Harkat, Re, 2003 FC 918

Date: 20030725

Docket: DES-4-02

Citation: 2003 FC 918

IN THE MATTER OF a certificate signed pursuant to

subsection 77(1) of the Immigration and Refugee Protection Act,

S.C. 2001, c. 27, (the "Act");

AND IN THE MATTER OF the referral of that certificate

to the Federal Court of Canada pursuant to subsection 77(1),

sections 78 and 80 of the Act;

AND IN THE MATTER OF Mohamed Harkat.

                                                        REASONS FOR ORDER

DAWSON J.

[1]                These are my reasons delivered orally at Gatineau, Quebec on July 25, 2003.

[2]                In the course of the hearing held to provide Mr. Harkat with an opportunity to be heard regarding his inadmissibility, Mr. Harkat has made a motion to the Court which asks for two things. First, he seeks an order compelling the attendance of a knowledgeable CSIS employee to testify about the summary of the security intelligence report previously provided to Mr. Harkat. Second, he seeks an order quashing the security certificate because of what Mr. Harkat argues is an abuse of process arising out of what he says is an abusive threat of criminal prosecution. In the alternative to quashing the certificate Mr. Harkat asks, as I understand it, that I issue a ruling or interpretation of the applicable legislation so as to advise Mr. Harkat's intended witness, Mr. Marchessault, that Mr. Marchessault cannot be prosecuted for his testimony in Court, or in the further alternative that I issue an order in the nature of prohibition prohibiting the Attorney General of Canada from bringing any prosecution against Mr. Marchessault.

[3]                I will deal first with the request for production of a Service employee to testify about the summary.

[4]                I think it helpful to properly explain what the summary is.

[5]                Two of the purposes of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") as set out in section 3 of the Act, are first, to protect the safety of Canadians and to maintain the security of Canadian society, and second, to promote security by denying access to Canadian territory to persons who are security risks. At the same time, the Act requires the decisions made under the Act to be consistent with the Canadian Charter of Rights and Freedoms.

[6]                Section 78 of the Act, which governs the conduct of this proceeding, reflects Parliament's effort to meet both of these objectives.

[7]                Section 78 obliges the judge designated to deal with the determination of the reasonableness of the security certificate to ensure the confidentiality of the "information" on which the certificate is based and "any other evidence that may be provided to the judge if, in the opinion of the judge", the disclosure of that information or evidence would be "injurious to national security or to the safety of any person". The judge is also obliged to provide to the person who is named in a security certificate a summary of the information or evidence that enables the person to be "reasonably informed of the circumstances giving rise to the certificate". The judge is not to disclose "anything that in the opinion of the judge would be injurious to national security, or to the safety of any person if disclosed".

[8]                It follows, that unless the judge concludes the disclosure of information or evidence put before the judge would be injurious to national security or to the safety of any person, the evidence or information put before the judge would be disclosed to the person named in the certificate. The right of the person to be reasonably informed of the circumstances giving rise to the certificate is subject to restriction only where disclosure would, in the opinion of the judge, be injurious to national security or to the safety of any person.

[9]                That is the exercise which I carefully performed when the security certificate was referred to the Court. Throughout, I am mindful that the openness of court proceedings is one of the important protections of our free and democratic society. At the same time, our free and democratic society depends upon the protection of our nation's security.

[10]            The summary therefore represents the disclosure of the information upon which the certificate is based, except for information which I have determined cannot be disclosed because that would be injurious to national security or to the safety of any person.

[11]            Returning to the motion before me, the written materials filed on Mr. Harkat's behalf suggested that what he seeks is greater disclosure of the facts relied upon to support the summary. For example, one of the grounds set out in the notice of motion was that Mr. Harkat "has a right to examine the factual underpinning and basis of the allegations against him as disclosed in the summary."

[12]            If what Mr. Harkat seeks is further disclosure of the facts that support the certificate, I agree with the submission of counsel for the Ministers that the motion should be dismissed. It should be dismissed because the summary discloses all of the facts which I believe may be disclosed, and because Mr. Harkat has already made one unsuccessful motion for further disclosure.

[13]            However, during the course of Mr. Harkat's lawyer's submission he stressed on more than one occasion that he is not asking for further disclosure of facts. Rather, he said he wishes to examine upon the facts disclosed in the summary to seek clarification of what is meant, so as to more precisely define what needs to be responded to.

[14]            Non-exhaustive examples were given of the nature of the questions to be put, and I would characterize the questions as being questions in the nature of a request for particulars or clarification of the extent of the allegations against Mr. Harkat.

[15]            I have concluded that Mr. Harkat should at least have the opportunity to advance such questions in the event that in the exercise of creating the summary ambiguities have been created that are capable of being clarified so as to ultimately streamline this proceeding.

[16]            That does not, however, mean that those questions should be put to a single witness produced to be cross-examined. This is so for at least two reasons. First, cross-examination tests the reliability and credibility of evidence, but what is sought here, as explained by Mr. Harkat's counsel in oral argument, is clarification of the case to be met. That does not, at least at this stage, raise an issue of credibility. Second, I accept that a security intelligence report is not the product of one person's work. I am not therefore satisfied that one person would be capable of responding properly or accurately to questions based on the whole of the summary, which is in turn based upon the whole of the security intelligence report.

[17]            I will, therefore, allow Mr. Harkat's motion in part. He is given leave to deliver questions in writing for the purpose of clarifying any matter set out in the summaries provided. In the event that counsel for the Ministers view any question to be improper in that it seeks something other than clarification of what is meant by the statements in the summaries, they may serve and file objections to the questions. After receiving responding submissions in writing from Mr. Harkat's counsel on any objection, and any reply submissions, I will rule on the propriety of any question. Thereafter, a response in writing shall be prepared to all of the questions not ruled to be improper. To the extent that the Ministers have any concerns that the answer to any question may be injurious to national security or to the safety of any person, they may request that the Court hear such information in the absence of Mr. Harkat and his counsel and make a determination pursuant to subsection 78(e) of the Act. This is a procedure available to them at any time during the proceedings.

[18]            The questions and the resultant answers in their final form will be provided to Mr. Harkat and will be in the public record. If, at the resumption of the hearing, a credibility issue arises from the summaries or from the answers provided, that issue of credibility can be dealt with at the hearing.

[19]            I am satisfied on the particular record before me that this procedure meets the duty imposed upon me by the Act to deal with matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit.

[20]            After I have concluded delivering these reasons, I will canvass with counsel suitable timelines for the delivery of questions and the making of any objections to the questions. Further timelines will then be set by me, in consultation with counsel, after the questions are known. The timelines will keep in mind the duty to proceed expeditiously.

ABUSE OF PROCESS

[21]            I next turn to that part of Mr. Harkat's motion which seeks relief as a result of what is described to be an abuse of process.

[22]            The abuse of process is said to be an abusive threat of criminal prosecution of Mr. Harkat's proposed expert witness, Mr. Marchessault, and Mr. Harkat's lawyers. The threat is said to be contained in a letter sent from counsel to the Ministers to counsel for Mr. Harkat. The content of this letter is key, and so I read the letter into the record:

Further to the Order of the Court of April 24^th 2003, adjourning this matter on the issue of the retainer by your client of an expert witness, we are corresponding with you with respect to your possible choice of M. Jean-Luc Marchessault. We write this letter in the hope of avoiding unnecessary complications which might disrupt the hearing, while not wishing to interfere in your client's arrangements to obtain the services of an expert witness.

The provisions of the Security of Information Act, R.S.C. c. O-5, as amended by S.C. 2001 c. 41 apply to the testimony of M. Marchessault as an expert for Mr. Harkat. It also applies to any discussions he has with you as Counsel for Mr. Harkat in preparation for his testimony at the s.78(i) Immigration and Refugee Protection Act hearing which affords Mr. Harkat with an opportunity to be heard with respect to his inadmissibility.

M. Marchessault, as a former employee of the Service, is a person "permanently bound to secrecy" as that term is defined in s. 8 of the Security of Information Act. If M. Marchessault's testimony is to cover such areas as the persons subject of an investigation conducted by the Canadian Security Intelligence Service, or the means or methods used by the Service to conduct an investigation, then he will reveal "special operational information" as that term is defined in s. 8 of the Security of Information Act (supra). We draw your attention particularly to subparagraphs (c), (d), (e) and (f) of that definition.

We are concerned that M. Marchessault, as someone permanently bound to secrecy, may not be aware that his testimony could be a breach of the provisions of the Security of Information Act, especially, sections 13 and 14. As it is your intention to retain M. Marchessault as an expert, who would likely be compensated for his alleged expertise (which is neither acknowledged nor supported by this correspondence), it is our position on behalf of the Ministers that he could not rely on the "public interest defence" set out in s. 15 of the Security of Information Act, as no offence is alleged by him, and the procedure set out in s. 15(5) of the Security of Information Act would not have been followed.

Mr. Marchessault may be asked to convey to you information or material that is "special operational information" as defined above. We therefore draw to your attention to s. 23 of the Security of Information Act. Any such request on your part could be construed to be an act by you counselling M. Marchessault to commit an offence contrary to sections 13 and 14 of the Security of Information Act.

Additionally we are required to advise the Ministers in respect of the provisions of s. 38 of the Canada Evidence Act, R.S.C. c. C-5, as amended by S.C. 2001, c. 41. Portions of M. Marchessault's testimony, could contain either "potentially injurious information" or "sensitive information" as those terms are defined in s. 38 of the Canada Evidence Act (supra). If you propose to have M. Marchessault address certain of the areas previously discussed, it may be necessary to serve a Notice on the Attorney General of Canada pursuant to the provisions of s. 38.01 of the Canada Evidence Act. Please note that this correspondence is not the Notice as contemplated by that statute. However, should you wish to advance the testimony of M. Marchessault in this area, you should file the requisite notice pursuant to s. 38.01(1) Canada Evidence Act.

Should you wish to discuss these issues further, prior to the teleconference of Friday, May 2^nd, 2003, at 2:00 pm, we would appreciate your written reply via facsimile.

[23]            I accept that, as a matter of law, in order to find an abuse of process, the Court must be satisfied that the process has become "tainted to such a degree that to allow it to proceed would tarnish the integrity of the court". This was the language used by the Supreme Court of Canada in R. v. Conway, [1989] 1 S.C.R. 1659 at page 1667, as quoted by the Supreme Court of Canada in 2000 SCC 44">Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 at paragraph 119. In an administrative context, the Court must be satisfied that "the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted". See: 2000 SCC 44">Blencoe at paragraph 120.

[24]            In my view, the evidence in this case fails to establish an abuse of process for the following reasons.

[25]            First, as submitted by counsel for the Ministers, I find the letter to be measured in its tone and informative in its content. The legislation referenced in the letter was relatively recent, and indeed Mr. Marchessault confirmed in cross-examination that he was not aware of the Security of Information Act, S.C. 2001, c. O-5 until Mr. Harkat's lawyer informed him of the contents of the letter. No express threat of prosecution is made in the letter, and I do not reasonably read the letter to be a threat of prosecution as opposed to an exposition of the applicable legislation.

[26]            Second, the letter was not sent to the proposed witness. Rather, a legal position was communicated to Mr. Harkat's lawyers by counsel for the Ministers. The Court was copied with the correspondence which, in my view, is not an action consistent with an abusive threat of prosecution.

[27]            Third, the letter, when shown to the proposed witness, did not cause him to reconsider testifying. Mr. Marchessault was clear in his testimony that he was shown the letter by Mr. Harkat's counsel on June 27, 2003, and Mr. Marchessault remained prepared to testify even after seeing the letter. On July 14, 2003, he again confirmed his willingness to testify. It was not until Mr. Marchessault sought independent legal advice, on the recommendation of Mr. Harkat's counsel, that Mr. Marchessault became concerned about his ability to testify. His concern was triggered by receiving independent legal advice about the scope of the Security of Information Act.

[28]            The only evidence from Mr. Harkat's counsel as to the effect of the letter upon them, was Mr. Galati's responsive correspondence of May 23, 2003. In that letter Mr. Galati wrote, in part:

8.              lastly, contrary to your assertion that "while not wishing to interfere in your client's arrangements to obtain the services of an expert witness", I would like to say Jim, that you are doing just that, and, to use one of your favourite expressions, which I learned from you as you used it before Mr. Justice Cullen, that your client can take its position, as expressed in tone and in substance in your letter, and "pound sand" with it;

9.              lastly, while I have never, in my career, either as a Crown Attorney, nor in private practice, ever referred any matter, with respect to a fellow barrister, to the Law Society, I feel compelled to suggest, not as a personal matter, but as an issue of the acceptable limits of threats that can go to defense counsel from a Crown Attorney, in the preparation of witnesses, and the proper administration of justice and the rules of ethics and conduct, whether we should not both refer this matter to the Law Society for investigation and adjudication.

I am sure, however, that at the end of the day, these issues, if they ever become issues, can and will be adjudicated by the capable hands of the Federal and other Courts, and should not be the subject of in limine threats of criminal prosecution against counsel for Mr. Harkat in preparing his "right to be heard" in an already oppressive and questionable procedure not yet reviewed, on its substance by the Supreme Court of Canada.

[29]            I do not take from this response that Mr. Galati was so chilled by the correspondence that any abuse of process occurred.

[30]            Finally, evidence was not led as to the relevance of any testimony which Mr. Marchessault may be able to give. Mr. Marchessault testified that "not much" had been done with respect to his retainer, that he had advised counsel that he would not discuss operational issues, and that he intended to give evidence in "general terms".

[31]            The action of counsel for the Ministers in sending the letter was not, in my view, improper. The letter has not tainted the process.

[32]            As no abuse of process has been established on the evidence, this part of Mr. Harkat's motion is dismissed.

[33]            Having heard, however, Mr. Marchessault's expression of concern about testifying, I will say that because of the protection available to prevent the improper release of information at the hearing of this matter it would be a matter of significant surprise to me if truthful testimony given in this Court in this proceeding could result in prosecution. Those protections include the presence of counsel for the Ministers who, I presume, would be well able to object that an answer might disclose special operational information, as that term is defined, or might disclose information injurious to national security or to the safety of any person. As well, the Court may on motion, by any party, hear evidence in camera, and subsection 78(e) of the Act allows counsel for the Ministers to request at anytime that the Court hear evidence in the absence of Mr. Harkat and his counsel. The Court is, as well, obligated to ensure the confidentiality of evidence 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. Truthful answers given in this context, in my view, are not likely to lead to prosecution.

[34]            Having delivered these reasons, I now ask counsel for their thoughts as to the timing of questions to be submitted, and the time to be made available for the making of any objection to the propriety of the questions, responding submissions and reply submissions.

                "Eleanor R. Dawson"         

Judge

Ottawa, Ontario

July 25, 2003

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                    DES-4-02

STYLE OF CAUSE:                    IN THE MATTER OF A CERTIFICATE SIGNED

PURSUANT TO SUBSECTION 77(1) OF THE

IMMIGRATION AND REFUGEE PROTECTION ACT

and

MOHAMED HARKAT

PLACE OF HEARING:              GATINEAU, QUEBEC

DATE OF HEARING:                JULY 21, 23 and 25, 2003

REASONS FOR ORDER OF MADAM JUSTICE DAWSON

DATED:                                       JULY 25, 2003

APPEARANCES:

DONALD RENNIE                      REPRESENTING THE DEPARTMENT OF JUSTICE

JAMES MATHIESON and           REPRESENTING THE SOLICITOR GENERAL OF

MICHAEL DALE                         CANADA

ROCCO GALATI and                  REPRESENTING MOHAMED HARKAT

BRUCE ENGEL and

MR. BAUM

SOLICITORS OF RECORD:

MORRIS ROSENBERG               FOR THE DEPARTMENT OF JUSTICE AND THE

DEPUTY ATTORNEY                 SOLICITOR GENERAL OF CANADA

GENERAL OF CANADA

GALATI, RODRIGUES,               FOR MOHAMED HARKAT

AZEVEDO & ASSOCIATES

TORONTO, ONTARIO

BRUCE ENGEL                           FOR MOHAMED HARKAT

OTTAWA, ONTARIO