Minister of Citizenship v. Immigration and Minister of Public, 2014 SCC 37

SUPREME COURT OF CANADA Citation: Canada (Citizenship and Immigration) v.

Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33 Date: 20140514 Docket: 34884 Between: Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness Appellants/Respondents on cross-appeal and Mohamed Harkat Respondent/Appellant on cross-appeal and Attorney General of Ontario, British Columbia Civil Liberties Association, Canadian Council of Criminal Defence Lawyers, Canadian Civil Liberties Association, Canadian Bar Association, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, International Civil Liberties Monitoring Group, Canadian Council on American-Islamic Relations (now known as National Council of Canadian Muslims), Amnesty International and Criminal Lawyers’ Association (Ontario) Interveners Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ.

Reasons for Judgment: (paras. 1 to 112) Reasons Dissenting in Part: (paras. 113 to 139) McLachlin C.J. (LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ. concurring) Abella and Cromwell JJ. canada (citizenship and immigration) v. harkat, 2014 SCC 37, [2014] 2 S.C.R. 33 Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness Appellants/Respondents on cross-appeal v.

Mohamed Harkat Respondent/Appellant on cross-appeal and Attorney General of Ontario, British Columbia Civil Liberties Association, Canadian Council of Criminal Defence Lawyers, Canadian Civil Liberties Association, Canadian Bar Association, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, International Civil Liberties Monitoring Group, Canadian Council on American-Islamic Relations (now known as National Council of Canadian Muslims), Amnesty International and Criminal Lawyers’ Association (Ontario) Interveners Indexed as: Canada (Citizenship and Immigration) v.

Harkat 2014 SCC 37 File No.: 34884. 2013: October 10, 11; 2014: May 14.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner JJ. on appeal from the federal court of appeal Constitutional law — Charter of Rights — Right to life, liberty and security of person — Certificate issued against foreign national stating that he is inadmissible to Canada on national security grounds for allegedly engaging in terrorism — Named person challenging constitutionality of security certificate scheme on grounds that it prevents full disclosure and personal participation in hearings — Whether scheme under which security certificate issued deprives named person of right to life, liberty and security of person in accordance with principles of fundamental justice — Canadian Charter of Rights and Freedoms, s. 7 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 77(2) , 83(1) (c), (d), (e), (h), (i), 85.4(2) , 85.5 (b).

Immigration — Inadmissibility and removal — National security — Certificate issued against foreign national stating that he is inadmissible to Canada on national security grounds for allegedly engaging in terrorism — Judge reviewing reasonableness of

certificate finding sufficient evidence to demonstrate that certificate was reasonable and upholding certificate — Whether designated judge erred in concluding that certificate was reasonable. Evidence — Privilege — Informer privilege — Information used against named person obtained by CSIS from human sources — Whether CSIS human sources are covered by class privilege — Whether CSIS human sources can be cross-examined.

Constitutional law — Charter of Rights — Procedural fairness — Duty to disclose — Remedy — Summaries of intercepted conversations tendered as evidence against named person — Source materials for summaries destroyed in accordance with internal policy of CSIS — Whether destruction of source materials breached named person’s right to procedural fairness — Whether designated judge erred in refusing to exclude summaries of intercepted conversations — Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .

Stay of proceedings — Duties of candour and utmost good faith — Fairness of process — Ex parte proceedings — Review of reasonableness of security certificate — Whether ministers made reasonable efforts to obtain information sought by special advocates — Whether ministers breached duties of candour and utmost good faith — Whether proceedings against named person were fair — Whether named person entitled to stay of proceedings. H is alleged to have come to Canada for the purpose of engaging in terrorism.

In 2002, a security certificate was issued against H under the scheme then contained in the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“ IRPA ”). The certificate declared H inadmissible to Canada on national security grounds. After a successful constitutional challenge of the then existing IRPA security certificate scheme and subsequent amendments to the IRPA , a second security certificate was issued against H and referred to the Federal Court for a determination as to its reasonableness.

During the proceedings, the special advocates appointed to protect the interests of H in the closed hearings sought to obtain disclosure of the identity of human sources who provided information regarding H to the Canadian Security Intelligence Service (“CSIS”) as well as permission to interview and to cross-examine them. The designated judge rejected their request, finding that the common law police informer privilege should be extended to cover CSIS human sources.

The designated judge also rejected their request to compel the ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom H was claimed to have associated. In addition, H’s request to exclude from the evidence summaries of intercepted conversations on the ground that the original recordings and notes of these conversations were destroyed pursuant to CSIS policy OPS-217 was refused by the designated judge.

The designated judge found the security certificate scheme under the amended IRPA to be constitutional, and concluded that the certificate declaring H inadmissible to Canada was reasonable. On appeal, the Federal Court of Appeal upheld the constitutionality of the scheme but found that the identity of CSIS human sources is not protected by privilege. It also excluded from the evidence the summaries of intercepted conversations to which H had not been privy, and remitted the matter to the designated judge for redetermination on the basis of what remained of the record after the exclusion of the summaries.

Held (Abella and Cromwell JJ. dissenting in part on the appeal): The appeal should be allowed in part. The cross-appeal should be dismissed. The IRPA scheme is constitutional. CSIS human sources are not protected by a class privilege. The designated judge’s conclusion that the security certificate was reasonable is reinstated. Per McLachlin C.J. and LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ.: Constitutionality of IRPA Scheme The impugned provisions of the IRPA scheme are constitutional.

They do not violate the named person’s right to know and meet the case against him, or the right to have a decision made on the facts and the law.

The alleged defects of the IRPA scheme must be assessed in light of the scheme’s overall design and of the two central principles that guide the scheme: (1) the designated judge is intended to play a gatekeeper role, is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility but also that the overall process is fair; and (2) participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings.

However, the scheme remains an imperfect substitute for full disclosure in an open court, and the designated judge has an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate. The IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant, since the designated judge has a statutory duty to ensure that the named person is reasonably informed of the case against him or her throughout the proceedings.

However, the IRPA scheme’s requirement that the named person be “reasonably informed” of the case should be read as a recognition that the named person must receive an incompressible minimum amount of disclosure. A named person is “reasonably informed” if he or she has personally received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his or her special advocates which will allow them to challenge the information and evidence presented in the closed hearings.

The level of disclosure required for a named person to be reasonably informed is case-specific, depending on the allegations and evidence against him or her. Ultimately, the designated judge is the arbiter of whether this standard has been met. Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person.

The designated judge must be vigilant and skeptical with respect to the claims of national security confidentiality and must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld from the named person. Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter . The IRPA scheme’s approach to disclosure, which fails to provide for a balancing of countervailing interests, does not render the scheme unconstitutional.

Section 7 of the Charter does not require a balancing approach to disclosure; rather, it requires a fair process. Parliament’s choice to adopt a categorical prohibition against disclosure of sensitive information, as opposed to a balancing approach, does not as such constitute a breach of the right to a fair process. The communications restrictions imposed on special advocates do not render the scheme unconstitutional. They are not absolute and can be lifted with judicial authorization, subject to conditions deemed appropriate by the designated judge. The judicial

authorization process gives the designated judge a sufficiently broad discretion to allow all communications that are necessary for the special advocates to perform their duties. This broad discretion averts unfairness as the designated judge can ensure that the special advocates function as closely as possible to ordinary counsel in a public hearing. The judge should take a liberal approach in authorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real risk of injurious disclosure.

In addition, the named person and his public counsel can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings. The admission of hearsay evidence or the denial of the opportunity for special advocates to cross-examine sources do not render the IRPA scheme unconstitutional.

The IRPA scheme achieves the purpose of excluding unreliable evidence by alternative means to the rule against hearsay evidence and the right to cross-examine witnesses — it provides the designated judge with broad discretion to exclude evidence that is not “reliable and appropriate”, which allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person. Privilege for CSIS Human Sources CSIS human sources are not protected by a class privilege.

First, police informer privilege does not attach to CSIS human sources. The differences between traditional policing and modern intelligence gathering preclude automatically applying traditional police informer privilege to CSIS human sources. While evidence gathered by the police is traditionally used in criminal trials that provide the accused with significant evidentiary safeguards, the intelligence gathered by CSIS may be used to establish criminal conduct in proceedings that have relaxed rules of evidence and allow for the admission of hearsay evidence.

Second, this Court should not create a new privilege for CSIS human sources. If Parliament deems it desirable that CSIS human sources’ identities and related information be privileged, it can enact appropriate protections. The IRPA scheme already affords broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person. Although the identity of CSIS human sources is not privileged, special advocates do not have an unlimited ability to interview and cross-examine human sources.

The discretion of the designated judge to allow the special advocates to interview and cross-examine human sources in a closed hearing should be exercised as a last resort. A generalized practice of calling CSIS human sources before a court, even if only in closed hearings, may have a chilling effect on potential sources and hinder CSIS’s ability to recruit new sources. In this case, there is no need to authorize the exceptional measure of interviewing and cross-examining human sources.

Summaries The appropriate remedy for the destruction of materials pursuant to CSIS policy OPS-217 must be assessed on a case-by- case basis and must be tailored to address the prejudicial effect on the named person’s case. The summaries of materials destroyed pursuant to policy OPS-217 should only be excluded under s. 24(1) of the Charter if their admission would result in an unfair trial or would otherwise undermine the integrity of the justice system. In this case, the designated judge did not err in refusing to exclude the summaries of intercepted conversations that were tendered as evidence by the ministers.

Although the destruction of the original CSIS operational materials caused the ministers to fail to meet their disclosure obligations towards H and therefore to breach s. 7 of the Charter , the exclusion of the summaries is not necessary to remedy the prejudice to H’s ability to know and meet the case against him, or to safeguard the integrity of the justice system. The disclosure of the summaries in an abridged version to H and in an unredacted form to his special advocates was sufficient to prevent significant prejudice to H’s ability to know and meet the case against him.

Duties of Candour and Utmost Good Faith and Fairness of Process The duties of candour and utmost good faith apply when a party relies upon evidence in ex parte proceedings. They require an ongoing effort to update, throughout the proceedings, the information and evidence regarding the named person. What constitutes reasonable efforts will turn on the facts of each case; however, the ministers have no general obligation to provide disclosure of evidence or information that is beyond their control. In this case, reasonable efforts were made by the ministers and they did not breach those duties.

The proceedings against H were fair and a stay of proceedings should not be granted. Reasonableness of Certificate The designated judge committed no reviewable errors in finding that the ministers’ decision to declare H inadmissible to Canada was reasonable. The designated judge’s weighing of the factual evidence on the record is entitled to appellate deference and should only be interfered with if he committed a palpable and overriding error.

There is no palpable and overriding error in his weighing of the evidence or in his assessment of H’s credibility, both of which in his view provided reasonable grounds to establish H’s inadmissibility. Per Abella and Cromwell JJ. (dissenting in part on the appeal): Individuals who come forward with information about a potential terrorist threat, often risk their lives in doing so if their identity is disclosed.

Offering only the possibility of anonymity if a court subsequently agrees to protect an informer’s identity, requires informers to choose between risk of personal harm if their identity is not protected, or risk of harm to the public if the information is not disclosed. CSIS informants who provide national security information based on a promise of confidentiality are entitled to the assurance that their confidentiality will be protected. This can only be guaranteed by a class privilege, as is done in criminal law cases.

A case-by-case approach results in an informant not knowing whether the promise will be kept until a judge engages in a retrospective assessment. This is hardly conducive to encouraging informants to risk their lives by coming forward to offer highly sensitive information in terrorism cases. Informer privilege has been judicially recognized for more than two centuries and has a dual purpose: protection of a channel of information and the safety of those supplying it. It has been applied in settings other than criminal prosecutions, including commissions of inquiry.

The privilege for informers in the context of state officials investigating matters of national security is a well- established one. Before CSIS was created as an independent agency, the intelligence function it now carries out was performed by the

RCMP Security Service, and informer privilege applied to RCMP Security Service informants. While the functions of CSIS and theRCMP are distinct, the rationale for the informer privilege applies equally to the work of both. The transfer of functions from the RCMPSecurity Service to CSIS should have no bearing on whether the privilege continues to exist. The CSIS informer privilege is not abrogated by statute. In order to abrogate a common law privilege, Parliament mustclearly express an intention to do so.

IRPA makes no reference to informer privilege and does not evince a clear intention to depriveCSIS informants of its benefit. Given the intensity of the interests at stake in the security certificate context, it would be appropriate to recognize a limitedexception specifically crafted for the security certificate process which would address only disclosure to the special advocate, not to thesubject of the proceedings.

Identity should be disclosed only if the reviewing judge is satisfied that other measures, includingwithdrawing the substance of the informant’s evidence from consideration in support of the certificate, are not sufficient to ensure a justoutcome. Even when disclosure of identity is ordered, there should be no cross-examination of the source by the special advocate. Requiring a human source to testify will have a profound chilling effect on the willingness of other sources to come forward, and willundoubtedly damage the relationship between CSIS and the source compelled to testify.

CSIS operatives must be able to provideconfident assurances to their sources that their identities will not be revealed, not vague assurances hedged with qualifications. Moreover, the human sources themselves, who are not subject to the necessary security clearance, may learn sensitive material in theclosed proceedings which CSIS will then be unable to control. We would therefore allow the ministers’ appeal on the informant privilege issue and restore the designated judge’sdisposition of this issue. Cases Cited By McLachlin C.J. Referred to: Charkaoui v.

Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Vancouver Sun (Re),2004 SCC 43, [2004] 2 S.C.R. 332; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC),[1996] 3 S.C.R. 480; Bank Mellat v. H. M. Treasury, [2013] UKSC 38, [2013] 4 All E.R. 495; Almrei (Re), 2008 FC 1216, [2009] 3F.C.R. 497; Ruby v. Canada (Solicitor General), 2002 SCC 75, [2002] 4 S.C.R. 3; R. v. Ahmad, 2011 SCC 6, [2011] 1 S.C.R. 110;Secretary of State for the Home Department v. A.F. (No. 3), [2009] UKHL 28, [2009] 3 All E.R. 643; Jaballah, Re, 2009 FC 279, 340F.T.R. 43; Canada (Attorney General) v.

Almalki, 2010 FC 1106, [2012] 2 F.C.R. 508; Khadr v. Canada (Attorney General), 2008 FC549, 329 F.T.R. 80; Almrei, Re, 2009 FC 322, 342 F.T.R. 11; Smith v. Jones, (SCC), [1999] 1 S.C.R. 455; R. v. L.(D.O.), (SCC), [1993] 4 S.C.R. 419; R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787; Charkaoui v. Canada(Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326; R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347; R. v. NationalPost, 2010 SCC 16, [2010] 1 S.C.R. 477; Canada (Attorney General) v. Almalki, 2011 FCA 199, [2012] 2 F.C.R. 594; R. v. La, (SCC), [1997] 2 S.C.R. 680; R. v.

Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651; R. v. Bero (2000), (ONCA), 137 O.A.C. 336; R. v. J.G.B. (2001), (ON CA), 139 O.A.C. 341; Almrei (Re), 2009 FC 1263, [2011] 1 F.C.R.163; R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727; R. v. Stinchcombe, (SCC), [1995] 1 S.C.R. 754; R. v.O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309; Housen v. Nikolaisen, 2002SCC 33, [2002] 2 S.C.R. 235. By Abella and Cromwell JJ. (dissenting in part on the appeal) Bisaillon v. Keable, (SCC), [1983] 2 S.C.R. 60; Rice v. National Parole Board (1985), 16 Admin. L.R. 157;Wilson v.

National Parole Board (1985), (FC), 10 Admin. L.R. 171; Cadieux v. Director of Mountain Institution, (FC), [1985] 1 F.C. 378; A. v. Drapeau, 2012 NBCA 73, 393 N.B.R. (2d) 76; R. v. Leipert, (SCC),[1997] 1 S.C.R. 281; Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 253; R. v. Basi, 2009 SCC 52, [2009] 3 S.C.R.389; R. v. Y. (N.), 2012 ONCA 745, 113 O.R. (3d) 347; Central Intelligence Agency v. Sims, 471 U.S. 159 (1985); Solicitor General ofCanada v. Royal Commission of Inquiry into the Confidentiality of Health Records in Ontario, (SCC), [1981] 2 S.C.R.494; Charkaoui v.

Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2 S.C.R. 326; R. v. Ahmad, ; R. v.Debot, (SCC), [1989] 2 S.C.R. 1140; R. v. Garofoli, (SCC), [1990] 2 S.C.R. 1421; Canada (PrivacyCommissioner) v. Blood Tribe Department of Health, 2008 SCC 44, [2008] 2 S.C.R. 574. Statutes and Regulations Cited Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment toanother Act, S.C. 2008, c. 3. Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 37, 38, 38.06(1), (2). Canadian Charter of Rights and Freedoms, ss. 1, 7, 24(1).

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, s. 12. Immigration Act, R.S.C. 1985, c. I-2 [repl. 2001, c. 27]. Immigration and Refugee Protection Act, S.C. 2001, c. 27,

Part 1, ss. 33, 34, Division 9, ss. 77, 78, 80, 81, 83(1), (1.1), 85.1, 85.2, 85.4,85.5. Authors Cited Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. First Report. Security andInformation. Ottawa: The Commission, 1979.

Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Second Report. Freedom and Security under the Law , vols. 1 and 2. Ottawa: The Commission, 1981. Canada. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Report of the Events Relating to Maher Arar: Analysis and Recommendations . Ottawa: Public Works and Government Services, 2006. Canada. Parliamentary Research Branch. “The Canadian Security Intelligence Service”, Current Issue Review 84-27E, revised January 24, 2000.

Forcese, Craig. “Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” (2009), 15:5 IRPP Choices 3. Forcese, Craig. National Security Law: Canadian Practice in International Perspective . Toronto: Irwin Law, 2008. Forcese, Craig, and Lorne Waldman. “Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of ‘Special Advocates’ in National Security Proceedings”, August 2007 (online: http://aix1.uottawa.ca/~cforcese/other/sastudy.pdf). Paciocco, David M. “When Open Courts Meet Closed Government” (2005), 29 S.C.L.R. (2d) 385 .

Roach, Kent. “Sources and Trends in Post-9/11 Anti-terrorism Laws”, in Benjamin J. Goold and Liora Lazarus, eds., Security and Human Rights . Portland, Or.: Hart, 2007, 227. Roach, Kent. “The eroding distinction between intelligence and evidence in terrorism investigations”, in Nicola McGarrity, Andrew Lynch and George Williams, eds., Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 . New York: Routledge, 2010, 48. Schiff, Stanley. Evidence in the Litigation Process , vol. 2, 4th ed. Scarborough, Ont.: Carswell, 1993.

Sedley, Stephen. “Terrorism and security: back to the future?”, in David Cole, Federico Fabbrini and Arianna Vedaschi, eds., Secrecy, National Security and the Vindication of Constitutional Law . Cheltenham, U.K.: Edward Elgar, 2013, 13. Stewart, Hamish. Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms . Toronto: Irwin Law, 2012. Wigmore, John Henry. Evidence in Trials at Common Law , vol. 8. Revised by John T. McNaughton. Boston: Little, Brown, 1961. APPEAL and CROSS-APPEAL from a judgment of the Federal Court of Appeal (Blais C.J. and Létourneau and Layden- Stevenson JJ.A.), 2012 FCA 122 , [2012] 3 F.C.R. 635, 349 D.L.R. (4th) 519, 7 Imm. L.R. (4th) 175, 429 N.R. 1, 260 C.R.R. (2d) 290, [2012] F.C.J.

No. 492 (QL), 2012 CarswellNat 1155, setting aside three decisions of Noël J., 2009 FC 204 , [2009] 4 F.C.R. 370, 339 F.T.R. 65, 306 D.L.R. (4th) 269, 78 Imm. L.R. (3d) 303, [2008] F.C.J. No. 1823 (QL), 2008 CarswellNat 5335; 2010 FC 1241 , [2012] 3 F.C.R. 251, 380 F.T.R. 61, [2010] F.C.J. No. 1426 (QL), 2010 CarswellNat 4699; and 2010 FC 1243 , 380 F.T.R. 255, 224 C.R.R. (2d) 167, 95 Imm. L.R. (3d) 1, [2010] F.C.J. No. 1428 (QL), 2010 CarswellNat 5848; and affirming a decision of Noël J., 2010 FC 1242 , [2012] 3 F.C.R. 432, 380 F.T.R. 163, 224 C.R.R. (2d) 93, 94 Imm. L.R. (3d) 179, [2010] F.C.J.

No. 1427 (QL), 2010 CarswellNat 4714. Appeal allowed in part, Abella and Cromwell JJ. dissenting in part. Cross-appeal dismissed. Urszula Kaczmarczyk , Q.C. , Robert Frater , Marianne Zoric and Andr é Séguin , for the appellants/respondents on cross- appeal. Matthew C. Webber , Norman D. Boxall , Meaghan Thomas and Leo Russomanno , for the respondent/appellant on cross- appeal. Robert W. Hubbard and Greg Skerkowski , for the intervener the Attorney General of Ontario. Nader R. Hasan and Gerald Chan , for the intervener the British Columbia Civil Liberties Association.

John Norris and François Dadour , for the intervener the Canadian Council of Criminal Defence Lawyers. Anil K. Kapoor and Lindsay Trevelyan , for the intervener the Canadian Civil Liberties Association. Lorne Waldman , Peter Edelmann , Jacqueline Swaisland and Clare Crummey , for the intervener the Canadian Bar Association. Marlys A. Edwardh and Adriel Weaver , for the intervener the Canadian Association of Refugee Lawyers. Barbara Jackman , Sharryn J. Aiken and Andrew J. Brouwer , for the interveners the Canadian Council for Refugees and the International Civil Liberties Monitoring Group.

Faisal Bhabha and Khalid M. Elgazzar , for the intervener the Canadian Council on American-Islamic Relations (now known as National Council of Canadian Muslims). Michael Bossin , Laïla Demirdache and Anna Shea , for the intervener Amnesty International. Breese Davies and Erin Dann , for the intervener the Criminal Lawyers’ Association (Ontario). Paul J. J. Cavalluzzo and Paul D. Copeland , as Special Advocates.

The judgment of McLachlin C.J. and LeBel, Rothstein, Moldaver, Karakatsanis and Wagner JJ. was delivered by [ 1 ] The Chief Justice ― The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) seek to have Mohamed Harkat, a non-citizen, declared inadmissible to Canada. Mr. Harkat is alleged to have come to Canada for the purpose of engaging in terrorism. He has been detained, or living under strict conditions, for over a decade.

He potentially faces deportation to a country where he may be at risk of torture or death, although the constitutionality of his deportation in such circumstances is not before us in the present appeal. [ 2 ] The reasonableness of the ministers’ decision to declare Mr. Harkat inadmissible to Canada is subject to judicial review, under Division 9 of

Part 1 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “ IRPA scheme”). This scheme prevents Mr. Harkat from seeing some of the evidence and information tendered against him, because its public disclosure would harm national security. [ 3 ] The issue in this appeal is whether the IRPA scheme complies with the Constitution, in particular the guarantee in the Canadian Charter of Rights and Freedoms against unjustifiable intrusions on life, liberty, and security of the person. More specifically, this appeal asks whether the IRPA scheme gives Mr.

Harkat a fair opportunity to defend himself against the allegations made by the ministers, despite the fact that national security considerations prevent him from seeing the entire record and from personally participating in all of the hearings. It requires us to determine how far the principle of full disclosure in an open court can be qualified in order to address the threat posed by non-citizens who may be involved in terrorism. [ 4 ] I conclude that that the IRPA scheme is constitutional.

Crafting a regime that achieves a fundamentally fair process while protecting confidential national security information is a difficult task. The scheme must apply to a broad range of cases, implicating a variety of national security concerns. Parliament’s response to this challenge has been to confer on judges the discretion and flexibility to fashion a fair process, in the particular case before them.

If this is impossible, judges must not hesitate to find a breach of the right to a fair process and to grant whatever remedies are appropriate, including a stay of proceedings. [ 5 ] In the present case, the process was fair and the Federal Court judge committed no reviewable errors in finding that the ministers’ decision to declare Mr. Harkat inadmissible to Canada was reasonable. I. History of the Legislation and of the Proceedings A.

The Legislation [ 6 ] The purpose of the IRPA scheme “is to permit the removal of non-citizens living in Canada — permanent residents and foreign nationals — on various grounds, including connection with terrorist activities”: Charkaoui v. Canada (Citizenship and Immigration) , 2007 SCC 9 , [2007] 1 S.C.R. 350 (“ Charkaoui I ”), at para. 4 . The ministers must decide whether the evidence against a non-citizen gives them reasonable grounds to declare him or her “inadmissible” to Canada — i.e. to issue a removal order.

The resulting “certificate of inadmissibility” (also called a “security certificate”) is then referred to the Federal Court for a review of its reasonableness. If a Federal Court judge (the “designated judge”) finds the certificate to be reasonable, the non-citizen named in that certificate (the “named person”) becomes subject to a removal order. [ 7 ] The IRPA scheme was adopted by Parliament in 2001, as a successor to an analogous scheme contained in the Immigration Act , R.S.C. 1985, c. I-2.

In the wake of the attacks of September 11, 2001, it increasingly came to be used as a means of detaining suspected terrorists and eliminating the perceived threat posed by them: K. Roach, “Sources and Trends in Post-9/11 Anti- terrorism Laws”, in B. J. Goold and L. Lazarus, eds., Security and Human Rights (2007), 227, at p. 233. From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid.

As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person. This information can nevertheless be presented to the designated judge in closed hearings and relied upon by her in assessing the security certificate’s reasonableness. [ 8 ] The constitutionality of the IRPA scheme was challenged by Mr. Harkat and other non-citizens named in security certificates.

In Charkaoui I , this Court found that the IRPA scheme deprived named persons of their life, liberty, and security of the person in a manner that was not in accordance with principles of fundamental justice, contrary to s. 7 of the Charter . It found that the IRPA scheme precluded the judge from making a decision based on all the relevant facts and law, because it did not provide for representation of the named person in the closed portion of the proceedings.

It also held that the IRPA scheme violated the principle that a person must have the ability to know and meet the case against him, because there was not full disclosure of the government’s case to the named person or any substantial substitute for full disclosure. [ 9 ] The Court concluded that these breaches could not be justified under s. 1 of the Charter , because the IRPA scheme did not minimally impair the named person’s rights. Other types of closed proceedings, both in Canada and abroad, accomplished the goal of protecting confidential national security information less intrusively.

For example, in the United Kingdom, special advocates were appointed to receive disclosure on an appellant’s behalf and to defend his or her interests in closed hearings before the Special Immigration Appeals Commission. These special advocates were bound not to reveal confidential information to anyone or (subject to narrow exceptions) to communicate with the appellant.

While that system was not without its drawbacks, this Court concluded that, “without compromising security, it better protects the named person’s s. 7 interests”: Charkaoui I , at para. 86. [ 10 ] In response to this Court’s ruling, Parliament made several amendments to the IRPA scheme: 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; the amended IRPA scheme is reproduced in the Appendix to these reasons.

In particular, it created a role for special advocates, who protect the interests of the named person in closed hearings after having received disclosure of the entire record. B. The Proceedings

[ 11 ] In 2002, the Solicitor General of Canada and the Minister of Citizenship and Immigration issued a first security certificate declaring Mr. Harkat inadmissible to Canada on national security grounds. After the successful constitutional challenge and the amendment of the IRPA scheme, the ministers issued a second security certificate against Mr. Harkat and commenced new proceedings before the Federal Court. [ 12 ] Disclosure issues arose during the proceedings with respect to the individuals (the “human sources”) who secretly provided information regarding Mr.

Harkat to the Canadian Security Intelligence Service (“CSIS”). The special advocates sought to obtain disclosure of the identity of the CSIS human sources, as well as permission to interview and to cross-examine them in a closed hearing. Noël J. rejected this request.

He reasoned that the common law police informer privilege, which is a rule against the disclosure of any information that might identify a police informer, should be extended to cover CSIS human sources: 2009 FC 204 , [2009] 4 F.C.R. 370. [ 13 ] At a later point during the disclosure process, it was discovered that the judge and the special advocates had been provided with an incomplete and misleading document regarding one of the CSIS human sources. The document provided to Mr.

Harkat’s special advocates failed to disclose that a 2002 polygraph test conducted on the relevant source initially revealed him or her to be untruthful. As a remedy, Noël J. ordered the disclosure of unredacted human source files to the special advocates: 2009 FC 553 , 345 F.T.R. 143; 2009 FC 1050 , [2010] 4 F.C.R. 149. [ 14 ] The special advocates also sought to compel the ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom Mr. Harkat was claimed to have associated.

They were ultimately dissatisfied with the efforts undertaken by the ministers and sought a stay of proceedings. Noël J. rejected this request, finding that the ministers took reasonable steps to get updated information from foreign intelligence agencies: 2010 FC 1243 , 380 F.T.R. 255, at Annex “A”. [ 15 ] Mr.

Harkat also sought to have the summaries of intercepted conversations excluded from the evidence on the ground that the original recordings and notes of these conversations, in which he allegedly participated or in which he was allegedly a subject of conversation, were destroyed pursuant to CSIS policy OPS-217. Alternatively, he sought a stay of proceedings in consideration of a number of breaches. Noël J. found that Mr. Harkat suffered no prejudice from the destruction of those original operational materials: 2010 FC 1243 .

He reasoned that the summaries of the conversations were prepared in a way that ensured their accuracy, and that they were corroborated by the overall narrative about Mr. Harkat which emerged during the hearings. Consequently, he refused to exclude them from the evidence against Mr. Harkat. [ 16 ] Finally, Mr. Harkat challenged the constitutionality of the amended IRPA scheme. Noël J. found the regime to be constitutional: 2010 FC 1242 , [2012] 3 F.C.R. 432. In his view, the special advocates provided a substantial substitute for full disclosure to Mr.

Harkat and vigorously defended his interests during the closed portion of the proceedings. [ 17 ] After consideration of evidence tendered in both public and closed hearings, Noël J. came to the conclusion that the certificate declaring Mr. Harkat inadmissible to Canada was reasonable: 2010 FC 1241 , [2012] 3 F.C.R. 251. He made adverse findings of credibility against Mr. Harkat and found that the evidence provided reasonable grounds to believe that Mr. Harkat had been involved with terrorist organizations. He held that Mr.

Harkat’s behaviour and lies were consistent with the theory that he had come to Canada as a “sleeper” agent for terrorist organizations. [ 18 ] Mr. Harkat appealed Noël J.’s conclusions. The Federal Court of Appeal ( per Létourneau J.A.) allowed the appeal in part: 2012 FCA 122 , [2012] 3 F.C.R. 635. It agreed with Noël J.’s conclusion that the amended IRPA scheme is constitutional. However, it found that the identity of CSIS human sources is not protected by privilege. It also excluded from the evidence the summaries of intercepted conversations to which Mr. Harkat had not been privy.

It remitted the matter to Noël J. for redetermination on the basis of what remained of the record after the exclusion of the summaries. II. Issues [ 19 ] The ministers appeal to this Court, seeking the reinstatement of Noël J.’s conclusion that the security certificate was reasonable. They also ask for recognition of the CSIS human source privilege. [ 20 ] Mr. Harkat cross-appeals. He asks this Court to find the amended IRPA scheme unconstitutional.

Alternatively, he seeks a new reasonableness hearing before a new designated judge, the exclusion of the summaries of all the intercepted conversations for which the original CSIS operational materials were destroyed, and permission for his special advocates to interview and cross- examine the human sources. He also takes issue with Noël J.’s weighing of “open source” evidence (such as books on terrorism and publications in political science periodicals), which led him to conclude that the individuals with whom Mr.

Harkat associated were members of terrorist organizations. [ 21 ] In addition, the special advocates contest Noël J.’s refusal to order a stay of proceedings. They contend that the ministers breached their duties of candour and utmost good faith, and that the proceedings did not allow them to meaningfully test the case brought against Mr. Harkat. [ 22 ] This appeal raises the following issues: A. Does the IRPA scheme violate the Charter ? B. Are CSIS human sources covered by privilege and can they be cross-examined? C. Did the designated judge err in refusing to exclude the summaries of intercepted conversations?

D. Did the ministers breach their duties of candour and utmost good faith? E. Were the proceedings against Mr. Harkat fair?

F. Did the designated judge err in concluding that the security certificate was reasonable? III. Analysis Preliminary Comment [23] At the request of the ministers, this Court conducted two distinct hearings on this appeal. One was open to thepublic, while the second was held behind closed doors.

Having heard the confidential submissions, it is my view that it was unnecessaryto conduct a portion of the appeal hearing behind closed doors. [24] The open court principle is “a hallmark of a democratic society and applies to all judicial proceedings”: VancouverSun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, at para. 23; see also D. M. Paciocco, “When Open Courts Meet Closed Government”(2005), 29 S.C.L.R. (2d) 385, at pp. 391-95; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), (SCC), [1996] 3 S.C.R. 480, at para. 20. “National security does not negate the open court principle”: C.

Forcese, National Security Law:Canadian Practice in International Perspective (2008), at p. 402. The Supreme Court of the United Kingdom recently commentedunfavourably on a hearing that it held behind closed doors at the request of the government, which had raised national security concerns:Bank Mellat v. H. M. Treasury, [2013] UKSC 38, [2013] 4 All E.R. 495, at para. 60, per Lord Neuberger P.S.C. It noted that closedevidence is factual in nature, whereas the points debated before appellate courts are essentially legal: ibid.

Consequently, the SupremeCourt found that closed hearings before it would rarely, if ever, be necessary for the proper disposition of an appeal. [25] The issues in this appeal do not turn on confidential information and could have been debated fully in public withoutany serious risk of disclosure, supplemented where necessary by brief closed written submissions and by the closed record.

The specialadvocates could have been given judicial permission to make public submissions, so long as they refrained from disclosing confidentialinformation: see s. 85.4(2) and (3) of the Immigration and Refugee Protection Act (“IRPA”). [26] The content of the closed hearing overlapped significantly with the open hearing and did not assist this Court indeciding the issues before it. It served only to foster an appearance of opacity of these proceedings, which runs contrary to thefundamental principles of transparency and accountability. [27] I now turn to the issues on appeal. A.

Does the IRPA Scheme Violate the Charter? [28] Mr. Harkat and his special advocates contend that the IRPA scheme fails to provide a fair process to the namedperson, as required by s. 7 of the Charter. They argue that the regime is unconstitutional because it provides insufficient disclosure to thenamed person, does not allow the special advocates to communicate freely with the named person, and allows for the admission ofhearsay evidence. [29] After providing a brief overview of the IRPA scheme, I will address in turn Mr.

Harkat’s rights under s. 7 of theCharter, the principles that guide the scheme, and the scheme’s alleged defects.

(1) Overview of the IRPA Scheme (

a) Commencement of Proceedings [30] A security certificate may be issued by the ministers for the removal from Canada of a non-citizen (whether apermanent resident or a foreign national) who is inadmissible on security grounds. The grounds for inadmissibility include engaging interrorism, being a danger to the security of Canada, engaging in acts of violence that would or might endanger the lives or safety ofpersons in Canada, or being a member of an organization that engages in terrorism: s. 34, IRPA.

The ministers must have reasonablegrounds to believe that the facts giving rise to inadmissibility have occurred, are occurring, or may occur: s. 33, IRPA. [31] As a practical matter, the process commences when CSIS presents a Security Intelligence Report (“SIR”) to theministers. The SIR sets out in detail the allegations and evidence grounding inadmissibility. If the ministers conclude that the allegationsin the SIR are reasonably grounded, they issue a security certificate. [32] Once the certificate is issued, the ministers must refer it to the Federal Court: s. 77(1), IRPA.

The Federal Courtjudge who is designated to hear the case “shall determine whether the certificate is reasonable and shall quash the certificate if he or shedetermines that it is not”: s. 78, IRPA. If the designated judge deems the certificate to be reasonable, the named person is inadmissibleand the certificate becomes a removal order in force: s. 80, IRPA. The named person may be arrested and detained for the duration of theproceedings before the Federal Court: s. 81, IRPA. (

b) The Disclosure of Summaries to the Named Person [33] The named person must be given summaries of the information and evidence which allow him to be reasonablyinformed of the case against him: ss. 77(2) and 83(1)(e), IRPA. The summaries must “not include anything that, in the judge’s opinion,would be injurious to national security or endanger the safety of any person if disclosed”: s. 83(1)(e), IRPA. (

c) Special Advocates [34] The judge must appoint one or more special advocates to protect the interests of the named person in closedhearings: s. 83(1)(b), IRPA. These hearings are held in camera and ex parte, in order to permit the Minister to present information andevidence the public disclosure of which could be injurious to national security or endanger the safety of a person: s. 83(1)(c), IRPA. [35] Special advocates are security-cleared lawyers whose role is to protect the interests of the named person and “to

make up so far as possible for the [named person’s] own exclusion from the evidentiary process”: S. Sedley, “Terrorism and security: back to the future?”, in D. Cole, F. Fabbrini and A. Vedaschi, eds., Secrecy, National Security and the Vindication of Constitutional Law (2013), 13, at p. 16. During the closed hearings, they perform the functions that the named person’s counsel (the “public counsel”) performs in the open hearings.

They do so by challenging the Minister’s claims that information or evidence should not be disclosed, and by testing the relevance, reliability, and sufficiency of the secret evidence: s. 85.1(1) and (2) , IRPA . They are active participants in the closed hearings. They may make submissions and cross-examine witnesses who appear in those hearings: s. 85.2 (

a) and ( b ), IRPA . The IRPA scheme also provides that the special advocates may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests” of the named person: s. 85.2( c ), IRPA . [ 36 ] No solicitor-client relationship exists between the special advocates and the named person: s. 85.1(3) , IRPA . However, solicitor-client privilege is deemed to apply to exchanges between the special advocates and the named person, provided that those exchanges would attract solicitor-client privilege at common law: s. 85.1(4) , IRPA .

As Lutfy C.J. put it, “[a]s between special advocates and named persons, Division 9 protects information and not relationships. . . . The information that passes between them, absent the solicitor and client relationship, is deemed to be protected”: Almrei (Re) , 2008 FC 1216 , [2009] 3 F.C.R. 497, at paras. 56-57 . [ 37 ] Strict communication rules apply to special advocates, in order to prevent the inadvertent disclosure of sensitive information.

After the special advocates are provided with the confidential information and evidence, they “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”: s. 85.4(2) , IRPA . Read plainly, “this prohibition covers all information about the proceeding from both public and private sessions, including any testimony given in the absence of the public and the named person and their counsel”: Almrei , at para. 16 .

By contrast, any other person — such as the ministers’ counsel or the court personnel in attendance at closed hearings — is subject to significantly fewer restrictions on communication. Other persons must refrain from communicating about the proceedings only (

i) if they have had a court-authorized communication with the special advocates and the judge has specifically prohibited them from communicating with anyone else about the proceeding, or (ii) if the communication would disclose the content of a closed hearing: ss. 85.4(3) , 85.5 (

a) and ( b ), IRPA . (

d) Admissibility of Evidence [ 38 ] The usual rules of evidence do not apply to the proceedings. Instead, “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”: s. 83(1) ( h ), IRPA . [ 39 ] The IRPA scheme provides that the judge’s decision can be based on information or evidence that is not disclosed in

summary form to the named person: s. 83(1)( i ). It does not specify expressly whether a decision can be based in whole, or only in part, on information and evidence that is not disclosed to the named person.

(2) The

Section 7 Charter Right to a Fair Process [ 40 ] In Charkaoui I , this Court found that the IRPA scheme engages significant life, liberty, and security of the person interests: paras. 12-16. Laws that interfere with these interests must conform to the principles of fundamental justice. If they fail to do so, they breach s. 7 of the Charter and fall to be justified under s. 1 of the Charter . [ 41 ] Pursuant to the principles of fundamental justice, a named person must be provided with a fair process: Charkaoui I , at paras. 19-20.

At issue in the present appeal are two interrelated aspects of the right to a fair process: the right to know and meet the case, and the right to have a decision made by the judge on the facts and the law. The named person must “be informed of the case against him or her, and be permitted to respond to that case”: Charkaoui I , at para. 53.

Correlatively, the named person’s knowledge of the case and participation in the process must be sufficient to result in the designated judge being “exposed to the whole factual picture” of the case and having the ability to apply the relevant law to those facts: ibid. , at para. 51. [ 42 ] This said, the assessment of whether a process is fair must take into account the legitimate need to protect information and evidence that is critical to national security. As I wrote in Charkaoui I , “[i]nformation may be obtained from other countries or from informers on condition that it not be disclosed.

Or it may simply be so critical that it cannot be disclosed without risking public security”: para. 61. [ 43 ] Full disclosure of information and evidence to the named person may be impossible. However, the basic requirements of procedural justice must be met “in an alternative fashion appropriate to the context, having regard to the government’s objective and the interests of the person affected”: Charkaoui I , at para. 63. The alternative proceedings must constitute a substantial substitute to full disclosure.

Procedural fairness does not require a perfect process — there is necessarily some give and take inherent in fashioning a process that accommodates national security concerns: Ruby v. Canada (Solicitor General) , 2002 SCC 75 , [2002] 4 S.C.R. 3, at para. 46 . [ 44 ] The overarching question, therefore, is whether the amended IRPA scheme provides a named person with a fair process, taking into account the imperative of protecting confidential national security information.

(3) The Guiding Principles of the IRPA Scheme [ 45 ] The alleged defects in the IRPA scheme must be assessed in light of the scheme’s overall design. Two central principles guide the scheme. [ 46 ] First, the designated judge is intended to play a gatekeeper role.

The judge is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers’ finding of inadmissibility, but also that the overall process is fair: “. . . in a special advocate system, an unusual burden will continue to fall on judges to respond to the absence of the named person by pressing the government side more vigorously than might otherwise be the case” (C. Forcese and L. Waldman, “Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of ‘Special Advocates’ in National Security

Proceedings” (2007) (online), at p. 60). Indeed, the IRPA scheme expressly requires the judge to take into account “considerations of fairness and natural justice” when conducting the proceedings: s. 83(1) ( a ), IRPA . The designated judge must take an interventionist approach, while stopping short of assuming an inquisitorial role. [ 47 ] Second, participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings.

With respect to the confidential portion of the case against the named person, the special advocates must be in a position to act as vigorously and effectively as the named person himself would act in a public proceeding. Indeed, Parliament added special advocates as a feature of the IRPA scheme in order to bring it into compliance with the substantive requirements of s. 7 of the Charter , as articulated in Charkaoui I . Whether the scheme allows for this intention to become a reality is the central constitutional issue in this appeal, to which I now turn.

(4) The Alleged Shortfalls of the IRPA Scheme [ 48 ] In essence, Mr. Harkat alleges that the disclosure of public summaries and the representation of the interests of the named person by special advocates do not suffice to bring the IRPA scheme into compliance with the requirements of s. 7 of the Charter . I will address each of the alleged defects of the scheme in turn. (

a) Does the Scheme Provide the Named Person With Sufficient Disclosure? [ 49 ] Mr. Harkat contends that the public summaries of the closed record are too vague and general. In his view, they do not allow a named person to know and meet the case against him or her. He argues that the essence of the right to know and meet a case is the ability to meet detail with detail.

He also contends that the IRPA scheme takes too categorical an approach to disclosure: a named person will never obtain disclosure of information which would be injurious to national security or to the safety of any person, regardless of the importance of disclosure to the named person’s case. A less rights-impairing alternative would be a balancing approach such as the one found in s. 38.06(2) of the Canada Evidence Act , R.S.C. 1985, c.

C-5 (“ CEA ”), which permits the public interest in non-disclosure to be balanced against the public interest in disclosure. [ 50 ] In my view, the IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant. I base this conclusion on the designated judge’s statutory duty to ensure that the named person is reasonably informed of the Minister’s case throughout the proceedings. (

i) The IRPA Scheme Requires an Incompressible Minimum Amount of Disclosure to the Named Person [ 51 ] At first blush, the provisions of the IRPA scheme appear to give precedence to confidentiality of information over the named person’s right to know and meet the case. Section 83(1)(

e) provides that, 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 ; Thus, the content of the summaries must be tailored to satisfy the overriding proviso that no information or evidence injurious to national security or to the safety of any person may be disclosed. [ 52 ] The IRPA scheme also provides, at s. 83(1) ( i ), that the judge may base his decision on information or evidence of which the named person has not been informed in

summary form: “[T]he 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 . . .”. [ 53 ] The combination of ss. 83(1)(

e) and 83(1)(

i) could conceivably lead to a situation where the judge makes a decision on the reasonableness of the security certificate despite the fact that the named person has only received severely truncated disclosure. Noël J. even contemplated a scenario where the named person receives virtually no disclosure: “There may come a time when the only evidence to justify inadmissibility on security ground originates from a very sensitive source, and that the disclosure of such evidence, even through a

summary, would inevitably disclose the source” ( 2010 FC 1242 , at para. 59 ). He nevertheless found the disclosure provisions of the IRPA scheme to be constitutional. [ 54 ] In my view, Noël J. erred in interpreting the IRPA scheme in a manner that allows for that scenario. Charkaoui I makes clear that there is an incompressible minimum amount of disclosure that the named person must receive in order for the scheme to comply with s. 7 of the Charter .

He or she must receive sufficient disclosure to know and meet the case against him or her. [ 55 ] Parliament amended the IRPA scheme with the intent of making it compliant with the s. 7 requirements expounded in Charkaoui I , and it should be interpreted in light of this intention: R. v. Ahmad , 2011 SCC 6 , [2011] 1 S.C.R. 110, at paras. 28-29 .

The IRPA scheme’s requirement that the named person be “reasonably informed” (“ suffisamment informé ”) of the Minister’s case should be read as a recognition that the named person must receive an incompressible minimum amount of disclosure. [ 56 ] Under the IRPA scheme, a named person is “reasonably informed” if he has personally received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates which will allow them to challenge the information and evidence relied upon by the Minister in the closed hearings.

Indeed, the named person’s ability to answer the Minister’s case hinges on the effectiveness of the special advocates, which in turn depends on the special advocates being provided with meaningful guidance and information. As the House of Lords of the United Kingdom put it in referring to disclosure under the British special advocates regime, the named person must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations. . . .

Where . . . the open material consists purely of general assertions and the case . . . is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be.

( Secretary of State for the Home Department v. A.F. (No. 3) , [2009] UKHL 28, [2009] 3 All E.R. 643, at para. 59 , per Lord Phillips of Worth Matravers) I would add that the named person need not only be given sufficient information about the allegations against him, but also about the evidence on the record. [ 57 ] The level of disclosure required for a named person to be reasonably informed is case-specific, depending on the allegations and evidence against the named person. Ultimately, the judge is the arbiter of whether this standard has been met.

At the very least, the named person must know the essence of the information and evidence supporting the allegations. This excludes the scenario where the named person receives no disclosure whatsoever of essential information or evidence. [ 58 ] The IRPA scheme is silent as to what happens if there is an irreconcilable tension between the requirement that the named person be “reasonably informed”, on the one hand, and the imperative that sensitive information not be disclosed, on the other. The IRPA scheme does not provide that the “reasonably informed” standard can be compromised.

But nor does it provide that sensitive information can be disclosed where this is absolutely necessary in order for the “reasonably informed” standard to be met. [ 59 ] In my view, the necessary outcome of situations where there is an irreconcilable tension is that the Minister must withdraw the information or evidence whose non-disclosure prevents the named person from being reasonably informed.

In some cases, this may effectively compel the Minister to put an end to the proceedings. [ 60 ] To hold that the Minister can rely on essential information and evidence of which the named person cannot be reasonably informed would force the judge to violate the responsibility expressly placed on him by the statute, i.e. his duty to ensure that the named person remain reasonably informed throughout the proceedings. It cannot have been Parliament’s intent to design a scheme in which the judge is required to violate the responsibilities placed upon him.

Consequently, the IRPA scheme must be interpreted as precluding the Minister from bringing a case in respect of which the named person cannot be kept reasonably informed. The scheme mandates that the named person remain reasonably informed — i.e. that he be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates — throughout the proceedings. If the named person is not reasonably informed, the proceedings will not have been in compliance with the IRPA scheme and the judge cannot confirm the certificate’s reasonableness.

In such a case, the judge must quash the certificate, pursuant to s. 78 of the IRPA . (ii) Only Information or Evidence That Raises a Serious Risk Must Be Withheld [ 61 ] Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person.

The judge must ensure throughout the proceedings that the Minister does not cast too wide a net with his claims of confidentiality. [ 62 ] While the IRPA scheme provides that closed hearings must be held when the disclosure of information could be injurious ( s. 83(1) ( c ), IRPA ), it mandates the withholding of information from public summaries only if its disclosure would , in the judge’s opinion , be injurious (s. 83(1)( e ), IRPA ).

The judge must err on the side of caution in ordering closed hearings during which he can ascertain the validity of the Minister’s position with respect to the sensitivity of given information or evidence.

However, once the judge has heard the parties, he must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld from the named person. “It is the Ministers who bear the burden of establishing that disclosure not only could but would be injurious to national security, or endanger the safety of any person”: Jaballah, Re , 2009 FC 279 , 340 F.T.R. 43, at para. 9 , per Dawson J. (emphasis added). [ 63 ] The judge must be vigilant and skeptical with respect to the Minister’s claims of confidentiality.

Courts have commented on the government’s tendency to exaggerate claims of national security confidentiality: Canada (Attorney General) v. Almalki , 2010 FC 1106 , [2012] 2 F.C.R. 508, at para. 108 ; Khadr v. Canada (Attorney General) , 2008 FC 549 , 329 F.T.R. 80, at paras. 73-77 and 98 ; see generally C. Forcese, “Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” (2009), 15:5 IRPP Choices 3 .

As Justice O’Connor commented in his report on the Arar inquiry, overclaiming exacerbates the transparency and procedural fairness problems that inevitably accompany any proceeding that can not be fully open because of [national security confidentiality] concerns.

It also promotes public suspicion and cynicism about legitimate claims by the Government of national security confidentiality. (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006), at p. 302) [ 64 ] The judge is the gatekeeper against this type of overclaiming, which undermines the IRPA scheme’s fragile equilibrium.

Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter . (iii) The Absence of a Balancing Approach Does Not Make the Scheme Unconstitutional [ 65 ] In addition, Mr. Harkat argues that the IRPA scheme’s approach to disclosure is unconstitutional because it fails to provide for a balancing of countervailing interests.

In his view, s. 7 of the Charter requires the adoption of an approach similar to the one found in s. 38.06(2) of the CEA , which allows the judge to order disclosure of national security information if “the public interest in disclosure outweighs in importance the public interest in non-disclosure”. [ 66 ] I would reject this contention.

Section 7 of the Charter does not require a balancing approach to disclosure. Rather, it

requires a fair process. “There is no free-standing principle of fundamental justice requiring a proper balancing of interests in general, orrequiring the balancing of interests in decisions about disclosure”: H. Stewart, Fundamental Justice:

Section 7 of the Canadian Charterof Rights and Freedoms (2012), at p. 229. Parliament’s choice to adopt a categorical prohibition against disclosure of sensitiveinformation, as opposed to a balancing approach, does not as such constitute a breach of the right to a fair process. (

b) Are the Special Advocates a “Substantial Substitute” to Participation by the Named Person? [67] As discussed, the named person and his public counsel do not have access to the closed record, nor can theyparticipate in the closed hearings. Parliament added the role of special advocates to the IRPA scheme so that they could serve as a proxyfor the named person in the closed portion of the proceedings. Mr. Harkat argues that the restrictions on the special advocates’ ability tocommunicate with the named person prevent them from effectively protecting the named person’s interests.

Specifically, he claims thatcommunications between the named person and the special advocates should not be subject to restrictions. He also contends that thespecial advocates will be unable to seek judicial authorization without breaching solicitor-client privilege.

As a consequence, in his view,the addition of special advocates to the regime fails to address the concerns voiced by this Court in Charkaoui I. [68] The communications restrictions imposed on special advocates are significant, requiring judicial authorization forany communication regarding the proceedings between the special advocates and the named person or a third party, after the specialadvocates have received confidential materials. However, they do not render the scheme unconstitutional.

I come to this conclusion forthree reasons. [69] First, the restrictions on communications by the special advocates are not absolute. They can be lifted with judicialauthorization, subject to conditions deemed appropriate by the designated judge: s. 85.4(2), IRPA. While this process is less fluid andefficient than the unfettered communications that prevail between a lawyer and his client, it should be remembered that s. 7 of theCharter does not guarantee a perfect process.

The judicial authorization process gives the designated judge a sufficiently broad discretionto allow all communications that are necessary for the special advocates to perform their duties. [70] The broad discretion conferred by the IRPA scheme averts unfairness that might otherwise result from thecommunications restrictions. The designated judge can ensure that the special advocates function as closely as possible to ordinarycounsel in a public hearing.

The restrictions on communications are designed to avert serious risks of disclosure of information orevidence whose disclosure would be injurious to national security or to the safety of any person. While the IRPA scheme requires thejudge to minimize risks of inadvertent disclosure of information, the judge must also give special advocates significant latitude. Thespecial advocates are competent and security-cleared lawyers, who take their professional and statutory obligations seriously. They havethe ability to distinguish between the public and confidential aspects of their case.

The judge should take a liberal approach inauthorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real —as opposed to a speculative — risk of injurious disclosure.

As much as possible, the special advocates should be allowed to investigatethe case and develop their strategy by communicating with the named person, the named person’s public counsel, and third parties whomay bring relevant insights and information. [71] Second, the named person and his public counsel can send an unlimited amount of one-way communications to thespecial advocates at any time throughout the proceedings. This is significant.

As discussed above, the public summaries provided on anongoing basis to the named person will ensure that he or she is sufficiently informed to provide meaningful guidance and information tothe special advocates.

These summaries should elicit helpful one-way communications from the named person to the special advocates.And these one-way communications may in turn give rise to requests from the special advocates for judicial permission to communicatewith the named person in order to obtain needed clarifications or additional information. [72] Finally, the record does not support the conclusion that the IRPA scheme is unconstitutional on the basis that thespecial advocates must necessarily breach solicitor-client privilege in order to obtain judicial permission to communicate.

As Noël J.noted, “[t]he question of assessing solicitor-client [privilege] remains theoretical in the case at hand. The requests to communicatepresented did not directly or indirectly reveal such information”: 2010 FC 1242, at para. 178. Moreover, the evolving practices of theFederal Court may substantially lessen the tension between judicial authorization and privilege.

For example, the special advocates canminimize the risk of revealing their litigation strategy by seeking to make submissions to the designated judge in the absence of theministers’ lawyers: Almrei, 2008 FC 1216, at para. 65. [73] The issue of how to reconcile the judicial authorization process with solicitor-client privilege should be decided ifand when it arises on the facts of a case: Almrei, 2008 FC 1216, at para. 41; Almrei, Re, 2009 FC 322, 342 F.T.R. 11, at para. 24. It maybe that an exception to solicitor-client privilege could be recognized in such circumstances: Smith v.

Jones, (SCC),[1999] 1 S.C.R. 455, at para. 53, per Cory J.; Almrei, 2008 FC 1216, at paras. 60-62. Or it may instead be necessary to recognize that, incases where judicial authorization cannot be granted without a breach of solicitor-client privilege, the proceedings fail to meet therequirements of s. 7 of the Charter and that a remedy should be granted under s. 24(1) of the Charter. (

c) Does the Admission of Hearsay Evidence Render the Scheme Unconstitutional? [74] The IRPA scheme provides that the usual rules of evidence do not apply to the security certificate proceedings.Rather, any evidence that the judge determines to be “reliable and appropriate” is admissible: s. 83(1)(h), IRPA. It is argued that thisdenies the named person’s s. 7 Charter rights, since the special advocates will be unable to meaningfully test the evidence. [75] It is true that some evidence which is admissible under the IRPA scheme cannot be tested for reliability and accuracyin the usual manner.

For example, the IRPA scheme would allow the admission of a foreign intelligence agency’s report that the judgedeems “reliable and appropriate”, despite the fact that it is hearsay. The special advocates will not have had the opportunity to cross-examine the foreign sources quoted in the report or the operatives who compiled it. [76] While s. 83(1)(

h) of the IRPA may result in the admission of hearsay evidence and deny the special advocates theability to cross-examine sources, it does not violate s. 7 of the Charter. As this Court recognized in R. v. L. (D.O.), (SCC), [1993] 4 S.C.R. 419, “the rules of evidence have not been constitutionalized into unalterable principles of fundamental justice”:

p. 453, per L’Heureux-Dubé J. As discussed, s. 7 guarantees a fundamentally fair process. The rule against hearsay evidence and the right to cross-examine witnesses simply provide a means towards such a process, by screening out unreliable evidence: R. v. Khelawon , 2006 SCC 57 , [2006] 2 S.C.R. 787, at para. 48 . The IRPA scheme achieves this purpose of excluding unreliable evidence by alternative means. It provides the designated judge with broad discretion to exclude evidence that is not “reliable and appropriate”.

This broad discretion allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person.

(5) Concluding Remarks on the Constitutionality of the IRPA Scheme [ 77 ] I have concluded that the impugned provisions of the IRPA scheme are constitutional. They do not violate the named person’s right to know and meet the case against him, or the right to have a decision made on the facts and the law. However, it must be acknowledged that these provisions remain an imperfect substitute for full disclosure in an open court. There may be cases where the nature of the allegations and of the evidence relied upon exacerbate the limitations inherent to the scheme, resulting in an unfair process.

In light of this reality, the designated judge has an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate — including, if necessary, a stay of proceedings. B. Are CSIS Human Sources Covered by Privilege and Can They Be Cross-Examined? [ 78 ] Mr. Harkat’s special advocates ask the Court for an order permitting them to interview and cross-examine the CSIS human sources relied upon by the Minister in the case against him.

Noël J. denied this order, holding that the identity of the sources and information which tends to reveal their identity is covered by a common law “class” privilege. [ 79 ] The Federal Court of Appeal disagreed. It held that, unlike police informers, CSIS human sources are not protected by common law class privilege. However, it did not deal with whether the human sources could be cross-examined. [ 80 ] I agree with the Federal Court of Appeal that CSIS human sources are not protected by a class privilege. However, this is not to say that they are left entirely unprotected by the security certificate regime.

The IRPA scheme provides a mechanism to protect their identity, as I will now discuss.

(1) Does Privilege Attach to CSIS Human Sources? [ 81 ] It is important to note at the outset that the IRPA scheme provides protection for the identity of sources and of information that tends to reveal that identity. Indeed, the starting point under the IRPA scheme is that all information whose disclosure would be injurious to national security or endanger the safety of a person is protected from disclosure to the named person and to the public: s. 83(1)( d ). In most cases, the disclosure of the identity of human sources would both be injurious to national security and endanger the safety of those sources.

Consequently, their identity will generally be protected from disclosure under the IRPA scheme. [ 82 ] As a limited exception to this general principle of non-disclosure, the IRPA scheme provides that special advocates get full disclosure of all the evidence provided by the Minister to the judge: s. 85.4(1). The Minister has no obligation, however, to disclose privileged materials to anyone. [ 83 ] It thus becomes necessary to determine whether the identities of CSIS human sources, and related information, are privileged.

But it is important to bear in mind that even if they are not privileged, the judge under the IRPA scheme has the duty to prevent disclosure to the public and to the named person of this information if it would be injurious to national security or the safety of the sources.

The information will thus generally remain within the confines of the closed circle formed by the designated judge, the special advocates — who, it bears repeating, are security-cleared lawyers — and the Minister’s lawyers. [ 84 ] Against this background, I come to the question: Are the identities of CSIS human sources and information that might reveal their identity protected by common law privilege? [ 85 ] It is argued that police informer privilege attaches to CSIS human sources. I agree with the Federal Court of Appeal that it does not.

Traditional police work involving informers, on the one hand, and the collection of security intelligence and information, on the other, are two different things. Indeed, Parliament created CSIS in recognition of this emerging distinction: Charkaoui v. Canada (Citizenship and Immigration) , 2008 SCC 38 , [2008] 2 S.C.R. 326 (“ Charkaoui II ”), at paras. 21-22 . Courts developed police informer privilege at a time when the police investigated crimes locally and collected evidence mainly for use in criminal trials.

By contrast, the intelligence gathering conducted by CSIS takes place on a global scale and is geared towards prospectively preventing risks: K. Roach, “The eroding distinction between intelligence and evidence in terrorism investigations”, in N. McGarrity, A. Lynch and G. Williams, eds., Counter-Ter

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