Security Certificates and the Harkat Decision

On May 14, 2014, the Supreme Court of Canada (“SCC”) issued its decision in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 (“Harkat“).  While the SCC upheld the constitutionality of Canada’s security certificate regime, it provided detailed guidance to the Federal Court on applying the process. 

Mohamed Harkat and the Security Certificate Regime

Mohamed Harkat (“Mr. Harkat”) entered Canada in 1995, and obtained refugee status shortly thereafter.  In 2002, the Government of Canada detained him under a security certificate (described in more detail below).  It declared that Mr. Harkat was a threat to Canada for allegedly being an al-Qaeda sleeper agent, and sought to have him declared inadmissible to Canada.  During the past decade, Mr. Harkat has either been detained or living under strict conditions.

At the SCC, Mr. Harkat argued that the Immigration and Refugee Protection Act, SC 2001, c27, did not provide him a fair opportunity to defend himself against the Government of Canada’s allegations.  His arguments were similar to those that Adil Charkaoui successfully made when the SCC struck down Canada’s previous security certificate regime as being unconstitutional.

The Security Certificate Regime

Canada’s security certificate regime compared to its criminal justice system offers the Government of Canada numerous procedural advantages.  As the SCC noted in Harkat:

From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid. As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person. This information can nevertheless be presented to the designated judge in closed hearings and relied upon by her in assessing the security certificate’s reasonableness.

Division 9 of IRPA sets out the security certificate regime.  For the purpose of this blog post, the relevant sections of IRPA Division 9 are:

Division 9
Certificates and Protection of Information

Referral of certificate

77. (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.

Filing of evidence and summary

(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.

Determination

78. The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.

Effect of certificate

80. A certificate that is determined to be reasonable is conclusive proof that the person named in it is inadmissible and is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.

Protection of information

83. (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2 [SM – IRPA ss. 82 to 82.2 pertain to detention reviews for people subjected to security certificate proceedings]:

(a) the judge shall proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

(b) the judge shall appoint a person from the list referred to in subsection 85(1) to act as a special advocate in the proceeding after hearing representations from the permanent resident or foreign national and the Minister and after giving particular consideration and weight to the preferences of the permanent resident or foreign national;

(c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;

(d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;

(e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;

(f) the judge shall ensure the confidentiality of all information or other evidence that is withdrawn by the Minister;

(g) the judge shall provide the permanent resident or foreign national and the Minister with an opportunity to be heard;

(h) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence;

(i) the judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national; and

(j) the judge shall not base a decision on information or other evidence provided by the Minister, and shall return it to the Minister, if the judge determines that it is not relevant or if the Minister withdraws it.

Clarification

(1.1) For the purposes of paragraph (1)(h), reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.

Special Advocate

List of persons who may act as special advocates

85. (1) The Minister of Justice shall establish a list of persons who may act as special advocates and shall publish the list in a manner that the Minister of Justice considers appropriate to facilitate public access to it.

Special advocate’s role

85.1 (1) A special advocate’s role is to protect the interests of the permanent resident or foreign national in a proceeding under any of sections 78 and 82 to 82.2 when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

Responsibilities

(2) A special advocate may challenge

(a) the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person; and

(b) the relevance, reliability and sufficiency of information or other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel, and the weight to be given to it.

For greater certainty

(3) For greater certainty, the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client.

Protection of communications with special advocate

(4) However, a communication between the permanent resident or foreign national or their counsel and the special advocate that would be subject to solicitor-client privilege if the relationship were one of solicitor and client is deemed to be subject to solicitor-client privilege. For greater certainty, in respect of that communication, the special advocate is not a compellable witness in any proceeding.

Powers

85.2 A special advocate may

(a) make oral and written submissions with respect to the information and other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel;

(b) participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in the absence of the public and of the permanent resident or foreign national and their counsel; and

(c) exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.

Obligation to provide information

85.4 (1) The Minister shall, within a period set by the judge, provide the special advocate with a copy of all information and other evidence that is provided to the judge but that is not disclosed to the permanent resident or foreign national and their counsel.

Restrictions on communications — special advocate

(2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate.

Restrictions on communications — other persons

(3) If the special advocate is authorized to communicate with a person, the judge may prohibit that person from communicating with anyone else about the proceeding during the remainder of the proceeding or may impose conditions with respect to such a communication during that period.

Disclosure and communication prohibited

85.5 With the exception of communications authorized by a judge, no person shall

(a) disclose information or other evidence that is disclosed to them under section 85.4 and that is treated as confidential by the judge presiding at the proceeding; or

(b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

In Harkat, the SCC succinctly summarized Canada’s security certificate regime as follows (references to statutes and secondary materials removed):

A security certificate may be issued by the ministers for the removal from Canada of a non-citizen (whether a permanent resident or a foreign national) who is inadmissible on security grounds. The grounds for inadmissibility include engaging in terrorism, being a danger to the security of Canada, engaging in acts of violence that would or might endanger the lives or safety of persons in Canada, or being a member of an organization that engages in terrorism: The ministers must have reasonable grounds to believe that the facts giving rise to inadmissibility have occurred, are occurring, or may occur.

As a practical matter, the process commences when CSIS presents a Security Intelligence Report (“SIR”) to the ministers. The SIR sets out in detail the allegations and evidence grounding inadmissibility. If the ministers conclude that the allegations in the SIR are reasonably grounded, they issue a security certificate.

Once the certificate is issued, the ministers must refer it to the Federal Court. The Federal Court judge who is designated to hear the case “shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not”. If the designated judge deems the certificate to be reasonable, the named person is inadmissible and the certificate becomes a removal order in force. The named person may be arrested and detained for the duration of the proceedings before the Federal Court.

The named person must be given summaries of the information and evidence which allow him to be reasonably informed of the case against him. The summaries must “not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed”.

The judge must appoint one or more special advocates to protect the interests of the named person in closed hearings. These hearings are held in camera and ex parte, in order to permit the Minister to present information and evidence the public disclosure of which could be injurious to national security or endanger the safety of a person.

Special advocates are security-cleared lawyers whose role is to protect the interests of the named person and “to make up so far as possible for the [named person’s] own exclusion from the evidentiary process”. During the closed hearings, they perform the functions that the named person’s counsel (the “public counsel”) performs in the open hearings. They do so by challenging the Minister’s claims that information or evidence should not be disclosed, and by testing the relevance, reliability, and sufficiency of the secret evidence. They are active participants in the closed hearings. They may make submissions and cross-examine witnesses who appear in those hearings. The IRPA scheme also provides that the special advocates may “exercise, with the judge’s authorization, any other powers that are necessary to protect the interests” of the named person.

No solicitor-client relationship exists between the special advocates and the named person. However, solicitor-client privilege is deemed to apply to exchanges between the special advocates and the named person, provided that those exchanges would attract solicitor-client privilege at common law.

Strict communication rules apply to special advocates, in order to prevent the inadvertent disclosure of sensitive information. After the special advocates are provided with the confidential information and evidence, they “may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate”. Read plainly, “this prohibition covers all information about the proceeding from both public and private sessions, including any testimony given in the absence of the public and the named person and their counsel”: By contrast, any other person — such as the ministers’ counsel or the court personnel in attendance at closed hearings — is subject to significantly fewer restrictions on communication. Other persons must refrain from communicating about the proceedings only (i) if that person has had a court-authorized communication with the special advocates and the judge has specifically prohibited that person from communicating with anyone else about the proceeding, or (ii) if the communication would disclose the content of a closed hearing.

The usual rules of evidence do not apply to the proceedings. Instead, “the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence”:

The IRPA scheme provides that the judge’s decision can be based on information or evidence that is not disclosed in summary form to the named person: s. 83(1)(i). It does not specify expressly whether a decision can be based in whole, or only in part, on information and evidence that is not disclosed to the named person.

Constitutionality of the Security Regime

The SCC ruled that while Canada’s current security regime is constitutional, it must be applied in a way that ensures that the named person have an opportunity to respond to the Government of Canada’s allegations.  The SCC’s interpretation is a stark contrast to how the lower court in Harkat interpreted the security certificate regime when it stated:

There may come a time when the only evidence to justify inadmissibility on security ground originates from a very sensitive source, and that the disclosure of such evidence, even through a summary, would inevitably disclose the source.

The SCC, on the other hand, determined that the security certificate regime must allows the named person to receive sufficient disclosure to know and meet the case against him or her.  The SCC further held that the named person needs not only to be given sufficient information about the allegations against him/her, but also about the evidence on the record.  As well, where there is an irreconcilable tension between disclosure and security then the Government of Canada must withdraw the information or evidence whose non-disclosure prevents the named person from being reasonably informed about the allegations. In some cases, this may effectively compel the Government of Canada to put an end to the proceedings.  The SCC stated:

To hold that the Minister can rely on essential information and evidence of which the named person cannot be reasonably informed would force the judge to violate the responsibility expressly placed on him by the statute, i.e. his duty to ensure that the named person remain reasonably informed throughout the proceedings. It cannot have been Parliament’s intent to design a scheme in which the judge is required to violate the responsibilities placed upon him. Consequently, the IRPA scheme must be interpreted as precluding the Minister from bringing a case in respect of which the named person cannot be kept reasonably informed.

Ultimately, although the SCC disagreed with the Federal Court’s interpretation of IRPA, it found that the Federal Court’s decision was reasonable.

Government Exaggerating National Security Claims

In Harkat, the SCC held that only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person.  Of particular interest to me was that the SCC specifically noted that judges must ensure throughout the proceedings that the Government of Canada does not cast too wide a net with its claims of confidentiality.  The SCC noted:

The judge must be vigilant and skeptical with respect to the Minister’s claims of confidentiality. Courts have commented on the government’s tendency to exaggerate claims of national security confidentiality: Canada (Attorney General) v. Almalki, 2010 FC 1106, [2012] 2 F.C.R. 508, at para. 108, ;Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80, at paras. 73-77 and 98; see generally C. Forcese, “Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” (2009), 15:5 IRPP Choices 3.As Justice O’Connor commented in his report on the Arar inquiry, overclaiming exacerbates the transparency and procedural fairness problems that inevitably accompany any proceeding that can not be fully open because of [national security confidentiality] concerns. It also promotes public suspicion and cynicism about legitimate claims by the Government of national security confidentiality. (Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006), at p. 302)

The SCC accordingly proclaimed that judges should take a liberal approach in authorizing communications to the accused and only refuse authorization to disclose evidence where the Government of Canada has demonstrated, on a balance of probabilities, a real — as opposed to a speculative — risk of injurious disclosure.

The SCC’s assertion that the Government of Canada has a tendency to exaggerate claims of national security accurately reflects my experience in representing individuals.  In one particularly memorable case, Citizenship and Immigration Canada (“CIC”) and the Department of Justice (“DOJ”) vigorously argued in Federal Court that certain redacted information could not be disclosed to my client because doing so would compromise Canada’s national security.  Ultimately, due to what I can only assume was a lack of communication within CIC, we obtained disclosure of the redacted information from another CI unit, and I still cannot fathom how the redacted information even related to national security.

Hopefully the SCC’s encouragement of judges in Harkat to challenge exaggerated claims of threats to national security will slowly reduce this habit of government.


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