2011 FCA 223, 2011 FCA 223

[2012] 2 F.C.R. 243 A-431-10 2011 FCA 223 Chanthirakumar Sellathurai ( Appellant ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) Indexed as: Sellathurai v. Canada (Public Safety and Emergency Preparedness) Federal Court of Appeal, Létourneau, Dawson and Stratas, JJ.A. — Toronto, June 9; Ottawa, July 11, 2011.

Citizenship and Immigration — Exclusion and Removal — Inadmissible Persons — Appeal from decision of Federal Court requiring return of documents inadvertently disclosed to counsel for appellant — File part of admissibility hearing to determine whether appellant inadmissible under former Immigration Act, s. 19(1)(f)(iii)(B) — Documents inadvertently disclosed in course of processing claim for ministerial relief under Immigration and Refugee Protection Act (Act), s. 34(2) — After asking for return of inadvertently disclosed documents, respondent seeking and obtaining order from Federal Court requiring counsel for appellant to return documents to respondent — Central issues whether Federal Court possessed jurisdiction to make such an order and whether Federal Court erred by failing to appoint amicus curiae or by failing to consider whether principles of procedural fairness required some remedy be afforded to appellant —Federal Court correct to reject application of Canada Evidence Act , s. 38 , and to find it had jurisdiction — However, source of jurisdiction not s. 87 of Act, but rather Federal Courts Act , s. 44 , and Federal Court’s plenary jurisdiction over disclosure in immigration matters — Regarding main issues of fairness, Federal Court erred by failing to consider particular circumstances in this case when deciding on appellant’s request for appointment of amicus curiae and by failing to consider what use appellant could make of information that had been disclosed to him — Appeal allowed in part.

Federal Court Jurisdiction — Respondent inadvertently disclosing documents to counsel for appellant in course of processing claim for ministerial relief filed by appellant under Immigration and Refugee Protection Act (Act), s. 34(2) — At respondent’s request, Federal Court requiring counsel for appellant to return documents to respondent — Whether Federal Court possessed jurisdiction to make such an order — Federal Court correct to reject application of Canada Evidence Act , s. 38 , and to find it had jurisdiction — However, source of jurisdiction not s. 87 of Act, but rather Federal Courts Act , s. 44 , and Federal Court’s plenary jurisdiction over disclosure in immigration matters .

Evidence — Respondent inadvertently disclosing documents to counsel for appellant in course of processing claim for ministerial relief filed by appellant under Immigration and Refugee Protection Act, s. 34(2) — Federal Court requiring counsel for appellant to return documents to respondent — Federal Court correct to reject application of Canada Evidence Act , s. 38 , and to find it had jurisdiction to make such an order —

Section 38 has no application as mechanism to retrieve information already disclosed — Nothing in language of s. 38 speaks to its application after disclosure has been made. This was an appeal from a decision of the Federal Court requiring the return of documents inadvertently disclosed to counsel for the appellant. The file was part of an admissibility hearing of the Immigration Division of the Immigration and Refugee Board (Immigration Division) to determine whether the appellant was inadmissible under clause 19(1)( f )(iii)(

B) of the former Immigration Act . The documents were inadvertently disclosed in the course of processing a claim for ministerial relief filed by the appellant under subsection 34(2) of the Immigration and Refugee Protection Act (Act). After asking that the documents be returned, on the ground that they were subject to national security privilege, the respondent sought and obtained an order from the Federal Court requiring counsel for the appellant to return the documents to the Minister.

The main issues were whether the Federal Court possessed the jurisdiction to make such an order and whether it erred by failing to appoint an amicus curiae or by failing to consider whether the principles of procedural fairness required that some remedy be afforded to the appellant. Held , the appeal should be allowed in part. The Federal Court was correct to reject the application of

section 38 of the Canada Evidence Act and to find that it had jurisdiction. However, the source of this jurisdiction was not

section 87 of the Act , but rather

section 44 of the Federal Courts Act and the Federal Court’s plenary jurisdiction over disclosure in immigration matters. The preclusive provisions of paragraphs 72(2) (

e) and 74 (

d) of the Act therefore did not apply, and there was no requirement that a question be certified in order for this appeal to be properly brought.

Section 38 of the Canada Evidence Act provides a mechanism for the protection of information where, in a proceeding, information is required to be disclosed and the person required to disclose the information believes that information to be sensitive or potentially injurious. Where proper notification has been given to the Attorney General of Canada, the Attorney General may apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4). Just as

section 39 of the Canada Evidence Act has no application after the disclosure of sensitive information,

section 38 has no application as a mechanism to retrieve information already disclosed. Nothing in the language of

section 38 speaks to its application after disclosure has been made; rather it is confined by its language to the future disclosure of sensitive or potentially injurious information. The ordinary meaning of this text is that

section 87 applies only during an application for judicial review when the Minister may apply for leave not to disclose information that would otherwise be producible. On its plain language, this provision applies to prevent disclosure. It is not intended to apply as a mechanism to retrieve disclosed information. As to the potential application of

section 87 of the Act in this case, no application for judicial review had been brought with respect to the

pending application for ministerial relief. Yet the language of the French version of

section 87 is express that the application for the non-disclosure of information or other evidence may be made “dans le cadre d’un contrôle judiciaire”. The linkage of

section 87 to a future,perhaps related, judicial review was insufficient to make

section 87 applicable to documents or information not otherwise producible inthe pending application for judicial review in the present matter. In addition to sections 3, 18 and 18.1 of the Federal Courts Act, subsection 72(1) of the Act confers a broad supervisory jurisdictionupon the Federal Court with respect to matters arising under the Act.

The disclosure of information to an applicant for relief that isrequired by procedural fairness, and the control over such disclosure, are clearly related to the jurisdiction of the Federal Court tosupervise the exercise of discretion to grant or withhold relief under subsection 34(2) of the Act. It follows that the Federal Court hasplenary jurisdiction over the disclosure process.

The three main issues of fairness that arose on the facts of this appeal were: (1) the manner in which the Federal Court considered theappointment of a special advocate or amicus curiae; (2) the use, if any, that the appellant or his counsel might have made of theinformation at issue; and (3) the scope of the redactions made in the three relevant documents. Turning to the first issue, because

section 87 of the Act did not apply, there was no basis at law for the appointment of a specialadvocate. It was, however, open to the Federal Court to appoint an amicus curiae if persuaded that such appointment was necessary toassist the Court to arrive at a full and fair determination of the fairness issues. The Federal Court rejected the request for the appointmentof an amicus curiae by applying the factors applicable to the appointment of a special advocate.

In the unique circumstances before theCourt it was an error of law for the Federal Court to dismiss the request for the appointment of an amicus on this basis. By doing so theFederal Court failed to consider that the information subject to national security privilege had already been disclosed to the appellant.This fact distinguished the jurisprudence relied upon by the Federal Court.

The order recalling the documents originally disclosed by therespondent and the substitution of redacted documents prevented counsel for the appellant from making submissions to the Court or tothe respondent on the unredacted information. In these circumstances, the appointment of an amicus would have allowed submissionsdirected to the appellant’s concerns to be made to the Court based upon the confidential record. This was a relevant factor the FederalCourt should have considered, and which was not addressed in the jurisprudence the Court relied upon to reject the appointment of anamicus.

Turning to the remaining issues of fairness, there was an air of reality to the concerns raised by the appellant. It was an error for theFederal Court to fail to consider the appellant’s submission that, in the circumstances, fairness required that his counsel be permitted tomake some limited use of the information inadvertently disclosed by the respondent.

Restricting counsel to making submissions upon theredacted record limited the ability of the appellant’s counsel to argue that the redactions proposed by the respondent were overbroad, andthat some of the redacted information had been disclosed in previous proceedings. As well, limiting counsel to the redacted informationfurther hampered the appellant’s ability to make future submissions to the respondent on the full record. In these circumstances, theFederal Court was required to consider the appellant’s submissions that his counsel be permitted to make some use of the confidentialinformation.

Until these submissions were dealt with it was premature for the Federal Court to order the return of the documents. For these reasons, the matter was remitted to the Federal Court for the purpose of considering whether an amicus curiae should beappointed and what, if any, remedy was required by application of procedural fairness as a result of the inadvertent disclosure to theappellant of the documents at issue. STATUTES AND REGULATIONS CITED Canada Evidence Act, R.S.C., 1985, c.

C-5, ss. 38 “judge” (as enacted by S.C. 2001, c. 41, ss. 43, 141), “participant” (as enacted idem, s.43), “potentially injurious information” (as enacted idem), “proceedings” (as enacted idem), “prosecutor” (as enacted idem), “sensitiveinformation” (as enacted idem), 38.01 (as enacted idem), 38.02 (as enacted idem, ss. 43, 141), 38.03 (as enacted idem, s. 43), 38.031 (asenacted idem, ss. 43, 141), 38.04 (as enacted idem), 38.05 (as enacted idem, s. 43), 38.06 to 38.13 (as enacted idem), 38.131 (as enactedidem; 2004, c. 12, s. 19(E)), 38.14 to 38.16 (as enacted by S.C. 2001, c. 41, s. 43), 39 (as am. by S.C. 1992, c. 1, s. 144, Sch.

VII, item5(F)). Canadian Human Rights Act, R.S.C., 1985, c. H-6. Federal Court Act, R.S.C., 1985, c. F-7. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14), 3 (as am. idem, s. 16), 4 (as am. idem), 18 (as am. byS.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27), 44 (as am. idem, s. 41). Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 4, 56, 369. Immigration Act, R.S.C., 1985, c.

I-2, ss. 19(1)(f)(iii)(B) (as am. by S.C. 1992, c. 49, s. 11), 27 (as am. by R.S.C., 1985 (3rd Supp.), c.30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c. 15, s. 5). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 34(2), 72(1),(2)(e), 74(d), 87 (as am. by S.C. 2008 c. 3, s. 4), 87.1 (asenacted idem). Security of Information Act, R.S.C., 1985, c. O-5. CASES CITED applied: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] 7 W.W.R. 1; Canada (Human RightsCommission) v. Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, (1998), 157 D.L.R. (4th) 385, 6 Admin.

L.R. (3d)1.

considered: Mohammed v. Canada (Minister of Citizenship and Immigration), 2006 FC 1310, [2007] 4 F.C.R. 300, 302 F.T.R. 184, 57 Imm. L.R.(3d) 105; Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80. referred to: Kanyamibwa v. Canada (Public Safety and Emergency Preparedness), 2010 FC 66, [2011] 1 F.C.R. 423, 360 F.T.R. 173, 87 Imm. L.R.(3d) 86; Horne v. Canada (Citizenship and Immigration), 2010 FCA 337, 414 N.R. 97; Subhaschandran v. Canada (Solicitor General),2005 FCA 27, [2005] 3 F.C.R. 255, 249 D.L.R. (4th) 269, 50 Imm. L.R. (3d) 119; Narvey v.

Canada (Minister of Citizenship andImmigration), , 235 N.R. 305 (F.C.A.); Apotex Inc. v. Canada (Governor in Council), 2007 FCA 374, 76 Admin. L.R.(4th) 20, 63 C.P.R. (4th) 151, 370 N.R. 336; Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, 214 D.L.R. (4th)193, [2002] 8 W.W.R. 585; Khadr v. Canada (Attorney General), 2008 FC 46, [2008] 3 F.C.R. 306, 54 C.R. (6th) 76, 166 C.R.R. (2d)134. APPEAL from a decision of the Federal Court (2010 FC 1082, [2012] 2 F.C.R. 218) ordering the return of documents inadvertentlydisclosed to counsel for the appellant. Appeal allowed in part.

APPEARANCES Barbara L. Jackman for the applicant. Jamie R. D. Todd and Ada Mok for the respondent. SOLICITORS OF RECORD Jackman & Associates, Toronto, for the appellant. The Deputy Attorney General of Canada for the respondent. The following are the reasons for judgment rendered in English by [1] Dawson J.A.: In the course of processing Mr. Sellathurai’s claim for ministerial relief under subsection 34(2) of the Immigrationand Refugee Protection Act, S.C. 2001, c. 27 (Act), the Minister of Public Safety and Emergency Preparedness (Minister) inadvertentlydisclosed documents to Mr.

Sellathurai’s counsel that the Minister viewed to be subject to national security privilege. After asking thatthe documents be returned, the Minister sought and obtained an order from the Federal Court requiring Mr. Sellathurai’s counsel toreturn the documents to the Minister. The central issue in this appeal is whether the Federal Court possessed the jurisdiction to makesuch an order.

Other issues to be decided on this appeal include whether, in the absence of a certified question, this Court has jurisdictionto hear the appeal and whether the Federal Court erred by failing to appoint an amicus curiae or by failing to consider whether theprinciples of procedural fairness required that some remedy be afforded to Mr. Sellathurai. A complete list of the issues to be decidedappears at paragraph 13 below. Background Facts [2] To appreciate the issues before the Court, it is necessary to understand the protracted facts that led to the making of the orderunder appeal.

The facts may be summarized as follows: 1. In 1997, a report issued under

section 27 [as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 4; S.C. 1992, c. 47, s. 78; c. 49, s. 16; 1995, c.15, s. 5] of the Immigration Act, R.S.C., 1985, c. I-2 (former Act) alleged that Mr. Sellathurai was a member of the inadmissible class ofpersons described in clause 19(1)(f)(iii)(B) [as am. by S.C. 1992, c. 49, s. 11] of the former Act. Specifically, the report alleged Mr.Sellathurai to be a person who there are reasonable grounds to believe is or was a member of an organization that there are reasonablegrounds to believe is or was engaged in terrorism.

The organization referred to in the report was the Liberation Tigers of Tamil Eelam(LTTE). 2. Later, Mr. Sellathurai received a direction to report for an admissibility inquiry before the Immigration Division of the Immigrationand Refugee Board (Immigration Division). The inquiry began on March 19, 1999. 3. The hearing before the Immigration Division into Mr. Sellathurai’s alleged inadmissibility was split into two parts. The first part ofthe inquiry was completed on September 26, 2001. At that time a member of the Immigration Division concluded that there werereasonable grounds to believe that Mr.

Sellathurai was a member of the LTTE. Whether the LTTE was a terrorist organization was anissue left to be determined at the second stage of the inquiry. 4. On August 20, 2002, Mr. Sellathurai applied under subsection 34(2) of the Act for an exemption from a finding that he wasinadmissible on security grounds as a result of being a member of an organization that there are reasonable grounds to believe engages,has engaged or will engage in terrorism.

Subsection 34(2) of the Act provides, among other things, that membership in a terroristorganization does not constitute inadmissibility where an affected person satisfies the Minister that his or her presence in Canada wouldnot be detrimental to the national interest. 5. As a result of Mr. Sellathurai’s application under subsection 34(2) of the Act, the Canada Border Services Agency (CBSA) prepared abrief for the Minister. The brief recommended that Mr. Sellathurai’s request for ministerial relief be denied.

In February 2006, Mr.Sellathurai was provided with a copy of the brief and given the opportunity to respond to it. Later, further submissions were invited fromMr. Sellathurai in 2007 and in 2008. 6. Prior to the events relevant to this appeal, no decision had been made with respect to Mr. Sellathurai’s request for ministerial relief.

7. After the member of the Immigration Division determined that there were reasonable grounds to believe that Mr. Sellathurai was a member of the LTTE, the inquiry was to continue before the Immigration Division. However, from September 26, 2001 until October 21, 2008, the admissibility hearing was adjourned from time to time in order to allow the Minister to make a decision on the request for ministerial relief. 8. On December 29, 2008, the Immigration Division refused Mr. Sellathurai’s request for a further adjournment. 9. Mr.

Sellathurai then filed in the Federal Court, in Court file IMM-152-09, an application for leave and judicial review of the decision of the Immigration Division refusing a further adjournment. He also sought an order staying the admissibility hearing. The Federal Court granted the stay. Subsequently leave was granted by the Federal Court, and the hearing of the application for judicial review was scheduled for February 23, 2010. 10. On February 26, 2010, Justice Hughes of the Federal Court directed that the application for judicial review be adjourned sine die .

Counsel were to provide updates to the Court as to the status of the request for ministerial relief. 11. On August 12, 2010, counsel for Mr. Sellathurai provided the following report to the Court: Re: Sellathurai v. MCI, Court File: IMM-152-09 As your records will show I am the solicitor for the Applicant. This judicial review application is presently in abeyance while the parties try to resolve matters. Mr. Todd, counsel for the Minister has been advising Justice Hughes of the status of the case from time to time. I undertook to update the Court this time. Mr.

Sellathurai has received a new package of materials from the CBSA and was asked to reply by August 15, 2010. I requested an extension to the end of August because I was away for some time and with other matters, it would not have been possible for me to meet this deadline. The extension was granted and it was our expectation that the case would go before the Minister for a decision shortly after submissions were filed. A new issue has just arisen. The CBSA has requested that its package of materials disclosed to me and Mr.

Sellathurai be returned because there is apparently classified material that has been inadvertently disclosed. The CBSA has advised that Mr. Sellathurai will be given a month from receipt of the redacted materials to reply so that it would actually be later than the end of August when the reply would come due. We are in the process of addressing the CBSA request, as it is not apparent that any classified material has in fact been disclosed. The matter is moving along so I would suggest that either I or Mr.

Todd report back to the Court by the end of September either to advise that the matter is now resolved or at least to update the Court on the status of its resolution. Please advise if there are problems with this. Thank you for your attention. [Emphasis added.] 12. On August 16, 2010, the CBSA wrote to Mr. Sellathurai’s counsel advising that: This is in response to your letter dated August 12, 2010. A review of the file has revealed three documents which contain information that should not have been disclosed : 1- Canadian Security Intelligence Service (CSIS) letter dated January 26, 1995.

This document is six pages long, has the CSIS letterhead, and is marked “Secret”. It is Appendix 9 in the package. 2- Canadian Security Intelligence Service (CSIS) letter dated November 9, 1995. This document is five pages long, has the CSIS letterhead, and is marked “Secret”. It is in Appendix 18 of the package. 3- Canadian Security Intelligence Service (CSIS) letter dated December 10, 2007. This document is two pages long, is marked “Secret”, and is signed by a CSIS employee. It is in Appendix 18 of the package.

We request that you seal and return the above-noted documents, along with any copies that were made, to our attention at your earliest convenience. We assert that these documents carry national security privilege, and must be protected. We thank you for your cooperation in this matter. [Emphasis added.] 13. On August 19, 2010, counsel for Mr. Sellathurai responded: Thank you for your letter of August 16, 2010. I have specifically pulled the referenced reports and sealed them. I have the only copy as no others were made or given to anyone else.

I would appreciate it if you would send the redacted version which you intend to rely on publicly so that we may determine if the matter can be settled amicably or if having the court review it would be more appropriate. We cannot continue with Mr. Sellathurai’s submissions until this is settled because of the concern about not raising with him any of the relevant issues arising from the referenced reports.

I am not sure if parts of these reports are to be sealed, how we will deal with the fact that he and others already have some knowledge of the concerns raised in the documents because we were already well underway in preparing reply submissions. Please note I am away next week. Thank you. Please advise. [Emphasis added.] 14. On September 2, 2010, Justice Hughes issued the following direction: THIS COURT HEREBY DIRECTS that: 1. [Counsel for Mr. Sellathurai] shall place the documents in question in a sealed envelope and file it with the Court number and style

of cause clearly marked together with a caption to the effect that it is not to be opened until further Order or Direction of the Court. This shall be done on or before September 8, 2010; 2. The Department of Justice shall, on or before September 8, 2010 furnish to [counsel for Mr. Sellathurai] and file with the Court copies of said documents redacted so as to remove or obscure the contentious material; 3.

On or about September 8, 2010, the Department of Justice shall file a Motion to be heard at a date to be fixed by the Office of the Chief Justice, to be heard by a designated Judge, if required as to the further manner in which said documents are to be dealt. 15. The three documents provided to Mr. Sellathurai’s counsel were filed with the Court and redacted versions of the documents were provided to Mr. Sellathurai’s counsel. The Minister filed a notice of motion in court file IMM-152-09.

The motion was brought in writing under rule 369 of the Federal Courts Rules , SOR/98-106 [ r. 1 (as am. by SOR/2004-283, s. 2)] and was supported by two affidavits filed and served on counsel for Mr. Sellathurai as well as a confidential affidavit filed with the Court on an ex parte basis that was described as “justifying the national security privilege claim”. The relief sought in the notice of motion was as follows: THIS MOTION IS FOR injunctive relief in the context of inadvertent disclosure of documents to which national security privilege is claimed.

The Respondent seeks the assistance of this Honourable Court to resolve an issue involving inadvertent disclosure by a Federal tribunal (the Respondent Minister) of certain documents to which the Respondent claims are subject to national security privilege. The Respondent requests that a designated Judge of this Court sanction the direction of the Honourable Justice Hughes that the documents in question are to be sealed and filed with this Court by [counsel for Mr. Sellathurai] by September 8, 2010 by reviewing the redacted and unredacted versions of the documents.

The Respondent requests an order upholding the Respondent’s national security privilege claim. The Respondent seeks an order, as necessary or required, ensuring that the Applicant seal and return to the Respondent any other paper copy of the national security privilege documents in question and destroy any electronic copy of the documents that may exist in the control and possession of the Applicant and [his counsel].

The Respondent additionally seeks an order that the Applicant and [his counsel] destroy any notes relating to the national security privilege documents in question to ensure that no further violation of the national security privilege occurs. The Respondent requests such other relief as this Honourable Court sees fit. [Emphasis added.] 16. While the Minister’s motion was initially brought in writing under rule 369 , an oral hearing was held on October 20, 2010. On November 3, 2010, a Judge of the Federal Court (Judge) issued an order and reasons in support of the order.

The reasons are cited as 2010 FC 1082 , [2012] 2 F.C.R. 218.

The order provided: THE COURT ORDERS, DECLARES AND DIRECTS that: 1. the order of Justice Hughes, dated September 2, 2010, is confirmed; 2. the national security claim of privilege over those portions of the disputed documents, as asserted by the Minister, is upheld; 3. to the extent that any of the following steps have not been taken, the Court orders that: • the applicant seal and return to the Minister, through his counsel, any paper copy of the unredacted disputed documents; • the applicant destroy any electronic copy of the unredacted disputed documents in the control or possession of the applicant or his counsel; and • the applicant and his counsel destroy any notes in their possession or control relating to the redacted portions of the disputed documents. 4. the unredacted disputed documents, that currently are in a sealed envelope filed with the Court and that form part of this Court file, are to be returned by the registry to the Minister’s counsel; and 5. no question of general importance is certified.

Mr. Sellathurai now appeals from this order. The Decision of the Federal Court [ 3 ] The Judge framed the issues before her as follows: 1. Does the Federal Court have jurisdiction to determine this motion and grant the relief sought by the Minister pursuant to

section 87 [as am. by S.C. 2008, c. 3, s. 4 ] of the Act ? 2. Should the Minister’s motion to recall the disputed documents succeed? (

a) Are these documents the subject of national security privilege? (

b) Did the Minister waive national security privilege on the disputed documents? (

c) Is national security privilege an exception to the “open court principle”? 3. Should the Court designate a special advocate, pursuant to

section 87.1 [as enacted idem ] of the Act , to advance the interests of the

applicant? [ 4 ] After reviewing the relevant facts, the Judge began consideration of the first issue: did the Federal Court have jurisdiction to determine the motion pursuant to

section 87 of the Act ? In her view, neither party disputed the Federal Court’s jurisdiction to hear the motion, so the real issue was whether it should be heard under

section 87 of the Act or

section 38 [ sections 38 to 38.16 inclusive (as enacted by S.C. 2001, c. 41 , ss. 43, 141)] of the Canada Evidence Act , R.S.C., 1985, c. C-5 (Evidence Act). [ 5 ] The Judge recognized the importance of preventing the disclosure of sensitive materials and also recognized the Crown’s interest in recalling sensitive documents that were accidentally released. The question was how accidental disclosure of such documents should be dealt with in the circumstances of this case. [ 6 ] The Judge disagreed with Mr. Sellathurai’s submission that the Federal Court was required to deal with the issue under

section 38 of the Evidence Act. Where another statute provided a legislative scheme for dealing with secret documents in the context of a particular type of proceedings, that scheme took precedence. The Act provided such a scheme in the present case. If

section 38 of the Evidence Act remained applicable,

section 87 of the Act would be redundant. Therefore, the Judge concluded that

section 87 of the Act was applicable to this case, not

section 38 of the Evidence Act. [ 7 ] The Judge then moved to consideration of

section 87 of the Act . She rejected Mr. Sellathurai’s argument that the Minister’s motion did not form part of existing judicial review proceedings as required by the language of the provision. She reasoned, at paragraph 27, as follows: [Mr. Sellathurai’s] own action, in seeking a stay of the [Immigration Division’s] hearing and an adjournment of the judicial review, has inextricably linked the ministerial relief application and the judicial review of the [Immigration Division’s] interlocutory decision.

As a result, there is little question in my mind that documents disclosed in the context of the ministerial relief application would have relevance to the judicial review application when, and if, it is heard.

It follows that, although the disputed documents were disclosed pursuant to the ministerial relief application, this disclosure forms part of the substance of the judicial review motion that currently stands adjourned sine die . [ 8 ] She also reasoned [at paragraphs 28–29] that even if the disputed documents did not fall within the adjourned judicial review the result would be the same, because the documents had been disclosed pursuant to a matter within the Act , that is, the subsection 34(2) application for ministerial relief.

From there, rule 4 of the Federal Courts Rules would “bridge the gap”, and allow the Court to adopt, by analogy, the

section 87 procedure. “In

summary, I find that the Federal Court has jurisdiction to consider this motion either directly or by analogy pursuant to

section 87 of IRPA.” [ 9 ] The Judge then turned to consider the next issue: should the Court allow the Minister’s motion for the return of the documents? After a review of the documents and the confidential affidavit, she concluded that the information contained in the original disclosure but redacted in the documents later provided pursuant to Justice Hughes’ direction was subject to national security privilege. She also concluded that the disclosure did not constitute waiver of the privilege, since the disclosure had been accidental.

The mistaken disclosure had not reduced the national interest in preventing dissemination of the information. [ 10 ] The Judge then considered the final issue: should the Court appoint a special advocate to advance Mr. Sellathurai’s interests? The Judge applied the factors previously applied to applications for the appointment of a special advocate made in the course of an application under

section 87 of the Act as articulated in Kanyamibwa v. Canada (Public Safety and Emergency Preparedness) , 2010 FC 66 , [2011] 1 F.C.R. 423, at paragraphs 43 to 56 . While

section 87.1 of the Act would allow the Court to appoint a special advocate, the Judge decided against this, for several reasons: • She had already concluded that disclosure of the documents would be injurious to national security; • A judicial review of a denial of ministerial relief under subsection 34(2) differs from a judicial determination concerning the reasonableness of a security certificate and a judicial review of the detention of a person subject to a security certificate; • The Minister had not yet determined whether to grant relief to Mr.

Sellathurai, the information was minimal and it was uncertain whether the Minister would rely on the information he sought to protect; and • Mr. Sellathurai was not facing imminent removal, and was not being detained. [ 11 ] Finally, at paragraphs 54 to 56 the Judge gave brief consideration to whether she should certify a question. Mr. Sellathurai’s counsel had made her submissions on this issue three days after the deadline set by the Judge, and concluded her submissions with “[s]o at this point there are no issues for which certification is being sought”. The Judge found the Minister’s submissions to be vague.

In the end, the Judge decided not to certify a question, “[g]iven the unique circumstances that arise on this motion”. [ 12 ] As set out above, the Judge ordered that Mr. Sellathurai seal and return any paper copy of the unredacted documents, destroy any electronic copy in his control or possession (or the control or possession of his counsel), and destroy any notes relating to the redacted portions of the documents. The copies of the documents in the Court’s possession were to be returned to the Minister’s counsel. The Issues [ 13 ] In my view, the issues to be decided on this appeal are: 1.

Does this Court have jurisdiction to hear this appeal? 2. What is the standard of review to be applied to the remaining issues? 3. Did the Judge err by concluding that the Federal Court had jurisdiction to consider the motion either directly or by analogy under

section 87 of the Act? 4. If the Federal Court erred by applying

section 87 of the Act, what was the proper procedure to follow? 5. Did the Federal Court err in concluding that the inadvertently disclosed documents could be returned to the Minister? 6. Did the Federal Court err in law by applying the jurisprudence relevant to the appointment of a special advocate under sections 87 and87.1 of the Act, or by failing to consider whether it was procedurally fair to limit Mr. Sellathurai to responding to the redacted version ofthe documents when making submissions to the Court and the Minister? Consideration of the Issues 1.

Does this Court have jurisdiction to hear this appeal? [14] The respondent submits that the Judge correctly determined that the Federal Court possessed jurisdiction under the Act to orderthe return of the inadvertently disclosed documents. It follows, the respondent says, that because the Judge did not certify a question thisappeal should be quashed on the ground this Court lacks jurisdiction to hear the appeal.

In the alternative, the respondent says that if thisCourt finds that the Judge possessed the jurisdiction to protect the disclosed documents in the manner she did, in the absence of thecertified question this Court lacks jurisdiction to consider “any ancillary issues raised by the Appellant regarding how the ApplicationsJudge exercised her jurisdiction” (paragraph 31, respondent’s factum). [15] It is uncontroversial that, as a matter of general principle, the Act prohibits appeals from interlocutory decisions of the FederalCourt (paragraph 72(2)(

e) of the Act). The Act also prohibits appeals from final decisions of the Federal Court, unless in renderingjudgment a judge of the Federal Court certifies that a serious question of general importance is involved and states that question(paragraph 74(

d) of the Act). That said, the jurisprudence of this Court is well settled that these preclusive clauses are not to beinterpreted literally. This Court can hear an appeal where it is alleged that the Federal Court judge committed a jurisdictional error:Horne v. Canada (Citizenship and Immigration), 2010 FCA 337, 414 N.R. 97, at paragraph 4, citing Subhaschandran v. Canada(Solicitor General), 2005 FCA 27, [2005] 3 F.C.R. 255, at paragraph 17, and Narvey v. Canada (Minister of Citizenship andImmigration), , 235 N.R. 305 (F.C.A.). [16] In my view, this appeal does raise a jurisdictional question.

There is real uncertainty about whether the Federal Court hadjurisdiction to deal with the inadvertent disclosure of documents in the course of events leading to a decision under subsection 34(2) ofthe Act. Central to this appeal is whether the Act, the Evidence Act or neither gave jurisdiction to the Federal Court to deal with theMinister’s inadvertent disclosure. Until it is decided whether the Federal Court possessed the jurisdiction to deal with this matter, itsjurisdiction has not been established and this appeal should proceed. 2.

What is the standard of review to be applied to the remaining issues? [17] This is not an appeal from an application for judicial review. Therefore, the standard of review is that set out in Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. Questions of law must be determined on a correctness standard. Questions of fact ormixed fact and law are reviewed on the standard of palpable and overriding error. [18] Issues 3, 4 and 6, listed at paragraph 13 above, raise questions of law and so the Judge’s decision on these issues is reviewable onthe standard of correctness.

Issue 5 required the Judge to make findings of mixed fact and law. Ultimately, however, the Judge grantedinjunctive relief by ordering that the three documents be returned to the Minister. Injunctive relief is discretionary. A discretionary ordermade by a Judge will not be interfered with on appeal unless: … the appellate court clearly determines that the lower court judge has given insufficient weight to relevant factors or proceeded on awrong principle of law: Elders Grain Co. v. Ralph Misener (The), 2005 FCA 139 at paragraph 13.

This Court may also overturn adiscretionary decision of a lower court where it is satisfied that the judge has seriously misapprehended the facts, or where an obvious injustice would otherwise result: Mayne Pharma (Canada) Inc. v. Aventis Pharma Inc., 2005 FCA 50, 38 C.P.R. (4th) 1 at paragraph 9. See: Apotex Inc. v. Canada (Governor in Council), 2007 FCA 374, 76 Admin. L.R. (4th) 20, at paragraph 15. 3. Did the Judge err by concluding that the Federal Court had jurisdiction to consider the motion either directly or by analogy undersection 87 of the Act? [19] As explained above, the Judge concluded that

section 38 of the Evidence Act did not apply. Instead, because she viewed thedisclosure to form part of the substance of the adjourned judicial review of the decision of the Immigration Division not to adjourn theadmissibility hearing, she viewed

section 87 of the Act to be applicable. Alternatively, if the disclosure did not fall within the adjournedapplication for judicial review, the Judge decided that the documents had been disclosed pursuant to a matter within the Act and rule 4 ofthe Federal Courts Rules would “bridge the gap” and allow the Court to adopt, by analogy, the

section 87 procedure. [20] For the reasons that follow, I am of the view that the Judge was correct to reject the application of

section 38 of the Evidence Actand to find that the Federal Court had jurisdiction. However, I respectfully disagree that the source of the Court’s jurisdiction was section87 of the Act. In my view, as explained below, the Court’s jurisdiction was founded upon

section 44 [as am. by S.C. 2002, c. 8, s. 41] ofthe Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. idem, s. 14)] and the Federal Court’s plenary jurisdiction over disclosure inimmigration matters. [21] Turning first to the potential application of

section 38 of the Evidence Act,

section 38 is set out in the appendix to these reasons.Generally, it provides a mechanism for the protection of information where in a proceeding a person is required to disclose, or expects todisclose or cause to be disclosed, sensitive or potentially injurious information (subsection 38.01(1) [as enacted by S.C. 2001, c. 41, s.43]) or believes that such information is about to be disclosed (subsections 38.01(2) [as enacted idem] and (4) [as enacted idem]) or maybe disclosed (subsection 38.01(3) [as enacted idem]). In such circumstances, where proper notification has been given to the Attorney

General of Canada, the Attorney General may apply to the Federal Court for an order with respect to the disclosure of information aboutwhich notice was given under any of subsections 38.01(1) to (4). [22] However, just as

section 39 [as am. by S.C. 1992, c. 1, s. 144, Sch. VII, item 5(F)] of the Evidence Act has no application afterthe disclosure of sensitive information (Babcock v. Canada (Attorney General), 2002 SCC 57, [2002] 3 S.C.R. 3, at paragraph 26), in myview,

section 38 has no application as a mechanism to retrieve information already disclosed. Nothing in the language of

section 38speaks to its application after disclosure has been made. It is confined by its language to the future disclosure of sensitive or potentiallyinjurious information. [23] As to the potential application of

section 87 of the Act, the

section provides that: Application for non-disclosure —judicial review 87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence.Section 83 — other than the obligations to appoint a special advocate and to provide a

summary — applies to theproceeding with any necessary modifications. [24] The ordinary meaning of this text is that

section 87 applies only during an application for judicial review when the Minister mayapply for leave not to disclose information that, but for the granting of leave, would be producible (generally as part of the certifiedtribunal record). Thus, on its plain language,

section 87 applies to prevent disclosure. It is not intended to apply as a mechanism toretrieve information after disclosure has been made. [25] Moreover, with respect to the requirement that there be a pending application for judicial review, it is common ground that noapplication for judicial review had been brought with respect to the pending application for ministerial relief made under subsection34(2) of the Act.

The Judge found, however, that by obtaining a stay of the admissibility hearing and an adjournment of the applicationfor judicial review of the Immigration Division’s decision not to adjourn the admissibility hearing, Mr. Sellathurai had “inextricablylinked” the subsection 34(2) application and the application for judicial review. Thus, in her view,

section 87 of the Act becameapplicable. [26] I again respectfully disagree. As explained above,

section 87 applies to the anticipated disclosure of information relevant to apending application for judicial review. The language of the French version of

section 87 is express that the application for the non-disclosure of information or other evidence may be made “dans le cadre d’un contrôle judiciaire”. [27] In the present case, what was relevant to the pending application for judicial review was information or evidence about thepropriety of the refusal of the Immigration Division to grant a further adjournment. The information at issue which was inadvertentlydisclosed is information relevant to whether Mr. Sellathurai was inadmissible. Therefore, it is not clear that the information at issue isrelevant to the pending application for judicial review.

More to the point, there is no evidence that the information inadvertentlydisclosed in the ministerial relief application formed part of the record before the Immigration Division so as to be producible in thejudicial review of the decision refusing an adjournment. [28]

Section 87 applies only to protect information that is producible in a pending application for judicial review. The linkage to afuture, perhaps related, judicial review is insufficient to make

section 87 applicable to documents or information not otherwiseproducible in the pending application for judicial review. [29] Before leaving

section 87, brief mention should be made of rule 4 of the Federal Courts Rules, known as the gap rule. Rule 4states: Mattersnotprovidedfor 4. On motion, the Court may provide for any procedural matter not provided for in these Rules or in

an Act of Parliament byanalogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of theproceeding most closely relates. [30] Rule 4 exists to ensure that there are no gaps of a procedural nature. Thus, in cases such as Mohammed v. Canada (Minister ofCitizenship and Immigration), 2006 FC 1310, [2007] 4 F.C.R. 300, rule 4 has been applied in order to fill a lacuna in the Rules fordealing with sensitive information.

However, in those cases there was no doubt that the proceedings were properly commenced in theFederal Court and that it possessed jurisdiction (see Mohammed, at paragraphs 18 to 20). What was missing was a procedural mechanismfor the protection of sensitive information within the proceeding. Where, however, as in this case the jurisdiction of the Federal Court isin doubt, rule 4 cannot be relied upon to confer substantive jurisdiction on the Federal Court. [31] Having considered

section 38 of the Evidence Act and

section 87 of the Act, I now turn to

section 44 of the Federal Courts Act.The

section states: Mandamus,injunction, specificperformance orappointment ofreceiver 44. In addition to any other relief that the Federal Court of Appeal or the Federal Court may grant or award, amandamus, an injunction or an order for specific performance may be granted or a receiver appointed by that courtin all cases in which it appears to the court to be just or convenient to do so. The order may be made eitherunconditionally or on any terms and conditions that the court considers just. [Emphasis added.] [32] In Canada (Human Rights Commission) v.

Canadian Liberty Net, (SCC), [1998] 1 S.C.R. 626, the SupremeCourt considered the ambit of this provision.

The majority of the Court observed [at paragraph 33] that by virtue of sections 3 [as am. byS.C. 2002, c. 8, s. 16], 18 [as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26] and 18.1 [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27]of what is now the Federal Courts Act, the Federal Court was made “a court of review and of appeal which stands at the apex of all theadministrative decision-makers on whom power has been granted by individual Acts of Parliament.” At paragraph 36, Justice Bastarachewrote for the majority:

As is clear from the face of the Federal Court Act , and confirmed by the additional role conferred on it in other federal Acts, in this case the Human Rights Act , Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should not be interpreted in a narrow fashion.

This means that where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction . [Emphasis added.] [ 33 ] The majority of the Court concluded that when the then Federal Court Act [R.S.C., 1985, c. F-7] and the Canadian Human Rights Act , R.S.C., 1985, c. H-6, were read together, it was intended that

section 44 of the Federal Courts Act conferred jurisdiction on the Federal Court to grant an interlocutory injunction enjoining a party to proceedings before the Human Rights Tribunal from making available messages likely to expose persons to hatred or contempt on the basis of any prohibited ground of discrimination. [ 34 ] In the present case, in addition to sections 3 , 18 and 18.1 of the Federal Courts Act , subsection 72(1) of the Act confers a broad supervisory jurisdiction upon the Federal Court with respect to matters arising under the Act. In the words of subsection 72(1) : Application for judicial review 72.

(1) Judicial review by the Federal Court with respect to any matter — a decision, determination or order made, a measure taken or a question raised — under this Act is commenced by making an application for leave to the Court. [ 35 ] The disclosure of information to an applicant for ministerial relief that is required by the principles of procedural fairness, and the control over such disclosure, are clearly related to the jurisdiction of the Federal Court to supervise the exercise of ministerial discretion to grant or withhold relief under subsection 34(2) of the Act .

It follows, as in Liberty Net , that the Federal Court has plenary jurisdiction over the disclosure process. [ 36 ] In Liberty Net , the majority went on to note the requirement that there be “valid federal law which nourishes the statutory grant of jurisdiction” and that the “dispute over which jurisdiction is sought must rely principally and essentially on federal law” (paragraph 43). [ 37 ] In the present case, this requirement is met in the body of law relating to national security privilege and public interest immunity, as evidenced in

section 38 of the Evidence Act, those provisions of the Act relating to the protection of information where disclosure would be injurious to national security or the safety of any person and the Security of Information Act , R.S.C., 1985, c. O-5. [ 38 ] To conclude, I find that the Federal Court had plenary jurisdiction to hear and adjudicate upon the Minister’s motion for injunctive relief. The source of the jurisdiction was

section 44 of the Federal Courts Act and the Federal Court’s plenary jurisdiction over disclosure in immigration matters. Because the Federal Court’s power to order the return of the documents derived from

section 44 of the Federal Courts Act , the preclusive provisions of paragraphs 72(2) (

e) and 74 (

d) of the Act do not apply. There was, therefore, no requirement that a question be certified in order for this appeal to be properly brought and so this Court may consider the issues raised by the appellant in this case. 4. If the Federal Court erred by applying

section 87 of the Act , what was the proper procedure to follow? [ 39 ] Because the Federal Court’s jurisdiction was not based directly or indirectly upon

section 87 of the Act , it possessed jurisdiction whether or not any related application for judicial review happened to be pending before the Federal Court. Irrespective of whether related proceedings were already in existence, in my view the proper procedure to be followed was that followed by the applicant in Liberty Net .

What is now known as a notice of application should have been filed seeking injunctive relief, and the application should have been supported by appropriate affidavit evidence. [ 40 ] In the present case, the Minister moved by way of notice of motion filed within the pending application for judicial review of the decision of the Immigration Division. In my view, this was not fatal to the present application. The notice of motion fully disclosed the grounds relied upon by the Minister and referred to

section 44 of the Federal Courts Act . The motion was supported by appropriate affidavit evidence. The failure to comply with the Federal Courts Rules does not render a proceeding, or a step in the proceeding, void ( rule 56 ). 5. Did the Federal Court err in concluding that the inadvertently disclosed documents could be returned to the Minister? [ 41 ] The Minister’s motion sought injunctive relief, primarily the return of the three documents released to Mr. Sellathurai that were said to contain information that was subject to national security privilege.

Ancillary relief was sought in the form of an order that any copies of the three documents, and any notes related to the content of the privileged information, be destroyed. Mr. Sellathurai’s counsel has advised that no copies were made and there is no suggestion that any notes were made about the content of the documents. Accordingly, on this appeal the challenge is made only to the Judge’s order that the documents be returned to the Minister. Mr.

Sellathurai argues that there is no statutory provision which would allow the Court to order the recall of documents previously disclosed. [ 42 ] For the above reasons, I am satisfied that the Federal Court possessed jurisdiction to grant injunctive relief mandating the return of the three documents. The question then becomes whether the Judge erred in the exercise of her discretion by ordering the return of the three documents. [ 43 ] Based on my review of the motion records, Mr.

Sellathurai did not seriously dispute in the Federal Court the Minister’s claim that a portion of the information contained in the three documents was information that was subject to national security privilege. Nor did he seriously dispute that the information had been disclosed inadvertently. [ 44 ] In this Court, Mr. Sellathurai’s counsel candidly acknowledged that at least some of the content of the three documents is information that is subject to national security privilege. I have read the documents and agree with that characterization.

Further, based upon the content of the documents, I accept without reservation the evidence of the Minister that the disclosure was inadvertent. [ 45 ] The Judge concluded on the evidence before her that the claim to national security privilege over portions of the three documents

was not waived by their inadvertent disclosure. That conclusion was not challenged on appeal. [ 46 ] All of these factors support the grant of injunctive relief. However, the consequence of ordering the return of the documents was to leave Mr. Sellathurai’s counsel with redacted versions of the relevant documents. This limited his counsel to making submissions to the Court and to the Minister based upon the redacted documents. I consider below whether the Judge erred by limiting Mr.

Sellathurai to responding to the redacted reports prepared by the Canadian Security Intelligence Service, by ordering the return of the documents and approving the redacted versions provided in their place. I also consider whether the Judge erred by relying upon the jurisprudence relevant to sections 87 and 87.1 of the Act when she declined to appoint a special advocate or an amicus . 6. Did the Federal Court err in law by applying the jurisprudence relevant to the appointment of a special advocate under sections 87 and 87.1 of the Act , or by failing to consider whether it was procedurally fair to limit Mr.

Sellathurai to responding to the redacted version of the documents when making submissions to the Court and the Minister? [ 47 ] Mr. Sellathurai argued before the Federal Court that: 1. The Minister’s claim to national security privilege was overbroad. He asserted that some of the information the Minister sought to redact had been previously disclosed in the course of immigration proceedings. 2. Redacting the information was unfair in that the redacted documents left a distorted impression of the case against Mr. Sellathurai.

His counsel could only make submissions to the Minister based on the redacted documents. 3. Even if national security privilege was established, the law does not require in every case that inadvertently disclosed documents be returned. Reliance was placed upon the decision of the Federal Court in Khadr v. Canada (Attorney General) , 2008 FC 549 , 329 F.T.R. 80. There, in the context of an application under

section 38 of the Evidence Act, the Court wrote, at paragraph 118: However, I see no practical purpose would be achieved at this time by requiring counsel for the applicant to destroy or return their copies of the unredacted inadvertent disclosures. These documents have remained in their possession for over a year without any apparent resulting harm to the protected national interests. I think it sufficient that the information not be further disclosed. There is some information in the list of inadvertent disclosures which counsel for the applicant indicated could be of assistance to his client. Those details are included in the

summary which is to be provided to counsel and may be used in the extradition proceedings. [Emphasis added.] 4. In view of the overbroad claim to national security privilege it was essential that a special advocate or an amicus curiae be appointed to respond to evidence and submissions made in camera and ex parte . [ 48 ] As indicated in her reasons [at paragraph 51], the Judge was satisfied that she could review the three documents and determine both the claim to national security privilege and the propriety of the redactions to the documents without the benefit of a special advocate or amicus .

Indeed, her ability to do so and her conclusion that “disclosure of the unredacted disputed documents would be injurious to national security” was one of the grounds she relied upon in order to conclude that fairness did not require the appointment of a special advocate (or amicus ) to advance Mr. Sellathurai’s interests. [ 49 ] Once satisfied information contained in the three documents was subject to national security privilege, the Judge ordered the return of the documents. The Judge did not consider in her reasons Mr.

Sellathurai’s submission that even if a claim to national security privilege was established, the Court had discretion to permit some use of the information previously disclosed to his counsel. The Judge, therefore, did not consider whether fairness required that Mr. Sellathurai’s counsel be permitted to make some limited use of the previously disclosed information in any fashion, for example by making closed, confidential submissions to the Court or the Minister. The Judge rejected Mr.

Sellathurai’s request for the appointment of an amicus curiae or special advocate, applying the factors relevant to an analysis under sections 87 and 87.1 of the Act . [ 50 ] The three main issues of fairness that arise on the facts of this appeal are as follows: 1. the manner in which the Judge considered the appointment of a special advocate or amicus curiae ; 2. the use, if any, that Mr.

Sellathurai or his counsel might make of the information which was inadvertently disclosed to them; and 3. the scope of the redactions made in the three relevant documents. [ 51 ] Turning first to the issue of a special advocate or amicus curiae , because

section 87 of the Act did not apply to the circumstances before the Court, there was no basis at law for the appointment of a special advocate. This role was created by Parliament, and the circumstances when a special advocate may be appointed are limited to those provided for in the Act. It was, however, open to the Judge to appoint an amicus curiae if persuaded that such appointment was necessary to assist the Court to arrive at a full and fair determination of the fairness issues ( Khadr v.

Canada (Attorney General) , 2008 FC 46 , [2008] 3 F.C.R. 306, at paragraph 19 , citing Liberty Net , at page 641). [ 52 ] As noted above, the Judge rejected the request for the appointment of an amicus curiae by applying the factors applicable to the appointment of a special advocate. Specifically, the Judge considered that she had already found that disclosure of the documents would be injurious to national security; the nature of the ministerial relief application was distinguishable from security certificates and detention review proceedings; Mr.

Sellathurai was neither detained nor facing imminent removal; and the Minister had not yet made his decision so it was uncertain whether he would rely upon the redacted information. [ 53 ] In the unique circumstances before the Court it was, in my view, an error of law for the Judge to dismiss the request for the appointment of an amicus on this basis. As explained below, by doing so the Judge failed to consider that in this case the information subject to national security privilege had already been disclosed to Mr. Sellathurai. This fact distinguished the jurisprudence relied upon by the Judge.

[ 54 ] The order recalling the documents originally provided by the Minister and the substitution of redacted documents, prevented counsel for Mr. Sellathurai from making submissions to the Court or to the Minister on the unredacted information, both because of the practical reality of the absence of the unredacted documents and because of the constraint that information protected by national security privileges not be disclosed. Further, having seen the privileged information, Mr. Sellathurai’s counsel’s ability to respond to the redacted documents was constrained.

She could no longer speculate about the content of the redactions and then address responsive submissions to the imputed content of the redactions. [ 55 ] In these circumstances, the appointment of an amicus , perhaps authorized by the Court to have discussions with counsel for Mr. Sellathurai before having access to the privileged information, would allow submissions directed to Mr. Sellathurai’s concerns to be made to the Court based upon the confidential record.

This was a relevant factor the Judge should have considered, and which was not addressed in the jurisprudence the Judge relied upon to reject the appointment of an amicus. [ 56 ] Turning to the remaining issues of fairness, because the Judge did not address the use, if any, Mr. Sellathurai and his counsel could make of the privileged information on this appeal, the Court’s task is not to determine the merits of this issue. Rather, if the Court finds that there is an air of reality to Mr.

Sellathurai’s fairness concerns, the matter should be remitted to the Federal Court for consideration. [ 57 ] For the following reasons, I believe there was an air of reality to the concerns raised by Mr. Sellathurai. Therefore it was, in my respectful view, an error for the Judge to fail to consider Mr. Sellathurai’s submission that, in the circumstances, fairness required that his counsel be permitted to make some limited use of the information inadvertently disclosed by the Minister. Restricting counsel to making submissions upon the redacted record limited the ability of Mr.

Sellathurai’s counsel to argue before the Judge that the redactions proposed by the Minister were overbroad, and that some of the redacted information had been disclosed in previous proceedings. Once Justice Hughes ordered that three documents be delivered to the Court, how was Mr. Sellathurai to establish that the national security claim to privilege was overbroad?

Aside from the difficulty posed by taking the three documents from his counsel’s possession, in order to show information now redacted had previously been disclosed, he and his counsel would have been required to disclose the substance of the redacted information. As well, limiting counsel to the redacted information further hampered Mr. Sellathurai’s ability to make future submissions to the Minister on the full record. [ 58 ] In these circumstances, the Judge was required to consider Mr. Sellathurai’s submissions that his counsel be permitted to make some use of the confidential information.

Until these submissions were dealt with it was premature for the Judge to order the return of the documents. [ 59 ] For these reasons, I have concluded that the Judge erred by failing to consider the particular circumstances in this case when deciding on Mr. Sellathurai’s request for the appointment of an amicus and by failing to consider what, if any, use Mr.

Sellathurai could make of the information that had been disclosed to him. [ 60 ] I wish to stress, however, that nothing in these reasons should be taken to mean that fairness requires that an amicus be appointed, or that the redactions be reduced, or that Mr. Sellathurai’s counsel be permitted to make some limited use of the information subject to national security privilege. I am simply of the view that the Judge was required at law to consider the issues of fairness raised by Mr. Sellathurai.

Conclusion [ 61 ] I have come to the same conclusion as the Judge on the power of the Federal Court to issue the order, but for different reasons. [ 62 ] However, I have come to the conclusion that the appellant’s requests that an amicus curiae be appointed and that an appropriate remedy be devised in view of the fact that the information has been disclosed to him should be considered. [ 63 ] For these reasons, I would allow the appeal to the limited extent of remitting the matter to Justice Snider, or another designated judge of the Federal Court (as may be determined by the Chief Justice of the Federal Court), for the purpose of considering whether in the circumstances an amicus curiae should be appointed to assist the Court and what, if any, remedy is required by application of the principles of procedural fairness as a result of the inadvertent disclosure to Mr.

Sellathurai of three documents that contained privileged information. [ 64 ] In all other respects, I would dismiss the appeal.

Postscript [ 65 ] By letter dated May 13, 2011 counsel for the Minister wrote requesting “the return of this secret material following the rendering of a judgment in the aforementioned appeal file in accordance with the registry’s usual procedure in such matters”. [ 66 ] This is a request that the confidential affidavit filed with the Federal Court on an ex parte basis to support the claim of national security privilege be returned. [ 67 ] The affidavit in question is one similar to that which is filed in support of an application under

section 87 of the Act . I know of no practice whereby such affidavits are returned to the Minister, and such a practice would not be consistent with sections 3 and 4 [as am. by S.C. 2002, c. 8 , s. 16] of the Federal Courts Act which continue this Court and the Federal Court as superior courts of record. The affidavit shall not be returned. It forms part of the confidential record of the Federal Court. Létourneau J.A.: I agree. Stratas J.A.: I agree. APPENDIX

Section 38 of the Canada Evidence Act reads as follows [“judge” (as enacted by S.C. 2001, c. 41 , ss. 43, 141), “participant” (as enacted idem , s. 43), “potentially injurious information” (as enacted idem ), “proceedings” (as enacted idem ), “prosecutor” (as enacted idem ), “sensitive information” (as enacted idem ), 38.01 (as enacted idem ), 38.02 (as enacted idem , ss. 43, 141), 38.03 (as enacted idem , s. 43), 38.031 (as enacted idem , ss. 43, 141), 38.04 (as enacted idem ), 38.05 (as enacted idem , s. 43), 38.06 to 38.13 (as enacted idem ), 38.131 (as enacted idem ; 2004, c. 12, s. 19(E) ), 38.14 to 38.16 (as enacted by S.C. 2001, c. 41, s. 43)]:

Definitions 38. The following

definitions apply in this

section and in sections 38.01 to 38.15. “judge” « juge » “judge” means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice to conduct hearings under

section 38.04. “participant” « participant » “participant” means a person who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information. “potentially injurious information” « renseignement potentiellement préjudiciables » “potentially injurious information” means information of a type that, if it were disclosed to the public, could injure international relations or national defence or national security. “proceeding” « instance » “proceeding” means a proceeding before a court, person or body with jurisdiction to compel the production of information. “prosecutor” « poursuivant » “prosecutor” means an agent of the Attorney General of Canada or of the Attorney General of a province, the Director of Military Prosecutions under the National Defence Act or an individual who acts as a prosecutor in a proceeding. “sensitive information” « renseignements sensibles » “sensitive information” means information relating to international relations or national defence or national security that is in the possession of the Government of Canada, whether originating from inside or outside Canada, and is of a type that the Government of Canada is taking measures to safeguard.

Notice to Attorney General of Canada 38.01

(1) Every participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the participant believes is sensitive information or potentially injurious information shall, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding. During a proceeding

(2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act . Notice of disclosure from official

(3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding. During a proceeding

(4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a proceeding may raise the matter with the person presiding at the proceeding. If the official raises the matter, he or she shall notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act . Military proceedings

(5) In the case of a proceeding under

Part III of the National Defence Act , notice under any of subsections (1) to (4) shall be given to both the Attorney General of Canada and the Minister of National Defence. Exception

(6) This

section does not apply when (

a) the information is disclosed by a person to their solicitor in connection with a proceeding, if the information is relevant to that proceeding; (

b) the information is disclosed to enable the Attorney General of Canada, the Minister of National Defence, a judge or a court hearing an appeal from, or a review of, an order of the judge to discharge their responsibilities under

section 38 , this

section and sections 38.02 to 38.13, 38.15 and 38.16; (

c) disclosure of the information is authorized by the government institution in which or for which the information was produced or, if the information was not produced in or for a government institution, the government institution in which it was first received; or (

d) the information is disclosed to an entity and, where applicable, for a purpose listed in the schedule. Exception (7) Subsections (1) and (2) do not apply to a participant if a government institution referred to in paragraph (6)(

c) advises the participant that it is not necessary, in order to prevent disclosure of the information referred to in that paragraph, to give notice to the Attorney General of Canada under subsection (1) or to raise the matter with the person presiding under subsection (2).

Schedule

(8) The Governor in Council may, by order, add to or delete from the

schedule a reference to any entity or purpose, or amend such a reference.

Disclosure prohibited 38.02

(1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding (

a) information about which notice is given under any of subsections 38.01(1) to (4); (

b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5); (

c) the fact that an application is made to the Federal Court under

section 38.04 or that an appeal or review of an order made under any of subsections 38.06(1) to (3) in connection with the application is instituted; or (

d) the fact that an agreement is entered into under

section 38.031 or subsection 38.04(6). Entities

(1.1) When an entity listed in the schedule, for any purpose listed there in relation to that entity, makes a decision or order that would result in the disclosure of sensitive information or potentially injurious information, the entity shall not disclose the information or cause it to be disclosed until notice of intention to disclose the information has been given to the Attorney General of Canada and a period of 10 days has elapsed after notice was given. Exceptions

(2) Disclosure of the information or the facts referred to in subsection (1) is not prohibited if (

a) the Attorney General of Canada authorizes the disclosure in writing under

section 38.03 or by agreement under

section 38.031 or subsection 38.04(6); or (

b) a judge authorizes the disclosure under subsection 38.06(1) or (2) or a court hearing an appeal from, or a review of, the order of the judge authorizes the disclosure, and either the time provided to appeal the order or judgment has expired or no further appeal is available. Authorization by Attorney General of Canada 38.03

(1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1). Military proceedings

(2) In the case of a proceeding under

Part III of the National Defence Act , the Attorney General of Canada may authorize disclosure only with the agreement of the Minister of National Defence. Notice

(3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under

section 38.01 about that information of his or her decision with respect to disclosure of the information. Disclosure agreement 38.031

(1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(

b) to (

d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court under paragraph 38.04(2)( c ), enter into an agreement that permits the disclosure of part of the facts or information or disclosure of the facts or information subject to conditions. No application to Federal Court

(2) If an agreement is entered into under subsection (1), the person may not apply to the Federal Court under paragraph 38.04(2)(

c) with respect to the information about which he or she gave notice to the Attorney General of Canada under subsection 38.01(1) or (2). Application to Federal Court — Attorney General of Canada 38.04

(1) The Attorney General of Canada may, at any time and in any circumstances, apply to the Federal Court for an order with respect to the disclosure of information about which notice was given under any of subsections 38.01(1) to (4). Application to Federal Court — general

(2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under

section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions, (

a) the Attorney General of Canada shall apply to the Federal Court for an order with respect to disclosure of the information if a person who gave notice under subsection 38.01(1) or (2) is a witness; (

b) a person, other than a witness, who is required to disclose information in connection with a proceeding shall apply to the Federal Court for an order with respect to disclosure of the information; and (

c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information. Notice to Attorney General of Canada

(3) A person who applies to the Federal Court under paragraph (2)(

b) or (

c) shall provide notice of the application to the Attorney General of Canada. Court records

(4) An application under this

section is confidential. Subject to

section 38.12, the Chief Administrator of the Courts Administration Service may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates.

Procedure

(5) As soon as the Federal Court is seized of an application under this section, the judge (

a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under

Part III of the National Defence Act , the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter; (

b) shall decide whether it is necessary to hold any hearing of the matter; (

c) if he or she decides that a hearing should be held, shall (

i) determine who should be given notice of the hearing, (ii) order the Attorney General of Canada to notify those persons, and (iii) determine the content and form of the notice; and (

d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations. Disclosure agreement

(6) After the Federal Court is seized of an application made under paragraph (2)(

c) or, in the case of an appeal from, or a review of, an order of the judge made under any of subsections 38.06(1) to (3) in connection with that application, before the appeal or review is disposed of, (

a) the Attorney General of Canada and the person who made the application may enter into an agreement that permits the disclosure of part of the facts referred to in paragraphs 38.02(1)(

b) to (

d) or part of the information or disclosure of the facts or information subject to conditions; and (

b) if an agreement is entered into, the Court’s consideration of the application or any hearing, review or appeal shall be terminated. Termination of Court consideration, hearing, review or appeal

(7) Subject to subsection (6), after the Federal Court is seized of an application made unde

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