Harkat, Re, (2014) 458 N.R. 67 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 14, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2014), 458 N.R. 67 (SCC);2014 SCC 37;[2014] ACS no 37;[2014] 2 SCR 33;[2014] SCJ No 37 (QL)

Harkat, Re (2014), 458 N.R. 67 (SCC)

MLB headnote and full text

[French language version follows English language version]

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

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Temp. Cite: [2014] N.R. TBEd. MY.007

Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness (appellants/respondents on cross-appeal) v. Mohamed Harkat (respondent/appellant on cross-appeal) and Attorney General of Ontario, British Columbia Civil Liberties Association, Canadian Council of Criminal Defence Lawyers, Canadian Civil Liberties Association, Canadian Bar Association, Canadian Association of Refugee Lawyers, Canadian Council for Refugees, International Civil Liberties Monitoring Group, Canadian Council on American-Islamic Relations (now known as National Council of Canadian Muslims), Amnesty International and Criminal Lawyers' Association (Ontario) (interveners)

(34884; 2014 SCC 37; 2014 CSC 37)

Indexed As: Harkat, Re

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ.

May 14, 2014.

Summary:

In 2002, Harkat, a non-citizen, was detained pursuant to a ministerial security certificate issued under the Immigration and Refugee Protection Act (IRPA) as a person inadmissible to Canada on grounds of national security. Numerous security certificate proceedings ensued. In 2006 he was released from detention on stringent conditions, which were substantially modified over time in favour of Harkat. Another security certificate was issued in 2008 when a new security certificate regime was implemented following the Supreme Court of Canada's constitutional rulings in Re Charkaoui #1 (SCC 2007). Harkat's case was referred to the court to determine the reasonableness of the 2008 certificate. In accordance with the amended legislation, special advocates were appointed to protect Harkat's interests. Also, in accordance with the procedural rulings in Re Charkaoui #2 (SCC 2008), Harkat became entitled to additional disclosure from the Canadian Security Intelligence Service (CSIS). The special advocates requested access to human sources who provided information to CSIS regarding Harkat. That is, the special advocates wanted to know the identity of the covert human intelligence sources and have them made available for cross-examination in the closed door hearings.

The Federal Court (designated judge), in a decision reported 339 F.T.R. 65; 2009 FC 204 (i.e., the Privilege Decision), denied the special advocates' requests on the basis of "covert human intelligence source privilege" (i.e., the judge extended the police informer common law privilege to covert human intelligence sources, subject to a "need to know" exception). The reasonableness proceedings proceeded. During the disclosure process it was discovered that the judge and special advocates were provided with an incomplete and misleading document regarding one of the CSIS human sources.

The Federal Court, in a decision reported 345 F.T.R. 143; 2009 FC 553, ordered that the unredacted human source files be disclosed to the special advocates. The special advocates sought a stay of proceedings because they were dissatisfied with efforts by the responsible Ministers to obtain updated information from foreign intelligence agencies on several alleged terrorists with whom Harkat was claimed to have associated. Also Harkat brought a motion, seeking the exclusion of summaries of intercepted conversations as evidence, based on the doctrine of abuse of process (i.e., because the original recordings and notes of those conversations, in which he allegedly participated or in which he was allegedly a subject of conversation, were destroyed pursuant to a CSIS policy).

The Federal Court, in a decision reported 380 F.T.R. 255; 2010 FC 1243 (the Abuse of Process Decision), dismissed the special advocates' motion, holding that the Ministers took reasonable steps to get updated information from foreign intelligence agencies. The court also refused to exclude the summaries of the conversations from the evidence, holding that Harkat suffered no prejudice from the destruction of the original operational materials. Harkat brought a motion challenging the constitutionality of a number of provisions of the IRPA relating to the reasonableness review scheme (ss. 77(2) (filing of evidence and summary), ss. 83(1)(c)(d)(e)(h) and (i) (protection of information), s. 85.4(2) and 85.5(b) (restrictions on communications involving special advocates)). Harkat claimed that those provisions violated s. 7 of the Charter in that they did not provide for fair trial standards, failed to grant to the named person the right to know and answer the case made against him and made it impossible for the Court to render a sufficiently informed decision on the basis of the facts and the law.

The Federal Court, in a decision reported 380 F.T.R. 163; 2010 FC 1242 (the Constitutionality Decision), dismissed the motion. The impugned provisions were constitutional. The special advocates provided a substantial substitute for full disclosure to Harkat and had vigorously defended his interests during the closed portion of the proceedings.

The Federal Court, in a decision reported 380 F.T.R. 81; 2010 FC 1241 (the Reasonableness Decision), held that the issuance of the security certificate was reasonable. Therefore, the security certificate issued against Harkat on security grounds was upheld. Harkat appealed.

The Federal Court, in a decision reported 382 F.T.R. 274; 2011 FC 75, certified the following two questions of general importance for appellate consideration under s. 82.3 of the IRPA:

"1. Do sections 77(2), 78, 83(1)(c) to (e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b) of the Act breach section 7 of the Charter of Rights and Freedoms by denying the person concerned the right to a fair hearing? If so, are the provisions justified under section 1?

2. Do human sources benefit from a class-based privilege? If so, what is the scope of this privilege and was the formulation of a 'need to know' exception for the special advocates in Harkat (Re), 2009 FC 204, a correct exception to this privilege?"

Harkat utilized the certified questions as a chance to advance other grounds of appeal respecting the Privilege Decision, the Reasonableness Decision, the Constitutionality Decision and the Abuse of Process Decision referred to above.

The Federal Court of Appeal, in a decision reported 429 N.R. 1; 2012 FCA 122, answered the certified questions in the negative. The court dismissed the appeal with respect to the Constitutionality Decision. The court allowed the appeal with respect to the Privilege Decision, set it aside and declared that CSIS human sources do not benefit from the police informer class privilege or a class privilege analogous to the police informer class privilege. The court allowed the appeal with respect to the Abuse of Process Decision, set it aside and allowed Harkat's motion and ordered that the confidential summaries made of the destroyed originals of the conversations be excluded as evidence, except for the conversations that Harkat was privy to. The court also allowed the appeal with respect to the Reasonableness Decision, set it aside and referred the matter to the designated judge for a new determination of the reasonableness of the security certificate on the basis of the evidence on the record, excluding the confidential summaries made of the destroyed originals of the conversations to which Harkat was not privy. In light of the exclusion, further submissions on the certificate's reasonableness were necessary and it would be up to the designated judge to determine whether those submissions would be oral, written or both. The court declared as a s. 24(1) remedy that Harkat's s. 7 Charter right of disclosure of the originals of the conversations to which he was privy was violated. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness appealed, seeking the reinstatement of the Federal Court's conclusion that the security certificate was reasonable and recognition of the CSIS human source privilege. Harkat cross-appealed, alleging that the amended IRPA scheme was unconstitutional. Alternatively, he sought a new reasonableness hearing before a new designated judge, the exclusion of the summaries of all the intercepted conversations for which the original CSIS operational materials were destroyed, and permission for his special advocates to interview and cross-examine the human sources. In addition, the special advocates contested the designated judge's refusal to order a stay of proceedings. They contended that the Ministers breached their duties of candour and utmost good faith, and that the proceedings did not allow them to meaningfully test the case brought against Harkat. A number of interested parties intervened.

The Supreme Court of Canada allowed the appeal in part with Abella and Cromwell, JJ., dissenting in part. The cross-appeal was dismissed. As to the constitutional issue, the court held that the impugned provisions of the IRPA scheme were not unconstitutional. They did not violate the named person's right to know and meet the case against him, or the right to have a decision made on the facts and the law. As to the privilege issue, the court, Abella and Cromwell, JJ., dissenting on this point, held that the identities of CSIS human sources and information that might reveal their identity were not protected by common law privilege and police informer privilege did not apply to CSIS human sources. The court declined to create a new privilege for CSIS human sources. The IRPA scheme already provided broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person. As to the special advocates' request to interview and cross-examine CSIS human resources, this was not one of those rare cases where it was necessary to grant such permission. As to the summaries of intercepted conversations, the designated judge made no reviewable errors in refusing to exclude the summaries. The court also rejected the special advocates' argument that proceedings should be stayed and that the Ministers failed in their duties of candour and utmost good faith by failing to make extensive inquiries of foreign intelligence agencies for information and evidence regarding several alleged terrorists with whom they claimed that Harkat had associated. Rather, with respect to evidence and information held by foreign intelligence agencies, the Ministers' duty was to make reasonable efforts to obtain updates and provide disclosure, which was done in this case. As to the reasonableness determination, the designated judge's determination of reasonableness of the certificate was entitled to deference and there was no basis for appellate interference in this case. That determination was reinstated.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - Reasonableness (incl. role of designated judge) - Harkat was the subject of a ministerial security certificate issued under the Immigration and Refugee Protection Act (IRPA) on the grounds of national security - Harkat and his special advocates contended that the IRPA scheme failed to provide a fair process to the named person, as required by s. 7 of the Charter - They argued that the regime was unconstitutional because it provided insufficient disclosure to the named person, did not allow the special advocates to communicate freely with the named person, and allowed for the admission of hearsay evidence - The Supreme Court of Canada concluded that the impugned provisions of the IRPA scheme were constitutional - They did not violate the named person's right to know and meet the case against him, or the right to have a decision made on the facts and the law - However, the court acknowledged that those provisions remained an imperfect substitute for full disclosure in an open court - There might be cases where the nature of the allegations and of the evidence relied upon exacerbated the limitations inherent to the scheme, resulting in an unfair process - In light of that reality, the designated judge had an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate, including, if necessary, a stay of proceedings - See paragraphs 28 to 77.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - Reasonableness (incl. role of designated judge) - Harkat was the subject of proceedings to determine the reasonableness of a ministerial security certificate issued under the Immigration and Refugee Protection Act (IRPA) on the grounds of national security - In accordance with the legislative amendments following Re Charkaoui #2 (SCC 2008), only summaries of confidential information relied on by the Ministers were provided to Harkat - However, special advocates, who were appointed to represent Harkat's interests, were given access to the confidential material - Harkat claimed that the new scheme was contrary to s. 7 of the Charter because disclosure was inadequate - The Supreme Court of Canada held that the IRPA scheme provided sufficient disclosure to the named person to be constitutionally compliant - The court noted that the designated judge had a statutory duty to ensure that the named person was reasonably informed of the Ministers' case throughout the proceedings - The absence of a balancing approach to the countervailing interests did not make the IRPA scheme's approach to disclosure contrary to s. 7 of the Charter - See paragraphs 40 to 66.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - The Immigration and Refugee Protection Act (IRPA) provided that the usual rules of evidence did not apply to the security certificate proceedings - Rather, any evidence that the judge determined to be "reliable and appropriate" was admissible (s. 83(1)(h)) - At issue was whether that denied the named person's s. 7 Charter rights, since the special advocates, who were appointed to protect the named person's interests, would be unable to meaningfully test the evidence (i.e., did the admission of hearsay evidence render the scheme unconstitutional) - The Supreme Court of Canada stated that "While s. 83(1)(h) ... may result in the admission of hearsay evidence and deny the special advocates the ability to cross-examine sources, it does not violate s. 7 of the Charter ... s. 7 guarantees a fundamentally fair process. The rule against hearsay evidence and the right to cross-examine witnesses simply provide a means towards such a process, by screening out unreliable evidence ... The IRPA scheme achieves this purpose of excluding unreliable evidence by alternative means. It provides the designated judge with broad discretion to exclude evidence that is not 'reliable and appropriate'. This broad discretion allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person" - See paragraphs 74 to 76.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - During ministerial security certificate proceedings respecting Harkat under the Immigration and Refugee Protection Act (IRPA), the special advocates wanted to know the identity of Canadian Security Intelligence Service (CSIS) covert human intelligence sources - The Supreme Court of Canada held that the IRPA provided a scheme to protect the identity of human sources - Under that scheme all information whose disclosure would be injurious to national security or endanger the safety of a person was protected form disclosure to the named person and to the public (s. 83(1)(d)) - In most cases, the disclosure of the identity of human sources would both be injurious to national security and endanger the safety of those sources - Consequently, their identity would generally be protected from disclosure under the IRPA scheme - As a limited exception to that general principle of non-disclosure, the IRPA scheme provided that special advocates got full disclosure of all the evidence provided by the Ministers to the judge (s. 85.4(1)) - The Ministers had no obligation, however, to disclose privileged materials to anyone - See paragraphs 78 to 82.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - During ministerial security certificate proceedings respecting Harkat under the Immigration and Refugee Protection Act (IRPA), the special advocates wanted to know the identity of Canadian Security Intelligence Service (CSIS) covert human intelligence sources - The Supreme Court of Canada held that the identities of CSIS human sources and information that might reveal their identity was not protected by common law privilege - Police informer privilege did not apply to CSIS human sources - The court declined to create a new privilege for CSIS human sources - The court noted that the IRPA scheme already provided broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person - See paragraphs 84 to 87.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - The Supreme Court of Canada stated that the identity of CSIS human sources was not privileged - However, it did not follow that special advocates had an unlimited ability to interview and cross-examine human sources - The court stated that "... the designated judge may admit information provided by these sources as hearsay evidence, if he concludes that the evidence is 'reliable and appropriate': s. 83(1)(h), IRPA. The Minister has no obligation to produce CSIS human sources as witnesses, although the failure to do so may weaken the probative value of his evidence. This said, the special advocates may 'exercise, with the judge's authorization, any other powers that are necessary to protect the interests' of the named person: s. 85.2(c), IRPA. The designated judge has the discretion to allow the special advocates to interview and cross-examine human sources in a closed hearing. This discretion should be exercised as a last resort. The record before us establishes that a generalized practice of calling CSIS human sources before a court, even if only in closed hearings, may have a chilling effect on potential sources and hinder CSIS' ability to recruit new sources. In most cases, disclosure to the special advocates of the human source files and other relevant information regarding the human sources will suffice to protect the interests of the named person" - See paragraphs 88 and 89.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - During ministerial security certificate proceedings respecting Harkat under the Immigration and Refugee Protection Act (IRPA), the special advocates wanted to interview and cross-examine the Canadian Security Intelligence Service (CSIS) covert human intelligence sources who had provided information against Harkat - The Supreme Court of Canada held that this was not one of those rare cases in which it was necessary to give special advocates permission to interview and cross-examine CSIS human sources - See paragraph 90.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - Harkat was the subject of proceedings to determine the reasonableness of a ministerial security certificate issued under the Immigration and Refugee Protection Act on the grounds of national security - The evidence filed by the Ministers included summaries of interviews between Harkat and intelligence officers and other conversations involving Harkat - The originals of the conversations had been destroyed pursuant to a Canadian Security Intelligence Service (CSIS) policy - Harkat sought to have the summaries of evidence excluded under s. 24(1) of the Charter, claiming that the destruction of the source materials resulted in a breach of s. 7 of the Charter (i.e., his right to disclosure) - The Supreme Court of Canada held that the destruction of operational notes constituted unacceptable negligence - Therefore, the Ministers failed to meet their disclosure obligations towards Harkat and breached s. 7 of the Charter - However, that did not necessarily mean that the summaries of those materials had to be excluded from evidence - The appropriate remedy had to be assessed on a case-by-case basis and tailored to address the prejudicial effect on the named person's case - The summaries should only be excluded under s. 24(1) if their admission would result in an unfair trial or would otherwise undermine the integrity of the justice system - Here, exclusion was not necessary to remedy the prejudice to Harkat's ability to know and meet the case against him, or to safeguard the integrity of the justice system - See paragraphs 91 to 99.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - Harkat was the subject of proceedings to determine the reasonableness of a ministerial security certificate issued under the Immigration and Refugee Protection Act on the grounds of national security - Special advocates were appointed to protect his interests - The special advocates argued that the Ministers failed in their duties of candour and utmost good faith by failing to make extensive inquiries of foreign intelligence agencies for information and evidence regarding several alleged terrorists with whom they claimed that Harkat had associated - The Supreme Court of Canada stated that with respect to evidence and information held by foreign intelligence agencies, the Ministers' duty was to make reasonable efforts to obtain updates and provide disclosure - What constituted reasonable efforts turned on the facts of each case - Here, reasonable efforts were made by the Ministers - See paragraphs 100 to 103.

Aliens - Topic 1560

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Evidence - [See first Aliens - Topic 1561 ].

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness (incl. role of designated judge) - A designated judge determined that a ministerial security certificate issued under the Immigration and Refugee Protection Act which named Harkat as a person who was inadmissible to Canada on grounds of national security was reasonable - Harkat claimed that the designated judge erred in his weighing of the evidence - The Supreme Court of Canada held that the designated judge's weighing of the factual evidence on the record was entitled to appellate deference and should only be interfered with if he committed a palpable and overriding error - There was no basis for interference in this case - See paragraphs 107 to 109.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness (incl. role of designated judge) - [See first, second and third Aliens - Topic 1560 ].

Aliens - Topic 1561.3

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Special advocates - Harkat was the subject of a ministerial security certificate on the grounds of national security issued under the Immigration and Refugee Protection Act (IRPA) - Because the named person and his public counsel did not have access to the closed record, nor could they participate in the closed hearings, Parliament added the role of special advocates to the IRPA scheme so that they could serve as a proxy for the named person in the closed portion of the proceedings - There were communications restrictions imposed on the special advocates which required judicial authorization for any communication regarding the proceedings between the special advocates and the named person or a third party after the special advocates had received confidential materials - Harkat claimed that the restrictions on the special advocates' ability to communicate with the named person prevented them from effectively protecting the named person's interests contrary to s. 7 of the Charter - He also contended that the special advocates would be unable to seek judicial authorization without breaching solicitor-client privilege - The Supreme Court of Canada held that the communications restrictions did not render the scheme unconstitutional - The solicitor-client privilege issue should only be decided if and when it arose - See paragraphs 67 to 73.

Aliens - Topic 1561.3

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Special advocates - [See first, second, third, fourth, fifth, sixth and seventh Aliens - Topic 1560 ].

Aliens - Topic 1562

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summary of information - [See second and eighth Aliens - Topic 1560 ].

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - [See first, second, fourth, fifth, sixth, seventh, eighth and ninth Aliens - Topic 1560 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration (incl. security certificate procedure) - [See first, second, third and eighth Aliens - Topic 1560 and first Aliens - Topic 1561.3 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion (incl. security certificate procedure) - [See first, second, third and eighth Aliens - Topic 1560 and first Aliens - Topic 1561.3 ].

Civil Rights - Topic 3180

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Fair hearing - [See first, second, third and eighth Aliens - Topic 1560 and first Aliens - Topic 1561.3 ].

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, second, third and eighth Aliens - Topic 1560 and first Aliens - Topic 1561.3 ].

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure contrary to fundamental justice - [See eighth Aliens - Topic 1560 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See first, second, and third Aliens - Topic 1560 and first Aliens - Topic 1561.3 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See first and eighth Aliens - Topic 1560 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See first Aliens - Topic 1560 ].

Courts - Topic 4806

Common law - General - Hearings - Open court - On an appeal involving the reasonableness of a ministerial security certificate issued under the Immigration and Refugee Protection Act and related issues, the Ministers requested that the court conduct two distinct hearings, one open to the public and the other behind closed doors - The Supreme Court of Canada stated that, having heard the confidential submissions, it was in the court's view unnecessary to conduct a portion of the appeal behind closed doors - The court stated that the open court principle was "a hallmark of a democratic society and applies to all judicial proceedings" - National security does not negate the open court principle - The court stated that "The issues in this appeal do not turn on confidential information and could have been debated fully in public without any serious risk of disclosure, supplemented where necessary by brief closed written submissions and by the closed record. The special advocates could have been given judicial permission to make public submissions, so long as they refrained from disclosing confidential information ... The content of the closed hearing overlapped significantly with the open hearing and did not assist this Court in deciding the issues before it. It served only to foster an appearance of opacity of these proceedings, which runs contrary to the fundamental principles of transparency and accountability" - See paragraphs 23 to 26.

Evidence - Topic 4143

Witnesses - Privilege - Privileged topics - Official secrets, state or public documents, international relations, national defence or national security - [See fourth, fifth, sixth and seventh Aliens - Topic 1560 ].

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informers - [See fifth Aliens - Topic 1560 ].

Evidence - Topic 4150.3

Witnesses - Privilege - Privileged topics - Covert human intelligence source privilege (incl. CSIS informers) - [See fourth, fifth, sixth and seventh Aliens - Topic 1560 ].

National Security - Topic 1008

Canadian Security Intelligence Service - General - Disclosure of information - [See fourth, fifth, sixth, seventh and eighth Aliens - Topic 1560 ].

Practice - Topic 5001

Conduct of trial - General principles - Open court - General - [See Courts - Topic 4806 ].

Cases Noticed:

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 6].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 24].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 24].

Bank Mellat v. United Kingdom (Her Majesty's Treasury), [2013] N.R. Uned. 98; [2013] 4 All E.R. 495; [2013] UKSC 38, refd to. [para. 24].

Almrei, Re, [2009] 3 F.C.R. 497; 331 F.T.R. 301; 2008 FC 1216, refd to. [para. 36].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 43].

R. v. Ahmad (F.), [2011] 1 S.C.R. 110; 411 N.R. 320; 274 O.A.C. 120; 2011 SCC 6, refd to. [para. 55].

United Kingdom (Secretary of State for the Home Department) v. A.F. et al., [2009] N.R. Uned. 194; [2009] 3 All E.R. 643; [2009] UKHL 28, refd to. [para. 56].

Jaballah, Re (2009), 340 F.T.R. 43; 2009 FC 279, refd to. [para. 62].

Canada (Attorney General) v. Almalki et al., [2012] 2 F.C.R. 508; 377 F.T.R. 186; 2010 FC 1106, refd to. [para. 63].

Khadr v. Canada (Attorney General) (2008), 329 F.T.R. 80; 2008 FC 549, refd to. [para. 63].

Almrei, Re (2009), 342 F.T.R. 11; 2009 FC 322, refd to. [para. 73].

Jones v. Smith, [1999] 1 S.C.R. 455; 236 N.R. 201; 120 B.C.A.C. 161; 196 W.A.C. 161, refd to. [para. 73].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 76].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 76].

Charkaoui, Re, [2008] 2 S.C.R. 326; 376 N.R. 154; 2008 SCC 38, refd to. [paras. 85, 125].

R. v. N.Y. (2012), 298 O.A.C. 297; 113 O.R.(3d) 347; 2012 ONCA 745, refd to. [paras. 86, 120].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 2010 SCC 16, refd to. [para. 87].

Canada (Attorney General) v. Almalki et al., [2012] 2 F.C.R. 594; 420 N.R. 91; 2011 FCA 199, refd to. [para. 87].

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, refd to. [para. 93].

R. v. Bjelland (J.C.), [2009] 2 S.C.R. 651; 391 N.R. 202; 460 A.R. 230; 462 W.A.C. 230; 2009 SCC 38, refd to. [para. 95].

R. v. Bero (C.) (2000), 137 O.A.C. 336 (C.A.), refd to. [para. 97].

R. v. J.G.B. (2001), 139 O.A.C. 341 (C.A.), refd to. [para. 97].

Almrei, Re, [2011] 1 F.C.R. 163; 355 F.T.R. 222; 2009 FC 1263, refd to. [para. 101].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 103].

R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269; 83 W.A.C. 269, refd to. [para. 103].

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, refd to. [para. 106].

R. v. Babos (A.) (2014), 454 N.R. 86; 2014 SCC 16, refd to. [para. 106].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 108].

Bisaillon v. Keable et al., [1983] 2 S.C.R. 60; 51 N.R. 81, refd to. [para. 116].

Rice v. National Parole Board (1985), 16 Admin. L.R. 157 (F.C.T.D.), refd to. [para. 116].

Wilson v. National Parole Board (1985), 10 Admin. L.R. 171 (F.C.T.D.), refd to. [para. 116].

Cadieux v. Mountain Institution, [1985] 1 F.C. 378 (T.D.), refd to. [para. 116].

A. v. Drapeau (2012), 393 N.B.R.(2d) 76; 1017 A.P.R. 76; 2012 NBCA 73, refd to. [para. 116].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 118].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1, refd to. [para. 118].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

R. v. Basi (U.S.) et al., [2009] 3 S.C.R. 389; 395 N.R. 240; 277 B.C.A.C. 305; 469 W.A.C. 305, refd to. [para. 119].

Central Intelligence Agency v. Sims (1985), 471 U.S. 159, refd to. [para. 121].

Solicitor General of Canada et al. v. Royal Commission of Inquiry into Confidentiality of Health Records in Ontario et al., [1981] 2 S.C.R. 494; 38 N.R 588, refd to. [para. 122].

R. v. F.A. et al., [2009] O.T.C. Uned. X66 (Sup. Ct.), refd to. [para. 127].

R. v. Debot, [1989] 2 S.C.R. 1140; 102 N.R. 161; 37 O.A.C. 1, refd to. [para. 128].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161, refd to. [para. 128].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R. 574; 376 N.R. 327, refd to. [para. 133].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 28]; sect. 24(1) [para. 77].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 83(1)(d) [para. 81, Appendix]; sect. 83(1)(e) [para. 51, Appendix]; sect. 83(1)(h) [para. 74, Appendix]; sect. 83(1)(i) [para. 52, Appendix]; sect. 85.2(c) [para. 89, Appendix]; sect. 85.4(1) [para. 82, Appendix]; sect. 85.4(2) [para. 69, Appendix].

Authors and Works Noticed:

Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Security and Information: First Report (McDonald Commission Report) (1979), p. 42 [para. 123].

Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security under the Law: Second Report (McDonald Commission Report (1981), vols. 1, 2, pp. 1162 to 1163 [para. 123].

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. 302 [para. 63].

Canada, Parliamentary Research Branch, The Canadian Security Intelligence Service (2000), Current Issue Rev. 84-27E, p. 4 [para. 124].

Cole, David, Fabbrini, Federico, and Vedaschi, Arianna, Secrecy, National Security and the Vindication of Constitutional Law (2013), p. 16 [para. 35].

Forcese, Craig, and Waldman, Lorne, Seeking Justice in an Unfair Process: Lessons from Canada, the United Kingdom, and New Zealand on the Use of "Special Advocates" in National Security Proceedings (2007), p. 60 [para. 46].

Forcese, Craig, Canada's National Security "Complex": Assessing the Secrecy Rules (2009), 15:5 I.R.P.P. Choices 3, generally [para. 63].

Forcese, Craig, National Security Law: Canadian Practice in International Perspective (2008), p. 402 [para. 24].

Goold, B.J., and Lazarus, L., Security and Human Rights (2007), p. 233 [para. 7].

McDonald Commission Report - see Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Freedom and Security under the Law: Second Report.

McDonald Commission Report - see Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police, Security and Information: First Report.

McGarrity, Nicola, Lynch, Andrew, and Williams, George, Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (2010), p. 48 [para. 85].

Paciocco, David M., When Open Courts Meet Closed Government (2005), 29 S.C.L.R.(2d) 385, pp. 391 to 395 [para. 24].

Roach, Kent, Sources and Trends in Post-9/11 Anti-Terrorism Laws, in Goold, B.J., and Lazarus, L., Security and Human Rights (2007), p. 233 [para. 7].

Roach, Kent, The eroding distinction between intelligence and evidence in terrorism investigations, in McGarrity, Nicola, Lynch, Andrew, and Williams, George, Counter-Terrorism and Beyond: The Culture of Law and Justice after 9/11 (2010), p. 48 [para. 85].

Schiff, Stanley, Evidence in the Litigation Process (4th Ed. 1993), vol. 2, pp. 1550 to 1556 [para. 115].

Sedley, Stephen, Terrorism and Security: Back to the Future?, in Cole, David, Fabbrini, Federico, and Vedaschi, Arianna, Secrecy, National Security and the Vindication of Constitutional Law (2013), p. 16 [para. 35].

Stewart, Hamish, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (2012), p. 229 [para. 66].

Wigmore, John Henry, Evidence in Trials at Common Law (McNaughton Rev. 1961), vol. 8, pp 761, 767 to 768 [para. 117].

Counsel:

Urszula Kaczmarczyk, Q.C., Robert Frater, Marianne Zoric and André Séguin, for the appellants/respondents on cross-appeal;

Matthew C. Webber, Norman D. Boxall, Meaghan Thomas and Leo Russomanno, for the respondent/appellant on cross-appeal;

Robert W. Hubbard and Greg Skerkowski, for the intervener, the Attorney General of Ontario;

Nader R. Hasan and Gerald Chan, for the intervener, the British Columbia Civil Liberties Association;

John Norris and François Dadour, for the intervener, the Canadian Council of Criminal Defence Lawyers;

Anil K. Kapoor and Lindsay Trevelyan, for the intervener, the Canadian Civil Liberties Association;

Lorne Waldman, Peter Edelmann, Jacqueline Swaisland and Clare Crummey, for the intervener, the Canadian Bar Association;

Marlys A. Edwardh and Adriel Weaver, for the intervener, the Canadian Association of Refugee Lawyers;

Barbara Jackman, Sharryn J. Aiken and Andrew J. Brouwer, for the interveners, the Canadian Council for Refugees and the International Civil Liberties Monitoring Group;

Faisal Bhabha and Khalid M. Elgazzar, for the intervener, the Canadian Council on American-Islamic Relations (now known as National Council of Canadian Muslims);

Michael Bossin, Laïla Demirdache and Anna Shea, for the intervener, Amnesty International;

Breese Davies and Erin Dann, for the intervener, the Criminal Lawyers' Association (Ontario);

Paul J.J. Cavalluzzo and Paul D. Copeland, as Special Advocates.

Solicitors of Record:

Attorney General of Canada, Toronto, Ontario and Ottawa, Ontario, for the appellants/respondents on cross-appeal;

Webber Schroeder Goldstein Abergel, Ottawa, Ontario; Bayne, Sellar, Boxall, Ottawa, Ontario, for the respondent/appellant on cross-appeal;

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

Ruby Shiller Chan Hasan, Toronto, Ontario, for the intervener, the British Columbia Civil Liberties Association;

John Norris, Toronto, Ontario; Poupart, Dadour, Touma & Associés, Montreal, Quebec, for the intervener, the Canadian Council of Criminal Defence Lawyers;

Kapoor Barristers, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Waldman & Associates, Toronto, Ontario; Edelmann & Co., Vancouver, British Columbia, for the intervener, the Canadian Bar Association;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Canadian Association of Refugee Lawyers;

Jackman Nazami & Associates, Toronto, Ontario; Queen's University, Kingston; Refugee Law Office, Toronto, Ontario, for the interveners, the Canadian Council for Refugees and the International Civil Liberties Monitoring Group;

Office Khalid Elgazzar, Barrister, Ottawa, Ontario; Osgoode Law School of York University, Toronto, Ontario, for the intervener, the Canadian Council on American-Islamic Relations (now known as National Council of Canadian Muslims);

Community Legal Services-Ottawa Centre, Ottawa, Ontario; Amnesty International Canada, Ottawa, Ontario, for the intervener, Amnesty International;

Breese Davies Law, Toronto, Ontario; Di Luca Copeland, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Cavalluzzo Shilton McIntyre Cornish, Toronto, Ontario; Copeland, Duncan, Toronto, Ontario, for the Special Advocates.

This appeal was heard on October 10 and 11, 2013, before McLachlin, C.J.C., LeBel, Abella, Rothstein, Cromwell, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. The judgment of the Supreme Court was delivered in both official languages on May 14, 2014, and included the following opinions:

McLachlin, C.J.C. (Lebel, Rothstein, Moldaver, Karakatsanis and Wagner JJ., concurring) - see paragraphs 1 to 112;

Abella and Cromwell, JJ., dissenting in part - see paragraphs 113 to 139.