Date:
20090114
Docket:
DES-6-08
Citation:
2009 FC 279
Ottawa, Ontario, January 14, 2009
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
IN THE MATTER OF a certificate signed pursuant
to
section 77(1) of the Immigration and Refugee
Protection Act (IRPA);
AND
IN THE MATTER OF the referral of a
certificate
to the Federal Court pursuant to
section 77(1)
of the IRPA;
AND
IN THE MATTER OF
MAHMOUD
ES-SAYYID JABALLAH
PUBLIC REASONS FOR ORDER
(Top
Secret Reasons for Order issued January 14, 2009)
(Public
Reasons for Order issued April 6, 2009)
[1] The
open court principle is a broad principle of general application. Included in
this principle is the usual requirement that, prior to testifying, a witness
should be identified by their proper legal name. See: Named Person v.
Vancouver Sun, 2007 SCC 43 at paragraph 81 (in dissent, but not on this
point). Thus, the use of a pseudonym by a witness is an exception to the open
court principle. These reasons explain why the Court allowed an employee of
the Canadian Security Intelligence Service (Service) to testify in public under
the name "David" without disclosing his proper legal name. The issue
arose in the following context.
Procedural History
[2] A
new security certificate was issued in respect of Mr. Jaballah after the
Supreme Court of Canada found, in February of 2007, that the then existing
procedure for review of ministerial security certificates violated section 7 of
the Charter, and could not be saved under section 1 of the Charter. The
further certificate was signed by the then Minister of Public Safety and
Emergency Preparedness and by the then Minister of Citizenship and
Immigration. In it, the Ministers certified their opinion that Mr. Jaballah, a
foreign national, is inadmissible to Canada on grounds of national security.
[3] Since
the issuance of that security certificate, the Court has sat in camera
to hear the confidential evidence adduced on behalf of the Ministers. This
evidence concerned the reasonableness of the security certificate, the
conditions under which Mr. Jaballah should continue to be released from
detention, the additional confidential information to be disclosed to the Court
and Mr. Jaballah’s special advocates pursuant to Charkaoui v. Canada
(Citizenship and Immigration), 2008 SCC 38 (Charkaoui #2) and the
disclosure of additional information to Mr. Jaballah.
[4] On
November 24, 2008, the Court commenced hearing evidence in public. It was
agreed between the parties that the Ministers would adduce evidence both in
support of the reasonableness of the security certificate and the conditions of
Mr. Jaballah's release. Mr. Jaballah would not at this time cross-examine
the Ministers' witnesses on evidence relating to the reasonableness of the
certificate, but would cross-examine the Ministers' witnesses on the conditions
of release. Additionally, Mr. Jaballah would adduce evidence, which would be
subject to cross-examination, relevant to the conditions of his release. This
agreement reflected the fact that until Mr. Jaballah has received the full
disclosure mandated by the Supreme Court of Canada in Charkaoui #2, it would be
unfair to require him to lead evidence or to cross-examine upon evidence
relating to the reasonableness of the security certificate.
[5] On
November 25, 2008, the Ministers called a witness employed by the Service to
testify. Counsel for the Ministers advised that for "purposes of
operational security reasons" the Service witness would "only be
testifying by his first name." Counsel for Mr. Jaballah objected, stating
that "it is of utmost importance that people who give this kind of
evidence state who they are and their position, and unless there is some
compelling reason to close the court or to deprive the public of knowing who is
giving the evidence, then I would ask that he give his full name."
Counsel for the Ministers then requested that the Court receive evidence in
camera, in the absence of Mr. Jaballah and the public.
[6] Paragraph
83(1)(c) of the Immigration and Refugee Protection Act, S.C.
2001, c. 27 (Act) requires the Court to hear evidence in confidence if so
requested by the Ministers. Therefore, Mr. Jaballah, his counsel, the
interpreter and members of the public left the courtroom. It was then
ascertained that the security level of the evidence to be adduced required a
secure courtroom. As it was 4:35 p.m., the Court adjourned to enable the
necessary arrangements to be made.
[7] Unfortunately,
it was not until November 27, 2008 that the required arrangements were
completed. At that time, in the presence of the Court, counsel for the
Ministers and Mr. Jaballah’s special advocate, the proposed Service
witness was affirmed and identified to the Court by his full legal name. He
was then examined by counsel for the Ministers, cross-examined by the special
advocate and questioned by the Court. After receiving a copy of a notice of
discontinuance filed by Mr. Jaballah in proceedings he commenced in the Ontario
Superior Court of Justice, which is discussed below, I ruled that I was satisfied
that the witness’ full name was information that should be protected pursuant
to paragraph 83(1)(d) of the Act (which requires the designated judge to
ensure the confidentiality of evidence provided by the Ministers if, in the
judge's opinion, its disclosure would be injurious to national security or to
the safety of any person). The Court then reconvened in public, Mr. Jaballah
and his counsel were so advised and the Service witness was examined in chief
by counsel for the Ministers.
Applicable Principles of Law
[8] As
noted above, the open court principle requires a witness to be identified by
their proper legal name. However, in section 83 of the Act, Parliament has
evidenced its intent that the open court principle be infringed to the extent necessary
to protect Canada's national security and the safety of persons. Such
infringement is only warranted, however, where the designated judge forms the
opinion that the disclosure of information that the Ministers seek to protect
would be injurious to national security or endanger the safety of any person. In
order to ascertain the need to protect information, the designated judge may
hold a hearing in the absence of the person concerned and the public to hear
pertinent evidence and submissions.
[9] It
is the Ministers who bear the burden of establishing that disclosure not only
could but would be injurious to national security, or endanger the safety of
any person. See: Ahani v. Canada, [1995] 3 F.C. 669 at paragraphs 18
and 19; aff’d (1996), 201 N.R. 233; application for leave dismissed [1996]
S.C.C.A. No. 496 (and see Harkat (Re) (2003), 231 F.T.R. 19 at paragraph
10 for the application of this jurisprudence to the current legislative
scheme). This conclusion as to the Ministers’ onus is consistent with case law
that has developed in other contexts. See, for example, Vancouver Sun (Re),
[2004] 2 S.C.R. 332 at paragraph 31.
[10] Once
satisfied that disclosure would be injurious to national security, or endanger
the safety of any person, the designated judge must, pursuant to paragraph
83(1)(d) of the Act, ensure the confidentiality of the information. The
designated judge is given no discretion in this regard. This renders
irrelevant the balancing of interests test, described in cases such as Dagenais
v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 and R. v. Mentuck,
[2001] 3 S.C.R. 442. See: Named Person v. Vancouver Sun, cited
above, at paragraphs 34-37.
The Evidence before the Court
[11] The
Ministers based their request that the identity of the Service witness, David,
not be disclosed in public upon subsection 18(1) of the Canadian Security
Intelligence Service Act, R.S.C. 1985, c. C-23 (CSIS Act), and upon
paragraph 83(1)(d) of the Act. Section 18 of the CSIS Act and
subsection 83(1) of the Act are set out in the appendix to these reasons. [REDACTED]
[12] The
Ministers submitted that the witness' identity could not be disclosed without
jeopardizing both the safety of certain individuals [REDACTED]. The witness'
evidence, given in camera in support of the Ministers’ application, included
the following testimony:
1. He
is an intelligence officer, and has been so since he was first employed by the
Service in 1991.
2. [REDACTED]
3. [REDACTED]
4. [REDACTED]
5. [REDACTED]
6. In
the early summer of 1998, the officer was assigned to the Jaballah
investigation. In the course of the investigation he interviewed
Mr. Jaballah twice.
7. The
officer testified in public before this Court in 1999 in respect of the first
security certificate issued in respect of Mr. Jaballah. On that occasion he
testified only under the name "David".
8. [REDACTED]
9. [REDACTED]
10. [REDACTED]
11. When the officer met with
Mr. Jaballah, he would have identified himself by his real name and shown his
Service warrant card. He did not leave any business card with Mr. Jaballah,
but would have left his office telephone number. The officer did not use any
business cards that showed his full name. If he had voicemail at the time, the
voicemail would not have identified the officer by his full name.
12. [REDACTED]
13. [REDACTED]
14. [REDACTED]
15. [REDACTED]
16. [REDACTED]
17. [REDACTED]
18. The Service’s department of
legal services informed him that Mr. Jaballah had sued a number of individuals
related to his case, including him. He was further advised that in the lawsuit
he was simply described as "David", an officer of the Service.
19. [REDACTED]
[13] On
this evidence, counsel for the Ministers submitted that:
a. The
disclosure of the officer's name as an intelligence officer would endanger [REDACTED];
and
b. [REDACTED]
[14] In
response, the special advocate submitted that:
a. The
fact that the officer identified himself to Mr. Jaballah on two occasions (and
identified himself to others) weighed heavily against the Ministers’ application.
b. Little
would be gained through publication of the officer’s name.
c. A
significant benefit provided by the witness is that he is very knowledgeable,
and will be able to provide important evidence. This avoids the frustration
caused when a witness is produced who has only superficial knowledge of the
case. The Service should be encouraged to produce knowledgeable witnesses.
d. [REDACTED]
e. [REDACTED]
f.
On all of the evidence, the disclosure of the officer's full name was
not pressed.
Have the Ministers
established that disclosure of the officer’s name would be injurious to
national security or endanger the safety of any person?
[15] At
the outset, I note that in her submissions counsel for the Ministers did not
make detailed submissions with respect to subsection 18(1) of the CSIS Act,
(although reference was made to that provision). I agree that this application
is better determined under paragraph 83(1)(d) of the Act. [REDACTED]
[16] In
the present case, I am satisfied that it would be injurious to Canada's
national security if the officer's name was made public [REDACTED].
[17] The
significance of this is two-fold. First, [REDACTED]. This would be injurious
to Canada’s national security.
[18] Second,
and more importantly, [REDACTED].
[19] In
view of my conclusion on this point it is not necessary for me to consider the
stated concerns with respect to the safety of individuals [REDACTED].
[20] [REDACTED]
I am satisfied that, as a matter of general principle, Canada's national
security does require that CSIS officers who engage, or will engage, in
operational activities not be hindered or prevented from continuing such
activities, or be put at risk, because their identities are disclosed in court
proceedings. [REDACTED]
[21] As
I advised counsel during the in camera hearing, my most significant
concern about protecting the identity of this witness was the fact that his
identity had previously been disclosed to Mr. Jaballah. One cannot protect
information as being confidential if the information has lost the necessary
quality of confidentiality. Thus, of particular importance was the officer’s
evidence that, notwithstanding the fact that he had identified himself to Mr.
Jaballah on two occasions, Mr. Jaballah was unable to properly name the
officer in the lawsuit Mr. Jaballah commenced in the Ontario Superior Court of
Justice.
[22] This
evidence was of such importance that I adjourned the proceeding to allow
counsel for the Ministers to obtain copies of any documents filed in that
suit. Ultimately, counsel were able to file with the Court as an exhibit a
notice of discontinuance filed in the lawsuit. Such discontinuance established
that, after a case expiry notice was issued by the Court, a discontinuance of
the claim was filed. The discontinuance stated that the claim had never been
served on any defendant. The style of cause was consistent with the officer's
testimony in that he was described as " ‘David’ (A CSIS officer)". A
copy of the exhibit was provided to counsel for Mr. Jaballah.
[23] On
the basis of this evidence, which supported the conclusion that Mr. Jaballah
did not know the officer's identity, I concluded that the officer's identity
retained the necessary quality of confidentiality such that it was appropriate
to protect it.
[24] For
these reasons, an order issued permitting the officer to testify publicly in
Court identifying himself only by the name "David."
“Eleanor
R. Dawson”
APPENDIX
Section 18 of the Canadian
Security Intelligence Service Act and subsection 83(1) of the Immigration
and Refugee Protection Act read as follows:
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18.(1) Subject to subsection (2), no person shall disclose
any information that the person obtained or to which the person had access in
the course of the performance by that person of duties and functions under
this Act or the participation by that person in the administration or
enforcement of this Act and from which the identity of
(a) any other person who is or was a confidential source
of information or assistance to the Service, or
(b) any person who is or was an employee engaged in covert
operational activities of the Service can be inferred.
(2) A person may disclose information referred to in
subsection (1) for the purposes of the performance of duties and functions
under this Act or any other Act of Parliament or the administration or enforcement
of this Act or as required by any other law or in the circumstances described
in any of paragraphs 19(2)(a) to (d).
(3) Every one who contravenes subsection (1)
(a) is guilty of an indictable offence and liable to
imprisonment for a term not exceeding five years; or
(b) is guilty of an offence punishable on summary
conviction.
[…]
83.(1) The following provisions apply to proceedings under
any of sections 78 and 82 to 82.2:
(a) the judge shall proceed as informally and
expeditiously as the circumstances and considerations of fairness and natural
justice permit;
(b) the judge shall appoint a person from the list
referred to in subsection 85(1) to act as a special advocate in the
proceeding after hearing representations from the permanent resident or
foreign national and the Minister and after giving particular consideration
and weight to the preferences of the permanent resident or foreign national;
(c) at any time during a proceeding, the judge may, on the
judge’s own motion — and shall, on each request of the Minister — hear
information or other evidence in the absence of the public and of the
permanent resident or foreign national and their counsel if, in the judge’s
opinion, its disclosure could be injurious to national security or endanger the
safety of any person;
(d) the judge shall ensure the confidentiality of
information and other evidence provided by the Minister if, in the judge’s
opinion, its disclosure would be injurious to national security or endanger
the safety of any person;
(e) throughout the proceeding, the judge shall ensure that
the permanent resident or foreign national is provided with a summary of
information and other evidence that enables them to be reasonably informed of
the case made by the Minister in the proceeding but that does not include
anything that, in the judge’s opinion, would be injurious to national
security or endanger the safety of any person if disclosed;
(f) the judge shall ensure the confidentiality of all
information or other evidence that is withdrawn by the Minister;
(g) the judge shall provide the permanent resident or
foreign national and the Minister with an opportunity to be heard;
(h) the judge may receive into evidence anything that, in
the judge’s opinion, is reliable and appropriate, even if it is inadmissible
in a court of law, and may base a decision on that evidence;
(i) the judge may base a decision on information or other
evidence even if a summary of that information or other evidence is not
provided to the permanent resident or foreign national; and
(j) the judge shall not base a decision on information or
other evidence provided by the Minister, and shall return it to the Minister,
if the judge determines that it is not relevant or if the Minister withdraws
it.
(1.1) For the purposes of paragraph (1)(h), reliable and
appropriate evidence does not include information that is believed on
reasonable grounds to have been obtained as a result of the use of torture
within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or
degrading treatment or punishment within the meaning of the Convention
Against Torture.
(1.2) If the permanent resident or foreign national
requests that a particular person be appointed under paragraph (1)(b), the
judge shall appoint that person unless the judge is satisfied that
(a) the appointment would result in the proceeding being
unreasonably delayed;
(b) the appointment would place the person in a conflict
of interest; or
(c) the person has knowledge of information or other
evidence whose disclosure would be injurious to national security or endanger
the safety of any person and, in the circumstances, there is a risk of
inadvertent disclosure of that information or other evidence.
(2) For greater certainty, the judge’s power to appoint a
person to act as a special advocate in a proceeding includes the power to
terminate the appointment and to appoint another person.
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18.(1) Sous réserve du paragraphe (2),
nul ne peut communiquer des informations qu’il a acquises ou auxquelles il
avait accès dans l’exercice des fonctions qui lui sont conférées en vertu de
la présente loi ou lors de sa participation à l’exécution ou au contrôle
d’application de cette loi et qui permettraient de découvrir l’identité :
a) d’une autre personne qui fournit ou a
fourni au Service des informations ou une aide à titre confidentiel;
b) d’une personne qui est ou était un
employé occupé à des activités opérationnelles cachées du Service.
(2) La communication visée au paragraphe
(1) peut se faire dans l’exercice de fonctions conférées en vertu de la
présente loi ou de toute autre loi fédérale ou pour l’exécution ou le
contrôle d’application de la présente loi, si une autre règle de droit
l’exige ou dans les circonstances visées aux alinéas 19(2)a) à d).
(3) Quiconque contrevient au paragraphe
(1) est coupable :
a) soit d’un acte criminel et passible
d’un emprisonnement maximal de cinq ans;
b) soit d’une infraction punissable par
procédure sommaire.
[…]
83.(1) Les règles ci-après s’appliquent
aux instances visées aux articles 78 et 82 à 82.2 :
a) le juge 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;
b) il nomme, parmi les personnes figurant
sur la liste dressée au titre du paragraphe 85(1), celle qui agira à titre
d’avocat spécial dans le cadre de l’instance, après avoir entendu l’intéressé
et le ministre et accordé une attention et une importance particulières aux
préférences de l’intéressé;
c) il peut d’office tenir une audience à
huis clos et en l’absence de l’intéressé et de son conseil — et doit le faire
à chaque demande du ministre — si la divulgation des renseignements ou autres
éléments de preuve en cause pourrait porter atteinte, selon lui, à la sécurité
nationale ou à la sécurité d’autrui;
d) il lui incombe de garantir la
confidentialité des renseignements et autres éléments de preuve que lui
fournit le ministre et dont la divulgation porterait atteinte, selon lui, à
la sécurité nationale ou à la sécurité d’autrui;
e) il veille tout au long de l’instance à
ce que soit fourni à l’intéressé un résumé de la preuve qui ne comporte aucun
élément dont la divulgation porterait atteinte, selon lui, à la sécurité
nationale ou à la sécurité d’autrui et qui permet à l’intéressé d’être
suffisamment informé de la thèse du ministre à l’égard de l’instance en
cause;
f) il lui incombe de garantir la
confidentialité des renseignements et autres éléments de preuve que le
ministre retire de l’instance;
g) il donne à l’intéressé et au ministre
la possibilité d’être entendus;
h) il peut recevoir et admettre en preuve
tout élément — même inadmissible en justice — qu’il estime digne de foi et
utile et peut fonder sa décision sur celui-ci;
i) il peut fonder sa décision sur des
renseignements et autres éléments de preuve même si un résumé de ces derniers
n’est pas fourni à l’intéressé;
j) il ne peut fonder sa décision sur les
renseignements et autres éléments de preuve que lui fournit le ministre et
les remet à celui-ci s’il décide qu’ils ne sont pas pertinents ou si le
ministre les retire.
(1.1) Pour l’application de l’alinéa
(1)h), sont exclus des éléments de preuve dignes de foi et utiles les
renseignements dont il existe des motifs raisonnables de croire qu’ils ont
été obtenus par suite du recours à la torture, au sens de l’article 269.1 du
Code criminel, ou à d’autres peines ou traitements cruels, inhumains ou
dégradants, au sens de la Convention contre la torture.
(1.2) Si l’intéressé demande qu’une
personne en particulier soit nommée au titre de l’alinéa (1)b), le juge nomme
cette personne, à moins qu’il estime que l’une ou l’autre des situations
ci-après s’applique :
a) la nomination de cette personne
retarderait indûment l’instance;
b) la nomination de cette personne
mettrait celle-ci en situation de conflit d’intérêts;
c) cette personne a connaissance de
renseignements ou d’autres éléments de preuve dont la divulgation porterait
atteinte à la sécurité nationale ou à la sécurité d’autrui et, dans les circonstances,
ces renseignements ou autres éléments de preuve risquent d’être divulgués par
inadvertance.
(2) Il est entendu que le pouvoir du juge
de nommer une personne qui agira à titre d’avocat spécial dans le cadre d’une
instance comprend celui de mettre fin à ses fonctions et de nommer quelqu’un
pour la remplacer.
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