Security Certificates and Filtered Disclosure: Applying Charkaoui #2
On September 24, 2008, Judge Simon Noël of the Federal Court ordered the Canadian Security Intelligence Service (“CSIS”) and the Ministers of Public Safety and Citizenship and Immigration to “file all information and intelligence related to Mohamed Harkat including but not limited to drafts, diagrams, recordings and photographs in CSIS’s possession or holdings with the designated proceedings section of the Court.”
This order represents the first application of the recent Supreme Court of Canada ruling in Charkaoui v Canada (Citizenship and Immigration),  2 SCR 326 (known as Charkaoui #2), which held, among other things, that in targeted investigations, CSIS is required to adhere to information retention and disclosure standards comparable to those of a police force.
Both Adil Charkaoui and Mohamed Harkat are individuals subject to security certificates, which are a quasi-administrative mechanism under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] that allows for the indefinite detention (ostensibly pending deportation) of non-citizens deemed to represent a threat to Canada’s national security. The dossiers of information that form the basis of the state’s arguments in certificate cases are comprised of intelligence collected by CSIS, and the government is able to use a claim of national security confidentiality prerogative to withhold this material from certificate subjects, their counsel, and the public.
The recent introduction of Special Advocates in security certificate cases has, in theory, exposed some of this material to critical examination by a party other than the presiding Judge of the Federal Court for the first time. However, since the Special Advocates are barred from communicating with anyone (even each other, and especially the certificate subject and his counsel) after viewing the sensitive material, security certificate cases remain “secret trials” to all but a select few.
Interpreting the Order
When Judge Noël issued his order and a companion communication to the parties in Harkat, some commentators – particularly the media – interpreted it to mean that the veil of secrecy was finally being lifted, and that Mr. Harkat’s counsel would finally be able to argue the facts of his case in open court. For example, CBC News ran a story with the headline “Feds ordered to share evidence with defence in Harkat security case,” which opened with the sentence “All intelligence and information related to the case of an Ottawa man arrested in 2002 on a security certificate must be released by the federal government to his lawyers, a Federal Court judge has ruled.” The Canadian Press ran with “Terror suspect wins right to see spy agency documents,” a story that began by stating that “[a]ccused terrorist Mohamed Harkat has won the right to see secret material compiled against him by the Canadian Security Intelligence Service.”
Both stories later noted that there could be a delay of up to six months before the material in question becomes available to Mr. Harkat’s counsel, reflecting Judge Noël’s communication (paras 3 and 4), which notes that CSIS has argued that it needs time to disclose its records, but that the Service promises to act expeditiously and make material available once it is identified as being relevant.
But neither story reported on what is, to my mind, the most significant aspect of Judge Noël’s order and communication – that, rather than simply requiring disclosure and setting a rough timeline, it places the Federal Court in the position of information gatekeeper. The flow of records will not go directly from CSIS to Mr. Harkat’s counsel. Instead, records deemed by CSIS to be of relevance to Mr. Harkat’s case will be disclosed to the Federal Court, and the Court will “determine the scope of possible further disclosure to Mr. Harkat” (Communication, para. 6). While it is possible, and perhaps even probable, that this will translate into a significant and ongoing process of disclosure, this is by no means a given. With this order, the Court has essentially set itself up as the arbiter of reasonableness when it comes to the disclosure of sensitive material in designated proceedings. Those who assume that something that resembles full disclosure (as suggested in the quoted headlines) will ensue should bear in mind that the Federal Court has, in the past, been sympathetic to state arguments about the need for national security confidentiality.
In reality, the implications of the order are potentially far more conservative. CSIS will, over the course of the next six months, release its records to the Federal Court. Presumably, the Special Advocates acting on behalf of Mr. Harkat – but not able to communicate with him, and not bound to a solicitor-client relationship – will have full access to this material, and will be able to challenge it in in camera, ex parte hearings. It will be the responsibility of the Federal Court to sift through the accumulated records, and decide whether and to what extent they will be released to the public counsel for Mr. Harkat. The only major media outlet to catch this important nuance was the Ottawa Citizen, in a September 25 article by Andrew Duffy.
The security certificate process continues its incremental creep towards fairness, but it still remains highly secretive. Judge Noël’s order and explanatory communication did not usher in a new era of openness for Mr. Harkat’s case, or the cases of other security certificate subjects. In fact, it is difficult, at this juncture, to understand exactly what the end result of the application of Judge Noël’s order might look like, particularly assuming that similar processes of filtered disclosure will take place in the cases of Almrei, Charkaoui, Mahjoub, and Jaballah, in addition to Harkat. Judge Noël has acknowledged as being reasonable CSIS’s claim that the disclosure of its full dossier of information – thousands of records in the Harkat case alone – will require six months. Some of this material (I suspect a great deal of it, actually) has not previously appeared before the Federal Court. So, the Judges hearing the five ongoing security certificate cases – each with several upcoming hearings – will now face the additional burden imposed by the need to expeditiously review stacks of CSIS documents, in some cases stretching back over a decade. How they will accomplish this, or on what basis they will determine whether a given record should be disclosed to public counsel, remains to be seen. In closing, I can’t help but continue to point out that, the more procedural nuance, bureaucratic baggage, and general complexity security certificate cases acquire (a trend destined to continue), the less tenable arguments in favour of the mechanism become. By now, even a criminal trial involving tailor-made amicus curiae and confidentiality measures would be comparatively simple, given the alternative, with its special rules, special advocates, special prison, and a laundry list of special problems.