Canadian Bar Association - Annual Meeting
August 13-15, 2006
Speech by Honourable Emond Blanchard
I am very happy to be in St. John's today and participate in this forum.
The topic we are discussing is of great interest to Canadians. It is a serious debate characterized by some as the clash of Titans - Human rights and National Security. The topic is fundamental to our democratic values - the balance of human rights and human dignity, and the need to provide for the security of those national institutions which are charged with the protection of those values. Debating the issue is a healthy exercise in a democracy.
I propose today to talk about the role of the Federal Court in national security matters. The legislation provides that these matters be heard by the Chief Justice of the Federal Court or a judge of the Court designated by him. Before going further, there are a few caveats. As a judge, it is not appropriate for me to engage in debate or comment on the policy choices which Parliament has made in respect to national security. It is a matter of informed debate between citizens and their parliamentarians. I see my participation today to help inform the debate by imparting information about the Court's role. As a designated judge, my work requires that I have access to sensitive information and it is therefore important that I maintain a degree of judicial restraint and discretion. This will preclude my ability to fully address questions that may touch on protected information.
The Federal Court is a statutory court and finds its jurisdiction in national security matters in a number of Federal laws. Those judges of the Federal Court, who are designated by its Chief Justice to exercise the Court's jurisdiction in the area of national security, do so pursuant to the following statutes:
The Canadian Security Intelligence Service Act (the "CSIS Act"), R.S. 1985, c. C-23.
The Canada Evidence Act, R.S.C. 1985, c. C-5.
The Immigration and Refugee Protection Act, S.C. 2001, c. 27. (IRPA)
The Anti-Terrorism Act, S.C. 2001, c.41.
Each of these statutes charges the designated judge with specific responsibilities in national security matters. I want to review how we exercise this responsibility in warrant applications; section 38 applications under the Canada Evidence Act and security certificates cases. In so doing I will outline the applicable process in each and discuss how the Court has approached its statutorily imposed duties in the difficult task of balancing the interests in play. I will do so particularly in respect to protected information and ex parte in camera proceedings. Our task is a basic judicial role, that is to say assessing facts in light of evidence and interpreting and applying legislation.
The Court is called upon to sit in review of decisions made by the executive branch. It is therefore not the Court, in certificate cases, that decides whether a person is a threat to Canada's security, but rather the government acting through its Ministers. The court's role is to determine whether the Security Certificate is reasonable based on the evidence adduced.
National Security defined:
The term "national security" is a concept that is more difficult to define than might appear at first glance. The McDonald Commission suggested in 1981 that two concepts were central: the need to preserve the territory of our country from attack, and the need to preserve and maintain the democratic processes of government. Any attempt to subvert these by violent means is a threat to the security of Canada.
The Canadian Security Intelligence Service Act also defines "threats to the security of Canada" to include espionage and sabotage, foreign influenced events detrimental to Canada, efforts to threaten or use serious violence to achieve a political, religious or ideological objective, and efforts to overthrow the government.
A threat to Canada's security, as defined by the Act, does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the above activities.
Historically, national security may have equated to the defence of the realm, but it is now recognized that terrorism in one country may implicate other countries. Thus, in Suresh the Supreme Court of Canada concluded that a danger to the security of Canada is not limited to proof of a direct threat to Canada.
What is required said the Court is "a real and serious possibility of adverse effect to Canada. But the threat need not be direct, rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security".
Canada's national security policy reflects three core interests, which reflect the inter-relation of our security with that of other countries. The interests are:
- protecting Canada and the safety and security of Canadians at home and abroad;
- ensuring that Canada is not used as a base for threats against our allies; and
- contributing to international security.
Over the years, threats to national security have changed. During the Cold War, the major threat to Canadian security came from the Warsaw Pact's military and intelligence capabilities. For Canada, since the Air India tragedy in 1985, and for other allies since 9/11, the major threat to our national security is now clearly seen as that posed by individuals or groups motivated by ideology. As recent events in Spain, the United Kingdom, Canada, and the United States have shown, these individuals may include citizens or legal residents, born or raised within the societies they wish to target.
Combating terrorist threats from external or internal sources is, of course, the responsibility of the executive branch of government. It must use police, military, or intelligence resources with due regard to our civil liberties, and Canadian values and the rights protected by the Charter of Rights and Freedoms. By enacting laws to achieve these aims, Parliamentarians have given the Federal Court a substantial role to play.
I turn now to the Court's role in the context of national security.
The Nature of the Federal Court's Jurisdiction in Matters of National Security The role of the Federal Court in national security matters is not new. For over 20 years the Chief Justice of the Federal Court, or judges of the Court designated by him, have heard national security proceedings pursuant to the CSIS Act, section 38 of the Canada Evidence Act and immigration legislation.
Before expanding a bit on each of those three sources of jurisdiction, I note for completeness that since 9/11 the jurisdiction of the Court has increased somewhat. The Anti-Terrorism Act of 2001 gives the Court jurisdiction to judicially review the listing - by the Governor in Council - of any entity there are reasonable grounds to believe has carried out, attempted to carry out, participated in or facilitated a terrorist act.
The Court was also given jurisdiction to issue warrants for the seizure or forfeiture of property owned or used by a terrorist group.
I now return to the statutes that govern our more traditional jurisdiction. First, our work under the CSIS Act. The rule of law requires judicial supervision and authorization of intrusive methods of intelligence gathering that would otherwise be illegal. It is exclusively the Federal Court that exercises such jurisdiction.
On an application made by CSIS, approved by the Minister of Public Safety and Emergency Preparedness (Minister of Public Safety), the Court may issue warrants to enable the Service to investigate a threat to the security of Canada or to assist the Minister of Foreign Affairs or the Minister of National Defence in collecting intelligence on matters relating to the conduct of international affairs or the defence of Canada.
How are these warrants obtained? One designated judge is on duty every seven days to respond to applications that may be filed. I should point out that, contrary to what I have read on the internet, CSIS has no role in determining which judges of the Court are designated by the Chief Justice to hear any national security matters. The identity of the duty Judge is not disclosed in advance to avoid any possibility or perception of judge shopping. Warrant applications are conducted in private, in the Court's secure premises. The application and evidence filed in support of an application are filed in confidence and remain under the control of the Court as a court of record.
The duty judge studies the materials filed to ensure the sworn evidence meets all of the requirements of the CSIS Act for the issuance of a warrant. These requirements are set out in sections 21 to 28 of the Act. As the Chief Justice has noted, over the past two decades, the Court's designated judges have provided constructive criticism to the Service and its counsel that has steadily improved the quality of applications for, and the terms of, the warrants granted by the Court.
An oral hearing is held and a typical hearing is attended by counsel for CSIS, the CSIS affiant, and CSIS analysts knowledgeable about the application. Court is formally opened by a court registrar who remains in Court, as in any hearing. The judge has the full opportunity to question the affiant or the analyst under oath on matters of fact. Counsel for CSIS may, of course, be questioned on matters of law.
As part of its oversight, the Security Intelligence Review Committee, or SIRC, annually reviews a number of warrant applications approved by the Court. In its review, SIRC has full access to all CSIS file materials to assess the accuracy of affidavit evidence filed with the Court.
The 2004-2005 SIRC Report shows - for that fiscal year - the Court approved 247 warrants, of which 40 were new and 207 replaced, renewed, or supplemented existing warrants. Nine of the warrants were sought on an urgent basis. This is therefore an ongoing task for designated judges of the Court.
I turn now to our work under the Canada Evidence Act. Where the Attorney General of Canada is of the view that "sensitive information" (as defined) is about to be disclosed before any court or tribunal in Canada, including a judicial inquiry, section 38 of the Canada Evidence Act provides that the issue of disclosure must be referred to the Federal Court for adjudication.
The task of the designated judge in these cases is to balance legitimate competing interests: whether the interest in non-disclosure of sensitive information outweighs the public interest for openness. The Court requires and reviews specific affidavit evidence provided to establish that disclosure of information will harm national security. The designated judge can and does receive, in the absence of the government's counsel and representatives, submissions from the private party as to why it needs the sensitive information. This is extremely important in balancing the competing interests. Questions considered by the designated judge may include whether a portion of the information can be made public, whether the information can be made public in summary form, whether consent can be obtained from the source of the information to allow disclosure.
Questions have been raised as to the necessity of all of the confidentiality requirements that surround section 38. All section 38 proceedings must be conducted in private, even where all parties are present and no secret information is disclosed. The Court cannot acknowledge the existence of section 38 proceedings in the absence of the consent of the Attorney General, and there is uncertainty as to whether decisions rendered by the Court under section 38 may be distributed, even to other judges of the Court designated to conduct such proceedings. In a recent decision involving the Ottawa Citizen our Chief Justice, in written reasons, raised concerns about the difficulties presented by certain secrecy requirements of section 38.
Now let me turn to our work under the Immigration and Refugee Protection Act. Under this Act, our most publicized jurisdiction deals with security certificates signed by the Ministers of Public Safety and of Citizenship and Immigration whereby they certify their belief that a person, other than a Canadian citizen, is inadmissible to Canada on grounds of security, violating human or international rights, or participation in serious or organized criminality.
The procedure established under the Immigration Refugee Protection Act was intended to be a mechanism for the summary removal from Canada of non-citizens viewed to present a danger to its security. The right to remove non-citizens is consistent with jurisprudence of the Supreme Court in Chiarelli where the Court characterized "the most fundamental principle of immigration law" to be that "non-citizens do not have an unqualified right to enter or remain in the country". The Court went on to quote from its earlier decision in Kindler that "[t]he Government has the right and duty to keep out and expel aliens from this country if it considers it advisable to do so". This principle of law was recently restated by the Supreme Court in Medovarski.
Admittedly, in recent years this process has not been particularly summary in nature. In enacting the detention provisions, did Parliament anticipate that persons would be incarcerated for these lengthy periods? Why have these cases been protracted? There are a number of reasons and a number of legitimate opinions. Among them, the following:
First, Parliament provided in the legislation that where a person named in a security certificate applies for protection, pursuant to section 112 of the IRPA, the hearing into the reasonableness of the certificate must be suspended until the Minister decides the application for protection. Second, proceedings may not have been expeditiously pursued by persons named in security certificates. Third, proceedings have been delayed while constitutional challenges have been brought to re-litigate the constitutional validity of the security certificate process. I say re-litigate because the security certificate process was constitutionally challenged before the Federal Court in Ahani. In a comprehensive decision, Justice Donna McGillis, found that the provisions contained in the prior act analogous to sections 77 and 78 of the IRPA, the provisions that set out the security certificate process, did not violate rights protected under sections 7, 9 and 10(c) of the Charter. On appeal, the Court of Appeal held that Justice McGillis had correctly dealt with each issue raised. Further, leave to appeal to the Supreme Court was denied. In respect to the Charter issues argued before Justice McGillis, her decision therefore reflects the current state of the jurisprudence. Recently, the Federal Court of Appeal in the cases of Charkaoui, Almrei, and Harkat has upheld the constitutionality of the provisions of the IRPA that deal with security certificates. These maters are currently before the Supreme Court. In Charkaoui it was argued before the Supreme Court that the security certificate process is invalid on the ground that it is said to infringe upon the independence of the judiciary.
Returning to the security certificate process, once a security certificate has been signed by the Ministers, a foreign national named in it must be arrested and be detained pending determination of the reasonableness of the certificate. In the case of a foreign national who is a permanent resident, the Ministers may issue a warrant for his or her arrest and detention if they have reasonable grounds to believe the person is a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
The Act provides for review by a Federal Court judge of the detention of a permanent resident pending a decision on the reasonableness of the certificate. In Jaballah, Justice MacKay extended the same benefit to a non-permanent resident.
The Act also provides that a security certificate must be referred to the Chief Justice or a designated Judge for a determination as to its reasonableness. The judge's reasonableness determination is to be made on the basis of the information made available to the judge, who is given discretion to receive into evidence anything the judge considers appropriate, even if the information would not be admissible under the normal rules of evidence.
Much of the information relied upon by the Ministers to support the reasonableness of the security certificate is sensitive intelligence. Thus, the Act requires the judge to ensure the confidentiality of information submitted to the Court, where the judge is of the view that its disclosure would be injurious to national security or to the safety of any person. The judge is required to examine the information in private and, at the request of the Ministers, the judge must exclude the person concerned and his or her counsel from the hearing if, in the judge's opinion, the disclosure of that part of the evidence would be injurious to national security or to the safety of any person.
In view of the non-disclosure requirements, for the person concerned to be reasonably informed of the circumstances giving rise to the certificate, the judge is required to prepare and provide the individual with a summary of as much information as the judge has received as can be disclosed without injury to national security or the safety of any person. Examples of information that must be kept confidential include:
- Information obtained from human sources, where disclosure of the information would identify the source and put the source's life in danger.
- Information about ongoing investigations where disclosure of the information would alert those working against Canada's interest and allow them to take evasive action.
- Information obtained from foreign countries or foreign intelligence agencies where unauthorized disclosure would cause such countries or agencies in future to decline to entrust their own secret information to an insecure or untrustworthy recipient. In Ruby, the Supreme Court observed that Canada is a net importer of intelligence information, and that such information is necessary for the security and defence of Canada and its allies.
- Information about the technical means and capabilities of surveillance and about certain methods or techniques of investigation of the Service where disclosure would assist persons of interest to the Service to avoid or evade detection or surveillance or the interception of information.
If the reasonableness of the certificate is upheld, it becomes conclusive proof the person named is inadmissible to Canada and the certificate takes immediate effect as a removal order. The judge's determination of whether the certificate is reasonable is not subject to any appeal or judicial review.
The process mandated by Parliament for reviewing the reasonableness of a security certificate therefore puts the designated judge in a very unusual and difficult position.
The legislation makes the designated judge responsible for ensuring the confidentiality of information put before the Court where its disclosure would be injurious. In the absence of counsel for the person concerned, the designated judge is required to carefully scrutinize in detail the information provided by one party. In the words of my colleague Justice Simon Noël in Charkaoui the designated judge must acquire "thorough knowledge" of the confidential information. The judge must be "curious, concerned by what is advanced, and maintain a skeptical attitude with the objective of conducting a critical review of the facts". Where necessary the judge must "question [the Service's] interpretation of the facts and verify whether there are not other possible interpretations that might tend to favour" the person named in the certificate. This must be done while maintaining objectivity, impartiality and independence.
The Court is keenly aware of the concerns that arise when proceedings are not open to public scrutiny. In response we have adopted measures to respond to these concerns when discharging our duties. Among these, the Court has accepted the responsibility to rigourously and critically scrutinize confidential information before the Court and inquire as to the existence of exculpatory evidence. Generally, if confidential information is provided by a human source we inquire about the origin and length of the relationship with CSIS; whether the source was paid for the information; whether there is a known motive, other than financial, for the source's willingness to provide information; whether there is any pressure that is being exerted by Government authorities (immigration officials, police); and whether there is any known or suspected motive that might influence the source to provide false or misleading information.
If information is provided from another intelligence agency, we ask how the Service generally rates the quality of information obtained from that agency; whether there is any independent corroboration of the information; whether the agency has its own agenda that might lead it to colour information provided to Canada; and whether the agency could be simply a conduit for information provided by a less reliable agency, or one that is known to show scant regard for human rights.
If the information is provided from technical sources, we ask about the accuracy of the transcripts, including the accuracy of the translation; we also ask about any possibility of bias in the interpretation of the information.
We also endeavour to provide as much information as possible to counsel for the person named in a security certificate. We invite questions to be put to the Minister's witnesses. In respect to the process, the Court makes every effort to be as transparent as possible in its reasons and public addresses. Finally the Court is reaching out to better the expertise the Court has developed over the past 20 years. Maurice Archdeacon, a former Executive Director of SIRC and past Inspector General of CSIS, has worked with the Court to better our continuing judicial education program in matters concerning privacy, human rights, and national security.
Critics of the Security Certificate process continue to assert that there are better ways to conduct national security proceedings. They maintain that the designated judge is not in a position to adequately test the reliability of the information and that by doing so the perception of judicial neutrality is affected. Some argue that the process used some years ago by the Security Intelligence Review Committee (SIRC) in immigration cases is a superior process because it is thought to have used special Advocates or Amicus Curia. Without engaging in a debate on an issue that is currently before the Supreme Court, it is worth noting that the SIRC process referred to was very similar to the methods used in a Judicial Inquiry. The SIRC counsel worked for and supported in every way the Committee Member presiding over the hearing. He or she cross-examined all witnesses in open session or in camera. SIRC counsel would also offer to ask questions proposed to him or her by defence counsel during the in camera sessions when that person was necessarily absent. But he or she gave no assurance that the answers would be provided to counsel for the defence. SIRC counsel never acted on behalf of the person concerned in the hearing, as does a Special Advocate in the United Kingdom. Our Court has expressed the view, without deciding the issue, that we have jurisdiction to appoint an amicus to assist the court where the circumstances warrant such an appointment. In the few cases where the issue was argued the Court found that the appointment was not warranted in the circumstances of the particular case.
Whatever role, if any, the future reserves for special Advocates or Amicus Curiae, it is critical at the outset that the role of such individuals in the process be clearly defined, however they are labelled. Questions such as the following may be worth pondering in developing the Canadian approach: For example:
- Should we import the "special advocate model" from the United Kingdom? The British model does not permit counsel to take instructions from the persons they are representing once counsel has had access to the protected information. This has led to significant problems in terms of the solicitor-client relationship.
- Should an "amicus curia" model be adopted where counsel would be charged with assisting the Court in testing the information and have no obligation to defend the interest of the individual affected by the security certificate?
- Should an advisor knowledgeable in security matters, with access to the protected information be made available to assist the Court?
Wherever the debate leads us, it is important that we not lose sight of the fact that the Federal Court, in Security Certificate cases, is essentially sitting in judicial review of government decisions. Our mandate is to determine on the evidence whether the Security Certificate is reasonable.
Of necessity, some work touching upon national security cannot be conducted in public with all of the protections that come with the adversarial system. While the role of judge as examiner is not part of our common-law tradition, the Federal Court acts to moderate the Clash of the Titans, in factual circumstances that are unlikely to change in the near future, in order to achieve the optimal balance between human rights, civil rights and equality on one hand and the needs of national security on the other.