Mohamed Harkat (appellant) v. The Minister of Citizenship and Immigration and The Ministerof Public Safety and Emergency Preparedness (respondents)

(A-76-11; 2012 FCA 122; 2012 CAF 122)

Indexed As: Harkat, Re

Federal Court of AppealBlais, C.J., Létourneau and Layden-Stevenson, JJ.A.

April 25, 2012.

Summary: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 ongrounds of national security. Numerous security certificate proceedings ensued. In 2006 he wasreleased from detention on stringent conditions, which were substantially modified over time infavour of Harkat. Another security certificate was issued in 2008 when a new security certificateregime was implemented following the Supreme Court of Canada's constitutional rulings in ReCharkaoui #1 (SCC 2007). Harkat's case was referred to the court to determine thereasonableness of the 2008 certificate. In accordance with the amended legislation, specialadvocates were appointed to protect Harkat's interests. Also, in accordance with the proceduralrulings in Re Charkaoui #2 (SCC 2008), Harkat became entitled to additional disclosure from theCanadian Security Intelligence Service (CSIS). The special advocates requested access to humansources who provided information to CSIS regarding Harkat. That is, the special advocateswanted to know the identity of the covert human intelligence sources and have them madeavailable 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 PrivilegeDecision), denied the special advocates' requests on the basis of "covert human intelligencesource privilege" (i.e., the judge extended the police informer common law privilege to coverthuman intelligence sources, subject to a "need to know" exception). The reasonablenessproceedings proceeded.

The Federal Court, in a decision reported 380 F.T.R. 81; 2010 FC 1241 (theReasonableness Decision), held that the issuance of the security certificate was reasonable.Therefore, the security certificate issued against Harkat on security grounds was upheld. Harkatbrought a motion challenging the constitutionality of a number of provisions of the IRPA relatingto 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 communicationsinvolving special advocates)). Harkat claimed that those provisions violated s. 7 of the Charter inthat they did not provide for fair trial standards, failed to grant to the named person the right toknow and answer the case made against him and made it impossible for the Court to render asufficiently 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 (theConstitutionality 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 proceedingsunder s. 24(1) of the Charter.

The Federal Court, in a decision reported 380 F.T.R. 255; 2010 FC 1243 (the Abuse ofProcess Decision), dismissed the motion.

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

"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 ofRights and Freedoms by denying the person concerned the right toa 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 respectingthe Privilege Decision, the Reasonableness Decision, the Constitutionality Decision and theAbuse of Process Decision referred to above.

The Federal Court of Appeal answered the certified questions in the negative. The courtdismissed the appeal with respect to the Constitutionality Decision. The court allowed the appealwith respect to the Privilege Decision, set it aside and declared that CSIS human sources do notbenefit from the police informer class privilege or a class privilege analogous to the policeinformer class privilege. The court allowed the appeal with respect to the Abuse of ProcessDecision, set it aside and allowed Harkat's motion and ordered that the confidential summariesmade of the destroyed originals of the conversations be excluded as evidence, except for theconversations that Harkat was privy to. The court also allowed the appeal with respect to theReasonableness Decision, set it aside and referred the matter to the designated judge for a newdetermination of the reasonableness of the security certificate on the basis of the evidence on therecord, excluding the confidential summaries made of the destroyed originals of theconversations to which Harkat was not privy. In light of the exclusion, further submissions on thecertificate's reasonableness were necessary and it would be up to the designated judge todetermine 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 towhich he was privy was violated.

Aliens - Topic 1560Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Evidence - During ministerial security certificate proceedings respecting Harkat, thespecial advocates wanted to know the identity of Canadian Security Intelligence Service(CSIS) covert human intelligence sources and cross-examine them in the closed doorproceedings - The designated judge 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) - Harkat appealed, claiming that the restrictions on cross-examination defeatedhis ability to know and meet the case against him - The Federal Court of Appeal allowedthe appeal and declared that CSIS human sources did not benefit from the police informerclass privilege or a class privilege analogous to the police informer class privilege andthat the judiciary should neither create nor extend a class privilege for those sources - Seeparagraphs 25 to 28, and 88 to 105 and 158.

Aliens - Topic 1560Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Evidence - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Acton the grounds of national security - The evidence filed by the Ministers includedsummaries of interviews between Harkat and intelligence officers and otherconversations involving Harkat - The originals of the conversations had been destroyedpursuant to a Canadian Security Intelligence Service (CSIS) policy (a policy since struckdown in Charkaoui #2 (SCC 2008)) - Harkat sought to have the summaries of evidenceexcluded based on the doctrine of abuse of process or a remedy under s. 24(1) of theCharter, claiming that his right to disclosure (Charter, s. 7) was breached - The FederalCourt of Appeal held that the destruction of the original records constituted a breach ofthe duty to disclose - Disclosure to the special advocates was not a sufficient remedy forthe destruction of the originals - Rather, the court ordered that all the summaries beexcluded except those conversations to which Harkat was privy - The court rejected theabuse of process argument - See paragraphs 48 to 52 and 122 to 147 and 159.

Aliens - Topic 1560Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Evidence - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Act(IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), only summaries of confidentialinformation relied on by the Ministers were provided to Harkat but special advocates,who were appointed to represent Harkat's interests, were given access to the confidentialmaterial - Harkat claimed that the new system imposed undue restrictions on disclosureto the point that it was unconstitutional - By being provided with just summaries, Harkatclaimed that he was deprived of the ability to know and answer the case against him - Inaddition, the actual restrictions on disclosure hampered his right to cross-examination,thereby bereaving him of the ability to meet the case - The Federal Court of Appealrejected Harkat's argument - The court stated that the disclosure provided for in therevised IRPA, when combined with the procedural safeguard of special advocates was inaccordance with the principles of fundamental justice - See paragraphs 83 to 85.

Aliens - Topic 1560Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Evidence - Harkat was the subject of proceedings to determine the reasonableness of aministerial 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), summaries of confidentialinformation provided by human sources were provided to Harkat - Harkat claimed thathis right to cross-examination was hampered and truncated to the point that it defeated hisability to know and meet the case against him - The Federal Court of Appeal noted thatthe special advocates, who were appointed to protect Harkat's interests, had access to thehuman sources' confidential information on behalf of a named person - They couldchallenge the reliability of that information using other pieces of confidential informationthey were entitled to receive as well as information provided by the named person or hiscounsel - The court did not believe that the right to cross-examination was so restricted asto make the system unconstitutional - See paragraphs 86 and 87.

Aliens - Topic 1560Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Evidence - Harkat was the subject of ministerial security certificate reasonablenessproceedings under the Immigration and Refugee Protection Act (IRPA) - Harkat assertedthat non-disclosure of hearsay evidence that was subject to the third party rule, coupledwith the fact that hearsay evidence could be admitted in security certificate proceedingspursuant to s. 83(1)(h) of the IRPA, severely curtailed and, in many cases, deprived himof his right to cross-examination - The Third Party rule referred to information receivedfrom a third party, usually a foreign agency, under the seal of confidentiality and with anundertaking not to disclose its contents and the source without the consent of that ThirdParty - Harkat claimed that this was yet another restriction on disclosure whichcontributed to the unconstitutionality of the system in place because it deprived him ofhis right to know and meet the case against him - The Federal Court of Appeal held thatthe limits on disclosure and the right to cross-examination resulting from the Third Partyrule were in accordance with the principles of fundamental justice and did not renderunconstitutional the current system as long as adequate substitutes were in place toprovide a fair hearing - See paragraphs 106 to 112.

Aliens - Topic 1561Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Reasonableness (incl. role of designated judge) - A ministerial security certificate issuedunder the Immigration and Refugee Protection Act which named Harkat as a person whowas inadmissible to Canada on grounds of national security was referred to the court for areasonableness hearing - The Federal Court upheld the certificate - Harkat appealed - TheFedeal Court of Appeal allowed the appeal and referred the matter to the designatedjudge for a new determination of the reasonableness of the security certificate on thebasis of the evidence on the record, but excluding the confidential summaries of thedestroyed originals of conversations to which Harkat was not privy - See paragraphs 29to 37 and 146 to 154 and 159.

Aliens - Topic 1561Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Reasonableness - [See third Civil Rights - Topic 1560 and first Aliens - Topic 1561.3].

Aliens - Topic 1561.3Exclusion and expulsion - Power to detain and deport - Minister's certificate - Special

advocates - Harkat was the subject of a ministerial security certificate on the grounds ofnational security issued under the Immigration and Refugee Protection Act (IRPA) -Harkat claimed that a number of provisions of the IRPA relating to the security certificatereasonableness review scheme were contrary to s. 7 of the Charter (s. 77(2) (filing ofevidence and summary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure) and ss.85.4(2) and 85.5(b) (restrictions on communications involving special advocates,including preauthorization requirements)) - The Federal Court (ConstitutionalityDecision) found that the provisions were constitutional - Harkat appealed - The FederalCourt of Appeal dismissed the appeal respecting the Constitutionality Decision - Thejudge did not err when he concluded that the current security certificate regime was inaccordance with the principles of fundamental justice because it allowed a named personto sufficiently know and meet the case against him - The new scheme respected theindividuals right to life, liberty and security of the person - See paragraphs 38 to 47 and70 to 120 and 157.

Aliens - Topic 1561.3Exclusion and expulsion - Power to detain and deport - Minister's certificate - Specialadvocates - Harkat was the subject of a ministerial security certificate on the grounds ofnational security issued under the Immigration and Refugee Protection Act (IRPA) -Special advocates were appointed to protect his interests - Harkat claimed restrictionsimposed on the special advocates' right to communicate with him affected their ability toadequately defend his interests - Under ss. 85.4 and 85.5(b) of the IRPA, the specialadvocates were prohibited from communicating with the named person or any personafter they have received the confidential information given to the judge by the Ministers -- The Federal Court of Appeal stated that ss. 85.4 and 85.5 had built in the flexibilitynecessary to ensure the fairness of the process and the protection of national security andthe safety of the person - The judge had the authority to lift the ban on communicationand to impose conditions consistent with those objectives - See paragraphs 113 to 116.

Aliens - Topic 1561.3Exclusion and expulsion - Power to detain and deport - Minister's certificate - Specialadvocates - [See third and fourth Aliens - Topic 1560].

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - Harkat, who was the subject of security certificate reasonablenessproceedings, argued that in enacting ss. 77(2) and 83(1) of the Immigration and RefugeeProtection Act, Parliament failed to implement the fairness threshold established by theSupreme Court in the Charkaoui #1 decision (SCC 2007) (i.e., by simply requiring thatthe named person "be reasonably informed of the case made by the Minister in theproceeding" while the Supreme Court ruled that he had to be sufficiently informed of thecase put against him so as to be able to meet that case) - The Federal Court of Appealrejected that argument - The French version of the legislation actually used the verywords ""suffisamment informé' (sufficiently informed) de la thèse du ministre à l'égard del'instance en cause" - The French version was in that respect more precise than theEnglish version, more favourable to the named person and more compliant with thefairness requirement of s. 7 of the Charter - Both texts, English and French, had equal

force and the French version was to be preferred - Moreover, the court agreed that theconcept of "reasonably informed" was subject to and qualified by s. 7 of the Charter (i.e.,the named person had to be informed to the point that he knew the case against him andwas able to meet it) - See paragraphs 73 to 77.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - Harkat, who was the subject of security certificate reasonablenessproceedings, argued that the designated judge applied a more diluted test than the testrequired by s. 7 of the Charter with respect to disclosure of information - The judgeallegedly limited Harkat's knowledge of the case against him to a knowledge that enabledhim simply to respond to the case rather than enabling him to challenge the case againsthim, to contradict the allegations and attack the credibility of informants - The FederalCourt of Appeal held that this argument had no merit and stated that it was somewhatunfair to the judge who referred to and applied the test as formulated by the SupremeCourt in Charkaoui #1 (i.e., a fair hearing required the affected person be informed of thecase against him and be permitted to respond to that case) - Regardless of the languageused by the judge, it was obvious throughout his reasoning that he applied the proper testdictated by s. 7 - See paragraphs 78 to 82.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - The Immigration and Refugee Protection Act (IRPA), s. 77(2) providedthat when a security certificate was referred to the court for a reasonablenessdetermination, "the Minister shall file with the Court the information and other evidenceon which the certificate is based, and a summary of information and other evidence thatenables the person who is named in the certificate to be reasonably informed of the casemade by the Minister but that does not include anything that, in the Minister's opinion,would be injurious to national security or endanger the safety of any person if disclosed"-Pursuant to s. 83(1) the designated judge was to ensure that the summary was provided tothe person named in the certificate but that other information was protected fromdisclosure - The Federal Court of Appeal stated that ss. 77(2) and 83(1)(c) accorded withthe principles of fundamental justice (Charter, s. 7) - See paragraphs 70 to 82.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - [See all Aliens - Topic 1560 and first Aliens - Topic 1561.3].

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - [See all Aliens - Topic 1560, first and second Aliens - Topic 1561.3 andfirst, second and third Aliens - Topic 1562].

Aliens - Topic 4069Practice - Judicial review and appeals - Certification of question of general importance byFederal Court - The Federal Court of Appeal noted that where a question was certified forappellate consideration under s. 82.3 of the Immigration and Refugee Protection Act, the

appeal court was not confined to answering the stated question or issues directly relatedto it - All issues raised by the appeal could be considered - See paragraphs 3 to 9.

Civil Rights - Topic 660.2Liberty - Limitations on - Immigration (incl. security certificate procedure) - [See firstAliens - Topic 1561.3].

Civil Rights - Topic 1325Security of the person - Immigration - Deportation, removal or exclusion (incl. securitycertificate procedure) - [See first Aliens - Topic 1561.3].

Civil Rights - Topic 3180Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Fair hearing - [See first and second Aliens - Topic 1561.3 andfirst and second Aliens - Topic 1562].

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- [See all Aliens - Topic 1560, first and second Aliens - Topic 1561.3 and first andsecond Aliens - Topic 1562].

Civil Rights - Topic 3193Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Procedure not contrary to fundamental justice - [See third,fourth and fifth Aliens - Topic 1560, first Aliens - Topic 1561.3 and third Aliens - Topic1562].

Civil Rights - Topic 8374Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay ofproceedings - [See second Aliens - Topic 1560].

Courts - Topic 2015 Jurisdiction - General principles - Controlling abuse of its process - [See second Aliens -Topic 1560].

Courts - Topic 4082 Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Appeals fromjudgments of Federal Court - [See Aliens - Topic 4069].

Evidence - Topic 4150.3Witnesses - Privilege - Privileged topics - Covert human intelligence source privilege(incl. CSIS informers) - [See first Aliens - Topic 1560].

National Security - Topic 1008 Canadian Security Intelligence Service (CSIS) - General - Disclosure of information -[See first Aliens - Topic 1560].

Statutes - Topic 1802Interpretation - Intrinsic aids - Bilingual statutes - Reference to one language - Whenrequired - [See first Aliens - Topic 1562].

Cases Noticed:Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982,

addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 4].Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243

N.R. 22, refd to. [para. 5].Canadian Council for Refugees et al. v. Canada, [2009] 3 F.C.R. 136; 385 N.R. 1; 74

Admin. L.R.(4th) 79; 2008 FCA 229, refd to. [para. 6].Xie v. Canada (Minister of Citizenship and Immigration), [2005] 1 F.C.R. 304; 325 N.R.

255; 2004 FCA 250, refd to. [para. 6].Richter v. Canada (Minister of Citizenship and Immigration) et al., [2009] N.R. Uned. 20;

2009 FCA 73, refd to. [para. 6].Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002

SCC 75, refd to. [para. 8].Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 15].Charkaoui, Re, [2008] 2 S.C.R. 326; 376 N.R. 154; 2008 SCC 38, refd to. [para. 17].Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R.

1; 2002 SCC 1, refd to. [para. 30].Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 487; 331

N.R. 129; 2005 FCA 85, [para. 34].Gebreab v. Canada (Minister of Public Safety and Emergency Preparedness) (2010), 409

N.R. 196; 2010 FCA 274, refd to. [para. 35].Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R.

161, refd to. [para. 40].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. 49].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. 50].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. 55].Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd

to. [para. 80].Canada (Attorney General) v. Almalki et al. (2011), 420 N.R. 91; 2011 FCA 199, refd to.

[para. 88]. Solicitor General of Canada et al. v. Royal Commission of Inquiry into the

Confidentiality of Health Records in Ontario et al., [1981] 2 S.C.R. 494; 38 N.R.588; 23 C.R.(3d) 338, refd to. [para. 90].

R. v. Secretary of State for the Home Department, ex parte Hosenball, [1977] 3 All E.R.452 (Eng. C.A.), refd to. [para. 91].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC16, refd to. [para. 95].

Blood Tribe Department of Health v. Privacy Commissioner (Can.) et al., [2008] 2 S.C.R.574; 376 N.R. 327; 2008 SCC 44, refd to. [para. 104].

Ruby v. Royal Canadian Mounted Police et al., [2000] 3 F.C. 589; 256 N.R. 278 (F.C.A.),refd to. [para. 109].

Charkaoui, Re (2009), 368 F.T.R. 156; 179 A.C.W.S.(3d) 301; 2009 FC 476, refd to.[para. 109].

R. v. Lyttle (M.G.), [2004] 1 S.C.R. 1; 316 N.R. 52; 184 O.A.C. 1; 2004 SCC 5, refd to.[para. 111].

R. v. Ahmad (F.) et al., [2011] 1 S.C.R. 110; 411 N.R. 320; 2011 SCC 6, refd to. [para.111].

United Kingdom (Secretary of State for the Home Department) v. A.F. et al., [2009] N.R.Uned. 194; [2009] UKHL 28, refd to. [para. 115].

Charkaoui, Re, [2005] 2 F.C.R. 299; 328 N.R. 201; 2004 FCA 421, refd to. [para. 117].R. v. Ahmad, 2009 CanLII 84784 (Ont. S.C.), refd to. [para. 129].R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81, refd to. [para. 130].Khadr v. Canada (Minister of Justice) et al., [2008] 2 S.C.R. 125; 375 N.R. 47; 2008 SCC

28, refd to. [para. 139].PHS Community Services Society et al. v. Canada (Attorney General) (2011), 421 N.R.

1; 310 B.C.A.C. 1; 526 W.A.C. 1; 2011 SCC 44, refd to. [para. 139].Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3,

refd to. [para. 143].R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C.

161, refd to. [para. 144].Somodi v. Canada (Minister of Citizenship and Immigration) (2009), 393 N.R. 395; 2009

FCA 268, refd to. [para. 148].Bekker v. Minister of National Revenue (2004), 323 N.R. 195; 2004 FCA 186, refd to.

[para. 148].Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; 252 N.R.

1 (F.C.A.), refd to. [para. 149]. Ikhlef, Re (2002), 223 F.T.R. 233; 2002 FCT 263, refd to. [para. 149].Toronto Coalition to Stop the War et al. v. Canada (Minister of Public Safety and

Emergency Preparedness) et al. (2010), 374 F.T.R. 177; 2010 FC 957, refd to.[para. 149].

Sittampalam v. Canada (Minister of Citizenship and Immigration) et al., [2007] 3 F.C.R.198; 354 N.R. 34; 2006 FCA 326, refd to. [para. 150].

Statutes Noticed:Canadian Charter of Rights and Freedoms, 1982, sect. 7, sect. 24(1) [para. 10].Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 37(1), sect. 38.06(2) [para. 10].Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23, sect. 12 [para. 10].Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 33, sect. 34(1), sect.

34(2), sect. 77(2), sect. 78, sect. 83(1)(c), sect. 83(1)(d), sect. 83(1)(e), sect. 83(1)(h), sect. 83(1)(i), sect. 85.4(2), sect. 85.5(b) [para. 10].

Counsel:Matthew Webber, Normal Boxall, Megan Thomas and Leonardo Russomanno, for the

appellant;David Tyndale, Bernard Assan and André Séguin, for the respondents;Paul Copeland and Paul Cavalluzzo as Special Advocates.

Solicitors of Record:Webber, Schroeder, Goldstein, Abergel, Ottawa, Ontario, for the appellant;Myles J. Kirvan, Deputy Attorney General of Canada, Ottawa, Ontario, for the

respondents;Copeland, Duncan, Toronto, Ontario and Cavalluzzo Hayes Shilton McIntyre & Cornish

LLP, Toronto, Ontario as Special Advocates.

This appeal was heard in Ottawa, Ontario, on February 21-23, 2012, before Blais, C.J.,Létourneau and Layden-Stevenson, JJ.A., of the Federal Court of Appeal. The followingdecision was delivered in Ottawa, Ontario, on April 4, 2012, for the court, by Létourneau, J.A.

Order accordingly

Editor: Elizabeth M.A. Turgeon

Aliens - Topic 1561Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Reasonableness - Harkat was the subject of proceedings to determine the reasonablenessof a ministerial security certificate issued under the Immigration and Refugee ProtectionAct (IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), only summaries of confidentialinformation relied on by the Ministers were provided to Harkat but special advocates,who were appointed to represent Harkat's interests, were given access to the confidentialmaterial - Harkat claimed that the new system imposed undue restrictions on disclosureto the point that it was unconstitutional - By being provided with just summaries, Harkatclaimed that he was deprived of the ability to know and answer the case against him - Inaddition, the actual restrictions on disclosure hampered his right to cross-examination,thereby bereaving him of the ability to meet the case - The Federal Court of Appealrejected Harkat's argument - The court stated that the disclosure provided for in therevised IRPA, when combined with the procedural safeguard of special advocates was inaccordance with the principles of fundamental justice - See paragraphs 83 to 85.

Aliens - Topic 1561Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Reasonableness - Harkat was the subject of a ministerial security certificate on thegrounds of national security issued under the Immigration and Refugee Protection Act(IRPA) - Harkat claimed that a number of provisions of the IRPA relating to the securitycertificate reasonableness review scheme were contrary to s. 7 of the Charter (s. 77(2)(filing of evidence and summary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure)and ss. 85.4(2) and 85.5(b) (restrictions on communications involving special advocates,including preauthorization requirements)) - The Federal Court (ConstitutionalityDecision) found that the provisions were constitutional - Harkat appealed - The FederalCourt of Appeal dismissed the appeal respecting the Constitutionality Decision - Thejudge did not err when he concluded that the current security certificate regime was inaccordance with the principles of fundamental justice because it allowed a named person

to sufficiently know and meet the case against him - The new scheme respected theindividuals right to life, liberty and security of the person - See paragraphs 38 to 47 and70 to 120 and 157.

Aliens - Topic 1561.3Exclusion and expulsion - Power to detain and deport - Minister's certificate - Specialadvocates - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Act(IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), only summaries of confidentialinformation relied on by the Ministers were provided to Harkat but special advocates,who were appointed to represent Harkat's interests, were given access to the confidentialmaterial - Harkat claimed that the new system imposed undue restrictions on disclosureto the point that it was unconstitutional - By being provided with just summaries, Harkatclaimed that he was deprived of the ability to know and answer the case against him - Inaddition, the actual restrictions on disclosure hampered his right to cross-examination,thereby bereaving him of the ability to meet the case - The Federal Court of Appealrejected Harkat's argument - The court stated that the disclosure provided for in therevised IRPA, when combined with the procedural safeguard of special advocates was inaccordance with the principles of fundamental justice - See paragraphs 83 to 85.

Aliens - Topic 1561.3Exclusion and expulsion - Power to detain and deport - Minister's certificate - Specialadvocates - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Act(IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), summaries of confidentialinformation provided by human sources were provided to Harkat - Harkat claimed thathis right to cross-examination was hampered and truncated to the point that it defeated hisability to know and meet the case against him - The Federal Court of Appeal noted thatthe special advocates, who were appointed to protect Harkat's interests, had access to thehuman sources' confidential information on behalf of a named person - They couldchallenge the reliability of that information using other pieces of confidential informationthey were entitled to receive as well as information provided by the named person or hiscounsel - The court did not believe that the right to cross-examination was so restricted asto make the system unconstitutional - See paragraphs 86 and 87.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - During ministerial security certificate proceedings respecting Harkat, thespecial advocates wanted to know the identity of Canadian Security Intelligence Service(CSIS) covert human intelligence sources and cross-examine them in the closed doorproceedings - The designated judge denied the special advocates' requests on the basis of"covert human intelligence source privilege" (i.e., the judge extended the police informercommon law privilege to covert human intelligence sources, subject to a "need to know"exception) - Harkat appealed, claiming that the restrictions on cross-examination defeatedhis ability to know and meet the case against him - The Federal Court of Appeal allowed

the appeal and declared that CSIS human sources did not benefit from the police informerclass privilege or a class privilege analogous to the police informer class privilege andthat the judiciary should neither create nor extend a class privilege for those sources - Seeparagraphs 25 to 28, and 88 to 105 and 158.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - Harkat was the subject of proceedings to determine the reasonableness ofa ministerial security certificate issued under the Immigration and Refugee Protection Acton the grounds of national security - The evidence filed by the Ministers includedsummaries of interviews between Harkat and intelligence officers and otherconversations involving Harkat - The originals of the conversations had been destroyedpursuant to a Canadian Security Intelligence Service (CSIS) policy (a policy since struckdown in Charkaoui #2 (SCC 2008)) - Harkat sought to have the summaries of evidenceexcluded based on the doctrine of abuse of process or a remedy under s. 24(1) of theCharter, claiming that his right to disclosure (Charter, s. 7) was breached - The FederalCourt of Appeal held that the destruction of the original records constituted a breach ofthe duty to disclose - Disclosure to the special advocates was not a sufficient remedy forthe destruction of the originals - Rather, the court ordered that all the summaries beexcluded except those conversations to which Harkat was privy - The court rejected theabuse of process argument - See paragraphs 48 to 52 and 122 to 147 and 159.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - Harkat was the subject of proceedings to determine the reasonablenessof a ministerial security certificate issued under the Immigration and Refugee ProtectionAct (IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), only summaries of confidentialinformation relied on by the Ministers were provided to Harkat but special advocates,who were appointed to represent Harkat's interests, were given access to the confidentialmaterial - Harkat claimed that the new system imposed undue restrictions on disclosureto the point that it was unconstitutional - By being provided with just summaries, Harkatclaimed that he was deprived of the ability to know and answer the case against him - Inaddition, the actual restrictions on disclosure hampered his right to cross-examination,thereby bereaving him of the ability to meet the case - The Federal Court of Appealrejected Harkat's argument - The court stated that the disclosure provided for in therevised IRPA, when combined with the procedural safeguard of special advocates was inaccordance with the principles of fundamental justice - See paragraphs 83 to 85.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - Harkat was the subject of proceedings to determine the reasonableness ofa ministerial security certificate issued under the Immigration and Refugee Protection Act(IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), summaries of confidentialinformation provided by human sources were provided to Harkat - Harkat claimed thathis right to cross-examination was hampered and truncated to the point that it defeated his

ability to know and meet the case against him - The Federal Court of Appeal noted thatthe special advocates, who were appointed to protect Harkat's interests, had access to thehuman sources' confidential information on behalf of a named person - They couldchallenge the reliability of that information using other pieces of confidential informationthey were entitled to receive as well as information provided by the named person or hiscounsel - The court did not believe that the right to cross-examination was so restricted asto make the system unconstitutional - See paragraphs 86 and 87.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - Harkat was the subject of ministerial security certificate reasonablenessproceedings under the Immigration and Refugee Protection Act (IRPA) - Harkat assertedthat non-disclosure of hearsay evidence that was subject to the third party rule, coupledwith the fact that hearsay evidence could be admitted in security certificate proceedingspursuant to s. 83(1)(h) of the IRPA, severely curtailed and, in many cases, deprived himof his right to cross-examination - The Third Party rule referred to information receivedfrom a third party, usually a foreign agency, under the seal of confidentiality and with anundertaking not to disclose its contents and the source without the consent of that ThirdParty - Harkat claimed that this was yet another restriction on disclosure whichcontributed to the unconstitutionality of the system in place because it deprived him ofhis right to know and meet the case against him - The Federal Court of Appeal held thatthe limits on disclosure and the right to cross-examination resulting from the Third Partyrule were in accordance with the principles of fundamental justice and did not renderunconstitutional the current system as long as adequate substitutes were in place toprovide a fair hearing - See paragraphs 106 to 112.

Aliens - Topic 1562Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summaryof information - Harkat was the subject of a ministerial security certificate on the groundsof national security issued under the Immigration and Refugee Protection Act (IRPA) -Harkat claimed that a number of provisions of the IRPA relating to the security certificatereasonableness review scheme were contrary to s. 7 of the Charter (s. 77(2) (filing ofevidence and summary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure) and ss.85.4(2) and 85.5(b) (restrictions on communications involving special advocates,including preauthorization requirements)) - The Federal Court (ConstitutionalityDecision) found that the provisions were constitutional - Harkat appealed - The FederalCourt of Appeal dismissed the appeal respecting the Constitutionality Decision - Thejudge did not err when he concluded that the current security certificate regime was inaccordance with the principles of fundamental justice because it allowed a named personto sufficiently know and meet the case against him - The new scheme respected theindividuals right to life, liberty and security of the person - See paragraphs 38 to 47 and70 to 120 and 157.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - During ministerial security certificate proceedings respecting Harkat, thespecial advocates wanted to know the identity of Canadian Security Intelligence Service

(CSIS) covert human intelligence sources and cross-examine them in the closed doorproceedings - The designated judge denied the special advocates' requests on the basis of"covert human intelligence source privilege" (i.e., the judge extended the police informercommon law privilege to covert human intelligence sources, subject to a "need to know"exception) - Harkat appealed, claiming that the restrictions on cross-examination defeatedhis ability to know and meet the case against him - The Federal Court of Appeal allowedthe appeal and declared that CSIS human sources did not benefit from the police informerclass privilege or a class privilege analogous to the police informer class privilege andthat the judiciary should neither create nor extend a class privilege for those sources - Seeparagraphs 25 to 28, and 88 to 105 and 158.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Acton the grounds of national security - The evidence filed by the Ministers includedsummaries of interviews between Harkat and intelligence officers and otherconversations involving Harkat - The originals of the conversations had been destroyedpursuant to a Canadian Security Intelligence Service (CSIS) policy (a policy since struckdown in Charkaoui #2 (SCC 2008)) - Harkat sought to have the summaries of evidenceexcluded based on the doctrine of abuse of process or a remedy under s. 24(1) of theCharter, claiming that his right to disclosure (Charter, s. 7) was breached - The FederalCourt of Appeal held that the destruction of the original records constituted a breach ofthe duty to disclose - Disclosure to the special advocates was not a sufficient remedy forthe destruction of the originals - Rather, the court ordered that all the summaries beexcluded except those conversations to which Harkat was privy - The court rejected theabuse of process argument - See paragraphs 48 to 52 and 122 to 147 and 159.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Act(IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), only summaries of confidentialinformation relied on by the Ministers were provided to Harkat but special advocates,who were appointed to represent Harkat's interests, were given access to the confidentialmaterial - Harkat claimed that the new system imposed undue restrictions on disclosureto the point that it was unconstitutional - By being provided with just summaries, Harkatclaimed that he was deprived of the ability to know and answer the case against him - Inaddition, the actual restrictions on disclosure hampered his right to cross-examination,thereby bereaving him of the ability to meet the case - The Federal Court of Appealrejected Harkat's argument - The court stated that the disclosure provided for in therevised IRPA, when combined with the procedural safeguard of special advocates was inaccordance with the principles of fundamental justice - See paragraphs 83 to 85.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -

Disclosure - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Act(IRPA) on the grounds of national security - In accordance with the legislativeamendments following Re Charkaoui #2 (SCC 2008), summaries of confidentialinformation provided by human sources were provided to Harkat - Harkat claimed thathis right to cross-examination was hampered and truncated to the point that it defeated hisability to know and meet the case against him - The Federal Court of Appeal noted thatthe special advocates, who were appointed to protect Harkat's interests, had access to thehuman sources' confidential information on behalf of a named person - They couldchallenge the reliability of that information using other pieces of confidential informationthey were entitled to receive as well as information provided by the named person or hiscounsel - The court did not believe that the right to cross-examination was so restricted asto make the system unconstitutional - See paragraphs 86 and 87.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - Harkat was the subject of ministerial security certificate reasonablenessproceedings under the Immigration and Refugee Protection Act (IRPA) - Harkat assertedthat non-disclosure of hearsay evidence that was subject to the third party rule, coupledwith the fact that hearsay evidence could be admitted in security certificate proceedingspursuant to s. 83(1)(h) of the IRPA, severely curtailed and, in many cases, deprived himof his right to cross-examination - The Third Party rule referred to information receivedfrom a third party, usually a foreign agency, under the seal of confidentiality and with anundertaking not to disclose its contents and the source without the consent of that ThirdParty - Harkat claimed that this was yet another restriction on disclosure whichcontributed to the unconstitutionality of the system in place because it deprived him ofhis right to know and meet the case against him - The Federal Court of Appeal held thatthe limits on disclosure and the right to cross-examination resulting from the Third Partyrule were in accordance with the principles of fundamental justice and did not renderunconstitutional the current system as long as adequate substitutes were in place toprovide a fair hearing - See paragraphs 106 to 112.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - The Immigration and Refugee Protection Act (IRPA), s. 77(2) provided thatwhen a security certificate was referred to the court for a reasonableness determination,"the Minister shall file with the Court the information and other evidence on which thecertificate is based, and a summary of information and other evidence that enables theperson who is named in the certificate to be reasonably informed of the case made by theMinister but that does not include anything that, in the Minister's opinion, would beinjurious to national security or endanger the safety of any person if disclosed"- Pursuantto s. 83(1) the designated judge was to ensure that the summary was provided to theperson named in the certificate but that other information was protected from disclosure -The Federal Court of Appeal stated that ss. 77(2) and 83(1)(c) accorded with theprinciples of fundamental justice (Charter, s. 7) - See paragraphs 70 to 82.

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - Harkat was the subject of a ministerial security certificate on the grounds ofnational security issued under the Immigration and Refugee Protection Act (IRPA) -Harkat claimed that a number of provisions of the IRPA relating to the security certificatereasonableness review scheme were contrary to s. 7 of the Charter (s. 77(2) (filing ofevidence and summary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure) and ss.85.4(2) and 85.5(b) (restrictions on communications involving special advocates,including preauthorization requirements)) - The Federal Court (ConstitutionalityDecision) found that the provisions were constitutional - Harkat appealed - The FederalCourt of Appeal dismissed the appeal respecting the Constitutionality Decision - Thejudge did not err when he concluded that the current security certificate regime was inaccordance with the principles of fundamental justice because it allowed a named personto sufficiently know and meet the case against him - The new scheme respected theindividuals right to life, liberty and security of the person - See paragraphs 38 to 47 and70 to 120 and 157.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - Harkat was the subject of a ministerial security certificate on the grounds ofnational security issued under the Immigration and Refugee Protection Act (IRPA) -Special advocates were appointed to protect his interests - Harkat claimed restrictionsimposed on the special advocates' right to communicate with him affected their ability toadequately defend his interests - Under ss. 85.4 and 85.5(b) of the IRPA, the specialadvocates were prohibited from communicating with the named person or any personafter they have received the confidential information given to the judge by the Ministers -- The Federal Court of Appeal stated that ss. 85.4 and 85.5 had built in the flexibilitynecessary to ensure the fairness of the process and the protection of national security andthe safety of the person - The judge had the authority to lift the ban on communicationand to impose conditions consistent with those objectives - See paragraphs 113 to 116.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - Harkat, who was the subject of security certificate reasonablenessproceedings, argued that in enacting ss. 77(2) and 83(1) of the Immigration and RefugeeProtection Act, Parliament failed to implement the fairness threshold established by theSupreme Court in the Charkaoui #1 decision (SCC 2007) (i.e., by simply requiring thatthe named person "be reasonably informed of the case made by the Minister in theproceeding" while the Supreme Court ruled that he had to be sufficiently informed of thecase put against him so as to be able to meet that case) - The Federal Court of Appealrejected that argument - The French version of the legislation actually used the verywords ""suffisamment informé' (sufficiently informed) de la thèse du ministre à l'égard del'instance en cause" - The French version was in that respect more precise than theEnglish version, more favourable to the named person and more compliant with thefairness requirement of s. 7 of the Charter - Both texts, English and French, had equalforce and the French version was to be preferred - Moreover, the court agreed that theconcept of "reasonably informed" was subject to and qualified by s. 7 of the Charter (i.e.,the named person had to be informed to the point that he knew the case against him and

was able to meet it) - See paragraphs 73 to 77.

Aliens - Topic 1564Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review -Disclosure - Harkat, who was the subject of security certificate reasonablenessproceedings, argued that the designated judge applied a more diluted test than the testrequired by s. 7 of the Charter with respect to disclosure of information - The judgeallegedly limited Harkat's knowledge of the case against him to a knowledge that enabledhim simply to respond to the case rather than enabling him to challenge the case againsthim, to contradict the allegations and attack the credibility of informants - The FederalCourt of Appeal held that this argument had no merit and stated that it was somewhatunfair to the judge who referred to and applied the test as formulated by the SupremeCourt in Charkaoui #1 (i.e., a fair hearing required the affected person be informed of thecase against him and be permitted to respond to that case) - Regardless of the languageused by the judge, it was obvious throughout his reasoning that he applied the proper testdictated by s. 7 - See paragraphs 78 to 82.

Civil Rights - Topic 660.2Liberty - Limitations on - Immigration (incl. security certificate procedure) - Harkat wasthe subject of a ministerial security certificate on the grounds of national security issuedunder the Immigration and Refugee Protection Act (IRPA) - Harkat claimed that anumber of provisions of the IRPA relating to the security certificate reasonablenessreview scheme were contrary to s. 7 of the Charter (s. 77(2) (filing of evidence andsummary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure) and ss. 85.4(2) and85.5(b) (restrictions on communications involving special advocates, includingpreauthorization requirements)) - The Federal Court (Constitutionality Decision) foundthat the provisions were constitutional - Harkat appealed - The Federal Court of Appealdismissed the appeal respecting the Constitutionality Decision - The judge did not errwhen he concluded that the current security certificate regime was in accordance with theprinciples of fundamental justice because it allowed a named person to sufficiently knowand meet the case against him - The new scheme respected the individuals right to life,liberty and security of the person - See paragraphs 38 to 47 and 70 to 120 and 157.

Civil Rights - Topic 1325Security of the person - Immigration - Deportation, removal or exclusion (incl. securitycertificate procedure) - Harkat was the subject of a ministerial security certificate on thegrounds of national security issued under the Immigration and Refugee Protection Act(IRPA) - Harkat claimed that a number of provisions of the IRPA relating to the securitycertificate reasonableness review scheme were contrary to s. 7 of the Charter (s. 77(2)(filing of evidence and summary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure)and ss. 85.4(2) and 85.5(b) (restrictions on communications involving special advocates,including preauthorization requirements)) - The Federal Court (ConstitutionalityDecision) found that the provisions were constitutional - Harkat appealed - The FederalCourt of Appeal dismissed the appeal respecting the Constitutionality Decision - Thejudge did not err when he concluded that the current security certificate regime was inaccordance with the principles of fundamental justice because it allowed a named personto sufficiently know and meet the case against him - The new scheme respected the

individuals right to life, liberty and security of the person - See paragraphs 38 to 47 and70 to 120 and 157.

Civil Rights - Topic 3180Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Fair hearing - Harkat was the subject of a ministerial securitycertificate on the grounds of national security issued under the Immigration and RefugeeProtection Act (IRPA) - Harkat claimed that a number of provisions of the IRPA relatingto the security certificate reasonableness review scheme were contrary to s. 7 of theCharter (s. 77(2) (filing of evidence and summary), ss. 83(1)(c)(d)(e)(h) and (i)(restrictions on disclosure) and ss. 85.4(2) and 85.5(b) (restrictions on communicationsinvolving special advocates, including preauthorization requirements)) - The FederalCourt (Constitutionality Decision) found that the provisions were constitutional - Harkatappealed - The Federal Court of Appeal dismissed the appeal respecting theConstitutionality Decision - The judge did not err when he concluded that the currentsecurity certificate regime was in accordance with the principles of fundamental justicebecause it allowed a named person to sufficiently know and meet the case against him -The new scheme respected the individuals right to life, liberty and security of the person -See paragraphs 38 to 47 and 70 to 120 and 157.

Civil Rights - Topic 3180Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Fair hearing - Harkat was the subject of a ministerial securitycertificate on the grounds of national security issued under the Immigration and RefugeeProtection Act (IRPA) - Special advocates were appointed to protect his interests - Harkatclaimed restrictions imposed on the special advocates' right to communicate with himaffected their ability to adequately defend his interests - Under ss. 85.4 and 85.5(b) of theIRPA, the special advocates were prohibited from communicating with the named personor any person after they have received the confidential information given to the judge bythe Ministers - The Federal Court of Appeal stated that ss. 85.4 and 85.5 had built in theflexibility necessary to ensure the fairness of the process and the protection of nationalsecurity and the safety of the person - The judge had the authority to lift the ban oncommunication and to impose conditions consistent with those objectives - Seeparagraphs 113 to 116.

Civil Rights - Topic 3180Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Fair hearing - Harkat, who was the subject of securitycertificate reasonableness proceedings, argued that in enacting ss. 77(2) and 83(1) of theImmigration and Refugee Protection Act, Parliament failed to implement the fairnessthreshold established by the Supreme Court in the Charkaoui #1 decision (SCC 2007)(i.e., by simply requiring that the named person "be reasonably informed of the casemade by the Minister in the proceeding" while the Supreme Court ruled that he had to besufficiently informed of the case put against him so as to be able to meet that case) - TheFederal Court of Appeal rejected that argument - The French version of the legislationactually used the very words ""suffisamment informé' (sufficiently informed) de la thèsedu ministre à l'égard de l'instance en cause" - The French version was in that respect more

precise than the English version, more favourable to the named person and morecompliant with the fairness requirement of s. 7 of the Charter - Both texts, English andFrench, had equal force and the French version was to be preferred - Moreover, the courtagreed that the concept of "reasonably informed" was subject to and qualified by s. 7 ofthe Charter (i.e., the named person had to be informed to the point that he knew the caseagainst him and was able to meet it) - See paragraphs 73 to 77.

Civil Rights - Topic 3180Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Fair hearing - Harkat, who was the subject of securitycertificate reasonableness proceedings, argued that the designated judge applied a morediluted test than the test required by s. 7 of the Charter with respect to disclosure ofinformation - The judge allegedly limited Harkat's knowledge of the case against him to aknowledge that enabled him simply to respond to the case rather than enabling him tochallenge the case against him, to contradict the allegations and attack the credibility ofinformants - The Federal Court of Appeal held that this argument had no merit and statedthat it was somewhat unfair to the judge who referred to and applied the test asformulated by the Supreme Court in Charkaoui #1 (i.e., a fair hearing required theaffected person be informed of the case against him and be permitted to respond to thatcase) - Regardless of the language used by the judge, it was obvious throughout hisreasoning that he applied the proper test dictated by s. 7 - See paragraphs 78 to 82.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- During ministerial security certificate proceedings respecting Harkat, the specialadvocates wanted to know the identity of Canadian Security Intelligence Service (CSIS)covert human intelligence sources and cross-examine them in the closed doorproceedings - The designated judge denied the special advocates' requests on the basis of"covert human intelligence source privilege" (i.e., the judge extended the police informercommon law privilege to covert human intelligence sources, subject to a "need to know"exception) - Harkat appealed, claiming that the restrictions on cross-examination defeatedhis ability to know and meet the case against him - The Federal Court of Appeal allowedthe appeal and declared that CSIS human sources did not benefit from the police informerclass privilege or a class privilege analogous to the police informer class privilege andthat the judiciary should neither create nor extend a class privilege for those sources - Seeparagraphs 25 to 28, and 88 to 105 and 158.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- Harkat was the subject of proceedings to determine the reasonableness of a ministerialsecurity certificate issued under the Immigration and Refugee Protection Act on thegrounds of national security - The evidence filed by the Ministers included summaries ofinterviews between Harkat and intelligence officers and other conversations involvingHarkat - The originals of the conversations had been destroyed pursuant to a CanadianSecurity Intelligence Service (CSIS) policy (a policy since struck down in Charkaoui #2

(SCC 2008)) - Harkat sought to have the summaries of evidence excluded based on thedoctrine of abuse of process or a remedy under s. 24(1) of the Charter, claiming that hisright to disclosure (Charter, s. 7) was breached - The Federal Court of Appeal held thatthe destruction of the original records constituted a breach of the duty to disclose -Disclosure to the special advocates was not a sufficient remedy for the destruction of theoriginals - Rather, the court ordered that all the summaries be excluded except thoseconversations to which Harkat was privy - The court rejected the abuse of processargument - See paragraphs 48 to 52 and 122 to 147 and 159.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- Harkat was the subject of proceedings to determine the reasonableness of a ministerialsecurity certificate issued under the Immigration and Refugee Protection Act (IRPA) onthe grounds of national security - In accordance with the legislative amendmentsfollowing Re Charkaoui #2 (SCC 2008), only summaries of confidential informationrelied on by the Ministers were provided to Harkat but special advocates, who wereappointed to represent Harkat's interests, were given access to the confidential material -Harkat claimed that the new system imposed undue restrictions on disclosure to the pointthat it was unconstitutional - By being provided with just summaries, Harkat claimed thathe was deprived of the ability to know and answer the case against him - In addition, theactual restrictions on disclosure hampered his right to cross-examination, therebybereaving him of the ability to meet the case - The Federal Court of Appeal rejectedHarkat's argument - The court stated that the disclosure provided for in the revised IRPA,when combined with the procedural safeguard of special advocates was in accordancewith the principles of fundamental justice - See paragraphs 83 to 85.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- Harkat was the subject of proceedings to determine the reasonableness of a ministerialsecurity certificate issued under the Immigration and Refugee Protection Act (IRPA) onthe grounds of national security - In accordance with the legislative amendmentsfollowing Re Charkaoui #2 (SCC 2008), summaries of confidential information providedby human sources were provided to Harkat - Harkat claimed that his right to cross-examination was hampered and truncated to the point that it defeated his ability to knowand meet the case against him - The Federal Court of Appeal noted that the specialadvocates, who were appointed to protect Harkat's interests, had access to the humansources' confidential information on behalf of a named person - They could challenge thereliability of that information using other pieces of confidential information they wereentitled to receive as well as information provided by the named person or his counsel -The court did not believe that the right to cross-examination was so restricted as to makethe system unconstitutional - See paragraphs 86 and 87.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)

- Harkat was the subject of ministerial security certificate reasonableness proceedingsunder the Immigration and Refugee Protection Act (IRPA) - Harkat asserted that non-disclosure of hearsay evidence that was subject to the third party rule, coupled with thefact that hearsay evidence could be admitted in security certificate proceedings pursuantto s. 83(1)(h) of the IRPA, severely curtailed and, in many cases, deprived him of hisright to cross-examination - The Third Party rule referred to information received from athird party, usually a foreign agency, under the seal of confidentiality and with anundertaking not to disclose its contents and the source without the consent of that ThirdParty - Harkat claimed that this was yet another restriction on disclosure whichcontributed to the unconstitutionality of the system in place because it deprived him ofhis right to know and meet the case against him - The Federal Court of Appeal held thatthe limits on disclosure and the right to cross-examination resulting from the Third Partyrule were in accordance with the principles of fundamental justice and did not renderunconstitutional the current system as long as adequate substitutes were in place toprovide a fair hearing - See paragraphs 106 to 112.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- Harkat was the subject of a ministerial security certificate on the grounds of nationalsecurity issued under the Immigration and Refugee Protection Act (IRPA) - Harkatclaimed that a number of provisions of the IRPA relating to the security certificatereasonableness review scheme were contrary to s. 7 of the Charter (s. 77(2) (filing ofevidence and summary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure) and ss.85.4(2) and 85.5(b) (restrictions on communications involving special advocates,including preauthorization requirements)) - The Federal Court (ConstitutionalityDecision) found that the provisions were constitutional - Harkat appealed - The FederalCourt of Appeal dismissed the appeal respecting the Constitutionality Decision - Thejudge did not err when he concluded that the current security certificate regime was inaccordance with the principles of fundamental justice because it allowed a named personto sufficiently know and meet the case against him - The new scheme respected theindividuals right to life, liberty and security of the person - See paragraphs 38 to 47 and70 to 120 and 157.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- Harkat was the subject of a ministerial security certificate on the grounds of nationalsecurity issued under the Immigration and Refugee Protection Act (IRPA) - Specialadvocates were appointed to protect his interests - Harkat claimed restrictions imposed onthe special advocates' right to communicate with him affected their ability to adequatelydefend his interests - Under ss. 85.4 and 85.5(b) of the IRPA, the special advocates wereprohibited from communicating with the named person or any person after they havereceived the confidential information given to the judge by the Ministers - - The FederalCourt of Appeal stated that ss. 85.4 and 85.5 had built in the flexibility necessary toensure the fairness of the process and the protection of national security and the safety ofthe person - The judge had the authority to lift the ban on communication and to impose

conditions consistent with those objectives - See paragraphs 113 to 116.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- Harkat, who was the subject of security certificate reasonableness proceedings, arguedthat in enacting ss. 77(2) and 83(1) of the Immigration and Refugee Protection Act,Parliament failed to implement the fairness threshold established by the Supreme Court inthe Charkaoui #1 decision (SCC 2007) (i.e., by simply requiring that the named person"be reasonably informed of the case made by the Minister in the proceeding" while theSupreme Court ruled that he had to be sufficiently informed of the case put against himso as to be able to meet that case) - The Federal Court of Appeal rejected that argument -The French version of the legislation actually used the very words ""suffisammentinformé' (sufficiently informed) de la thèse du ministre à l'égard de l'instance en cause" -The French version was in that respect more precise than the English version, morefavourable to the named person and more compliant with the fairness requirement of s. 7of the Charter - Both texts, English and French, had equal force and the French versionwas to be preferred - Moreover, the court agreed that the concept of "reasonablyinformed" was subject to and qualified by s. 7 of the Charter (i.e., the named person hadto be informed to the point that he knew the case against him and was able to meet it) -See paragraphs 73 to 77.

Civil Rights - Topic 3188Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Right to make full answer and defence (incl. disclosure issues)- Harkat, who was the subject of security certificate reasonableness proceedings, arguedthat the designated judge applied a more diluted test than the test required by s. 7 of theCharter with respect to disclosure of information - The judge allegedly limited Harkat'sknowledge of the case against him to a knowledge that enabled him simply to respond tothe case rather than enabling him to challenge the case against him, to contradict theallegations and attack the credibility of informants - The Federal Court of Appeal heldthat this argument had no merit and stated that it was somewhat unfair to the judge whoreferred to and applied the test as formulated by the Supreme Court in Charkaoui #1 (i.e.,a fair hearing required the affected person be informed of the case against him and bepermitted to respond to that case) - Regardless of the language used by the judge, it wasobvious throughout his reasoning that he applied the proper test dictated by s. 7 - Seeparagraphs 78 to 82.

Civil Rights - Topic 3193Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Procedure not contrary to fundamental justice - Harkat was thesubject of proceedings to determine the reasonableness of a ministerial security certificateissued under the Immigration and Refugee Protection Act (IRPA) on the grounds ofnational security - In accordance with the legislative amendments following ReCharkaoui #2 (SCC 2008), only summaries of confidential information relied on by theMinisters were provided to Harkat but special advocates, who were appointed torepresent Harkat's interests, were given access to the confidential material - Harkat

claimed that the new system imposed undue restrictions on disclosure to the point that itwas unconstitutional - By being provided with just summaries, Harkat claimed that hewas deprived of the ability to know and answer the case against him - In addition, theactual restrictions on disclosure hampered his right to cross-examination, therebybereaving him of the ability to meet the case - The Federal Court of Appeal rejectedHarkat's argument - The court stated that the disclosure provided for in the revised IRPA,when combined with the procedural safeguard of special advocates was in accordancewith the principles of fundamental justice - See paragraphs 83 to 85.

Civil Rights - Topic 3193Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Procedure not contrary to fundamental justice - Harkat was thesubject of proceedings to determine the reasonableness of a ministerial security certificateissued under the Immigration and Refugee Protection Act (IRPA) on the grounds ofnational security - In accordance with the legislative amendments following ReCharkaoui #2 (SCC 2008), summaries of confidential information provided by humansources were provided to Harkat - Harkat claimed that his right to cross-examination washampered and truncated to the point that it defeated his ability to know and meet the caseagainst him - The Federal Court of Appeal noted that the special advocates, who wereappointed to protect Harkat's interests, had access to the human sources' confidentialinformation on behalf of a named person - They could challenge the reliability of thatinformation using other pieces of confidential information they were entitled to receive aswell as information provided by the named person or his counsel - The court did notbelieve that the right to cross-examination was so restricted as to make the systemunconstitutional - See paragraphs 86 and 87.

Civil Rights - Topic 3193Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Procedure not contrary to fundamental justice - Harkat was thesubject of ministerial security certificate reasonableness proceedings under theImmigration and Refugee Protection Act (IRPA) - Harkat asserted that non-disclosure ofhearsay evidence that was subject to the third party rule, coupled with the fact thathearsay evidence could be admitted in security certificate proceedings pursuant to s.83(1)(h) of the IRPA, severely curtailed and, in many cases, deprived him of his right tocross-examination - The Third Party rule referred to information received from a thirdparty, usually a foreign agency, under the seal of confidentiality and with an undertakingnot to disclose its contents and the source without the consent of that Third Party - Harkatclaimed that this was yet another restriction on disclosure which contributed to theunconstitutionality of the system in place because it deprived him of his right to knowand meet the case against him - The Federal Court of Appeal held that the limits ondisclosure and the right to cross-examination resulting from the Third Party rule were inaccordance with the principles of fundamental justice and did not render unconstitutionalthe current system as long as adequate substitutes were in place to provide a fair hearing -See paragraphs 106 to 112.

Civil Rights - Topic 3193Trials - Due process, fundamental justice and fair hearings - Administrative and

noncriminal proceedings - Procedure not contrary to fundamental justice - Harkat was thesubject of a ministerial security certificate on the grounds of national security issuedunder the Immigration and Refugee Protection Act (IRPA) - Harkat claimed that anumber of provisions of the IRPA relating to the security certificate reasonablenessreview scheme were contrary to s. 7 of the Charter (s. 77(2) (filing of evidence andsummary), ss. 83(1)(c)(d)(e)(h) and (i) (restrictions on disclosure) and ss. 85.4(2) and85.5(b) (restrictions on communications involving special advocates, includingpreauthorization requirements)) - The Federal Court (Constitutionality Decision) foundthat the provisions were constitutional - Harkat appealed - The Federal Court of Appealdismissed the appeal respecting the Constitutionality Decision - The judge did not errwhen he concluded that the current security certificate regime was in accordance with theprinciples of fundamental justice because it allowed a named person to sufficiently knowand meet the case against him - The new scheme respected the individuals right to life,liberty and security of the person - See paragraphs 38 to 47 and 70 to 120 and 157.

Civil Rights - Topic 3193Trials - Due process, fundamental justice and fair hearings - Administrative andnoncriminal proceedings - Procedure not contrary to fundamental justice - TheImmigration and Refugee Protection Act (IRPA), s. 77(2) provided that when a securitycertificate was referred to the court for a reasonableness determination, "the Ministershall file with the Court the information and other evidence on which the certificate isbased, and a summary of information and other evidence that enables the person who isnamed in the certificate to be reasonably informed of the case made by the Minister butthat does not include anything that, in the Minister's opinion, would be injurious tonational security or endanger the safety of any person if disclosed"- Pursuant to s. 83(1)the designated judge was to ensure that the summary was provided to the person namedin the certificate but that other information was protected from disclosure - The FederalCourt of Appeal stated that ss. 77(2) and 83(1)(c) accorded with the principles offundamental justice (Charter, s. 7) - See paragraphs 70 to 82.

Civil Rights - Topic 8374Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay ofproceedings - Harkat was the subject of proceedings to determine the reasonableness of aministerial security certificate issued under the Immigration and Refugee Protection Acton the grounds of national security - The evidence filed by the Ministers includedsummaries of interviews between Harkat and intelligence officers and otherconversations involving Harkat - The originals of the conversations had been destroyedpursuant to a Canadian Security Intelligence Service (CSIS) policy (a policy since struckdown in Charkaoui #2 (SCC 2008)) - Harkat sought to have the summaries of evidenceexcluded based on the doctrine of abuse of process or a remedy under s. 24(1) of theCharter, claiming that his right to disclosure (Charter, s. 7) was breached - The FederalCourt of Appeal held that the destruction of the original records constituted a breach ofthe duty to disclose - Disclosure to the special advocates was not a sufficient remedy forthe destruction of the originals - Rather, the court ordered that all the summaries beexcluded except those conversations to which Harkat was privy - The court rejected theabuse of process argument - See paragraphs 48 to 52 and 122 to 147 and 159.

Courts - Topic 2015 Jurisdiction - General principles - Controlling abuse of its process - Harkat was thesubject of proceedings to determine the reasonableness of a ministerial security certificateissued under the Immigration and Refugee Protection Act on the grounds of nationalsecurity - The evidence filed by the Ministers included summaries of interviews betweenHarkat and intelligence officers and other conversations involving Harkat - The originalsof the conversations had been destroyed pursuant to a Canadian Security IntelligenceService (CSIS) policy (a policy since struck down in Charkaoui #2 (SCC 2008)) - Harkatsought to have the summaries of evidence excluded based on the doctrine of abuse ofprocess or a remedy under s. 24(1) of the Charter, claiming that his right to disclosure(Charter, s. 7) was breached - The Federal Court of Appeal held that the destruction ofthe original records constituted a breach of the duty to disclose - Disclosure to the specialadvocates was not a sufficient remedy for the destruction of the originals - Rather, thecourt ordered that all the summaries be excluded except those conversations to whichHarkat was privy - The court rejected the abuse of process argument - See paragraphs 48to 52 and 122 to 147 and 159.

Courts - Topic 4082 Federal Court of Canada - Jurisdiction - Federal Court of Appeal - Appeals fromjudgments of Federal Court - The Federal Court of Appeal noted that where a questionwas certified for appellate consideration under s. 82.3 of the Immigration and RefugeeProtection Act, the appeal court was not confined to answering the stated question orissues directly related to it - All issues raised by the appeal could be considered - Seeparagraphs 3 to 9.

Evidence - Topic 4150.3Witnesses - Privilege - Privileged topics - Covert human intelligence source privilege(incl. CSIS informers) - During ministerial security certificate proceedings respectingHarkat, the special advocates wanted to know the identity of Canadian SecurityIntelligence Service (CSIS) covert human intelligence sources and cross-examine them inthe closed door proceedings - The designated judge denied the special advocates' requestson the basis of "covert human intelligence source privilege" (i.e., the judge extended thepolice informer common law privilege to covert human intelligence sources, subject to a"need to know" exception) - Harkat appealed, claiming that the restrictions on cross-examination defeated his ability to know and meet the case against him - The FederalCourt of Appeal allowed the appeal and declared that CSIS human sources did not benefitfrom the police informer class privilege or a class privilege analogous to the policeinformer class privilege and that the judiciary should neither create nor extend a classprivilege for those sources - See paragraphs 25 to 28, and 88 to 105 and 158.

National Security - Topic 1008 Canadian Security Intelligence Service (CSIS) - General - Disclosure of information -During ministerial security certificate proceedings respecting Harkat, the specialadvocates wanted to know the identity of Canadian Security Intelligence Service (CSIS)covert human intelligence sources and cross-examine them in the closed doorproceedings - The designated judge 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) - Harkat appealed, claiming that the restrictions on cross-examination defeatedhis ability to know and meet the case against him - The Federal Court of Appeal allowedthe appeal and declared that CSIS human sources did not benefit from the police informerclass privilege or a class privilege analogous to the police informer class privilege andthat the judiciary should neither create nor extend a class privilege for those sources - Seeparagraphs 25 to 28, and 88 to 105 and 158.

Statutes - Topic 1802Interpretation - Intrinsic aids - Bilingual statutes - Reference to one language - Whenrequired - Harkat, who was the subject of security certificate reasonableness proceedings,argued that in enacting ss. 77(2) and 83(1) of the Immigration and Refugee ProtectionAct, Parliament failed to implement the fairness threshold established by the SupremeCourt in the Charkaoui #1 decision (SCC 2007) (i.e., by simply requiring that the namedperson "be reasonably informed of the case made by the Minister in the proceeding"while the Supreme Court ruled that he had to be sufficiently informed of the case putagainst him so as to be able to meet that case) - The Federal Court of Appeal rejected thatargument - The French version of the legislation actually used the very words""suffisamment informé' (sufficiently informed) de la thèse du ministre à l'égard del'instance en cause" - The French version was in that respect more precise than theEnglish version, more favourable to the named person and more compliant with thefairness requirement of s. 7 of the Charter - Both texts, English and French, had equalforce and the French version was to be preferred - Moreover, the court agreed that theconcept of "reasonably informed" was subject to and qualified by s. 7 of the Charter (i.e.,the named person had to be informed to the point that he knew the case against him andwas able to meet it) - See paragraphs 73 to 77.