Harkat, Re

Harkat, Re
Court (s) Database
Federal Court Decisions
Date
2004-12-10
Neutral citation
2004 FC 1717
File numbers
DES-4-02
Notes
Reported Decision
Decision Content
Date: 20041210
Docket: DES-4-02
Citation: 2004 FC 1717
Ottawa, Ontario, Friday this 10th day of December 2004
PRESENT: The Honourable Madam Justice Dawson
BEFORE THE COURT:
IN THE MATTER OF a certificate signed pursuant to
subsection 77(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27, (the "Act");
AND IN THE MATTER OF the referral of that certificate
to the Federal Court of Canada pursuant to subsection 77(1),
sections 78 and 80 of the Act;
AND IN THE MATTER OF Mohamed HARKAT
REASONS FOR ORDER
DAWSON J.
[1] In the context of a hearing into the reasonableness of a security certificate issued in respect of Mohamed Harkat pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act"), Mr. Harkat moved for an order:
a) appointing John B. Laskin to assist the Court as amicus curiae during those portions of the hearing of this matter when counsel for Mr. Harkat is not permitted to be present;
b) requiring that reasonable expenses of the amicus curiae thereby occasioned be paid by the government of Canada;
c) stating that in the absence of the assistance of the amicus curiae, in the particularly complicated circumstances of this case, as set out in the Statement Summarizing the Information and Evidence pursuant to subsection 78(h) of the Act dated December 2, 2002 ("Summary") it will be impossible for the Court to provide fundamental justice to the applicant pursuant to section 7 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter") on the issue of whether the certificate signed by the two Ministers is reasonable;
d) in the alternative, if the Court determines that section 7 of the Charter is not breached by the procedure to be followed in this case, an order of this Court exercising its common law jurisdiction that amicus curiae be appointed to assist the Court in this case;
e) costs of this motion on the solicitor/client basis in any event of the cause; and
f) such further and other relief as counsel may advise and this Court deems just.
[2] As to the jurisdiction of this Court to grant such relief, Mr. Harkat argues that the Court has jurisdiction to do so at common law, and also as a remedy available to the Court under subsection 24(1) of the Charter in order to prevent a breach of Mr. Harkat's rights guaranteed under section 7 of the Charter.
[3] In support of the Court's common law jurisdiction, Mr. Harkat relies upon dicta of the Ontario Court of Appeal in R. v. Samra (1998), 41 O.R. (3d) 434. There, in the context of an appeal against a criminal conviction, it was argued that the lawyer who had been appointed to act as amicus curiae was in a conflict of interest, had made legal submissions contrary to the best interests of the accused, and disclosed confidential information obtained from the accused. At page 443 of the Court's reasons, Mr. Justice Rosenberg, writing for the Court, observed that:
It was not argued, nor could it be, that a superior court has no power to appoint amicus curiae at the trial of an unrepresented accused. The appellant's argument therefore must be that the court erred in appointing Mr. Black as amicus curiae because of a potential or actual conflict of interest.
[4] Mr. Harkat's motion is opposed by counsel for the two Ministers who referred the security certificate to the Court for a determination as to its reasonableness. On the Ministers' behalf, it is argued that:
i) In asserting that the Charter gives this Court jurisdiction to appoint an amicus curiae, Mr. Harkat is calling into question the constitutional validity and the applicability of sections 77 and 78 of the Act, which do not provide for such an appointment. As a result, the Ministers say that Mr. Harkat was required to serve a notice of constitutional question upon the Attorney General of Canada, and the Attorney General of each province.
ii) In any event, the Ministers argue that the procedures set out in sections 77 and 78 of the Act, by which a security certificate is referred to the Federal Court and a judge designated by the Chief Justice of the Court then proceeds to inquire into, and determine, whether the security certificate is reasonable, has been found to be consistent with the principles of fundamental justice as set out in section 7 of the Charter.
iii) The Charter does not confer jurisdiction upon the Federal Court to appoint an amicus curiae.
iv) There is no express bestowal of jurisdiction upon the Federal Court by statute to appoint an amicus curiae.
v) There is no implied jurisdiction in the Federal Court to appoint an amicus curiae in proceedings conducted pursuant to section 78 of the Act.
vi) In the alternative, if the Court concludes that it does possess jurisdiction to appoint an amicus curiae to assist in proceedings conducted in accordance with section 78 of the Act, the Court should not exercise its discretion to do so in this case.
[5] For ease of reference, sections 77, 78 and 80 of the Act are set out in Appendix A to these reasons.
[6] The issue raised by Mr. Harkat is an important one. The written submissions filed in support of, and in opposition to, his motion are not lengthy. Because it may be of relevance to know what arguments were advanced to the Court on this motion, Mr. Harkat's written submissions and supplemental written submissions are appended to these reasons in Appendix B, while the Ministers' written submissions are appended as Appendix C.
[7] The oral argument did not enlarge these submissions to a significant extent.
[8] The motion was argued orally on September 24, 2004. In view of the fact that the Court was to sit commencing on October 25, 2004 for the purpose of providing a further opportunity to Mr. Harkat to be heard regarding his alleged inadmissibility, it was important for the Court's decision concerning Mr. Harkat's motion to be communicated promptly to him. Accordingly, after reflection and deliberation upon the submissions made in writing and orally by the parties, the Court issued an order on October 6, 2004 dismissing the motion, for reasons to be later delivered in writing. These are those reasons.
THE MATERIAL FILED IN SUPPORT OF THE MOTION
[9] The motion is supported by affidavits sworn by John B. Laskin, William George Horton, and Diana Muñoz. Reliance is also placed by Mr. Harkat upon the Summary.
[10] Mr. Laskin is a well-respected and eminent member of the Law Society of Upper Canada. His affidavit exhibits a copy of his curriculum vitae and states that, from 1985 to 1986, Mr. Laskin acted as counsel to the Security Intelligence Review Committee ("SIRC") with respect to complaints made under section 42 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 ("CSIS Act"). SIRC's rules of procedure in relation to its function under the CSIS Act (as adopted on March 9, 1985) are also exhibited to Mr. Laskin's affidavit. Mr. Laskin also advised that he has acted for the government of Canada on several occasions, including in proceedings arising from objections to the disclosure of information on the ground that the disclosure would be injurious to national security. For his work with SIRC and certain other retainers, Mr. Laskin was granted security clearance to the level "Top Secret". If appointed as amicus, Mr. Laskin swore to his belief that he would again be able to be approved for security clearance. Finally, Mr. Laskin advised he would be prepared to take on the task of amicus curiae if the Court decided it needed such assistance.
[11] Mr. Horton is another eminent member of the Law Society of Upper Canada. His affidavit also exhibited a brief professional biography and explained that, between 1986 and 1991, he acted as one of SIRC's counsel. During that time, he worked on 4 or 5 matters, two of which required him to review CSIS files. Thus, he was required to obtain, and did obtain, a "Top Secret" security classification. Mr. Horton described his duties as one of SIRC's independent counsel in the following terms:
4. One of my principal duties as independent counsel was to represent the interests of the complainant with respect to information which could not be disclosed to the complainant and his counsel because of the security classification which had been applied to such information. In the course of performing that function, I did the following:
a) discuss the case with the Chair of the SIRC panel at the outset and review material in the SIRC file regarding the complaint;
b) review the CSIS file;
c) discuss the case with the complainant's counsel and, without revealing any classified information, obtain input as to what issues and concerns the complainant would like to have addressed;
d) conduct in camera cross-examinations of CSIS employees and any informants who testified in whole or in part in camera;
e) make submissions to the SIRC panel with respect to the in camera proceedings;
f) provide editorial assistance with respect to the reasons of the SIRC panel once a decision had been made by the panel.
5. In the performance of these duties, I attempted to bring out facts and considerations which were favourable to the complainant in a balanced and responsible manner having regard to the fact that I owed duties to both the complainant and to SIRC. However, where I felt in my own independent judgement that it was required, I did not hesitate to conduct an adversarial cross-examination of a witness.
6. While the role I played as independent counsel to SIRC was a hybrid role in terms of Canadian legal norms, I felt that it was a necessary and effective compromise to ensure that there could be a degree of scrutiny and accountability for state action where classified information is involved.
[12] Diana Muñoz is a legal secretary employed by Mr. Harkat's solicitor. Her affidavit identified a bound volume entitled "Material Relied Upon in Support of the Amicus Curiae Motion". The contents of that volume are generally described as the correspondence and a memorandum all relating to various disclosure requests made on Mr. Harkat's behalf.
THE JURISDICTIONAL QUESTION
[13] At the outset, I dismiss the argument advanced on the Ministers' behalf that Mr. Harkat was obliged to serve a notice of constitutional question upon the Attorney General of Canada and the Attorney General of each province. Section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7 requires service of such a notice where the "constitutional validity, applicability, or operability of an Act of Parliament" is put into question. I do not understand Mr. Harkat on this motion to put the validity, applicability, or operability of section 78 of the Act in question. Rather, Mr. Harkat states in his notice of motion that "in the absence of the assistance of the amicus curiae, in the particularly complicated circumstances of this case [...] it will be impossible for the Court to provide fundamental justice" to him pursuant to section 7 of the Charter on the issue of whether the security certificate is reasonable. In other words, Mr. Harkat states that his section 7 Charter rights are jeopardized by the current procedure and that the Act, fairly interpreted, allows the Court to remedy that situation. In that circumstance, Mr. Harkat was not, in my view, obliged to serve a notice of constitutional question.
[14] In the circumstances of this case, I do not find it necessary to decide whether the Court has the jurisdiction to appoint an amicus curiae. In the absence of fully developed submissions on the point, as reflected in the appended written submissions, I consider it preferable that I do not decide the point. On my assessment of the merits of the motion before me, it is sufficient for me to assume, without deciding, that there is such a jurisdiction.
[15] I now turn to consider the facts and matters urged upon the Court as justifying the appointment of an amicus curiae on the assumption that jurisdiction exists in certain circumstances either by implication or as a result of the Court's jurisdiction to provide a remedy for a breach of a Charter right.
THE BASIS OF THE ARGUMENT THAT AN AMICUS CURIAE IS REQUIRED
[16] The facts and matters said to render it impossible for the Court to provide fundamental justice to Mr. Harkat or to warrant the exercise of common law jurisdiction to appoint an amicus curiae are as follows:
i) Matters relating to Mr. Harkat are significantly more complicated than the matters relating to Mr. Ahani which were considered by Madam Justice McGillis in Ahani v. Canada, [1995] 3 F.C. 669; aff'd (1996), 201 N.R. 233 (F.C.A.); leave to appeal to the Supreme Court refused [1996] S.C.C.A. No. 496 (Q.L.). The simpler allegations in respect of Mr. Ahani were those before the Court when it found the predecessor legislation to sections 77, 78 and 80 of the Act to meet the principles of fundamental justice.
ii) Given the particularly complicated history and circumstances of this case, "the unwillingness of the government to answer even such basic questions as to whether they are relying on information obtained from Maher Arar, or Ahmed Ressam, an amicus curiae is necessary in order to allow the Court to consider fully and fairly the context and substance of the allegations made against" Mr. Harkat.
iii) Such appointment would greatly assist the Court in assessing the reasonableness of the security certificate. "An amicus curiae would allow the Court to benefit from hearing representations of counsel which would not otherwise be put forward, while preserving the government's claim to national security interest". Considering the type of issues the Court will be called upon to decide, "the assistance or input of an amicus curiae could prove invaluable" so that Mr. Harkat's interest will be more completely protected. The appointment of an amicus curiae is said to strike a just balance between the competing interests inherent in the case.
iv) The Summary provided to Mr. Harkat pursuant to subsection 78(h) of the Act fails to meet the standard imposed upon the Ministers of full, fair and candid disclosure of the facts. Particularly, there was not full disclosure of the political situation in Algeria and the Ministers suggested that false Saudi passports were passports of choice only for Islamic extremists wishing to enter Canada.
ANALYSIS OF THE SUFFICIENCY OF THE GROUNDS ASSERTED TO JUSTIFY APPOINTMENT OF AN AMICUS CURIAE
[17] I will analyse the facts and matters argued by Mr. Harkat within the following framework:
1. Do those matters establish that the appointment of an amicus curiae is necessary or required in order for the Court to exercise the jurisdiction granted to the Court pursuant to the Act so as to establish the asserted implied jurisdiction?
2. Do those matters establish that, unless an amicus curiae is appointed, it will be impossible for the Court to provide fundamental justice to Mr. Harkat?
3. Are there additional considerations relevant to the exercise of discretion to appoint an amicus curiae in this case?
[18] Before commencing this analysis, it will be helpful to consider the regime established by sections 77, 78 and 80 of the Act and the role in that scheme of the designated judge. These matters were recently reviewed by my colleague, Mr. Justice Simon Noël, in Charkaoui (Re), [2004] 3 F.C.R. 32 (F.C.) and I adopt his explanation as set out in paragraphs 100 through 102 of his reasons:
100 In my opinion, designated judges are the cornerstone of the review procedure because they have a twofold obligation: to protect criminal or national security intelligence; and to provide the person concerned with a summary of the evidence that reasonably discloses the circumstances giving rise to the certificate and the warrant that resulted in his detention. This constitutes the balance between the opposing interests.
101 In order to carry out this difficult task, the designated judge has access to all the information on which the Ministers' decisions are based, without exception. The designated judge can even examine additional information if counsel for the Ministers submit any (paragraph 78(j) of the IRPA). The Ministers' representatives are even under a duty to inform the designated judge of any facts that could be prejudicial to the Ministers' case. In Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, Arbour J. notes that the duty of disclosure is much greater when Parliament has authorized hearings in the absence of a party [at paragraph 47]:
As mentioned before, when making ex parte submissions to the reviewing court, the government institution is under a duty to act in utmost good faith and must make full, fair and candid disclosure of the facts, including those that may be adverse to its interest.
Designated judges preside over hearings and hear the Minister's witnesses. They examine witnesses themselves as the need arises. They examine the documents carefully to determine which information is related to security and which information is not. In order to do so, they examine, among other things, the sources of the information, the way in which it was obtained, the reliability of the sources and the method used, and whether it is possible to corroborate the information by other means. Designated judges take account of the fact that the information was obtained in confidence from a source in Canada or a foreign source, or that the information is already in the public domain. They ask the Ministers' representatives about the quality of the investigation and inquire into whether the events can be interpreted differently. They decide which information can be disclosed to the person concerned and provide a summary of the evidence containing nothing which would, if disclosed, be injurious to national security or to the safety of any person. The summary must enable the person concerned to be reasonably informed of the circumstances giving rise to the signing of the certificate, the issuance of the warrant of arrest and the detention.
102 After the person concerned receives the summary in question and other relevant documents, the designated judge holds one or more hearings where the person concerned is given the opportunity to be heard. [...] At the hearing, the Ministers and the person concerned have the opportunity to call witnesses, submit documentary evidence and make oral as well as written submissions.
(I) Is the appointment of amicus curiae necessary or required in order for the Court to exercise the jurisdiction granted to the Court pursuant to the Act?
[19] The Federal Court is not a court of general or inherent jurisdiction. It is a statutory court constituted pursuant to Parliament's authority under section 101 of the Constitution Act, 1867 to establish "additional Courts for the better Administration of the Laws of Canada". Section 3 of the Federal Courts Act provides that the Court is a "court of law, equity, and admiralty" and "a superior court of record having civil and criminal jurisdiction". The designation of the Federal Court as a superior court has been held to confer no jurisdiction by itself. See: Puerto Rico (Commonwealth) v. Hernandez, [1975] 1 S.C.R. 228 at pages 232-233 where the majority of the Court held that the concluding words of section 3 of the then Federal Court Act and the reference to the Federal Court continuing as a "superior court of record" did not make the Federal Court a "superior court within the same meaning of that expression as applied by the superior courts of the provinces, that is, courts having jurisdiction in all cases not excluded from their authority". This authority, in my view, distinguishes the dicta of the Ontario Court of Appeal in Samra, supra. The Federal Court can only exercise those powers that are given to it by Parliament.
[20] Having said that, a power may be conferred by implication to the extent that the existence and exercise of such a power is necessary for the Court to properly and fully exercise the jurisdiction expressly conferred upon it by some statutory provision. See: New Brunswick Electric Power Commission v. Maritime Electric Company Limited and National Energy Board, [1985] 2 F.C. 13 (C.A.) where the Federal Court of Appeal found that it had implied jurisdiction to grant a stay where the failure to stay the operation of the decision under review would render the appeal nugatory. However, conferral of a power will be implied only where that power is necessary or required in order to permit the exercise of the Court's express jurisdiction. See: Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626 at pages 639 to 644 where the majority of the Court wrote that, in the context of the power to issue an injunction, "power has only been implied where that power is actually necessary for the administration of the terms of the legislation; coherence, logicality, or desirability are not sufficient".
[21] This is why it is necessary to consider whether the evidence establishes that the appointment of an amicus curiae is necessary in order for the Court to exercise its responsibility under sections 78 and 80 of the Act.
[22] Counsel have not cited, nor am I aware of, any prior request for the appointment of an amicus curiae in cases where the Court is inquiring into the reasonableness of a security certificate under the Act or under its predecessor legislation. In those previous cases, the Court reached its conclusions concerning the reasonableness of a certificate without the assistance of an amicus curiae. What then makes this case different so that the Court cannot exercise its statutory jurisdiction without the appointment of an amicus curiae?
[23] First, Mr. Harkat argues that the matters relating to him are significantly more complicated than the matters relating to Mr. Ahani. No evidentiary basis was tendered for this submission, but it was argued orally that the Ahani case was simpler because the allegation was simply that Mr. Ahani was a foreign assassin.
[24] Allegations against Mr. Harkat, as contained in the Summary and supplementary disclosures, are that:
(i) Prior to arriving in Canada, Mr. Harkat engaged in terrorism by supporting terrorist activities, and he is a member of the Bin Laden Network which includes Al Qaida.
(ii) He is an Islamic extremist and a supporter of Afghani, Pakistani and Chechen extremists.
(iii) Mr. Harkat's method and route of travel to Canada, untrue statements made to Canadian officials, support for individuals and groups involved in political violence or terrorist activity, alliances with Islamic extremists, and use of security techniques lead CSIS to believe that Mr. Harkat is associated with organizations that support the use of political violence and terrorism.
(iv) With respect to the provision of untrue statements, it is said that Mr. Harkat lied when he:
(a) denied helping Islamic extremists in Pakistan while working for a relief agency;
(b) denied he was involved in supporting Islamic extremists;
(c) failed to reveal that he had been in Afghanistan;
(d) masked his relationships with individuals in Canada; and
(e) denied using aliases in order, in part, to distance himself from associating with individuals or groups who may have participated in the Bin Laden Network.
(v) Mr. Harkat has assisted some Islamic extremists who have come to Canada.
(vi) Mr. Harkat has associated with Abu Zubaida, one of Osama Bin Laden's top lieutenants who identified Mr. Harkat from his physical description and his activities, including that he operated a guest house in Peshawar, Pakistan in the mid-1990s for Mujahedeen travelling to Chechnya.
(vii) Mr. Harkat denied being known as Abu Muslim or Abu Muslima.
[25] Mr. Harkat is, in my view, able to avail himself of his opportunity to be heard under subsection 78(i) of the Act in response to this disclosure without the involvement of amicus curiae. The allegations against him are based purely on asserted facts and in my view are not so complicated as to require a procedure not contemplated in the Act.
[26] Mr. Harkat points to the fact that he has been unable to obtain answers to all of 231 questions which he put to the Ministers and he says therefore that an amicus curiae is necessary. With respect, I appreciate that, without knowledge of the contents of the classified Security Intelligence Report that led to the issuance of the security certificate, it is impossible for Mr. Harkat to know the precise evidence that supports the certificate where I have found that the disclosure of such evidence would be injurious to national security or to the safety of any other person. That does not mean, however, that without an amicus curiae the Court cannot fully and fairly consider the context and substance of the allegations made against Mr. Harkat and the nature and the reliability of the evidence supporting it. That is the very responsibility of the Court, and the exercise the Court has, and will, conduct. To illustrate, by direction, the Court has previously advised the parties that:
I have carefully considered the entirety of the evidence presented by the Ministers. On the basis of that review and consideration, I can advise that I will make no finding adverse to Mr. Harkat on the basis of any information concerning Mr. Harkat which may have been provided by Ahmed Ressam or Maher Arar.
[27] To the extent that information was sought by Mr. Harkat in his counsel's 231 questions (and more), any information that was not already before the Court in the classified Security Intelligence Report has now been provided to the Court in Mr. Harkat's absence where the disclosure of the answer would be injurious to national security or the safety of any person. Put more simply, the Court has ensured that all information that Mr. Harkat wished to have before the Court has been placed before the Court.
[28] Counsel for Mr. Harkat argued that intelligence services have been involved with abuses in the past and that intelligence services are not infallible. This, however, is why the Court is obliged to isolate the facts relied upon to support the security certificate and then, in the words of Mr. Justice Blais in Zundel (Re) (2004), 245 F.T.R. 61 at paragraph 12, review such evidence "with intense scrutiny" and weigh the evidence "with an eye to the quality and number of sources of information". This will necessarily require the Court to consider the potential for error caused by a number of factors including mis-identification, mistake, mis-direction, incompetence and malevolence.
[29] Mr. Harkat also argues that the appointment of an amicus curiae would greatly assist the Court and that his interest would be better protected with the presence of an amicus. However, as the majority of the Supreme Court noted in Canadian Liberty Net, supra, the standard for finding an implied power is a stringent one; a power is not to be implied where it is simply logical or desirable.
[30] Mr. Harkat has alleged that an amicus curiae is required because the Ministers have failed to make full and fair and candid disclosure of the facts in two material respects. First, Mr. Harkat says there was not full disclosure of the political situation in Algeria. Specifically he says that:
The government failed to advise the Court that the FIS won the first round of the elections in 1992, that the military intervened to take over the government and cancelled the elections. The government failed to advise this Court that the military engaged in indiscriminate killings and disappearances of its political opponents. The government failed to advise the Court that 200,000 people were killed in Algeria as a result of the actions of the army and the response to the actions of the army in canceling [sic] the elections and seizing the government.
[31] I believe this to relate to paragraphs 10 and 11 of the Summary which are as follows:
10. In his refugee claim, HARKAT acknowledged his support for, and membership in, the Front islamique du salut (FIS) in Algeria. When HARKAT was a supporter of the FIS, it was a legitimate political organization. In 1992, the FIS was outlawed by the Government of Algeria, and in 1993, it created a military wing, the Armée islamique du salut (AIS), which supported a doctrine of political violence. HARKAT claims to have joined the FIS in 1989 after losing faith in the Algerian government's ability to solve the social and economic problems facing Algeria. Shortly after joining the FIS, he provided the group with access to a family home in the village of Zmalet Elamir Abdulkadir, Algeria. This residence became the district office for the FIS and was used rent-free for the registration of its members. During this period, he claims to have resided at Oran University, where he was attending classes. In March 1990, Algerian government security officers closed down the residence in Zmalet Elamir Abdulkadir and arrested all the FIS workers. HARKAT was advised that the authorities were looking for him and went into hiding until his departure for Saudi Arabia on a visitor visa in April 1990. He travelled to Pakistan and remained until September 1995.
11. HARKAT's claims to membership in the FIS are consistent with Service investigation. However, Service investigation revealed that when the FIS severed its links with the Groupe islamique armé (GIA), HARKAT indicated his loyalties were with the GIA. The GIA seeks to establish an Islamic state in Algeria through the use of terrorist violence and to eliminate Western influences from the country. Although the FIS was at one time politically and ideologically associated with the GIA, in 1997, the FIS distanced itself from the civilian massacres committed by the GIA and publicly denied that the two organizations would join forces. Since the September 11, 2001 attacks on the United States, GIA attacks and massacres in Algeria have continued (see Annex IV). [footnotes omitted]
[32] I cannot accept Mr. Harkat's submissions that the Ministers breached their duty to make candid disclosure so as to establish the need for the appointment of an amicus curiae. In my opinion, the Summary fully and clearly outlines the allegations concerning Mr. Harkat's involvement in the FIS and GIA. If of the view that more information is required in order to historically situate the FIS, Mr. Harkat is free to adduce whatever relevant evidence he wishes.
[33] The second lack of disclosure is said to be the suggestion "that false Saudi passports were passports of choice only for Islamic extremists wishing to enter Canada". This is, I believe, a reference to paragraph 14 of the Summary which is as follows:
14. In an interview with the Service in May 1997, HARKAT explained that he used a false Saudi passport so that he would not require a visa to travel to Canada. The Service believes Saudi passports were the document of choice for Islamic extremists wishing to enter Canada, as prior to 2002, Saudi passport holders did not require a visa to enter Canada.
[34] I do not believe, on a fair reading, that the Summary says that only Islamic extremists used Saudi passports. Nor does the Summary say that Islamic extremists only used Saudi passports. There has not been a breach of the duty to make full and fair and candid disclosure.
[35] To summarize, I have found that Mr. Harkat has failed to establish that the Court cannot properly exercise its jurisdiction without the appointment of an amicus curiae.
(ii) Without the appointment of an amicus curiae, will it be impossible for the Court to provide fundamental justice to Mr. Harkat?
[36] Subsection 24(1) of the Charter provides that:
24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
24(1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s'adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances.
[37] Thus, the section allows a "court of competent jurisdiction" to ensure that violations of Charter rights are remedied in an appropriate fashion.
[38] In Charkaoui, supra at paragraph 107, Mr. Justice Simon Noël concluded that the procedure established by sections 76 to 85 of the Act complies with the principles of fundamental justice guaranteed by section 7 of the Charter. More recently, in Sogi v. Canada (Minister of Citizenship and Immigration) (2004), 322 N.R. 2 (F.C.A.); leave to appeal dismissed [2004] S.C.C.A. No. 354 the Federal Court of Appeal found that the procedure whereby a member of the Immigration Division of the Immigration and Refugee Board may, in making an admissibility decision, take into account security intelligence information without disclosing it to the affected individual, conforms to the principles of fundamental justice so that section 7 of the Charter is not violated.
[39] In both Charkaoui and Sogi, supra, significant reliance was placed upon the decision of Madam Justice McGillis in Ahani, supra. In Ahani, the constitutional validity of the predecessor legislation was upheld.
[40] It follows from this jurisprudence, at least for the purpose of this motion, that any alleged violation of Mr. Harkat's section 7 Charter rights arises not from the legislative scheme, but from the particular circumstances of this case.
[41] For the reasons set out above, I have not been persuaded that there is anything in the circumstances of this case that renders the Court incapable of properly balancing and protecting Mr. Harkat's rights so as to provide a hearing that conforms with the principles of fundamental justice. It follows, in my view, that there is no need for recourse to the remedial provisions of subsection 24(1) of the Charter in order to appoint an amicus curiae.
(iii) Additional Considerations
[42] In my view, the following factors also weigh against the exercise of discretion to appoint an amicus in this case at this time:
i) It would not be in accordance with the intent of Parliament, as expressed in the legislation.
ii) The request is made late in the proceeding and would result in further delay.
iii) The procedure set out in section 78 of the Act provides the designated judge with the necessary power and flexibility to inquire into the reasonableness of a security certificate while balancing and protecting the rights of the person named in the security certificate.
Parliamentary Intent
[43] Sections 77, 78 and 80 of the Act do not expressly contemplate the appointment of an amicus curiae, and section 78 evinces Parliament's intent that the responsibility for determining the reasonableness of the security certificate is placed upon the designated judge alone. It is the designated judge who is to: i) hear the matter; ii) ensure the confidentiality of all information; iii) deal with all matters as informally and expeditiously as the circumstances and considerations of natural justice permit; iv) provide the person named in the certificate with a summary of the information or evidence that enables him or her to be reasonably informed of the circumstances giving rise to the certificate; and v) provide the person concerned with an opportunity to be heard.
[44] In Charkaoui v. Canada (Minister of Citizenship and Immigration), [2004] 1 F.C.R. 451 at paragraph 18, the Federal Court of Appeal considered the statutory obligation placed upon the designated judge to keep information confidential together with the provision of the Act that no appeal lies from the decision of a designated judge as to the reasonableness of the certificate. The Court of Appeal concluded from these provisions that Parliament intended that the evidence which is necessary to determine the reasonableness of the certificate is to be taken and handled by the designated judge and to go no further. In the view of the Court of Appeal, to recognize a right of appeal on the issue of detention would allow such evidence to go beyond that framework so as to be put before the Court of Appeal. This was said to pose a number of practical problems and raise questions that Parliament had not answered, which indicated to the Court of Appeal that Parliament did not contemplate any appeal from a decision on detention.
[45] It would follow from this reasoning that providing access to the confidential information to an amicus curiae would also be contrary to Parliament's intent.
[46] In my view, some singular circumstance would have to arise in order to justify derogation from the scheme set out in section 78 of the Act.
[47] Mr. Harkat placed some reliance upon a speech delivered at a conference organized by the Canadian Institute for the Administration of Justice entitled "Terrorism, Law and Democracy" by my colleague Mr. Justice Hugessen. There, Mr. Justice Hugessen observed that designated judges "do not like the process of having to sit alone hearing only one party, and looking at the material produced by only one party". However, judges are not parliamentarians. Parliament, when dealing with security certificates, has chosen not to follow the SIRC model (where independent counsel performed the functions described by Mr. Horton). Justice Hugessen's comments I believe reflect the difficulty of the task entrusted to designated judges and the keen awareness with which they face the task of balancing the rights of a person named in a security certificate against Canada's need to preserve the confidentiality of information protected for reasons of national security.
[48] Before moving to the next consideration, it is appropriate to deal with Mr. Harkat's submission that Parliament has eliminated the protections provided for permanent residents in the national security context by having their cases heard before a single judge of the Federal Court and not by SIRC. This asserted diminution of protection flows, as I understand his submissions, from the absence of independent counsel in proceedings before the Federal Court. There are two responses to this. First, and less important, Mr. Harkat is not a permanent resident so that his case would never have been referred to SIRC. Second, it should be remembered that members of SIRC were appointed on a part-time basis and that members of SIRC were appointed from among members of the Privy Council. However, there was no requirement that members of SIRC be legally trained. Members of SIRC are not judges. The fact that SIRC engaged independent counsel must be seen in that context.
[49] In Charkaoui, supra, Mr. Justice Noël considered the origin of the designation of Federal Court judges to act in matters of national security. He wrote at paragraph 35 and 36:
35 Interestingly, the concept was formulated in the report of the Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police: Second Report: Freedom and Security under the Law ("the Commission"). The Commission refers to the notion of "designated judge" in Part V of its 2nd report at paragraph 101 (volume I, page 556) where it considers the question of applications for warrants in connection with the Official Secrets Act, R.S.C. 1985, c. O-5, stating as follows:
In a system of responsible Cabinet government operating within the rule of law Ministers are responsible for the effective and proper execution of the powers lawfully available to government, but they do not have the final responsibility for determining what the law is. In our system of government this is normally the function of judges.
36 At paragraphs 104 and 106 of Part V (volume I, pages 557-58)