2012 FC 474, 2012 FC 474

[2014] 1 F.C.R. 21 T-1645-10 2012 FC 474 Attorney General of Canada ( Applicant ) v. Hani Al Telbani ( Respondent ) and The Security Intelligence Review Committee ( Intervener ) Indexed as: Canada (Citizenship and Immigration) v. Telbani Federal Court, Noël J.—Ottawa, January 31 and April 23, 2012.

Security Intelligence — Judicial review of decision by Security Intelligence Review Committee (SIRC) determining having jurisdiction to decide questions of law related to Canadian Charter of Rights and Freedoms — Canadian Security Intelligence Service (CSIS) officers allegedly violating respondent’s fundamental Charter rights — Respondent filing complaint to SIRC, demanding reparations — Whether SIRC court of competent jurisdiction to investigate allegations that respondent’s constitutional rights violated within meaning of Charter s. 24(1) , Constitution Act, 1982, s. 52(1) — SIRC having implied jurisdiction to decide questions of law, including Charter — SIRC mandated to ensure CSIS operating within Canadian law while ensuring Canadian security, individual rights protected — Difficult for SIRC to fulfil mandate without taking existing laws into account — Failing to recognize SIRC’s implied power rendering investigative role obsolete — Interaction with other elements of administrative system, adjudicative nature of SIRC supporting implied jurisdiction — SIRC having many attributes of court of law —Parliament not intending to exclude application of Charter from functions of SIRC — SIRC ensuring uniformity in application of law including Charter — SIRC having jurisdiction to grant remedy sought by respondent — Application dismissed.

Constitutional Law — Charter of Rights — Security Intelligence Review Committee (SIRC) determining having jurisdiction to decide questions of law related to Charter — Canadian Security Intelligence Service (CSIS) officers allegedly violating respondent’s fundamental Charter rights — Whether SIRC court of competent jurisdiction to investigate allegations that respondent’s constitutional rights violated within meaning of Charter s. 24(1) , Constitution Act, 1982, s. 52(1) — SIRC having implied jurisdiction to decide questions of law, including Charter — Parliament not intending to exclude application of Charter from functions of SIRC — SIRC ensuring uniformity in application of law including Charter.

This was an application for judicial review of a decision by the Security Intelligence Review Committee (SIRC) determining that it has jurisdiction to hear arguments and decide questions of law related to the Canadian Charter of Rights and Freedoms when it is investigating a complaint against the activities of the Canadian Security Intelligence Service (CSIS). The respondent alleged that, by their behaviour and actions towards him, CSIS officers had violated his fundamental rights guaranteed under sections 7 , 9 and 10 of the Charter .

A report by CSIS was allegedly drafted in order to add the respondent’s name to a Specified Persons List, or a “no-fly list”. The respondent filed a complaint with SIRC in which he demanded an investigation to establish CSIS’s responsibility, the withdrawal of damaging reports, the removal of his name from the no-fly list, and compensation for damages. CSIS objected to SIRC’s jurisdiction to deal with Charter arguments. The parties then made a joint application to have SIRC determine the issue of jurisdiction before proceeding with the investigation.

SIRC felt that it was crucial that it be invested with the authority to apply the Charter in order to fulfill the mandate conferred upon it by Parliament. It determined, inter alia , that it has implied jurisdiction to decide questions of law arising under a legislative provision, and that Parliament wanted SIRC to be able to grant the kinds of remedies sought in the respondent’s complaint.

At issue was whether SIRC is a court of competent jurisdiction to investigate the respondent’s allegations that his constitutional rights guaranteed by the Charter were violated, both within the meaning of subsection 24(1) of the Charter and subsection 52(1) of the Constitution Act, 1982 . Held , the application should be dismissed. SIRC has implied jurisdiction to decide questions of law, including those related to the Charter . The factors developed by the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v.

Laseur ( Martin ) were applied to the specific circumstances of the present case in order to examine how the Canadian Security Intelligence Service Act (CSISA) implicitly assigns SIRC the power to decide questions of law. SIRC’s mandate is to scrutinize CSIS activities for the purpose of ensuring that it operates in accordance with Canadian law, with the CSISA , and with its regulations and policies, while ensuring that Canada’s security is protected and that individual rights guaranteed under Canadian law are also protected.

In order to be able to carry out this mandate, SIRC must review CSIS’s work in light of Canadian laws. Consequently, it is called upon to apply these laws. In particular, the investigative function of

section 41 of the CSISA includes not only a duty to decide questions of fact, but also to take into account the applicable law according to the particular circumstances of the complaint under review. Failure to recognize that SIRC’s legislative mandate carries with it an implied power to decide questions of law would effectively consign SIRC’s investigative role to obsolescence. It would make no sense if SIRC was reduced to making findings of fact without being able to measure those findings against a legal backdrop. SIRC’s interaction with other elements of the administrative system also supports the theory that Parliament granted SIRC an implied

jurisdiction to determine questions of law, including those based on Charter issues. The adjudicative nature factor used in Martin weighs in favour of recognizing that SIRC has an implied jurisdiction to decide questionsof law in exercising its duty of investigating complaints about CSIS activities. In carrying out its investigative duties and functions withrespect to a complaint about CSIS activities, SIRC has many of the normal attributes of a court of law, such as the power to makerecommendations, which are similar to a declaratory judgment.

For both SIRC and a court of law, the process to be followed whennational security is at stake is to ensure that principles of fundamental justice are respected according to the circumstances of the case,while ensuring that confidential information is not disclosed. It does not appear anywhere in the legislation that Parliament intended to exclude the application of the Charter from the functions ofSIRC, including that of investigation.

Having to investigate CSIS’s activities through its functions of review, examination andinvestigation, SIRC must ensure uniformity in the application of the law including the Charter. Finally, as to SIRC’s jurisdiction to grant the particular remedy sought under the CSISA, SIRC’s mandate leaves no doubt that it shouldinvestigate the present allegations with respect to CSIS’s activities. SIRC’s structure gives it an ideal mechanism to conductinvestigations without putting national security at risk, and the investigative functions of SIRC allow it to determine the validity ofallegations.

SIRC may therefore grant the particular remedy sought by the respondent, given the relevant statutory scheme. In conclusion, SIRC was created to be an accessible, effective and rapid investigation mechanism. To find that SIRC is not a court ofcompetent jurisdiction to investigate allegations that the constitutional rights of a complainant were violated would significantly limit thismechanism. STATUTES AND REGULATIONS CITED Access to Information Act, R.S.C., 1985, c. A-1, s. 47(1). Canada Evidence Act, R.S.C., 1985, c. C-5, ss. 38 to 38.16 (as enacted by S.C. 2001, c. 41, ss. 43, 141).

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. 7, 9, 10, 24. Canadian Security Intelligence Service Act, R.S.C., 1985, c.

C-23, ss. 2 “threats to the security of Canada” (as am. by S.C. 2001, c. 41, s.89), 6, 10, 12, 13 (as am. by S.C. 1995, c. 5, s. 25), 14 (as am. by S.C. 2001, c. 27, s. 223), 16 (as am. by S.C. 1995, c. 5, s. 25; 2001, c.27, s. 224), 17 (as am. by S.C. 1995, c. 5, s. 25) , 21, 30, 31, 33, 34, 37, 38 (as am. by S.C. 2001, c. 27, s. 225), 39, 40, 41 (as am. by S.C.2003, c. 22, s. 146(E)), 42, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55 (as am. by S.C. 2001, c. 27, s. 226), 56. Canadian Human Rights Act, R.S.C., 1985, c.

H-6, ss. 43 (as am. by R.S.C., 1985 (1st Supp.), c. 31, s. 63), 44 (as am. idem, s. 64; S.C.1998, c. 9, s. 24), 45 (as am. idem, s. 25), 46, 47. Citizenship Act, R.S.C., 1985, c. C-29, ss. 19 (as am. by S.C. 1992, c. 1, s. 144(F); 1997, c. 22, s. 1), 19.1(1) (as enacted idem, s. 2), 20(as am. idem, s. 3). Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Criminal Code, R.S.C., 1985, c. C-46, s. 133 (as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 17). Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s.28). Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 83(1)(c) (as am. by S.C. 2008, c. 3, s. 4). Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31. Privacy Act, R.S.C., 1985, c. P-21. Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2.

Rules of Procedure of the Security Intelligence Review Committee in Relation to its Function under Paragraph 38(

c) of the CanadianSecurity Intelligence Service Act, adopted March 9, 1985, RR. 13, 45, 46, online: <http://www.sirc-csars.gc.ca/cmpplt/rulreg-eng.html>. Security Offences Act, R.S.C., 1985, c. S-7. CASES CITED applied: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765, 320 D.L.R. (4th) 25, 1 Admin. L.R. (5th) 163; Nova Scotia (Workers’ CompensationBoard) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, 217 N.S.R. (2d) 301, 231D.L.R. (4th) 385. distinguished: Cooper v. Canada (Human Rights Commission), (SCC), [1996] 3 S.C.R. 854, (1996), 140 D.L.R. (4th) 193, 40 C.R.R.(2d) 81.

considered: Omary v. Canada (Attorney General), 2010 FC 335, 320 D.L.R. (4th) 546, 366 F.T.R. 138; Canada (Prime Minister) v. Khadr, 2010SCC 3, [2010] 1 S.C.R. 44, 315 D.L.R. (4th) 1, 251 C.C.C. (3d) 435; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5, (1991), 81 D.L.R. (4th) 121, 91 CLLC 14,024; Thomson v. Canada (Deputy Minister ofAgriculture), (SCC), [1992] 1 S.C.R. 385, (1992), 89 D.L.R. (4th) 218, 3 Admin. L.R. (2d) 242; Al Yamani v.

Canada(Solicitor General), (FC), [1996] 1 F.C. 174, (1995), 129 D.L.R. (4th) 226, 32 C.R.R. (2d) 295 (T.D.); Chiarelli v.Canada (Minister of Employment and Immigration), (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289, 2 Admin.L.R. (2d) 125; Thomson v. Canada, (FCA), [1988] 3 F.C. 108, (1988), 50 D.L.R. (4th) 454, 31 Admin. L.R. 14(C.A.); Nourhaghighi v. Canada (Security Intelligence Review Committee), 2005 FC 148, 26 Admin. L.R. (4th) 192, 268 F.T.R. 268;Moumdjian v. Canada (Security Intelligence Review Committee), (FCA), [1999] 4 F.C. 624, (1999), 177 D.L.R. (4th)192, 17 Admin.

L.R. (3d) 185 (C.A.); Mikail v. Canada (Attorney General), 2011 FC 674, [2013] 1 F.C.R. 555, 338 D.L.R. (4th) 364, 37Admin. L.R. (5th) 26; Brar v. Canada (Solicitor General) (1989), 43 Admin. L.R. 44, 30 F.T.R. 284 (F.C.T.D.); R. v. 974649 OntarioInc., 2001 SCC 81, [2001] 3 S.C.R. 575, 206 D.L.R. (4th) 444, 159 C.C.C. (3d) 321; Atwal v. Canada, (FCA), [1988]1 F.C. 107, (1987), 28 Admin. L.R. 92, 36 C.C.C. (3d) 161 (C.A.); Covarrubias v. Canada (Minister of Citizenship and Immigration),2006 FCA 365, [2007] 3 F.C.R. 169, 148 C.R.R. (2d) 45, 56 Imm. L.R. (3d) 178. referred to: R. v.

Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, 425 A.R. 79, 290 D.L.R. (4th) 17; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1S.C.R. 190, 329 N.B.R. (2d) 1, 291 D.L.R. (4th) 577; Zündel v. Canada (Minister of Citizenship and Immigration), (FCA), [1998] 2 F.C. 233, (1997), 154 D.L.R. (4th) 216, 7 Admin. L.R. (3d) 126 (C.A.). AUTHORS CITED Canada. Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police. Third Report: Certain R.C.M.P.Activities and the Question of Governmental Knowledge (1981) (Justice D.C.

McDonald (Chairman)), online: <http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/mcdonald1979-81-eng/mcdonald1979-81-eng.htm>. Canada. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. A New Review Mechanism for theRCMP’s National Security Activities, online: <http://www.sirc-csars.gc.ca/pdfs/cm_arar_rcmpgrc-eng.pdf>. Canada.

Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and MuayyedNureddin: Final Report (Honourable Frank Iacobucci, Q.C., Commissioner), online: <http://epe.lac-bac.gc.ca/100/206/301/pco-bcp/commissions/internal_inquiry/2010-03-09/www.iacobucciinquiry.ca/en/documents/final-report.htm>. Security Intelligence Review Committee. CSIS’s Role in the Matter of Omar Khadr, SIRC Study 2008-05, July 8, 2009, online:<http://www.sirc-csars.gc.ca/opbapb/2008-05/index-eng.html>. Solicitor General Canada.

Government’s Response to the Report of the House of Commons Special Committee on the Review of theCanadian Security Intelligence Service Act and the Security Offences Act. On Course: National Security for the 1990s. Ottawa: Supplyand Services Canada, 1991. APPLICATION for judicial review of a decision by the Security Intelligence Review Committee determining that it has jurisdiction tohear arguments and decide questions of law related to the Canadian Charter of Rights and Freedoms when it is investigating a complaintagainst the activities of the Canadian Security Intelligence Service. Application dismissed.

APPEARANCES Kathia Bustros and Michael Peirce for applicant. No one appearing for respondent. Nadia Effendi for intervener. SOLICITORS OF RECORD Deputy Attorney General of Canada for applicant. Doyon & Associés, Montréal, for respondent. Borden Ladner Gervais LLP, Ottawa, for intervener.

The following is the English version of the reasons for order and order rendered by Noël J.: Introduction [1] This is an application for judicial review of a decision by the Security Intelligence Review Committee (SIRC or Committee),dated September 8, 2010, under the signature of the member, the Honourable Denis Losier (the Member). SIRC determined that when itis investigating a complaint against the activities of the Canadian Security Intelligence Service (CSIS or Service), including thecomplaint made by Mr. Hani Al Telbani (Mr.

Telbani), it has jurisdiction to hear arguments and decide questions of law related to theCanadian 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]] (the Charter). The Committee was granted intervener status to discuss jurisdiction. The respondent

did not submit a written memorandum. He concurs with the Committee’s arguments and decision. [ 2 ] For the purposes of gaining a better understanding of these reasons, an outline of the process that was followed to respond to this application is included below: Outline Paragraph ▪ Introduction 1 ▪ Outline 2 I. Background 4 II.

Summary of decision under review 13 A. Jurisdiction within the legislative mandate of SIRC 14 B. Jurisdiction under

section 52 of the Constitution Act, 1982 17 C. Jurisdiction under

section 24 of the Canadian Charter of Rights and Freedoms 19 III. Issues 20 IV. Applicable standard of review 21 V. Position of the parties 22 VI. The Canadian Security Intelligence Service Act and the role of SIRC 26 A. The Act and the role of SIRC 27

(1) The Canadian Security Intelligence Service 28

(2) The Inspector General 31

(3) The Security Intelligence Review Committee 32 B. A brief review of the case law dealing with SIRC 51 C. The approach to follow according to the case law to determine the issue in this matter 63 VII. Analysis 69 Is SIRC a court of competent jurisdiction with the authority to investigate the respondent’s allegations that his constitutional rights guaranteed by the Charter were violated, both within the meaning of subsection 24(1) of the Charter and subsection 52(1) of the Constitution Act, 1982 ? 69 A. There is no explicit jurisdiction, but is there an implied jurisdiction? 69

(1) In order to fulfill its legislative mandate, SIRC must determine questions of law 79

(2) SIRC’s interaction with other elements of the administrative system is another indication of its implied jurisdiction to determine questions of law 106

(3) SIRC is adjudicative in nature 120

(4) Some practical considerations to discuss 134 B. Parliament did not exclude the Charter from SIRC’s jurisdiction 148 C. SIRC has jurisdiction to grant the particular remedy sought under the CSISA 151 VIII. Conclusion 156 A. Costs 161 ▪ The Order [ 3 ] As a reading of these reasons will show, there is a certain amount of repetition. Taking into account the analysis factors outlined in R. v. Conway , 2010 SCC 22 , [2010] 1 S.C.R. 765 ( Conway ) used to frame the analysis and address the matter at issue, this repetition is necessary, given the analysis grid that follows. I. Background [ 4 ] Mr.

Telbani sent a formal demand to the Director of CSIS on June 19, 2008, regarding the actions of two of the Service’s officers. He alleged that the two officers went to his home, entered his residence without a warrant or permission and acted in a threatening and intimidating manner toward him, in violation of his fundamental rights guaranteed under sections 7 , 9 and 10 of the Charter . A report by CSIS was allegedly drafted and forwarded to the Minister of Transport, Infrastructure and Communities in order to have his name added to a Specified Persons List, namely, a “no-fly list” (the list). [ 5 ] Mr.

Telbani therefore demanded that the Service acknowledge its responsibility and remedy the violations committed by, among other things, withdrawing any damaging reports that may have been written about him, taking the proper measures to have his name removed from the list and making an offer of compensation for moral and material damages endured. [ 6 ] In a letter dated June 27, 2008, the acting Deputy Director of CSIS indicated that Mr. Telbani’s allegations had been reviewed and that it had been determined that no action would be taken. [ 7 ] On July 11, 2008, Mr. Telbani filed a complaint with SIRC, pursuant to

section 41 [as am. by S.C. 2003, c. 22, s. 146 (E)] of the Canadian Security Intelligence Service Act , R.S.C., 1985, c. C-23 (the Act or the CSISA), in which he demanded an investigation to establish and acknowledge CSIS’s responsibility for the treatment described in the formal demand letter, and that SIRC recommend to the Service that they begin the process of providing the remedies demanded therein. [ 8 ] Upon receiving the complaint, SIRC invited the parties to file their written submissions regarding its jurisdiction to investigate. The Service did not avail itself of this opportunity, while Mr. Telbani filed his submissions on September 19, 2008.

[9] On December 10, 2008, SIRC determined that it had jurisdiction to investigate the complaint since it involved the Service’sactivities and it was not trivial, frivolous, vexatious or made in bad faith, in accordance with

section 41 of the Act. [10] On March 23, 2009, during a pre-hearing conference call, CSIS indicated that it objected to SIRC’s jurisdiction to deal withCharter arguments and that it wanted a hearing to address the issue. The Service provided written submissions on this subject on June 12,2009, and Mr. Telbani did likewise on August 3, 2009, and he also withdrew a part of the allegations raised in his complaint. [11] On October 7, 2009, at the start of the hearing of the complaint, SIRC suggested that it hear all of the evidence before decidingwhether it had jurisdiction with respect to the Charter. However, Mr.

Telbani indicated that his complaint was based on the breach of hisconstitutional rights and that if the Committee had no jurisdiction regarding the Charter, he had no other complaint to be heard. Theparties then made a joint application to have the Committee determine the issue of jurisdiction before proceeding with the investigation. [12] SIRC accepted the joint application by the parties and the hearing was adjourned in order to allow the parties to file their writtensubmissions solely on the Committee’s jurisdiction.

Following the filing of these documents, SIRC rendered a decision dated September8, 2010, in which it determined that it did have jurisdiction to investigate the allegations and decide questions of law involving theCharter. That decision is the subject of the present judicial review. II.

Summary of the decision under review [13] In a 20-page decision, tribunal Member Losier begins by summarizing the complaint, the procedures followed and the parties’submissions. He then proceeds with an analysis of SIRC’s jurisdiction by summarizing the two types of remedies available in cases ofCharter violations, namely, those offered under

section 24 of the Charter in cases of unconstitutional actions and those under subsection52(1) of the Constitution Act, 1982 [Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] whereunconstitutional provisions are involved (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paragraphs 59–61). A. Jurisdiction within the legislative mandate of SIRC [14] Member Losier begins by examining Mr.

Telbani’s argument that there is no need to proceed with an analysis on the basis of theremedies sought, as the only issue is whether, within SIRC’s legislative mandate, the Committee had jurisdiction to investigate theService’s alleged actions. In his ensuing reasons, Member Losier expresses the view that the Committee has jurisdiction, within itslegislative mandate, to investigate a complaint that raises a violation of constitutional rights provided under the Charter. [15] He notes that the complaint met the requirements of

section 41 of the Act and that, on completion of an investigation of acomplaint under the same section, the Committee is to provide “a report containing the findings of the investigation and anyrecommendations that [it] considers appropriate” (paragraph 52(1)(

a) of the Act). He also notes that SIRC has the mandate, under section40 of the Act “of ensuring that the activities of the Service are carried out in accordance with this Act, the regulations and directionsissued by the Minister under subsection 6(2) and that the activities do not involve any unreasonable or unnecessary exercise by theService of any of its powers” (SIRC report, at paragraph 35 and see also

section 40 of the Act). He then emphasizes that the directionsissued by the Minister [Minister of Public Safety and Emergency Preparedness] provide that [translation] “[t]he government and peopleof Canada expect … the Service to carry out its duties while respecting the principle of the rule of law and the rights and freedomsguaranteed to Canadians by the [Charter]” (SIRC report, at paragraph 35). The member feels it was crucial that the Committee beinvested with the authority to apply the Charter in order to fulfill the mandate conferred upon it by Parliament.

The opposite wouldrequire the complainants to assert their rights in various different fora, which would go against the directions of the Supreme Court ofCanada (Supreme Court) to the effect that Canadians should be entitled to assert their constitutional rights before the most accessibleforum available, without the need for parallel proceedings before the courts. [16] Lastly, Member Losier concludes this part of the analysis by relying on Omary v.

Canada (Attorney General), 2010 FC 335, 320D.L.R. (4th) 546 (Omary) to state that by allowing the application for judicial review in that case, [translation] “the Federal Courtimplicitly recognized … the Committee’s jurisdiction to determine Charter issues since the complainant’s allegations in this case pertainto the violation of his constitutional rights guaranteed under the Charter” (SIRC report, at paragraph 40). B. Jurisdiction under

section 52 of the Constitution Act, 1982 [17] Member Losier notes that, at first blush, the allegations raised in Mr. Telbani’s complaint imply that only subsection 24(1) of theCharter is at issue, but that since he must determine a jurisdictional issue without an investigation and thus without a factual background,he feels it would also be useful to determine the Committee’s jurisdiction pursuant to

section 52 of the Constitution Act, 1982. [18] He then proceeds with an analysis of jurisdiction as set out in Nova Scotia (Workers’ Compensation Board) v. Martin; NovaScotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504 (Martin). Regarding the first issue, that is, whetherSIRC has explicit or implied jurisdiction to decide questions of law arising under a legislative provision, he finds that in light of thefactors in Martin, the Committee has implied jurisdiction.

First, he is of the view that the mandate given to SIRC requires that it examineand decide questions of law, including those that involve the application of the Charter, in order to effectively carry out its oversight rolewith respect to CSIS. Second, in order to move away from Cooper v. Canada (Human Rights Commission), (SCC),[1996] 3 S.C.R. 854 (Cooper), according to which the Canadian Human Rights Commission (CHRC [or Commission]) did not havejurisdiction to decide questions of constitutional law, he distinguishes the role of the Committee.

Third, he notes that complaints arereviewed before quasi-judicial hearings. Lastly, he feels that the Committee has the capacity to consider questions of law arising under alegislative provision and that CSIS has failed to rebut the presumption that this jurisdiction also applies to the Charter. C. Jurisdiction under

section 24 of the Canadian Charter of Rights and Freedoms [19] Applying the Supreme Court’s approach in Conway, above, at paragraphs 81 and 82, Member Losier first notes that he hadalready determined in his analysis of

section 52 that the Committee had jurisdiction to decide questions of law, including Charter matters,and that there is no indication that Parliament intended to exclude the application of the Charter from his jurisdiction. As to the question

of whether SIRC can grant the particular remedy sought, given the relevant statutory scheme, he draws a parallel with a declaratoryremedy such as that issued in Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 (Khadr), at paragraphs 46–47, andstates that [translation] “the power to make findings and recommendations provided under

section 52 of the [Act] may be characterizedas a remedy that takes into account the particular context in which the Committee exercises its functions” (SIRC report, at paragraph 87).He is therefore of the opinion that the remedies sought in this complaint, that is, that the Committee investigate, identify and recommendto CSIS that it take the necessary measures, where applicable, to remedy the Charter violations, are the kinds of remedies that Parliamentwanted SIRC to be able to grant given its statutory scheme. III.

Issues [20] The issue can be summarized as follows: Is SIRC a court of competent jurisdiction to investigate the respondent’s allegations that his constitutional rights guaranteed by theCharter were violated, both within the meaning of subsection 24(1) of the Charter and subsection 52(1) of the Constitution Act, 1982? IV. Applicable standard of review [21] Given that SIRC’s decision pertains to a question of law and of jurisdiction, the parties agree that the applicable standard ofreview in this case is correctness.

Although this question requires that SIRC interpret its enabling statute, and although the SupremeCourt has indicated that in such cases deference will usually be warranted (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190 (Dunsmuir), at paragraph 54), as we shall see, the analysis established to decide this question requires much more than a simpleanalysis of the CSISA. Moreover, the Supreme Court clearly stated that an administrative tribunal “can expect no curial deference withrespect to constitutional decisions” (Cuddy Chicks Ltd. v.

Ontario (Labour Relations Board), (SCC), [1991] 2 S.C.R. 5(Cuddy Chicks), at page 17) and that its decisions based on the Charter are subject to judicial review on a correctness standard (Martin,above, at paragraph 31). Therefore, it is up to this Court to undertake its own analysis of the question and if it does not agree with thedetermination of the decision maker it will substitute its own view for that of the Committee (Dunsmuir, above, at paragraph 50). V.

Position of the parties [22] The Attorney General contends that SIRC has no jurisdiction to decide questions of law or investigate allegations involving theCharter, or any jurisdiction within the meaning of subsection 24(1) of the Charter, and it cannot declare legislative provisions invalidunder subsection 52(1) of the Constitution Act, 1982.

For its part, SIRC opposes this contention. [23] Addressing the SIRC’s jurisdiction according to the Act, the Attorney General notes that SIRC has no inherent jurisdiction andthat it cannot exceed the mandate conferred upon it by its enabling statute, which does not grant it the authority to decide questions ofconstitutional law, or even questions of general law. In his view, SIRC is an investigative body which plays an advisory role and makesrecommendations, but which exercises no adjudicative function and is not a court of competent jurisdiction. [24] The Attorney General pointed out that in Thomson v.

Canada (Deputy Minister of Agriculture), (SCC), [1992]1 S.C.R. 385 (Thomson), at page 400, Justice Cory made the following comment with regard to recommendations made under

section 42of the Act: “The Committee’s recommendation constitutes a report put forward as something worthy of acceptance. It serves to ensurethe accuracy of the information on which the Deputy Minister makes the decision, and it gives the Deputy Minister a second opinion toconsider. It is no more than that.” The Attorney General also relies on a similar decision in Omary, above, at paragraphs 25, 28 and 33, toassert that there is nothing in the Act to suggest that, after conducting an investigation under

section 41, SIRC would be called upon toapply provisions of the Act or standards drawn from other statutes, including the Charter. As for the obligations and procedural powersconferred upon SIRC under the Act, the Attorney General maintains that they in no way point to any jurisdiction to decide questions oflaw. [25] The Committee acknowledges that its recommendations are non-binding. However, it invokes the investigative and reviewingfunctions granted to it under

section 38 [as am. by S.C. 2001, c. 27, s. 225] of the Act and notes the very broad power to determine itsown procedure conferred upon it under

section 39 of the Act and recognized by this Court in Omary, above, at paragraph 20, as well as inAl Yamani v. Canada (Solicitor General), (FC), [1996] 1 F.C. 174 (T.D.) (Al Yamani), at pages 191–192. Moreimportantly, the Committee maintains that interpreting legislation and making findings of questions of law or of mixed law and fact fallwithin its mandate (Al Yamani, at page 211 and Omary, at paragraphs 17–18). The parties’ other arguments, raised with respect to the testdeveloped by the Supreme Court in Conway, above, will be considered in

section “VII. Analysis” of these reasons. VI. The Canadian Security Intelligence Service Act and the role of SIRC [26] Before proceeding with the analysis of the issue at hand, it is important to have a clear understanding of the CSISA and the roleassigned to SIRC. It would also be helpful to provide an overview of the case law involving SIRC and the case law pertaining to the testestablished by the Supreme Court as well as the criteria to be taken into consideration in the determination of the issue in this matter. A.

The Act and the role of SIRC [27] The overriding concern of the CSISA is protecting national security while safeguarding individual rights. The Act contains threeparts (a fourth part became obsolete following a parliamentary review at the end of the 1980s).

(1) The Canadian Security Intelligence Service [28] The first part of the Act created CSIS, our civilian intelligence agency. Its main functions are collecting information andintelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada (section12), providing security assessments (section 13 [as am. by S.C. 1995, c. 5, s. 25]), advising ministers of the Crown on matters relating tothe security of Canada (section 14 [as am. by S.C. 2001, c. 27, s. 223]) and collecting information relating to foreign states (section 16[as am. by S.C. 1995, c. 5, s. 25; 2001, c. 27, s. 224]).

[29] To carry out these functions, CSIS may enter into arrangements with foreign governments and their police forces, provincialgovernments, police forces in Canada (sections 13 and 17 [as am. by S.C. 1995, c. 5, s. 25]) and obtain warrants (section 21 et seq.).However, such warrants are subject to the statutory requirements set out in

Part II [sections 21 to 28] of the Act under the title “JudicialControl” and warrants are issued by judges designated for that purpose by the Chief Justice of the Federal Court. [30]

Part III [sections 29 to 55] of the Act, entitled “Review”, is comprised of two sections: The first describes the role of theInspector General, who reports to the executive and the second describes the role of SIRC, which reports to the executive, to Parliamentand to the complainant.

(2) Inspector General [31] The Inspector General’s functions are to monitor the compliance by CSIS with its operational policies, to review its operationalactivities and to provide confirmation of the above by submitting certificates (section 30). After receiving a copy of the report of theCSIS Director, the Inspector General will then submit to the Minister a certificate stating the extent to which the Inspector General issatisfied with the report (section 33).

The Inspector General is entitled to have access to any information under the control of the Service,other than a confidence of the Queen’s Privy Council (section 31). I note that SIRC not only has this power as well, but that it is alsoentitled to information under the control of the Inspector General (section 39). As soon as practicable after receiving the CSIS Director’sreport and a certificate of the Inspector General, the Minister shall forward the report and certificate to the Committee (subsection 33(3)).

(3) Security Intelligence Review Committee [32] SIRC is comprised of a Chairman and not less than two and not more than four members from among members of the Queen’sPrivy Council for Canada (who are not members of the Senate or the House of Commons) after consultation by the Prime Minister withthe Leader of the Opposition in the House of Commons and the leader of each party having at least 12 members in that House(subsection 34(1)). Every member of SIRC and every person engaged by it must comply with all security requirements under the Act andmust take an oath of secrecy set out in the

schedule of the CSISA, in the same way as does the Director and employees of CSIS (sections10 and 37). [33] There are three main components to the functions of SIRC: (1) the Committee reviews the performance by CSIS of its duties andfunctions; (2) it arranges for reviews to be conducted, or conducts reviews for the purpose of ensuring that the activities of CSIS do notinvolve any unreasonable or unnecessary exercise of its powers; and (3) it conducts investigations in relation to complaints made againstCSIS, denials of security clearance and reports made pursuant to the Citizenship Act, R.S.C., 1985, c.

C-29 (Citizenship Act) or theCanadian Human Rights Act, R.S.C., 1985, c.

H-6 (Canadian Human Rights Act) (section 38 of the CSISA). [34] SIRC’s reviewing functions cover all of the duties and functions of CSIS: it has to review reports of the Director of the Serviceand certificates of the Inspector General, directions issued by the Minister, arrangements entered into with governments and policeforces, reports to the Minister regarding purported unlawful actions of employees and CSIS regulations; it must review applications byministers for warrants in relation to the conduct of the international affairs of Canada; and it must compile and analyse statistics on theoperational activities of the Service (paragraph 38(

a) and its subparagraphs). [35] As previously noted, the investigative functions of SIRC are rooted not only in the CSISA, but also in the Citizenship Act and theCanadian Human Rights Act. There is a common thread that justifies the Committee’s involvement under these three Acts: the work ofCSIS is involved.

First, SIRC will investigate any complaint filed concerning CSIS activities or with respect to an individual beingdenied a security clearance required for employment in the public service or any person who has been denied a contract to provide goodsor services to the Government of Canada by reason only of the denial of security clearance (sections 41 and 42).

Second, SIRC willinvestigate where the Minister of Citizenship and Immigration makes a report to the Committee advising it that he or she is of theopinion that a person should not be granted citizenship because there are reasonable grounds to believe that the person will engage inactivity that constitutes a threat to the security of Canada, or that is part of a pattern of organized criminal activity punishable under anyAct of Parliament by way of indictment (section 19 [as am. by S.C. 1992, c. 1, s. 144(F); 1997, c. 22, s. 1] of the Citizenship Act).

Lastly,the Canadian Human Rights Commission may also refer a complaint to SIRC if it receives written notice from a minister of the Crowninforming it that the practice to which the complaint relates, allegedly committed by the person concerned, was based on considerationsrelating to the security of Canada. The Committee will then conduct an investigation (section 45 [as am. by S.C. 1998, c. 9, s. 25] ofthe Canadian Human Rights Act). [36] SIRC has the authority to determine the procedure to be followed in the performance of any of its duties or functions (subsection39(1)), which is what it did in this case.

This process has been endorsed by the Supreme Court since Chiarelli v. Canada (Minister ofEmployment and Immigration), (SCC), [1992] 1 S.C.R. 711 (Chiarelli), at page 745. [37] In carrying out its duties and functions, SIRC also has access to information under the control of CSIS or the Inspector General,to investigation files relating to complaints made against the Service and security clearances, including information under the control ofthe deputy head concerned. This right of access also includes information to which access may be limited by any Act of Parliament orany privilege under the law of evidence.

In fact, no information deemed by the Committee to be necessary for the performance of itsduties and function may be withheld from it, “on any grounds” other than a confidence of the Queen’s Privy Council (section 39). [38] Complaints or investigation requests to SIRC must be made in writing and within a fixed period of time, unless the Committeeauthorizes otherwise (subsection 42(4) and

section 45 of the CSISA as well as subsection 19(4) of the Citizenship Act and subsection45(5) of the Canadian Human Rights Act). [39] In cases where a complaint arises from a denial of security clearance, SIRC must, as soon as practicable, send the complainant astatement summarizing such information as will enable the complainant to be as informed as possible of the circumstances giving rise tothe denial of the security clearance (section 46).

The same process applies to other complaints made pursuant to the CSISA, under theCitizenship Act or under the Canadian Human Rights Act (Rule 45 of SIRC’s Rules of Procedure [Rules of Procedure of the SecurityIntelligence Review Committee in Relation to its Function under Paragraph 38(

c) of the Canadian Security Intelligence Service Act,adopted March 9, 1985]).

[ 40 ] When SIRC decides to investigate the denial of a security clearance or a complaint made pursuant to the Citizenship Act or the Canadian Human Rights Act , it informs the Director of CSIS and the deputy head concerned of the substance of the complaint and of its intention to carry out the investigation. For complaints regarding CSIS activities, the Committee will, prior to proceeding with an investigation, decide whether the complaint is trivial, frivolous, vexatious or made in bad faith, or whether it is not related to labour relations.

It will also ensure that the complaint was first dealt with by the Director of CSIS, or determine that the Director failed to respond within a reasonable time (sections 41 and 47). [ 41 ] In addition to having access to information under the control of CSIS or of the deputy head (pursuant to

section 42 of the Act ), the Committee may summon and enforce the appearance of witnesses and compel them to give oral or written evidence on oath and to produce such documents as it deems requisite to the full investigation and consideration of the complaint, and it may administer oaths in the same manner as a “superior court of record” (section 50). The Committee may even receive and accept such evidence and other information, whether or not such evidence or information would be admissible in a court of law.

I would add that except in a prosecution of a person for false statements in extrajudicial proceedings (section 133 [as am. by R.S.C., 1985 (1st Supp.), c. 27, s. 1] of the Criminal Code [R.S.C., 1985, c. C-46]), evidence given by a person before the Committee is inadmissible against that person in a court or in any other proceedings ( sections 50 and 51 of the Act). [ 42 ] SIRC investigations are conducted in private. However, the complainant, deputy head concerned and the Director are given an opportunity to make representations to the Committee, to present evidence and to be heard personally or by counsel.

Nonetheless, no one is entitled as of right to be present during, to have access to or to comment on representations made to the Committee by any other person.

In spite of this, the Committee’s Rules of Procedure allow for statements summarizing information from private hearings to be provided, to the extent that no information related to national security is disclosed (section 48 of the Act and Rule 45 of SIRC’s Rules of Procedure). [ 43 ] Once SIRC has completed its investigation of a complaint that has been made regarding CSIS activities (section 41), it will draft a report and make any recommendations it considers appropriate. It will then forward the report, along with its findings and recommendations, to the Director.

As for the complainant, he or she will receive a copy of the report, and its findings and recommendations, provided that these are not protected for national security reasons (subsection 52(1) of the Act and Rule 13 of SIRC’s Rules of Procedure). [ 44 ] In cases of investigations related to a denial of a security clearance (section 42), SIRC will provide a copy of its report and recommendations to the parties concerned (the Minister, the complainant, the CSIS Director and the deputy head).

Here too some of the findings and recommendations may be withheld from the complainant for national security reasons (subsection 52(2)). Prior to disclosing information to the complainant, SIRC must also consult the CSIS Director.

The same applies to statements summarizing information, communications and reports subject to the Canadian Human Rights Act and the Citizenship Act (section 55 [as am. by S.C. 2001, c. 27 , s. 226]). [ 45 ] For complaints referred to the Committee pursuant to the Citizenship Act or the Canadian Human Rights Act , SIRC will avail itself of the same investigative powers conferred upon it by the CSISA .

A statement summarizing information will be disclosed to the person concerned and the rights to be heard, to give evidence and to be represented by counsel are also applicable to the process of handling these complaints (subsections 19(2) and 19(4)–19(6) of the Citizenship Act , and subsections 45(2) , 45(5) and 45(6) of the Canadian Human Rights Act ). Furthermore, in the case of the Citizenship Act , SIRC’s report is sent to the Governor General in Council and the findings of the said report are communicated to the person concerned.

The Governor in Council will review the report and determine whether there are reasonable grounds to believe that the person concerned will engage in activity that constitutes a threat to the security of Canada or criminal activity that is punishable by way of indictment ( sections 19 and 20 [as am. by S.C. 1997, c. 22, s. 3] of the Citizenship Act ). In cases of complaints made pursuant to the Canadian Human Rights Act , copies of the report containing the findings of the Committee will be provided to the Commission, the Minister and to the Director of CSIS.

The Commission will then determine what information should be disclosed to the complainant (

section 46 of the Canadian Human Rights Act ). [ 46 ] Investigations launched pursuant to the Citizenship Act may also be led by a retired judge of a superior court appointed by the Governor General in Council after consultation by the Prime Minister with the Leader of the Opposition in the House of Commons and the leader of each party having at least 12 members in that House (subsection 19.1(1) [as enacted idem , s. 2 ] of the Citizenship Act ).

However, according to the information disclosed by the parties, no investigation has been conducted by a retired judge and no retired judge has been appointed to date. [ 47 ] As for SIRC’s research functions, these are intended to complement its review and investigative role. The purpose of this research is to ensure that the Service’s activities are carried out in accordance with the Act , the regulations and directions issued by the Minister under

section 6 of the CSISA and that the activities do not involve any unreasonable or unnecessary exercise by CSIS of any of its powers. The Committee may direct the Service or Inspector General to conduct a review; or it may conduct such a review itself in the circumstances ( paragraph 38 (

b) and

section 40 ). [ 48 ] Each year, SIRC submits a report of its activities to the Minister of Public Safety which is then submitted to Parliament. The Committee must consult with the Director of CSIS prior to tabling the report to ensure that information relating to national security is not disclosed. In addition, the Committee may, on request of the Minister or at any other time, furnish the Minister with a special report concerning any matter that related to the performance of its duties and functions without prior consultation with the Director of the Service (section 54).

An example of such a report would be “CSIS’s Role in the Matter of Omar Khadr”, which was published on July 8, 2009, a redacted (for national security reasons) version of which is available to the public (intervener’s record, Volume I, Tab E, at pages 102 to 137 [also available online]). [ 49 ] In conclusion, CSIS is an intelligence-gathering agency that operates within the parameters established by Parliament, including the statutory definition of what constitute “threats to the security of Canada” [ s. 2 (as am. by S.C. 2001, c. 41 , s. 89) of the CSISA ].

The Service is subject to a number of controls: that exercised by the Minister through the issuing of directions; that of the Inspector General through the submission of certificates; that of the Federal Court through the issuing of warrants; that of SIRC by means of its investigative, review and research duties and functions; and finally that of Parliament through the tabling of an annual report and the

submission of special reports to the Minister. [50] The overriding purpose of these controls is, to the extent that it is possible, to ensure that CSIS operates consistently within thelaws of Canada and their regulations and that it does not exercise its powers in an unreasonable or unnecessary manner. CSIS hasconsiderable powers, but in spite of the significant powers conferred upon it, Parliament wanted to ensure that fundamental rights remainprotected.

When assessing SIRC’s investigative role, it is therefore important to keep in mind Parliament’s desire to ensure that themandate of CSIS is articulated legally and that it is consistent with the laws and regulations applicable to similar matters. B. A brief review of the case law dealing with SIRC [51] The courts have, in the past, been called upon to determine issues concerning the CSISA and its provisions regarding SIRC.

Forexample, the Supreme Court has already had to make a determination on a SIRC investigation report and on the effect of itsrecommendations in Thomson, above, in which the Court ruled on a denial of a security clearance. The judgment of the majority foundthat the word “recommendation” at subsection 52(2) of the CSISA should receive its plain and ordinary meaning and should not be takento mean a final or binding decision, which is left to the Deputy Minister as the employer’s representative (Thomson, above, at page 403).The Supreme Court also noted at page 401 that the

interpretation of “recommendations” would be the same with regard to aninvestigation of CSIS activities under

section 41, otherwise it would result in SIRC encroaching on the management powers of theService. I note here that the Federal Court of Appeal, whose decision was appealed, had nonetheless determined the opposite, that is, thatthe word “recommendation” should not be taken in its literal sense and that it had a binding connotation (Thomson v. Canada, (FCA), [1988] 3 F.C. 108 (C.A.), at pages 137 and 138). [52] One thing is certain: both judgments are in agreement regarding the importance of SIRC’s role and the significant amount ofauthority it has to investigate complaints.

Justice Stone, writing for the Federal Court of Appeal, underscored the fact that the purpose ofthe CSISA was far greater than the mere investigation of complaints about denials of security clearance (Thomson v. Canada, (FCA), [1988] 3 F.C. 108 (C.A.) [cited above], at page 138): Obviously, the purpose of the Act goes well beyond that of protecting the individual interest in obtaining a security clearance, for it isprimarily directed toward protecting the national interest in matters of security generally. On the other hand, the “complaints” procedureunder

Part III appears to take that objective into account by ensuring, especially by the composition and powers of the intervenant andthe requirement for secrecy, that this interest not be sacrificed. The Act evidently reflects a careful balancing of the two interests. [53] As for SIRC’s proceedings and as was previously noted, the Supreme Court had already given its approval.

Justice Sopinka,while emphasizing that it was not for him to rule on the issue, concluded that SIRC’s proceedings respected the principles offundamental justice (Chiarelli, above, at pages 742 and 744–746): The respondent submitted that his s. 7 rights were violated as a result of the procedure followed by the Review Committee.… Does thefact that Parliament has legislated beyond its constitutional requirement to provide that a hearing will be held enable the respondent tocomplain that the hearing does not comport with the dictates of fundamental justice? … assuming that proceedings before the ReviewCommittee were subject to the principles of fundamental justice, those principles were observed. … In the context of hearings conducted by the Review Committee pursuant to a joint report, an individual has an interest in a fairprocedure since the Committee’s investigation may result in its recommending to the Governor in Council that a s. 83 certificate issue,removing an appeal on compassionate grounds.

However, the state also has a considerable interest in effectively conducting nationalsecurity and criminal intelligence investigations and in protecting police sources …. The CSIS Act and Review Committee Rules recognize the competing individual and state interests and attempt to find a reasonablebalance between them. The Rules expressly direct that the Committee’s discretion be exercised with regard to this balancing of interests.

In this case the respondent was first provided with the “Statement of Circumstances giving rise to the making of a Report by theSolicitor General of Canada and the Minister of Employment and Immigration to the Security Intelligence Review Committee”. Thisdocument set out the nature of the information received by the Review Committee from the Ministers, including that the respondent hadbeen involved in drug trafficking, and was involved in the murder of a named individual. Also, prior to the Review Committee hearing,the respondent was provided with an extensive

summary of surveillance of his activities (the “Chronology of Information”) and a“Summary of

Interpretation of Intercepted Private Communications Relating to the Murder of Domenic Racco”. Although the first day ofthe hearing was conducted in camera, the respondent was provided with a

summary of the evidence presented. In my view, these variousdocuments gave the respondent sufficient information to know the substance of the allegations against him, and to be able to respond. Itis not necessary, in order to comply with fundamental justice in this context, that the respondent also be given details of the criminalintelligence investigation techniques or police sources used to acquire that information. The respondent was also given the opportunity to respond, by calling his own witnesses or by requesting that he be allowed to cross-examine the RCMP witnesses who testified in camera.

The Chairman of the Review Committee clearly indicated an intention to allowsuch cross-examination.… The respondent chose not to exercise these options.

Having regard to the information that was disclosed to therespondent, the procedural opportunities that were available to him, and the competing interests at play in this area, I conclude that theprocedure followed by the Review Committee in this case did not violate principles of fundamental justice. [Emphasis added.] [54] In its findings, it is clear that the Supreme Court assessed the procedure followed by SIRC as if the Committee were conducting acourt proceeding, while taking into account its particular role with regard to national security.

Nonetheless, respect for the principles offundamental justice is essential in order to ensure that the end result of a decision is just and fair, whether in the form of reports, findingsand recommendations or some other form. [55] The Federal Court has, on a number of occasions, been called upon to review SIRC reports and/or decisions. In Nourhaghighi v.Canada (Security Intelligence Review Committee), 2005 FC 148, 26 Admin L.R. (4th) 192 (Nourhaghighi), at paragraph 15, CSIS and

SIRC acknowledged that the Committee has an obligation in terms of procedural fairness, including the obligation to provide the partieswith an opportunity to be heard. [56] In Al Yamani, above, and Moumdjian v. Canada (Security Intelligence Review Committee), (FCA), [1999] 4F.C. 624 (C.A.) (Moumdjian), reports issued in application of

section 19 of the Citizenship Act were deemed to be subject to judicialreview by the Federal Court. The same determination was made in Mikail v. Canada (Attorney General), 2011 FC 674, [2013] 1 F.C.R.555 (Mikail), at paragraphs 27 and 33, in which a report had been prepared by the Committee after a complaint had been made about theService’s activities, pursuant to

section 41 of the CSISA. The Court determined that since the complainant’s rights, if not his interests,were at play, the report was subject to judicial review by the Federal Court. [57] In Omary, above, the Committee had stayed its investigation of a complaint against the actions of CSIS pursuant to

section 41,pending the result of a civil proceeding filed at the same time in the Superior Court of Québec. Justice de Montigny noted that SIRC wasan administrative tribunal and that it had the power to determine its own procedure (Omary, above, at paragraph 24): Even though I am willing to recognize that administrative tribunals have a certain amount of autonomy in managing their cases andproceedings, as the respondent has invited me to do, this discretion must be exercised judicially, that is, in compliance with the statutes orregulations governing them as well as the purpose for which they were created.

Justice de Montigny further noted that the Committee would be able to access more evidence than the Superior Court given that it isauthorized to have access to all relevant CSIS evidence and is not subject to the Canada Evidence Act, R.S.C., 1985, c. C-5 (CanadaEvidence Act) (Omary, above, at paragraph 34 and see also

section 39 of the CSISA). Accordingly, the application for judicial reviewwas allowed and the decision to stay the investigation pending the Superior Court’s final decision was set aside. [58] Following the same line of reasoning as Justice Stone of the Court of Appeal in Thomson v.

Canada, (FCA),[1988] 3 F.C. 108 [cited above], Justice MacKay also noted SIRC’s unique role in Al Yamani, above, when he wrote as follows at page191: The unique and significant role of SIRC in reviewing determinations affecting persons, on security grounds, in relation to employmentin the public service, and in relation to matters specified under the Immigration Act, the Citizenship Act [R.S.C., (1985), c. C-29] and theCanadian Human Rights Act [R.S.C., (1985), c.

H-6], and the historic evolution of that role, is outlined for the Court in the memorandumof argument of the intervenor SIRC. [59] In another decision in which Charter issues arose and in which an interlocutory injunction was sought to order SIRC to stay itsinvestigation under

section 19 of the Citizenship Act, pending a determination on those Charter issues, the same Justice pointed out theparticularities of SIRC (Brar v. Canada (Solicitor General) (1989), 43 Admin. L. 44 (F.C.T.D.) (Brar), at pages 60–61): The Security Intelligence Review Committee, constituted under the Canadian Security Intelligent Service Act, is unusual in its advisoryrole and its composition.

The Canadian Security Intelligence Service Act, enacted following reports of two Royal Commissions andconsideration in Parliament, provided for creation of a civilian security intelligence service presided over by a director operating underthe direction of the Solicitor General.

Among significant provisions for oversight of the agency’s operations, the Act provides forcreation of the Security Intelligence Review Committee, to be composed of a chairman and two to four others appointed by theGovernor-in-Council from among persons who also hold appointment as members of the Queen’s Privy Council for Canada, who arenot members of the Senate or the House of Commons, after consultation by the Prime Minister with the leader of the opposition and theleader of any other party represented by 12 or more members in the House of Commons.

Members of the committee are required tocomply with all security requirements of the Service and to take a statutory oath of secrecy (Canadian Security Intelligence Services Act,ss. 34, 37). [Emphasis added.] [60] After listing the functions of SIRC by quoting from

section 38 of the CSISA, he commented at page 62 that this

section providesthe basis for the Committee’s important role not only in particular investigations, but also in annual and special reviews of the activitiesand policies of the Service.

Having noted the importance of its role, he concluded that SIRC, “as any other body with which legal andCharter issues are raised, has a responsibility under s. 52(1) of the [Constitution Act, 1982] to apply the law and to avoid application of alaw that infringes the Charter” (Brar, above, at page 69). [61] Finally, and as the Supreme Court would determine three years later in Chiarelli, above, Justice MacKay opined, without makinga final determination on the matter, that SIRC is bound by the principles of procedural fairness in its procedures, adding that theCommittee itself appears to have recognized its duties in this regard when one considers the procedures it has adopted with the veryobjective of ensuring fairness to individuals in a manner consistent with the Committee’s responsibilities to carefully weigh the publicinterest in national security and the public interests in full disclosure (Brar, above, at pages 73–74). [62] In short, from this brief overview of certain decisions in the case law involving SIRC, the following observations may be made: ▪ SIRC is a specific statutory body with special attributes relating to national security. ▪ SIRC’s proceedings establish a balance between national security and the rights of individuals. ▪ SIRC has powers that are similar to those of a superior court of record: the right to be heard, to summon witnesses, to file evidence bywitnesses or by other means, to be represented by counsel and to administer oaths. ▪ SIRC is called upon to investigate complaints regarding CSIS activities, denials of security clearances, ministerial reports pursuant tothe Citizenship Act and written notices by a Minister to the Canadian Human Rights Commission. ▪ In all such cases, SIRC conducts an investigation, offers the parties an opportunity to be heard, provides information (provided that itcomplies with national security interests), drafts a report with findings and recommendations and provides the complainant withinformation on its contents (again, provided that this complies with national security interests).

▪ In all cases where SIRC conducts an investigation, the complainants have at least a certain interest in the SIRC report and it is conceivable that their respective rights could be significantly affected. ▪ It is settled law that SIRC investigation reports and its interlocutory decisions are subject to an application for judicial review by the Federal Court. ▪ SIRC reports determine questions of fact that allow it to make findings.

Thus, SIRC may also be called upon to determine the credibility of witnesses, to prefer the testimony of one witness over that of another, etc. ▪ SIRC drafts its reports taking into consideration the laws, regulations and rules of evidence, as well as the applicable case law in similar cases. ▪ SIRC’s recommendations do not have the force of a decision and are not meant to involve SIRC in the “management” of CSIS. ▪ SIRC is entitled to have access to information under the control of CSIS and in the certificates of the Inspector General that a court is not entitled to, as courts are subject to the Canada Evidence Act .

C. The approach to follow according to the case law to determine the issue in this matter [ 63 ] The most recent precedent for determining whether an administrative tribunal may decide questions of law, including Charter issues, is Conway , above, written by Justice Abella.

From the outset, this decision revisits the case law history of the Supreme Court on this issue by identifying three waves of cases, the last wave concluding that specialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates ( Conway , above, at paragraph 6 ).

This overview of the relevant case law and the reasons developed in Conway allowed the Supreme Court to combine the three approaches or trends into a single, functional approach. [ 64 ] It is also of interest to note that the Supreme Court promulgates this single, functional approach both on the basis of

section 52 of the Constitution Act, 1982 and in cases where a remedy is sought in application of subsection 24(1) of the Charter. According to the Supreme Court, if an administrative tribunal is in the best position to decide one of these remedies, there is no reason why it would not also be in the best position to decide the other ( Conway , above, at paragraph 80 ). [ 65 ] The approach recommended by the Supreme Court is to inquire whether the tribunal can grant Charter remedies generally.

To make this determination, the first question is whether the tribunal has jurisdiction, explicit or implied, to decide questions of law.

If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, the tribunal is a court of competent jurisdiction and can consider and apply the Charter when resolving the matters properly before it ( Conway , above, at paragraph 81 , and see also Martin , above, at paragraphs 41–42 ). [ 66 ] Second, the remaining question is whether the tribunal can grant the particular remedy sought, given the relevant statutory scheme.

In order to answer this, one has to discern legislative intent by considering factors such as the statutory mandate, structure and functions of the particular tribunal ( Conway , above, at paragraph 82 ).

The Supreme Court had previously studied these factors in R. v. 974649 Ontario Inc. , 2001 SCC 81 , [2001] 3 S.C.R. 575 ( Dunedin ), in which Chief Justice McLachlin examined the “functional and structural approach” and its components, which she described as follows at paragraphs 43–46: Framed broadly, this test asks whether the court or tribunal in question is suited to grant the remedy sought under s. 24 in light of its function and structure . The assessment is contextual. The factors relevant to the inquiry and the weight they carry will vary with the particular circumstances at hand.

Nonetheless, it is possible to catalogue some of the considerations captured under the general headings of “function” and “structure”. The function of the court or tribunal is an expression of its purpose or mandate. As such, it must be assessed in relation to both the legislative scheme and the broader legal system. First, what is the court or tribunal’s function within the legislative scheme? Would jurisdiction to order the remedy sought under s. 24(1) frustrate or enhance this role? How essential is the power to grant the remedy sought to the effective and efficient functioning of the court or tribunal?

Second, what is the function of the court or tribunal in the broader legal system? Is it more appropriate that a different forum redress the violation of Charter rights? The inquiry into the structure of the court or tribunal relates to the compatibility of the institution and its processes with the remedy sought under s. 24.

Depending on the particular remedy in issue, any or all of the following factors may be salient: whether the proceedings are judicial or quasi-judicial; the role of counsel; the applicability or otherwise of traditional rules of proof and evidence; whether the court or tribunal can issue subpoenas; whether evidence is offered under oath; the expertise and training of the decision- maker; and the institutional experience of the court or tribunal with the remedy in question: see Mooring , supra , at paras. 25–26.

Other relevant considerations may include the workload of the court or tribunal, the time constraints it operates under, its ability to compile an adequate record for a reviewing court, and other such operational factors. The question, in essence, is whether the legislature or Parliament has furnished the court or tribunal with the tools necessary to fashion the remedy sought under s. 24 in a just, fair and consistent manner without impeding its ability to perform its intended function.

Two sources may provide guidance in determining the function and structure of a court or tribunal: the language of the enabling legislation and the history and accepted practice of the institution. The court or tribunal’s constituting legislation may clearly describe its function and structure. However, it often may be necessary to consider other factors to fully appreciate the court or tribunal’s function, or the strengths and limitations of its processes.

Factors like the workload of the court or tribunal, the time constraints it operates under, and its experience and proficiency with a particular remedy, cannot be assessed on the face of the relevant legislation alone; rather, regard must be had to the day-to-day practice of the court or tribunal in question. [Emphasis in original.] [ 67 ] In her analysis of the case law of the Supreme Court in Conway , above, Justice Abella noted that a tribunal’s factual findings and the record it compiles when considering a constitutional question are of invaluable assistance in constitutional determinations ( Conway , above, at paragraph 67 ).

[ 68 ] Furthermore, in the same overview of the case law, Justice Abella emphasized the fact that where a tribunal has specialized expertise, that expertise makes it the appropriate forum for assessing Charter compliance and for determining the constitutional validity of its enabling statute.

Justice Abella specifically cited Justice La Forest in Cuddy Chicks , above [at page 18] (cited in Conway , above, at paragraph 53 ): It is apparent, then, that an expert tribunal of the calibre of the Board can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise. In the present case, the experience of the Board is highly relevant to the Charter challenge to its enabling statute, particularly at the s. 1 stage where policy considerations prevail.

At the end of the day, the legal process will be better served where the Board makes an initial determination of the jurisdictional issue arising from a constitutional challenge. In such circumstances, the Board not only has the authority but a duty to ascertain the constitutional validity of s. 2(

b) of the Labour Relations Act . [Emphasis added by Justice Abella.] VII. Analysis Issue: Is SIRC a court of competent jurisdiction with the authority to investigate the respondent’s allegations that his constitutional rights guaranteed by the Charter were violated, both within the meaning of subsection 24(1) of the Charter and subsection 52(1) of the Constitution Act, 1982? A.

There is no explicit jurisdiction, but is there an implied jurisdiction? [ 69 ] It is clear upon reading the CSISA that Parliament did not confer explicit power on SIRC when it is conducting an investigation, but before addressing the steps of the test established by the Supreme Court in detail, I would like to offer some general comments as a prelude to providing an overview of the situation with regard to implied power. [ 70 ] As was demonstrated by the review of the CSISA , Parliament’s concern was to ensure that the Service operates within a legal framework and does not exercise its exceptional powers in an unreasonable or unnecessary manner or in a manner that does not comply with Canada’s statutes and regulations.

I am of the view that, given the three main functions of SIRC: to review, research and investigate, Parliament’s concern cannot but apply to each of these functions. [ 71 ] The following elements serve to illustrate Parliament’s concern: the definition of “threats to the security of Canada” (the framework within which CSIS must operate); directions issued by the Minister; judicial control over the issuing of warrants; departmental oversight through the Inspector General; and the reviewing role of SIRC including, among other things, its research functions to ensure that CSIS operates in accordance with the CSISA , its regulations and the directions issued by the Minister, and that it does not exercise its powers unreasonably or unnecessarily. [ 72 ] Directions issued by the Minister, granted under subsection 6(2) of the Act , provide, among other things, the following (intervener’s record, Volume I, Tab 2A, Minister’s directions on the operations of the Service, at pages 8–9): [ translation ] The government and the population of Canada expect the Service to conscientiously assume the responsibilities conferred upon it under the Canadian Security Intelligence Service Act ( CSIS Act ).

They also expect the Service to carry out its duties and functions while respecting the principle of the rule of law and the rights and freedoms guaranteed to Canadians under the Canadian Charter of Rights and Freedoms . The directions that follow, which I present in accordance with

section 6 of the CSIS Act , are intended to help the Service meet these expectations.

FUNDAMENTAL PRINCIPLES The four fundamental principles are designed to provide a framework for the Service’s operations. - The rule of law must be observed. - The investigative means must be proportional to the gravity and imminence of the threat. - The greater the risk associated with a particular activity, the higher the authority required for approval. - With regard to the use of intrusive investigative techniques : - the need for their use must be weighed against possible damage to civil, religious, post-secondary and media establishments; - the least intrusive techniques must be used first, except in emergency situations or where less intrusive investigatory techniques would not be proportionate to the gravity and imminence of the threat; - the level of authority required for approving their use must be commensurate with their intrusiveness , and with any risks associated to using them. [Emphasis added.] [ 73 ] It should be noted that both these directions and the certificates issued by the Inspector General must be submitted to SIRC.

In addition, the Committee also has access to information under the control of CSIS and the Inspector General. Thus, SIRC is privy to the regulations and internal policies of CSIS, protected documents that are accessible to very few bodies. A court would only be granted such access in exceptional circumstances if, with due consideration of the interests at play, the process set out at

section 38 [ sections 38 to 38.16 inclusive (as enacted by S.C. 2001, c. 41 , ss. 43, 141)] of the Canada Evidence Act allowed it. [ 74 ] During these investigations, whether they are conducted as a result of complaints regarding CSIS activities, the denial of a

security clearance pursuant to the CSISA or complaints made pursuant to the Citizenship Act or the Canadian Human Rights Act, SIRCdecides questions of fact in each case. The Committee is called upon to determine the truthfulness of the testimony heard, mustdetermine the validity of one version over another, and in the end, must rule in favour of one of the parties, whether it is the complainantor the person concerned, or, if applicable, the Director of CSIS, the Minister of Citizenship and Immigration or a minister who submitteda written notice under subsection 45(2) of the Canadian Human Rights Act.

In order to do this, it must use legal standards andparameters. If, for example, it is called upon to decide whether there are reasonable grounds to believe that the person concerned is a“threat to the security of Canada” as alleged by the Minister, SIRC must apply the definition of “threat” as it is defined in our statutesand developed in the case law.

In addition, the same applies with regard to the legal concept of “reasonable grounds”. [75] In cases of complaints made against CSIS and some of its activities, SIRC must consider the statutes of Canada, particularly theCSISA and its regulations, the directions issued by the Minister and the internal policies of CSIS. To carry out its duties, the Committeemust not only apply the law in such cases, it must assess the evidence according to the standards established by the law and according tothe

interpretation that was given to them in the case law. The same applies for complaints about a denial of a security clearance orcomplaints filed under the Canadian Human Rights Act. [76] It is therefore clear that for SIRC to be able to carry out its investigative functions, it simply cannot operate in a legal vacuum. Itmust interpret the law in order to make determinations on questions of fact submitted to it through the filing of complaints.

To claimotherwise would be contrary to Parliament’s concern about ensuring that CSIS operates in compliance with the laws of Canada, includingthe CSISA, its regulations and CSIS policies. [77] In short, SIRC has all of the required attributes of a court of competent jurisdiction. It has the expertise to decide questions of factand law and is one of the few bodies that have access to protected information under the control of CSIS. [78] In my introductory remarks to this analysis, I mentioned that the CSISA does not explicitly grant the power to determinequestions of law to SIRC.

Let us now examine how the CSISA implicitly assigns SIRC the power to decide questions of law. In order todo this, we shall revisit the factors developed in Martin, above, at paragraph 41 and apply them to the specific circumstances of this case.

(1) In order to fulfill its legislative mandate, SIRC must determine questions of law [79] The mandate set out in the Act and conferred upon SIRC is to ensure that CSIS acts in accordance with the laws of Canada, withthe CSISA and in accordance with the Minister’s directions and official national security regulations and policies. [80] The CSISA resulted from the work and the report tabled by the Commission of Inquiry Concerning Certain Activities of theRoyal Canadian Mounted Police (McDonald Commission).

In the 1970s, intelligence activities of the RCMP raised a storm of criticismafter the public was made aware of some of them (for example, the theft of a Parti Québécois membership list, a fire in a barn where ameeting was scheduled to be held, as well as surreptitious entries, opening mail and using wiretaps without a warrant, all described in theMcDonald Commission’s Third Report, published in 1981 and entitled: Certain R.C.M.P. Activities and the Question of GovernmentalKnowledge).

Public confidence in this organization had been deeply shaken and Parliament had to act in order to rectify this situation.What ensued was the creation of the McDonald Commission and the start of parliamentary debates which culminated in the enactment ofthe CSISA. In Atwal v. Canada, (FCA), [1988] 1 F.C. 107 (C.A.) (Atwal), the Court of Appeal considered theconstitutionality of a wiretap and search warrant as well as the provisions of the Act under which the warrant had been issued.

At pages139–140 of this decision, Justice Mahoney offers an insightful overview of the reforms that issued from the McDonald Commission: The events that led to the McDonald Commission inquiry and report and Parliament’s ultimate decision to introduce the judiciary int

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