IMM-2139-06
2007 FC 372
Maximin Segasayo (Applicant)
v.
The Minister of Public Safety and Emergency Preparedness (Respondent)
Indexed as: Segasayo v. Canada (Minister of Public Safety and Emergency Preparedness) (F.C.)
Federal Court, Blais J.—Ottawa, February 19 and April 11, 2007.
Citzenship and Immigration — Immigration Practice — Motion for summary of secret evidence upon which respondent relied to deny applicant ministerial exemption denied; motion for non-disclosure of secret evidence allowed — Minister entitled to consult secret evidence in reaching decision on ministerial relief pursuant to Immigration and Refugee Protection Act, s. 35 — Although not so directly, s. 87 applicable for non-disclosure by reason of national security by applying gap rule — Weighing competing interests, secret evidence should not be disclosed — Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, declaring procedures at ss. 77 to 85 unconstitutional, distinguished — S. 87(2) expressly excluding obligation to provide summary.
This was a motion by the respondent for non-disclosure of secret evidence pursuant to Immigration and Refugee Protection Act, section 87. In response, the applicant filed a motion for a summary of the secret evidence upon which the respondent relied to deny him a ministerial exemption. The applicant’s permanent residence application had been refused on the ground that he was inadmissible as a result of his prior status as the Rwandan ambassador of two regimes which had been designated as having engaged in crimes against humanity. The applicant sought ministerial relief under subsection 35(2) on the ground that he was not complicit in the crimes committed during the Rwandan genocide. On judicial review, a redacted certified tribunal record was produced on the ground that disclosure of the redacted portions would be injurious to national security. The respondent still wishes to rely on the secret evidence for the purposes of responding to the judicial review application.
Subsection 87(1) permits the Minister, in the course of a judicial review, to apply for non-disclosure of information protected under section 86 or considered under section 11, 112 or 115. Subsection 87(2) provides that section 78 applies to the determination of the application except for the provisions relating to the obligation to provide a summary.
Held, the motion for non-disclosure should be allowed and the motion for a summary of the secret evidence should be dismissed.
(1) The Minister was entitled to consult the secret evidence in coming to his decision on the application for ministerial relief. While there is no specific provision in the Act allowing the Minister to rely on secret evidence, there is also no limitation placed on the Minister as to what he may take into consideration in making his decision. But two recent cases involving section 34 have permitted the non-disclosure of confidential material due to its potential effects on national security. Additionally, by virtue of the nature of the inquiry under section 35, it is implicit that confidential information will be contemplated.
(2) There was no breach of the applicant’s right to procedural fairness. There are no rules within the Federal Courts Rules or the Federal Courts Immigration and Refugee Protection Rules (Immigration Rules) which specifically provide for non-disclosure of materials based on national security. Federal Courts Rules, rules 317 and 318 permit a tribunal to object to a request for disclosure but do not apply because they are not included in the list of rules that apply in subrule 4(1) of the Immigration Rules. The only sections of the Act which speak to the matter of non-disclosure are sections 86 and 87, but they are not directly applicable. However, by applying the gap rule in Federal Courts Rules, rule 4, the applicable section for non-disclosure by reason of national security is section 87.
After weighing the duty of fairness to the applicant to provide full and frank disclosure against the public interest in protecting information injurious to national security, thoroughly scrutinizing the secret evidence, and determining its reliability, contents, probative value and cogency, the information should not be disclosed. The amount of secret evidence also represents a very small portion of the information regarding the applicant.
Finally, Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 declaring the procedure found at sections 77 to 85 of the Act unconstitutional in the context of security certificates, was distinguished from when section 78 procedures are followed in the context of applications under section 87 for non-disclosure. In the context of applications for non-disclosure, the liberty interest is not at stake. Also, the person named in a security certificate will have no way of knowing the extent of the information being withheld whereas under section 87 the person can determine the exact amount of information that is being withheld from the redacted tribunal record.
(3) It would be inconsistent with the legislative intent to import into section 87 the requirement that the Minister must provide a summary of the confidential information. Subsection 87(2) specifically excludes the obligation to provide a summary.
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Federal Courts Act, R.S.C., 1985, c. F-7, s. 1 (as am. by S.C. 2002, c. 8, s. 14), 2(1) “federal board, commission or other tribunal” (as am. idem, s. 15).
Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 (as am. by SOR/2005-339, s. 1), r. 4 (as am. idem, s. 3).
Federal Courts Rules, SOR/98-106, rr. 1 (as am. by SOR/2004-283, s. 2), 4, 317 (as am. by SOR/2002-417, s. 19; 2006-219, s. 11(F)), 318.
Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(l) (as am. by S.C. 1992, c. 49, s. 11).
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 11, 34, 35, 77 (as am. by S.C. 2002, c. 8, s. 194), 78, 79 (as am. idem), 80, 81, 82, 83, 84, 85, 86, 87, 112, 115.
cases judicially considered
applied:
Mohammed v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 300; (2006), 57 Imm. L.R. (3d) 105; 2006 FC 1310; Naeem v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 658; 2007 FC 123.
distinguished:
Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350; (2007), 276 D.L.R. (4th) 594; 54 Admin. L.R. (4th) 1; 44 C.R. (6th) 1; 59 Imm. L.R. (3d) 1; 358 N.R. 1; 2007 SCC 9.
referred to:
Charkaoui (Re), [2005] 2 F.C.R. 299; (2004), 247 D.L.R. (4th) 405; 2004 FCA 421; Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; (2000), 195 D.L.R. (4th) 422; 265 N.R. 121 (C.A.); Zündel (Re) (2005), 251 D.L.R. (4th) 511; 259 F.T.R. 36; 44 Imm. L.R. (3d) 279; 2005 FC 295.
MOTION for a summary of the secret evidence upon which the respondent relied to deny a ministerial exemption to the applicant and motion for non-disclosure of such secret evidence. Motion for non-disclosure should be allowed and the motion for a summary of the secret evidence should be dismissed.
appearances:
Laurie Joe for applicant.
Alexandre Kaufman, Michelle L. Smith and Agnieszka Zagorska for respondent.
solicitors of record:
West End Legal Services of Ottawa, Ottawa, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order and order rendered in English by
[1]Blais J.: The respondent filed a motion for non-disclosure of certain information (the secret evidence) pursuant to section 87 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), in connection with an application for judicial review (IMM-2139-06) to be heard on March 29, 2007.
[2]In response, Maximin Segasayo (the applicant) filed a motion for a summary of the secret evidence.
RELEVANT FACTS
[3]The applicant was the Rwandan ambassador to Canada from 1991 to 1995. On January 26, 1996, the applicant and his family were given Convention refugee status by the Immigration and Refugee Board (the Board). The applicant and his family subsequently filed applications for permanent residence.
[4]On April 27, 1998, the Minister of Citizenship and Immigration Canada (CIC) designated the Rwandan government as a regime which engaged in crimes against humanity and genocide from October 1990 to April 1994, and from April 1994 to July 1994. As a result of his prior status as the Rwandan ambassador of two designated regimes, the applicant was advised by CIC on July 20, 1998, that he was inadmissible to be landed in Canada, in accordance with paragraph 19(1)(l) [as am. by S.C. 1992, c. 49, s. 11] of the Immigration Act, R.S.C., 1985, c. I-2.
[5]On August 5, 1998, the applicant sought a ministerial exemption on the basis that he was not complicit in the crimes committed during the Rwandan genocide of 1994, and for that reason, his permanent presence in Canada would not be detrimental to the national interest. Under the current legislation, the ministerial relief provision is found at subsection 35(2) of the Act. The Minister of Public Safety and Emergency Preparedness (the Minister) denied the application on February 24, 2006. In rendering his decision, the Minister relied upon secret evidence, as a portion of the record disclosed to the applicant was redacted.
[6]On March 24, 2006, the applicant sought judicial review of the Minister’s decision. For the purposes of the judicial review, the Board produced a redacted certified tribunal record on the grounds that disclosure of the redacted portions would be injurious to national security or the safety of any person.
[7]The respondent then brought before this Court a motion under section 87 of the Act for non-disclosure, requesting:
(a) An order under subsection 87(1) of the Act for the non-disclosure of the secret evidence to the applicant, his counsel and the public; or
(b) In the event that this Court concludes that the requirements for non-disclosure have not been satisfied with respect to some or all of the secret evidence, that this secret evidence be returned to it, that it not form part of the Court file and that it not be disclosed to the applicant, his counsel and the public.
[8]Although the respondent seeks the non-disclosure of the secret evidence, the respondent still wishes to rely on the secret evidence for the purposes of responding to the judicial review application.
[9]In response to the motion for non-disclosure, the applicant has brought a motion requesting a summary of the undisclosed information, but only in the event that the Court orders the secret evidence not to be disclosed to the applicant.
ISSUES FOR CONSIDERATION
1. Was the Minister entitled to rely on the secret evidence when deciding the application for ministerial relief?
2. Did the Minister breach the duty of fairness by not disclosing the secret evidence relied upon when deciding the application for ministerial relief?
3. Alternatively, if the Court orders that the secret evidence not be disclosed to the applicant, is the applicant entitled to a summary of that evidence?
ANALYSIS
1. Was the Minister entitled to rely on the secret evidence when deciding the application for ministerial relief?
[10]The applicant raised a preliminary matter by arguing that the Minister erred by relying on secret evidence when he denied his ministerial relief application. In particular, the applicant argues that section 87 of the Act is the only section that deals with secret evidence, and that section 87 does not refer to section 35 of the Act.
[11]The parties are in general agreement that the Act does not explicitly provide any legislative authority for the Minister to rely on undisclosed secret evidence when rendering a decision for ministerial relief under subsection 35(2) of the Act. However, while there is no specific provision allowing the Minister to rely on secret evidence, there is also no limitation placed on the Minister as to what he may take into consideration in making his decision. It is undeniable that the applicant’s case is made all the more difficult because he is unable to have access to information which may have an impact on the adequacy of his submissions in the judicial review application; however, the applicant failed to cite any jurisprudence stating that the Minister is unable to consider certain information to which he has access. In contrast, there have been two recent cases, similar to the case at bar, where the non-disclosure of confidential material was permitted due to its potential effects on national security, even despite the absence of a legislative scheme for the withholding of sensitive information (Mohammed v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 300 (F.C.), Naeem v. Canada (Minister of Citizenship and Immigration), [2007] 4 F.C.R. 658 (F.C.). Although Mohammed and Naeem involve section 34 of the Act as opposed to section 35, they dealt with the same procedural question as the case at bar: the non-disclosure of sensitive information by the Minister for reasons of national security and the safety of persons, absent any definitive legislative authority. The differences between the two sections for the purposes of this motion are immaterial.
[12]Additionally, by virtue of the nature of the inquiry under section 35 of the Act, i.e. national interest, it is implicit that confidential information will be contemplated. Furthermore, any evidence relied upon by the Minister does not become “secret” until a request has been made for disclosure.
[13]Therefore, in my view, the Minister was able to consult the secret evidence in coming to his decision on the application for ministerial relief. The statutory authority of the Minister to withhold certain information relevant to national security is explained more fully below.
2. Did the Minister breach the duty of fairness by not disclosing the secret evidence relied upon when deciding the application for ministerial relief?
[14]I have carefully reviewed the secret evidence and after conducting a thorough analysis of the information contained therein and weighing the balance of interests involved, I am of the firm view that the information sought to be released (subject to the partial disclosure of a portion of the redacted tribunal record agreed to by the Minister) should not be disclosed and as such, the Minister did not breach the duty of fairness for the following reasons.
[15]There are no rules within the Federal Courts Rules, SOR/98-106, r. 1 (as. am. by SOR/2004-283, s. 2), or the Federal Courts Immigration and Refugee Protection Rules, SOR/93-22 (as am. by SOR/2005-339, s. 1) (the Immigration Rules), which specifically provide for non-disclosure of materials based on national security. The only sections within the Act which speaks to the matter of non-disclosure are sections 86 and 87. However, those sections are not directly applicable here as section 86 applies only with respect to admissibility hearings, a detention review or an appeal before the Immigration Appeal Division. Section 87 concerns only information pursuant to section 11, 86, 112 or 115 of the Act. None of those requirements apply in this case, as the applicant was denied ministerial relief under subsection 35(2) of the Act.
[16]Rules 317 [as am. by SOR/2002-417, s. 19; 2006-219, s. 11(F)] and 318, contained in Part V of the Federal Courts Rules, also address the subject of non-disclosure by permitting a tribunal to object to a request for disclosure of relevant materials in its possession. The Minister is considered to be a tribunal [as am. by S.C. 2002, c. 8, s. 15] pursuant to subsection 2(1) of the Federal Courts Act, R.S.C., 1985, c. F-7 [s. 1 (as am. by S.C. 2002, c. 8, s. 14)]. However, rules 317 and 318 of the Federal Court Rules do not apply in the context of the Immigration Rules, because they are not included within subrule 4(1) [as am. by SOR/2005-339, s. 3] of the Immigration Rules. The current version of subrules 4(1) and (2) (as am. idem) of the Immigration Rules states:
4. (1) Subject to subrule (2), except to the extent that they are inconsistent with the Act or these Rules, Parts 1 to 3, 6, 7, 10 and 11 and rules 383 to 385 of the Federal Courts Rules apply to applications for leave, applications for judicial review and appeals.
(2) Rule 133 of the Federal Courts Rules does not apply to the service of an application for leave or an application for judicial review.
[17]The procedural difficulties in respect of non-disclosure of secret evidence on the basis of national security have been previously discussed by this Court in Mohammed, above, and Naeem, above. Both of my colleagues have dealt with the lacuna in the rules by applying rule 4 of the Federal Courts Rules in order to bridge the gap left by this legislative oversight (Naeem, above). Rule 4 of the Federal Courts Rules provides:
4. On motion, the Court may provide for any procedural matter not provided for in these Rules or in an Act of Parliament by analogy to these Rules or by reference to the practice of the superior court of the province to which the subject-matter of the proceeding most closely relates.
[18]In my view, this is the correct approach to take and I will adopt the procedures outlined by my colleagues in Mohammed, above, and Naeem, above.
[19]In short, the applicable section for non-disclosure by reason of national security is section 87 of the Act. In addition, the parties both agree that section 87 is the most closely related procedure in the Act that deals with non-disclosure of information. Section 87 states:
87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require
[20]In considering whether the redacted portions of the tribunal record should be disclosed, I have weighed two competing factors in this case. The first is the duty of fairness to the applicant so as to provide a “full and frank disclosure” of all relevant information (Charkaoui (Re), [2005] 2 F.C.R. 299 (F.C.A.)). This is essential because the applicant has the onus of establishing his case and has the burden of providing adequate reply in the judicial review. The other factor to be considered is the public interest in protecting information injurious to national security.
[21]After thoroughly scrutinizing the secret evidence and determining its reliability, its contents, its probative value, and its cogency, I have no hesitation in ruling that it remain undisclosed to the applicant, his counsel and the public, subject to those portions the Minister had agreed to release during the ex parte in-camera hearing. It is without a doubt that the content, nature and sources of the sensitive information in dispute would be injurious to national security if disclosed. I am limited by the sensitive nature of the inquiry to not go into further detail as to my reasons for coming to such a conclusion.
[22]That being said, I wish to emphasize that the amount of secret evidence in this file is fairly limited. In fact, the secret evidence consists of an internal memo of the Canada Border Services Agency (the CBSA), two and a half pages in length, where portions of five different paragraphs are redacted, and a six-page letter from the Canadian Security Intelligence Service to the CBSA where 12 out of 17 paragraphs are redacted. When one considers that the tribunal record is 702 pages in length, it is my opinion that the information that is not disclosed to the applicant represents a very small portion of the information regarding the applicant. As the applicant has been given access to the overwhelming majority of the information provided to the Minister, most of which was actually submitted by the applicant, the non-disclosure of those few paragraphs appears quite reasonable in light of the national security concerns, and would not amount to a breach of procedural fairness.
[23]Before concluding the issue of procedural fairness, I would also like to address the decision of the Supreme Court of Canada in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350, released on February 23, 2007.
[24]In Charkaoui, above, the Supreme Court of Canada declared the procedure followed for the judicial confirmation of security certificates and the review of detention, found at sections 77 to 85 [ss. 77 (as am. by S.C. 2002, c. 8, s. 194), 79 (as am. idem)] of the Act to be unconstitutional. Since the procedure outlined in section 78 applies in the context of motions for non-disclosure under section 87, I have considered the constitutionality of the procedure followed under section 78 within the context of applications under section 87 of the Act.
[25]First, it must be stated that the Supreme Court of Canada recognized that “[t]he right to know the case to be met is not absolute”, and that there are Canadian statutes, other than the Immigration and Refugee Protection Act, which provide for ex parte or in camera hearings, “in which judges must decide important issues after hearing from only one side” (Charkaoui, above, at paragraph 57).
[26]The Supreme Court of Canada also acknowledged its previous rulings where the balancing of national security and the disclosure of information was at stake. Chief Justice McLachlin wrote in Charkaoui, above, at paragraph 58:
More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. In Chiarelli, this Court found that the Security Intelligence Review Committee (SIRC) could, in investigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclose details of investigation techniques and police sources. The context for elucidating the principles of fundamental justice in that case included the state’s “interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources” (p. 744). In Suresh, this Court held that a refugee facing the possibility of deportation to torture was entitled to disclosure of all the information on which the Minister was basing his or her decision, “[s]ubject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents” (para. 122). And, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court upheld the section of the Privacy Act, R.S.C. 1985, c. P-21, that mandates in camera and ex parte proceedings where the government claims an exemption from disclosure on grounds of national security or maintenance of foreign confidences. The Court made clear that these societal concerns formed part of the relevant context for determining the scope of the applicable principles of fundamental justice (paras. 38-44).
[27]In considering the particular issue of security certificates, Chief Justice McLachlin concluded that:
In the context of national security non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. . . . If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.
[28]While this may be true in the context of security certificates, such is not necessarily the case when dealing with applications for non-disclosure under section 87 of the Act. The first distinction to be made is that, while the ultimate outcome of deportation may be the same, only those subject to a security certificate face detention while awaiting a decision on their inadmissibility. As such, only the security interest, not the liberty interest, is at stake under section 87. The respondent also points out that even deportation is not a certainty in this case, since the applicant has been recognized as a Convention refugee, and is thus subject to section 115 of the Act, which prohibits his deportation barring a determination by the Minister that he “should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada.” Since the Minister has yet to form this opinion, the respondent maintains that the applicant’s section 7 [of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] rights are not engaged at this time.
[29]The second very important distinction concerns the amount of information for which non-disclosure is sought. Where a security certificate is issued, the information that is sought to be kept from the person named in the security certificate is in the form of a Security Intelligence Report prepared by the Canadian Security Intelligence Service, a report which will usually contain a large number of annexes. Therefore, this is a situation where the non-disclosure will likely be extensive; moreover, the person named in the certificate will have no way of knowing the extent of the information that is being withheld. Such is not the case under section 87, where a redacted tribunal record may be prepared and where the person will be able to determine the exact amount of information that is being kept from them.
[30]In this case, as stated above, only a portion of two short documents, out of the 702-page tribunal record, were redacted. Since the person concerned is aware of the great majority of the information on which the decision maker relied, there would also be no need to provide the applicant with a “substantial substitute” to the information for which the application for non-disclosure is granted.
[31]It is my conclusion therefore that the decision in Charkaoui, above, on the constitutionality of section 78 of the Act in the context of security certificates, can be distinguished when section 78 procedures are followed in the context of applications under section 87 of the Act.
[32]As such, I maintain my position that there was no breach of the applicant’s right to procedural fairness in the case before us.
3. Alternatively, if the Court orders that the secret evidence not be disclosed to the applicant, is the applicant entitled to a summary of that evidence?
[33]Section 87 of the Act clearly states that section 78 is to apply with respect to the procedural steps involved in dealing with the non-disclosure of certain information; however, the obligation of providing a summary is specifically excluded at subsection 87(2). I see no reason why I should depart from the procedures outlined therein.
[34]Furthermore, given the context and the nature of the information, it would be impossible to provide a summary of the confidential information, as to do so may jeopardize foreign relations, betray the identities of informants, reveal sensitive information useful in conducting national and foreign policy, and may possibly endanger the lives of third parties. It may thus render the information that is being protected useless and exhaust the sources on which Canadian authorities rely. Therefore, it would be inconsistent with the legislative intent to import into section 87 of the Act the requirement that the Minister must provide a summary of the confidential information. There is also jurisprudence to the effect that a summary in the particular circumstances was not necessary and/or was impossible to provide (see Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297 (C.A.); Mohammed, above; Charkaoui (Re), above; Zündel (Re) (2005), 251 D.L.R. (4th) 511).
[35]Accordingly, the motion for non-disclosure is granted and the motion for a summary of the secret evidence is dismissed.
ORDER
THIS COURT ORDERS that:
1. The motion by the respondent for non-disclosure of part of the tribunal record is granted;
2. The redacted version of the tribunal record already served and filed with the Court will stand as the tribunal record;
3. The motion by the applicant for a summary of the secret evidence is dismissed;
4. Without costs.