Date: 20060330

Docket: DES-3-03

Citation: 2006 FC 410

Ottawa, Ontario, March 30, 2006

Present: The Honourable Mr. Justice Simon Noël

BETWEEN:

IN RE a certificate pursuant to subsection 77(1) of the

Immigration and Refugee Protection Act, signed by the

Minister of Immigration and the Solicitor General of

Canada (the Ministers), S.C. 2001, c. 27 (IRPA);

IN RE the filing of this certificate in the Federal

Court of Canada pursuant to subsection 77(1) and

sections 78 and 80 of the IRPA;

IN RE the amendment of Mr.Charkaoui's

conditions of release;

IN RE A REQUEST BY THE MINISTERS

to proceed with a hearing in camera

in the absence of Mr. Charkaoui and his counsel

pursuant to paragraph 78(e) of the IRPA

and Mr. Charkaoui's objection to such a hearing;

AND IN RE Adil Charkaoui (Mr. Charkaoui).

REASONS FOR ORDER AND ORDER

[1]                On February 17, 2005, the undersigned released Mr. Charkaoui subject to 16 "preventive conditions" (see Charkaoui (Re), 2005 FC 248). There were then certain minor amendments to those conditions. On March 22, 2005, at the request of Mr. Charkaoui, an order was issued inter alia staying the review of the reasonableness of the certificate, thereby enabling the Ministers to file an application for protection in accordance with subsections 79(1) and 112(1) of the IRPA. Very recently, on February 24, 2006, Mr. Charkaoui filed a motion to set aside the great majority of the preventative conditions, which shall be heard on April 6 and 7, 2006.

[2]                On March 13, 2006, the Ministers asked the Court to preside over a hearing in camera in the absence of Mr. Charkaoui and his counsel for the purposes of examining the security intelligence information supporting the certificate and the arrest warrant as well as the other evidence or information. The Ministers also asked the Court to order that this information and evidence remain in the Court's sealed records on this matter and that they not be disclosed to any other party, unless there is an order to the contrary made by the undersigned, all in accordance with paragraphs 78(e), (f), (g) and (h) of the IRPA.

[3]                Mr. Charkaoui objects to the Ministers' request on the following grounds:

-     Paragraph 78(e) of the IRPA is an exception to the general principle of public hearings and prevents the interested party from contesting the Crown's evidence;

-     Mr. Charkaoui has already disputed the constitutional validity of paragraph 78(e) of the IRPA and the Supreme Court of Canada will hear the matter in June 2006;

-          Without admitting the lawfulness of the proceeding or legitimating it, Mr. Charkaoui adds that because it is an exception to the general principle for public hearings and because it breaches the right to make full answer and defence, conducting such a hearing must be limited to the examination of relevant information which, if disclosed, could be injurious to national security;

-           Further, this information, the subject of the hearing in camera, must be trustworthy, relevant and necessary to deciding the issues regarding the motion to set aside the preventative conditions of Mr. Charkaoui's release;

-           The Ministers' request does not on its face establish the relevance of the documents to be submitted for examination or their connection with the issues, or the need to resort to a hearing in camera;

-           The Ministers' counsel have the obligation to disclose the relevant information and, in order to eliminate the possibility of taking Mr. Charkaoui and his counsel by surprise, the request must at the very least announce the issues to be debated and disclose the objectives of the evidence to be presented in camera so that Mr. Charkaoui can make effective representations regarding the request for a hearing in camera.

[4]                The Ministers' position is as follows:

-            In camera hearings in the area of national security have already been the subject of decisions before the courts of law;

-           The wording of paragraph 78(e) of the IRPA allows Ministers to request hearings in camera in absence of the parties and their counsel when the purpose of such a request is to have a designated judge examine security intelligence information and other evidence or information and when their disclosure would be injurious to national security or to the safety of any person;

-           Another objective contemplated by such a request is to have the judge summarize the contents of the documents, once the documents and evidence have been examined, without disclosing evidence which could be injurious to national security or to the safety of any person, while providing sufficient information to the interested party.

[5]                Mr. Charkaoui has already presented to this Court as well as the Federal Court of Appeal his arguments regarding the unconstitutionality of the certificate procedure provided by sections 76 et seq. of the IRPA, including section 78 which allows hearings in camera on request by the Ministers. In Charkaoui (Re) 2003 FC 1419, dated December 5, 2003, the undersigned analyzed the certificate procedure proposed under the IRPA, taking into account the arguments bearing on the unconstitutionality of that procedure. I dismissed Mr. Charkaoui's arguments and accordingly validated the certificate procedure including the hearing in camera for the purposes of examining the national security intelligence information or other evidence (see paragraphs 98 to 107 of that decision).

[6]                The Federal Court of Appeal upheld the undersigned's decision in a unanimous judgment dated December 10, 2004 (see Charkaoui (Re), 2004 FCA 421, at paragraphs 75 to 101). That judgment has been appealed to the Supreme Court and the hearing will be held in June 2006.

[7]                Mr. Charkaoui adds that the protected information must be relevant to the issues. In this case, the issue being examined is the application to have set aside a significant number of the preventative conditions imposed on Mr. Charkaoui's release. I agree. The purpose of a hearing in camera is to present to the designated judge information to be assessed so that the judge can establish its relevance in relation to the issues and prepare a summary of the evidence in order to provide sufficient information to the interested party without disclosing any information which could be injurious to national security or to the safety of any person.

[8]                In order to do so, Parliament put the request procedure at the disposal of the Ministers. It did not make the procedure subject to great formality (see paragraph 78(e) of IRPA). This is consistent with the rules set out by Parliament for the application of paragraph 78 and its subparagraphs in the IRPA:

78. The following provisions govern the determination:	78. Les règles suivantes s'appliquent à l'affaire :
(a) the judge shall hear the matter;	a) le juge entend l'affaire;
(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;	b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;	c) il procède, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;	d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;
(e) on each request of the Minister or the Minister of Public Safety and Emergency Preparedness made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;	e) à chaque demande d'un ministre, il examine, en l'absence du résident permanent ou de l'étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
(f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Minister of Public Safety and Emergency Preparedness and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;	f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l'affaire soit si le juge décide qu'ils ne sont pas pertinents ou, l'étant, devraient faire partie du résumé, soit en cas de retrait de la demande;
(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;	g) si le juge décide qu'ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d'autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l'affaire;
(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;	h) le juge fournit au résident permanent ou à l'étranger, afin de lui permettre d'être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and	i) il donne au résident permanent ou à l'étranger la possibilité d'être entendu sur l'interdiction de territoire le visant;
(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.	j) il peut recevoir et admettre en preuve tout élément qu'il estime utile - même inadmissible en justice - et peut fonder sa décision sur celui-ci.

[Emphasis added.]

The procedure for a request provided under this section should not be unduly formal, which could weigh down the process. This is not what Parliament intended under section 78. To the contrary, had Parliament wanted to impose more stringent procedural rules, it would have so specified.

[9]                On that point, Mr. Charkaoui adds that the request should shed light on the relevance of the protected information as well as the need to resort to an assessment in camera. Such a request is problematic in itself. How to ensure the confidentiality of information or other evidence while establishing their relevance to the issue? Establishing the relevance of the evidence while taking into account the issue would require the disclosure of facts or evidence which in certain cases must remain confidential for security reasons. This is inconsistent with the designated judge's obligation to ensure that no information is disclosed that could be injurious to national security or to the safety of any person.

[10]            The solution advanced by Parliament in such situations is to impose on the judge the obligation to assess the relevance of the information, to return to the Ministers the irrelevant information and to prepare a summary of the relevant evidence in order to reasonably inform the interested party while ensuring not to disclose any evidence which could be injurious to national security or to the safety of any person (see paragraphs 78(b), (e), (f), (g) and (h) of the IRPA).

[11]            That is the procedure intended by Parliament in these circumstances. In Charkaoui (Re) supra, the judge's role was explained as follows:

In my opinion, designated judges are the cornerstone of the review procedure because they have a twofold obligation: to protect criminal or national security intelligence; and to provide the person concerned with a summary of the evidence that reasonably discloses the circumstances giving rise to the certificate and the warrant that resulted in his detention. This constitutes the balance between the opposing interests.

Section 78 of the IRPA is applicable to every step of the procedure relating to the certificate for detention or to conditional release.

[12]            The designated judge has a certain expertise when examining the information or other evidence and when preparing a summary of the evidence. In Sogi v. MCI, 2004 FCA 212, at paragraph 45, the Federal Court of Appeal, per Rothstein J.A. (now a Justice of the Supreme Court of Canada), recognized this expertise:

Federal Court judges are experts in assessing the advisability of disclosing security intelligence information. . . . Parliament has precluded not only administrative tribunal members but even judges of provincial superior courts from this task. It appears that, in a number of legislative contexts, Parliament considers Federal Court judges best-suited to determine the appropriateness of disclosing information that could be injurious to national security.

[13]            For the reasons stated herein, I cannot give effect to Mr. Charkaoui's objection and I must therefore dismiss it.

ORDER

FOR THESE REASONS, THE COURT ORDERS THE FOLLOWING:

            -           Mr. Charkaoui's objection is dismissed;

-           The application by the Ministers for a hearing in camera so that the designated judge may examine the information or other evidence whose disclosure would be injurious to national security or to the safety of any person is granted.

"Simon Noël"

Certified true translation

Kelley A. Harvey, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                          DES-3-03

STYLE OF CAUSE:                         

IN RE a certificate pursuant to subsection 77(1) of the

Immigration and Refugee Protection Act, signed by the

Minister of Immigration and the Solicitor General of

Canada (the Ministers), S.C. 2001, c. 27 (IRPA);

IN RE the filing of this certificate in the Federal

Court of Canada pursuant to subsection 77(1) and

sections 78 and 80 of the IRPA;

IN RE the amendment of the party's

conditions of release;

IN RE A REQUEST BY THE MINISTERS

to proceed with a hearing in camera

in the absence of Mr. Charkaoui and his counsel

pursuant to paragraph 78(e) of the IRPA

and Mr. Charkaoui's objection to such a hearing;

AND IN RE Adil Charkaoui (Mr. Charkaoui).

DATE OF HEARING:                      WRITTEN MOTION

REASONS FOR JUDGMENT:      The Honourable Mr. Justice Simon Noël

DATE OF REASONS :                     March 30, 2006

APPEARANCES:

SOLICITORS OF RECORD: