Gaya v. Canada (Public Safety and Emergency Preparedness)

Gaya v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2020-06-30
Neutral citation
2020 FC 731
File numbers
T-120-20
Decision Content
Date: 20200630
Docket: T-120-20
Citation: 2020 FC 731
Ottawa, Ontario, June 30, 2020
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
SAAD GAYA
Appellant
and
CANADA (MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS) and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS
Contents
I. OVERVIEW 2
II. FACTS 4
III. PRELIMINARY LEGAL QUESTIONS 6
IV. ARGUMENTS 6
A. RESPONDENTS’ REPRESENTATIONS 6
B. APPELLANT’S REPRESENTATIONS 9
C. AMICUS CURIAE’S REPRESENTATIONS 12
V. ANALYSIS 15
A. Role of the Designated Judge 15
B. Role of the Amicus Curiae – A Complement to the Designated Judge 20
(1) The Amicus Curiae and the Inherent Jurisdiction of the Court 21
(2) Appointment of the Amicus Curiae in this appeal 26
(3) Role the Amicus Curiae in this Appeal 30
C. Powers of the Amicus Curiae 34
VI. Conclusion 37
I.
OVERVIEW
[1] The Appellant, Mr. Saad Gaya, is a listed individual pursuant to section 8 of the Secure Air Travel Act, SC 2015, c 20, s 11 [SATA]. Accordingly, the Minister of Public Safety and Emergency Preparedness [Minister] has deemed that reasonable grounds exist to suspect that he will either “engage or attempt to engage in an act that would threaten transportation security” or “travel by air for the purpose of committing an act or omission that (i) is an offence under section 83.18, 83.19 or 83.2 of the Criminal Code or an offence referred to in paragraph (c) of the definition terrorism offence in section 2 of that Act, or (ii) if it were committed in Canada, would constitute an offence referred to in subparagraph (i).” See paragraphs 8(1)(a) and 8(1)(b) of the SATA.
[2] The Appellant remains listed under the SATA following the Minister’s decision to deny his application for administrative recourse under section 15 of the SATA, which sought the removal of his name from the list. Consequently, the Appellant has brought a statutory appeal of this decision, pursuant to section 16 of the SATA.
[3] Following a case management conference on March 18, 2020, during which the parties voiced their disagreements as to the role and powers of an amicus curiae in an appeal under the SATA, this Court appointed Mr. Gib Van Ert as Amicus Curiae in an Order dated March 24, 2020 [See Order in Annex A]. This Court also ordered the parties and the Amicus Curiae to submit written representations on the role and powers of the Amicus Curiae in this appeal, to which a subsequent oral hearing via videoconference was held on May 20, 2020, to allow the Court to hear the parties and the Amicus Curiae on this preliminary legal question.
[4] This decision answers the preliminary legal questions concerning the role and powers of the Amicus Curiae in this appeal. However, key to understanding this decision is the fact that similar preliminary issues were simultaneously before this Court in Brar v Canada (Minister of Public Safety and Emergency Preparedness); Dulai v (Minister of Public Safety and Emergency Preparedness), 2020 FC 729 [Brar/Dulai], the first two appeals under the SATA. Consequently, although these reasons will be responsive to the specific submissions of the parties and the Amicus Curiae in this matter, these reasons also rely on the detailed analysis of the legal principles at issue in Brar/Dulai to answer the preliminary questions before the Court.
[5] To summarize the analysis below, I perceive my role as a designated judge under the SATA to be twofold: (1) deciding upon the reasonableness of the Minister’s decision; and (2) reconciling the competing interests in national security and individual rights in a manner that ensures the fairest judicial process possible within the parameters set by legislation and the Court’s plenary power to control its own process. Accordingly, in these circumstances, my role as a designated judge requires me to appoint an Amicus Curiae with a robust interventionist mandate and powers that give as much effect as possible to the Appellant’s right to know and meet the case against him.
[6] That being said, this decision does not answer the constitutional questions raised in the Appellant’s Notice of Appeal. Rather, the Court has considered the alleged violations of the Canadian Charter of Rights and Freedoms, Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter] in the course of crafting the judicial process within the Court’s statutory and inherent powers to decide upon the reasonableness of the Minister’s decision and the constitutionality of the SATA scheme. Whether the judicial process fashioned according to the circumstances and the limits of the Court’s powers is sufficient to ensure a fair judicial process is a question that this Court will hear later in this appeal.
II. FACTS
[7] The Appellant appeals the Minister’s decision, dated November 29, 2019, upholding his status as a “listed person” under the SATA. The Appellant filed a Notice of Appeal to this Court, dated January 24, 2020, pursuant to subsection 16(2) of the SATA. In this Notice of Appeal, the Appellant asks this Court to (1) set aside the Minister’s decision to uphold his status as a “listed person”; (2) remove him as a “listed person” under the SATA; (3) declare the impugned provisions of the SATA unconstitutional and of no force and effect or, in the alternative, order the Minister to review his decision and provide detailed reasons; and (4) such further relief as may be requested or deemed just.
[8] More specifically, the Appellant notably argues that: (1) subsection 6(2) and section 12 of the SATA violate section 8 of the Charter, and cannot be saved under section 1 of the Charter; (2) subsection 8(1) of the SATA violates sections 2 and 15 of the Charter, and cannot be saved under section 1 of the Charter; and (3) paragraphs 9(1)(a) and 9(1)(b) of the SATA violate sections 2, 6, 7, and 15 of the Charter, and cannot be saved under section 1 of the Charter.
[9] Finally, the Appellant requests disclosure of any material, including any classified material, on which the Minister has relied to make the decision. The Appellant also asks that any classified material be reviewed by “a security-cleared lawyer at [counsel for the Appellant’s firm] or by amicus, as the Court deems fit.”
[10] On February 27, 2020, Chief Justice Crampton assigned me to serve as Case Management Judge in this matter. Shortly after, on March 18, 2020, a case management conference was held to discuss matters of interest to the parties, which included, among other things, the appointment of an amicus curiae and establishing a timeline for the next steps in this appeal. Between these two dates, less than three weeks apart, COVID-19 was declared a global pandemic by the Word Health Organization and its monumental impact on Canada would become increasingly clear. During this case management conference, the parties signalled their disagreement to the Court as to the role and powers of an amicus curiae during the ex parte and in camera portions of appeals under the SATA.
[11] Following this case management conference, the Court chose to exercise its discretion and appointed Mr. Gib Van Ert as Amicus Curiae and set out certain timelines to advance this appeal in order to minimize delay, the whole done with consideration of the extraordinary circumstances brought on by the COVID-19 pandemic. As explained in the Order, Mr. Gib Van Ert was appointed as Amicus Curiae by this Court “notably given his experience in similar appeals under the SATA, which are currently before this Court.” Moreover, given the issues raised by the parties during the case management conference regarding the role of an amicus curiae in appeals under the SATA, the Court ordered that written representations be provided by the parties and the Amicus Curiae on the role, responsibilities, and powers the Amicus Curiae is to be assigned during the ex parte and in camera portions of this appeal.
III. PRELIMINARY LEGAL QUESTIONS
[12] Consistent with my Order dated March 24, 2020, the Court is tasked with determining the following questions at this preliminary stage of the appeal:
What is the role of the Amicus Curiae in this appeal?
What powers does the Amicus Curiae have at his disposal to fulfill this role?
[13] Of course, answering these questions will require me to first analyze the role of the designated judge in appeals under the SATA and the jurisdiction of this Court to name an amicus curiae.
IV. ARGUMENTS
A. RESPONDENTS’ REPRESENTATIONS
[14] The Respondents argue that while the Court can appoint an amicus curiae in SATA appeals, an amicus curiae cannot assume a role that requires them to represent the listed person as this would conflict with their role as a friend of the Court. The Respondents hold that the role of an amicus curiae is to assist the Court in fulfilling its duties and, accordingly, the powers assigned to an amicus curiae must reflect the role assigned to the designated judge throughout the appeal under the SATA. For this reason, the Respondents ask this Court to reject any interpretation of the Order appointing Mr. Gib Van Ert as Amicus Curiae that would assign him a role or powers consistent with acting as the representative of the Appellant during the ex parte and in camera portions of this appeal under the SATA.
[15] To begin, the Respondents state that the role of the designated judge can be divided according to the two phases of appeals under the SATA: the disclosure phase and the merits phase. During the disclosure phase, the phase in which the designated judge decides upon the Minister’s confidentiality claims pursuant to paragraph 16(6)(b), the Respondents state that the role of the designated judge is that of a “gatekeeper.” However, the Respondents state that during the merits phase, the phase wherein the designated judge assesses the merits of the Minister’s decision under appeal, the designated judge is tasked with deciding upon the “reasonableness” of the Minister’s decision pursuant to subsection 16(4). As such, the Respondents argue that, during the merits phase, the designated judge is tasked with a role akin to the role of a judge in a conventional judicial review – a role grounded in judicial restraint and deference to the decision-maker – as opposed to a role akin to that of a designated judge reviewing security certificates under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. The Respondents, however, acknowledge the need for the Court to potentially undertake a more robust role during the merits phase with regard to any new evidence that is submitted pursuant to paragraph 16(6)(e) of the SATA.
[16] To assist the Court in fulfilling the duties required by these distinct roles assigned to the designated judge in appeals under the SATA, the Respondents acknowledge that the Court has the inherent power to appoint an amicus curiae and that the amicus curiae’s role and powers vary according to the circumstances under which the appointment is made. That being said, the Respondents state that an amicus curiae’s inherent role to assist the Court, and the limits this role imposes, does not permit an amicus curiae to take on the role of acting on behalf of a party. The Respondents cite Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 42 at paras 49, 53, 54 and 56 [Criminal Lawyers’ Association of Ontario], in support of the statement that an amicus curiae cannot mirror the responsibilities of defence counsel. They also cite Canada (Attorney General) v Telbani, 2014 FC 1050 at paras 27–31 and Canada (Attorney General) v Huang, 2018 FCA 109 at paras 35–36 [Huang (2018) FCA], in support of the position that an amicus curiae cannot have an expanded role akin to the role played by a special advocate under the IRPA. Instead, the Respondents argue that the Order appointing the Amicus Curiae should be interpreted in a similar fashion as Huang v Canada (Attorney General), 2019 FC 1122 [Huang (2019) FC]: assigning a role to represent the interests of justice that permits the amicus curiae to make arguments in the excluded individual’s interests. Although there may be some similarities between the tasks for which the Amicus Curiae may properly be engaged in this appeal and those of a defence counsel or special advocate, the Respondents state that the purpose of those tasks are quite different as the Amicus Curiae must always act to assist the Court in making a decision in the best interest of justice. For the Respondent, this precludes any interpretation that tasks the Amicus Curiae with becoming an advocate for the Appellant.
[17] Consistent with their proposed role for the designated judge in the perceived phases of the SATA appeal and their interpretation of the inherent limits on the role of an amicus curiae, the Respondents propose that the Order should be interpreted as assigning the Amicus Curiae the following powers. In the disclosure phase, the Respondents state that the Amicus Curiae has the power to: (1) review the confidential material and engage with the Respondents to narrow disclosure issues; (2) cross-examine the affiants on the validity of the confidentiality claims; (3) make oral and written submission regarding disclosure; (4) attend public hearings, and with leave of the Court, make public submissions, and (5) assist in the preparation of summaries of information for the Appellant. However, during the merits phase, the Respondents suggest that the ability of the Amicus Curiae to cross-examine the Respondents’ witnesses on the merits of the decision under appeal be restricted to merit issues regarding new affidavit evidence filed by the Respondents and accepted by the Court, consistent with the deferential role that must be assumed by the Court in this phase. In the alternative, the Respondents state that expanding the powers of the Amicus Curiae beyond this interpretation would need to ensure that he always remains a friend of the Court.
B. APPELLANT’S REPRESENTATIONS
[18] The Appellant states that a person cannot be deprived of liberty without a fair judicial process that permits them to know and meet the case against them. As such, in the case of ex parte and in camera proceedings, the Appellant states that procedural fairness requires that there be a “substantial substitute” for full disclosure and full participation – a lawyer who, while not the Appellant’s counsel of choice, will vigorously advocate for him in the ex parte and in camera portions of a proceeding in the same way as his counsel would. The Appellant notes that the SATA deprives listed individuals of liberty and that the role of an amicus curiae is sufficiently flexible to provide a substantial substitute for the full participation by the listed person’s chosen counsel in the ex parte and in camera portions of the appeal. However, the Appellant notes that, restricting the role of an amicus curiae to something less than this renders the SATA unconstitutional for a lack of procedural fairness.
[19] First, the Appellant notes that in Charkaoui v Canada (Minister of Citizenship and Immigration), 2007 SCC 9 [Charkaoui I] and Canada (Minister of Citizenship and Immigration) v Harkat, 2014 SCC 37 [Harkat (2014)], the Supreme Court of Canada held that a fair judicial process is a principle of fundamental justice and that accordingly, any deprivation of one’s right to life, liberty, and security of the person protected in section 7 of the Charter can only take place where a fair judicial process has been followed. Moreover, consistent with Charkaoui I and Harkat (2014), the Appellant notes that the Supreme Court of Canada has stated that where an individual’s ability to know and meet the case against them as well as the judge’s ability to make a decision based on the facts and the law is restricted by a need for confidentiality and ex parte and in camera proceedings, a substantial substitute must be afforded to the individual to ensure a fair judicial process. For the Appellant, Charkaoui I and Harkat (2014) signal that a “special counsel” or “special advocate” may serve as this substantial substitute for the individual’s full participation and ability to receive full disclosure if that lawyer receives complete disclosure and is “in a position to act as vigorously and effectively as the named person himself would act in a public proceeding” (Harkat (2014), at para 47). However, the Appellant warns that a failure to provide such a substantial substitute effectively guts an individual’s right to a fair judicial process.
[20] Given that the SATA was drafted following the Supreme Court of Canada’s decisions in Charkaoui I and Harkat (2014), the Appellant states that the Court should apply the presumption of statutory conformity and hold that the requirements stipulated in Charkaoui I and Harkat (2014) to render ex parte and in camera proceedings constitutionally compliant implicitly inhere in the SATA. Given the absence of an explicit substantial substitute in the SATA, the Appellant states that the Amicus Curiae’s role should be interpreted as serving as this substantial substitute for the Appellant’s chosen counsel. The Appellant notes that the need for a substantial substitute was explicitly acknowledged by this Court in its Order appointing the Amicus Curiae and is demonstrated implicitly in the powers afforded to the Amicus Curiae.
[21] The Appellant states that the role of an amicus curiae is sufficiently flexible to encompass acting as a substantial substitute for an appellant’s counsel in an appeal under the SATA. The Appellant argues that an amicus curiae should act as if they were partisan counsel and that this is common place and consistent with the general understanding that an amicus curiae is intended to represent interests that are not before the Court. Indeed, the Appellant notably points to Canada (Attorney General) v Ribic, 2003 FCA 246 at para 6 where the amicus curiae was appointed to “act on behalf of counsel for [the excluded individual]” as well as an Order from Justice Mosley dated September 19, 2011, in Canada (Attorney General) v Almalki, DES-1-11 at para 6(a) where the amici curiae were ordered to review documents, “acting as if they were in camera counsel for the respondents.” The Appellant states that the Supreme Court of Canada’s decision in Criminal Lawyers’ Association of Ontario should be distinguished as this is not a case of a self-represented accused seeking the appointment of an amicus curiae in a public proceeding but rather a case where there is a need for a substantial substitute in ex parte and in camera proceedings. The Appellant highlights several decisions following Criminal Lawyers’ Association of Ontario where a court has found that the presence of a heightened potential for a miscarriage of justice called for the appointment of an amicus curiae to act in a partisan role: see R v Jaser, 2014 ONSC 2277 [Jaser] at para 35 and R v Imona-Russel, 2019 ONCA 252 at paras 85, 88 and 91 [Imona-Russel].
[22] In sum, given the enormous potential for a miscarriage of justice in this SATA appeal process where the Appellant is precluded from full participation and full disclosure, the Appellant concludes that the Amicus Curiae will ultimately be assisting the Court by acting as if he were the Appellant’s ex parte and in camera counsel as this assists the Court by ensuring a fair judicial process. Therefore, the Order appointing the Amicus Curiae should be interpreted as conferring such a role and powers.
C. AMICUS CURIAE’S REPRESENTATIONS
[23] The Amicus Curiae submits that an amicus curiae can serve the role of a substantial substitute to full disclosure in national security proceedings. However, doing so does not make them a representative of the excluded party. The Amicus Curiae’s role is not to represent the Appellant but serve as a traditional friend of the court; however, discharging this role will sometimes see the Amicus Curiae playing a role opposite to that of the Respondents when presenting the Court with the interests of the Appellant. That being said, the Amicus Curiae states that the Respondents’ proposed general limitation on the Amicus Curiae’s ability to cross-examine their witnesses must be rejected as an appeal under the SATA must not necessarily be divided into two phases and because imposing a general restriction on cross-examination based on such a division is unsafe and shields the Minister’s decision from scrutiny.
[24] Pursuant to this Court’s Order appointing the Amicus Curiae dated March 24, 2020, the Amicus Curiae states that he is assigned two roles: (1) assisting the Court in forming its opinion in closed hearings; and (2) assisting the Court in determining disclosure issues. The Amicus Curiae’s first role is responsive to the right to know and meet the case against one and the need for an adequate substantial substitute for persons who cannot participate in the closed portions of national security proceedings, citing Harkat (2014) and Charkaoui I. Meanwhile, the second role is to help ensure that the Appellant receives the “incompressible minimum amount of disclosure” required to ensure a fair judicial process that complies with section 7 of the Charter (Harkat (2014), at paras 54–55).
[25] The Amicus Curiae states that, in exercising these roles, the jurisprudence is clear that the appointment of an amicus curiae is “generally intended to represent the interests that are not represented before the court, to inform the court of certain factors it would not otherwise be aware of, or to advise the court on a question of law” but, in doing so, always remain a friend of the Court and not a representative of any party, citing Telbani, at paras 27 and 30. However, by representing the interests of a party not before the Court and making arguments on their behalf, the Amicus Curiae states that the jurisprudence acknowledges that the assistance required of an amicus curiae may converge with the interests of an excluded party in some circumstances. The important part is that an amicus curiae must always remain a friend of the Court. The Amicus Curiae cites in support: Telbani, at para 30; Khadr v Canada (Attorney General), 2008 FC 46 at paras 30–32 [Khadr]; and Huang (2019) FC, at paras 27–31.
[26] Finally, concerning the powers afforded to the Amicus Curiae to fulfill these roles, the Amicus Curiae opposes the general restriction proposed by the Respondents on his ability to cross-examine their witnesses. First, the Amicus Curiae states that the basis of this proposed restriction, being the division of the appeal into two distinct phases, is unsafe and cannot be relied upon as the foundation of a general restriction because the line between issues of disclosure and issues of merit is not as a clear as the Respondents make it out to be. Second, the Amicus Curiae states that adopting an abstract restriction on the ability to cross-examine will not assist the designated judge in making determinations on the reasonableness of the decision under appeal, but rather hinder their ability to do so. Third, the Amicus Curiae states that the usual and preferable approach is for the Respondents’ counsel to make objections as they see fit in the course of the hearing and have the designated judge rule on them having heard the disputed question and evidence that prompted it rather than adopt a general restriction in the abstract from the outset. Fourth, the Amicus Curiae argues that the proposed restriction by the Respondents would permit them to shield the Minister’s decision from scrutiny by not putting forward witnesses who can speak to its merits – the Amicus Curiae states that he should not be precluded from any line of questioning that is fruitful due to the Respondents’ strategic choices; this is not helpful to the Court.
V. ANALYSIS
[27] As noted above, the principal legal questions at issue before this Court pertain to the role and powers of the Amicus Curiae. However, to answer these questions, it is first essential to briefly review and analyze the role of the designed judge in appeals under the SATA. Accordingly, my analysis will be structured as follows: (A) Role of the Designated Judge; (B) Role of the Amicus Curiae – A Complement to the Designated Judge; and (C) Powers of the Amicus Curiae. Of course, seeing as these preliminary issues were dealt with in great length in Brar/Dulai, my analysis below mostly summarizes my findings in Brar/Dulai and adapts them to the context of this appeal.
A. Role of the Designated Judge
[28] In this appeal, the Respondents argue that the role of the designated judge is divided according to the two phases of appeals under the SATA, being the disclosure phase and the merits phase. During the disclosure phase, the Respondents state that the judge may assume a “gatekeeper” role but that, during the merits phase, the designated judge is tasked with a role akin to the role of a judge in a conventional judicial review. This argument was also made by the Minister in Brar/Dulai. Consistent with my findings in Brar/Dulai, I cannot agree with the Respondents.
[29] The SATA primarily relies on its appeal mechanism to balance its national security objectives with its objective to protect individual rights and freedoms. At the centre of this appeal mechanism is the designated judge, who is the “cornerstone of the procedure” (Charkaoui I, at para 34; Brar/Dulai, at paras 90 and 105). Indeed, the appeal provisions at section 16 of the SATA assign significant discretion to designated judges in order to allow them to fulfill their role of (1) ensuring a fair judicial process that does not undermine the national security objectives of the SATA, and (2) deciding the reasonableness of the Minister’s decision on appeal (Brar/Dulai, at paras 105–127).
[30] As I found in Brar/Dulai, at para 105, this role assigned by the SATA requires the designated judge to assume an active and interventionist role throughout the entire proceedings under the SATA, analogous to the role described by the Supreme Court of Canada in Charkaoui I, at paras 39–42 and Harkat (2014), at para 46, the latter succinctly stating:
[46] First, the designated judge is intended to play a gatekeeper role. The judge is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility, but also that the overall process is fair: “. . . in a special advocate system, an unusual burden will continue to fall on judges to respond to the absence of the named person by pressing the government side more vigorously than might otherwise be the case” (C. Forcese and L. Waldman, “Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of ‘Special Advocates’ in National Security Proceedings” (2007) (online), at p. 60). Indeed, the IRPA scheme expressly requires the judge to take into account “considerations of fairness and natural justice” when conducting the proceedings: s. 83(1)(a), IRPA. The designated judge must take an interventionist approach, while stopping short of assuming an inquisitorial role.
[31] Notwithstanding the fact that the SATA does not require the separation of an appeal into two distinct phases and that such a division is, in many cases, impractical as disclosure and merit issues often become intertwined, I have found that this “gatekeeper” role is essential all throughout the proceedings given the serious limits on full participation and full disclosure imposed by the SATA and the potential Charter rights violations at play (Brar/Dulai, at para 105). Only by assuming such an active and interventionist role throughout the entire proceeding can a designated judge ensure their independence and impartiality, their ability to make a decision based on the facts and the law, and the appellant’s right to know and meet the case against them, all key principles of a fair judicial process. That being said, as we will see below, although the assumption of an active and interventionist role throughout the proceedings is key in ensuring a fair judicial process, in many cases, this alone will not be enough to provide a substantial substitute for an excluded party (Brar/Dulai, at para 139). More on this later. For now, consistent with my findings in Brar/Dulai, I will briefly canvass the two aspects of the role assigned to the designated judge under the SATA.
[32] The first part of the role assigned to the designated judge under the SATA is ensuring a fair judicial process within the limits imposed by the SATA on the ability for the appellant to receive full disclosure and to fully participate all throughout the proceedings (Brar/Dulai, at paras 106–112). Fulfilling this role requires the designated judge to assume their “gatekeeper” role so that they may ensure that an appellant is provided with the most information possible to directly know and meet the case against them within the limits of the SATA. As such, the designated judge must conduct a “vigilant and skeptical” review of the Minister’s confidentiality claims, given the appellant’s absence from these proceedings, to ensure that the most information is directly disclosed to an appellant as possible within the limits of the SATA to avoid potential overclaiming by the Minister. Limiting full disclosure to a party must be exceptional and only done where required. From there, should certain information need to be kept confidential pursuant to the SATA, the judge must assume their role as a gatekeeper and attempt to provide an appellant with as much information as possible within the confidentiality limits of the SATA, via summaries or otherwise, to ensure the fairest judicial process possible. The core of this role is summarized at para 112 of Brar/Dulai:
[…] The designated judge must actively search for ways to provide as much information as possible to the appellant while still protecting the confidentiality of certain information for national security reasons. Like an elastic, designated judges must stretch their statutory and inherent powers to ensure that as much disclosure is provided to the appellant while stopping short of the breaking point. A designated judge must feel satisfied that the disclosure (through summaries or by other means) is, in substance, sufficient to allow appellants to be “reasonably informed” (paragraph 16(6)(e)) of the case made against them and be able to present their side of the story, at the very least via the assistance of a substantial substitute (Harkat (2014), at paras 51–63 and 110). Only then will the designated judge have the necessary facts and law to render a fair decision.
[33] The second part of the role assigned to the designated judge is to ensure the reasonableness of the Minister’s decision. As found in Brar/Dulai, at para 115, this too requires the designated judge to assume an active and interventionist role. Indeed, the designated judge must decide upon the reasonableness of the Minister’s decision on appeal (subsection 16(4)), on a potentially different evidentiary record that was before the Minister (subsection 16(4), and paragraphs 16(6)(e) and 16(6)(g)), which includes information that an appellant has never seen (paragraphs 16(6)(a), 16(6)(b) and 16(6)(f)), and has the power to directly order the Minister to remove an appellant from the SATA list, should the Minister’s decision be deemed unreasonable (subsection 16(5)). The importance of assuming an active and interventionist role when assessing the reasonableness of the Minister’s decision, given these important restrictions and the considerable discretion assigned to the designated judge, is summarized at para 127 of Brar/Dulai:
[127] In all, a holistic reading of the appeal provisions of the SATA according to their legal context requires that a designated judge assume a “gatekeeper” role when assessing the reasonableness of the appealed decision. A fair judicial process requires that a judge be able to ground their decision on the facts and the law; it entails that the designated judge must be able to sufficiently test the relevancy and the trustworthiness of the evidence. This is particularly so for two reasons. First, the appeal stage of the proceedings under the SATA is effectively the first time the appellant is able to meaningfully question the merits of the evidence grounding the Minister’s decision. Second, given that the judge will likely have to consider evidence or information not directly disclosed to the appellant, the designated judge must assume a role that gives them the ability to sufficiently test the relevancy and trustworthiness of the relied upon evidence in these circumstances. In conferring these powers upon the designated judge, Parliament evidently considered that simply deferring to the Minister’s findings of fact in these cases without the designated judge’s further involvement would not be in the interest of justice. It follows that designated judges in appeals under the SATA must actively involve themselves in testing the evidence presented by the Minister all throughout the ex parte and in camera proceedings, including questioning the witnesses before the Court in ex parte and in camera proceedings.
[34] However, although a designated judge whom assumes their role in an active an interventionist manner is a key element to ensuring a fair judicial process in the context of ex parte and in camera proceedings in national security matters, this alone does not provide for a substantial substitute. A complement to the designated judge is required given the important Charter rights at play and the significant limits on full participation and full disclosure imposed by the SATA (Brar/Dulai, at paras 139–141). This therefore brings me to discuss the role of the Amicus Curiae in this appeal.
B. Role of the Amicus Curiae – A Complement to the Designated Judge
[35] Despite the assumption of a “gatekeeper” role by the designated judge when an individual’s Charter rights, notably section 7 rights, are at play and full disclosure and full participation is impossible due to national security interests, the Supreme Court of Canada has stated that this alone does not ensure a fair judicial process. This is because there is no substantial substitute for full disclosure and full participation, which, in turn, does not ensure that the designated judge’s ability to ground their decision on the facts and the law is preserved given the absence of a mechanism to challenge the confidential information or evidence relied upon by the Minister. In Charkaoui I, the Court stated that the designated judge is “not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring” (para 64). Instead, the Court found that the appointment of a third-party counsel in ex parte and in camera proceedings could serve as a substantial substitute for full disclosure and full participation (paras 70–84). A few years later, this was confirmed by the Supreme Court of Canada in Harkat (2014), at paras 45–47. See also Brar/Dulai, at paras 139–141.
[36] In essence, what can be drawn from Harkat (2014) and Charkaoui I is that, given the strict limits on disclosure imposed by the SATA (similar to the IRPA), a fair judicial process requires that the designated judge assume a “gatekeeper” role throughout an appeal under the SATA but also requires the presence of a third-party counsel in ex parte and in camera proceedings to provide a substantial substitute (Brar/Dulai, at para 141). In this appeal, I have appointed the Amicus Curiae to serve as this substantial substitute. At this preliminary stage, I will canvass my ability to appoint an amicus curiae under the SATA and the role assigned to the Amicus Curiae. That being said, whether the judicial process fashioned according to the Court’s statutory and inherent powers serves as an adequate substantial substitute will be decided at a later stage of this appeal when this Court considers the constitutionality of the SATA scheme.
(1) The Amicus Curiae and the Inherent Jurisdiction of the Court
[37] The appointment of amici curiae by courts in situations where certain critical interests are absent has become increasingly prevalent. This is notably the case in national security proceedings. For instance, the appointment of amici curiae has become common place in the context of proceedings under section 38 of the Canada Evidence Act, RSC 1985, c C-5 (Huang (2018) FCA, at para 36; Telbani, at para 26; and Khadr, at paras 12–16), in the context of warrants under section 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 [CSIS Act] (Canadian Security Intelligence Service Act (Re), 2008 FC 300 at para 3 [CSIS Act (Re) (2008)]; and Canadian Security Intelligence Service Act such as: Sections 16 and 21 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23 (Re), 2018 FCA 207), and privilege claims pursuant to section 18.1 of the CSIS Act (X (Re), 2017 FC 136 at paras 31–32; and Section 18.1 of the Canadian Security Intelligence Service Act, RSC 1985, c C-23, as Amended (Re), 2018 FCA 161 at paras 41–47, 53 and 56–57 [Section 18.1 CSIS Act (Re)]). See detailed discussion on this point in Brar/Dulai, at paras 157–164.
[38] The Court’s jurisdiction to appoint an amicus curiae is inherent and grounded in its “authority to control its own process and function as a court of law” (Criminal Lawyers’ Association of Ontario, at para 46). Nonetheless, the Supreme Court of Canada has also specified that amici curiae must only be appointed when their assistance is essential to helping the judge discharge their judicial functions (Criminal Lawyers’ Association of Ontario, at para 47).
[39] In essence, the role of the amicus curiae is to serve the Court. How this general role manifests itself varies according to the circumstances as their particular role and responsibilities are dependent on the judge who appoints them. However, despite this flexibility in the amicus curiae’s mandate, the Supreme Court of Canada has recognized that a court cannot assign an amicus curiae a role that obliges them to take on a solicitor-client role on behalf of a party. This is because the amicus curiae’s duty of loyalty must always lie with the Court rather than a party (Criminal Lawyers’ Association of Ontario, at para 49). That being said, amici curiae have generally been tasked to “represent interests that are not represented before the court, to inform the court of certain factors it would not otherwise be aware of, or to advise the court on a question of law” (Telbani, at para 27).
[40] In the array of circumstances noted above, where it has become the common practice of this Court to appoint an amicus curiae in the context of designated proceedings, amici curiae are called upon to help designated judges fulfill their statutory duties in a manner that upholds the judge’s overarching duty to ensure a fair judicial process. Seeing as ex parte and in camera proceedings inherently exclude concerned parties, the mandate of amici curiae have therefore largely been focused on providing the Court with the interests of the excluded party who does not have access to certain confidential information (see Brar/Dulai, at paras 164–167). This is observed by Justice Mosley in Khadr at para 32:
[32] Similarly, I am of the view that in the context of a section 38 applications related to a criminal proceeding, such as in the present case, an amicus appointed by the Court may present the issues favouring the person seeking disclosure of the information during the ex parte portion of the proceedings and may be said in that respect to act for the individual at that stage. But the ami