Canada (Attorney General) v. Telbani, 2012 FC 474

• Judge: Noël, J.
• Court: Federal Court (Canada)
• Case Date: January 31, 2012
• Jurisdiction: Canada (Federal)
• Citations: 2012 FC 474;(2012), 414 F.T.R. 1 (FC)

Can. (A.G.) v. Telbani (2012), 414 F.T.R. 1 (FC)

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Temp. Cite: [2012] F.T.R. TBEd. MY.012

Procureur général du Canada (demandeur) v. Hani Al Telbani (défendeur) et Comité de Surveillance des Activités de Renseignement de Sécurité (intervenant)

(T-1645-10; 2012 CF 474; 2012 FC 474)

Indexed As: Canada (Attorney General) v. Telbani

Federal Court

Noël, J.

April 23, 2012.

Summary:

Telbani alleged that two officers of the Canadian Security Intelligence Service (CSIS) entered his residence without a warrant or permission and acted in a threatening and intimidating manner toward him, in violation of his ss. 7, 9 and 10 Charter rights. A report by CSIS was allegedly forwarded to the Minister of Transport, Infrastructure and Communities in order to have Telbani's name added to a no-fly list. Telbani sent a letter to the Director of CSIS demanding that CSIS acknowledge its responsibility and remedy the violations by withdrawing any damaging reports that might have been written about him, having his name removed from the no-fly list, and compensating him for moral and material damages. CSIS determined that no action would be taken. Telbani filed a complaint with the Security Intelligence Review Committee (SIRC) in which he demanded an investigation to establish CSIS's responsibility, and that SIRC recommend to CSIS that they provide the remedies he had requested. The parties made a joint application to have SIRC determine whether it had jurisdiction to investigate the allegations and decide questions of law involving the Charter. SIRC determined that it did have jurisdiction. The Attorney General applied for judicial review.

The Federal Court dismissed the application. SIRC had implied jurisdiction to investigate allegations and decide questions of law involving the Charter.

Administrative Law - Topic 9013

Boards and tribunals - Jurisdiction - Constitutional questions - [See all National Security - Topic 1103 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - The parties jointly applied to have the Security Intelligence Review Committee (SIRC) determine whether it had jurisdiction to investigate allegations and decide questions of law involving the Charter - SIRC determined that it did have jurisdiction - The Attorney General applied for judicial review - The Federal Court dismissed the application - There was no explicit jurisdiction, but there was implied jurisdiction - In order to fulfill its legislative mandate, SIRC had to determine questions of law, including Charter issues - SIRC's interaction with other elements of the administrative system supported the theory of implied jurisdiction - SIRC was adjudicative in nature and had many of the normal attributes of a court of law - There were practical considerations, such as the advantages of SIRC's investigation procedure, that also favoured an implied jurisdiction - See paragraphs 69 to 155.

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - [See all National Security - Topic 1103 ].

National Security - Topic 1103

Canadian Security Intelligence Service - Security intelligence review committee - Jurisdiction - Telbani filed a complaint with the Security Intelligence Review Committee (SIRC), alleging that the Canadian Service Intelligence Service (CSIS) had violated his Charter rights - He wanted the violations remedied by withdrawal of any damaging reports that had been written about him, removal of his name from a no-fly list, and compensation for moral and material damages - The parties jointly applied to have SIRC determine whether it had jurisdiction to investigate allegations and decide questions of law involving the Charter - SIRC determined that it did have jurisdiction - The Attorney General applied for judicial review - The Federal Court dismissed the application - There was no explicit jurisdiction, but there was implied jurisdiction - In order to fulfill its legislative mandate, SIRC had to determine questions of law, including Charter issues - SIRC's interaction with other elements of the administrative system supported the theory of implied jurisdiction - SIRC was adjudicative in nature and had many of the normal attributes of a court of law - There were practical considerations, such as the advantages of SIRC's investigation procedure, that also favoured an implied jurisdiction - The Canadian Security Intelligence Service Act (CSISA) came into force two years after the Charter but Parliament did not exclude the Charter from SIRC's jurisdiction - SIRC had the power to investigate CSIS activities and make recommendations based on its findings - SIRC therefore had jurisdiction to determine the validity of Telbani's allegations and to grant the particular remedies sought under the CSISA - See paragraphs 69 to 155.

National Security - Topic 1103

Canadian Security Intelligence Service - Security intelligence review committee - Jurisdiction - The parties jointly applied to have the Security Intelligence Review Committee (SIRC) determine whether it had jurisdiction to investigate allegations and decide questions of law involving the Charter - SIRC determined that it did have jurisdiction - The Attorney General applied for judicial review - The Federal Court dismissed the application - SIRC had an implied power to decide questions of law, including Charter issues - This was indicated by, inter alia, the fact that SIRC had to determine questions of law in order to fulfill its legislative mandate - SIRC's legislative mandate was to ensure that the Canadian Security Intelligence Service (CSIS) acted in accordance with Canadian law, the Canadian Security Intelligence Service Act (CSISA) and its regulations and policies, while ensuring that Canada's security was protected and that individual rights guaranteed under Canadian law were also protected - It would make no sense if SIRC was reduced to making findings of fact without being able to measure those findings against a legal backdrop - The role of a Canadian Human Rights Commission (CHRC) investigator could not be associated with SIRC's investigative role - They were two distinct organizations that did not fulfill the same function - The CHRC investigator's powers were limited and not comparable to those granted to SIRC under the CSISA - See paragraphs 79 to 105.

National Security - Topic 1103

Canadian Security Intelligence Service - Security intelligence review committee - Jurisdiction - The parties jointly applied to have the Security Intelligence Review Committee (SIRC) determine whether it had jurisdiction to investigate allegations and decide questions of law involving the Charter - SIRC determined that it did have jurisdiction - The Attorney General applied for judicial review - The Federal Court dismissed the application - SIRC had an implied power to decide questions of law, including Charter issues - This was indicated by, inter alia, SIRC's interaction with other elements of the administrative system - SIRC's recommendations, while non-binding, had a definite impact on the Canadian Security Intelligence Service (CSIS), as it had to justify its actions to the Minister and Parliament - The lack of an appeals process for SIRC investigation reports was offset by the possibility of obtaining judicial review - The investigation reports were of undeniable importance to all involved parties - See paragraphs 106 to 119.

National Security - Topic 1103

Canadian Security Intelligence Service - Security intelligence review committee - Jurisdiction - The parties jointly applied to have the Security Intelligence Review Committee (SIRC) determine whether it had jurisdiction to investigate allegations and decide questions of law involving the Charter - SIRC determined that it did have jurisdiction - The Attorney General applied for judicial review - The Federal Court dismissed the application - SIRC had an implied power to decide questions of law, including Charter issues - This was indicated by, inter alia, the fact that SIRC was adjudicative in nature - In carrying out its investigative duties and functions with respect to complaints about Canadian Security Intelligence Service activities, SIRC had many of the normal attributes of a court of law - Although SIRC's members were only part-time and there was no statutory requirement for them to have received legal training, they had, through their mandate and duties, a privileged position that provided them with an uncommon knowledge of national security matters - This specialized knowledge gave them an expertise that was of great benefit and that other courts did not possess - SIRC's ability to make recommendations was similar to a declaratory judgment, which had been recognized as a discretionary remedy for Charter violations - For both SIRC and a court of law, the process to follow when national security was at stake was to ensure that principles of fundamental justice were respected while ensuring that confidential information was not disclosed - Consequently, one of the parties might be excluded from a hearing and then receive a report of judgment from which confidential information had been redacted - See paragraphs 120 to 133.

National Security - Topic 1103

Canadian Security Intelligence Service - Security intelligence review committee - Jurisdiction - The parties jointly applied to have the Security Intelligence Review Committee (SIRC) determine whether it had jurisdiction to investigate allegations and decide questions of law involving the Charter - SIRC determined that it did have jurisdiction - The Attorney General applied for judicial review - The Federal Court dismissed the application - SIRC had an implied power to decide questions of law, including Charter issues - This was supported by, inter alia, practical considerations, such as the advantages of SIRC's investigation procedure - It was true that SIRC's procedure could never fully satisfy a complainant's needs, because it could only result in findings of fact and recommendations - However, because of the Canada Evidence Act and national security prerogatives, SIRC held, protected and controlled national security-related information - SIRC would necessarily have more complete knowledge of a case than a court of law and would be in a better position to decide questions of law - A court of law having SIRC's report in evidence could better determine the remedies to be granted following a determination that there was a Charter violation - Although duplicity of proceedings was to be avoided as much as possible, it was inevitable in this case because of the constraints imposed by national security - A single proceeding in a court of law would not give the complainant ample opportunity to submit all of the evidence needed for a judgment - See paragraphs 134 to 147.

National Security - Topic 1111

Canadian Security Intelligence Service - Security Intelligence Review Committee - Charter protections - [See fourth and fifth National Security - Topic 1103 ].

National Security - Topic 1113

Canadian Security Intelligence Service - Security intelligence review committee - Judicial review (incl. standard of review) - The Security Intelligence Review Committee (SIRC) determined that it had jurisdiction to investigate allegations that a person's Charter rights had been violated by officers of the Canadian Security Intelligence Service - The Federal Court held that the applicable standard of review of SIRC's decision was correctness - Although SIRC was interpreting its enabling statute (the Canadian Security Intelligence Service Act), and deference would usually be warranted in such a case, the analysis established to decide the question required much more than a simple analysis of the Act - Moreover, it was established that an administrative tribunal could not expect any curial deference with respect to constitutional decisions, and its decisions based on the Charter were subject to judicial review on a correctness standard - See paragraph 21.

Cases Noticed:

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 3].

R. v. Ferguson (M.E.), [2008] 1 S.C.R. 96; 371 N.R. 231; 425 A.R. 79; 418 W.A.C. 79; 2008 SCC 6, refd to. [para. 13].

Omary v. Canada (Attorney General) et al. (2010), 366 F.T.R. 138; 2010 FC 335, refd to. [para. 16].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 18].

Cooper v. Canadian Human Rights Commission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 18].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 19].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 21].

Cuddy Chicks Ltd. v. Labour Relations Board (Ont.) et al., [1991] 1 S.C.R. 5; 122 N.R. 361; 47 O.A.C. 271, refd to. [para. 21].

Thomson v. Canada (Minister of Agriculture), [1992] 1 S.C.R. 385; 133 N.R. 345; 89 D.L.R.(4th) 218, refd to. [para. 24].

Al Yamani v. Canada (Solicitor General) et al., [1996] 1 F.C. 174; 103 F.T.R. 105 (T.D.), refd to. [para. 25].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 36].

Thomson v. Canada, [1988] 3 F.C. 108; 84 N.R. 169 (F.C.A.), refd to. [para. 51].

Nourhaghighi v. Canadian Security Intelligence Review Committee et al. (2005), 268 F.T.R. 268; 2005 FC 148, refd to. [para. 55].

Moumdjian v. Security Intelligence Review Committee et al., [1999] 4 F.C. 624; 246 N.R. 287; 177 D.L.R.(4th) 192 (C.A.), refd to. [para. 56].

Mikail v. Canada (Attorney General), [2011] F.T.R. Uned. 529; 2011 FC 674, refd to. [para. 56].

Brar v. Canada (Solicitor General) et al. (1989), 30 F.T.R. 284, refd to. [para. 59].

R. v. 974649 Ontario Inc. et al., [2001] 3 S.C.R. 575; 279 N.R. 345; 154 O.A.C. 345; 2001 SCC 81, refd to. [para. 66].

Douglas/Kwantlen Faculty Association v. Douglas College, [1990] 3 S.C.R. 570; 118 N.R. 340; 77 D.L.R.(4th) 94, refd to. [para. 68].

Atwal v. Canada, [1988] 1 F.C. 107; 79 N.R. 91 (F.C.A.), refd to. [para. 80].

Zundel v. Canada (Minister of Citizenship and Immigration) et al., [1998] 2 F.C. 233; 221 N.R. 213 (F.C.A.), refd to. [para. 117].

Covarrubias et al. v. Canada (Minister of Citizenship and Immigration) et al. (2006), 354 N.R. 367; 2006 FCA 365, refd to. [para. 121].

Authors and Works Noticed:

Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Certain RCMP Activities and the Question of Governmental Knowledge: Third Report (1981), generally [para. 80].

Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism for the RCMP's National Security Activities (2006), generally [para. 82].

Canada, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin (2008), generally [para. 95].

Iacobucci Commission Report - see Canada, Internal Inquiry into the Actions of Canadian Officials in Relation to Abdullah Almalki, Ahmad Abou-Elmaati and Muayyed Nureddin.

McDonald Commission Report - see Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Certain R.C.M.P. Activities and the Question of Governmental Knowledge: Third Report.

O'Connor Commission Report - see Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, A New Review Mechanism for the RCMP's National Security Activities.

Counsel:

Kathia Bustros and Michael Peirce, for the applicant;

Nadia Effendi, for the intervener.

Solicitors of Record:

Myles J. Kirvan, Deputy Attorney General of Canada, for the applicant;

Doyon & Associés, Montreal, Quebec, for the respondent.

Borden Ladner Gervais LLP, Ottawa, Ontario, for the intervener.

This application for judicial review was heard on January 31, 2012, in Ottawa, Ontario, by Noël, J., of the Federal Court, who delivered the following reasons for order and order on April 23, 2012.