File No. 31597
SUPREME COURT OF CANADA
(ON APPEAL FROM A JUDGMENT OF THE FEDERAL COURT OF APPEAL)
BETWEEN: ADIL CHARKAOUI APPELLANT (Appellant) - and -
MINISTER OF CITIZENSHIP AND IMMIGRATION, SOLICITOR GENERAL OF CANADA
RESPONDENTS (Respondents) - and-
ATTORNEY GENERAL OF ONTARIO, CRIMINAL LAWYERS’ ASSOCIATION (ONTARIO), CANADIAN BAR ASSOCIATION, BARREAU DU QUÉBEC, AMNESTY INTERNATIONAL, ASSOCIATION DES AVOCATS DE LA DÉFENSE DE MONTRÉAL, ASSOCIATION QUÉBÉCOISE DES AVOCATS ET AVOCATES EN DROIT DE L’IMMIGRATION INTERVENERS
RESPONDENTS’ FACTUM English Translation
Supreme Factum 2005 Limoges Street 613-737-0834 – Tel. Longueuil, Québec 450-442-2040 – Fax J4G 1C4 [email protected] L-2859-06 - 2 -
JOHN H. SIMS, Q.C. Deputy Minister of Justice Deputy Attorney General of Canada By : Mtre. Christopher Rupar By : Mtre. Claude Joyal Ms. Ginette Gobeil Department of Justice Ministry of Justice 200 René-Lévesque Blvd. West 234 Wellington Street Complexe Guy-Favreau Room 1216 East Tower, 5th Floor, Ottawa, Ontario Montreal, Quebec H2Z 1X4 K1A 0H8
(514) 283-8768 – Tel. (Mtre. Joyal) (613) 941-2351 – Tel. (514) 496-8115 – Tel. (Ms. Gobeil) (613) 954-1920 – Fax (514) 283-3856 – Fax [email protected] [email protected] [email protected]
Attorneys for Respondents Agent for Respondents
Ms. Dominique Larochelle Mtre. Yavar Hameed Centre communautaire juridique de Montréal Hameed Farrokhazad LLP 800 de Maisonneuve Blvd. East 43 Florence Street 9th Floor Ottawa, Ontario Montreal, Quebec H2L 4M7 K2P 0W6
(514) 842-2233 Ext: 266 – Tel. (613) 232-2688 Ext: 223 – Tel. (514) 842-1970 – Fax (613) 232-2680 – Fax [email protected] [email protected]
Attorney for Appellant Agent for Appellant
Mtre. Russell Silverstein Henry S. Brown, Q.C. 20 Dundas Street West Gowling Lafleur Henderson LLP Suite 1100 2600 - 160 Elgin Street Toronto, Ontario P.O. Box 466, Stn "D" M5G 2G8 Ottawa, Ontario K1P 1C3
(416) 977-5334 – Tel. (613) 233-1781 – Tel. (416) 977-8513 – Fax (613) 563-9869 – Fax [email protected]
Attorney for Intervener Agent for Intervener Criminal Lawyers’Association (Ontario) Criminal Lawyers’Association (Ontario)
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Mtre. Lorne Waldman Henry S. Brown, Q.C. Waldman & Associates Gowling Lafleur Henderson LLP 281 Eglinton Avenue East 2600 - 160 Elgin Street Toronto, Ontario P.O. Box 466, Stn "D" M4P 1L3 Ottawa, Ontario K1P 1C3
(416) 482-6501 – Tel. (613) 233-1781 – Tel. (416) 489-9618 – Fax (613) 563-9869 – Fax [email protected] [email protected]
Attorney for Intervener Agent for Intervener Canadian Bar Association Canadian Bar Association
Mtre. François Dadour Poupart, Dadour et Associés 507 Place d'Armes, Suite 1402 Montreal, Quebec H2Y 2W8
(514) 526-0861 – Tel. (514) 526-9646 – Fax [email protected]
Attorney for Intervener Barreau du Québec
Mtre. Michael Bossin Community Legal Services-Ottawa Carleton 1 Nicholas Street, Suite 422 Ottawa, Ontario K1N 7B7
(613) 241-7008 – Tel. (613) 241-8680 – Fax
Attorney for Intervener Amnesty International
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Mtre. Walid Hijazi Desrosiers, Turcotte, Massicotte 480 St-Laurent Blvd., B-503 Montreal, Quebec H2Y 3Y7
(514) 397-9284 – Tel. (514) 397-9922 – Tel.
Attorney for Intervener Association des avocats de la défense de Montréal
Ms. Pia Zambelli 6855, de L'Épée Avenue Suite 203 Montreal, Quebec H3N 2C7
(514) 274-9393 – Tel. (514) 274-5614 – Fax
Attorney for Intervener Association Québécoise des Avocats et Avocates en Droit de l’Immigration
Attorney General of Ontario Robert E. Houston, Q.C. Burke-Robertson 70 Gloucester Street Ottawa, Ontario K2P 0A2
(613) 236-9665 – Tel. (613) 235-4430 – Fax [email protected]
Agent for Intervener Attorney General of Ontario
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TABLE OF CONTENTS
RESPONDENTS’ FACTUM Page
Volume I
PARTIE I – CONCISE STATEMENT OF THE FACTS ...... 1 a) Overview ...... 1 b) The facts ...... 2
1. The legislative context: the Immigration and Refugee Protection Act ...... 2
2. The meetings of Service employees with the appellant ...... 3
3. Judicial consideration ...... 4
4. Judicial consideration of the certificate is suspended ...... 7
5. Summary of interviews held on 31 January and 2 February 2002 ...... 8
6. Additional information from 6 January 2005 ...... 9
7. Fourth detention review of the appellant ...... 10
7.1 Adjournment of the hearing on the fourth detention review ...... 11
8. Appellant’s motion for a stay of proceedings ...... 11
9. Judgment of Mr. Justice Noël ...... 11
10. Judgment of the Federal Court of Appeal ...... 13
11. The new evidence: policies and procedures of the Canadian Security Intelligence Service ...... 14
12. New arguments from the appellant ...... 15 - ii -
TABLE OF CONTENTS
RESPONDENTS’ FACTUM Page
Volume I (cont’d)
PARTIE II – CONCISE STATEMENT OF THE QUESTIONS IN ISSUE ...... 16
PARTIE III – CONCISE STATEMENT OF ARGUMENT ...... 17
1. Legislation prior to passage of the Canadian Security Intelligence Service Act ...... 19
1.1 The Mackenzie Commission (1969) ...... 20
1.2 The McDonald Commission (1981) ...... 20
1.3 Bill C-157 and the Pitfield Report (1983) ...... 21
1.4 Conclusion ...... 21
2. CSIS Act ...... 23
2.1 Conclusion ...... 27
3. Operational policies ...... 27
4. Summary of interviews held on 31 January and 2 February 2002 and the additional information dated 6 January 2005 ...... 30
5. Compliance with principles of fundamental justice and the lack of prejudice ...... 31
5.1 Delay in providing the summaries of 31 January and 2 February 2002 and the summary of the “additional information” ...... 31
5.2 Admissibility of “additional information” – compliance with fundamental justice and lack of prejudice ...... 32
5.3 Interview notes – applicable principles of fundamental justice and lack of prejudice ...... 33
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TABLE OF CONTENTS
RESPONDENTS’ FACTUM Page
Volume I (cont’d)
6. Reliability of interview summaries, information or other evidence ...... 36
7. Stay of proceedings ...... 37
8. Conclusion ...... 38
PARTIE IV – COSTS ...... 38
PARTIE V – ORDER REQUESTED ...... 39
PARTIE VI – TABLE OF AUTHORITIES ...... 40
PARTIE VII – LEGISLATION ...... 44
Annex I
Criminal Code (R.S., 1985, ch. C-46) ...... 45
Canadian Human Rights Act (R.S., 1985, ch. H-6) ...... 53
Charities Registration (Security information) Act (2001, ch. 41) ...... 55
Canada Evidence Act (R.S., 1985, ch. C-5) ...... 58
Public Servants Disclosure Protection Act (2005, ch. 46) ...... 61
Privacy Act (L.R., 1985, ch. P-21) ...... 62
Personal Information Protection and Electronic Documents Act (2000, ch. 5) ...... 65
Access to Information Act (R.S., 1985, ch. A-1) ...... 66
Specific Claims Resolution Act (2003, ch. 23) ...... 69
Canadian Security Intelligence Service Act (R.S., 1985, ch. C-23) ...... 71 - iv -
TABLE OF CONTENTS
RESPONDENTS’ FACTUM Page
Volume I (cont’d)
Transportation Appeal Tribunal of Canada (2001, ch. 29) ...... 72
Employment Equity Act (1995, ch. 44) ...... 74
Official Languages Act (1985, ch. 31 (4th supp.)) ...... 76
Department of Public Safety and Emergency Preparedness Act, 2005 ch. 10 ...... 77
- French version ...... 80
Canadian Security Intelligence Service Act (an Act to establish the), 1984, ch. 21 ...... 83
An Act to establish the Canadian Security Intelligence Service (administrative codification, September 2006) ...... 130
Volume II
Bill C-57 - an Act establishing the Canadian Security Intelligence Act, 1984, ch. 21 ...... 159
FOREING LEGISLATION
Australian Security Intelligence Organisation Act, 1979 ...... 215
Volume III
Intelligence Services Act, 1994 (U.K.) ...... 368
Intelligence Services Act, 2001 (U.K.) ...... 385
New Zealand Security Intelligence Service Act, 1969 et amende- ments ...... 445
Security Service Act, 1989 (U.K.) ...... 491
______- 1 - Respondents’ factum Concise statement of the facts
RESPONDENTS’ FACTUM
PART I – CONCISE STATEMENT OF THE FACTS
A) OVERVIEW
1. The appellant is the subject of a certificate stating that he is inadmissible to Canada on security grounds [ss. 34(1)(c), 34(1)(d), and 34(1)(f) of the Immigration and Refugee Protection Act (IRPA)]. In the context of his fourth detention review, he asked the designated judge, on the basis of subsection 24(1) of the Canadian Charter of Rights and Freedoms (Charter), to stay the proceedings relating to the judicial review of the reasonableness of the certificate and of his detention.
2. The appellant submitted to the designated judge that section 7 of the Charter had been infringed because of an abuse of process based on two specific facts, namely, that a few days before the detention review, the designated judge forwarded a summary of two interviews of the appellant with employees of the Canadian Security Intelligence Service (Service) and a summary of additional information. The designated judge offered to adjourn the hearing so that the information could be examined by the appellant; the appellant agreed. This measure is adequate and in accordance with the principles of fundamental justice under section 7 of the Charter.
3. The appellant also submitted that section 7 of the Charter had been infringed because the Service had an operational policy stating that employees must document in a report all the information contained in their notes and then destroy these notes, unless this information is crucial to an investigation of an illegal activity of a serious nature, for example, the hijacking of a plane.
4. On the one hand, the ministers maintain that the retention and communication of summaries of interviews fully satisfied their duty of procedural fairness in the case at bar, considering the role and functions of the Service and Division 9 of the IRPA. On the other hand, the Federal Court of Appeal noted that this question is premature. The file does not even indicate whether Service employees took notes during interviews with the appellant. In the context of the judicial consideration of the certificate, the designated judge will have to consider the absence of interview notes, if applicable, when examining the information and evidence before him. - 2 - Respondents’ factum Concise statement of the facts
5. This is not a case where the continuation of proceedings to their conclusion will, prospectively, perpetuate or aggravate the infringement of the right to a fair trial or the integrity of the justice system. It is also not a case of improper conduct which contravenes fundamental justice or the integrity of the judicial process.
B) THE FACTS
6. The appellant has presented an incomplete version of the facts. The respondents (the ministers) urge the Court to instead consider the following statement of facts.
1. The legislative context: the Immigration and Refugee Protection Act
7. Division 9 of the IRPA governs the process for determining the reasonableness of the certificate and the detention of the appellant.
8. Section 76 defines the term “information”, whose confidentiality the designated judge must ensure [ss. 78(b) and (c)]. On each request of the ministers, the designated judge shall hear the information and other evidence [s. 78(e)]. He then provides the appellant with a summary which does not include information that could be injurious to national security or to the safety of any person if disclosed [s.78(h)].
9. Under s. 78(j), the judge may receive into evidence anything that, in his opinion, is appropriate and may base his decision on that evidence. Moreover, under s. 80(1) of the IRPA, the designated judge determines whether the certificate is reasonable based on the evidence available to him and not only on the information in the ministers’ possession when they signed the certificate [s. 80(1)].
10. In Charkaoui v. Canada,1 this Court concluded that the process for determining the reasonableness of the certificate and for detention reviews fails to ensure the fair hearing that section 7 of the Charter requires and was not justified under section 1, particularly since the designated judge “is
1 Charkaoui (Re), 2007 SCC 9, (2007) 276 D.L.R. (4th) 594, para. 64, Book of Authorities, vol. II, tab 9. - 3 - Respondents’ factum Concise statement of the facts not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring.”
2. The meetings of Service employees with the appellant
11. The appellant is a Moroccan citizen and has been a permanent resident of Canada since 1995. Service employees met him on five occasions, from 27 February 2001 to 26 July 2002.
12. These meetings dealt with the following subjects: the appellant’s trips to Pakistan and to Afghanistan in 1998 and to Morocco in December 2000, as well as his contacts with certain individuals, notably Ahmed Ressam, a terrorist.2
13. On 16 May 2003, ten months after the appellant’s last interview with Service employees, the Solicitor General of Canada3 and the Minister of Citizenship and Immigration (hereinafter “the ministers”) signed a certificate, pursuant to s. 77(1) of the IRPA stating that the appellant is inadmissible to Canada on grounds of security because there are reasonable grounds to believe that he is engaging in terrorism [s. 34(1)(c) of the IRPA], that he is a danger to the security of Canada 4 [s. 34(1)(d)] and that he is a member of a terrorist organization [s. 34(1)(f)]. The same day, they also signed an warrant for the arrest of the appellant who was arrested and detained on 21 May 2003.5
2 A) Summary of the meeting with Adil Charkaoui, 27 February 2001. Respondents’ Record (R.R.), vol. II, pp. 294 and following; B) Summary of the meeting with Adil Charkaoui, 14 September 2001, R.R., vol. II, pp. 298 and following; C) Summary of meetings with Adil Charkaoui, 31 January and 2 February 2002, R.R., vol. II, pp. 301-302; D) Summary of meeting with Adil Charkaoui, 26 July 2002, R.R., vol. II, pp. 303 and following. 3 Now the Minister of Public Safety and Emergency Preparedness; Department of Public Safety and Emergency Preparedness Act, 2005, c. 10, s. 7, infra, Vol. I, p. 78. 4 Certificate and notice of referral of certificate dated 16 and 21 May 2003, R.R., vol. I, pp. 78-79. 5 Arrest warrant, R.R., vol. I, p. 80. - 4 - Respondents’ factum Concise statement of the facts
3. Judicial consideration
14. On 23 May 2003, Mr. Justice Simon Noël of the Federal Court (the designated judge) presided a hearing held by teleconference with counsel for the parties in order to examine the information [para. 78. (d) and (e) of the IRPA] and to conduct the review of the decision for detention [subsection 83. (1)].
15. On 26 May 2003,6 Mr. Justice Noël examined in camera and ex parte the information and other evidence and issued an order in which he declared himself satisfied that certain information presented in support of the certificate should not be disclosed because their disclosure could be injurious to national security or to the safety of a person.
16. Mr. Justice Noël provided the appellant with a summary of the evidence that did not include anything that could be injurious to national security or to the safety of any person if disclosed. This summary also outlined the circumstances giving rise to the certificate, in particular, the appellant’s links to terrorists. Attached to this summary were summaries of the appellant’s three interviews with Service employees on 27 February 2001, on 14 September 2001, and on 26 July 2002,7 as well as 80 components of documentary evidence.
6 Charkaoui (Re), Order dated 26 May 2003, R.R., vol. I, pp. 81 and following. 7 A) Summary of meeting with Adil Charkaoui, 27 February 2001, R.R., vol. II, pp. 294 and following (tab 2A)); B) Summary of meeting with Adil Charkaoui, 14 September 2001, R.R., vol. II, pp. 298 and following (tab 2B)); C) Summary of meeting with Adil Charkaoui, 26 July 2002, R.R., vol. II, pp. 303 and following (tab 2D)).
- 5 - Respondents’ factum Concise statement of the facts
17. In essence, the ministers are of the opinion that the appellant was and is still a member of a terrorist organization, that is, the Al Qaeda network of Osama bin Laden, and that he received paramilitary training in Al Qaeda camps.8
18. On 15 July 2003, Mr. Justice Noël rendered a first decision in which he ordered the continued detention of the appellant. Later, he issued two similar orders. The appellant did not testify during his first three detention reviews.
19. For the benefit of the appellant, on two occasions, Mr. Justice Noël identified his concerns:
“3. Following the first two reviews of Mr. Charkaoui’s detention, I identified for him three concerns that I had identified in my examination of the protected documents containing information as defined in the IRPA. (See section 76.) Given the importance of these concerns, I will repeat them again:
- the applicant’s life from 1992 to 1995 in Morocco and from 1995 to 2000 in Canada, including his travels;
- the applicant’s trip to Pakistan from February to July 1998;
- the moving party’s contacts with Abousofiane Abdelrazik, Samir Ait Mohamed, Karim Saïd Atmani, Raouf Hannachi, and Abdellah Ouzghar (Charkaoui (Re), [2003] F.C.J. No. 1119, at paragraph 63 “Charkaoui I” and Charkaoui (Re), [2004] F.C.J. No. 78, at paragraph 5, “Charkaoui IV”).”9
20. On ten occasions, at the request of the ministers, who had informed in advance counsel for the appellant in writing, Mr. Justice Noël reviewed additional security information, in camera and ex parte, on 7 July 2003, 14 July 2004, 5 January 2005, 16 February 2005, 24 February 2005, 25 May 2005, 6 April 2006, 6 October 2006, 5 July 2007 and 13 July 2007.
21. Mr. Justice Noël provided the appellant with five summaries of additional information:
8 See Charkaoui (Re), 2003 FC 882, [2004] 1F.C.R. 528, para. 49 [first decision regarding the review of the grounds for detention on 15 July 2003], R.R., vol. I, p. 105. Concerning the particular relevancy of the participation in these camps, see Almrei v. Canada (M.C.I.), 2005 FC 1645, (2005) 270 F.T.R. 1, para. 109, Book of Authorities, vol. I, tab 2. 9 Judgment by Mr. Justice Noël dated 23 July 2004, Charkaoui (Re), 2004 FC 1031, (2004) 260 F.T.R. 238, R.R. Vol. I, pp. 171 and following and pp. 191 and following. - 6 - Respondents’ factum Concise statement of the facts
10 a) A summary dated 16 July 2003 revealing to the appellant that the Service was continuing its investigation of him and other individuals, that it had recently obtained new information revealing that a foreign intelligence service had informed the Service on 6 June 2003 that Abou Zubaida, described as a close associate of Osama Bin Laden, had recognized the appellant as Zubeir Al-Maghrebi, an individual whom he had seen in Afghanistan.
11 b) A summary dated 14 August 2003 revealing to the appellant that in interviews with the Service in January 2002, Ahmed Ressam, an Algerian national sentenced to 22 years in prison in the United States for conspiracy to commit an attack against the Los Angeles Airport,12 identified two photographs of the appellant as Zubeir Al- Maghrebi. He stated that he had met the appellant in 1998 in an Al Qaeda camp in 13 Afghanistan.
14 c) A summary dated 6 January 2005 revealing to the appellant that he was a member of the Groupe Islamique Combattant Marocain, a group with ties to Al Qaeda (This is the relevant summary in this appeal).
d) On 24 January 2005 a summary of an interview between the appellant and agents of the FBI 15 which took place on 30 January 200116.
e) A summary dated 6 April 200617 describing a meeting between the designated judge and employees of the Service revealing, in particular, that the designated judge had considered information that was helpful to the Appellant’s motion to change his conditions of detention and other facts which justified maintaining the current conditions of detention. However, these facts could not be revealed to the appellant for reasons of national security. (Our emphasis)
10 Summary dated 16 July 2003, R.R. vol. II, pp. 306 and following. 11 Summary dated 14 August 2003, R.R. vol. II, pp. 310 and following. 12 A) Sentencing report dated 27 July 2005, in U.S. v. Ressam, R.R., vol. II, pp. 315 and following. B) Excerpts and comments on the sentence in the U.S. case Ressam, R.R. vol. II, pp. 322 and following. 13 Charkaoui (Re), 2004 FC 191, (2004) 245 F.T.R. 276, para. 6 [second decision regarding the review of the reasons for detention, 23 January 2004 and amended dated 4 February 2004], R.R. vol. I, p. 151 and p. 161; Charkaoui (Re), 2003 FC 1418, (2003) 39 Imm. L.R. (3d) 308 [decision dated 5 December 2003 dismissing a motion requesting disclosure of the evidence], R.R. vol. I, pp. 113 and following and pp. 132 and following. 14 Summary dated 6 January 2005, R.R. vol. II, pp. 332 and following 15 Federal Bureau of Investigation 16 Summary dated 24 January 2005, R.R. vol. II, pp. 341 and following 17 Summary dated 6 April 2006, R.R. vol. II, pp. 347 and following - 7 - Respondents’ factum Concise statement of the facts
4. Judicial consideration of the certificate is suspended
22. In July 2003, the appellant applied for protection as part of the pre-removal risk assessment (PRRA) process. On 25 February 2004, the appellant requested and was granted, as of right, pursuant to subsection 79(1) of the IRPA, a suspension of the reasonableness review of the certificate until the minister made a decision regarding the application for protection.18
23. As this application was denied on 6 August 2004, Mr. Justice Noël set the dates to review both the reasonableness of the certificate and the determination as to whether the application for protection was lawfully made. On 21 February 2005, Mr. Justice Noël began his review of the reasonableness of the certificate. Witnesses were heard between 21 and 24 February 2005. The hearing was adjourned to 21 March 2005.
24. On 22 March 2005, based on the discovery of the fact that the appellant was the subject of an arrest warrant issued by the Moroccan authorities, and at the request of counsel for the ministers, Mr. Justice Noël set aside the decision denying the request for protection. The Appellant made a new PRRA application and, as of right, the suspension of the review of the reasonableness of the certificate was granted by Mr. Justice Noël.19
25. On 10 March 2004, the appellant filed a motion seeking recusal of the designated judge, on the basis that the judge was not completely impartial since, according to the appellant, he was unable to exercise concurrently the tasks of monitoring the appellant’s detention and reviewing the certificate. Mr. Justice Noël denied the motion on 28 April 2004.20 There was an appeal of this order, followed by an abandonment.
18 Charkaoui (Re), 2004 FC 264; Reasons for order and order dated 25 February 2004, R.R. vol. I, pp. 164 and following 19 Order dated 22 March 2005, R.R. vol. II, pp. 245 and following. The appellant subsequently challenged the constitutionality of certain sections of the IRPA relating to applications for protection. This issue is the subject of another application for leave to appeal before this court, number 31992. 20 Charkaoui (Re), 2004 FC 624, (2004) 255 F.T.R. 199, R.R. vol. II, pp. 248 and following and pp. 273 and following. - 8 - Respondents’ factum Concise statement of the facts
5. Summary of interviews held on 31 January and 2 February 2002
26. On 30 December 2004, counsel for the appellant were informed that counsel for the ministers had requested an in camera and ex parte meeting with Mr. Justice Noël.21 On 5 January 2005, Mr. Justice Noël met with counsel for the ministers for several hours in the absence of the appellant and his counsel (pursuant to subsection 78(e) of the IRPA), in order to receive additional information or evidence, the disclosure of which would be injurious to national security or to the safety of any person, and examined and cross-examined witnesses.
27. At this time, Mr. Justice Noël was advised that counsel for the ministers had discovered, in another document, a summary of two interviews the appellant had with employees of the Service on 31 January 2002 and 2 February 2002 which inadvertently had not been given to him earlier.
28. Mr. Justice Noël ordered that the summary of these interviews be communicated immediately to the appellant. The summary reads as follows:
(TRANSLATION)
“INTRODUCTION
Adil CHARKAOUI was seen on 2002 01 31 and 2002 02 02. During the first contact, CHARKAOUI stated that he was prepared to clarify point by point what the Service could have against him. He stated that he was prepared to undergo a polygraph, even though he made light of the device. At the second contact, CHARKAOUI returned to his defensive stance, claiming to be persecuted by the authorities, by the Service. Stating that he had never done anything wrong, he refuted our allegations that accused such as RESSAM could have recognized him. That time he stated that he would not undergo a polygraph and stormed out. CHARKAOUI left numerous items unresolved. For example, CHARKAOUI stated that he had never been to Afghanistan, but he admitted having gone to Pakistan, but gave no indication as to what he did there. Unless he thought things over and changed his attitude, CHARKAOUI did not leave us with the impression that he would ever be seeing the Service again.”22
21 Letter dated 30 December 2004, R.R. vol. II, pp. 202 and following. 22 Summary of interviews held on 31 January and 2 February 2002, R.R. vol. II, pp. 301-302 (tab. 2C)). - 9 - Respondents’ factum Concise statement of the facts
6. Additional information from 6 January 2005
29. On 6 January 2005, Mr. Justice Noël provided the appellant with a summary of additional information which, in his view, would not be injurious to national security or the safety of any person.23 This summary contained, notably, the following information:
“[…]
In addition, the information contained in this report, including the supporting references, is corroborated by other means and/or sources.
While the information which constitutes this report, and the information that has not been disclosed for reasons of national security was known in part at the start of 2004, it was only late in the fall of 2004 that the Service was able to complete this step of the investigation.
This summary reflects approximately 95% of the allegations contained in the secret intelligence report disclosed to the Court.
[…]
2. In continuing its investigation against Adil Charkaoui and other individuals, the Service recently obtained new information.
3. The Moroccan authorities identified Adil Charkaoui as a member of the Groupe Islamique Combattant Marocain (GICM). For the Moroccan authorities, the GICM is a clandestine organization with ties to Al Qaeda that was established in 1998 in Afghanistan by Mohamed El Guerbouzi, who is reportedly living in London.
4. In response to Moroccan newspaper articles which appeared in April, the Committee for the Defence of Adil Charkaoui held a press conference in which it denied all these statements, claiming that the allegations by Nafia had been obtained under torture.
Charkaoui – Afghanistan - Khalden camp - GICM
5. Charkaoui reportedly went to Afghanistan in early 1998. He is reported to have taken paramilitary training at Khalden as well as theological training at the Sharia institute in the same camp. Charkaoui was recruited to join the GICM.
23 Additional summary dated 6 January 2005, R.R. vol. II, pp. 335-336 (tab 14). - 10 - Respondents’ factum Concise statement of the facts
The information contained in this paragraph is in addition to the information contained in paragraph 28 of the security report indicating that Charkaoui reportedly attended the Khaldun / Khalden camp.
[…]”
7. Fourth detention review of the appellant
30. On 10 January 2005, the parties appeared before Mr. Justice Noël for the fourth detention review of the appellant.
31. At the start of the hearing, counsel for the ministers explained publicly that the late disclosure of the summary of interviews held on 31 January 2002 and 2 February 2002 was due to the fact that it 24 had been included with other summaries and that it had inadvertently been omitted from the other interview summaries that were given to the appellant on 26 May 2003. Mr. Justice Noël informed the appellant that he had examined the document in order to satisfy himself that the representations made in it were correct.25
32. In response to a question from counsel for the appellant, after review, counsel for the ministers indicated that there had been no mechanical recording of the interviews and that the Service had an operational policy whereby Service employees write a report and then destroy their notes26. There is no evidence on file which reveals that Service employees actually took notes during the interviews with the appellant and had destroyed them after documenting the relevant information in a report.
33. Mr. Justice Noël noted that counsel for the appellant could have been informed prior to the holidays that counsel for the ministers had requested an in camera ex parte meeting. With regard to the additional information that had been reviewed in camera by Mr. Justice Noël on 5 January 2005, he informed counsel for the appellant that he had ascertained the information with witnesses and had added information to the summary in order that the appellant have as much
24 R.R. vol. II, pp. 354-357. 25 R.R. vol. II, pp. 356-357 and pp. 427-428 (tab 24). 26 R.R. vol. II, pp. 381-388 (tab 24). - 11 - Respondents’ factum Concise statement of the facts information as possible. He also indicated that the Service’s ongoing investigation with respect to additional information had become conclusive at the end of November, 2004.27
7.1 Adjournment of the hearing on the fourth detention review
34. Mr. Justice Noël offered, and the appellant agreed, to adjourn the hearing to allow him to familiarize himself, prior to testifying, with the summary of the interviews held on 31 January 2002 and 2 February 2002, and the additional summary of information dated 6 January 2005.28
8. Appellant’s motion for a stay of proceedings
35. On 10 January 2005, counsel for the appellant objected to the admissibility of the additional information dated 6 January 2005. After being informed that the Service had an operational policy whereby employees prepare a report and then destroy their notes, the appellant filed a motion with Mr. Justice Noël on 12 January 2005 for a stay of proceedings of the reasonableness of the certificate and 29 his detention [ss. 7 and 24(1) of Canadian Charter of Rights and Freedoms].
9. Judgment of Mr. Justice Noël
36. On 20 January 2005, Mr. Justice Noël rejected the appellant’s motion for a stay of proceedings 30 and filed his reasons on 1 February 2005. He made the following findings:
• the summaries of the interviews held on 31 January and 2 February 2002 do not contain the facts and allegations which form the basis of the appellant’s inadmissibility and detention;
• the interview summaries represent a minute portion of the overall body of information filed by the ministers in support of the certificate and the detention of the appellant;
27 R.R. vol. II, pp. 359-363 (tab 24). 28 R.R. vol. II, pp. 368-370 and p. 382 (tab 24). 29 Objection to new evidence disclosed to the named person on 6 January 2005; Appellant’s Record (A.R.) Vol. IV, p. 637; Motion for a stay of proceedings of the named person dated 12 January 2005, A.R. vol. IV, p. 676 30 Order dated 20 January 2005 and reasons for the order dated 1 February 2005, Charkaoui (Re), 2005 FC 149, (2005) 261 F.T.R. 1, R.R. vol. I, pp. 2 and following. - 12 - Respondents’ factum Concise statement of the facts
• the appellant was not taken by surprise by the 6 January 2005 disclosure of the summaries of the interviews held on 31 January and 2 February 2002 and the additional information summary, because the hearing of 6 January 2005 had been adjourned in order for the appellant to familiarize himself with the information before testifying;
• the Service is not a police body and its role is not to lay charges; therefore, it does not have the same obligations as those of a police body, such as the requirement to preserve interview notes;
• with respect to the credibility of the information and the evidence, he found that it is not possible to arrive at a final determination of this issue before the issue of the reasonableness of the certificate has been resolved. In other words, these arguments are premature;
• with respect to the argument that the new facts were allegedly obtained through hearsay, he found that subsection 78(j) of the IRPA allows the judge to: “ receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.”
37. On 7 February 2005, at the fourth detention review, the appellant testified and answered questions for the first time from Mr. Justice Noël.31 In his testimony, the appellant dealt with the following subjects: the reasons he did not testify at previous reviews of his detention; the reasons for his trip to Pakistan; his interview on 30 January 2001 with the FBI; his interview of 14 September 2001 with employees from the Service; the itinerary for his trip to Pakistan; his interview with Corporal Duval of the Royal Canadian Mounted Police (RCMP); his first contact with the Service in February 2001. He did not testify regarding his interviews of 31 January and 2 February 2002 with employees of the Service nor was he cross-examined in this regard.
38. On 17 February 2005, Mr. Justice Noël found that the imminence of danger had declined with the passage of time and he released the appellant under certain conditions, based on section 85 of the IRPA.32
39. He also noted in his reasons that he was in a better position than the ministers who signed the certificate because he considered all the information, that is, the information known to the ministers,
31 R.R. vol. III, pp. 437 and following 32 Order dated 17 February 2005, Charkaoui (Re), 2005 FC 248, [2005] 3 F.C.R. 389, para. 74, R.R. vol. II, p. 236. - 13 - Respondents’ factum Concise statement of the facts plus the additional information [para. 78 (d) and (e) of the IRPA], heard the witnesses produced by the ministers or by the appellant and also allowed into evidence anything which he deemed appropriate.33
10. Judgment of the Federal Court of Appeal
40. On 6 June 2006, the Federal Court of Appeal unanimously denied the appeal filed against the judgment rendered by Mr. Justice Noël34 on 20 January 2005 based on the following reasons:
• With regard to the possible breach of the appellant’s right to procedural fairness resulting from the belated disclosure of the interviews or new information, the Court finds that the appropriate remedy under the circumstances was a postponement of the hearing, as was decided by Mr. Justice Noël;
• With regard to the interview summaries and the destruction of the notes, the Court finds that one cannot assume that the interview summaries are inconsistent with the notes, or vice versa. The designated judge was satisfied as to the reliability of the evidence available, either because it emanated from independent sources, or it was corroborated; the lack of interview notes, even those that could be relevant, does not affect the reliability of this evidence, especially the evidence that is extrinsic to the interviews with the appellant.
“Wherever the interview notes are liable to throw some light on dubious evidence, their absence is a factor that the designated judge must consider in his assessment of this evidence. It cannot be assumed that the designated judge will not discharge his duties pertaining to the assessment of the probative value of the evidence, as he must.” In other words, this issue is premature.
• With regard to the receipt of certain new information that was not provided to the ministers, the Court of Appeal found that the review framework contemplated by the law is not the one that applies to the judicial review of an administrative decision, but, rather, the framework set out at paragraph 78(e) and section 80 of the IRPA. A simple reading of these provisions clearly indicated that the designated judge can receive all evidence that bears on the reasonableness of the certificate, even if some of that evidence was not known to the ministers at the time the certificate was issued. (Our emphasis)
33 Order dated 17 February 2005, Charkaoui (Re), 2005 FC 248, [2005] 3 F.C.R. 389, para. 31, R.R., vol. II, pp. 223-225. 34 Order and reasons by the Federal Court of Appeal, 6 June 2006 Charkaoui (Re), 2006 FCA 206, (2006) 272 D.L.R. (4th) 175, R.R. vol. I, pp. 35 and following. - 14 - Respondents’ factum Concise statement of the facts
11. The new evidence: policies and procedures of the Canadian Security Intelligence Service
41. On 20 June, 2007,35 this Court allowed the Minister of Public Safety and Emergency Preparedness to file the affidavit of Iwona Mooney, an employee of the Service, to which were attached the policies of the Service from 1984 to 2006 regarding the operational notes of Service employees. These included policies and procedures OPS-217, specifically the version dated 15 December 1994, which was in effect at the time of the interview held on 27 February 2001, and the one dated 19 June 2001, which was in effect at the time of the interviews held on 14 September 2001, 31 January 2002, 2 February 2002 and 26 July 2002.36
42. Administrative policy OPS-217, which was in effect at the time of the interviews with the appellant, provides the following with respect to operational notes made by employees of the Service:
[…]
Destruction of Notes Destruction des notes
3.5 Once the relevant information is 3.5 Après avoir fait rapport sur les reported, the notes must be destroyed, informations pertinentes, les employés except in the following circumstances: doivent détruire leurs notes, sauf, dans les circonstances suivantes : When information in notes, such as a Si leurs notes contiennent des sketch or diagram, cannot be informations, comme des croquis ou transcribed into a report, the relevant des diagrammes, qui ne peuvent être portion of the notes may be retained on transcrites dans un rapport, ils file; peuvent conserver la portion pertinente des notes dans le dossier;
When information contained in the S’il est possible que les informations notes may be crucial to the contenues dans leurs notes soient investigation of an unlawful act of a cruciales dans le cadre d’une serious nature and employees may enquête menée sur une activité require their notes to refresh their illicite de nature grave et qu’ils aient memories prior to recounting the facts besoin de leurs notes pour se of an event. rafraîchir la mémoire avant de relater les faits. […]
35 Order dated 20 June 2007, R.R. vol. I, pp. 77 and following. 36 Affidavit dated 24 May 2007 from Iwona Mooney, Exhibits C, E, and J, R.R. vol. IV, pp. 679 and following, pp. 695 and following and pp. 751 and following - 15 - Respondents’ factum Concise statement of the facts
43. At interviews with the appellant on 27 February 2001, 14 September 2001, 31 January 2002, 2 February 2002 and 26 July 2002, on the assumption that notes were taken, the relevant information was documented in reports and the notes were subsequently destroyed.
12. New arguments from the appellant
44. Before this Court, the appellant considerably broadened the debate and is now claiming that he is a victim of an abuse of process on the part of the Canadian Security Intelligence Service, its employees, the Solicitor General of Canada, the Minister of Citizenship and Immigration and their counsel, and, even, of racial profiling. There is no evidence in the record to support the appellant’s inferences.
45. He also makes new arguments that were not presented to Mr. Justice Noël, to the Federal Court of Appeal, or argued in his application for leave to appeal. These include the fact that he did not have an opportunity to provide any observations to the ministers before they signed the certificate. This Court should refrain from considering these arguments, based on the fact that the lower courts did not have an opportunity to examine them.37
______
37 R. v. Mann, [2004] 3 S.C.R. 59, para. 22, Book of Authorities, vol. II, tab 28; Bell Express Vu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, para. 59, Book of Authorities, vol. I, tab 4.
-16- Respondents’ factum Concise statement of the questions in issue
PART II – CONCISE STATEMENT OF THE QUESTIONS IN ISSUE
46. The appellant alleged in the lower courts that there had been a breach of section 7 of the Charter resulting from an abuse of process, and that there were grounds for ordering, pursuant to subsection 24(1), a stay of proceedings regarding the reasonableness of the certificate and his detention. The questions formulated by the appellant do not refer to section 7 or to paragraph 24(1) of the Charter.
47. The ministers request that this Court consider the following points:
I. Did the Federal Court of Appeal correctly decide in law when it found that there had not been a breach of section 7 of the Charter in contravention of the principles of fundamental justice because:
1) Mr. Justice Noël applied the appropriate remedy to the forwarding, on 5 January 2005, of the summary of the interviews held on 31 January and 2 February 2002 and to the forwarding on 6 January 2005 of the additional information, that is the adjournment of the hearing;
2) it is incumbent to the designated judge, in examining the reasonableness of the certificate, to weigh the probative value of the interview summaries by taking into account the fact that the interview notes made by the Service employees had been destroyed;
3) examination of the reliability of the information and other evidence was premature, because this issue will have to be decided when the reasonableness of the certificate is reviewed.
Response
The ministers maintain that the Federal Court of Appeal was correct in finding that there had been no breach of section 7 of the Charter.
II. Assuming that this Court were to find that section 7 of the Charter was infringed, would a stay of proceedings of the certificate be the appropriate remedy?
Response
The ministers maintain that a stay of proceedings regarding the reasonableness of the certificate is not the appropriate remedy.
______-17- Respondents’ factum Concise statement of argument
PART III – CONCISE STATEMENT OF ARGUMENT
48. This appeal is not a constitutional challenge for the purpose of declaring a legislative provision of the IRPA inoperative pursuant to section 52 of the Constitution Act, 1982. Therefore, the appellant is not challenging the constitutional validity of the provisions of the Act which allow the designated judge to take into account, in ruling on the reasonableness of a certificate, evidence that the ministers had not been seized with at the time they issued the certificate. Nor is he challenging the constitutional validity of the provision which authorizes the designated judge to consider evidence that would otherwise be inadmissible in a court of law. He is essentially seeking to have the certificate review process under Division 9 of the IRPA made subject to all the rules governing the holding of a criminal trial.
49. The appellant argued before Mr. Justice Noël and the Federal Court of Appeal that there were grounds for ordering a complete stay of the proceedings, both regarding the detention and the reasonableness of the certificate, due to the fact that admitting into evidence the summaries of the interviews with the appellant and the additional information discovered since the certificate was signed contravened procedural fairness and constituted an abuse of process, thereby breaching his rights under section 7 of the Charter.
50. Since the review of the reasonableness of the certificate had been suspended pursuant to subsection 79(1) of the IRPA, the ministers maintain that the review of the reliability of the interview summaries and of the additional information is premature, because it is during the review of the reasonableness of the certificate that the designated judge will be required to assess the probative value of the information and the other evidence.
51. This Court has recognized that the legislative regime of Division 9 of the IRPA infringed the appellant’s right to life, liberty and security.38
52. However, as held by this Court, the appellant was also required to prove that in this case, the admission of the interview summaries, the destruction of the operational notes and the admission of
38 Charkaoui (Re), 2007 SCC 9, (2007) 276 D.L.R. (4th) 594, paras. 12-14 and 18, Book of Authorities, vol. II, tab 9. -18- Respondents’ factum Concise statement of argument additional information placed in the record pursuant to paragraphs 78(e) and (j) of the IRPA did not meet the principles of fundamental justice39 and constituted an abuse of process justifying a stay of proceedings.
53. Section 7 guarantees “...procedural fairness with respect to the nature of the procedures at issue”.40 The requirements of procedural fairness must always be read in context. This Court recently reviewed the object of Division 9 of the IRPA and section 7 of the Charter.41 It also noted in 42 43 Chiarelli and Medovarski that Parliament can set the conditions to be met by non-citizens for entering or remaining in Canada.
54. Courts have also ruled that while there is a certain obligation to disclose in administrative law, the rule requiring the Crown to disclose the entire evidence to an accused44 does not apply in immigration matters45 or in matters concerning prison law.46 Similarly, the traditional rules of evidence applicable to a criminal trial do not necessarily apply to the extradition process.47
55. The ministers recognize that they have an obligation to disclose information or other evidence48 to the designated judge, regardless of whether it is inculpatory or exculpatory. Their obligation to
39 Charkaoui (Re), 2007 SCC 9, (2007) 276 D.L.R. (4th) 594, para. 12, Book of Authorities, Vol. II, Tab 9. 40 Charkaoui (Re), 2007 SCC 9, (2007) 276 D.L.R. (4th) 594, at paras. 19-20, Book of Authorities, vol. II, tab 9; United States v. Ferras, [2006] 2 S.C.R. 77, para. 21, Book of Authorities, vol. II, tab 11; Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, para. 39, Book of Authorities, vol. III, tab 35; Therrien (Re), [2001] 2 S.C.R. 3, para. 82, Book of Authorities, vol. III, tab 38; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, para. 21, Book of Authorities, vol. I, tab 3; United States v. Whitley, (1995) 20 O.R. (3d) 794, p. 807 – confirmed on appeal [1996] 1 S.C.R. 467, Book of Authorities, vol. II, tab 12; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, pp. 656, 657, Book of Authorities, vol. II, tab 14; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, p. 743, Book of Authorities, vol. II, tab 10; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, p. 682, Book of Authorities, vol. II, tab 15. 41 Charkaoui (Re), 2007 CSC 9, (2007) 276 D.L.R. (4th) 594, paras. 24-25, Book of Authorities, vol. VI, tab 9. 42 Chiarelli v. Canada, supra, at p. 733 and pp. 743-746, Book of Authorities, vol. II, tab 10. 43 Medovarski v. Canada, [2005] 2 S.C.R. 539, para. 46, Book of Authorities, vol. II, tab 17. 44 R. c. Stinchcombe, [1995] 1 S.C.R. 754, Book of Authorities, vol. III, tab 34; R. v. Stinchcombe, [1991] 3 S.C.R. 326, pp. 339-341, Book of Authorities, vol. III, tab 33; 45 Charkaoui (Re) , 2006 FCA 206, (2006) 272 D.L.R. (4th) 175, at paras. 22-23; R.R., vol. I, p. 70; Harkat (Re), 231 (2003) 231 F.T.R. 19, Book of Authorities, vol. II, tab 13; Ahani v. Canada, [1995] 3 F.C.T.D. 669 - confirmed on appeal [1996] 201 N.R. 233 (F.C.A.), Book of Authorities, vol. I, tab 1. 46 May v. Ferndale Institution, [2005] 3 S.C.R. 809, paras. 89-90, Book of Authorities, vol. II, tab 16. 47 United States of America v. Ferras, supra, para. 14, Book of Authorities, vol. II, tab 11. 48 Ruby v. Canada (Solicitor General), supra, par. 27, Book of Authorities, vol. III, tab 35. -19- Respondents’ factum Concise statement of argument disclose is primarily to the designated judge (s. 76) who is assessing the reasonableness of the certificate.
56. It is fitting to remember that the IRPA imposes on Mr. Justice Noël the obligation to assess the information that is provided to him by the ministers and that he must not communicate, in the summary or summaries that he provides to the appellant, any information, the disclosure of which would be injurious to national security or to the safety of any person [paras. 78(d), (e), (f), (g) and (h) of the IRPA].
57. This appeal involves the administrative policies of the Service regarding the handling of operational notes after they have been documented in a report. A review of these policies cannot be separated from the functions which Parliament has attributed to the Service. Hence, it is important to understand the role and functions of the Service.
1. Legislation prior to passage of the Canadian Security Intelligence Service Act
58. On 28 June, 1984, Parliament passed the Canadian Security Intelligence Service Act. As a result, the Service replaced the Security Service of the Royal Canadian Mounted Police. The Service is a civilian intelligence agency whose primary function is to advise the government of threats to the 49 security of Canada.
59. This Act followed 15 years of Parliamentary business, primarily the recommendations of a 50 51 52 royal commission, a commission of inquiry and work of the House of Commons and the Senate as part of the study of bills C-157 and C-9.
49 The Canadian Security Intelligence Service Act was proclaimed into law on 16 July 1984. An Act to establish the Canadian Security Intelligence Service, 1984, c. 21, infra, vol. I, pp. 83 & ff.; Bill C-157, An Act to establish the Canadian Security Intelligence Service, first reading, 18 May 1983, infra, vol. II, pp. 159 & ff. 50 Royal Commission on Security (Mackenzie Commission), Book of Authorities, vol. IV, tab 43. 51 Commission of Inquiry Concerning Certain Activities of the RCMP McDonald Commission) reported in 1979 and 1981. 52 Report of the Special Senate Committee on Security and Intelligence (Pitfield Report), Book of Authorities, vol. IV, tab 47. -20- Respondents’ factum Concise statement of argument
1.1 The Mackenzie Commission (1969)
60. In 1969, the Royal Commission on Security (“Mackenzie Commission”) noted, as would be noted later by the McDonald Commission, the Pitfield Committee and the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, the fundamental differences between the 53 functions and responsibilities of a police body and those of a security intelligence service and recommended that the security intelligence function be removed from the RCMP mandate and assigned to a civilian agency.54
1.2 The McDonald Commission (1981)
61. In 1977, the federal government established the Royal Commission of Inquiry Concerning Certain Activities of the RCMP. In its report, published in 1981 and which included 285 recommendations, the McDonald Commission recommended, as had the Mackenzie Commission in 1969, the establishment of a civilian security service that would be completely separate from the RCMP.55
62. The Commission stated that the role of a security service is to collect and analyze threat-related information and intelligence and not to discourage or repress criminal activities. The new agency responsible for security services was to report to the political authorities and be subject to strict oversight. The Commission noted that it was inappropriate to impose these constraints on the RCMP and added that the work related to security intelligence is different from police work.
63. The Commission recommended56 that the Act establishing the Canadian Security Intelligence Service be limited to what was strictly necessary to fulfill its functions. The Commission was of the
53 Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Appellant’s book of authorities, vol. IX, tab 81, p. 73. 54 Mackenzie Commission Report, paras. 62 and 63, Book of Authorities, vol. IV, tab 43. 55 Commission of Inquiry into Certain Activities of the Royal Canadian Mounted Police – Second report – Vol. 2 – Freedom and Security under the Law – August 1981 – Recommendations 104 to 111, p. 1153, Book of Authorities, vol. IV, tab 45. 56 Commission of Inquiry into Certain Activities of the RCMP – Second Report – Vol. 2 – Freedom and Security under the Law – August 1981 – Recommendation 4, p. 1129, Book of Authorities, vol. IV, tab 45. -21- Respondents’ factum Concise statement of argument view that a restrictive provision was required in order to limit security intelligence activities to what is strictly necessary to ensure Canada’s security. According to the Commission, the inclusion of such a provision was useful to remind security officials to show restraint in exercising the powers that had been given to them.57
1.3 Bill C-157 and the Pitfield Report (1983)
64. On 18 May 1983, the Government tabled for first reading in the House of Commons Bill C-157, An Act to establish the Canadian Security Intelligence Service. This bill was referred to a Senate committee (the “Pitfield” Committee). On 3 November 1983, the Pitfield Committee tabled its report entitled Delicate Balance: A Security Intelligence Service in a Democratic Society. The report recommended over 40 amendments to Bill C-157 in order to ensure a better balance between individual security, individual freedoms and the right to privacy.58
65. The Pitfield Committee noted that it was necessary to limit the functions of the Service, increase ministerial responsibility and enhance the mechanisms for monitoring and reviewing the activities of the Service. As had been done by the Mackenzie and McDonald commissions, the Pitfield Committee set out the major differences between police functions and the role of an intelligence service and emphasized that security intelligence work requires secrecy.59
1.4 Conclusion
66. Six principles emerged from the work that preceded the adoption of the CSIS Act:
57 Commission of Inquiry into Certain Activities of the RCMP – Second Report – Vol. 1 – Freedom and Security under the Law – August 1981 – McDonald Report, pp. 464-465, paras. 44 and 45, Book of Authorities, vol. IV, tab 44. 58 Report of the Special Senate Committee on Security and Intelligence – 3 November 1983, para. 26, p. 19:15, Book of Authorities, vol. IV, tab 47. See also Privacy, Crime and Terror – Legal Rights and Security in a Time of Peril, Stanley A. Cohen, LexisNexis Canada Inc., 2005, pp. 17, 18, 50-61, Book of Authorities, vol. III, tab 41. 59 Report of the Special Senate Committee on Security and Intelligence – 3 November 1983, paras. 14 and 15, pp. 19: 12 and 19: 13, Book of Authorities, vol. IV, tab 47. -22- Respondents’ factum Concise statement of argument
a) The collection, analysis and retention of security intelligence are specialized functions that should be assigned to a civilian agency;60
b) The purpose of analyzing security intelligence is to evaluate, for the future, the threats to the security of Canada. This work requires non-disclosure of the information gathered by the civilian agency;61
c) The purpose of collecting and retaining information is not to file evidence before the courts;62
d) The functions assigned to the agency responsible for analyzing security intelligence must be limited, and must not reproduce the functions assigned to police bodies;63
e) The agency should not collect or retain any information that is not required in the exercise of its duties and functions;64
f) The Government must monitor the work of the civilian agency, and must notably ensure that the agency does not overstep its duties and functions.65
67. Further to the recommendations of the Pitfield Committee, on 18 January 1984, the Government tabled Bill C-9, the Act establishing CSIS.
60 MacKenzie Commission, paras. 58 and 63, pp. 21 and 23 - Recommendation, para. 297, pp. 105-106, Book of Authorities, vol. IV, tab 43; McDonald Commission, Second Report – volume 2, pp. 793 to 796, paras. 1 to 3 and para. 9, Book of Authorities, vol. IV, tab 45; Pitfield Committee, paras. 18 to 22, pp. 19:13 and 19:14, Book of Authorities, vol. IV, tab 47. 61 McDonald Commission, Second Report – volume 1, p. 425, para. 3 – p. 428, para. 13 and p. 440, para. 30, Book of Authorities, vol. IV, tab 44; Pitfield Committee, paras. 13 to 16, pp. 19:12 and 19:13, Book of Authorities, vol. IV, tab 47. 62 McDonald Commission, Second Report – volume 1, pp. 309 to 311, paras. 18 to 24 – p. 648, para. 5, Book of Authorities, vol. IV, tab 44 - Second Report – volume 2, Recommendation 34, p. 1141, Book of Authorities, vol. IV, tab 45. 63 MacKenzie Commission, paras. 55 and 57, pp. 20-21 – Recommendation, para. 297(a), pp. 105-106, Book of Authorities, vol. IV, tab 43; McDonald Commission, Second Report – Volume 1, p. 441, para. 34 – pp. 448 to 466, paras. 4 to 47 – p. 641, para. 30 – p. 647, para. 3, Book of Authorities, vol. IV, tab 44 – Second Report – Volume 2, p. 799, para. 17 – Recommendations 1 and 2, p. 1129 – Recommendation 9, p. 1130 – Recommendations 29 and 30, pp. 1140-1141 – Recommendations 33 and 34, p. 1141, Book of Authorities, vol. IV, tab 45; Pitfield Committee, para. 29, p. 19:16 and para. 37, p. 19:18, Book of Authorities, vol. IV, tab 47. 64 McDonald Commission, Second Report – Volume 1, p. 547, par. 21, Book of Authorities, vol. IV, tab 44. – Second Report – Volume 2, Recommendations 4 and 5, pp. 1129 and 1130, Book of Authorities, vol. IV, tab 45; Pitfield Committee, paras. 23 to 26, pp. 19:14 and 19:15, Book of Authorities, vol. IV, tab 47. 65 MacKenzie Commission, paras. 63 and 66, pp. 23 and 24 – Recommendation, para. 299, pp. 109 and 110, Book of Authorities, vol. IV, tab 43; McDonald Commission, Second Report – vol. 1, p. 426, para. 7, – Second Report – volume 2, p. 797, paras. 11 and following – p. 888, para. 5, Book of Authorities, vol. IV, tabs 44 - 45; Pitfield Committee, para. 19, pp. 19:13 and 19:14 – para. 64, p. 19:26 – paras. 83 and 84, pp. 19:30 and 19:31 – paras. 87 to 98, pp. 19:31 to 19:34, Book of Authorities, vol. IV, tab 47. -23- Respondents’ factum Concise statement of argument
2. CSIS Act
68. The establishment of a civilian security intelligence body through legislation was designed to find a balance between, on the one hand, the need for the government to be informed of threats against the security of Canada and, on the other hand, civil liberties and the right to privacy.
69. Section 2 of the Act defines the expression “threats to the security of Canada”; the activities contemplated by that definition are defined very differently from any infractions or crimes covered by the Criminal Code. Espionage, sabotage, foreign influenced activities and activities which are directed toward or in support of violence in Canada or are intended to undermine the Government of Canada, are activities that encapsulate all sorts of means which may not be illegal, but which are used by individuals in order to achieve their objectives. The investigations conducted by the Service into these activities for the purpose of advising the Government on these threats are consequently very different from those carried out by a police agency that is investigating a specific crime.
70. The Act establishes a civilian intelligence body, the Service, whose employees do not have the powers of a peace officer (ss. 3 and 20).66
71. Management of the Service is entrusted to a director acting under the direction of the Minister (s. 6). The director is therefore required to consult with the deputy minister regarding the general operational policies of the Service (s. 7). Managing the personnel of the Service is generally different from managing other government employees (ss. 8 and 9). The director and the employees are required to take an oath of office and an oath of secrecy (s. 10 and schedule to the Act).
72. Sections 12 through 20 of the CSIS Act describe the duties and functions of the Service.
66 Testimony by Jean Paul on 2 July 2003, A.R. vol. VI, p. 1052 -24- Respondents’ factum Concise statement of argument
73. It collects, to the extent that it is strictly necessary, and analyses and retains information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and reports to and advises the Government of Canada. (s. 12).67
74. It provides security assessments to departments of the Government of Canada and, after entering into an agreement, with the government of a province or any department thereof or with a police force [ss. 13(1) and (2)].
75. It may, with the approval of the Minister after consultation with the Minister of Foreign Affairs, enter into an arrangement with a foreign state or an institution thereof or an international organization authorizing the Service to provide security assessments [ss.13(3)].
76. It provides advice to any minister on matters relating to security, provides information relating to security matters or criminal activities that is relevant to the exercise of any power or the performance of any duty or function by that Minister under the Citizenship Act or the Immigration and Refugee Protection Act (s. 14). It is under these provisions that the information injurious to national security was provided to the designated judge.
67 A) The Solicitor General at the time, the Hon. Robert Kaplan, explained to the House of Commons and to the Justice and Legal Issues Committee the interpretation that was to be given to the term “strictly necessary”: Hansard, – 10 February 1984 – p. 1274 - “I should also point out that the mandate, as reworded in the Bill before you, limits all security investigations to those that are “strictly necessary”, in the interests of national security. This is a clear signal that the mandate is to be interpreted narrowly. Only if it is demonstrably necessary for national security will an investigation be supported by this mandate…”, Book of Authorities, vol. IV, tab 48. B) Parliamentary Committee on Justice and Legal Issues, 24 May 1984, p. 28:52 – statement by the then- Solicitor General, the Hon. Robert Kaplan - … “Well, I had followed in this amendment the exact recommendations of the Senate Committee. The Senate Committee looked at the function of collection as the one that ought to be limited to what is strictly necessary. We do not want them to collect any more than is strictly necessary, because it is the collection that is the potential violation of people’s privacy and rights.”, Book of Authorities, vol. IV, tab 46. C) See also Swan v. Canada, [1990] 2 F.C. 409, at p. 424, Book of Authorities, vol. III, tab 37. D) Legislation from other countries regarding security services also include provisions similar to s. 12: - Security Service Act, 1989, s. 2(2)(a) – U.K.; infra, vol. III, p. 492. - Services Act, 1994, s. 2(2)(a) - U.K.; infra, vol. III, p. 370. - Australian Security Organisation Act, 1979, s. 17, 31; infra, vol. II, pp. 232 and 265. - Services Act, 2001, ss. 11 and 12 – Australia; infra, vol. III, pp. 401-402. - New Zealand Security Service Act, 1969, ss. 2 and 4(b); infra, vol. III, pp. 446-447 and p. 448. -25- Respondents’ factum Concise statement of argument
77. The Service conducts investigations for the purpose of providing security assessments and advice on security matters (ss. 15, 13 and 14).
78. In relation to the defence of Canada or the conduct of the international affairs of Canada, it provides assistance to the Minister of National Defence or the Minister of Foreign Affairs in the collection of information or intelligence relating to the capabilities, intentions or activities of a foreign state (s. 16). With the approval of the minister it may enter into an arrangement or otherwise cooperate with any department of the Government of Canada, the government of a province, or any police force and, after consulting with the Minister of Foreign Affairs, enter into an arrangement or cooperate with a foreign state or an international organization (s. 17).
79. The Service also has the discretionary power to disclose, under certain conditions, the information that it obtains in the performance of its duties and functions to peace officers, the Attorney General of Canada or of a province with respect to criminal prosecutions (s. 19).
80. Under the terms of section 20, it may obtain judicial authorization to intercept communications or to obtain information, documents or things (ss. 21 to 28).
81. Finally, the employees of the Service, or any other person who acquires information obtained within the framework of the Act, must keep that information secret (s. 18).
82. The Act also establishes a monitoring and review regime governing the activities of the Service.
83. The Act gives to an Inspector General, who reports to the Deputy Minister, the task of monitoring compliance by the Service with its operational policies, reviewing the operational activities of the Service and providing the Minister with a certificate stating the extent to which he is satisfied with the report of the Director of the Service regarding the Service’s activities. The Inspector is required to comment on whether actions were taken in contravention of the Minister’s direction or if the Service exercised its powers in an unreasonable or unnecessary fashion (ss. 30 to 33). -26- Respondents’ factum Concise statement of argument
84. The Act also gives a review committee (SIRC) the task of reviewing the performance by the Service of its duties and functions (ss. 34 and 38).
85. The SIRC has numerous functions (ss. 38, 39 and 40), such as (a) to review generally the performance by the Service of its duties and functions and, in that regard, (i) to review the reports of the Director and certificates of the Inspector General transmitted to it pursuant to subsection 33(3), (ii) to review directions issued by the Minister under subsection 6(2), (iii) to review arrangements entered into by the Service pursuant to subsections 13(2) and (3) and 17(1), and to monitor the provision of information and intelligence pursuant to those arrangements, (iv) to review the reports or comments given to it pursuant to subsection 20(4), (v) to monitor any request referred to in s. 16(3)(a), (vi) to review the regulations, and (vii) to compile and analyze statistics on the operational activities of the Service.
86. It also investigates (i) complaints made to it under sections 41 and 42, (ii) reports made to it under section 19 of the Citizenship Act, (iii) matters referred to it pursuant to section 45 of the Canadian Human Rights Act.
87. In addition, it reviews all complaints made regarding activities of the Service or the denial of a security clearance (ss. 41 and 42). It is worthwhile to note that in such cases, SIRC provides the complainant with a summary of the information available (ss. 46 and 55) and it may receive evidence or information regardless of their admissibility in court (s. 50a). It reports to the Minister on 30 September of each year, and that report is then tabled in both Houses of Parliament (s. 53). 68
88. The Commission of Inquiry into the Actions of Canadian Officials with Respect to Maher Arar recognized the expertise of SIRC with regard to the review of the Service’s activities:
“SIRC is an established review agency with significant experience in the review of national security activities. It commands respect within the national security field.”69
68 http:// www.sirc-csars.gc.ca 69 A New Review Mechanism for the RCMP’s National Security Activities, Commission of Inquiry into the Actions of Canadian Officials with Respect to Maher Arar, p. 574, Book of Authorities, vol. III, tab 42. -27- Respondents’ factum Concise statement of argument
89. The monitoring and review regime of the operations of the Service is completely different from that of the operations of a police service. Unlike the case of a police body, SIRC, which has access to all activities and information held by the Service, exercises an ongoing review and reports to the Minister on an annual basis.
2.1 Conclusion
90. This system of management, which is made up of a series of checks and balances, plays a regulatory role with respect to the security intelligence service, ensures that it operates properly in compliance with the aims and objectives of Parliament and maintains it in a proper state of equilibrium. The objective of the management system is to contribute to an overall balance; reconciling within a liberal democracy the right of the state to protect itself with individual rights and freedoms.
3. Operational policies
91. Following establishment of the Service in 1984, there was a transition period to allow for the transfer to the Service of duties, functions and staff from the RCMP (ss. 64 to 68). Establishment of the Service, with all its implications, could not be done overnight.
92. Thus, the Service came by law to adopt as its own the policies and directives of the RCMP (s. 65),70 including an RCMP policy which dated from 79-05-28 regarding investigator’s notebook and notetaking.71
93. In its 1987-1988 annual report, SIRC made the following comment on the handling of wiretap tapes in the Air India case:
« We also get briefings from CSIS on particular matters. Two that are of great public concern are the Air India disaster and the Narita Airport explosion, on which we received monthly updating in 1987-88. We have already, in Chapter 1 above, dealt with some allegations that have been made in the media. With regard to the erasure of
70 Affidavit from Iwona Mooney, para. 8, R.R. vol. IV, pp. 654-656 (tab 36). 71 Affidavit from Iwona Mooney, Exhibit A - Security Service Operations Manual, Bulletin No. SSOM OPS 12, published 79-05-28, R.R. vol. IV, pp. 657-661 (tab 36). -28- Respondents’ factum Concise statement of argument
tapes, it would be most improper for the Service to let wiretap tapes accumulate indefinitely in case they might eventually prove useful to the police. CSIS's job is to collect intelligence. Wiretap tapes commonly include a great deal of personal and other information that does not belong in secret files. We believe CSIS is correct when it notes the pertinent information that its wiretaps provide, then destroys the tapes….
We also expressed concern in last year’s Annual Report (pages 21-23) about material that CSIS inherited from the RCMP Security Service, including most of the counter- subversion files. We thought it likely that much of this material failed the “strictly necessary” test and did not relate to “threats to the security of Canada” as defined in section 2. In addition, we noted that because of the moratorium, tens of thousands of files that had outlived their usefulness were still on hand.72 (Our emphasis)
94. The SIRC continues as follows as to the differences in functions between the RCMP and the Service:
A continuing problem is the different approaches of CSIS and the police to terrorism. CSIS believes that, in certain cases, the police would like the Service to use its investigative powers in support of the police role, which is law enforcement. But this is not what CSIS was created to do. It was created primarily to provide advice on the basis of its analysis of information from both open and covert sources. Of course, it has a duty to assist the police when and where it can. But its emphasis belongs on gathering information over gathering evidence in a form that can be used in court. CSIS has done its job when it has pinpointed a threat and told police about it. It should not then endanger the effectiveness of its procedures in order to accumulate evidence that can be used in laying charges and securing convictions.73 (Our emphasis)
95. In 1991, the Service established a policy group to review and modernize its operational policies as they relate to such things as its employees’ notes.74
96. Thus, the Service adopted, on 31 March 1992, Bulletin OM-43 (Operational Notes, subsequently OPS-217) dealing with the documenting in a report of relevant information and thereafter the destruction of any notes, except if the information contained in their notes was crucial to an
72 Annual Report, SIRC, 1987-1988, pp. 10 and 14, R.R. vol. IV, pp. 785 and 786. 73 Annual Report, SIRC 1987-1988, p. 32, R.R. vol. IV, p. 787 (tab 72). 74 Affidavit from Iwona Mooney, para. 8, R.R. vol. IV, pp. 654-658 (tab 36). -29- Respondents’ factum Concise statement of argument unlawful activity of a serious nature, such as an assassination, a bomb attack or the hijacking of an aircraft.75
97. In its 1992-1993 Annual Report, the SIRC described the adoption of policies on the retention of information.76
98. Over the years, that policy underwent a number of minor changes, but was unchanged with respect to the handling of operational notes by Service employees.77
99. Also, in its 1996-1997 Annual Report, the SIRC commented the Service’s policies on information retention:78
Files are the essential currency of intelligence gathering. Every CSIS investigation and every approved target requires the creation of a file, and a system for making the information in it available to appropriate officers in the Service. Balanced against this information gathering apparatus is the clear restriction on the Service set out in the CSIS Act, that it shall collect information “to the extent that it is strictly necessary”. The Committee constantly monitors the Service’s file management policies and practices to help ensure that no unnecessary information is improperly retained or distributed. (Our emphasis)
100. The Service’s operational policies must reflect those characteristics of the Service that Parliament intended to establish and its employees cannot behave like police officers because their duties, responsibilities and powers are totally different.
75 Affidavit from Iwona Mooney, Exhibit J - Operational Policies and Procedures - OPS-217, R.R. Vol. IV, pp. 751 and following (Tab 36). 76 Annual Report, SIRC, 1992-1993: “In the Fall of 1992, the Service published a policy which created a framework to manage all information holdings. The new directive consolidates the requirements of several federal Acts, including the Access to information Act, Privacy Act, National Archives Act, and the Government Security Policy.”, p. 38, R.R. vol IV. p. 795. 77 Affidavit from Iwona Mooney, para. 8, R.R. vol. IV, pp. 654-656 (Tab 36) 78 Annual Report, SIRC, 1996-1997, p. 38, R.R. vol. IV, p. 798. -30- Respondents’ factum Concise statement of argument
101. Operational policy OPS-217, which is at issue in this appeal, applies to the various functions of the Service and is intended to ensure that the Service collects and retains only essential information, hence the documenting in a report of information obtained by Service employees, rather than the retention of all notes that may have been taken. Therefore, the Service retains only the essential portion of the information that it collects in carrying out its duties and functions.
102. The ministers submit that the present appeal must be distinguished from R. v. Malik.79 Since the Service is not a police agency, and the proceedings against the appellant are not of a criminal nature, the Service retained only the relevant information that is documented in a report. It is only when the Service decides voluntarily to forward information to police officers regarding serious illicit activities, that operational notes are retained, as provided under OPS-217.
103. A distinction also needs to be made between this appeal and Bhupinder S. Liddar and Deputy Head of the Department of Foreign Affairs and International Trade and Canadian Security Service80 because Liddar dealt with a security assessment pursuant to s. 13 of the Act.
4. Summary of interviews held on 31 January and 2 February 2002 and the additional information dated 6 January 2005
104. The appellant’s first grievance concerns the fact that on 6 January 2005, that is four days before he was supposed to testify at his fourth detention review, he received: (a) a summary of two interviews he had with employees of the Service on 31 January and 2 February 2002, and (b) a summary identifying him as a member of a terrorist organization – le Groupe Islamique Combattant Marocain.
81 82 105. Mr. Justice Noël and the Federal Court of Appeal both noted that the appellant could have been informed prior to the holidays of the request by counsel for the ministers to meet in early January
79 R. v. Malik, [2004] BCSC 554, (2004) 119 C.R.R. (2d) 39, Book of Authorities, vol. II, tab 26. 80 Appellant’s Book of Authorities, vol. I, tab 12. 81 Charkaoui (Re), reasons for judgment by Mr. Justice Noël dated 1 February 2005, 2005 FC 149, (2005) 261 F.T.R. 1, at para. 12, R.R. vol. I, pp. 9-10. 82 Charkaoui (Re), reasons for judgment from the Federal Court, 6 June 2006, 2006 FCA 206, (2006) 272 D.L.R. (4th) 175, at para. 18, R.R. vol. I, pp. 46-47. -31- Respondents’ factum Concise statement of argument
2005. They also added that it was regrettable that the summary of the interviews held on 31 January and 2 February 2002 had not been forwarded sooner, but the only issue raised by this delay is whether the appellant suffered sufficient harm to justify his motion for a stay of proceedings.
5. Compliance with principles of fundamental justice and the lack of prejudice
5.1 Delay in providing the summaries of 31 January and 2 February 2002 and the summary of the “additional information”
106. After reviewing the documentation, Mr. Justice Noël found that the summaries had inadvertently not been sent to the appellant earlier. Mr. Justice Noël also found “… that the facts and allegations at the basis of the certificate and the detention do not originate in any way in the summaries of interviews but are instead elsewhere in the evidence… .”83
107. It should be noted that the appellant knew, or should have known, that the summary and the documents provided to him by Mr. Justice Noël on 26 May 2003 did not include the two interviews that he had given to employees of the Service on 31 January and 2 February 2002, since he had himself taken part in these interviews. The appellant could have informed Mr. Justice Noël in May 2003, and not remain passive, waiting until January 2005.84
108. As for the “additional information”, it must be noted that these facts were not known 85 conclusively until late November 2004 and not, as the appellant claims, in early 2004. This information could not have been provided to the appellant until the investigation proved conclusive, and once the information had been examined by Mr. Justice Noël, which occurred on 5 January 2005.
109. As a remedy to the ministers’ delay in informing the appellant of their request for an in camera ex parte hearing and the late disclosure, four days before the scheduled detention review, of the
83 R.R. Vol. II, pp. 356-357 and pp. 427-428 (tab 24). Reasons for Decision, Mr. Justice Noël, 1 February 2005, Charkaoui (Re), 2005 FC 149, (2005) 261 F.T.R. 1, at para. 15, R.R. vol. I, p. 11. Reasons for judgment from the Federal Court of Appeal, 6 June 2006 Charkaoui (Re), 2006 FCA 206, (2006) 272 D.L.R. (4th) 175, at para. 20, R.R. vol. I, pp. 47-48. 84 R. v. Dixon, [1998] 1 S.C.R. 244, para. 37, Book of Authorities, vol. II, tab 19. 85 R.R. vol. II, pp. 361-362 (tab 24). -32- Respondents’ factum Concise statement of argument summary of the interviews, Mr. Justice Noël proposed an adjournment of the detention review. The
Appellant agreed. His detention review hearing was adjourned for one month, that is, to 7 February 2005. The Federal Court of Appeal correctly concluded that, given the circumstances, this was an appropriate measure which complied with the principles of fundamental justice.86
110. Even in criminal law, where Charter requirements are higher than in administrative law, an adjournment is considered as an adequate remedy.87
5.2 Admissibility of “additional information” – compliance with fundamental justice and lack of prejudice
111. The appellant was opposed to the admissibility of the additional summary of information. He argued that the only information that Mr. Justice Noël should consider in determining the reasonableness of the certificate are those that were known to the ministers when they signed the certificate, on 16 May, 2003. This position is contrary to paragraph 78(e) and subsections 80(1), 83(2) and 83(3) of the IRPA, the constitutional validity of which is not being challenged by the appellant in this case.
112. According to the above-referenced sections, the designated judge must familiarize himself with each request by the ministers for new security-related information and other evidence. He must hear each detention review and the grounds which support the detention; accordingly, he must take into account any new information at the time the review is being conducted, along with any other evidence that is presented by the appellant or the ministers.
86 Reasons for judgment from the Federal Court of Appeal, 6 June 2006, Charkaoui (Re), 2006 FCA 206, (2006) 272 D.L.R. (4th) 175, para. 19, R.R. vol. I, p. 47. 87 R. v. Madeley, (2002) 95 C.R.R. (2d) 151 (C.A. Ontario) – leave to appeal denied [2003] 1 S.C.R. XIII, Book of Authorities, vol. II, tab 25; R. v. Foster, [2001] 157 C.C.C. (3d) 345, Book of Authorities, vol. II, tab 21; R. v. Gagné, [1999] 131 C.C.C. (3d) 444 – leave to appeal denied [1999] 1 S.C.R. VIII, Book of Authorities, vol. II, tab 22; R. v. Douglas, (1992) 5 O.R. (3d) 29 (CA) – appeal rejected [1993] 1 S.C.R. 893, Book of Authorities, vol. II, tab 20. -33- Respondents’ factum Concise statement of argument
113. The addition of a supplementary information summary to the appellant’s file does not prejudice the principles of fundamental justice in the context of a continuous detention review process and the review of the reasonableness of the certificate. The protection of procedural fairness stems from the fact that the ministers are required to disclose to the designated judge, on an ongoing basis, any information in their possession that is relevant to the proceedings in question, whether it is inculpatory or exculpatory. This was done by the ministers.88 In turn, the designated judge will ensure that this information is disclosed to the appellant (taking into consideration issues of national security and the security of any person) and will grant the appellant sufficient time to familiarize himself with the information.89 This is one of the factors that led this Court to conclude that Division 9 of the IRPA was constitutionally valid as to the fundamental principle of impartiality:
“Finally, the fact that the designated judge may have access to more information than the ministers did in making their initial decision to issue a certificate and detain suggests that the judge possesses relative expertise on the matters at issue and is no mere rubber stamp: Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, Mr. Justice Noël, at para. 125.”90
114. In other words, and as was held by Mr. Justice Noël and the Federal Court of Appeal,91 the appellant’s right to a hearing before an impartial judge was not infringed since this additional summary of information was reviewed by Mr. Justice Noël and forwarded to the appellant.
5.3 Interview notes – applicable principles of fundamental justice and lack of prejudice
115. The appellant’s second grievance concerns the Service’s policy on operational notes made by employees; that policy provides that after the relevant information has been documented in a report, Service employees must destroy their notes, except in cases where the information in their notes is crucial and linked to unlawful activity of a serious nature, such as an aircraft hijacking.
88 See, for example, the summary dated 6 April 2006, R.R. vol. II, pp. 347 and ff. (tab 17). 89 Reasons for judgment by Mr. Justice Noël dated 1 February 2005, Charkaoui (Re), 2005 FC 149, (2005) 261 F.T.R. 1, at para. 34; supra note 30, R.R. vol. I, p. 18. 90 Charkaoui (Re), 2007 SCC 9, (2007) 276 D.L.R. (4th) 594, at para. 41, Book of Authorities, vol. II, tab 9. 91 Reasons for Judgment by the Federal Court of Appeal, 6 June 2006, Charkaoui (Re), 2006 FCA 206, (2006) 272 D.L.R. (4th) 175, at paras. 39-44; supra note 34, R.R. vol. I, pp. 54-56. -34- Respondents’ factum Concise statement of argument
116. The extent of procedural fairness (including notably the principles that decisions by judges must be based on fact and on law and the right of the named person to see the evidence and to respond to it) depends on the context in which it is sought.92 Even if this Court were to find that the legislative system involving the use of security certificates, detention that may result from their use, and ultimate removal, involves section 7 of the Charter, it remains that the basis for the proceedings is not criminal law, but, rather, administrative law, more specifically immigration law.
117. One of the features that distinguish this appeal from one in criminal law is its purpose. Criminal law, in its judicial phase, has as its ultimate objective the holding of a trial intended to determine whether or not the accused is guilty, based on specific procedures. But even in this context, during the preliminary phases leading up to the trial, evidentiary rules are much more flexible, even when the freedom and security of the person are involved. Therefore, during the bail hearing, under paragraph 518(1)(e) of the Criminal Code, the justice of the peace is allowed to receive “evidence considered credible or trustworthy by him in the circumstances of each case”. Also, during the preliminary hearing, the presiding judge may “receive as evidence any information that would not otherwise be admissible but that the justice considers credible or trustworthy in the circumstances of the case”. [s. 540(7), Criminal Code].
118. The traditional rules governing disclosure to the accused of evidence applicable in criminal matters are not fully applicable in an administrative law context.93
92 Ruby v. Canada (Solicitor General), supra, para. 39, Book of Authorities, vol. III, tab 35; Therrien (Re), supra, para. 82, Book of Authorities, vol. III, tab 38; Baker v. Canada (Minister of Citizenship and Immigration), supra, para. 21, Book of Authorities, vol. I, tab 3; United States of America v. Whitley, supra, p. 807, Book of Authorities, vol. II, tab 12; Chiarelli v. Canada (M.E.I.), supra, p. 743, Book of Authorities, vol. II, tab 10; Idziak v. Canada (Minister of Justice), supra, pp. 656 and 657, Book of Authorities, vol. II, tab 14; Knight v. Indian Head School Division No. 19, supra, p. 682, Book of Authorities, vol. II, tab 15. 93 Canada (Department of Citizenship and Immigration) v. Fast, [2001] F.C.J. No. 1730 (CFPI), [2002] 3 FC 373, at paras. 11-14, Book of Authorities, vol. I, tab 6; Canada (Department of Citizenship and Immigration) v. Obodzinsky, [2000] F.C.J. No. 1675, (2000) 199 F.T.R. 1, at paras. 39-40; appeal dismissed [2001] FCA, No. 797, (2001) 212 F.T.R. 320, and [2001] S.C.C.A. No. 363, (2001) 289 N.R. 390, Book of Authorities, vol. I, tab 7. -35- Respondents’ factum Concise statement of argument
“It is important to bear in mind that the Stinchcombe principles were enunciated in the particular context of criminal proceedings where the innocence of the accused was at stake. Given the severity of the potential consequences the appropriate level of disclosure was quite high. In these cases, the impugned decisions are purely administrative. These cases do not involve a criminal trial and innocence is not at stake. The Stinchcombe principles do not apply in the administrative 94” context.
119. Under the regime established by Parliament, the designated judge must receive all security- related information that he deems useful for the purposes of his analysis and that the ministers are required to disclose, whether it is inculpatory or exculpatory, to assess its relevance and to decide whether it should be included in a summary [s. 78(f)]. This information can be presented to him in various forms, in writing or through witnesses, can come from public or private sources, Canadian sources, a foreign government or institution or an international organization (s. 76).
120. The designated judge may receive into evidence any additional information or other evidence that he deems appropriate, even if it is inadmissible in a court of law [s. 78(j)]. This is a common rule in administrative law.95
121. The ministers submit that the retention and the forwarding of interview summaries as part of the entire package of information that was provided to Mr. Justice Noël and subsequently to the appellant have completely fulfilled their duty of procedural fairness, given the role and functions of the Service and Division 9 of the IRPA.
122. Further, even police officers are not required to take notes of everything96 or to retain everything in their investigations.97
94 May v. Ferndale Institution, supra, para. 91, Book of Authorities, vol. II, tab 16. 95 There are more than 13 federal acts that contain a similar provision. See Appendix 1, infra, vol. I, pp. 45 and following. 96 R. v. Richards, (1997) 6 C.R. (5th) 154 (B.C.C.A.), paras. 27 to 38, Book of Authorities, vol. III, tab 31. 97 R. v. La, [1997] 2 S.C.R. 680, paras. 18 and 21, Book of Authorities, vol. II, tab 23. -36- Respondents’ factum Concise statement of argument
123. The fact that the operational notes made by Service employees may have been destroyed, pursuant to the administrative policy in effect at the Service, does not constitute a breach of procedural fairness.98 The designated judge may hear Service employees who took part in the interview. The appellant can testify as to what he said or did not say during his interviews.
124. Operational notes made by Service employees, with the relevant information documented in a report, were not destroyed in bad faith or to avoid being the subject of court review; instead, this was done in compliance with Service policies. All the arguments from the appellant in this regard are to be dismissed. The Service did not hide the fact that the operational notes, once they were documented in a report, were destroyed.99 It is not because the appellant was unaware of this policy that one must conclude that the Service concealed it.
6. Reliability of interview summaries, information or other evidence
125. The ministers submitted that the analysis of the reliability of the interview summaries or the additional information, is premature. The determination of the reasonableness of the certificate was suspended at the appellant’s request, pursuant to ss. 79 and 112(1) of the IRPA. As was noted by Mr. Justice Noël and the Federal Court of Appeal, it is when the totality of the information and other evidence available is reviewed by the designated judge that the reliability and probative value of the information will be assessed. At that time, he is able to exclude any evidence that is not reliable. He did this at the third detention review when he set aside the summary dated 16 July 2003, showing that a foreign service had advised the Service that Abou Zubaida, a close collaborator of Osama Bin Laden, had recognized and seen the appellant in Afghanistan. Mr. Justice Noël set aside this information, because the appellant alleged that Zubaida had been tortured and that the information had to be
98 R. v. Satkunananthan, (2001) 152 C.C.C. (3d) 321 (C.A. Ont.), paras. 68 to 85, Book of Authorities, vol. III, tab 32; R. v. Ly, (1997) 5 C.R. (5th) 163 (Ont. C.A.), Book of Authorities, vol. II, tab 24. 99 R.R., vol. II, p. 382 (tab 24): [Translation] “However, I must inform you that the policy of the Service requires that investigators, once they have returned to their offices, reconstitute their notes into a report, and then the notes as such as destroyed. This is a policy which is publicly known.” See as well: United States v. Hammoud, 381 F.3d 316; 2004 U.S. App. LEXIS 19036, Book of Authorities, vol. III, tab 39; United States of America v. Harb (U.S. District Court – Western District of North Carolina), 31 January 2002, p. 3, Book of Authorities, vol. III, tab 40; R. v. Malik (Crown application – Admissibility of witness statements), [2004] B.C.J. 456, (2004) 26 B.C.L.R. (4th) 320, para. 27, Book of Authorities, vol. II, tab 27. -37- Respondents’ factum Concise statement of argument excluded under Article 15 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.100
126. The Federal Court of Appeal was correct in finding that it could not be assumed that Mr. Justice Noël would not carry out his duty correctly in assessing the probative value of the information and other evidence.
7. Stay of proceedings
127. In the event that this Court finds that there has been a breach of section 7 of the Charter in contravention of the principles of fundamental justice, the ministers argue that there are no grounds for ordering a complete stay of all proceedings against the appellant under Division 9 of the IRPA.
128. A stay of proceedings is a draconian measure that is only granted in the most serious or most obvious cases.101 At the appropriate time, it will be preferable to allow Mr. Justice Noël to hear the reasonableness of the certificate and to rule on the abuse of process as the hearing progresses.
129. To obtain a stay of proceedings, two criteria must be met, namely: (a) the prejudice caused by the abuse in question will be revealed, perpetuated or aggravated by the continuation of the trial or by its outcome; this reflects the prospective nature of the stay of proceedings as a remedy, and (b) no other type of remedy can reasonably remove that prejudice.
130. An analysis of the specific facts of this case is essential to determine if there are grounds for 102 103 issuing a stay of proceedings. The two necessary criteria have not been met in this case.
100 Judgment by Mr. Justice Noël, 23 July 2004, Charkaoui (Re), 2004 FC 1031, (2004) 260 F.T.R. 238, paras. 27 to 31, R.R. vol. I, pp. 184-186. 101 R. v. Regan, [2002] 1 S.C.R. 297, paras. 53, 54, Book of Authorities, vol. III, tab 30; Canada (Department of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, para. 91, Book of Authorities, vol. I, tab 8; Her Majesty the Queen v. John Gorenko, Quebec Court of Appeal, [2005] R.J.Q. 2550, Book of Authorities, vol. III, tab 36; Bernier v. R., (2007) QCCA 1061, Book of Authorities, vol. I, tab 5; R. v. Cole, Nova Scotia Court of Appeal, 143 C.C.C. (3d) 417, Book of Authorities, vol. II, tab 18. -38- Respondents’ factum Concise statement of argument
131. When part of the evidence is lost and cannot be disclosed by the Crown in a criminal prosecution, it does not automatically follow that a court must issue a stay of proceedings. The Crown then has the burden of convincing the judge that the evidence was not destroyed or lost on account of unacceptable negligence. If this is not the case, there is no violation of the obligation to disclose.104
132. The notes of the Service employees were destroyed in good faith, under administrative policy OPS-217, in effect at the Service. This is not a case of unacceptable negligence.
8. Conclusion
133. The ministers submit that the facts in this case do not support the allegation that the appellant is a victim of abuse of process. This is not a clear case that justifies a complete stay of proceedings, a draconian and final measure.
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PART IV – COSTS
134. The ministers ask the Court for costs.
______
102 R. v. Pan, [2001] 2 S.C.R. 344, para. 112, Book of Authorities, vol. III, tab 29. 103 See paras. 107, 110, 114, 116, 124, and 125 of this factum. 104 R. v. La, supra, para. 20, Book of Authorities, vol. II, tab 23. -39- Respondents’ factum Order requested
PART V – ORDER REQUESTED
135. The ministers submit that the appellant’s appeal should be dismissed, with costs.
Signed at Montréal, Québec, on this 17th day of September 2007
John Sims, Q.C. Deputy Attorney General of Canada
Me Claude Joyal Counsel for the respondents - 40 - Respondents’ factum Table of authorities
PART VI – TABLE OF AUTHORITIES
JURISPRUDENCE ...... Paragraph(s)
Ahani v. Canada, [1995] 3 F.C. 669 (T.D.) ...... 54 Confirmed [1996] 201 N.R. 233 (F.C.A.) ...... 54
Almrei v. Canada (M.C.I.), 2005 FC 1645, (2005) 270 F.T.R. 1 ...... 17
Baker v. Canada (M.C.I.), [1999] 2 S.C.R. 817 ...... 53, 116
Bell Express Vu v. Canada, [2002] 2 S.C.R. 559 ...... 45
Bernier v. R., (2007) QCCA 1061 ...... 128
Canada (M.C.I.) v. Fast, [2001] F.C.J. No. 1730 (T.D.), [2002] 3 F.C. 373 ...... 118
Canada (M.C.I.) v. Obodzinsky, [2000] F.C.J. No. 1675, (2000) 199 F.T.R. 1 ...... 118 Appeal denied [2001] F.C.J. No. 797, (2001) 212 F.T.R. 320 ...... 118 Leave to Appeal denied [2001] C.S.C.R. no 363, (2001) 289 N.R. 390 ...... 118
Canada (M.C.I.) v. Tobiass, [1997] 3 S.C.R. 391 ...... 128
Charkaoui v. Canada, 2007 SCC 9, (2007) 276 D.L.R. (4th) 594 ...... 10, 51, 52, 53, 54, 113
Charkaoui (Re), DES-3-03 - Judgment of 26 May 2003 ...... 15
Charkaoui (Re), 2003 FC 882, [2004] 1 F.C.R. 528 ...... 17
Charkaoui (Re), 2004 FC 1031, (2004) 260 F.T.R. 238 ...... 19, 125
Charkaoui (Re), 2004 FC 107, (2004) 245 F.T.R. 276 ...... 21
Charkaoui (Re), 2003 FC 1418, (2003) 39 Imm. L.R. (3d) 308 ...... 21
- 41 - Respondents’ factum Table of authorities
JURISPRUDENCE (cont'd) ...... Paragraph(s)
Charkaoui (Re), 2004 FC 338 ...... 22
Charkaoui (Re), 2004 FC 624, (2004) 255 F.T.R. 199 ...... 25
Charkaoui (Re), 2005 FC 149, (2005) 261 F.T.R. 1 ...... 36, 105, 106, 113
Charkaoui (Re), 2005 FC 258, [2005] 3 F.C.R. 389 ...... 38, 39
Charkaoui (Re), 2006 FCA 206, (2006) 272 D.L.R. (4th) 175 ...... 40, 54, 105, 106, 109, 114
Charkaoui v. M.C.I. and S.G.C. - Judgement of 20 June 2007 - File 31597 ...... 41
Chiarelli v. Canada (M.E.I.), [1992] 1 S.C.R. 711 ...... 53, 116
United States of America v. Cobb, [2001] 1 S.C.R. 587 ...... 50
United States of America v. Ferras, [2006] 2 S.C.R. 77 ...... 53, 54
United States of America v. Whitley, (1995) 20 O.R. (3d) 794 ...... 53, 116 Confirmed [1996] 1 S.C.R. 467 ...... 53, 116
Harkat (Re), [2003] F.C.J. No. 400, (2003) 231 F.T.R. 19 ...... 54
Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 ...... 53, 116
Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 ...... 53, 116
May v. Ferndale Institution, [2005] 3 S.C.R. 809 ...... 54, 118
Medovarski v. Canada, [2005] 2 S.C.R. 539 ...... 53
R. v. Cole, Nova Scotia Court of Appeal, (2000) 183 N.S.R. (2d) 263 ...... 128
R. v. Dixon, [1998] 1 S.C.R. 244 ...... 107
R. v. Douglas, (1992) 5 O.R. (3d) 29 (Ont. C.A.) ...... 110 Appeal denied (1993) 1 S.C.R. 893 ...... 110
- 42 - Respondents’ factum Table of authorities
JURISPRUDENCE (cont'd) ...... Paragraph(s)
R. v. Foster, [2001] 157 C.C.C. 3d 345 ...... 110
R. v. Gagné, [1999] 131 C.C.C. 3d 444 ...... 110 Leave for appeal denied [1999] 1 S.C.R. VIII ...... 110
R. v. La, [1997] 2 S.C.R. 680 ...... 122, 131
R. v. Ly, (1997) 5 C.R. (5th) 163 (Ont. C.A.) ...... 123
R. v. Madeley, (2002) 95 C.R.R. (2d) 151 ...... 110 Leave for appeal denied (2003) 1 S.C.R. XIII ...... 110
R. v. Malik, 2004 BCSC 554 (27 April 2004), (2004) 119 C.R.R. (2d) 39 ...... 102
R. v. Malik (Crown application – Admissibility of witness statements, [2004] B.C.J. No. 456, (2004) 26 B.C.L.R. (4th) 320 ...... 124
R. v. Mann, [2004] 3 S.C.R. 59 ...... 45
R. v. Pan, [2001] 2 S.C.R. 344 ...... 130
R. v. Regan, [2002] 1 S.C.R. 297 ...... 128
R. v. Richards, (1997) 6 C.R. (5th) 154 (B.C.C.A.) ...... 122
R. v. Satkunananthan, (2001) 152 C.C.C. (3d) 321 (Ont. C.A.) ...... 123
R. v. Stinchcombe, [1991] 3 S.C.R. 326 ...... 54
R. v. Stinchcombe, [1995] 1 S.C.R. 754 ...... 54
Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75 ...... 53, 55, 116
H.M.T.Q. v. John Gorenko, Quebec Court of Appeal, [2005] R.J.Q. 2550 ...... 128
Swan v. Canada, [1990] 2 F.C. 409 ...... 73
- 43 - Respondents’ factum Table of authorities
JURISPRUDENCE (cont'd) ...... Paragraph(s)
Therrien (Re), [2001] 2 S.C.R. 3, 2001 SCC 35 ...... 53, 116
United States v. Hammoud, 381 F.3d 316; 2004 U.S. App. LEXIS 19036 ...... 124
United States of America v. Harb (U.S. District Court – Western District of North Carolina),31 January 2002, p. 3 ...... 124
PART VII – LEGISLATION
LEGISLATION ......
Annex I ...... 120
Criminal Code (R.S., 1985, ch. C-46)
Canadian Human Rights Act (R.S., 1985, ch. H-6)
Charities Registration (Security information) Act (2001, ch. 41)
Canada Evidence Act (R.S., 1985, ch. C-5)
Public Servants Disclosure Protection Act (2005, ch. 46)
Privacy Act (L.R., 1985, ch. P-21)
Personal Information Protection and Electronic Documents Act (2000, ch. 5)
Access to Information Act (R.S., 1985, ch. A-1)
Specific Claims Resolution Act (2003, ch. 23)
Canadian Security Intelligence Service Act (R.S., 1985, ch. C-23)
Transportation Appeal Tribunal of Canada (2001, ch. 29)
Employment Equity Act (1995, ch. 44)
Official Languages Act (1985, ch. 31 (4th supp.)) - 43.1 - Respondents’ factum Table of authorities
LEGISLATION (cont'd) ...... Paragraph(s)
Department of Public Safety and Emergency Preparedness Act, 2005 ch. 10 ...... 13
Canadian Security Intelligence Service Act (an Act to establish the), 1984, ch. 21 ...... 58
An Act to establish the Canadian Security Intelligence Service (administrative codification, September 2006) ...... 58
Bill C-57 - an Act establishing the Canadian Security Intelligence Act, 1984, ch. 21 ...... 58
FOREIGN LEGISLATION
Australian Security Intelligence Organisation Act, 1979 ...... 67
Intelligence Services Act, 1994 (U.K.) ...... 67
Intelligence Services Act, 2001 (U.K.) ...... 67
New Zealand Security Intelligence Act, 1969 ...... 67
Security Services Act, 1989 (U.K.) ...... 67
DOCTRINE
Privacy, Crime and Terror – Legal Rights and Security in a Time of Peril, Stanley A. Cohen, LexisNexis Canada Inc., 2005 ...... 64
A new review mechanism for the RCMP's national security activities, Commission of Inquiry into the actions of Canadian officials in relation to Maher Arar ...... 60,88
Royal Commission on Security (« Mackenzie Commission ») ...... 59, 60, 61, 65, 66
Royal Commission of Inquiry into certain activities of the Royal Canadian Mountain Police, Volume I (« McDonald Commission ») ...... 59, 63, 66
Royal Commission of Inquiry into certain activities of the Royal Canadian Mountain Police, Volume II (« McDonald Commission ») ...... 59, 61, 63, 66 - 43.2 - Respondents’ factum Table of authorities
DOCTRINE (cont'd) ...... Paragraph(s)
Parliamentary Committee on Justice and Legal Issues, 24 May 1984 ...... 73
Report of the standing Committee of the Senate on the Canadian Security Intelligence Service (« Pitfield Commission ») ...... 59, 60, 64, 65, 66, 67
Hansard, 10 February 1984, (Extracts) ...... 73