Jama v. Canada (Attorney General)

Jama v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2019-04-29
Neutral citation
2019 FC 533
File numbers
T-479-18
Decision Content
TOP SECRET
Date: 20190621
Docket: T-479-18
Citation: 2019 FC 533
Ottawa, Ontario, June 21, 2019
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
AYAN ABDIRAHMAN JAMA
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
PUBLIC CORRECTED TOP SECRET ORDER AND REASONS
(Corrected Top Secret Order and Reasons issued on April 29, 2019)
Table of Contents
Table of Contents
I. INTRODUCTION 2
II. BACKGROUND 4
A. The Passport Application and the Impugned Decision 4
B. Procedural History 7
III. ISSUES 12
IV. ANALYSIS 12
A. Issue 1: In discharging its judicial duty under the PTTA, is the Court required to perform a legal balancing test between reasonably informing the Applicant of the case to meet and the requirement to prevent disclosing information that would injure national security or endanger the safety of any person? If not, what is the appropriate legal test? 12
(1) The principles of statutory interpretation and the PTTA 12
(2) The PTTA does not require a balancing test 19
(3) No “reading-in” is warranted nor is a remedy under subsection 24(1) of the Charter available at this stage of the proceedings 25
(4) Principles of disclosure and non-disclosure under subsection 6(2) of the PTTA 31
B. Issue 2: Would disclosure of the redacted information in the CTR injure national security or endanger the safety of any person? Can additional redactions, beyond those already proposed by the Attorney General, be lifted from the CTR? 42
(1) The information at issue 42
(2) The Attorney General’s evidence regarding the claim for non-disclosure 48
(3) The Amicus position 66
(4) Lifts consented to by the Attorney General 75
(5) Contested Lifts 76
(6) Non-contested redactions 92
C. Issue 3: To ensure that the Applicant is reasonably informed of the reasons for the Minister’s decisions, what summaries can be provided that would not injure national security or endanger the safety of any person? 93
(1) The non-contested proposed summaries 94
(2) The contested proposed summaries 95
(3) Conclusion 104
I. INTRODUCTION
[1] This Order is delivered in the course of judicial review proceedings initiated by the Applicant, Ms. Ayan Abdirahman Jama [Applicant], against the decision of a delegate [Delegate] of the Minister of Public Safety and Emergency Preparedness [Minister], dated February 5, 2018, to not issue a passport to the Applicant pursuant to section 10.1 of the Canadian Passport Order, SI/81-86 [CPO]. The Delegate’s decision also imposes on the Applicant, pursuant to subsection 10.2(2) of the CPO, a period during which passport services are refused to her for a duration of four years starting on the date she submitted her passport application, December 31, 2015. Said decision was apparently received by the Applicant on February 14, 2018 by way of a letter to her dated February 8, 2018.
[2] Section 10.1 of the CPO empowers the Minister to decide not to issue a passport if he or she has reasonable grounds to believe that such decision “is necessary to prevent the commission of a terrorism offence, as defined in section 2 of the Criminal Code, or for the national security of Canada or a foreign country or state”. In turn, subsection 10.2(2) of the CPO enables the Minister to decide, on those same grounds, that passport services are not to be delivered for a maximum period of 10 years.
[3] When, as is the case here, the Minister’s decision under section 10.1 or subsection 10.2(2) of the CPO is based on classified information, the proceedings challenging such decision are governed by the Prevention of Terrorist Travel Act, SC 2015, c 36, s 42 [PTTA] which was adopted on June 23, 2015 as part of the Act to implement certain provisions of the budget tabled in Parliament on April 21, 2015 (Bill C-59).
[4] The PTTA sets out rules governing how that information is to be handled. In particular, in the case, as here, of judicial review proceedings, it sets out the conditions under which: (i) hearings in the absence of the public and of the applicant and their counsel must be held (PTTA, paragraph 6(2)(a)); (ii) the confidentiality of the classified information relied upon by the Minister must be ensured (PTTA, paragraph 6(2)(b)); and (iii) a summary of the evidence and other information available to the “judge” (defined as the Chief Justice of this Court or as a judge of this Court designated by the Chief Justice [Designated Judge]), is to be provided to the applicant so as to enable him or her to be reasonably informed of the reasons for the Minister’s decision (PTTA, paragraph 6(2)(c)).
[5] The present Order deals more specifically with paragraphs 6(2)(b) and (c) of the PTTA. It determines whether the disclosure of the redacted information in the Certified Tribunal Record [CTR] filed by the Respondent would be injurious to national security or endanger the safety of any person. It also determines what summaries of the evidence and other information available to the Designated Judge can be provided to the Applicant so as to enable her to be reasonably informed of the reasons for the Minister’s decision.
II. BACKGROUND
A. The Passport Application and the Impugned Decision
[6] The Applicant was born in Mogadishu, Somalia, in March 1989. She is a Canadian citizen.
[7] On or about December 31, 2015, the Applicant submitted a passport application in her name with the Edmonton Passport Program Office of the Department of Immigration, Refugees and Citizenship of Canada [Passport Program]. On January 4, 2016, she was notified that her passport application would undergo a secondary security screening review.
[8] In May 2016, the Applicant filed proceedings with this Court seeking a writ of mandamus to compel the Passport Program to render a decision on her passport application. In September 2016, the Passport Program informed the Applicant that it had developed a new review process for passport applications filed by individuals who, like her, are subject to secondary screening. The Applicant agreed to participate in this new review process and to discontinue, as a result, her legal proceedings.
[9] The stages of this new review process were set out in a letter to the Applicant dated September 14, 2016. Under that process, the Applicant was to be provided with an unclassified summary of the information available to the Delegate so that she may be reasonably informed of the case on which the refusal to issue her a passport may be based. Upon receipt of the summary, the Applicant would have an opportunity to provide any information in support of the application, or refute the information contained in said summary. The letter indicated that the Minister or his delegate would then make a decision on the Applicant’s application based on the information before him, including any information the Applicant may have provided. The Applicant would then be informed of the Minister’s decision or that of his delegate by the Passport Program.
[10] In a letter dated February 1, 2017, the Applicant was provided with an unclassified summary of the information supporting a possible refusal of her passport application [Fairness Letter]. That summary reads as follows:
● Ms. JAMA has maintained associations with individuals of concern to national security and has facilitated extremist activities. Ms. JAMA is associated with an entity listed pursuant to subsection 83.05(1) of the Criminal Code, Al Shabaab (AS).
● Government records indicate that Ms. JAMA left Toronto in 2010 to go to Somalia to visit family. Ms. JAMA lived with her husband, (Mohamed SAKR) in an AS-controlled area in Mogadishu, Somalia; her husband would speak about AS because of where they lived. However, Ms. JAMA claimed that neither she nor her husband were involved with AS. As of mid-2012, Ms. JAMA was mourning the death of her husband who had died a few months earlier. Sakr was killed by a drone attack in Somalia in February 2012. Sakr, identified as a senior figure in AS, had been stripped of his British citizenship by UK authorities on national security grounds.
● Ms. JAMA was arrested by Northern Somalian Police (Somaliland Police) in July 2011; her belongings were confiscated and she was deported. Ms. JAMA transited via the UK where she was briefly detained by UK authorities and deported to Canada on July 15, 2011.
● Government records indicate that Ms. JAMA was deported from Somaliland. Somaliland authorities seized various electronic devices from Ms. JAMA. During a meeting with a Canadian agency in 2011, Ms. JAMA revealed that she was married, and discussed the will that she had written to her husband. When discussing her declaration of being a ‘shaheed’ (martyr) as noted in her will, Ms. JAMA said that she wanted to be a martyr like a good Muslim, and explained that in Islam those who die as martyrs are accorded a special place in heaven. Ms. JAMA added that she did not intend to harm herself or others.
● Media reporting also indicates that Ms. JAMA was arrested by the police in Hargeysa (Somaliland), on July 15, 2011, and that Ms. JAMA was an AS member based on the information found in her laptop. Additional media reporting, also in relation to the arrest of Ms. JAMA, identified her as a senior member of AS.
● In addition to the foregoing information, Public Safety Canada relies on classified information. This information, which further illustrates Ms. JAMA’s support for AS, as well as her desire to be a martyr, cannot be released as its disclosure would be injurious to international relations and/or national defence and/or national security.
[11] The Applicant, through her counsel, responded to the unclassified summary on March 4, 2017, addressing the allegations contained therein. In a letter dated June 1, 2017, the Applicant was notified that based on the current information, including the information she had provided to date, Public Safety Canada officials were not convinced that she had abandoned her association with individuals of concern for national security or had ceased to facilitate extremist activities, and were prepared, therefore, to recommend to the Minister that her passport application be denied. She was also notified that prior to any recommendation being made, she would be provided with a second opportunity to submit information to address the officials’ concerns [Pre-Recommendation Letter].
[12] On June 29, 2017, the Applicant responded to the Pre-Recommendation Letter, outlining, for the most part, how not having a passport and being denied her passport application had negatively affected her.
[13] As indicated at the outset of these Reasons, the Applicant was informed of the Delegate’s decision to not issue a passport in her name pursuant to section 10.1 of the CPO and to impose on her a period during which passport services would be refused to her for four years as per subsection 10.2(2) of the CPO, by way of a letter dated February 8, 2018.
B. Procedural History
[14] The present judicial review proceedings were filed on March 13, 2018. The Applicant is seeking the following substantive reliefs:
An Order for a writ of certiorari and for a writ of mandamus quashing the Minister’s decision to refuse to issue the Applicant a passport in her name and directing the Passport Program to issue said passport; and
An Order declaring that the Minister’s decision is ultra vires and invalid, as it unreasonably infringes upon the Applicant’s rights, including her statutory, procedural and Charter rights.
[15] On April 13, 2018, it was ordered that the present matter proceed as a specially managed proceeding. On April 30, 2018, Justice Simon Noël was assigned as case management judge to this case.
[16] A first case management conference was held by Justice Noël on May 8, 2018, with counsel for the Applicant and Counsel for the Attorney General attending. Further to said case management conference, Justice Noël issued an order setting out a timetable for the filing of redacted and unredacted copies of the CTR, as well as a classified affidavit explaining the basis for the redactions to the CTR, and a public affidavit explaining the nature of these redactions in a manner that would not injure national security or endanger the safety of any person.
[17] The unredacted version of the CTR was to be filed with the Court’s Designated Registry [DES Registry] and “clearly identify the information that the Respondent asserts, pursuant to s. 6(2)(a) of the PTTA, could be injurious to national security or endanger the safety of any person, if disclosed”. It was not to form part of the public Court file. The redacted version of the CTR was to clearly identify the redacted portions and was to be provided to the Applicant and form part of the public Court file. The classified affidavit was to be filed with the DES Registry and the public affidavit was to be provided to the Applicant and form part of the public Court file.
[18] On July 12, 2018, to a further case management conference held on June 6, 2018, with counsel for the Applicant and counsel for the Attorney General attending, Justice Noël appointed Mr. Colin Baxter as amicus curiae [Amicus] in this matter and set out the terms of his appointment. Justice Noël also advised that the Chief Justice would be assigning a Designated Judge “to deal with all further matters”.
[19] On July 30, 2018, as the Designated Judge assigned to this case, I held a case management conference with counsel for the Applicant, counsel for the Attorney General and the Amicus. At said case management conference, the dates of October 30 and 31, 2018, were set aside as tentative dates for an in camera, ex parte hearing where the Minister’s claim that the disclosure of the redacted portions of the CTR would be injurious to national security or endanger the safety of any person would be assessed by the Court with the assistance of the Amicus.
[20] Said in camera, ex parte hearing was held, as originally contemplated, on October 30 and 31, 2018, with counsel for the Attorney General and the Amicus attending. A public summary of that hearing was placed on the case’s public record and communicated to counsel, including counsel for the Applicant, on November 5, 2018. It reads as follows:
The Court, (LeBlanc, J.) issued an oral direction today (November 5, 2018) asking that the summary found below be communicated to all Counsel of Record and be placed on the public record of the above cited matter.
Summary
“The Court held ex parte in camera hearings in this matter on October 30 and 31, 2018.
Ms. Barrett-Morris and Mr. Seguin appeared for the Attorney General of Canada, and Mr. Baxter appeared as amicus.
The Attorney General called a witness from CSIS who gave evidence regarding the redactions to the CTR and why disclosure would, in the witness’s opinion, injure national security or endanger the safety of any person. The witness gave evidence on both days and was cross-examined by Mr. Baxter and questioned by the Court.
During the hearing, the Attorney General consented to remove some redactions from the CTR.
Regarding summaries, the amicus will provide proposed summaries to the Court and to the Attorney General by November 2, 2018 to which the Attorney General will respond, though counsel are not prevented from engaging in informal discussions amongst themselves to reach agreement on summaries.
Counsel will also provide written submissions in advance of an oral ex-parte, in camera hearing to be held to hear oral submissions from counsel for the Attorney General of Canada and the amicus. The date for the filing of submissions and the hearing will be determined later by the Court, based on the availability of the hearing transcripts, and subject to the schedule of the Court and counsel. Submissions will address the following matters that the Court is required to decide in this judicial review pursuant to the Prevention of Terrorist Travel Act (PTTA):
(1) Would disclosure of the redacted information in the CTR injure national security or endanger the safety of any person? Can additional redactions, beyond those already proposed by the Attorney General, be lifted from the CTR? See s. 6(2)(b) of the PTTA
(2) In discharging its judicial duty, is the Court required to perform a legal balancing test between reasonably informing the Applicant of the case to meet and the requirement to prevent disclosing information that would injure national security or endanger the safety of any person? If not, what is the appropriate legal test under the PTTA?
(3) To ensure that the Applicant is reasonably informed of the reasons for the Minister’s decisions, what summaries can be provided that would not injure national security or endanger the safety of any person? See s. 6(2)(c) of the PTTA
Counsel for the Applicant is permitted to file with the Court, and serve on counsel for the Attorney General of Canada, and the amicus, written submissions on issue 2, above. The date for the filing and service of these submissions will be determined later by the Court, along with the date for the filing of the submissions from counsel for the Attorney General of Canada and the amicus referred to above.”
[…]
[21] Dates for the filing and service of written submissions by the parties and the Amicus on issues #1, #2 and #3, as set out in said public summary, and dates for conducting a public hearing and an in camera, ex parte hearing to hear oral submissions on those issues, were discussed at a case management conference held on December 6, 2018, with counsel for the Applicant, counsel for the Attorney General and the Amicus attending.
[22] The public hearing on issue #2 was held on February 4, 2019, by way of videoconference, with counsel for the Applicant, counsel for the Attorney General and the Amicus attending. The in camera, ex parte hearing regarding issues #1 and #3 was held on February 7, 2019, in a secure courtroom, with counsel for the Attorney General and the Amicus attending. Both parties, as well as the Amicus, filed public written submissions in advance of the February 4 hearing. The Attorney General and the Amicus also filed classified written submissions on issues #1 and #3 for the purposes of the February 7 hearing.
III. ISSUES
[23] The issues to be considered for the purposes of this Order are those identified in the public summary of the in camera, ex parte hearing held on October 30 and 31 2018 referred to above. However, they will be addressed in a different order so as to deal first with the appropriate legal test applicable to the determination of the non-disclosure claims made by the Attorney General and the scope or amount of disclosure the Applicant is entitled to under the subsection 6(2) framework, respectively [Issue 1].
[24] I will then proceed, on the basis of what I consider to be the appropriate test, to determine whether disclosing the redacted information would be injurious to national security or endanger the safety of any person, as claimed by the Attorney General [Issue 2] and what summary of the evidence and other information available to me, if any, can be provided to the Applicant so as to ensure that she is reasonably informed of the reasons for the Minister’s decision [Issue 3].
IV. ANALYSIS
A. Issue 1: In discharging its judicial duty under the PTTA, is the Court required to perform a legal balancing test between reasonably informing the Applicant of the case to meet and the requirement to prevent disclosing information that would injure national security or endanger the safety of any person? If not, what is the appropriate legal test?
(1) The principles of statutory interpretation and the PTTA
[25] This first issue must be determined by applying the principles of statutory interpretation. As is now well settled, the modern approach to statutory interpretation entails discerning legislative intent by examining the words of a statute in their entire context and their grammatical and ordinary sense, in harmony with the statute’s scheme and object (Tran v Canada (Public Safety and Emergency Preparedness), 2017 SCC 50 at para 23; Canada Trustco Mortgage Co v Canada, 2005 SCC 54 at para 10; Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27 at para 21; Bayer Cropscience LP v Canada (Attorney General), 2018 FCA 77 at para 67).
[26] It is also well settled that the appropriate context in determining the meaning of a statute can be drawn “from similar or comparable legislation within the jurisdiction or elsewhere” (Sharbern Holding Inc v Vancouver Airport Centre Ltd, 2011 SCC 23 at para 117; Vancouver Oral Centre for Deaf Children v Assess. Area #09, 2002 BCCA 667 at para 17). This is evidenced in the present case by the parties’ and the Amicus’ reference to provisions of a similar nature, namely to the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], the Canada Evidence Act, RSC 1985, c C-5 and the Secure Air Travel Act, SC 2015, c 36, s 11. The parties and the Amicus have cited these statues in their respective attempts to define what the appropriate legal test is in resolving what they characterize as the “tension” between the State’s legitimate interest in conducting national security investigations and limiting the disclosure of materials collected through these investigations to individuals affected by the non-disclosure and these persons’ right to be reasonably informed of the reasons for the Minister’s decision in the manner permitted by the PTTA.
[27] The CPO is also very much part of this context, as the PTTA’s sole purpose is to provide a procedural framework aimed at resolving this tension when ministerial decisions, made under the CPO, to cancel, revoke or refuse to issue a passport or to deliver passport services in order to prevent the commission of a terrorism offence or for the national security of Canada or of a foreign country or state, are being appealed or judicially reviewed.
[28] The CPO provides the requirements for the issuance, refusal, cancellation, and revocation of passports as well as for the refusal of passport services. It specifies however in subsection 4(3), that nothing in said Order “in any manner limits or affects the royal prerogative over passports” and states, in subsection 4(4), that said prerogative, for the purposes of a number of provisions, including section 10.1, can be exercised on behalf of Her Majesty in right of Canada by the Minister of Public Safety and Emergency Preparedness.
[29] In 2004, the CPO was amended to confirm the authority of the Minister of Foreign Affairs to revoke or refuse to issue a passport on grounds of national security (Order Amending the Canadian Passport Order, SI/2004-113, (2004) C Gaz II, 1310). This was part of the Government of Canada’s strategic framework and action plan for national security, entitled Securing an Open Society: Canada’s National Security Policy. This action plan was presented as an integrated, comprehensive approach for ensuring the safety of Canadians and for responding to emerging threats to national and international security and the Passport Program was identified as in need of adjustment to meet the evolving threat environment.
[30] The CPO was amended again in 2015 to empower the Minister to cancel, refuse or revoke a passport to prevent the commission of a terrorism offence or for the national security of Canada or of a foreign country or state and to provide more precise language regarding the grounds on which a passport could be refused or revoked for national security purposes (Order Amending the Canadian Passport Order, SI/2015-33, (2015) C Gaz II, 1429).
[31] As the Attorney General points out in his public written submissions, the PTTA was enacted only four years ago and has not yet been interpreted by any Court.
[32] The PTTA is a seven-provision piece of legislation. It pertains to “the protection of information in relation to certain decisions made under the Canadian Passport Order”. As I have just indicated, it is essentially procedural in nature. Its main provisions are sections 4 and 6, subsection 6(2) being at issue in this case.
[33] The remaining provisions of the PTTA (sections 2, 3, 5 and 7) are of little assistance in determining what the answer to Issue 1 is. Sections 5 and 7 provide, respectively, that subsections 4(4) and 6(2) apply, with any necessary modifications, to any appeal – and further appeal - of a decision made under these provisions. Sections 2 and 3, for their part, define the terms “judge” and “Minister”, respectively. I note that there was little debate in Parliament over the PTTA, which was adopted as part of the Economic Action Plan 2015 Act, No.1, SC 2015, c 36. The Attorney General has filed the relevant Hansard excerpts regarding this bill but they are of little, if any, assistance in the case at bar.
[34] Section 4 creates a right of appeal to a Designated Judge against any decision cancelling a passport so as to prevent the commission of a terrorism offence or for the national security of Canada or of a foreign country or state. It provides that when such an appeal is made, the Designated Judge must, without delay, determine whether cancelling the passport is reasonable on the basis of the information available to him or her. The Judge may quash the Minister’s decision if he or she finds that cancelling the passport is unreasonable (PTTA, s 4(3)). Subsection 4(4) sets out procedural rules governing such appeals. Those rules are aimed at protecting sensitive information while ensuring that the appellant is provided with a summary of evidence and other information that enables that person to be reasonably informed of the Minister’s case throughout the proceeding.
[35] Section 6 sets out the rules applicable to judicial review proceedings in respect of decisions made under the CPO, either to revoke or not to issue a passport on grounds similar to those applicable to a passport cancellation, or to not deliver passport services, on these same grounds, to the person whose passport has been revoked or who has been refused the issuance of a passport. As is the case for subsection 4(4), subsection 6(2) sets out rules aimed at protecting sensitive information, while ensuring that the applicant to the judicial review proceeding is provided with a summary of evidence and other information that enables that person to be reasonably informed, not of the Minister’s case throughout the proceeding, as provided for under subsection 4(4), but of “the reasons for the Minister’s decision”.
[36] In particular, these rules provide that the Designated Judge: (i) may hear evidence or other information in the absence of the public and of the person concerned; (ii) must ensure the confidentiality of the evidence and other information provided by the Minister if the Judge is of the opinion that the disclosure of that evidence or other information would be injurious to national security or the safety of any person; (iii) must ensure that the person is provided with a summary of non-sensitive evidence that enables him or her to be reasonably informed of the reasons for the Minister’s decision; and (iv) may base his or her decision on all the information provided by the Minister, even if a summary of that information has not been provided to the person concerned. These rules also allow the Minister to withdraw evidence or other information from the record, in which case such evidence or other information must be returned to the Minister and cannot form the basis of the Designated Judge’s decision.
[37] Subsection 6(2) reads as follows:
Rules
(2) The following rules apply for the purposes of this section:
Règles
(2) Les règles ci-après s’appliquent au présent article :
(a) at any time during the proceeding, the judge must, on the Minister’s request, hear submissions on evidence or other information in the absence of the public and of the applicant and their counsel if, in the judge’s opinion, the disclosure of the evidence or other information could be injurious to national security or endanger the safety of any person;
a) à tout moment pendant l’instance et à la demande du ministre, le juge doit tenir une audience pour entendre les observations portant sur tout élément de preuve ou tout autre renseignement, à huis clos et en l’absence du demandeur et de son conseil, dans le cas où la divulgation de ces éléments de preuve ou de ces renseignements pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
(b) the judge must ensure the confidentiality of the evidence and other information 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;
b) le juge est tenu de garantir la confidentialité des éléments de preuve et de tout renseignement que lui fournit le ministre et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
(c) the judge must ensure that the applicant is provided with a summary of the evidence and other information available to the judge that enables the applicant to be reasonably informed of the reasons for the Minister’s decision 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;
c) le juge veille à ce que soit fourni au demandeur un résumé de la preuve et de tout autre renseignement dont il dispose et qui permet au demandeur d’être suffisamment informé des motifs de la décision du ministre et qui ne comporte aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
d) the judge must provide the applicant and the Minister with an opportunity to be heard;
d) le juge donne au demandeur et au ministre la possibilité d’être entendus;
(e) the judge may base his or her decision on evidence or other information available to him or her even if a summary of that evidence or other information has not been provided to the applicant;
e) le juge peut fonder sa décision sur des éléments de preuve ou tout autre renseignement dont il dispose, même si un résumé de ces derniers n’est pas fourni au demandeur;
(f) if the judge determines that evidence or other information provided by the Minister is not relevant or if the Minister withdraws the evidence or other information, the judge must not base his or her decision on that evidence or other information and must return it to the Minister; and
f) si je [sic] juge décide que les éléments de preuve ou tout autre renseignement que lui a fournis le ministre ne sont pas pertinents ou si le ministre les retire, il ne peut fonder sa décision sur ces éléments ou renseignements et il est tenu de les remettre au ministre;
(g) the judge must ensure the confidentiality of all evidence and other information that the Minister withdraws.
g) le juge est tenu de garantir la confidentialité des éléments de preuve et de tout autre renseignement que le ministre retire de l’instance.
[38] The only difference between the sets of rules in subsections 4(4) and 6(2) is that in an appeal under section 4, the Designated 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 his or her decision on that evidence” (PTTA, s 4(4)(e)). There is no equivalent provision in subsection 6(2), presumably because of the differing nature of the judicial recourse contemplated by both provisions, one being what appears to be a fact-based appeal whereas the other is a judicial review proceeding where no evidence, as such, is “received” by the Designated Judge.
[39] The object and scheme of the PTTA are, therefore, as I see it, to provide for procedural rules to be applied to appeals or judicial review applications against certain decisions made under the CPO in order to protect sensitive information from disclosure while ensuring that the persons directly affected by these decisions are provided, to the extent permitted by these rules, with a summary of the evidence and other information available to the Designated Judge so as to enable these persons to be reasonably informed of the Minister’s case, in the case of an appeal, or of the reasons for the Minister’s decision, in the case of a judicial review.
(2) The PTTA does not require a balancing test
[40] It is readily apparent that nothing in the wording of subsection 6(2) requires the Designated Judge to perform a balancing test between reasonably informing the Applicant of the case to meet and the requirement to prevent disclosing information that would injure national security or endanger the safety of any person or, at least, to perform a balancing test in the nature of the one found at subsection 38.06(2) of the Canada Evidence Act [CEA Test], as claimed by the Applicant. This provision reads as follows:
Disclosure — conditions
(2) If the judge concludes that the disclosure of the information or facts would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all or part of the information or facts, a summary of the information or a written admission of facts relating to the information.
Divulgation avec conditions
(2) Si le juge conclut que la divulgation des renseignements ou des faits porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d’intérêt public qui justifient la divulgation l’emportent sur les raisons d’intérêt public qui justifient la non-divulgation, il peut par ordonnance, compte tenu des raisons d’intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu’il estime indiquées, la divulgation de tout ou partie des renseignements ou des faits, d’un résumé des renseignements ou d’un aveu écrit des faits qui y sont liés.
[41] But does a purposive and contextual interpretation of subsection 6(2) of the PTTA allow for the CEA Test, or any other balancing test for that matter, to be read into that provision?
[42] The Applicant says yes. Conceding that subsection 6(2) does not contain any balancing language, she urges the Court to “go beyond the text of the statute” and adopt a disclosure framework similar to the CEA Test. This would involve balancing the public interest in ensuring that she is reasonably informed of the case to meet against the need to prevent disclosure of information that would injure national security or endanger the safety of any person.
[43] She claims that this outcome is open to the Court because of its duty to interpret the PTTA in a manner that respects her procedural rights. She contends, in that regard, that in light of the framework established in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker], she was owed robust procedural rights given the impact of the Minister’s decision on her rights, including her mobility rights guaranteed by section 6 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], the significant stigma around the non-renewal of her passport, the two-year delay in rendering the decision, and her legitimate expectation that she would be provided adequate procedural safeguards in challenging that decision. These procedural rights, she says, imply, in such context, a robust disclosure framework.
[44] The Applicant opines that the parties and the Court have recognized that the PTTA lacks sufficient procedural protections as the Court appointed the Amicus on the consent of the Attorney General. She further opines that the PTTA framework must be distinguished from the information protection framework outlined in the IRPA that was found to be Charter-compliant in Canada (Citizenship and Immigration) v Harkat, 2014 SCC 37 [Harkat]. First, she says the security certificate regime under the IRPA applies to non-citizens, while the PTTA pertains to Canadian citizens, who are, according to her, entitled to greater procedural rights. Second, her Charter-protected freedom of association, mobility rights, and liberty interest are at stake, whereas Harkat only dealt with liberty interests. Third, the IRPA framework provides for the appointment of special advocates in security certificate proceedings to ensure that named persons are provided adequate procedural protections, whereas the PTTA does not. Although the Court appointed the Amicus in the present case, the Applicant notes that such an appointment is an ad hoc determination, left entirely to the discretion of the Court. In essence, the IRPA and PTTA frameworks are not analogous.
[45] While not seeking to strike down the PTTA, the Applicant urges the Court to render a remedy under subsection 24(1) of the Charter should it come to the conclusion that subsection 6(2), or the PTTA as a whole, does not allow for a robust disclosure framework which ensures that the right to be reasonably informed of the case to meet is properly balanced against the need to prevent disclosure of information that would injure national security or endanger the safety of any person.
[46] The Applicant’s approach is rather novel but, with respect, does not stand up to scrutiny.
[47] First, I fully agree with the Attorney General in that the provisions of the PTTA clearly and unambiguously contain a categorical prohibition on the disclosure of sensitive information and do not, in a like manner to other provisions in national security legislation (IRPA, ss 83(1), 86, 87; Secure Air Travel Act, s 16(6); Canadian Security Intelligence Service Act, RSC 1985, c C-23, s 18.1), authorize the Designated Judge, either explicitly or implicitly, to balance competing public interests.
[48] I agree, too, that when a balancing test is required, Parliament uses explicit statutory language, as evidenced by subsection 38.06(2) of the Canada Evidence Act, referred to and reproduced above, which empowers the Designated Judge to disclose all or part of the information which, according to him or her, would be injurious to national security if disclosed, after having balanced the public interest in disclosure against the public interest in non-disclosure. Subsection 6(2) of the PTTA contains no such language. On the contrary, it requires the Designated Judge to ensure the confidentiality of the evidence or other information provided by the Minister if the Judge is of the opinion that disclosure of that evidence, or other information, would be injurious to national security or endanger the safety of any person (PTTA, s 6(2)(b)). It further prohibits the Designated Judge from providing the Applicant with a summary of the evidence or other information available to him or her that contains anything that, in the Judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed (PTTA, s 6(2)(c)). There is no room, in my view, in the language of subsection 6(2), for any balancing of the competing public interests contemplated by subsection 38.06(2) of the Canada Evidence Act when a Designated Judge is called upon to apply the rules set out in that provision of the PTTA.
[49] The