Ottawa, Ontario, March 25, 2009
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
IN THE MATTER OF a certificate signed pursuant to section 77(1) of the Immigration and Refugee Protection Act (IRPA);
AND IN THE MATTER OF the referral of a certificate to the Federal Court pursuant to section 77(1) of the IRPA;
AND IN THE MATTER OF Mohamed Zeki MAHJOUB
REASONS FOR ORDER AND ORDER
[1] On November 20, 2008, the Special Advocates (SAs) forwarded to the Court a request for disclosure to counsel for Mr. Mahjoub of the substance, month, and year of any conversations in which Mr. Mahjoub was a participant, the substance, month, and year of any reports of surveillance of Mr. Mahjoub in Canada that were relied upon by the Ministers in the confidential Security Intelligence Report (SIR). Counsel for the Ministers consented to this request and they have filed the results of the disclosure that were reviewed by the Special Advocates. Some summaries submitted do not raise concerns of a private nature, and they will be forwarded to Mr. Mahjoub and his Counsel, and comprise part of the public record. Other summaries may raise privacy concerns which require a different procedure to be followed.
[2] While the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) does not provide for a procedure allowing for disclosure only to the interested person and counsel (Harkat (Re), 2009 FC 167), the Court is cognizant that counsel for Mr. Mahjoub may wish to make argument regarding the public filing of some of the summaries of conversations, on the basis that they may engage privacy concerns that could be protected by human rights legislation and the Canadian Charter of Rights and Freedoms.
[3] As the Court has determined that for the purposes of these proceedings, there is no national security reason to withhold the summaries as written from Mr. Mahjoub, his only option is to seek a confidentiality order pursuant to Rules 151 and 152 of the Federal Courts Rules which provide:
[4] Given Mr. Mahjoub’s current lack of knowledge about the contents of the conversations, it is reasonable to give him an opportunity to review them before he decides whether a confidentiality order should be sought. To do otherwise would remove that recourse from him. The SAs do not have the jurisdiction to act in public on behalf of the named person, nor are they permitted to communicate with him while acting as special advocate unless permission is granted by the designated judge. They are not counsel of record in this proceeding. They do not, therefore, have standing to seek a confidentiality order which would prevent public access to Court records; only counsel for Mr. Mahjoub may seek such an order.
[5] To ensure the protection of Mr. Mahjoub’s rights, the Court has determined that it would be appropriate to delay placing some of the summaries on the public file until Mr. Mahjoub has had an opportunity to review them and make a decision as to how he wishes to proceed.
[6] If Mr. Mahjoub, on the advice of his counsel, decides to seek a confidentiality order limiting the access to these summaries, the Court will decide the issue on the grounds raised by counsel.
[7] For the interim period, these summaries shall be communicated to Mr. Mahjoub and his counsel and will not be made public. A period of ten days is given to permit Mr. Mahjoub and his counsel an opportunity to determine whether or not to seek a confidentiality order. Upon expiry of that delay, in the absence of a motion, the summaries will be made public. If a motion in accordance with Rule 151 is served and filed within the ten day period, these summaries shall be kept confidential until this Court decides the issue.
ORDER
THIS COURT ORDERS THAT:
- The summaries of conversations at tabs 1-6 and 10 and the summaries of surveillance reports are hereby filed as part of the public record;
- The summaries of the conversations at tabs 7, 8 and 9 will be kept confidential on an interim basis;
- The summaries of the conversations at tabs 7, 8, and 9 will be disclosed only to Mr. Mahjoub and his counsel in a sealed envelope;
- Mr. Mahjoub and his counsel have ten days to serve and file a motion asking this Court to continue treating the summaries of conversations confidentially;
- In absence of any such motion, the summaries of conversations will become part of the public record.
“Simon Noël”
Judge