Charkaoui, Re, (2008) 376 N.R. 154 (SCC)

JudgeMcLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
CourtSupreme Court (Canada)
Case DateJanuary 31, 2008
JurisdictionCanada (Federal)
Citations(2008), 376 N.R. 154 (SCC);175 CRR (2d) 120;376 NR 154;[2008] SCJ No 39 (QL);58 CR (6th) 45;[2008] 2 SCR 326;[2008] ACS no 39;2008 SCC 38;[2008] 2 S.C.R. 326 ;294 DLR (4th) 478

Charkaoui, Re (2008), 376 N.R. 154 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2008] N.R. TBEd. JN.039

Adil Charkaoui (appellant) v. Minister of Citizenship and Immigration and Solicitor General of Canada (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 and Québec Immigration Lawyers Association (interveners)

(31597; 2008 SCC 38; 2008 CSC 38)

Indexed As: Charkaoui, Re

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 26, 2008.

Summary:

In May 2003, Charkaoui, a permanent resident, was arrested and detained under an Immigration and Refugee Protection Act ministerial security certificate because he was believed to be a member of a terrorist network. On the fourth review of his detention, Charkaoui filed a motion for a stay of proceedings, alleging certain infringements of his right to procedural fairness (i.e., a destruction by the Canadian Security Intelligence Service (CSIS) of operational notes and recordings of an interview and the late disclosure of evidence). He also challenged the right of the responsible ministers to introduce new allegations against him at the review hearing.

The Federal Court (i.e., the designated judge), in a decision reported 261 F.T.R. 1, dismissed the motion, but subsequently ordered his release, considering that Charkaoui was no longer such a threat to the security of Canada that his detention was justified (261 F.T.R. 11). Charkaoui appealed the interlocutory decision of the designated judge refusing to stay proceedings.

The Federal Court of Appeal, in a decision reported 353 N.R. 319, dismissed the appeal. Charkaoui appealed again.

The Supreme Court of Canada allowed the appeal in part. The court held that the destruction of the operational notes was a breach of CSIS's duty to retain and disclose information, however, it would be up to the designated judge to determine the consequences. Here, the designated judge granted the appropriate remedy for the late disclosure by adjourning the hearing and granting a postponement to allow Charkaoui to prepare his testimony and defence. With respect to the new allegations, the court held that the responsible ministers could submit new evidence at any point in the process, either in the review of the reasonableness of the certificate or in the detention review. The court held that a stay of proceedings was not an appropriate remedy in this case. The only appropriate remedy was to confirm the duty to disclose Charkaoui's entire file to the designated judge and, after the judge had filtered it, disclose it to Charkaoui and his counsel.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - The Supreme Court of Canada discussed the admissibility of new evidence in ministerial security certificate proceedings under the Immigration and Refugee Protection Act - The court stated that "... the ministers may submit new evidence at any point in the process, either in the review of the reasonableness of the certificate or in the detention review. The judicial review process in issue relates, on an ongoing basis, to both the certificate and the detention. It is not limited to a review of the bases for the ministers' initial decision. Furthermore, receiving new evidence in the course of this ongoing verification process is fairer, since such evidence can be as beneficial to the named person as to the ministers" - See paragraph 73.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - [See first Aliens - Topic 1564 ].

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - In May 2003, Charkaoui, a permanent resident, was arrested and detained under an Immigration and Refugee Protection Act ministerial security certificate for suspected terrorist links - Shortly before his fourth detention review, counsel for the ministers informed the designated judge at an in camera ex parte hearing that they had recently become aware of a previously undisclosed document consisting of a summary of two interviews that Canadian Security Intelligence Service (CSIS) officers had with Charkaoui in 2002 - The judge ordered that the summary be disclosed to Charkaoui's counsel forthwith - At the same hearing, the ministers' counsel filed fresh allegations against Charkaoui - A summary of this information was disclosed to Charkaoui the next day - The designated judge adjourned and postponed proceedings to allow Charkaoui to review the new evidence - Charkaoui filed a motion to exclude the fresh evidence - He also filed a motion to stay proceedings alleging a denial of procedural fairness (Charter, s. 7), when it became apparent that the notes and recordings of the interviews had been destroyed in accordance with a CSIS policy - The Federal Court and the Federal Court of Appeal dismissed the applications - Charkaoui appealed - The Supreme Court of Canada allowed the appeal in part and dismissed the application for the stay of proceedings - The court held that the destruction of the operational notes was a breach of CSIS's duty to retain and disclose information, however, it would be up to the designated judge to determine the consequences - Here, the designated judge granted the appropriate remedy for the late disclosure of the interview summary and the summary of the new evidence, by adjourning the hearing and granting the postponement to allow Charkaoui to prepare his testimony and defence - With respect to the new allegations, the court held that the ministers could submit new evidence at any point in the process, either in the review of the reasonableness of the certificate or in the detention review - The court held that a stay of proceedings was not an appropriate remedy in this case - The only appropriate remedy was to confirm the duty to disclose Charkaoui's entire file to the designated judge and, after the judge had filtered it, disclose it to Charkaoui and his counsel.

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - The Supreme Court of Canada discussed the duty of the Canadian Security Intelligence Service to retain and disclose information in the context of the ministerial security certificate scheme under the Immigration and Refugee Protection Act - The court stated that "in our view, the Canadian Security Intelligence Service (CSIS) is bound to disclose to the ministers responsible all information in its possession regarding the person named in a security certificate. The ministers must convey this information to the designated judge. The judge must then disclose the information to a person named in the security certificate, except to the extent that disclosure might, in the judge's view, endanger Canada's security. These obligations of disclosure cannot be properly discharged where CSIS has destroyed what it was bound to disclose. As a matter of text and context, we have therefore concluded that CSIS is bound to retain the information it gathers within the limits established by the legislation governing its activities ..." - See paragraph 2.

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - The Supreme Court of Canada stated that "the principles governing the disclosure of evidence are well established in criminal law, but the proceeding in which the Federal Court determines whether a security certificate is reasonable takes place in a context different from that of a criminal trial. No charges are laid against the person named in the certificate. Instead, the ministers seek to expel the named person from Canada on grounds of prevention or public safety. However, the serious consequences of the procedure on the liberty and security of the named person bring interests protected by s. 7 of the Charter into play. A form of disclosure of all the information that goes beyond the mere summaries which are currently provided by CSIS to the ministers and the designated judge is required to protect the fundamental rights affected by the security certificate procedure." - See paragraph 50.

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - The Supreme Court of Canada stated that "in La (para. 20), this Court confirmed that the duty to disclose is included in the rights protected by s. 7. Similarly, in Ruby v. Canada (Solicitor General) ... the Court stressed the importance of adopting a contextual approach in assessing the rules of natural justice and the degree of procedural fairness to which an individual is entitled. In our view, the issuance of a [security] certificate [under the Immigration and Refugee Protection Act] and the consequences thereof, such as detention, demand great respect for the named person's right to procedural fairness. In this context, procedural fairness includes a procedure for verifying the evidence adduced against him or her. It also includes the disclosure of the evidence to the named person, in a manner and within limits that are consistent with legitimate public safety interests" - See paragraph 56 - The court continued: "In the context of information provided by CSIS to the ministers and the designated judge, the factors considered in Suresh confirm the need for an expanded right to procedural fairness, one which requires the disclosure of information, in the procedures relating to the review of the reasonableness of a security certificate and to its implementation. As we mentioned above, these procedures may, by placing the individual in a critically vulnerable position vis-à-vis the state, have severe consequences for him or her" - See paragraph 58.

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - [See first National Security - Topic 1007 and first National Security - Topic 1008 ].

Aliens - Topic 4095

Practice - Hearings - Stay of - [See first Aliens - Topic 1564 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration (incl. security certificate procedure) - [See first and third Aliens - Topic 1564 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - [See first and third Aliens - Topic 1564 ].

Civil Rights - Topic 3188

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to make full answer and defence (incl. disclosure issues) - [See first, third and fourth Aliens - Topic 1564 ].

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure contrary to fundamental justice - [See first Aliens - Topic 1564 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - Charkaoui, who was the subject of security certificate proceedings under the Immigraton and Refugee Protection Act, sought a stay of proceedings (Charter, s. 24), because of alleged breaches of procedural fairness - The Supreme Court of Canada stated that to grant a remedy such as the one requested in this case was appropriate only if two criteria were met: (1) the prejudice caused by the abuse in question would be manifested, perpetuated or aggravated through the conduct of the proceedings, or by their outcome; and (2) no other remedy was reasonably capable of removing that prejudice - A stay of proceedings was a remedy of last resort - See paragraphs 74 to 76.

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Aliens - Topic 1564 ].

National Security - Topic 1007

Canadian Security Intelligence Service (CSIS) - General - Duty to retain information - The Supreme Court of Canada discussed a CSIS policy regarding management of operational notes (OPS-217) - Pursuant to that policy, which was based on s. 12 of the Canadian Security Intelligence Service Act, operational notes were considered temporary in nature and had to be destroyed after they were transcribed into a report by the employee who took them - The court held that the policy was based on an erroneous interpretation of s. 12 - The court stated that nothing in that provision required CSIS to destroy the information it collected; rather, s. 12 demanded that it retain its operational notes when conducting investigations that were not of a general nature - The court stated that its opinion on the interpretation of s. 12 and operational policy OPS-217 should not be taken to signify that the court considered investigations conducted pursuant to s. 12 and proceedings in which the policy was applied to be unlawful - The court stated that in the case of security certificate proceedings under the Immigration and Refugee Protection Act, the consequences of applying OPS-217 would have to be assessed by the designated judge in light of all the information in his or her possession - The fact that the notes were unavailable because they were destroyed would be a relevant factor, but not determinative, in every case - See paragraphs 20 to 47.

National Security - Topic 1007

Canadian Security Intelligence Service (CSIS) - General - Duty to retain information - [See first Aliens - Topic 1564 and first National Security - Topic 1008 ].

National Security - Topic 1008

Canadian Security Intelligence Service (CSIS) - General - Disclosure of information - The Supreme Court of Canada discussed the manner in which information in CSIS's possession should be disclosed to the ministers and the designated judge in the context of a proceeding relating to a security certificate issued under the Immigration and Refugee Protection Act - See paragraphs 43 to 62 - The court stated, inter alia, that the destruction by CSIS officers of their operational notes compromised the very function of judicial review - To uphold the right to procedural fairness of those subject to security certificate proceedings, "CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. If, as we suggest, the ministers have access to all the undestroyed 'original' evidence, they will be better positioned to make appropriate decisions on issuing a certificate. The designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence - which he or she will have been able to check for accuracy and reliability - for the named person" - See paragraph 62.

National Security - Topic 1008

Canadian Security Intelligence Service (CSIS) - General - Disclosure of information - [See first Aliens - Topic 1564 and first National Security - Topic 1007 ].

Cases Noticed:

Liddar (Bhupinder S.) v. Deputy Head of the Department of Foreign Affairs and International Trade and Canadian Security Intelligence Service, SIRC, File No. 1170/LIDD/04, June 7, 2005, refd to. [para. 40].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 8 C.R.(4th) 277, refd to. [para. 48].

R. v. La (H.K.) et al., [1997] 2 S.C.R. 680; 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 8 C.R.(5th) 155, refd to. [para. 49].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 49].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 51].

May et al. v. Ferndale Institution et al., [2005] 3 S.C.R. 809; 343 N.R. 69; 220 B.C.A.C. 1; 362 W.A.C. 1; 2005 SCC 82, refd to. [para. 52].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 56].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 208 D.L.R.(4th) 1; 2002 SCC 1, refd to. [para. 57].

R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 2000 SCC 38, refd to. [para. 61].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 74].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 75].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 4].

Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sect. 12 [para. 37].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 77, sect. 78, sect. 83 [para. 72].

Authors and Works Noticed:

Arar Inquiry - see Canada, Commission of Inquiry.

Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security Under the Law: Second Report (1981), vol. 2, pp. 753 [para. 21]; 757 [para. 23]; 799 [para. 21].

Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Mahar Arar, A New Review Mechanism for the RCMP's National Security Activities (2006), pp. 138, 139 [para. 27]; 436 [para. 54].

Canada, 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), p. 114 [para. 41].

Canada, Royal Commission on Security, Report of the Royal Commission on Security (1969), p. 21 [para. 21].

Canada, Report of the Special Committee of the Senate on the Canadian Security Intelligence Service, Delicate Balance: A Security Intelligence Service in a Democratic Society (1983), paras. 15 [para. 23]; 19 [para. 21]; 25 [para. 22].

Canadian Security Intelligence Service Policies, Policy OPS-217, paras. 1.4 [para. 31]; 1.2, 2.4, 2.4.1, 3.1, 3.5 [para. 33]; 3.6, 3.6.1, 3.7 [para. 34].

Counsel:

Dominique Larochelle, Johanne Doyon and Diane Petit, for the appellant;

Claude Joyal and Ginette Gobeil, for the respondents;

Michael Bernstein, for the intervenor, the Attorney General of Ontario;

Russell S. Silverstein, for the intervenor, the Criminal Lawyers' Association (Ontario);

Lorne Waldman, for the intervenor, the Canadian Bar Association;

Pierre Poupart, François Dadour and Nadine Touma, for the intervenor, Barreau du Québec;

Vanessa Gruben, Michael Bossin and Owen M. Rees, for the intervenor, Amnesty International;

Walid Hijazi, for the intervenor, Association des avocats de la défense de Montréal;

Dan Bohbot and Stéphane Handfield, for the intervenor, the Québec Immigration Lawyers Association.

Solicitors of Record:

Des Longchamps, Bourassa, Trudeau & Lafrance, Montréal, Québec, for the appellant;

Attorney General of Canada, Montréal, Québec, for the respondents;

Attorney General of Ontario, Toronto, Ontario, for the intervenor, the Attorney General of Ontario;

Russell S. Silverstein, Toronto, Ontario, for the intervenor, the Criminal Lawyers' Association (Ontario);

Waldman & Associates, Toronto, Ontario, for the intervenor, the Canadian Bar Association;

Poupart, Dadour et Associés, Montréal, Québec, for the intervenor, the Québec Bar;

Community Legal Services (Ottawa-Carleton), Ottawa, Ontario, for the intervenor, Amnesty International;

Desrosiers, Turcotte, Massicotte, Montréal, Québec, for the intervenor,  Association des avocats de la défense de Montréal;

Pia Zambelli, Montréal, Québec, for the intervenor, the Québec Immigration Lawyers Association.

This appeal was heard on January 31, 2008, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. LeBel and Fish, JJ., issued joint reasons for the court, in both official languages, on June 26, 2008.

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    ...297 (Prov Ct) ................. 292 R v Zwicker (1995), 169 NBR (2d) 350, [1995] NBJ No 502 (CA) ......................321 Re Charkaoui, 2008 SCC 38 ............................................................................... 616 Re Law Society of Upper Canada, 2006 ONCJ 470 ..................
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