Charkaoui (Re)

Charkaoui (Re)

Subsection 85.4(1) IRPA does not expressly abrogate common law privileges; therefore privileged material in Phase II disclosure may be redacted by the Ministers, but the court must inspect the unredacted documents to determine whether the claimed privileges apply and whether any narrow exceptions warrant de‑redacting; until the court so determines the documents shall remain redacted.

Citation
2009 FC 546
Parties
Person Concerned: Adil Charkaoui; Respondent: The Ministers (Canada); Intervener: Barreau du Québec
Court
Federal Court
Jurisdiction
Canada
Judgment Date
27 May 2009
Procedural Posture
Security Certificate (irpa) / Preliminary Hearing on Disclosure/redaction (phase Ii)
Outcome
Court ordered that the documents provided to the special advocates remain redacted pending judicial examination to confirm privileges and absence of exceptions
Legal Topics
Security Certificates, Disclosure Obligations, Solicitor Client Privilege, Covert Human Source Privilege, Cabinet Confidences, Special Advocate Access
Source Language
English
Immigration Law National Security Law Evidence Law Constitutional Law Security Certificates Disclosure Obligations Solicitor Client Privilege Covert Human Source Privilege +2 more

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Parties

Adil Charkaoui

Person Concerned

The Ministers (Canada)

Respondent

Barreau du Québec

Intervener

Procedural Posture

Security Certificate (irpa) / Preliminary Hearing on Disclosure/redaction (phase Ii)

Legal Issues

  1. 1 Whether subsection 85.4(1) IRPA abrogates or precludes application of common law privileges permitting redaction of disclosure provided to the special advocates
  2. 2 What rules govern requests by special advocates to de‑redact documents provided under Charkaoui II
  3. 3 Whether CSIS Act ss.18(2) and 19(2) or IRPA s85.1(4) require disclosure that defeats claimed privileges

Ratio Decidendi

Subsection 85.4(1) IRPA does not expressly abrogate common law privileges; therefore privileged material in Phase II disclosure may be redacted by the Ministers, but the court must inspect the unredacted documents to determine whether the claimed privileges apply and whether any narrow exceptions warrant de‑redacting; until the court so determines the documents shall remain redacted.

Court Disposition

Court ordered that the documents provided to the special advocates remain redacted pending judicial examination to confirm privileges and absence of exceptions

Orders

  • Documents provided to the special advocates shall remain redacted until the Court has examined them to ensure that they are covered by the privileges alleged and that no exception applies.