Charkaoui v. Canada (Minister of Citizenship and Immigration)

Charkaoui v. Canada (Minister of Citizenship and Immigration) Court (s) Database Federal Court of Appeal Decisions Date 2006-06-06 Neutral citation 2006 FCA 206 File numbers A-105-05 Decision Content Date: 20060606 Docket: A-105-05 Citation: 2006 FCA 206 CORAM: LÉTOURNEAU J.A. NADON J.A. PELLETIER J.A. BETWEEN: ADIL CHARKAOUI Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE SOLICITOR GENERAL OF CANADA Respondents Hearing held at Montréal, Quebec, January 12, 2006. Judgment delivered at Ottawa, Ontario, June 6, 2006. REASONS FOR JUDGMENT: PELLETIER J.A. CONCURRING: NADON J.A. CONCURRING REASONS: LÉTOURNEAU J.A. Date: 20060606 Docket: A-105-05 Citation: 2006 FCA 206 CORAM: LÉTOURNEAU J.A. NADON J.A. PELLETIER J.A. BETWEEN: ADIL CHARKAOUI Appellant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE SOLICITOR GENERAL OF CANADA Respondents REASONS FOR JUDGMENT PELLETIER J.A. [1] At the time the motion at the origin of this appeal was filed, Mr. Charkaoui had been detained under section 82 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), since May 21, 2003 because he is believed to be a member of a terrorist network. On the fourth review of his detention, Mr. Charkaoui filed a motion for a stay of proceedings, alleging certain infringements of his right to procedural fairness. Although Mr. Justice Simon Noël (the designated judge) dismissed the motion (see Charkaoui (Re), 2005 FC 149), he nevertheless concluded that Mr. Charkaoui was no longer such a threat to the security of Canada that his detention was justified. See Charkaoui Re (F.C.), 2005 FC 248, [2005] 3 F.C.R. 389. [2] Mr. Charkaoui has filed three grievances against the decision of the designated judge. First, he submits that his right to procedural fairness has been breached because certain information was belatedly disclosed to him. Second, he alleges that the destruction of the notes and recordings (if any) of his interviews with the Canadian Security Information Service (CSIS) is a breach of the CSIS duty to disclose any information it has to the respondent Ministers (the Ministers) and the designated judge. Mr. Charkaoui alleges that these constitute two infringements of the procedural fairness guaranteed to him by section 7 of the Canadian Charter of Rights and Freedoms (the Charter), and that they entitle him to a remedy under section 24 of the Charter, and in particular a stay of proceedings affecting his inadmissibility to Canada. [3] Finally, Mr. Charkaoui challenges the receipt by the designated judge of certain new information that has been placed in the record on two grounds. First, the respondent Ministers had no knowledge of it when the certificate was issued in his regard. Second, this information is not credible or trustworthy in the light of other information that he has offered. [4] For the following reasons, I do not accept Mr. Charkaoui’s arguments. I rule that the designated judge hearing this matter properly dismissed his requests. THE FACTS [5] On November 9, 2004, the designated judge set the date of the fourth review of Mr. Charkaoui’s detention at January 10, 2005. On December 30, 2004, the Ministers’ solicitors asked the designated judge for an in camera hearing in the absence of Mr. Charkaoui. Notwithstanding the objections of Mr. Charkaoui’s solicitors, the designated judge held this hearing on January 5, 2005, in the course of which the Ministers’ solicitors informed him that they had learned of a document which should have been disclosed to Mr. Charkaoui at the outset of the proceedings but which inadvertently had not. This document consists of a summary of two interviews of Mr. Charkaoui with CSIS officers held on January 31 and February 2, 2002. The designated judge ordered the immediate disclosure of the summary to Mr. Charkaoui’s solicitors. [6] Also during this hearing, the Ministers’ solicitors filed some new allegations concerning Mr. Charkaoui contained in the new information received, allegations that were not part of the record when the Ministers signed the certificate of inadmissibility in his regard. These allegations concern his involvement in certain events in Morocco. On January 6, 2005, the designated judge disclosed to Mr. Charkaoui a summary of this new information, which he described as follows in paragraph 27 of the reasons for the decision at issue: - the investigation concerning Mr. Charkaoui is ongoing; - the Moroccan authorities have identified Mr. Charkaoui as being a member of the Groupe islamique combattant marocain (GICM) [Moroccan Islamic Combatant Group]; - the GICM is a group linked to Al-Qaida and is allegedly responsible for the attacks of May 16, 2003, in Casablanca and of March 11, 2004, in Madrid; - during a trip to Afghanistan in early 1998, Mr. Charkaoui is alleged to have taken military training and theological training in the Sharia institute at Khalden; - the emir of the GICM, Noureddine Nafia, who is being held in Morocco, reveals that Mr. Charkaoui was indoctrinated by a Libyan imam; - some funds have allegedly been collected in order to establish cells in Canada, Pakistan, Germany, France and the United Kingdom; - Mr. Charkaoui has maintained contact with, and allegedly sent CAN $2,000.00 to the GICM and allegedly gave a laptop computer to a member of the GICM. [Hereinafter, the new allegations.] [7] On January 10, 2005, at the hearing on the review of his detention, Mr. Charkaoui opposed the reception of the new allegations on the ground that they had not been submitted to the Ministers when they endorsed the certificate concerning him and that accordingly they should not be considered by the judge who will rule on the reasonableness of the certificate. Mr. Charkaoui further challenged the reliability of the new allegations. For this purpose, he filed a piece of information from the Moroccan consulate in Montréal according to which he is not being sought by the Moroccan authorities, which is said to contradict the new allegations. [8] As to the summaries of his two interviews, Mr. Charkaoui asked the designated judge whether there were still some notes or recordings of these interviews. The judge in turn put the question to the Ministers’ solicitors, who inquired of CSIS. The judge was informed that, under an internal policy of CSIS, the notes of both interviews were destroyed after making the summary. In regard to recordings, CSIS did not know whether the interviews were recorded but, in any case, there are no recordings in the file. [9] In the light of this information, Mr. Charkaoui filed his motion for a stay of proceedings, alleging a serious breach of procedural fairness. He argues that, on its face, the summary reports the existence of certain exculpatory statements, the content of which is not reproduced in the summary, although one would expect to find them in the interview notes and certainly in the recordings of the interviews. The summary reads as follows: INTRODUCTION Adil CHARKAOUI was seen on 2002 01 31 and 2002 02 02. On the first contact, CHARKAOUI said he was prepared to clarify point by point what the Service might hold against him. He said he was prepared to undergo a polygraph, although he made fun of that tool. On the second contact, CHARKAOUI reverted to his defensive mode, saying he was being persecuted by the authorities, by the Service. Saying he has never done anything wrong, he refutes our allegations to the effect that some accused such as RESSAM had recognized him. He says this time that he refuses to undergo a polygraph and storms out. CHARKAOUI left many points unsettled, for example: CHARKAOUI says he never went to Afghanistan, but he admits he went to Pakistan, without indicating what he was doing there. Failing any second thoughts and a change in attitude, CHARKAOUI did not leave us under the impression that he would meet the Service again. [10] Mr. Charkaoui says the destruction of the interview notes and recordings, if any, infringes his right to procedural fairness in that they would be of assistance in finding out what clarifications he made in response to the CSIS allegations. The absence of this information means that neither the Ministers nor the judge have access to all the relevant information. THE DECISION UNDER APPEAL [11] The designated judge dismissed the request to stay the proceedings. After having summarized the parties’ submissions, he ruled that there had been no breach of procedural fairness that irremediably compromised the ongoing proceedings. First, he said he was prepared to postpone to a later date the oral evidence that Mr. Charkaoui was preparing to give, in the context of the review of his detention, so that he need not testify before considering the summary of the interviews. On the substantive issue, the judge found that the absence of notes or recordings was not detrimental to Mr. Charkaoui because he was present at the interviews in question and his testimony as to what happened would be the best evidence. Consequently, the judge was of the opinion that no harm had been done in the circumstances and that if there were any it has been removed. [12] Concerning the relevance of the summary, the judge stated that, although it was part of the evidence before him, [translation] “[these summaries] are not necessary in order to demonstrate directly or indirectly the foundation of the facts and the allegations on which the proceeding is based” (reasons of Noël J., at paragraph 15). In other words, these interviews had no relationship to the allegations against Mr. Charkaoui. [13] The judge accepted the submission by Mr. Charkaoui’s counsel that the CSIS is required to file with the Ministers all of the information at its disposal when it seeks the issuance of a certificate. However, the judge did not adopt the argument that the destruction of the notes and recording of the interviews made impossible the disclosure of all of the information to the Ministers. The facts and allegations on which the certificate is based are found elsewhere in the evidence, as is indicated, moreover, in the summary of the information disclosed to Mr. Charkaoui. [14] The judge said that the CSIS was not a police agency and was not bound by the same standards concerning the preservation and disclosure of evidence. The appropriate standards are not those of the criminal law but rather those of administrative law. The judge then dismissed the request for a stay of proceedings based on the alleged breach of Mr. Charkaoui’s right to procedural fairness guaranteed by section 7 of the Charter. [15] The judge then turned to the request to exclude the new allegations and did not accept any of Mr. Charkaoui’s arguments. He noted that paragraph 78(e) of the Act provides that the Ministers may file additional information during the court proceedings. This means that the judge who is called on to rule on the certificate might be in possession of more information than the Ministers had at the time the certificate was issued. [16] Regarding the reliability of the information, the judge stated that when these allegations were made in camera, he strove to verify whether this information originated from more than one source or whether it was corroborated by other means. The judge did not make any conclusion concerning a diplomatic note from the Moroccan Embassy, according to which there was no arrest warrant or legal proceeding outstanding against Mr. Charkaoui in Morocco. He suspended his assessment of this evidence until he had heard all of the evidence of both parties. For these reasons, the judge dismissed the request to exclude the additional information. STATUTORY PROVISIONS [17] The relevant statutory provisions are as follows: Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23: Loi sur le service canadien du renseignement de sécurité, L.R.C. 1985, ch. C-23: 12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyze and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada. 12. Le Service recueille, au moyen d’enquêtes ou autrement, dans la mesure strictement nécessaire, et analyse et conserve les informations et renseignements sur les activités dont il existe des motifs raisonnables de soupçonner qu’elles constituent des menaces envers la sécurité du Canada; il en fait rapport au gouvernement du Canada et le conseille à cet égard. Immigration and Refugee Protection Act, S.C. 2001, c. 27: Loi sur l’immigration et la protection des réfugiés, L.C. 2001, ch. 27: 77. (1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court—Trial Division, which shall make a determination under section 80. 77. (1) Le ministre et le solliciteur général du Canada déposent à la Section de première instance de la Cour fédérale le certificat attestant qu’un résident permanent ou qu’un étranger est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux, grande criminalité ou criminalité organisée pour qu’il en soit disposé au titre de l’article 80. 78. The following provisions govern the determination: 78. Les règles suivantes s’appliquent à l’affaire : (a) the judge shall hear the matter; a) le juge entend l’affaire; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; c) il procède, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et selon la procédure expéditive; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve; (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; e) à chaque demande d’un ministre, il examine, en l’absence du résident permanent ou de l’étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; f) ces renseignements ou éléments de preuve doivent être remis aux ministres et ne peuvent servir de fondement à l’affaire soit si le juge décide qu’ils ne sont pas pertinents ou, l’étant, devraient faire partie du résumé, soit en cas de retrait de la demande; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; g) si le juge décide qu’ils sont pertinents, mais que leur divulgation porterait atteinte à la sécurité nationale ou à celle d’autrui, ils ne peuvent faire partie du résumé, mais peuvent servir de fondement à l’affaire; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; h) le juge fournit au résident permanent ou à l’étranger, afin de lui permettre d’être suffisamment informé des circonstances ayant donné lieu au certificat, un résumé de la preuve ne comportant aucun élément dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and i) il donne au résident permanent ou à l’étranger la possibilité d’être entendu sur l’interdiction de territoire le visant; (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. j) il peut recevoir et admettre en preuve tout élément qu’il estime utile — même inadmissible en justice — et peut fonder sa décision sur celui-ci. POINTS AT ISSUE 1. Was Mr. Charkaoui’s right to procedural fairness breached by the belated disclosure of the summary of interviews and the lack of notes or recordings of these interviews to such a degree that he is entitled to a stay of the inadmissibility proceedings? 2. May the designated judge receive and consider information pertaining to the reasonableness of the certificate although such information was not submitted to the Ministers when the certificate in question was issued? ANALYSIS [18] Clearly, the summary of interviews that was belatedly disclosed to Mr. Charkaoui should have been disclosed earlier. The CSIS, under its duty to act with utmost good faith, ought to have disclosed it to the Ministers, without delay. This Court previously ruled on this question in Charkaoui v. Minister of Immigration and Citizenship et al., 2004 FCA 421, [2005] 2 F.C.R. 299: [153] I also wish to focus on the duty of counsel appearing on behalf of the Ministers in an ex parte proceeding under section 78 of the Act. I agree with my colleagues that counsel is under a duty of utmost good faith in the representations made to the judge. No relevant information may be withheld. The principle of full and frank disclosure in ex parte proceedings is a fundamental principle of justice that has been recognized by the Supreme Court: Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, at paragraph 27. [154] Applying this principle to proceedings under section 78 of the Act results in an obligation on counsel for the Ministers to put before the designated judge not only the protected evidence that serves to incriminate the subject of the security certificate, but also any and all information that could serve to exculpate that person. Counsel has a strict duty to put forward all the information in its possession, both favourable and adverse, regardless of whether counsel believes it is relevant. It is then up to the designated judge to decide whether or not the evidence is material. [19] However, the fact that the summary should have been disclosed to him well before it was does not necessarily lead to the result argued by Mr. Charkaoui. In my opinion, the designated judge granted the appropriate remedy in the circumstances: a postponement to allow Mr. Charkaoui to examine this new evidence before he testified. [20] Furthermore, Mr. Charkaoui alleges that the designated judge might have released him earlier than he did had he known of his explanatory comments which, it seems, do not appear in the summary. When one examines the following factors that the designated judge considered in his decision to release Mr. Charkaoui, it is obvious that a few exculpatory comments within an interview report would have had no effect whatever on his previous decisions to maintain his detention: 68. Mr. Charkaoui has been in preventive detention since May 21, 2003. Twenty-one months have elapsed and the second anniversary of his arrest is not far off. During this period, his contacts with the outside world have been extremely limited and his comings and goings have been limited to the prison setting. If a danger was imminent, it goes without saying it has been neutralized as a result. 69. Further, his contacts with certain individuals before his arrest, which could have been problematic at that time as such, should no longer be so. Certain contacts have been interrupted for about 21 months, which should neutralize what should be neutralized. 70. Mr. Charkaoui's journeys have ceased since his last voyage to Morocco, ending in January 2001. If the journeys were a source of concern, they should no longer be so as he has not travelled for over four years. 71. The presence of Mr. Charkaoui's father and mother and of his wife and two children on the same floor in an apartment building is a situation to be taken into account. 72. The media attention given to the proceeding and to Mr. Charkaoui means that his conduct in public will have to be exemplary and above suspicion. 73. The support given to him by part of the community requires Mr. Charkaoui to act so as not to disappoint them. 74. If Parliament intended the designated judge to assess whether there was still any danger, it also imposed an assessment of how the danger might evolve. The imminence of danger may decline with the passage of time. 75. That is my finding . . . [Charkaoui (Re) (F.C.), 2005 FC 248.] [21] Mr. Charkaoui’s allegations on this point cannot be accepted. [22] Concerning the destruction of the interview notes, I am of the opinion that the criminal cases relied on by Mr. Charkaoui have no bearing in this case. As the designated judge noted, the Supreme Court has warned against blurring criminal law standards with those of administrative law: … This Court has often cautioned against the direct application of criminal justice standards in the administrative law area. We should not blur concepts which under our Charter are clearly distinct… [Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraph 88.] [23] It follows that the case-law from the criminal law on which Mr. Charkaoui relies is not relevant: R. v. Carosella, [1997] 1 S.C.R. 80 and R. v. O’Connor, [1995] 4 S.C.R. 411. [24] This Court has previously commented on the difficulties confronting anyone who is the subject of a security certificate, while drawing attention to two facts that may mitigate their consequences, that is, the role of the designated judge and the possibility given to the interested party to testify: 82. Finally, while there is no denying that it is harder for the appellant to test the validity and credibility of the information that is not disclosed to him, the fact is that he is assisted in this task by the designated Judge who has the heavy responsibility of maintaining a balance between the parties and accordingly respect for the principles of fundamental justice. It should also be kept in mind that the appellant has the right to testify and call witnesses to refute the allegations and the evidence against him. [Charkaoui (Re) (F.C.A.), 2004 FCA 421, [2004] 2 F.C.R. 299.] [25] This Court has previously ruled on the constitutional validity of the Act’s provisions covering the disclosure of evidence; it is unnecessary to reexamine this question which is now before the Supreme Court. 101. Parliament weighed the interests at stake, those of the litigant and those of the community. It made a choice that recognizes the right to collective security while prescribing a procedure in which a judge, endowed with the necessary independence and impartiality, decides whether the disclosure of information or evidence would be injurious to national security or to the safety of any person. The appellant's arguments based on factors (c),1 (d)2 and (e)3 do not, in our opinion, have a cumulative impact that would enable us to conclude that the process established by Parliament is constitutionally invalid. 1(c) the decision of the designated Judge is made on the basis of secret evidence to which the appellant does not have access 2(d) the appellant does not obtain a summary of the information that is not disclosed to him 3(e) there is no means for the appellant to test the validity and credibility of this information and thus it is difficult if not impossible for him to refute it [Charkaoui, supra.] [26] It remains only to determine whether the destruction of certain notes taints the fairness of a proceeding that is otherwise constitutionally equitable and valid. [27] First, I must say in passing that I find the justification proffered by the Ministers for this CSIS policy rather unconvincing. This policy, they say, is based on section 12 of the Canadian Security Intelligence Service Act, which reads: 12. The Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of Canada and, in relation thereto, shall report to and advise the Government of Canada. 12. Le Service recueille, au moyen d’enquêtes ou autrement, dans la mesure strictement nécessaire, et analyse et conserve les informations et renseignements sur les activités dont il existe des motifs raisonnables de soupçonner qu’elles constituent des menaces envers la sécurité du Canada; il en fait rapport au gouvernement du Canada et le conseille à cet égard. [28] According to the Ministers, the CSIS duty to confine itself to what is strictly necessary means that once a summary of an interview is written up, it is no longer strictly necessary to preserve notes of the interview and they are then destroyed. This policy, we are told, prevents the accumulation of information on individuals who are not the subject of any suspicion. [29] On its face, section 12 stipulates that the test of necessity, even strict necessity, applies to the collection of information by investigation or otherwise. If there is a necessity to preserve the information thus collected, it is a practical and not statutory necessity. If the information is not preserved, it cannot then be used for any useful purpose. [30] That being said, does the fact that this policy was followed by the CSIS in the present case justify the granting of a stay of the proceedings initiated against Mr. Charkaoui? In Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, the Supreme Court held that the right to relief because of a breach of a section 7 Charter interest depends on the existence of evidence establishing a prejudice resulting from that breach: 60. While it is incontrovertible that the respondent has suffered serious prejudice in connection with the allegations of sexual harassment against him, there must be a sufficient causal connection between the state-caused delay and the prejudice suffered by the respondent for s. 7 to be triggered. In Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, at p. 447, Dickson J. (as he then was) concluded that the causal link between the actions of government and the alleged Charter violation was too “uncertain, speculative and hypothetical to sustain a cause of action”. [31] The Court reached the same conclusion in respect of the appropriate relief under administrative law: 104. The respondent also argued before Lowry J. that he was not provided with a copy of Ms. Schell’s timeliness submissions for a two-month period and that he had not received proper disclosure. Lowry J. did not consider the respondent prejudiced in this regard. With respect to the alleged failure to disclose information to the respondent, this is not, in my opinion, a case in which the unfairness is so obvious that there would be a denial of natural justice, or in which there was an abuse of process such that it would be inappropriate to put the respondent through hearings before the Tribunal. I would therefore adopt the finding of Lowry J. that the delay in this case is not such that it would necessarily result in a hearing that lacks the essential elements of fairness. The respondent’s right to a fair hearing has not been jeopardized. Proof of prejudice has not been demonstrated to be of sufficient magnitude to impact on the fairness of the hearing. . . [32] In the case at bar, Mr. Charkaoui alleges that the timely disclosure of the interview summary could have influenced the decision of the Ministers and the decisions of the designated judge. He sees therein a prejudice that entitles him to the relief he claims. The very description of this argument reveals its speculative nature. [33] Mr. Charkaoui submits that he was prejudiced by the destruction of the interview notes because the designated judge was unable to verify the concordance between what he said in his testimony and what allegedly appeared in the notes of the interviews. Even conceding that Mr. Charkaoui could have been prejudiced by the absence of these notes, it must also be acknowledged that he may have derived some advantage from the fact that their absence shielded him from cross‑examination relating to discrepancies between his testimony and his prior statements. [34] It cannot be assumed that the summaries are not consistent with the notes that were destroyed, or vice versa. Insofar as the designated judge is satisfied with the reliability of the evidence that he has, whether as a result of its origin from independent sources or because of its apparent corroboration, the absence of interview notes, even notes that might be relevant, does not affect the reliability of this evidence on the record, particularly the evidence that is extrinsic to the interviews with Mr. Charkaoui. [35] Wherever the interview notes are liable to throw some light on dubious evidence, their absence is a factor that the designated judge must consider in his assessment of this evidence. It cannot be assumed that the designated judge will not discharge his duties pertaining to the assessment of the probative value of the evidence, as he must. [36] When all is said and done, Mr. Charkaoui is unable to demonstrate a breach of his right to procedural fairness that would entitle him to a stay of the proceedings taken against him. [37] In the alternative, Mr. Charkaoui submits, should his request for a stay of proceedings be dismissed, that the designated judge erred in admitting the new allegations as evidence. As mentioned earlier, he challenges their admissibility and probative value based on their unreliability. Concerning the reliability of these new allegations, the designated judge stated that he made sure that the information in question was confirmed by other sources or corroborated by other means. No evidence has been provided that would cast doubt on this statement. Concerning the proof rebutting these allegations that Mr. Charkaoui says he submitted, it is up to the designated judge to assess it, as he proposes to do, in the light of the evidence as a whole that is submitted by both parties. [38] Mr. Charkaoui’s principal objection to the receipt of the new allegations and the information that supports them is that they were not put before the Ministers at the time the certificate was issued against him. Only the information at the disposal of the Ministers at that time should be considered when reviewing the reasonableness of the certificate, he says. Consequently, he asks that these allegations be dismissed. [39] This argument is untenable. The framework for review under the Act is not the framework applicable to judicial review of an administrative decision as required under Part 5 of the Federal Courts Rules. [40] Indeed, Parliament has specifically set out, in the Act, the procedures to be followed on the review of the certificate (section 78). Many of these rules bear directly on the point at issue: 78. (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; 78. b) le juge est tenu de garantir la confidentialité des renseignements justifiant le certificat et des autres éléments de preuve qui pourraient lui être communiqués et dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; . . . […] (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; d) il examine, dans les sept jours suivant le dépôt du certificat et à huis clos, les renseignements et autres éléments de preuve; (e) on each request of the Minister or the Minister of Public Safety and Emergency Preparedness made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; e) à chaque demande d’un ministre, il examine, en l’absence du résident permanent ou de l’étranger et de son conseil, tout ou partie des renseignements ou autres éléments de preuve dont la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d’autrui; . . . […] j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. j) il peut recevoir et admettre en preuve tout élément qu’il estime utile — même inadmissible en justice — et peut fonder sa décision sur celui-ci. [Emphasis added] [41] According to these provisions, it appears that the designated judge conducting the review may receive the information on which the certificate is based and other evidence, that he shall ensure the confidentiality of this evidence if its disclosure would be injurious to national security, and that he may accept any evidence he considers appropriate, even if it would be inadmissible in a court of law. [42] These provisions demonstrate Parliament’s intention to allow the judge to receive any evidence that pertains to the reasonableness of the certificate, even if some of that evidence was unknown to the Ministers when the certificate was issued. [43] Indeed, Mr. Charkaoui himself invokes this right of the designated judge to receive evidence that was not known to the Ministers when he submits to the Court his evidence in regard to his criminal record in Morocco. There is no doubt that, if Mr. Charkaoui had some new incontrovertible proof of the falsity of the certificate, he would not expect that the Court would overlook it and determine the reasonableness of the certificate as if it did not exist. Similarly, if there is new evidence showing that the certificate is well founded, Mr. Charkaoui must expect that the judge will consider it in determining the reasonableness of the certificate. [44] I am therefore of the opinion that Mr. Charkaoui’s submissions on this point must be rejected. CONCLUSION [45] For the reasons I have set out, Mr. Charkaoui’s appeal must be dismissed. He has failed to convince me that his right to procedural fairness was breached or, if there was such a breach, that it would entitle him to a stay of the inadmissibility proceedings. The request that the new allegations not be admitted by the designated judge must also be dismissed, in view of the fact that the Act expressly provides this possibility. [46] I would dismiss the appeal with costs. “J.D. Denis Pelletier” Judge “I concur M. Nadon J.A.” Certified true translation François Brunet, LLB, BCL LÉTOURNEAU J.A. (concurring reasons) [47] I have had the benefit of reading the reasons prepared by my colleague, Mr. Justice Pelletier. I agree with his legal analysis and his application of it to the facts of this case. However, I want to add a comment that relates the appellant’s position on the role of the judge who is called on to determine the reasonableness of the security certificate to the notion of procedural fairness that the appellant aptly invokes. For the definition he proposes of the judge’s role reveals his conception of procedural fairness. [48] It will be recalled, as my colleague notes, that the appellant argues that the judge who is determining the reasonableness of the security certificate may examine only the evidence that the Ministers cited at the time they signed the certificate. [49] As my colleague rightly noted, this position is not only absurd, it is contrary to the clear language of section 80 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, which defines the role of the judge, and to the language of section 78 pertaining to the admissibility of new evidence. [50] But in the same breath — and my colleague explicitly noted this — the appellant argues that he himself could introduce new exculpatory evidence while, on the other hand, the Ministers could not offer new incriminating evidence even if such evidence is recent, did not exist at the time the certificate was signed and establishes beyond any doubt the merits of the security certificate issued in regard to the appellant. [51] Contrary to what the appellant seems to think, as his position bespeaks it, procedural fairness is not a one-way street or a street that is exclusively reserved for him. [52] I would dispose of the appeal as my colleague suggests. “Gilles Létourneau” Judge Certified true translation François Brunet, LLB, BCL FEDERAL COURT OF APPEAL SOLICITORS OF RECORD DOCKET: A-105-05 APPEAL FROM AN ORDER OF THE HONOURABLE MR. JUSTICE SIMON NOËL, OF THE FEDERAL COURT, DATED FEBRUARY 1, 2005, DOCKET NO. DES-3-03 STYLE OF CAUSE: ADIL CHARKAOUI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION and THE SOLICITOR GENERAL OF CANADA PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: January 12, 2006 REASONS FOR JUDGMENT: PELLETIER J.A. CONCURRING: NADON J.A. CONCURRING REASONS: LÉTOURNEAU J.A. DATE OF REASONS: June 6, 2006 APPEARANCES: Dominique Larochelle FOR THE APPELLANT Luc Cadieux /Daniel Roussy/ Daniel Latulippe FOR THE RESPONDENTS SOLICITORS OF RECORD: Des Longchamps, Bourassa, Trudeau et Lafrance Montréal, Quebec FOR THE APPELLANT John H. Sims, Q.C. Montréal, Quebec FOR THE RESPONDENTS