Date: 20081128
Docket: DES-5-08
Citation :
2009 FC 203
Ottawa, Ontario, November 28, 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]
The
Special Advocates are seeking access to the employment records of T.S., a
former Canadian Security Intelligence Service (“CSIS” or “Service”) employee
who was an intelligence officer […] involved in the investigation of Mr. Harkat.
In the alternative, the Special Advocates have suggested that the Court review
the employment records of this individual and determine whether they should be
produced.
[2]
The
Special Advocates assert that T.S.’s employment records are relevant to this proceeding
because of the […] relationship that developed between her and a person of
interest to the Service […] in the context of the Harkat investigation.
[3]
The
following facts and circumstances were put into evidence by a Service witness
who was cross-examined by the Special Advocates on this point:
- T.S. was
an employee of the Service from the late 1980s through January 11, 2002;
- […]
- […]
- […];
- T.S.
suffered from domestic difficulties at the beginning of February, 1998.
Shortly thereafter, A.B. initiated telephone contact with the officer at
work.
- As the
relationship between T.S. and A.B. progressed, gifts and photos were
exchanged. The officer began communicating with A.B. from both home and
work.
- In
December 1998, T.S. received written instructions from her employer to
cease all contact with A.B. She ignored these instructions.
- In April
1999 T.S. travelled to […] for a holiday where she had a […] encounter
with A.B.
- CSIS was
unaware of the […] encounter until 2001, at which time the decision was
made to begin an internal security investigation;
- January
11, 2002 T.S. was dismissed as a consequence of the revocation of her
security clearance;
- […];
- A
grievance was filed by T.S. […] the grievance was denied.
[4]
The
Special Advocates have concerns about the reliability and credibility of the information
provided […]. They seek access to T.S.’s employment records to see if they will
assist their examination of the reliability and credibility of the information
gathered during the period […].
[5]
The
Special Advocates submit that this Court should adopt an approach analogous to
that set out in O’Connor v. The Queen, (1995) 103 C.C.C. (3d) 1 (S.C.C.).
Given the in camera nature of this portion of the certificate proceeding,
they assert that if they establish that the records are likely relevant to the
proceeding then they should be produced. This assertion is based on the
premise that there can be no breach of the reasonable expectation of privacy
where the documents are provided to persons required by law to keep them
confidential.
[6]
The
Ministers’ acknowledge that the Court may usefully draw on criminal law to
inform its approach to this request for production but that the standards of
disclosure in this proceeding and in a criminal trial are not identical. They assert
that the in camera nature of the proceeding does not preclude the
operation of common law rules of privilege and that privacy rights do exist
even in the closed portion of the proceedings.
[7]
In
Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 (Charkaoui #2), Justices
Lebel and Fish make it clear that the security certificate proceedings are not criminal
trials. That difference
however does not come from a formal distinction between criminal law and
immigration law, but depends on “…the consequences of the state’s action for
the individuals fundamental interests of liberty and security and, in some
cases, the right to life.” (see para. 53). They conclude that the security
certificate procedure can put these protected rights in “serious jeopardy”.
[8]
At
paragraph 47 of Charkaoui #2 Justices Lebel and Fish note that:
…information in CSIS’s
possession should be disclosed to the ministers and the designated judge in the
context of the proceeding relating to the security certificate. This will require
a more nuanced approach than simply importing the model developed by the courts
in criminal law. All the interests at stake that relate to public safety and
to certain essential functions of the state must be taken into account.
[9]
The
Court goes on to note that the expanded right of disclosure mandated by s. 7
requires the disclosure of information “relating to the review of the
reasonableness of a security certificate and to its implementation.” (para. 58)
[10]
The
disclosure requirements of Charkaoui #2 appear to be modelled on the
application of criminal law disclosure principles but are tailored to the
specific issue before the designated judge in a security certificate proceeding;
namely, the verification of the information and grounds on which the
certificate is based. Fundamentally, the purpose of the disclosure mandated
by the Supreme Court in Charkaoui #2 is to enable the designated judge
and the Special Advocates to test the reliability and credibility of the
information relied on by the Ministers to show that the certificate is
reasonable. The Court stated that in the context of the certificate
proceeding there is a need “… for an expanded right to procedural fairness one
which requires the disclosure of information, in the procedures relating to
the review of the reasonableness of a security certificate and to its
implementation.” [para. 57, emphasis added].
[11]
Thus, the
question to be asked is whether the employment records of T.S., a CSIS
intelligence officer, are necessary for the Court to assume its judicial
responsibility to verify the accuracy and reliability of the allegations in
relation to the reasonableness of the certificate in which Mr. Harkat is named.
I do not think that they are. Employment records will contain information on an
individual’s employment history such as the dates of employment, positions held
within the agency, salaries and benefits paid during the period of employment, annual
evaluations, etc. This type of information, which is inherently personal, will
not help to determine the reliability of the information […], nor will it allow
for an assessment of the quality of the reporting […].
[12]
The
situation is different, however, when the request has as its object the […]
report that studies the reliability and veracity of the information […] which
was primarily reported by […] who had a […] encounter with a person of interest
to the Service […]. Such a record is necessary to examine and verify the
accuracy of the information submitted to this Court to justify the reasonableness
of the certificate. Information of this nature will assist the Court to assess
the information provided […] to the CSIS intelligence officer. As such, it
touches directly on the ability of the Court to undertake its obligation to
verify the information and allegations made by the Ministers in relation to Mr.
Harkat, and falls within the scope of Charkaoui #2 disclosure
obligations.
[13]
Five (5)
copies of the […] report should be filed with the designated proceedings
section so that it can be viewed by the Court and the Special Advocates within
a period of time set by the Court.
[14]
If the
Ministers or the Service have other information, be it in administrative or
operational files, including reports or findings by entities internal or
external to the Service related to the reliability and credibility of […]
information provided […], in light of the […] involvement of the CSIS
intelligence officer with A.B., such information would fall within the
Ministers’ disclosure obligations pursuant to Charkaoui #2.
[15]
If
there were any question about the necessity to produce further record(s), the
Court could review the records to determine if they fall within the scope of
the Charkaoui #2 disclosure obligations, before requiring that they be
filed.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
The
request to access the administrative employment records of T.S., a former
Service intelligence officer, is denied.
2.
Five
copies of the […] report(s) into the reliability and veracity of any
information […] are to be filed by December 5, 2008 in the designated
proceedings section of the Federal Court Registry, along with any other
information which may fall within the scope of the disclosure obligations set
out in Charkaoui #2, and
3.
The
Special Advocates shall be provided with a copy of the […] report(s).
“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: November
28, 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
|
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