Date: 20090122
Docket: DES-5-08
Citation: 2009 FC 59
Ottawa, Ontario, January 22,
2009
PRESENT: The Honourable Mr. Justice Simon Noël
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 a request of the
Special Advocates to communicate with other Special Advocates pursuant to
paragraph 83(1)(b) of IRPA;
AND IN THE MATTER OF Mohamed
HARKAT
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr.
Cavalluzzo and Mr. Copeland were appointed on June 4, 2008 to act as special
advocates for Mr. Harkat in this proceeding (hereinafter “the special
advocates”).
[2]
Mr.
Copeland has also been appointed to act as special advocate in Federal Court
file DES-3-08 and Mr. Cavalluzzo is a special advocate in Federal Court file
DES-6-08. Other special advocates have also been appointed as special
advocates in two distinct files.
[3]
On
November 6, 2008, the special advocates in this proceeding sought judicial authorization
to communicate with special advocates appointed in other certificate
proceedings “… concerning the Orders that should be issued in IRPA proceedings where
special advocates are appointed” (see written request by the special advocates
for leave pursuant to subsection 85.4(2) of the Immigration and Refugee
Protection Act (“IRPA”) dated November 6, 2008 at paragraph 3).
[4]
The
request to communicate was amended on November 27, 2008, and is now limited to
issues common to all five certificate proceedings such as “… questions of
jurisdiction, procedure, and substantive law which will lead to orders issued
by each designated judge.” (See special advocates response dated November 27,
2008). Argument was heard in public on December 16, 2008 and further
documentation was filed on December 17 and 22, 2008.
[5]
The
special advocates refer to my Order dated September 24, 2008 defining the scope
of disclosure to the decision of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 (“Charkaoui #2”), the
interpretation to be given to the judicial obligation to “verify” the material
disclosed as prescribed in paragraph 62 of Charkaoui #2, and discussions
concerning the most appropriate procedures to be followed in light of the new expanded
disclosure as examples of common issues that could be usefully discussed by all
special advocates.
[6]
In
their submissions, the special advocates stated that they are “confident” that no
inadvertent disclosure of confidential information will occur if they are
authorized to communicate with the special advocates appointed in other
proceedings. They asserted that even if inadvertent disclosure occurred, the
harm to national security would be mitigated by the fact that the other special
advocates are top-secret cleared and bound by an oath of secrecy.
[7]
The
special advocates submit that one of the goals of the amendments made to IRPA
by Parliament in Bill C-3 was to put the special advocates in the same position
as counsel for the Ministers, that is, provide for an equality of arms in the
closed portion of security certificate proceedings. They point to section
85(3) as indicative of this intent. It is therefore asserted that special
advocates should be authorized to discuss common issues since it is believed
that ministerial counsel have that ability. No evidence was adduced on this
point.
[8]
The
Ministers oppose the request on the grounds that the authorization sought is
overly vague and seeks to displace the designated judge’s role to authorize
specific communication requests by special advocates appointed in a proceeding
(see section 85.4(2) IRPA). The order sought, according to the Ministers, goes
against the intent of the legislation which is to prevent the inadvertent
disclosure of confidential information by constant judicial supervision. They
assert that the order sought is a blanket order for which there is no supporting
legislative provision or evidence.
[9]
During
the hearing of this motion, the Court requested written submissions on the
issue of whether a designated judge could authorize communication between
special advocates in more than one proceeding. In their written submissions,
counsel for the Ministers and the special advocates agreed that an order allowing
the special advocates in this proceeding to communicate with special advocates
appointed in other proceedings could neither authorize special advocates in
other proceedings to reciprocate, or bind judges designated in other security
certificate proceedings to issue similar orders. The jurisdiction of a
designated judge is limited to authorizations sought by the special advocates
appointed by that judge in the context of a specific proceeding. Such an order
may spur other special advocates to make similar requests to the designated
judges in each proceeding.
[10]
There
are three issues raised by this request:
1.
Is
the requested authorization within the scope of the discretion given to a
designated judge in section 85.4(2) IRPA?
2.
Is
the request for authorization to communicate before the Court overly broad or
vague?
3.
What
conditions, if any, are appropriate if such a communication were to be authorized?
The relevant provisions
of IRPA
[11]
The
relevant IRPA provisions read as follows:
|
83.
(1)
The following provisions apply to proceedings under any of sections 78 and 82
to 82.2:
[…]
(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;
[…]
|
83. (1) Les règles ci-après s’appliquent aux
instances visées aux articles 78 et 82 à 82.2 :
[…]
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;
[…]
|
|
85.1
(1) A special advocate’s role is to protect
the interests of the permanent resident or foreign national in a
proceeding under any of sections 78 and 82 to 82.2 when information or other
evidence is heard in the absence of the public and of the permanent resident
or foreign national and their counsel.
|
85.1 (1) L’avocat spécial a pour rôle de
défendre les intérêts du résident permanent ou de l’étranger lors de
toute audience tenue à huis clos et en l’absence de celui-ci et de son
conseil dans le cadre de toute instance visée à l’un des articles 78 et 82 à
82.2.
|
|
85.2
A special advocate may :
[…]
(c)
exercise, with the judge’s authorization, any other powers that are
necessary to protect the interests of the permanent resident or foreign
national.
|
85.2 L’avocat spécial peut:
[…]
c) exercer,
avec l’autorisation du juge, tout autre pouvoir nécessaire à la défense
des intérêts du résident permanent ou de l’étranger.
|
|
85.4
[…]
(2) After that information or other evidence is
received by the special advocate, the special advocate may, during the
remainder of the proceeding, communicate with another person about the
proceeding only with the judge’s authorization and subject to any
conditions that the judge considers appropriate.
(3) If the special advocate is authorized to
communicate with a person, the judge may prohibit that person from
communicating with anyone else about the proceeding during the remainder of
the proceeding or may impose conditions with respect to such a
communication during that period.
|
85.4
[…]
(2) Entre le
moment où il reçoit les renseignements et autres éléments de preuve et la fin
de l’instance, l’avocat spécial ne peut communiquer avec qui que ce soit au
sujet de l’instance si ce n’est avec l’autorisation du juge et aux
conditions que celui-ci estime indiquées.
(3) Dans le cas
où l’avocat spécial est autorisé à communiquer avec une personne, le juge
peut interdire à cette dernière de communiquer avec qui que ce soit d’autre
au sujet de l’instance, et ce jusqu’à la fin de celle-ci, ou assujettir à
des conditions toute communication de cette personne à ce sujet, jusqu’à
la fin de l’instance.
|
|
85.5
With the exception of
communications authorized by a judge,
no person shall:
(a)
disclose information or other evidence that is disclosed to them under
section 85.4 and that is treated as confidential by the judge presiding at
the proceeding; or
(b)
communicate with another person about the content of any part of a proceeding
under any of sections 78 and 82 to 82.2 that is heard in the absence of the
public and of the permanent resident or foreign national and their counsel.
|
85.5 Sauf à l’égard des communications autorisées par tout juge, il est interdit à quiconque:
a) de divulguer
des renseignements et autres éléments de preuve qui lui sont communiqués au
titre de l’article 85.4 et dont la confidentialité est garantie par le juge
présidant l’instance;
b) de
communiquer avec toute personne relativement au contenu de tout ou partie
d’une audience tenue à huis clos et en l’absence de l’intéressé et de son
conseil dans le cadre d’une instance visée à l’un des articles 78 et 82 à
82.2.
|
(Emphasis added)
- Is the requested authorization
within the scope of the discretion given to a designated judge in section
85.4(2) IRPA?
[12]
Pursuant
to paragraph 83(1)(d) of IRPA, the designated judge bears the
responsibility of ensuring the confidentiality of information and other
evidence provided by the Minister if, in the opinion of the judge, its
disclosure would be injurious to national security or endanger the safety of an
individual. As
noted by Chief Justice McLachlin in Charkaoui v. Canada (Citizenship and
Immigration)
2007 SCC 9 (Charkaoui #1) at paragraph 55 “[c]onfidentiality is a
constant preoccupation of the certificate scheme.” At paragraph 58, the Court
notes that the preoccupation with confidentiality can be justified where
information relates to national security. The Chief Justice concluded that
“…the protection of Canada’s national security and
related intelligence sources undoubtedly constitutes a pressing and substantial
objective” at paragraph 68 of Charkaoui #1. While these comments and
references to IRPA were made before the coming into force of the amendments to
IRPA, in Bill C-3, the wording of s. 83(1)(d) is identical to former s. 78(b).
[13]
At
the same time, in Charkaoui #1, the Supreme Court found that even though
a special counsel would not be able to communicate the confidential information
to a person named in a security certificate, the section 7 interests of a person
named in a certificate would be better protected by the appointment of a security
cleared counsel who would represent the interests of the named person in the closed
portion of the proceedings (Charkaoui #1 at para. 86).
[14]
The
role of special advocate was described by the Chief Justice of the Federal
Court in Re Almrei, 2008 FC 1216, paragraph 51:
The special advocate protects
the interest of the named person in private hearings. The special advocate
challenges the Minister’s claim of confidentiality and the reliability of the
confidential information. The special advocate makes oral and written
submissions concerning confidential information and may cross-examine witnesses
during private hearings. Finally, the special advocate may, with the judge
authorization, “exercise … any other powers that are necessary to protect the
interests of the [named person].
[15]
Section
85.4(2) prohibits a special advocate from communicating with anyone about the
proceeding, for the duration of the proceeding, once he or she has received a
copy of the confidential information. If a special advocate wishes to make any
communication he or she must seek judicial authorization. In
granting the authorization, the designated judge may impose any conditions
deemed appropriate.
[16]
As
highlighted by Chief Justice Lutfy, in his reasons for judgment in Re Almrei at paragraph
78, these restrictions must be interpreted in a way which limits the
possibility of inadvertent disclosure:
Mr. Almrei and the
interveners concede that the protection of confidential information is a
legitimate governmental objective. The broad limitations found in the
impugned provisions must, therefore, be interpreted by courts keeping in mind
the risks of disclosure, particularly inadvertent disclosure, of confidential
information, while avoiding absurd consequences.
[17]
The
legislation also requires that the Minister of Justice provide adequate
administrative support and resources to the special advocates (s. 85(3) IRPA).
This provision may indicate intent on the part of Parliament to ensure that special
advocates are, wherever possible, put in the same position as counsel for the
Ministers.
[18]
Finally,
the referral of five certificates to the Federal Court on February 22, 2008, in
conjunction with the coming into force of the amendments made in Bill C-3
requiring the appointment of special advocates in each file, has resulted in an
unprecedented situation.
[19]
It
is in this context that the scope of section 85.4(2) must be interpreted.
[20]
The
special advocates are requesting authorization to communicate with the special
advocates appointed in other cases. They wish to discuss issues common to all
security certificate proceedings, such as questions of jurisdiction, procedure,
and substantive law relating to orders that have been rendered or could lead to
orders being sought. They have undertaken not to discuss the factual matrix
in any of the underlying proceedings.
[21]
Such
an authorization would assist in the expeditious, informal and fair disposition
of these certificate proceedings. By giving special advocates the same
opportunity to discuss common issues and strategies that is accorded counsel
for the Ministers
the Court may be forestalling the unnecessary duplication of motions and
requests in the five proceedings. It will also prevent a constant
proliferation of motions to communicate which will have to be brought before
each judge in each proceeding every time the special advocates wish to discuss
a particular issue or order. Judicial economy and the legislative imperative
to move forward expeditiously argues for an expansive interpretation of the
Court’s discretion to authorized communication found in s. 85.4(2) IRPA.
[22]
Indeed,
nothing on the face of the legislation requires that a judicial authorization
to communicate pursuant to section 85.4(2) be tied to a specific, one time,
communication. The judge may authorize the special advocate to communicate
“with” another person and not simply “to” another person. Communication “with”
another person includes an exchange of communications and contemplates the
possibility of an on-going communication. Thus, the judge has a broad
discretion to authorize communication subject to his or her overriding obligation
to ensure that confidential information in a particular proceeding is not
disclosed to any person where such disclosure would be injurious.
2. Is the
requested authorization for communication overly broad or vague?
[23]
The
Ministers assert that the request of the special advocates is overly broad or
vague. The special advocates, however, have limited their request to common
issues related to questions of jurisdiction, procedure, and substantive law
which may have been the subject of orders or could lead to new orders being
sought or issued. The special advocates have also undertaken not to discuss
the factual basis of this security certificate proceeding in the course of
their discussions with other special advocates.
[24]
The
request is not so vague that it is impossible to determine what can be
discussed. A person with legal training, who has qualified to be a special
advocate, has the knowledge necessary to determine the meaning of “common
issues and questions of jurisdiction, procedure, and substantive law”. He or
she is also capable of distinguishing legal from factual issues although
whenever there is doubt the guidance of the Court should be sought.
[25]
I
have therefore come to the conclusion that the request made by the special
advocates in this proceeding, to communicate to other special advocates
appointed in certificate proceedings pending before the Federal Court, about
common issues related to questions of jurisdiction, procedure, and substantive
law which may have been the subject of orders or could lead to new orders being
sought should be granted.
3. What
measures must be taken to protect the confidentiality of the information?
[26]
The
Court has a legal obligation to protect the confidential information and
prevent disclosure which would be injurious. This authorization is not an
endorsement of the assertion made by the special advocates that if inadvertent
disclosure occurs amongst special advocates the injury done to national
security would be mitigated by their security clearances. Such an assertion
ignores the “need to know” principle and cannot be accepted. However, in the
context of this motion, the Ministers concern about the risk of inadvertent
disclosure is less persuasive since Mr. Copeland and Mr. Cavalluzzo are
appointed to act as special advocates in two other proceedings. Between them,
the special advocates in this proceeding, who speak together regularly, have
knowledge of the facts and procedure in three of the five certificate
proceedings. These special advocates overlap with two other special advocates,
Mr. Cameron and Mr. Norris, who in turn overlap with a fifth special advocate
Mr. Kapoor. By not objecting to the appointment of overlapping special
advocates in four of the five files, the Ministers have reduced the force of
their argument on the risk of inadvertent disclosure.
[27]
However,
even a small risk of inadvertent disclosure must be of concern to the Court. Such
disclosure should not occur and all measures to prevent it should be taken by the
Court and the special advocates. Consequently, the order authorizing the
special advocates in this proceeding to communicate with special advocates in
other proceedings will impose the following conditions.
[28]
The
special advocates are not authorized to disclose any confidential factual
information that is the subject of closed hearings. Even discussions of
litigation strategy or public orders may give rise to concerns of inadvertent
disclosure; for example, the order rendered September 24, 2008, in this
proceeding concerning the scope of the disclosure to be made as a consequence
of Charkaoui #2 refers to the testimony of two confidential witnesses.
This evidence was relied on in establishing the content and parameters of the
disclosure to be made. The evidence contains confidential information that
cannot be communicated to anyone not authorized to participate in the closed
hearing. This example demonstrates that extreme care must be taken by the
special advocates even when discussing seemingly public orders.
[29]
Second,
the communications between special advocates in this proceeding and other
special advocates shall be made in a manner similar to that permitted in the United
Kingdom
where procedures are in place to permit and facilitate communications between
special advocates in different cases. These institutional discussions, called
“knowledge sharing sessions”, are organized by the Special Advocate Support
Office (SASO) and focus on the public proceedings as well as general points of
principle raised in closed proceedings. This practice excludes any discussion
of the confidential factual basis of a particular case (see C. Forcese “Research
memorandum on anticipated legal and constitutional issues in special advocate
proceedings”, Faculty of Law, University of Ottawa (August 2008)
at pages 9 and 10, paragraph 4).
[30]
In
Canada, the Department
of Justice has established a section in the Policy Planning Directorate, the Special
Advocates Program (SAP), which has as its purpose the provision of
administrative support and resources to special advocates. The personnel of this
division, like the SASO in the United Kingdom, shall provide assistance to the
special advocates and upon request will organize and be present at all knowledge
sharing sessions involving the special advocates appointed in this proceeding.
The SAP, may upon request by the special advocates, prepare an agenda
containing issues authorized by this order, choose a secure location for such a
meeting (e.g. the special advocates secure offices or a comparable secure
facility) as well as determine the best date, time and duration for such
sessions.
[31]
During
any knowledge sharing session in which a special advocate in this proceeding is
participating, a representative of SAP with requisite security clearance shall
be present to provide administrative support. The special advocates must
ensure that the parameters established by these reasons and the order to follow
are fully respected and that proper recourses are followed if need be.
[32]
Subject
to these conditions, this proposed order benefits the judicial system; it will
enable special advocates to discuss, in the presence of support and resource
personnel, an agenda relating to common issues. It will enable the special
advocates to coordinate their motions thereby reducing duplication of
procedures. It will also reduce the number of motions for authorization to
communicate since relevant topics within the scope of the order, can be discussed
in a timely manner, without having to postpone the meeting to seek further judicial
authorization. That said, it is always open for the special advocates to bring
a motion seeking judicial authorization if for unforeseen reasons, an issue
becomes a subject of discussion as to whether or not it is within the
parameters set out in the order.
[33]
This
authorization is distinguishable from that which was sought before Justice
Tremblay-Lamer in DES-3-08. This request does not seek an authorization to
communicate with the person named in the certificate; nor is it a blanket
order. The topics which may be discussed are delineated and ascertainable and the
discussions are to be held in accordance with the conditions set out in these
reasons and the order to follow.
[34]
The
approach suggested is not an abdication of the judicial authority to authorize
communications between special advocates; on the contrary, it is an efficient
way of exercising this authority without hearing communication motions on an
issue by issue basis in five distinct proceedings. The communications hereby
authorized are in the interests of justice.
JUDGMENT
-
The
Court grants permission to Mr. Cavalluzzo and Mr. Copeland, in their capacity
as special advocates in DES-5-08, to communicate with other special advocates
(who have obtained the same judicial authorization from their respective
designated judge) appointed in other security certificate proceedings to
discuss common issues related to questions of jurisdiction, procedure, and
substantive law and orders rendered or orders to be sought. They are not
authorized to refer directly or indirectly to any information or evidence which
has been provided to them or to which they have been privy in their capacity as
special advocates.
-
These
communications are only authorized at meetings organized by the support resources
group for special advocates. The SAP shall determine the place and time for
the meetings and shall, in consultation with the special advocates, establish an
agenda. A member of SAP with appropriate security clearance shall be present
at all meetings to give administrative support to the special advocates.
-
Mr.
Cavalluzzo and Mr. Copeland are also authorized to communicate with the SAP for
the purposes of implementing this order.
“Simon Noël”
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-5-08
STYLE OF CAUSE: 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 MOHAMAD HARKAT
PLACE OF
HEARING: Ottawa, Ontario
DATE OF
HEARING: December
15-16, 2008
REASONS FOR JUDGMENT: NOËL
S. J.
DATED: January
22, 2009
APPEARANCES:
|
Mr. David
Tyndale,
Mr. Andre
Seguin
|
FOR THE APPLICANT
|
|
Mr. M. Webber,
Mr. N. Boxall
and
Mr. L.
Russomanno
|
FOR THE RESPONDENT
|
|
Mr. P. Copeland,
Mr. P.
Cavalluzzo
|
AS SPECIAL ADVOCATES
|
SOLICITORS
OF RECORD:
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JOHN H. SIMS
DEPUTY
ATTORNEY GENERAL OF CANADA
Ottawa Ontario
|
FOR THE APPLICANT
|
|
WEBBER
SCHROEDER GOLDSTEIN ABERGEL,
And
BAYNE SELLAR
BOXALL
Ottawa Ontario
|
FOR THE RESPONDENT
|
|
COPELAND DUNCAN
And
CAVALLUZZO
HAYES SHILTON McINTYRE & CORNISH, LLP
Toronto Ontario
|
AS SPECIAL ADVOCATES
|
|
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