Zundel, re, January 6, 2004

FEDERAL COURT

Date: 20040106

Docket: DES-2-03

Citation: 2004 FC 5

Ottawa, Ontario, January 6, 2004

Present:   The Honourable Mr. Justice Blais

IN THE MATTER OF a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 201, c. 27 (the "Act");

AND IN THE MATTER OF the Referral of that certificate of the Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80 of the Act;

AND IN THE MATTER OF ERNST ZÜNDEL

REASONS FOR ORDER AND ORDER

[1]                In the context of a hearing on whether the certificate issued by the Solicitor General of Canada and the Minister of Citizenship and Immigration [the "Ministers"] pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [the "Act"], stating that Ernst Zündel [the "respondent"] is inadmissible to Canada under paragraphs 34 (1) (c), (d), (e) and (f) of the Act, is reasonable, the respondent has presented a motion to this Court for disclosure of evidence.

[2]                The motion follows on an exchange of letters between the Crown and respondent's counsel in which counsel had requested disclosure of the evidence to be adduced for the certificate hearing (letter September 21, 2003). Mr. MacIntosh answered on September 22, 2003 that the Crown did not intend to provide the evidence.

as Justice Blais has ruled that there is no requirement to disclose witnesses whom you intend to call, it is our position that the same ruling applies to the Ministers. (...) Justice Blais indicated that when the Crown is surprised as to witnesses that were called by Mr. Zündel, he would entertain an adjournment request. The Ministers believe that the same ruling applies to Mr. Zündel.

[3]                The request was repeated in December; the Crown answered that the Summary of Information provided to the respondent pursuant to the Order of this Court dated May 5, 2003 was sufficient.

[4]                Two principles are at stake here: On the one hand, a party to a proceeding is entitled to the disclosure of the other party's evidence in advance. This is a fundamental tenet of natural justice, and part of the rules of procedure of any court, including the Federal Court. On the other hand, the detention and certificate hearings are held under section 78 of the Act, which provides somewhat different rules of disclosure, given that part of the evidence is confidential information which the judge, pursuant to ss. 78 (b) and (h), may choose to keep confidential for reasons of national security or to protect the safety of any person.

[5]                It would seem to be in the interest of fairness and justice to allow Mr. Zündel to have access to the public evidence which will be adduced in court. Although this is neither a criminal nor a civil matter, since this is a matter of detention and deciding on inadmissibility, Mr. Zündel is entitled to as complete a disclosure as possible. Obviously, the rules of section 78 still apply, and some information may be kept confidential, pursuant to ss. (b) and (h).

LEGISLATION

Immigration and Refugee Protection Act

76.(...)

"information" means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.(...)

76. (...)

« renseignements » Les renseignements en matière de sécurité ou de criminalité et ceux obtenus, sous le sceau du secret, de source canadienne ou du gouvernement d'un État étranger, d'une organisation internationale mise sur pied par des États ou de l'un de leurs organismes.

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; (...)

(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;(...)

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 don't la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;(...)

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 don't la divulgation porterait atteinte, selon lui, à la sécurité nationale ou à la sécurité d'autrui;

Information requested

1)        Name or names of CSIS officers knowledgeable about the statements summarizing the information and evidence which were provided to Mr. Zündel by CSIS;

2)        List of all CSIS and RCMP officers, as well as any other public servant of Canada, who have interviewed Mr. Zündel or others about him, including date of interview and whether any record of interview is available;

3)        Summary of the evidence to be adduced for the Certificate Review on December 11, 2003;

4)        Copies of all materials Crown intends to present to the Court at said Review;

5)        Copies of all materials which Crown does not intend to present to the Court but which may be relevant to the Review;

6)        List of all witnesses Crown intends to call at the hearing;

7)        List of all witnesses Crown does not intend to call but who may be in possession of information that is relevant, as well as summary of said information.

RESPONDENT'S ARGUMENTS

[6]                In the Summary of Information which has been provided to the respondent pursuant to the May 5, 2003 Order of this Court, the essential argument of CSIS seems to be that as a leader of the White Supremacist Movement, the respondent represents a danger for Canadian society. Right-wing extremism is characterized by the use of violence, and the respondent, through his writings, publications and various communications, encourages and fosters this use of violence.

[7]                The respondent counters that no direct evidence has been presented of his advocating the use of violence. On the contrary, the respondent has always argued, to friends and foes alike, that the full discussion of ideas is what is paramount, and that violence is counter-productive and wrong. The Ministers' argument seems to be that since his followers engage in violence, his influence must be such as to encourage violence. The respondent contends the opposite: right-wing extremists act violently despite his advice, not because of it.

[8]                Because of what the respondent argues is the "mindset" of CSIS, placing him in the fold of violent extremists, and because all of the evidence of the Ministers has been documentary, allowing no cross-examination, the respondent argues that he should be allowed to examine at least a few witnesses from CSIS. The issue surrounding the determination appears to be one of credibility, yet the respondent is not allowed to cross-examine on the manner in which the evidence has been established against him.

[9]                CSIS, in the Summary of Information, recognizes that there is little evidence of direct involvement of the respondent with violent acts. However, his association with violent groups or individuals is, according to CSIS, causally linked to the violence of these groups:

As a leadership figure within the [White Supremacist] Movement, Zündel has virtually no history of direct personal engagement in acts of serious violence. However, his status within the milieu is such that adherents are inspired to actuate his ideology. By his comportment as a leader and ideologue, the Service believes Zündel intends serious violence to be a consequence of his influence. To this extent, the Service furthermore believes and asserts that Zündel is engaged in the propagation of serious political violence to a degree commensurate with those who actually execute the acts. [Para.74, Statement summarizing the information and evidence pursuant to section 78(h) of the IRPA]

[10]           It is this thesis that the respondent wishes to test by examining someone who has knowledge of the evidence held by CSIS on the respondent.

MINISTERS' ARGUMENTS

[11]           The Ministers accept Mr. Zundel's statement of facts, but submit the motion for further disclosure of information must be denied.

[12]           The Ministers argue that the motion amounts to an attempt to go behind the information already provided by the Security Intelligence Reports. The request, according to the Ministers, is "premised on the ill-founded and misguided belief that the Crown intends to adduce further evidence in the instant proceedings".

[13]           The Ministers argue, on the basis of Ikhlef (Re), [2002] F.C.J. No. 352 (T.D.), Ahani v. Canada, [1996] F.C.J. No. 937 (F.C.A.) and Harkat (Re), [2003] F.C.J. No. 400, that criminal law principles have no application in a case such as the one at bar. Any obligation to disclose is founded, submit the Ministers, on principles of fairness and natural justice as enunciated in administrative law. It is particularly important to balance the competing interests of state security and individual rights.

[14]           The Ministers' submissions seem to indicate that there will be no new public evidence. They argue that the scheme of the Act already provides that the reviewing judge will provide as much information as possible while taking into account considerations of national security.

ANALYSIS

[15]           As far as public evidence is concerned, it is the hope of this Court that the parties will deem fit to disclose all evidence to be adduced well in advance, so as to make the process as smooth as possible. Having both sides inform each other and the Court in advance of witnesses and evidence represents the normal way of proceeding in a court hearing. Counsel for both sides seemed willing to cooperate in this regard, and I hope that disclosure of public evidence can be done ahead of time, as it should.

[16]           It was clarified during oral submissions that counsel for the respondent sought to be fully apprised of any evidence, not information as defined by the Act, but evidence which could have been relevant but was not included in the public evidence by the Ministers. If the Ministers hold any such information, I believe it should be communicated to the respondent.

[17]           As to the information received in camera, the issue is the extent to which this information should be kept secret while allowing the respondent sufficient evidence to dispute the certificate.

[18]           The starting point for the information to be provided by order of the judge is subsection 78 (h) which states that the judge will provide a summary of the information or evidence "that enables them [foreign national or permanent resident who is the subject of the certificate] to be reasonably informed of the circumstances giving rise to the certificate". The question is thus whether, with the summary provided, the respondent has been "reasonably informed".

[19]           In Yao v. Canada (MCI), [2003] F.C.J. No. 948 (F.C.T.D.), to determine the rule to be applied in such cases, Madam Justice Dawson adopted the test propounded by Mr. Justice Addy in Henrie v. Canada (Security Intelligence Review Committee) (1988), 53 D.L.R. (4th) 568; affirmed 88 D.L.R. (4th) 575. At pages 578 and 579 Justice Addy writes as follows :

[...] in security matters, there is a requirement to not only protect the identity of human sources of information but to recognize that the following types of information might require to be protected with due regard of course to the administration of justice and more particularly to the openness of its proceedings: information pertaining to the identity of targets of the surveillance whether they be individuals or groups, the technical means and sources of surveillance, the methods of operation of the service, the identity of certain members of the service itself, the telecommunications and cypher systems and, at times, the very fact that a surveillance is being or it not being carried out. This means for instance that evidence, which of itself might not be of any particular use in actually identifying the threat, might nevertheless require to be protected if the mere divulging of the fact that C.S.I.S. is in possession of it would alert the targeted organization to the fact that it is in fact subject to electronic surveillance or to a wiretap or to a leak from some human source within the organization.

It is of some importance to realize than [sic] an "informed reader", that is, a person who is both knowledgeable regarding security matters and is a member of or associated with a group which constitutes a threat or a potential threat to the security of Canada, will be quite familiar with the minute details of its organization and of the ramifications of its operations regarding which our security service might well be relatively uninformed. As a result, such an informed reader may at times, by fitting a piece of apparently innocuous information into the general picture which he has before him, be in a position to arrive at some damaging deductions regarding the investigation of a particular threat or of many other threats to national security. He might, for instance, be in a position to determine one or more of the following: (1) the duration, scope intensity and degree of success or of lack of success of an investigation; (2) the investigative techniques of the Service; (3) the typographic and teleprinter systems employed by C.S.I.S.; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel or of other persons involved in an investigation.

[20]           Various decisions of our Court shed further light on the matter; it must be remembered that circumstances will vary in every case, and that of course will have an impact on the decision.

[21]           Re, Charkaoui, 2003 C.F. 1418 was a motion for full disclosure. Justice Noël dismissed the motion on the grounds that "information" (as defined by the Act) can validly be withheld from the person against which a certificate has issued, for reasons of national security and that Mr. Charkaoui had a sufficient summary of the information or evidence to enable him to be reasonably informed of the circumstances giving rise to the certificate.

[22]           In Re Jaballah [2001] F.C.J. No. 1784, although the subpoena of the Ministers was quashed, Justice MacKay directed counsel for the Ministers to provide counsel for the respondent:

I) a name or names of one or more CSIS officers who are knowledgeable about the summary public statements provided to Mr. Jaballah in this case and in Jaballah No. 1;

ii) a list of all officers of CSIS, of the RCMP and any other public servants of the Government of Canada who have interviewed Mr. Jaballah, or others about him, unless revealing the names of those others would reasonably be seen to place them in jeopardy. That list should indicate the dates of any interview and whether tapes, notes or written reports of the interview are available. [para. 47]

[23]           In reviewing a security certificate concerning Mohamed Harkat, Justice Dawson twice had to render a decision on a motion for disclosure: Re Harkat [2003] F.C.J. No. 400 [hereinafter Harkat (1)]and Re Harkat [2003] F.C.J. No. 1184 [hereinafter Harkat (2)].

[24]           Harkat (1) was a request for additional information (including names of CSIS officers responsible for the investigation into his case); Justice Dawson dismissed the motion, because allowing it could be injurious to national safety. However, in Harkat (2), the application was allowed in part. Justice Dawson ruled that Mr. Harkat could not cross-examine the CSIS officer responsible for writing the summary of information, because authorship was uncertain and credibility was not the issue. However Mr. Harkat would be allowed to submit more specific questions on the summary of information that had been provided to him.

[25]           In the circumstances of the present case, after hearing both parties' submissions and reviewing the information and evidence before me, I am satisfied that the interests of justice would not be served by disclosing the names of CSIS or RCMP officers involved in the summary or otherwise. No specific question has been asked, and divulging the information requested would, in my view, be injurious to national safety without necessarily providing relevant evidence to the respondent. I will continue reviewing any information disclosed in confidence to me by the Ministers, as before, in order to determine to what extent this information can be communicated to the respondent and his counsel. I am ever mindful of the balance to be struck between the right of the respondent to be apprised of the case against him and the dictates of national security.

ORDER

THIS COURT ORDERS that:

This motion for disclosure be dismissed.

"Pierre Blais"

J.F.C.

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                            DES-2-03

STYLE OF CAUSE:                          In the matter of a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the "Act")

And in the matter of the referral of that certificate to the Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80 of the Act;

And in the matter of Ernst Zündel

PLACE OF HEARING:                    Toronto, Ontario

DATE OF HEARING:                      November 6, 7, December 10, 2003

REASONS FOR ORDER             The Honourable Mr. Justice Blais

AND ORDER:

DATED:                                               January 6, 2004

APPEARANCES:

Donald MacIntosh & Pamela Larmondin                                     FOR THE MINISTER

Department of Justice

Toronto, Ontario

Murray Rodych & Toby Hoffman        FOR THE SOLICITOR GENERAL

Canadian Security Intelligence Service

Legal Services

Ottawa, Ontario

Doug Christie                                                                                 FOR RESPONDENT

Barrister & Solicitor

Victoria, B.C.

Peter Lindsay & Chi-Kun Shi

Barristers and Solicitors

Toronto, Ontario