Harkat, Re 2012 FCA 122
Aliens - Exclusion and expulsion - Power to detain and deport - Minister’s certificate - Review - Evidence
In 2002, Harkat 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, 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.
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 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. Harkat brought a motion seeking the exclusion of the summaries of conversations as evidence, based on the doctrine of abuse of process (i.e., because the original conversations from which the summaries were prepared had been destroyed). Alternatively, he sought a stay of proceedings under s. 24(1) of the Charter.
The Federal Court, in a decision reported 380 F.T.R. 255; 2010 FC 1243 (the Abuse of Process Decision), dismissed the motion.
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 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.