2008 SCC 38
The appellant in this case had been the subject of a security certificate under s.77(1) of the Immigration and Refugee Protection Act (IRPA), and was subsequently arrested and detained. When counsel for the ministers revealed they had accidentally failed to disclose a summary of two interviews between the appellant and CSIS officers, the judge ordered disclosure of the documents. The ministers also filed new allegations against the appellant, based on information that was not in his file at the time the security certificate was issued, a summary of which was disclosed to the appellant. The appellant applied to have the new evidence excluded and the recordings of the two interviews disclosed to him, but there were no recordings and CSIS had destroyed the notes from the interviews. The appellant then filed a motion for a stay of proceedings based on the violation of his right to procedural fairness.
The Supreme Court found that CSIS had failed in its duty to retain and disclose information related to its investigations of individuals or groups. The destruction of the notes compromised judicial review structures, as it prevented the reviewing judge from having access to the relevant evidence. Confidentiality issues touching on public safety and national security interests would be protected by having the judge review the evidence and determine on a case-by-case basis what evidence the person named in the security certificate was entitled to have disclosed to them, both during the review of the certificate and of the subsequent detention.
Faculty of Law Commentary and Research discussing Charkaoui v Canada (Citizenship and Immigration)
Kent Roach, “When Secret Intelligence Becomes Evidence: Some Implications of Khadr and Charkaoui II,” (2009) 47 SCLR (2d) 147.
Kent Roach, “Constitutional Chicken”: National Security Confidentiality and Terrorism Prosecutions after R v Ahmad,” (2011) 54 SCLR (2d) 357.
Facta
| Date | Document |
| 2007 / 07 / 24 | Appellant – Adil Charkaoui |
| 2007 / 09 / 17 | Respondents – Minister of Citizenship and Immigration and the Solicitor General of Canada |
| 2008 / 01 / 09 | Intervener – Barreau du Quebec |
| 2008 / 01 / 09 | Intervener – Québec Immigration Lawyers Association |
| 2008 / 01 / 10 | Intervener – Association des avocats de la défense de Montréal |
| 2008 / 01 / 11 | Intervener – Amnesty International |
| 2008 / 01 / 11 | Intervener – Canadian Bar Association |
| 2008 / 01 / 16 | Intervener – Attorney General of Ontario |
| 2008 / 01 / 21 | Intervener – Criminal Lawyers’ Association |