The Supreme Court released its long anticipated decision in the Harkat security certificate case this morning. I won't summarize the holding -- I can't do any better than the headnote writers at the Court. But I think it worth reviewing the case from a "winners" and "losers" perspective, since the immediate buzz is that this is a win for the government.
The answer on this point is probably: "yes" this is a government win from a "headline" perspective, and "no" from a "we like what the Court has said about security certificates" perspective.
This is clearly a huge loss for Mr. Harkat. To be clear: That doesn't mean it's the end of his legal battles. The issue may now move to whether he can, in fact, be removed from Canada. If there is a risk of maltreatment upon removal, we will be back to a discussion about what the SCC meant in Suresh in relation to removal in the face of torture, and if its obiter statement suggesting that this was possible still reflects the current state of the law. (Personally, I don't think it does, since the Court has since re-acknowledged that the Charter should be construed consistently with Canada's international obligations, and there is no way Canada's international obligations permit removal to torture.) A related issue is whether the decision on whether removal will result in maltreatment must be made by an independent decision-maker, as opposed to someone in the bureaucratic hierarchy.
But for security certificate purposes, the battle is over. (And on this point: it must be particularly galling to Mr. Harkat and his legal team that the Court acknowledged a Charter violation in relation to the destruction by CSIS of the original transcripts of intercepted communications, but refused to do anything about it. To use such strong language to condemn the government action, and then to fail to exclude the intercept summaries as evidence and to send the matter back to be reconsidered on the remaining facts -- as the Federal Court of Appeal did -- is one of those SCC decisions I shall never be able to explain to my law students. At some level, the Court decides to do this factual reassessment itself, serving as a proxy fact-finder, while talking about not being a fact-finder in the portion on Khattab discussed next).
And so at the end of the day, this turned out to be a case about facts not law. And one of the most critical facts was "who was Ibn Khattab?". Justice Noël, in Harkat, considered affiliation with Ibn Khattab justified the government's case because Khattab was connected to terrorism and "the Bin Laden network" (at para. 4). In Justice Noël's words: "he is a member of the Bin Laden Network through his past work for the Khattab group" (as well as other associations) (at para. 548).
But just to show that these facts can be mutable things, Justice Mosley, in Almrei, concluded that Khattab was not part of Al Qaeda and that "association with Khattab does not, in my opinion, support a finding that he is a danger to the security of Canada" (at para. 464).
This differing view of the role and activities of one man was not enough to persuade the Supreme Court to vacate this case: "Noël J. was entitled to make his own assessment of whether Ibn Khattab was involved in terrorist activities, based on evidence that he found to be reliable and appropriate. I would not interfere with his assessment" (at para 109).
On such things, the fate of individuals turns. Pretty messy.
But that Mr. Harkat lost does not mean that the government "won" and had its way, at least from the perspective of those of us interested in the institutional development of the special advocate system. The Court didn't find reason to doubt the constitutionality of the system, because possible constitutional deficiencies can be preempted by following its close instructions on a number construals of the Act. To list those:
- Minimum Disclosure: There is an "incompressible minimum amount of disclosure to the named person". To meet this standard, the named person must "personally [have] received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his special advocates which will allow them to challenge the information and evidence relied upon by the Minister in the closed hearings" (at para. 56). "If the named person is not reasonably informed, the proceedings will not have been in compliance with the IRPA scheme and the judge cannot confirm the certificate’s reasonableness. In such a case, the judge must quash the certificate, pursuant to s. 78 of the IRPA" (at para. 60). This is potentially a big deal, and probably not something the government is content to see.
- No Failures to Disclose Based on Doubtful Hypotheticals or Disclosure Allergies: "Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person" (at para. 61). " The judge must be vigilant and skeptical with respect to the Minister’s claims of confidentiality" (at para. 63). Again, not a great rule from the government's perspective.
- Continued Communication is Real and to Be Preferred: "The judge should take a liberal approach in authorizing communications [between special advocates and named persons after the former has seen the secret evidence] and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real — as opposed to a speculative — risk of injurious disclosure. As much as possible, the special advocates should be allowed to investigate the case and develop their strategy by communicating with the named person, the named person’s public counsel, and third parties who may bring relevant insights and information" (at para. 70). And special advocates can make the case for continued communication ex parte, without the government lawyers present (and thus learning lots about the other side's litigation strategy). Given where the government started on the communication back in the day and traditional position in places like the UK -- communication verboten -- this is a significant holding. I haven't tracked how much communication has existed in practice, but this language leans towards "a fair amount" and possibly more than has heretofore been on offer.
- There is no "CSIS informer privilege": "[T]he IRPA scheme already affords broad protection to human sources by precluding the public disclosure of information that would injure national security or endanger a person" (at para. 87). Again, not the answer the government wanted.
Special advocates win, to the extent you can view them as an actor in this matter. They will continue, at least as a concept. They will have more continued communication and in the right circumstances, they may get to cross-exam intelligence sources, although the Court was pretty restrained on this point.
Other Named Persons
What impact this decision will have on the Jaballah (still pending) and Majhoub cases (being appealed?) remains to be seen. But my strong suspicion (given the above) is that the SCC decision in Harkat has now moved the ball even further down the field from where the government would like it to be. Now after 7 years of effort we have a system with reasonably clear rules. And since the government may not like where those rules take it, it is unlikely ever to issue another terrorism-related security certificate (if it can avoid it).