The Federal Court and the Clash of the Titans: Balancing Human Rights and National Security - continuedPart 1
A significant aspect of how countries pursue their obligation to protect their citizens and national interests is to obtain information and derive intelligence from it. The goal, of course, is to prevent terrorist and other hostile acts.
As Ms. Gendron explains in her article, most information referred to as "intelligence" is obtained from open sources (for example web sites and newspaper reports). Some information, however, is obtained by covert means. The covert acquisition of information is necessary in order to assess threats posed by regimes and groups that are hostile and clandestine in their operations, often engaging in deception and operating in closed groups. Put simply, secrecy is required in order to counter the activities of those who operate in secret.
Ms. Gendron notes that the covert means used to gather secret intelligence include signals intelligence, the placement and tasking of human sources, satellite imagery, listening devices, the interception of cyber and other communications and covert searches.
With this background about national security, the post 9-11 threat to national security, and CSIS, I turn to where the Federal Court fits in the context of national security.
The Nature of the Federal Court's Jurisdiction in Matters of National Security
Is it is not well understood that the role of the Federal Court in national security matters is not new. As our Chief Justice Allan Lutfy noted in his May 2005 keynote address to an international seminar held in Ottawa entitled "Making National Security Accountable: International Perspectives on Intelligence Review and Oversight", 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 September 11 the jurisdiction of the Court has increased somewhat. The Anti-Terrorism Act, 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.
Under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act the Federal Court has been given jurisdiction to consider applications made by CSIS for disclosure of information held by FINTRAC (the Financial Transactions and Reports Analysis Centre of Canada) and jurisdiction to review decisions of the Director of FINTRAC objecting to the disclosure of information to police officers for use in a criminal investigation.
I now return to our more traditional jurisdiction. First, our work under the CSIS Act. Having outlined generically the nature of covert intelligence gathering, it follows that 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 appropriate Minister, 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 note parenthetically 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 in order 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 material filed to ensure that the sworn evidence meets all of the requirements of the CSIS Act for the issuance of a warrant. As the Chief Justice has noted, over the past two decades, keeping in mind human rights, privacy and other issues, 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.
The 2004-2005 SIRC Report shows that 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.
As part of its oversight, SIRC annually reviews a number of warrant applications approved by the Court. In its review SIRC has full access to all CSIS file materials in order to assess the accuracy of affidavit evidence filed with the Court.
Second, 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 disclosure of sensitive information outweighs the public interest in non-disclosure. 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 the secrecy requirement of section 38.
Third, our work under the Immigration and Refugee Protection Act, the most publicized being our jurisdiction with respect to security certificates signed by the Minister and the Minister of Citizenship and Immigration whereby they certify their belief that a person, other than the 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 scheme 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 such as 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 principal 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. First, Parliament provided in the legislation that where a person named in a security certificate applies for protection, the hearing into the reasonableness of the certificate must be suspended until the Minister decides the application for protection. Second, proceedings have been delayed while constitutional challenges have been brought to re-litigate the constitutional validity of the security certificate process. Third, proceedings have generally not been expeditiously pursued by persons named in security certificates.
One may speculate, and it is only speculation, that until the issue left open in Suresh as to the permissibility of any return to torture is settled, many of these matters will continue to be protracted.
Returning to the security certificate process, once signed by the responsible ministers a security certificate must be referred to the Chief Justice or a designated judge of the Federal Court for determination as to its reasonableness. If the reasonableness of the certificate is upheld, it becomes conclusive proof that 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.
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 that 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.
The judge's determination is to be made on the basis of the information made available to the judge. The judge 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, in order 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.
The process mandated by Parliament for reviewing the reasonableness of a security certificate, it can be seen, 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 review information provided by one party and determine how best that information must be probed. In the words of my colleague Mr. 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 objectively, impartiality and independence.
The Challenge the Clash of the Titans Poses to the Independence and Impartiality of the Judiciary
Critics of the legislation complain that in the absence of counsel for the individual to test the reliability of the Ministers' evidence, the designated judge is not in a position to test adequately the information and witnesses provided by the Ministers. Some also assert that the process poses a challenge to the perception of judicial independence and impartiality.
The importance of judicial independence and impartiality were recently restated by the Supreme Court when considering the validity of section 83.28 of the Criminal Code. Section 83.28 is comparable to the investigative Grand Jury system in the United States and provides for the making of an order to compel the testimony of material witnesses in the investigation of offences related to terrorist groups. While the majority of the Court upheld the validity of section 83.28, Mr. Justice LeBel, in dissent, held that by "co-opting" the judiciary to supervise the conduct of an investigative hearing, Parliament had impinged on the institutional independence of the judiciary by blurring in the minds of the public the roles of the executive and the judiciary in the criminal process.
The Federal Court of Appeal in the recent cases of Charkaoui, Almrei and Harkat has upheld the constitutionality of the provisions of the Immigration Refugee Protection Act that deal with security certificates. While the issue of the impact of the process upon judicial independence was not expressly before the Court of Appeal in those cases, in the Charkaoui appeal a constitutional question has been certified as to whether the process provided for in the Immigration Refugee Protection Act is invalid on the ground that it is said to infringe upon the independence of the judiciary. The appeals from the Court of Appeal on these three cases are to be heard by the Supreme Court in June of this year.
How the Federal Court and its Designated Judges Approach their Duties
We are constantly mindful of the responsibility placed upon us and are aware that in the words of Jeremy Bentham, "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity". When proceedings are not open to public scrutiny there is a tendency to suspect that what is secret must be Kafkaesque or perverse. I believe that we have developed at least a six-fold response to these concerns when discharging our duties.
First, we have accepted the responsibility to, in the words of my colleague Mr. Justice Blanchard in Almrei , rigorously and critically scrutinize confidential information before the Court. To similar effect are the comments of my colleagues Mr. Justice Simon Noël in Charkaoui and Mr. Justice Blais in Zündel.
In Harkat I endeavored to explain the manner in which we test confidential evidence. I wrote that, generally, if confidential information is provided by a human source, some relevant inquiries and areas for examination by the Court include matters such as: the origin and length of the relationship between the Service and the human source; whether the source was paid for information; what is known about the source's motive for providing information; whether the source has provided information about other persons, and, if so, particulars of that; the extent to which information provided by the source has been, or is, corroborated by other evidence or information; the citizenship/immigration status of the source and whether that status has changed through the course of the source's relationship with CSIS; whether the source has been subject to any pressure to provide information; whether the source was, or is, under investigation by the Service or any other intelligence agency or police force; whether the source has a criminal record or any outstanding criminal charges in Canada or elsewhere; the nature of any relationship between the source and the subject of the investigation; whether there is any known or inferred motive for the source to provide false information or otherwise mislead the investigation in any way.
If information is provided from another intelligence agency, some relevant inquiries and areas for examination include: how the Service assesses the reliability of information provided by that agency; to what extent has information from such agency been corroborated; is there any suggestion that the agency may have a motive for colouring the information provided; what is the human rights record of the agency and the agency's home country (as relevant to whether information may have been obtained through torture or cruel or inhumane treatment); how does the foreign agency itself assess the reliability of information it has provided; and is the agency a mere conduit for information originating from a less reliable agency.
If any confidential information is provided that is obtained through technical sources such as electronic surveillance, relevant inquiries include: the accuracy of any document that records intercepted information; the accuracy of any translation (if applicable); the objectivity or bias of any summary made of the intercepted information; and how the parties to any conversation are identified.
Regardless of the source of the evidence, questions must be posed as to the existence of any exculpatory evidence.
The reason we do this is that where counsel for the person concerned is not able to test the evidence we are faced with the stark alternatives of either rubber-stamping the position of the Ministers or conducting our own testing of the evidence. Rubber-stamping is not an acceptable option.
Our second response to the special nature of our duties is that we endeavor to provide as much information as possible to counsel for the person named in a security certificate. We do this by taking an active role in the preparation of the summary of information provided to the person concerned by examining and testing the evidence put before us to establish whether the disclosure of information would pose a danger to national security or to the safety of persons. The Ministers' counsel are pressed to disclose publicly as much information as possible. Summaries are revised and supplementary disclosure is provided through the course of the proceeding as it becomes possible to release more information. In both Harkat and Mahjoub, counsel for the persons concerned were invited to provide questions or areas of questioning to be put to witnesses produced in camera and ex parte on the Ministers' behalf. To the extent possible the answers given were disclosed to counsel, but even where no answer could be provided the information sought was nonetheless in evidence before the Court.
Third, we are conscious of the need to remain vigilant to balance the interests of national security and the rights and interests of a person named in a security certificate, or identified as a subject of a CSIS investigation, or otherwise affected by the actions of the state. Our reasons delivered in the context of detention review hearings have been critical of the conditions of detention and may have assisted as a catalyst for pending changes in the arrangements for the detention of persons named in security certificates. By way of further example, my colleague Mr. Justice MacKay while dealing with the continued detention of Mr. Jaballah, last month found that the long, continuing detention of Mr. Jaballah, a foreign national, without any statutory opportunity for review of that detention pending consideration of the reasonableness of the security certificate, resulted in a loss of Mr. Jaballah's right to equal benefit of the law contrary to subsection 15(1) of the Charter when compared with the circumstances for a similarly detained permanent resident. Those circumstances were found to warrant, as a remedy under subsection 24(1) of the Charter, the right to a detention review on the same grounds as are available to a similarly situated permanent resident. Twice, in Suresh and Charkaoui the Court has released persons named in security certificates from incarceration and imposed conditions for this detention within the community.
Fourth, we endeavor to be as transparent as possible in what we do. We approach this by writing extensive reasons describing the process we follow and the steps we have taken to test evidence that is tendered ex parte and in camera. As well, through presentations such as the keynote address given by the Chief Justice, an address given by my colleague Mr. Justice Simon Noël to the Raoul Wallenberg Lecture in New York in January of 2006, and this one, we hope to promote a greater understanding of what we do.
Fifth, as designated judges we frequently meet together to discuss, among other things, issues encountered in warrant applications, new developments in the evolving jurisprudence concerning security certificates, international jurisprudence, and what can be described as "best practices generally".
Sixth, we are 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.
With Mr. Archdeacon's assistance we are developing contacts with colleagues in other jurisdictions who are also involved in national security proceedings. Within the past year we have received the Chief Justice of the Foreign Intelligence Surveillance Court of the United States who discussed the work of her Court, Chief Justice Barak of Israel who discussed judgments of his Court which have balanced human rights against terrorism, and Assad Mubarak, a High Court Judge in the Palestinian Authority who explained the work of his Court.
We have received presentations from people such as Professor Alan Borovoy on human rights, Professor Martin Rudner on "What is al-Qaeda and how has it evolved" and Frederick Hitz, the former Inspector-General of the Central Intelligence Agency, on his oversight role in that U.S. agency.
We are currently finalizing sessions on privacy issues and national security, the role of SIRC in the national security apparatus, and an appropriate method for learning more about technological advancements that relate to the warrant powers we grant. All such sessions must take place in a forum that cannot be seen to trench upon our judicial independence.
Of necessity, some work touching upon national security cannot be conducted in public with all of the protections that come with the adversarial system. At the same time, 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.