2014 FC, 2014 FC 1050

Date: 20140919 Docket: DES-2-10 Citation: 2014 FC 1050 [REVISED ENGLISH TRANSLATION] BETWEEN: THE ATTORNEY GENERAL OF CANADA Applicant and HANI AL TELBANI Respondent REASONS FOR ORDER DE MONTIGNY J. [ 1 ] On June 1, 2010, the Attorney General of Canada filed in the Federal Court a notice of application, pursuant to

section 38.04(1) of the Canada Evidence Act ( CEA ), for an order with respect to the disclosure of certain excerpts in 31 documents. Said documents were to be included in the tribunal record in respect of which the two applications for judicial review filed by the respondent were made, as required by Rule 318 of the Federal Courts Rules . [ 2 ] The disclosure of the information contained in these 31 documents to the respondent was denied following notice to the Attorney General under subsections 38.01(1) and (3), as provided in subsection 38.02(1)(

a) of the CEA . The Attorney General sought to have the prohibition confirmed by the Court or, alternatively, to have the Court exercise its discretion under subsection 38.06(2) to authorize the disclosure, subject to any conditions that the judge considers appropriate to limit any injury to international relations or national defence or national security.

The respondent obviously objected to the request and sought to obtain the disclosure, of all or at the very least part, of the information the Attorney General sought to protect. [ 3 ] These reasons follow a public hearing of both parties, followed by an ex parte and in camera hearing of the applicant and his witnesses attended by two amici curiae appointed by the Court. These reasons set out the history of the proceedings, of the arguments raised by the parties and the amici and the legal principles that guided me in the processing of this application.

They are accompanied by a confidential order setting out my specific findings concerning the information for which non-disclosure was sought. History of the proceedings [ 4 ] The respondent was born on September 1982 in Saudi Arabia. Being a citizen of Palestine, he is considered to be stateless; he became a permanent resident of Canada on January 21, 2004. On June 4, 2008, he was denied the right to board an Air Canada flight to Saudi Arabia, where he was apparently going to retain his permanent resident status in that country.

In so doing, the respondent was given a copy of an Emergency Direction dated June 4, 2008, stating that the Department of Transport, Infrastructure and Communities (the Minister) had determined that he posed an immediate threat to aviation security . [ 5 ] That decision gave rise to the first application for judicial review, filed by the respondent on June 19, 2008 (docket T-973-08). The respondent challenged the decision to add his name to the Specified Persons List (SPL) as part of the Passenger Protect Program, the Emergency Direction issued under

section 4.76 of the Aeronautics Act . In the context of the application, the respondent also challenged the constitutional validity of the at-risk persons list, of Transport Canada’s Passenger Protect Program, and the above provision of the Aeronautics Act on the ground that these instruments are contrary to sections 6 , 7 and 15 of the Canadian Charter of Rights and Freedoms . [ 6 ] On June 24, 2008, a lawyer from the Department of Justice in Montréal gave to the Attorney General the notice prescribed by subsection 38.01(1) of the CEA . The notice issued was for seven (7) documents.

As a result, on July 30, 2008, Transport Canada sent a record to the respondent from which these seven documents were excluded, and subsequently sent these documents to the respondent after having redacted them. In the face of Transport Canada’s refusal to send him the full record to which he claimed to have a right of access, the respondent filed a request to obtain full disclosure of the record concerning him, under Rule 317 of the Federal Courts Rules .

Seized with this request, Justice Frenette denied the request in a decision rendered on November 27, 2008, and ordered a stay of proceedings to allow the Attorney General to file a notice of application pursuant to

section 38 of the CEA , so the matter of whether the sensitive or potentially injurious information referred to in the notice under subsection 38.01(1) could be dealt with in a separate proceeding, pursuant to

section 38.04 of the CEA . The respondent appealed that decision, but discontinued his appeal on September 22, 2009. [ 7 ] At the same time as the first application for judicial review, the respondent filed an emergency request for reconsideration with Transport Canada’s Office of Reconsideration (the Office) on June 6, 2008. On October 29, 2008, the Office recommended that the Deputy Minister declare that the decision to put the respondent’s name on the SPL and to issue an Emergency Direction was void and of no effect. Accordingly, the Office recommended that the respondent’s name be removed from the SPL.

The respondent was only informed of that recommendation in June 2009; no information was provided to the Court as to why it took that long to advise him of this decision. [ 8 ] On September 10, 2009, the Deputy Minister of Transport decided not to follow the Office’s recommendation and concluded that he had reasonable suspicion that the respondent may pose a threat to aviation.

He accordingly decided to keep the respondent’s name on the SPL. [ 9 ] Following this new decision, on October 14, 2009, the respondent filed a second application for judicial review (docket T-1696-09). [ 10 ] On April 8, 2010, an “official” within the meaning of subsection 38.01(3) of the CEA notified the Attorney General that sensitive information or potentially injurious information could be disclosed in the course of a proceeding. Said notice involved information contained in the 31 documents.

On April 15, 2010, the Attorney General authorized the full disclosure of the seven documents and the disclosure of a redacted version of the other 24 documents; the respondent received said documents on May 7, 2010. [ 11 ] On April 23, 2010, the Chief Justice ordered that the two applications for judicial review proceed simultaneously and that Transport Canada’s record be transmitted to the Registry, including the documents in their redacted form. Justice Frenette’s order was also stayed, and it was decided that the timelines and proceedings associated with an application under

section 38 of the CEA be the subject of a case management conference. [ 12 ] On June 1, 2010, the Attorney General filed his application for non-disclosure pursuant to subsection 38.04(1) of the CEA for the two applications for judicial review. Subsequently, on June 21, 2010, the Attorney General filed a copy of the public affidavit of “Eric”, an employee of the Canadian Security Intelligence Service (the Service) in support of his application. On August 27, 2010, the respondent filed a motion to strike said affidavit which was dismissed on December 22, 2010.

This affidavit was to ultimately be replaced by an identical affidavit sworn by another employee of the Service, Robert Young. The affidavit explains in general terms the Service’s mandate, the reasons that the Service’s investigations must remain secret and the various categories of information the disclosure of which, in the Service’s view, would be injurious to Canada’s national security . [ 13 ] Pursuant to an order of the Chief Justice rendered on June 22, 2010, Mr.

Al Telbani was named by the Court as respondent in the present case, by virtue of his being a party whose interests are affected by the information for which the Attorney General seeks a non-disclosure order. [ 14 ] On November 10, 2010, the Court ordered the appointment of two counsel as amici curiae (the amici ) in this case, François Dadour and Sylvain Lussier. The normal course of proceedings was however interrupted by the motion filed by the respondent on February 17, 2011, seeking payment of his costs from the applicant.

The undersigned dismissed the motion on July 27, 2011, and the appeal from that decision was dismissed on June 20, 2012. Following a direction issued by this Court on April 4, 2013, setting the time limits for the prosecution of this case, the Attorney General filed his public affidavit on May 6, 2013, and the respondent filed his own affidavit on May 31, 2013. [ 15 ] The public hearing of both parties was held in Montréal on October 15, 2013.

Discussions subsequently ensued between the amici and counsel for the Attorney General regarding the information in respect of which non-disclosure is sought by the Attorney General. The amici made various proposals to which counsel for the Attorney General responded. At the end of that process, which occurred over a period of a few months, 16 of the 31 documents containing information the Attorney General seeks to protect were the subject of a common position between counsel for the Attorney General and the amici .

As for the other 15 documents, they were the subject of a partial agreement: the amici and the Attorney General agreed that certain information should be protected, but disagreed about other information. [ 16 ] Following that process, an ex parte and in camera hearing was held in Ottawa on April 3, 4 and 11, 2014. On that occasion, the Attorney General called the two witnesses who swore secret affidavits in support of the application for non-disclosure, and the amici were able to conduct their cross-examination.

The amici then filed their submissions, on the basis of the written submissions they had previously filed with the Court and served on the applicant, and counsel for the Attorney General did the same, also on the basis of the written submissions filed earlier with the Court and served on the amici .

Issues [17] The central question raised by this application is, of course, whether the prohibition to disclose the information identified by the Attorney General, as provided for inparagraph 38.02(1)(

a) of the CEA, must be confirmed by this Court pursuant to subsection 38.06(3), or whether the disclosure must be authorized, in full or subject to certain conditions,pursuant to subsections 38.06(1) or (2). [18] The amici however raised a few preliminary questions about their role and function, about the limited nature of the main piece of information in issue and about theuncertainty arising from the current lack of alternative to the non-disclosure of the disputed information in the underlying proceeding.

I will deal with the last two questions as part of mysummary of the principles that will guide me in reviewing the Attorney General’s application, while addressing the role of the amici in the introduction to my remarks. The legal framework [19] It is certainly not necessary to reiterate that the open court principle is a fundamental principle of our legal system.

The restrictions on this principle by Parliament and thecase law have been carefully delineated, and arise from the balancing sometimes required to take into account other important interests to protect, such as informant privilege, or to protectthe right of an individual to a fair hearing: see Named Person v Vancouver Sun, 2007 SCC 43, [2007] 3 SCR 253; Charkaoui (Re), 2008 FC 61; Bisaillon v Keable, (SCC),[1983] 2 SCR 60. [20] Sections 38 and seq of the CEA create another restriction on the open court principle.

Section 38.01 requires every participant, as well as all officials, other than a participant,to notify the Attorney General of the possibility of disclosure of sensitive or potentially injurious information. The Attorney General of Canada shall, within 10 days after the day on whichhe or she receives a notice, make a decision with respect to disclosure of the information (section 38.03(3)). In the event that the Attorney General does not unconditionally authorize thedisclosure of information and no disclosure agreement is entered into, the disclosure issue may come before the Federal Court (section 38.04).

Such an application does not constitute ajudicial review of the Attorney General’s decision; the designated judge seized of the application must rather determine whether or not the prohibition to disclose the information sought tobe protected should be confirmed. [21] The relevant provisions of the CEA in this regard are reproduced in Appendix A, namely, 38.01(1) and (3), 38.02(1), 38.03, 38.031, 38.04, 38.06. [22] In the exercise of his or her powers under sections 38 et seq of the CEA, the designated judge applies the tests developed by the Federal Court of Appeal in Canada (AttorneyGeneral) v Ribic, 2003 FCA 246.

The judge must first determine whether or not the information sought to be disclosed is relevant to the proceedings in which it is intended to be used. Theapplicant for disclosure bears that burden. If the judge is satisfied that the information is relevant, the judge must then determine whether disclosure of that information would be injuriousto international relations, national defence or national security.

At this stage, the Attorney General must prove the potential injury if disclosure of the information were to be ordered.Finally, if satisfied that disclosure of the sensitive information would result in injury, the judge must determine whether the public interest in disclosure outweighs in importance the publicinterest in non-disclosure. The burden of proving that the public interest scale is tipped in favour of disclosure rests with the party seeking it.

This three step test was adopted by this Courtin a number of cases (see, inter alia, Canada (Attorney General) v Khawaja, 2007 FC 490, [2008] 1 FCR 547; Canada (Attorney General) v Canada (Commission of Inquiry into theActions of Canadian Officials in Relation to Maher Arar), 2007 FC 766, [2008] 3 FCR 248; Khadr v Canada (Attorney General), 2008 FC 549), and the parties agree on its application inthe present application.

Analysis [23] As noted above, I will now address the role of the amici in this proceeding, before turning to consider the principles that will guide me in reviewing the Attorney General’sapplication for an order. - The role of the amici in this proceeding [24] The amici argued, in their written submissions, that the mandate and responsibilities vested in them leads them to playing a [Translation] “role opposite” to that of the publicdepartment.

During the hearing, they went even further by asserting that the interests of the amici and those of counsel for the respondent converge as they are equally [Translation]“adversaries” of the Attorney General. They rely on the wording of the order ordering their appointment, particularly their power to “cross-examine” the applicant’s affiants and witnesses,as well as the need for a [Translation] “robust” system to ensure a just determination of the issues as part of an in camera and ex parte proceeding. [25] This understanding of the role the amici are called upon to play in proceedings conducted under

section 38 of the CEA, at least in the context of an underlying civilproceeding, is erroneous in my view. Although the perception of their role did not have a significant impact on the conduct of this matter where the amici discharged the mandate given tothem by in strict accordance with the terms of the order, it is nevertheless important to note the spirit in which they must normally approach their functions. [26] Sections 38 et seq of the CEA do not explicitly provide for the possibility for the Court to appoint an amicus. However, it is well established that the Court may, on its owninitiative, appoint an amicus when entertaining an application under

section 38 of the CEA: Harkat (Re), 2004 FC 1717, at paragraph 20. Chief Justice Lutfy also indicated in Canada(Attorney General) v Khawaja, 2007 FC 463 (at paragraph 57) that the judge’s discretion to appoint an amicus for the purposes of an application under

section 38 contributed to assuringadherence to the principles of fundamental justice in the national security context. Indeed, the Attorney General did not contest the appointment of the two amici in this case and agreed atthe outset with such an appointment. [27] That said, there is no precise definition of the role of amicus that is applicable to all possible situations where a court may find it beneficial to obtain advice from a lawyer notacting on behalf of the parties: R v Cairenius (2008), (ON SC), 232 CCC(3d) 13, at paragraphs 52-59; R v Samra (1998), (ON CA), 41 O.R.(3d) 434(C.A).

It is generally agreed that the appointment of an amicus is generally intended to represent interests that are not represented before the court, to inform the court of certain factors itwould not otherwise be aware of, or to advise the court on a question of law: see Attorney General of Canada et al v Aluminium Company of Canada, (1987) (BC CA), 35DLR (4th) 495, at page 505 (BCCA). [28] There is no doubt, however, that the amicus is not the accused’s lawyer (in a criminal proceeding) or respondent (in a civil proceeding). The role of an amicus is not any moreanalogous to that of a special advocate appointed under

section 83 of the IRPA in the context of a security certificate. The role of the amicus is to assist the court and ensure the properadministration of justice, and the sole [Translation] “client” of the amicus is the court or the judge that appointed him or her.

As Justice Fish (speaking on behalf of the dissenting judges)pointed out in Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (at paragraph 87), “[o]nce appointed, the amicus is bound by a duty of loyalty and integrity to the courtand not to any of the parties to the proceedings”. [29] It cannot be otherwise if the amicus is to be able to fully carry out the role assigned to him or her. Indeed, it is not inconceivable that he or she may be required to raisearguments or points of law that are not necessarily favourable to the accused or the respondent.

Indeed, that is the reason that the Supreme Court unanimously concluded in CriminalLawyers’ Association that a lawyer appointed as amicus who takes on the role of defence counsel is no longer a friend of the court (see paragraphs 56 for the majority and 114 for theminority). Although the Court was divided on the issue of whether a superior court has the inherent power to set rates of remuneration for amici, all the judges considered that the role of anamicus and that of defence counsel are incompatible.

I find that the same is true in a civil proceeding, although the dividing line may not always be so clear cut and the consequences of theblurring of lines may not be as dramatic. [30] In short, playing a role that may sometimes be opposite to that of the Attorney General does not make the amicus a defence counsel or counsel for the civil party.

Theobjective of the amicus and the state of mind in which he or she acts is not to assume the role of an advocate for the accused or the respondent, but to provide the Court with insight that itwould not otherwise obtain and to assist it in making a decision that is in the best interests of justice. The fact that these interests may converge in certain circumstances does not changeanything and merely represents, in a manner of speaking, a marginal benefit resulting from the appointment of amicus.

He or she must therefore act at all times with transparency, withoutever attempting to take counsel for the Attorney General by surprise. The tactics and strategies that defence counsel, and even, in certain circumstances, a special advocate, may properlyuse are misplaced in a proceeding under

section 38 of the CEA. [31] That said, the role of the amicus in such a proceeding may be modulated by the judge who appoints him or her to take into account the unique nature of an application undersection 38 of the CEA.

The very nature of the information to which the amicus will have access, the seriousness of the issues raised by the balancing of national security and the fairness ofthe proceedings, and the degree of transparency with which the Attorney General as well as the witnesses called in support of the application discharge their duties, are factors that maylead an amicus to play a more or less interventionist role depending on the circumstances. [32] In closing, I note that the order dated November 10, 2010, was entirely clear and left no doubt as to the role the amici were called upon to play. It ordered that Mr.

Dadourand Mr. Lussier be appointed [Translation] “to act as amici curiae in this proceeding to assist the Court in preparation for the in camera hearings and intervene in those same hearings”, andthat they could not communicate with the respondent or his counsel from the moment they had access to confidential material and information. As for the power to cross-examine theapplicant’s affiants and witnesses, it is a clause found in all the orders issued by this Court in similar cases.

Again, the object of such cross-examinations is not to advocate for therespondent and embrace his interests as if the amicus had a solicitor-client relationship with the respondent, but rather to verify the reliability and the probative value of the evidence filedby the applicant and the strength of his arguments.

[33] The Court was obviously not a party to the discussions between counsel for the Attorney General and the amici regarding the disclosure of information contained in the 31documents in issue in this application. Clearly, these discussions were successful to the extent that an agreement was concluded on much of the information for which non-disclosure wassought. It is undoubtedly useful for the Court (and perhaps for the Attorney General as well) to know prior to the ex parte and in camera hearing the reasons underlying the position of theamici when there is disagreement between them.

That said, the position of the Attorney General is no more explicit and is solely based, for each piece of information, on xxxxxxxxxxxxxxx xxxxx generically representing the basis for the exclusion sought. In short, I find nothing objectionable about the manner in which the amici discharged their duty, and further, Ido not consider that they ought to have sought the Court’s permission before filing their preliminary submissions in writing.

This was authorized by order dated November 10, 2010, andtheir memorandum was submitted to the Attorney General almost a month before the hearing. [34] With these clarifications in mind, I now turn to the three-step test developed by the Federal Court of Appeal in Ribic. (

a) Relevancy of the information sought in the application for non-disclosure [35] As mentioned above, the Attorney General’s application for an order under

section 38.06(3) of the CEA only pertains to a limited number of documents (31). Furthermore,non-disclosure is not sought for the documents in full but only for portions of these documents. Finally, it is important to note that several documents are redundant or contain the sameinformation, which limits even more the amount of information being sought to be protected. [36] Sixteen of the thirty-one documents for which an application for non-disclosure has been filed were the subject of a total agreement between counsel for the Attorney Generaland the amici.

Although said agreement is not binding on the Court, it will nonetheless be of keen interest when the time comes to determine whether the non-disclosure of certaininformation claimed by the Attorney General is justified or not.

It must be said that the redacted information in the sixteen documents is not really relevant for the purposes of theunderlying judicial reviews to the extent that it essentially reveals the names of certain employees of the Service as well as operational telephone numbers that are not known to the public.In one document, the redacted information is related to a file xxxxxxx xxxxxxxxx xxxxx xx xxxxxxxx whereas in another document, the information could reveal the success or failure ofan investigation.

Indeed, the only information appearing in a few of these sixteen documents (as well as in other documents on which a comprehensive agreement was not reached) thatcould potentially be of some use to the respondent was obtained from third parties. I will have an opportunity to explain my reasoning a little later. [37] There are therefore only fifteen documents that are not the subject of a common position in their entirety between counsel for the Attorney General and the amici.

Once again,it must be reiterated that the Attorney General is not seeking the non-disclosure of the fifteen documents in full but only certain portions (more or less substantial) of these documents.However, the disagreement between counsel for the Attorney General and the amici is not over all the excerpts sought to be protected, but only some of them. [38] As stated in Ribic, the first task of a designated judge tasked with examining an application for non-disclosure pursuant to

section 38 of the CEA is to determine whether theinformation for which exclusion is sought is relevant to the underlying proceeding. Although the burden rests with the party seeking the non-disclosure, the threshold is low.

In a criminalproceeding, the test of relevance will be dependent on the rule set out in R v Stinchcombe, (SCC), [1991] 3 SCR 326, that is, that the information at issue may reasonablybe useful to the defence. [39] The relevance test will not be the same in a civil proceeding, as was the case in Canada (Attorney General) v Almaki, 2010 FC 1106, or even in an inquiry procedure (Canada(Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC 766). [40] In this case, the underlying proceedings are two judicial reviews of decisions made by Transport Canada.

In this regard, it is Rule 317 of the Federal Courts Rules thatgoverns relevance and determines the documents that must be produced by the tribunal whose order is the subject of judicial review. That Rule sets out that a party may request material“relevant to an application”. That Rule has been given a broad

interpretation to the point of encompassing any document that “may affect the decision that the Court will make on theapplication”: Canada (Human Rights Commission) v Pathak, (FCA), [1995] 2 FC 455, at page 460 (FCA). In another matter, it was concluded that a document could berelevant even if the decision-maker did not refer to it or use it in support of his or her decision: Friends of the West Country Association v Canada (Minister of Fisheries and Oceans)(1997), 46 Admin LR (2d) 144, 130 FTR 206 (FC).

That means that the obligation to present a complete record covers not only the documents before the decision-maker at the time of thedecision, but also the documents that should have been before the decision-maker for the purposes of the judicial review: Kamel v Attorney General of Canada, 2006 FC 676, at para 13. [41] In this case, the Attorney General conceded that much of the information he is seeking to protect is relevant for the purposes of the applications for judicial review filed bythe respondent.

At the relevance stage, only information concerning the names and contact information of certain employees of the Service, as well as internal and administrativeprocedures, like file numbers, are excluded. For all other information, it is necessary to proceed to the second step set out in Ribic and determine whether the disclosure of that informationwould be injurious to national security. (

b) Identification of an injury to national security [42] When it is established that the information is relevant, the Attorney General bears the burden of proving that that information, if disclosed, “could injure internationalrelations or national defence or national security”, to use the words of the definition of the expression “potentially injurious information” in

section 38. In this regard, the assessment madeby the Attorney General will be of considerable weight given the special information and expertise to which he has access.

The Court of Appeal stated the following in Ribic (at para 19): This means that the Attorney General's submissions regarding his assessment of the injury to national security, national defence or international relations, because of his access to specialinformation and expertise, should be given considerable weight by the judge required to determine, pursuant to subsection 38.06(1), whether disclosure of the information would cause thealleged and feared injury. The Attorney General assumes a protective role vis-à-vis the security and safety of the public.

If his assessment of the injury is reasonable, the judge shouldaccept it. . . . See also: Canada (Attorney General) v Khawaja, 2007 FC 490, [2008] 1 FCR 547, at paragraph 64; Canada (Attorney General) v Almaki, 2010 FC 1106, [2012] 2 FCR 508, at para 70. [43] As a result, the Court must show deference when it is called upon to determine an application for non-disclosure under the authority of

section 38 of the CEA. That attitude isall the more justified since the very concept of “national security” is fluid and does not lend itself to a specific definition.

My colleagues Justice Mosley and Justice Noël engaged in alengthy analysis of this concept in Almaki and Canada (Attorney General) v Canada (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar), 2007 FC766, [2008] 3 FCR 248, and they concluded, in particular, that national security could not be limited to the preservation of national integrity or the capacity to respond to the use or threat offorce, and meant, at minimum, the preservation of the Canadian way of life, including the safeguarding of the security of persons, institutions and freedoms in Canada.

I agree with theircomments. The difficulty in identifying exactly what constitutes a threat to national security is, in my opinion, an additional reason in favour of a fairly high degree of deference from thisCourt in respect of assessments carried out by government authorities. The Supreme Court stated the following in this regard in Suresh v Canada (Minister of Citizenship and Immigration),2002 SCC 1 , [2002] 1 SCR 3, at para 85: . . . a fair, large and liberal

interpretation in accordance with international norms must be accorded to “danger to the security of Canada” in deportation legislation. We recognize that“danger to the security of Canada” is difficult to define. We also accept that the determination of what constitutes a “danger to the security of Canada” is highly fact-based and political in ageneral sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review.

Provided the Minister is able to showevidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision. [44] That said, the Court cannot abdicate the role entrusted to it by Parliament and merely blindly endorse the applications for non-disclosure which may be filed by the AttorneyGeneral.

Even though the Court must show deference, it is nonetheless entitled to expect the Attorney General to demonstrate, from the facts established by the evidence, that the allegedinjury is not merely possible or speculative, but probable: Arar, para 49; Almaki, para 70. In other words, it is not sufficient to speculate that a piece of information could be potentiallyinjurious to national security; it must be established, through concrete and reliable evidence, that the injury is serious and not based on mere speculation.

We are no longer in the days whencourts had to comply each time a minister refused to produce a document by availing himself of Crown privilege in relation to national security. With the coming into force of

section 36.2of the CEA (S.C. 1980-81-82, c 111,

section 4), now

section 38, the Federal Court has been given the mandate to determine whether information can be disclosed under

section 38.04. Tofulfil this role, the Court must not only take notice of the information that the Attorney General seeks to not make public, but also verify that that information is indeed covered by theprohibition on disclosure set out in subsection 38.02(1) of the CEA. [45] It is recognized that the disclosure of certain categories of information would generally be injurious to national security.

Since 1988, this Court has stated that the disclosureof information that identified or tended to identify human or technical sources, past or present investigation subjects, the nature and the content of classified information, techniques ormethods of investigation or even the length, scope, success or failure of investigations, could be considered injurious to national security: see Henrie v Canada, (FC),[1989] 2 FC 229, at para 29; see also, similarly, Singh v Canada (Attorney General), , at para 32. [46] My colleague Justice Dawson, when she was still a member of this Court, provided the following examples of information of the type that must be kept confidential: 1.

Information obtained from human sources, where disclosure of the information would identify the source and put the source's life in danger . . . . As well, jeopardizing the safety ofone human source will make other human sources or potential human sources hesitant to provide information if they are not assured that their identity will be protected. 2. Information obtained from agents of the Service, where the disclosure of the information would identify the agent and put the agent's life in danger. 3.

Information about ongoing investigations where disclosure of the information would alert those working against Canada's interest and allow them to take evasive action. 4. Secrets obtained from foreign countries or foreign intelligence agencies where unauthorized disclosure would cause other countries or agencies to decline to entrust their own secret

information to an insecure or untrustworthy recipient. . . . 5. Information about the technical means and capacities of surveillance and about certain methods or techniques of investigation of the Service where disclosure would assist persons of interest to the Service to avoid or evade detection or surveillance or the interception of information. Harkat (Re) , 2005 FC 393 , at para 89 . [ 47 ] In the public affidavit in support of this application for non-disclosure, Robert Young categorized the information that the Service seeks to protect according to, more or less, that classification.

Two other confidential affidavits were also submitted and use that same classification by providing more specifics about the information involved.

Those categories are as follows: - Information that would identify or tend to identify the Service’s interest in individuals, groups or issues, including the existence or nonexistence of past or present files, the intensity of investigations, or the degree or lack of success of investigations; - Information that would identify or tend to identify the methods of operation and investigative techniques used by the Service; - Information that would identify or tend to identify relationships that the Service maintains with other police and security and intelligence agencies and would disclose information exchanged in confidence with such agencies; - Information that would identify or tend to identify the identity of certain employees, internal procedures and administrative methodologies of the Service, such as names and file numbers; - Information that would identify or tend to identify human sources of information for the Service or the content of information provided by human sources which, if disclosed, could lead to the identification of human sources. [ 48 ] In the present case, and following discussions between counsel for the Attorney General and the amici , the only information that was not the subject of an agreement falls exclusively under the first three categories of information mentioned in the preceding paragraph.

Of course, some of the information may fall under more than one category. Therefore, I will now address each of those three categories. [ 49 ] The Attorney General is first seeking the non-disclosure of information concerning the interest the Service might have in Mr. Al Telbani and the investigations into his activities or those of other persons with which he is or was in contact. It is true that Mr.

Al Telbani is obviously aware of the Service’s interest in his online activities following the interview he had with the Service on June 2, 2008, during which he was confronted with certain facts concerning the technical support he apparently provided to extremist activities. What the Service is seeking to protect is other facts that were not brought to the attention of Mr.

Al Telbani and that are likely to reveal the nature and scope of the xxxxxxxxxxxxxxxxxxxxxxx investigation and the resulting assessments and analyses. [ 50 ] There seems to be no doubt, as the witness who swore an affidavit on behalf of CSIS argued, that a security agency cannot operate effectively if the subjects of its investigations are able to ascertain that they are persons of interest or determine the state of the agency’s operational knowledge about them at a particular point in time, the resulting operational evaluation and even the fact that the agency is able to make some findings regarding the targets of its investigations.

The disclosure of such information would allow a person of interest to take steps to avoid the Service’s investigative efforts, or even introduce false or misleading information into the investigation.

The extent and reliability of the information gathered by the Service would be diminished, and its capacity to identify and deal with potential threats would be compromised. [ 51 ] In this case, the respondent’s interview with the Service, xxxxxxx xxxxxxx xxxxxxxx xxxxxxxx xxxxxx xxxxxxxx xxxxxx xx xx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx I agree with the applicant that the disclosure of the information the Service provided to Transport Canada as part of its recommendation that the respondent’s name be put on the SPL would be of great help to the respondent in his alleged role of xxxxxxxx xxxxxxxxxxx xxxxxx xxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxx xx xxxx By providing him with specific information regarding the investigation xxxxxxxxx xxxxxxxxx xxxxxxxxxx xxxxxxxxx xxxxxxx xx x xxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx x x x xx xxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxxxx That would have negative consequences not only for the present investigation, but also for other investigations conducted by the Service xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx . [ 52 ] In light of the foregoing, I am therefore of the view that the disclosure of all of the xxxxxxxxxxxxxxxxxx excerpts in the fifteen documents that the Attorney General and the amici did not fully agree upon would be injurious to national security.

Of course, the real issue is whether the public interest reasons that justify disclosure outweigh in importance the public interest reasons that justify non-disclosure, and if so, under what conditions and in what medium must the information be disclosed.

Before proceeding to the last step in the test, it is appropriate, however, to examine the two other categories of information for which the Attorney General is seeking non-disclosure and that were not the subject of an agreement with the amici . [ 53 ] The second category of information for which non-disclosure is sought is information that would identify or tend to identify the methods of operation and investigative techniques utilized by the Services.

In this regard, the Service’s affiant testified that the disclosure of that type of information would render the techniques and methods that could be utilized in the context of this investigation or investigations of other persons less effective, to the extent that the potential subjects of such investigations may be able to thwart the Service’s efforts or at the very least reduce the effectiveness of current methods. [ 54 ] That risk is greater in this case because the respondent has completed a master’s degree in information systems security.

Xxxxxxxxx xxxxxxx xxxxx xxxxxxx xxxxx xx x xxxx xxxxxxx xxxx xxxxxxx xxxxxxxx xxxxxxxxxx xxxxxxxxxx xxxxxxxxxx xxxx xxxxxx xxxxxxxxxx It is also worth noting that, according to the affiant, the respondent was visibly shaken to learn during his interview that the Service had discovered his aliases and wanted to know how they had discovered that he was “Mujahid Taqni”. In this context, the Attorney General’s concerns seem to me to be particularly well founded.

The serious possibility that the respondent may be able to exploit the information at issue in this application to jeopardize the investigation that he or other persons could be the subject of, which would make the task of the Service and even, potentially, third parties, considerably more difficult, certainly cannot be ruled out. [ 55 ] Among the pieces of information sought to be protected, there is one specific piece of information that would tend to demonstrate, according to the position of the Attorney General, that the respondent constitutes a threat to aviation security.

That information, which is found in various forms in several documents, xxxxxxxxxxx xxxxxxxx xxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxx xx xx xxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxx xxxx x x xxx xxxx During the in camera and ex parte hearings, the amici referred to that information as “the elephant in the room” . [ 56 ] The Attorney General forcefully objects to the disclosure of that information for two reasons.

He first contends that that information xxxxxxxxxx xxxxxxxxxxxxxxxxx x xxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxx xxxxxxx xx xxxxxxxx xxxx xxx xxx xxxxxxxxxxxxxxxxxxxxxxxxx .

Moreover, it is argued that the disclosure of that information would enable the respondent to suspect, if not confirm, that that information xxxxxxx xxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxx xxx xxxxxxxxxxxxxx . [ 57 ] On cross-examination, xxxxxxxxxxxxxxx acknowledged that xxxxxxxxxx xxxxxxxxxxx xxxxxxxxxx xxxxxxxxxxxxxxxx xxxxxxxx xxx x xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxx xxxxx xxx xxx xxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxx xx xxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xx xx xx xx xxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxx xxxxxxxxxxxx xxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxx xxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx . xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxx [ 58 ] Once again, the fact that the disclosure of information under that second category and xxxxxxxxxxxxxxxxxx in the impugned documents would be injurious to national security does not end the analysis that this Court must carry out under

section 38 of the CEA . The fact that the respondent xxxxxxxx xxxxxxxxxxxxxxx xxxxx xxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx will of course be an important consideration in the injury balancing step required by Ribic . [ 59 ] The last category of information in dispute between the Attorney General and the amici is information that would identify or tend to identify relationships that the Service maintains with other intelligence agencies or that would disclose or tend to disclose information exchanged in confidence with such agencies.

The numerous excerpts sought to be protected under this category all contain the same information, which is xxxxxxxxxxxxxxxxxxxxxxxx. [ 60 ] The Attorney General argued that it was essential for the Service to cooperate with other secret services to fulfil the mandate that was conferred on it to advise the government in the fight against terrorism. This is because terrorist acts are not necessarily planned, funded, managed or executed by the residents of one country or within the borders of one State.

Consequently, the only way to effectively investigate those threats to try to prevent them is to engage in close collaboration and information sharing at the international level. [ 61 ] That sharing of secret information by foreign intelligence agencies with which the Service has a comprehensive or ad hoc agreement is always done assuming that the source or content of the information thus obtained will not be disclosed without the consent of the agency that the information came from. It is what is sometimes called the “third party rule”.

It is an acknowledgment that foreign agencies provide information to the Service not only because agreements are entered into to ensure that that information will be utilized in confidence, but

also because those agencies are confident that the Canadian government in general, and the Service in particular, are fully aware of and recognize the need to preserve the confidentiality ofthat information and have taken steps in that respect. [62] Of course, a failure on the part the Canadian government or the Service to protect intelligence obtained from a foreign agency could have disastrous consequences on themaintenance of existing agreements or on the Service’s capacity to enter into new agreements with other foreign agencies.

As has been said in numerous cases, Canada is a net importer ofintelligence information, and any interruption or reduction in the exchanges of that information would adversely affect the maintenance of our collective security and the role Canada playsin the international arena in that respect. In Ruby v Canada (Solicitor General), 2002 SCC 75, [2002] 4 SCR 3, the Supreme Court recognized (at paras 43 and 54) the importance of that“pressing and substantial” concern.

More recently, it stated in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 SCR 350 (at para 68) that Canada is a netimporter of security information, that that information is “essential to the security and defence of Canada”, and that its disclosure “would adversely affect its flow and quality”. Mycolleague Justice Noël aptly summarized the importance of that rule in Arar, at paragraph 77 of his reasons: This being said, in my view the third party rule is of essence to guarantee the proper functioning of modern police and intelligence agencies.

This is particularly true given that organizedcriminal activities are not restricted to the geographic territory of a particular nation and that recent history has clearly demonstrated that the planning of terrorist activities is not necessarilydone in the country where the attack is targeted so as to diminish the possibility of detection. Consequently, the need for relationships with foreign intelligence and policing agencies, aswell as robust cooperation and exchanges of information between these agencies, is essential to the proper functioning of policing and intelligence agencies worldwide.

See also: Khadr v Canada (Attorney General), 2008 FC 766, at para 92. [63] In this case, xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxxxxxxxx [64] xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx. [65] xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxxxx xxxxxxxxx xxxxxxxxxxxx xxxxxxx. [66] xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxxx xxxxxx xxxxxxxxx xxxxxxx xxxxx xxxxx [67] xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxx xxxxxxxxxxxxxxxxxx xxx xxxxxx xxxxxxxxx. [68] A priori, I do not doubt that the disclosure of the information xxxxxxxxxx xxxxxxxxxxxx xxxxxxx would be injurious to the national interest of Canada.

The case law in thisarea, and the secret testimony of the affiants, convinces me that the Service xxxxxxxxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxx.

This would certainly result in a diminished capacity to fulfil the mandate xxxxxxxx xxxxxxxx xxx by Parliament, in particularin the fight against terrorism in Canada and around the world. [69] xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx xxxxxx xxxxxx xxxxxxxxxxxxxxxxx.. [70] As important as the third party rule might be, however, it cannot be absolute.

There is no statutory basis for that “rule”, and the mere fact that a foreign agency did not relievethe Service (or any other Canadian agency) of its confidentiality obligation cannot suffice, on its own, to conclude that the disclosure of information thus obtained would be injurious tonational security. Other factors must be considered, including the fact that the information in question was subsequently disclosed and is now in the public domain, as well as the passageof time.

There must also consideration for how the sharing of information, both quantitative and qualitative, with a foreign agency might be important for Canada. My colleague, JusticeNoël, stated the following in Arar (at para 80): When determining whether disclosure will cause harm, it is also important to consider the nature of Canada’s relationship with the law enforcement or intelligence agency from which theinformation was received. It is recognized that certain agencies are of greater importance to Canada and thus that more must be done to protect our relationship with them.

Consequently,care must be taken when considering whether to circumvent the third party rule in what concerns information obtained from our most important allies. [71] In this case, xxxxxxxxxx xxxxxxxxxxxxxx xxxxxxxxxxxx xxx x xxxxxxxxxxxxxxxxxxxxxxxxx are critically important for Canada.

I also accept the Attorney General’sargument that the disclosure of information obtained from an agency with which Canada has not so critical ties could still have long-term repercussions, not only because this could causeinformation from that agency to dry up but also because it could discourage other agencies from maintaining or creating ties with Canada. [72] Another factor that must be considered, both in assessing the injury and in balancing public interests, is the Canadian government’s effort (or lack of effort) to obtain theconsent of a foreign agency in the disclosure of the information provided by that agency.

In Ruby v Canada (Solicitor General), (FCA), [2000] 3 FC 589 (reversed onother grounds by the Supreme Court), the Federal Court of Appeal seemed to be of the opinion that Canadian authorities had to make “reasonable efforts” to seek the consent of the thirdparty agency that provided the information before finding that it would be injurious to disclose that information. See also, similarly: Khawaja, at paras 145-146; Charkaoui (Re), 2009 FC476, at paras 28-29. [73] More recently, this Court somewhat qualified that obligation.

In Arar (at paras 75 and 94), Justice Noël stated that he was of the opinion that it was not appropriate to draw anegative conclusion from the fact that the Attorney General did not seek consent from a foreign agency to disclose information, given the fact that such authorization would have likelybeen refused based on the evidence in the record.

Justice Mosley found that the failure to make inquiries of foreign agencies regarding the disclosure of their information was not fatal butcould be taken into consideration and could undermine a privilege claim, especially when the information appears innocuous on its face.

In Almaki, he nonetheless accepted the AttorneyGeneral’s submissions to the effect that it would be futile to ask certain countries to consent to the disclosure of their information. [74] In this case, xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxxx xxxxxxxxx x xxx, I readily accept that it is highly unlikely that suchconsent would have been given. [75] I am therefore of the opinion that the information for which non-disclosure is sought on the basis that it comes from third parties passes the second step of the test set out inRibic.

That does not necessarily mean that that information must be completely removed from the record that Mr. Al Telbani has a right to in his applications for judicial review. Todetermine this issue, it is necessary to proceed to the third step of the test and determine which public interest prevails: the public interest in disclosure or the public interest in non-disclosure. As with the other categories of information for which non-disclosure is sought, at that step, other considerations must be taken into account, like the passage of time and thefact that some information is now in the public domain.

From this perspective, there must also be an examination of the possibility of minimizing the injury that the disclosure of a piece ofinformation could cause, by replacing, for example, an excerpt deemed too sensitive with a

summary. In that regard, it would have been useful if the original document transmitted by thethird parties was submitted before the Court to better compare the text to be protected with that document and thus better assess the damage that a redacted version or a

summary of thattext could cause. Despite the Court’s request to that effect, the Attorney General did not see fit to submit the original documents provided by the third parties and it is thus with a certaindisadvantage that the Court must engage in that review. (

c) Balancing public interest in disclosure and public interest in non-disclosure

[76] Pursuant to the case law that has developed with respect to the

interpretation of

section 38 of the CEA, the party seeking disclosure bears the burden at this stage of provingthat the public interest scale is tipped in its favour. If the Court is satisfied that public interest favours disclosure, subsection 38.06(2) provides for the authorization of disclosure ofinformation in the form and under the conditions that are most likely to limit any injury to international relations or national defence or national security. [77]

Section 38 of the CEA does not specify the test to apply, but of course the Court must consider several different factors that may vary from case to case. In a criminal context,the issue of whether the information at hand would likely establish a fact crucial to the defence is an important factor that must be considered when weighing the interests. This case is notof that nature as the respondent does not face criminal charges.

The applications for judicial review that the respondent filed are more akin to a civil case, and in that context the FederalCourt of Appeal confirmed in Ribic (at para 22) that it was important to apply a more stringent test than that of relevance, and that there must instead be consideration of whether theinformation sought would establish a fact crucial to the case of the party seeking it. [78] From that perspective, the courts identified several factors to consider in when weighing competing interests in disclosure and non-disclosure: see Khan v Canada, (FC), [1996] 2 FC 316 (FCTD), at para 26; Jose Pereira E Hijos, S.A. v Canada (Attorney General), 2002 FCA 470, at paras 16-17; Canada (Attorney General) v Kempo,2004 FC 1678, at para 102; Arar, at para 98; Almaki, at para 174.

Although not necessarily exhaustive, this list includes, but is not limited to, the following elements: - the nature of the public interest sought to be protected by confidentiality; - the admissibility of the documentation, its usefulness and the probative value of the information it contains; - the seriousness of the criminal charges or the issues raised in the underlying proceeding; - whether the party seeking disclosure has established that there are no other reasonable ways of obtaining the information; - whether the disclosure sought amounts to legitimate disclosure or a fishing expedition; - whether the redacted information is already known to the public, and if so, the manner by which the information made its way into the public domain; - whether there are higher interests at stake such as a breach of Charter rights, the right to make full answer and defence in the criminal context, etc. [79] Counsel for the applicant and the amici also argued that the stigma created by the respondent’s association to a group or terrorist activities and the application of preventivemeasures restricting his liberty also involved rights under sections 7, 8, 9 and 10 of the Canadian Charter of Rights and Freedoms.

The Attorney General argued that the ban on taking acommercial flight to which the respondent was subject did not restrict his liberty or security rights, as interpreted by the courts, given that such a ban is not akin to interference withfundamental personal choices or what constitutes the core of human dignity, or even interference with the psychological integrity of an individual. That debate has not occurred and willtake place in the context of the two applications for judicial review filed by the respondent.

For that reason, I decline to rule on that issue, directly or indirectly, in connection with theapplication for non-disclosure. [80] For the purposes of this discussion, suffice it to say that the Charter arguments raised by the respondent are not completely lacking in merit and cannot be dismissed out ofhand. Consequently, the Court must consider them when weighing interests in this case.

If the non-disclosure of certain information could compromise not only the right to proceduralfairness but also the respondent’s ability to assert his fundamental rights, it is an additional factor to consider. [81] This now leads me to consider more specifically the various pieces of information for which non-disclosure is sought and for which the Attorney General and the amici havenot been able to find a common solution.

The first document is attached to the letter from the Deputy Director of the Service to the Deputy Minister of Transport dated September 3, 2009,found at tab xx of the supplementary ex parte affidavit of xxxxxxxxxxxxxx. In that letter, the Deputy Director of the Service informs the Deputy Minister of Transport, pursuant to section19 of the Canadian Security Intelligence Service Act, that the Service had received information that Mr. Al Telbani may possibly be linked to criminal and terrorist activities.

Theinformation in question is appended to the letter. xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxx x [82] xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxx xxxx xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx x [83] Relying on the testimony of the witness for the Service, the Attorney General asserted three reasons to protect xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxxxx xxxx xxxxxx xxx xxx xxxx xxx xxx xxx xxxxxxx xxxxxxxx xxx xx [84] However, the amici raised several arguments against these justifications.

First they argued that the Service xxxxxxxxxxxxxxxxx xxxxxxxxxxxx by going to Mr. Al Telbani’shome on June 2, 2008, and by calling him by his pseudonym Mujahid Taqni. Xxxxxxxxxxx xxxxxxxxxxxxxxxxx Mr. Al Telbani apparently confirmed that he had used this pseudonym toparticipate in discussions on Internet forums. Xxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxxxx xxxxx xxxxxxx xxxxxxxxxxxxx x xxxxxxxxxxx xxxxxxxx xxx xxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Mr.

Al Telbani with this information and by relying xxxxxxxxxxxxxxxxx xxxx to thus encourage him to stop hisactivities, the Service ended up implicitly revealing to him their interest in him and the scope of their investigation.

This seems to be a convincing argument to me. [85] The amici add that the Service also xxxxxxxxx xxxxxxxxx xxxxxxxx xxxxxxx xx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxx xxx In this regard, the amici’s argument seems less convincing. xxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxx xxx [86] Last, the amici argue xxxxxxxx xxxxxxxxxxx xxxxxxx xxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx x xxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxx xxxxxxx xxx xxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxx xxx xxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxxxxxxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx xxxxxxxxxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx. xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxxxxxxxx [87] However, xx xxxxxxxx xxxxxxxxxx is undeniably important information in the context of the underlying judicial review.

It should not be forgotten that Mr. Al Telbani ischallenging the Minister’s decision to put his name on the Specified Persons List (SPL) on the grounds that he posed a threat to aviation safety.

Xxxxxxxx xxxxxxxx xxxx xxxxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxxx xxx xxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxxx xxxxxxx xxxxxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxx xxxxxxxxxxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx x xxxxxxx xxxxxxx .

[88] It is true that Mr. Al Telbani is aware of some of the information relied upon to add his name to the SPL, as the Attorney General contended. The letter that the AssistantDeputy Minister of Safety and Security of Transport to his counsel on June 10, 2009, set out the factors that would be considered in Mr.

Al Telbani’s request for reconsideration: [TRANSLATION] • That your client has technical training in Information Systems security • That your client provided technical support to participants on the Al Ekhlas Internet site to maintain the security of their communications by evading surveillance systems. • That your client, using the pseudonym “Mujahid Taqni”, participated in discussions on various Internet sites regarding the protection of communications from surveillance systems. • That the purpose of the discussions and activities of the Internet discussion forums is to support “mujahedeen” terrorists who fight against European and North American countries. • That your client created and managed an electronic journal “Mujahid Taqni”, published on the Al Ekhlas site, specialized in sharing information on important topics for “mujahedeen”terrorists such as how to protect communications against surveillance systems and how to commit terrorist acts especially in relation to aviation safety. [89] This information, which stems largely from the interview that the Service had with Mr.

Al Telbani a year earlier, does not clearly link Mr. Al Telbani to a threat to aviationsafety. The only link to this concern in the public evidence can be found in an

article published in the February 20, 2007, edition of the magazine Al-mujahid taqni, which the respondent isthe editor of, entitled “Smart weapons: Short-range ground-to-air missiles” (Respondent’s Record, page 244.12). [90] It goes without saying that the fact xxxx xx xxxxxxxxx xx xxxxxxxxx xxxxxxxxxxxx xxxxxxxxx xxxx is not enough to say that the principle of procedural fairness wasrespected and to enable him to advance all the arguments likely to help him succeed in his challenge to the legality of Transport Canada’s decision.

We cannot require the respondent tospeculate on the grounds that resulted in the decision to put his name on the SPL or insist that he blindly try to rebut all the facts that could be raised against him. [91] Thus, I believe that xxx xx xxxxxxxx xxxxxxxxx is not only relevant information but potentially extremely significant information to establish the legality of the decisionchallenged by Mr. Al Telbani. It is quite possible, as the Attorney General argued, that the information on the public record is enough to establish that Transport Canada’s decision wasreasonable.

It is also possible that the information sought to be excluded may in the end be more damaging to the respondent than the applicant in the context of the judicial review. It isnot for me to rule on these issues. For the purposes of the application in these proceedings, I merely have to find that non-disclosure xx xxxxxxxx xxxxx xxxx could materially affect theoutcome of the judicial review and deprive Mr.

Al Telbani of an important argument. [92] The amici brought to the Court’s attention a decision by the European Court of Justice on the compatibility of a control order (similar to our security certificates) with theguarantee of procedural fairness set out in

article 6 of the European Convention on Human Rights. In that case, the Court observed that the issue of whether the evidence provided to theindividual was sufficiently detailed to permit the applicant effectively to challenge the order must be decided on a case-by-case basis.

Nevertheless, the Court expressed the opinion thatthe requirements of procedural fairness would not be met where the open material consisted purely of general assertions and the decision to uphold the certification was based solely or to adecisive degree on closed material: A. and Others v the United Kingdom (application No 3455/05), February 19, 2009, at para 220. [93] Although this decision obviously does not bind our Court and it applies to a very different legal context, it still makes some interesting observations.

As the Court pointed out,an individual does not need to know the detail or sources of the evidence which formed the basis of the decision. It is necessary, however, for the individual to have enough informationabout the allegations against him to be able to raise arguments that may refute the allegations. In this case, Mr.

Al Telbani does not have any idea of the allegations against him involvingaviation safety other than the very vague allegation in the above-mentioned letter from the Assistant Deputy Minister stating that he “created and managed an electronic journal ...specialized in sharing information on important topics for “mujahedeen” terrorists such as ... how to commit terrorist acts especially in relation to aviation safety”. It is hard to see how,based on only this information, Mr.

Al Telbani could challenge the decision to put him on the SPL by providing, for example, explanations about xx xxxxxxxx xxxxx xxxx. [94] Does this mean that this information has to be disclosed to him? Far from it. The courts have stated many times that procedural fairness does not always require completedisclosure of the evidence and the requirements of the principles of fundamental justice should be interpreted according to the context and do not require that the applicant have the mostfavourable proceedings: see Ruby v Canada (Solicitor General), 2002 SCC 75 , [2002] 4 SCR 3, at paragraphs 39 et seq.

In the instant case, the issue of the underlying proceedingis not of the same magnitude as the deprivation of liberty following a criminal conviction or the issuance of a security certificate. Although I am not playing down the impact of a ban ontaking a commercial flight and I do not exclude the possibility that such a ban could engage

section 7 of the Charter, nevertheless, it seems to me that the public interest in disclosure in thatsituation should be secondary to the public interest in not revealing information that could have devastating repercussions on national security. As Justice McKay stated in Singh (J.B.) vCanada (Attorney General), [2000] FCJ No 1007 (at paragraph 32), “The public interest served by maintaining secrecy in the national security context is weighty. In the balancing ofpublic interest here at play, that interest would only be outweighed in a clear and compelling case for disclosure”.

It seems to me that this finding is even more applicable since the role ofthe judge ruling on an application for judicial review is quite different from the role of a judge hearing a criminal case or a claim for civil relief. I will return to this aspect of the issue later. [95] Several of the documents that are requested to be redacted contain a

summary of the document xx or refer to the fact xxxxxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx Theamici suggested partially removing the redaction of those passages, such that the fact that Mr. Al Telbani xxxxx xx xxxxx xxxxxxxxxxxxxxx xxx xxx xxxxxxx xxxxx xxxxxxxxxxxxxxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxxxxxxx would be redacted. It seems to me that this option shouldbe avoided to the extent that Mr.

Al Telbani xxxxxxxxxxx xxxxxxxx xxxxxxxxxxxxx xxxxxxxxx xxx xxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxxxx xxxxxxxxxxx xxx xxxxx. [96] The amici stated that this information could have been obtained xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxxxxx xxx xxxxxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx xxxx But since Mr.

Al Telbani was interviewed by the Service, xxxxxxxxxxxxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxxxxxxxxx xxx xxxxxxxx xxxxxxx xxxxxxx xxxxxx x xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xxxx xxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxxxxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxx xxxxxx [97] The second category of information that is sought to be protected, xxxx xxxxxx xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx x xxxxxxxxx xxxxxxx xxxxxx xxxxxxx xxxxxxxxxx xxxx xxxxxxxxxx xxxxxxx x xxxxxxx xxxxxxx xxxxxxx xxxxxxxx xxxx xxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxx x xxxxxxx xxxxxxx xxxx xxx xxxxxx xxxxxxx xxxxxxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxx xxxx xx xxxx xxxxxxx xxxxxxx xxxxxxx xxxxxx xxxxxxxx xxxxxxx xxxx xxxxxx xxxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxxxxx xxxx xxxxxx x xxxxxxx xxxxxxx xxx xxxxxxxx xxxxxxx xx xxxxxxxxx xxxxxxx xxxx xxx xx xxxxxxx xxxxxxx xxx xxxxxxxxxxxxxxx x xxxxxxx xxxxx xxxxxxx xxxxxx x x x xxxxxx xxxxxxx xxx xxxxxxxx x xxx xxxxxx xxxxxxx xxxxxxx xxxx [98] The grounds raised for non-disclosure of that information is based on the same logic as that given for excluding document xx.

In both cases disclosing the information wouldenable Mr. Al Telbani xx xxxx xxxxxx xxxx

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