Date: 19980611
Docket: DES-1-98
BETWEEN:
| IN THE MATTER OF a certificate in relation to Iqbal SINGH |
| AND IN THE MATTER OF a referral of that certificate to the Federal Court of Canada pursuant to paragraph 40.1(3)(a) of the Immigration Act, R.S.C. 1985, c. I-2 |
IN RELATION TO:
| Iqbal SINGH |
REASONS FOR ORDER
(Motion for Disclosure)
(Delivered from the Bench, at Toronto, Ontario
on Monday, June 1, 1998 as amended)
ROTHSTEIN J.
[1] These are proceedings instituted under s. 40.1 of the Immigration Act1 R.S.C. 1985, c. I-2, as amended, by the Minister of Citizenship and Immigration and the Solicitor General of Canada ("applicants" or "Ministers") for determination as to whether the certificate filed by them in this Court, stating that Iqbal Singh ("respondent") is inadmissible to Canada under subparagraphs 19(1)(c)(ii), 19(1)(e)(iv)(B)(C), 19(1)(f)(ii), and 19(1)(f)(iii)(B) of the Immigration Act is reasonable. In the course of these proceedings, the respondent has made a motion for production of the transcripts and/or translations of wiretapped telephone communications, if any, involving calls made by the respondent from his own telephone.
[2] The respondent says that under paragraph 40.1(4)(a), apart from the security intelligence report itself, he is entitled to evidence submitted to the designated judge by the applicants, unless the applicants can demonstrate that the evidence should not be disclosed on the grounds that the disclosure would be injurious to national security or to the safety of persons. The respondent says that he already suspects that his telephone line was tapped and therefore disclosure of his own conversations from that line could not be injurious to national security or to the safety of persons as he knows the persons with whom he was speaking and the content of their conversations. His concern is that such conversations took place in the Punjabi language and they may not have been accurately translated or that nuances or slang expressions may have been misinterpreted.
[3] Without conceding that the respondent's telephone line was tapped, the applicants object to the respondent's motion on national security grounds. The applicants' arguments are based on the mosaic effect referred to by Addy J. in Henrie v. Canada (S.I.R.C.) (1988), 53 D.L.R. 568 (F.C.T.D.) at 578 and 579. They also argue that the disclosure of information discovered by the applicants could include information such as codes used by the respondent. Such codes could also be used by persons who may be the subject of other ongoing investigations, and their disclosure would be injurious to national security in that such disclosure would hamper those other investigations.
[4] In analyzing this case, it will be assumed that transcripts or translations of, or a summary arising from wire taps or calls made by the respondent from his own telephone exist. No factual finding is made on this point.
[5] At the outset it will be convenient to identify the categories of evidence and/or information to which paragraph 40.1(4)(a) refers:
| 1. the security or criminal intelligence reports considered by the Ministers. |
| 2. other evidence or information presented by or on behalf of the Ministers heard in the absence of the person named in the certificate. |
| 3. other evidence or information presented by or on behalf of the Ministers heard in the presence of the person named in the certificate. |
[6] Evidence or information not disclosed to the person named in the certificate under paragraph 40.1(4)(a) is to be provided to that person in accordance with the procedures set out in paragraph 40.1(4)(b). The person named in the certificate is to be provided with a statement summarizing such information available to the designated judge as will enable that person to be reasonably informed of the circumstances giving rise to the issuance of the certificate having regard to whether, in the opinion of the designated judge, the information should not be disclosed on the grounds the disclosure would be injurious to national security or to the safety of persons.
[7] The respondent concedes that the security intelligence report received by the Ministers must be examined by the designated judge in camera under paragraph 40.1(4)(a). He also concedes that disclosure of the contents of the security intelligence report to the respondent is to be carried out by way of the summary statement under paragraph 40.1(4)(b). However, he says the wire tap evidence does not form part of the security intelligence report, that it falls under the category of "other evidence or information" referred to in paragraph 40.1(4)(a), that for the reasons referred to in paragraph 2 above, disclosure would not be injurious to national security or to the safety of persons and that he is therefore entitled to such evidence or information.
[8] The respondent is correct that disclosure of information in a security intelligence report is effected only by way of summary statement under paragraph 40.1(4)(b). Under paragraph 40.1(4)(a), the security intelligence report is to be examined in camera. What is contemplated with respect to the security intelligence report is an examination by the designated judge, as opposed to a hearing. This is to be contrasted with the treatment of any "other evidence or information" which the Ministers may request that the designated judge hear in the absence of the person named in the certificate or his counsel on the grounds of injury to national security or to the safety of persons. In the case of "other evidence or information" there will be a hearing. Whether the "other evidence or information" is heard in the presence or in the absence of the person named in the certificate will be determined by the designated judge. An interpretation of paragraph 40.1(4)(a), that because there is only reference to the examination being conducted in camera but not in the absence of the respondent, the respondent is to be present and to obtain complete disclosure of the security intelligence report would be illogical. Parliament could not have intended that the respondent would be entitled to see the security intelligence report but that he might be denied disclosure of any "other evidence or information" presented by the Ministers.
[9] In paragraph 40.1(5.1)(b), dealing with information obtained from foreign governments, the designated judge is to examine such information "in camera and in the absence of the person named in the certificate and any counsel representing the person" and provide counsel for the Ministers with an opportunity to be heard with respect to whether the information is relevant but should not be disclosed. By contrast to the examination of the security intelligence report under paragraph 40.1(4)(a), the proceedings under paragraph 40.1(5.1) are pursuant to an application. In the case of such an application, the designated judge is conducting a hearing in which he examines the information and gives counsel for the Ministers' an opportunity to be heard on the question of disclosure. It is therefore necessary in paragraph 40.1(5.1)(b) that the proceedings be carried out "in camera and in the absence of the person named in the certificate and any counsel representing the person".2
[10] It is clear that the respondent was correct to concede that his right to disclosure with respect to the security intelligence report is by way of summary statement under paragraph 40.1(4)(b).
[11] I now turn to whether the wire tap evidence is "other evidence or information" as argued by the respondent. I have reviewed the security intelligence report for purposes of this motion. It consists of a document, prepared for consideration by the Ministers, dealing with the respondent and his involvement, as it is set out in the document, with the Babbar Kalsa and/or the Babbar Kalsa International organizations. The report contains numerous footnote references to other documents. These other documents contain the detailed information upon which the security intelligence report itself is based. If it exists, the evidence the respondent is seeking would be contained in these underlying documents.
[12] A review of the security intelligence report makes it obvious that the underlying documents, which are referred to extensively in footnotes, are incorporated by reference into and form part of the report. While I do not know exactly what underlying documents the Ministers actually examined, the report makes it clear that the Ministers certainly knew the underlying documents existed and could have had access to any or all of them if they so chose. For this reason, I think disclosure of the underlying documents must be treated in the same manner as disclosure of the actual report.
[13] This conclusion is consistent with a reasonable interpretation of the legislative provisions. In this case, the security intelligence report is an analysis of, and conclusions based on, the detailed underlying information. For the reasons I have already given, disclosure of the report is by way of summary statement under paragraph 40.1(4)(b). It would only be consistent with this statutory scheme that the detailed information underlying the report also be treated in the same manner. Treating the detailed information as "any other evidence or information" under paragraph 40.1(4)(a) would subject the detailed information to a lesser standard of confidentiality than the report itself. It would be illogical to make the details underlying the report more readily subject to disclosure than the analysis of, and conclusions based on, that information in the report itself.
[14] The respondent points out that subsection 40.1(5.1) provides that information obtained from foreign governments is to be considered in camera and in the absence of the person named in the certificate by the designated judge. If there is to be disclosure of that information, the subsection provides that it is to be in the summary statement under the procedure provided in paragraph 40.1(4)(b). He argues that the absence of express reference in paragraph 40.1(4)(a) to treating other details that may underlie or be referred to in the security intelligence report, such as wire tap information, in the same manner implies that these other details may be disclosed as "other evidence or information" under paragraph 40.1(4)(a). However, subsection (5.1) is a code in itself which was enacted to enable the Ministers to withdraw information obtained from foreign governments and not to use it in the section 40.1 proceedings if some disclosure of such information in a summary statement was required by the designated judge. The enactment of subsection (5.1) does not imply that all other details underlying and incorporated into a security intelligence report may be disclosed as "other evidence or information" under paragraph 40.1(4)(a).
[15] The respondent says that if the underlying information is not "other evidence or information" under paragraph 40.1(4)(a), then the "other evidence or information" portion of that paragraph has no meaning or purpose. While it is not possible for me to foresee with any certainty what "other evidence or information" might be in any given case, I can easily imagine circumstances in which these words may be applicable. For example, "other evidence or information" might be evidence that the Ministers seek to introduce, but which arises after issuance of their certificate.
[16] Treatment of the underlying documentation as being incorporated by reference into the security intelligence report is also consistent with the dicta of McGillis J. in Ahani v. Canada, [1995] 3 F.C. 669 (T.D.), aff'd (1996) 201 N.R. 233 (F.C.A.), leave to appeal to the Supreme Court of Canada refused July 3, 1997. While she did not, in that case, have to deal with the distinction between the report itself and the details underlying and incorporated into the report, the necessary implication of her reasons is that such underlying information must be treated as part of and in the same manner as the report itself. At page 683 she states:
| The disclosure powers accorded to the designated judge are broad and require the cautious exercise of judicial discretion to insure that the competing interests are properly balanced. By way of example from a practical perspective, a designated judge would be required to provide disclosure of human source information, if it were necessary to enable the named person to be "reasonably informed", save and except where the very nature of the information would reveal the identity of the source and endanger his safety or compromise national security. |
| [emphasis added] |
Clearly her reference to "reasonably informed" implies that she was considering, under paragraph 40.1(4)(b), human source information which would underlie the security intelligence report. I am satisfied that her approach was that all information examined by the designated judge in camera, including both the report itself and the underlying details (and other evidence or information heard in the absence of the person named in the certificate under paragraph 40.1(4)(a)), be disclosed to the person named in the certificate only in accordance with paragraph 40.1(4)(b).
[17] Having concluded that the underlying details are incorporated by reference into, and form part of, the security intelligence report, it follows that they are not "other evidence or information" as that term is used in paragraph 40.1(4)(a). As a result they are examined by the designated judge in camera and their disclosure is governed by paragraph 40.1(4)(b).
[18] Without disclosing the existence or non-existence of wire taps of telephone calls made by the respondent from his own telephone or evidence obtained from such wire taps, having regard to the information available to me, and, in particular, the concerns of the respondent expressed in argument, I am satisfied the respondent need not be provided with a statement summarizing the disclosure requested in order that he be reasonably informed of the circumstances giving rise to the certificate.
[19] The motion for disclosure is dismissed.
_________________________
Judge
Vancouver, British Columbia
June 11, 1998
__________________1 The provisions that are relevant for the purposes of this disclosure motion are set out in Appendix "A" to these reasons.
2 Although the respondent did not rely on it, there is also reference to proceedings "in camera and in the absence of the person making the application" in subsection 40.1(10). Again however, the distinction is that under subsection 10 a hearing is involved.