek to cross-examine human sources in order to test the credibility
and the reliability of the information.
[63]
There are other ways
in which a Special Advocate may test the credibility and reliability of the
information provided by a human source which do not require that the source be
identified and produced as a witness by the Ministers.
[64]
In her decision on
the reasonableness of the first certificate issued naming Mr. Harkat as a
person inadmissible to Canada under IRPA, Justice Dawson
outlines the principles relevant to the assessment of confidential information
in paragraphs 93 to 100. She observed:
93. In testing evidence which cannot be
disclosed for security reasons, the designated judge must adopt a principled
approach to the exercise. To that end the presence or absence of
corroboration, consistency of the evidence, and whether it is hearsay, are
among factors to consider. To test the reliability of the evidence the judge
may probe into the credibility and reliability of the source of the
information. This may be done by the designated judge putting questions
directly to affiants and possibly to other persons. In addition the judge may
question counsel representing the Service on their submissions.
(…)
94. While not in any way commenting upon
the source or sources of information of confidential information before the
Court in this case, I believe that, generally, if any confidential information
is provided by a human source, some relevant inquiries and areas for
examination by the Court of one or more witnesses under oath may include
matters such as the following: the origin and length of the relationship
between the Service and the human source; whether the source was paid for
information; what is known about the source’s motive for providing information;
whether the source has provided information about other persons, and, if so,
particulars of that; the extent to which information provided by the source
has been, or is, corroborated by other evidence or information; the
citizenship/immigration status of the source and whether that status has changed
throughout the course of the source’s relationship with the Service (to the
extent that such status touches upon the source’s security within Canada and
their vulnerability to duress); whether the source has been subject to any form
of pressure to provide information, and if so, why and by whom; whether the
source has a criminal record or any outstanding criminal charges in Canada or
elsewhere; the nature of any relationship between the source and the subject of
the investigation; whether there is any known or inferred motive for the
source to provide false information or otherwise mislead the investigation in
any way. This list is not exhaustive (…)(Re Mohammed Harkat 2005 FC
393)
[65]
Consistent with the
approach of Justice Dawson, in this proceeding a Service witness testified and
was cross-examined by the Special Advocates about the value, reliability and
usefulness of information provided by the human source(s). The witness also
gave evidence as to the motivation of the source(s), handling issues, monetary
payments made to the source(s), as well as the personal history and the history
of the source(s) as a covert human intelligence source.
[66]
The Ministers also
filed an “Exhibit “A” with the Court which was provided to the Special
Advocates.[12]
Exhibit “A” is consistent with the testimony of the Service witness. In the
exhibit, the Service addresses the background of the human source(s), the
source(s)’s motivation, meetings with the source(s)’s handlers, targeting of
the source(s), source handling issues. The Exhibit also evaluates the value of
the information received from the source(s) by highlighting instances of
corroboration with other sources of information obtained through various
investigation techniques. These techniques might include other human sources,
technical sources such as intercepts, and information provided by foreign
intelligence agencies.
[67]
It has been the
experience of this Court that the approach set out by Justice Dawson, in
combination with an examination of the Exhibit provided by the Ministers in
relation to the source’s credibility, is consistent with the judicial duties of
the designated judge and meets the requirements of fundamental justice.
[68]
Special Advocates
raised a further issue concerning the reliability of information from the
source(s) and sought further evidence from the Service […]. The Service
witness provided detailed evidence on this point. […]
[69]
Given the nature of
the information provided by the Service, the cross-examination of the Special
Advocates, the primary role of the Special Advocates, and the other motions for
further production, I conclude that, at this time, the Special Advocates have
not established that the production of a human source(s) as a witness in these
proceedings is necessary to avoid a flagrant denial of procedural fairness.
[70]
Indeed, it is only in
exceptional circumstances that this Court will order the disclosure of the
identity of covert human intelligence source to a Special Advocate and even
more exceptional would be a requirement that the Service produce the source for
examination during the closed portion of a certificate proceeding. Even
documents supporting warrant applications pursuant to the CSIS Act,
which are heard in the absence of and without notice to the public, do not
refer to names of sources […]. To facilitate the judicial decision-making
process, the Service prepares a document that permits an assessment of the
human source’s reliability and pertinence which is similar if not identical to
Exhibit “A” in this proceeding. […] once the warrant application has been
disposed of, it is returned to the Service so that it can be kept in a secure
place to be made available upon request by a designated judge.
[71]
The identity of a
human source will only be confirmed or provided to the Court during a warrant
application where the designated judge determines that there is a judicial need
to know. The situations in which such a “need to know” will arise are rare […].
The Impact of
Renunciation on the Privilege
[72]
[…]
The Special Advocates also assert that they are aware of the identity of the
human source(s) [...].
[73]
In Bisaillon
the Supreme Court stated:
The question then arose whether the
informer can himself waive the exclusionary rule which protects him, as for
example by revealing his identity. In his treatise Evidence in Trials at
Common Law, vol. 8, revised by John T. McNaughton, 1961, at p. 766, Wigmore
states: “If the identity of the informer is admitted […], then there is no
reason for pretended concealment of his identity.” If that is so, it is not an
exception but a situation where, as Wigmore points out, the reason for the rule
no longer exists, as other police informers, knowing that the disclosure was
made by the informer himself or with his consent, would no longer feel
threatened. Even then, I am far from being convinced that a peace officer
could be asked to provide confirmation, as that would mean weakening a rule
which should remain firm.” [Bisaillon, supra at. pp. 94-95]
[74]
Analogous to police informer privilege, I find that covert
human intelligence source privilege cannot be renounced unilaterally either by
the human source or by the Crown. Any renunciation must be a joint decision based
on a full understanding of the consequences. Until such time as proof of a
joint and informed waiver is provided to it, the Court has an obligation to
protect the asserted privilege subject only to the exception set out above.
Indeed, the Supreme Court has found that the privilege in the context of a
police informer is “… a legal rule of public order by which the judge is
bound.” [Bisaillon, supra at p. 93: The Court also stated: “…if no one
raises it (the privilege) the Court must apply it of its own motion.”]
[75]
For
all of these reasons, I come to the conclusion that the request of the Special
Advocates that the covert human intelligence source(s) be identified and made
available to them for cross-examination must be denied.
[76]
There are issues
which, on occasion, transcend the proceeding in which they arise. Issues that
impact not only on similar proceedings but potentially on the intelligence
system as a whole. The issue before me is one such question which will
reverberate throughout our intelligence network – nationally and
internationally. Great care must be taken by the Court in balancing the
competing issues that have been reviewed in these reasons.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
The request to interview
and cross-examine covert human intelligence
source(s) is denied.
“Simon
Noël”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-5-08
STYLE OF CAUSE: In
the matter of a Certificate pursuant to Section 77(1) of the Immigration and
Refugee Protection Act and
In the
matter of Mohamed Harkat
PLACE OF
HEARING: Ottawa, Ontario
DATE OF
HEARING: September
10, 11, 12, 15, 16, 17, 18, 19, 2008
EXPURGATED
PUBLIC
REASONS FOR JUDGMENT
AND JUDGMENT: NOËL S. J.
DATED: December
22, 2008
APPEARANCES:
|
Mr. M. Dale
Mr. D. Tyndale
Mr. A. Seguin
|
FOR THE APPLICANT
|
|
Mr. P. Copeland
Mr. P.
Cavalluzzo
|
AS SPECIAL ADVOCATES
|
SOLICITORS
OF RECORD:
|
John H. Sims,
Q. C.
Deputy
Attorney General of Canada
|
FOR THE APPLICANT
|
|
Copeland, Duncan
Toronto, Ontario
Cavalluzzo,
Hayes, Shilton, McIntyre & Cornish, LLP,
Toronto,
Ontario
|
AS SPECIAL ADVOCATES
|
Email this Content