[2012] 3 F.C.R. 635 A-76-11 2012 FCA 122 Mohamed Harkat ( Appellant ) v . The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness ( Respondents ) Indexed as: Harkat (Re) Federal Court of Appeal, Blais C.J., Létourneau and Layden-Stevenson JJ.A.—Ottawa, February 21, 22 and 23 and April 25, 2012.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Security Certificate — Appeal from four Federal Court decisions involving, in particular, applicability of police informer privilege to Canadian Security Intelligence Service (CSIS) human sources, reasonableness of security certificate issued against appellant, constitutionality of Immigration and Refugee Protection Act — Appellant, granted refugee status, subsequently subject of security certificate — CSIS destroying, pursuant to policy, original evidence used to support allegations against appellant — Main issues whether: Act violating appellant’s right to life, liberty and security of the person under Canadian Charter of Rights and Freedoms, s. 7 ; CSIS’ human sources benefiting from police informer class-based privilege; destruction of evidence violating appellant’s Charter, s. 7 right to know, meet case against him; security certificate issued against appellant reasonable — Certified questions regarding whether security certificate regime provisions in Act violating Charter also addressed herein — Security certificate system in place not unconstitutional — Judge vested with necessary powers at common law, under Charter, Act to satisfy Charter, s. 7 fairness requirement — Judicial creation of class privilege would run afoul of Parliament’s intention expressed in Act, ss. 77(2) , 83(1) (c), (d), (e), which preclude communication to named person of information that would endanger safety of any person if disclosed — Such information would include human sources of information — If class informer privilege for CSIS human sources were to be judicially created, judge’s task expressly conferred by Act to determine appropriateness of disclosing source information to named person would be abolished — Therefore, CSIS human sources not benefiting from police informer class privilege — CSIS’ destruction of original evidence violating appellant’s Charter, s. 7 right to know, meet case thereagainst — Exclusion of CSIS’ file summaries of evidence constituting appropriate remedy to safeguard fairness of security certificate process in present case — However, exclusion of summaries calling for reassessment of remaining evidence, re-evaluation of reasonableness of certificate by Federal Court — Appeal allowed with respect to privilege, destruction of evidence, reasonableness issues, dismissed with respect to constitutionality issue.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Security certificate issued against appellant — Pursuant to policy in place, Canadian Security Intelligence Service (CSIS) destroying original evidence used as basis to issue security certificate against appellant — Whether Immigration and Refugee Protection Act violating appellant’s right to life, liberty, security of person under Charter, s. 7 ; whether appellant’s Charter, s. 7 right to know, meet case thereagainst violated by destruction of evidence — French version of Act , ss. 77(2) , 83(1) (

e) answering how named person in security certificate proceeding reasonably informed of case made by Minister of Citizenship and Immigration — French words “suffisamment informé” used therein more precise than English version, more favourable to named person, more compliant with fairness requirement of Charter, s. 7 — While both texts having equal force, French version to be preferred — Therefore, Act, ss. 77(2), 83(1)(

e) according with principles of fundamental justice — Security certificate system in place not unconstitutional, revised Act providing judge with assistance of special advocates acting on behalf of appellant, with necessary tools to satisfy fairness requirement of Charter, s. 7 — Therefore, Federal Court not erring when concluding current security certificate regime according with principles of fundamental justice because allowing named person to sufficiently know, meet case thereagainst — CSIS’ destruction of original evidence violating appellant’s Charter, s. 7 right to know, meet case against him — Federal Court erring in finding destruction of original evidence not prejudicing appellant — Consequently, appellant entitled to just, appropriate remedy.

This was an appeal from four Federal Court decisions involving, in particular, the constitutionality of the revised security certificate regime under the Immigration and Refugee Protection Act , the applicability of the police informer privilege to Canadian Security Intelligence Service (CSIS) human sources and the reasonableness of the security certificate that was issued against the appellant. In another file regarding the appellant, the Federal Court had certified two questions of general importance. The certified questions were whether sections 77(2) , 78 , 83(1) (

c) to ( e ), 83(1)( h ), 83(1)( i ), 85.4(2) and 85.5 (

b) of the Act breach

section 7 of the Canadian Charter of Rights and Freedoms by denying the person concerned the right to a fair hearing and whether human sources benefit from a class-based privilege. The appellant claimed refugee status after arriving in Canada. This status was granted to him but he never obtained permanent resident status. Subsequently, a security certificate was issued against the appellant, alleging that he was inadmissible to Canada on security grounds. The original records of interviews with the appellant and conversations about the appellant or to which the appellant was privy were destroyed by CSIS pursuant to a policy in place. Nonetheless, CSIS made a

summary of the contents of these interviews and conversations. The Federal Court evaluated the reasonableness of the appellant’s security certificate and found that there were reasonable grounds to believe that the appellant had engaged in terrorism. The Federal Court of Appeal dismissed the appellant’s appeal from this decision. The appellant, along with other inadmissible individuals, challenged the constitutionality of the security certificate regime before the Supreme Court. It was declared that the Act ’s procedure violated

section 7 of the Charter by limiting the named person’s right to know and answer the case against him. In response to the Supreme Court’s decision, 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 ) was enacted, significantly modifying the security certificate regime. A subsequent Supreme Court decision involving procedural issues and CSIS entitled the appellant to additional disclosure from CSIS.

Thereafter, the Federal Court ordered the production of all information and Intelligence relating to the appellant and upheld the security certificate’s reasonableness. It also confirmed, inter alia , the security certificate

regime’s constitutionality and denied a request by the appellant’s special advocates for access to covert human intelligence sources on the basis that they were protected by the police informer common law privilege. The main issues were: whether the Act violates the appellant’s right to life, liberty and security of the person under

section 7 of the Charter ; whether CSIS’ human sources benefit from the police informer class-based privilege; whether the appellant’s

section 7 right to know and meet the case against him was violated by the destruction of the original evidence; whether the Federal Court erred in concluding that the security certificate was reasonable; and how to answer the two certified questions. Held , the appeal should be allowed with respect to the privilege, destruction of evidence and reasonableness issues and dismissed with respect to the constitutionality issue. Various elements of the revised Act were examined to determine the constitutionality of the system in place.

The answer as to how the named person is reasonably informed of the case made by the Minister of Citizenship and Immigration in the security certificate proceeding is found in the French version of subsection 77(2) and paragraph 83(1) (

e) of the Act. The French version of the texts uses the words “suffisamment informé” (sufficiently informed) and is thus more precise than the English version, more favourable to the named person and more compliant with the fairness requirement of

section 7 of the Charter . Both texts have equal force and the French version is to be preferred. The Federal Court applied the proper test dictated by

section 7 of the Charter. Subsection 77(2) and paragraph 83(1)(

e) of the Act accord with the principles of fundamental justice. The limits on disclosure and the right to cross-examination resulting from the third-party rule, which refers to information received from a third party under the seal of confidentiality, are in accordance with the principles of fundamental justice and do not render unconstitutional the current system as long as adequate substitutes are in place to provide a fair hearing. While the special advocates’ right to communicate with the appellant has restrictions, subsection 85.4(2) and

section 85.5 of the Act have built in the flexibility necessary to ensure the fairness of the process and the protection of national security and the safety of any person. The judge is given the authority to lift the ban on communication and to impose conditions consistent with those objectives. The security certificate system in place is therefore not unconstitutional. The revised Act provides the judge with the necessary tools to ensure a fair process. With the assistance of the special advocates acting on behalf of the appellant, the judge is vested with the necessary powers at common law and under the Charter and the Act to satisfy the fairness requirement of

section 7 of the Charter. Therefore, the Federal Court did not err when it concluded that the current security certificate regime is in accordance with the principles of fundamental justice because it allows a named person to sufficiently know and meet the case against him. The class privilege sought by the respondents would create a new and absolute privilege in civil and administrative matters since the innocence at stake exception, whereby informer privilege can be set aside if it jeopardizes an accused’s right to raise a reasonable doubt regarding the case against them, only applies in criminal proceedings.

The judicial creation of the class privilege would run afoul of Parliament’s intention expressed in subsection 77(2) and paragraphs 83(1) ( c ), (

d) and (

e) of the Act , which preclude communication to a named person of information that would endanger the safety of any person if disclosed. This would include human sources of information. If a class informer privilege for CSIS human sources were to be judicially created, the task expressly conferred by the Act upon the judge to determine with respect to every piece of source information the appropriateness of disclosing it or not to the named person would be abolished. The Court would be amending the Act thereby usurping Parliament’s function.

Therefore, CSIS human sources do not benefit from the police informer class privilege or a class privilege analogous to the police informer class privilege. The appellant’s

section 7 right to know and meet the case against him was violated by CSIS’ destruction of the original evidence upon which CSIS’ file summaries were based and the appellant was entitled to a just and appropriate remedy. Even though CSIS was acting in good faith in accordance with the policy in place when it destroyed the originals, the breach of its duty to retain the information and disclose it under the Act impacted on the appellant’s right to know the case and his ability to meet it.

Therefore, the Federal Court erred in finding that the destruction of the original conversations did not cause a prejudice to the appellant. The appropriate remedy was the exclusion of the summaries except the conversations to which the appellant was privy. Exclusion was necessary to safeguard the fairness of the certificate process in this case as well as the integrity of the justice system.

Moreover, the exclusion of the confidential summaries of the original conversations called for a reassessment of the remaining evidence on the record and a re-evaluation of the reasonableness of the certificate by the Federal Court. Finally, the two certified questions were answered in the negative. STATUTES AND REGULATIONS CITED An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act , S.C. 2008, c. 3. Canada Evidence Act , R.S.C., 1985, c.

C-5, ss. 37(1) (as am. by S.C. 2001, c. 41 , s. 43), 38 (as am. idem , ss. 43, 141), 38.06 (as enacted idem , s. 43). Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2, 7 , 18, 24(1). Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23, ss. 12, 18 , 19 (as am. by S.C. 1995, c. 5, s. 25(1)( d ); 2003, c. 22, s. 224( z .12)(E)), 31, 39. Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 33, 34 , 77 (as am. by S.C. 2008, c. 3, s. 4 ), 78 (as am. idem ), 82.3 (as enacted idem ), 83 (as am. idem ), 85.1 (as enacted idem ), 85.2 (as enacted idem ), 85.4 (as enacted idem ), 85.5 (as enacted idem ). CASES CITED

applied: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, 276 D.L.R. (4th) 594, 54 Admin. L.R. (4th) 1;Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326, 294 D.L.R. (4th) 478, 58 C.R. (6th) 45;Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594, 333 D.L.R. (4th) 506, 271 C.C.C. (3d) 63; R. v. Ahmad,2011 SCC 6, [2011] 1 S.C.R. 110, 329 D.L.R. (4th) 1, 264 C.C.C. (3d) 345; R. v.

Harrer, (SCC), [1995] 3 S.C.R. 562,(1995), 128 D.L.R. (4th) 98, 101 C.C.C. (3d) 193. considered: Harkat (Re), 2011 FC 75, 382 F.T.R. 274; Pushpanathan v. Canada (Minister of Citizenship and Immigration), (SCC),[1998] 1 S.C.R. 982, (1998), 160 D.L.R. (4th) 193, 11 Admin. L.R. (3d) 1, amended reasons, (SCC), [1998] 1 S.C.R.1222, (1998), 11 Admin. L.R. (3d) 130; Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2S.C.R. 817, (1999), 174 D.L.R. (4th) 193, 14 Admin.

L.R. (3d) 173; Charkaoui (Re), 2004 FCA 421, [2005] 2 F.C.R. 299, 247 D.L.R.(4th) 405, 126 C.R.R. (2d) 298; Harkat (Re), 2005 FC 393, 261 F.T.R. 52, 45 Imm. L.R. (3d) 65; Harkat (Re), 2005 FCA 285, 340 N.R.286; Harkat (Re), 2009 FC 659, [2010] 3 F.C.R. 169, 197 C.R.R. (2d) 286, 345 F.T.R. 179; Harkat (Re), 2009 FC 1050, [2010] 4 F.C.R.149, 312 D.L.R. (4th) 464, 198 C.R.R. (2d) 275; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1S.C.R. 3, 208 D.L.R. (4th) 1, 37 Admin. L.R. (3d) 159; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R. 163, 355 F.T.R. 222, 86 Imm. L.R.(3d) 212; R. v.

Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, 309 D.L.R. (4th) 257, [2009] 10 W.W.R. 387; Singh et al. v. Minister ofEmployment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422, 12 Admin. L.R. 137; SolicitorGeneral of Canada et al. v. Royal Commission of Inquiry (Health Records in Ontario), (SCC), [1981] 2 S.C.R. 494,(1981), (ON SC), 128 D.L.R. (3d) 93, 62 C.C.C. (2d) 193; R. v. Secretary of State for the Home Department, Ex parteHosenball, [1977] 3 All E.R. 452 (C.A.); R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477, 318 D.L.R. (4th) 1, 254 C.C.C. (3d)469; R. v.

Carosella, (SCC), [1997] 1 S.C.R. 80, (1997), 142 D.L.R. (4th) 595, 112 C.C.C. (3d) 289. referred to: Canadian Council for Refugees v. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136, 74 Admin. L.R. (4th) 79, 73 Imm. L.R. (3d) 159; Xie v.Canada (Minister of Citizenship and Immigration), 2004 FCA 250, [2005] 1 F.C.R. 304, 245 D.L.R. (4th) 385, 37 Imm. L.R. (3d) 163;Richter v. Canada (Minister of Citizenship and Immigration), 2009 FCA 73; Ruby v. Canada (Solicitor General), (FCA), [2000] 3 F.C. 589, (2000), 187 D.L.R. (4th) 675, 6 C.P.R. (4th) 289 (C.A.), revd in

part 2002 SCC 75, [2002] 4 S.C.R. 3, 219D.L.R. (4th) 385, 49 Admin. L.R. (3d) 1; Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R.487, 29 Admin. L.R. (4th) 21, 129 C.R.R. (2d) 18; Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274, 93Imm. L.R. (3d) 28, 409 N.R. 196; Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992] 1S.C.R. 711, (1992), 90 D.L.R. (4th) 289, 2 Admin. L.R. (2d) 125; R. v. La, (SCC), [1997] 2 S.C.R. 680, (1997), 200A.R. 81, 148 D.L.R. (4th) 608; Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, (2002), 211 D.L.R. (4th) 577, [2002] 7W.W.R. 1; Almrei (Re), 2009 FC 314, 342 F.T.R. 1; Canada (Privacy Commissioner) v. Blood Tribe Department of Health, 2008 SCC44, [2008] 2 S.C.R. 574, 294 D.L.R. (4th) 385, 74 Admin. L.R. (4th) 38; Charkaoui (Re), 2009 FC 476, [2010] 3 F.C.R. 102, 368 F.T.R.156, 88 Imm. L.R. (3d) 195; R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, 235 D.L.R. (4th) 244, 180 C.C.C. (3d) 476; Secretary of Statefor the Home Department v. AF & Anor, [2009] UKHL 28; R. v. Ahmad, (Ont. Sup. Ct.); Canada (Justice) v.

Khadr,2008 SCC 28, [2008] 2 S.C.R. 125, 293 D.L.R. (4th) 629, 232 C.C.C. (3d) 101; Canada (Attorney General) v. PHS Community ServicesSociety, 2011 SCC 44, [2011] 3 S.C.R. 134, 336 D.L.R. (4th) 385, [2011] 12 W.W.R. 43; Canada (Prime Minister) v. Khadr, 2010 SCC3, [2010] 1 S.C.R. 44, 315 D.L.R. (4th) 1, 251 C.C.C. (3d) 435; Somodi v. Canada (Minister of Citizenship and Immigration), 2009 FCA268, 393 N.R. 395; Bekker v. Canada, 2004 FCA 186, [2004] 3 C.T.C. 183, 2004 DTC 6404, 323 N.R. 195; Suresh v. Canada (Ministerof Citizenship and Immigration), (FCA), [2000] 2 F.C. 592, (2000), 183 D.L.R. (4th) 629, 18 Admin.

L.R. (3d) 159(C.A.); Ikhlef (Re), 2002 FCT 263, 223 F.T.R. 233; Toronto Coalition to Stop the War v. Canada (Public Safety and EmergencyPreparedness), 2010 FC 957, [2012] 1 F.C.R. 413, 219 C.R.R. (2d) 226, 374 F.T.R. 177; Sittampalam v. Canada (Minister ofCitizenship and Immigration), 2006 FCA 326, [2007] 3 F.C.R. 198, 272 D.L.R. (4th) 1, 56 Imm. L.R. (3d) 161.

APPEAL from four Federal Court decisions (2009 FC 204, [2009] 4 F.C.R. 370, 306 D.L.R. (4th) 269, 339 F.T.R. 65; 2010 FC 1241,[2012] 3 F.C.R. 251, 380 F.T.R. 61; 2010 FC 1242, [2012] 3 F.C.R. 432, 224 C.R.R. (2d) 93, 380 F.T.R. 163; 2010 FC 1243, 224 C.R.R.(2d) 167, 95 Imm.

L.R. (3d) 1, 380 F.T.R. 255) involving, in particular, the constitutionality of the revised security certificate regimeunder the Immigration and Refugee Protection Act, the applicability of the police informer privilege to Canadian Security IntelligenceService human sources and the reasonableness of the security certificate that was issued against the appellant. Appeal dismissed withrespect to the constitutionality decision and allowed with respect to all other decisions. APPEARANCES Matthew Webber, Norman Boxall, Megan Thomas and Leonardo Russomanno for appellant.

David Tyndale, Bernard Assan and André Séguin for respondents. Paul D. Copeland and Paul J. J. Cavalluzzo as special advocates. SOLICITORS OF RECORD Webber Schroeder Goldstein Abergel, Ottawa, for appellant. Deputy Attorney General of Canada for respondents. Paul D. Copeland and Paul J. J. Cavalluzzo as special advocates. The following are the reasons for judgment rendered in English by

[ 1 ] Létourneau J.A.: For ease of consultation and convenience of the reader, I insert the following table of contents. Table of Contents Paragraph Issues on Appeal 2 Facts and Procedural History Giving Rise to the Appeal 11

Summary of the Judge’s Decisions 24 A. The Privilege Decision 25 B. The Reasonableness Decision 29 C. The Constitutionality Decision 38 D. The Abuse of Process Decision 48 Issues 54 The Standard of Review 55 Some Key Elements Relevant to the Constitutionality of the Current Scheme Under the Act 56 Analysis of the Judge’s Decisions and the Parties’ Contentions 69 A. The Constitutionality of the Current System 70 (

a) Legislative and Judicial Failure to Comply With the

Section 7 Fairness Test 73 (

b) The Restrictions on Disclosure (

i) Whether Summaries of Confidential Information Amount to Inadequate Disclosure 83 (ii) Whether the Protection of the Identity of Human Sources Contributes to Render the Whole Scheme Unconstitutional 86 (iii) The Third-Party Rule, the Admissibility of Hearsay Evidence and the Right to Cross-Examination 106 (iv) The Restrictions on the Special Advocates’ Right to Communicate With the Appellant 113 (

c) Conclusion 117 B. Whether Subsection 77(2), Paragraphs 83(1)( c ), ( d ), (

e) and ( i ), Subsection 85.4(2) and Paragraph 85.5(

b) of the Act Are Saved by

Section 1 of the Charter 121 C. The Destruction of the Original Notes of Conversations and the Appropriate Remedy Under Subsection 24(1) of the Charter 122 (

a) The Prejudicial Effect of the Destruction 123 (

b) The Judge’s Finding That the Destruction of the Original Conversations Did Not Cause a Prejudice to the Appellant 126 (

i) Whether There Was a Violation of

Section 7 of the Charter 129 (ii) Review of the Judge’s Finding of Lack of Prejudice 132 (iii) The Appropriate Remedy 140 (

c) Conclusion 144 D. Whether the Appellant Was the Victim of an Abuse of Process and is Entitled to a Stay of Proceedings 145 E. Whether the Judge Erred in Concluding That the Security Certificate Is Reasonable 146 (

a) Definition of Terrorism 147 (

b) Definition of Organization 150 (

c) Membership 151 (

d) Danger to the Security of Canada 152 (

e) The Impact of the Exclusion of the Confidential Summaries of the Original Conversations on the Reasonableness of the Certificate 153 (

f) Conclusion 154 Conclusion 155 Issues on Appeal [ 2 ] This is an appeal by Mohamed Harkat (appellant) against four decisions of Noël J. of the Federal Court sitting as a designated judge (Judge) under the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (Act).

The four decisions ( Harkat (Re) , 2009 FC 204 , [2009] 4 F.C.R. 370; Harkat (Re) , 2010 FC 1241 , [2012] 3 F.C.R. 251; Harkat (Re) , 2010 FC 1242 , [2012] 3 F.C.R. 432; and Harkat (Re) , 2010 FC 1243 , 224 C.R.R. (2d) 167) relate to the constitutionality of the new process in place under the Act (Constitutionality Decision [2010 FC 1242]), the reasonableness of the security certificate (Reasonableness Decision [2010 FC 1241]), the applicability of the police informer privilege to Canadian Security Intelligence Service (CSIS [or Service]) human sources (Privilege Decision [2009 FC 204]) and a motion by the appellant to stay the proceedings on an account of an abuse of process (Abuse of Process Decision [2010 FC 1243]). [ 3 ] In Harkat (Re) , 2011 FC 75 , 382 F.T.R. 274 the Judge certified the following two questions of general importance under

section 82.3 [as enacted by S.C. 2008, c. 3, s. 4 ] of the Act : a. Do sections 77(2), 78, 83(1)(c)–(e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(

b) of the IRPA breach

section 7 of the Charter of Rights and Freedoms by denying the person concerned the right to a fair hearing? If so, are the provisions justified under

section 1? b. Do human sources benefit from a class-based privilege? If so, what is the scope of this privilege and was the formulation of a “need to know” exception for the Special Advocates in Harkat (Re) , 2009 FC 204 , a correct exception to this privilege?

[4] The certification of a question triggers a wide-ranging appeal. In Pushpanathan v. Canada (Minister of Citizenship andImmigration), (SCC), [1998] 1 S.C.R. 982, at paragraph 25, Bastarache J. wrote that: The certification of a “question of general importance” is the trigger by which an appeal is justified. The object of the appeal is still thejudgment itself, not merely the certified question. [5] This was reiterated by L’Heureux-Dubé J. in Baker v.

Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at paragraph 12: The wording of s. 83(1) suggests, and Pushpanathan confirms, that if a "question of general importance" has been certified, this allowsfor an appeal from the judgment of the Trial Division which would otherwise not be permitted, but does not confine the Court of Appealor this Court to answering the stated question or issues directly related to it.

All issues raised by the appeal may therefore be consideredhere. [6] Since then, this Court has on several occasions considered questions that were not among those certified (i.e. Canadian Councilfor Refugees v. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136, at paragraph 98; Xie v. Canada (Minister of Citizenship and Immigration),2004 FCA 250, [2005] 1 F.C.R. 304, at paragraph 10; and Richter v.

Canada (Minister of Citizenship and Immigration), 2009 FCA 73, atparagraphs 9 and 10). [7] As is his right, the appellant has used the certified questions as a springboard from which to advance other grounds of appeal. [8] The appellant has raised the following issues which I have reproduced almost verbatim from his memorandum of fact and law: 1. Did the refusal of the Court to permit the special advocates the right to interview and ultimately cross-examine the human sources incamera amount to a legal error? 2.

Did the Court err in law where it drew pivotal factual conclusions on aged historical matters where the sum total of the information atthe disposal of the Court was derived from inconsistent open source materials? Specifically, by way of example, it is asserted that theCourt’s factual finding with respect to Ibn Khattab was an unreasonable and unsafe one and accordingly not a conclusion available in lawto the Court on the record before it? 3. Did the Court err in its definition of terrorism?

In particular, to be included within the definition of terrorism is it required that materialsupport include any support or assistance or does it have to be material in the sense that it is done knowingly to aid or abet terroristactivity done with a common purpose? 4. Did the Court err in finding that paragraph 34(1)(

f) of the Act does not have any temporal requirement? In particular, can a person befound to be a member of a terrorist organization by links or assistance to a person who is not at the time nor at any prior time a terrorist ifthat person or organization subsequently becomes engaged in terrorism? 5. Does paragraph 34(1)(

d) of the Act require a finding of a present danger to the security of Canada including a current seriousidentifiable threat? 6. Did the Court err in finding that the policy of destruction of the original materials did not constitute a breach of CSIS’ duty todisclose? 7. Did the Court err in relying upon the information contained in alleged summarized conversations without first requiring the attendanceand subsequent cross-examination of the parties involved in the original recording and summarization of such information? 8. Did the Court err in its formulation of the test for the exclusion of evidence pursuant to subsection 24(1) of the Charter [CanadianCharter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,1985, Appendix II, No. 44]], and if so, did the Court err in not excluding the summarized conversations? 9. Did the Court err in finding that the cumulative effect of Charter breaches, a breach of candour, and the passage of time did notwarrant a stay of proceedings pursuant to subsection 24(1) of the Charter? 10. Should the duty of utmost good faith and candour defined in Ruby v.

Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3 beenlarged or interpreted to include an obligation on the part of the ministers and the Service to update evidence and/or information as theproceedings evolve? [9] It is not necessary to consider all questions posed by the appellant to dispose of the appeal. I propose to address the followingissues: 1. The standard of review. 2. The constitutionality of the system in place, i.e whether the Act violates the appellant’s right to life, liberty and security of the personunder

section 7 of the Charter? 3. If so, whether the breach of

section 7 can be justified under

section 1 of the Charter? 4. Whether CSIS’ human sources benefit from the police informer class-based privilege? 5. Whether the appellant’s

section 7 right to know and meet the case against him has been violated by the destruction of the originalevidence? 6. If so, what is the appropriate and just remedy under subsection 24(1) of the Charter?

7. Whether the appellant was the victim of an abuse of process and is entitled to a stay of proceedings? 8. Whether the Judge erred in concluding that the security certificate is reasonable? [ 10 ] I reproduce the legislative provisions relevant to the determination of this appeal [ss. 77(2) (as am. by S.C. 2008, c. 3, s. 4 ), 78 (as am. idem ), 83(1) (as am. idem ), 85.4(2) (as enacted idem ), 85.5( b ) (as enacted idem )]: Immigration and Refugee Protection Act , S.C. 2001, c. 27 Rules of

interpretation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. Security 34.

(1) A permanent resident or a foreign national is inadmissible on security grounds for (

a) engaging in

an act of espionage or

an act of subversion against a democratic government, institution or process as they are understood in Canada; (

b) engaging in or instigating the subversion by force of any government; (

c) engaging in terrorism; (

d) being a danger to the security of Canada; (

e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (

f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph ( a ), (

b) or ( c ). Exception

(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. … 77. … Filing of evidence and

summary

(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a

summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed . … Determination 78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not. … Protection of information 83.

(1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2: … (

c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person ; (

d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person ; (

e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a

summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed; … (

h) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence; (

i) the judge may base a decision on information or other evidence even if a

summary of that information or other evidence is not provided to the permanent resident or foreign national; … 85.4 …

Restrictions on communications — special advocate

(2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate. … Disclosure and communication prohibited 85.5 With the exception of communications authorized by a judge, no person shall … (

b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel. [Emphasis added.] Canada Evidence Act , R.S.C., 1985, c. C-5 [ ss. 37(1) (as am. by S.C. 2001, c. 41 , s. 43), 38.06 (as enacted idem )] Objection to disclosure of information 37.

(1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest. … 38.06 … Disclosure order

(2) If the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non- disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or

summary of the information, or a written admission of facts relating to the information. Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 Collection, analysis and retention 12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada.

Canadian Charter of Rights and Freedoms Life, liberty and security of person 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. … Enforcement of guaranteed rights and freedoms 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. Facts and Procedural History Giving Rise to the Appeal [ 11 ] The appellant arrived in Canada on October 6, 1995, on a false Saudi Arabian passport and a legitimate Algerian one, claiming refugee status. [ 12 ] On February 24, 1998, the appellant was granted refugee status by the Immigration and Refugee Board.

He has never obtained permanent resident status in Canada. [ 13 ] On December 10, 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration (ministers) issued a security certificate against the appellant. The security certificate alleged that the appellant was inadmissible to Canada on security grounds under what was then

section 33 (now

section 34 ) of the Act . [ 14 ] In March 2005, Dawson J., then of the Federal Court, evaluated the reasonableness of the appellant’s security certificate. Relying on this Court’s decision in Charkaoui (Re) , 2004 FCA 421 , [2005] 2 F.C.R. 299 she rejected the appellant’s constitutional arguments under

section 7 of the Charter . Further, Dawson J. found that there were reasonable grounds to believe that the appellant had engaged in terrorism. This judgment was reported as Harkat (Re) , 2005 FC 393 , 261 F.T.R. 52. [ 15 ] The appellant then appealed Dawson J.’s judgment to this Court. In Harkat (Re) , 2005 FCA 285 , 340 N.R. 286, Chief Justice Richard dismissed the appellant’s appeal. In turn, the appellant sought, and was granted, leave to appeal to the Supreme Court of Canada. Along with Messrs. Charkaoui and Almrei, the appellant challenged the constitutionality of the security certificate regime.

In reasons reported as Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 ( Charkaoui No. 1) Chief Justice McLachlin, writing for a unanimous Supreme Court of Canada, declared that the Act ’s procedure violated

section 7 of the Charter by limiting the named person’s right to know and answer the case against him. She suspended the declaration for one year and invited Parliament to act. At paragraph 80 of her reasons, Chief Justice McLachlin highlighted the United Kingdom special advocate system as one that Canada could adopt that would be less minimally impairing of the named person’s rights.

[ 16 ] In response, Parliament enacted 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 [S.C. 2008, c. 3] which came into force on February 22, 2008. Bill C- 3 significantly modified the security certificate regime [section 4 of Bill C-3 amended sections 76 to 87.2 of the Act ]. It imported into Canadian law a special advocate system for security certificate proceedings. [ 17 ] On June 26, 2008, in Charkaoui v.

Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326 ( Charkaoui No. 2) the Supreme Court of Canada spoke again, this time in relation to procedural issues. Under policy OPS-217, CSIS destroyed its original notes of gathered intelligence such as interviews and intercepts. LeBel and Fish JJ., writing for a unanimous Court, found that the destruction of these notes breached Mr. Charkaoui’s right to know the case against him under

section 7 of the Charter . Nevertheless, the Court rejected Mr. Charkaoui’s application for a stay because it was premature. The remedial aspect was left to the designated Judge. [ 18 ] Charkaoui No. 2 entitled the appellant to additional disclosure from CSIS. On September 24, 2008, the Judge at paragraph 23 of his Reasonableness Decision ordered the ministers to produce “all information and Intelligence related to Mohamed Harkat”. CSIS then disclosed thousands of files to the ministers, who in turn disclosed the records to the Judge. The special advocates reviewed the records and additional exhibits were filed.

As a result of the closed hearings, the ministers disclosed additional information to the appellant and his public counsel. Like in Charkaoui No. 2, however, the original tapes and notes upon which CSIS’ file summaries were based had been destroyed under policy OPS-217. [ 19 ] In the fall of 2008, the Judge held closed hearings on the Charkaoui No. 2 disclosure. During these hearings the special advocates requested access to the CSIS employee and human source files of one of the ministers’ witnesses.

In the Privilege Decision the Judge rejected this request and extended the police informer common law privilege to covert human intelligence sources, subject to a “need to know” exception. [ 20 ] On May 12, 2009, the Canada Border Services Agency (CBSA) sent 16 law enforcement officers and 3 canine units to search the appellant’s residence. When the Judge learned about the search, he immediately cancelled CBSA’s authorization and subjected any further searches to his prior authorization.

This decision was reported as Harkat (Re) , 2009 FC 659 , [2010] 3 F.C.R. 169. [ 21 ] On May 26, 2009, the ministers told the Judge that one of their human sources had failed a polygraph test. In Harkat (Re) , 2009 FC 1050 , [2010] 4 F.C.R. 149, the Judge found that the ministers had breached their duty to disclose this to him and to the special advocates. Consequently, he ordered the ministers to completely disclose the human source file in question. Unsatisfied with this remedy, the special advocates sought to exclude all evidence from the human source in question. The Judge denied this remedy.

He found that CSIS’ breach of the duty to disclose was done without intent to filter or conceal the information. Nevertheless, he ordered that another human source file be made available to the Court and the special advocates to restore confidence in the proceedings.

The two human source files confirmed the evidence filed by the ministers. [ 22 ] On December 22, 2008, the Judge rejected a motion by the appellant’s special advocates to identify, interview and cross-examine covert human intelligence sources on the basis that they were protected by a common law class privilege ( Harkat (Re) , 2009 FC 204 , the Privilege Decision).

A year later, on December 9, 2010, the Judge upheld the certificate’s reasonableness ( Harkat (Re) , 2010 FC 1241 , the Reasonableness Decision), confirmed the security certificate regime’s constitutionality ( Harkat (Re) , 2010 FC 1242 , the Constitutionality Decision), and rejected a motion for either a stay of proceedings or the exclusion of some evidence because of an alleged abuse of process ( Harkat (Re) , 2010 FC 1243 , the Abuse of Process Decision). [ 23 ] Some 34 months passed between the enactment of Bill C-3 and the issuance of the judgments under appeal.

The Judge observed that the amount of disclosure, the procedural matters described above, and scheduling difficulties were responsible for the delay.

Summary of the Judge’s decisions [ 24 ] As stated, the record contains four sets of reasons written by the Judge: the Privilege Decision, the Reasonableness Decision, the Constitutionality Decision, and the Abuse of Process Decision. I summarize their contents as follows. A. The Privilege Decision [ 25 ] A number of human sources provided CSIS with information regarding the appellant’s activities. To test their credibility, the special advocates sought a court order compelling the ministers to produce CSIS’ human sources for cross-examination in closed proceedings.

The Judge denied this request by extending police informer privilege to CSIS human sources on a class-wide basis. At the time of the Privilege Decision, the Judge had yet to ascribe reliability or weight to the information gained from human sources. [ 26 ] The Judge concluded that informer privilege has a two-fold objective of protecting informers and encouraging others to come forward with useful information.

However, the privilege is subject to an “innocence at stake” exception, whereby it can be set aside if it jeopardizes an accused’s right to raise a reasonable doubt regarding the case against him/her. [ 27 ] The Judge recognized that, since CSIS is a civilian intelligence agency and certificate proceedings are not criminal proceedings in the traditional sense, informer privilege was not per se applicable. Nevertheless, he held that the policy justifications underlying informer privilege applied with equal or greater force to CSIS intelligence sources.

He highlighted the fact that recruiting sources would be difficult if confidentiality could not be maintained and noted that, unlike most criminal investigations, intelligence investigations may extend for long periods of time. Ultimately, he concluded that a class privilege should protect the relationship between CSIS and its human sources.

However, he held that this novel privilege was subject to a “need to know” exception that is engaged if knowing the human source’s identity is necessary to prevent a serious breach of procedural fairness that would impugn the administration of justice. [ 28 ] Having found the privilege to apply on a class-wide basis, the Judge further concluded that neither the Act nor Charkaoui No. 2 altered it. Thus, the privilege protected the identity of the human sources in the instant case. Finally, he held that the “need to know” exception did not apply here. B. The Reasonableness Decision

[ 29 ] To decide whether the security certificate was reasonable, the Judge first had to define the following key terms in the Act : • “terrorism” ( paragraph 34(1) (

c) of the Act ); • “danger to the security of Canada” ( paragraph 34(1) (

d) of the Act ); and • “member of an organization” ( paragraph 34(1) (

f) of the Act ). [ 30 ] The Act does not define “terrorism”. The Judge relied on the definition chosen by the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3, at paragraphs 97 and 98 : In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism , that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active

part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. [ 31 ] The Judge noted that the definition was not exhaustive and could be adapted with time. The Supreme Court’s definition also includes materially supporting terrorist activities, such as providing funds, false documents, recruitment and shelter, even though such acts are not directly linked to violence.

Material support, said the Judge at paragraph 81, “is the sine qua non of international terrorism and must be viewed as a form of participation in terrorism.” [ 32 ] The next phrase that needed definition was “danger to the security of Canada”.

Again, the Judge relied on Suresh and adopted the definition set out there at paragraph 90: These considerations lead us to conclude that a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations.

The threat must be “serious”, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible. [ 33 ] He further held that paragraph 34(1) (

d) of the Act had to be read together with

section 33 . Consequently, proof of danger to the security of Canada may include actions that have occurred, are occurring, or will occur. In arriving at this result, the judge rejected Mosley J.’s opinion in Almrei (Re) , 2009 FC 1263 , [2011] 1 F.C.R. 163 at paragraph 504 that paragraph 34 (1) (

d) required actual present danger. Such an

interpretation, he reasoned, was inconsistent with

section 33. Relying on Suresh , the Judge recalled that “danger to the security of Canada” must benefit from a large and liberal

interpretation. Further, the concept is highly factual and could be related to distant events that may harm Canadian security. [ 34 ] Membership in a terrorist organization is difficult to define since terrorist organizations do not issue membership cards. Relying on Poshteh v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 85 , [2005] 3 F.C.R. 487, at paragraph 27 , the Judge found that the definition of “member” in national security cases must benefit from a broad

interpretation. [ 35 ] The Judge then turned his attention to the definition of “organization”. This term too demands a broad reading since terrorist organizations are loosely structured and extremely secretive. Paragraph 34(1) (

f) of the Act does not require a temporal nexus between membership in the organization and the period during which the organization engaged in terrorist activity: Gebreab v. Canada (Public Safety and Emergency Preparedness) , 2010 FCA 274 , 93 Imm.

L.R. (3d) 28. [ 36 ] The Judge found that the ministers proved the following facts on a balance of probabilities: - Usama bin Laden and Al-Qaida have supplied money and resources to the Chechen terrorist cause through Ibn Khattab and the Basayev group. - The Basayev and Khattab groups were not part of the Al-Qaida core, but did belong to the broader bin Laden network. - The appellant operated a guesthouse for Ibn Khattab for at least 15 months.

Consequently, he was an active member of a group involved in Chechen terrorism. - The appellant crossed the Afghan border during his stay in Pakistan. - The appellant had links to Al-Gama’a al-islamiyya (AGAI), an Egyptian Islamic extremist group. - The appellant used “sleeper agent” methods in Canada.

He concealed aliases he used in Pakistan and used false documents and anti- surveillance techniques. - The appellant assisted Abu Messab Al Shehre and Mohammed Aissa Triki, two Islamist extremists, in Canada. - The appellant, with the assistance of Abu Zubaydah, provided financial assistance to Al Shehre by paying his legal fees. - The appellant maintained contacts with Islamist extremists in Canada, such as Ahmed Said Khadr and Abu Zubaydah. - There are reasonable grounds to believe that the appellant belonged to and supported an entity that is part of the bin Laden network prior to and after having set foot in Canada. - Although it has diminished over time, the appellant still poses a danger to Canada. [ 37 ] Based on these factual findings, the Judge upheld the certificate as reasonable.

C. The Constitutionality Decision [38] The Judge reviewed and summarized the principles underlying

section 7 of the Charter. At paragraph 97 he framed the issues asfollows: - Were the liberty and security rights of Mr. Harkat violated by the IRPA? - In the affirmative, are the protections instituted by the new IRPA such as disclosure and the special advocate provisions such that theyare substantive, meaningful substitutes that satisfy the principles of fundamental justice while protecting national security information? - In the alternative, can

section 1 of the Charter save the legislation insofar as the limits on the rights imposed are such that they aredemonstrably justifiable in a free and democratic society? [39] The Judge concluded that, like the old security certificate regime, the revised security certificate regime under the Act alsoengaged the appellant’s life, liberty, and security of the person rights guaranteed under

section 7 of the Charter. I agree. Further, thecertificate process may lead to irreparable harm flowing from the stigma of terrorism allegations and from removal to a country wherethe named person’s life and freedom could be affected. [40] Having established that the appellant’s

section 7 rights were engaged, the Judge then discussed the principles of fundamentaljustice. In his view, applying

section 7 requires a contextual approach. Invoking the decision of Chief Justice McLachlin in CharkaouiNo. 1, at paragraphs 1 and 58, he reiterated that protecting citizens was one of the most fundamental tasks of the state. National securityinformation should be kept confidential: Chiarelli v. Canada (Minister of Employment and Immigration), (SCC), [1992]1 S.C.R. 711, at pages 744–745. The challenge, he reasoned, is finding a substitute for complete disclosure that still respects the namedperson’s constitutional rights. [41] The Judge determined that the revised Act meets this challenge.

The Judge recalled that the principles of fundamental justiceinclude (1) the right to a hearing (2) presided by an independent and impartial magistrate (3) who decides on the facts and the law. TheJudge found that the revised Act met the first and second requirements. In fact, subsection 83(1) of the revised Act enlarges thedesignated judge’s powers to ensure a fair process. [42] The prior version of the Act failed the third requirement since it did not disclose sufficient information to the named person toinform him of the case against him. In the Judge’s view, the revised Act did not suffer from this problem.

It fulfills the third requirementbecause: - Summaries of information are now provided to the named person throughout the proceedings pursuant to subsection 77(2) andparagraph 83(1)(

g) of the Act. They provide summaries of top-secret information and more than mere allegations. They are drafted insuch a way as to reasonably inform the named person of the case to meet without damaging national security. - Paragraph 85.1(2)(a) [as enacted idem] obliges the special advocate to challenge any ministerial claim that disclosing informationwould injure national security or endanger the safety of any person. - Paragraphs 83(1)(

e) and 85.1(2)(

a) permit both the Minister and the special advocates to make submissions before the designated judgeon the issue of information disclosure. [43] The Judge determined that the appellant understood the case against him. He concluded that the revised Act provided adequateprotection to the named person, considering the new disclosure regime together with the active role of the special advocates andtherefore safeguarded the principles of fundamental justice. [44] Despite its differences with the Canada Evidence Act, R.S.C., 1985, c. C-5 (CEA), the Judge found the revised Act to beconstitutional. The appellant argued before the Judge that paragraphs 83(1)(

c) to 83(1)(

e) of the Act were unconstitutional because theylacked the public interest balancing provision found in subsection 38.06(2) of the CEA. The Judge rejected this argument. Hedistinguished the CEA from the Act because the Act provides for special advocates whereas the CEA does not. Parliament chose not toprovide for a balancing of interests in the Act when the information would be injurious to national security.

The Act, however, is stillconstitutional, because it provides sufficient information to the named person to meet the case against him. [45] The appellant’s next argument was that restricting the special advocates’ ability to communicate with him was unconstitutional.The Judge highlighted Parliament’s concern for inadvertent disclosure. To alleviate this danger, after they have seen the confidentialinformation, Parliament only allows the special advocates to communicate with the named person with judicial authorization.

In theinstant case, the Judge pointed out that most communication requests were granted and only an exceptional few were denied. Nor didsuch requests impinge on the appellant’s solicitor-client privilege as none of the requested communication was covered by that privilege. [46] The appellant argued that a designated judge’s ability under paragraph 83(1)(

i) of the Act to base his decision on evidence notdisclosed to the named person was unconstitutional. The Judge rejected this argument as theoretical because of his finding that theappellant knew all of the allegations against him. [47] Although the Judge found no breach of

section 7 of the Charter, he still considered whether such a breach would be justifiedunder

section 1. He found that it would be. D. The Abuse of Process Decision [48] In this set of reasons, the Judge evaluated the appellant’s claim that his rights under

section 7 of the Charter were breached andthat the proceedings against him should be stayed and that the summaries tendered by CSIS be excluded under subsection 24(1) of theCharter.

[49] The Judge noted that in R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, the Supreme Court set out the following test for theexclusion of evidence under subsection 24(1) of the Charter: • the prejudice suffered must affect trial fairness; or • admitting the evidence must compromise the justice system’s integrity; and • a less intrusive remedy cannot be fashioned to safeguard fairness or integrity. He recognized that, even if a violation of

section 7 is proven on a balance of probabilities, a stay is available only as a remedy of lastresort and in the clearest of cases. This is equally true even when there is no Charter breach. [50] The Judge outlined the conversation summaries that the appellant sought to exclude. Under policy OPS-217, CSIS destroyed theoriginal tapes, transcripts and notes of these conversations once analysed and put in reports. A

summary of the CSIS reports is what wasultimately disclosed to the appellant and his public counsel. Based on R. v. La, (SCC), [1997] 2 S.C.R. 680, the Judgeheld that there was no absolute right to original documents and, if relevant documents are destroyed, a proper explanation must be given.The original materials were summarized as part of confidential reports which were in turn summarized and then disclosed to theappellant. These summaries allowed the appellant to fully know the case against him.

Further, the destruction of the originals was notdishonest. [51] The Judge questioned whether any prejudice existed and held that, even if it did, it was not perpetuated or aggravated bycontinuing the proceedings. If anything, he reasoned, supplementary disclosure has resulted in additional relief for the appellant. He heldthat remedies such as the Charkaoui No. 2 disclosures had already been issued. Ultimately, he held the destruction of the originals didnot constitute a breach of the Charter.

Consequently, he declined to exclude the summaries. [52] The Judge was of the view that the appellant received a significant amount of disclosure and that the special advocates hadadequately represented his rights. The remedy for the destruction of the originals was the provision of the summaries. In other words, theJudge held that the Charkaoui No. 2 disclosure and special advocate involvement was sufficient to protect the appellant’s

section 7rights. [53] The appellant argued that the cumulative effect of CSIS’ and the ministers’ behaviour led to an abuse of process. The Judgerejected this submission. He believed CSIS’ duty of candour was fulfilled by providing full disclosure. He held that the time theappellant spent in custody was not sufficient to warrant a stay due to the great number of lawyers involved, the disclosure process,number of witnesses and numerous Supreme Court rulings (which could not be used to support an abuse of process). Further, the delaydid not affect his ability to know the case against him.

While solicitor-client privileged communications were intercepted, they werenever listened to. Although the CBSA unreasonably searched the appellant’s residence, a subsequent order ensured that all items seizedwere returned. Finally, the Judge held that the human source and polygraph issues were fully remedied as the special advocates weregiven access to the human source files. He rejected the “cumulative effect” theory on the basis that the Court has acted expeditiously toprotect the appellant’s rights and there was strong public interest in allowing the case to go forward.

Issues [54] It is worth reiterating the issues on appeal. Of the numerous questions posed by the appellant, I propose to answer only thefollowing: 1. What is the standard of review? 2. The constitutionality of the system in place, i.e whether the Act violates the appellant’s right to life, liberty and security of the personunder

section 7 of the Charter? 3. If so, whether the breach of

section 7 can be justified under

section 1 of the Charter? 4. Whether CSIS’ human sources benefit from the police informer class-based privilege? 5. Whether the appellant’s

section 7 right to know and meet the case against him has been violated by the destruction of the originalevidence? 6. If so, what is the appropriate and just remedy under subsection 24(1) of the Charter? 7. Whether the appellant was the victim of an abuse of process and is entitled to a stay of proceedings? 8. Whether the Judge erred in concluding that the security certificate is reasonable? The standard of review [55] On the merits of the certificate, the standard of review is set in

section 78 of the Act as reasonableness. However, at issue hereare only questions of law such as the

definitions of various concepts, the constitutionality of the Act, and what the appropriate remedy is.Questions of law are reviewed on a standard of correctness: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraph 36. Some key elements relevant to the constitutionality of the current scheme under the Act [56] In order to better understand the constitutional arguments raised by the appellant, it is useful to briefly highlight some of the keyelements of the system now in place under the Act. [57] The central feature of the new system is the special advocates. The judge also plays a significant and key role in ensuring and

maintaining the fairness of a process which, by necessity, derogates in part from the traditional adversarial process prevailing across Canada. The judge’s role is a difficult and very demanding one. [ 58 ] The process begins with the Minister filing with the Court all the information and evidence on which the security certificate is based as well as a

summary of information that enables the person named in the certificate to be reasonably informed of the case made by the Minister. However, the

summary does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person. The judge must then ensure that a named person such as the appellant will receive sufficient information to know and meet the case against him, subject always to national security concerns. If the Minister’s initial claim to confidentiality is overbroad, it will be challenged by the special advocates.

Section 83 of the Act imposes on the judge the duty to ensure the confidentiality of any information or evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person. This obligation on the judge extends to all information or other evidence that is tendered or withdrawn by the Minister. [ 59 ] As a result of the above restrictions on disclosure, some portions of the hearings must be held in the absence of the named person and his counsel, thereby limiting that person’s right and ability to meet the case against him.

To counter this limitation, the judge shall appoint, on request, a person to act as special advocate in the proceedings unless the appointment would result in an unreasonable delay of the proceedings, place the person in a conflict of interest or the person already knows information that cannot be disclosed without injuring national security or endangering the safety of any person and there is a risk of inadvertent disclosure. [ 60 ] The role and powers of special advocates are governed by sections 85.1 and 85.2 of the Act .

Broadly stated, their role is to protect the interests of a named person in proceedings such as those the appellant is facing when information or evidence is heard in closed hearings, i.e. in his absence and the absence of his counsel. [ 61 ] Paragraph 85.1(2)(

a) confers on the special advocates the responsibility to challenge the Minister’s claim that disclosure of information or evidence would be injurious to national security or endanger the safety of any person. [ 62 ] In addition, the special advocates bear the responsibility of testing the information or evidence provided by the Minister in closed hearings by challenging its relevancy, reliability, sufficiency and the weight to be given to it: paragraph 85.1(2)( b ). [ 63 ] In order to allow the special advocates to assume their responsibilities,

section 85.4 obliges the Minister to give them a copy of all information and other evidence that is provided to the judge but not disclosed to the named person and his counsel. However, this

section does not entitle the special advocates access to privileged information: see Almrei (Re) , 2009 FC 314 , 342 F.T.R. 1, at paragraph 31 . [ 64 ]

Section 85.2 grants the special advocates the power to participate in the closed proceedings and cross-examine witnesses who testify therein. They can make oral and written submissions with respect to information or evidence provided by the Minister but not disclosed to the named person or his counsel.

Finally, the judge can authorize the special advocates to exercise any other powers that are necessary to protect the interests of the named person. [ 65 ] While the special advocates may request that some witnesses be called for examination and cross-examination in closed proceedings, there are some legal and practical limits to this possibility. For example, it is practically impossible to compel the appearance of a member of a foreign agency which provided the information or evidence sought to be challenged.

As we shall see later, access to the identity of a human source and the possibility of cross-examining that source remains a contentious issue for the special advocates. The named person and his counsel are not entitled to obtain any information or evidence that would endanger the safety of any person. His right to disclosure and cross-examination in this respect is exercised by his special advocates. [ 66 ] Prior to receiving a copy of the information that touches on national security, the special advocates can communicate with any person, including the named person and his counsel.

However, once they have received this confidential information, subsection 85.4(2) forbids them from communicating with another person about the proceedings without the judge’s authorization. The prohibition on communication exists for the duration of the proceedings though the special advocate remains permanently bound to protect the secrecy of the information.

In granting an authorization to communicate, the judge may attach any conditions that he considers appropriate. [ 67 ] Where an authorization to communicate with another person is granted, subsection 85.4(3) empowers the judge to prohibit that person from communicating with anyone else about the proceeding while it is ongoing or to impose conditions with respect to such communication during that period. [ 68 ] This brief review now brings me to an analysis of the Judge’s decisions and the parties’ contentions.

Analysis of the Judge’s decisions and the parties’ contentions [ 69 ] It is appropriate to begin the analysis of the Judge’s decisions with the issue of the constitutionality of the system in place. It strikes at the core of the legality and legitimacy of the security certificate process. It also subsumes and calls for an analysis of most of the crucial components of that process. Furthermore, there is no need to address the other grounds of appeal if the existing process is found to be unconstitutional. A.

The constitutionality of the current system [ 70 ] The appellant attacks various provisions of the Act on the basis that they violate his rights to life, liberty and security of the person and are not in accordance with the principles of fundamental justice. The

section 7 test has been established as follows: (1) are a claimant’s life, liberty or security of the person’s interests engaged? and (2) if so, are these deprivations in accordance with the principles of fundamental justice?: see Charkaoui No. 1, at paragraph 12. The Judge concluded that the new security certificate regime under the Act engaged the appellant’s rights guaranteed under

section 7 of the Charter . A person named in a security certificate may be detained or released under strict conditions. In addition, as the Supreme Court said in Charkaoui No. 1, at paragraph 14, the security of the named person is engaged. A certificate process may bring with it the accusation that one is a terrorist which could cause irreparable harm to the

individual and lead to a removal from the country. These findings apply in the present instance. [71] The principles of fundamental justice have been discussed by the Supreme Court.

In Charkaoui No. 1 [at paragraph 58], theCourt “recognized that national security considerations can limit the extent of disclosure of information to the affected individual” andthat protection of investigative techniques and police sources as well as the safeguard of confidential public security documents and themaintenance of foreign confidences are “societal concerns [which] formed part of the relevant context for determining the scope of theapplicable principles of fundamental justice”. Nonetheless, the fundamental principles of justice command that the affected person begiven a fair hearing.

In other words, the affected person must not only be informed of the case to meet, but also be given an opportunityto meet that case. [72] Below, I examine whether the various elements of the revised Act allow the appellant to know and meet the case against him andthus whether they are in accordance with the principles of fundamental justice. (

a) Legislative and judicial failure to comply with the

section 7 fairness test [73] The appellant’s first challenge to the constitutionality of the process is directed at subsection 77(2) and paragraph 83(1)(

e) of theAct that I reproduce here for convenience: 77. … Filing ofevidenceandsummary

(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which thecertificate is based, and a

summary of information and other evidence that enables the person who is named in thecertificate to be reasonably informed of the case made by the Minister but that does not include anything that, in theMinister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed. … Protectionofinformation 83.

(1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2: … (

e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with asummary of information and other evidence that enables them to be reasonably informed of the case made by the Ministerin the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security orendanger the safety of any person if disclosed; [Emphasis added.] [74] The argument goes as follows.

Parliament failed to implement the fairness threshold established by the Supreme Court in theCharkaoui No. 1 decision by simply requiring that the named person be reasonably informed of the case made by the Minister in theproceeding while the Supreme Court ruled that he be sufficiently informed of the case put against him so as to be able to meet that case. [75] At first blush, the argument is attractive. However, it does not withstand closer scrutiny. The requirement to be reasonablyinformed begs the question: how and when is the named person reasonably informed?

The answer is found in the French version ofsubsection 77(2) and paragraph 83(1)(e). [76] As a matter of fact, the French version of the texts uses the very words “suffisamment informé [sufficiently informed] de la thèsedu ministre à l’égard de l’instance en cause” (underlining added). The French version is in this respect more precise than the Englishversion, more favourable to the named person and more compliant with the fairness requirement of

section 7 of the Charter. Both texts,English and French, have equal force (see

section 18 of the Charter) and, for the reasons stated above, the French version is to bepreferred. [77] Moreover, I agree with counsel for the respondents that the concept of “reasonably informed” is subject to and qualified bysection 7 of the Charter: the named person has to be informed to the point that he knows the case against him and is able to meet it. [78] In this context, although the argument is not one which strikes at the constitutionality of the scheme in place, the appellant arguesthat the Judge applied a more diluted test than the test required by

section 7. He is said to have limited the named person’s knowledge ofthe case against him to a knowledge that enables him simply to respond to the case: see paragraph 31 of the Constitutionality Decision. Itis not enough, the appellant says, that he be allowed to respond. He must be able to challenge the case against him, to contradict theallegations and attack the credibility of informants. It is convenient to address the issue here. [79] This argument has no merit and is somewhat unfair to the judge who referred to and applied the test as formulated by theSupreme Court in Charkaoui No. 1.

At paragraph 53 of that decision, Chief Justice McLachlin writes: Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respondto that case. [Emphasis added.] [80] It is fair to say that the terminology used to describe the obligation imposed by

section 7 has varied over time from case to case.Chief Justice McLachlin implicitly points that out in paragraph 53 of her decision when she refers to Singh et al. v. Minister ofEmployment and Immigration, (SCC), [1985] 1 S.C.R. 177, at page 213, and Suresh v. Canada (Minister of Citizenshipand Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at paragraph 123. In Singh, the Court questioned whether the procedures provide anadequate opportunity for an affected person to state his case and know the case he has to meet.

In Suresh, the Court held that a personfacing deportation must not only be informed of the case to be met, but also be given an opportunity to challenge the information of theMinister. [81] In any event, it is clear that in the Constitutionality Decision, the Judge was aware of the test to be applied when he referred to“the rights of the named person to know and meet the case made against him” and “the opportunity to know the case to challenge the

government’s allegations”: see paragraphs 88 and 91. In the Abuse of Process Decision, above, at paragraph 95, the Judge showed hisclear understanding of the test to be applied when he wrote that “the Court must assess the effect of the non-disclosure on the namedperson’s capacity to know and meet the case made against him.” [82] While the Judge referred to the language used by the Supreme Court in the Charkaoui No. 1 case in his

summary at paragraph 31of his reasons, it is obvious throughout his reasoning that he applied the proper test dictated by

section 7. At paragraphs 85 and 127 ofhis reasons, the Judge adopts the basic principles of fundamental justice enunciated by the Supreme Court in Charkaoui No. 1, atparagraph 29, namely, in respect of the impugned statement, that the fairness of the hearing “implies the right to know the case putagainst one and the right to answer that case” (emphasis added).

At paragraph 88, he recognizes that the former security certificatescheme failed to ensure that the named person was “sufficiently informed” (emphasis added) as a result of the restriction on disclosure.Finally, in his conclusion at paragraph 204, he found that the “new disclosure process reasonably informs the named person of the caseto meet and enables him to answer it” (emphasis added). On a review of the reasons for his decision, I am satisfied that he applied theproper

section 7 test for fairness and that subsection 77(2) and paragraph 83(1)(

e) of the Act accord with the principles of fundamentaljustice. (

b) The restrictions on disclosure (

i) Whether summaries of confidential information amount to inadequate disclosure [83] The appellant submits that the new system in place still imposes undue restrictions on disclosure to the point that it isunconstitutional. By being provided with only summaries of the confidential evidence, the appellant argues that he is deprived of theability to know and answer the case against him.

In addition, the actual restrictions on disclosure hamper his right to cross-examination,thereby bereaving him of the ability to meet the case. [84] While it is true that the named person is not given access to the confidential material, the special advocates who represent himand the judge are provided with this information. The special advocates’ role, as previously mentioned, is to ensure that the confidentialevidence is challenged on behalf of the named person and that his interests are protected. The judge is vested with the obligation toensure the fairness of the process.

The appellant’s argument is in effect a claim for an unlimited right of access to all the information,whether confidential or not, irrespective of national security concerns. This claim has already been rejected by the Supreme Court inCharkaoui No. 1. [85] The new system provides for much more disclosure than the former one, thereby affording a named person a greater and betteropportunity to know and meet the case against him.

Paragraphs 25 to 31 of the Judge’s reasons in support of his ConstitutionalityDecision attest to an extensive disclosure of information, a disclosure quite sufficient to inform him of the case against him and to allowhim, his counsel and the special advocates to meet that case. I reproduce as an Annex to these reasons, paragraphs 25 to 31 mentionedabove.

I agree with the Judge’s reasons and conclusion that the disclosure provided for in the revised Act, when combined with theprocedural safeguard of the special advocate, is in accordance with the principles of fundamental justice. (ii) Whether the protection of the identity of human sources contributes to render the whole scheme unconstitutional [86] The appellant’s submission on this issue is twofold. A named person is denied access not only to the confidential informationprovided by human sources, but also to the identity of these sources.

Therefore, a named person’s right to cross-examination is hamperedand truncated to the point that it defeats his ability to know and meet the case against him. In addition, a named person’s prejudice is nowcompounded by the fact that the Judge in the Privilege Decision extended the police informer privilege to CSIS human sources and,thereby, created a class privilege for these sources. [87] In response to the first submission, I can say that the special advocates have access to the human sources’ confidentialinformation on behalf of a named person.

They can challenge the reliability of that information using other pieces of confidentialinformation they are entitled to receive as well as information provided by the named person or his counsel. I do not believe that theright to cross-examination is so restricted as to make the system unconstitutional. [88] The appellant submits that the Judge erred when he created a class privilege for CSIS human sources. He relies upon o

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