On October 10th and 11th, the Supreme Court of Canada (SCC) heard Harkat (Re), an important case relating to fundamental rights, public safety, and national security. Specifically, the case concerns the constitutionality of the security certificate process set out in sections 77 – 87.2 of the Immigration and Refugee Protection Act, the nature and scope of informer privilege for CSIS informants, and the remedy available where CSIS unlawfully destroys original evidence important to the case.
Mr. Harkat is an Algerian citizen, with convention refugee status in Canada, who was named on a security certificate based on allegations that he engaged in terrorism and was a member of a terrorist organization. Mr. Harkat argues that the security certificate scheme violates section 7 of the Charter, that the security certificate issued to him is unreasonable, and that he suffered an abuse of process because the Crown used summaries of original evidence that was unlawfully destroyed by CSIS to determine the case against him.
Security certificates are issued by the government as a means to remove non-citizens from Canada on “grounds of security, violating human or international rights, serious criminality, or organized criminality” and “where the information to determine the case cannot be disclosed without endangering the safety of any person or national security”. While the security certificate process has been in place since 1978, it was revised significantly in 2008 after the SCC held that it violated section 7 of the Charter (Charkaoui I):
“…the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law … and fails to assure the fair hearing that s. 7 of the Charter requires”
In an effort to balance concerns expressed by the SCC about fundamental rights of the individual with public safety and national security, the government introduced the special advocate system into the security certificate process. The role of a special advocate is to protect the interests of the named persons during closed proceedings and, more specifically, to challenge the “relevance, reliability and sufficiency” of the information or evidence against the named person which is not disclosed.
Despite these changes, the security certificate process has been criticized for failing to meaningfully respect the fundamental rights of the persons named on a security certificate. The consequences of a security certificate for the named person (detention and deportation) can be as serious as a criminal conviction, yet the procedural safeguards available fall short of standards in criminal processes. The standard of proof the government must satisfy to make the case is lower than in criminal proceedings – a threshold of “reasonable grounds” rather than “beyond a reasonable doubt”. The rules of evidence are also more favorable to the government in the security certificate process than in the criminal setting. Notably, when determining the reasonableness of a security certificate, “a judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence”. Moreover, unique rules govern the disclosure of evidence and protection of information in security certificate proceedings. Specifically, the government may rely on secret evidence to determine the case where disclosure “would be injurious to national security or endanger the safety of any person if disclosed”.The scope of what is meant by “endanger any person” is not clear – the language is very broad but could be interpreted more narrowly as endangering human sources or informants.
The Federal Court of Appeal (FCA) upheld the finding of the Federal Court (FC) that the security certificate system is constitutional, but ordered that certain summaries made of destroyed originals be excluded as evidence and sent the case back to the FC for a new determination of the reasonableness of the security certificate. The FCA also set aside the finding of the FC relating to the nature and scope of privilege for CSIS human sources. The FC found that CSIS human sources are protected by privilege and that the “need to know” exception does not entitle special advocates to know the identity of or cross-examine such sources. The FCA overturned this finding, stating that “CSIS human sources do not benefit from the police informer class privilege” or an analogous class privilege.
Issues Before the SCC
1) Is the security certificate process constitutional?
2) Did Mr. Harkat suffer an abuse of process as a result of the destruction of original evidence by CSIS, summaries of which form the basis of the case against him?
3) What type of privilege applies to informants?
Position of the Parties
With respect to the constitutionality of the security certificate scheme, the Crown argues that special advocates and summaries of evidence are a “substantial substitute” for the knowledge and participation of the named person.Through a designated judge of the Federal Court, the named person on a security certificate receives summaries of the information and evidence that forms the basis of the case again him or her. Counsel for Mr. Harkat and several interveners argue that in practice, summaries of the evidence amount to “general allegations” or “bare asserts” which fail to meaningfully permit Mr. Harkat to know and meet the case against him. Restrictions on the ability of the special advocate to communicate with the named person and to cross-examine informers undermines their ability to perform their role and responsibilities. Special advocates also face challenges relating to the ability to call witnesses, access to secret decisions, and resources (prohibition on having the assistance of junior counsel). Accordingly, the current security certificate process is in conflict with the fundamental rights of individuals (including foreign nationals and convention refugees) in Canada, specifically the right to a fair hearing and process under section 7 of the Charter.
 Harkat (Re), 2012 FCA 122,  3 FCR 635. [Harkat FCA]
 Immigration and Refugee Protection Act, SC 2011, c 27. [IRPA]
 Ibid, at s 77(1).
 Public Safety Canada, “Security certificates” (2013) online: Government of Canada <http://www.publicsafety.gc.ca>. See also IRPA, supra note 2, s 80.
 Ibid at para 65.
 IRPA, supra note 2, s 85.1(1).
 Ibid, s 85.1((2).
 IRPA, supra note 2, s 83(1)(h).
 Ibid, s 77(2).
 Ibid, s 83.
 Ibid, s 77(2) and 83(1)(d).
 Harkat FCA, supra note 1, at 53 – 54, 157, 159 - 161.
 Harkat (Re), 2009 FC 204,  4 FCR 370 at para 75.
 Harkat FCA, supra note 1, at 158.
 Minister’s Factum at paras 54 – 61.
 IRPA, supra note 2, s 77(2) and 83(1)(e).
 CBA Factum, supra note 10 at para 17.