The case is primarily about the duties of the Canadian Security Intelligence Service (“CSIS”) to disclose information in regards to the individuals against whom a security certificate has been issued.  It is an appeal by the applicant, Adil Charkaoui, in regards to the application for a stay of the judicial proceeding connected with the security certificate issued against him under s 77 of the Immigration and Refugee Protection Act SC2001 c 27 (“IRPA”) on the grounds that the disclosure procedures in the course of the proceeding were not followed correctly.

The Court concludes that the proceedings were not correctly followed in this case.  It asserts that CSIS has a duty to disclose to the ministers all information regarding the person named in a security certificate.  In order to do that, CSIS cannot destroy what it is bound to disclose.   Although CSIS breached its duty, the Court is nevertheless satisfied that a stay of the security certificate proceedings is not appropriate in this case.  

Facts

On May 9, 2003, the respondents, the Minister of Citizenship and Immigration and the Solicitor General (“the ministers”) signed a security certificate against the appellant and on May 21, 2003 the appellant was detained.  A review commenced on May 23, 2003 by the Federal Court to determine whether the certificate was reasonable.   At an in camera hearing on January 5, 2005, the respondents revealed that due to an oversight they did not disclose to the appellant a document – a summary of two interviews with CSIS – that should have been disclosed at the outset of the proceedings in 2003.  The judge ordered disclosure of the summary to the appellant.  In the same hearing, the counsel for the respondents filed fresh allegations about the appellant based on new evidence.  The judge granted delay to the appellant to take cognizance of the new evidence.

The appellant filed a motion to exclude the new evidence and request the complete documentation of the two interviews.  The ministers informed the judge that the documentation was destroyed in accordance with CSIS’s internal policy, OPS-217.  The appellant accordingly filed a motion for a stay of the proceedings, in which he asked that the certificate be quashed and that he be released.  The case arises out of this motion.

The appellant alleges that the proceeding should be quashed because of: 1) the breach of the government duty to disclose relevant information in its possession and to do so in a timely manner; 2) the impermissibility of reliance by the respondent ministers on the evidence obtained after the issuance of the security certificate.

The appellant’s application to quash the proceeding was rejected at the Federal Court in 2005.  At the Court of Appeal, the judge rejected the claim, but found that s 12 of the Canadian Security Intelligence Act RSC 1985 c C-23 (“the CSIS Act”), contrary to OPS-217, does not permit destruction of information retained by CSIS.  Regarding the new evidence, the judge asserted that according to s 78 (b)-(e), (j) of IRPA, the Parliament’s intention was to allow the judge to receive evidence on which the certificate is based, whether or not it would be admissible in a court of law.

Issues

The Court narrowed the issues to retention and disclosure of information in the possession of CSIS.

a)    What are the nature and scope of the CSIS duty to retain information?

b)   Does CSIS have a duty to disclose information in its possession? If so, what are the bases and scope of the duty to disclose?

c)    What are the consequences of delays in disclosing information to the designated judge and what is the appropriate remedy?

d)   May the designated judge admit new evidence after the security certificate has been issued? Is new evidence admissible at any stage of the proceedings? If so, how does admitting this evidence affect the validity of the certificate?

Analysis

The nature and scope of CSIS duty to retain information

The respondents argue that the CSIS policy (OPS-217) that requires destruction of operational notes is justified by s 12 of the CSIS Act.  After examining the Act and the policy the Court asserts that the policy misinterpreted the Act and is not justified.

After the Court discusses the origin, duty and functions of CSIS, it addresses the validity of the policy responsible for destruction of operational notes in light of s 12 of the CSIS Act, which deals with the management of operational notes.  The Court notes that s 12 requires that CSIS retain its operational notes to the extent that it is strictly necessary in order to carry out its mandate.  The Court contends that retention of operational notes rather than their destruction better fulfills CSIS’s purpose of accurately providing relevant information to the government and the judiciary.  Assessment of the reasonableness of a security certificate may be compromised by the destruction of original documents.  The Court concludes that CSIS has a duty to retain information.

The Court qualifies that duty.  The duty to retain information exists when CSIS conducts investigations that are not of general nature and that target particular individuals or groups.  The duty does not guarantee procedural fairness where, on “national security grounds or for other reasons” (para 45), facts must remain secret for persons named in a security certificate, where transcripts of interviews are inaccurate or when information goes missing.

The Court was not ready to declare investigations pursuant to s 12 and the policy OPS-217 to be unlawful.  The gravity of such investigations should be analysed on a case by case basis.

The bases and scope of the duty to disclose

The respondents argue that the proceeding to determine whether a security certificate is reasonable is purely administrative and therefore does not result in the duty to disclose the way a criminal proceeding does.  The Court concludes that the proceeding triggers s 7 rights and requires disclosure.

In R v La [1997] 2 SCR 680 the court concluded that the duty to disclose is included in the rights protected by s 7.  Following the judgement in Ruby v Canada [2002] 4 SCR 3, the Court adopts a contextual approach in assessing degrees of procedural fairness to which an individual is entitled.  Relying on these precedents, the Court concludes that the consequences of issuance of a security certificate, such as detention, trigger s 7 protection and demand great respect for procedural fairness.  Since CSIS investigations play a central role in the issuance of a security certificate and removal orders, disclosure of all information in a manner consistent with public safety interests is required to protect the fundamental s 7 rights.

An individual named in a certificate is entitled to information during the validity of a certificate and the detention review stages.  However, the judge has to determine what non-prejudiced information to reveal to that individual.

Delay in disclosing

Information from CSIS was not revealed to the applicant right away.  The judge granted the applicant a postponement to examine additional information before testifying.  The Court found that by granting postponement the judge granted the appropriate remedy to the delay and averted the prejudice that might have been caused by the delay.

Admissibility of new evidence after the security certificate has been issued

The applicant complains that since new evidence was added 18 months after the certificate has been issued, the ministers did not have all the information to make an informed initial decision about the certificate.  Therefore, the new evidence is not admissible.  The Court asserts that new evidence is admissible at any stage of the proceeding.

The Court agrees with the Court of Appeal that new evidence should be admitted at any stage of the judicial review. The Court also notes that for security purposes it might be necessary to issue a certificate and detain an individual with incomplete evidence, provided that at the time of the detention review there is sufficient evidence to justify the detention.  Furthermore, since new evidence can benefit those in the positions of the applicant and the respondents, receiving new evidence in the course of the verification process is fairer.

Remedies

The applicant asks for the proceedings to be stayed. The Court does not find stay to be an appropriate remedy in this case.

The Court concludes that given the finality of a stay as a remedy, it is not appropriate at this stage.  Since stay should only be adopted as the last resort (R v Regan) and this is an appeal from an interlocutory judgement, stay is not appropriate.  The court indicates that at this stage other remedies are available.  Furthermore, since it is a remedy that is used in cases of prejudice (R v O’Connor) stay is not appropriate because it is too early to determine how the destruction of the notes affects the reliability of the evidence.  The only appropriate remedy is to confirm the duty to disclose all the information to the judge and the applicant.

Disposition

The appeal from the decision of the Federal Court of Appeal is allowed in part with costs to the appellant throughout.  However, the application for a stay of proceedings is dismissed.

Relevant Statutes

Immigration and Refugee Protection Act SC2001 c 27, ss 77, 78

http://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-21.html#h-31

Canadian Security Intelligence Act RSC 1985 c C-23, s 12

http://laws-lois.justice.gc.ca/eng/acts/C-23/page-4.html#docCont

Caselaw

R v La [1997] 2 SCR 680

http://scc.lexum.org/en/1997/1997scr2-680/1997scr2-680.pdf

Ruby v Canada [2002] 4 SCR 3

http://csc.lexum.org/en/2002/2002scc75/2002scc75.pdf

R v Regan [2002] 1 SCR  297

http://scc.lexum.org/en/2002/2002scc12/2002scc12.pdf

R v O’Connor [1995] 4 SCR 411

http://www.westcoastleaf.org/userfiles/file/1995-OConnor-SCC-Decision.pdf