Docket: DES-1-15
Citation: 2018 FC 849
[ENGLISH TRANSLATION]
Ottawa, Ontario, August 21, 2018
PRESENT: The Honourable Madam Justice Gagné
| BETWEEN:
|
| THE ATTORNEY GENERAL OF CANADA
|
| Applicant
|
| and
|
| ADIL CHARKAOUI, PERSONALLY AND IN HIS CAPACITY AS LITIGATION GUARDIAN OF HIS THREE CHILDREN
|
| Respondent
|
PUBLIC VERSION OF THE AMENDED CONFIDENTIAL JUDGMENT AND REASONS
(FOLLOWING THE DISCONTINUANCE OF THE
APPEALS IN A-268-18 AND A-366-18)
I.
Introduction
[1]
Before me is an application filed by the Attorney General of Canada [AGC] under section 38.04 of the Canada Evidence Act, RSC 1985, c C-5 [CEA]. The AGC is asking the Court to confirm the statutory prohibition of the disclosure of some information that is sensitive or potentially injurious to international relations, national defence or national security [collectively the “classified information”
].
[2]
The AGC’s application is part of a civil liability action commenced by Adil Charkaoui, personally and in his capacity as litigation guardian of his three children [collectively “the respondents”
]. The respondents are seeking remedies, under the Civil Code of Québec, CQLR c CCQ-1991 and under subsection 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11) [Charter], for damages allegedly caused by the wrongdoings of some servants of the Crown.
[3]
In short, the respondents claim that the Canadian government and its servants committed a number of wrongful acts during the security investigation conducted against Mr. Charkaoui, during his arrest and detention, as well as during the preparation, signature and enforcement of security certificates issued against him in 2003 and in 2008, in violation of the respondents’ constitutional rights.
[4]
The action was commenced in 2011 before the Quebec Superior Court, in the district of Montreal, under file number 500-17-056510-103, and was under special case management by the Honourable Louis Lacoursière, J.S.C. [underlying proceeding].
[5]
In his judgment on the motion to quash subpoenas duces tecum rendered in November 2013 (Charkaoui v Canada (Attorney General), 2013 QCCS 7132), Justice Lacoursière had predicted that his decision would likely result in the AGC applying to this Court for the exercise of the exclusive jurisdiction over any national security privilege issues that the CEA confers upon the AGC.
[6]
However, it was not until January 2015 that the Court received the notice of application from the AGC, seeking to obtain directions pursuant to subsection 38.04(5) of the CEA.
[7]
These reasons follow public hearings held in the presence of Mr. Charkaoui, as well as in camera hearings in the presence of counsel for the AGC and the amici curiae. After having considered all of the evidence submitted and arguments made in writing and as part of the aforementioned hearings, and after having applied the test confirmed by the Federal Court of Appeal in Ribic v Canada (Attorney General), 2003 FCA 246, [2005] 1 FCR 33 [Ribic] (I will elaborate further on this test later), I find as follows:
(1)
The application by the AGC under section 38.06(3) of the CEA is allowed in part.
(2)
The Court authorizes the disclosure of the information identified in Annex B, in application of subsection 38.06(1).
(3)
The Court also authorizes, in application of subsection 38.06(2) of the CEA, the disclosure of information in the form of summaries or statements of fact, regardless of whether or not they were the result of an agreement between counsel for the AGC and the amici curiae, in accordance with these reasons and in the proposed form. These are the documents listed and summaries contained in Annex C.
(4)
Lastly, the Court confirms, in application of subsection 38.06(3) of the CEA, the prohibition on the disclosure of information for which no summaries have been proposed—regardless of whether or not the prohibition was challenged by the amici curiae, in accordance with these reasons. This information is contained in the documents listed in Annex D.
II.
Facts and procedural history
[8]
Mr. Charkaoui is of Moroccan origin. He arrived in Canada in January 1995 with his parents and sister and was admitted as a permanent resident.
[9]
Toward the end of the 1990s, Mr. Charkaoui caught the attention of the Canadian Security Intelligence Service [CSIS] as a result of his contact with Abdella Ouzghar, Ahmed Ressam, Abousofian Abdelrazik, Samir Ait Mohammed, Raouf Hannachi, Karim Said Atmani and ||||||||||||||||||||||||||||||, all of whom were suspected by CSIS of having ties to Islamic extremism.
[10]
In 1999, Mr. Charkaoui filed his first citizenship application.
[11]
Shortly after he filed the application, CSIS began an investigation pursuant to section 12 of the Canadian Security Intelligence Service Act [CSIS Act] into Mr. Charkaoui’s activities.
[12]
On May 16, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada, now the Minister of Public Safety and Emergency Preparedness [collectively “the Ministers”
], signed and filed with the Federal Court the first security certificate against Mr. Charkaoui [2003 certificate].
[13]
At the time, the Ministers were of the opinion that Mr. Charkaoui should be inadmissible to Canada for having been or being a member of Osama bin Laden’s network, an organization that engages, has engaged or will engage in acts of terrorism. As such, they had grounds to believe that Mr. Charkaoui has engaged, is engaged, or will engage in terrorism , and that Mr. Charkaoui has been, is, or will be a danger to the security of Canada (see paragraphs 34(1)(c),(d) and (f) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]).
[14]
On May 21, 2003, an arrest warrant issued against Mr. Charkaoui was executed and he was detained. Justice Simon Noël of this Court was designated by the Chief Justice to review the reasonableness of the security certificate in application of the scheme of the IRPA at the time.
[15]
On June 25, 2003, Mr. Charkaoui (and Hassan Almrei and Mohamed Harkat) filed a motion to have Division 9 of Part 1 of the IRPA declared unconstitutional. It was this issue that was the subject of the first decision of the Supreme Court of Canada in Charkaoui v Canada (Citizenship and Immigration) 2007 SCC 9 [Charkaoui I], which will be discussed later.
[16]
In July 2003, Mr. Charkaoui’s counsel filed a pre-removal risk assessment [PRRA] application with the Ministers. The filing of this application resulted in the automatic suspension of the review of the reasonableness of the security certificate.
[17]
The PRRA application was initially rejected but when the Court learned that Mr. Charkaoui was the subject of an arrest warrant issued by Moroccan authorities, it set aside the decision and referred it back for redetermination.
[18]
On three occasions in the course of the years 2003 and 2004, Mr. Charkaoui attempted, in vain, to secure his release from detention.
[19]
However, during an in camera hearing held on January 5, 2005, the judge was informed by the Ministers’ counsel that they had recently learned of a document that should have been disclosed to Mr. Charkaoui at the start of the proceedings but that inadvertently was not disclosed. It was a summary of two interviews of Mr. Charkaoui by one or more CSIS officers, held on January 31 and February 2, 2002. The judge ordered the immediate disclosure of this summary, which reads as follows:
[TRANSLATION]
INTRODUCTION
Adil CHARKAOUI was seen on 2002 01 31 and 2002 02 02. On the first contact, CHARKAOUI said he was prepared to clarify point by point what the Service might hold against him. He said he was prepared to undergo a polygraph, although he made fun of that tool. On the second contact, CHARKAOUI reverted to his defensive mode, saying he was being persecuted by the authorities, by the Service. Saying he has never done anything wrong, he refutes our allegations to the effect that some accused such as RESSAM had recognized him. He says this time that he refuses to undergo a polygraph and storms out. CHARKAOUI left many points unsettled, for example: CHARKAOUI says he never went to Afghanistan, but he admits he went to Pakistan, without indicating what he was doing there. Failing any second thoughts and a change in attitude, CHARKAOUI did not leave us under the impression that he would meet the Service again.
[20]
Counsel for Mr. Charkaoui subsequently argued that the non-disclosure of this summary in a timely manner, along with the destruction of the investigators’ notes and recordings of the interviews (if any), resulted in prejudice to Mr. Charkaoui.
[21]
At the ex parte hearing on January 5, 2005, counsel for the Ministers also filed new allegations against Mr. Charkaoui on the basis of information that was not part of the record at the time the Ministers signed the 2003 certificate. The allegations concern Mr. Charkaoui’s alleged involvement in events that occurred in Morocco, among other things.
[22]
On January 6, 2005, Justice Noël provided a summary of this new information to Mr. Charkaoui, which stated the following:
The investigation concerning Mr. Charkaoui is ongoing;
The Moroccan authorities have identified Mr. Charkaoui as being a member of the Groupe islamique combattant marocain (GICM) [Moroccan Islamic Combatant Group];
The GICM is a group linked to Al‑Qaida and is allegedly responsible for the attacks of May 16, 2003, in Casablanca and of March 11, 2004, in Madrid;
During a trip to Afghanistan in early 1998, Mr. Charkaoui is alleged to have taken military training and theological training in the Sharia institute at Khalden;
The emir of the GICM, Nourreddine Nafia, who is being held in Morocco, reveals that Mr. Charkaoui was indoctrinated by a Libyan imam;
Some funds have allegedly been collected in order to establish cells in Canada, Pakistan, Germany, France and the United Kingdom;
Mr. Charkaoui has maintained contact with and allegedly sent CAN$2,000 to the GICM and allegedly gave a laptop computer to a member of the GICM.
[23]
On January 10, 2005, Mr. Charkaoui filed a motion for the exclusion of this new evidence. He asked to be provided with the complete notes of the interviews conducted by CSIS, as well as with the recordings of those interviews.
[24]
In response to this request for disclosure, the Ministers informed the judge that that was impossible because there were no recordings of the interviews and because the notes of CSIS investigators are systematically destroyed once a report is finalized, in accordance with internal policy OPS-217.
[25]
Mr. Charkaoui then filed a motion for a stay of proceedings to have the 2003 certificate quashed and to obtain his release and, alternatively, to have the new evidence filed by the Ministers excluded. Mr. Charkaoui challenges, in particular, CSIS’s operational policy (OPS‑217) concerning the management of operational notes, the retention of evidence and the destruction of interview notes by officers who conduct interviews.
[26]
The hearing for the fourth review of Mr. Charkaoui’s detention was held on February 7, 2005, and on the 17th of the same month, Mr. Charkaoui was granted a conditional release, with strict conditions.
[27]
Justice Noël dismissed, however, the request for the exclusion of the summary of the additional information. He informed Mr. Charkaoui’s counsel that he attempted to verify the reliability of this information during a hearing held without their presence or that of Mr. Charkaoui. He added the following: [translation] “Furthermore, the information contained in this report, including the references in support of it, is corroborated by other means and (or) sources”
. Being unable to confirm whether or not the new facts were obtained by hearsay, he noted that paragraph 78(j) of the IRPA allows judges to receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, if it would be of assistance to the designated judge in the assessment of the facts submitted.
[28]
The Federal Court of Appeal dismissed the appeal filed by Mr. Charkaoui, but the Supreme Court allowed his appeal (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 [Charkaoui II]).
III.
Supreme Court decisions (Charkaoui I and Charkaoui II)
[29]
In Charkaoui I, the Supreme Court examined the constitutionality of the procedures for determining whether a security certificate is reasonable and for reviewing the detention of the person concerned. It found that they fail to assure the fair hearing that section 7 of the Charter requires and that this infringement was not justified under section 1 of the Charter. While the protection of Canada’s national security and of security intelligence sources constitutes a pressing and substantial objective, and the non-disclosure of evidence at hearings is rationally connected to this objective, the IRPA does not minimally impair the rights of persons named in security certificates. Certain less intrusive alternatives developed in Canada and abroad, notably the use of special advocates to act on behalf of the named persons, show that it is possible to protect individuals while keeping classified information confidential.
[30]
The Court struck down certain provisions of the IRPA and suspended the effects of its judgment for one year in order to allow Parliament to amend the IRPA. Shortly before the end of that year, Parliament adopted An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, SC 2008, c 3 [Bill C-3]. Bill C-3 came into force on February 22, 2008.
[31]
In Charkaoui II, the Supreme Court considered the following issues:
(a)
What are the nature and scope of CSIS’s duty to retain information?
(b)
Does CSIS have a duty to disclose information in its possession? If so, what are the bases and scope of the duty to disclose such information? For whose benefit does this duty exist?
(c)
What are the consequences of delays in disclosing information to the designated judge and what is the appropriate remedy?
(d)
May the designated judge admit new evidence after the security certificate has been issued? Is new evidence admissible at any stage of the proceedings? If so, how does admitting this evidence affect the validity of the certificate?
[32]
The Court allowed Mr. Charkaoui’s appeal in part and found, first, that the judicial review the Court had before it related to the security certificate on an ongoing basis and that the review of its reasonableness relied on all of the evidence, including the evidence that arose after the Ministers signed the certificate. However, although it refused to stay proceedings at the preliminary stage, the Supreme Court declared that the destruction of CSIS officers’ personal notes breached CSIS’s general duty to retain and disclose security intelligence. It also recognized CSIS’s duty to disclose Mr. Charkaoui’s entire file to the designated judge called upon to review the reasonableness of the certificate and, after the judge filtered it, to Mr. Charkaoui and his counsel.
IV.
Federal Court decision on the second security certificate
[33]
A number of comments are in order with regard to the Federal Court’s decision (Charkaoui (Re), 2009 FC 1030 [Charkaoui FC]) on the second security certificate [2008 certificate].
[34]
On February 22, 2008, when Bill C-3 came into force, the Ministers issued a second security certificate against Mr. Charkaoui under section 77 of the IRPA and the new statutory scheme.
[35]
Justice Tremblay-Lamer, then of this Court, was designated by the Chief Justice to manage the case. She appointed François Dadour (as he then was) and Denis Couture as special advocates.
[36]
At the start of proceedings, the Ministers acknowledged that they owed a duty to disclose evidence in support of the 2008 certificate, a duty that was adapted to national security requirements.
[37]
In September 2008, in response to an order of the Court, the Assistant Director of Intelligence at CSIS confirmed that, to the best of his knowledge, CSIS had disclosed all of the relevant information and other evidence that could be disclosed to Mr. Charkaoui without causing injury to national security or endangering the safety of any person.
[38]
Justice Tremblay-Lamer required the Ministers to tell Mr. Charkaoui whether the original evidence had been retained or not, in response to the position expressed by the Supreme Court in Charkaoui II. After hearing the arguments of the special advocates and the Ministers’ counsel, she found that the disclosure of certain evidence would not be injurious to Canada’s national security or endanger the safety of any person, and issued disclosure orders to that effect.
[39]
Disagreeing with the Court’s findings, the Ministers withdrew the information and evidence, which paragraph 83(1)(j) of the IRPA enables them to do.
[40]
The Ministers then acknowledged that in their view, the evidence that remained in the file was not sufficient to meet their burden of showing that the security certificate was reasonable.
[41]
The Ministers nonetheless asked the Court to make a determination on the reasonableness of the certificate and in so doing, to certify a question of general importance. The avowed purpose of that was to appeal the disclosure order before the Federal Court of Appeal and, at a later date, reintroduce key information in support of the 2008 certificate into evidence, without having to disclose it to Mr. Charkaoui.
[42]
The Court concluded, however, that the question proposed by the Ministers (which pertained to the legitimacy of a judicial balancing of national security against procedural fairness) did not meet, in abstracto, the criteria of the IRPA or of the jurisprudence of the Federal Court of Appeal and refused to certify it.
[43]
Given the Ministers’ admission as to the insufficiency of the remaining evidence to justify the reasonableness of the 2008 certificate, the Court declared the certificate ultra vires the Ministers’ powers and void.
[44]
It follows from the foregoing that neither of the security certificates issued against Mr. Charkaoui has been reviewed by this Court.
[45]
In addition, the duty to disclose information leading to the issuance of security certificates, which the IRPA imposes and which was analyzed by the Supreme Court in Charkaoui II and by this Court in Charkaoui FC, does not apply in cases in which, as in this one, the scheme of section 38 of the CEA is in issue. As we shall see later, the applicable test is different and the interests at issue are not the same.
[46]
I must therefore proceed with an analysis of the security intelligence and of the interests at issue before me, separate from any prior analysis.
V.
Underlying proceeding
[47]
I agree with Justice Lacoursière’s observation in Charkaoui v Canada (Attorney General) 2013 QCCS 7132, at paragraph 19, where he states that it was difficult to centre on the issue in the underlying proceeding because the specified re-amended motion to institute proceedings, much like the AGC’s defence, was extremely broad.
[48]
That said, Mr. Charkaoui denounced [translation] “fundamental flaws in how the evidence against him was gathered and disclosed and the respondents’ negligence and bad faith throughout the entire process”
, among other things.
[49]
It is important to note that the underlying proceeding is governed by the Code of Civil Procedure, CQLR c C-25.01, which provides that, aside from exhibits a party chooses to disclose in support of a pleading, the purpose of an examination for discovery may be to disclose documents relevant to the proceeding. In other words, there is no general obligation to disclose all documents relevant to a proceeding that were not requested by the opposing party.
[50]
In a subpoena duces tecum sent to the AGC, Mr. Charkaoui sought disclosure of the following documents:
[TRANSLATION]
. . .
1- The recordings of telephone interceptions that Mr. Charkaoui participated in and that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security.
2- Any recordings of communications that Mr. Charkaoui participated in and that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security.
3- Any notes, summaries or reports of interceptions or recordings that Mr. Charkaoui participated in and that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security.
4- All recordings of telephone interceptions, additional information on conversations, notes, summaries or reports of said interceptions or in relation to those interceptions or communications contained in CSIS or CBSA files on Mr. Charkaoui, that were filed in support of the certificates;
5- Any surveillance report regarding Adil Charkaoui that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security and with respect to which it was determined that their disclosure would not be injurious to national security or endanger the safety of any person (Justice Tremblay‑Lamer’s judgment dated October 14, 2009, para. 14, Exhibit P-6);
6- All recordings of communications interceptions or recordings of conversations that Mr. Charkaoui participated in, Justice Tremblay-Lamer’s order dated March 18, 2009 (item 5, EXHIBIT P 76) having already determined that their disclosure would not be injurious to national security.
7- Any notes, summaries or reports of interceptions or existing recordings in CSIS’s files on Mr. Charkaoui, Justice Tremblay‑Lamer’s order dated March 18, 2009 (item 5, EXHIBIT P 76) having already determined that the disclosure of their contents would not be injurious to national security.
8- Any surveillance reports regarding Adil Charkaoui, the Honourable Justice Tremblay-Lamer’s order dated March 18, 2009 (item 5, EXHIBIT P 76) having already determined that the disclosure of their contents would not be injurious to national security or the safety of a person, (Justice Tremblay-Lamer’s judgment dated October 14, 2009 (para. 14, Exhibit P-6);
9- Any EVIDENCE WITHDRAWN in support of the certificate concerning the interceptions, as documented on May 11, 2009, in a communication of Justice Tremblay-Lamer, Exhibit P-82, last paragraph, and in respect of which it was determined that the disclosure of the contents would not be injurious to national security or endanger the safety of any person (Justice Tremblay-Lamer’s judgment dated October 14, 2009, para. 14, Exhibit P-6);
10- In the event of destruction, the list of everything that was destroyed and the date of destruction;
11- In the event of the destruction of one of the aforementioned documents or exhibits, the description of the document or exhibit destroyed, the date of the document or exhibit, the nature of the document or exhibit, the identification of the persons involved and the date of destruction;
. . .
[51]
In Charkaoui v Canada (Attorney General), 2013 QCCS 7132, Justice Lacoursière, hearing a motion from the AGC to quash the subpoenas, stated that he was of the opinion that at that stage of the proceedings, it appeared to him that most of the documents, with the exception of those listed in paragraph 7, were relevant and that their disclosure had to be favoured as they seemed useful, appropriate and likely to contribute to advancing the debate.
VI.
Refusal to disclose on the basis of national security privilege
[52]
In a public affidavit by a senior paralegal with the National Security Group [NSG] of the Department of Justice of Canada, the process for classifying security intelligence was explained.
[53]
The senior paralegal stated that the NSG is the central coordinating office for processes governed by section 38 of the CEA and that its mandate includes, but is not limited to: (a) receiving all notices to the AGC under section 38 of the CEA; (b) reviewing all national security grounds raised by the departments and agencies concerned and, if necessary, the grounds on which that privilege is challenged; (c) recommendations to the AGC with respect to the disclosure, in whole or in part, of the information for which a notice has been filed and, where applicable, with respect to the form and conditions of such disclosure.
[54]
The affidavit describes the process common to all files for which national security privilege is invoked in the course of a proceeding, including the review of documents identified at the production of documents stage. Depending upon the specifics of the file, the process may begin before or after formal notice has been given under section 38 of the CEA. It includes the following steps:
First, documents produced by a department or agency and for which national security privilege has been claimed are identified, then justification in support of the privilege invoked is provided to a paralegal, who then redacts the confidential portions one at a time. Redacted text is highlighted, with the colours of the highlighters indicating the reasons for the redaction.
After a quality control of this first stage, a NSG legal advisor examines the justifications cited in order to ensure that the information is not already in the public domain and that the privilege claimed is consistent with the case law. Legal advisors and paralegals also ensure that a consistent approach is adopted across departments and agencies.
If applicable, the legal advisors challenge certain justifications given by the departments and agencies.
The NSG then produces a draft of the redacted documents and provides this to all of the departments and agencies concerned for final review and approval.
The legal advisor prepares and submits a recommendation to the AGC or his or her delegate, who ultimately has the authority to decide whether or not to disclose the non‑redacted information.
The final documentation is then prepared and produced by the NSG.
[55]
The review of the various grounds for invoking national security privilege sometimes requires several readings of the same document and a weighing of each word so as to ensure accuracy and consistency in the handling of classified information. Such information must be handled in a way that minimizes any risks of injury to national security, particularly through inadvertence.
[56]
The RCMP, CSIS and Global Affairs are the main departments and agencies that sought the protection of confidential information in this case. However, the NSG also consulted with three other federal agencies that participated in the review of the documents produced before the Court, namely, Citizenship and Immigration Canada, Public Safety and Emergency Preparedness, and the Canada Border Services Agency.
[57]
In January 2015, the AGC estimated that more than 7,500 hours would be needed to review the 1,283 documents (7,562 pages) and 434 audio tapes produced in the underlying proceeding, in addition to the time needed to prepare the documentation to submit to this Court for the purposes of this application.
[58]
However, that estimate and the schedule initially set had to be revised several times during the proceeding because of, in particular, changes in counsel in charge of the file at the NSG and difficulties in finding a translator who could translate Arabic into French who had the required security clearance and who was available to work the number of hours necessary to translate the audio tapes.
VII.
Nature of the documents and audio tapes identified in the notices to the AGC
[59]
The documents identified in this application may be divided into a number of categories.
[60]
There are the security intelligence reports [SIRs] drafted by CSIS as part of the security certificate and inadmissibility proceedings in 2003 and 2008. These documents set out the allegations and evidence used as a basis for both proceedings.
[61]
There are the operational reports generated by a bibliographical research computer system (Bibliographical Reference System), commonly referred to as the BRS reports. The reports describe the source and the contents of the information gathered during the CSIS investigation into Mr. Charkaoui, his associates and other people of interest to CSIS.
[62]
There are also corporate documents such as directives and pieces of correspondence of CSIS, as well as documents from the RCMP such as notes, reports and various communications.
[63]
With respect to the 434 audio tapes that are the subject of this application, the AGC submits that these were obtained through warrants issued by this Court as part of the CSIS investigation. With the help of the BRS reports, the amici curiae identified which of these audio tapes seemed relevant to the underlying proceeding. The audio tapes were translated from Arabic into French and their transcripts were submitted to the Court.
VIII.
Appointment of the amici curiae
[64]
Although the appointment of amici curiae in a proceeding governed by section 38 of the CEA is completely at the Court’s discretion, I consulted the parties to obtain their suggestions.
[65]
Mr. Charkaoui suggested retaining the services of Denis Couture, one of the two lawyers who had acted as a special advocate for the 2008 certificate. The AGC initially objected to the appointment, citing a potential conflict of interest or, at the very least, a conflict between the role of a special advocate appointed in the context of a review of the reasonableness of a security certificate and that of an amicus curiae appointed in a proceeding governed by section 38 of the CEA.
[66]
It was not necessary for me to make a determination in the issue given that the parties accepted, during a case management conference held on November 5, 2015, the Court’s suggestion to appoint two amici curiae, Denis Couture and Pierre Champagne. The first had prior experience with this case and the second could take a fresh look at the case.
[67]
Before being given access to the documents submitted for review by the Court, Mr. Champagne met with Mr. Charkaoui to discuss the position that the applicants (the respondents before me) argued in favour of in the underlying proceeding and to guide to the amici in reviewing the documentation at issue in this application.
IX.
Public hearing of the AGC’s application
[68]
Mr. Charkaoui cross-examined the signatories of the three public affidavits produced in support of the AGC’s application, namely, a representative of the RCMP, a representative of Global Affairs, and a representative of CSIS.
[69]
Mr. Charkaoui participated in a public hearing held in Montreal on April 27, 2016, and in a number of case management conferences. He is not represented before this Court and, to my knowledge, he is now unrepresented before the Quebec Superior Court. This situation has had a certain impact on the unfolding of the proceeding, notably when the respondents sought an interim costs order.
[70]
At the public hearing, the AGC provided an overview of the documentation produced. The AGC explained that the 719 documents produced in response to Justice Lacoursière’s order are documents that were before Justice Tremblay-Lamer during the review of the reasonableness of the 2008 certificate.
[71]
The other 564 documents were produced in support of the AGC’s defence in the underlying proceeding.
[72]
All of the documents were disclosed to Mr. Charkaoui in their redacted form.
[73]
In addition to these documents and the 434 audio tapes that are the subject of this application, there are 902 audio tapes that contain no classified information, which were provided to Mr. Charkaoui in January 2014.
X.
Legislation
[74]
Section 38 of the CEA contains a complex and comprehensive code governing the use and protection of “sensitive”
or “potentially injurious”
information. These terms are defined as follows in the CEA:
“potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.
“sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.
[75]
The section establishes a procedure whereby classified information may be protected from disclosure before a court, person or body with the jurisdiction to compel production. In such a circumstance, notice is to be given to the Attorney General (section 38.01) who may at any time authorize disclosure of all or part of the information (section 38.03). Where the Attorney General does not authorize disclosure or enter into an agreement for partial or conditional disclosure, the Attorney General may seek an order before this Court confirming the prohibition on disclosure (section 38.04).
[76]
The relevant provisions of the CEA (sections 38, 38.01, 38.03, 38.031, 38.04, 38.06, 38.07, 38.11 and 38.14) are reproduced in Annex A for ease of reference. In addition, references to section 38 in this judgment encompass sections 38 to 38.15 of the CEA.
XI.
Issues
[77]
The issues raised in this application are whether, with respect to each of the claims to protect information,
the prohibition on disclosure should be confirmed pursuant to subsection 38.06(3) of the CEA;
the information should be disclosed subject to the imposition of conditions to limit the injury to international relations, national defence or national security pursuant to subsection 38.06(2) of the CEA;
the information should be disclosed pursuant to subsection 38.06(1) of the CEA.
XII.
The law
[78]
In Ribic, the Federal Court of Appeal set out the three-pronged test specific to an analysis of an application filed pursuant to section 38 of the CEA. The first task of the Court is to determine whether the information for which disclosure is sought is relevant.
[79]
If the judge finds the information to be relevant, the judge must determine whether its disclosure would be injurious to international relations, national defence or national security.
[80]
If the answer to the second question is also positive, the Court then engages in the exercise of balancing the interests in issue.
(1) First step: relevance
[81]
Given that the documents under review were all disclosed as part of the underlying proceeding, in accordance with Justice Lacoursière’s order or in support of the AGC’s defence, the AGC acknowledges that they are relevant to the debate before the Superior Court. Obviously, this does not mean that all of the information contained in the 1,700 documents under review is equally or similarly relevant, or that it necessarily favours either party’s case. The degree of relevance of each piece of information remains an element to consider at the stage where the interests in issue are being weighed.
[82]
Given that the underlying proceeding in Ribic was a criminal matter, the Federal Court of Appeal referred to, for the relevance analysis, the Supreme Court’s decision in R v Stinchcombe, [1991] 3 S.C.R. 326, and pointed out that the threshold was low.
[83]
In this case, one must look to Quebec civil law for the concept of relevance. The Civil Code of Québec states that “[e]vidence of any fact relevant to a dispute is admissible”
(article 2857). The Code of Civil Procedure stipulates that a party “may allege any material facts, even material facts that have arisen since the application was instituted”
(article 170, first paragraph). Evidence is deemed relevant where it relates to a fact in dispute. For an applicant, a fact is relevant where it is necessary to prove the right claimed. For a respondent, any fact necessary to prove a means of challenging the application is relevant. At the discovery stage, the relevance requirements are less stringent. The concept of relevance is applied with more flexibility and the court must encourage [translation] “the fullest possible disclosure of evidence”
(Jean-Claude Royer and Catherine Piché, La preuve civile, 5th edition (Montreal: Éditions Yvon Blais, 2016) pp. 151, 156).
(2) Second step: injury to international relations, national defence or national security
[84]
This second step in the Ribic test consists in determining whether the disclosure of information deemed relevant would be injurious to international relations, national defence or national security. The Court must consider the parties’ submissions and their supporting evidence. The review conducted by the AGC must be based on facts established by the evidence (Ribic at para 18). Although the burden of such a demonstration rests with the AGC, the Court must show a certain degree of deference to the AGC’s review of the matter. In short, the AGC assumes a protective role with respect to the security and safety of the public and if the AGC’s assessment of the injury is reasonable, the Court must accept it (Ribic at para 19).
(3) Third step: the weighing of the interests in issue
[85]
The burden of proof then shifts to the party seeking disclosure of the information to prove that the public interest in disclosure outweighs in importance the public interest in non‑disclosure. Where appropriate, the Court may authorize the disclosure of information under conditions and in a form that are most likely to limit any injury (Ribic at para 21; Canada (Attorney General) v Almalki, 2011 FCA 199 at para 13 [Almalki FCA]).
[86]
In the context of civil litigation that does not involve any habitual violations of rights guaranteed under the Charter, public interest, other than the right to seek redress before the courts, is rarely in issue. It is generally the interests of the party seeking disclosure that are in issue. It then becomes more difficult to counterbalance the public interest in protecting international relations, national defence or national security (Canada (Attorney General) v Almalki, 2010 FC 1106 at para 184 [Almalki FC], rev’d on other grounds in Almalki FCA). The burden is significant and the information sought must be capable of establishing a fact crucial to the case (Pereira E Hijos SA v Canada (Attorney General), 2002 FCA 470 at para 18).
[87]
Where a number of years have passed between the investigation and the request for disclosure, the need to protect information may lose its significance (Almalki FC at para 71).
[88]
Moreover, when weighing the interests at stake, relevance alone is not enough to tip the scales in favour of disclosure. Each piece of information must be reviewed and the Court must determine which factors it deems necessary to consider in the circumstances (Canada (Attorney General) v Khawaja, 2007 FC 490, (2007) 312 FTR 217, at para 93 [Khawaja]). Among the factors deemed to be relevant by this Court in Khan v Canada (Minister of Citizenship and Immigration), (1996) 1 FTR 81 [Khan], at paragraph 26, we find:
1. the nature of the public interest sought to be protected by confidentiality;
2. whether the evidence in question will probably establish a fact crucial to the defence;
3. the seriousness of the charge or issues involved;
4. the admissibility of the documentation and the usefulness of it;
5. whether the party seeking disclosure has established that there are no other reasonable ways of obtaining the information; and
5. whether the disclosures sought amount to general discovery or a fishing expedition.
XIII.
Analysis
[89]
Since the initial filing of the documentation that is the subject of the AGC’s application, the AGC has revised her position and some amendments have been made to the documents submitted, in large part in order to ensure consistency with certain developments in other files subject to similar procedures. Thus, the AGC has agreed to disclose part of the information that was initially redacted in the documents remitted to Mr. Charkaoui.
[90]
Counsel for the AGC and the amici also prepared a considerable number of summaries that allowed for key information that remained redacted at the hearing of this application to be disclosed without disclosing any classified information. These reasons concern the disclosure of certain redacted information, as well as the summaries of information, regardless of whether or not they were the subject of an agreement between the AGC and the amici curiae.
[91]
Three lists of documents were compiled and filed with the Court:
a. Undisputed documents that have not been summarized—the AGC and the amici agree that the privilege invoked by the AGC applies and that the prohibition on disclosure should be confirmed by the Court;
b. Disputed documents (redaction or summary)—the amici request that some information be unredacted or that additions be made to the summary; and
c. Summaries approved by the AGC and the amici—the AGC and the amici agree that the summary of the documents provides adequate disclosure of the information relevant to the interests of the applicants in the underlying proceeding, while protecting sensitive or potentially injurious information.
A.
Undisputed summaries and documents
[92]
With respect to the documents and summaries upon which the AGC and the amici curiae have reached an agreement, I note that some of the redacted or non-summarized information has varying degrees of relevance to the underlying proceeding. Where the information is relevant—it favours either party’s position—I am satisfied that its disclosure is likely to be injurious to international relations, national defence or national security. I am also satisfied that in cases in which there are grounds for imposing conditions on disclosure, the prepared summaries constitute the solution that best meets the interests of the public, while taking into account the interest of the applicants in the underlying proceeding in obtaining the fullest possible disclosure of the relevant information.
[93]
The AGC points out that the disclosure of the audio tapes not yet provided to Mr. Charkaoui would be injurious to national security, to which the amici curiae does not object, as they are of the opinion that this material is of little or no relevance.
[94]
The audio tapes identified by the amici curiae were translated, transcribed and filed in the Court record and, after having reviewed them, I am of the view that the audio tapes contain information that, for the most part, is of very little relevance to the applicants in the underlying proceeding and, where it is relevant, its disclosure would be injurious to national security.
B.
Disputed summaries and documents
[95]
The ex parte and in camera hearing of this application was held on January 16 and 17, and on March 6, 2018, in the presence of counsel for the AGC and the amici curiae. The AGC produced top secret affidavits by six witnesses who were representatives of CSIS, the RCMP, Global Affairs, and the Department of Justice. The exercise made it possible to cover essentially the same categories of injury as those that had been identified at the public hearing, while allowing for the examination and cross-examination of witnesses without fear of disclosing classified information. The main witness has been a CSIS intelligence officer since 1990 and was in charge of Mr. Charkaoui’s file from 2003 to 2007.
[96]
The AGC argues that agreeing to the requests of the amici and providing the respondents with the information for which disclosure is sought would cause considerable prejudice to CSIS’s ability to collect security intelligence and to adequately fulfill its mandate. The anticipated prejudice would take three main forms:
(a) The disclosure of certain information would reveal investigative techniques used by CSIS, as well as limits to such techniques, and would reduce their effectiveness;
(b) It would expose individuals who provide information to CSIS to reprisals and, incidentally, would impede CSIS’s ability to establish new relationships with individuals who are willing to cooperate with it;
(c) It would undermine the confidence of CSIS’s foreign partners, who provide it with valuable security intelligence with the assurance that the identity of the source and information provided remain confidential.
[97]
It is inherent to the security intelligence protection scheme governed by section 38 of the CEA that parties to a proceeding be deprived of all relevant evidence in the record, regardless of whether or not it is favourable to their case. However, this deprivation can only be justified if it is necessary to protect the national interests at stake.
(1)
CSIS’s operational methods and investigative techniques
[98]
The AGC seeks to protect information concerning CSIS’s methods, namely its operational methods and investigative techniques. The reason is quite simple; disclosure of this information would allow individuals or organizations under investigation, or of potential interest to CSIS, to hinder its techniques and to escape, in whole or in part, investigation. This Court has, on many occasions, deemed this to be a valid concern and confirmed that it justified the non‑disclosure of such information in application of section 38 of the CEA (Henrie v Canada, [1989] 2 FC 229 (FC) at paras 29-31, aff’d [1992] FCJ No 100 (FCA) [Henrie FC]; Harkat, Re, 2005 FC 393 at para 89, aff’d 2005 FCA 285; Khawaja, above, at para 156, rev’d on other grounds in 2007 FCA 342; Canada (AG) v Telbani, 2014 FC 1050 at para 45).
[99]
Security intelligence possessed by CSIS comes from two main sources: human sources and technical sources.
[100]
Some of the investigative techniques used by CSIS were listed in a letter that CSIS sent to the RCMP on August 11, 2000 (AGC03819). Given that the information contained in that letter was disclosed in the underlying proceeding, it must be concluded that the AGC does not generally consider such investigative techniques as confidential. However, this does not mean that in a specific context, the disclosure of an investigative technique would not be prejudicial to the public interest. Each piece of information must be assessed on its merits.
[101]
Furthermore, some of the information concerning technical sources of interceptions related to the investigation into Mr. Charkaoui has been disclosed, either because of the very nature of the information or because it was declassified in the context of the proceedings related to one of the security certificates. It was the information contained in the operational reports from interceptions of the telephone line at Mr. Charkaoui’s residence and restaurant, electronic surveillance (audio) at his restaurant and inside his vehicle, and from a global positioning system (GPS) that was placed inside his vehicle.
[102]
For all other intelligence sources, the AGC asks that it be impossible for the reader of the documents and summaries to determine the location(s) in which CSIS could have intercepted the communications, or whether the source of a given piece of information was human or technical. The amici curiae challenge this position, at least where the refusal to disclose an excerpt (or a specification in a summary) would prevent the reader from assessing the reliability of the information contained therein.
[103]
I do not agree with the AGC’s argument. Given that the information dates back 10 years, and at times nearly 20 years, I am of the view that the privilege in section 38 of the CEA does not generally cover all information merely by the fact that its disclosure would enable someone to determine whether the CSIS source was human or technical.
[104]
Therefore, we will review, one by one, referring to the numbering used in the present proceeding, the documents and summaries that, according to the AGC, contain information relating to investigative techniques used by CSIS, and in respect of which the AGC is invoking national security privilege. In the analysis that follows, where a reference is made to two document numbers, they are duplicates.
a)
AGC00623
[105]
The summary proposed by the AGC includes the following:
[translation]
It [the document] contains incomplete information that suggests that Mr. Charkaoui and a person who is on the list in Appendix D of the 2008 SIR [Security Intelligence Report] allegedly organized their travel itinerary to the Middle East together.
[106]
Given that the document is completely redacted, it is impossible, from this summary, to grasp some of the nuances, including the fact that the person (named in Appendix D of the SIR) only identifies Mr. Charkaoui by his first name. It is the analyst who concludes that the person is referring to Adil Charkaoui.
[107]
The amici request disclosure of the following excerpt, which is found at page 2 of the document:
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| | | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[108]
The AGC objects on the ground that this would reveal not only that the source is technical, but also that it has certain limitations. This would also reveal the location of the interception and the identity of the person whose communications were intercepted.
[109]
Given that the document is dated May 3, 2006, I am of the view that disclosing that the source is technical and that certain passages are inaudible would not cause any prejudice. Telecommunications techniques have improved since then and what may have been a technical limitation in 2006 may no longer be today. In addition, there may be a number of reasons as to why some segments of the communication are inaudible: positioning, distance, interference, ambient noises, etc. The mere fact that a communication includes excerpts that are inaudible does not provide much information as to the specific technology used, nor does it indicate that a similar limitation would exist in a different context.
[110]
The AGC argues that the simple fact that a communications analyst noted having had difficulty hearing certain portions of the communication does not mean that what is reported is not reliable. The evidence effectively shows that CSIS analysts are trained to faithfully report the facts and only those statements they are able to understand. Similar evidence may be submitted before the Quebec Superior Court and the trial judge will be able to weigh the probative value of the information contained in the documents and summaries.
[111]
To this I would add that the AGC already disclosed documents containing excerpts of communications that were inaudible (see, in particular, AGC01667). The AGC can therefore not invoke privilege under section 38 of the CEA on this ground alone.
[112]
However, I am of the view that in the present context, allowing the location and the person being investigated by CSIS to be identified would be injurious to national security. The discussion recounted in the excerpt that the amici are asking to be disclosed is specific enough that it could lead to the identification of the person under surveillance and possibly of the third party as well. Given that I am of the opinion that the public interest in the non-disclosure of this excerpt outweighs Mr. Charkaoui’s interest in its disclosure, it will not be disclosed.
[113]
In my view, the objective that the amici are seeking to accomplish would be met by the adding of this passage to the summary:
[TRANSLATION]
The information was obtained by an interception of a communication that took place between the person who is on the list in Appendix D of the SIR and a third party. The person refers to Adil, whom the analyst believes is Adil Charkaoui. Certain passages of the communication are inaudible given that, according to the analyst, the person was trying to prevent what was being said from being heard by someone other than the interlocutor.
b)
AGC01604
[114]
This is a document dated October 13, 1999, about discussions that occurred between three individuals, including Mr. Charkaoui. Upon reading the document, which the AGC chose to disclose in large part, it is clear that that the analyst’s narrative was obtained through electronic surveillance, regardless of the technique used. If the AGC chooses to disclose enough information that could lead to the identification of all of the participants in these conversations and even the location in which the conversations took place, it is because the AGC does not consider it to be privileged information. In this context, disclosing paragraph 5 simply demonstrates the technical limitations encountered in that specific context. My previous comments apply and the following information will be disclosed:
[TRANSLATION]
5- RE: para. 1, the reception was so bad that the analyst was unable to follow the conversation.
c)
AGC01609/AGC01704
[115]
This document, redacted in its entirety, reports discussions between about 20 guests, including Mr. Charkaoui, at a party in April 1999. The amici agree that the proposed summary adequately describes the content of the discussions but ask that the following excerpt be added to the summary:
[TRANSLATION]
The analyst indicates that she had a lot of trouble following the discussions that took place during the gathering because of poor sound quality.
[116]
The proposed summary contains sufficient details that the participants in the conversations and the attendees of the gathering could recognize the event. This information is therefore not privileged. As for the fact that the addendum proposed by the amici reveals that the source is technical and that the source is limited, my previous comments apply. Furthermore, although the location of the gathering can be easily identified, this is not the case for the specific technical method(s) used; there are several possibilities, including the possibility that the recording was from a technical source used by a human source.
[117]
The excerpt proposed by the amici will be added to the summary of the document.
(2)
Intelligence that makes it possible to identify a person who provided information to CSIS
[118]
The AGC is seeking to protect information that would reveal or tend to reveal the identity of human sources of information (excluding the human sources mentioned in section 18.1 of the CSIS Act), or the content of the information provided by human sources which, if disclosed, could lead to the identification of those human sources. I concur with the amici that one cannot extend such protection to all of the information received from a human source, regardless of whether or not it would tend to identify that human source.
[119]
There are two principal reasons for protecting the identity of human sources: the identification of sources could threaten their safety or endanger their lives; and it could dissuade other sources or potential sources from providing CSIS with security intelligence if they fear that their identity may not be protected.
[120]
It should be noted that the AGC is claiming, with regard to a certain amount of information, the class privilege in section 18.1 of the CSIS Act, which was introduced in 2015 by the Protection of Canada from Terrorists Act, SC 2015, c 9, but that no application was made to me under subsection 18.1(4) of the CSIS Act to dispute the fact that an individual is a human source within the meaning of the Act, or that a given piece of information could lead to the identification of that individual.
[121]
The words “human source” are therefore used here in a very broad sense and include any person who has entered into contact with a CSIS officer, in any capacity. The information in issue will therefore be analyzed from the perspective of the protection offered by section 38 of the CEA, in light of the comments provided by Justice Gilles Létourneau in Almalki FCA:
[31] This now brings me to the interrelation between a privilege regarding the source and the Ribic test, and the procedure to be followed when confronted with a claim of privilege.
[32] Upon reflection, the procedure has to remain flexible because the manner of proceeding may be dictated by the nature of the information, the importance of the source, the extent of the prejudice to the source and national defence, national security and international relations, to name some of the factors that may influence the approach a judge should be taking.
[33] Depending on the circumstances, it may be preferable to look at the protection of the identity of the source first. For example, release of the information sought may not be prejudicial, but release of the source’s name would be. In the same vein, public interest in disclosure of the information itself may outweigh in importance public interest in non-disclosure, except for the identity of the source. On the other hand, there is no point in engaging in a long debate as to the need to protect the source if the information itself is not relevant and will not be released. The designated judge who proceeds to the balancing required by section 38 is in the best position to determine the process to be followed so as to foster the better exercise of his or her discretion in the most efficient manner.
[122]
This Court has recognized that the disclosure of information that could identify or tend to identify a human source of information is generally injurious to national security (Telbani at para 45; Henrie FC at para 30). The task is then to determine whether the information could lead to the identification of a specific source and, if so, to proceed with an analysis of the third step of the Ribic test, namely, the weighing of the interests in issue.
[123]
The AGC takes a single position with regard to the first four documents analyzed under this rubric. I am instead of the view that they must be considered separately given that the addenda proposed by the amici do not all make it possible to identify CSIS’s human sources.
a)
AGC00615/AGC01703
[124]
This is an entirely redacted document dated March 10, 2006. It contains numerous elements of little relevance and those that are relevant have been summarized in a manner that is not to the complete satisfaction of the amici, who propose to add the passages in bold:
[TRANSLATION]
It states that a source informed the Service of having been told by someone that Charkaoui often spoke of jihad and of the need to lead a jihad against the infidels, but that he was very prudent about expressing his real views. One of the opinions provided by this same person was that, judging by Charkaoui’s lifestyle, he was probably involved in fraudulent activities.
[125]
Although the wording proposed by the amici is somewhat confusing, it has the merit of specifying that the information contained in the first sentence is double hearsay. This makes it nearly impossible to identify CSIS’s source or even the person who may have provided its source with the information in question. As for the information contained in the second sentence, it is so general that it could have originated from anyone who was in Mr. Charkaoui’s circle of acquaintances at that time.
[126]
When the information for which disclosure is sought may cause the person concerned to suspect his or her acquaintances, it is not sufficiently specific to identify a human source and cannot be subject to the privilege claimed by the AGC.
[127]
I am therefore of the view that the following summary does not make it possible to identify the source of the information provided to CSIS and that accordingly, its disclosure would not be injurious to national security:
[TRANSLATION]
It states that a source informed the Service of having been told by someone that Charkaoui often spoke of jihad and of the need to lead a jihad against the infidels, but that he was very prudent about expressing his real views. This same source was of the view that, judging by Charkaoui’s lifestyle, he was probably involved in fraudulent activities.
b)
AGC01598/AGC01699
[128]
This is an entirely redacted document dated July 13, 2001. The AGC suggests adding the following to the general summary:
[TRANSLATION]
The Service received information to the effect that Mr. Charkaoui had reportedly been in an Al-Qaeda training camp in Afghanistan at the same time as Ahmed Ressam. The Service also received information about other individuals.
[129]
The amici seek to have it specified that this information originated from a person |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[130]
Given that is it impossible to know how many individuals Mr. Charkaoui is alleged to have told this to, the risk that this person could be identified is difficult to assess but it could be high. The wording proposed by the amici would also enable the source to recognize ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[131]
Mr. Charkaoui’s interest in the addendum proposed by the amici is also difficult to assess. The evidence shows that when information originates from a person |||||||||||||||||||||||||||||||||||||||||||||| it treats it with a certain degree of caution and seeks to obtain corroborative evidence. The evidence also shows that a person |||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| The addendum proposed by the amici is therefore rather neutral in that it could provide a certain amount of probative value to the information because it originated from Mr. Charkaoui himself, or it could remove probative value because the source may be of questionable reliability.
[132]
The summary proposed by the AGC is therefore sufficiently neutral to protect information that would be injurious to national security or endanger the safety of any person, and to not unduly increase or lessen the probative value of the information contained in the document.
c)
||||||||||||||||||||||
[133]
This is an entirely redacted document dated |||||||||||||||||||||||||||||||||||||| The relevant portion of the summary, on which the AGC and the amici are in agreement, states the following:
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||
[134]
The amici are seeking an addendum to the excerpt stating that the information originated from “a person
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[135]
Although the information contained in this excerpt is very general and is more than 15 years old, it could confirm |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||| at the time the report was written. Moreover, mentioning that the source is |||||||||||||||||||||||||||||||||||||||||| does not really make it possible to assess the probative value of the information—like it would if, for example, it were to mention that the information originated from a |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| source. In this case, the interest in protecting the human source favours non-disclosure.
d)
AGC01717
[136]
This is an almost entirely redacted report dated January 3, 2007. The portion of the summary on which the AGC and the amici are in agreement reads as follows:
[TRANSLATION]
It states that it is possible, although not certain, that Mr. Charkaoui spoke of the duty of Muslims to rob kafirs (infidels). In addition, it states that Mr. Charkaoui uses his intelligence and talents to target Muslims who are more vulnerable and likelier to adhere to the extremist ideology he promotes.
[137]
The amici are seeking an addendum to the excerpt noting that the information originated from a source |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
During the cross-examination of the CSIS representative, Mr. Couture suggested that the CSIS jargon be replaced by the following addendum: [translation] “The information above originated from a source of unknown reliability”
.
[138]
The AGC objects to a specification in the summary that the information originated from a human source, as it would tend to identify that source.
[139]
I do not agree. The fact that the report is more than 10 years old and that the summary is written in such general terms makes it next to impossible to identify the source. The information could have come from practically any one of Mr. Charkaoui’s acquaintances at the time. And if the fact that the source |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| is omitted, then it could have come from someone who knew someone who was an acquaintance of Mr. Charkaoui.
[140]
The excerpt with the wording from the second suggestion made by the amici will be added to the summary.
e)
||||||||||||||||||||||
[141]
This document and the following two are interrelated and concern |||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[142]
The excerpt of the summary of this first document, on which the AGC and the amici are in agreement, reads as follows:
[TRANSLATION]
It states that at one point Mr. Charkaoui had purportedly wanted to work as a baggage handler at the Montreal airport because it was a well-paying job.
[143]
The amici are asking for the following to be added:
[TRANSLATION]
The person who provided this information, who is of unknown reliability, was questioned by the Service about the planning of an attack on an Air France flight that Mr. Charkaoui was alleged to have participated in. The person claimed to not know of or to not have even heard of such a plan, or, evidently, any details of such a plan, which, according to the Service, may have involved six people: two in the front, two in the middle and two in the back, and the use of a pencil in the form of a keychain.
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[144]
The amici are attempting to highlight the fact that there may have been some confusion, in the analyst’s mind, between the intercepted conversation between Mr. Charkaoui and Mr. Abdelrazik and Mr. Tahir on June 25, 2000 (disclosed in large part in AGC01607) |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[145]
The AGC responds that this specification would make it possible to identify the source of the information |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| I agree with the AGC with regard to the reference to |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[146]
I am of the view that the public interest in refusing the disclosure outweighs Mr. Charkaoui’s interest in that information|||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| In this case, it is not a crucial fact supporting Mr. Charkaoui’s position in the underlying proceeding.
[147]
As for the fact that it is a human source of unknown reliability who was apparently unaware of any discussion regarding a planned attack on an Air France flight, this information is sufficiently neutral that it does not make it possible to identify the person who provided it. The source’s alleged ignorance means that the information even eliminates the possibility that it came from one of the participants in the conversation of June 25, 2000. The following excerpt will therefore be added:
[TRANSLATION]
The person who provided this information, who is of unknown reliability, was questioned by the Service about the planning of an attack on an Air France flight that Mr. Charkaoui was alleged to have participated in. The person claimed to not know of or to not have even heard of such a plan, or, evidently, any details of such a plan, which, according to the Service, may have involved six people: two in the front, two in the middle and two in the back, and the use of a pencil in the form of a keychain.
f)
AGC01721
[148]
This is a |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||For reasons previously explained, the following specification, suggested by the AGC, will be included in the summary:
[TRANSLATION]
It reports the events surrounding the takeover and hijacking of an aircraft.
g)
AGC01722
[149]
This is an entirely redacted report dated January 27, 2004. The amici are asking for the following excerpt to be added to the proposed summary:
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| ||||||||||||||||||||
[150]
For the reasons that have been expressed in regard to the two preceding documents, this excerpt would enable the source to be identified and should not be disclosed. My previous reasons also apply to the fact that the public interest in protecting national security and the safety of any person outweighs Mr. Charkaoui’s interest in the disclosure of this information.
(3)
Information obtained from foreign intelligence agencies and law enforcement services, the disclosure of which has not been authorized by those agencies and services
[151]
The disclosure of information obtained in confidence from foreign agencies and services is a matter of concern for all of the Canadian agencies involved in this case. Public and classified affidavits of representatives of CSIS, the RCMP, Global Affairs and the Department of Justice place considerable emphasis on the importance of Canada’s international relations in security intelligence gathering. Canada is a net importer of such intelligence and the ability of its agencies to maintain order and to protect the safety of its citizens is largely dependent on the relationships they maintain with their foreign counterparts. Canada’s effectiveness in international relations and security investigations is a pressing and substantial concern, and it constitutes a public interest of great importance (Ruby v Canada (Solicitor General), 2002 SCC 75 at paras 43, 54 [Ruby SCC]).
[152]
The evidence shows that information shared between security agencies and law enforcement agencies is always shared with the explicit or implicit understanding that information and its source will not be disclosed without the prior consent of the agency that is providing the information. This principle is commonly known as the “third party rule”
.
[153]
The failure to respect this rule is likely to be injurious to not only Canada’s diplomatic relations, but also its national security. Although a partner that has not consented to the disclosure of information may nonetheless continue to share some information with Canada where it is in its interests, the nature and extent of the information provided may be affected for some time (Almalki FC at para 136). The negative impact could extend beyond Canada’s relationship with that partner and affect the perception of other partners with respect to the loyalty and reliability of Canadian agencies. The reaction time when faced with a terrorist threat can be critical and the circulation of security intelligence is necessary to ensure the safety of Canadians and to enable joint operations with other countries when such a threat has an international component.
[154]
The harm that could potentially be suffered by a foreign agency following the disclosure of its information is difficult for CSIS to gauge as it does not know all of the aspects of that agency’s investigation. What is certain is that the disclosure of information from foreign agencies could compromise the investigations of those agencies and, given that acts of terrorism that threaten Canada are often planned abroad, the disclosure could also have repercussions on Canada’s security.
[155]
The exchange of security intelligence among allied countries has been a common practice for decades. Since 2001, member states of the United Nations have been bound by Resolution 1373 of the United Nations Security Council, which states, among other things, that they must assist each other in criminal investigations relating to the participation in and the funding of terrorist activities.
[156]
At the time of its creation in 1984, CSIS inherited a number of bilateral agreements that the former RCMP Security Service entered into with foreign agencies, and it has entered into several others since then under the authority of section 17 of the CSIS Act. In its 2004–2005 annual public report, CSIS indicated that it maintains relationships with 250 foreign agencies from about 140 countries.
[157]
Canada obviously does not have the same relationship with all foreign countries and, as a result, the disclosure of security intelligence from one country versus another may have a different impact on Canada’s international relations, national defence or national security.
[158]
It is important to note that the third party rule is not an imperative rule of law—but rather a principle specific to international relations, and that it is influenced, in this case, by considerations of prejudice and of balancing of interests specific to the scheme of section 38 of the CEA. Put another way, the fact that information was provided in confidence by a foreign agency is relevant in the analysis of prejudice, but it does not give it absolute immunity (Almalki FC at para 133).
[159]
Nor does the third party rule cover the mere existence of a relationship between a Canadian agency and a foreign agency and, in that regard, the AGC has the burden of providing another justification for claiming national security privilege (Khawaja at para 148).
[160]
In addition, it is incumbent upon the AGC to show that the Canadian agencies concerned have made reasonable efforts to seek the consent of the foreign agency for the disclosure of the information in question (Ruby v Canada (Solicitor General), [2000] 3 FC 589 (FCA) at paras 110-111, rev’d on other grounds in Ruby SCC), or if a request for disclosure had been made, it would have necessarily been refused (Canada (AG) v Canada (Commission of Inquiry into the Actions Canadian Officials in Relation to Maher Arar), 2007 FC 766 at para 73). This obligation seems to carry more weight where the right to security of the person who has an interest in the information, guaranteed by section 7 of the Charter, is engaged (Almalki FC at para 142). Such is not the case here.
[161]
In Khawaja, Justice Richard Mosley clearly set out the purpose of the rule and the limits to its exception:
[145] Clearly, the purpose of the third party rule is to protect and promote the exchange of sensitive information between Canada and foreign states or agencies, protecting both the source and content of the information exchanged to achieve that end, the only exception being that Canada is at liberty to release the information and/or acknowledge its source if the consent of the original provider is obtained.
[162]
The ex parte evidence presented before me shows that the documentation in question in the AGC’s application contains security intelligence from seven foreign agencies, which are from four countries. Most of the requests from the amici relate to information obtained from two of the seven foreign agencies concerned in this application.
[163]
Initial requests were made to these seven agencies in order to obtain their consent to the disclosure of the information they had provided, or to obtain their approval of a summary of that information. A number of reminders were sent to the agencies. Some of the agencies did not respond; others responded, indicating which information they were authorizing disclosure of and which information they deemed sensitive. For the information that they deemed sensitive, they requested that confidentiality be maintained or that certain changes be made to the summaries.
[164]
Certain information was not the subject of a specific request to the foreign agencies concerned because:
i. The information would reveal not only the existence of a relationship between CSIS and the agency in question, but also the nature of that relationship; the very content of the summaries proposed by the amici would enable the identification of the foreign agency in question.
ii. Certain changes to the summaries were requested by the amici after CSIS had received the response from a foreign agency to its request for consent.
[165]
I will examine the information for which the foreign agencies concerned did not authorize disclosure and then the information for which no request was made by the Canadian agencies.
a)
Foreign agencies that did not consent to the disclosure of the information they provided to Canadian agencies
[166]
The amici are requesting the provision of information in respect of which disclosure was not expressly authorized—or was refused—by the foreign agency concerned. At paragraph 89 of their memorandum, they claim that Justice Mosley did likewise in Almalki FC, when, at paragraph 146 of his reasons, he referred to the unsuccessful attempts made by counsel to the Iacobucci Inquiry with respect to three countries, “requesting that they provide relevant documentation and information”
. The amici understand from this passage that Justice Mosley authorized the disclosure of information in respect of which foreign agencies had not responded to requests for consent.
[167]
First, the request made by counsel to the Iacobucci Inquiry appears to be with regard to documentation and information that had yet to be provided and concerning allegations of torture that occurred at the hands of those countries made by the principal respondents in the underlying proceeding; it does not appear to be for consent to disclose information that had already been provided, in the context of any investigation.
[168]
Second, one must read paragraph 146 of Almalki FC together with paragraphs 137 and 145. Justice Mosley states therein that he received evidence in camera to the effect that certain requests for consent were made but that with regard to other information, such a request would have been futile and would not have “weighed heavily in the balance”
(at para 145).
[169]
Lastly, it should be noted that it was precisely with respect to the application of the third party rule that this Court’s decision in Almalki FC was set aside in part by the Federal Court of Appeal in Almalki FCA.
[170]
Thus, in my view, the decision of this Court in Almalki FC does not support the position of the amici.
[171]
The evidence that was presented to me in camera in this case refers to the countries to which the seven foreign agencies concerned belong, the mission and responsibilities of each of the foreign agencies, the origin and the nature of the collaboration between the agency and a Canadian agency, the frequency of the exchanges between them and the nature of the information exchanged.
[172]
In each case, I am satisfied that the AGC has demonstrated the importance of Canada’s relationship with each of these agencies, the importance to the security of Canada of preserving that relationship and the fact that it is of utmost importance to Canada that the type of security intelligence in question, given the countries of origin, continue to be provided to Canadian agencies.
[173]
As indicated above, the evidence also shows that some agencies responded to CSIS’s requests and either authorized partial disclosure of the information or required that confidentiality be maintained. The AGC considered the position taken by these foreign agencies in the information she consents to disclose or in the summaries she proposes.
[174]
In those instances, I am satisfied that the disclosure of the information in issue would be injurious to national security.
[175]
Other agencies simply did not respond to CSIS’s initial request or to several reminders (up to seven in one case) sent to them. I am satisfied in those instances that the Canadian agencies met their obligation of taking reasonable measures to obtain the consent of foreign agencies to the disclosure of the information provided by them. I am also satisfied that the disclosure of the information in issue would be injurious to national security.
[176]
After the hearing, I was notified by counsel for the AGC that a Moroccan agency had authorized Global Affairs to disclose the transcript of an interrogation of Noureddine Nafia that was conducted by two Moroccan police officers on August 8, 2003 (AGC00636, AGC01746 and AGC03925). The AGC no longer objects to the disclosure of this information, which will be communicated to Mr. Charkaoui.
[177]
In addition, with regard to a |||||||||||||||||||||| agency that responded to a request for consent from CSIS, the amici had made requests for addenda to the summaries of documents AGC01335 and AGC03893 after this agency had responded to CSIS. At the time of the hearing of the AGC’s application, no response had yet been received from this agency. If this agency responds positively to CSIS’s request before the hearing of the case in the underlying proceeding, the information or the addenda to the summaries requested by the amici will be communicated to Mr. Charkaoui.
[178]
Given (i) the reasonable efforts by CSIS to obtain the consent of foreign agencies to the disclosure of the information they provided to Canadian agencies; (ii) the importance of respecting the third party rule with regard to these foreign agencies; (iii) the fact that some of the information will have a neutral impact on the underlying proceeding; and (iv) the fact that the other information for which they refuse disclosure does not establish any crucial fact that the disclosed information (namely the non-redacted parts of the documents or the summaries of those documents) does not establish, I am of the view that the balancing of interests favours the position of the AGC. The third party rule shall be respected and only the information that the AGC consents to disclose and the summaries and addenda to the summaries she proposes will be communicated to Mr. Charkaoui.
[179]
Lastly, the AGC requested additional changes to the summaries of documents AGC01480, AGC03922 and AGC03924.
[180]
The requested changes to documents AGC01480 and AGC03922 remove information for which the foreign agency expressly refused disclosure, while the intent of the requested change to document AGC03924 is to more faithfully respect the information provided by the foreign agency concerned. The version of the summaries proposed by the AGC will be communicated to Mr. Charkaoui.
b)
Information for which no request for authorization was made to the foreign agency concerned
[181]
A number of requests made by the amici were not the subject of a request for consent for disclosure made to the agencies concerned. I am referring here to information from four agencies, which are from three countries.
[182]
The requests of the amici regarding Agency A, from Country 1, are listed at Tab 12 of the classified affidavit of the CSIS representative.
[183]
The AGC explains her failure to request the consent of Agency A by the fact that this same agency expressly asked to redact from the documents or to remove from the summaries to be communicated to Mr. Charkaoui any information that could result in the agency or its country of origin being identified.
[184]
I am satisfied, after examining the information from Agency A, that the requests for the disclosure of information and for addenda to the summaries by the amici would all result in, if granted, a breach of the third party rule with regard to Agency A, which would be injurious to national security. The fact that no request was made to Agency A in no way affects the confidential nature of this information and the expectations of Agency A in this regard. This information, were it to be disclosed, would reveal the existence and the nature of the relationship between CSIS and Agency A.
[185]
I am also satisfied that the information in question has a neutral impact on the underlying proceeding, that it can be found elsewhere and differently worded in the information that has been disclosed, or that some of the evidence found therein is capable of being demonstrated in other ways, without breaching the third party rule.
[186]
More specifically, most of the information sought for disclosure by the amici concerns the identification of Agency A, a |||||||||||||||||||||| agency, as the source of this information. The objective of the amici is to enable Mr. Charkaoui to argue, in the underlying proceeding, that the Ministers authorized both security certificates on the basis of information obtained under torture. However, several pieces of information for which disclosure was authorized (in particular those contained in documents AGC00636, AGC01746 and AGC03925) indicate that this information was obtained from Noureddine Nafia, who was convicted for a bombing in Casablanca in 2003, while he was being detained by Moroccan authorities. Given that the documentary evidence before me does not indicate that this information was obtained by means of torture, Mr. Charkaoui will not be deprived of the opportunity to present, directly or indirectly, this evidence before the Superior Court.
[187]
If |||||||||||||||||| cannot be identified as the country of origin of Agency A, the amici request that the fact that the information comes from a |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||| country be added to the summaries of the documents in question. Once again, it will be for the Superior Court to consider the fact that Noureddine Nafia was being detained by Moroccan authorities when he identified Mr. Charkaoui as being a member of the Canadian cell of the Moroccan Islamic Combatant Group, and to draw all of the inferences that may be made from this.
[188]
The public interest in protecting the security of Canada therefore outweighs Mr. Charkaoui’s interest in having the information from Agency A disclosed.
[189]
The requests of the amici regarding documents AGC00245 and AGC01323 were not sent by CSIS to Agency B, in Country 1. As in the case of Agency A, Agency B specifically requested not to be associated with the information provided. Not only would the addenda to the summaries proposed by the amici enable the identification of the agency and its country of origin but, in the case of the summary of document AGC00245, it would also enable the identification of ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
[190]
For the same reasons as for Agency A, this addendum will not be communicated to Mr. Charkaoui.
[191]
Requests for addenda to the summaries of documents AGC01335 and AGC01342 were not made to Agency C, in Country 2. In both cases, the purpose of the addendum is only to identify Agency C and given that Agency C expressly requested to not be identified, it will not be. With respect to the request to disclose paragraph 7 of AGC01335, it is dealt with elsewhere in these reasons.
[192]
The request by the amici regarding document AGC01481 was not sent to Agency D, in Country 3, because of the response to a similar request made in 2009 as part of a review of the reasonableness of the 2008 certificate by this Court. The amici are requesting the identification of the country referred to in the summary and the inclusion of the fact that the foreign agency did not have any specific information with regard to Mr. Charkaoui. The AGC objects to this and argues that identifying the country of origin would be injurious to CSIS’s relations with foreign intelligence agencies and police services.
[193]
I am of the opinion that it is possible to achieve the objective sought by the amici by using more neutral wording so as to protect CSIS’s relationship with Agency D. I am also of the view that the potential prejudice alleged by the AGC is also mitigated by the passage of time. The following excerpt will therefore be added to the summary of this document:
[TRANSLATION]
In January 2004, CSIS made a request to an agency in a South Asian country (other than Afghanistan) for information regarding Adil Charkaoui’s alleged presence in that country in February 1998. Following the request, the agency in question requested a photo of Mr. Charkaoui. Following receipt of that photo, the agency informed CSIS in May and August of 2004 that its inquiries had yielded no tangible results.
[194]
Lastly, the amici are requesting disclosure of the only redacted passage of document AGC03927, in which CSIS claimed that a piece of sensitive information was inadvertently disclosed by this Court in Charkaoui (Re), 2009 FC 476. I concur with the position of the amici. The fact that Mr. Charkaoui was the subject of an international arrest warrant referring to him as a member of the Moroccan Islamic Combatant Group was public at the time of the judgment of this Court, which is also public. The passage simply shows an evaluation error on the part of CSIS that, were it to be disclosed, is unlikely to be injurious to national security. It will be disclosed to Mr. Charkaoui.
C.
References to documents not produced as part of the AGC’s application
[195]
At a case management conference, the amici raised the fact that at several places in the documentation produced in the record of this Court, there were references to documents that had not been submitted for review by them. A directive was issued to the amici whereby, during their review of the documentation, they would make a list of the documents that contained a reference to another document that had not been produced. The amici identified 21 documents that contained such references, and their list can be found in Annex E. After reviewing these documents, I note that some of them concern third parties and are not of interest to Mr. Charkaoui, while in others, the non-redacted parts of the documents enable the reader to understand the nature of the documents to which the reference was made. It is therefore open to Mr. Charkaoui to request their disclosure in the context of the underlying proceeding.
[196]
However, in the case of nine of the documents listed by the amici, namely AGC00037, AGC00505, AGC01323, AGC01336, AGC01357, AGC01358, AGC01362, AGC01480 and AGC01700, the documents referred to appear to concern Mr. Charkaoui and there is not sufficient non-redacted information to allow a reader who does not have access to classified information to be able to request their disclosure. Given that these documents may be relevant to the underlying proceeding (on which I obviously express no opinion), the following note will be added to the summaries of these documents, which can be found in Annex C:
[TRANSLATION]
At paragraph X, page Y of the document, there is a reference to a document that may be relevant to the underlying proceeding but that is not filed in the Federal Court record.
XIV.
Conclusion
[197]
The AGC’s application is therefore allowed in part and the prohibition on disclosure is confirmed pursuant to subsection 38.06(3) of the CEA with regard to the classified information identified in these reasons.
[198]
With respect to the disclosure that must be the subject of one or more conditions that are likely to limit any injury to international relations or national security, in application of subsection 38.06(2) of the CEA, a table of summaries is reproduced in Annex C of this judgment.
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