Canada (Attorney General) v. Charkaoui

Canada (Attorney General) v. Charkaoui
Court (s) Database
Federal Court Decisions
Date
2018-08-21
Neutral citation
2018 FC 849
File numbers
DES-1-15
Decision Content
TOP SECRET
Date: 20180821
Docket: DES-1-15
Citation: 2018 FC 849
[ENGLISH TRANSLATION]
Ottawa, Ontario, August 21, 2018
PRESENT: The Honourable Madam Justice Gagné
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Applicant
and
ADIL CHARKAOUI, PERSONALLY AND IN HIS CAPACITY AS LITIGATION GUARDIAN OF HIS THREE CHILDREN
Respondent
PUBLIC VERSION OF THE AMENDED CONFIDENTIAL JUDGMENT AND REASONS
(FOLLOWING THE DISCONTINUANCE OF THE
APPEALS IN A-268-18 AND A-366-18)
I. Introduction
[1] Before me is an application filed by the Attorney General of Canada [AGC] under section 38.04 of the Canada Evidence Act, RSC 1985, c C-5 [CEA]. The AGC is asking the Court to confirm the statutory prohibition of the disclosure of some information that is sensitive or potentially injurious to international relations, national defence or national security [collectively the “classified information”].
[2] The AGC’s application is part of a civil liability action commenced by Adil Charkaoui, personally and in his capacity as litigation guardian of his three children [collectively “the respondents”]. The respondents are seeking remedies, under the Civil Code of Québec, CQLR c CCQ-1991 and under subsection 24(1) of the Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c 11) [Charter], for damages allegedly caused by the wrongdoings of some servants of the Crown.
[3] In short, the respondents claim that the Canadian government and its servants committed a number of wrongful acts during the security investigation conducted against Mr. Charkaoui, during his arrest and detention, as well as during the preparation, signature and enforcement of security certificates issued against him in 2003 and in 2008, in violation of the respondents’ constitutional rights.
[4] The action was commenced in 2011 before the Quebec Superior Court, in the district of Montreal, under file number 500-17-056510-103, and was under special case management by the Honourable Louis Lacoursière, J.S.C. [underlying proceeding].
[5] In his judgment on the motion to quash subpoenas duces tecum rendered in November 2013 (Charkaoui v Canada (Attorney General), 2013 QCCS 7132), Justice Lacoursière had predicted that his decision would likely result in the AGC applying to this Court for the exercise of the exclusive jurisdiction over any national security privilege issues that the CEA confers upon the AGC.
[6] However, it was not until January 2015 that the Court received the notice of application from the AGC, seeking to obtain directions pursuant to subsection 38.04(5) of the CEA.
[7] These reasons follow public hearings held in the presence of Mr. Charkaoui, as well as in camera hearings in the presence of counsel for the AGC and the amici curiae. After having considered all of the evidence submitted and arguments made in writing and as part of the aforementioned hearings, and after having applied the test confirmed by the Federal Court of Appeal in Ribic v Canada (Attorney General), 2003 FCA 246, [2005] 1 FCR 33 [Ribic] (I will elaborate further on this test later), I find as follows:
(1) The application by the AGC under section 38.06(3) of the CEA is allowed in part.
(2) The Court authorizes the disclosure of the information identified in Annex B, in application of subsection 38.06(1).
(3) The Court also authorizes, in application of subsection 38.06(2) of the CEA, the disclosure of information in the form of summaries or statements of fact, regardless of whether or not they were the result of an agreement between counsel for the AGC and the amici curiae, in accordance with these reasons and in the proposed form. These are the documents listed and summaries contained in Annex C.
(4) Lastly, the Court confirms, in application of subsection 38.06(3) of the CEA, the prohibition on the disclosure of information for which no summaries have been proposed—regardless of whether or not the prohibition was challenged by the amici curiae, in accordance with these reasons. This information is contained in the documents listed in Annex D.
II. Facts and procedural history
[8] Mr. Charkaoui is of Moroccan origin. He arrived in Canada in January 1995 with his parents and sister and was admitted as a permanent resident.
[9] Toward the end of the 1990s, Mr. Charkaoui caught the attention of the Canadian Security Intelligence Service [CSIS] as a result of his contact with Abdella Ouzghar, Ahmed Ressam, Abousofian Abdelrazik, Samir Ait Mohammed, Raouf Hannachi, Karim Said Atmani and ||||||||||||||||||||||||||||||, all of whom were suspected by CSIS of having ties to Islamic extremism.
[10] In 1999, Mr. Charkaoui filed his first citizenship application.
[11] Shortly after he filed the application, CSIS began an investigation pursuant to section 12 of the Canadian Security Intelligence Service Act [CSIS Act] into Mr. Charkaoui’s activities.
[12] On May 16, 2003, the Minister of Citizenship and Immigration and the Solicitor General of Canada, now the Minister of Public Safety and Emergency Preparedness [collectively “the Ministers”], signed and filed with the Federal Court the first security certificate against Mr. Charkaoui [2003 certificate].
[13] At the time, the Ministers were of the opinion that Mr. Charkaoui should be inadmissible to Canada for having been or being a member of Osama bin Laden’s network, an organization that engages, has engaged or will engage in acts of terrorism. As such, they had grounds to believe that Mr. Charkaoui has engaged, is engaged, or will engage in terrorism , and that Mr. Charkaoui has been, is, or will be a danger to the security of Canada (see paragraphs 34(1)(c),(d) and (f) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]).
[14] On May 21, 2003, an arrest warrant issued against Mr. Charkaoui was executed and he was detained. Justice Simon Noël of this Court was designated by the Chief Justice to review the reasonableness of the security certificate in application of the scheme of the IRPA at the time.
[15] On June 25, 2003, Mr. Charkaoui (and Hassan Almrei and Mohamed Harkat) filed a motion to have Division 9 of Part 1 of the IRPA declared unconstitutional. It was this issue that was the subject of the first decision of the Supreme Court of Canada in Charkaoui v Canada (Citizenship and Immigration) 2007 SCC 9 [Charkaoui I], which will be discussed later.
[16] In July 2003, Mr. Charkaoui’s counsel filed a pre-removal risk assessment [PRRA] application with the Ministers. The filing of this application resulted in the automatic suspension of the review of the reasonableness of the security certificate.
[17] The PRRA application was initially rejected but when the Court learned that Mr. Charkaoui was the subject of an arrest warrant issued by Moroccan authorities, it set aside the decision and referred it back for redetermination.
[18] On three occasions in the course of the years 2003 and 2004, Mr. Charkaoui attempted, in vain, to secure his release from detention.
[19] However, during an in camera hearing held on January 5, 2005, the judge was informed by the Ministers’ counsel that they had recently learned of a document that should have been disclosed to Mr. Charkaoui at the start of the proceedings but that inadvertently was not disclosed. It was a summary of two interviews of Mr. Charkaoui by one or more CSIS officers, held on January 31 and February 2, 2002. The judge ordered the immediate disclosure of this summary, which reads as follows:
[TRANSLATION]
INTRODUCTION
Adil CHARKAOUI was seen on 2002 01 31 and 2002 02 02. On the first contact, CHARKAOUI said he was prepared to clarify point by point what the Service might hold against him. He said he was prepared to undergo a polygraph, although he made fun of that tool. On the second contact, CHARKAOUI reverted to his defensive mode, saying he was being persecuted by the authorities, by the Service. Saying he has never done anything wrong, he refutes our allegations to the effect that some accused such as RESSAM had recognized him. He says this time that he refuses to undergo a polygraph and storms out. CHARKAOUI left many points unsettled, for example: CHARKAOUI says he never went to Afghanistan, but he admits he went to Pakistan, without indicating what he was doing there. Failing any second thoughts and a change in attitude, CHARKAOUI did not leave us under the impression that he would meet the Service again.
[20] Counsel for Mr. Charkaoui subsequently argued that the non-disclosure of this summary in a timely manner, along with the destruction of the investigators’ notes and recordings of the interviews (if any), resulted in prejudice to Mr. Charkaoui.
[21] At the ex parte hearing on January 5, 2005, counsel for the Ministers also filed new allegations against Mr. Charkaoui on the basis of information that was not part of the record at the time the Ministers signed the 2003 certificate. The allegations concern Mr. Charkaoui’s alleged involvement in events that occurred in Morocco, among other things.
[22] On January 6, 2005, Justice Noël provided a summary of this new information to Mr. Charkaoui, which stated the following:
— The investigation concerning Mr. Charkaoui is ongoing;
— The Moroccan authorities have identified Mr. Charkaoui as being a member of the Groupe islamique combattant marocain (GICM) [Moroccan Islamic Combatant Group];
— The GICM is a group linked to Al‑Qaida and is allegedly responsible for the attacks of May 16, 2003, in Casablanca and of March 11, 2004, in Madrid;
— During a trip to Afghanistan in early 1998, Mr. Charkaoui is alleged to have taken military training and theological training in the Sharia institute at Khalden;
— The emir of the GICM, Nourreddine Nafia, who is being held in Morocco, reveals that Mr. Charkaoui was indoctrinated by a Libyan imam;
— Some funds have allegedly been collected in order to establish cells in Canada, Pakistan, Germany, France and the United Kingdom;
— Mr. Charkaoui has maintained contact with and allegedly sent CAN$2,000 to the GICM and allegedly gave a laptop computer to a member of the GICM.
[23] On January 10, 2005, Mr. Charkaoui filed a motion for the exclusion of this new evidence. He asked to be provided with the complete notes of the interviews conducted by CSIS, as well as with the recordings of those interviews.
[24] In response to this request for disclosure, the Ministers informed the judge that that was impossible because there were no recordings of the interviews and because the notes of CSIS investigators are systematically destroyed once a report is finalized, in accordance with internal policy OPS-217.
[25] Mr. Charkaoui then filed a motion for a stay of proceedings to have the 2003 certificate quashed and to obtain his release and, alternatively, to have the new evidence filed by the Ministers excluded. Mr. Charkaoui challenges, in particular, CSIS’s operational policy (OPS‑217) concerning the management of operational notes, the retention of evidence and the destruction of interview notes by officers who conduct interviews.
[26] The hearing for the fourth review of Mr. Charkaoui’s detention was held on February 7, 2005, and on the 17th of the same month, Mr. Charkaoui was granted a conditional release, with strict conditions.
[27] Justice Noël dismissed, however, the request for the exclusion of the summary of the additional information. He informed Mr. Charkaoui’s counsel that he attempted to verify the reliability of this information during a hearing held without their presence or that of Mr. Charkaoui. He added the following: [translation] “Furthermore, the information contained in this report, including the references in support of it, is corroborated by other means and (or) sources”. Being unable to confirm whether or not the new facts were obtained by hearsay, he noted that paragraph 78(j) of the IRPA allows judges to receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, if it would be of assistance to the designated judge in the assessment of the facts submitted.
[28] The Federal Court of Appeal dismissed the appeal filed by Mr. Charkaoui, but the Supreme Court allowed his appeal (Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 [Charkaoui II]).
III. Supreme Court decisions (Charkaoui I and Charkaoui II)
[29] In Charkaoui I, the Supreme Court examined the constitutionality of the procedures for determining whether a security certificate is reasonable and for reviewing the detention of the person concerned. It found that they fail to assure the fair hearing that section 7 of the Charter requires and that this infringement was not justified under section 1 of the Charter. While the protection of Canada’s national security and of security intelligence sources constitutes a pressing and substantial objective, and the non-disclosure of evidence at hearings is rationally connected to this objective, the IRPA does not minimally impair the rights of persons named in security certificates. Certain less intrusive alternatives developed in Canada and abroad, notably the use of special advocates to act on behalf of the named persons, show that it is possible to protect individuals while keeping classified information confidential.
[30] The Court struck down certain provisions of the IRPA and suspended the effects of its judgment for one year in order to allow Parliament to amend the IRPA. Shortly before the end of that year, Parliament adopted An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, SC 2008, c 3 [Bill C-3]. Bill C-3 came into force on February 22, 2008.
[31] In Charkaoui II, the Supreme Court considered the following issues:
(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?
[32] The Court allowed Mr. Charkaoui’s appeal in part and found, first, that the judicial review the Court had before it related to the security certificate on an ongoing basis and that the review of its reasonableness relied on all of the evidence, including the evidence that arose after the Ministers signed the certificate. However, although it refused to stay proceedings at the preliminary stage, the Supreme Court declared that the destruction of CSIS officers’ personal notes breached CSIS’s general duty to retain and disclose security intelligence. It also recognized CSIS’s duty to disclose Mr. Charkaoui’s entire file to the designated judge called upon to review the reasonableness of the certificate and, after the judge filtered it, to Mr. Charkaoui and his counsel.
IV. Federal Court decision on the second security certificate
[33] A number of comments are in order with regard to the Federal Court’s decision (Charkaoui (Re), 2009 FC 1030 [Charkaoui FC]) on the second security certificate [2008 certificate].
[34] On February 22, 2008, when Bill C-3 came into force, the Ministers issued a second security certificate against Mr. Charkaoui under section 77 of the IRPA and the new statutory scheme.
[35] Justice Tremblay-Lamer, then of this Court, was designated by the Chief Justice to manage the case. She appointed François Dadour (as he then was) and Denis Couture as special advocates.
[36] At the start of proceedings, the Ministers acknowledged that they owed a duty to disclose evidence in support of the 2008 certificate, a duty that was adapted to national security requirements.
[37] In September 2008, in response to an order of the Court, the Assistant Director of Intelligence at CSIS confirmed that, to the best of his knowledge, CSIS had disclosed all of the relevant information and other evidence that could be disclosed to Mr. Charkaoui without causing injury to national security or endangering the safety of any person.
[38] Justice Tremblay-Lamer required the Ministers to tell Mr. Charkaoui whether the original evidence had been retained or not, in response to the position expressed by the Supreme Court in Charkaoui II. After hearing the arguments of the special advocates and the Ministers’ counsel, she found that the disclosure of certain evidence would not be injurious to Canada’s national security or endanger the safety of any person, and issued disclosure orders to that effect.
[39] Disagreeing with the Court’s findings, the Ministers withdrew the information and evidence, which paragraph 83(1)(j) of the IRPA enables them to do.
[40] The Ministers then acknowledged that in their view, the evidence that remained in the file was not sufficient to meet their burden of showing that the security certificate was reasonable.
[41] The Ministers nonetheless asked the Court to make a determination on the reasonableness of the certificate and in so doing, to certify a question of general importance. The avowed purpose of that was to appeal the disclosure order before the Federal Court of Appeal and, at a later date, reintroduce key information in support of the 2008 certificate into evidence, without having to disclose it to Mr. Charkaoui.
[42] The Court concluded, however, that the question proposed by the Ministers (which pertained to the legitimacy of a judicial balancing of national security against procedural fairness) did not meet, in abstracto, the criteria of the IRPA or of the jurisprudence of the Federal Court of Appeal and refused to certify it.
[43] Given the Ministers’ admission as to the insufficiency of the remaining evidence to justify the reasonableness of the 2008 certificate, the Court declared the certificate ultra vires the Ministers’ powers and void.
[44] It follows from the foregoing that neither of the security certificates issued against Mr. Charkaoui has been reviewed by this Court.
[45] In addition, the duty to disclose information leading to the issuance of security certificates, which the IRPA imposes and which was analyzed by the Supreme Court in Charkaoui II and by this Court in Charkaoui FC, does not apply in cases in which, as in this one, the scheme of section 38 of the CEA is in issue. As we shall see later, the applicable test is different and the interests at issue are not the same.
[46] I must therefore proceed with an analysis of the security intelligence and of the interests at issue before me, separate from any prior analysis.
V. Underlying proceeding
[47] I agree with Justice Lacoursière’s observation in Charkaoui v Canada (Attorney General) 2013 QCCS 7132, at paragraph 19, where he states that it was difficult to centre on the issue in the underlying proceeding because the specified re-amended motion to institute proceedings, much like the AGC’s defence, was extremely broad.
[48] That said, Mr. Charkaoui denounced [translation] “fundamental flaws in how the evidence against him was gathered and disclosed and the respondents’ negligence and bad faith throughout the entire process”, among other things.
[49] It is important to note that the underlying proceeding is governed by the Code of Civil Procedure, CQLR c C-25.01, which provides that, aside from exhibits a party chooses to disclose in support of a pleading, the purpose of an examination for discovery may be to disclose documents relevant to the proceeding. In other words, there is no general obligation to disclose all documents relevant to a proceeding that were not requested by the opposing party.
[50] In a subpoena duces tecum sent to the AGC, Mr. Charkaoui sought disclosure of the following documents:
[TRANSLATION]
. . .
1- The recordings of telephone interceptions that Mr. Charkaoui participated in and that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security.
2- Any recordings of communications that Mr. Charkaoui participated in and that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security.
3- Any notes, summaries or reports of interceptions or recordings that Mr. Charkaoui participated in and that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security.
4- All recordings of telephone interceptions, additional information on conversations, notes, summaries or reports of said interceptions or in relation to those interceptions or communications contained in CSIS or CBSA files on Mr. Charkaoui, that were filed in support of the certificates;
5- Any surveillance report regarding Adil Charkaoui that were filed in support of the certificates, Justice Tremblay-Lamer’s order dated March 18, 2009, item 5, EXHIBIT P 76 having already determined that the disclosure of their contents would not be injurious to national security and with respect to which it was determined that their disclosure would not be injurious to national security or endanger the safety of any person (Justice Tremblay‑Lamer’s judgment dated October 14, 2009, para. 14, Exhibit P-6);
6- All recordings of communications interceptions or recordings of conversations that Mr. Charkaoui participated in, Justice Tremblay-Lamer’s order dated March 18, 2009 (item 5, EXHIBIT P 76) having already determined that their disclosure would not be injurious to national security.
7- Any notes, summaries or reports of interceptions or existing recordings in CSIS’s files on Mr. Charkaoui, Justice Tremblay‑Lamer’s order dated March 18, 2009 (item 5, EXHIBIT P 76) having already determined that the disclosure of their contents would not be injurious to national security.
8- Any surveillance reports regarding Adil Charkaoui, the Honourable Justice Tremblay-Lamer’s order dated March 18, 2009 (item 5, EXHIBIT P 76) having already determined that the disclosure of their contents would not be injurious to national security or the safety of a person, (Justice Tremblay-Lamer’s judgment dated October 14, 2009 (para. 14, Exhibit P-6);
9- Any EVIDENCE WITHDRAWN in support of the certificate concerning the interceptions, as documented on May 11, 2009, in a communication of Justice Tremblay-Lamer, Exhibit P-82, last paragraph, and in respect of which it was determined that the disclosure of the contents would not be injurious to national security or endanger the safety of any person (Justice Tremblay-Lamer’s judgment dated October 14, 2009, para. 14, Exhibit P-6);
10- In the event of destruction, the list of everything that was destroyed and the date of destruction;
11- In the event of the destruction of one of the aforementioned documents or exhibits, the description of the document or exhibit destroyed, the date of the document or exhibit, the nature of the document or exhibit, the identification of the persons involved and the date of destruction;
. . .
[51] In Charkaoui v Canada (Attorney General), 2013 QCCS 7132, Justice Lacoursière, hearing a motion from the AGC to quash the subpoenas, stated that he was of the opinion that at that stage of the proceedings, it appeared to him that most of the documents, with the exception of those listed in paragraph 7, were relevant and that their disclosure had to be favoured as they seemed useful, appropriate and likely to contribute to advancing the debate.
VI. Refusal to disclose on the basis of national security privilege
[52] In a public affidavit by a senior paralegal with the National Security Group [NSG] of the Department of Justice of Canada, the process for classifying security intelligence was explained.
[53] The senior paralegal stated that the NSG is the central coordinating office for processes governed by section 38 of the CEA and that its mandate includes, but is not limited to: (a) receiving all notices to the AGC under section 38 of the CEA; (b) reviewing all national security grounds raised by the departments and agencies concerned and, if necessary, the grounds on which that privilege is challenged; (c) recommendations to the AGC with respect to the disclosure, in whole or in part, of the information for which a notice has been filed and, where applicable, with respect to the form and conditions of such disclosure.
[54] The affidavit describes the process common to all files for which national security privilege is invoked in the course of a proceeding, including the review of documents identified at the production of documents stage. Depending upon the specifics of the file, the process may begin before or after formal notice has been given under section 38 of the CEA. It includes the following steps:
— First, documents produced by a department or agency and for which national security privilege has been claimed are identified, then justification in support of the privilege invoked is provided to a paralegal, who then redacts the confidential portions one at a time. Redacted text is highlighted, with the colours of the highlighters indicating the reasons for the redaction.
— After a quality control of this first stage, a NSG legal advisor examines the justifications cited in order to ensure that the information is not already in the public domain and that the privilege claimed is consistent with the case law. Legal advisors and paralegals also ensure that a consistent approach is adopted across departments and agencies.
— If applicable, the legal advisors challenge certain justifications given by the departments and agencies.
— The NSG then produces a draft of the redacted documents and provides this to all of the departments and agencies concerned for final review and approval.
— The legal advisor prepares and submits a recommendation to the AGC or his or her delegate, who ultimately has the authority to decide whether or not to disclose the non‑redacted information.
— The final documentation is then prepared and produced by the NSG.
[55] The review of the various grounds for invoking national security privilege sometimes requires several readings of the same document and a weighing of each word so as to ensure accuracy and consistency in the handling of classified information. Such information must be handled in a way that minimizes any risks of injury to national security, particularly through inadvertence.
[56] The RCMP, CSIS and Global Affairs are the main departments and agencies that sought the protection of confidential information in this case. However, the NSG also consulted with three other federal agencies that participated in the review of the documents produced before the Court, namely, Citizenship and Immigration Canada, Public Safety and Emergency Preparedness, and the Canada Border Services Agency.
[57] In January 2015, the AGC estimated that more than 7,500 hours would be needed to review the 1,283 documents (7,562 pages) and 434 audio tapes produced in the underlying proceeding, in addition to the time needed to prepare the documentation to submit to this Court for the purposes of this application.
[58] However, that estimate and the schedule initially set had to be revised several times during the proceeding because of, in particular, changes in counsel in charge of the file at the NSG and difficulties in finding a translator who could translate Arabic into French who had the required security clearance and who was available to work the number of hours necessary to translate the audio tapes.
VII. Nature of the documents and audio tapes identified in the notices to the AGC
[59] The documents identified in this application may be divided into a number of categories.
[60] There are the security intelligence reports [SIRs] drafted by CSIS as part of the security certificate and inadmissibility proceedings in 2003 and 2008. These documents set out the allegations and evidence used as a basis for both proceedings.
[61] There are the operational reports generated by a bibliographical research computer system (Bibliographical Reference System), commonly referred to as the BRS reports. The reports describe the source and the contents of the information gathered during the CSIS investigation into Mr. Charkaoui, his associates and other people of interest to CSIS.
[62] There are also corporate documents such as directives and pieces of correspondence of CSIS, as well as documents from the RCMP such as notes, reports and various communications.
[63] With respect to the 434 audio tapes that are the subject of this application, the AGC submits that these were obtained through warrants issued by this Court as part of the CSIS investigation. With the help of the BRS reports, the amici curiae identified which of these audio tapes seemed relevant to the underlying proceeding. The audio tapes were translated from Arabic into French and their transcripts were submitted to the Court.
VIII. Appointment of the amici curiae
[64] Although the appointment of amici curiae in a proceeding governed by section 38 of the CEA is completely at the Court’s discretion, I consulted the parties to obtain their suggestions.
[65] Mr. Charkaoui suggested retaining the services of Denis Couture, one of the two lawyers who had acted as a special advocate for the 2008 certificate. The AGC initially objected to the appointment, citing a potential conflict of interest or, at the very least, a conflict between the role of a special advocate appointed in the context of a review of the reasonableness of a security certificate and that of an amicus curiae appointed in a proceeding governed by section 38 of the CEA.
[66] It was not necessary for me to make a determination in the issue given that the parties accepted, during a case management conference held on November 5, 2015, the Court’s suggestion to appoint two amici curiae, Denis Couture and Pierre Champagne. The first had prior experience with this case and the second could take a fresh look at the case.
[67] Before being given access to the documents submitted for review by the Court, Mr. Champagne met with Mr. Charkaoui to discuss the position that the applicants (the respondents before me) argued in favour of in the underlying proceeding and to guide to the amici in reviewing the documentation at issue in this application.
IX. Public hearing of the AGC’s application
[68] Mr. Charkaoui cross-examined the signatories of the three public affidavits produced in support of the AGC’s application, namely, a representative of the RCMP, a representative of Global Affairs, and a representative of CSIS.
[69] Mr. Charkaoui participated in a public hearing held in Montreal on April 27, 2016, and in a number of case management conferences. He is not represented before this Court and, to my knowledge, he is now unrepresented before the Quebec Superior Court. This situation has had a certain impact on the unfolding of the proceeding, notably when the respondents sought an interim costs order.
[70] At the public hearing, the AGC provided an overview of the documentation produced. The AGC explained that the 719 documents produced in response to Justice Lacoursière’s order are documents that were before Justice Tremblay-Lamer during the review of the reasonableness of the 2008 certificate.
[71] The other 564 documents were produced in support of the AGC’s defence in the underlying proceeding.
[72] All of the documents were disclosed to Mr. Charkaoui in their redacted form.
[73] In addition to these documents and the 434 audio tapes that are the subject of this application, there are 902 audio tapes that contain no classified information, which were provided to Mr. Charkaoui in January 2014.
X. Legislation
[74] Section 38 of the CEA contains a complex and comprehensive code governing the use and protection of “sensitive” or “potentially injurious” information. These terms are defined as follows in the CEA:
“potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security.
“sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.
[75] The section establishes a procedure whereby classified information may be protected from disclosure before a court, person or body with the jurisdiction to compel production. In such a circumstance, notice is to be given to the Attorney General (section 38.01) who may at any time authorize disclosure of all or part of the information (section 38.03). Where the Attorney General does not authorize disclosure or enter into an agreement for partial or conditional disclosure, the Attorney General may seek an order before this Court confirming the prohibition on disclosure (section 38.04).
[76] The relevant provisions of the CEA (sections 38, 38.01, 38.03, 38.031, 38.04, 38.06, 38.07, 38.11 and 38.14) are reproduced in Annex A for ease of reference. In addition, references to section 38 in this judgment encompass sections 38 to 38.15 of the CEA.
XI. Issues
[77] The issues raised in this application are whether, with respect to each of the claims to protect information,
the prohibition on disclosure should be confirmed pursuant to subsection 38.06(3) of the CEA;
the information should be disclosed subject to the imposition of conditions to limit the injury to international relations, national defence or national security pursuant to subsection 38.06(2) of the CEA;
the information should be disclosed pursuant to subsection 38.06(1) of the CEA.
XII. The law
[78] In Ribic, the Federal Court of Appeal set out the three-pronged test specific to an analysis of an application filed pursuant to section 38 of the CEA. The first task of the Court is to determine whether the information for which disclosure is sought is relevant.
[79] If the judge finds the information to be relevant, the judge must determine whether its disclosure would be injurious to international relations, national defence or national security.
[80] If the answer to the second question is also positive, the Court then engages in the exercise of balancing the interests in issue.
(1) First step: relevance
[81] Given that the documents under review were all disclosed as part of the underlying proceeding, in accordance with Justice Lacoursière’s order or in support of the AGC’s defence, the AGC acknowledges that they are relevant to the debate before the Superior Court. Obviously, this does not mean that all of the information contained in the 1,700 documents under review is equally or similarly relevant, or that it necessarily favours either party’s case. The degree of relevance of each piece of information remains an element to consider at the stage where the interests in issue are being weighed.
[82] Given that the underlying proceeding in Ribic was a criminal matter, the Federal Court of Appeal referred to, for the relevance analysis, the Supreme Court’s decision in R v Stinchcombe, [1991] 3 SCR 326, and pointed out that the threshold was low.
[83] In this case, one must look to Quebec civil law for the concept of relevance. The Civil Code of Québec states that “[e]vidence of any fact relevant to a dispute is admissible” (article 2857). The Code of Civil Procedure stipulates that a party “may allege any material facts, even material facts that have arisen since the application was instituted” (article 170, first paragraph). Evidence is deemed relevant where it relates to a fact in dispute. For an applicant, a fact is relevant where it is necessary to prove the right claimed. For a respondent, any fact necessary to prove a means of challenging the application is relevant. At the discovery stage, the relevance requirements are less stringent. The concept of relevance is applied with more flexibility and the court must encourage [translation] “the fullest possible disclosure of evidence” (Jean-Claude Royer and Catherine Piché, La preuve civile, 5th edition (Montreal: Éditions Yvon Blais, 2016) pp. 151, 156).
(2) Second step: injury to international relations, national defence or national security
[84] This second step in the Ribic test consists in determining whether the disclosure of information deemed relevant would be injurious to international relations, national defence or national security. The Court must consider the parties’ submissions and their supporting evidence. The review conducted by the AGC must be based on facts established by the evidence (Ribic at para 18). Although the burden of such a demonstration rests with the AGC, the Court must show a certain degree of deference to the AGC’s review of the matter. In short, the AGC assumes a protective role with respect to the security and safety of the public and if the AGC’s assessment of the injury is reasonable, the Court must accept it (Ribic at para 19).
(3) Third step: the weighing of the interests in issue
[85] The burden of proof then shifts to the party seeking disclosure of the information to prove that the public interest in disclosure outweighs in importance the public interest in non‑disclosure. Where appropriate, the Court may authorize the disclosure of information under conditions and in a form that are most likely to limit any injury (Ribic at para 21; Canada (Attorney General) v Almalki, 2011 FCA 199 at para 13 [Almalki FCA]).
[86] In the context of civil litigation that does not involve any habitual violations of rights guaranteed under the Charter, public interest, other than the right to seek redress before the courts, is rarely in issue. It is generally the interests of the party seeking disclosure that are in issue. It then becomes more difficult to counterbalance the public interest in protecting international relations, national defence or national security (Canada (Attorney General) v Almalki, 2010 FC 1106 at para 184 [Almalki FC], rev’d on other grounds in Almalki FCA). The burden is significant and the information sought must be capable of establishing a fact crucial to the case (Pereira E Hijos SA v Canada (Attorney General), 2002 FCA 470 at para 18).
[87] Where a number of years have passed between the investigation and the request for disclosure, the need to protect information may lose its significance (Almalki FC at para 71).
[88] Moreover, when weighing the interests at stake, relevance alone is not enough to tip the scales in favour of disclosure. Each piece of information must be reviewed and the Court must determine which factors it deems necessary to consider in the circumstances (Canada (Attorney General) v Khawaja, 2007 FC 490, (2007) 312 FTR 217, at para 93 [Khawaja]). Among the factors deemed to be relevant by this Court in Khan v Canada (Minister of Citizenship and Immigration), (1996) 1 FTR 81 [Khan], at paragraph 26, we find:
1. the nature of the public interest sought to be protected by confidentiality;
2. whether the evidence in question will probably establish a fact crucial to the defence;
3. the seriousness of the c