Weighing Evidence - Chapter 8: Security Evidence in Appeals


8.1.  INTRODUCTION

The Minister has been provided with a mechanism in the Immigration and Refugee Protection Act (IRPA) to bring an application in both the Immigration Division (ID) and the Immigration Appeal Division (IAD) for Non-Disclosure of Information.

This means that if the Minister's application is granted, the subject of the proceedings, i.e. the person concerned at the ID or the appellant at the IAD, and their respective counsel, are not permitted to view specific evidence provided to the member in support of the Minister's case. This chapter will very briefly touch on the procedures for determining the non-disclosure applicationNote 1 as they impact on Immigration Appeal Division appeal. We will examine selected commentary provided by the courts respecting evidence that is subject to a non-disclosure order. Lastly we will provide a list of factors that may impact the weight to be given such evidence and the manner in which such evidence is to be dealt with in reasons for any ultimate decision based on this special kind of evidence.

8.2.  INITIATING THE PROCEDURE

When one examines the matters set out in s. 78 of IRPA it is clear that this section is a relatively complete code for conducting an application for non-disclosure. It mandates that an ex parte procedure take place. This means the hearing is conducted in private and in the absence of the subject of the proceedings and his counsel. The member must however provide a summary of the evidence (omitting anything that in the opinion of the member would be injurious to national security or the safety of any person if disclosed) to the subject of the proceedings and his counsel and allow that person and counsel to be heard as to the potential impact of the information contained in a summary of the evidence. It is important to note that this ex parte hearing is only a portion of the full admissibility hearing, detention review or appeal hearing. In some cases the actual summary is prepared by the Minister and CSIS.

The IAD Rules contain no specific provisions as to the manner in which the IAD is to treat these applications. It is worth noting that the Immigration Division Rule 41 requires the application must be in writing. This would make sense in an appeal as well to preserve a record of the process. The non-disclosure application is to be made in writing to the IAD registry by the Minister.

If the application is made during a hearing, the IAD member must exclude the appellant and the appellant's counsel from the hearing room in the same manner as the ID Rule 41(2) mandates for the ID. The application may be made at a place outside the hearing room as well. This allows the Minister an opportunity to control access to the documents that contain the security information. In the case of security intelligence that is in the control of CSIS the application is always made on their premises.

Due to the low number of cases from which to draw conclusions there is no consensus as to a number of basic procedural matters including exactly how the application is to be conducted, whether the hearing is to be recorded, whether notes may be taken and locked away, and numerous other questions of a procedural nature. To date only one case in the IAD has dealt with evidence presented ex parteNote 2. That case proceeded under the prior legislation.

In SogiNote 3 the Court outlines in detail the procedure it adopted in applying s. 78 to a judicial review hearing.

8.3.  TYPES OF INFORMATION SUBJECT TO NON-DISCLOSURE

Section 76 of IRPA states:

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

There is no definition of either security or criminal intelligence information but such terms should be read together with s. 78 which section directs a judge to ensure the confidentiality of the information on the basis that "its disclosure would be injurious to national security or to the safety of any person".

The context in which these terms appear may also inform a panel as to their meaning. These terms are used in the procedure set out in s. 77 where the Minister (of Citizenship and Immigration) and the Solicitor General sign a certificate stating a person is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality.

It follows that intelligence regarding persons or groups that are described in these inadmissibility provisions may be considered "security intelligence information".

Examples of criminal intelligence may include the identity of police informers, methods of investigation of organized crime, surveillance techniques or targets, etc. Security intelligence may be drawn from highly sensitive sources and whether such information is properly the subject of a non-disclosure application is determined by CSIS and CIC together.

8.4.  THE RATIONALE FOR PROTECTING INFORMATION

The Federal Court has had occasion to comment on these types of information:

In considering whether the release of any particular information might prove injurious to national security, and in estimating the possible extent of any such injury, one must bear in mind that the fundamental purpose of and indeed, the raison d'etre of a national security intelligence investigation is quite different and distinct from one pertaining to criminal law enforcement, where there generally exists a completed offense, providing a framework within the parameters of which investigations must take place and can readily be confined. Their purpose is the obtaining of legally admissible evidence for criminal prosecutions. Security investigations on the other hand, are carried out in order to gather information and intelligence and are generally directed towards predicting future events by identifying patterns in both past and present events.Note 4

Information on national security is therefore more sensitive and the Canadian Security Intelligence Service (CSIS) has very specific requirements concerning the protection of the information it holds in security matters and intervenes directly when an application under s. 86 of the Act is heard. A Security Intelligence Report is a detailed summary of information in the possession of CSIS and must never be disclosed to anyone including the appellant or the appellant's counsel. It is usually designated either "Secret" or "Top Secret".

8.5.  THE MEMBER'S DECISION

On an application for non-disclosure of information the ex parte hearing may result in certain permissible outcomes under the IRPA. If the member determines the evidence is not relevant to the appeal or that it should be included in the summary that is to be disclosed over the objections of the Minister, or if the Minister withdraws their application, section 78(f) dictates that no evidence submitted in the context of a non-disclosure application may be disclosed without the approval of the Minister's counsel.

In all cases where the member reviews the information that is the subject of the application the member must determine if the evidence is relevant and its disclosure would be injurious to national security or to the safety of any person.

If relevant and injurious - it may not be included in the summary. That summary is to be part of the record of the appeal proceedings and is to be provided to the appellant and counsel.

If the member determines the evidence is not injurious but relevant and should be disclosed as part of the summary, the Minister's counsel may withdraw the application and that information may not be adduced in the appeal hearing. A member may not refer to or disclose that information at any subsequent time for any purpose.

8.6.  DUTY OF DISCLOSURE

The case law has clearly established that the principles for the disclosure of evidence in the context of a criminal prosecution do not apply in immigration matters. The Federal Court in Henrie warned against the disclosure of information that was peripheral to the protected information:

In criminal matters, the proper functioning of the investigative efficiency of the administration of justice only requires that, wherever the situation demands it, the identity of certain human sources of information remained concealed. By contrast, 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 is not being carried out. This means, for instance, that evidence, which of itself may not be of any particular use in actually identifying the threat, but nevertheless require to be protected if the mere divulging of the fact that CSIS is in possession of it would alert the targeted organization to the fact that it is in fact, subject to or electronic surveillance or to wiretap or to a leak from some human source within the organization.

It is of some importance to realize that 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 with which he has before him, be it a position to arrive at some damaging deductions regarding investigation of a particular threat or if they many other threats to national security. He might, for instance, be it a position to determined one or more of the following: (1) the duration, scope intensity and degree of success are of lack of success of an investigation (2) the investigative techniques of the service; (3) the typographic and teleprinter systems employed by CSIS; (4) internal security procedures; (5) the nature and content of other classified documents; (6) the identities of service personnel are of other persons involved in an investigation.

In YaoNote 5, the Minister had refused to issue a visa, alleging that Mr. Yao was inadmissible on grounds of security. In the context of a judicial review of the visa officer's decision, the Minister applied for non-disclosure of information under s. 87(1) of IRPA. The Federal Court cited Henrie and added the following:

In arguing that the confidential information should remain confidential in the case at bar, the Minister argued in its public motion record that if the confidential information was released it could result in a reader being a into a position to determine or learn one or more of the following:

  1. the duration, scope, intensity, and degree or success or lack of success of an investigation;
  2. the investigative techniques of the foreign state;
  3. the nature and content of the investigation;
  4. the identities of the individuals working for the foreign states or of other persons involved in an investigation;
  5. it could identify the techniques and methodology of the investigation;
  6. it could identify the degree of success or lack of success of the investigation;
  7. it could jeopardize the lives of the people involved;
  8. it could identify the relationships between Canadian government institutions and foreign governmental institutions which could be jeopardized by the disclosure of this information since foreign governments would not be prepared to enter into those kinds of arrangements in the future;
  9. it could also identify individuals who are the subject or targets of the investigation by Canadian and foreign governments.

Having reviewed the confidential information, and the confidential affidavit filed in support of this motion, I am satisfied that the disclosure of the confidential information would be injurious to Canada's national security or the safety of any person because, if released, it could result in an informed reader learned one or more of the matters set out above.

In conclusion, one may summarize by saying that the duty of disclosure of criminal intelligence information will most often be directed at protecting intelligence sources, and, sometimes, investigative methods in order to ensure the safety of the persons involved and public in general. The prohibition against disclosure of security information will be aimed at protecting the activities of CSIS and those who are involved in or affected by its activities.

8.7.  ASSESSING THE EVIDENCE

Once a decision is made on the application for non-disclosure and a summary of the evidence is disclosed to the appellant and counsel there are some challenges for a member to both assess that information as to its relevance, matters of onus, reliability and probative value when compared to traditional evidence in an appeal hearing. As the relevance of the evidence must have been assessed in the application for non-disclosure itself, it needn't be repeated here.

8.8.  ONUS OF PROOF ON MINISTER

The onus of proving that the information must be protected falls on the Minister. It is up to the Minister to establish to the satisfaction of the member that the information the Minister wants to protect is information within the meaning of section 76 of the Act, that the evidence that is the subject of the application is relevant and that disclosure would be injurious to national security or the safety of any other person. Neither the act or the case law specifically defines the standard of proof that applies in deciding whether disclosure would be injurious to national security or to the security of a person. It would seem, therefore, that a "balance of probabilities" is the standard that applies in this regard.

8.9.  RELIABILITY OF THE EVIDENCE

At a hearing of the nondisclosure application, because only one party is present, the responsibility for assessing the reliability of the evidence falls on the member. The Court has commented on how such evidence is to be assessed. For instance, in SinghNote 6 the Court said:

However, I can say that the security intelligence report includes six large volumes of documents. Having regard to the respondents concerns, I have paid particular attention to detail of the information, at specific questions and received answers about the reliability of the various sources and considered whether information was corroborated by more than one independent source. [please check for accuracy]

In Sogi the Immigration Division member said:

In addition, having considered the security intelligence report, and having asked specific questions and received answers about the reliability of the various sources, and having considered whether information was corroborated by more than one independent source, I conclude ...Note 7

The reliability of the evidence is evaluated in terms of its source. More often than not, the source of the information is one of the main factors behind the application for nondisclosure. The member must always questioned the source of the evidence when evaluating its reliability, but in the context of an application for nondisclosure a member must assume a greater measure of responsibility in this respect, as the opposing party is unable to examine and test this aspect of the evidence.

8.10.  REASONS FOR DECISION

Where the member grants an application for nondisclosure of information, the evidence presented in private in the absence of the person who is the subject of the preceding and his counsel may serve as a basis for the case. The reasons in support of the decision must be written in order to avoid inadvertently revealing information that has been the subject of the prohibition against disclosure. Members should be very careful when referring to the evidence that's the subject of the ban on disclosure to refer to that evidence in very general terms.

The court has expressed itself in Henrie as follows:

It would in these reasons be improper for me to comment directly on any particular document or piece of evidence is there would be a serious risk that such comments might serve to identify the evidence and its source to any knowledgeable person who might be or whose organization might be a target of the investigationNote 8.

In Singh, the court said:

By reason of paragraph 40, I am not permitted to disclose the security intelligence report or other evidence which have heard in the absence of the respondent or his counsel, because disclosure would be injurious to national security or to the safety of persons.Note 9

8.11.  CONSTITUTIONALITY OF THE PROCESS

To date there has been only one decision of the Court on the constitutionality of the non-disclosure process under IRPA and the FC Note of that decision is set out below:

Sogi, Bachan Singh v. M.C.I.(F.C., no.  IMM-5125-02), MacKay, December 8, 2003; 2003 FC 1429. [JUDICIAL REVIEW OF Montreal ID 0018-A2-01098, Ladouceur, October 8, 2002.] By decision dated October 8, 2002, the Immigration Division determined that the applicant is inadmissible on security grounds, IRPA, s. 34(1)(f): being a member of an organization, Babbar Khalsa International ("BKI"), a Sikh extremist organization that there are reasonable grounds to believe engaged in terrorism (IRPA, s. 34(1)(c)). The Immigration Division granted the Minister's application, pursuant to IRPA, s. 86, for non-disclosure of protected information. (1) The Court granted the Minister's application, pursuant to IRPA, s. 87, for non-disclosure of protected information during the hearing of this application for judicial review. (2) The standard of review: (i) issues of mixed and law, "reasonableness simpliciter"; issues of fact, "patent unreasonableness"; issues relating to assessment of security intelligence, "correctness". (3) The Court determined that the information not disclosed to the applicant is relevant to the issues before the Court concerning the identity and the activities of the applicant, and that its disclosure would be injurious to national security. The Immigration Division member did not err in so concluding, nor is there error in his failing to set out detailed reasons for those conclusions, particularly in light of his responsibility to ensure that the information in question is not disclosed (IRPA, s. 78(b)). (4) The decision would have been clearer had the Immigration Division member given explicit reasons for not accepting the documentary evidence with respect to identity introduced by Mr. Sogi, but the member did so implicitly, and his finding of fact was not patently unreasonable. (5) It was not patently unreasonable for the member to find that the applicant was not credible when he denied that he had used certain aliases. (6) The continuing detention of the applicant and the labelling of him as a terrorist, engages s. 7 of the Charter. However, the process introduced under IRPA, ss. 44(2), 86, and 87, does not contravene the principles of fundamental justice, for the same reasons given by Justice McGillis in Ahani in upholding the security certificate process under s. 40.1 of the former Immigration Act. Question certified. Application dismissed.

A more thorough treatment of the constitutionality of the process for nondisclosure is beyond the scope of this chapter. Members can seek guidance in 5.7 of Guide to Proceedings before the ID that contains a detailed examination of this question.

Table of Cases

  1. Denton-James, Lucy Eastwood v. M.C.I. (IAD V98-04493), Workun, April 3, 2002
  2. Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229
  3. Singh: M.C.I. v. Singh, Iqbal (F.C.T.D., DES-1-98), Rothstein, August 11, 1998
  4. Sogi, Bachan Singh v. M.C.I. (F.C., no. IMM-5125-02), MacKay, December 8, 2003; 2003 FC 1429
  5. Sogi: M.C.I. v. Sogi, Bachan Singh (ID 0018-A2-01098), Ladouceur, October 8, 2002
  6. Yao, Haiquan v. M.C.I. (F.C., no. IMM-1571-00), Dawson, June 12, 2003, 2003 FCT 741

Notes

Note 1

These procedures are treated in more depth in Chapter 5 of the Guide to Proceedings Before the ID by Marina Manganelli, Legal Services.

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Note 2

Denton-James, Lucy Eastwood v. M.C.I. (IAD V98-04493), Workun, April 3, 2002.

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Note 3

Sogi, Bachan Singh v. M.C.I. (F.C., no. IMM-5125-02), MacKay, December 8, 2003; 2003 FC 1429.

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Note 4

Henrie v. Canada (Security Intelligence Review Committee), [1989] 2 F.C. 229 , affirmed by the Federal Court of Appeal (A-1107-88), Hugessen, Stone, Linden, February 4, 1992.

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Note 5

Yao, Haiquan v. M.C.I. (F.C., no. IMM-1571-00), Dawson, June 12, 2003, 2003 FCT 741.

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Note 6

M.C.I. v. Singh, Iqbal (F.C.T.D., DES-1-98), Rothstein, August 11, 1998.

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Note 7

M.C.I. v. Sogi, Bachan Singh (ID 0018-A2-01098), Ladouceur, October 8, 2002  and affirmed on judicial review - see next page.

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Note 8

Henri, supra, footnote 4.

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Note 9

Singh, supra, footnote 6.

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