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SCC File No.: 34884 in the SUPREME COURT of CANADA (ON APPEAL from the FEDERAL COURT of APPEAL) BETWEEN: the MINISTER of CITIZEN

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SCC File No.: 34884 in the SUPREME COURT of CANADA (ON APPEAL from the FEDERAL COURT of APPEAL) BETWEEN: the MINISTER of CITIZEN SCC File No.: 34884 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL) BETWEEN: THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS APPELLANTS (Respondents) -and- MOHAMED HARKAT RESPONDENT (Appellant) -and- ATTORNEY GENERAL OF ONTARIO, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CANADIAN COUNCIL OF CRIMINAL DEFENCE LAWYERS, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN BAR ASSOCIATION, CANADIAN ASSOCIATION OF REFUGEE LAWYERS, CANADIAN COUNCIL FOR REFUGEES AND INTERNATIONAL CIVIL LIBERTIES MONITORING GROUP, CANADIAN COUNCIL ON AMERICAN-ISLAMIC RELATIONS, AMNESTY INTERNATIONAL and CRIMINAL LAWYERS' ASSOCIATION (ONTARIO) INTERVENERS FACTUM OF THE RESPONDENT/APPELLANT, MOHAMED HARKAT (Pursuant to Rules 42 of the Rules of the Supreme Court of Canada) BAYNE SELLAR BOXALL SUPREME ADVOCACY LLP 200 Elgin St. 397 Gladstone Avenue, Suite 100 Suite 500 Ottawa, ON K2P 0Y9 Ottawa, ON K2P 1L5 Eugene Meehan, Q.C. Norman Boxall Marie-France Major Tel.: (613) 689-1561 Thomas Slade Fax: (613) 236-6958 Tel.: (613) 695-8855 Email: [email protected] Fax: (613) 695-8580 Email: [email protected] [email protected] WEBBER SCHROEDER GOLDSTEIN [email protected] ABERGEL 200-116 Lisgar St. Ottawa Agents for Counsel for the Ottawa, Ontario K2P 0C2 Respondent/Appellant, Mohamed Harkat Matthew C. Webber Tel.: 613-235-9779 Fax: 613-235-8317 Email: [email protected] Counsel for the Respondent/Appellant, Mohamed Harkat AND BETWEEN: MOHAMED HARKAT APPELLANT (Appellant) -and- THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS RESPONDENTS (Respondents) -and- ATTORNEY GENERAL OF ONTARIO, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, CANADIAN COUNCIL OF CRIMINAL DEFENCE LAWYERS, CANADIAN CIVIL LIBERTIES ASSOCIATION, CANADIAN BAR ASSOCIATION, CANADIAN ASSOCIATION OF REFUGEE LAWYERS, CANADIAN COUNCIL FOR REFUGEES AND INTERNATIONAL CIVIL LIBERTIES MONITORING GROUP, CANADIAN COUNCIL ON AMERICAN-ISLAMIC RELATIONS, AMNESTY INTERNATIONAL and CRIMINAL LAWYERS' ASSOCIATION (ONTARIO) INTERVENERS JUSTICE CANADA JUSTICE CANADA 130 King Street West East Memorial Building Suite 3400, Box 36 234 Wellington St. Toronto, Ontario M5X 1K6 Ottawa, Ontario K1A 0H8 Urszula Kaczmarczyk William F. Pentney Tel: (416) 973-3688 Tel.: (613) 941-2351 Fax: (416) 954-8982 Fax: (613) 954-1920 Email:[email protected] Email: [email protected] Ottawa Agent for Counsel for the JUSTICE CANADA Appellants/Respondents Civil Litigation Branch, East Tower 234 Wellington St. Ottawa, Ontario K1A 0H8 Robert J. Frater Tel.: 613-941-2351 Fax: 613-954-1920 Email: [email protected] Counsel for the Appellants/Respondents, The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness COPELAND, DUNCAN NELLIGAN O'BRIEN PAYNE LLP 31 Prince Arthur Ave. 1500 - 50 O'Connor St. Toronto, Ontario M5R 1B2 Ottawa, Ontario, K1P 6L2 Paul Copeland Dougald E. Brown Tel.: 416-964-8126 Tel.: (613) 231-8210 Fax: 416-960-5456 Fax: (613) 788-3661 Email: [email protected] E-mail: [email protected] CAVALLUZZO HAYES SHILTON Ottawa Agent for Counsel for Special MCINTYRE & CORNISH LLP Advocates 474 Bathurst Street, Suite 300 Toronto, Ontario M5T 2S6 Paul J.J. Cavalluzzo Tel.: (416) 964-1115 Fax: (416) 964-5895 Email: [email protected] Counsel for Special Advocates ATTORNEY GENERAL OF ONTARIO BURKE-ROBERTSON 10th Floor, 720 Bay Street 441 MacLaren Street, Suite 200 Toronto, Ontario, M5G 2K1 Ottawa, Ontario, K2P 2H3 Robert W. Hubbard Robert E. Houston, Q.C. Tel.: (416) 326-2307 Tel.: (613) 236-9665 Fax: (416) 326-4656 Fax: (613) 235-4430 E-mail: [email protected] E-mail: [email protected] Counsel for the Intervener, Attorney Ottawa Agent for Counsel for the General of Ontario Intervener, Attorney General of Ontario RUBY SHILLER CHAN HASAN SACK GOLDBLATT MITCHELL LLP 11 Prince Arthur Ave. 500 - 30 Metcalfe St. Toronto, Ontario, M5R 1B2 Ottawa, Ontario, K1P 5L4 Nader R. Hasan Colleen Bauman Gerald Chan Tel.: (613) 235-5327 Tel.: (416) 964-9664 Fax: (613) 235-3041 Fax: (416) 964-8305 E-mail: [email protected] Counsel for the Intervener, British Ottawa Agent for Counsel for the Columbia Civil Liberties Association Intervener, British Columbia Civil Liberties Association SIMCOE CHAMBERS NORTON ROSE FULBRIGHT CANADA 100-116 Simcoe Street LLP Toronto, Ontario, M5H 4E2 45 O'Connor Street Ottawa, Ontario, K1P 1A4 John Norris François Dadour Martha A. Healey Tel.: (416) 596-2960 Tel.: (613) 780-8638 Fax: (416) 596-2598 Fax: (613) 230-5459 E-mail: [email protected] E-mail: [email protected] Counsel for the Intervener, Canadian Ottawa Agent for Counsel for the Council of Criminal Defence Lawyers Intervener, Canadian Council of Criminal Defence Lawyers KAPOOR BARRISTERS GREENSPON, BROWN & ASSOCIATES 210 - 20 Adelaide Street East 331 Somerset Street West Toronto, Ontario, M5C 2T6 Ottawa, Ontario, K2P 0J8 Anil K. Kapoor Lawrence Greenspon Tel.: (416) 363-2700 Tel.: (613) 288-2890 Fax: (416) 368-6811 Fax: (613) 288-2896 E-mail: akk@adelaide E-mail: [email protected] Counsel for the Intervener, Canadian Civil Ottawa Agent for Counsel for the Liberties Association Intervener, Canadian Civil Liberties Association WALDMAN & ASSOCIATES GOWLING LAFLEUR HENDERSON 281 Eglinton Avenue East LLP Toronto, Ontario, M4P 1L3 2600 - 160 Elgin St P.O. Box 466, Stn "D" Lorne Waldman Ottawa, Ontario, K1P 1C3 Tel.: (416) 482-6501 Fax: (416) 489-9618 Henry S. Brown, Q.C. E-mail: [email protected] Tel.: (613) 233-1781 Fax: (613) 788-3433 E-mail: [email protected] Counsel for the Intervener, Canadian Bar Association Ottawa Agent for Counsel for the Intervener, Canadian Bar Association SACK GOLDBLATT MITCHELL LLP GOWLING LAFLEUR HENDERSON 1100 - 20 Dundas St. W. LLP Toronto, Ontario, M5G 2G8 2600 - 160 Elgin St P.O. Box 466, Stn "D" Marlys A. Edwardh Ottawa, Ontario, K1P 1C3 Jacqueline Swaisland Tel.: (416) 979-4380 Henry S. Brown, Q.C. Fax: (416) 979-4430 Tel.: (613) 233-1781 E-mail: [email protected] Fax: (613) 788-3433 E-mail: [email protected] Counsel for the Intervener, Canadian Ottawa Agent for Counsel for the Association of Refugee Lawyers Intervener, Canadian Association of Refugee Lawyers JACKMAN NAZAMI & ASSOCIATES COMMUNITY LEGAL SERVICES- 526 St. Clair Avenue West, Unit 3 OTTAWA CARLETON Toronto, Ontario, M6C 1A6 1 Nicholas Street, Suite 422 Ottawa, Ontario, K1N 7B7 Barbara Jackman Sharryn J. Aiken Michael Bossin Andrew J. Brouwer Tel.: (613) 241-7008 Tel.: (416) 653-9964 Fax: (613) 241-8680 Fax: (416) 653-1036 E-mail: [email protected] E-mail: [email protected] Ottawa Agent for Counsel for the Counsel for the Intervener, Canadian Intervener, Canadian Council for Refugees Council for Refugees and International and International Civil Liberties Civil Liberties Monitoring Group Monitoring Group OFFICE KHALID ELGAZZAR, BARRISTER 440 Laurier Avenue West, Suite 200 Ottawa, Ontario, K1R 7X6 Faisal Bhabha Khalid M. Elgazzar Tel.: (613) 663-9991 Fax: (613) 663-5552 E-mail: [email protected] Counsel for the Intervener, Canadian Council on American-Islamic Relations COMMUNITY LEGAL SERVICES- OTTAWA CARLETON 1 Nicholas Street, Suite 422 Ottawa, Ontario, K1N 7B7 Michael Bossin Laïla Demirdache Chantal Tie Tel.: (613) 241-7008 Fax: (613) 241-8680 E-mail: [email protected] Counsel for the Intervener, Amnesty International BREESE DAVIES LAW GOWLING LAFLEUR HENDERSON 171 John Street, Suite 101 LLP Toronto, Ontario, M5T 1X3 160 Elgin Street, 26th Floor Ottawa, Ontario, K1P 1C3 Breese Davies Erin Dann Guy Régimbald Tel.: (416) 649-5061 Tel.: (613) 786-0197 Fax: (416) 352-7733 Fax: (613) 563-9869 E-mail: [email protected] E-mail: [email protected] Counsel for the Intervener, Criminal Ottawa Agent for Counsel for the Lawyers' Association (Ontario) Intervener, Criminal Lawyers' Association (Ontario) TABLE OF CONTENTS PART I 1 OVERVIEW 3 STATEMENT OF FACTS Reasonableness Hearing 3 Human Sources and Polygraph Issue 4 Exclusion of Summaries 6 Equivocal Open Source Materials 6 PART II 7 POINTS IN ISSUE PART III 8 A. LEGISLATIVE SCHEME IS UNCONSTITUTIONAL Context of the Proceeding 8 Summaries of the Public Hearing 10 The Special Advocate Regime is not a Substantial Substitute 15 Section 7 Compliance in the Security Certificate Context 19 Section 1 of the Charter 20 B. CLASS PRIVILEGE AND HUMAN SOURCES 22 If CSIS Sources are Protected by a Class Privilege, Is there a Special Advocate 26 Exception? Should the Special Advocates have an Opportunity to Cross-Examine CSIS 28 sources? 29 C. EXCLUSION OF SUMMARIZED CONVERSATIONS Remedy for the Destruction of Information 35 38 D. OPEN SOURCE MATERIALS PART IV – COSTS 40 PART V – ORDER SOUGHT 40 PART VI – TABLE OF AUTHORITIES PART VII – STATUTES AT ISSUE APPENDIX A – ORDER OF CONSTITUTIONAL QUESTION PART I – OVERVIEW 1. There can be no doubt that public safety and national security are among the most serious concerns of our government. So too is the obligation of our government to enforce our democratic ideals and ensure no persons are denied their right to a fair judicial process. Nowhere is the tension between these goals more apparent than in security certificate cases. Achieving a lawful balance between these sometimes competing priorities is paramount in a free and democratic society: In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.1 2. In the wake of this Court’s decision in Charkaoui v Canada (Citizenship and Immigration) (Charkaoui I),2 Parliament attempted to create a legislative scheme for security certificate legislation that would remedy the unconstitutional shortcomings of its predecessor. The goal was to create a scheme that embodied the components of our adversarial system while at the same time enabling the government and the Court to protect against the disclosure of information that would imperil our national security.
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