Charkaoui (Re)

Charkaoui (Re)
Court (s) Database
Federal Court Decisions
Date
2009-10-14
Neutral citation
2009 FC 1030
File numbers
DES-4-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20091014
Docket: DES-4-08
Citation: 2009 FC 1030
[REVISED ENGLISH TRANSLATION]
Ottawa, Ontario, October 14, 2009
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
IN THE MATTER OF a certificate
pursuant to subsection 77(1)
of the Immigration and Refugee Protection Act (IRPA)
IN THE MATTER OF the referral of
this certificate to the Federal Court
pursuant to subsection 77(1) of the IRPA
AND IN THE MATTER OF
Adil Charkaoui
AND THE BARREAU DU QUÉBEC, Intervener
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] This is an application by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration (the Ministers), dated July 31, 2009, for an immediate determination, in accordance with section 78 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA), of the reasonableness of a certificate issued on February 22, 2008. The certificate attests that Adil Charkaoui, a permanent resident, is inadmissible on grounds of security.
[2] This application was made after the Ministers withdrew certain information and other evidence which, in their opinion, would be injurious to national security or endanger the safety of any person if disclosed. However, the Ministers specify that the withdrawal of this information cannot be taken to mean that they no longer considered it reliable.
HISTORY OF THE PROCEEDINGS
[3] The Court will discuss only the facts relevant to the outcome of this matter.
[4] On February 22, 2008, the Ministers referred the certificate under section 77 of the IRPA. Also, in accordance with subsection 77(2) of the IRPA, the Minister of Public Safety and Emergency Preparedness filed information and other evidence in support of the certificate, seeking to keep a considerable amount of it confidential on the basis that it would be injurious to national security or would endanger the safety of any person if disclosed.
[5] On September 3, 2008, at a public hearing, the Ministers acknowledged that they owe a duty to disclose to Mr. Charkaoui the evidence on which the certificate is based — a duty that is adapted to public safety requirements, as held by the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326 [Charkaoui II]. I will discuss the scope and impact of this duty at paragraphs 75 to 80 of these reasons.
[6] At the hearing, the Court repeatedly noted the duty, conferred by Parliament on the designated judge, to ensure the confidentiality of the information if its disclosure would be injurious to national security (transcript of September 3, 2008, at pages 12, 14, 16, 27, 28, 30, 33, 35, 71, 72, 79 and 82).
[7] On September 12, 2008, counsel representing the Ministers in the five cases involving security certificates notified the Court, by unclassified letter, that in accordance with the Supreme Court’s decision in Charkaoui II they had asked CSIS to scrutinize the information and other evidence in each of the five cases in order to determine whether the original operational notes had been retained.
[8] As a result, it was determined that certain original operational notes had been retained. The Ministers thought it important to specify that none of these notes pertained to CSIS’ interviews of Mr. Charkaoui.
[9] Counsel for the Ministers specified that these original notes would be sent to the Court and the special advocates, who would be called upon to examine all the information and other evidence (including original operational notes) which, on grounds of national security or safety of any person, was not disclosed to Mr. Charkaoui.
[10] On the same day, September 12, 2008, in response to an order of this Court, the Assistant Director (Intelligence) for CSIS wrote that, to the best of his knowledge, CSIS had disclosed all relevant information and other evidence that could be disclosed to Mr. Charkaoui without causing injury to national security or the safety of any person.
[11] Mr. Charkaoui then asked to cross-examine a CSIS representative about the sufficiency of the disclosure of public evidence.
[12] On September 19, 2009, this Court, reiterating the judge’s obligation to ensure the confidentiality of information, dismissed that application. The Court was of the opinion that it had to examine the evidence in an in camera proceeding, with the assistance of the special advocates, before determining whether any additional information would be disclosed.
[13] The hearings in camera were held in April and May 2009. In the course of those hearings, the special advocates carried out their duty, under paragraph 85.1(2)(a) of the IRPA, to “challenge the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person”.
[14] Having heard the special advocates’ and Ministers’ arguments, the Court held that the disclosure of certain evidence would not be injurious to national security or the safety of a person, and it issued a number of orders requiring its disclosure.
[15] The Ministers disagreed with the Court’s determinations, and decided to withdraw that evidence rather than disclosing it in accordance with the Court’s orders. The Ministers have the right to withdraw evidence under paragraph 83(1)(j) of the IRPA, which provides that the judge determining the reasonableness of a security certificate “shall not base a decision on information or other evidence provided by the Minister . . . if the Minister withdraws it”.
[16] On July 31, 2009, the Ministers stated that, in their opinion, the evidence remaining in the file was not sufficient to meet their burden of showing that the certificate was reasonable. They also asked the Court to determine whether the certificate was reasonable.
[17] On August 5, 2009, the Court asked the parties to state their positions on the following two questions (among others):
Given the Ministers’ admission that the evidence is not sufficient to meet the burden of proof imposed by the IRPA, is it appropriate for the Court to determine whether the certificate is reasonable, or should the certificate simply be withdrawn by the Ministers without further formalities?
If the Court has to determine whether the certificate is reasonable and quash it, what questions, if any, should it certify for the Court of Appeal?
[18] On September 4, 2009, the Ministers made further written submissions, both public and secret, in response to these questions. In those submissions, the Ministers reiterated that they were not prepared to withdraw the certificate, and asked the Court to certify two questions for the Federal Court of Appeal, in accordance with section 79 of the IRPA.
[19] On September 17, 2009, Mr. Charkaoui made further written submissions in response to the Court’s questions, asking that the security certificate be quashed, and objecting to the certification of the questions proposed by the Ministers.
[20] The special advocates also made further written submissions, both public and secret, on September 22, 2009.
[21] A public hearing, at which the Court heard the Ministers and Mr. Charkaoui, was held in Montréal on September 24, 2009. In addition, upon the Ministers’ request, a hearing in camera, during which the Court heard the Ministers and the special advocates, was held in Ottawa on September 30, 2009.
the issues
[22] The issues that the Court must now decide are as follows:
A. Is the certificate valid and reasonable?
B. Should the questions proposed by the Ministers be certified?
A. Is the certificate valid and reasonable?
[23] Subsection 77(2) of the IRPA states that when the Ministers refer a security certificate in respect of a person, the Minister of Public Safety and Emergency Preparedness “shall file with the Court the information and other evidence on which the certificate is based”.
[24] The Ministers cannot legally refer a certificate without filing the evidence on which it is based. Such action would not be authorized by the IRPA, which requires that the certificate be referred and that the evidence be filed at the same time. Thus, a certificate referred without the filing of the evidence on which it is based would be ultra vires the Ministers, illegal, and void. Obviously, that was not the situation in this case: the Ministers did file the evidence which, in their opinion, justified the certificate against Mr. Charkaoui. However, as permitted by the IRPA, they chose to withdraw a significant part of that evidence.
[25] Now that this information has been withdrawn, the Ministers admit that the evidence is no longer sufficient to support the certificate. Consequently, the certificate no longer exists within the criteria established by Parliament. Despite the Ministers’ insistence on it, the fact that the evidence in support of the certificate physically exists and that the Ministers would like to add it back to the file without actually disclosing it is of no import. Paragraph 83(1)(j) of the IRPA states that the designated judge “shall not base a decision on information or other evidence provided by the Minister . . . if the Minister withdraws it”.
[26] For greater accuracy, one might refer to Gérard Cornu, Association Henri Capitant, Vocabulaire juridique, which defines the [translation] “withdrawal” of an [translation] “administrative act” as the “disappearance of such an act by virtue of the subsequent intent of its maker, with prospective or retroactive effect, as the case may be”. [Emphasis added.]
[27] Thus, once the evidence is withdrawn by the Ministers and returned to them, it can no longer be considered “filed”. Yet this is a requirement of the IRPA.
[28] Consequently, since the Ministers’ admission that the remaining evidence is no longer sufficient to justify it, the certificate has been ultra vires the Ministers. It is void.
[29] This is because the executive power can only be exercised under the conditions and within the limits set by the IRPA. As the Supreme Court notes in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190,
. . . [a]ll decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. . . . Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law.
[30] The Ministers are not concealing the reasons why they are not withdrawing the certificate. They want to force the Court to make a decision as to whether the certificate is reasonable, thereby enabling them to ask that certain questions be certified for the Court of Appeal so that they can get a judgment from that Court in the hope that they can add back key information in support of the certificate without having to disclose it to Mr. Charkaoui. As for Mr. Charkaoui’s counsel, they submit that in view of the circumstances, the certificate should be quashed, because the withdrawal of the evidence has removed the legal basis for the certificate and undermined its validity.
The appropriate remedy
[31] The corollary of the prohibition against the executive acting in the absence of legal authority is that each person has the right not to be subject to such action. This raises the question of what remedy is appropriate in view of the inaction of the Ministers, who failed to revoke the certificate against Mr. Charkaoui even though it became ultra vires (due to its inconsistency with section 77 of the IRPA) when the evidence on which it is based was withdrawn.
[32] In the Ministers’ submission, the only avenue open to this Court under the IRPA is a determination of whether the certificate is reasonable. Specifically, the IRPA provides the following:
78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.
78. Le juge décide du caractère raisonnable du certificat et l’annule s’il ne peut conclure qu’il est raisonnable.
The Ministers stress that this provision is mandatory (as suggested by, among other things, the use of the imperative “shall” in the English version.)
[33] Although this argument might initially appear persuasive, it disregards the fact that if the certificate has been voided by the withdrawal of the evidence on which it is based, there is simply no certificate the reasonableness of which this Court can determine anymore.
[34] In my opinion, the Ministers’ power to withdraw a certificate unsupported by the evidence is not discretionary. On the contrary, it flows directly from the wording of the IRPA itself. The Ministers challenge the very existence of this power. But it would be absurd for the Ministers to be unable to withdraw a certificate if, for example, following a change of circumstances (such as the receipt of new information exculpating the person named in the certificate) they formed the opinion that the person no longer poses a danger to national security.
[35] Although the IRPA does not expressly state that a security certificate can be withdrawn, it would, in my opinion, run counter to section 7 of the Canadian Charter of Rights and Freedoms to interpret it as though it cannot. Indeed, under such an interpretation, an individual could remain subject to a security certificate, and the restrictions on his or her liberty that it entails, even if the Ministers do not believe that those restrictions are justified. This would be contrary to the principles of fundamental justice and to all logic.
[36] What must the Court do in view of the Ministers’ inaction following their withdrawal of the evidence in support of the certificate?
[37] Under paragraph 18(1)(a) of the Federal Courts Act, R.S.C. 1985, c. F-7, “. . . the Federal Court has exclusive original jurisdiction to . . . grant declaratory relief, against any federal board, commission or other tribunal”.
[38] For a century now, the declaration has been considered “the most convenient method of enabling the subject to test the justifiability of proceedings on the part of permanent officials purporting to act under statutory provisions”: Dyson v. Attorney General (1910), [1912] 1 Ch. 158, at page 165. Indeed, “given the flexible nature of the declaration, there are few limitations on its availability” (David Philip Jones and Anne S. de Villars, Principles of Administrative Law, 5th ed. (Toronto: Thomson Reuters Canada, 2009), at page 758). Perhaps the most important limitation is that “there must be some basis on which the application is brought and not merely some abstract desire to obtain clarification . . . . Absent a factual foundation within the jurisdiction of the Court, remedies are meaningless” (Pieters v. Canada, 2004 FC 27, [2004] F.C.J. No. 72 (QL), at paragraph 17). In other words, the declaration must serve a practical purpose related to a specific set of facts.
[39] That requirement is met in this case. The factual circumstances surrounding the security certificate that names Mr. Charkaoui are clear, since the Ministers acknowledge having withdrawn evidence that is essential to support the existence of the certificate. Consequently, a declaration that the certificate is void is, in my opinion, the most appropriate remedy.
[40] When did the certificate become void?
[41] Mr. Charkaoui submits that the withdrawal of the evidence shows that the Ministers acted in bad faith because they never intended to disclose the evidence even though they should have known that they would be required to do so. He submits that, given these circumstances, it was improper to refer the certificate in the first place, and that the Court should issue a declaration to that effect.
[42] However, the Court cannot accept Mr. Charkaoui’s allegation in the absence of a full debate regarding the evidence confirming or infirming it; it is a grave allegation, and the Ministers should have the opportunity to contradict it.
[43] Thus, I find that when the Ministers admitted, on July 31, 2009, that the evidence remaining in the record was insufficient to justify the certificate’s existence, the certificate became ultra vires the Ministers and void.
[44] However, it is clear that if this Court were not declaring the certificate void due to its being ultra vires the Ministers, it would still find the certificate unreasonable because the evidence on which it is based is insufficient.
[45] In addition, the questions that the Ministers seek to have certified do not depend on the precise form of the Court’s judgment as to the validity or reasonableness of the certificate. Thus, it is this Court’s duty to decide on request for certification.
B. Should the questions proposed by the Ministers be certified?
Introduction: The right of appeal and its limits
[46] A party who loses his or her case does not have an absolute right to appeal. Indeed, as the Supreme Court reiterated in Kourtessis v. M.N.R., [1993] 2 S.C.R. 53 [Kourtessis] at pages 69-70,
…[a]ppeals are solely creatures of statute; see R. v. Meltzer, [1989] 1 S.C.R. 1764, at p. 1773. . . Nowadays, however, this basic proposition tends at times to be forgotten. Appeals to appellate courts and to the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must be some way to appeal the decision of a court of first instance. But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislature.
[47] As the Supreme Court explained in its well-known decision in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, limiting the number and length of appeals (and their cost) is one of the public policy objectives that courts must take into account. However, Parliament can pursue the same objectives by determining the appropriate way to circumscribe the right of appeal within a statutory scheme.
[48] There is every reason to believe that Parliament was pursuing these objectives by limiting the right of appeal in the context of proceedings under Division 9 of the IRPA. In fact, the structure of Division 9 suggests that Parliament wanted the procedure for reviewing the reasonableness of security certificates to be as brief as possible. Thus, paragraph 83(1)(a) of the IRPA provides that, in such proceedings, “the judge shall proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit”. Consistent with this desire for brevity, Parliament decided, in section 79 of the IRPA, that “[a]n appeal from the determination [as to whether a security certificate is reasonable] may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.”
[49] Here, the Ministers are asking the Court to certify serious questions of general importance in accordance with section 79 of the IRPA. The proposed questions are worded as follows:
A. What are the criteria to be applied by a designated judge when considering the issue raised under paragraph 83(1)(d) of the IRPA, namely whether, in the judge’s opinion, the disclosure of information and other evidence provided by the Ministers would be injurious to national security or endanger the safety of any person? More specifically:
i. How can the designated judge resolve the inherent tension between his or her duty to ensure the confidentiality of information and other evidence which, if disclosed, would be injurious to national security or endanger the safety of any person in accordance with paragraph 83(1)(d) of the IRPA, and his or her duty to ensure throughout the proceeding that the permanent resident or foreign national is provided with a summary of information and other evidence that enables him or her to be reasonably informed of the case made by the Ministers in the proceeding under paragraph 83(1)(e) of the IRPA?
ii. When a designated judge considers how the inherent tension described in point i. above can be resolved in order to protect the rights of the permanent resident or foreign national, what weight must the judge give to the fact that the procedure established in Division 9 of the IRPA provides that, in paragraph 85.1(2)(b), the special advocate appointed by the judge is responsible for challenging the relevance, reliability and sufficiency of, and the weight to be given to, the evidence that is not disclosed to the person named in the certificate?
1. The criteria to apply to the question of certification
[50] Although the “serious question of general importance” test has not yet been analyzed in depth in a security certificate proceeding, it has been explained in numerous cases arising under other provisions of the IRPA. Indeed, paragraph 74(d) of the IRPA states that “an appeal to the Federal Court of Appeal may be made only if, in rendering judgment, the judge certifies that a serious question of general importance is involved and states the question”.
[51] It is no accident that paragraph 74(d) and section 79 of the IRPA employ the same wording. During the debates on Bill C-3, Bill MacKenzie, Parliamentary Secretary to the Minister of Public Safety, stated that the limited right of appeal under the new section 79 of the IRPA “is consistent with the way other decisions under the Immigration and Refugee Protection Act may be appealed” (House of Commons Debates, No. 44 (5 February 2008) at 1325). The case law regarding “the way other decisions . . . may be appealed” is therefore applicable to a security certificate proceeding. Besides, the parties seem to agree on the criteria applicable to the certification of questions for the Court of Appeal.
[52] The leading case on the concept of “serious question of general importance” is Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4, [1994] F.C.J. No. 1637 (QL) [Liyanagamage], where the Federal Court of Appeal explained, at paragraph 4, that in order for a question to be certified as being a “serious question of general importance”, the judge must find that it is
one which . . . transcends the interests of the immediate parties to the litigation and contemplates issues of broad significance or general application . . . but it must also be one that is determinative of the appeal. The certification process . . . is neither to be equated with the reference process established by section 18.3 of the Federal Court Act, nor is it to be used as a tool to obtain from the Court of Appeal declaratory judgments on fine questions which need not be decided in order to dispose of a particular case.
[53] The Federal Court of Appeal has recently had the opportunity to re-explain this test in Varela v. Canada (Citizenship and Immigration), 2009 FCA 145, [2009] F.C.A. No. 549 (QL). The Court began by pointing out, at paragraph 28, that it would be exceptional for more than a single question of general importance to be dispositive of an appeal. The Court then noted, at paragraph 29, that “a serious question of general importance arises from the issues in the case and not from the judge’s reasons”. In addition, the Court reiterated, at paragraphs 32, 35, 37 and 40, the importance of the requirement that the question proposed for certification be dispositive of the appeal. Moreover, at paragraph 42, it overturned the certification of a question to which there was a clear answer. The Federal Court of Appeal concluded, at paragraph 43, by noting that “[i]t is a mistake to reason that because all issues on appeal may be considered once a question is certified, therefore any question that could be raised on appeal may be certified”. If the question certified by the judge does not meet the criteria established by Parliament, “the pre‑condition to the right of appeal has not been met”.
[54] Moreover, in order to be of “general application” and “transcend the interests of the immediate parties to the litigation”, a question must normally pertain to law, not facts. As Justice Marc Noël (then of the Federal Court (Trial Division)) noted, “[a] question whose answer turns on the facts is unlikely to transcend the interests of the immediate parties and hence, will rarely be of general importance” (Baldizon‑Ortegaray v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 307, [1993] F.C.J. No. 440 (QL)).
2. The parties’ positions
The Ministers’ position
[55] The Ministers submit that the questions they propose for certification under section 79 of the IRPA meet the criteria for the certification of a “serious question of general importance” developed by the case law, and, in particular, in Liyanagamage, above.
[56] The Ministers argue that these questions raise concerns that could come up in any security certificate proceeding and are therefore of general importance. Moreover, this would be the first appeal in a proceeding involving the review of a security certificate since Parliament changed the procedure in 2008. The Ministers reiterate their disagreement with the Court’s disclosure orders in this matter, and submit that it would be appropriate to have the Federal Court of Appeal clarify the factors that a judge must take into account before issuing such orders.
Mr. Charkaoui’s position
[57] Mr. Charkaoui objects to the certification of the questions proposed by the Ministers, and argues that they are questions of fact that cannot be regarded as being of “general importance” and therefore do not pass the Liyanagamage test. In this regard, Mr. Charkaoui relies on Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, at paragraph 85, where the Supreme Court expressed its opinion that “the determination of what constitutes a ‘danger to the security of Canada’ is highly fact-based”.
[58] In addition, Mr. Charkaoui submits that the courts, including the Supreme Court of Canada, have already defined the criteria applicable to the disclosure of the information that the Ministers seek to keep confidential. Consequently, he submits that there is no need to obtain additional explanations from the Federal Court of Appeal.
The special advocates’ position
[59] The special advocates submit that the Ministers’ main question is about the criteria applicable to the disclosure of information. They point out that these criteria have already been analyzed in depth by Justice Dawson in Harkat (Re), 2005 FC 393, [2005] F.C.J. No. 481. In this case, the Court has followed that analysis. The Ministers themselves refer to and accept it implicitly.
[60] However, the special advocates submit that what is motivating the Ministers to petition the Court of Appeal is not a need to clarify the criteria applicable to the disclosure of information, but rather their disagreement with the disclosure orders made by the Court in this matter. The special advocates submit that this objective does not warrant the certification of questions for the Court of Appeal. Their argument is twofold.
[61] First, the special advocates argue that the Ministers take issue with this Court for having erred by “balancing” Mr. Charkaoui’s procedural rights with the requirements of national security. In other words, the Court has weighed national security and procedural fairness, and, in the process, has permitted information to be disclosed which would be injurious to national security, based on a finding that procedural fairness outweighs national security.
[62] However, the special advocates submit that the Court has done no such “balancing” and that, instead of finding that one of these values outweighs the other, the Court has reconciled them. The examples that the Ministers raise in their confidential written submissions show that the approach used in the in camera disclosure process was to neutralize information prejudicial to national security (or the safety of a person) by summarizing that information in such a way as to remove from the summary submitted to Mr. Charkaoui any information the disclosure of which would be injurious to national security.
[63] This “neutral summary” approach simultaneously respects all the parameters set by Parliament in the IRPA. It allows the designated judge to ensure the confidentiality of sensitive information while ensuring that the person named in the certificate has enough information throughout the proceeding. It also enables the special advocates to fulfil their duty, under paragraph 85.1(2)(a) of the IRPA, to challenge the assertions that the information is confidential.
[64] This approach is consistent with the reasoning of the Supreme Court of Canada in Charkaoui II, above, with respect to disclosure, and with the descriptive criteria for identifying national security information, provided by Justice Eleanor Dawson in Harkat, above.
[65] Second, the special advocates submit that, to the extent that the Ministers’ problems with this Court pertain to the contents of some of its disclosure orders, the objections to those orders raise questions of mixed fact and law. In their submission, such questions are not “of general importance” and cannot be certified. A dispute that is solely about the contents of the summaries would not, in their submission, meet the threshold for a question of general importance.
3. The questions proposed by the Ministers
[66] The questions proposed by the Ministers are, at first glance, theoretical questions that could arise in other proceedings under Division 9 of the IRPA. The Ministers appear to want the Federal Court of Appeal to specify the criteria that a designated judge must apply when considering requests for disclosure in such proceedings—criteria that include the significance of the special advocates’ role.
[67] However, this first impression is misleading. An analysis of the context in which the questions were prepared shows that the Ministers are not truly using them to obtain an explanation of the law governing a request for disclosure in a designated proceeding.
[68] Contrary to what the proposed questions might suggest, the Ministers are not arguing that the Court has applied the wrong criteria to the request for disclosure in this matter. Indeed, the Ministers themselves are relying on Justice Dawson’s “codification” of the criteria in Harkat, above, at paragraph 89. As the special advocates argue, the Court has relied on the very same “codification” in this matter, both in the judgment on the national security standard (Charkaoui (Re), 2009 FC 342, [2009] F.C.J. No. 396 (QL)) and in the disclosure orders that the Ministers have challenged in their confidential submissions.
[69] Thus, upon a reading of the Ministers’ submissions as a whole, it appears that what they seek to challenge are not the criteria applicable to disclosure requests, but the Court’s application of those criteria.
[70] In essence, what the Ministers are criticizing is the Court’s “balancing” of national security against procedural fairness. In the Ministers’ submission, no such “balancing” should take place because national security must outweigh procedural fairness. The question whether the Court is entitled to weigh the requirements of national security and procedural fairness was raised in Almrei (Re), 2009 FC 322, [2009] F.C.A. No. 681, at paragraphs 54 to 59. My colleague Justice Mosley held that, absent a factual matrix, the question was premature. I would note, however, that Justice Mosley then ordered the disclosure of the interception summaries and an overview of the surveillance reports relevant to Mr. Almrei’s file.
[71] A question on this subject could have been certified as a general question if such an exercise had taken place here. But as the special advocates have shown, by taking the Ministers’ examples in context, the Court has consistently refused to engage in such a balancing exercise.
[72] At this stage, it would be helpful to explain the methodology that the Court followed before making the disclosure orders with which the Ministers disagree.
The Court’s methodology with respect to disclosure
[73] The statutory and jurisprudential framework in which the Court has operated should first be explained.
[74] First, it must be recalled that, in paragraph 85.1(2)(a) of the IRPA, Parliament has expressly given the special advocate the role of “challeng[ing] the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person”. Thus, the special advocates played an active role in the disclosure process.
[75] It should also be noted that the IRPA confers an important role on the designated judge, who, under paragraph 83(1)(d), “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”. [Emphasis added.] Thus, each time the question arises, the designated judge must determine whether the disclosure of information would be injurious to national security or the safety of any person.
[76] Although their expertise is taken into consideration in this delicate mandate, the judge owes no deference to the assertions made by CSIS or the Ministers in this regard; nor does it owe any deference to the special advocates. The decision is the designated judge’s alone. This is what Parliament decreed.
[77] Second, the Supreme Court provided several clarifications regarding the approach that designated judges must take when deciding applications for the disclosure of information and other evidence.
[78] As I have stated, the Supreme Court of Canada considered the disclosure process in the context of an examination of the reasonableness of a security certificate in Charkaoui II, above. At the outset of its analysis, the Supreme Court stressed, at paragraph 56, that the procedural fairness requirement, adapted to this context, includes “the disclosure of the evidence” on which the certificate is based “to the named person, in a manner and within limits that are consistent with legitimate public safety interests”. [Emphasis added.]
[79] The Court also specified, at paragraph 62, that in order to respect these limits, “[t]he designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence — which he or she will have been able to check for accuracy and reliability — for the named person”.
[80] In other words, the judge’s role, as stated at paragraph 63, is to “filter the evidence he or she has verified and determine the limits of the access to which the named person will be entitled at each step of the process . . . ”.
[81] It should be recalled that, in September 2008, the Ministers acknowledged that they have a duty to disclose the evidence on which the certificate is based. It should also be recalled that the Assistant Director of CSIS wrote to the Court that all the evidence that could be disclosed to Mr. Charkaoui without causing prejudice to national security had already been disclosed.
[82] With the statutory and case law framework discussed above in mind, the Court then ordered that a hearing in camera would have to be held before the disclosure of any further evidence would be permitted. In keeping with paragraph 83(1)(d) of the IRPA, ensuring the confidentiality of information that, if disclosed, would be injurious to national security or endanger the safety of any person has always been a central preoccupation of the Court, as the numerous orders, directions and communications issued by the Court in these proceedings will attest. (The most relevant documents are attached as Appendix “A”.)
[83] The purpose of the hearings in camera was to enable the Court, with the assistance of the special advocates and the Ministers’ lawyers, to achieve this objective by means of a process of filtering and of producing neutralized summaries.
[84] To facilitate this process, the special advocates prepared disclosure proposals based on the themes developed by Justice Dawson in Harkat, above: Canadian and foreign agencies, human sources, interceptions, and investigative techniques. These proposals were submitted to the Ministers, who could give or withhold their consent to the disclosure as proposed by the special advocates.
[85] Hearings in camera were later held with respect to the evidence that the Ministers did not agree to disclose. Applying paragraph 83(1)(d) of the IRPA, quoted above, the Court decided, item by item, whether its disclosure would injure national security or endanger the safety of any person. Whenever the Court found that it would, it refused the disclosure of the item, regardless of its potential importance to Mr. Charkaoui. In doing so, the Court rejected the special advocates’ proposal that the Court weigh the interests in play and order the disclosure of information important to Mr. Charkaoui’s defence despite the risk to national security.
[86] In the course of these hearings in camera, following the Ministers’ consent to the disclosure of the content of the interceptions, the Court sought to ensure that the summaries that the Ministers had provided were in conformity with the originals.
[87] The Court issued certain oral orders intended to achieve this objective. At the same time, the Court demanded that the Ministers tell Mr. Charkaoui whether the original evidence had been retained or not, in accordance with paragraph 42 of the decision in Charkaoui II, above, where it was specified that “the retention and accessibility of this information is of particular importance where the person named in the certificate and his or her counsel will often have access only to summaries or truncated versions of the intelligence . . .”. In the Court’s opinion, this was the logical consequence of the letter of September 12, 2008, in which the Ministers acknowledged that certain notes had been retained.
[88] However, as counsel for the Ministers acknowledged at the public hearing of September 24, 2009, the Ministers responded to these orders by withdrawing all the interceptions from the evidence in support of the certificate.
[89] The withdrawal of this evidence, which was crucial to the Ministers’ case, fatally obstructed the disclosure process. Given the reduced breadth of the information sources, which prevented the information from being neutralized, it became difficult to provide Mr. Charkaoui with an accurate summary of the evidence without disclosing evidence that could be injurious to national security and endanger the safety of any person.
[90] This was the breaking point that resulted in the Court’s issuance of the direction dated July 9, 2009, in which the parties and the special advocates were asked for written submissions on the effect of the withdrawal of certain information tendered in support of the certificate.
Conclusion on the certification of a question for the Court of Appeal
[91] Thus, the true question proposed by the Ministers, which pertains to the legitimacy of a judicial balancing of national security against procedural fairness as part of the disclosure of evidence on which a security certificate is based, is not relevant to these proceedings, because the Court has never engaged in such an exercise. Thus, the question cannot be determinative of the outcome of a future appeal, and the Court cannot certify it.
[92] What the Ministers are truly seeking to do is to challenge certain disclosure orders