Charkaoui, Re

Charkaoui, Re

The Court ordered that Ministers must report the reasonable efforts CSIS has made to obtain consent from the foreign agencies identified in the special advocates' proposals, or must prove for each agency that a request for consent to neutral disclosure would be refused; a blanket executive refusal to seek consent is not acceptable where case law requires reasonable efforts and the Ministers carry the burden to show disclosure would be injurious on a balance of probabilities.

Citation
2009 FC 476
Parties
Person Concerned: Adil Charkaoui; Respondent/ministers: The Ministers (Government of Canada); Applicant/special Advocates: Special Advocates; Intervener: Barreau du Québec
Court
Federal Court
Jurisdiction
Canada
Judgment Date
7 May 2009
Procedural Posture
Security Certificate (immigration and Refugee Protection Act) / Referral to Federal Court Under S.77(1) Irpa; in Camera Hearing on Disclosure Proposals and Order for Reporting by Ministers
Outcome
Application by special advocates granted in part; Court ordered Ministers to report on reasonable efforts or prove refusal
Legal Topics
Third Party Rule, Disclosure of Intelligence, Special Advocates, Consent to Disclose, Security Certificates, Mosaic Effect
Source Language
English
Immigration Law National Security Law Evidence Administrative Law Constitutional Law (charter) Third Party Rule Disclosure of Intelligence Special Advocates +3 more

Case Brief

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Parties

Adil Charkaoui

Person Concerned

The Ministers (Government of Canada)

Respondent/ministers

Special Advocates

Applicant/special Advocates

Barreau du Québec

Intervener

Procedural Posture

Security Certificate (immigration and Refugee Protection Act) / Referral to Federal Court Under S.77(1) Irpa; in Camera Hearing on Disclosure Proposals and Order for Reporting by Ministers

Legal Issues

  1. 1 Whether Ministers/CSIS must make reasonable efforts to obtain consent from foreign agencies to disclose information provided by those agencies
  2. 2 Whether a blanket executive decision not to seek consent is permissible under the third party rule
  3. 3 What evidentiary burden rests on Ministers to show disclosure would be injurious to national security

Ratio Decidendi

The Court ordered that Ministers must report the reasonable efforts CSIS has made to obtain consent from the foreign agencies identified in the special advocates' proposals, or must prove for each agency that a request for consent to neutral disclosure would be refused; a blanket executive refusal to seek consent is not acceptable where case law requires reasonable efforts and the Ministers carry the burden to show disclosure would be injurious on a balance of probabilities.

Court Disposition

Application by special advocates granted in part; Court ordered Ministers to report on reasonable efforts or prove refusal

Orders

  • Ministers are ordered to report to the Court the reasonable efforts that CSIS has made to obtain the consent of the foreign agencies involved to disclose the information referred to in the special advocates' proposals in the case of Adil Charkaoui, or to prove, with respect to each agency concerned, that a request...