Date: 20081103
Docket: DES-3-08
Citation: 2008
FC 1216
Ottawa, Ontario, November 3, 2008
PRESENT: THE CHIEF JUSTICE
BETWEEN:
IN
THE MATTER OF a certificate signed pursuant
to section
77(1) of the Immigration and Refugee
Protection
Act (IRPA);
AND IN THE
MATTER OF the referral of a
certificate
to the Federal Court pursuant to section
77(1) of the IRPA;
AND IN THE
MATTER OF Hassan ALMREI
REASONS FOR ORDER AND ORDER
[1] Special
advocates may only communicate with another person about a ministerial certificate
proceeding with a judge’s authorization. These are my reasons for concluding
that the constitutional challenge of this requirement, without an appropriate
factual matrix, is premature. However, certain issues raised in this motion
will be answered on the basis of statutory construction.
Procedural Background
[2] The moving party, Hassan
Almrei, and three interveners, Mohamed Zaki Majoub, Mahamoud Jaballah and
Mohamed Harkat, challenge the requirement that communications among special
advocates and other persons, in particular themselves and their counsel, must
be authorized by the judge. In their view, this constraint unjustifiably infringes
their rights to freedom of expression and fundamental justice under s. 2(b) and
s. 7 of the Canadian Charter of Rights and Freedoms (Charter).
[3] On February 22, 2008,
legislation came into force introducing the participation of special advocates
in ministerial certificate proceedings. These proceedings are governed by Division
9 of the Immigration and Refugee Protection Act (IRPA).
[4] One year earlier, in Charkaoui
v. Canada (Minister of Citizenship and Immigration), [2007] 1 S.C.R. 350,
2007 SCC 9 (Charkaoui), the Supreme Court of Canada declared that the
previous procedures in Division 9 did not conform with the principles of fundamental
justice as embodied in s. 7 of the Charter and, furthermore, could not
be saved under s. 1 of the Charter because they did not minimally impair
the rights of non-citizens (¶¶ 65, 69 and 139).
[5] Also, on February 22,
2008, the Minister of Public Safety and the Minister of Citizenship and
Immigration (the Ministers) signed and referred to the Federal Court new
certificates stating that Messrs. Almrei, Mahjoub, Jaballah and Harkat were
inadmissible to Canada on grounds of security. A fifth ministerial certificate
was issued against Adil Charkaoui who chose not to intervene in this
constitutional challenge.
[6] From late February
through June 2008, there were some six common case management conferences in
the five current certificate proceedings. In early April, possible conflicts of
interests in the appointment of special advocates were resolved by Justice
Edmond Blanchard. On May 6, 2008, a presiding judge was designated in each
proceeding. In early July, Justice James K. Hugessen presided over a successful
mediation concerning a motion to secure additional funding for counsel.
[7] By mid-June 2008, two
special advocates had been appointed in each of the relevant proceedings. At
the same time, scheduling orders were issued which, generally speaking, allowed
the special advocates to review the confidential information during the summer
months. The private and public hearings commenced at various times in September
and October 2008.
[8] On July 22, 2008, Mr.
Almrei filed his motion record in support of this constitutional challenge (the
constitutional motion). The responding motion records of the Ministers and
Messrs. Jaballah and Majoub (upon which Mr. Harkat also relies) were filed in a
timely fashion. Special advocates were authorized to make written and oral
submissions solely for the purposes of the constitutional motion, without
determining their role in future open proceedings. Oral submissions were
received on September 26 and October 1, 2008.
[9] None of the parties
questioned the jurisdiction of a designated judge to determine this
constitutional motion: Charkaoui (Re), 2004 FCA 421, ¶¶ 21-62. Also, it
was appropriate and just to treat this motion as part of Mr. Almrei’s
designated proceeding without initiating a separate court file: Charkaoui
(Re), ¶ 58. The three intervenors agreed to be bound by this decision subject
to whatever appellate review might be applicable. As one of two case management
judges, I undertook to hear the constitutional motion as expeditiously as was
fair to all the parties.
The Legislative Provisions
[10] This constitutional
motion implicates two sections of the Charter:
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2. Everyone has the following fundamental
freedoms:
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2. Chacun a
les libertés fondamentales suivantes :
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…
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…
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b) freedom of thought, belief, opinion
and expression, including freedom of the press and other media of
communication;
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b) liberté
de pensée, de croyance, d'opinion et d'expression,
y compris la liberté de la presse et des autres moyens de communication;
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…
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…
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7. Everyone has the
right to life, liberty and security of the person and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.
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7. Chacun a droit à la vie, à la
liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce
droit qu'en conformité avec les principes de justice fondamentale.
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[11] The two impugned provisions, which require the judicial
authorization for certain communications of the special advocates, are s. 85.4(2)
and s. 85.5(b) in Division 9 of the IRPA.
[12] According to s. 85.4(1), the special advocate
receives all information and other evidence that is not disclosed (the
confidential information) to the permanent resident or foreign national (the
named person). In these reasons, the moving party, Mr. Almrei, and the three
interveners will be referred to collectively as the "named persons."
[13] Pursuant to s. 85.4(2), after having received the
confidential information, special advocates may only communicate (i) with another
person; (ii) about the proceeding; and (iii) with a judge’s authorization. It
is the breadth of these three key components of the provision that is of
concern to the named persons, their counsel and the special advocates.
[14] The prohibition against communication absent judicial
authorization is reiterated in s. 85.5 for all persons, not only special
advocates, apparently for a period beyond the “remainder of the proceeding,”
the duration stated in s. 85.4(2).
[15] There are two apparent differences between the
impugned provisions. Firstly, the prohibition against communications in s.
85.4(2) is directed solely to the special advocates. In contrast, the
prohibition in s. 85.5 extends to all persons with access to confidential
information. Secondly, the prohibition in s. 85.5 is permanent or, in the
words of the clause by clause notes “during the proceeding or any time
afterwards.” Consistent with the apparent permanency of the prohibition is the
ability of “a judge” (“tout juge”), not only the presiding judge, to authorize
communication of the confidential information.
[16] Section 85.4(2) prevents the special advocates from
communicating “about the proceeding.” Collaterally, this prohibition covers
all information about the proceeding from both public and private sessions,
including any testimony given in the absence of the public and the named person
and their counsel. While I am comfortable with this view, this issue was
neither expressly raised nor fully argued.
[17] Sections
85.4 and 85.5 read as follows:
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85.4(1) The Minister shall, within
a period set by the judge, provide the special advocate with a copy of all
information and other evidence that is provided to the judge but that is not
disclosed to the permanent resident or foreign national and their counsel.
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85.4(1) Il incombe au ministre de
fournir à l’avocat spécial, dans le délai fixé par le juge,
copie de tous les renseignements et autres éléments de preuve qui ont été
fournis au juge, mais qui n’ont été communiqués ni à l’intéressé ni à son
conseil.
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(2) After that information or other
evidence is received by the special advocate, the special advocate may,
during the remainder of the proceeding, communicate with another person
about the proceeding only with the judge’s authorization and
subject to any conditions that the judge considers appropriate.
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(2) Entre le moment
où il reçoit les renseignements et autres éléments de preuve et la fin de
l’instance, l’avocat spécial ne peut communiquer avec qui que ce soit au
sujet de l’instance si ce n’est avec l’autorisation du juge et aux
conditions que celui-ci estime indiquées.
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…
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…
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85.5 With the exception of communications
authorized by a judge, no person shall
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85.5 Sauf à l’égard des communications autorisées par tout juge,
il est interdit à quiconque :
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(a)
disclose information or other evidence that is disclosed to them under
section 85.4 and that is treated as confidential by the judge presiding at
the proceeding; or
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a) de
divulguer des renseignements et autres éléments de preuve qui lui sont
communiqués au titre de l’article 85.4 et dont la confidentialité est
garantie par le juge présidant l’instance;
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(b) communicate with another person about the
content of any part of a proceeding under any of sections 78 and 82 to 82.2
that is heard in the absence of the public and of the permanent resident or
foreign national and their counsel.
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b) de communiquer avec toute personne
relativement au contenu de tout ou partie d’une audience tenue à huis clos et
en l’absence de l’intéressé et de son conseil dans le cadre d’une instance
visée à l’un des articles 78 et 82 à 82.2.
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[Emphasis added]
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The
Constitutional Issues
[18] The constitutional motion raises questions that have
been presented as legal and factual issues.
[19] The principal relief sought is straightforward. Mr.
Almrei asserts that the impugned provisions deny the named persons a fair
hearing, infringes the free speech rights of special advocates, and offends the
open court principle. These infringements, says Mr. Almrei, are not minimally
impairing and, therefore, the impugned provisions must be read down. The
interveners assert that the impugned provisions must be struck down or, in the
alternative, read down.
[20] For Mr. Almrei, the requirement in s. 85.4(2) that
judicial authorization be obtained by the special advocates prior to any of
their communications “about the proceedings” should be confined to
communications “about the confidential information or evidence.” Mr. Almrei
also urges that s. 85.5(b) should be read to include the same closing words as
found in s. 85.5(a): “and that is treated as confidential by the judge at the
proceeding.”
[21] The interveners would read down the impugned
provisions differently. They would limit the necessity for judicial
authorization in both ss. 85.4(2) and 85.5(b) to those communications where a
special advocate believes there is a risk of disclosing confidential
information. The interveners also argue that any application by a special
advocate for judicial authorization to communicate be made (a) ex parte
or, in other words, in the absence of counsel for the Ministers; and (b) before
a judge other than the presiding judge.
Adjudicative
and Legislative Facts in Charter Claims
[22] Courts of first instance should be prudent
before declaring unconstitutional newly enacted legislation.
[23] A factual foundation is generally to be
preferred before determining constitutional validity: Canada
(Attorney General) v. Khawaja, 2007 FC 463 (Khawaja), ¶¶ 26-7:
Charter
decisions should not and must not be made in a factual vacuum: MacKay v.
Manitoba, [1989] 2 S.C.R. 357 at paragraph 9; Reference re Same-Sex
Marriage, 2004 SCC 79.
This principle
was somewhat qualified in R. v. Mills, [1999] S.C.J. No. 68 (at
paragraphs 36 and 37):
The mere fact that it is not clear whether the respondent
will in fact be denied access to records potentially necessary for full answer
and defence does not make the claim premature. The respondent need not prove
that the impugned legislation would probably violate his right to make full
answer and defence. …
…The question to answer is whether the appeal record
provides sufficient facts to permit the Court to adjudicate properly the issues
raised. …
[24] The distinction between adjudicative and
legislative facts was outlined by Justice Sopinka in R. v. Danson,
[1990] 2 S.C.R. 1086, ¶ 27:
… Adjudicative
facts are those that concern the immediate parties: … "who did what,
where, when, how and with what motive or intent ...." Such facts are
specific, and must be proved by admissible evidence. Legislative facts are
those that establish the purpose and background of legislation, including its
social, economic and cultural context. Such facts are of a more general nature,
and are subject to less stringent admissibility requirements. [internal
citations omitted]
(See also Public
School Board’s Assn. of Alberta v. Alberta
(Attorney General), [2000] 1 S.C.R. 44, ¶ 4; R. v. Spence,
[2005] 3 S.C.R. 450, 2005 SCC 71, ¶¶ 56-60)
[25] The only evidence presented in this motion
has been by way of affidavit.
[26] The dismay and anxiety expressed by the
named persons in their affidavits may be understandable but, otherwise, their
evidence is at best speculative.
[27] Affidavits were also provided by two senior
practitioners experienced in dealing with national security information in
other fora. Both acknowledge not to have participated in Division 9 proceedings
until their current involvement as special advocates. Some of the concerns
expressed in their affidavits of July 2008 will be reviewed in these reasons. More importantly, others have been resolved in orders made by the
judges presiding over the proceedings since the affidavits were filed. This
supports my view that the affidavit assertions of the special advocates, like
those of the named persons, are also speculative.
[28] A third practitioner, with extensive
experience as defense counsel in criminal matters, produced affidavit evidence.
He emphasized the importance of open communication with his clients throughout
their proceedings. However, his evidence does not take into account the
national security context of Division 9 proceedings. Nor does it envisage the
flexibility that may be open to designated judges under the rules currently
governing Division 9 proceedings.
[29] A university law professor, specializing in
national security and democratic governance, provided an affidavit summarizing
his interview with a government official involved in the administration of the
special advocate system in the United Kingdom. The first hand evidence of the
foreign official, even if at all relevant, would have been preferable. The
professor’s statements concerning the Security Intelligence Review Committee,
to the extent they dealt with domestic law, are well within the purview of the
Federal Court.
[30] In the end, this constitutional motion is
supported with little, if any, adjudicative facts or evidence. As acknowledged
by counsel, the motion is substantially based on legislative facts or, in their
words, constitutes a “facial constitutional challenge” of the impugned
provisions in the new legislation.
[31] No case law since Mills has been
identified by counsel where legislation has been struck down only on the basis
of legislative facts.
[32] In Charkaoui, the certificates concerning
Mr. Almrei and Mr. Harkat had been determined to be reasonable when the matter
reached the Supreme Court of Canada. No such determination had been made with
respect to Mr. Charkaoui because of a statutory stay under the previous scheme.
More significantly, extensive portions of the record of the private hearings
from Mr. Almrei’s proceeding were filed in the Supreme Court of Canada. The
Court described the “active” and “non-deferential” role of designated judges,
their “assiduous work” and “their best efforts … to breathe judicial life” in
Division 9 proceedings: Charkaoui, ¶¶ 38, 39, 42, 51 and 65.
[33] In Sauvé v. Canada (Chief Electoral
Officer), [2002] 3 S.C.R. 519, 2002 SCC 68 (Sauvé), legislation
limiting a prisoner’s right to vote under s. 3 of the Charter was
determined to be unconstitutional after a ten-day hearing, consisting
principally of the evidence of several expert witnesses. Two of the individual
plaintiffs also testified. The Supreme Court determined that the factual record
was sufficient to resolve the s. 1 issues in that case.
[34] The level of adjudicative facts necessary
to evaluate constitutional claims will vary. I expect that assessing s. 7 Charter
claims will necessitate a greater degree of adjudicative facts, particularly
when the alleged infringement concerns the effects on procedural rights
protected by the principles of fundamental justice. Here, the affidavit
evidence is of limited assistance.
[35] There may very well be cases where the
impairment of a Charter right is obvious on the face of an impugned
legislative provision. For example, in Sauvé, there was little dispute
that denying prisoners who are Canadian citizens the right to vote infringed
their rights under s. 3 of the Charter. In such cases, the need for adjudicative
facts may be minimal.
[36] In contrast, Charkaoui involved
assessing the effects of Division 9 of IRPA on the procedural rights of persons
subject to certificate proceedings. As noted above, in reaching its decision,
the Supreme Court had the benefit of adjudicative facts from Mr. Almrei’s
proceeding. The adjudicative facts in Charkaoui, which appear to me to
be more than those presented in this constitutional motion, allowed the Supreme
Court to resolve the s. 7 issues before it.
[37] This constitutional motion, particularly in
respect of s. 7 of the Charter, is premised on the argument that the
alleged constitutional defects of ss. 85.4 and 85.5 are obvious on their face.
However, the position of the named persons is speculative concerning decisions yet
to be made and the resulting effects on their rights.
The Section 7
Issues
The Existence
of a Substantial Substitute
[38] In relying on Charkaoui, Mr. Almrei
takes the position that any ministerial certificate proceeding that allows for
private hearings, without the full disclosure of evidence to the named person,
necessarily infringes s. 7 and can only be saved by s. 1. As there is
substantially no s. 1 evidence in this proceeding, Mr. Almrei argues, this
constitutional motion must succeed. In his view, the current scheme does not
afford the named persons their right to know the case to be met.
[39] The right to know the case to be met is not
absolute. In order to satisfy s. 7, the named person must be given the
necessary information or a substantial substitute must be found: Charkaoui,
¶ 61; Khawaja, ¶ 35.
[40] Counsel for the Ministers submit that the
new provisions afford the substantial substitute. In addition to the
protections available under the old scheme, the special advocates appointed to
protect the interests of the named persons have access to the confidential
information that forms the basis for a ministerial certificate. The special
advocates participate in the private hearings and, with judicial supervision,
may also communicate with the named persons and their counsel. With the judge’s
authorization, they may exercise any other powers that are necessary to protect
the interests of the named persons.
[41] The evidence before me in this
constitutional motion is insufficient to determine definitively whether the new
provisions constitute a “sufficient substitute” within the meaning of Charkaoui.
I am satisfied it would be premature for me to conclude, absent an appropriate
factual matrix, whether the new provisions violate Mr. Almrei’s s. 7 rights.
[42] There is one aspect of Mr. Almrei’s submissions I
want to address at greater length.
[43] An important aspect of Mr. Almrei
argument’s against the impugned provisions is his reliance on what he
characterizes as the free flow of information between counsel for the Security
Intelligence Review Committee (SIRC or the Review Committee) and the
complainant. For Mr. Almrei, the “SIRC model” is an answer to the alleged
constitutional deficiencies in the impugned provisions.
[44] SIRC counsel, at all times, acts on behalf
of the Review Committee: Khawaja, ¶ 56.
[45] In recent testimony before the Special
Senate Committee on Anti-terrorism, the Review Committee’s executive director
corrected a common misapprehension that SIRC counsel is a special advocate: Proceedings,
June 2, 2006, Issue No. 7, at 5:
… I will
clarify certain terminology that has been used regarding the SIRC model. There
is no special advocate, no special counsel and no independent counsel
involved in our process.
...
… SIRC counsel
must be independent of both government as represented by CSIS … and the
complainant.
For greater
clarity, SIRC’s counsel is not an advocate for the complainant.
[Emphasis
added]
SIRC counsel
includes legal agents retained from the private sector and in-house counsel.
[46] SIRC counsel, acting for the Review Committee,
assists the presiding member in advancing the interests of a complainant in
private hearings, much as any decision-maker must be concerned with fairness
for each party. Here, my comments focus on the role of SIRC counsel generally,
without distinction between ministerial certificate cases and the Review
Committee’s current workload.
[47] SIRC outside counsel receives instructions
from the presiding member of the Review Committee and from in-house counsel.
Communications between SIRC counsel and the complainant is under the explicit
or implicit authority of the Review Committee member. The presiding member’s
function as the filter or authority for communications is analogous, though not
identical, to the supervisory role of the presiding judge under Division 9 of
the IPRA. The so-called “free flow” of information between SIRC counsel and the
complainant is circumscribed as it has to be.
[48] In Charkaoui, the Supreme Court
called for an independent agent to review objectively confidential information
with a view to protecting the interests of the named persons (¶¶ 3 and 86).
[49] The special advocate is independent of the
court, unlike the relationship between SIRC counsel and the Review Committee.
This independence not only imposes fewer constraints on the special advocates,
but charges them with potentially greater obligations in protecting the
interests of a named person, without being the latter’s solicitor.
[50] Neither the legislation creating the Review
Committee nor the latter’s Rules of Procedure make any mention of the role of
SIRC counsel. The functions of counsel have evolved over time. Under Division
9, Parliament has made explicit the role, responsibilities and powers of the
special advocates.
[51] The special advocate protects the interests
of the named person in private hearings. The special advocate challenges the
Minister’s claim of confidentiality and the reliability of the confidential
information. The special advocate makes oral and written submissions concerning
the confidential information and may cross-examine witnesses during private
hearings. Finally, the special advocate may, with the judge’s authorization,
“exercise… any other powers that are necessary to protect the interests of the
[named person]”.
[52] The role of the special advocates, like that of SIRC
counsel, will evolve based on the rulings of presiding judges.
[53] While I need not decide the issue, I have
not been convinced that the “SIRC model” would afford more protection to the
named persons than Division 9 of the IRPA.
Solicitor-Client Privilege
[54] The interveners approach the s. 7 issue
with equal force but differently. For them, the requirement that special advocates
obtain judicial authorization for communication with the named persons or their
counsel is necessarily an impermissible intrusion into solicitor-client
communications and the litigation privilege.
[55] Routine supervision of the solicitor-client
communications will implicate privileged information and bring the judge, in
their words, “into the brief.” For the interveners, national security, in and
of itself, cannot be an exception to solicitor-client or litigation privilege.
The rationalization of ongoing judicial oversight to avoid the risks of
inadvertent disclosure lacks any structure of minimization.
[56] As between special advocates and named
persons, Division 9 protects information and not relationships.
[57] According to s. 85.1(3), the relationship
between the special advocate and the named person is not that of solicitor and
client. However, under s. 85.1(4), information communicated between the named
persons and the special advocates is “deemed” to be subject to solicitor and client
privilege. The information that passes between them, absent the solicitor and
client relationship, is deemed to be protected.
[58] It is on the basis of the “deeming”
provision that the named persons seek to extend the full protection of
solicitor and client privilege and litigation privilege to the relationship
between special advocates and themselves.
[59] This position, it seems to me, may run
counter to Parliament’s assertion that the relationship between the special
advocate and the named person is not that of solicitor and client. Nor are
special advocates parties to the proceedings.
[60] Despite its importance, solicitor-client
privilege is not absolute: R. v. McClure, [2001] 1 S.C.R. 445, ¶¶ 34-5. The
case law relied upon by the named persons to buttress the importance of the
solicitor-client privilege does not exclude its possible breach for reasons of
necessity: Canada (Privacy Commissioner) v. Blood Tribe Department of
Health, 2008 SCC 44, ¶¶ 17 and 22; Lavallee, Rackel & Heintz v.
Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 6, ¶ 36; Smith
v. Jones, [1999] 1 S.C.R. 455, ¶ 57.
[61] Avoiding injury to national security, which
can include the risks of inadvertent disclosure, may constitute a necessity
that warrants piercing the privilege in as minimal a way as the circumstances
dictate. This should not be decided in a factual vacuum.
[62] The able submissions made on behalf of the
named persons have not convinced me that the requirement of judicial
authorization must by definition be struck down on the bald assertion of either
solicitor-client privilege or litigation privilege. The necessity exception
prevents me from doing so.
[63] There are also other reasons. First, the
factual record in this motion does not convince me that every request for
authorization to communicate by special advocates will necessarily implicate
information deemed protected by s. 85.1(4).
[64] Second, there may be situations where
special advocates will want to seek authorization for further communication
with the named person. The application may be based on facts whose disclosure
would breach the deemed solicitor-client privilege. The circumstances will be
such that the named person, unaware of the request by the special advocates,
cannot explicitly authorize the disclosure of the privileged information.
[65] Here, it is open to special advocates to
seek directions from the presiding judge to make submissions in the absence of
counsel for the Ministers. The different permutations and combinations that may
present will depend on the facts. Designated judges will have the flexibility
from the powers vested in them in Division 9 and from the Federal Courts
Rules to respond properly to the special advocates in accordance with
varying circumstances. The presiding judges will determine the extent of the
information, if any at all, that should be disclosed to counsel for the
Ministers. I would expect that in most cases, if not all, the Ministers would be
given notice that a request for authorization to communicate has been made by
the special advocates. Early experience under the new provisions has supported
this approach.
[66] Finally, the interveners’ suggestion that the
requirement for judicial supervision will “taint” the presiding judge,
particularly where authorization is given and the named person subsequently
adopts a different strategy, is a matter best determined with a factual
context.
[67] In summary, the named persons have not presented a
sufficient factual matrix to evaluate their section 7 claims. Their challenge
under s. 7 cannot be determined in this constitutional motion.
The
Section 2(b) Issues
[68] Private hearings, in the absence of the public and the
named persons, as well as the restrictions on the ability of special advocates
to communicate freely, infringe the open court principle and freedom of
expression as guaranteed under s. 2(b) of the Charter.
[69] The statutory requirement that national security
confidential information be received in private hearings has been upheld by the
Supreme Court Canada: Ruby v. Canada
(Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75 (Ruby); see also Khawaja.
[70]
In Ruby and Khawaja, the s. 2(b) infringement was saved under s.
1.
[71] To the degree that the impugned provisions protect
confidential information, the s. 1 analysis in Ruby and Khawaja
is applicable here. If a private hearing concerning confidential information
is justifiable under s. 1, so too is a prohibition on disclosing the contents
of such a private hearing. This must be true.
[72] However, in this constitutional motion, unlike
the situations in Ruby and Khawaja, the issue of communications
between the special advocates and other persons, in particular the named
persons, is a new issue. Neither the named persons, nor the special advocates
have satisfied me that the ability to obtain judicial authorization for
communication does not minimally impair their s. 2(b) rights. For the reasons
mentioned under my s. 7 analysis, this issue should remain open pending
adjudication with an appropriate factual matrix.
The
Alternative Relief Sought
[73] The constitutional motion describes the alternative relief
sought in factual terms. In Mr. Almrei’s view, it is unconstitutional to
require judicial authorization where:
(a)
the
special advocates communicate with office staff and colleagues and family
members concerning their whereabouts;
(b)
the
special advocates communicate with those officials responsible for their
administrative support;
(c)
the
special advocates communicate between themselves in the same proceeding;
(d)
the
special advocates appointed in an ongoing proceeding communicate with other
special advocates on the list established by the Minister of Justice but not
participating in an ongoing proceeding;
(e)
the
special advocates appointed in one proceeding communicate with special
advocates appointed in a separate ongoing proceeding;
(f)
the
special advocates communicate with the media and Parliament concerning the
effectiveness of the proceedings;
(g)
the
special advocates communicate with the named persons and their counsel
concerning rulings made in private and the advisability of appealing or seeking
judicial review of such rulings;
(h)
the
special advocates communicate with the named persons and their counsel
concerning matters not envisaged prior to the special advocates’ receipt of
confidential information.
In
each of these eight circumstances, Mr. Almrei asserts that the communications
of the special advocates should be free flowing and without the filter of court
approval.
[74] Importantly, Mr. Almrei concedes in five of the eight
instances that the free flow of communications being sought for the special
advocates should not directly or indirectly disclose confidential information.
Put more simply, the envisaged communications have nothing to do with confidential
information. Concerning (c), (d) and (e), the concession is formulated
differently and will be dealt with below.
[75] A review of the principles of statutory
interpretation will assist in assessing the alternative relief sought by Mr.
Almrei.
[76] For over a decade now, the Supreme Court of Canada
has reiterated the modern principle of statutory interpretation, rooted in
Driedger’s often quoted maxim: “… the words of an Act are to be read in their
entire context and in the grammatical and ordinary sense harmoniously with the
scheme of the Act, the object of the Act, and the intention of Parliament.” (See
Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 272, ¶ 21; Application under s. 83.28 of the Criminal Code (Re), [2004]
2 S.C.R. 248, 2004 SCC 42, ¶ 34)
[77] Parliament is presumed to legislate in a way that
avoids absurd or unjust consequences. (Ruth Sullivan, Sullivan on the
Construction of Statutes, 5th ed. (LexisNexis Canada Inc., 2008)
at 300-323) Professor Sullivan, relying on several Supreme Court of Canada decisions,
highlights the following propositions (at 300-01):
(1) It
is presumed that the legislature does not intend its legislation to have absurd
consequences.
(2) Absurd
consequences are not limited to logical contradictions or internal incoherence
but include violations of established legal norms such as rule of law; they
also include violations of widely accepted standards of justice and
reasonableness.
(3) Whenever
possible, an interpretation that leads to absurd consequences is rejected in
favour of one that avoids absurdity.
(4) The
more compelling the absurdity, the greater the departure from ordinary meaning
that is tolerated.
[78] An essential element of Division 9 proceedings is
confidential information. The legislation denies named persons and their
counsel access to the confidential information because of its sensitivity. Mr.
Almrei and the interveners concede that the protection of confidential
information is a legitimate governmental objective. The broad limitations
found in the impugned provisions must, therefore, be interpreted by courts
keeping in mind the risks of disclosure, particularly inadvertent disclosure, of
confidential information, while avoiding absurd consequences.
[79] The first three categories of relief sought by Mr.
Almrei can be determined definitely through statutory construction and do not
give rise to constitutional issues.
(a)
communications with office colleagues or family members
concerning their whereabouts
[80] Parliament could not have intended to prohibit
communications between the special advocates and their office colleagues or family
members concerning the whereabouts of special advocates during the proceedings.
In each proceeding, scheduling orders have been issued publicly. They can be
obtained through the registry. The recorded entries are available on the
internet, even if they do not refer to specific private hearings.
[81] There may be an exceptional case where disclosure of
the date or location of a private hearing may detrimentally affect national
security. In this extreme situation, the presiding judge, responsible for
ensuring the confidentiality of information, would have the burden of issuing
an order to protect that information. Otherwise, the whereabouts of the special
advocates is an administrative matter not encompassed by the legislation.
[82] In short, the impugned provisions cannot reasonably be
read to limit communications of special advocates with this class of persons concerning
their whereabouts.
(b) communications
concerning their administrative support
[83] Parliament has mandated the Minister of Justice in s.
85(3) to provide special advocates with administrative support. It is suggested
that that Parliament simultaneously prohibited special advocates from
communicating with the officials responsible for delivering that administrative
support without judicial authorization. I am satisfied that this could not have
been the intention of Parliament.
[84] In my view, special advocates may communicate freely concerning
their administrative support and resources with those officials responsible for
ensuring their delivery under s. 85(3).
[85] For greater clarity, it is open to special advocates
to seek a blanket order that would allow them, without further judicial
direction, to communicate with any other person, except the named persons or
their counsel, with whom it is necessary to confer about administrative matters
not connected with the substance of the proceedings. Such an order could mirror
s. 76.25(3)(d) of The
Civil Procedure (Amendment No. 2) Rules 2005 of the High Court of Justice of England
and Wales.
[86] Again, I do not believe that such a "comfort"
order is necessary in law. Communications between special advocates and their
office colleagues and families concerning the whereabouts of special
advocates are not captured by the legislation. Nor are communications between special
advocates and those officials acting pursuant to s. 85(3) concerning
administrative support or resources.
(c)
communications between special advocates in the same
proceeding
[87] Mr. Almrei contemplates under (c), (d) and (e),
unlike the other categories, the potential communication of confidential
information. For him, there should be no judicial supervision of communications
among special advocates because each has the necessary security clearance.
[87] The legislation does not prohibit the appointment of
more than one special advocate in a proceeding. In the five ongoing
proceedings, each presiding judge has appointed two special advocates. Neither
Parliament nor the presiding judge could have envisaged that the two special
advocates, after both have received the confidential
information, could not communicate freely between themselves in a
secure manner during their joint effort to protect the interests of the named
person.
[89] Suggesting otherwise is as absurd as suggesting, which
no one has, that special advocates need judicial authorization to communicate
with counsel for the Ministers assigned to the private hearings in the same
proceeding. Such a result could not have been the intention of Parliament and
must be rejected.
(d) communications
with special advocates not yet appointed in a proceeding
[90] Communications between appointed special advocates
and those named to the list of special advocates by the Minister of Justice under
s. 85(1) but not yet participating in a proceeding may be problematic. As the
special advocates themselves noted in oral argument, such communication may be
“fraught with difficulty.”
[91] None of the counsel raised the issue of a possible
conflict of interest for the other special advocate to the communication. Nor
did anyone demonstrate how this limitation could in any practical sense
detrimentally affect the right of the named persons to fundamental justice or
constitute more than a minimal impairment of anyone’s freedom of expression.
Again, absent a factual context where such judicial authorization would be
refused, I choose not to comment further, particularly since confidential
information has been put in issue.
(e)
communications with other special advocates appointed in
another ongoing proceeding
[92] Mr. Almrei, joined by the special advocates, argues
that special advocates in one proceeding should be allowed to communicate
freely with those participating in one or more of the other four proceedings. In
advancing this position, the situation of the special advocates is compared to
that of counsel for the Ministers. This comparison is of little assistance,
particularly in the absence of any evidence concerning the communication of
confidential information among government counsel acting in different
proceedings.
[93] Special advocates who wish to communicate with their
counterparts in other ongoing proceedings should seek judicial authorization.
In the event the authorization is not granted, there will then be a factual
context against which one could determine whether the procedural rights of the
named persons would be detrimentally affected by the restriction.
[94] In my view, this issue cannot be determined without a
factual matrix and, therefore, I will refrain from further comment.
(f)
communications with the media and Parliament concerning the
effectiveness of the proceedings
[95] The named persons argue that special advocates should
have an unfettered right to communicate with the media and Parliament
concerning “the effectiveness of the proceedings.” I have understood their
concern to be with respect to the efficacy of ongoing proceedings. I take
comfort in this view from the special advocates, who disassociated themselves
from this aspect of the constitutional motion.
[96] The insight of special advocates that might be of
interest to the media and Parliament presumably flows from their access to
confidential information and their participation in private proceedings.
[97] The named persons provided no evidence or examples to
show how this limitation would detrimentally affect their right to fundamental
justice. The impugned provisions do not limit the named persons or their
counsel from properly communicating with the media and Parliament. Again, this
issue is better left to another day with an appropriate factual context.
(g)
communications with the named persons and their counsel
concerning rulings made in private
[98] As noted by the Ministers, this concern is weakened
by the statutory prohibition on appeals from interlocutory orders. (see: ss. 79
and 82.3)
[99] The apprehension of the named persons is further
diminished in light of the publicity surrounding the rulings made thus far in
the proceedings. Even while this constitutional motion was before me,
presiding judges, in various ways and where appropriate, have made public certain
rulings and other information concerning private hearings.
[100] Special advocates may always seek judicial
authorization for the communication of rulings made in private where judges do
not do so on their own initiative. It is my expectation that most, if not all,
of the rulings that do not directly or indirectly disclose confidential
information could be made public.
[101] In the absence of evidence demonstrating how this issue
could detrimentally affect the Charter rights of the named persons, it
would be premature to comment further.
(h)
communications with the named persons and their counsel
after the special advocate receives confidential information
[102] As presented by Mr. Almrei, the
communications envisaged in this category have nothing to do with confidential
information.
[103] The named persons argue that special advocates
should determine on their own when judicial authorization is required for their
communications with other persons under s. 85.4(2). In their view, special
advocates should not be fettered concerning communications about the proceeding
where confidential issues are not being discussed. Otherwise, in their opinion,
the impugned provisions intrude on the Charter rights of the named
persons and special advocates.
[104] Parliament has mandated that special
advocates require judicial authorization for all communications after
having received the confidential information. Section 83(1)(d) stipulates that
the judge shall ensure the protection of confidential information. The
legislation aims to prevent the disclosure of confidential information,
intentionally or through inadvertence, through the mechanism of judicial
supervision.
[105] In my view, if Parliament’s objective is to
be met, special advocates cannot communicate with another person about the
proceeding, absent judicial authorization, even concerning an order or
direction made public by the presiding judge. If special advocates were allowed
to determine on their own initiative when they could communicate about the
proceeding, even where confidential information is not being discussed,
Parliament’s attempt to limit inadvertent disclosure would be compromised.
Absent a factual context, it is again premature to determine in any definitive
way the constitutional validity of these impugned provisions.
Conclusion
[106] In the wake of Charkaoui, Parliament modified the
ministerial certificate proceeding by introducing to the process a special
advocate. Five certificate proceedings are underway, and the hard work of everyone
involved is breathing life into Parliament’s amendments to the IRPA. I am of
the view that it is premature to evaluate whether the impugned provisions, as
implemented in the ongoing proceedings, should survive scrutiny under ss. 2(b)
and 7 of the Charter.
ORDER
THIS COURT ORDERS that:
- The constitutional motion
is dismissed as premature, without prejudice to any party’s right to
challenge, with an appropriate factual matrix, the constitutionality of
ss. 85.4(2) and 85.5(b) of the Immigration and Refugee Protection Act,
S.C. 2001, c. 27, as amended (the impugned provisions).
- There are three factual
matters in this motion that can be disposed of on the basis of statutory
construction. Parliament could not have intended that these factual
matters would be captured by the impugned provisions. They do not raise
constitutional issues. These three factual matters are those where:
- the special advocates communicate with their office
staff and colleagues and family members concerning their whereabouts;
- the special advocates communicate concerning their
administrative support and resources with those officials responsible for
their delivery under s. 85(3) of the IRPA;
- the special advocates in the same proceeding
communicate between themselves in a secure manner, after both have
received the confidential information.
“Allan Lutfy”
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