Date: 19971117
Docket: A-361-95
CORAM: STONE J.A.
STRAYER J.A.
ROBERTSON J.A.
BETWEEN:
Appellant/Applicant
- and -
| SECURITY INTELLIGENCE REVIEW COMMITTEE, THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF EMPLOYMENT AND IMMIGRATION and THE SOLICITOR GENERAL |
Respondents
Heard at Ottawa, Ontario, Monday, September 15, 1997.
Judgment delivered at Ottawa, Ontario, Monday, November 17, 1997.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: STRAYER J.A.
ROBERTSON J.A.
Date: 19971117
Docket: A-361-95
CORAM: STONE J.A.
STRAYER J.A.
ROBERTSON J.A.
BETWEEN:
Appellant/Applicant
- and -
| SECURITY INTELLIGENCE REVIEW COMMITTEE, THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF EMPLOYMENT AND IMMIGRATION and THE SOLICITOR GENERAL |
Respondents
REASONS FOR JUDGMENT
STONE J.A.
[1] This appeal is from an order of Rothstein J. of April 25, 1995, sitting as a judge designated by the Chief Justice pursuant to subsection 38(1) of the Canada Evidence Act, R.S.C. 1985, c. C-5. The primary issue is whether the designated judge erred in law in sustaining an objection to the disclosure, in an application for judicial review in this Court, of information that had been placed before the Security Intelligence Review Committee ("SIRC") during the course of an investigation by SIRC pursuant to section 39 of the Immigration Act, 1976, S.C. 1976, c. 52. The judicial review application seeks that the Court review and set aside the SIRC decision made as a result of its investigation.
[2] The objection to the disclosure was contained in a certificate of R. Ian MacEwan, Director General of the Counter-Terrorism Branch of the Canadian Security Intelligence Service ("CSIS") dated December 22, 1988, made pursuant to subsection 37(1)1 of the Canada Evidence Act. Paragraphs 6 and 7 of the certificate read:
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6. I hereby certify to this Honourable Court pursuant to s.s. 37(1) of the Canada Evidence Act, R.S.C. 1985, chap. C-5, that the documents transcripts listed in Schedule A contain information the disclosure of which would be injurious to the national security of Canada and I object to the inclusion of these documents in the case prepared under Rule 1402 of the Federal Court Rules on that ground. I also certify to this Honourable Court, pursuant to the same subsection, that the disclosure of any other papers in the possession or control of the Committee which contain excerpts of, or commentary upon, information from CSIS would be injurious to national security if they were included in the case prepared under Rule 1402 of the Federal Court Rules. |
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7. More particularly, the disclosure of the information in the said documents and transcripts would, |
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(a) identify or tend to identify human sources and technical sources of the former Security Service of the Royal Canadian Mounted Police and CSIS (both hereinafter referred to as the "Service"); |
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(b) identify or tend to identify targets of the Service; |
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(c) identify or tend to identify methods of operations of the Service; |
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(d) identify or tend to identify members of the Service engaged in covert operations; |
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(e) jeopardize or tend to jeopardize the security of the Service's telecommunications cypher system; |
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(f) jeopardize or tend to jeopardize essential international relations and arrangement of the Service. |
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[3] In the course of its investigation, and in the absence of the appellant or his counsel, SIRC received evidence in the form of oral testimony and documents. The disclosure of this evidence is objected to in the certificate. So too are those parts of the written argument before SIRC of counsel for CSIS, to the extent that it is based on that evidence. The disclosure of correspondence between SIRC and CSIS containing information supplied to SIRC, and miscellaneous documents containing other information supplied to SIRC by CSIS in the course of the investigation, is also objected to in the certificate. All of this evidence is listed in Schedule A attached to the certificate. The appellant was provided with a summary of the evidence that was submitted to SIRC in his absence and also with a summary of the argument that was so presented to SIRC.
[4] The purpose of the SIRC investigation was to determine whether the appellant is a person described in paragraph 19(1)(g) of the Immigration Act, 1976, which reads:
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19.(1) No person shall be granted admission who is a member of any of the following classes: |
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(g) persons who there are reasonable grounds to believe will engaged in acts of violence that would or might endanger the lives or safety of persons in Canada or are members of or are likely to participate in the unlawful activities of an organization that is likely to engage n such acts of violence; |
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[5] The decision of SIRC was communicated to counsel for the appellant by a letter of October 17, 1988, which reads in part:
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The following paragraphs from the Committee's report would be of interest to you: |
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Having considered all the evidence, I believe that Mr. Moumdjian was involved in acts of violence in the past. However, he has made no such admission, nor has he shown any indication of regret or any sign of a change of heart. Also pertinent is the fact that conditions underlying past acts of violence by representatives of ASALA continue to exist. Based on my investigation and compelling CSIS evidence, I have come to the conclusion that he comes within the class of persons described in section 19(1)(g) of the Immigration Act. |
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I have reasonable grounds to believe that Mr. Moumdjian will engage in activity that constitutes a threat to the security of Canada. I conclude, therefore, that a certificate should be issued under subsection 40(1) of the Immigration Act. |
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If the Governor in Council is satisfied that the appellant is a person described in paragraph 19(1)(g) of the Immigration Act, it may issue a certificate to that effect. Such a certificate would clear the way for the appellant's removal from Canada.
[6] The competing interests at stake and the proper balancing of these interests where an application for judicial review of the SIRC decision is brought, were carefully considered in Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (T.D.), where Addy J. stated at page 238:
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Public interest in the administration of justice requires complete openness of the judicial process. That principle must be jealousy guarded and rigorously applied, especially where evidence which appears to be relevant to a judicial determination is at stake. That cardinal rule not only safeguards the rights of litigants generally but, more importantly, it is fundamental to the public interest in the preservation of our free and democratic society. There are, however, very limited and well-defined occasions where that principle of complete openness must play a secondary role and where, with regard to the admission of evidence, the public interest in not disclosing the evidence may outweigh the public interest in disclosure. This frequently occurs where national security is involved for the simple reason that the very existence of our free and democratic society as well as the continued protection of the rights of litigants ultimately depend on the security and continued existence of our nation and of its institutions and laws. |
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[7] In arriving at his decision in the present case, Rothstein J. took account of the existing jurisprudence, including Goguen v. Gibson, [1983] 1 F.C. 872 (T.D.); aff'd [1983] 2 F.C. 463 (C.A.). The two stage process which was adopted by Thurlow C.J. in Goguen, supra, and approved by this Court in that case, was summarized as follows by Rothstein J., at page 8 of his reasons:
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The jurisprudence contemplates a two stage process. In the first stage, the Court must weigh the competing public interests (the interest in disclosure versus the interest in keeping information immune from disclosure for reasons of international relations or national defence or security) in order to determine if an apparent case for disclosure has been made out. If the case in favour of disclosure is at least equal to that for immunity from disclosure, the Court may proceed to the second stage (examination of the information) in order to determine which public interest is more important in the particular circumstances: Goguen v. Gibson, at 888 per Thurlow C.J. |
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After making the initial examination, Rothstein J. examined the information covered by the objection. After doing so, he concluded at page 13 of his reasons:
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I have concluded that the documents which the respondents seek to keep confidential should not be disclosed. Having regard to the specific reasons given for confidentiality as they pertain to particular documents, I do not think the public interest in disclosure outweighs the requirement for confidentiality of the documents for national security reasons. |
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[8] In my view, if the appellant is to succeed on this appeal he must satisfy the Court that in deciding as he did Rothstein J. so erred in law as to justify this Court's intervention. I am not satisfied that he has done so. Rothstein J. was guided by the existing jurisprudence, and his decision to sustain the objection was obviously made after undertaking a most careful examination of the disputed information. In my view his decision to uphold the objection against disclosure reveals no error of law.
[9] Counsel for the appellant submits, however, that the panel hearing the judicial review application must have access to the disputed information if it is to be able to satisfy itself of whether SIRC failed to observe a principle of natural justice, or based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. Indeed, counsel contends that the panel cannot undertake a meaningful review of SIRC's decision without such access. This argument prompted counsel for the respondent and for the intervenor SIRC to submit, in the alternative, that if the appellant succeeded in establishing that the public interest in the adminstration of justice requires the disclosure of the information and argument that was placed before SIRC in the appellant's absence, this Court would have power under subsection 37(2)2 of the Canada Evidence Act to order limited disclosure of the information. In that event, the Court might consider adopting an approach similar to, but more restrictive than, the approach provided for in Rule 1404(8) of the Federal Court Rules for dealing with commercially sensitive documents. This could be accomplished by this Court examining the information, editing it and ordering the edited material, sealed appropriately, to be placed before the panel hearing the judicial review application.
[10] In this regard, it is of interest to note in this connection, the following observations of Rothstein J., at pages 4-5 of his reasons:
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While in the absence of statutory wording apparently to the contrary, I would have thought the Federal Court of Appeal would be the master of its own procedure, with the power to obtain access to confidential information, it appears this question, at least initially, is left to the designated judge. See Henrie at pages 234-235. Nonetheless, under subsection 38(3) an appeal lies from a decision of a designated judge to the Federal Court of Appeal. Obviously, there is no national security reason why the Federal Court of Appeal on a judicial review should not have access to confidential information in the same manner as the judges of that Court would have on an appeal from a designated judge. Therefore, it goes without saying that to the extent the Court of Appeal requires the fiat of the designated judge to have access to confidential information, they should, and do have it. |
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[11] It seems to me, however, that it was for Rothstein J. as the designated judge to determine in the first instance whether any of the disputed information should be disclosed for the purpose of the judicial review application notwithstanding the objection raised in the certificate. The function of this Court on this appeal is limited to reviewing the decision of the designated judge so as to be satisfied of whether it discloses an error of a sort enumerated in subsection 18.1(4) of the Federal Court Act. If, as I have decided, the decision does not reveal such an error, the matter ends. In my view, this Court is not itself entitled to examine any of the information unless it first concluded that Rothstein J. so erred in sustaining the objection raised by the certificate. It would be inappropriate to order the disclosure of any of the information even to the limited extent suggested where, as here, the designated judge has found that none of it should be disclosed and this Court is satisfied that no error was committed by him in arriving at that conclusion.
[12] I am also mindful that this Court on the judicial review application will not have before it the full text of the SIRC report. As Rothstein J. pointed out at page 5 in his reasons, the certificate of Mr. Tellier under subsection 39(1) of the Canada Evidence Act, which states that the SIRC report is a confidence of the Queen's Privy Council, means that the full text can never be disclosed. Indeed, counsel for the appellant conceded that this view of the matter is "unappealable". Without SIRC's full report before the panel on the judicial review application, it is difficult to see how the panel could be assisted by an edited version of the information listed in Schedule A to the certificate. It would be pointless for the panel to have an edited version of the report before it. The panel will have before it the summaries that were made available to the appellant by SIRC during the course of its investigation.
[13] I would dismiss the appeal with costs if requested by the respondents.
"A.J. STONE"
J.A.
"I agree
B.L. Strayer J.A."
"I agree
J.T. Robertson J.A."
FEDERAL COURT OF APPEAL
Date: 19971117
Docket: A-361-95
BETWEEN:
NICHOGHAS MOUMDJIAN
- AND -
SECURITY INTELLIGENCE REVIEW COMMITTEE, THE ATTORNEY GENERAL OF CANADA, THE MINISTER OF EMPLOYMENT AND IMMIGRATION and THE SOLICITOR GENERAL
REASONS FOR JUDGMENT
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1 That subsection reads: 37.(1) A minister of the Crown in right of Canada or other person interested may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
2 That subsection reads: 37.(2) Subject to sections 38 and 39, where an objection to the disclosure of information is made under subsection (1) before a superior court, that court may examine or hear the information and order its disclosure, subject to such restrictions or conditions as it deems appropriate, if it concludes that, in the circumstances of the case, the public interest in disclosure outweighs in importance the specified public interest.
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