Jaballah (Re)

Jaballah (Re)
Court (s) Database
Federal Court Decisions
Date
2010-02-26
Neutral citation
2010 FC 224
File numbers
DES-6-08
Notes
Reported Decision
Decision Content
Date: 20100226
Docket: DES-6-08
Citation: 2010 FC 224
Ottawa, Ontario, February 26, 2010
PRESENT: The Honourable Madam Justice Dawson
BETWEEN:
IN THE MATTER OF a certificate signed pursuant
to section 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
section 77(1) of the IRPA;
AND IN THE MATTER OF
MAHMOUD ES-SAYYID JABALLAH
REASONS FOR ORDER
[1] Mahmoud Jaballah is named in a security certificate signed by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (Ministers). The certificate has been referred to the Court pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) and the Court is in the process of determining whether the certificate is reasonable.
[2] In the course of this proceeding, Mr. Jaballah has moved for an order:
Excluding pursuant to s. 24(2) of the Charter all evidence given by Mr. Jaballah in the course of the proceedings pursuant to the security certificates issued against him prior to the issuance of present security certificate of February 22, 2008 as those proceedings were conducted in breach of the principles of fundamental justice.
Further, or in the alternative, precluding the Ministers from using Mr. Jaballah’s evidence before the IRB or in proceedings in relation to the security certificates issued against him in 1999 and 2001, in accordance with s. 13 of the Charter.
In the further alternative, precluding the Ministers from using Mr. Jaballah’s evidence before the IRB or in proceedings in relation to the security certificates issued against him as part of their case in chief, in accordance with s. 13 of the Charter.
[3] An initial request that the security certificate be quashed pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms, 1982, (Charter) has been withdrawn by Mr. Jaballah.
[4] The relevant facts underpinning the motion are as follows.
1. Factual Background
[5] Mr. Jaballah is not a citizen of Canada. He and his family arrived in Canada on May 11, 1996, and claimed refugee protection. A hearing ensued before the Immigration and Refugee Board (IRB). Mr. Jaballah testified in support of that claim for a number of days, commencing in May of 1998.
[6] Mr. Jaballah's refugee claim was pending when, on March 31, 1999, the Minister of Citizenship and Immigration and the Solicitor General of Canada signed a security certificate in which they expressed their opinion that Mr. Jaballah was inadmissible to Canada on national security grounds.
[7] Mr. Jaballah was provided with a summary of the case against him and certain non-secret supporting documents. A hearing into the reasonableness of the certificate proceeded before Justice Cullen of this Court. Mr. Jaballah testified before Justice Cullen in June and August of 1999. Justice Cullen issued reasons and an order on November 2, 1999, in which he found the security certificate was not reasonable so that it was quashed.
[8] A second security certificate was issued against Mr. Jaballah on August 13, 2001. Mr. Jaballah was again provided with a summary of the case against him and non-secret supporting documents. This material was subsequently supplemented and amended. In reasons reported at [2007] F.C.J. No. 518 concerning Mr. Jaballah, Justice Layden-Stevenson wrote:
44. Second is the fact that the public record in this matter is voluminous. The summary of the Ministers' evidence with respect to Mr. Jaballah is extensive and has been amended and expanded over time. There is little to distinguish the evidence (documents and testimony submitted by the parties on the public record) from the information (which for convenience I will call the classified information although it is more appropriately characterized as defined in section 76 of the IRPA). [Emphasis added.]
[9] A hearing to determine the reasonableness of the second certificate proceeded before Justice MacKay of this Court. On the advice of his lawyer, Mr. Jaballah did not testify at the second proceeding and, in the course of the hearing, Mr. Jaballah's counsel withdrew. On May 23, 2003, Justice MacKay issued reasons and an order in which he found the certificate to be reasonable.
[10] That finding of reasonableness was set aside by the Federal Court of Appeal on procedural grounds in July of 2004. The matter was remitted to the Federal Court and Justice MacKay was again designated by the Chief Justice to determine whether the certificate was reasonable.
[11] On August 24, 2005, Mr. Jaballah applied for release from detention. During the detention review hearing in September of 2005, Mr. Jaballah testified for four days. His testimony and cross-examination touched upon matters relevant to the reasonableness of the certificate. The motion for release from detention was dismissed.
[12] The hearing into the reasonableness of the certificate then followed. On May 23, 2006, Justice MacKay ordered that:
[…] any testimony of Mr. Jaballah, given at this stage with respect to the August 2001 security certificate issued against him, shall be used solely for the purposes of this proceeding (Court file DES-04-01) pending further order of this Court, to be made after receiving submissions of counsel for the parties concerning appropriate limitations, if any, of the future use of testimony now offered by Mr. Jaballah.
[13] After hearing submissions from counsel concerning any limitations to be placed upon the future use of testimony provided by Mr. Jaballah, on August 18, 2006 Justice MacKay ordered that:
The respondent, Mr. Jaballah, shall have use and derivative use immunity for testimony given by him in open Court in May and July 2006 in regard to the reasonableness of the Ministers’ security certificate issued in August 2001 in any possible criminal proceedings against him, except any prosecution in respect of perjury or the giving of contradictory evidence, and also, unless he agrees to its use, in any subsequent proceedings concerning reasonableness of the Ministers’ security certificate of August 2001 if the current proceeding should be aborted or quashed as a result of the Supreme Court of Canada’s anticipated decision with respect to appeals in the cases known under the names Almrei, Charkaoui, and Harkat.
[14] During May and July, 2006, Mr. Jaballah testified at the hearing to determine the reasonableness of the certificate.
[15] On October 16, 2006, Justice MacKay issued reasons and an order again finding the security certificate to be reasonable.
[16] A further application for release from detention was made by Mr. Jaballah. This application was heard by Justice Layden-Stevenson, then a judge of this Court. Mr. Jaballah testified before her in October of 2006. On October 2, 2006, Justice Layden-Stevenson issued an order on the following terms:
IT IS HEREBY ORDERED that the Applicant, Mr. Jaballah, shall have use and derivative use immunity for testimony given by him in open Court in October, 2006 in regard to a review of detention arising as a result of the Ministers’ security certificate issued in August, 2001 in any possible criminal proceedings against him, except any prosecution in respect of perjury or the giving of contradictory evidence, and also, unless he agrees to its use, in any subsequent proceedings concerning reasonableness of the Ministers’ security certificate of August, 2001 if the certificate proceedings should be aborted or quashed as a result of the Supreme Court of Canada’s anticipated decision with respect to appeals in the cases known under the names Almrei, Charkaoui and Harkat. [Emphasis in original.]
[17] On February 23, 2007, the Supreme Court of Canada released its judgment in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 (Charkaoui I). The Court determined that section 7 of the Charter was engaged in security certificate proceedings and that the then existing procedure under the Act in respect of security certificates infringed section 7 of the Charter. This was because the secrecy then required under the Act denied a person named in a security certificate the opportunity to know the case against him or her, and therefore denied the person the opportunity to meaningfully challenge the government's case.
[18] A third security certificate in respect of Mr. Jaballah was issued by the Ministers on February 22, 2008. The case now advanced against Mr. Jaballah is set out in a secret security intelligence report. A public summary and an amended public summary of the security intelligence report have been provided to Mr. Jaballah. The amended public summary discloses that, in support of their allegations, the Ministers rely upon portions of Mr. Jaballah's testimony given before the IRB, Justice Cullen and Justice MacKay. The Ministers do not rely upon Mr. Jaballah's evidence before Justice Layden-Stevenson.
2. The Issues
[19] These reasons address the following issues:
a. Is Mr. Jaballah entitled to a remedy under subsection 24(2) of the Charter?
b. Is Mr. Jaballah entitled to a remedy under section 13 of the Charter?
c. Is this a proper case for the application of paragraph 83(1)(h) of the Act?
3. Is Mr. Jaballah entitled to a remedy under subsection 24(2) of the Charter?
[20] Subsection 24(2) of the Charter states:
24. (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
24. (2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s'il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l'administration de la justice.
[21] The first matter, therefore, for the Court to consider is whether Mr. Jaballah’s prior testimony "was obtained in a manner that infringed or denied any rights or freedoms" guaranteed by the Charter.
[22] It is Mr. Jaballah’s submission that "it is beyond controversy" that his right to a fair hearing, guaranteed by section 7 of the Charter, was violated in the previous security certificate proceedings because the prior legislative regime failed to allow him to know the case against him and to meet that case. It follows, he further submits, that his testimony before this Court in the prior proceedings was obtained in a manner that infringed his right to know the case against him and to meet that case. It should, therefore, be excluded in this proceeding. Mr. Jaballah does not seek to exclude his testimony before the IRB on this basis.
[23] The Ministers respond that Mr. Jaballah has not established that, in these circumstances, subsection 24(2) of the Charter is engaged. This is said to be because there was no connection between the Charter violation found by the Supreme Court of Canada in Charkaoui I and Mr. Jaballah's evidence which was given voluntarily and under oath. Absent a relevant Charter violation in the gathering of evidence, subsection 24(2) has no application.
[24] The phrase "obtained in a manner" was considered by the Supreme Court in R. v. Strachan, [1988] 2 S.C.R. 980. The Court observed that ordinarily only a few Charter rights, those protected by sections 8, 9 and 10 of the Charter, will be relevant to the gathering of evidence and therefore be relevant to the remedy of exclusion under subsection 24(2) of the Charter. The Court rejected the requirement of a strict causal nexus because that would require courts to speculate upon whether evidence would have been discovered in the absence of the prior Charter violation. At pages 1005 and 1006, the majority of the Court wrote:
46. In my view, all of the pitfalls of causation may be avoided by adopting an approach that focuses on the entire chain of events during which the Charter violation occurred and the evidence was obtained. Accordingly, the first inquiry under s. 24(2) would be to determine whether a Charter violation occurred in the course of obtaining the evidence. A temporal link between the infringement of the Charter and the discovery of the evidence figures prominently in this assessment, particularly where the Charter violation and the discovery of the evidence occur in the course of a single transaction. The presence of a temporal connection is not, however, determinative. Situations will arise where evidence, though obtained following the breach of a Charter right, will be too remote from the violation to be "obtained in a manner" that infringed the Charter. In my view, these situations should be dealt with on a case by case basis. There can be no hard and fast rule for determining when evidence obtained following the infringement of a Charter right becomes too remote. [Emphasis added.]
[25] Subsection 24(2) was again considered by the Supreme Court of Canada in R. v. Goldhart, [1996] 2 S.C.R. 463. The issue before the Court was whether the viva voce evidence of a witness who was arrested following an illegal search was subject to a subsection 24(2) analysis. The majority of the Court found that subsection 24(2) had no application to the facts before the Court because there was no temporal connection between the viva voce evidence and the Charter breach. Further, any causal connection was too remote.
[26] At page 482 of the report, the Court reviewed its prior jurisprudence, writing:
Although Therens and Strachan warned against over-reliance on causation and advocated an examination of the entire relationship between the Charter breach and the impugned evidence, causation was not entirely discarded. Accordingly, while a temporal link will often suffice, it is not always determinative. It will not be determinative if the connection between the securing of the evidence and the breach is remote. I take remote to mean that the connection is tenuous. The concept of remoteness relates not only to the temporal connection but to the causal connection as well. It follows that the mere presence of a temporal link is not necessarily sufficient. In obedience to the instruction that the whole of the relationship between the breach and the evidence be examined, it is appropriate for the court to consider the strength of the causal relationship. If both the temporal connection and the causal connection are tenuous, the court may very well conclude that the evidence was not obtained in a manner that infringes a right or freedom under the Charter. On the other hand, the temporal connection may be so strong that the Charter breach is an integral part of a single transaction. In that case, a causal connection that is weak or even absent will be of no importance. Once the principles of law are defined, the strength of the connection between the evidence obtained and the Charter breach is a question of fact. Accordingly, the applicability of s. 24(2) will be decided on a case-by-case basis as suggested by Dickson C.J. in Strachan. [Emphasis added.]
[27] Turning to the application of the law to the facts before the Court, the Court wrote as follows at page 483:
In order to assess properly the relationship between the breach and the impugned evidence, it is important to bear in mind that it is the viva voce evidence of Mayer that is said to have been obtained in a manner that breaches the Charter. A distinction must be made between discovery of a person who is arrested and charged with an offence and the evidence subsequently volunteered by that person. The discovery of the person cannot simply be equated with securing evidence from that person which is favourable to the Crown. The person charged has the right to remain silent and in practice will usually exercise it on the advice of counsel. The prosecution has no assurance, therefore, that the person will provide any information let alone sworn testimony that is favourable to the Crown. In this regard it has been rightly observed that testimony cannot be treated in the same manner as an inanimate object. As Brooke J.A. observed in his dissenting opinion, at p. 85:
Testimony is the product of a person's mind and known only if and when that person discloses it. It cannot be obtained or discovered in any other way. Testimony which is heard for the first time some months after a search cannot be equated with or analogized to evidence of an inanimate thing found or seized when an illegal search is carried out.
Similarly, Rehnquist J., as he then was, in United States v. Ceccolini, 435 U.S. 268 (1978), explained the difference as follows, at pp. 276-77:
Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence.
When the evidence is appropriately characterized as indicated above, the application of the relevant factors yields a different result from that reached by the trial judge and the majority of the Court of Appeal. In order to find a temporal link the pertinent event is the decision of Mayer to cooperate with the Crown and testify, and not his arrest. Indeed the existence of a temporal link between the illegal search and the arrest of Mayer is of virtually no consequence. Moreover, any temporal link between the illegal search and the testimony is greatly weakened by intervening events of Mayer's voluntary decision to cooperate with the police, to plead guilty and to testify. The application of the causal connection factor is to the same effect. The connection between the illegal search and the decision by Mayer to give evidence is extremely tenuous. Having regard, therefore, to the entire chain of events, I am of the opinion that the nexus between the impugned evidence and the Charter breach is remote. In this regard I agree with Brooke J.A. when he states, at pp. 85-86:
Clearly, the testimony of Mayer cannot be said to be derivative of the breach as was the case of the testimony of Hall in R. v. Burlingham.... There may be some link to the evidence of the finding of the marijuana, but this is surely not a basis on which to say the testimony was discovered or obtained by the breach of the appellant's rights. There must be a point at which a chain connecting the breach and the testimony is sufficiently weakened as to render the testimony untainted or too remote from the original breach. If this is not so, the ramifications may be far-reaching with respect to the exclusion of testimony of a co-accused where the Crown seeks to take advantage of it. In my opinion, the link between the breach and Mayer's testimony does not survive an analysis of remoteness or attenuation.
For the foregoing reasons, the relationship between the infringement of s. 8 of the Charter and the viva voce evidence of Mayer does not lead me to conclude that the latter was obtained in a manner that infringes or denies a Charter right or freedom. Section 24(2) of the Charter is, therefore, not engaged and is not available to exclude the evidence. The evidence is relevant and was properly admitted at trial. The majority of the Court of Appeal was in error in setting aside the conviction.
[28] Important points in that analysis are that:
· Testimony cannot be treated in the same manner as an inanimate object (such as drug paraphernalia found during an illegal search) because there is no assurance that a person will testify or give evidence that is contrary to their interest; and
· On the facts before the Court, any temporal link was greatly weakened by the intervening events of the witness’ decisions to cooperate with the police, plead guilty and testify.
[29] As the Supreme Court noted in Strachan, ordinarily few Charter rights will be relevant to the gathering of evidence and hence be relevant to subsection 24(2) of the Charter. However, in the present case no argument was made that section 7 of the Charter is, as a matter of law, incapable of supporting a Charter violation within the contemplation of subsection 24(2) of the Charter. I accept that section 7 can support a remedy under subsection 24(2) of the Charter. Notwithstanding, it is fair to state that the facts now before the Court provide an unusual context in which to consider subsection 24(2) of the Charter.
[30] For that reason, during the oral argument of this motion, I canvassed with counsel what would constitute relevant causal or temporal links in this context. Counsel agreed that a causal link would require a connection between Mr. Jaballah's previous testimony and the section 7 violations articulated by the Supreme Court of Canada. They further agreed that a temporal link would require some connection between when Mr. Jaballah’s evidence was obtained and the time at which the Charter breach occurred. See: transcript October 30, 2009 pages 260-261 and pages 364-365.
[31] Turning to whether a causal link exists between a Charter breach and Mr. Jaballah’s prior testimony, the starting point of my analysis is the articulation by the Supreme Court of Canada in Charkaoui I of the nature of the Charter infringing conduct. The Court made the following points:
· A fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case (paragraph 53);
· Under the then existing provisions of the Act, the named person might be deprived of access to some or all of the information put against him or her. This denied the person named in the certificate the ability to know the case to be met (paragraph 54);
· Ultimately, a designated judge might have to consider information that was not included in the summary provided to the person concerned. In the result, the judge might be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never saw. The named person may, therefore, have known nothing of the case to be met. Although technically afforded an opportunity to be heard, the person concerned might be left in the position of having no idea about what needed to be said (paragraph 55);
· Without knowledge of the information before the Court, the named person might not have been able to raise relevant legal objections or to develop relevant legal arguments. This undermined the judge's ability to come to a decision based upon all relevant facts and law (paragraphs 52 and 65);
· The right to know the case to be met is not absolute. The Supreme Court had previously recognized, and continued to recognize, that national security concerns can limit the extent of disclosure of information to an affected individual (paragraphs 57 and 58);
· In some contexts, substitutes for full disclosure might permit compliance with section 7 of the Charter. For section 7 to be satisfied, either the named person must be given the necessary disclosure, or a substantial substitute for the disclosure of that information must be found. Neither circumstance occurred under the former legislative scheme. (Paragraphs 59 and 61); and,
· The procedures then in force for determining whether a certificate was reasonable could not be justified as minimal impairments of the individual’s rights to judicial determination on the facts and the law, and to know and meet the case. Mechanisms developed in Canada and abroad, such as the Security Intelligence Review Committee counsel and the special advocate system employed in the United Kingdom, illustrated that the government could do more to protect the rights of a person named in a security certificate while keeping critical information confidential (paragraphs 71 and 81).
[32] To summarize, in Charkaoui I the Supreme Court found that section 7 of the Charter requires that either a person named in a security certificate be given the opportunity to know and meet the case, or that a substantial substitute for the provision of sufficient information must be found.
[33] I now turn to consider whether there is a connection between the section 7 violation identified by the Supreme Court in Charkaoui I and Mr. Jaballah's prior testimony.
[34] In oral argument, counsel for Mr. Jaballah agreed that in order to assess whether there was any linkage between the alleged Charter breach and the content of Mr. Jaballah's prior evidence, one must know the extent to which the nature of the case to be met had been disclosed to Mr. Jaballah at the time his evidence was given. See: transcript October 30, 2009 at pages 358-359. That said, there is limited information before the Court on this motion as to the content of the summaries and the supporting evidence provided to Mr. Jaballah in the prior proceedings.
[35] Counsel for Mr. Jaballah did provide a comparison document, issued in the course of the 2001 reasonableness proceeding, that compared the content of the summaries originally provided in 1999 with the summary provided in the 2001 security certificate proceedings. Counsel for Mr. Jaballah then contrasted the lack of information said to be in the summaries with the content of Mr. Jaballah’s cross-examination on September 13, 2005. However, as set out above, Justice Layden-Stevenson explained that the summary provided to Mr. Jaballah in 2001 was amended and expanded over time so that at least by the 2006 detention review hearing there was little, in her view, to distinguish the evidence in the public record from the confidential information.
[36] On this motion all of the transcripts of Mr. Jaballah’s prior testimony are contained in a compendium filed with the Court. However, the summaries and supplementary disclosures provided from time to time are not.
[37] The consequence of the failure to provide the disclosure is that it is difficult to assess the extent to which Mr. Jaballah did not know the case to be met when he testified from time to time, and to then assess how that may or may not have affected the content and fairness of his testimony.
[38] A second difficulty faced by Mr. Jaballah in establishing any causal connection is that, for reasons discussed below, I find that Mr. Jaballah is not, and was not, a compellable witness in the prior security certificate proceedings. Mr. Jaballah’s prior testimony before this Court was voluntary. Indeed, on the advice of his then counsel, Mr. Jaballah chose not to testify during the 2001 reasonableness hearing. As noted by the Court in Goldhart, it follows that the Ministers had no assurance that after the certificate was issued Mr. Jaballah would provide evidence, let alone evidence that the Ministers would later seek to rely upon. Because Mr. Jaballah was not a compellable witness, his evidence could not be "obtained" by the Ministers. Mr. Jaballah's testimony could only result from his voluntary decision to testify, a decision he made in consultation with his counsel.
[39] Further, the fact that Mr. Jaballah may have been deprived of proper disclosure of the case to be met would preclude the drawing of any adverse inference that he failed to adduce evidence at an earlier time on a point that neither he nor his counsel could know was relevant.
[40] Different considerations apply where, with the assistance of counsel, Mr. Jaballah chose to give evidence. Mr. Jaballah has not explained how the fact that he may not have known the entire case to be met would impact upon the reliability of the testimony he chose to give. Put another way, Mr. Jaballah has failed to establish how any failure to make full disclosure would have affected the reliability of his prior voluntary testimony such that it is unfair to hold him to the content of his earlier evidence.
[41] The final difficulty I see with the establishment of a causal connection between the section 7 violation and Mr. Jaballah's testimony is that the Supreme Court in Charkaoui I was careful to recognize that the right to know the case is not absolute. National security considerations can limit the extent of disclosure of information to an affected individual. It appears that the Supreme Court contemplated that a person named in a security certificate may in future have to proceed in the absence of full disclosure of the case to be met, so long as a substantial substitute is provided for that missing disclosure (for example, a special advocate). However, Mr. Jaballah submits that where a person named in a security certificate does not know the case to be met, his or her testimony will per se be obtained in a manner that infringes their rights under section 7 of the Charter. This submission appears to be contrary to the Supreme Court’s premise that the right to know the case is not absolute.
[42] Turning to the existence of a temporal connection between the failure to disclose the case to be met and Mr. Jaballah's testimony, any failure to disclose sufficient information would commence with the filing of a deficient summary and supporting information. The failure would continue until a proper level of disclosure was provided. The lack of evidence with respect to the state of disclosure prevents me from properly considering the existence of a temporal link, particularly in respect of Mr. Jaballah's later testimony in 2005 and 2006.
[43] The strength of the connection between the evidence obtained and the Charter breach is a question of fact. The applicability of subsection 24(2) is to be decided on a case-by-case basis. See: Goldhart at paragraph 40. For the above reasons, Mr. Jaballah has failed to establish the necessary causal or temporal connection between the evidence given through his testimony and the asserted Charter breach. I, therefore, find that Mr. Jaballah has failed to establish the applicability of subsection 24(2) of the Charter to the facts of this case.
[44] I now move to consider Mr. Jaballah’s submissions concerning section 13 of the Charter.
4. Is Mr. Jaballah entitled to a remedy under section 13 of the Charter?
[45] Section 13 of the Charter states:
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
13. Chacun a droit à ce qu'aucun témoignage incriminant qu'il donne ne soit utilisé pour l'incriminer dans d'autres procédures, sauf lors de poursuites pour parjure ou pour témoignages contradictoires.
[46] Mr. Jaballah submits that section 13 precludes the Ministers from using in this proceeding for any purpose any evidence he has previously given in security certificate proceedings, as well as any testimony he gave before the IRB.
[47] The Ministers respond that section 13 does not apply to this proceeding.
[48] With respect to the applicability of section 13, Mr. Jaballah argues that the immunity afforded by section 13 is not limited to criminal proceedings. He acknowledges that early cases, relying upon the interrelationship between sections 13 and 11 of the Charter, held that section 13 applied to administrative proceedings only where they exposed the individual to penalty or forfeiture or "true penal consequences". "True penal consequences" have been defined by the Supreme Court to consist of imprisonment, or a fine which by its magnitude would appear to be imposed to redress a wrong done to society at large, rather than to maintain discipline, professional integrity and standards, or regulate conduct within a limited private sphere of activity. However, Mr. Jaballah submits that "this narrow and restrictive interpretation of the application of s. 13 fails to give adequate effect to the interrelationship between s. 13 and s. 7", and cannot be sustained in light of recent Supreme Court jurisprudence. The cases relied upon are: Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248 (Re Bagri), Charkaoui I, and Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326 (Charkaoui II).
[49] The relevance of the two Charkaoui decisions is said to be in the Supreme Court’s recognition of the grave consequences that may flow from security certificate proceedings, and the consequent requirement of a fair process that has regard to the nature of the proceedings and the interests at stake.
[50] Mr. Jaballah argues that the need for procedural protections is exceedingly high and those procedural protections must include immunity against the use by the Ministers of his prior testimony. It is here that reliance is placed by Mr. Jaballah upon Re Bagri.
[51] In Re Bagri, the Court considered the constitutionality of provisions of the Criminal Code that empower a judge, on the application of a peace officer, to initiate an investigative hearing where the judge is satisfied that there are reasonable grounds to believe either that a terrorism offense has been committed and that information concerning the offense or the whereabouts of the suspect is likely to be obtained, or that there are reasonable grounds to believe that a terrorism offense will be committed and that the witness has direct and material information relating to the offense or the whereabouts of a suspect. Additionally, reasonable prior attempts must have been made to obtain that information from the witness. The witness may be ordered to attend, to be examined under oath, and to produce anything in his possession or control.
[52] Subsection 83.28(10) of the Criminal Code goes on to provide that no person shall be excused from answering a question or producing a thing on the ground that the answer or thing may tend to incriminate the person or subject the person to a proceeding or penalty. It also confers both use and derivative use immunity in respect of any answer given or thing produced in any criminal proceeding against the person.
[53] Thus, subsection 83.28(10) provides protection to persons compelled to testify in a judicial investigative hearings that are "equal to and, in the case of derivative use immunity, greater than the protections afforded to witnesses compelled to testify in other proceedings" including criminal trials. See: Re Bagri at paragraph 73.
[54] In Re Bagri, the Supreme Court observed that testimony given in such a proceeding might also be used against non-citizens in deportation hearings held under section 34 of the Act. The Court concluded as follows in this context:
77. This appeal is our first opportunity to discuss the parameters of a right against self-incrimination in the context of possible deportation or extradition hearings against, on the facts of this case, persons named under the s. 83.28 proceeding. Prior cases have focussed exclusively on the engagement of s. 7 in relation to government participation where the possibility of torture or death exists. The right against self-incrimination in the guise of testimonial compulsion has been recognized as non-absolute. Indeed, in the reasons above, we have affirmed the need for various procedural safeguards where testimonial compulsion is at issue. This Court has also expressly recognized the dire consequences which may flow from deportation and extradition, as such proceedings frequently have grave consequences for the liberty and security interests of individuals.
78. As in many other areas of law, a balance must be struck between the principle against self-incrimination and the state's interest in investigating offences. We believe such a balance is struck by extending the procedural safeguards of s. 83.28 to extradition and deportation hearings. […]
79. In order to meet the s. 7 requirements, the procedural safeguards found in s. 83.28 must necessarily be extended to extradition and deportation proceedings. In Branch, supra, at para. 5, derivative use immunity was stated to apply both in subsequent proceedings where the witness is an accused subject to penal sanctions, and more generally to any proceeding which engages s. 7 of the Charter, such as extradition and deportation hearings. The protective effect of s. 83.28(10) would be significantly undercut if information gathered under s. 83.28 was used at the state's discretion in subsequent extradition or deportation proceedings. Therefore, where there is the potential for such use by the state, the hearing judge must make and, if necessary, vary the terms of an order to properly provide use and derivative use immunity in extradition or deportation proceedings. [Emphasis added.]
[55] Mr. Jaballah relies upon that conclusion to argue that:
Although s. 13 was not considered in this case, it of course not being engaged at the point of the initial compulsion to testify, Mr. Jaballah submits these reasons are nevertheless instructive with respect to its scope and application. In effect, the Supreme Court required that prospective use immunity under s. 7 had to embrace not only criminal and quasi-criminal proceedings but also proceedings in respect of deportation and extradition where those proceedings entailed grave consequences for the individual. Mr. Jaballah submits that by parity of reasoning, retrospective use immunity under s. 13 ought to be equally encompassing. Mr. Jaballah further submits that this conclusion is bolstered by consideration of the Supreme Court’s decisions in the subsequent cases of Charkaoui (No. 1), supra, and Charkaoui (No. 2). [Footnote omitted.]
[56] With respect, I do not believe that a protection crafted under section 7 of the Charter, in the specific factual context before the Court in Re Bagri, can alter the ambit or applicability of section 13 of the Charter. Put another way, section 7 may contain residual protections capable of extending protection beyond that conferred by section 13 of the Charter. See: R. v. R.J.S., [1995] 1 S.C.R. 451 at paragraph 91. This, however, does not amend or alter the protection provided by section 13 of the Charter.
[57] In oral argument, counsel for Mr. Jaballah acknowledged that security certificate proceedings are not criminal in nature, and do not attract true penal consequences. See: transcript October 29, 2009 at page 112.
[58] Given that acknowledgment, and my conclusion that the decision in Re Bagri cannot by itself extend the application of section 13 of the Charter, I find that Mr. Jaballah has failed to establish that section 13 of the Charter applies to this proceeding.
[59] There remains to consider paragraph 83(1)(h) of the Act.
5. Is this a proper case for the application of paragraph 83(1)(h) of the Act?
[60] Paragraph 83(1)(h) of the Act provides that in proceedings relating to security certificates:
83. (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:
[…]
(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;
83. (1) Les règles ci-après s’appliquent aux instances visées aux articles 78 et 82 à 82.2 :
[…]
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;
[61] During oral argument, I enquired of counsel for the parties whether paragraph 83(1)(h) of the Act would permit the Court to refuse to receive evidence on the ground that the evidence w