Mahjoub (Re)

Mahjoub (Re)
Court (s) Database
Federal Court Decisions
Date
2013-10-25
Neutral citation
2013 FC 1097
File numbers
DES-7-08
Decision Content
Date: 20131025
Docket: DES-7-08
Citation: 2013 FC 1097
Ottawa, Ontario, October 25, 2013
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
IN THE MATTER OF A CERTIFICATE
SIGNED PURSUANT TO SUBSECTION 77(1) OF THE IMMIGRATION AND REFUGEE PROTECTION ACT (IRPA);
AND IN THE MATTER OF THE REFERRAL
OF A CERTIFICATE TO THE FEDERAL COURT PURSUANT TO SUBSECTION 77(1) OF THE IRPA;
AND IN THE MATTER OF
MOHAMED ZEKI MAHJOUB
REASONS FOR ORDER AND ORDER
[1] Mr. Mohamed Zeki Mahjoub is the named person in security certificate proceedings initiated pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. In the course of the proceedings, Mr. Mahjoub brought a Notice of Constitutional Question, asking the Court to determine the constitutionality of section 33 and Division 9 of the IRPA and certain provisions of the Canadian Security Intelligence Service Act, R.S.C., 1985, c. C‑23 [CSIS Act].
Relief Sought
[2] In his “Modified Notice of Constitutional Question” dated November 8, 2012, Mr. Mahjoub:
seeks declaratory relief in the form of an order declaring unconstitutional and invalid pursuant to section 52 of the Constitution, section 24 of the Charter and section 18 of the Federal Courts Act:
• Section 33 and Division 9 (sections 77 to 87.2) of the Immigration and Refugee Protection Act, (S.C. 2001, c. 27)(‘IRPA’) and Sections 4, 6 and 7 (3)of the Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act, alone or by they [sic] combined effect with sections 2, 12, 17 and 21 of the CSIS Act;
• Sections 2, 12, 17 and 21 of the CSIS Act and CSIS policies or guidelines adopted under section 6 of the CSIS Act alone or by they [sic] combined effect with the IRPA.
[3] Mr. Mahjoub has challenged the constitutionality of the CSIS Act which I have addressed in my Warrants Decision at paragraphs 18-89. In these reasons, I shall only address the challenge to section 33 and Division 9 of the IRPA as well as sections 4, 6, and 7(3) of 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 Act to amend the IRPA].
[4] I reproduce the impugned statutory provisions in Annex 1.
Facts
[5] On June 26, 2000, Mr. Mahjoub was arrested and detained under the authority of a security certificate signed pursuant to the former IRPA regime. On October 5, 2001, the Federal Court of Canada (as it then was) found this security certificate to be reasonable (Mahjoub (Re), 2001 FCT 1095) and Mr. Mahjoub was deemed inadmissible to Canada on the grounds of national security. Removal proceedings began against him.
[6] In February 2007, several detainees subject to security certificates successfully challenged the constitutionality of paragraph 78(g) and sections 83 and 84(2) of the former IRPA regime (Charkaoui v. Canada (Minister of Citizenship and Immigration), 2007 SCC 9 [Charkaoui I] at paragraphs 139 and 141). The Supreme Court of Canada found certain aspects of the former regime unconstitutional and granted a suspension of invalidity to give Parliament one year to amend the IRPA to comply with the Charter of Rights and Freedoms, Part I to the Constitution Act, 1982, c. 11 (U.K.), Schedule B [Charter] (Charkaoui I at paragraph 140).
[7] As a result, in early 2008, Parliament enacted new provisions of the IRPA through the Act to amend the IRPA, in particular to eliminate the distinction in the security certificate regime between foreign nationals and permanent residents, and to create the special advocates regime to protect the named person’s interests when the Ministers seek to adduce confidential information as evidence in support of the security certificate against the named person.
[8] On February 22, 2008, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration signed a security certificate naming Mr. Mahjoub pursuant to the new IRPA regime. Shortly thereafter, the current reasonableness proceeding began in this Court.
[9] Subsequently in June 2008, the Supreme Court of Canada released a further decision on the constitutionality of the previous IRPA regime which, among other things, condemned the Canadian Security Intelligence Service’s (CSIS or Service) destruction of original notes as a violation of section 7 of the Charter and clarified the disclosure obligations of the Ministers in the course of the reasonableness proceedings (Charkaoui v. Canada (Minister of Citizenship and Immigration), 2008 SCC 38 [Charkaoui II]).
[10] Meanwhile, in April 2007, by Order of Mr. Justice Mosley, this Court released Mr. Mahjoub on stringent terms and conditions. In March 2009, Mr. Mahjoub elected to return to detention because his family members withdrew as supervising sureties. He was released again on stringent conditions in November 2009.
[11] On February 19, 2010, Mr. Mahjoub filed a Notice of Constitutional Question challenging the constitutionality of the new IRPA regime. He filed an additional Notice of Constitutional Question on December 3, 2010, and he submitted a “Modified” Notice of Constitutional Question on November 8, 2012, and additional submissions on November 16, 2012.
Issues
[12] I will address the following issues on this motion:
1. Are Mr. Mahjoub’s constitutional challenges supported by adequate facts?
2. Do sections 4, 6 and 7(3) of the Act to amend the IRPA infringe Mr. Mahjoub’s Charter rights?
3. Do section 33 and Division 9 (sections 77-87.2) of the IRPA infringe Mr. Mahjoub’s Charter rights?
a. Must there be a form of judicial review before the Ministers can sign a certificate?
i. With notice to the named person?
ii. Without notice such as a process involving the Security Intelligence Review Committee?
b. Is the open court principle, namely sections 2(b), 7 and 11 of the Charter, compromised by in camera proceedings and confidential evidence?
i. Does section 11 apply to these proceedings?
ii. Do in camera, ex parte proceedings inherently infringe the named person’s Charter rights?
iii. Does Mr. Mahjoub have the right to challenge national security privilege claims in a voir dire before the proceedings go in camera?
c. Is judicial independence, namely section 7 of the Charter, compromised in Division 9 of the IRPA?
i. Do designated judges inherently lack or appear to lack independence or impartiality?
ii. Does the control exercised by the designated judge over disclosure by virtue of paragraphs 83(1)(c) and (d) of the IRPA compromise the Court’s independence or appearance of independence?
iii. Does the existence of in camera proceedings and confidential evidence compromise the independence or appearance of independence of the Court?
iv. Is the Court implicated in the Ministers’ alleged misconduct?
d. Is the special advocates regime as established in section 85 of the IRPA, coupled with the disclosure of summaries to the named person provided for in paragraph 83(1)(e) of the IRPA, a sufficient substitute for full disclosure so that Mr. Mahjoub knows the case to meet and can respond to it?
i. Has the Federal Court of Appeal’s decision in Harkat v. Canada (Minister of Citizenship and Immigration), 2012 FCA 122 [Harkat], informed by the Supreme Court of Canada’s decision in Charkaoui I, already decided this question?
ii. Does the inevitable “split brain” problem necessarily infringe Mr. Mahjoub’s rights?
iii. Does the “reasonably informed” standard of paragraph 83(1)(e) infringe Mr. Mahjoub’s rights?
iv. If the named person cannot be reasonably informed by summaries, does the proceeding infringe Mr. Mahjoub’s rights, and is this such a proceeding?
e. Is Mr. Mahjoub’s right to counsel and counsel of choice pursuant to sections 7 and 10(b) of the Charter, the independence of the bar and solicitor-client privilege compromised by the special advocates regime established in section 85 of the IRPA?
i. Is section 10(b) relevant to Mr. Mahjoub’s challenge?
ii. Does the lack of solicitor-client relationship between the special advocates and Mr. Mahjoub infringe his rights?
f. Is the requirement that admissible evidence be “reliable and appropriate” in paragraph 83(1)(h) of the IRPA unconstitutionally vague, overbroad, or arbitrary?
i. Is “reliable and appropriate” or a similar standard judicially defined?
ii. Does this provision allow for evidence that is disproportionate or grossly disproportionate to the objective of presenting fair and useful evidence?
iii. Does this standard and subsection 83(1.1) infringe Mr. Mahjoub’s right to a fair trial by insufficiently guarding against unreliable evidence?
g. Does the security certificate regime infringe Mr. Mahjoub’s right to silence under section 7 and section 13 of the Charter?
i. Does section 13 apply to these proceedings?
ii. Given the in camera evidence, can Mr. Mahjoub’s choice to testify or not to testify be considered an informed decision?
h. Is the standard of proof of “reasonable grounds to believe” disproportionately low given the consequences of the security certificate procedure and the right of due process?
i. Did the IRPA regime allow the Ministers to arbitrarily detain Mr. Mahjoub?
i. Is this a situation of preventive justice which requires that the person concerned be allowed to live a normal life in proportion to the alleged and proven danger?
ii. If so, does the IRPA regime comply with this requirement?
Analysis
Are Mr. Mahjoub’s constitutional challenges supported by adequate facts?
[13] Constitutional issues cannot be decided in a factual vacuum. In this case, however, there are adequate facts to support Mr. Mahjoub’s constitutional challenge. With a few exceptions that shall be discussed below, he has been directly affected by the impugned provisions. Moreover, even if he has not suffered all of the potential effects of the legislation, a Charter applicant may raise a reasonable hypothesis to challenge the legislation in question (R. v. Big M Drug Mart Ltd. [1985] 1 S.C.R. 295 at paragraph 117, R. v. Heywood, [1994] 3 S.C.R. 761 at page 799).
Do sections 4, 6 and 7(3) of the Act to amend the IRPA infringe Mr. Mahjoub’s Charter rights?
[14] The Ministers submit that the Act to amend the IRPA does not affect Mr. Mahjoub’s Charter rights and therefore cannot be challenged on that basis.
[15] In my view, Mr. Mahjoub’s challenge to the Act to amend the IRPA must fail. Insofar as it changed the status quo, an Act to amend the IRPA only had an effect on the IRPA itself and not on individual rights. Insofar as it maintained the status quo and affected individual rights, the Act to amend the IRPA implemented provisions of the previous IRPA regime that the Supreme Court did not consider unconstitutional in Charkaoui I. The impugned provisions of this statute are as follows:
4. Division 9 of Part 1 of the Act is replaced by the following:
[Sections 76-87.2 of the current IRPA]
6. In sections 7 to 10, “the Act” means the Immigration and Refugee Protection Act.
7. (3) If, on the day on which this Act comes into force, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration sign a new certificate and refer it to the Federal Court under subsection 77(1) of the Act, as enacted by section 4 of this Act, the person who is named in the certificate
(a) shall, if they were detained under Division 9 of Part 1 of the Act when this Act comes into force, remain in detention without a new warrant for their arrest and detention having to be issued under section 81 of the Act, as enacted by section 4 of this Act; or
(b) shall, if they were released from detention under conditions under Division 9 of Part 1 of the Act when this Act comes into force, remain released under the same conditions unless a warrant for their arrest and detention is issued under section 81 of the Act, as enacted by section 4 of this Act.
4. La section 9 de la partie 1 de la même loi est remplacée par ce qui suit :
[Les articles 76-87.2 de la LIPR actuelle]
6. Aux articles 7 à 10, « Loi » s’entend de la Loi sur l’immigration et la protection des réfugiés.
7. (3) Dans le cas où, à la date d’entrée en vigueur de la présente loi, le ministre de la Sécurité publique et de la Protection civile et le ministre de la Citoyenneté et de l’Immigration déposent à la Cour fédérale un nouveau certificat au titre du paragraphe 77(1) de la Loi, édicté par l’article 4 de la présente loi, la personne visée par le certificat qui est détenue au titre de la section 9 de la partie 1 de la Loi à l’entrée en vigueur de la présente loi demeure en détention sans que les ministres aient à lancer un mandat pour son arrestation et sa détention au titre de l’article 81 de la Loi, édicté par l’article 4 de la présente loi; celle qui est en liberté sous condition au titre de la section 9 de la partie 1 de la Loi à l’entrée en vigueur de la présente loi demeure en liberté aux mêmes conditions, à moins que les ministres ne lancent un mandat pour son arrestation et sa détention au titre de l’article 81 de la Loi, édicté par l’article 4 de la présente loi.
[16] Sections 4 and 6 have no impact on Mr. Mahjoub’s individual rights. Section 4 only serves to change the IRPA. Section 6 is a mere definition provision. Mr. Mahjoub’s only substantiated challenge is to paragraph 7(3)(b), which maintained Mr. Mahjoub’s conditions of release since it engaged his liberty interest. However, even this challenge is without merit as the detention provisions of the previous IRPA regime survived constitutional scrutiny in Charkaoui I (see especially paragraphs 89 and 110).
[17] I am therefore not persuaded that the impugned provisions of the Act to amend the IRPA are unconstitutional.
Do section 33 and Division 9 (sections 77-87.2) of the IRPA infringe Mr. Mahjoub’s Charter rights?
[18] Mr. Mahjoub has, in essence, challenged the entire security certificate regime in its current incarnation pursuant to Division 9 of the IRPA. While Mr. Mahjoub also makes multitudinous allegations that the behaviour of the Ministers and agencies involved in the security certificate process, including their policies, violates his Charter rights, these issues have been addressed in the Abuse of Process Decision.
a. Must there be a form of judicial review before the Ministers can sign a certificate?
[19] Mr. Mahjoub submits that the IRPA regime infringes his Charter right to a fair trial because it does not provide for any judicial oversight or hearing prior to the Ministers being able to sign a security certificate and detain the named person. He postulates two alternatives: a process like the current proceeding which would occur prior to the signing of the security certificate, and a Security Intelligence Review Committee (SIRC) review.
[20] At the outset I would note that it is for Parliament to decide the process to be followed in Certificate proceedings. Simply because Mr. Mahjoub can conceive of a regime that he finds fairer does not mean that the current regime does not pass constitutional muster.
i. With notice to the named person
[21] Under the first alternative, proposed by Mr. Mahjoub, it would not be possible for the named person to make submissions on whether or not the Ministers should sign a security certificate without giving notice to the named person. This would defeat the purpose of the security certificate process, which is, as Justice Dawson puts it at paragraph 59 of Jaballah (Re), 2010 FC 79, “precautionary and preventative,” by alerting a person whom the Ministers believe to be a serious security threat to the Ministers’ investigation and intention to detain and deport him or her. It would afford the named person the opportunity to hide from or otherwise thwart the actions of the authorities that are intended to keep the country safe.
ii. Without notice such as a process involving the Security Intelligence Review Committee
[22] Mr. Mahjoub’s second proposal contemplates that an independent body, such as the SIRC, would review the evidence presented by the Department of Public Safety and Emergency Preparedness and Citizenship and Immigration in support of a security certificate before the Ministers sign the certificate. It could even make submissions to the Ministers, drawing their attention to weaknesses or lacunae in the evidence presented.
[23] Nevertheless, this solution is impractical because it would unduly delay the issuance of security certificates. Faced with threats to national security, the executive cannot be constrained by judicial processes from acting quickly to neutralize a threat (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 [Suresh] at paragraphs 120-121).
[24] Mr. Mahjoub has failed to demonstrate that the IRPA regime is unconstitutional because it does not provide for a preliminary review process involving the named person or an independent body prior to the Ministers issuing the security certificate. Further, given the national security concerns discussed above, it is difficult to imagine how his proposed alternatives would be practical in the circumstances of persons believed to constitute serious and imminent threats to national security. In any event, I find that Mr. Mahjoub has not shown that the absence of such a preliminary review process violates his fair trial rights. In my view, Division 9 of the IRPA providing for the mandatory referral of the certificate to the Federal Court satisfies Mr. Mahjoub’s section 7 rights to challenge the certificate while allowing the executive to respond expeditiously to imminent security threats.
b. Is the open court principle, namely sections 2(b), 7 and 11 of the Charter, compromised by in camera proceedings and confidential evidence?
[25] Mr. Mahjoub submits that in camera proceedings and confidential evidence violate the open court principle, which offends his section 2(b), 7 and 11 rights. The Supreme Court in Vancouver Sun (Re), 2004 SCC 43 [Vancouver Sun] at paragraphs 23 and 26 maintains that the open court principle is a “hallmark of democratic society,” “applies to all judicial proceedings” and is “inextricably linked” to the right to freedom of expression protected by section 2(b) of the Charter. Accordingly, Mr. Mahjoub claims a right to public court proceedings, and in particular to challenge any attempt by the Ministers to claim national security privilege in a voir dire prior to going in camera. In contrast, paragraph 83(1)(c) of the IRPA, with its imperative language “shall, on each request of the Minister” prevents him from doing so, making the Ministers’ right to go in camera automatic:
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;
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;
i. Does section 11 of the Charter apply to these proceedings?
[26] One of the themes throughout Mr. Mahjoub’s submissions is that he enjoys all of the Charter rights that are normally only accorded to those accused of public offences. The language of the Charter does not appear to support this view. Section 11(d) of the Charter expressly states that “[a]ny person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” [emphasis added].
[27] At first glance, the Supreme Court jurisprudence also does not seem to support this view. In R. v. Wigglesworth, [1987] 2 S.C.R. 541 [Wigglesworth] at page 554, section 11 of the Charter is only found to apply “to persons prosecuted by the State for public offences involving punitive sanctions, i.e. criminal, quasi-criminal and regulatory offences, either federally or provincially enacted.” At page 558, the Supreme Court clarifies that:
…those [section 11] rights are accorded to those charged with criminal offences, to those who face the prosecutorial power of the State and who may well suffer a deprivation of liberty as a result of the exercise of that power…For this reason it is, in my view, preferable to restrict s. 11 to the most serious offences known to our law, i.e., criminal and penal matters and to leave other ‘offences’ subject to the more flexible criteria of ‘fundamental justice’ in s. 7.
[28] Particularly relevant for this proceeding is the Supreme Court’s comment at page 560 that “[p]roceedings of an administrative nature instituted for the protection of the public in accordance with the policy of a statute are also not the sort of ‘offence’ proceedings to which s. 11 is applicable.”
[29] However, at page 562, Justice Wilson explains that there are two prongs to the non‑cumulative test. A proceeding can fail the penal “by nature” test but pass the “true penal consequence” test. In other words, section 11 applies to non criminal proceedings where there are true penal consequences. The Supreme Court says that:
Assuming such a situation is possible, it seems to me that in cases where the two tests conflict the ‘by nature’ test must give way to the ‘true penal consequence’ test. If an individual is to be subject to penal consequences such as imprisonment – the most severe deprivation of liberty known to our law – then he or she, in my opinion, should be entitled to the highest procedural protection known to our law.
In addition, Justice Wilson does not discount the possibility of section 7 providing similar procedural protection. R. v. Rodgers, 2006 SCC 15 [Rodgers] at paragraph 59 affirms the Wigglesworth test.
[30] In Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711 [Chiarelli] at page 735, the Supreme Court establishes that deportation proceedings are “not concerned with the penal consequences of the acts of individuals.” Justice Dawson in Jaballah (Re), 2010 FC 224 at paragraph 76 takes the remark in Chiarelli to mean that section 11 rights are not applicable to security certificate (inadmissibility) proceedings. She makes this finding while maintaining that “section 7 may provide a residual protection” for section 11 rights. In particular, she found that section 11(c) did not apply. Similarly, Justice Lemieux finds at paragraph 113 of Harkat v. Canada (Minister of Citizenship and Immigration), 2005 FC 1740 that there is no analogous right to trial within a reasonable time as there is in criminal proceedings by virtue of section 11(b). He bases his conclusion on Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 [Blencoe]. This Court’s February 1, 2012 Reasons for Order dealing with a detention review concluded that the presumption of innocence found in section 11(d) of the Charter does not apply (at paragraph 40).
[31] In summary, while section 11 of the Charter is not applicable to Division 9 proceedings, many of the relevant rights under section 11 are residually protected by the right to a fair trial found under section 7. This would include the open court principle, which is found in section 11(d).
ii. Do in camera, ex parte proceedings inherently infringe the named person’s Charter rights?
[32] Mr. Mahjoub argues that in camera, ex parte proceedings such as those permitted by subsection 83(1) of the IRPA are inherently Charter-infringing because they constitute an unfair process and violate the open court principle.
[33] Ex parte proceedings are not inherently unfair and must be proven to be in violation of the right to a fair hearing, even in the criminal context. Rodgers, above, explains at paragraph 47:
However, it is important to note at the outset that the fallacy in Mr. Rodgers’ argument is that it presupposes that notice and participation are themselves principles of fundamental justice, any departure from which must be justified in order to meet the minimal constitutional norm. As I read his reasons, Fish J. adopts the same reasoning. With respect, it is my view that this is not the proper approach. The constitutional norm, rather, is procedural fairness. Notice and participation may or may not be required to meet this norm — it is well settled that what is fair depends entirely on the context…
[34] Rodgers is cited at paragraph 57 of Charkaoui I, in which the Supreme Court also mentions that “[t]he right to know the case to be met is not absolute.” In Canada (Attorney General) v. Khawaja, 2007 FCA 388 [Khawaja], the Federal Court of Appeal poses the question in this fashion at paragraphs 138-39:
Is it a denial of fundamental justice for the Attorney General to say, in Mr. Khawaja’s absence, things which he could not say in his presence? Given that notice and participation are not themselves principles of fundamental justice, the question cannot be answered on the basis of an invariable rule that notice and participation are required. If the rationale for the audi alteram partem rule is to allow a party to bring forward information “that could help the decision-maker reach a fair and prudent conclusion” (see Gill, as quoted above), then the question is whether the capacity of the decision-maker to arrive at such a conclusion has been diminished by the fact of ex parte proceedings.
Taking the law as to disclosure to be as I have described it, the answer to the question just posed is that the capacity of the decision-maker to arrive at a fair and prudent decision has, in the circumstances been improved, over what it would otherwise have been, by the fact of ex parte proceedings. The absence of Mr. Khawaja means that the Attorney General can speak freely and specifically of the risks of disclosure but more importantly, the applications judge can ask specific questions and expect specific answers. None of this is possible if the judge and counsel for the Attorney General are required to speak at a level of generality which precludes full disclosure and close questioning by the judge hearing the application.
[35] In my view, this reasoning applies equally to the in camera portion of security certificate proceedings. The question is, of course, to what extent the interests of the named person must be advanced in camera. Paragraph 61 of Charkaoui I explains:
In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found…
Thus, the Supreme Court suggests that so long as there is a substantial substitute for disclosure, section 7 is not violated.
[36] Concerning the open court principle, while Vancouver Sun at paragraph 26 explains that “the open court prin­ciple, to put it mildly, is not to be lightly interfered with”, the Dagenais/Mentuck test has been developed to determine whether a publication ban or any other freedom of the press restriction is justified by a balancing of interests, which “may include privacy and security interests” (ibid. at paragraph 28). Ruby v. Canada (Solicitor General), 2002 SCC 75 [Ruby] similarly comments on the importance of the principle (at paragraph 53), and indicates that in camera proceedings infringe section 2(b) of the Charter. However, their existence could be justified by section 1 of the Charter, and although the provisions in Ruby were not saved by it, the remedy was to read them down (at paragraph 60). The open court principle therefore is not absolute.
[37] Vancouver Sun indicates that the burden of displacing the open court principle rests on the party seeking to close the proceedings to the public (paragraphs 31, 83). This is so because any restriction on the open court principle is an infringement on section 2(b) that must be justified under section 1 of the Charter. According to Mr. Mahjoub, this fact renders paragraphs 83(1)(c) and 83(1)(d) unconstitutional because 83(1)(c) does not require the Ministers to justify going in camera beyond simply requesting to do so, and 83(1)(d) does not require a reasonable basis for in camera proceedings nor a remedy for the non-disclosure.
[38] I do not accept Mr. Mahjoub’s argument that paragraph 83(1)(c), insofar as it allows for an in camera hearing upon the Ministers’ request, is a violation of the open court principle or is overbroad. In light of Ruby, in which similar provisions were found to be a reasonable limit on section 2(b), such a finding would be inconsistent with existing jurisprudence. The Supreme Court states at paragraph 60 of Ruby:
I have already concluded that the Privacy Act validly obliges a reviewing court to accept ex parte submissions from a government institution, on request, in order to prevent the inadvertent disclosure of sensitive information. It follows, for the same reasons, that these ex parte submissions must be received in camera. The appropriate remedy is therefore to read down s. 51(2)(a) so that it applies only to the ex parte submissions mandated by s. 51(3). A reviewing court retains the discretion, pursuant to s. 46, to conduct the remainder of the hearing or any portion thereof, either in public, or in camera, or in camera and ex parte.
[39] Mr. Mahjoub does not have a right to challenge the Ministers’ claims of national security privilege in a voir dire before the hearing proceeds in camera as he contends. As Khawaja makes clear, notice and participation are not principles of fundamental justice. The named person’s interest in contesting the propriety of the Ministers’ national security privilege claims can be more efficiently and effectively advanced by the special advocates in camera, where a fulsome discussion may take place.
[40] I similarly reject Mr. Mahjoub’s submission that paragraph 83(1)(d) fails to require a reasonable basis for keeping information confidential and that the provision does not provide a remedy for non-disclosure. In my view, that provision sets a high threshold to be met before the information is protected. I reproduce the impugned paragraph below, with paragraphs 83(1)(b) and (e) included for context:
83. (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:
…
(b) the judge shall appoint a person from the list referred to in subsection 85(1) to act as a special advocate in the proceeding after hearing representations from the permanent resident or foreign national and the Minister and after giving particular consideration and weight to the preferences of the permanent resident or foreign national;
…
(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;
83. (1) Les règles ci-après s’appliquent aux instances visées aux articles 78 et 82 à 82.2 :
[…]
b) il nomme, parmi les personnes figurant sur la liste dressée au titre du paragraphe 85(1), celle qui agira à titre d’avocat spécial dans le cadre de l’instance, après avoir entendu l’intéressé et le ministre et accordé une attention et une importance particulières aux préférences de l’intéressé;
[…]
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;
[41] First, paragraph 83(1)(d) requires that the judge keep the information provided by the Minister confidential if its disclosure “would” be injurious to national security or the safety of any person. This requires the judge to evaluate the validity of the Ministers’ claim that the information they have provided ex parte would be injurious if disclosed before preserving the confidentiality of the Ministers’ information. It logically follows that if in camera proceedings are justified under section 1 of the Charter in such circumstances, not disclosing the information in those closed proceedings is also justified (Almrei (Re), 2009 FC 1263, at paragraphs 113, 117 [Almrei]). The special advocates are free to argue on the named person’s behalf that the Ministers’ claim is not justified and request disclosure to the named person.
[42] Second, paragraph 83(1)(e) requires that the named person be 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”. Although this provision does not remedy every instance of non-disclosure (which, according to Ruby, does not always require a remedy), along with the special advocates provided in 83(1)(b), it serves to preserve the fairness of the proceeding.
[43] Finally, I turn to Mr. Mahjoub’s argument that in camera, ex parte proceedings violate important instruments of international law, namely article 10 of the Universal Declaration of Human Rights (UNDHR) and article 14 of the International Covenant on Civil and Political Rights (ICCPR).
[44] Article 10 of the UNDHR reads: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”
[45] The UNDHR must be informed by the ICCPR, which is more detailed, and it is a treaty to which Canada is a party.
[46] Article 14(1) of the ICCPR reads as follows:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.
[47] Article 14(1) makes an exception to the right to a public hearing in the case of “national security in a democratic society.” While it states that the “press and the public may be excluded,” a national security exception would be nonsensical if a person deemed to be a security threat could not be similarly excluded simply by virtue of being a party to the proceedings. In the case of subsection 83(1), special advocates provide a substitute for the excluded party’s presence and may challenge the propriety of excluding the named person if they believe there is no valid concern of “national security in a democratic society.” I find no inconsistency between the impugned provisions and Canada’s international obligations.
c. Is judicial independence, namely section 7 of the Charter, compromised in Division 9 of the IRPA?
[48] According to Mr. Mahjoub, Division 9 proceedings compromise judicial independence in four ways. He submits that judges designated pursuant to section 76 lack independence because of their designation, because they control the disclosure process pursuant to paragraphs 83(1)(c) and (d), because they preside over in camera proceedings, and because they are implicated in the Ministers’ and the Service’s misconduct, particularly the interception of solicitor-client communications. I shall deal with each of these allegations in turn.
[49] In Charkaoui I, the Supreme Court considered whether the previous IRPA regime compromised the appearance of independence and impartiality of designated judges. At paragraph 46 of its reasons the Court concluded that:
…on its face, the IRPA process is designed to preserve the independence and impartiality of the designated judge, as required by s. 7. Properly followed by judges committed to a searching review, it cannot be said to compromise the perceived independence and impartiality of the designated judge.
i. Do designated judges inherently lack or appear to lack independence or impartiality?
[50] Mr. Mahjoub alleges that the definition of “judge” under section 76 of the IRPA “is unconstitutional because it violates the unwritten constitutional principles of the rule of law, separation of powers and judicial independence” by allowing the Chief Justice of the Federal Court to create a “sub-set” of judges who can deal with Division 9 matters, which is “effectively the appointment of judges by other judges”. For ease of reference, I reproduce the impugned definition below:
76. The following definitions apply in this Division.
…
“judge”
« juge »
“judge” means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.
76. Les définitions qui suivent s’appliquent à la présente section.
[…]
« juge »
“judge”
« juge » Le juge en chef de la Cour fédérale ou le juge de cette juridiction désigné par celui-ci.
[51] The issue was considered by the Federal Court of Appeal in Atwal v. Canada, [1988] 1 F.C. 107 (C.A.) [Atwal]. In that case it was argued that under the Act, Parliament had constituted a discrete superior court, composed of the designated judges and as such was acting neither as a judge of the Federal Court nor in a special capacity as persona designata. The Federal Court of Appeal held that no such category could be inferred without a clear expression by Parliament. The Court concluded at page 117, that “a judge designated for the purposes of the Act is either acting as a judge of the Federal Court or persona designata…” Th