Harkat (Re)

Harkat (Re)
Court (s) Database
Federal Court Decisions
Date
2010-12-09
Neutral citation
2010 FC 1243
File numbers
DES-5-08
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20101209
Docket: DES-5-08
Citation: 2010 FC 1243
Ottawa, Ontario, December 9, 2010
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
IN THE MATTER OF a certificate signed
Pursuant to subsection 77(1) of the Immigration and
Refugee Protection Act, S.C. 2001, c.27, as amended (the “Act”)
IN THE MATTER OF the referral of that
Certificate to the Federal Court of Canada
Pursuant to subsection 77(1) of the Act;
AND IN THE MATTER OF Mohamed HARKAT
AMENDED REASONS FOR ORDER AND ORDER
Introduction
[1] The present reasons for order and order deal with a motion brought by Mr. Harkat, seeking the exclusion of summaries of conversations as evidence, based on the doctrine of abuse of process. In the alternative, a stay of proceedings is also being sought in consideration of a number of breaches which, when considered cumulatively, create such an effect as to require such a remedy (see Reply submissions on remedy pursuant to subsection 24(1) of the Charter, May 18, 2010, para. 28). In addition, the special advocates also submitted during the closed hearings that a stay of proceeding should be based on their dissatisfaction with a number of measures taken by the Ministers to obtain information in relation to Mr. Harkat (see communications dated May 13, 2009, December 11, 2009, May 5, 2010, May 12, 2010 and September 1, 2010 which dealt in part on this issue). Since such determination is based on closed evidence, a specific set of reasons is issued as part of Annex A of these reasons, but, for national security purposes, is only available to those authorized to access such information. The remedies sought are denied.
[2] As will be seen, a substantial portion of the relevant arguments made by Mr. Harkat have already been addressed in two other decisions, one dealing with the reasonableness of the certificate (Harkat (Re), 2010 FC 1241), the other with the constitutional questions (Harkat (Re), 2010 FC 1242). The summaries of conversations which Mr. Harkat seeks to exclude as evidence have been validated insofar as their content is concerned. Also, the new disclosure process with the participation of special advocates passed constitutional muster. Mr. Harkat alleges that some events or situations have given rise to Charter violations that call for a section 24(1) remedy. He is seeking remedies on an abuse of process theory. In these reasons, the Court will attempt not to repeat what has already been written on similar topics in the two other judgments, but some overlap might be inevitable.
History of Proceeding
[3] A certificate stating that Mr. Harkat was inadmissible on security grounds (the “2008 Certificate”) was signed by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration and referred to the Federal Court under the new Immigration and Refugee Protection Act (the “New IRPA” or “IRPA”) legislation on February 22, 2008.
[4] Previously, on December 10, 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration (“the Ministers”) had signed a certificate pursuant to then subsection 77(1) of the Immigration and Refugee Protection Act (the “previous legislation”), in which they stated that they were of the opinion that Mohammed Harkat is a foreign national who is inadmissible to Canada on security grounds (the “2002 certificate”). In accordance with the legislation, he was arrested and detained. Mr. Harkat was released from detention on May 23, 2006 under conditions, which were reviewed periodically thereafter.
[5] A hearing as to the reasonableness of the 2002 certificate was held before Justice Dawson in March 2005. Mr. Harkat challenged the constitutionality of sections 78 through 80 of the previous legislation on the grounds that it violated the principles of fundamental justice guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (“the Charter”). Justice Dawson upheld the constitutionality of the security certificate process based on the Federal Court of Appeal’s decision in Charkaoui (Re), 2004 FCA 421. Justice Dawson concluded that there were reasonable grounds to believe that Mr. Harkat had engaged in terrorism for a number of reasons, in particular by supporting terrorist activity as a member of the Bin Laden Network (“BLN”) (Harkat (Re), 2005 FC 393).
[6] Mr. Harkat appealed Justice Dawson’s ruling with respect to the constitutionality of the certificate proceeding. On September 6, 2005, the Federal Court of Appeal dismissed this appeal on the grounds that he had not shown any manifest error requiring a departure from Charkaoui (Re), supra, and Almrei v. Canada (Minister of Citizenship and Immigration), 2005 FCA 54, where the constitutionality of the same provisions of the former IRPA were upheld (see Harkat (Re), 2005 FCA 285). Mr. Harkat sought leave to the Supreme Court, which was granted.
[7] On February 23, 2007, the Supreme Court of Canada ruled that the disclosure procedure for certificates under the former IRPA violated section 7 of the Charter and declared the relevant provisions to be of no force or effect. Chief Justice McLachlin wrote that the disclosure made was such that the named person’s right to know and answer the case against him or her was not satisfied. The Court ruled that this violation could not be saved by section 1 of the Charter because it did not minimally impair the rights in question (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 (“Charkaoui #1”)).
[8] The Supreme Court also declared that former IPRA subsection 84(2) governing applications for judicial release violated sections 9 and 10(c) of the Charter, because it did not provide for a timely detention review to foreign nationals as it did for permanent residents.
[9] The Supreme Court suspended the declaration of invalidity of the impugned provisions of the previous legislation for one year, allowing Parliament to enact a constitutionally compliant legislation. As a result, Mr. Harkat remained subject to the 2002 security certificate and the conditions of release as imposed by Justice Dawson on May 23, 2006.
[10] On February 22, 2008, Bill C-3, an Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act (“Bill C-3” or the “New IRPA”), came into force in response to the ruling of the Supreme Court of Canada in Charkaoui #1. Bill C-3 made substantial modifications to the procedure governing the judicial review of certificates as well as applications for detention release in that context. These amendments included a new disclosure process of national security information and the addition of special advocates to represent the interest of the named persons during the closed hearings. Bill C-3 also eliminated the distinction between permanent residents and foreign nationals for the purposes of the judicial interim reviews of detention and release with conditions. The Ministers also sought the status quo of the conditions of release of Mr. Harkat.
[11] On June 26, 2008, the Supreme Court of Canada rendered a second decision concerning the certificate process in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 (“Charkaoui #2”). In that appeal, Mr. Charkaoui sought a stay of proceedings based on the destruction of original notes taken by the Canadian Security Intelligence Service (“CSIS” or the “Service”) during interviews with him. The Supreme Court allowed Mr. Charkaoui’s appeal in part. While a stay of proceedings was deemed premature, the Court held that the destruction of operational notes was a serious breach of CSIS’ duty to retain and disclose information in accordance with section 12 of the Canadian Security Intelligence Act, R.S.C. 1985, c. C-23 (the “CSIS Act”).
[12] On September 24, 2008, in conformity with this ruling, the Court ordered the Ministers and CSIS to “… file all information and Intelligence related to Mohammed Harkat including, but not limited to, drafts, diagrams, recordings and photographs in CSIS’ possession or holdings with the designated proceedings section of the Court”.
[13] The scope of disclosure required by Charkaoui #2 resulted in the filing of thousands of documents, most of them redacted in part. The production of such documents took over six months. However, the process was ongoing and began as soon as some redacted documents were ready to be filed. The redactions were necessary since a good number of documents did not only deal with Mr. Harkat, but with other matters that were not related to the case. The special advocates had access to the information relating to Mr. Harkat in accordance with the legislation but to nothing else. The Court therefore assumed an additional task in reviewing the relevance of the redactions. This exercise was time-consuming. The review identified a few questionable redactions, but they were warranted in all other cases. The special advocates reviewed the Charkaoui #2 disclosure and identified some information which they felt was relevant to the proceeding. As a result of the Charkaoui #2 review, documents were entered as exhibits (see ex. M13, M15, M17, M18, M25 and M26). Except for the human source polygraph issue (which shall be dealt with separately), the Court and the special advocates did not find any smoking gun or substantive information that was not included in the initial disclosure. This disclosure process added months to the proceeding.
[14] In the fall of 2008, closed hearings were held concerning the Charkaoui #2 disclosure issue. Also, evidence through a ministerial witness was presented in support of the allegations made against Mr. Harkat and as to the reasonableness of the certificate. Since the Charkaoui #2 disclosure was ongoing, the cross-examination of the witness by the special advocates was limited to the issue of the danger associated with Mr. Harkat in relation to the review of conditions of release. The cross-examination concerning the reasonableness of the certificate was postponed to November 23, 2009. During those closed hearings, the Court dealt with other matters such as the request of the special advocates to access a CSIS employee file and human sources files. This resulted in the issuance of reasons for judgment in both cases (see Harkat (Re), 2009 FC 203; and Harkat (Re), 2009 FC 1050).
[15] In October 2008, the Ministers consented to a change of residence, and to the removal of a condition that required Mr. Harkat to reside with two supervising sureties. The Ministers’ consent was conditional upon Mr. Harkat’s agreement with a number of conditions, such as the installation of surveillance cameras by the Canada Border Services Agency (“CBSA”). The Ministers also agreed to have Mr. Weidemann removed as a supervising surety.
[16] In December 2008, an issue arose with regard to telephone intercepts and solicitor-client privilege. Closed and public hearings were held on the subject, and it was concluded that no conversation with counsel was listened to by CBSA and/or CSIS. This information was updated as of the end of August 2010. Again, no calls were listened to.
[17] In March 2009, this Court conducted a review of Mr. Harkat’s release conditions in public hearings. It concluded that his release without conditions would be injurious to national security, but however confirmed his release under more appropriate conditions. In particular, Mr. Harkat could stay home alone between 8AM and 9PM provided he gave the CBSA a 36-hour notice and call them every hour on the hour (see Harkat (Re), 2009 FC 241).
[18] On April 23, 2009, as a result of the ongoing closed hearings, the Ministers disclosed facts on which they relied upon that were not previously disclosed publicly, as well as a summary and further disclosure of Charkaoui #2 documents (see ex. M15). It was agreed between counsel that only information relied upon in examination and cross-examination could be used for the purposes of the proceeding.
[19] On May 12, 2009, 19 days before the public hearings as to the reasonableness of the security certificate were to begin, the CBSA conducted a search of Mr. Harkat’s residence. Sixteen law enforcement officers were involved, including three canine units. Searches were authorized under the conditions of release. Having become cognizant of how the search was done, this Court immediately cancelled such authority given to the CBSA in the conditions of release, and subjected them to a prior authorization by the designated judge (See Order dated May 12, 2009 amending the conditions of release). Upon request by Mr. Harkat, the search was reviewed by the Court. It was ruled that the search authorization granted by paragraph 16 of the conditions of release did not authorize the intensive and broad nature of the search and seizure done on May 12, 2009 (see Harkat (Re), 2009 FC 659). All items seized were ordered to be returned to Mr. Harkat.
[20] On May 26, 2009, a Ministers’ letter was delivered to the Court providing new information in relation to the reliability of a human source that had provided information on Mr. Harkat (the “polygraph issue”). The Court ordered the Ministers to file, on a confidential basis, the human source file, as the Court had evidence that led it to question the completeness of the information provided by the Ministers. On June 16, 2009, the Court issued a public direction offering three CSIS witnesses an opportunity to explain their testimony and their failure to provide relevant information to the Court. The CSIS witnesses accepted the Court’s invitation.
[21] In their submissions, the special advocates sought the exclusion of all information provided by the human source in question as a remedy pursuant to subsection 24(1) of the Charter. On October 15, 2009, the Court issued public reasons for order and an order (Harkat (Re), 2009 FC 1050). The Court found that there had been no intent to filter or conceal the information concerning the human source on the part of the CSIS employees and that there were insufficient grounds to rule that Mr. Harkat’s rights, as guaranteed by the Charter had been violated. However, the Court ordered that another human source file relied upon by the Ministers be made available to the special advocates and the Court, setting aside the human source privilege, to ensure that there was no further concern in relation to the special advocates’ ability to fully test the evidence. This was found to be necessary to repair the damage done to the administration of justice and to re-establish a climate of trust and confidence in the proceeding. The review of the human source files by the special advocates and the Court did not reveal any new evidence to the effect that the information presented to the Court was incomplete or not reflecting the information gathered. The Ministers filed a new classified exhibit which reflected more properly the content of the human source file related to the polygraph test. The other human source file reviewed by the special advocates and the Court was in accordance with the original ministerial exhibits filed on human sources. The remedy sought by the special advocates pursuant to subsection 24(1) of the Charter was not granted since remedies had been granted and the situation did not call for the exclusion of the information provided by the human source.
[22] On September 21, 2009, Mr. Harkat filed an application for an order reviewing his conditions of release. In light of a new threat assessment issued by the Ministers, an important number of restrictions were removed. Mr. Harkat could now go on outings without the presence of his sureties and was allowed to travel outside the Ottawa region under certain conditions (Harkat (Re), 2009 FC 1008). Some restrictions remain, such as having to wear a GPS bracelet.
[23] During the closed hearing, which was prior to the beginning of the public hearing on the reasonableness of the certificate, an issue arose with regard to third party information that the special advocates considered necessary to be transmitted to Mr. Harkat. However, this information is protected from disclosure by a caveat in the Intelligence world: no disclosure is allowed unless permission is obtained. This sensitive issue was dealt with at length during closed hearings. The special advocates agreed that some of the information was such that permission should be sought from these specific sources of information. A process was established by the Ministers to seek such permission in specific cases. Some of this information was eventually disclosed to Mr. Harkat through summaries.
[24] The special advocates and public counsel aimed to obtain updated information on Zubaydah and Wazir, two individuals alleged to have links with Mr. Harkat. Closed hearings were held and the matter was reviewed at length. When possible, public communications of the information was made (see communication dated May 12, 2010). At the end of the public hearings, the Court informed the parties that any new information concerning these two individuals could be filed with the Court until August 31, 2010. Other documents were filed in closed hearings and a summary of information was also issued (see Oral communication issued on September 1, 2010). Closed hearings began in September 2008 and finished with oral submissions in early summer 2010. Public hearings also began in the fall of 2008 and were concluded with oral submissions also in the early part of the summer 2010. Many witnesses were heard in both public and closed hearings, some of them as factual witnesses, others as experts.
[25] Many lawyers have been involved in this proceeding: five lawyers for the Ministers, three public counsels for Mr. Harkat, and two special advocates. The involvement of so many persons gave rise to a multitude of motions and requests which required months of preparation, hearings and writing. Other lawyers were involved in the polygraph issue, which generated more work.
[26] These proceedings are supposed to proceed as informally and as expeditiously as the circumstances and considerations of fairness and natural justice permit (see paragraph 83(1)(a) of the IRPA). From February 2008 to June 2010, at the end of public hearings, more than thirty months have passed. It has been impossible for the Court to proceed more expeditiously. A substantial amount of work was generated by the numerous lawyers who have acted on behalf of their respective clients. Sufficient time had to be allowed for the Ministers to comply with Charkaoui #2 and the reviewing process had to take place, including the evaluation of the pertinence of the redactions. The analysis of the search of Mr. Harkat’s home and the polygraph issues also required time. The scheduling of public hearings for so many counsel involved was time-consuming as well and the process of public disclosure also created hurdles. These were lengthy proceedings considering the subject matter at play.
The submissions of the parties
a) The applicant on the exclusion of summaries of conversations as evidence
[27] The Applicant submits that the “wholesale destruction” of documents by CSIS under the former OPS-217 policy violated his rights under section 7 of the Charter. The Supreme Court in Charkaoui #2 indeed stated that this policy ran counter to CSIS’ duty of candour. However, the Applicant suggests that the past destruction of documents constitutes a “devastating assault” on his capacity to make a full legal argument.
[28] Because of the destruction of documents, it is argued that the Applicant, his public counsel and his special advocates, cannot adequately verify the assertions made by the Ministers. As he is deprived of the original notes and records relevant to the case, the Applicant argues that he has suffered an insurmountable prejudice to making full answer and defence.
[29] It is argued that CSIS’ actions with regard to the destruction of original documents cannot be excused on the basis of good faith. The Applicant submits that such negligence or willful blindness on CSIS’ part cannot be characterized as good faith. Furthermore, it is submitted that even the absence of bad faith cannot excuse a breach of the Applicant’s section 7 Charter rights.
b) The applicant on the stay of proceeding
[30] In the alternative, the Applicant submits that the cumulative effect of several alleged Charter breaches calls for a stay of proceedings. These alleged Charter violations are said to be a “systemic violation” of the Applicant’s section 7 rights and as such, constitute an overwhelming prejudice and an affront to the integrity of the administration of justice. The prejudices suffered by the Applicant are argued to be perpetuated by the continuation of the proceedings, thus making the Applicant’s case one of the “clearest of cases” as recognized by the relevant case law. Because of the gravity of such cumulative breaches, the Court must clearly censure such conduct. The several alleged breaches are detailed as follows:
a. Destruction of original documents by CSIS according to the prevailing OPS-217 policy
[31] As described above, it is submitted that the destruction of documents by CSIS is a breach of the Applicant’s section 7 rights, as he cannot mount a full and adequate defence. As such, the destruction of documents should be considered as one of the cumulative breaches calling for a stay of proceedings.
b. The impact of the destruction of documents on the special advocates’ duty
[32] Because of the destruction of original documents, the special advocates’ presence is not sufficient to ensure a fair hearing for the Applicant and they have not been able to assume their duties in the closed hearings.
c. The alleged breach of CSIS’ duty of candour
[33] It is submitted that CSIS’ collection and divulgation of information was skewed in favour of information prejudicial to the Applicant, with neutral or exculpatory information being excluded. The Applicant submits that, absent a complete verification of the information underlying the SIR, CSIS’ filtering of information is a breach of its duty of candour. Because original source documents and records are not provided, recordings and summaries of intelligence provided are subjected to a lower standard of scrutiny, contrary to the Applicant’s section 7 rights. It is argued that the Court cannot make meaningful inquiries into the reliability of conclusions drawn by CSIS.
d. Passage of time
[34] The Applicant argues that the lengthy duration of the proceedings has resulted in a breach of his section 7 rights. The right to be tried within a reasonable time is enshrined in the Charter in section 11(b), but section 7 of the Charter is also relevant, as delays affect the security of the person; an application of the principles of fundamental justice is called for. It is submitted that passage of time hinders the applicant’s ability to respond to the case made against him, in view of the frailty of human memory. The passage of time further compromises the Applicant’s ability to secure exculpatory evidence.
e. The search of the applicant’s home
[35] A search undertaken by CBSA was deemed to have been unlawful and conducted in an unreasonable manner, in violation of the Applicant’s rights (Harkat (Re), 2009 FC 659). The search compounds the prejudice suffered by the Applicant and should be considered in the abuse of process claims made by the Applicant.
f. The alleged violation of solicitor-client privilege
[36] As a result of the aforementioned search of the Applicant’s home, the Applicant argues that there was a seizure of documents protected under solicitor-client privilege. Furthermore, telephone conversations were recorded and retained, despite CSIS’ claim to a practice of dissociation. The seriousness of the breach of solicitor-client privilege has not been fully appreciated. It is therefore a Charter breach to be examined under an abuse of process theory.
g. The human sources and polygraph issues
[37] These issues are related to both CSIS’ duty of candour and the reliability of the information submitted by the Ministers in support of their claims. In effect, CSIS had been negligent in not disclosing that human sources had been proven unreliable by polygraph examination. This further adds to the Applicant’s claim to an abuse of process affecting his Charter rights.
[38] The applicant argues that the cumulative effect of all these elements is such that a stay of proceedings should be granted.
The respondent on the exclusion of summaries of conversations as evidence
[39] The Ministers submit that it is not appropriate to exclude evidence before the Court. The Ministers’ are of the opinion that no abusive conduct has been shown and that the Applicant’s section 7 rights to a fair hearing have not been prejudiced.
[40] The Applicant has effectively been given sufficient disclosure. In accordance with the weight of the case law, individuals are not entitled to the most favourable procedures, but rather a procedure that is fair with regard to the context and interests at stake. Because the special advocates have fulfilled their mandate and in the light of the evolution of disclosure requirements, it is argued that the Applicant has effectively been given the information required to meet the case made against him.
[41] The Ministers argue that exclusion of evidence is not warranted. There is no evidence of an absence of good faith on CSIS’ part with regard to their past policy as to the destruction of material. In this case, the destruction of documents was not deliberate and was not done in order to avoid disclosure. Furthermore, the destruction of the evidence occurred after sufficient steps had been taken, namely, the preparation of a summary. CSIS took reasonable steps in the circumstance to preserve evidence for disclosure, which satisfy the section 7 requirements in the context of security certificate proceedings. Furthermore, in view of the seriousness of the allegations and the need to protect national security, the Court should proceed without excluding evidence.
The respondents on the stay of proceeding
[42] The Ministers argue that a stay of proceedings must be granted in only the clearest of cases, which the Applicant’s case is not. A stay of proceedings is designed to stop the perpetration of a wrong that would persist if the prosecution of the case were to continue. Societal interests can and should be taken into consideration. Such an interest could call for the completion of the Applicant’s case as to the reasonableness of the security certificate. Furthermore, the Court has granted remedies in relation to several of the Applicant’s claims of section 7 violations; hence, there is nothing to suggest that the continuation of the proceeding would offend society’s sense of justice or that the integrity of the system would be put in jeopardy.
a. Destruction of original documents by CSIS according to the prevailing OPS-217 policy
[43] The Ministers argue that the destruction of documents by CSIS was not ruled by the Supreme Court in Charkaoui #2 to be one of the “clearest of cases” where a stay of proceedings is warranted. In accordance with the Supreme Court’s decision in Charkaoui #2, the designated judge is in a position to assess the impact of the destruction of notes, which the Ministers argue to be minimal. The previous arguments with regard to the exclusion of evidence remedy apply to the abuse of process theory as well. In sum, the Applicant has not shown that his ability to answer the case has been prejudiced to the point that the Court should rule that there has been an abuse of process.
b. The impact of the destruction of documents on the special advocates’ duty
[44] The Ministers argue that the confidential nature of certain information does not mean that the Applicant is unable to provide a full answer to the allegations summarized to him. The procedural safeguard of special advocates protects the confidentiality of information and ensures that the Applicant can make full answer and defence. The mere protection of confidential information by the Ministers does not amount to an abuse of process. Furthermore, nothing stops the Applicant from truthfully disclosing all of his previous activities to the special advocates, prior to their review of confidential information. His ability to do so is not impeded. Through his special advocates and his public counsel, the Applicant can effectively know and meet the case made against him.
c. The alleged breach of CSIS’ duty of candour
[45] Under subsections 77(1) and 77(2) of the IRPA, the Ministers are to file all information and evidence on which the certificate is based, as well as a summary of all other information so that the named person can reasonably be informed of the case made against him. It is normal that further information is to be provided as the proceedings evolve, as more information may become available. Consequently, since CSIS and the Ministers have complied with the disclosure requirements set out in Charkaoui #2, there has been no breach of the duty of candour in these proceedings.
d. Passage of time
[46] Passage of time in this case does not give rise to an abuse of process. Delay, without more, cannot warrant a stay of proceedings; it must be shown that a prejudice has resulted from the alleged unacceptable delay. The Applicant’s detention was ordered and previous procedures were conducted pursuant to the law in effect at the time. Even though the Applicant’s successfully challenged the previous statutory regime, that does not make the previous proceedings and delays an abuse of process. Furthermore, time taken up in legal challenges should not count against either party in assessing passage of time. Also, because the Applicant has just flatly denied the allegations, it is difficult to imagine that passage of time prejudices his ability to make a defence. Passage of time should thus not be considered in assessing the abuse of process motion.
e. The search of the Applicant’s home
[47] Shortly after the search, the Ministers advised the Court that all documents and material seized would be sealed pending a further order of the Court. Through the intervention of Prothonotary Tabib, a small number of documents were found to be privileged and were returned to the Applicant. Following the Court’s decision regarding the search, CBSA complied with the order. Hence, the Applicant has been granted a remedy and there is no evidence that the search resulted in a breach of the Applicant’s solicitor-client privilege.
f. The alleged violation of solicitor-client privilege
[48] The Ministers submit that a completely adequate remedy has been granted to the Applicant with regard to the breach of solicitor-client privilege. There is no ongoing concern calling for a stay of proceedings. No prejudice has resulted from interceptions of solicitor-client communications, as no reports were generated as a result thereof. The Court has already granted a remedy and no wrong will be perpetuated.
g. The human sources and polygraph issues
[49] As decided by the Court in Harkat (Re), 2009 FC 1050 and Harkat (Re), 2009 FC 553, there was no deliberate effort by CSIS to mislead the Court. Institutional shortcomings deprived the Court of relevant information, but were remedied by the exceptional disclosure of the sources files to the Court and the special advocates. Hence, a remedy has been provided to the Applicant with regard to human sources and polygraph issues.
The issues
[50] The present motion raises questions with regard to the conduct of the Ministers, CSIS and, in some way, the Court in relation to the security certificate proceedings. The questions can be broken down as follows:
1) Does the destruction of originals of conversations which were summarized in accordance with a CSIS policy call for the exclusion of the summaries of evidence based on the doctrine of abuse of process and subsection 24(1) of the Charter?
2) Do any of the following events or situations, cumulatively, amount to an abuse of process which would call for a stay of proceeding:
a) Has the destruction of originals of conversations (which were summarized) by CSIS in accordance with the CSIS policy OPS-217 impaired Mr. Harkat’s right to disclosure?
b) The impact of the destruction of originals of conversations (which were summarized) on the special advocates’ duties?
c) The alleged breach of CSIS’s duty of candour;
d) The passage of time;
e) The search of Mr. Harkat’s home;
f) The alleged violation of the solicitor-client privilege;
g) The human source and polygraph issues.
The applicable law
On the exclusion of evidence
[51] The exclusion of the summaries of conversations sought is based on an abuse of process doctrine. Mr. Harkat invokes subsection 24(1) of the Charter. To grant that remedy, a court must be convinced that the remedy sought is just and appropriate (R. v. O’Connor, [1995] 4 S.C.R. 411, para. 68 (“O’Connor”). The applicable criterion in determining the exclusion based on abuse of process is 1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and 2) no other remedy is reasonably capable of removing that prejudice (O’Connor, at para. 75).
[52] The approach developed in the criminal law context with regard to the exclusion of evidence is informative in that it identifies the relevant criteria and factors. In R. v. Grant, 2009 SCC 32 (“Grant”), the Supreme Court indicated that the remedy of exclusion of evidence was to be used while considering the purpose of subsection 24(2) of the Charter which is to maintain the good repute of the administration of justice. In Grant, at paragraph 85, three criteria were identified for considering the exclusion of evidence when considering a Charter violation:
- Society’s interest in the adjudication of the case on its merits;
- The impact of the breach on the Charter protected interests of the accused;
- The seriousness of the Charter infringing state conduct.
These three criteria “encapsulate consideration of “all the circumstances” of the case” (Grant, at para. 85) and enable a judge to determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.
[53] Mr. Harkat seeks the exclusion of the summaries of conversations based on subsection 24(1) of the Charter and an abuse of process doctrine. While the exclusion of evidence typically flows from subsection 24(2), it can also be granted under subsection 24(1), but only in cases where “a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system” (R. v. Bjelland, 2009 SCC 38, at para 19 (“Bjelland”)). Then, the accused must show one of two elements: 1) that the prejudice suffered affects the fairness of the trial, where fairness is to be considered both from the accused’s perspective and that of society; or 2) the admission of the evidence would compromise the integrity of the justice system (see Bjelland, at paras. 19, 22 and 23). The Court has to analyze the exclusion remedy through the prism of subsection 24(1) of the Charter, as Mr. Harkat’s submissions indicate. However, as both parties have readily done in their written submissions, the Court will also draw principles from case law arising under subsection 24(2) in order to fully assess Mr. Harkat’s claims. This approach is also taken in the context of the stay of proceedings. It is useful here to remind the content of section 24 of the Charter:
Enforcement of guaranteed rights and freedoms
Recours en cas d'atteinte aux droits et libertés
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.
Exclusion of evidence bringing administration of justice into disrepute
Irrecevabilité d'éléments de preuve qui risqueraient de déconsidérer l'administration de la justice
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
(2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s'il est établi, eu égard aux circonstances, que leur utilisation est susceptible de déconsidérer l'administration de la justice.
On the stay of proceeding
[54] The Supreme Court has very clearly set out the applicable test for granting a stay of proceedings and how the Court faced with a motion for a stay under subsection 24 (1) must consider its decision. In O’Connor, at paragraph 68 (O’Connor), the Supreme Court stated that:
It is important to remember, however, that even if a violation of s. 7 is proved on a balance of probabilities, the court must still determine what remedy is just and appropriate under s. 24(1). The power granted in s. 24(1) is in terms discretionary, and it is by no means automatic that a stay of proceedings should be granted for a violation of s. 7. On the contrary, I would think that the remedy of a judicial stay of proceedings would be appropriate under s. 24(1) only in the clearest of cases. In this way, the threshold for obtaining a stay of proceedings remains, under the Charter as under the common law doctrine of abuse of process, the "clearest of cases".
[55] Thus, when a breach of the Charter has been found, a stay of proceedings is not automatic. The applicable standard is that of the “clearest of cases” where a stay is warranted and as such, a stay of proceedings is a remedy of last resort (Canada v. Tobiass, [1997] 3 S.C.R. 391 (“Tobiass”)). In any other case, the Court may fashion a remedy pursuant to subsection 24(1) in order to address the Charter breach. As stated earlier, the Supreme Court has accepted that, when an abuse of process is alleged, it must be shown that (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice (O’Connor, at para. 75). On many occasions, the underlying justification has been stated as “compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a court's process through oppressive or vexatious proceedings, and only in clearest of cases should a stay be granted” (see, for example, R. v. Potvin, [1993] 2 S.C.R. 880; R. v. Scott, [1990] 3 S.C.R. 979; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44 (“Blencoe”)). A stay of proceedings is granted when the proceedings are tainted to such a degree that allowing the case to continue would tarnish the integrity of the court (R. v. Conway, [1989] 1 S.C.R. 1659). This test for a stay of proceedings is der