Federal Court of Appeal [2012] F.C.J. No. 492

[2012] F.C.J. No. 492 Federal Court of AppealBlais C.J. and Létourneau Layden-Stevenson JJ.A. April 25, 2012. (161 paras.)

Civil litigation — Civil evidence — Privilege — Privileged relationships — Appeal by Harkat from four Federal Court orders allowed in part — Harkat subject to security certificate for terrorism — Class privilege for police informants did not extend to human sources providing information to CSIS on Harkat — Destruction of original CSIS evidence against Harkat violated his right to disclosure, warranting exclusion of summaries of evidence at hearing into reasonableness of certificate — New hearing required to consider reasonableness of certificate. Constitutional law — Canadian Charter of Rights and Freedoms — Reasonable limits on Charter rights — Legal rights — Remedies for denial of rights — Procedural remedies — Exclusion of evidence — Appeal by Harkat from four Federal Court orders allowed in part — Harkat subject to security certificate for terrorism — Amended security certificate process not unconstitutional, as special advocate system ensured right to know case against named person not violated — Destruction of original CSIS evidence against Harkat violated his right to disclosure, warranting exclusion of summaries of evidence at hearing into reasonableness of certificate — New hearing required to consider reasonableness of certificate — Canadian Charter of Rights and Freedoms, ss. 1, 7, 24. Immigration law — Constitutional issues and legislation — Canadian Charter of Rights and Freedoms — Procedure (fundamental justice) — Appeal by Harkat from four Federal Court orders allowed in part — Harkat subject to security certificate for terrorism — Amended security certificate process not unconstitutional, as special advocate system ensured right to know case against named person not violated — Destruction of original CSIS evidence against Harkat violated his right to disclosure, warranting exclusion of summaries of evidence at hearing into reasonableness of certificate — New hearing required to consider reasonableness of certificate — Canadian Charter of Rights and Freedoms, ss. 1, 7, 24. Immigration law — Removal and deportation — Removal from Canada — Security certificate — Appeal by Harkat from four Federal Court orders allowed in part — Harkat subject to security certificate for terrorism — Amended security certificate process not unconstitutional, as special advocate system ensured right to know case against named person not violated — Court had discretion to lift ban on communication between advocates and named persons — Class privilege for police informants did not extend to human sources providing information to CSIS on Harkat — Destruction of original CSIS evidence against Harkat violated his right to disclosure, warranting exclusion of summaries of evidence — New hearing required to consider reasonableness of certificate — Immigration and Refugee Protection Act, ss. 33, 34, 77, 78, 82, 83, 85. Appeal by Harkat from four decisions of a Federal Court judge in relation to a security certificate issued against him. Harkat arrived in Canada in 1995 and was granted refugee status in 1998. A security certificate was issued against him in 2002, alleging he was inadmissible to Canada on the grounds of terrorism. Harkat's application for review of the certificate was dismissed in 2005, the judge finding that the security certificate process was constitutional and that reasonable grounds existed to believe Harkat had engaged in terrorism. Harkat's appeal to the Federal Court of Appeal was dismissed, but he and two others successfully appealed to the Supreme Court of Canada. The Supreme Court held the security certificate procedure unconstitutional because it limited the named person's right to know and answer the case against him. The Supreme Court suspended the declaration for one year, during which time changes were made to the procedure to incorporate a special advocate system into security certificate proceedings. This system provided the named person's advocates with the same access to information as judges, but limited advocates' ability to communicate with named persons subject to the court's discretion. By 2008, CSIS had destroyed volumes of intelligence gathered regarding Harkat. Only summaries of this evidence were provided to Harkat's special advocates. The advocates received disclosure of thousands of CSIS files in September 2008, but the sources from which CSIS obtained information were protected, the judge extending police informer privilege to covert human intelligence sources subject to a need to know exception. When it was disclosed that one of the human sources had failed a polygraph test, the judge ordered the disclosure of that entire source file to Harkat's special advocates, to restore confidence in the proceedings. The judge subsequently rejected a request from the advocates to examine sources, because such sources were protected by a common law class privilege. In December 2010, the judge upheld the reasonableness of the certificate issued against Harkat, confirmed the constitutionality of the certificate procedure, and rejected Harkat's application to either stay the proceedings or to exclude evidence based on an abuse of process. HELD: Appeal allowed in part. The new security certificate process reasonably informed named persons of the case against them and enabled them to answer it. The protection of the identity of the human sources remained necessary for national security reasons and was not an undue restriction on Harkat's rights. The class privilege for police informants should not have been extended to these sources, where Parliament had not legislated such protection. The Court still needed to consider each piece of evidence to determine whether or not disclosure to a named person would run contrary to national security. Limits on disclosure of information provided by foreign states were reasonable and accorded with principles of fundamental justice. As the Court had discretion to lift the ban on communication between the special advocates and the named person, there was nothing unfair about this aspect of the procedure. The destruction by CSIS of original evidence of conversations regarding Harkat breached his right to disclosure, and the appropriate remedy was to exclude the summaries of such conversations. A stay of proceedings was not warranted. The exclusion of the summaries necessitated a new decision on the reasonableness of the security certificate.