Date:
20121010
Docket:
IMM-8416-11
Citation:
2012 FC 1140
Ottawa, Ontario, October 10, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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A.B.
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
ORDER AND ORDER
[1]
The
Applicant is asking this Court to appoint a special advocate pursuant to
section 87.1 of the Immigration and Refugee Protection Act, SC 2001, c
27 [“IRPA”].
[2]
The
Applicant is challenging a decision dated November 3, 2011 by Immigration
Officer Geneviève Cloutier [“the Officer”] that denied a sponsored application
for permanent residence filed within Canada. To that end, the Applicant was
interviewed. The application for permanent residence was refused for
misrepresentation of material facts that induced or could have induced an error
in the administration of the IRPA. Inadmissibility was also found based on
security grounds pursuant to section 34 of the IRPA.
[3]
The
Applicant sought a Confidentiality Order to protect his name, based on privacy
considerations, which was granted by Prothonotary Morneau on December 5, 2011.
As discussed at the hearing, counsel will do their utmost efforts to be as
public as possible subject to the constraints imposed
by
the Confidentiality Order. The
Order ensures that the Applicant cannot be identified. Therefore, any
information including but not limited to addresses, dates of birth, and names
of third parties that, if disclosed, would identify the Applicant, are to be
kept confidential.
[4]
The
Respondent requested from the Court the protection of information that, if
disclosed, could be injurious to national security or endanger the safety of
any person. Therefore, pursuant to section 87 of the IRPA, a motion seeking non
disclosure of the redacted information included in the certified tribunal
record was served and filed. It also requested that an ex parte, in
camera hearing be held to deal with this matter. As discussed during a
teleconference with all counsel the Court asked counsel for the Respondent to
prepare, serve and file a detailed public affidavit by the Officer which would
explain whether or not the redacted information was useful for the purpose of
the determination to be made. Such an affidavit was served and filed. This
exceptional procedure was at the Court's initiative to accord fairness and
natural justice to the Applicant. It is hoped that this shall not be used for
other unnecessary purposes.
[5]
In
an Order dated September 10, 2012, more information was disclosed to the
Applicant as a result of the Respondent's review of the redacted information in
preparation for the ex parte, in camera hearing and the Court's exchange
with the affiants and counsel during the said hearing. In that same Order, I also
concluded that the remaining redactions were justified and should not be
disclosed. As mentioned above, counsel for the Applicant is seeking the
appointment of a special advocate pursuant to section 87.1 of the IRPA.
[6]
It
is submitted that only a special advocate would be able to deal with the issues
of this case by:
1. Further
examining the Officer on the redacted material and/or could provide ex parte
submissions to the Court as to the relevance and/or credibility of the redacted
information.
2. Helping
to ensure that all relevant arguments are made.
[7]
Section
87.1 of the IRPA establishes the requirements for appointing a special
advocate. It reads as follows:
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Immigration
and Refugee Protection Act,
SC 2001, c 27
Special
advocate
87.1
If the judge during the judicial review, or a court on appeal from the
judge’s decision, is of the opinion that considerations of fairness and
natural justice require that a special advocate be appointed to protect the
interests of the permanent resident or foreign national, the judge or court
shall appoint a special advocate from the list referred to in subsection
85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary
modifications.
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Loi
sur l’immigration et la protection des réfugiés, LC 2001, ch 27
Avocat
spécial
87.1
Si le juge, dans le cadre du contrôle judiciaire, ou le tribunal qui entend
l’appel de la décision du juge est d’avis que les considérations d’équité et
de justice naturelle requièrent la nomination d’un avocat spécial en vue de
la défense des intérêts du résident permanent ou de l’étranger, il nomme,
parmi les personnes figurant sur la liste dressée au titre du paragraphe
85(1), celle qui agira à ce titre dans le cadre de l’instance. Les articles
85.1 à 85.5 s’appliquent alors à celle-ci avec les adaptations nécessaires.
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[8]
In
Dhahbi v Canada (Minister of Citizenship and
Immigration), 2009 FC 347, this Court noted at paragraphs 22 and 23 that discretion is
given to the presiding judge to appoint or not a special advocate after having
reviewed the record and considered the principles of fairness and natural
justice applicable to the facts at play.
[9]
In
order to properly exercise this discretion, the presiding judge ought to
examine the redactions, keep in mind the whole record, preside if required an ex
parte, in camera hearing, ask for justification for the redactions,
question the relevancy as presented, suggest and, if necessary, order the
unveiling of the information if it is not justified in law and fact. The judge
ought to also read the decision subject to the judicial review proceeding.
Then, in light of the knowledge gained from the aforementioned approach, the
standards of fairness and natural justice will be better understood and applied
to the case at bar. However, these standards vary with the circumstances of
each case. As a result of this approach, a hearing to present submissions may
be necessary and a decision may be rendered on whether or not to appoint a
special advocate. Such a hearing was necessary in the present case.
[10]
In
his most recent submissions, counsel for the Applicant made an argument
based on the Canadian Charter of Rights and Freedoms [“the Charter”]. He
argued
that the
Applicant's
section 7 Charter interests are engaged because he has no access to the
redacted information and is therefore not in a position to test the evidence.
If the Court concludes that section 7 of the Charter is not applicable, it is
submitted that the Applicant has a common law right to disclosure. Therefore,
since the Applicant
cannot
see the redacted information, it is only through the appointment of a special
advocate that he
would
be able to demonstrate that nondisclosure of some information rendered the
proceedings unfair.
[11]
In
his initial submissions, counsel
for the Applicant submits that in order to properly respond to any concern or
suspicion that the latter may have, the relevant, redacted information that
could reasonably impact on the decision-maker should be disclosed. In the
alternative, if such disclosure is not possible, it is suggested that a summary
of information should be issued. In a most recent written exchange, counsel for
the Applicant suggested that at a minimum a special advocate should be
appointed to provide ex parte written submissions as to the relevance of
the redacted materials. A schedule for doing so is proposed.
[12]
Because
disclosure of certain
types of information
would be injurious to national security or endanger the safety of any person,
such information cannot be disclosed (see Charkaoui
v Canada (Citizenship and Immigration), 2007
SCC 9, at para 58). I am satisfied that there was no need to involve a
special advocate at that stage. As for the request for a summary of
the redacted information, although permitted for the purposes of certificate
proceedings (see section 83.(1) of the IRPA), it is explicitly excluded for the
purposes of judicial reviews involving immigration matters and information protected on
grounds of national
security (see section 87 of the IRPA).
[13]
Counsel
for the Applicant submits that as a result of these considerations, a special
advocate should be appointed.
[14]
Counsel
for the Respondent opposes such an appointment for the following reasons:
1. No
Charter rights are at stake in this litigation: the decision deals with an
application for permanent residence from within Canada sponsored by the
Applicant's spouse. The Applicant does not face detention or potential removal
to a country where he may be at risk. At this stage, the decision also does not
render the Applicant inadmissible on security grounds pursuant to section 34 of
the IRPA.
2. The
certified tribunal record contains 175 pages out of which 11 pages include
redactions. As a result of the Order issued by the Court, September 10, 2012,
six of the 11 pages contain minimal redactions.
3. A
complete review of the record and the decision indicates that the gist of the
information is known to the Applicant and that disclosure of the redactions
would as a result add little to the Applicant's understanding of the reasons of
the decision and that all arguments can already be made. (See to this effect,
the submissions of counsel for the Respondent and more specifically paragraphs
17 to 61.)
4. The
decision-maker has flagged as important the Applicant's misrepresentations regarding
namely, his relationship
with people of North African origin while in France and his
relationship with three specific individuals in Canada and with others associated with
Islamic extremist organizations as well as his fraudulent
claim for refugee status upon arrival to Canada.
5. The affidavit
of the Officer can also be helpful to the Applicant.
6. The
substance of the redactions is available to the Applicant in other places in
the tribunal's record or through questions asked during the Applicant's three
interviews.
7. To
the recent suggestion of a minimal involvement of a special advocate limited to
the relevance of redacted information, the Respondent reiterates its arguments
as above.
[15]
As
mentioned above, aside from written submissions, oral submissions were
presented by all parties.
[16]
It
is important to note that Section 7 Charter issues or common law right to
disclosure would not always be trigged by proceedings involving redacted
information. The appointment of a special advocate is thus not always
justified. Each case must be assessed on its own facts.
[17]
The
Applicant has raised three arguments in the judicial review proceedings:
1. The
alleged failure of the Officer to provide notice that she would be invoking
section 40(1)(a) of the IRPA.
2. The
alleged failure to provide sufficient notice of her intention to rely on
section 34 of the IRPA.
3. The
alleged failure to provide full disclosure, more specifically notes or
transcript from CSIS regarding interviews with the Applicant and the Officer’s
“classified notes” which should have been included in the reasons (see
Applicant's record, pages 75 and 80 and paragraphs 45 and 68 of the
submissions).
[18]
Only
the issue pertaining to the scope of disclosure may justify the need to discuss
the possible appointment of a special advocate. The other matters do not relate
to the redacted information and, as such, can be dealt
with by counsel with submissions in law and do not call for the appointment of
a special advocate.
[19]
During
the hearing, I explained that some of the redactions were based on reasons of an
internal or administrative nature, that other redacted information was already
disclosed in one form or another and that the essence of the sensitive
information was contained in the decision rendered. I also added that
redactions of information of an internal or administrative nature are of no
relevance to the decision by the Officer. I further explained that the
designated judge presiding the judicial review proceeding would have full
knowledge of the redacted information and would be able to assess it in light
of the decision subject to judicial review.
[20]
It should also be noted that not all of the Respondent’s counsel
have knowledge of the content of the redacted information. The Respondent is
represented by three counsel, Mr. Latulippe and Mrs. Nobl from Citizenship and
Immigration Canada, and Mrs. Strachan from the Canadian Security Intelligence
Service. Only the latter was present at the in camera, ex parte hearing
and is thus the only counsel to have access to the redacted information.
Therefore, Applicant's counsel and counsel for the Respondent, except for the
one present at the in camera, ex parte hearing are not privy to the
content of the redactions.
[21]
Moreover,
during the application for permanent residence process, the Applicant
participated in interviews, which form part of the basis on which his permanent
residence application was assessed. Therefore, all pieces of information that
were addressed by either the Applicant or the interviewing officers are to be
considered as disclosed to the Applicant. The relevant information was
therefore disclosed during the interviews (Dhahbi, above, at para
26).
[22]
Since
the information redacted is in one form or another known to the Applicant, I
find that the Applicant through his counsel can deal with all relevant matters
and that therefore, his Charter or common law rights are not affected.
Moreover, at the present stage, it cannot be argued that the Applicant is
facing a risk of detention or removal to a country where he may be at risk.
[23]
As
for the concern raised by counsel for the Applicant about the relevancy of the
redacted information and the impact it might have had on the decision-maker, it
must be understood that the redacted sensitive information is already known in
one form or another by the Applicant and can be addressed if so chosen.
[24]
In
addition to this, the designated judge has full knowledge of all the
information and can draw from it any appropriate conclusion. The affidavit of the Officer is also useful to the purpose
of assessing whether or not the redacted information is relevant to the
decision subject to the judicial review proceeding.
[25]
Therefore,
at this stage, the appointment of a special advocate would not allow the
Applicant to make any additional argument that he is not currently in a
position to make. In the present case, on the contrary,
such involvement would unjustifiably slow down the process because of the time
required for the special advocate to become involved, study the file, prepare
submissions and participate in the ex parte, in camera hearings and
possibly in a public hearing.
[26]
Since the Applicant has knowledge of the redacted information in
one form or another, he is in a position to deal with the facts of the case as
well as the legal issues raised and to advance all possible arguments. As a
result, he is also knowledgeable of all the information required to effectively
cross-examine the Officer. Therefore, I do not find that there is a breach to
section 7 of the Charter, nor a common-law right to disclosure.
[27]
Undoubtedly,
the day will come where redacted information will be crucial to the legal
issues at play. Since the redacted information cannot be released for national
security reasons and since such critical information is not known to the
individual concerned, a Court may eventually have to
consider appointing a special advocate. Fairness and natural justice could be
better served then by such an appointment. However, such is not the case here.
There may be other circumstances which are not identifiable at this time that
would call for the exercise of the discretion to appoint a special advocate.
[28]
Considering
the minimal redacted information included in the certified tribunal record, the
fact that information is disclosed in one form or another which includes the
decision under review, and the full knowledge of the redacted information by
the designated judge in charge of the judicial review, I am of the view that
considerations of fairness and natural justice do not require that a special
advocate be appointed to protect the interests of the Applicant. (See also on that point Farkhondehfall v Canada (Minister of Citizenship and
Immigration), 2009 FC 1064 at paragraphs 42 and 43.)
ORDER
THIS
COURT ORDERS that:
- The request
to appoint a special advocate be denied; and
- The
hearing of the judicial review will be held in Montreal on December
18, 2012, at 9:30 a.m. and the time reserved shall be three (3) hours.
“Simon Noël”
______________________________
Judge
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