Harkat (Re)

Harkat (Re)

The Court found that CSIS and its witnesses failed to act with the requisite utmost good faith and that this non-disclosure undermined the integrity of the judicial process; although the record did not establish a Charter breach engaging s.24(1) for Mr. Harkat, the exceptional circumstances warranted use of the...

Source-derived case information.

Citation
2009 FC 1050
Parties
Subject: Mohamed Harkat; Applicant: Attorney General of Canada; Institutional Respondent: Canadian Security Intelligence Service (CSIS); Special Advocate: Special Advocate P. Copeland; Special Advocate: Special Advocate P. Cavalluzzo; Witness: Witness C; Witness: Witness R; Witness: Witness A
Court
Federal Court
Jurisdiction
Canada
Judgment Date
15 October 2009
Procedural Posture
Security Certificate Under the Immigration and Refugee Protection Act / Collateral Judicial Review of Non Disclosure; Interlocutory Production Order and Preparation for Reasonableness Hearing
Outcome
Court ordered production of an additional covert human intelligence source file to the Court and special advocates, ruled that polygraph information will be given no weight in the reasonableness determination, and allowed the reasonableness hearings to proceed.
Legal Topics
Security Certificate, Covert Human Intelligence Source Privilege, Disclosure/non Disclosure Obligations, Polygraph Evidence, Special Advocates Regime, Charter Remedies S.24(1), Obligation of Utmost Good Faith, Judicial Inherent Powers and Production Orders
Source Language
english
Immigration Law National Security Law Administrative Law Constitutional Law Evidence Law Privilege Law Security Certificate Covert Human Intelligence Source Privilege +6 more

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Parties

Mohamed Harkat

Subject

Attorney General of Canada

Applicant

Canadian Security Intelligence Service (CSIS)

Institutional Respondent

Special Advocate P. Copeland

Special Advocate

Special Advocate P. Cavalluzzo

Special Advocate

Witness C

Witness

Witness R

Witness

Witness A

Witness

Procedural Posture

Security Certificate Under the Immigration and Refugee Protection Act / Collateral Judicial Review of Non Disclosure; Interlocutory Production Order and Preparation for Reasonableness Hearing

Legal Issues

  1. 1 Whether CSIS and its witnesses failed to disclose material polygraph information relevant to assessing a human source's reliability
  2. 2 Whether the failure to disclose engaged Mr. Harkat's Charter rights and s.24(1) remedies
  3. 3 Whether covert human intelligence source privilege should be set aside in whole or in part

Ratio Decidendi

The Court found that CSIS and its witnesses failed to act with the requisite utmost good faith and that this non-disclosure undermined the integrity of the judicial process; although the record did not establish a Charter breach engaging s.24(1) for Mr. Harkat, the exceptional circumstances warranted use of the Court's inherent/residual powers to order production of another relevant covert human intelligence source file to the Court and special advocates (subject to strict limits) and to give no weight to the polygraph evidence in determining the reasonableness of the certificate.

Court Disposition

Court ordered production of an additional covert human intelligence source file to the Court and special advocates, ruled that polygraph information will be given no weight in the reasonableness determination, and allowed the reasonableness hearings to proceed.

Orders

  • The human source file concerning another covert human intelligence source relied on in the certificate shall be filed with the designated Registry within five days in three unredacted copies for review by the Court and the special advocates; the file will not be disclosed to Mr. Harkat, his counsel, or the public.
  • All information concerning the polygraph administered to the human source is to be given no weight in this proceeding (special advocates may use it for cross-examination).