Date: 20030307
Docket: DES-4-02
Neutral citation: 2003 FCT 285
Ottawa, Ontario, Friday, the 7th day of March 2003
PRESENT: The Honourable Madam Justice Dawson
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 AND ORDER
[1] This proceeding was instituted by the Solicitor General of Canada and the Minister of Citizenship and Immigration ("Ministers") pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("Act") for determination as to whether the certificate signed by them, stating that Mohamed Harkat ("respondent") is inadmissible to Canada under paragraphs 34(1)(c) and 34(1)(f) of the Act, is reasonable. In the context of this proceeding, Mr. Harkat has made a motion for an order directing the Department of Justice, the Canadian Security Intelligence Service ("CSIS"), and the Department of Citizenship and Immigration to disclose all relevant information required by him in order to make full answer and defence to this proceeding. The particulars of the requested additional disclosure are:
a. A list of all names of individuals and their notes who had direct or indirect dealings with Harkat who work directly for or on behalf of CSIS or any other intelligence agency;
b. The complete immigration file for Harkat;
c. The evidence as it relates to Mr. Abu Zubaida, including witness statements and interviews notes;
d. The evidence as it relates to Harkat's alleged presence in Afghanistan including any witness statements, photographs, wiretaps and other electronic or postal interceptions, and interview notes;
e. The evidence as it relates to Harkat's alleged association with those who support international extremist networks, and his assistance to Islamic extremists, including witness statements, wiretaps and interview notes.
[2] In seeking such disclosure, Mr. Harkat argues that the information he seeks is relevant as being evidence which will assist him in refuting the allegations against him. The nub of his submission is that the information provided to date constitutes disclosure of the general allegations against him, without disclosure of the evidence that supports those allegations. It is argued on Mr. Harkat's behalf that without disclosure of the evidence that supports the allegations, Mr. Harkat is prevented from making full answer and defence. Thus, for example, it is said that if the allegations which led to the issuance of the certificate are based upon witness statements, Mr. Harkat must be given a copy of those statements in order to test the veracity or credibility of the witnesses.
[3] Mr. Harkat relies upon the principles articulated by the Supreme Court of Canada in R. v. Stinchcombe, [1991] 3 S.C.R. 326. While acknowledging that Stinchcombe, a criminal case, does not apply directly to the present context, Mr. Harkat notes that the relevant principles have been applied in the context of cases under the former Immigration Act, R.S.C. 1985, c. I-2 ("former Act"). Particular reliance is placed upon the decision of the Federal Court of Appeal in Bhagwandass v. Canada (Minister of Citizenship and Immigration), [2001] 3 F.C. 3 (C.A.), and the decision of this Court in Nrecaj v. Canada (Minister of Employment and Immigration), [1993] 3 F.C. 630 (T.D.). No case was cited, however, where the principles set out in Stinchcombe were applied in the context of the determination of the reasonableness of certificates issued by the Ministers.
[4] Proper consideration of Mr. Harkat's submissions begins with the applicable legislative provisions. They are found in subsection 77(1) and section 78 of the Act which provide as follows:
| 77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court-Trial Division, which shall make a determination under section 80.
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78. The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
(e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.
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77. (1) Le ministre et le solliciteur général du Canada déposent à la Section de première instance de la Cour fédérale le certificat attestant qu'un résident permanent ou qu'un étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée pour qu'il en soit disposé au titre de l'article 80.
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78. Les règles suivantes s'appliquent à l'affaire_: a) le juge entend l'affaire; b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et don't la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
c) il procède, dans la mesure où les circonstances et les considérations d'équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive; d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve;
e) à chaque demande d'un ministre, il examine, en l'absence du résident permanent ou de l'étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l'affaire soit si le juge décide qu'ils ne sont pas pertinents ou, l'étant, devraient faire partie du résumé, soit en cas de retrait de la demande;
g) si le juge décide qu'ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d'autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l'affaire;
h) le juge fournit au résident permanent ou à l'étranger, afin de lui permettre d'être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;
i) il donne au résident permanent ou à l'étranger la possibilité d'être entendu sur l'interdiction de territoire le visant; j) il peut recevoir et admettre en preuve tout élément qu'il estime utile - même inadmissible en justice - et peut fonder sa décision sur celui-ci.
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[5] The disclosure provided to date to Mr. Harkat is that provided pursuant to subsection 78(h) of the Act.
[6] It can be seen from the legislation set out above that in enacting section 78 of the Act, Parliament created a mechanism to govern the determination of the reasonableness of certificates issued by the Ministers. Salient features are: the obligation of a judge designated to deal with such a determination to ensure the confidentiality of the "information" on which the certificate is based and any other evidence provided to the judge if, in the opinion of the judge, its disclosure would be "injurious to national security or to the safety of any person"; and the obligation of the judge to provide the subject of the certificate with a summary of the "information" or evidence provided that enables the subject to be "reasonably informed of the circumstances giving rise to the certificate" but not including "anything that in the opinion of the judge would be injurious to national security, or to the safety of any person if disclosed". The word "information" as used in section 78 of the Act is defined in section 76 of the Act to mean "security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them."
[7] It follows that in the absence of judicial determination that disclosure of information or evidence put before the judge would be injurious to national security or to the safety of any person, the information or evidence put before the judge would be disclosed to the subject of the certificate in the summary which the judge is required to provide to the subject. The right of the subject to be reasonably informed of the circumstances giving rise to the certificate is only subject to restriction where disclosure would, in the opinion of the judge, be injurious to national security or to the safety of any person.
[8] In Ahani v. Canada, [1995] 3 F.C. 669 (T.D.) Madam Justice McGillis reviewed the procedure to be followed under section 40.1 of the former Act. This section was the predecessor to the present relevant legislative provisions. With respect to the discretion conferred under section 40.1 with respect to the provision of a summary of information to the subject of a certificate, Madam Justice McGillis wrote as follows at paragraph 19:
The disclosure powers accorded to the designated judge are broad and require the cautious exercise of judicial discretion to ensure that the competing interests are properly balanced. By way of example from a practical perspective, a designated judge would be required to provide disclosure of human source information, if it were necessary to enable the named person to be "reasonably informed", save and except where the very nature of the information would reveal the identity of the source and endanger his safety or compromise national security. In many instances, information may be divulged without fear of identifying the source, in that several persons may have had access to the information provided by him to the authorities. In this type of situation, counsel for the ministers will have a difficult burden to meet in attempting to convince the designated judge that the information should not be disclosed.
[9] This decision was upheld on appeal, (1996) 201 N.R. 233 (F.C.A.). The Court of Appeal expressly approved Madam Justice McGillis' summary of the procedure to be followed under section 40.1. An application for leave to appeal to the Supreme Court was denied, [1996] S.C.C.A. No. 496.
[10] In view of the substantial similarity between what was section 40.1 of the former Act and section 78 of the current Act, I find Madam Justice McGillis' description of the exercise to be followed by the designated judge with respect to the disclosure of information and evidence put before the judge by the Ministers to clearly and accurately articulate the principles to be applied.
[11] It follows that criminal law principles, as articulated in Stinchcombe, and as relied upon by Mr. Harkat, are not as a matter of law applicable. This, too, was a conclusion reached by Madam Justice McGillis in Ahani (at paragraph 42).
[12] In Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 the Supreme Court of Canada confirmed the considerable interest of the state in conducting national security investigations, quoting at page 745 with approval Lord Denning M.R. in R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All. E.R. 452 (C.A.) as follows:
The information supplied to the Home Secretary by the Security Service is, and must be, highly confidential. The public interest in the security of the realm is so great that the sources of information must not be disclosed, nor should the nature of the information itself be disclosed, if there is any risk that it would lead to the sources being discovered. The reason is because, in this very secretive field, our enemies might try to eliminate the source of information.
[13] A more detailed statement as to the nature of information the disclosure of which would be injurious to national security was provided in Henrie v. Canada (Security Intelligence Review Committee) (1988), 53 D.L.R. (4th) 568, aff'd (1992) 88 D.L.R. (4th) 575. There, Mr. Justice Addy of this Court wrote at pages 578-579:
When considering the issue of the relative merits of the public interest in non-disclosure as opposed to the public interest in disclosure, it is evident that the considerations and circumstances to be taken into account which might militate against the proper control or suppression of threats to national security are considerably more numerous and much more complex than the considerations which involve a national interest other than those mentioned in s. 36.2 of the Canada Evidence Act. In criminal matters, the proper functioning of the investigative efficiency of the administration of justice only requires that, wherever the situation demands it, the identity of certain human sources of information remain concealed. By contrast, 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 cypher 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. [underlining added]
[14] This continues to properly express the nature of information which must be protected. To this description may be added information received in confidence from the government or an institution of a foreign state.
[15] Turning to the application of these principles to the present case, having considered the articulate submissions of counsel for Mr. Harkat and having reviewed the information provided by the Ministers on which the certificate is based, I am of the opinion that any additional disclosure of information would be injurious to national security, or to the safety of any person. The motion for further disclosure must therefore be dismissed.
[16] I am further satisfied that the summary of information previously provided to Mr. Harkat enables him to be reasonably informed of the circumstances giving rise to the certificate, as required by subsection 78(h) of the Act.
ORDER
[17] THEREFORE, THIS COURT ORDERS THAT:
The motion for disclosure is dismissed.
"Eleanor R. Dawson"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: DES-4-02
STYLE OF CAUSE: 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.
PLACE OF HEARING: Gatineau, Quebec
DATE OF HEARING: March 4, 2003
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MADAM JUSTICE DAWSON
DATED: March 7, 2003
APPEARANCES:
James Mathieson Counsel for the Minister of Citizenship and Immigration and
Michael Dale the Solicitor General of Canada
Bruce Engel Counsel for Mohamed Harkat
Doug Baum
Tamara Bloom
SOLICITORS OF RECORD:
Deputy Attorney General of Canada
Bruce Engel Counsel for Mohamed Harkat
Barrister & Solicitor
Ottawa, Ontario