Date: 20090527
Docket: DES-4-08
Citation: 2009 FC 546
Ottawa, Ontario, May 27, 2009
Present:
BETWEEN:
IN
THE MATTER OF a certificate under
subsection 77(1) of the Immigration
and
Refugee Protection Act (IRPA);
IN THE MATTER OF the referral
of that
Certificate to the Federal
Court under
Subsection 77(1) of the IRPA;
AND IN THE MATTER OF Adil
Charkaoui;
AND THE BARREAU DU QUÉBEC,
Intervener
REASONS FOR ORDER AND ORDER
Introduction
[1]
On
February 16, 2009, the Ministers submitted the additional documentation (Phase
II) required by Charkaoui v. Canada, 2008 S.C.J. No. 39, 2008
SCC 38. At the same time, they provided the special advocates with redacted
documents rather than the complete documents, arguing that certain privileges
existed and were applicable.
[2]
In the
Court’s communication dated February 27, 2009, it informed the person concerned
and his counsel of the various reasons why the Ministers had redacted the
information included in the additional disclosure, in accordance with Charkaoui
II, [2008] 2 S.C.R. 326; see Appendix “A”:
a. investigations, whether
underway or not, that do not relate to the person concerned;
b. identification of human
sources;
c. identification of employees of
the Service;
d. matters/subjects/individuals/groups
of interest to foreign agencies that do not relate to the person concerned;
e. identification of employees of
foreign agencies;
f.
solicitor-client
privilege;
g. Cabinet confidences.
[3]
In the
directive issued by the Court on March 18, 2009, it then asked the
Ministers to review the redacted documents for the special advocates and noted
that the reasons why information could be expunged would be identification of
human sources, solicitor-client privilege and Cabinet confidences; see Appendix
“B”.
[4]
The Court
invited all counsel to submit written legal argument on the rules that apply to
redacting of documents. An oral hearing was held on that issue on May 5, 2009.
Positions of the Parties
(i) Counsel
for the person concerned and the special advocates
[5]
Counsel
for the person concerned and the special advocates essentially submitted that
redacting the information provided to the special counsel by the Ministers is
illegal by virtue of subsection 85.4(1) of the Immigration and Refugee
Protection Act, 2001, c. 27 (IRPA) and the fact that they submitted
complete, unredacted information to the Court.
[6]
The
privileges in issue therefore cannot be set up against the special advocates;
the law is that they must receive the information judicially disclosed to the
Court.
[7]
Counsel
for the person concerned also argued that the Canadian Security Intelligence
Service Act, R.S. 1985, c. C-23 [CSIS Act], authorizes the Canadian
Security Intelligence Service to disclose information it acquires in the
circumstances specified in subsections 19(2) and 18(2) of that Act.
[8]
In
subsection 19(2) of the CSIS Act, Parliament specifically provided that
the Service could disclose information “as required by any other law”.
[9]
Parliament
also provided, in subsection 18(2) of the Act, that even confidential
information acquired by the Service from which the identity of a person who was
a confidential source of information or assistance to the Service may be
disclosed in the cases covered by that subsection.
[10]
Accordingly,
subsection 85.4(1) is a law that requires disclosure of human sources, in
addition to the right to make full answer and defence.
[11]
As a
result, the redacting done by the Ministers is illegal and unjustified.
Everything should have been disclosed to the special advocates, as is also
confirmed by the rules that apply to privilege.
[12]
Counsel
for the person concerned submitted that the Ministers have the burden of
proving that the privilege applies. The Court will then have to consider the
circumstances of the privilege alleged, the documents and the case: A.M. v.
Ryan [1997] 1 S.C.R. 157.
[13]
Counsel
submit with respect to the human sources privilege that the Ministers must
identify the person who provided information to the government and establish
that person’s status and relationship with the government and the nature of the
information, and explain how that person is covered by a privilege; the Court
will then be able to determine whether the privilege applies as an exception to
disclosure of the evidence.
[14]
The Court will
then have to balance the interests to determine whether the public interest in
disclosure outweighs the public interests identified.
[15]
Counsel
submit with respect to solicitor-client privilege that the Ministers must prove
that they are attempting to have information protected that is genuinely part
of the solicitor-client relationship. Where the information is privileged, the
Court must determine whether it is covered by an exception, such as “innocence
at stake” and the right of the accused to make full answer and defence, or
criminal communication between solicitor and client.
[16]
In the
case of Cabinet confidences, the Ministers have the burden of proving
justification for denying the person concerned the information on the ground
that a privilege exists.
(ii) The Ministers
[17]
The
Ministers submit that they had legal justification for redacting the privileged
information that is part of the additional disclosure under Charkaoui II,
supra. When Parliament amended section 9 of the IRPA, it did not
intend to abrogate the privileges recognized at common law. The common law
rules subsist absent a clear legislative expression of intent to depart from
them: Rawluk v. Rawluk [1990] 1 S.C.R. 70.
[18]
The
privileges in issue in this case are virtually absolute and may be lifted only
in very rare cases. It cannot be said that subsection 85.4(1) of the IRPA
indicates an express intent on the part of Parliament to preclude one of the
privileges cited by the Ministers.
[19]
It is
important to note that even in criminal law, the duty to disclose is not
absolute and the Crown is by no means required to disclose evidence that is
clearly irrelevant or covered by a privileged recognized in the law of
evidence: R. v. Stinchcombe [1991] 3 S.C.R. 326, pages 339 and 340.
[20]
Contrary
to the argument made by the person concerned, subsection 85.1(4) does not
operate to preclude application of the privilege recognized by the law of
evidence and it therefore does not permit disclosure of evidence that is
otherwise privileged. Accordingly, his arguments based on sections 18 and 19 of
the Canadian Security Intelligence Service Act are of no avail. The
Ministers submit that subsection 85.1(4) of the IRPA is not a “law” that
requires disclosure of information that is otherwise privileged in this case.
[21]
The covert
human sources privilege protects both the relationship between CSIS and the
source and the identity of the source: Re Harkat, 2009 FC 204, para.
31.
[22]
In that
decision, Mr. Justice Noël recognized that there is a covert human
intelligence source privilege analogous to the police informer privilege in
proceedings under section 9 of the IRPA.
[23]
Once the human sources
privilege is recognized it is absolute and the Court has no discretion to lift
it. The Court must prohibit disclosure not only of the source, but also of any
information that could implicitly reveal the source’s identity.
[24]
However,
the Ministers acknowledge a limited exception where the special advocate
establishes that he or she has a “need to know” the identity of a human source
to prevent a flagrant denial of procedural fairness which would bring the
administration of justice into disrepute: Re Harkat, supra,
paras. 35, 61 and 69.
[25]
Solicitor-client
privilege is now recognized not only as a substantive legal rule, but also as a
“fundamental civil right”: Solosky v. The Queen, [1980] 1 S.C.R. 821.
[26]
The
privilege applies where there is (i) a communication between solicitor and
client; (ii) which entails the seeking or giving of legal advice; and
(iii) which is intended to be confidential by the parties.
[27]
In
addition, the fact that advice that would be characterized as privileged is
given by staff counsel does not preclude application of the privilege or alter
the nature of the privilege: Pritchard v. Ontario, [2004] 1 S.C.R. 809, 2004
SCC 31.
[28]
The
privilege may be lifted only in the case of “absolute necessity” and
application of the privilege does not call for the interests to be balanced in
each case. With respect to the exceptions alleged by the person concerned, the
“innocence at stake” rule and criminal communications, the mere fact that this
case involves the application of section 7 of the Charter does not mean that
the rule applies in this case, in which the “innocence” or “guilt” of the
accused is not at stake; the issue is rather the reasonableness of a
certificate stating that there are reasonable grounds to believe that the
person concerned is inadmissible to Canada.
[29]
The case
law submitted by the person concerned for the purpose of “piercing”
solicitor-client privilege in this case is clearly insufficient.
[30]
The
arguments made by the person concerned regarding renunciation cannot stand. The
only purpose of submitting the unredacted documents to the designated judge is
to enable the designated judge to decide any dispute that might arise in that
regard.
[31]
The
privilege that protects Cabinet confidences has been codified and modified by
section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (the CEA), which requires that where a minister or the
Clerk of the Privy Counsel objects to the disclosure of information and
certifies in writing that it is a confidence of the Queen’s Privy Council for
Canada, the court is required to refuse disclosure without examination or
hearing of the information.
Issue
[32]
The
question is whether section 9 of the IRPA operates to preclude application
of the common law privileges with the result that the Ministers have no legal
justification for expunging the privileged information included in the
additional disclosure under Charkaoui II.
[33]
If not,
the question is then what rules apply to the requests by the special advocates
for the de‑redacting of the documents.
Analysis
1. Conflict between the IRPA and
the privileges
[34]
The person
concerned and the special advocates rely essentially on subsection 85.4(1)
of the IPRA in their assertion that no legal basis exists for the redacting.
[35]
Subsection 85.4(1)
of the IRPA reads as follows:
|
Obligation to
provide information
85.4 (1) The Minister shall, within a period set by
the judge, provide the special advocate with a copy of all information and
other evidence that is provided to the judge but that is not disclosed to the
permanent resident or foreign national and their counsel.
|
Obligation de
communication
85.4 (1) Il incombe au ministre de fournir à
l’avocat spécial, dans le délai fixé par le juge, copie de tous les
renseignements et autres éléments de preuve qui ont été fournis au juge, mais
qui n’ont été communiqués ni à l’intéressé ni à son conseil.
|
[36]
Although the
provision seems to indicate that Parliament intended for all information and
other evidence provided to the judge to be provided as well to the special
advocate, I cannot read it as containing an express intention on the
part of Parliament to depart from the privileges alleged by the Ministers, which
are virtually absolute for the following reasons.
[37]
To begin,
I note that this information is included in the disclosure under Charkaoui II
(Phase II). It is therefore not information and evidence on which the
security certificate is based. With respect to the certificate, the
Ministers submitted evidence in support of their position. A complete version,
with the exception of a few paragraphs of a document, was provided to the
special advocates in accordance with subsection 85.4(1) of the IRPA.
[38]
In my opinion,
Parliament’s intent in enacting subsection 85.4(1) was to ensure that all
information and other evidence on which the Ministers based their position
was provided to the special advocates so they would have all of the evidence
that could be set up against the person concerned, to enable them to represent
his interests at the in camera hearing.
[39]
I also
note that Parliament at that time could not have foreseen the subsequent
decision of the Supreme Court in Charkaoui II, supra, which
expanded the duty to disclose. In my opinion, it is unlikely that the decision
in Charkaoui II held that the disclosure in issue had to include
privileged material.
[40]
In any
event, the Ministers acted cautiously by providing the judge with all of the
documents (including the privileged information). The Court is therefore in a
position to ensure that a privilege could be alleged. I can see in this no
renunciation of the privileges alleged.
[41]
Absent a
clear provision expressly precluding the application of one of the privileges alleged
by the Ministers, I am not prepared to read subsection 85.4(1) of the IRPA
as permitting the lifting of these privileges.
[42]
Accordingly,
when the Court has determined, after examining the expunged material, that a
privilege applies and that there is no exception that can be cited to have the
privilege lifted, the documents in question will remain redacted.
2. Rules applicable to requests
by the special advocates for de-redacting
(i) Identification of
human sources
[43]
As we saw
earlier, my colleague Justice Noël, in Harkat, supra,
recognized the existence of a privilege to protect covert human intelligence
sources, analogous to the police informer privilege, in proceedings under
section 9 of the IRPA. He summarized the principles underlying the human sources
privilege as follows:
a.
Covert
human sources are vital to the functioning of intelligence agencies and to the
national security of Canada; they often provide information at risk to
themselves and to their families.
b.
Human
sources are given a guarantee that their identity will remain confidential;
access to information about them is severely restricted and compartmentalized
within CSIS.
c.
Recruitment
of human sources would be harmed if they were not given a guarantee that the
Court would keep their identity secret; disclosing the identity of a source in
a proceeding, even a closed proceeding, would almost certainly end the source’s
relationship with CSIS; regard must be had to the special nature of national
security investigations, which may be ongoing over time.
d.
The
confidentiality of sources ensures that the relationship between the source and
CSIS can be maintained in the long term and ensures the future success of
intelligence investigations. Confidentiality is essential to CSIS’s ability to
fulfil its legislative mandate to protect the national security of Canada while
protecting the source from retribution.
[44]
Those
principles are persuasive and apply in this case. However, I recognize the
limited exception recognized by Justice Noël, where the special advocate
establishes that he or she has a “need to know” the identity of a covert human
source to prevent a flagrant denial of procedural fairness which would bring
the administration of justice into disrepute.
[45]
The Court
will need only to determine whether the redacted documents are covered by that
privilege and that the limited exception does not apply.
(ii) Solicitor-client
privilege
[46]
The
importance of this privilege needs no explanation; it is an essential element
of the justice system. Once it has been established that communications between
solicitor and client fall into that class, they enjoy a prima facie
presumption of inadmissibility: R. v. McClure, [2001] 1 S.C.R. 445.
The privilege applies when in‑house government lawyers provide legal
advice to their client, a government agency: Pritchard v. Ontario, supra.
[47]
The
requirements for this privilege to apply are well known. There is no need to
lay them out again. There Court will therefore need only to ascertain whether
the redacted documents are covered by the privilege and that none of the
exceptions alleged by the person concerned apply in this case.
[48]
I accept
the Minister’s submission that the only purpose of providing the judge with the
unredacted documents is to enable the judge to decide any dispute that might
arise in that regard, and it does not constitute renunciation of the privilege.
(iii) Cabinet
confidences
[49]
I would
briefly note that this privilege, which is codified in section 39 of the Canada
Evidence Act, applies where the Clerk or the minister properly certifies
that the information is confidential. The judge is required to refuse
disclosure without examination or hearing of the information by the court: Babcock
v. Canada, 2002 S.C.J. No. 58, 2002 SCC 57. No balancing of all parties’
interests is done. Where the certificate is submitted to the court, the
documents are sealed without being examined by the court.
ORDER
THE COURT ORDERS that the documents provided to the
special advocates shall remain redacted until the Court has examined them to
ensure that they are covered by the privileges alleged and that no exception
applies.
Danièle Tremblay-Lamer
Certified true translation
Stefan Winfield, reviser
APPENDIX “A”
Date:
20090227
Docket:
DES-4-08
Ottawa, Ontario,
February 27, 2009
Present:
The Honourable Madam Justice Tremblay-Lamer
IN THE MATTER OF a certificate
under
subsection 77(1) of the Immigration
and
Refugee Protection Act (IRPA);
IN THE MATTER OF the referral
of that
Certificate to the Federal
Court under
Subsection 77(1) of the IRPA;
AND IN THE MATTER OF Adil
Charkaoui;
AND THE BARREAU DU QUÉBEC,
Intervener
COMMUNICATION TO ADIL
CHARKAOUI
AND HIS SOLICITORS OF RECORD
On February 18, 2009, the Court
registry received the copy of the disclosure ordered in Charkaoui v. Canada
(Citizenship and Immigration), 2008 SCC 38 (Charkaoui II). The
computer medium submitted included approximately 3,000 documents.
The Court wishes to inform the
person concerned and his solicitors that it appears from the letter from the
Ministers attached to the disclosure that the copy provided to the special
advocates has been redacted, while the version provided to the Court simply
highlights the passages expunged from the version provided to the special
advocates, so that the passages in question can still be read.
The reasons advanced by the
Ministers to justify the redacting of the copy provided to the special
advocates are:
(a) investigations,
whether or not underway, that do not relate to the person concerned;
(b) identification
of human sources;
(c) identification
of employees of the Canadian Security Intelligence Service (CSIS);
(d) matters/subjects/individuals/groups
of interest to foreign agencies that do not relate to the person concerned;
(e) solicitor-client
privilege; and
(f) Cabinet
confidences.
The Court attaches hereto a
letter from the special advocates dated February 25, 2009. You will note,
in the second salient point on page 2 of the letter, that the special advocates
intend to request de‑redacting for their benefit and that their requests
be heard in camera in the event that the Ministers refuse.
The Court wished to bring this
information to the attention of the person concerned and his solicitors so that
they would also have an opportunity to present legal arguments regarding the
rules that apply in determining the requests to be made by the special
advocates, in camera, regarding the documents covered by disclosure
under Charkaoui II, to the extent possible, during the public argument
on questions of law to take place on March 10 and 11.
The Court also issued a written
direction to the Ministers on February 24, 2009, asking whether they were
prepared to consent to disclosure of the content of any intercepted
communication to which the person concerned was a party and any surveillance
report concerning him. A similar approach has been taken in other cases.
As well, after considering the
first proposal for disclosure made by the special advocates and the Ministers’
response, and in order to make a ruling regarding possible disclosure to the
person concerned, the Court also ordered that the Ministers immediately obtain
the approvals that seem to be required in relation to information originating from
the domestic agencies involved, and one foreign agency, which they said they
were prepared to disclose, subject to approval from the foreign agency in
question.
J.
Certified
true translation
Stefan
Winfield, reviser
APPENDIX “B”
Date: 20090318
Docket:
DES-4-08
Ottawa, Ontario, March
18, 2009
Present:
The Honourable Madam Justice Tremblay-Lamer
IN THE MATTER OF a certificate
under
subsection 77(1) of the Immigration
and
Refugee Protection Act (IRPA);
IN THE MATTER OF the referral
of that
Certificate to the Federal
Court under
Subsection 77(1) of the IRPA;
AND IN THE MATTER OF Adil
Charkaoui;
AND THE BARREAU DU QUÉBEC,
Intervener
DIRECTION
First, to facilitate argument on the issue
of redacting at the public hearing on May 5, 2009, and in camera on
May 7, 2009, the Court would note that all information received by the
Court registry (disclosure under Charkaoui II) that may have been
expunged for the following reasons:
(a) investigations,
whether or not underway, that do not relate to the person concerned;
(b) identification
of human sources;
but that relate to people, groups or
organizations referred to in the summary of the security intelligence report
and/or of the confidential security intelligence report relating to the person
concerned should be re-examined by the Ministers with a view to de-redacting,
it being the opinion of the Court that the special advocates should be able to
have access to that information because the Court has access to it and that the
special advocates must be able to fulfil the responsibilities assigned to them
under subsection 85.1 (2) of the IRPA.
In addition, the Court requests re-examination
of any expunging that may have been done for the following reasons:
(c)
identification of employees of the Service involved in sensitive operations;
(e)
identification of employees of foreign agencies.
The rule is that such information not be
expunged, and since what is involved here are documents provided to the special
advocates in confidence for viewing in a secure location, written submissions
regarding the exception to that rule, addressing the applicable rules, may be
filed by the parties (by March 27, 2009, for the person concerned; by
April 3, 2009, for the special advocates; by April 10, 2009, for the
Ministers) and argued at the public hearings and in camera hearings.
In view of this direction, the Court notes
that any information that would still be expunged would be expunged on the
following grounds:
(b) identification of human
sources;
(f) solicitor-client privilege;
and
(g) Cabinet confidences.
For those three classes, the Court notes,
first, that section 39(1) of the Evidence Act provides that a
minister or the Clerk of the Privy Council may certify in writing that
information constitutes a confidence of the Queen’s Privy Council for Canada.
With respect to information that allegedly
reveals the identity of human sources, the Court would note that this class
must be applied narrowly and should not include documents that merely
refer to the use of human sources and in respect of which methods have been
utilized within the document to preserve the anonymity of the human source.
If that is the case, the Court observes
that the most fundamental ground for expunging alleged by the Ministers is the
ground alleging that the information is covered by solicitor-client privilege.
Danièle Tremblay-Lamer
Certified
true translation
Stefan
Winfield, reviser
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