Kanyamibwa v. Canada (Public Safety and Emergency Preparedness)

Kanyamibwa v. Canada (Public Safety and Emergency Preparedness)
Court (s) Database
Federal Court Decisions
Date
2010-01-20
Neutral citation
2010 FC 66
File numbers
IMM-500-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20100120
Docket: IMM-500-08
Citation: 2010 FC 66
Ottawa, Ontario, January 20, 2010
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
FAUSTIN MUTABAZI KANYAMIBWA
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review of the decision of Minister Stockwell Day, then Minister of Public Safety, wherein he rejected the Applicant’s application for Ministerial relief under s. 35(2) of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (“IRPA”). The Applicant had previously been deemed inadmissible pursuant to s. 19(1)(l) of the former Immigration Act, R.S.C. 1985, c. I-2 (now s. 35(1)(b) of the IRPA) because he was considered to be a senior official in two Rwandan governments who have been determined to have engaged in systemic or gross human rights violations, genocide, war crimes, or crimes against humanity.
I. Facts
[2] The Applicant is a Rwandan citizen of Hutu ethnicity, born October 10, 1950. After earning a bachelor’s degree in psychology in 1975, he worked briefly (from January 1976 to October 1977) for the Government of Rwanda in Kigali in the immigration department. In November 1977, the Applicant went to Bordeaux, France, on a government scholarship, where he earned a master’s degree in education (in 1979).
[3] Upon his return to Rwanda, he resumed working for the government, first as an intelligence analyst for the “Service central de renseignements” (from October 1979 to August 1984), and then as a diplomat in the “Ministère des affaires étrangères”. From August 1984 to July 1988, he was stationed in Switzerland, and from July 1988 to September 1991 he was posted in the Ivory Coast. In September 1991, he was transferred to Canada, where he has remained ever since. His position at the Rwandan Embassy was “premier conseiller”, which made him the second highest ranking officer after the Ambassador Maximin Segasayo. During all those years since 1984, he never returned to Rwanda except to attend the funeral of his mother-in-law in 1991.
[4] The Applicant’s posting in Canada coincided with the regimes of President Juvenal Habyramana (October 1990 to April 1994) and the Interim Rwandan Government (April 1994 to July 1994). It will be remembered that President Habyramana was assassinated in April 1994, the event which unleashed a civil war and a terrible genocide. In July 1994, the opposition forces of the Rwandan Patriotic Front (RPF) took power in the capital of Kigali. The Applicant continued to work at his post in Canada albeit unpaid until March 1995, when he received orders from the new government to return to Rwanda with his family.
[5] The Applicant did not follow these orders, allegedly because of the difficulty of extricating himself from his life in Canada on such short notice, but also because he knew he would be at risk in Rwanda. The Applicant claimed that the RPF had harmed members of his family before, and that he was hearing new stories of persecution from Hutus who had returned to Rwanda. He and his family therefore elected to claim refugee protection in Canada in October 1995.
[6] Prior to the beginning of the hearings, a journalist at the Ottawa Citizen named Jacquie Miller filed an application to have the hearing made open to the public. A corresponding application was made by the Applicant for an order to ensure the confidentiality of the proceedings. Ms. Miller’s application was denied in an interim decision, but the Refugee Protection Division (RPD) stated that she could re-apply upon review of the completed reasons for decision. Subsequent to that interim decision, Ms. Miller swore an affidavit wherein she stated that “sources from the Rwandan community” had informed her that Mr. Kanyamibwa was a senior official in the early 1980s for the Rwandan security service, and she added that “[a]t that time, the security service was linked to torture of political prisoners and severe human rights abuse”. She also reported the views of a human rights expert at the Université du Québec in Montréal according to whom former diplomats would not be in danger if returned to Rwanda. That affidavit was filed before the RPD. A Hearings Officer also filed a notice of intent to participate on December 6, 1996.
[7] On March 19, 1997, the RPD decided that the Applicant’s claim was well-founded, and as such, he was included in the Convention refugee definition. The Board concluded this part of its reasons in the following way:
By his testimony and personal documents the claimant has satisfied the panel that he is an intellectually prominent Hutu who would certainly come to the attention of the government if he returned to Rwanda. He has a graduate degree from a French university and has held relatively important posts within the former government. As well, the claimant produced building permits and photographs of his two residences in Kigali and gave credible evidence that they have been occupied by others, including the RPA [Rwandan Patriotic Army]. Considering the objective country information, the panel finds that if the claimant returned to Rwanda there is a reasonable possibility that the claimant would be subjected to arbitrary arrest and detention if not some more serious harm either because of his prominence as a member of the Hutu elite or because he would be unjustly denounced by someone now occupying one of his properties. He therefore has a well-founded fear of persecution by reason of his ethnic identity and perceived political opinion.
[8] The Minister intervened to seek the exclusion of the Applicant, both on the ground of his work for the Rwandan government in the 1980s and because he served as a diplomat during the genocide in 1994. At the conclusion of the Applicant’s testimony on December 10, 1996, the RPD granted the Minister’s request for an adjournment in order to obtain additional evidence and in particular, speak with sources in the Rwandan-Canadian community referred to in the affidavit of Ms. Miller. The Minister requested an extension of the adjournment, which was also granted. After a three-month adjournment, the Minister informed the RPD that he had completed his investigation, that no new evidence was forthcoming, and that he would be calling no witnesses and making no submissions.
[9] The RPD accepted the Applicant’s testimony regarding his assignment to the “Service central de renseignements” following his return from the University of Bordeaux. In particular, the RPD wrote:
His Department in the Information Services was responsible for gathering and summarizing international information about Rwanda which was generated by external sources. Much of the information was economic and political in nature and was gathered from Rwandan embassy sources and international press clippings. The claimant also wrote security reports for various government departments based on the information. The government had an on-going concern that some of its neighbours, notably Uganda, would seek to destabilize the economy by blocking access to coffee markets.
The claimant was closely questioned by the Minister’s representative and the RCO on the relation of the claimant’s department to other departments within the Information Services. The claimant said he knew that arrests were made by another department within the Information Services which was responsible for internal problems within Rwanda. If officials of that department tortured prisoners, he was unaware of it. He testified there was no formal communication between the departments. In general officials throughout the Information Service did not speak about their work. (…)
In the compound where the claimant worked, no one wore a uniform or bore arms. There were no cells in the compound. The nearest prison was about five kilometres away. He had not visited it personally. He has never received military or police training. In summary, the claimant testified that in the course of his duties, the claimant had not been involved in the arrest or torture of anyone in Rwanda either directly, or indirectly by the processing of any files or information obtained though torture.
[10] The RPD therefore found that the Applicant’s testimony was “detailed, consistent and plausible”. It gave Ms. Miller affidavit “very little weight”, since the allegations contained therein “although quite serious, are double or triple hearsay”. The RPD concluded:
Presumably the witnesses are available in Canada and have not been forthcoming after a generous amount of time was permitted for the Minister to marshall the relevant evidence. The panel therefore finds there is no evidence before it which would permit a finding that the claimant committed or was complicit in committing crimes against humanity during his employment in his country’s Information Services from 1979 to 1984.
[11] Similarly, the RPD found no evidence to establish that the Applicant was excludable based on complicity in the 1994 genocide. In this respect, the RPD wrote:
There is limited documentary information available on the planning and organization of the genocide perpetrated against Tutsis and Hutu moderates. It is still not known who assassinated President Habiyamara although many suspect anti-Tutsi extremists who were close to the president and the Rwandan military. Little is known about the genocide except that it was precipitous and any planning of it must have been extremely secretive since it was linked to the assassination. Although fomented by extremist leaders, much of the killing was performed by individual Rwandan citizens over an extremely brief period of several weeks. There is no evidence before this panel that the claimant was actively involved in Rwandan politics, espoused extremist anti-Tutsi views nor that he had any connections with the Interhamwe or other Hutu militias involved in the killing. Indeed, given that he has lived outside of Rwanda since 1985, it does not appear likely that he would have had the opportunity to be intimately involved with clandestine power struggles at the highest levels of the former Rwandan government.
Again, after completing his investigation, the Minister has been unable to offer any contrary information on the claimant’s role in regard to the genocide.
The panel finds that no evidence has been presented which would allow a finding that the claimant has either committed or been complicit in the commission of crimes against humanity in regard to the 1994 genocide. Mindful of the present finding and earlier finding in regard to the claimant’s work for his country’s Information Service, the panel concludes that the provisions of Article 1F of the Convention do not apply and the claimant is not excluded from the Convention Refugee definition.
[12] On April 27, 1998, Citizenship and Immigration Canada (“CIC”) designated the Rwandan governments under President Habyramana and the Interim Rwanda Government (the “designated regimes”) as regimes that had engaged in systemic or gross human rights violations, genocide, war crimes or crimes against humanity for the purposes of s. 19(1)(l) of the Immigration Act.
[13] On July 20, 1998, CIC advised the Rwandan Ambassador Segasayo that he was inadmissible pursuant to s. 19(1)(l) of the Immigration Act. The Ambassador’s application for ministerial relief was denied, and that decision was subsequently upheld on judicial review: Segasayo v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 585, [2007] F.C.J. No. 792.
[14] On December 17, 1999, CIC advised the Applicant that he was inadmissible to be landed in Canada due to his position in the two designated regimes pursuant to s. 19(1)(l) of the Immigration Act. In reply, the Applicant wrote a letter stating his surprise and shock at the allegations and requested a re-examination of his file.
[15] On March 15, 2000, the Applicant received a letter from CIC stating that he could make an application for ministerial relief. He retained counsel and submissions were made on his behalf on October 2, 2000.
[16] On November 10, 2000, a positive recommendation for his ministerial relief was made, based on the fact that the Applicant’s activities were oriented to cultural and educational cooperation and that he did not have signing authority to sign agreements. The recommendation also referred to the RPD’s decision where the Applicant was determined not to be involved in the genocide. However, no final determination was made at that time.
[17] On November 14, 2006, the Applicant received a package from the Canada Border Services Agency (“CBSA”). It contained a draft Briefing Note recommending that the Applicant’s application for ministerial exemption be denied. The Applicant was given an opportunity to respond to this material, which he did on March 27, 2007.
[18] On June 21, 2007, the Applicant was advised by CBSA that its recommendation against ministerial relief had been amended. He was given an opportunity to respond to the amendments and did so on August 10, 2007.
[19] On November 15, 2007, the Minister denied the Applicant’s application for ministerial relief following the recommendations of the Briefing Note dated August 31, 2007.
[20] After the Applicant was granted leave for judicial review of the Minister’s denial, the Respondent filed a motion for non-disclosure of some information in the tribunal record pursuant to s. 87 of the IRPA on the grounds that disclosure would be injurious to national security or to the safety of any person. Fourteen pages of the Certified Tribunal Record (CTR) were partially (and in some cases, heavily) redacted. They consisted of five documents: a letter or report from the Canadian Security Intelligence Service (“CSIS”), dated September 28, 1999; a second letter or report dated November 2002, also from CSIS to the Modern War Crimes section of CIC; a memorandum from CSIS to the Modern War Crimes Unit of CBSA, and a memorandum from the RCMP War Crimes Section to the CBSA dated June 1, 2005. The last document is entitled “Classified Analysis Pertaining to the Application of Ministerial Relief for Faustin Kanyamibwa” and is almost entirely redacted.
[21] Following the ex parte and in camera hearing on the Respondent’s Motion for non- disclosure that took place on September 9, 2009, it was determined that three pages of the CTR contained redactions of information that could be made public. On September 21, 2009, these un-redacted pages that now form part of the public record (pages 115, 125 and 126 of the CTR) were disclosed and sent to the Applicant. The Applicant was also given permission to file a further affidavit in response to this disclosure, which he did on October 14, 2009.
[22] The new information provided to the Applicant as a result of this partial disclosure is to the effect that the RCMP received information about the Applicant from the Rwandan Ambassador on October 15, 1996. This was before the Applicant’s refugee hearing had commenced. The Ambassador is the source of the initial allegation that “members of the Rwandan Intelligence Agency at the time of Mr. Kanyamibwa’s involvement were known to use torture during interrogation of their targets”. The document then notes that a witness was interviewed, who claimed to have been a victim of torture. This information was clear from the redacted CTR. The new information provided that the interview took place on July 11, 1997, the interviewee’s name, the date and length of his alleged detention, and the supposed reason for his arrest. The document also stated that the interviewee claimed to have seen the Applicant here in Canada, and felt that Mr. Kanyamibwa did indeed recognize him.
[23] In parallel to the Respondent’s Motion for non-disclosure, counsel for the Applicant made a motion requesting the appointment of a special advocate. After hearing counsel by way of teleconference on September 28, 2009, I dismissed the motion on October 6, 2009 for reasons briefly explained to the parties during the teleconference that took place on that day. I indicated at the time that more fulsome reasons would be provided with respect to these two motions as part of my reasons on the judicial review application.
II. The impugned decision
[24] The reasons for the decision must be taken to be the Briefing Note prepared and signed by the President of the CBSA, who recommended that Ministerial relief not be granted. Since the Minister adopted the negative recommendations without giving any further reasons, the Briefing Note must be taken to constitute the reasons for the decision by the Minister: Miller v. Canada (Solicitor General), 2006 FC 912, [2006] F.C.J. No. 1164, at para. 55; Kanaan v. Canada (Minister of Citizenship and Immigration), 2008 FC 241, [2008] F.C.J. No. 301 at para. 5.
[25] The reasons began with a summary of what the CBSA President saw as the key issues, namely:
i.) the applicant is a Convention Refugee who is inadmissible to Canada pursuant to s. 35(1)(b) of the IRPA on the grounds that he is a former senior official of the Rwandan government under President Habyarimana and in the Interim Rwandan government from April 1994 to July 1994, both of which are responsible for having committed gross human rights violations and for the 1994 Rwandan Genocide.
ii.) the applicant should not be granted Ministerial relief pursuant to s. 35(2) of the IRPA but should remain inadmissible to Canada and ineligible for permanent residence, though he may only be removed through a vacation of his refugee status pursuant to s. 109(1) of IRPA or through an opinion of the Minister of Citizenship and Immigration that the nature and severity of the acts committed outweigh the person’s need for protection pursuant to s. 115(2)(b).
[26] The Briefing Note then laid out some background details, including the Minister of Citizenship and Immigration’s designation of the Rwandan government under President Habyramana and the interim Rwandan government from October 1990 to July 1994 as regimes which had engaged in gross human rights violations. It then outlined the Applicant’s immigration history in Canada.
[27] Then the CBSA President presented the arguments in favour of granting ministerial relief. In doing so, he referred to the Applicant’s submissions. These arguments are to the effect that the Applicant would have been a neutral, mid-level public servant who did not have the ability to significantly influence others. His position as First Secretary at the Embassy would not have permitted him to act instead of the Ambassador. His duties would have been essentially related to education, science, economy and commerce, but not politics. His contacts with the Canadian International Development Agency (“CIDA”) and with some provinces would have only been relevant to education and trade. Furthermore, he and his family were well integrated in Canada. The Applicant also stressed that he never went back to Rwanda since 1984 except for a brief visit for a funeral and therefore he could not be implicated directly in the Rwandan conflict. The CBSA President also referred to the Applicant’s Personal Information Form (“PIF”) for his RPD hearing where he explained his employment at the Department of Information Services. He would have been in charge of collecting and summarizing international information about his country generally from external sources. Finally, the CBSA President also mentioned that at the RPD hearing the Minister decided not to pursue the art. 1(F)(a) exclusion due to a lack of available evidence.
[28] The CBSA President then turned to the arguments against granting relief on which he based his recommendation. The CBSA considered that, notwithstanding the Applicant’s representations on his mid-level position, he was the second highest ranking individual at the Rwandan Embassy in Canada after the Ambassador and has been appointed by the Rwandan President himself. In addition, although it might be true that he was not in a position to sign agreements, he was involved in negotiations in which more than $67 million dollars in aid money were at stake. The fact that he was never required to replace the Ambassador does not negate the fact that if required, he could have done so. Similarly, being outside the country in the periods before and during the genocide did not sufficiently dissociate him from the regimes.
[29] The Briefing Note then dealt with the allegations of torture against the Applicant mainly in one paragraph, where it stated:
During the course of preparing and reviewing the material for this recommendation the War Crimes section of the RCMP submitted concerns regarding Mr. Kanyamibwa. The RCMP had received information about Mr. Kanyamibwa’s activities that required further investigation. As a consequence they interviewed a witness who had been arrested and detained in Rwanda and had been subjected to torture. He stated that while he was in detention in Rwanda, Mr. Kanyamibwa was present at the time of this witness’s interrogation sessions, when the witness was tortured by members of the Rwandan Intelligence Service. The witness stated that while Mr. Kanyamibwa was not the person who inflicted the torture, he was the one who gave orders to the other intelligence officers.
[30] The CBSA President also addressed the positive recommendation of the Ontario Regional War Crimes Unit submitted in November 2000. He explained that this recommendation was made without being in possession of all of the relevant information with respect to the Applicant’s role at the Embassy, and should therefore carry little weight in the final determination.
[31] The Briefing Note stressed the massive human rights abuses and use of violence associated with the designated regimes for which the Applicant worked as a senior official during the entirety of their designations. It is also noted that the Applicant never consciously separated himself from nor condemned the abuses carried out by these regimes.
[32] Finally, the Briefing Note indicated that the fact that exclusion under art. 1F(a) of the Convention was not pursued before the RPD should not indicate that the Applicant was not involved in the events in Rwanda because the allegation regarding the Applicant had been made by a reporter, but were not substantiated by more credible sources at the time. The reasons also noted that external consultations revealed classified information pertaining to the Applicant’s application for ministerial relief. This information was added in Appendices 15-19 to the Note, and were not disclosed on the ground that disclosure would be injurious to national security or to the safety of any person. After leave for judicial review was granted, the documents were communicated to the Applicant’s counsel, with the redactions already referred to and which were the subject of the motion for non-disclosure submitted by the Respondent.
[33] Based on all the foregoing arguments, the President of the CBSA recommended that the relief not be granted to the Applicant because he had not shown that his presence in Canada would not be detrimental to the national interest as required by s. 35(2) of the IRPA. That recommendation was endorsed by the Minister on November 15, 2007.
III. Issues
[34] Mr Waldman, counsel for the Applicant, raises three issues in challenging the Minister’s decision. First, he argues that the decision is in breach of natural justice due to its reliance, at the time of the decision, on undisclosed information to which the Applicant could not answer. This argument is somewhat novel, in that Mr. Waldman is not trying to re-litigate my decision on the Respondent’s motion for non-disclosure. As he candidly confessed during oral argument, he would have had no argument had I ruled that all of the information could be withheld. But having ordered that three pages be disclosed without redactions, Mr. Waldman submits that judicial review should be granted to allow the Applicant to make a meaningful submission to the decision-maker addressing this newly disclosed evidence. Since there is a substantial difference between what was disclosed to the Applicant before the Minister made his decision and what he now knows, argues Mr. Waldman, he should be able to respond more fully not before this Court, but rather, before the original decision-maker.
[35] The second argument made on behalf of the Applicant is more straightforward. According to Mr. Waldman, the issue of exclusion was dealt with conclusively before the RPD. Relying on the doctrines of res judicata, issue estoppel and abuse of process, he contends that the Minister was barred from considering whether the Applicant committed or was complicit in crimes against humanity in the context of the ministerial relief application, as this decision was based on the same allegations and the same facts that were put before the RPD.
[36] Finally, the Applicant argues that the Minister erred in making unreasonable findings of fact, or by ignoring evidence, or by making unreasonable inferences. He submits that he could not act instead of the Ambassador, that it was an error to give little weight to the Ontario Regional War Crimes Unit positive recommendation on the basis that it was made in the absence of all relevant information, that there is no evidence that he was involved in atrocities, and that the evidence which the Minister relied on to suggest that the Applicant was complicit in torture and crimes against humanity was inherently unreliable.
IV. Analysis
A. Preliminary Remarks
(1) The Respondent’s Motion For Non-Disclosure
[37] Section 87 of the IRPA provides statutory assurance that the confidentiality of sensitive information will be maintained by allowing the Court to hear all or part of this information in the absence of the Applicant, his counsel and the public where it is believed that disclosing it would be injurious to national security or to the safety of any person. It provides as follows:
Application for non-disclosure judicial review
87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 other than the obligations to appoint a special advocate and to provide a summary applies to the proceeding with any necessary modifications.
Interdiction de divulgation contrôle judiciaire
87. Le ministre peut, dans le cadre d’un contrôle judiciaire, demander l’interdiction de la divulgation de renseignements et autres éléments de preuve. L’article 83 s’applique à l’instance, avec les adaptations nécessaires, sauf quant à l’obligation de nommer un avocat spécial et de fournir un résumé.
[38] The information referred to in that section is defined in s. 76 of the IRPA in the following way:
“information”
means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization.
« renseignements »
Les renseignements en matière de sécurité ou de criminalité et ceux obtenus, sous le sceau du secret, de source canadienne ou du gouvernement d’un État étranger, d’une organisation internationale mise sur pied par des États ou de l’un de leurs organismes.
[39] The relevant sub-paragraphs of section 83 state :
Protection of information
83. (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:
(…)
(c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;
(d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;
Protection des renseignements
83. (1) Les règles ci-après s’appliquent aux instances visées aux articles 78 et 82 à 82.2 :
(…)
c) il peut d’office tenir une audience à huis clos et en l’absence de l’intéressé et de son conseil — et doit le faire à chaque demande du ministre — si la divulgation des renseignements ou autres éléments de preuve en cause pourrait porter atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
d) il lui incombe de garantir la confidentialité des renseignements et autres éléments de preuve que lui fournit le ministre et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui;
[40] In Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3, at paras 38-44, the Supreme Court of Canada acknowledged that the state has a legitimate interest in preserving intelligence information received from foreign sources and noted that the inadvertent release of such information would significantly injure national security. Consequently, the Supreme Court recognized the interest of the state in protecting national security and that the need for confidentiality in national security matters superseded the individual’s right to an open judicial forum. See also: Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, at para. 744; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 122. This Court has similarly commented on a number of occasions on the rationale underlying the need to protect national security information: see, for example, Sogi v. Canada (Minister of Citizenship and Immigration), 2003 FC 1429, [2003] F.C.J. No. 1836; aff’d 2004 FCA 212, [2004] F.C.J. No. 947; Gariev v. Canada (Minister of Citizenship and Immigration) 2004 FC 531, [2004] F.C.J. No. 657; Alemu v. Canada (Minister of Citizenship and Immigration) 2004 FC 997, [2004] F.C.J. No. 1210; Segasayo v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 372, [2007] F.C.J. No. 529; Malkine v. Canada (Minister of Citizenship and Immigration), 2009 FC 496, [2009] F.C.J. No. 635; Rajadurai v. Canada (Minister of Citizenship and Immigration), 2009 FC 119, [2009] F.C.J. No. 147; Nadarasa v. Canada (Minister of Citizenship and Immigration), 2009 FC 1112, [2009] F.C.J. No. 1350.
[41] As I stated in Rajadurai, above, at para. 16:
The state has a considerable interest in protecting national security and the security of its intelligence services. Disclosure of confidential information related to national security or which would endanger the safety of any person could cause damage to the operations of investigative agencies. In the hands of an informed reader, seemingly unrelated pieces of information, which may not in themselves be particularly sensitive, can be used to develop a more comprehensive picture when compared with information already known by the recipient or available from another source. In the past, this Court has consistently relied on the principles articulated in Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 (F.C.T.D.), aff’d (1992), 88 D.L.R.(4th) 575 (F.C.A.). At pages 578 and 579, Mr. Justice Addy wrote:
[…] in security matters, there is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the methods of operation of the service, the identity of certain members of the service itself, the telecommunications and cipher systems and, at times, the very fact that a surveillance is being or is not being carried out. This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that C.S.I.S. is in possession of it would alert the targeted organization to the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.
It is of some importance to realize than an “informed reader”, that is, a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter systems employed by C.S.I.S.; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation.
[42] As already mentioned, the Applicant did not formally object to the non-disclosure motion, but responded with his own motion for the appointment of a special advocate. It was submitted that the presence of a special advocate was important to protect the interests of the Applicant in the absence of the Applicant’s presence when dealing with sensitive evidence. Counsel for the Applicant also contended that a special advocate would ensure a perception of an independent judiciary, since it would ensure that the Judge would have an opportunity to hear argument from both sides, despite the non-attendance of the Applicant prior to rendering a decision.
[43] The Respondent is correct in pointing out that the Supreme Court in Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] S.C.J. No. 9 stressed the importance for the judge not only to be, but also to appear to be, independent and impartial. In light of the significant liberty interests in the context of security certificates, the Court came to the conclusion that the principles of fundamental justice required that the individual named in the certificate be provided with a full disclosure of the case against him or her, or in the alternative, a “substantial substitute” for such disclosure. As a result of that decision, amendments were made to the IRPA making it compulsory to appoint a special advocate in security certificate proceedings (s. 83(1)(b)) and leaving it to the discretion of the Court in other types of cases (s. 87.1). These two provisions read as follows:
Protection of information
83. (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:
(b) the judge shall appoint a person from the list referred to in subsection 85(1) to act as a special advocate in the proceeding after hearing representations from the permanent resident or foreign national and the Minister and after giving particular consideration and weight to the preferences of the permanent resident or foreign national;
Special advocate
87.1 If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.
Protection des renseignements
83. (1) Les règles ci-après s’appliquent aux instances visées aux articles 78 et 82 à 82.2 :
b) il nomme, parmi les personnes figurant sur la liste dressée au titre du paragraphe 85(1), celle qui agira à titre d’avocat spécial dans le cadre de l’instance, après avoir entendu l’intéressé et le ministre et accordé une attention et une importance particulières aux préférences de l’intéressé;
Avocat spécial
87.1 Si le juge, dans le cadre du contrôle judiciaire, ou le tribunal qui entend l’appel de la décision du juge est d’avis que les considérations d’équité et de justice naturelle requièrent la nomination d’un avocat spécial en vue de la défense des intérêts du résident permanent ou de l’étranger, il nomme, parmi les personnes figurant sur la liste dressée au titre du paragraphe 85(1), celle qui agira à ce titre dans le cadre de l’instance. Les articles 85.1 à 85.5 s’appliquent alors à celle-ci avec les adaptations nécessaires.
[44] Having carefully considered the information that is redacted from the CTR, as well as the submissions made by counsel for the Respondent and the testimony of the affiant who swore the confidential affidavit during the in camera and ex parte hearing that took place on September 9, 2009, I am satisfied that the disclosure of the information contained in pages 114, 116, 117, 118, 119, 120, 121, 122, 123, 124 and 127 “could be injurious to national security or endanger the safety of any person”.
[45] As already indicated, I have also come to the conclusion that three pages of the CTR (pages 115, 125 and 126) contained redactions of information that could be made public. The witness who alleged to have been tortured in the presence of the Applicant, as well as the Rwandan Ambassador who tipped the RCMP in 1996, have both consented to have their name disclosed. Accordingly, there is no more reason to keep their names confidential, and this is why I ordered to remove most of the redactions found on these three pages.
[46] Mr. Kanyamibwa submitted that a special advocate should be appointed to protect his interests. Relying on two cases decided in the context of Canada Evidence Act, R.S.C. 1985, c. C-5 proceedings, he contended that the requirements of procedural fairness dictate such a result: Canada (Attorney General) v. Khawaja, 2007 FC 463, [2007] F.C.J. No. 648; Khadr v. Canada (Attorney General), 2008 FC 46, [2008] F.C.J. No. 47.
[47] He also sought to distinguish the circumstances of this case from those at play in Segasayo, above, where Mr. Justice Pierre Blais (as he then was) refused to appoint a special advocate within the context of an immigration judicial review. According to the Applicant, his case is much different, first because the redacted pages form a much more significant proportion of the evidence than in Segasayo, second because the redacted evidence appears to refer to allegations which were made and discredited at the Applicant’s refugee hearings and is therefore very significant, and finally because the matter in Segasayo was decided before section 87.1 was added to the IRPA to provide for the power to appoint a special advocate in the context of a judicial review.
[48] Mr. Kanyamibwa also relied extensively on the decision of the Supreme Court in Charkaoui, above for the proposition that in an adversarial system, it is important for the judiciary not only to be independent, but also to be perceived as independent, and that a special advocate would be key to ensu