Canada (Citizenship and Immigration) v. Harkat

Canada (Citizenship and Immigration) v. Harkat
Collection
Supreme Court Judgments
Date
2014-05-14
Neutral citation
2014 SCC 37
Report
[2014] 2 SCR 33
Case number
34884
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Evidence
Immigration
Notes
SCC Case Information: 34884
Decision Content
SUPREME COURT OF CANADA
Citation: Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33
Date: 20140514
Docket: 34884
Between:
Minister of Citizenship and
Immigration and Minister of Public
Safety and Emergency Preparedness
Appellants/Respondents on cross-appeal
and
Mohamed Harkat
Respondent/Appellant on cross-appeal
and
Attorney General of Ontario,
British Columbia Civil Liberties Association,
Canadian Council of Criminal Defence Lawyers,
Canadian Civil Liberties Association,
Canadian Bar Association,
Canadian Association of Refugee Lawyers,
Canadian Council for Refugees,
International Civil Liberties Monitoring Group,
Canadian Council on American-Islamic Relations
(now known as National Council of Canadian Muslims),
Amnesty International and
Criminal Lawyers’ Association (Ontario)
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 112)
Reasons Dissenting in Part:
(paras. 113 to 139)
McLachlin C.J. (LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ. concurring)
Abella and Cromwell JJ.
canada (citizenship and immigration) v. harkat, 2014 SCC 37, [2014] 2 S.C.R. 33
Minister of Citizenship and
Immigration and Minister of Public
Safety and Emergency Preparedness Appellants/Respondents on cross-appeal
v.
Mohamed Harkat Respondent/Appellant on cross-appeal
and
Attorney General of Ontario,
British Columbia Civil Liberties Association,
Canadian Council of Criminal Defence Lawyers,
Canadian Civil Liberties Association,
Canadian Bar Association,
Canadian Association of Refugee Lawyers,
Canadian Council for Refugees,
International Civil Liberties Monitoring Group,
Canadian Council on American-Islamic Relations
(now known as National Council of Canadian Muslims),
Amnesty International and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: Canada (Citizenship and Immigration) v. Harkat
2014 SCC 37
File No.: 34884.
2013: October 10, 11; 2014: May 14.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Right to life, liberty and security of person — Certificate issued against foreign national stating that he is inadmissible to Canada on national security grounds for allegedly engaging in terrorism — Named person challenging constitutionality of security certificate scheme on grounds that it prevents full disclosure and personal participation in hearings — Whether scheme under which security certificate issued deprives named person of right to life, liberty and security of person in accordance with principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 77(2) , 83(1) (c), (d), (e), (h), (i), 85.4(2) , 85.5 (b).
Immigration — Inadmissibility and removal — National security — Certificate issued against foreign national stating that he is inadmissible to Canada on national security grounds for allegedly engaging in terrorism — Judge reviewing reasonableness of certificate finding sufficient evidence to demonstrate that certificate was reasonable and upholding certificate — Whether designated judge erred in concluding that certificate was reasonable.
Evidence — Privilege — Informer privilege — Information used against named person obtained by CSIS from human sources — Whether CSIS human sources are covered by class privilege — Whether CSIS human sources can be cross-examined.
Constitutional law — Charter of Rights — Procedural fairness — Duty to disclose — Remedy — Summaries of intercepted conversations tendered as evidence against named person — Source materials for summaries destroyed in accordance with internal policy of CSIS — Whether destruction of source materials breached named person’s right to procedural fairness — Whether designated judge erred in refusing to exclude summaries of intercepted conversations — Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
Stay of proceedings — Duties of candour and utmost good faith — Fairness of process — Ex parte proceedings — Review of reasonableness of security certificate — Whether ministers made reasonable efforts to obtain information sought by special advocates — Whether ministers breached duties of candour and utmost good faith — Whether proceedings against named person were fair — Whether named person entitled to stay of proceedings.
H is alleged to have come to Canada for the purpose of engaging in terrorism. In 2002, a security certificate was issued against H under the scheme then contained in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA ”). The certificate declared H inadmissible to Canada on national security grounds. After a successful constitutional challenge of the then existing IRPA security certificate scheme and subsequent amendments to the IRPA , a second security certificate was issued against H and referred to the Federal Court for a determination as to its reasonableness. During the proceedings, the special advocates appointed to protect the interests of H in the closed hearings sought to obtain disclosure of the identity of human sources who provided information regarding H to the Canadian Security Intelligence Service (“CSIS”) as well as permission to interview and to cross-examine them. The designated judge rejected their request, finding that the common law police informer privilege should be extended to cover CSIS human sources. The designated judge also rejected their request to compel the ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom H was claimed to have associated. In addition, H’s request to exclude from the evidence summaries of intercepted conversations on the ground that the original recordings and notes of these conversations were destroyed pursuant to CSIS policy OPS-217 was refused by the designated judge. The designated judge found the security certificate scheme under the amended IRPA to be constitutional, and concluded that the certificate declaring H inadmissible to Canada was reasonable. On appeal, the Federal Court of Appeal upheld the constitutionality of the scheme but found that the identity of CSIS human sources is not protected by privilege. It also excluded from the evidence the summaries of intercepted conversations to which H had not been privy, and remitted the matter to the designated judge for redetermination on the basis of what remained of the record after the exclusion of the summaries.
Held (Abella and Cromwell JJ. dissenting in part on the appeal): The appeal should be allowed in part. The cross-appeal should be dismissed. The IRPA scheme is constitutional. CSIS human sources are not protected by a class privilege. The designated judge’s conclusion that the security certificate was reasonable is reinstated.
Per McLachlin C.J. and LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ.:
Constitutionality of IRPA Scheme
The impugned provisions of the IRPA scheme are constitutional. They do not violate the named person’s right to know and meet the case against him, or the right to have a decision made on the facts and the law. The alleged defects of the IRPA scheme must be assessed in light of the scheme’s overall design and of the two central principles that guide the scheme: (1) the designated judge is intended to play a gatekeeper role, is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility but also that the overall process is fair; and (2) participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings. However, the scheme remains an imperfect substitute for full disclosure in an open court, and the designated judge has an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate.
The IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant, since the designated judge has a statutory duty to ensure that the named person is reasonably informed of the case against him or her throughout the proceedings. However, the IRPA scheme’s requirement that the named person be “reasonably informed” of the case should be read as a recognition that the named person must receive an incompressible minimum amount of disclosure. A named person is “reasonably informed” if he or she has personally received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his or her special advocates which will allow them to challenge the information and evidence presented in the closed hearings. The level of disclosure required for a named person to be reasonably informed is case-specific, depending on the allegations and evidence against him or her. Ultimately, the designated judge is the arbiter of whether this standard has been met.
Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person. The designated judge must be vigilant and skeptical with respect to the claims of national security confidentiality and must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld from the named person. Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter .
The IRPA scheme’s approach to disclosure, which fails to provide for a balancing of countervailing interests, does not render the scheme unconstitutional. Section 7 of the Charter does not require a balancing approach to disclosure; rather, it requires a fair process. Parliament’s choice to adopt a categorical prohibition against disclosure of sensitive information, as opposed to a balancing approach, does not as such constitute a breach of the right to a fair process.
The communications restrictions imposed on special advocates do not render the scheme unconstitutional. They are not absolute and can be lifted with judicial authorization, subject to conditions deemed appropriate by the designated judge. The judicial authorization process gives the designated judge a sufficiently broad discretion to allow all communications that are necessary for the special advocates to perform their duties. This broad discretion averts unfairness as the designated judge can ensure that the special advocates function as closely as possible to ordinary counsel in a public hearing. The judge should take a liberal approach in authorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real risk of injurious disclosure. In addition, the named person and his public counsel can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings.
The admission of hearsay evidence or the denial of the opportunity for special advocates to cross-examine sources do not render the IRPA scheme unconstitutional. The IRPA scheme achieves the purpose of excluding unreliable evidence by alternative means to the rule against hearsay evidence and the right to cross-examine witnesses — it provides the designated judge with broad discretion to exclude evidence that is not “reliable and appropriate”, which allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person.
Privilege for CSIS Human Sources
CSIS human sources are not protected by a class privilege. First, police informer privilege does not attach to CSIS human sources. The differences between traditional policing and modern intelligence gathering preclude automatically applying traditional police informer privilege to CSIS human sources. While evidence gathered by the police is traditionally used in criminal trials that provide the accused with significant evidentiary safeguards, the intelligence gathered by CSIS may be used to establish criminal conduct in proceedings that have relaxed rules of evidence and allow for the admission of hearsay evidence. Second, this Court should not create a new privilege for CSIS human sources. If Parliament deems it desirable that CSIS human sources’ identities and related information be privileged, it can enact appropriate protections. The IRPA scheme already affords broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person.
Although the identity of CSIS human sources is not privileged, special advocates do not have an unlimited ability to interview and cross-examine human sources. The discretion of the designated judge to allow the special advocates to interview and cross-examine human sources in a closed hearing should be exercised as a last resort. A generalized practice of calling CSIS human sources before a court, even if only in closed hearings, may have a chilling effect on potential sources and hinder CSIS’s ability to recruit new sources. In this case, there is no need to authorize the exceptional measure of interviewing and cross-examining human sources.
Summaries
The appropriate remedy for the destruction of materials pursuant to CSIS policy OPS-217 must be assessed on a case-by-case basis and must be tailored to address the prejudicial effect on the named person’s case. The summaries of materials destroyed pursuant to policy OPS-217 should only be excluded under s. 24(1) of the Charter if their admission would result in an unfair trial or would otherwise undermine the integrity of the justice system. In this case, the designated judge did not err in refusing to exclude the summaries of intercepted conversations that were tendered as evidence by the ministers. Although the destruction of the original CSIS operational materials caused the ministers to fail to meet their disclosure obligations towards H and therefore to breach s. 7 of the Charter , the exclusion of the summaries is not necessary to remedy the prejudice to H’s ability to know and meet the case against him, or to safeguard the integrity of the justice system. The disclosure of the summaries in an abridged version to H and in an unredacted form to his special advocates was sufficient to prevent significant prejudice to H’s ability to know and meet the case against him.
Duties of Candour and Utmost Good Faith and Fairness of Process
The duties of candour and utmost good faith apply when a party relies upon evidence in ex parte proceedings. They require an ongoing effort to update, throughout the proceedings, the information and evidence regarding the named person. What constitutes reasonable efforts will turn on the facts of each case; however, the ministers have no general obligation to provide disclosure of evidence or information that is beyond their control. In this case, reasonable efforts were made by the ministers and they did not breach those duties. The proceedings against H were fair and a stay of proceedings should not be granted.
Reasonableness of Certificate
The designated judge committed no reviewable errors in finding that the ministers’ decision to declare H inadmissible to Canada was reasonable. The designated judge’s weighing of the factual evidence on the record is entitled to appellate deference and should only be interfered with if he committed a palpable and overriding error. There is no palpable and overriding error in his weighing of the evidence or in his assessment of H’s credibility, both of which in his view provided reasonable grounds to establish H’s inadmissibility.
Per Abella and Cromwell JJ. (dissenting in part on the appeal): Individuals who come forward with information about a potential terrorist threat, often risk their lives in doing so if their identity is disclosed. Offering only the possibility of anonymity if a court subsequently agrees to protect an informer’s identity, requires informers to choose between risk of personal harm if their identity is not protected, or risk of harm to the public if the information is not disclosed.
CSIS informants who provide national security information based on a promise of confidentiality are entitled to the assurance that their confidentiality will be protected. This can only be guaranteed by a class privilege, as is done in criminal law cases. A case-by-case approach results in an informant not knowing whether the promise will be kept until a judge engages in a retrospective assessment. This is hardly conducive to encouraging informants to risk their lives by coming forward to offer highly sensitive information in terrorism cases.
Informer privilege has been judicially recognized for more than two centuries and has a dual purpose: protection of a channel of information and the safety of those supplying it. It has been applied in settings other than criminal prosecutions, including commissions of inquiry. The privilege for informers in the context of state officials investigating matters of national security is a well-established one. Before CSIS was created as an independent agency, the intelligence function it now carries out was performed by the RCMP Security Service, and informer privilege applied to RCMP Security Service informants. While the functions of CSIS and the RCMP are distinct, the rationale for the informer privilege applies equally to the work of both. The transfer of functions from the RCMP Security Service to CSIS should have no bearing on whether the privilege continues to exist.
The CSIS informer privilege is not abrogated by statute. In order to abrogate a common law privilege, Parliament must clearly express an intention to do so. IRPA makes no reference to informer privilege and does not evince a clear intention to deprive CSIS informants of its benefit.
Given the intensity of the interests at stake in the security certificate context, it would be appropriate to recognize a limited exception specifically crafted for the security certificate process which would address only disclosure to the special advocate, not to the subject of the proceedings. Identity should be disclosed only if the reviewing judge is satisfied that other measures, including withdrawing the substance of the informant’s evidence from consideration in support of the certificate, are not sufficient to ensure a just outcome. Even when disclosure of identity is ordered, there should be no cross-examination of the source by the special advocate. Requiring a human source to testify will have a profound chilling effect on the willingness of other sources to come forward, and will undoubtedly damage the relationship between CSIS and the source compelled to testify. CSIS operatives must be able to provide confident assurances to their sources that their identities will not be revealed, not vague assurances hedged with qualifications. Moreover, the human sources themselves, who are not subject to the necessary security clearance, may learn sensitive material in the closed proceedings which CSIS will then be unable to control.
We would therefore allow the ministers’ appeal on the informant privilege issue and restore the designated judge’s disposition of this issue.
Cases Cited
By McLachlin C.J.
Referred to: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Bank Mellat v. H. M. Treasury, [2013] UKSC 38, [2013] 4 All E.R. 495; Almrei (Re), 2008 FC 1216, [2009] 3 F.C.R. 497; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110; Secretary of State for the Home Department v. A.F. (No. 3), [2009] UKHL 28, [2009] 3 All E.R. 643; Jaballah, Re, 2009 FC 279, 340 F.T.R. 43; Canada (Attorney General) v. Almalki, 2010 FC 1106, [2012] 2 F.C.R. 508; Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80; Almrei, Re, 2009 FC 322, 342 F.T.R. 11; Smith v. Jones, [1999] 1 S.C.R. 455; R. v. L. (D.O.), [1993] 4 S.C.R. 419; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326; R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594; R. v. La, [1997] 2 S.C.R. 680; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Bero (2000), 137 O.A.C. 336; R. v. J.G.B. (2001), 139 O.A.C. 341; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Stinchcombe, [1995] 1 S.C.R. 754; R. v. O’Connor, [1995] 4 S.C.R. 411; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
By Abella and Cromwell JJ. (dissenting in part on the appeal)
Bisaillon v. Keable, [1983] 2 S.C.R. 60; Rice v. National Parole Board (1985), 16 Admin. L.R. 157; Wilson v. National Parole Board (1985), 10 Admin. L.R. 171; Cadieux v. Director of Mountain Institution, [1985] 1 F.C. 378; A. v. Drapeau, 2012 NBCA 73, 393 N.B.R. (2d) 76; R. v. Leipert, [1997] 1 S.C.R. 281; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R. 389; R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347; Central Intelligence Agency v. Sims, 471 U.S. 159 (1985); Solicitor General of Canada v. Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario, [1981] 2 S.C.R. 494; Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326; R. v. Ahmad, 2009 CanLII 84776; R. v. Debot, [1989] 2 S.C.R. 1140; R. v. Garofoli, [1990] 2 S.C.R. 1421; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574.
Statutes and Regulations Cited
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 .
Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37 , 38 , 38.06(1) , (2) .
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 24(1) .
Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 12 .
Immigration Act, R.S.C. 1985, c. I-2 [repl. 2001, c. 27].
Immigration and Refugee Protection Act, S.C. 2001, c. 27 , Part 1, ss. 33, 34, Division 9, ss. 77 , 78 , 80 , 81 , 83(1) , (1.1) , 85.1 , 85.2 , 85.4 , 85.5 .
Authors Cited
Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. First Report. Security and Information. Ottawa: The Commission, 1979.
Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report. Freedom and Security under the Law, vols. 1 and 2. Ottawa: The Commission, 1981.
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: Public Works and Government Services, 2006.
Canada. Parliamentary Research Branch. “The Canadian Security Intelligence Service”, Current Issue Review 84-27E, revised January 24, 2000.
Forcese, Craig. “Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” (2009), 15:5 IRPP Choices 3.
Forcese, Craig. National Security Law: Canadian Practice in International Perspective. Toronto: Irwin Law, 2008.
Forcese, Craig, and Lorne Waldman. “Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of ‘Special Advocates’ in National Security Proceedings”, August 2007 (online: http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf).
Paciocco, David M. “When Open Courts Meet Closed Government” (2005), 29 S.C.L.R. (2d) 385.
Roach, Kent. “Sources and Trends in Post-9/11 Anti-terrorism Laws”, in Benjamin J. Goold and Liora Lazarus, eds., Security and Human Rights. Portland, Or.: Hart, 2007, 227.
Roach, Kent. “The eroding distinction between intelligence and evidence in terrorism investigations”, in Nicola McGarrity, Andrew Lynch and George Williams, eds., Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11. New York: Routledge, 2010, 48.
Schiff, Stanley. Evidence in the Litigation Process, vol. 2, 4th ed. Scarborough, Ont.: Carswell, 1993.
Sedley, Stephen. “Terrorism and security: back to the future?”, in David Cole, Federico Fabbrini and Arianna Vedaschi, eds., Secrecy, National Security and the Vindication of Constitutional Law. Cheltenham, U.K.: Edward Elgar, 2013, 13.
Stewart, Hamish. Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms. Toronto: Irwin Law, 2012.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 8. Revised by John T. McNaughton. Boston: Little, Brown, 1961.
APPEAL and CROSS-APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Létourneau and Layden-Stevenson JJ.A.), 2012 FCA 122, [2012] 3 F.C.R. 635, 349 D.L.R. (4th) 519, 7 Imm. L.R. (4th) 175, 429 N.R. 1, 260 C.R.R. (2d) 290, [2012] F.C.J. No. 492 (QL), 2012 CarswellNat 1155, setting aside three decisions of Noël J., 2009 FC 204, [2009] 4 F.C.R. 370, 339 F.T.R. 65, 306 D.L.R. (4th) 269, 78 Imm. L.R. (3d) 303, [2008] F.C.J. No. 1823 (QL), 2008 CarswellNat 5335; 2010 FC 1241, [2012] 3 F.C.R. 251, 380 F.T.R. 61, [2010] F.C.J. No. 1426 (QL), 2010 CarswellNat 4699; and 2010 FC 1243, 380 F.T.R. 255, 224 C.R.R. (2d) 167, 95 Imm. L.R. (3d) 1, [2010] F.C.J. No. 1428 (QL), 2010 CarswellNat 5848; and affirming a decision of Noël J., 2010 FC 1242, [2012] 3 F.C.R. 432, 380 F.T.R. 163, 224 C.R.R. (2d) 93, 94 Imm. L.R. (3d) 179, [2010] F.C.J. No. 1427 (QL), 2010 CarswellNat 4714. Appeal allowed in part, Abella and Cromwell JJ. dissenting in part. Cross-appeal dismissed.
Urszula Kaczmarczyk, Q.C., Robert Frater, Marianne Zoric and André Séguin, for the appellants/respondents on cross-appeal.
Matthew C. Webber, Norman D. Boxall, Meaghan Thomas and Leo Russomanno, for the respondent/appellant on cross-appeal.
Robert W. Hubbard and Greg Skerkowski, for the intervener the Attorney General of Ontario.
Nader R. Hasan and Gerald Chan, for the intervener the British Columbia Civil Liberties Association.
John Norris and François Dadour, for the intervener the Canadian Council of Criminal Defence Lawyers.
Anil K. Kapoor and Lindsay Trevelyan, for the intervener the Canadian Civil Liberties Association.
Lorne Waldman, Peter Edelmann, Jacqueline Swaisland and Clare Crummey, for the intervener the Canadian Bar Association.
Marlys A. Edwardh and Adriel Weaver, for the intervener the Canadian Association of Refugee Lawyers.
Barbara Jackman, Sharryn J. Aiken and Andrew J. Brouwer, for the interveners the Canadian Council for Refugees and the International Civil Liberties Monitoring Group.
Faisal Bhabha and Khalid M. Elgazzar, for the intervener the Canadian Council on American-Islamic Relations (now known as National Council of Canadian Muslims).
Michael Bossin, Laïla Demirdache and Anna Shea, for the intervener Amnesty International.
Breese Davies and Erin Dann, for the intervener the Criminal Lawyers’ Association (Ontario).
Paul J. J. Cavalluzzo and Paul D. Copeland, as Special Advocates.
The judgment of McLachlin C.J. and LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ. was delivered by
[1] The Chief Justice ― The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) seek to have Mohamed Harkat, a non-citizen, declared inadmissible to Canada. Mr. Harkat is alleged to have come to Canada for the purpose of engaging in terrorism. He has been detained, or living under strict conditions, for over a decade. He potentially faces deportation to a country where he may be at risk of torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal.
[2] The reasonableness of the ministers’ decision to declare Mr. Harkat inadmissible to Canada is subject to judicial review, under Division 9 of Part 1 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA scheme”). This scheme prevents Mr. Harkat from seeing some of the evidence and information tendered against him, because its public disclosure would harm national security.
[3] The issue in this appeal is whether the IRPA scheme complies with the Constitution, in particular the guarantee in the Canadian Charter of Rights and Freedoms against unjustifiable intrusions on life, liberty, and security of the person. More specifically, this appeal asks whether the IRPA scheme gives Mr. Harkat a fair opportunity to defend himself against the allegations made by the ministers, despite the fact that national security considerations prevent him from seeing the entire record and from personally participating in all of the hearings. It requires us to determine how far the principle of full disclosure in an open court can be qualified in order to address the threat posed by non-citizens who may be involved in terrorism.
[4] I conclude that that the IRPA scheme is constitutional. Crafting a regime that achieves a fundamentally fair process while protecting confidential national security information is a difficult task. The scheme must apply to a broad range of cases, implicating a variety of national security concerns. Parliament’s response to this challenge has been to confer on judges the discretion and flexibility to fashion a fair process, in the particular case before them. If this is impossible, judges must not hesitate to find a breach of the right to a fair process and to grant whatever remedies are appropriate, including a stay of proceedings.
[5] In the present case, the process was fair and the Federal Court judge committed no reviewable errors in finding that the ministers’ decision to declare Mr. Harkat inadmissible to Canada was reasonable.
I. History of the Legislation and of the Proceedings
A. The Legislation
[6] The purpose of the IRPA scheme “is to permit the removal of non-citizens living in Canada — permanent residents and foreign nationals — on various grounds, including connection with terrorist activities”: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (“Charkaoui I”), at para. 4. The ministers must decide whether the evidence against a non-citizen gives them reasonable grounds to declare him or her “inadmissible” to Canada — i.e. to issue a removal order. The resulting “certificate of inadmissibility” (also called a “security certificate”) is then referred to the Federal Court for a review of its reasonableness. If a Federal Court judge (the “designated judge”) finds the certificate to be reasonable, the non-citizen named in that certificate (the “named person”) becomes subject to a removal order.
[7] The IRPA scheme was adopted by Parliament in 2001, as a successor to an analogous scheme contained in the Immigration Act, R.S.C. 1985, c. I-2. In the wake of the attacks of September 11, 2001, it increasingly came to be used as a means of detaining suspected terrorists and eliminating the perceived threat posed by them: K. Roach, “Sources and Trends in Post-9/11 Anti-terrorism Laws”, in B. J. Goold and L. Lazarus, eds., Security and Human Rights (2007), 227, at p. 233. From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid. As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person. This information can nevertheless be presented to the designated judge in closed hearings and relied upon by her in assessing the security certificate’s reasonableness.
[8] The constitutionality of the IRPA scheme was challenged by Mr. Harkat and other non-citizens named in security certificates. In Charkaoui I, this Court found that the IRPA scheme deprived named persons of their life, liberty, and security of the person in a manner that was not in accordance with principles of fundamental justice, contrary to s. 7 of the Charter . It found that the IRPA scheme precluded the judge from making a decision based on all the relevant facts and law, because it did not provide for representation of the named person in the closed portion of the proceedings. It also held that the IRPA scheme violated the principle that a person must have the ability to know and meet the case against him, because there was not full disclosure of the government’s case to the named person or any substantial substitute for full disclosure.
[9] The Court concluded that these breaches could not be justified under s. 1 of the Charter , because the IRPA scheme did not minimally impair the named person’s rights. Other types of closed proceedings, both in Canada and abroad, accomplished the goal of protecting confidential national security information less intrusively. For example, in the United Kingdom, special advocates were appointed to receive disclosure on an appellant’s behalf and to defend his or her interests in closed hearings before the Special Immigration Appeals Commission. These special advocates were bound not to reveal confidential information to anyone or (subject to narrow exceptions) to communicate with the appellant. While that system was not without its drawbacks, this Court concluded that, “without compromising security, it better protects the named person’s s. 7 interests”: Charkaoui I, at para. 86.
[10] In response to this Court’s ruling, Parliament made several amendments to the IRPA scheme: 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; the amended IRPA scheme is reproduced in the Appendix to these reasons. In particular, it created a role for special advocates, who protect the interests of the named person in closed hearings after having received disclosure of the entire record.
B. The Proceedings
[11] In 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration issued a first security certificate declaring Mr. Harkat inadmissible to Canada on national security grounds. After the successful constitutional challenge and the amendment of the IRPA scheme, the ministers issued a second security certificate against Mr. Harkat and commenced new proceedings before the Federal Court.
[12] Disclosure issues arose during the proceedings with respect to the individuals (the “human sources”) who secretly provided information regarding Mr. Harkat to the Canadian Security Intelligence Service (“CSIS”). The special advocates sought to obtain disclosure of the identity of the CSIS human sources, as well as permission to interview and to cross-examine them in a closed hearing. Noël J. rejected this request. He reasoned that the common law police informer privilege, which is a rule against the disclosure of any information that might identify a police informer, should be extended to cover CSIS human sources: 2009 FC 204, [2009] 4 F.C.R. 370.
[13] At a later point during the disclosure process, it was discovered that the judge and the special advocates had been provided with an incomplete and misleading document regarding one of the CSIS human sources. The document provided to Mr. Harkat’s special advocates failed to disclose that a 2002 polygraph test conducted on the relevant source initially revealed him or her to be untruthful. As a remedy, Noël J. ordered the disclosure of unredacted human source files to the special advocates: 2009 FC 553, 345 F.T.R. 143; 2009 FC 1050, [2010] 4 F.C.R. 149.
[14] The special advocates also sought to compel the ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom Mr. Harkat was claimed to have associated. They were ultimately dissatisfied with the efforts undertaken by the ministers and sought a stay of proceedings. Noël J. rejected this request, finding that the ministers took reasonable steps to get updated information from foreign intelligence agencies: 2010 FC 1243, 380 F.T.R. 255, at Annex “A”.
[15] Mr. Harkat also sought to have the summaries of intercepted conversations excluded from the evidence on the ground that the original recordings and notes of these conversations, in which he allegedly participated or in which he was allegedly a subject of conversation, were destroyed pursuant to CSIS policy OPS-217. Alternatively, he sought a stay of proceedings in consideration of a number of breaches. Noël J. found that Mr. Harkat suffered no prejudice from the destruction of those original operational materials: 2010 FC 1243. He reasoned that the summaries of the conversations were prepared in a way that ensured their accuracy, and that they were corroborated by the overall narrative about Mr. Harkat which emerged during the hearings. Consequently, he refused to exclude them from the evidence against Mr. Harkat.
[16] Finally, Mr. Harkat challenged the constitutionality of the amended IRPA scheme. Noël J. found the regime to be constitutional: 2010 FC 1242, [2012] 3 F.C.R. 432. In his view, the special advocates provided a substantial substitute for full disclosure to Mr. Harkat and vigorously defended his interests during the closed portion of the proceedings.
[17] After consideration of evidence tendered in both public and closed hearings, Noël J. came to the conclusion that the certificate declaring Mr. Harkat inadmissible to Canada was reasonable: 2010 FC 1241, [2012] 3 F.C.R. 251. He made adverse findings of credibility against Mr. Harkat and found that the evidence provided reasonable grounds to believe that Mr. Harkat had been involved with terrorist organizations. He held that Mr. Harkat’s behaviour and lies were consistent with the theory that he had come to Canada as a “sleeper” agent for terrorist organizations.
[18] Mr. Harkat appealed Noël J.’s conclusions. The Federal Court of Appeal (per Létourneau J.A.) allowed the appeal in part: 2012 FCA 122, [2012] 3 F.C.R. 635. It agreed with Noël J.’s conclusion that the amended IRPA scheme is constitutional. However, it found that the identity of CSIS human sources is not protected by privilege. It also excluded from the evidence the summaries of intercepted conversations to which Mr. Harkat had not been privy. It remitted the matter to Noël J. for redetermination on the basis of what remained of the record after the exclusion of the summaries.
II. Issues
[19] The ministers appeal to this Court, seeking the reinstatement of Noël J.’s conclusion that the security certificate was reasonable. They also ask for recognition of the CSIS human source privilege.
[20] Mr. Harkat cross-appeals. He asks this Court to find the amended IRPA scheme uncon