Charkaoui v. Canada (Citizenship and Immigration)

Charkaoui v. Canada (Citizenship and Immigration)
Collection
Supreme Court Judgments
Date
2008-06-26
Neutral citation
2008 SCC 38
Report
[2008] 2 SCR 326
Case number
31597
Judges
McLachlin, Beverley; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Immigration
Notes
SCC Case Information: 31597
Decision Content
SUPREME COURT OF CANADA
Citation: Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326, 2008 SCC 38
Date: 20080626
Docket: 31597
Between:
Adil Charkaoui
Appellant
and
Minister of Citizenship and Immigration
and Solicitor General of Canada
Respondents
‑ and ‑
Attorney General of Ontario, Criminal Lawyers’ Association (Ontario),
Canadian Bar Association, Barreau du Québec, Amnesty International,
Association des avocats de la défense de Montréal
and Québec Immigration Lawyers Association
Interveners
Official English Translation
Coram: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
Joint Reasons for Judgment:
(paras. 1 to 78)
LeBel and Fish JJ. (McLachlin C.J. and Bastarache, Binnie, Deschamps, Abella, Charron and Rothstein JJ. concurring)
______________________________
Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326, 2008 SCC 38
Adil Charkaoui Appellant
v.
Minister of Citizenship and Immigration and
Solicitor General of Canada Respondents
and
Attorney General of Ontario, Criminal Lawyers’
Association (Ontario), Canadian Bar Association,
Barreau du Québec, Amnesty International,
Association des avocats de la défense de Montréal and
Québec Immigration Lawyers Association Interveners
Indexed as: Charkaoui v. Canada (Citizenship and Immigration)
Neutral citation: 2008 SCC 38.
File No.: 31597.
2008: January 31; 2008: June 26.
Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Right to life, liberty and security of person — Procedural fairness — Disclosure of evidence — Review of reasonableness of security certificate — Late disclosure of summary of interviews of named person with CSIS officers — Complete notes of interviews destroyed in accordance with internal policy of CSIS — Scope of duty to retain and disclose information in possession of CSIS about person named in certificate — Appropriate remedy — Canadian Charter of Rights and Freedoms, s. 7 — Canadian Security Intelligence Service Act, R.S.C. 1985, c. C‑23, s. 12 .
Immigration law — Inadmissibility and removal — Security certificate — Evidence obtained subsequent to initial decision to issue security certificate — Whether new evidence admissible at any stage of judicial review of security certificate and detention — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 78 .
The respondent ministers signed a security certificate against C under s. 77(1) of the Immigration and Refugee Protection Act . C was then arrested and detained. Before the scheduled date of the fourth review of C’s detention, counsel for the ministers informed the judge at an in camera hearing that they had recently taken cognizance of a document that should have been disclosed to C at the outset of the proceedings but had not been disclosed because of an oversight. The document consisted of a summary of two interviews C had had with CSIS officers. The judge ordered that the summary be disclosed to C’s counsel forthwith. At this same hearing, counsel for the ministers filed fresh allegations about C that were based on information that was not in his file when the ministers signed the security certificate. The next day, the judge disclosed a summary of this new information to C. The detention review hearing was adjourned and C was granted a postponement. C then filed a motion to exclude the new evidence. He also requested that the complete notes of the two interviews conducted by CSIS be disclosed to him together with the recordings of the interviews. But the ministers informed the judge that there were no recordings in the file and that notes of interviews are, in accordance with an internal policy of CSIS, systematically destroyed once the officers have completed their reports. Alleging that his right to procedural fairness had been violated, C filed a motion for a stay of proceedings, in which he asked that the certificate be quashed and that he be released. In the alternative, he asked that the new evidence be excluded. The Federal Court and the Federal Court of Appeal dismissed the applications.
Held: The appeal should be allowed in part and the application for a stay of proceedings should be dismissed.
The destruction of operational notes is a breach of CSIS's duty to retain and disclose information, which derives from s. 12 of the Canadian Security Intelligence Service Act and a contextual analysis of the case law on the disclosure and retention of evidence. Section 12 provides that CSIS must acquire information to the extent that it is strictly necessary in order to carry out its mandate, and must then analyse and retain relevant information and intelligence. The CSIS policy on the management of operational notes rests on an erroneous interpretation of that provision. Section 12 does not require that collected information be destroyed, but instead demands that CSIS retain its operational notes when conducting an investigation that targets an individual or group. The retention of notes, which include drafts, diagrams, recordings and photographs, must serve a practical purpose. As a result, the meaning of the word “intelligence” in s. 12 should not be limited to the summaries prepared by officers. The original operational notes are a better source of information and of evidence. [38-39] [43] [64]
Whether or not the constitutional guarantees of s. 7 of the Canadian Charter of Rights and Freedoms apply does not turn on a formal distinction between the different areas of law, but depends instead on the severity of the consequences of the state’s actions for the individual’s fundamental interests of liberty and security and, in some cases, the right to life. By its very nature, the security certificate procedure can place these rights in serious jeopardy. To protect them, it therefore becomes necessary to recognize a duty to disclose evidence based on s. 7 that goes beyond mere summaries. Investigations by CSIS play a central role in the decision on the issuance of a security certificate and the consequent removal order. The consequences of security certificates are often more severe than those of many criminal charges. As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in C’s position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. If the ministers have access to all the original evidence, they will be better positioned to make appropriate decisions on issuing a certificate. The designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence — which he or she will have been able to check for accuracy and reliability — for the named person. The duty of CSIS to retain and disclose the information submitted to the ministers and the designated judge also applies with respect to the person named in the certificate. However, confidentiality requirements related to public safety and state interests will place limits on how this duty is discharged. The judge must therefore filter the evidence he or she has verified and determine the limits of the access to which the named person will be entitled at each step of the process, both during the review of the validity of the certificate and at the detention review stage. [50] [53-54] [62-63]
In this case, the designated judge granted the appropriate remedy for the late disclosure of the interview summary and the summary of the new allegations. By adjourning the hearing and granting a postponement of C’s detention review to enable C to prepare his testimony and defence, the judge averted any prejudice that might have resulted from the delay in disclosing the new evidence. Moreover, since it was C himself who had been questioned in the interviews, he had knowledge of the subject and doubtless knew what he had said on that occasion. As a result, he had sufficient time to prepare his testimony. [67]
As for the new allegations filed by the ministers, any new evidence should be admitted, regardless of whether it is submitted to the designated judge by the ministers or by the named person. The judicial review process relates, on an ongoing basis, to both the certificate and the detention. It is not limited to a review of the bases for the ministers’ initial decision. Furthermore, receiving new evidence in the course of this ongoing verification process is fairer, since such evidence can be as beneficial to the named person as to the ministers. [65] [70] [73]
A stay of proceedings is not an appropriate remedy in this case. The only appropriate remedy is to confirm the duty to disclose C’s entire file to the designated judge and, after the judge has filtered it, to C and his counsel. This appeal is from an interlocutory judgment by the designated judge, not from his final decision on the reasonableness of the certificate. It would therefore be premature at this stage of the proceedings for the Court to determine how the destruction of the notes affects the reliability of the evidence. The designated judge will be in a position to make that determination, as he will have all the evidence before him and will be able to summon and question as witnesses those who took the interview notes. If he concludes that there is a reasonable basis for the security certificate but that the destruction of the notes had a prejudicial effect, he will then consider whether C should be granted a remedy. [77]
Cases Cited
Applied: Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; R. v. O’Connor, [1995] 4 S.C.R. 411; referred to: Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9; Liddar v. Deputy Head of the Department of Foreign, SIRC, No. 1170/LIDD/04, June 7, 2005; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. La, [1997] 2 S.C.R. 680; R. v. Egger, [1993] 2 S.C.R. 451; Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44; May v. Ferndale Institution, [2005] 3 S.C.R. 809, 2005 SCC 82; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12.
Statutes and Regulations Cited
An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S.C. 2008, c. 3.
Canadian Charter of Rights and Freedoms, ss. 7 , 11 (b).
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C‑23, ss. 12 , 13 , 14 , 15 , 16 , 19 .
Canadian Security Intelligence Service Act, S.C. 1984, c. 21.
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 77 , 78 , 83 .
Authors Cited
Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report. Freedom and Security Under the Law, vol. 2. Ottawa: The Commission, 1981.
Canada. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. A New Review Mechanism for the RCMP's National Security Activities. Ottawa: The Commission, 2006.
Canada. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Report of the Events Relating to Maher Arar: Analysis and Recommendations. Ottawa: The Commission, 2006.
Canada. Royal Commission on Security. Report of the Royal Commission on Security (Abridged). Ottawa: Queen’s Printer, 1969.
Canada. Senate. Report of the Special Committee of the Senate on the Canadian Security Intelligence Service. Delicate Balance: A Security Intelligence Service in a Democratic Society. Ottawa: Minister of Supply and Services Canada, November 1983.
APPEAL from a judgment of the Federal Court of Appeal (Létourneau, Nadon and Pelletier JJ.A.) (2006), 272 D.L.R. (4th) 175, 353 N.R. 319, 58 Imm. L.R. (3d) 161, [2006] F.C.J. No. 868 (QL), 2006 CarswellNat 2895, 2006 FCA 206 (sub nom. Charkaoui (Re)), upholding a decision of Noël J. (2005), 261 F.T.R. 1, [2005] F.C.J. No. 139 (QL), 2005 CarswellNat 814, 2005 FC 149 (sub nom. Charkaoui (Re)), dismissing the appellant’s motion for a stay of proceedings. Appeal allowed in part.
Dominique Larochelle, Johanne Doyon and Diane Petit, for the appellant.
Claude Joyal and Ginette Gobeil, for the respondents.
Michael Bernstein, for the intervener the Attorney General of Ontario.
Russell S. Silverstein, for the intervener the Criminal Lawyers’ Association (Ontario).
Lorne Waldman, for the intervener the Canadian Bar Association.
Pierre Poupart, François Dadour and Nadine Touma, for the intervener Barreau du Québec.
Vanessa Gruben, Michael Bossin and Owen M. Rees, for the intervener Amnesty International.
Walid Hijazi, for the intervener Association des avocats de la défense de Montréal.
Dan Bohbot and Stéphane Handfield, for the intervener the Québec Immigration Lawyers Association.
English version of the judgment of the Court delivered by
LeBel and Fish JJ. —
I. Introduction
[1] Adil Charkaoui appeals against the dismissal in the Federal Court of Appeal of his application for a stay of proceedings relating to the security certificate issued against him under s. 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”). Mr. Charkaoui alleges that the government breached its duty to disclose relevant information in its possession, and its ancillary duty to do so in a timely manner. He alleges as well that the respondent ministers relied impermissibly on evidence obtained subsequent to the issuance of the security certificate. They did so, he complains, upon the designated judge’s review of the reasonableness of the certificate and again during the judge’s review of the appellant’s applications for release from custody.
[2] We have concluded that Mr. Charkaoui’s appeal succeeds. In our view, the Canadian Security Intelligence Service (“CSIS”) is bound to disclose to the ministers responsible all information in its possession regarding the person named in a security certificate. The ministers must convey this information to the designated judge. The judge must then disclose the information to the person named in the security certificate, except to the extent that disclosure might, in the judge’s view, endanger Canada’s security. These obligations of disclosure cannot be properly discharged where CSIS has destroyed what it was bound to disclose. As a matter of text and context, we have therefore concluded that CSIS is bound to retain the information it gathers within the limits established by the legislation governing its activities. In accordance with its prior practice, it did not do so here. For reasons to be later explained, we are nonetheless satisfied that a stay of proceedings would not be an appropriate remedy in this case.
II. History of the Case
A. Issuance of a Security Certificate Against Mr. Charkaoui
[3] On May 9, 2003, the Minister of Citizenship and Immigration and the Solicitor General, now the Minister of Public Safety and Emergency Preparedness (the “ministers”), signed a security certificate against the appellant under s. 77(1) IRPA . The appellant was arrested and detained on May 21, 2003. Noël J. of the Federal Court was then designated under the relevant provisions of the IRPA to determine whether the certificate issued against Mr. Charkaoui was reasonable.
B. IRPA Declared Unconstitutional and Bill C‑3 Enacted
[4] This appeal represents a new episode in the legal proceedings involving the appellant and the ministers. In Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9, the Court considered the constitutionality of the procedure established under the IRPA for determining whether a security certificate is reasonable and for reviewing the detention of the person named in the certificate (the “named person”). On that occasion, the Court held that certain aspects of that procedure deprived the appellant of his rights under s. 7 of the Canadian Charter of Rights and Freedoms in a manner that was inconsistent with the principles of fundamental justice. The Court found, inter alia, that the IRPA did not adequately protect the right of the named person to a fair hearing, and therefore struck down certain of its provisions. However, the declaration of invalidity was suspended for one year to allow Parliament to amend the legislation. Parliament subsequently enacted the Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, S.C. 2008, c. 3 (“Bill C‑3”), which received Royal Assent on February 14, 2008 and came into force on February 22, 2008.
C. Continuation of the Hearings in the Federal Court, Incidents Relating to the Disclosure of New Information to the Designated Judge, and Application for a Stay of Proceedings
[5] The proceedings to review the security certificate and the detention of the appellant continued under the scheme established by the IRPA before the Bill C‑3 amendments. Problems with respect to the disclosure of evidence arose in the course of those proceedings, and they resulted in the application for a stay and the appeal now before this Court. To understand this case, it is important to review the history of the proceedings and to explain their origin.
[6] It was on May 23, 2003 that the designated judge began reviewing the information in support of the security certificate issued against Mr. Charkaoui. On June 25, 2003, Mr. Charkaoui filed a motion to declare Division 9 of Part 1 of the IRPA unconstitutional, and this Court ruled on that motion in Charkaoui.
[7] Soon afterward, in July 2003, the appellant applied to the ministers for protection pursuant to the pre‑removal risk assessment procedure. The filing of this application automatically suspended the review of the reasonableness of the certificate. The application for protection was dismissed on August 6, 2004, after which, on November 9, 2004, Noël J. scheduled a hearing on the reasonableness of the certificate for February 21, 2005. However, upon learning that Moroccan authorities had issued a warrant for Mr. Charkaoui’s arrest, the judge quashed the ministers’ decision to reject the pre‑removal risk assessment application for protection on March 22, 2005. Mr. Charkaoui then reapplied to the ministers for protection. The judge also granted him, as a matter of right, a suspension of the review of the reasonableness of the certificate. The suspension of the proceeding was still in effect at the time of the hearing on this appeal, since the ministers had not yet decided on Mr. Charkaoui’s application for protection.
[8] In the course of these proceedings, Mr. Charkaoui applied on several occasions for his release from custody. He first applied for release on June 25, 2003. That application, heard on July 2 and 3, 2003, was dismissed by the judge on July 15, 2003. Mr. Charkaoui made two other unsuccessful applications in 2003 and 2004. On November 9, 2004, the judge scheduled a fourth detention review for January 10, 2005. In the meantime, on December 30, 2004, counsel for the ministers asked the judge to hold an in camera hearing, in the absence of Mr. Charkaoui and his lawyer. Despite objections by the appellant and his lawyer, the judge heard counsel for the ministers in camera on January 5, 2005. Counsel informed him that they had recently taken cognizance of a document that should have been disclosed to Mr. Charkaoui at the outset of the proceedings in 2003. This document, they explained, had not been disclosed because of an oversight. The document consisted of a summary of two interviews Mr. Charkaoui had had with CSIS officers on January 31 and February 2, 2002. The judge ordered that the summary be disclosed to Mr. Charkaoui’s counsel forthwith.
[9] At this same ex parte hearing held in camera on January 5, 2005, counsel for the ministers filed fresh allegations about Mr. Charkaoui. These allegations were based on information that was not in his file when the ministers signed the security certificate. They concerned, among other things, Mr. Charkaoui’s involvement in incidents in Morocco. On January 6, 2005, Noël J. disclosed a summary of this new information to Mr. Charkaoui.
[10] At the January 10, 2005 hearing on the fourth detention review, the judge offered to adjourn the hearing and grant Mr. Charkaoui a postponement, which Mr. Charkaoui accepted. Mr. Charkaoui then filed a motion to exclude the new evidence. He also requested that the complete notes of the two interviews conducted by CSIS on January 31 and February 2, 2002 be disclosed to him together with the recordings of the interviews.
[11] The ministers informed the judge that it was impossible to accede to this request for disclosure. They told him that there were no recordings in the file and that notes of interviews conducted by CSIS officers are, in accordance with the agency’s internal policy OPS‑217, systematically destroyed once the officers have completed their reports. In response to this refusal, Mr. Charkaoui alleged that his right to procedural fairness had been violated. He accordingly filed, on January 12, 2005, a motion for a stay of proceedings, in which he asked that the certificate be quashed and that he be released. In the alternative, he asked that the new evidence introduced by the ministers on January 5, 2005 be excluded.
[12] The hearing on the fourth review of Mr. Charkaoui’s detention was held on February 7, 2005. On February 17, 2005, the judge granted him a conditional release. The decisions of the courts below that are in issue in this appeal relate to the application for a stay filed by Mr. Charkaoui in response to the new evidence introduced by the ministers. Mr. Charkaoui remains at liberty, and the conditions of his release are not in issue on this appeal.
III. Decisions of the Courts Below
A. Federal Court (2005), 261 F.T.R. 1, 2005 FC 149
[13] On January 20, 2005, Noël J. dismissed Mr. Charkaoui’s application to stay the proceedings and quash the security certificate. In his view, the delay granted to Mr. Charkaoui to take cognizance of the new evidence and the fact that he could testify and relate his own version of the CSIS interviews were sufficient to neutralize any breach of procedural fairness that might have been caused by the late disclosure of the new evidence and the destruction of the notes and recordings of the interviews. Moreover, since the new evidence introduced on January 5, 2005 was of marginal significance relative to the whole of the evidence already in the record and did not substantiate the allegations on which the security certificate was based, the judge concluded that Mr. Charkaoui had in no way been deprived of his right to procedural fairness under s. 7 of the Charter . Consequently, the judge did not consider it necessary to discuss the role played by CSIS in the IRPA ’s procedures relating to security certificates. He noted that CSIS is not a police agency responsible for laying criminal charges. In his view, its activities were governed by administrative law and were therefore not subject to the duties of a police force under criminal law.
[14] The judge then turned to the application to exclude the new evidence, which he also dismissed. In his view, the ministers’ authority under s. 78 (e) IRPA to submit fresh information to the court in support of the allegations means that the information available to and taken into account by the designated judge when reviewing the certificate may be more extensive than the information that was available to the ministers when they decided to issue it. Mr. Charkaoui appealed Noël J.’s decision to the Federal Court of Appeal.
B. Federal Court of Appeal (2006), 353 N.R. 319, 2006 FCA 206
[15] Pelletier J.A., writing for the Federal Court of Appeal, concluded that the postponement ordered by the judge was an appropriate remedy for the late disclosure of the new evidence. He also discussed the systematic destruction of interview notes by CSIS. The Federal Court of Appeal agreed with Noël J. that the principles of criminal law relating to the disclosure of evidence do not apply in administrative law matters and therefore do not govern the activities of CSIS. However, Pelletier J.A. rejected the interpretation of s. 12 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C‑23 (“CSIS Act ”), proposed by the ministers to define the scope of the duty to retain information collected by CSIS . In his view, s. 12 does not, as the ministers argued, merely require a minimal retention of the information collected by that organization. Rather Pelletier J.A. noted that the Act recognizes the need, as a practical matter, to retain information obtained by CSIS — information that would otherwise serve no useful purpose.
[16] Pelletier J.A. nonetheless refused to grant the stay of proceedings sought by Mr. Charkaoui. He considered that the destruction of CSIS ’s notes did not result in any prejudice to Mr. Charkaoui. That they no longer existed could just as easily have worked in his favour as against him. In Pelletier J.A.’ s view, extensive evidence had been put before Noël J., who had to assess its consistency and probative value.
[17] Pelletier J.A. also rejected Mr. Charkaoui’s submission that the judge, in reviewing the security certificate, could consider only the evidence that was in the ministers’ possession at the time the certificate was issued and therefore had to exclude the new evidence. According to Pelletier J.A., the wording of s. 78 (b), (d), (e) and (j) IRPA confirms that Parliament intended to allow the judge to receive all the information and evidence on which the certificate is based and to accept any material he or she considers appropriate, whether or not it would be admissible in a court of law.
IV. Analysis
A. Issues
[18] We note from the outset that this appeal cannot serve as an occasion to revisit the issue resolved by the Court in Charkaoui. There is thus no need to reconsider here the constitutionality of the rules and procedures applicable to the issuance of security certificates. Nor do we need to examine Bill C‑3. No issues requiring an interpretation of Bill C‑3 or relating to its constitutionality are now before the Court.
[19] It is important to be clear about the scope of Mr. Charkaoui’s appeal. This appeal concerns interlocutory decisions by Noël J. relating to a specific aspect of the proceedings against Mr. Charkaoui, namely, the retention and disclosure of information in the possession of CSIS . Our discussion will therefore be limited to these questions:
(a) What are the nature and scope of CSIS ’s duty to retain information?
(b) Does CSIS have a duty to disclose information in its possession? If so, what are the bases and scope of the duty to disclose such information? For whose benefit does this duty exist?
(c) What are the consequences of delays in disclosing information to the designated judge, and what is the appropriate remedy?
(d) May the designated judge admit new evidence after the security certificate has been issued? Is new evidence admissible at any stage of the proceedings? If so, how does admitting this evidence affect the validity of the certificate?
Finally, if relief is warranted, we will determine what remedies are appropriate in the circumstances of this case.
B. Duty of CSIS to Retain Information
(1) Statutory Framework of the Mandate of CSIS
(a) Enactment of the CSIS Act
[20] Before discussing the duty to retain information collected by CSIS , we must first review the origin and nature of the current statutory framework for the organization’s activities. CSIS was created in 1984, when Parliament enacted the CSIS Act, S.C. 1984, c. 21 (now R.S.C. 1985, c. C‑23 ). When CSIS was established, the Security Service of the Royal Canadian Mounted Police (“RCMP”) ceased to exist. The establishment of CSIS was the culmination of the work of the Royal Commission on Security (1969), the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (1981) and the Special Committee of the Senate on the Canadian Security Intelligence Service (1983).
(b) Legislative Purpose and Guiding Principles
[21] The reports of these bodies advocated the creation of a “civilian” security agency that would be entirely separate from and independent of the RCMP, but more closely integrated “with the rest of government” (Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report, Freedom and Security Under the Law, vol. 2, August 1981, at p. 753; see also the Report of the Royal Commission on Security (abridged, June 1969), at p. 21, and the report of the Special Committee of the Senate on the Canadian Security Intelligence Service, Delicate Balance: A Security Intelligence Service in a Democratic Society, November 3, 1983, at para. 19). The collection of security intelligence and information was seen as a specialized function distinct from policing (Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Second Report, vol. 2, at p. 759).
[22] Since CSIS was to be granted broad powers of investigation, it was recommended as well that its functions should be strictly related to the objective of protecting the security of Canada:
A credible and effective security intelligence agency does need to have some extraordinary powers, and does need to collect and analyze information in a way which may infringe on the civil liberties of some. But it must also be strictly controlled, and have no more power than is necessary to accomplish its objectives, which must in turn not exceed what is necessary for the protection of the security of Canada.
(Report of the Special Senate Committee, at para. 25)
[23] The Report of the Special Senate Committee, which was prepared after Bill C‑157 (Canadian Security Intelligence Service Act ) had been tabled, stressed the distinction between the policing function and the role of an intelligence agency. Law enforcement agencies generally react to the commission of criminal offences, whereas those responsible for prevention and for the protection of security must try to anticipate threatening events (para. 14). Finally, as the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police noted, ministers and senior officials have a role in the decision‑making process of a security agency that they do not have where law enforcement operations are concerned (Second Report, vol. 2, at p. 757; see also the Report of the Special Senate Committee, at para. 15).
(c) Duties and Functions of CSIS
[24] The CSIS Act reflects the organizational and operational principles recommended in the reports that preceded its enactment. It sets out the various duties and functions delegated to CSIS , including the following examples. CSIS is primarily responsible for collecting “information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada” (s. 12 ). There are also situations in which it provides “security assessments to departments of the Government of Canada” (s. 13 ) or gives advice, or provides a minister with information on matters relating to the security of Canada (s. 14). CSIS may conduct investigations into such matters (s. 15 ). It may also collaborate with the Minister of National Defence or the Minister of Foreign Affairs to collect information or intelligence relating to the activities of a foreign state or persons other than citizens or permanent residents of Canada (s. 16). Finally, information with respect to a criminal prosecution that is collected by CSIS in the performance of its duties and functions may, under certain conditions, be disclosed to peace officers, to the Attorney General of Canada or to the attorney general of a province (s. 19 ).
(2) Relationship Between the Mandate of CSIS and Problems Resulting From Terrorist and Criminal Activities
[25] In this case, the Federal Court judge noted that CSIS is not a police agency and that its role is not to lay charges. As a result, in his view, it cannot be subject to the same obligations as a police force (para. 17).
[26] Indeed, CSIS is not a police force. This is clear from the legislative history set out above. In reality, however, it must be acknowledged that the activities of the RCMP and those of CSIS have in some respects been converging as they, and the country, have become increasingly concerned about domestic and international terrorism. The division of work between CSIS and the RCMP in the investigation of terrorist activities is tending to become less clear than the authors of the reports discussed above seem to have originally envisioned.
[27] For example, CSIS occasionally discloses information to the RCMP. In the report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Commissioner O’Connor pointed out that CSIS and the RCMP frequently interact with respect to national security‑related intelligence:
CSIS may . . . disclose information to police officers if the information could be used to investigate or prosecute any alleged contravention of federal or provincial law. . . . The primary form of interaction between [CSIS and the RCMP] is the exchange of information. A significant portion of the national security‑related information and intelligence that the RCMP receives comes from CSIS ; thus, a significant amount of the RCMP’s national security work is initiated by information received from CSIS . [Emphasis added.]
(A New Review Mechanism for the RCMP’s National Security Activities (2006), at pp. 138‑39)
[28] In this light, we would qualify the finding of the Federal Court that CSIS cannot be subject to the same duties as a police force on the basis that their roles in respect of public safety are, in theory, diametrically opposed. The reality is different and some qualification is necessary.
(3) Rules and Policies on Retention
[29] Mr. Charkaoui has since 2003 repeatedly requested the production of the witness statements that convinced the ministers to issue the security certificate. An oral request was made on July 3, 2003, and a formal motion for full disclosure of the evidence before the judge, including all witness statements (his own among them) and recordings, was filed on October 17, 2003. At the hearing on January 10, 2005, Mr. Charkaoui again put questions to the designated judge to obtain more information about the evidence disclosed on January 5 and 6, 2005. Regarding the evidence disclosed on January 5, Mr. Charkaoui wanted to find out whether the Court record contained a mechanical recording of and notes from his interviews or his own written statements, which CSIS had apparently summarized. Mr. Charkaoui also sought information about the 5 percent of the evidence that was not disclosed in what he received on January 6. His applications thus raised the issue of the policies of CSIS relating to the retention and destruction of notes.
[30] Mr. Charkaoui learned only in January 2005, through information received from counsel for the ministers, of CSIS ’s policy of destroying operational notes. The CSIS policy on the management of operational notes, identified as OPS‑217, was adopted to control the use and retention of operational notes. It was first adopted on December 15, 1994, and was then renewed on June 19, 2001 and May 1, 2006. This Court had access to the first two versions of OPS‑217, which are for all practical purposes identical (except for one word). The respondents assured the Court that the policy on operational notes was not changed when the third version was adopted.
Policy OPS‑217
[31] The “policy provides the principles for the handling and retention of operational notes” (para. 1.4). Operational notes include information recorded on or in the following formats:
Any rough note, preliminary draft, drawing, diagram, photograph, calculation, audio or video recording, electronically stored information or other material made by an employee which is to be used in the preparation of a record of the Service. [para. 1.12]
[32] The policy stresses the confidential nature of operational notes, which, if compromised, could cause injury to the national interest or harm to an individual affected by their content (paras. 2.2 and 2.3). When taking notes, employees must therefore do everything necessary to keep them confidential (para. 3.2).
[33] According to the policy, operational notes are temporary in nature (paras. 1.2 and 3.1). They must be destroyed after they have been transcribed into a report by the employee who took them (paras. 2.4, 2.4.1 and 3.5).
[34] The policy does not appear to require CSIS employees to consult a supervisor or obtain his or her authorization before destroying their notes. Supervisors become involved only if employees believe that they “have acquired information of possible evidentiary value” (para. 3.6). Information of possible evidentiary value is most likely information that concerns crimes (paras. 3.6.1 and 3.7).
[35] The policy provides two justifications for retaining notes. First, relevant portions of notes may be retained where “information in [them], such as a sketch or diagram, cannot be transcribed into a report”. Second, notes of CSIS employees must be retained where “information contained in the notes may be crucial to the investigation of an unlawful act of a serious nature and employees may require their notes to refresh their memories prior to recounting the facts of an event” (para. 3.5).
[36] We will now consider the validity of this policy in light of s. 12 of the CSIS Act.
(4) Interpretation of the CSIS Act With Respect to Retention
(a) Interpretation of Section 12 of the CSIS Act
[37] CSIS based its policy on the management of operational notes on the following provision of its enabling statute:
12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.
[38] Nothing in this provision requires CSIS to destroy the information it collects. Rather, in our view, s. 12 of the CSIS Act demands that it retain its operational notes. To paraphrase s. 12 , CSIS must acquire information to the extent that it is strictly necessary in order to carry out its mandate, and must then analyse and retain relevant information and intelligence. In short, OPS‑217 rests on an erroneous interpretation of s. 12 .
(b) Practical Purpose of Retention
[39] In our view, the retention of notes must serve a practical purpose. It follows that the meaning of the word “intelligence” in s. 12 of the CSIS Act should not be limited to the summaries prepared by officers. The original operational notes will be a