Today’s Supreme Court of
The respondent ministers signed a security certificate against C under s. 77(1) of the Immigration and Refugee Protection Act. C was then arrested and detained. Before the scheduled date of the fourth review of C’s detention, counsel for the ministers informed the judge at an in camera hearing that they had recently taken cognizance of a document that should have been disclosed to C at the outset of the proceedings but had not been disclosed because of an oversight. The document consisted of a summary of two interviews C had had with CSIS officers. The judge ordered that the summary be disclosed to C’s counsel forthwith. At this same hearing, counsel for the ministers filed fresh allegations about C that were based on information that was not in his file when the ministers signed the security certificate. The next day, the judge disclosed a summary of this new information to C. The detention review hearing was adjourned and C was granted a postponement. C then filed a motion to exclude the new evidence. He also requested that the complete notes of the two interviews conducted by CSIS be disclosed to him together with the recordings of the interviews. But the ministers informed the judge that there were no recordings in the file and that notes of interviews are, in accordance with an internal policy of CSIS, systematically destroyed once the officers have completed their reports. Alleging that his right to procedural fairness had been violated, C filed a motion for a stay of proceedings, in which he asked that the certificate be quashed and that he be released. In the alternative, he asked that the new evidence be excluded. The Federal Court and the Federal Court of Appeal dismissed the applications.
Held: The appeal should be allowed in part and the application for a stay of proceedings should be dismissed.
The destruction of operational notes is a breach of CSIS's duty to retain and disclose information, which derives from s. 12 of the Canadian Security Intelligence Service Act and a contextual analysis of the case law on the disclosure and retention of evidence. Section 12 provides that CSIS must acquire information to the extent that it is strictly necessary in order to carry out its mandate, and must then analyse and retain relevant information and intelligence. The CSIS policy on the management of operational notes rests on an erroneous interpretation of that provision. Section 12 does not require that collected information be destroyed, but instead demands that CSIS retain its operational notes when conducting an investigation that targets an individual or group. The retention of notes, which include drafts, diagrams, recordings and photographs, must serve a practical purpose. As a result, the meaning of the word "intelligence" in s. 12 should not be limited to the summaries prepared by officers. The original operational notes are a better source of information and of evidence.
Whether or not the constitutional guarantees of s. 7 of the Canadian Charter of Rights and Freedoms apply does not turn on a formal distinction between the different areas of law, but depends instead on the severity of the consequences of the state's actions for the individual's fundamental interests of liberty and security and, in some cases, the right to life. By its very nature, the security certificate procedure can place these rights in serious jeopardy. To protect them, it therefore becomes necessary to recognize a duty to disclose evidence based on s. 7 that goes beyond mere summaries. Investigations by CSIS play a central role in the decision on the issuance of a security certificate and the consequent removal order. The consequences of security certificates are often more severe than those of many criminal charges. As things stand, the destruction by CSIS officers of their operational notes compromises the very function of judicial review. To uphold the right to procedural fairness of people in C’s position, CSIS should be required to retain all the information in its possession and to disclose it to the ministers and the designated judge. The ministers and the designated judge will in turn be responsible for verifying the information they are given. If the ministers have access to all the original evidence, they will be better positioned to make appropriate decisions on issuing a certificate. The designated judge, who will have access to all the evidence, will then exclude any evidence that might pose a threat to national security and summarize the remaining evidence — which he or she will have been able to check for accuracy and reliability — for the named person. The duty of CSIS to retain and disclose the information submitted to the ministers and the designated judge also applies with respect to the person named in the certificate. However, confidentiality requirements related to public safety and state interests will place limits on how this duty is discharged. The judge must therefore filter the evidence he or she has verified and determine the limits of the access to which the named person will be entitled at each step of the process, both during the review of the validity of the certificate and at the detention review stage.
In this case, the designated judge granted the appropriate remedy for the late disclosure of the interview summary and the summary of the new allegations. By adjourning the hearing and granting a postponement of C’s detention review to enable C to prepare his testimony and defence, the judge averted any prejudice that might have resulted from the delay in disclosing the new evidence. Moreover, since it was C himself who had been questioned in the interviews, he had knowledge of the subject and doubtless knew what he had said on that occasion. As a result, he had sufficient time to prepare his testimony.
As for the new allegations filed by the ministers, any new evidence should be admitted, regardless of whether it is submitted to the designated judge by the ministers or by the named person. The judicial review process relates, on an ongoing basis, to both the certificate and the detention. It is not limited to a review of the bases for the ministers' initial decision. Furthermore, receiving new evidence in the course of this ongoing verification process is fairer, since such evidence can be as beneficial to the named person as to the ministers.
A stay of proceedings is not an appropriate remedy in this case. The only appropriate remedy is to confirm the duty to disclose C’s entire file to the designated judge and, after the judge has filtered it, to C and his counsel. This appeal is from an interlocutory judgment by the designated judge, not from his final decision on the reasonableness of the certificate. It would therefore be premature at this stage of the proceedings for the Court to determine how the destruction of the notes affects the reliability of the evidence. The designated judge will be in a position to make that determination, as he will have all the evidence before him and will be able to summon and question as witnesses those who took the interview notes. If he concludes that there is a reasonable basis for the security certificate but that the destruction of the notes had a prejudicial effect, he will then consider whether C should be granted a remedy.
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