Harkat v. Canada (Citizenship and Immigration)

Harkat v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court of Appeal Decisions
Date
2012-04-25
Neutral citation
2012 FCA 122
File numbers
A-76-11
Notes
Reported Decision
Decision Content
Federal Court of Appeal
Cour d'appel fédérale
Date: 20120425
Docket: A-76-11
Citation: 2012 FCA 122
CORAM: BLAIS C.J.
LÉTOURNEAU J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
MOHAMED HARKAT
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
Heard at Ottawa, Ontario, on February 21, 22 and 23, 2012.
Judgment delivered at Ottawa, Ontario, on April 25, 2012.
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: BLAIS C.J.
LAYDEN-STEVENSON J.A.
Federal Court of Appeal
Cour d'appel fédérale
Date: 20120425
Docket: A-76-11
Citation: 2012 FCA 122
CORAM: BLAIS C.J.
LÉTOURNEAU J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
MOHAMED HARKAT
Appellant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION and
THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS
Respondents
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] For ease of consultation and convenience of the reader, I insert the following table of contents.
Table of Contents
Paragraph
Issues on Appeal 2
Facts and procedural history giving rise to the appeal 11
Paragraph
Summary of the judge’s decisions 24
A. The Privilege Decision 25
B. The Reasonableness Decision 29
C. The Constitutionality Decision 38
D. The Abuse of Process Decision 48
Issues 54
The standard of review 55
Some key elements relevant to the constitutionality of the current scheme under the Act 56
Analysis of the judge’s decisions and the parties’ contentions 69
A. The constitutionality of the current system 70
a) Legislative and judicial failure to comply with the section 7
fairness test 73
b) The restrictions on disclosure
(i) Whether summaries of confidential information amount
to inadequate disclosure 83
(ii) Whether the protection of the identity of human sources
contributes to render the whole scheme unconstitutional 86
(iii) The Third Party rule, the admissibility of hearsay
evidence and the right to cross-examination 106
(iv) The restrictions on the special advocates’ right to
communicate with the appellant 113
c) Conclusion 117
Paragraph
B. Whether subsections 77(2), paragraphs 83(1)(c), (d), (e) and (i),
subsection 85.4(2) and paragraph 85.5(b) of the Act are saved by
section 1 of the Charter 121
C. The destruction of the original notes of conversations and the
appropriate remedy under subsection 24(1) of the Charter 122
a) The prejudicial effect of the destruction 123
b) The judge’s finding that the destruction of the original
conversations did not cause a prejudice to the appellant 126
(i) Whether there was a violation of section 7 of the Charter 129
(ii) Review of the judge’s finding of lack of prejudice 132
(iii) The appropriate remedy 140
c) Conclusion 144
D. Whether the appellant was the victim of an abuse of process and is
entitled to a stay of proceedings 145
E. Whether the judge erred in concluding that the security certificate is
reasonable 146
a) Definition of terrorism 147
b) Definition of organization 150
c) Membership 151
d) Danger to the security of Canada 152
e) The impact of the exclusion of the confidential summaries of the
original conversations on the reasonableness of the certificate 153
f) Conclusion 154
Conclusion 155
Issues on Appeal
[2] This is an appeal by Mohammed Harkat (appellant) against four decisions of Noël J. of the Federal Court sitting as a designated judge (judge) under the Immigration and Refugee Protection Act SC 2001, c 27 (Act). The four decisions (Harkat (Re), 2009 FC 204; Harkat (Re), 2010 FC 1241; Harkat (Re), 2010 FC 1242; and Harkat (Re), 2010 FC 1243) relate to the constitutionality of the new process in place under the Act (Constitutionality Decision), the reasonableness of the security certificate, (Reasonableness Decision), the applicability of the police informer privilege to Canadian Security Intelligence Service (CSIS) human sources (Privilege Decision) and a motion by the appellant to stay the proceedings on an account of an abuse of process (Abuse of Process Decision).
[3] In Harkat (Re), 2011 FC 75 the judge certified the following two questions of general importance under section 82.3 of the Act:
1. Do sections 77(2), 78, 83(1)(c) to (e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b) of the Act breach section 7 of the Charter of Rights and Freedoms by denying the person concerned the right to a fair hearing? If so, are the provisions justified under section 1?
2. Do human sources benefit from a class-based privilege? If so, what is the scope of this privilege and was the formulation of a “need to know” exception for the special advocates in Harkat (Re), 2009 FC 204, a correct exception to this privilege?
[4] The certification of a question triggers a wide-ranging appeal. In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at paragraph 25, Bastarache J. wrote that:
The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question.
[5] This was reiterated by L’Heureux-Dubé J. in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 12:
The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a "question of general importance" has been certified, this allows for an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appeal or this Court to answering the stated question or issues directly related to it. All issues raised by the appeal may therefore be considered here.
[6] Since then, this Court has on several occasions considered questions that were not among those certified (i.e. Canadian Council for Refugees v. Canada, [2009] 3 F.C.R. 136 at paragraph 98 (F.C.A.); Xie v. Canada (Minister of Citizenship and Immigration), 2004 FCA 250 at paragraph 10; and Richter v. Canada (Minister of Citizenship and Immigration), 2009 FCA 73 at paragraphs 9 and 10).
[7] As is his right, the appellant has used the certified questions as a springboard from which to advance other grounds of appeal.
[8] The appellant has raised the following issues which I have reproduced almost verbatim from his memorandum of fact and law:
1. Did the refusal of the Court to permit the special advocates the right to interview and ultimately cross-examine the human sources in camera amount to a legal error?
2. Did the Court err in law where it drew pivotal factual conclusions on aged historical matters where the sum total of the information at the disposal of the Court was derived from inconsistent open source materials? Specifically, by way of example, it is asserted that the Court’s factual finding with respect to Ibn Khattab was an unreasonable and unsafe one and accordingly not a conclusion available in law to the Court on the record before it?
3. Did the Court err in its definition of terrorism? In particular, to be included within the definition of terrorism is it required that material support include any support or assistance or does it have to be material in the sense that it is done knowingly to aid or abet terrorist activity done with a common purpose?
4. Did the Court err in finding that paragraph 34(1)(f) of the Act does not have any temporal requirement? In particular, can a person be found to be a member of a terrorist organization by links or assistance to a person who is not at the time nor at any prior time a terrorist if that person or organization subsequently becomes engaged in terrorism?
5. Does paragraph 34(1)(d) of the Act require a finding of a present danger to the Security of Canada including a current serious identifiable threat?
6. Did the Court err in finding that the policy of destruction of the original materials did not constitute a breach of CSIS’ duty to disclose?
7. Did the Court err in relying upon the information contained in alleged summarized conversations without first requiring the attendance and subsequent cross-examination of the parties involved in the original recording and summarization of such information?
8. Did the Court err in its formulation of the test for the exclusion of evidence pursuant to subsection 24(1) of the Charter, and if so, did the Court err in not excluding the summarized conversations?
9. Did the Court err in finding that the cumulative effect of Charter breaches, a breach of candour, and the passage of time did not warrant a stay of proceedings pursuant to subsection 24(1) of the Charter?
10. Should the duty of utmost good faith and candour defined in Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 be enlarged or interpreted to include an obligation on the part of the Ministers and the Service to update evidence and/or information as the proceedings evolve?
[9] It is not necessary to consider all questions posed by the appellant to dispose of the appeal. I propose to address the following issues:
1. The standard of review.
2. The constitutionality of the system in place, i.e whether the Act violates the appellant’s right to life, liberty and security of the person under section 7 of the Charter?
3. If so, whether the breach of section 7 can be justified under section 1 of the Charter?
4. Whether CSIS’ human sources benefit from the police informer class-based privilege?
5. Whether the appellant’s section 7 right to know and meet the case against him has been violated by the destruction of the original evidence?
6. If so, what is the appropriate and just remedy under subsection 24(1) of the Charter?
7. Whether the appellant was the victim of an abuse of process and is entitled to a stay of proceedings?
8. Whether the judge erred in concluding that the security certificate is reasonable?
[10] I reproduce the legislative provisions relevant to the determination of this appeal.
Immigration and Refugee Protection Act, SC 2001, c. 27
Rules of interpretation
33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur.
Marginal note: Security
34. (1) A permanent resident or a foreign national is inadmissible on security grounds for
(a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada;
(b) engaging in or instigating the subversion by force of any government;
(c) engaging in terrorism;
(d) being a danger to the security of Canada;
(e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or
(f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c).
Marginal note: Exception
(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest.
…
Filing of evidence and summary
77. (2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.
…
Determination
78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.
…
Protection of information
83. (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:
…
(c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;
(d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
(e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;
…
(h) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence;
(i) the judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national;
…
Restrictions on communications — special advocate
85.4 (2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate.
…
Disclosure and communication prohibited
85.5 With the exception of communications authorized by a judge, no person shall
…
(b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.
Canada Evidence Act, RSC 1985, c. C-5
Objection to disclosure of information
37. (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
…
Disclosure order
38.06 (2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information.
Canadian Security Intelligence Service Act, RSC 1985, c. C-23
Collection, analysis and retention
12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.
Charter of Rights and Freedoms
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
…
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
Loi sur l’immigration et la protection des réfugiés, LC 2001, ch. 27
Interprétation
33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.
Note marginale : Sécurité
34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants :
a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada;
b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force;
c) se livrer au terrorisme;
d) constituer un danger pour la sécurité du Canada;
e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada;
f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c).
Note marginale : Exception
(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national.
[…]
Dépôt de la preuve et du résumé
77. (2) Le ministre dépose en même temps que le certificat les renseignements et autres éléments de preuve justifiant ce dernier, ainsi qu’un résumé de la preuve qui permet à la personne visée d’être suffisamment informée de sa thèse et qui ne comporte aucun élément dont la divulgation porterait atteinte, selon le ministre, à la sécurité nationale ou à la sécurité d’autrui.
[…]
Décision
78. Le juge décide du caractère raisonnable du certificat et l’annule s’il ne peut conclure qu’il est raisonnable.
[…]
Protection des renseignements
83. (1) Les règles ci-après s’appliquent aux instances visées aux articles 78 et 82 à 82.2 :
[…]
c) il peut d’office tenir une audience à huis clos et en l’absence de l’intéressé et de son conseil — et doit le faire à chaque demande du ministre — si la divulgation des renseignements ou autres éléments de preuve en cause pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
d) il lui incombe de garantir la confidentialité des renseignements et autres éléments de preuve que lui fournit le ministre et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
e) il veille tout au long de l’instance à ce que soit fourni à l’intéressé un résumé de la preuve qui ne comporte aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui et qui permet à l’intéressé d’être suffisamment informé de la thèse du ministre à l’égard de l’instance en cause;
[…]
h) il peut recevoir et admettre en preuve tout élément — même inadmissible en justice — qu’il estime digne de foi et utile et peut fonder sa décision sur celui-ci;
i) il peut fonder sa décision sur des renseignements et autres éléments de preuve même si un résumé de ces derniers n’est pas fourni à l’intéressé;
[…]
Restrictions aux communications — avocat spécial
85.4 (2) Entre le moment où il reçoit les renseignements et autres éléments de preuve et la fin de l’instance, l’avocat spécial ne peut communiquer avec qui que ce soit au sujet de l’instance si ce n’est avec l’autorisation du juge et aux conditions que celui-ci estime indiquées.
[…]
Divulgations et communications interdites
85.5 Sauf à l’égard des communications autorisées par tout juge, il est interdit à quiconque :
[…]
b) de communiquer avec toute personne relativement au contenu de tout ou partie d’une audience tenue à huis clos et en l’absence de l’intéressé et de son conseil dans le cadre d’une instance visée à l’un des articles 78 et 82 à 82.2.
Loi sur la preuve au Canada, LRC 1985, ch. C-5
Opposition à divulgation
37. (1) Sous réserve des articles 38 à 38.16, tout ministre fédéral ou tout fonctionnaire peut s’opposer à la divulgation de renseignements auprès d’un tribunal, d’un organisme ou d’une personne ayant le pouvoir de contraindre à la production de renseignements, en attestant verbalement ou par écrit devant eux que, pour des raisons d’intérêt public déterminées, ces renseignements ne devraient pas être divulgués.
[…]
Divulgation modifiée
38.06 (2) Si le juge conclut que la divulgation des renseignements porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d’intérêt public qui justifient la divulgation l’emportent sur les raisons d’intérêt public qui justifient la non-divulgation, il peut par ordonnance, compte tenu des raisons d’intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu’il estime indiquées, la divulgation de tout ou partie des renseignements, d’un résumé de ceux-ci ou d’un aveu écrit des faits qui y sont liés.
Loi sur le service canadien du renseignement de sécurité, LRC 1985, ch. C-23
Informations et renseignements
12. Le Service recueille, au moyen d’enquêtes ou autrement, dans la mesure strictement nécessaire, et analyse et conserve les informations et renseignements sur les activités dont il existe des motifs raisonnables de soupçonner qu’elles constituent des menaces envers la sécurité du Canada; il en fait rapport au gouvernement du Canada et le conseille à cet égard.
Charte canadienne des droits et libertés
7. Chacun a droit à la vie, à la liberté et à la sécurité de sa personne; il ne peut être porté atteinte à ce droit qu’en conformité avec les principes de justice fondamentale.
[…]
24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
[Emphasis added.]
Facts and procedural history giving rise to the appeal
[11] The appellant arrived in Canada on October 6, 1995, on a false Saudi Arabian passport and a legitimate Algerian one, claiming refugee status.
[12] On February 24, 1998, the appellant was granted refugee status by the Immigration and Refugee Board. He has never obtained permanent resident status in Canada.
[13] On December 10, 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration (Ministers) issued a security certificate against the appellant. The security certificate alleged that the appellant was inadmissible to Canada on security grounds under what was then section 33 (now 34) of the Act.
[14] In March 2005, Dawson J., then of the Federal Court, evaluated the reasonableness of the appellant’s security certificate. Relying on this Court’s decision in Charkaoui (Re), 2004 FCA 421, she rejected the appellant’s constitutional arguments under section 7 of the Charter. Further, Dawson J. found that there were reasonable grounds to believe that the appellant had engaged in terrorism. This judgment was reported as Harkat (Re), 2005 FC 393.
[15] The appellant then appealed Dawson J.’s judgment to this court. In Harkat v. Canada (Minister of Citizenship and Immigration), 2005 FCA 285, Chief Justice Richard dismissed the appellant’s appeal. In turn, the appellant sought, and was granted, leave to appeal to the Supreme Court of Canada. Along with Messrs. Charkaoui and Almrei, the appellant challenged the constitutionality of the security certificate regime. In reasons reported as Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 [Charkaoui #1] Chief Justice McLachlin, writing for a unanimous Supreme Court of Canada, declared that the Act’s procedure violated section 7 of the Charter by limiting the named person’s right to know and answer the case against him. She suspended the declaration for one year and invited Parliament to act. At paragraph 80 of her reasons, Chief Justice McLachlin highlighted the United Kingdom special advocate system as one that Canada could adopt that would be less minimally impairing of the named person’s rights.
[16] In response, Parliament enacted Bill C-3 An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act which came into force on February 22, 2008. Bill C-3 significantly modified the security certificate regime. It imported into Canadian law a special advocate system for security certificate proceedings.
[17] On June 26, 2008, in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 [Charkaoui #2] the Supreme Court of Canada spoke again, this time in relation to procedural issues. Under policy OPS-217, CSIS destroyed its original notes of gathered intelligence such as interviews and intercepts. Lebel and Fish JJ., writing for a unanimous court, found that the destruction of these notes breached Mr. Charkaoui’s right to know the case against him under section 7 of the Charter. Nevertheless, the Court rejected Mr. Charkaoui’s application for a stay because it was premature. The remedial aspect was left to the designated judge.
[18] Charkaoui #2 entitled the appellant to additional disclosure from CSIS. On September 24, 2008, the judge at paragraph 23 of his Reasonableness Decision ordered the Ministers to produce “all information and intelligence related to Mohammed Harkat”. CSIS then disclosed thousands of files to the Ministers, who in turn disclosed the records to the judge. The special advocates reviewed the records and additional exhibits were filed. As a result of the closed hearings, the Ministers disclosed additional information to the appellant and his public counsel. Like in Charkaoui #2, however, the original tapes and notes upon which CSIS’ file summaries were based had been destroyed under policy OPS-217.
[19] In the fall of 2008, the judge held closed hearings on the Charkaoui #2 disclosure. During these hearings the special advocates requested access to the CSIS employee and human source files of one of the Ministers’ witnesses. In the Privilege Decision the judge rejected this request and extended the police informer common law privilege to covert human intelligence sources, subject to a “need to know” exception.
[20] On May 12, 2009, the Canadian Boarder Services Agency (CBSA) sent sixteen law enforcement officers and three canine units to search the appellant’s residence. When the judge learned about the search, he immediately cancelled CBSA’s authorization and subjected any further searches to his prior authorization. This decision was reported as Harkat (Re), 2009 FC 659.
[21] On May 26, 2009, the Ministers told the judge that one of their human sources had failed a polygraph test. In Harkat (Re), 2009 FC 1050, the judge found that the Ministers had breached their duty to disclose this to him and to the special advocates. Consequently, he ordered the Ministers to completely disclose the human source file in question. Unsatisfied with this remedy, the special advocates sought to exclude all evidence from the human source in question. The judge denied this remedy. He found that CSIS’ breach of the duty to disclose was done without intent to filter or conceal the information. Nevertheless, he ordered that another human source file be made available to the Court and the special advocates to restore confidence in the proceedings. The two human source files confirmed the evidence filed by the Ministers.
[22] On December 22, 2008, the judge rejected a motion by the appellant’s special advocates to identify, interview and cross-examine covert human intelligence sources on the basis that they were protected by a common law class privilege (Harkat (Re), 2009 FC 204, the Privilege Decision). A year later, on December 9, 2010, the judge upheld the certificate’s reasonableness (Harkat (Re) 2010 FC 1241, the Reasonableness Decision), confirmed the security certificate regime’s constitutionality (Harkat (Re), 2010 FC 1242, the Constitutionality Decision), and rejected a motion for either a stay of proceedings or the exclusion of some evidence because of an alleged abuse of process (Harkat (Re), 2010 FC 1243, the Abuse of Process Decision).
[23] Some 34 months passed between the enactment of Bill C-3 and the issuance of the judgments under appeal. The judge observed that the amount of disclosure, the procedural matters described above, and scheduling difficulties were responsible for the delay.
Summary of the judge’s decisions
[24] As stated, the record contains four sets of reasons written by the judge: the Privilege Decision, the Reasonableness Decision, the Constitutionality Decision, and the Abuse of Process Decision. I summarize their contents as follows.
A. The Privilege Decision
[25] A number of human sources provided CSIS with information regarding the appellant’s activities. To test their credibility, the special advocates sought a court order compelling the Ministers to produce CSIS’ human sources for cross-examination in closed proceedings. The judge denied this request by extending police informer privilege to CSIS human sources on a class-wide basis. At the time of the Privilege Decision, the judge had yet to ascribe reliability or weight to the information gained from human sources.
[26] The judge concluded that informer privilege has a two-fold objective of protecting informers and encouraging others to come forward with useful information. However, the privilege is subject to an “innocence at stake” exception, whereby it can be set aside if it jeopardizes an accused’s right to raise a reasonable doubt regarding the case against him/her.
[27] The judge recognized that, since CSIS is a civilian intelligence agency and certificate proceedings are not criminal proceedings in the traditional sense, informer privilege was not per se applicable. Nevertheless, he held that the policy justifications underlying informer privilege applied with equal or greater force to CSIS intelligence sources. He highlighted the fact that recruiting sources would be difficult if confidentiality could not be maintained and noted that, unlike most criminal investigations, intelligence investigations may extend for long periods of time. Ultimately, he concluded that a class-privilege should protect the relationship between CSIS and its human sources. However, he held that this novel privilege was subject to a “need to know” exception that is engaged if knowing the human source’s identity is necessary to prevent a serious breach of procedural fairness that would impugn the administration of justice.
[28] Having found the privilege to apply on a class-wide basis, the judge further concluded that neither the Act nor Charkaoui #2 altered it. Thus, the privilege protected the identity of the human sources in the instant case. Finally, he held that the “need to know” exception did not apply here.
B. The Reasonableness Decision
[29] To decide whether the security certificate was reasonable, the judge first had to define the following key terms in the Act:
• “terrorism” (paragraph 34(1)(c) of the Act);
• “danger to the security of Canada” (paragraph 34(1)(d) of the Act); and
• “member of an organization” (paragraph 34(1)(f) of the Act).
[30] The Act does not define “terrorism”. The judge relied on the definition chosen by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraphs 97 and 98:
In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”.
[31] The judge noted that the definition was not exhaustive and could be adapted with time. The Supreme Court’s definition also includes materially supporting terrorist activities, such as providing funds, false documents, recruitment and shelter, even though such acts are not directly linked to violence. Material support, said the judge at paragraph 81, “is the sine qua non of international terrorism and must be viewed as a form of participation in terrorism”.
[32] The next phrase that needed definition was “danger to the security of Canada”. Again, the judge relied on Suresh and adopted the definition set out there at paragraph 90:
These considerations lead us to conclude that a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious”, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.
[33] He further held that paragraph 34(1)(d) of the Act had to be read together with section 33. Consequently, proof of danger to the security of Canada may include actions that have occurred, are occurring, or will occur. In arriving at this result, the judge rejected Mosley J.’s opinion in Almrei (Re), 2009 FC 1263 at paragraph 504 that paragraph 34(1)(d) required actual present danger. Such an interpretation, he reasoned, was inconsistent with section 33. Relying on Suresh, the judge recalled that “danger to the security of Canada” must benefit from a large and liberal interpretation. Further, the concept is highly factual and could be related to distant events that may harm Canadian security.
[34] Membership in a terrorist organization is difficult to define since terrorist organizations do not issue membership cards. Relying on Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85 at paragraph 27, the judge found that the definition of “member” in national security cases must benefit from a broad interpretation.
[35] The judge then turned his attention to the definition of “organization”. This term too demands a broad reading since terrorist organizations are loosely structured and extremely secretive. Paragraph 34(1)(f) of the Act does not require a temporal nexus between membership in the organization and the period during which the organization engaged in terrorist activity: Gebreab v. Canada (Minister of Public Safety and Emergency Preparedness), 2010 FCA 274.
[36] The judge found that the Ministers proved the following facts on a balance of probabilities:
- Osama Bin Laden and Al-Qaeda have supplied money and resources to the Chechen terrorist cause through Ibn Khattab and the Basayev group.
- The Basayev and Khattab groups were not part of the Al-Qaeda core, but did belong to the broader Bin Laden Network.
- The appellant operated a guesthouse for Ibn Khattab for at least 15 months. Consequently, he was an active member of a group involved in Chechen terrorism.
- The appellant crossed the Afghan border during his stay in Pakistan.
- The appellant had links to Al Gamaa Al Islamiya (AGAI), an Egyptian Islamic extremist group.
- The appellant used “sleeper agent” methods in Canada. He concealed aliases he used in Pakistan and used false documents and anti-surveillance techniques.
- The appellant assisted Abu Messab Al Shehre and Mohammed Aissa Triki, two Islamist extremists, in Canada.
- The appellant, with the assistance of Abu Zubaydah, provided financial assistance to Al Shehre by paying his legal fees.
- The appellant maintained contacts with Islamist extremists in Canada, such as Ahmed Said Khadr and Abu Zubaydah.
- There are reasonable grounds to believe that the appellant belonged to and supported an entity that is part of the Bin Laden Network prior to and after having set foot in Canada.
- Although it has diminished over time, the appellant still poses a danger to Canada.
[37] Based on these factual findings, the judge upheld the certificate as reasonable.
C. The Constitutionality Decision
[38] The judge reviewed and summarized the principles underlying section 7 of the Charter. At paragraph 97 he framed the issues as follows:
- Were the liberty and security rights of Mr. Harkat violated by the Act?
- In the affirmative, are the protections instituted by the new Act such as disclosure and the special advocate provisions such that they are substantive, meaningful substitutes that satisfy the principles of fundamental justice while protecting national security information?
- In the alternative, can section 1 of the Charter save the legislation insofar as the limits on the rights imposed are such that they are demonstrably justifiable in a free and democratic society?
[39] The judge concluded that, like the old security certificate regime, the revised security certificate regime under the Act also engaged the appellant’s life, liberty, and security of the person rights guaranteed under section 7 of the Charter. I agree. Further, the certificate process may lead to irreparable harm flowing from the stigma of terrorism allegations and from removal to a country where the named person’s life and freedom could be affected.
[40] Having established that the appellant’s section 7 rights were engaged, the judge then discussed the principles of fundamental justice. In his view, applying section 7 requires a contextual approach. Invoking the decision of Chief Justice McLachlin in Charkaoui #1 at paragraphs 1 and 58, he reiterated that protecting citizens was one of the most fundamental tasks of the state. National security information should be kept confidential: Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 at paragraph 48. The challenge, he reasoned, is finding a substitute for complete disclosure that still respects the named person’s constitutional rights.
[41] The judge determined that the revised Act meets this challenge. The judge recalled that the principles of fundamental justice include (1) the right to a hearing (2) presided by an independent and impartial magistrate (3) who decides on the facts and the law. The judge found that the revised Act met the first and second requirements. In fact, subsection 83(1) of the revised Act enlarges the designated judge’s powers to ensure a fair process.
[42] The prior version of the Act failed the third requirement since it did not disclose sufficient information to the named person to inform him of the case against him. In the judge’s view, the revised Act did not suffer from this problem. It fulfills the third requirement because:
- Summaries of information are now provided to the named person throughout the proceedings pursuant to subsection 77(2) and paragraph 83(1)(g) of the Act. They provide summaries of top secret information and more than mere allegations. They are drafted in such a way as to reasonably inform the named person of the case to meet without damaging national security.
- Paragraph 85.1(2)(a) obliges the special advocate to challenge any Ministerial claim that disclosing information would injure national security or endanger the safety of any person.
- Paragraphs 83(1)(e) and 85.1(2)(a) permit both the Minister and the special advocate