Date: 20031205
Docket: DES-3-03
Citation: 2003 FC 1418
Ottawa, Ontario, the 5th day of December 2003
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
IN THE MATTER OF a certificate
and its referral under subsection 77(1)
and sections 78 to 80 of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the "IRPA");
IN THE MATTER OF the warrant for the arrest
and detention and the review of the reasons
for continued detention pursuant to
subsections 82(1), 83(1) and 83(3) of the IRPA
IN THE MATTER OF
the request for production of protected documents
(under section 76 of the IRPA)
AND IN THE MATTER OF
Mr. Adil Charkaoui
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Mr. Adil Charkaoui (hereinafter Mr. Charkaoui) has filed a four-pronged motion. First, he is requesting disclosure of all the protected information justifying a certificate attesting that he is inadmissible and of a warrant of arrest issued against him pursuant to subsections 77(1) and 82(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (hereinafter, the "IRPA"). Second, he is asking to be released and relies in this regard on sections 7, 9, 10(c), 11, 12, 15, 24 and 52 of the Canadian Charter - Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982 (U.K.), c. 11 (hereinafter the "Charter") and the Canadian Bill of Rights, S.C. 1960, c. 44, reproduced in R.S.C., 1985, App. III (hereinafter the "Canadian Bill of Rights") or, in the alternative, on subsection 83(2) of the IRPA. Third, Mr. Charkaoui is claiming his costs on a solicitor-client basis following a hearing on the review of the reasons for continued detention (subsection 83(1) of the IRPA). Fourth, Mr. Charkaoui believes that prior to the holding of hearings in his absence, his counsel and he should have had an opportunity to present their submissions based on section 7 of the Charter.
[2] As indicated in the motion, the information sought is the following:
- the Court record of proceedings of the hearings held in the absence of Mr. Charkaoui and his counsel;
- the written or recorded statements of Mr. Ahmed Ressam and Mr. Abou Zabaida concerning Mr. Charkaoui;
- the interview notes indicating the place, date and names and positions of the persons who conducted the interviews of Messrs. Ressam and Zabaida concerning Mr. Charkaoui;
- the protected information brought to the attention of the Court;
- all of the evidence filed in this case;
- the nature of all the sealed or undisclosed information;
- the existence of witnesses, their number, the nature of their testimony and their name, unless it is demonstrated that disclosure of their name would constitute a danger to their life;
- the interview notes and original reports concerning Mr. Charkaoui (and not only a summary of the evidence);
[3] I will not deal here with those aspects of this request that are based on the principles of fundamental justice, protected by section 7 of the Charter, that allegedly are contravened by sections 76 and 78 of the IRPA, since these arguments were presented in the context of another motion, the reasons for which were signed today, and I refer to that decision to dispose of those arguments (see paragraph 20 hereunder).
[4] Mr. Charkaoui is seeking his release under sections 7, 9, 10(c), 11(e), 12, 15, 24 and 52 of the Charter and the Canadian Bill of Rights, or, in the alternative, under subsection 83(2) of the IRPA. These arguments were presented in the context of another motion, the reasons for which were signed today, and I refer to that decision to dispose of those arguments (see paragraph 21 hereunder).
[5] Mr. Charkaoui is also seeking his costs on a solicitor-client basis ($25,000) in relation to the hearing of July 2 and 3, 2003, concerning the review of the reasons for continued detention. His counsel argue that the additional information conveyed on or about July 17 and August 14, 2003, should have been available for the hearing of July 2 and 3, 2003.
[6] In view of the request for disclosure of certain documents and my obligation as a designated judge to ensure the confidentiality of the information that is protected on grounds of national security or the safety of any person and of the documents obtained in confidence that allegedly constitute the basis for the certificate and the arrest warrant (paragraph 78(b) of the IRPA), I would not want to confirm or deny the existence of certain documents through this judgment. Apart from the Court Record of the proceedings held in the absence of Mr. Charkaoui and his counsel, which I will discuss separately, I intend to refer to the expression "protected information" without further particulars.
CONTEXT
[7] Following the referral to the Federal Court of a certificate signed by the Minister of Citizenship and Immigration and the Solicitor General of Canada (hereinafter "the Ministers") and the issuance of a warrant of arrest, Mr. Charkaoui, a permanent resident of Canada, was arrested and placed in detention on May 21, 2003, pursuant to subsections 77(1) and 82(1) of the IRPA.
[8] The certificate and the arrest warrant are based on protected information that enabled the Ministers to conclude that Mr. Charkaoui was and is a member of the Osama bin Laden Network, an organization that engages, has engaged or will engage in acts of terrorism, and that, in this capacity, Mr. Charkaoui has or will engage in acts of terrorism. Therefore, the Ministers concluded that Mr. Charkaoui is, was or will be a danger to the security of Canada (paragraphs 34(1)(c), (d) and (f) of the IRPA).
[9] One of the roles of the chief justice or the judge designated by him (hereinafter the "designated judge") is to examine the protected information for the purpose of determining which of this information can be disclosed to the person concerned, Mr. Charkaoui, while ensuring that such disclosure does not jeopardize national security or the safety of any person but reasonably informs Mr. Charkaoui of the circumstances giving rise to the certificate and the continued detention (paragraphs 78(b), (d), (e), (f), (g) and (h) of the IRPA).
[10] To this end, the designated judge reviews the protected information and holds one or more hearings in which only the representatives of the Ministers and their counsel are present. This is a meticulous exercise that requires that the designated judge seek a balance between two opposing interests: the protection of the protected information and the disclosure of information that might enable the person concerned to be reasonably informed of the circumstances giving rise to the certificate and/or the warrant of arrest.
[11] In this case, I examined the protected information and, on May 26, 2003, after a hearing in the presence of the Ministers' representatives alone, I had a summary of the evidence sent to Mr. Charkaoui with some documents appended. I think this communication sufficiently informed Mr. Charkaoui of the circumstances justifying the certificate and the continued detention.
[12] A hearing concerning the continued detention was held on July 2 and 3, 2003. The parties presented evidence in the form of testimony, affidavits and documents.
[13] On July 7, 2003, I held a second hearing in the presence of the Ministers' representatives alone.
[14] On July 15, 2003, I published the reasons for order concerning the review of the reasons for detention (Charkaoui (Re), [2003] F.C.J. No. 1119). In this order, it is concluded that the detention of Mr. Charkaoui should be continued pursuant to subsection 83(3) of the IRPA until the designated judge makes a further determination on the continuation of the detention under subsection 83(2).
[15] In the reasons, I also stated that I kept in mind the possibility of giving Mr. Charkaoui some additional information. I stated that I had received some additional information prior to the hearing of July 2 and 3, 2003, and that the examination of the protected information could lead to an additional disclosure (paragraphs 7 and 9 of the Charkaoui decision, supra).
[16] The world of national security is a dynamic milieu in which events may at any moment bring about a quite different perspective. The designated judge must constantly assess the critical nature of the protected information and the effect its disclosure could have in light of the circumstances. It should be noted that the decision to disclose some protected information does not depend on the mood or personal preference of the designated judge. This decision necessitates some reflection, a comprehension of all the aspects at issue, the participation of the Ministers or their representatives, and in some cases the participation of other local, national or international agencies. Often the very form of disclosure can have an impact on national security or the safety of any person. Thus it is necessary to pay special attention to it. This means that in light of the interests at stake, the disclosure of information previously considered protected cannot be done instantaneously. The necessary time must be taken in which to weigh the consequences of disclosure or non-disclosure of the protected information.
[17] In light of the preceding comments, it was not until July 17, 2003, that I was able to authorize the disclosure of certain previously protected information, namely, that Mr. Abou Zabaida, characterized as a close collaborator of Osama bin Laden, had recognized Mr. Charkaoui (under the name of Zubein Al Magherebi) in a photograph as being an individual whom he had seen in Afghanistan in 1993 and in 1997/1998.
[18] It was not until August 14, 2003, that I was able to authorize the disclosure of other previously protected information, namely, that in the course of interviews with representatives of the Canadian Security Intelligence Service (hereinafter "the Service"), in January 2002, Mr. Ahmed Ressam recognized Mr. Charkaoui in two photographs and identified him under the name of Zubein Al Magherebi. Mr. Ressam added that he had met him in Afghanistan in the summer of 1998 while they were training in the same camp.
[19] In their motion record, Mr. Charkaoui's counsel acknowledged that I had informed them that I was prepared to grant a hearing for the purpose of reviewing the continued detention, in view of the information disclosed on July 17 and August 14, 2003. For the time being, Mr. Charkaoui and his counsel declined this offer, since they are waiting for the publication of the reasons and orders pertaining to the hearings of October 8, 9 and 21, 2003.
ISSUES
[20] Must the information protected for reasons of national security or the safety of any person under section 76 and paragraphs 78(b) and (g) of the IRPA be disclosed, these statutory provisions being inconsistent with the principles of fundamental justice protected by section 7 of the Charter? I have answered this question in order 2003 FC 1419 of the Federal Court, bearing today's date (beginning at paragraph 84).
[21] Should Mr. Charkaoui, who is detained under section 82 et seq. of the IRPA, be released because these statutory provisions contravene sections 7, 9, 10(c), 11(e), 12, 15, 24 and 52 of the Charter? I have answered this question in order 2003 FC 1419 of the Federal Court, bearing today's date (beginning at paragraph 133).
[22] In view of the fact that some additional information was disclosed to Mr. Charkaoui and his counsel on July 17 and August 14, 2003, that is, after the hearing on the review of the reasons for continued detention, is Mr. Charkaoui entitled to his costs on a solicitor-client basis, assessed at $25,000?
[23] Should Mr. Charkaoui and his counsel have had an opportunity to present submissions based on section 7 of the Charter or the common law rules prior to each hearing held in the presence of the Ministers' representatives and their counsel?
PROTECTED INFORMATION
[24] I have already concluded that sections 76 and 78 of the IRPA (including the recognized procedure for making the selection of protected information) do not contravene the principles of fundamental justice protected by section 7 of the Charter. Moreover, I have already examined the protected information and determined which information could be disclosed to Mr. Charkaoui without jeopardizing national security or the safety of any person while satisfying myself that he is reasonably informed of the circumstances justifying the certificate and the continued detention.
[25] After the disclosure of the information on May 26, 2003, I authorized the disclosure of additional information on two occasions, on July 17 and August 14, 2003. As I mentioned previously, this exercise must be engaged in periodically, as situations evolve and the players are continually in action. For example, it may be that information that has previously been protected need no longer be protected as the circumstances so permit. Since the IRPA requires that the designated judge reasonably inform the person concerned, I believe it is in his interest to try to disclose as much information as possible while considering the interests involved.
[26] Mr. Charkaoui and his counsel are asking me to give them the Court Record of the proceedings held in the sole presence of the Ministers' representatives. Without going into details, the names of the witnesses, their positions, the documents that are referred to, the duration of the testimony, the summary of such testimony, etc., are protected information. Mr. Justice Addy wrote in this regard, in Henrie v. Canada, [1989] F.C. 229 (T.D.), at paragraph 27:
There are few limits upon the kinds of security information, often obtained on a long-term basis, which may prove useful in identifying a threat. The latter might relate to any field of our national activities and it might be an immediate one or deliberately planned for some time in the relatively distant future. An item of information, which by itself might appear to be rather innocuous, will often, when considered with other information, prove extremely useful and even vital in identifying a threat. The very nature and source of the information more often than not renders it completely inadmissible as evidence in any court of law. Some of the information comes from exchanges of intelligence information between friendly countries of the western world and the source or method by which it is obtained is seldom revealed by the informing country.
[27] To some people, the disclosure of the Court Record of the proceedings held in the presence of representatives of the Ministers but in the absence of the person concerned and his counsel may seem innocuous, but such disclosure is in fact important given the nature of the protected information and the consequences of its disclosure. To the person concerned, knowledge of this kind of information may prove very interesting. It is not excluded that the confirmation of a hearing in the presence of the Ministers' representatives at a certain time could constitute useful information for the person concerned.
[28] The designated judge has a duty to "ensure" the confidentiality of the protected information and that the person concerned is "reasonably" informed of the circumstances justifying the certificate and the continuation of the detention (paragraphs 78(b) and 78(h) of the IRPA). I wrote the reasons for the decision of July 15, 2003, concerning Mr. Charkaoui's continued detention with these two duties in mind. Bearing in mind the constraints resulting from these duties, I disclosed as much information as I could disclose at that time.
[29] I therefore dismiss the motion for disclosure of the evidence justifying the certificate and the continuation of the detention as well as the Court Record of the proceedings held in the absence of Mr. Charkaoui and his counsel. This information must be protected for it is information that is included in the definition of "information"in section 76 of the IRPA, the disclosure of which would be injurious to national security or the security of any person.
CLAIM FOR COSTS
[30] In regard to the request for costs on a solicitor-client basis totalling $25,000, I note first that the motion is supported by an affidavit of Ms. Doyon, Mr. Charkaoui's counsel. At paragraph 8 of her affidavit, Ms. Doyon states that Mr. Charkaoui does not have the resources to cover the fees related to this new review. In my opinion, rule 82 of the Federal Court Rules, 1998, S.C. 2002, c. 8, prohibits such a practice except with leave of the Court. Mr. Charkaoui or a person who has a detailed knowledge of his financial situation could make such a statement.
[31] Furthermore, the motion does not indicate what evidence would have been presented if some additional information could have been disclosed before the hearing of July 2 and 3, 2003. That is an important omission since the applicant must demonstrate that his evidence would have been different had he had access to further information.
[32] In any event, the additional information could not be disclosed before July 17, 2003, in the first case and August 14, 2003, in the second case and the information disclosed on May 26, 2003, gave sufficient information to Mr. Charkaoui to enable him to defend himself adequately in regard to the continued detention. The information disclosed to Mr. Charkaoui on May 26, 2003, even referred to Mr. Ressam. At the hearing on July 2 and 3, 2003, Mr. Charkaoui did not present to me any evidence that would allow me to contemplate his release. In the reasons for the written decision dated July 15, 2003, I clearly indicated the reasons for my decision and I even indicated by way of suggestion where I thought some evidence would be useful (Chardaoui (Re), [2003] F.C.J. No. 119). I offered, under subsection 83(2) of the IRPA, to hold a new hearing on the continued detention but Mr. Charkaoui declined this offer. Therefore, I set the date for the review provided by the IRPA for January 12, 2004.
[33] For the reasons indicated in paragraph 32, I dismiss Mr. Charkaoui's request for costs on a solicitor-client basis.
[34] The final component of the motion has to do with the fact "[translation] that before deciding on the limitation of the disclosure of information and other evidence, the Court should have provided the interested party with an opportunity to be heard and to make representations in regard to section 7 of the Canadian Charter or in regard to the common-law rules" (Notice of Motion of Mr. Charkaoui, dated September 24, 2003, paragraph 27).
[35] From the outset, I informed Mr. Charkaoui's counsel that some hearings would take place only in the presence of the representatives of the Ministers and, from the outset, Ms. Doyon objected to the holding of these hearings. However, it was agreed that the constitutional question that this situation raised would be debated later and that priority would be given to the review of the continued detention.
[36] The constitutional questions have been debated and reasons have been signed by me this very day. One of the questions was whether sections 76 to 85 of the IRPA contravened the principles of fundamental justice protected by section 7 of the Charter. My conclusion was to answer this question in the negative.
[37] If I clearly understand the argument of Mr. Charkaoui's counsel, it would be necessary, whenever the designated judge decided to hold a hearing only in the presence of the Ministers' representatives, that Mr. Charkaoui's lawyers should be given the possibility to be heard in relation to section 7 of the Charter.
[38] Ruby v. Canada, 2002 SCC 75, dealt with a similar situation. Under subsections 51(2) and 51(3) of the Privacy Act, R.S.C. 1985, c. P-21, an in camera hearing of the Federal Court, sitting in the absence of the person concerned, after a refusal to disclose information, shall be held at the request of the head of the federal institution if the disclosure of personal information concerned records obtained in confidence or if their disclosure would be injurious (sections 19 and 21 of that Act).
[39] On behalf of the Court, Madam Justice Arbour described the applicable test:
It remains to determine whether the requirement in s. 51(3) that a court accept ex parte submissions on request of the government institution refusing to disclose information is contrary to the principles of fundamental justice. As I have already noted, the circumstances in which a court will accept ex parte submissions are exceptional. The circumstances in which a court will be obliged to hear ex parte submissions at the request of one party are even more exceptional. The question is whether, in the context of this case, such a provision is consistent with the principles of fundamental justice. I believe that it is.
[40] I draw a parallel between the remarks of Arbour J. and paragraph 78(e) of the IRPA, which allows the Ministers to request a hearing in the absence of the person concerned. In light of the opposing interests, national security and the right of the person concerned to know the case against him, I find that the principles of fundamental justice provided in section 7 of the Charter are complied with.
[41] Practically speaking, I see no advantage in asking that section 7 Charter arguments may be presented whenever a hearing is to be held without the presence of the person concerned and his counsel. The protected information cannot in fact be disclosed to Mr. Charkaoui and his counsel. I wonder, therefore, what advantage would be gained for the person concerned in being reminded of the principles of fundamental justice protected by section 7 of the Charter while making such submissions.
[42] In conclusion, this part of the motion is dismissed for the reasons referred to above.
[43] Before closing, I would like to point out that Parliament imposes on the designated judge an obligation to proceed expeditiously (paragraph 78(c) of the IRPA). I have informed the parties since the beginning that I was under this obligation and that I intended to comply with it. However, the parties agreed that the constitutional questions would be decided before the hearing was held on the reasonableness of the certificate. Just today I signed the reasons responding to the forty constitutional questions as well as the questions concerning the request for production of documents. So, as paragraph 78(i) of the IRPA provides, I am giving Mr. Charkaoui the possibility to be heard on the inadmissibility on January 12, 2004, in Montréal, at 9:30 a.m., at 30 McGill Street, Montréal, Quebec. I have chosen this date as it was already set aside for the review of the continued detention.
IN CONCLUSION, THE COURT ORDERS THAT:
- the motion is dismissed;
- the hearing on inadmissibility and the certificate is scheduled for January 12, 2004 at 9:30 a.m., at 30 McGill Street, Montréal, Quebec.
"Simon Noël"
Judge
Certified true translation
Suzanne M. Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: DES-3-03
STYLE:
IN THE MATTER OF a certificate
and its referral under subsection 77(1)
and sections 78 to 80 of the
Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (the "IRPA");
IN THE MATTER OF the warrant for the arrest
and detention and the review of the reasons
for continued detention pursuant to
subsections 82(1), 83(1) and 83(3) of the IRPA
IN THE MATTER OF
the request for production of protected documents
(under section 76 of the IRPA)
AND IN THE MATTER OF
Mr. Adil Charkaoui
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 8, 9 and 21, 2003
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE SIMON NOËL
DATED: December 5, 2003
APPEARANCES:
Johanne Doyon for Adil Charkaoui
Doyon & Montbriand
6337 St-Denis Street
Montréal, Quebec
H2S 2R8
Tel.: (514) 277-4077
Fax: (514) 277-2019
Julius Grey
Grey, Casgrain
3410 Peel Street, Suite 2102
Montréal, Quebec
H3A 1W8
Tel.: (514) 288-6180
Fax: (514) 288-8908
Daniel Roussy (613) 231-0472 For the Solicitor General of Canada
Luc Cadieux (613) 842-1175
Department of Justice Canada For the Minister of Citizenship and Legal Services Immigration
Canadian Security Intelligence Service
P.O. Box 9732, Station T
Ottawa, Ontario
K1G 4G4
Fax: (613) 842-1345
Daniel Latulippe (514) 283-6484 " "
Federal Department of Justice
Quebec Regional Office
Guy-Favreau Complex
200 René-Lévesque Blvd. West
East Tour, 9th Floor
Montréal, Quebec
H2Z 1X4
Fax: (514) 283-3856