SECURITY CERTIFICATE DECISIONS SINCE 23 FEBRUARY 2007 TO OCTOBER 10, 2009

Compiled by Michelle Lutfy, LLB candidate, University of Ottawa

For Professor Craig Forcese

Case Name / Court / Judgment Date / Subject Matter / Comments
1. / Charkaoui (Re), [2009] A.C.F. no 1208 / CAFC / 2009/10/14 / Reasonableness Hearing / The Court declared the security certificate issued against Mr. Charkaoui void and concluded that there is no question to certify for the Court of Appeal.
2. / Harkat (Re), [2009] F.C.J. No. 1204 / CAFC / 2009/10/07 / Detention Review / In this review of the conditions of release of Mr. Harkat in accordance with subsection 82(4) of the Immigration and Refugee Protection Act, the Court dismissed the request, but was willing to amend the conditions such that Mr. Harkat may travel outside of the National Capital Region if the parties come to an agreement.
3. / Charkaoui (Re), [2009] A.C.F. no 1215 / CAFC / 2009/08/05 / Procedural / Given the Ministers’ decision to withdraw secret information rather than disclose it to Mr. Charkaoui and the public (as requested by the Court), the Court asked both parties to prepare their positions on (i) whether the Court should rule on the reasonableness of the certificate and (ii) whether there were questions to certify for the Court of Appeal.
4. / Charkaoui (Re), [2009] A.C.F. no 1214 / CAFC / 2009/07/20 / Evidence / The Ministers refused to disclose information to Mr. Charkaoui as ordered by the Court citing reasons of national security. The Court reaffirmed that, in its opinion, this information does not pose a threat to national security and ordered that the Ministers confirm whether or not the withdrawal of new evidence will affect the summary of information that was to be disclosed to Mr. Charkaoui.
5. / Harkat (Re), [2009] F.C.J. No. 659 / CAFC / 2009/06/23 / Constitutional issues / Search conducted by CBSA was held to have violated Mr. Harkat’s section 8 Charter Rights.
6. / Jaballah (Re), [2009] F.C.J. No. 812 / CAFC / 2009/06/18 / Detention Review / New electronic monitoring device was materially less comfortable and less user friendly. Court held that the technology advantages did not outweigh the adverse physical damages.
7. / Harkat (Re), [2009] F.C.J. No. 619 / CAFC / 2009/05/27 / Evidence / As a result of new information concerning the reliability of a human source, the court held that the special advocates had a need to know the contents of the human source file, even if this were to result in the revelation of the source’s identity.
8. / Charkaoui (Re), [2009] F.C.J. No. 634 / CAFC / 2009/05/27 / Evidence / The Court held that documents provided to the special advocates as per Charkaoui II shall remain redacted until the Court has examined them to ensure that they are covered by the privileges alleged and that no exception applies.
9. / Charkaoui (Re) / CAFC / 2009/05/07 / Evidence / The special advocate requested that the Court order the Ministers to contact certain foreign agencies to obtain permission to publically disclose information obtained from them. The Court ordered that the Ministers submit to the Court a report outlining their reasonable efforts made in this regard, or reasons why such a request would be denied for each agency.
10. / Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2009] F.C.J. No. 556 / CAFC / 2009/04/30 / Detention Review / Confirmed Mr. Mahjoub’s return to detention (in response to the withdrawal of his supervisors) and addressed the associated terms and conditions.
11. / Charkaoui (Re), [2009] A.C.F. no 396 / CAFC / 2009/04/02 / Evidence / The Court responded to questions of law put forward by Mr. Charkaoui. It held that non-confidential information should first be transmitted form party to party and that a summary of confidential information should be provided to the named person. Further, the court held the burden to prove that disclosure threatens national security is on the party claiming that disclosure would harm national security (i.e. the Ministers). The Court also clarified the role of the judge when determining whether disclosure would harm national security, and confirmed that the standard of proof is that of a balance of probabilities.
12. / Harkat (Re), [2009] F.C.J. No. 422 / CAFC / 2009/03/31 / Evidence / Court refused application by the special advocate for disclosure of eight intelligence files regarding persons or organizations to which Mr. Harkat was linked. It was held that there was not sufficient evidence of how the additional information would be of assistance.
13. / Almrei (Re), [2009] F.C.J. No. 681 / CAFC / 2009/03/27 / Role of Special Advocate,
Evidence / Court dismissed 2 motions: (i) To communicate with his special advocate without judicial authorization (the named-person and his counsel could send their questions to the special advocates without judicial consent, but vice-versa was prohibited) and (ii) A disclosure motion to apply the balancing test in section 38.06 (2) of the Canada Evidence Act when evaluating evidence was premature in the absence of evidence demonstrating that his Charter rights were adversely affected.
14. / Mahjoub (Re), [2009] F.C.J. No. 490 / CAFC / 2009/03/25 / Evidence / The Court ordered that summaries of conversations and surveillance reports concerning Mr. Mahjoub be disclosed to Mr. Mahjoub and his counsel confidentially for 10 days in order for them to review the documents and decide whether to seek a confidentially order.
15. / Almrei (Re), [2009] F.C.J. No. 680 / CAFC / 2009/03/24 / Role of Special Advocate / Court allowed application by a special advocate to have access to the complete transcript of a closed hearing from which they were excluded and to have the opportunity, if they so requested, to cross-examine the witnesses in order for the special advocate to perform their legislated role of questioning the evidence provided by the Minister.
16. / Jaballah (Re), [2009] F.C.J. No. 340 / CAFC / 2009/03/20 / Detention Review / Conditions of release were modified in some respects as requested by the applicant.
17. / Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2009] F.C.J. No. 301 / CAFC / 2009/03/09 / Detention Review / Review of release conditions. Mr. Mahjoub’s application was allowed in part. The Minister’s request to add certain conditions was also allowed in part.
18. / Harkat (Re), [2009] F.C.J. No. 316 / CAFC / 2009/03/06 / Detention Review / Application by Mr. Harkat to review his release conditions was allowed.
19. / Almrei (Re), [2009] F.C.J. No. 346 / CAFC / 2009/03/05 / Evidence,
Procedural Issues / Determination on 2 issues common to 4 security certificate proceedings: (i) The designated judge is not required to verify information disclosed by the Minister that had been deemed irrelevant by both the Minister and Special Advocates and (ii) Information disclosed that is not relied on by the Minister and not before the court in evidence is not required to be made part of the public court file. The Minister and Special Advocates made further submissions on the role of the designated judge in security certificate proceedings and the Court held it would be premature to make unequivocal pronunciations since the role would be best determined on a proper evidentiary basis.
20. / Charkaoui (Re), [2009] F.C.J. No. 211 / CAFC / 2009/02/20 / Detention Review / Application to set aside/modify certain release conditions was allowed.
21. / Harkat (Re), [2009] F.C.J. No. 228 / CAFC / 2009/02/18 / Evidence / Objection to publically filing three conversations in which Mr. Harkat was a participant was granted on an interim basis in order to give Mr. Harkat an opportunity to review the documents and decide whether a confidentiality order should be sought.
22. / Harkat (Re), [2009] F.C.J. No. 25 / CAFC / 2009/01/22 / Role of Special Advocates / Application by two special advocates for judicial authorization to communicate with three other special advocates about common issues in five security certificate proceedings, such as jurisdiction, procedure and substantive law was allowed with conditions.
23. / Canada (Minister of Citizenship and Immigration) v. Jaballah, [2009] F.C.J. No. 23 / CAFC / 2009/01/15 / Detention Review,
Constitutional issues / Motion seeking clarification of the conditions imposed upon the applicant’s release from detention. The applicants argued that the fashion in which the CBSA was monitoring their compliance with the terms and conditions of their release violated s. 7 and s. 8 of the Canadian Charter of Rights and Freedoms. The court declined to rule on the first two issues, and was unable to find inappropriate conduct on the third.
24. / Canada (Minister of Citizenship and Immigration) v. Mahjoub, [2009] F.C.J. No. 24 / CAFC / 2009/01/15 / Detention Review,
Constitutional issues / Motion heard together with that of Mr. Jaballah above.
25. / Jaballah (Re), [2009] F.C.J. No. 409 / CAFC / 2009/01/14 / Evidence,
Procedural Issues / The court permitted a witness employed by CSIS to testify in open court using a pseudonym, allowing the open court principle to be infringed to protect Canada's national security and the safety of the witness.
26. / Almrei (Re), [2009] F.C.J. No. 1 / CAFC / 2009/01/02 / Detention Review / Application by Mr. Almrei for release from detention pending the outcome of security certificate proceedings was allowed under strict conditions.
27. / Harkat (Re), [2008] F.C.J. No. 1823 / CAFC / 2008/12/22 / Evidence,
Procedural Issues / Motion by special advocate to identify, interview and cross-examine covert human intelligence sources was dismissed. The court held that the only exception to the immunity provided by a covert human intelligence source privilege was in the closed portion of the proceeding where a special advocate had established a need to know the identity of a covert human intelligence source to prevent a flagrant denial of procedural fairness which would bring the administration of justice into disrepute.
28. / Harkat (Re), [2008] F.C.J. No. 1822 / CAFC / 2008/11/28 / Evidence / The court denied the special advocate’s request for production of employment records of a former intelligence officer involved in the investigation because the court found that the records were not necessary to verity the allegations in relation to the reasonableness of the certificate.
29. / Almrei (Re), [2008] F.C.J. No. 1488 / CAFC / 2008/11/03 / Constitutional issues / Constitutional challenge with respect to the requirement that communications among special advocates and other persons, in particular themselves and their counsel had to be authorized by a judge was dismissed and deemed premature without an appropriate factual matrix.
30. / Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 S.C.R. 326 / CASCC / 2008/06/26 / Evidence / The Court held that CSIS’ practice of destroying operational notes is a breach of its duty to retain and disclose information. For practical reasons and as a result of s. 12 of the CSIS Act, officers must retain their operational notes when conducting investigations that are not of a general nature.
31. / Charkaoui (Re) / CAFC / 2008/06/19 / Procedural / The Court rejected Mr. Charkauoi’s request to stay his reasonableness hearing.
32. / Harkat v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 761 / CAFCA / 2008/05/14 / Costs / Motion by Mr. Harkat for costs to be paid on a solicitor-and-client basis for all aspects of the appeal that was dismissed.
33. / Harkat v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 747 / CAFC / 2008/05/14 / Detention Review / Motion for an order approving William Baldwin as a supervising surety allowed. Request that applicant be permitted to move residences pending a resolution of the CBSA’s concerns was dismissed.
34. / Bellavance v. Charkaoui, [2008] F.C.J. No. 441 / CAFCA / 2008/03/19 / Procedural / Dismissed application for intervener status, but allowed the Ministers to participate in the appeal as parties (concerning Mr. Charkaoui suit against Messrs. Bellavance and Toupin).
35. / Harkat v. Canada (Minister of Citizenship and Immigration), [2008] F.C.J. No. 222 / CAFC / 2008/02/18 / Detention Review / The release of Mr. Harkat was reinstated under amended terms and conditions after the permanent departure of one of his sureties from his home, constituting a breach of his release order.
36. / Charkaoui (Re) (F.C.), [2009] 1 F.C.R. 507 / CAFC / 2008/01/18 / Constitutional issues / The motion to quash the subpoenas duces tecum against Messrs. Bellavance and Toupin was dismissed, as were all but one of the objections raised during the examination of Mr. Bellavance. The court found that the greater public interest demanded that the truth be told as to the origin of the leak of the secret document, its confirmation and the significant impact on the justice system, the administration of justice and Mr. Charkaoui’s fundamental rights. That public interest trumped the other interests at stake, including the journalists’ section 2(b) Charter rights.
37. / Jaballah v. Canada (Minister of Public Safety and Emergency Preparedness), [2008] F.C.J. No. 2 / CAFC / 2008/01/04 / Detention Review / Allowed application by Mr. Jaballah for review of conditions of release from detention. His application to teach was dismissed due to logistical constraints associated with supervision and surveillance. Several other conditions were modified or removed.
38. / Mahjoub v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1761 / CAFC / 2007/12/24 / Detention Review / Mr. Mahjoub moved to vary his release conditions. The respondent Minister consented to certain changes and opposed others. The order was amended in various respects, and the parties were directed to collaborate in the preparation of a draft that could be issued as a fresh consolidating order.
39. / Charkaoui (Re), [2007] F.C.J. No. 1515 / CAFC / 2007/11/09 / Detention Review / Court denied temporary application to revise the conditions of a parole order regarding Mr. Charkaoui to leave the Island of Montréal to attend the meeting of the youth wing of Amnesty International.
40. / Charkaoui (Re), [2007] F.C.J. No. 1339 / CAFC / 2007/10/10 / Detention Review / Motion for provisional release without preventive conditions was dismissed.
41. / Almrei v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 1292 / CAFC / 2007/10/05 / Detention Review / Application for release from detention denied.
42. / Harkat v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 682 / CAFC / 2007/05/11 / Procedural / Court allowed application by Mr. Harkat for stay or adjournment sine die of his judicial review application pending the enactment of the new security certificate review process (as directed by the Supreme Court of Canada in Charkaoui v. Canada (Minister of Citizenship and Immigration) [2007] S.C.J. No. 9, 2007 SCC 9.)
43. / Harkat v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 540 / CAFC / 2007/04/20 / Detention Review / Application by Mr. Harkat to vary the terms and conditions of his release was granted in part on certain secondary conditions, but the application for removal of supervision was denied.
44. / Jaballah v. Canada (Minister of Public Safety and Emergency Preparedness), [2007] F.C.J. No. 518 / CAFC / 2007/04/12 / Detention Review / Application for an order for release subject to stringent conditions was granted.
45. / Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350 / CASCC / 2007/02/23 / Constitutional Issues / The security certificate regime under division 9 of the IRPA was held to be unconstitutional. The court issued a declaration of invalidity for one year.