Date: 20070411
Docket: IMM-2139-06
Citation: 2007 FC 372
Ottawa, Ontario, April 11, 2007
PRESENT: The Honourable Mr. Justice Blais
BETWEEN:
MAXIMIN
SEGASAYO
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR ORDER AND ORDER
[1]
The respondent filed a motion for non-disclosure of certain
information (the secret evidence) pursuant to section 87 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act), in connection with an application for judicial
review (IMM-2139-06) to be heard on March 29, 2007.
[2]
In response, Maximin Segasayo (the applicant) filed a
motion for a summary of the secret evidence.
RELEVANT FACTS
[3]
The
applicant was the Rwandan ambassador to Canada from 1991 to
1995. On January 26, 1996, the applicant and his family were given Convention refugee
status by the Immigration and Refugee Board (the Board). The applicant and his
family subsequently filed applications for permanent residence.
[4]
On
April 27, 1998, the Minister of Citizenship and Immigration Canada (CIC)
designated the Rwandan government as a regime which engaged in crimes against
humanity and genocide from October 1990 to April 1994, and from April 1994 to
July 1994. As a result of his prior status as the Rwandan ambassador of two
designated regimes, the applicant was advised by CIC on July 20, 1998, that he
was inadmissible to be landed in Canada, in accordance with
paragraph 19(1)(l) of the Immigration Act, R.S.C. 1985, c. I-2.
[5]
On
August 5, 1998, the applicant sought a ministerial exemption on the basis that
he was not complicit in the crimes committed during the Rwandan genocide of
1998, and for that reason, his permanent presence in Canada would not be
detrimental to the national interest. Under the current legislation, the
ministerial relief provision is found at subsection 35(2) of the Act. The
Minister of Public Safety and Emergency Preparedness (the Minister) denied the
application on February 24, 2006. In rendering his decision, the Minister
relied upon secret evidence, as a portion of the record disclosed to the
applicant was redacted.
[6]
On
March 24, 2006, the applicant sought judicial review of the Minister’s decision. For the
purposes of the judicial review, the Board produced a redacted Certified Tribunal
Record on the grounds that disclosure of the redacted portions would be
injurious to national security or the safety of any person.
[7]
The
respondent then brought before this Court a motion under section 87 of the Act for
non-disclosure, requesting:
a) An order
under subsection 87(1) of the Act for the non-disclosure of the secret evidence
to the applicant, his counsel and the public; or
b) In the event
that this Court concludes that the requirements for non-disclosure have not
been satisfied with respect to some or all of the secret evidence, that this secret
evidence be returned to it, that it not form part of the Court file and that it
not be disclosed to the applicant, his counsel and the public.
[8]
Although
the respondent seeks the non-disclosure of the secret evidence, the respondent
still wishes to rely on the secret evidence for the purposes of responding to
the judicial review application.
[9]
In
response to the motion for non-disclosure, the applicant has brought a motion
requesting a summary of the undisclosed information, but only in the event that
the Court orders the secret evidence not to be disclosed to the applicant.
ISSUES FOR CONSIDERATION
1. Was the Minister
entitled to rely on the secret evidence when deciding the application for
ministerial relief?
2. Did the Minister
breach the duty of fairness by not disclosing the secret evidence relied upon when
deciding the application for ministerial relief?
3. Alternatively,
if the Court orders that the secret evidence not be disclosed to the applicant,
is the applicant entitled to a summary of that evidence?
ANALYSIS
1.
Was the Minister entitled to rely on the secret evidence when deciding the
application for ministerial relief?
[10]
The
applicant raised a preliminary matter by arguing that the Minister erred by
relying on secret
evidence when he denied his ministerial relief application. In particular, the applicant
argues that section 87 of the Act is the only section that deals with secret
evidence, and that section 87 does not refer to section 35 of the Act.
[11]
The
parties are in general agreement that the Act does not explicitly provide
any legislative authority for the Minister to rely on undisclosed secret evidence
when rendering a decision for ministerial relief under subsection 35(2) of the
Act. However, while there is no specific provision allowing the Minister to
rely on secret evidence, there is also no limitation placed on the Minister as
to what he may take into consideration in making his decision. It is undeniable
that the applicant’s case is made all the more difficult because he is unable
to have access to information which may have an impact on the adequacy of his
submissions in the judicial review application; however, the applicant failed
to cite any jurisprudence stating that the Minister is unable to consider certain
information to which he has access. In contrast, there have been two recent cases,
similar to the case at bar, where the non-disclosure of confidential material
was permitted to its potential effects on national security, even
despite the absence of a legislative scheme for the withholding of
sensitive information (Mohammed v. Canada (Minister of Citizenship and
Immigration), 2006 FC 1310, Naeem v. Canada (Minister of Citizenship
and Immigration), 2007 FC 123). Although Mohammed and Naeem
involve section 34 of the Act as opposed to section 35, they dealt with the
same procedural question as the case at bar: the non-disclosure of sensitive
information by the Minister for reasons of national security and the safety of
persons, absent any definitive legislative authority. The
differences between the two sections for the purposes of this motion are
immaterial.
[12]
Additionally,
by virtue of the nature of the inquiry under section 35 of the Act, i.e. national
interest, it is implicit that confidential information will be contemplated.
Furthermore, any evidence relied upon by the Minister does not become ‘secret’
until a request has been made for disclosure.
[13]
Therefore,
in my view, the Minister was able to consult the secret evidence in coming to
his decision on the application for ministerial relief. The statutory authority
of the Minister to withhold certain information relevant to national security is
explained more fully below.
2.
Did the Minister breach the duty of fairness by not disclosing the secret evidence
relied upon when deciding the application for ministerial relief?
[14]
I
have carefully reviewed the secret evidence and after conducting a thorough
analysis of the information contained therein and weighing the balance of
interests involved, I am of the firm view that the information sought to be
released (subject to the partial disclosure of a portion of the redacted
Tribunal Record agreed to by the Minister) should not be disclosed and as such,
the Minister did not breach the duty of fairness for the following reasons.
[15]
There
are no rules within the Federal Courts Rules, SOR/2004-283, or the Federal
Courts Immigration and Refugee Protection Rules, SOR/2002-232
(the Immigration Rules), which specifically provide for non-disclosure
of materials based on national security. The only sections within the Act which
speaks to the matter of non-disclosure are sections 86 and 87. However, those
sections are not directly applicable here as section 86 applies only with
respect to admissibility hearings, a detention review or an appeal before the
Immigration Appeal Division. Section 87 concerns only information pursuant to
sections 11, 86, 112 or 115 of the Act. None of those requirements apply in
this case, as the applicant was denied ministerial relief under subsection
35(2) of the Act.
[16]
Rules
317 and 318, contained in Part V of the Federal Courts Rules, also
address the subject of non-disclosure by permitting a tribunal to object to a
request for disclosure of relevant materials in its possession. The Minister is
considered to be a tribunal pursuant to section 2 of the Federal Courts Act,
R.S.C.
1985, c. F-7.
However, rules 317 and 318 of the Federal Court Rules do not apply in
the context of the Immigration Rules, because they are not included
within subsection 4(1) of the Immigration Rules. The current version of
subsection 4(1) of the Immigration Rules states:
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4. (1) Subject to subrule (2),
except to the extent that they are inconsistent with the Act or these Rules,
Parts 1 to 3, 6, 7, 10 and 11 and rules 383 to 385 of the Federal Courts
Rules apply to applications for leave, applications for judicial review and
appeals.
(2)
Rule 133 of the Federal Courts Rules does not apply to the service of an
application for leave or an application for judicial review.
|
4.(1) Sous réserve du
paragraphe (2), la demande d’autorisation, la demande de contrôle judiciaire
et l’appel sont régis par les parties 1, 2, 3, 6, 7, 10 et 11 et les règles
383 à 385 des Règles des Cours fédérales, sauf dans le cas où ces
dispositions sont incompatibles avec la Loi ou les présentes règles.
(2)
La règle 133 des Règles des Cours fédérales ne s’applique pas à la
signification d’une demande d’autorisation ou d’une demande de contrôle
judiciaire.
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[17]
The
procedural difficulties in respect of non-disclosure of secret evidence on the
basis of national security have been previously discussed by this Court in Mohammed,
above, and Naeem, above. Both of my colleagues have dealt with the
lacuna in the rules by applying rule 4 of the Federal Courts Rules in order to bridge the
“gap” left by this “legislative oversight” (Naeem, above). Rule 4 of the
Federal Courts Rules provides:
|
4.
On motion, the Court may provide for any procedural matter not provided for
in these Rules or in an Act of Parliament by analogy to these Rules or by
reference to the practice of the superior court of the province to which the
subject-matter of the proceeding most closely relates.
|
4.
En cas de silence des présentes règles ou des lois fédérales, la Cour peut,
sur requête, déterminer la procédure applicable par analogie avec les
présentes règles ou par renvoi à la pratique de la cour supérieure de la
province qui est la plus pertinente en l’espèce.
|
[18]
In
my view, this is the correct approach to take and I will adopt the procedures
outlined by my colleagues in Mohammed, above, and Naeem, above.
[19]
In
short, the applicable section for non-disclosure by reason of national security
is section 87 of the Act. In addition, the parties both agree that section 87
is the most closely related procedure in the Act that deals with non-disclosure
of information. Section 87 states:
|
87. (1) The Minister may, in
the course of a judicial review, make an application to the judge for the
non-disclosure of any information with respect to information protected under
subsection 86(1) or information considered under section 11, 112 or 115.
(2)
Section 78, except for the provisions relating to the obligation to provide a
summary and the time limit referred to in paragraph 78(d), applies to the
determination of the application, with any modifications that the
circumstances require
|
87. (1) Le ministre peut, dans
le cadre d’un contrôle judiciaire, demander au juge d’interdire la
divulgation de tout renseignement protégé au titre du paragraphe 86(1) ou
pris en compte dans le cadre des articles 11, 112 ou 115.
(2)
L’article 78 s’applique à l’examen de la demande, avec les adaptations
nécessaires, sauf quant à l’obligation de fournir un résumé et au délai.
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[20]
In
considering whether the redacted portions of the Tribunal Record should be
disclosed, I have weighed two competing factors in this case. The first is the
duty of fairness to the applicant so as to provide a “full and frank
disclosure” of all relevant information (Charkaoui v. Canada, 2004 FCA
421, [2005] 2
F.C.R. 299, 247 D.L.R.
(4th) 405). This is essential because the applicant has the onus of
establishing his case and has the burden of providing adequate reply in the
judicial review. The other factor to be considered is the public interest in
protecting information injurious to national security.
[21]
After
thoroughly scrutinizing the secret evidence and determining its reliability,
its contents, its probative value, and its cogency, I have no hesitation in
ruling that it remain undisclosed to the applicant, his counsel and the public,
subject to those portions the Minister had agreed to release during the ex-parte
in-camera hearing. It is
without a doubt that the content, nature and sources of the sensitive
information in dispute would be injurious to national security if
disclosed. I am limited by the sensitive nature of the inquiry to not go
into further detail as to my reasons for coming to such a conclusion.
[22]
That
being said, I wish to emphasize that the amount of secret evidence in this file
is fairly limited. In fact, the secret evidence consists of an internal memo of
the Canadian Border Services Agency (the CBSA), two and a half pages in length,
where portions of five different paragraphs are redacted, and a six-page letter
from the Canadian Security Intelligence Service to the CBSA where 12 out of 17
paragraphs are redacted. When one considers that the Tribunal Record is 702 pages
in length, it is my opinion that the information that is not disclosed to the
applicant represents a very small portion of the information regarding the
applicant. As the applicant has been given access to the overwhelming majority
of the information provided to the Minister, most of which was actually
submitted by the applicant, the non-disclosure of those few paragraphs appears
quite reasonable in light of the national security concerns, and would not
amount to a breach of procedural fairness.
[23]
Before
concluding the issue of procedural fairness, I would also like to address the
decision of the Supreme Court of Canada in Charkaoui
v. Canada (Minister of Citizenship and Immigration),
2007 SCC 9, [2007] S.C.J. 9 (QL), released on February 23, 2007.
[24]
In
Charkaoui, above, the Supreme Court of Canada declared
the procedure followed for the judicial confirmation of security certificates
and the review of detention, found at sections 77 to 85 of the Act, to be
unconstitutional. Since the procedure outlined in section 78 applies in the
context of motions for non-disclosure under section 87, I have considered
the constitutionality of the procedure followed under section 78 within the
context of applications under section 87 of the Act.
[25]
First,
it must be stated that the Supreme Court of Canada recognized that “[t]he right to know the
case to be met is not absolute”, and that there are Canadian statutes, other
than the Immigration and Refugee Protection Act, which provide for ex
parte or in camera hearings, “in which judges must decide important
issues after hearing from only one side” (Charkaoui, above, paragraph
57).
[26]
The Supreme
Court of Canada also acknowledged its previous rulings where the balancing of
national security and the disclosure of information was at stake. Chief Justice
McLachlin wrote in Charkaoui, above, at paragraph 58:
58.
More particularly, the Court has repeatedly recognized that national security
considerations can limit the extent of disclosure of information to the
affected individual. In Chiarelli, this Court found that the Security
Intelligence Review Committee (SIRC) could, in investigating certificates under
the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C.
1985, c. I-2), refuse to disclose details of investigation techniques and
police sources . The context for elucidating the principles of fundamental
justice in that case included the state's "interest in effectively
conducting national security and criminal intelligence investigations and in
protecting police sources" (p. 744). In Suresh, this Court held
that a refugee facing the possibility of deportation to torture was entitled to
disclosure of all the information on which the Minister was basing his or her
decision, "[s]ubject to privilege or similar valid reasons for reduced
disclosure, such as safeguarding confidential public security documents"
(para. 122). And, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court
upheld the section of the Privacy Act, R.S.C. 1985, c. P-21, that
mandates in camera and ex parte proceedings where the government
claims an exemption from disclosure on grounds of national security or
maintenance of foreign confidences. The Court made clear that these societal
concerns formed part of the relevant context for determining the scope of the
applicable principles of fundamental justice (paras. 38-44).
[27]
In
considering the particular issue of security certificates, Chief Justice
McLachlin concluded that:
61.
In the context of national security non-disclosure, which may be extensive,
coupled with the grave intrusions on liberty imposed on a detainee, makes it
difficult, if not impossible, to find substitute procedures that will satisfy s.
7. Fundamental justice requires substantial compliance with the venerated
principle that a person whose liberty is in jeopardy must be given an
opportunity to know the case to meet, and an opportunity to meet the case. […]
If s. 7 is to be satisfied, either the person must be given the necessary
information, or a substantial substitute for that information must be found.
Neither is the case here.
[28] While this may be true
in the context of security certificates, such is not necessarily the case when
dealing with applications for non-disclosure under section 87 of the Act. The
first distinction to be made is that, while the ultimate outcome of deportation
may be the same, only those subject to a security certificate face detention
while awaiting a decision on their inadmissibility. As such, only the security
interest, not the liberty interest, is at stake under section 87. The
respondent also points out that even deportation is not a certainty in this
case, since the applicant has been recognized as a Convention refugee, and is
thus subject to section 115 of the Act, which prohibits his deportation barring
a determination by the Minister that he “should not
be allowed to remain in Canada on the basis of the nature and severity of acts
committed or of danger to the security of Canada”. Since the Minister has yet
to form this opinion, the respondent maintains that the applicant’s section 7
rights are not engaged at this time.
[29] The second very
important distinction concerns the amount of information for which non-disclosure
is sought. Where a security certificate is issued, the information that is
sought to be kept from the person named in the security certificate is in the
form of a Security Intelligence Report prepared by the Canadian Security
Intelligence Service, a report which will usually contain a large number of
annexes. Therefore, this is a situation where the non-disclosure will likely be
extensive; moreover, the person named in the certificate will have no way of
knowing the extent of the information that is being withheld. Such is not the
case under section 87, where a redacted Tribunal Record may be prepared and
where the person will be able to determine the exact amount of information that
is being kept from them.
[30]
In
this case, as stated above, only a portion of two short documents, out of the
702-page Tribunal Record, were redacted. Since the person concerned is aware of
the great majority of the information on which the decision-maker relied, there
would also be no need to provide the applicant with a “substantial substitute”
to the information for which the application for non-disclosure is granted.
[31]
It
is my conclusion therefore that the decision in Charkaoui, above, on the
constitutionality of section 78 of the Act in the context of security certificates,
can be distinguished when section 78 procedures are followed in the context of
applications under section 87 of the Act.
[32]
As
such, I maintain my position that there was no breach of the applicant’s right
to procedural fairness in the case before us.
3.
Alternatively, if the Court orders that the secret evidence not be disclosed to
the applicant, is the applicant entitled to a summary of that evidence?
[33]
Section
87 of the Act clearly states that section 78 is to apply with respect to the
procedural steps involved in dealing with the non-disclosure of certain
information; however, the obligation of providing a summary is specifically
excluded at subsection 87(2). I see no reason why I should depart from the
procedures outlined therein.
[34]
Furthermore,
given the context and the nature of the information, it would be
impossible to provide a summary of the confidential information, as to do so
may jeopardize foreign relations, betray the identities of informants,
reveal sensitive information useful in conducting national and foreign policy,
and may possibly endanger the lives of third parties. It may thus render
the information that is being protected useless and exhaust the sources on
which Canadian authorities rely. Therefore, it would be inconsistent with the legislative
intent to import into section 87 of the Act the requirement that the Minister
must provide a summary of the confidential information. There is also
jurisprudence to the effect that a summary in the particular circumstances was not
necessary and/or was impossible to provide (see Chiau v. Canada (Minister of
Citizenship and Immigration), [2001] 2
F.C. 297, 195 D.L.R
(4th) 422, Mohammed, above; Charkaoui (Re), 2004 FCA
421, [2005] 2
F.C.R. 299; Zündel (Re), 2005 FC 295,
251 D.L.R.
(4th) 511).
[35]
Accordingly,
the motion for non-disclosure is granted and the motion for a summary of the secret
evidence is dismissed.
ORDER
THIS COURT ORDERS that:
- The motion by the
respondent for non-disclosure of part of the Tribunal Record is granted;
- The redacted
version of the Tribunal Record already served and filed with the Court
will stand as the Tribunal Record;
- The motion by the
applicant for a summary of the secret evidence is dismissed;
- Without costs.
“Pierre Blais”
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