Canada (Attorney General) v. Telbani

Canada (Attorney General) v. Telbani
Court (s) Database
Federal Court Decisions
Date
2012-04-23
Neutral citation
2012 FC 474
File numbers
T-1645-10
Notes
A correction was made January 9, 2014
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20120423
Docket: T-1645-10
Citation: 2012 FC 474
[REVISED TRANSLATION]
Ottawa, Ontario, April 23, 2012
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
HANI AL TELBANI
and
Respondent
THE SECURITY INTELLIGENCE
REVIEW COMMITTEE
Intervener
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of a decision by the Security Intelligence Review Committee (“SIRC” or “Committee”), dated September 8, 2010, under the signature of the member, the Honourable Denis Losier (“the member”). SIRC determined that when it is investigating a complaint against the activities of the Canadian Security Intelligence Service (“CSIS” or “Service”), including the complaint made by Mr. Hani Al Telbani (“Mr. Telbani”), it has jurisdiction to hear arguments and decide questions of law related to the Charter of Rights and Freedoms (“the Charter”). The Committee was granted intervener status to discuss jurisdiction. The respondent did not submit a written memorandum. He concurs with the Committee’s arguments and decision.
[2] For the purposes of gaining a better understanding of these reasons, an outline of the process that was followed to respond to this application is included below:
Outline
Pages
▪ Introduction
1
▪ Outline
2
I. Background
4
II. Summary of decision under review
6
A. Jurisdiction within the legislative mandate of SIRC
6
B. Jurisdiction under section 52 of the Constitution Act, 1982
7
C. Jurisdiction under section 24 of the Canadian Charter of Rights and Freedoms
8
III. Issues
9
IV. Applicable standard of review
9
V. Position of the parties
10
VI. The Canadian Security Intelligence Service Act and the role of
SIRC
11
A. The Act and the role of SIRC
12
(1) The Canadian Security Intelligence Service
12
(2) The Inspector General
12
(3) The Security Intelligence Review Committee
13
B. A brief review of the case law dealing with SIRC
20
C. The approach to follow according to the case law to determine the issue in this matter
27
VII. Analysis
30
Is SIRC a court of competent jurisdiction with the authority to investigate the respondent’s allegations that his constitutional rights guaranteed by the Charter were violated, both within the meaning of subsection 24(1) of the Charter and subsection 52(1) of the Constitution Act, 1982?
30
A. There is no explicit jurisdiction, but is there an implied jurisdiction?
30
(1) In order to fulfill its legislative mandate, SIRC must determine
questions of law
34
(2) SIRC’s interaction with other elements of the administrative system is another indication of its implied jurisdiction to determine questions of law
45
(3) SIRC is adjudicative in nature
50
(4) Some practical considerations to discuss
58
B. Parliament did not exclude the Charter from SIRC’s jurisdiction
64
C. SIRC has jurisdiction to grant the particular remedy sought under the
CSISA
65
VIII. Conclusion
68
A. Costs
71
▪ The Order
72
[3] As a reading of these reasons will show, there is a certain amount of repetition. Taking into account the analysis factors outlined in R v Conway, 2010 SCC 22, [2010] 1 SCR 765 (Conway) used to frame the analysis and address the matter at issue, this repetition is necessary, given the analysis grid that follows.
I. Background
[4] Mr. Telbani sent a formal demand to the Director of CSIS on June 19, 2008, regarding the actions of two of the Service’s officers. He alleged that the two officers went to his home, entered his residence without a warrant or permission and acted in a threatening and intimidating manner toward him, in violation of his fundamental rights guaranteed under sections 7, 9 and 10 of the Charter. A report by CSIS was allegedly drafted and forwarded to the Minister of Transport, Infrastructure and Communities in order to have his name added to a Specified Persons List, namely, a “no-fly list” (“the list”).
[5] Mr. Telbani therefore demanded that the Service acknowledge its responsibility and remedy the violations committed by, among other things, withdrawing any damaging reports that may have been written about him, taking the proper measures to have his name removed from the list and making an offer of compensation for moral and material damages endured.
[6] In a letter dated June 27, 2008, the acting Deputy Director of CSIS indicated that Mr. Telbani’s allegations had been reviewed and that it had been determined that no action would be taken.
[7] On July 11, 2008, Mr. Telbani filed a complaint with SIRC, pursuant to section 41 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 (“the Act” or “the CSISA”), in which he demanded an investigation to establish and acknowledge CSIS’s responsibility for the treatment described in the formal demand letter, and that SIRC recommend to the Service that they begin the process of providing the remedies demanded therein.
[8] Upon receiving the complaint, SIRC invited the parties to file their written submissions regarding its jurisdiction to investigate. The Service did not avail itself of this opportunity, while Mr. Telbani filed his submissions on September 19, 2008.
[9] On December 10, 2008, SIRC determined that it had jurisdiction to investigate the complaint since it involved the Service’s activities and it was not trivial, frivolous, vexatious or made in bad faith, in accordance with section 41 of the Act.
[10] On March 23, 2009, during a pre-hearing conference call, CSIS indicated that it objected to SIRC’s jurisdiction to deal with Charter arguments and that it wanted a hearing to address the issue. The Service provided written submissions on this subject on June 12, 2009, and Mr. Telbani did likewise on August 3, 2009, and he also withdrew a part of the allegations raised in his complaint.
[11] On October 7, 2009, at the start of the hearing of the complaint, SIRC suggested that it hear all of the evidence before deciding whether it had jurisdiction with respect to the Charter. However, Mr. Telbani indicated that his complaint was based on the breach of his constitutional rights and that if the Committee had no jurisdiction regarding the Charter, he had no other complaint to be heard. The parties then made a joint application to have the Committee determine the issue of jurisdiction before proceeding with the investigation.
[12] SIRC accepted the joint application by the parties and the hearing was adjourned in order to allow the parties to file their written submissions solely on the Committee’s jurisdiction. Following the filing of these documents, SIRC rendered a decision dated September 8, 2010, in which it determined that it did have jurisdiction to investigate the allegations and decide questions of law involving the Charter. That decision is the subject of the present judicial review.
II. Summary of the decision under review
[13] In a 20-page decision, tribunal member Losier begins by summarizing the complaint, the procedures followed and the parties’ submissions. He then proceeds with an analysis of SIRC’s jurisdiction by summarizing the two types of remedies available in cases of Charter violations, namely, those offered under section 24 of the Charter in cases of unconstitutional actions and those under subsection 52(1) of the Constitution Act, 1982 where unconstitutional provisions are involved (R v Ferguson, 2008 SCC 6 at paras 59-61, [2008] 1 SCR 96).
A. Jurisdiction within the legislative mandate of SIRC
[14] Member Losier begins by examining Mr. Telbani’s argument that there is no need to proceed with an analysis on the basis of the remedies sought, as the only issue is whether, within SIRC’s legislative mandate, the Committee had jurisdiction to investigate the Service’s alleged actions. In his ensuing reasons, member Losier expresses the view that the Committee has jurisdiction, within its legislative mandate, to investigate a complaint that raises a violation of constitutional rights provided under the Charter.
[15] He notes that the complaint met the requirements of section 41 of the Act and that, on completion of an investigation of a complaint under the same section, the Committee is to provide “a report containing the findings of the investigation and any recommendations that [it] considers appropriate” (paragraph 52(1)(a) of the Act). He also notes that SIRC has the mandate, under section 40 of the Act “of ensuring that the activities of the Service are carried out in accordance with this Act, the regulations and directions issued by the Minister under subsection 6(2) and that the activities do not involve any unreasonable or unnecessary exercise by the Service of any of its powers” (SIRC Report at paragraph 35 and see also section 40 of the Act). He then emphasizes that the directions issued by the Minister provide that [translation] “[t]he government and people of Canada expect…the Service to carry out its duties while respecting the principle of the rule of law and the rights and freedoms guaranteed to Canadians by the (“Charter”)” (SIRC report at paragraph 35). The member feels it was crucial that the Committee be invested with the authority to apply the Charter in order to fulfill the mandate conferred upon it by Parliament. The opposite would require the complainants to assert their rights in various different fora, which would go against the directions of the Supreme Court of Canada (“Supreme Court”) to the effect that Canadians should be entitled to assert their constitutional rights before the most accessible forum available, without the need for parallel proceedings before the courts.
[16] Lastly, member Losier concludes this part of the analysis by relying on Omary v Canada (Attorney General), 2010 FC 335, [2010] FCJ 388 (Omary) to state that by allowing the application for judicial review in that case, [translation] “the Federal Court implicitly recognized […] the Committee’s jurisdiction to determine Charter issues since the complainant’s allegations in this case pertain to the violation of his constitutional rights guaranteed under the Charter” (SIRC Report at paragraph 40).
B. Jurisdiction under section 52 of the Constitution Act, 1982
[17] Member Losier notes that, at first blush, the allegations raised in Mr. Telbani’s complaint imply that only subsection 24(1) of the Charter is at issue, but that since he must determine a jurisdictional issue without an investigation and thus without a factual background, he feels it would also be useful to determine the Committee’s jurisdiction pursuant to section 52 of the Constitution Act, 1982.
[18] He then proceeds with an analysis of jurisdiction as set out in Nova Scotia (Workers’ Compensation Board) v Martin, 2003 SCC 54, [2003] 2 SCR 504 (Martin). Regarding the first issue, that is, whether SIRC has explicit or implied jurisdiction to decide questions of law arising under a legislative provision, he finds that in light of the factors in Martin, the Committee has implied jurisdiction. First, he is of the view that the mandate given to SIRC requires that it examine and decide questions of law, including those that involve the application of the Charter, in order to effectively carry out its oversight role with respect to CSIS. Second, in order to move away from Cooper v Canada (Canadian Human Rights Commission), [1996] 3 SCR 854, [1996] SCJ 115 (Cooper), according to which the Canadian Human Rights Commission (“CHRC”) did not have jurisdiction to decide questions of constitutional law, he distinguishes the role of the Committee. Third, he notes that complaints are reviewed before quasi-judicial hearings. Lastly, he feels that the Committee has the capacity to consider questions of law arising under a legislative provision and that CSIS has failed to rebut the presumption that this jurisdiction also applies to the Charter.
C. Jurisdiction under section 24 of the Canadian Charter of Rights and Freedoms
[19] Applying the Supreme Court’s approach in Conway, supra, at paras 81 and 82, member Losier first notes that he had already determined in his analysis of section 52 that the Committee had jurisdiction to decide questions of law, including Charter matters, and that there is no indication that Parliament intended to exclude the application of the Charter from his jurisdiction. As to the question of whether SIRC can grant the particular remedy sought, given the relevant statutory scheme, he draws a parallel with a declaratory remedy such as that issued in Canada (Prime Minister) v Khadr, 2010 SCC 3 at paras 46-47, [2010] 1 SCR 44 (Khadr), and states that [translation] “the power to make findings and recommendations provided under section 52 of the [Act] may be characterized as a remedy that takes into account the particular context in which the Committee exercises its functions” (SIRC report at paragraph 87). He is therefore of the opinion that the remedies sought in this complaint, that is, that the Committee investigate, identify and recommend to CSIS that it take the necessary measures, where applicable, to remedy the Charter violations, are the kinds of remedies that Parliament wanted SIRC to be able to grant given its statutory scheme.
III. Issues
[20] The issue can be summarized as follows:
Is SIRC a court of competent jurisdiction to investigate the respondent’s allegations that his constitutional rights guaranteed by the Charter were violated, both within the meaning of subsection 24(1) of the Charter and subsection 52(1) of the Constitution Act, 1982?
IV. Applicable standard of review
[21] Given that SIRC’s decision pertains to a question of law and of jurisdiction, the parties agree that the applicable standard of review in this case is correctness. Although this question requires that SIRC interpret its enabling statute, and although the Supreme Court has indicated that in such cases deference will usually be warranted (Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 54, [2008] 1 SCR 190 (Dunsmuir)), as we shall see, the analysis established to decide this question requires much more than a simple analysis of the CSISA. Moreover, the Supreme Court clearly stated that an administrative tribunal “can expect no curial deference with respect to constitutional decisions” (Cuddy Chicks Ltd. v Ontario (Labour Relations Board), [1991] 2 SCR 5, at para 17, [1991] SCJ 42 (Cuddy Chicks)) and that its decisions based on the Charter are subject to judicial review on a correctness standard (Martin, supra, at para 31). Therefore, it is up to this Court to undertake its own analysis of the question and if it does not agree with the determination of the decision maker it will substitute its own view for that of the Committee (Dunsmuir, supra, at para 50).
V. Position of the parties
[22] The Attorney General contends that SIRC has no jurisdiction to decide questions of law or investigate allegations involving the Charter, or any jurisdiction within the meaning of subsection 24(1) of the Charter, and it cannot declare legislative provisions invalid under subsection 52(1) of the Constitution Act, 1982. For its part, SIRC opposes this contention.
[23] Addressing the SIRC’s jurisdiction according to the Act, the Attorney General notes that SIRC has no inherent jurisdiction and that it cannot exceed the mandate conferred upon it by its enabling statute, which does not grant it the authority to decide questions of constitutional law, or even questions of general law. In his view, SIRC is an investigative body which plays an advisory role and makes recommendations, but which exercises no adjudicative function and is not a court of competent jurisdiction.
[24] The Attorney General pointed out that in Thomson v Canada (Deputy Minister of Agriculture), [1992] 1 SCR 385 at paragraph 25, 89 DLR (4th) 218 (Thomson), Justice Cory made the following comment with regard to recommendations made under section 42 of the Act: “The Committee’s recommendation constitutes a report put forward as something worthy of acceptance. It serves to ensure the accuracy of the information on which the Deputy Minister makes the decision, and it gives the Deputy Minister a second opinion to consider. It is no more than that.” The Attorney General also relies on a similar decision in Omary, supra, at paragraphs 25, 28 and 33, to assert that there is nothing in the Act to suggest that, after conducting an investigation under section 41, SIRC would be called upon to apply provisions of the Act or standards drawn from other statutes, including the Charter. As for the obligations and procedural powers conferred upon SIRC under the Act, the Attorney General maintains that they in no way point to any jurisdiction to decide questions of law.
[25] The Committee acknowledges that its recommendations are non-binding. However, it invokes the investigative and reviewing functions granted to it under section 38 of the Act and notes the very broad power to determine its own procedure conferred upon it under section 39 of the Act and recognized by this Court in Omary, supra, at paragraph 20, as well as in Al Yamani v Canada (Solicitor General), [1996] 1 FC 174 at paragraph 19, [1995] FCJ 1453 (Al Yamani). More importantly, the Committee maintains that interpreting legislation and make findings of questions of law or of mixed law and fact fall within its mandate (Al Yamani at para 57 and Omary at paras 17-18). The parties’ other arguments, raised with respect to the test developed by the Supreme Court in Conway, supra, will be considered in section “VII. Analysis” of these reasons.
VI. The Canadian Security Intelligence Service Act and the role of SIRC
[26] Before proceeding with the analysis of the issue at hand, it is important to have a clear understanding of the CSISA and the role assigned to SIRC. It would also be helpful to provide an overview of the case law involving SIRC and the case law pertaining to the test established by the Supreme Court as well as the criteria to be taken into consideration in the determination of the issue in this matter.
A. The Act and the role of SIRC
[27] The overriding concern of the CSISA is protecting national security while safeguarding individual rights. The Act contains three parts (a fourth part became obsolete following a parliamentary review at the end of the 1980s).
(1) The Canadian Security Intelligence Service
[28] The first part of the Act created CSIS, our civilian intelligence agency. Its main functions are collecting information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada (section 12), providing security assessments (section 13), advising Ministers of the Crown on matters relating to the security of Canada (section 14) and collecting information relating to foreign states (section 16).
[29] To carry out these functions, CSIS may enter into arrangements with foreign governments and their police forces, provincial governments, police forces in Canada (sections 13 and 17) and obtain warrants (sections 21 et seq). However, such warrants are subject to the statutory requirements set out in Part II of the Act under the title “Judicial Control” and warrants are issued by judges designated for that purpose by the Chief Justice of the Federal Court.
[30] Part III of the Act, entitled “Review,” is comprised of two sections: The first describes the role of the Inspector General, who reports to the executive and the second describes the role of SIRC, which reports to the executive, to Parliament and to the complainant.
(2) Inspector General
[31] The Inspector General’s functions are to monitor the compliance by CSIS with its operational policies, to review its operational activities and to provide confirmation of the above by submitting certificates (section 30). After receiving a copy of the report of the CSIS Director, the Inspector General will then submit to the Minister a certificate stating the extent to which the Inspector General is satisfied with the report (section 33). The Inspector General is entitled to have access to any information under the control of the Service, other than a confidence of the Queen’s Privy Council (section 31). I note that SIRC not only has this power as well, but that it is also entitled to information under the control of the Inspector General (section 39). As soon as practicable after receiving the CSIS Director’s report and a certificate of the Inspector General, the Minister shall forward the report and certificate to the Committee (subsection 33(3)).
(3) Security Intelligence Review Committee
[32] SIRC is comprised of a Chairman and not less than two and not more than four members from among members of the Queen’s Privy Council for Canada (who are not members of the Senate or the House of Commons) after consultation by the Prime Minister with the Leader of the Opposition in the House of Commons and the leader of each party having at least twelve members in that House (subsection 34(1)). Every member of SIRC and every person engaged by it must comply with all security requirements under the Act and must take an oath of secrecy set out in the schedule of the CSISA, in the same way as does the Director and employees of CSIS (sections 10 and 37).
[33] There are three main components to the functions of SIRC: (1) the Committee reviews the performance by CSIS of its duties and functions; (2) it arranges for reviews to be conducted, or conducts reviews for the purpose of ensuring that the activities of CSIS do not involve any unreasonable or unnecessary exercise of its powers; and (3) it conducts investigations in relation to complaints made against CSIS, denials of security clearance and reports made pursuant to the Citizenship Act, RSC 1985, c C-29 (Citizenship Act) or the Canadian Human Rights Act, RSC 1985, c H-6 (Canadian Human Rights Act) (section 38 of the CSISA).
[34] SIRC’s reviewing functions cover all of the duties and functions of CSIS: it has to review reports of the Director of the Service and certificates of the Inspector General, directions issued by the Minister, arrangements entered into with governments and police forces, reports to the Minister regarding purported unlawful actions of employees and CSIS regulations; it must review applications by Ministers for warrants in relation to the conduct of the international affairs of Canada; and it must compile and analyze statistics on the operational activities of the Service (paragraph 38(a) and its sub-paragraphs).
[35] As previously noted, the investigative functions of SIRC are rooted not only in the CSISA, but also in the Citizenship Act and the Canadian Human Rights Act. There is a common thread that justifies the Committee’s involvement under these three Acts: the work of CSIS is involved. First, SIRC will investigate any complaint filed concerning CSIS activities or with respect to an individual being denied a security clearance required for employment in the public service or any person who has been denied a contract to provide goods or services to the Government of Canada by reason only of the denial of security clearance (sections 41 and 42). Second, SIRC will investigate where the Minister of Citizenship and Immigration makes a report to the Committee advising it that he or she is of the opinion that a person should not be granted citizenship because there are reasonable grounds to believe that the person will engage in activity that constitutes a threat to the security of Canada, or that is part of a pattern of organized criminal activity punishable under any Act of Parliament by way of indictment (section 19 of the Citizenship Act). Lastly, the Canadian Human Rights Commission may also refer a complaint to SIRC if it receives written notice from a minister of the Crown informing it that the practice to which the complaint relates, allegedly committed by the person concerned, was based on considerations relating to the security of Canada. The committee will then conduct an investigation (section 45 of the Canadian Human Rights Act).
[36] SIRC has the authority to determine the procedure to be followed in the performance of any of its duties or functions (subsection 39(1)), which is what it did in this case. This process has been endorsed by the Supreme Court since Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711 at paragraph 49, 90 DLR (4th) 289 (Chiarelli).
[37] In carrying out its duties and functions, SIRC also has access to information under the control of CSIS or the Inspector General, to investigation files relating to complaints made against the Service and security clearances, including information under the control of the deputy head concerned. This right of access also includes information to which access may be limited by any Act of Parliament or any privilege under the law of evidence. In fact, no information deemed by the Committee to be necessary for the performance of its duties and function may be withheld from it, “on any grounds” other than a confidence of the Queen’s Privy Council (section 39).
[38] Complaints or investigation requests to SIRC must be made in writing and within a fixed period of time, unless the Committee authorizes otherwise (subsection 42(4) and section 45 of the CSISA as well as subsection 19(4) of the Citizenship Act and subsection 45(5) of the Canadian Human Rights Act).
[39] In cases where a complaint arises from a denial of security clearance, SIRC must, as soon as practicable, send the complainant a statement summarizing such information as will enable the complainant to be as informed as possible of the circumstances giving rise to the denial of the security clearance (section 46). The same process applies to other complaints made pursuant to the CSISA, under the Citizenship Act or under the Canadian Human Rights Act (Rule 45 of SIRC’s Rules of Procedure).
[40] When SIRC decides to investigate the denial of a security clearance or a complaint made pursuant to the Citizenship Act or the Canadian Human Rights Act, it informs the Director of CSIS and the deputy head concerned of the substance of the complaint and of its intention to carry out the investigation. For complaints regarding CSIS activities, the Committee will, prior to proceeding with an investigation, decide whether the complaint is trivial, frivolous, vexatious or made in bad faith, or whether it is not related to labour relations. It will also ensure that the complaint was first dealt with by the Director of CSIS, or determine that the Director failed to respond within a reasonable time (sections 41 and 47).
[41] In addition to having access to information under the control of CSIS or of the deputy head (pursuant to section 42 of the Act), the Committee may summon and enforce the appearance of witnesses and compel them to give oral or written evidence on oath and to produce such documents as it deems requisite to the full investigation and consideration of the complaint, and it may administer oaths in the same manner as a “superior court of record” (section 50). The Committee may even receive and accept such evidence and other information, whether or not such evidence or information would be admissible in a court of law. I would add that except in a prosecution of a person for false statements in extrajudicial proceedings (section 133 of the Criminal Code), evidence given by a person before the Committee is inadmissible against that person in a court or in any other proceedings (sections 50 and 51 of the Act).
[42] SIRC investigations are conducted in private. However, the complainant, deputy head concerned and the Director are given an opportunity to make representations to the Committee, to present evidence and to be heard personally or by counsel. Nonetheless, no one is entitled as of right to be present during, to have access to or to comment on representations made to the Committee by any other person. In spite of this, the Committee’s Rules of Procedure allow for statements summarizing information from private hearings to be provided, to the extent that no information related to national security is disclosed (section 48 of the Act and Rule 45 of SIRC’s Rules of Procedure).
[43] Once SIRC has completed its investigation of a complaint that has been made regarding CSIS activities (section 41), it will draft a report and make any recommendations it considers appropriate. It will then forward the report, along with its findings and recommendations, to the Director. As for the complainant, he or she will receive a copy of the report, and its findings and recommendations, provided that these are not protected for national security reasons (subsection 52(1) of the Act and Rule 13 of SIRC’s Rules of Procedure).
[44] In cases of investigations related to a denial of a security clearance (section 42), SIRC will provide a copy of its report and recommendations to the parties concerned (the Minister, the complainant, the CSIS Director and the deputy head). Here too some of the findings and recommendations may be withheld from the complainant for national security reasons (subsection 52(2)). Prior to disclosing information to the complainant, SIRC must also consult the CSIS Director. The same applies to statements summarizing information, communications and reports subject to the Canadian Human Rights Act and the Citizenship Act (section 55).
[45] For complaints referred to the Committee pursuant to the Citizenship Act or the Canadian Human Rights Act, SIRC will avail itself of the same investigative powers conferred upon it by the CSISA. A statement summarizing information will be disclosed to the person concerned and the rights to be heard, to give evidence and to be represented by counsel are also applicable to the process of handling these complaints (subsections 19(2) and 19(4)-19(6) of the Citizenship Act, and subsections 45(2), 45(5) and 45(6) of the Canadian Human Rights Act). Furthermore, in the case of the Citizenship Act, SIRC’s report is sent to the Governor General in Council and the findings of the said report are communicated to the person concerned. The Governor in Council will review the report and determine whether there are reasonable grounds to believe that the person concerned will engage in activity that constitutes a threat to the security of Canada or criminal activity that is punishable by way of indictment (sections 19 and 20 of the Citizenship Act). In cases of complaints made pursuant to the Canadian Human Rights Act, copies of the report containing the findings of the Committee will be provided to the Commission, the Minister and to the Director of CSIS. The Commission will then determine what information should be disclosed to the complainant (section 46 of the Canadian Human Rights Act).
[46] Investigations launched pursuant to the Citizenship Act may also be led by a retired judge of a superior court appointed by the Governor General in Council after consultation by the Prime Minister with the Leader of the Opposition in the House of Commons and the leader of each party having at least twelve members in that House (subsection 19.1(1) of the Citizenship Act). However, according to the information disclosed by the parties, no investigation has been conducted by a retired judge and no retired judge has been appointed to date.
[47] As for SIRC’s research functions, these are intended to compliment its review and investigative role. The purpose of this research is to ensure that the Service’s activities are carried out in accordance with the Act, the regulations and directions issued by the Minister under section 6 of the CSISA and that the activities do not involve any unreasonable or unnecessary exercise by CSIS of any of its powers. The Committee may direct the Service or Inspector General to conduct a review; or it may conduct such a review itself in the circumstances (paragraph 38(b) and section 40).
[48] Each year, SIRC submits a report of its activities to the Minister of Public Safety which is then submitted to Parliament. The Committee must consult with the Director of CSIS prior to tabling the report to ensure that information relating to national security is not disclosed. In addition, the Committee may, on request of the Minister or at any other time, furnish the Minister with a special report concerning any matter that related to the performance of its duties and functions without prior consultation with the Director of the Service (section 54). An example of such a report would be “CSIS’s Role in the Matter of Omar Khadr,” which was published on July 8, 2009, a redacted (for national security reasons) version of which is available to the public (Intervener’s Record, Volume 1, Tab E at pp 102 to 137).
[49] In conclusion, CSIS is an intelligence-gathering agency that operates within the parameters established by Parliament, including the statutory definition of what constitute “threats to the security of Canada.” The Service is subject to a number of controls: that exercised by the Minister through the issuing of directions; that of the Inspector General through the submission of certificates, that of the Federal Court through the issuing of warrants, that of SIRC by means of its investigative, review and research duties and functions, and finally that of Parliament through the tabling of an annual report and the submission of special reports to the Minister.
[50] The overriding purpose of these controls is, to the extent that it is possible, to ensure that CSIS operates consistently within the laws of Canada and their regulations and that it does not exercise its powers in an unreasonable or unnecessary manner. CSIS has considerable powers, but in spite of the significant powers conferred upon it, Parliament wanted to ensure that fundamental rights remain protected. When assessing SIRC’s investigative role, it is therefore important to keep in mind Parliament’s desire to ensure that the mandate of CSIS is articulated legally and that it is consistent with the laws and regulations applicable to similar matters.
B. A brief review of the case law dealing with SIRC
[51] The Courts have, in the past, been called upon to determine issues concerning the CSISA and its provisions regarding SIRC. For example, the Supreme Court has already had to make a determination on a SIRC investigation report and on the effect of its recommendations in Thomson, supra, in which the Court ruled on a denial of a security clearance. The judgment of the majority found that the word “recommendation” at subsection 52(2) of the CSISA should receive its plain and ordinary meaning and should not be taken to mean a final or binding decision, which is left to the Deputy Minister as the employer’s representative (Thomson, supra, at para 33). The Supreme Court also noted at paragraph 28 that the interpretation of “recommendations” would be the same with regard to an investigation of CSIS activities under section 41, otherwise it would result in SIRC encroaching on the management powers of the Service. I note here that the Federal Court of Appeal, whose decision was appealed, had nonetheless determined the opposite, that is, that the word “recommendation” should not be taken in its literal sense and that it had a binding connotation (Thomson v Canada, [1988] 3 FC 108, at pp 137 and 138).
[52] One thing is certain: both judgments are in agreement regarding the importance of SIRC’s role and the significant amount of authority it has to investigate complaints. Justice Stone, writing for the Federal Court of Appeal, underscored the fact that the purpose of the CSISA was far greater than the mere investigation of complaints about denials of security clearance (Thomson v Canada, [1988] 3 FC 108 at para 41):
Obviously, the purpose of the Act goes well beyond that of protecting the individual interest in obtaining a security clearance, for it is primarily directed toward protecting the national interest in matters of security generally. On the other hand, the “complaints” procedure under Part III appears to take that objective into account by ensuring, especially by the composition and powers of the intervenant and the requirement for secrecy, that this interest not be sacrificed. The Act evidently reflects a careful balancing of the two interests. …
[53] As for SIRC’s proceedings and as was previously noted, the Supreme Court had already given its approval. Justice Sopinka, while emphasizing that it was not for him to rule on the issue, concluded that SIRC’s proceedings respected the principles of fundamental justice (Chiarelli, supra, at paras 43 and 48-51):
43 The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee. … Does the fact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent to complain that the hearing does not comport with the dictates of fundamental justice? … [A]ssuming that the proceedings before the Review Committee were subject to the principles of fundamental justice, those principles were observed.
…
48 In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fair procedure since the Committee’s investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue, removing an appeal on compassionate grounds. However, the state also has a considerable interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources …
49 The CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonable balance between them. The Rules expressly direct that the Committee’s discretion be exercised with regard to this balancing of interests.
50 In this case the respondent was first provided with the “Statement of Circumstances giving rise to the making of a Report by the Solicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee”. This document set out the nature of the information received by the Review Committee from the Ministers, including that the respondent had been involved in drug trafficking, and was involved in the murder of a named individual. Also, prior to the Review Committee hearing, the respondent was provided with an extensive summary of surveillance of his activities (the “Chronology of Information”) and a “Summary of Interpretation of Intercepted Private Communications relating to the murder of Domenic Racco”. Although the first day of the hearing was conducted in camera, the respondent was provided with a summary of the evidence presented. [page746] In my view, these various documents gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. It is not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminal intelligence investigation techniques or police sources used to acquire that information.
51 The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera. The Chairman of the Review Committee clearly indicated an intention to allow such cross-examination … The respondent chose not to exercise these options. Having regard to the information that was disclosed to the respondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that the procedure followed by