Date:
20101103
Docket:
IMM-152-09
Citation:
2010 FC 1082
Ottawa, Ontario, November 3, 2010
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
CHANTHIRAKUMAR
SELLATHURAI
Applicant
and
THE MINISTER OF PUBLIC
SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
In
this motion, the Minister of Emergency Preparedness and Public Safety (the
Minister) seeks the return of material inadvertently forwarded to counsel for
Mr. Chanthirakumar Sellathurai (the Applicant). The Minister maintains that
three unredacted confidential documents (the Disputed Documents) attract
national security privilege, that certain portions of the Disputed Documents should
not have been disclosed, and that the inadvertent disclosure of the Disputed
Documents did not waive the claimed privilege.
[2]
The
Minister requests an order of non-disclosure of the relevant portions of the
Disputed Documents and an order requiring the Applicant to return the
unredacted Disputed Documents to the Minister.
[3]
This
motion raises unique issues in the context of an already complicated set of
proceedings. For the reasons that follow, I have concluded that the motion of
the Minister should be granted.
II. Issues
[4]
As
I would frame them, the issues and sub-issues in this motion are the following:
1.
Does
the Federal Court have jurisdiction to determine this motion and grant the
relief sought by the Minister pursuant to s. 87 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27 (IRPA)?
2.
Should
the Minister’s motion to recall the Disputed Documents succeed?
(a)
Are
these documents the subject of national security privilege?
(b)
Did
the Minister waive national security privilege on the Disputed Documents?
(c)
Is
national security privilege an exception to the “open court principle”?
3.
Should
the Court designate a special advocate, pursuant to s. 87.1 of IRPA, to
advance the interests of the Applicant?
III. Background
[5]
The
context of Court File IMM-152-09 is an admissibility hearing before the Immigration
Division of the Immigration and Refugee Board (the ID). The admissibility hearing
would determine the Applicant’s admissibility to Canada pursuant to s. 34(1) of
IRPA. In an interlocutory decision dated December 29, 2008, the ID
refused to stay the s. 34(1) hearing pending the outcome of the Applicant’s 2002
application made under s. 34(2) of IRPA (the Ministerial Relief
Application). The Applicant filed an Application for Leave and Judicial
Review of the interlocutory decision of the ID, and brought a motion before the
Court seeking a stay pending a determination of the Ministerial Relief
Application. The Federal Court granted the Applicant’s motion for a stay
pending the disposition of the Application for Leave and Judicial Review (Sellathurai
v. Canada (Minister of Public Safety and Emergency Preparedness) (7 December
2009), Toronto IMM‑152‑09 (F.C.) per Mosley J)).
[6]
Leave
was granted in the underlying judicial review application, and a hearing date
was set for February 23, 2010. Justice Roger Hughes adjourned the judicial
review hearing sine die, as he concluded that judicial economy favoured
a practical resolution of the Ministerial Relief Application before a judicial
review of the ID proceeding should be heard.
[7]
The
key milestones leading to the motion now before me are as follows:
·
On
July 12, 2010, officers with Canada Border Services Agency (CBSA) provided the
Applicant with a fairness disclosure package relating to the Ministerial Relief
Application. This package contained the unredacted Disputed Documents.
·
On
August 12, 2010, after becoming aware, on August 11, 2010, of the inadvertent
disclosure, counsel for the Minister wrote to the Applicant’s counsel to inform
her that classified information was inadvertently disclosed. The Minister’s
counsel requested that the entire package of documents be sealed and returned.
A second request was sent on August 16, 2010.
·
In
a letter dated August 19, 2010, Applicant’s counsel advised the Minister’s
counsel that the Disputed Documents had been pulled from the disclosure package
and put in a sealed envelope. Applicant’s counsel requested that redacted
versions of the Disputed Documents be sent to her.
·
On
August 30, 2010, counsel for the Minister wrote to the Court seeking direction
regarding the inadvertent disclosure of the Disputed Documents. The Applicant
responded to this letter on September 2, 2010.
[8]
Following
this sequence of events, on September 2, 2010, Justice Hughes issued the
following Direction in this matter:
·
Applicant’s
counsel was to place the Disputed Documents in a sealed envelope and file it
with the Court by September 8, 2010;
·
The
Minister’s counsel was to provide the Applicant’s counsel with the redacted
versions of the Disputed Documents by September 8, 2010; and
·
The
Minister was to file a motion on or about September 8, 2010 “to be heard by a
designated Judge, if required as to the further manner in which said documents
are to be dealt”.
These directions were followed.
IV. Analysis
A. Issue 1: Does the
Federal Court have jurisdiction to determine this motion pursuant to s. 87 of
IRPA?
[9]
After
hearing oral argument from both the Applicant and the Respondent, it is
apparent that neither party is seriously asserting that the Federal Court does
not have jurisdiction to determine this motion. However, the disputed issue is
whether this motion should be heard and determined pursuant to s. 87 of IRPA,
or pursuant to s. 38 of the Canada Evidence Act, R.S.C., 1985 c. C-5 (CEA).
[10]
The
Minister acknowledges that neither IRPA nor the Federal Courts Rules,
SOR/98-106 provide an explicit statutory procedure for issues of inadvertent
disclosure in the IRPA context. However, the Minister points to the
fact that the Federal Court has been expressly tasked by Parliament to protect
information in the IRPA context where disclosure would be injurious to
national security or endanger the safety of any person (IRPA, s.77 to
87.1). The Minister further argues that this Court has plenary supervisory
jurisdiction over the statutory scheme of IRPA which would allow this
motion to be heard pursuant to s. 87 of IRPA, combined with the “gap
rule” in s. 4 of the Federal Courts Rules.
[11]
The
Applicant, on the other hand, argues that this motion cannot be heard pursuant
to s. 87 of IRPA because the inadvertent disclosure “has nothing to do”
with any current judicial review application. The Applicant argues that the
only vehicle for the Federal Court to determine this motion is s. 38 of CEA.
The Applicant further submits that it is in the interests of justice to apply s. 38
of CEA, because this section, and not s. 87 of IRPA, allows for
the proper balancing of the interests for and against disclosure.
[12]
For
the reasons that follow, I find the position of the Minister to be preferable.
Specifically, I conclude that this Court has jurisdiction to apply s. 87 of IRPA
to the Disputed Documents.
[13]
The
importance of preventing (and, therefore, in my view, recalling) the release of
inadvertently disclosed documents has been specifically addressed by this
Court. In Jahazi v. Canada (Minister of Citizenship and Immigration), 2010
FC 242, 363 F.T.R. 278 (Jahazi) at paragraph 21 (citing Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 at para.42-43) Justice Yves de
Montigny stated:
In [Ruby], the Supreme Court acknowledged
that the state has a legitimate interest in preserving Canada’s supply of
intelligence information received from foreign sources and noted that the inadvertent
release of such information would significantly injure national security.
[Emphasis added]
[14]
The
state has an important interest in protecting national security and the
security of its intelligence services. Inadvertent disclosure of confidential
information goes to the heart of what the state has an interest in protecting.
There will always be a competing interest between the public’s right to an open
system and the state’s need to protect information that could be injurious to
the public as a whole.
[15]
The
Supreme Court has recognized the importance of both the state’s and society’s
interest in national security. Both of these reasons have been found to be
sufficient to rationalize limiting the disclosure of materials to individuals
affected by the non-disclosure (see, Jahazi, above, citing Charkaoui,
Re, 2007 SCC 9, [2007] 1 S.C.R. 350 at para. 58; Canada (Minister of
Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, 90 D.L.R. (4th)
289 at p. 744; Suresh v. Canada (Minister of Citizenship & Immigration),
2002 SCC 1, [2002] 1 S.C.R. 3 (Suresh), at para. 122; Ruby v. Canada
(Solicitor General), above, at paras. 38 - 44).
[16]
A
natural extension of these principles is the state’s interest in recalling
documents that have been inadvertently disclosed with the objective of
regaining protection of information that is properly the subject of national
security. It would be illogical to prevent the recalling of inadvertently
disclosed documents only because the documents have been disclosed, if putting
the information into the hands of an “informed reader” would be injurious to
national security. Therefore, the principles should apply to documents that are
properly the subject of national security privilege, regardless of whether they
were inadvertently disclosed documents or the subject of a non‑disclosure
order.
[17]
Neither
the Applicant nor the Minister argues before me that the state should not
protect information that is properly the subject of national security privilege.
The thrust of the arguments relates to “how” and “whether” the state should
protect the information inadvertently disclosed in the Disputed Documents.
[18]
The
Applicant argues that the only vehicle for the Federal Court to determine this
motion is by way of s. 38 of CEA. I do not agree.
[19]
Under
s. 38 of CEA, an application may be made to the Federal Court for
a disclosure order pursuant to s. 38.06(2). The purpose of s. 38 of CEA is “to protect
information where disclosure could be injurious to national defence or
international relations" and to provide "for judicial oversight of
government claims of confidentiality for such information" (Canada (Attorney General) v. Khawaja, 2007 FC 490, [2008] 1 F.C.R. 547 (Khawaja)
at
paras. 87-88).
Further, in Almrei v. Canada (Minister of Citizenship & Immigration),
2005 FCA 54, [2005] 3 F.C.R. 142 , the Federal Court of Appeal stated that s. 38
of CEA seeks to prevent the public release of information relating to or
potentially injurious to national security in the course of a proceeding before
a court (para. 74).
[20]
The
Applicant argues that s. 38 of CEA provides a complete code that
outlines the procedures to be taken into account when the release of sensitive
information is at issue. Specifically s. 38.06(2) mandates a balancing of the
public interest in disclosure, against the public interest in non‑disclosure
(Khawaja, above, at para.
89). The Applicant argues that s.38 of CEA is the only vehicle to
deal with the Disputed Documents in this case.
[21]
It
is apparent that s. 38 of CEA is meant to be applied as a complete code
to proceedings where there is no statutory scheme in place to deal with the non-disclosure
of documents that are the subject of national security privilege. This is not
the case at bar. IRPA contains a statutory scheme specifically designed to
deal with the non-disclosure of information within the immigration context. An application
of CEA to this motion, rather than IRPA, would arguably run
contrary to the presumption against redundancy, a principle of statutory
interpretation.
[22]
It
is presumed that the legislature avoids superfluous or meaningless words, that
it does not pointlessly repeat itself or speak in vain. Every word in a statute
is presumed to make sense and to have a specific role to play in advancing the
legislative purpose (Ruth Sullivan, Sullivan and Driedger on the
Construction of Statutes, 4th ed. (Markham: Butterworths, 2002) at 158).
[23]
The
same principle was expressed by Iacobucci J. in Communities Economic
Development Fund v. Canadian Pickles Corp., [1991] 3 S.C.R. 388, [1991] S.C.J.
No. 89 (QL) at paragraph 36:
It
is a principle of statutory interpretation that every word of a statute must be
given meaning: "A construction which would leave without effect any part
of the language of a statute will normally be rejected" (Maxwell on the
Interpretation of Statutes (12th ed. 1969), at p. 36).
[24]
The
presumption against redundancy would prevent this Court from applying s. 38 of CEA
to this case. If Parliament intended this Court to utilize s. 38 every time
a non-disclosure issue arose in the immigration context then s. 87 of IRPA would
be redundant. Taking into consideration the statement by Justice Iacobucci that
every word of a statute must be given meaning, this could not have been the
intent of Parliament.
[25]
Having
determined that s. 38 of CEA is not the proper vehicle for dealing with the
subject matter of this motion, I now turn to the application of s. 87 of IRPA
and its principles.
[26]
The
Federal Court has been expressly tasked by Parliament to protect information in
the IRPA context where disclosure would be injurious to national
security or endanger the safety of any person if disclosed (IRPA, s.77
to 87.1). Section 87 of IRPA states:
|
The
Minister may, during a judicial review, apply for the non-disclosure of
information or other evidence. Section 83 –
other than the obligations to appoint a special advocate and
to provide a summary – applies to
the proceeding with any necessary modifications.
|
Le ministre peut, dans le cadre d’un contrôle judiciaire,
demander l’interdiction de la divulgation de renseignements et autres
éléments de preuve. L’article 83 s’applique à l’instance, avec les
adaptations nécessaires, sauf quant à l’obligation de nommer un avocat
spécial et de fournir un résumé.
|
[27]
The
Applicant argues that s. 87 cannot apply to this motion because s. 87 of IRPA
limits the application to “during a judicial review”; in the Applicant’s
view, this motion “has nothing to do with a judicial review”. I disagree. The
Applicant’s own action, in seeking a stay of the ID hearing and an adjournment
of the judicial review, has inextricably linked the Ministerial Relief
Application and the judicial review of the ID’s interlocutory decision. As a
result, there is little question in my mind that documents disclosed in the
context of the Ministerial Relief Application would have relevance to the
judicial review application when, and if, it is heard. It follows that,
although the Disputed Documents were disclosed pursuant to the Ministerial
Relief Application, this disclosure forms part of the substance of the judicial
review motion that currently stands adjourned sine die.
[28]
Even
if it is possible to conclude that the Disputed Documents do not directly fall within
the judicial review currently adjourned and, hence, are not within the explicit
words of s. 87, the result would be the same. The Disputed Documents were
clearly sent for the purposes of a matter within IRPA – specifically
s. 34(2). The unique facts of this case and the close relationship of the
s. 34(1) proceeding and the Ministerial Relief Application lead me to conclude
that Rule 4 of the Federal Courts Rules can be relied on to bridge the
gap (Segasayo v. Minister of Emergency Preparedness, 2007 FC 585, 313 F.T.R.
106 (Segasayo); Mohammed v. Canada (Minister of Citizenship and
Immigration, 2006 FC 1310, [2007] 4 F.C.R. 300). Adopting, by analogy,
the well-established procedure of s. 87 of IRPA for the purposes of this
motion would secure the just, most expeditious and least expensive
determination of this motion (Rule 3, Federal Courts Rules).
[29]
In
summary, I find that the Federal Court has jurisdiction to consider this motion
either directly or by analogy pursuant to s. 87 of IRPA.
B. Issue 2: Should the
Minister’s motion to recall the documents succeed?
(1)
Are
these documents the subject of national security privilege?
[30]
The
Minister argues that the documents are properly the subject of national
security privilege.
[31]
The
Supreme Court of Canada confirmed that a broad and flexible approach to
national security issues should attract a deferential standard of review,
provided that “… the Minister is able to show evidence that reasonably supports
a finding of danger to the security of Canada, Courts should not interfere with
the Minister’s decision.” (Suresh, above, at para. 85).
[32]
The
Minister refers to the considerations that were outlined by Mr. Justice Addy in
Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C.
229, [1988] F.C.J. No. 965 at paragraphs 27 and 28 for determining what
information might prove to be injurious to national security:
In
considering whether the release of any particular information might prove
injurious to national security and in estimating the possible extent of any
such injury, one must bear in mind that the fundamental purpose of and indeed
the raison d'être of a national security intelligence investigation is
quite different and distinct from one pertaining to criminal law enforcement,
where there generally exists a completed offence providing a framework within
the perimeters of which investigations must take place and can readily be
confined. Their purpose is the obtaining of legally admissible evidence for
criminal prosecutions. Security investigations on the other hand are carried
out in order to gather information and intelligence and are generally
directed towards predicting future events by identifying patterns in both past
and present events.
There
are few limits upon the kinds of security information, often obtained on a
long-term basis, which may prove useful in identifying a threat. The latter
might relate to any field of our national activities and it might be an
immediate one or deliberately planned for some time in the relatively distant
future. An item of information, which by itself might appear to be rather
innocuous, will often, when considered with other information, prove extremely
useful and even vital in identifying a threat. The very nature and
source of the information more often than not renders it completely
inadmissible as evidence in any court of law. Some of the information comes
from exchanges of intelligence information between friendly countries of the
western world and the source or method by which it is obtained is seldom
revealed by the informing country.
[Emphasis added]
[33]
The
Applicant, on the other hand, submits that the Minister bears the burden of
establishing that the disclosure was inadvertent and that a failure to recall
these documents would be injurious to national security. The Applicant argues
that the affidavit of Ms. Barrette (provided as part of the motion record) does
not indicate why the release of the unredacted Disputed Documents would
jeopardize national security. In addition, the Applicant argues that the issue
is whether a valid national security claim can be maintained, given that the
documents have already been disclosed.
[34]
For
the reasons that follow, I conclude that the redacted portions of the Disputed
Documents are properly the subject of national security privilege.
[35]
The
Applicant refers to portions of the redacted Disputed Documents that appear not
to be of importance to ‘national security’ (i.e. names, addresses). However, as
discussed in the recent decision of Rajadurai v. Canada (Minister of
Citizenship and Immigration), 2009 FC 119, 340 F.T.R. 179 (Rajadurai), while
a document alone may appear to be innocuous, from the perspective of an
“informed reader”, it may impinge on national security. At paragraph 16 Justice
de Montigny observed:
It
is of some importance to realize than an "informed reader", that is,
a person who is both knowledgeable regarding security matters and is a member
of or associated with a group which constitutes a threat or a potential threat
to the security of Canada, will be quite familiar with the minute details of
its organization and of the ramifications of its operations regarding which our
security service might well be relatively uninformed. As a result, such an
informed reader may at times, by fitting a piece of apparently innocuous
information into the general picture which he has before him, be in a position
to arrive at some damaging deductions regarding the investigation of a
particular threat or of many other threats to national security. He might, for
instance, be in a position to determine one or more of the following: (1) the
duration, scope intensity and degree of success or of lack of success of an
investigation; (2) the investigative techniques of the Service; (3) the
typographic and teleprinter systems employed by C.S.I.S.; (4) internal security
procedures; (5) the nature and content of other classified documents; (6) the
identities of service personnel or of other persons involved in an
investigation.
[36]
From
the perspective of an “informed reader” and as a designated judge, I have
reviewed the Disputed Documents, the proposed redactions and the testimony of
the affiant who swore the secret affidavit provided to me. My review was
informed by the above comments of Justice de Montigny in Rajadurai and
the recommendations of Justice Eleanor Dawson in Ugbazghi v.
Canada (Minister of Citizenship & Immigration), 2008 FC 694,
[2009] 1 F.C.R. 454. The secret affidavit was not a mere assertion of
conclusions, but detailed the evidence and the reasoning as to why, in the
opinion of the affiant, each redaction was necessary in order to protect
national security or the safety of any person. Having undertaken this serious
obligation to review the material, I agree with the Minister that the
redacted portions of the Disputed Documents should be the subject of national
security privilege.
(2) Did
the Respondent waive the national security privilege on the documents?
[37]
The
Minister argues that the disclosure of the Disputed Documents was inadvertent
and was not intended to waive the national security privilege attached to these
documents. The Applicant, on the other hand, argues that even if national
security privilege had originally attached, the Minister has waived that
privilege by disclosing the Disputed Documents to the Applicant’s counsel.
[38]
Canadian
courts have established that inadvertent disclosure of privileged information
does not automatically amount to waiver, and privileged information relating to
Canada’s national security is not an exception (Alan W. Bryant, Sydney N.
Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law
of Evidence in Canada, 3rd edition (Toronto: LexisNexis Canada
Inc., 2009)). Further, public interest immunity cannot, in any ordinary sense,
be waived (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3
S.C.R. 3 at para 32).
[39]
The
Court in Abou-Elmaati v. Canada (Attorney General), 2010 ONSC 2055, 101
O.R. (3d) 424, considering s. 38 of CEA, stated that inadvertent
disclosure does not oust the Federal Court’s jurisdiction to protect national
security documents on the basis of waiver. In my view, this also applies to s. 87
of IRPA. Justice Richard Mosley, in Khawaja, above, referred to
the decision in Chapelstone v. Canada, 2004 NBCA 96, 277 (N.B.R. (2d)
350, where the New Brunswick Court of Appeal held that inadvertent
disclosure of privileged information does not automatically result in a loss of
privilege, and more is required before the privileged communication will be
admissible (Khawaja, above, at para. 109; Chapelstone, above, at para.
55).
[40]
The
Court in Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80 (Khadr),
considered the scenario of if and when inadvertent disclosure could waive
national security privilege. The Court concluded that the approach to determine
if a document should not be disclosed to the public is the same for all
documents whether or not the information was released inadvertently.
[41]
I
agree with the assertion of the Applicant that a case-by-case determination of
privilege must be made when documents are inadvertently disclosed (Khawaja,
above, at para. 109).
[42]
Having
considered the unique circumstances of this motion, I conclude that the claim
to national security privilege over the portions of the Disputed Documents at
issue was not lost by the inadvertent disclosure of them. While the Minister
acknowledges that unredacted copies of the Disputed Documents should never have
been sent to the Applicant’s counsel, it was not done intentionally, and there
is nothing before me that would give rise to the ‘circumstances’ discussed in Khawaja
and Khadr that would necessitate the waiver of privilege to the Disputed
Documents. The importance of protecting national security does not end when a
mistake is made which results in inadvertent disclosure of information. It is
in the interest of the public to ensure that natural security information is
kept confidential and that, in the event of an ‘inadvertent’ error, there are
procedures in place to restore that confidentiality.
(3) Is
national security privilege an exception to the open court principle?
[43]
The
Applicant argues that national security privilege is contrary to the “open
court principle” requiring “public openness, both in the proceedings of the
dispute, and in the material that is relevant to its resolution” (Sierra
Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R.
522 at para. 1).
[44]
There
are clear exceptions to the “open court principle,” and national security
privilege is one such exception (Ugbazghi, above, at paras. 24-28).
C. Issue 3: Should the
Court designate a Special Advocate to advance the interests of the Applicant?
[45]
The
Applicant argues that if there is to be evidence led and submissions made in
camera and ex parte, the Court should appoint a special advocate to
the Applicant pursuant to s. 87.1 of IRPA.
[46]
The
Applicant is aware that the appointment of a special advocate is discretionary.
However, the Applicant asserts that the discretion ought to be exercised
positively where considerations of fairness require it. The Applicant submits that,
in this case, considerations of fairness require the appointment of a special
advocate.
[47]
The
Applicant argues that his rights pursuant to s. 7 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter) are
engaged, in that this is part of the overall decision which could lead to his
removal to face persecution and torture in Sri Lanka. The Applicant refers to
the decision of Charkaoui, above, where the Supreme Court specifically emphasized
that non-disclosure and breach of fairness in a proceeding that could lead to
removal to harm would violate an individual’s Charter rights.
[48]
Section
87.1 of IRPA states:
|
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”
|
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.
|
[49]
As
noted in Farkhondehfall v. Canada (Citizenship and Immigration), 2009 FC
1064, [2009] F.C.J. No. 1323 at paragraph 29, the appointment of a special
advocate is within the discretion of the designated judge:
While the amendments made to IRPA in the wake of the
Charkaoui decision made the appointment of special advocates mandatory
in security certificate proceedings, the appointment of special advocates in
other types of cases under the Act is left to the discretion of the designated
judge.
[50]
Recently,
Justice de Montigny, in Kanyamibwa v. Canada (Minister of Public Safety
& Emergency Preparedness), 2010 FC 66, 360 F.T.R. 173, at paras. 43-56
canvassed the requirements that a Court should consider when determining
whether the appointment of a special advocate is necessary in a non-security
certificate case. In that case, Justice de Montigny concluded that a special
advocate was not necessary to assist in the s. 87 non-disclosure motion. In
reaching this conclusion, Justice de Montigny considered a number of factors:
1.
Injury:
Would disclosure be injurious to national security or endanger the safety of
any person?
2.
Immediate
Impact: Would the Minister’s decision have a limited immediate impact on the
Applicant’s life, liberty and security interests?
3.
Convention
Refugee: Has the Applicant already been found to be a Convention refugee?
4.
Type
of Application: Is this a denial of a ministerial relief application or a
security certificate?
5.
Extent
of non-disclosure: Is the extent of the non-disclosure limited?
6.
Materiality:
What is the materiality or probity of the information in question?
[51]
In
the motion before me, almost all of the factors weigh against the appointment
of a special advocate. As noted above, I have concluded that disclosure of the unredacted
Disputed Documents would be injurious to national security. Secondly, a
judicial review of a denial of ministerial relief under subsection 34(2)
differs substantially from both a judicial determination concerning the
reasonableness of a security certificate and a judicial review of the detention
of a person subject to a security certificate (Segasayo, above, at para.
28). Further, in this case, a determination has not been made as to whether the
Applicant will be denied ministerial relief. In my view, the information sought
to be protected is minimal. At this stage, it is uncertain whether this
information will be relied upon by the Minister in the Ministerial Relief
Application. Finally, the Applicant is not facing imminent removal and is not
being detained.
[52]
Considering
all of the factors above, I conclude that the considerations of fairness and
natural justice do not require that a special advocate be appointed to protect
the interests of the Applicant.
V. Conclusion
[53]
In
conclusion, I am satisfied that the motion of the Minister should be granted.
As I understand the situation, the parties have complied with the order of
Justice Hughes. There is no need to repeat, in my order, those matters that
have already been addressed.
[54]
Given
that the context of this motion is under the provisions of IRPA, I asked
counsel at the end of oral submissions whether there was a question for
certification. I declined a request to defer that issue until after my reasons
were released. As
observed by the Court of Appeal in Varela v. Canada (Minister of Citizenship
and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129, “a serious question of
general importance arises from the issues in the case and not from the judge's
reasons” (para. 29). I gave the Applicant until Friday, October 22, 2010 and
the Minister until Tuesday, October 26, 2010 to provide submissions on any
proposed certified question.
[55]
Applicant’s
counsel’s submissions were not received until October 25, 2010. Her reasons for
filing late were totally inadequate. The Court does not set deadlines so that
they may be ignored. However, in any event, although the late-filed letter
contained some musings, the letter concluded by stating that: “So at this point
there are no issues for which certification is being sought.”
[56]
In responding
submissions (that were delayed due to the lateness of the Applicant’s counsel’s
submissions), counsel for the Minister indicated that it might be premature to
certify a question but that “it may be prudent to certify a question pertaining
to the appropriate or preferable procedure to follow in the circumstances.” The
vagueness of this request does not assist the Court.
[57]
Given
the unique circumstances that arise on this motion, I am satisfied that there
is no question of general importance for certification.
ORDER
THIS
COURT ORDERS, DECLARES AND DIRECTS that:
1.
the
Order of Justice Hughes, dated September 2, 2010, is confirmed;
2.
the
national security claim of privilege over those portions of the Disputed
Documents, as asserted by the Minister, is upheld;
3.
to
the extent that any of the following steps have not been taken, the Court
orders that:
·
the
Applicant seal and return to the Minister, through his counsel, any paper copy
of the unredacted Disputed Documents;
·
the
Applicant destroy any electronic copy of the unredacted Disputed Documents in
the control or possession of the Applicant or his counsel; and
·
the
Applicant and his counsel destroy any notes in their possession or control
relating to the redacted portions of the Disputed Documents.
4.
The
unredacted Disputed Documents, that currently are in a sealed envelope filed
with the Court and that form part of this Court File, are to be returned by the
Registry to the Minister’s counsel; and
5.
no
question of general importance is certified.
“Judith
A. Snider”
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