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Digest of the Week — A Refresher on Harkat

2012 CarswellNat 1155 |

Harkat, Re |

Federal Court of Appeal |

Judgment: April 25, 2012

 

Evidence | Privilege | Public interest immunity | Miscellaneous

 

Immigration and citizenship | Exclusion and removal | Removal from Canada | Appeals and judicial review | Judicial review | Miscellaneous

 

 

Applicant applied for judicial review of security certificate — Two special advocates were appointed to represent applicant’s interests during closed hearings — Reports from Canadian Security and Intelligence Service (”CSIS”), with information originating from human sources, were presented — Special advocates requested order compelling production of sources for cross-examination — Request was denied — Applicant appealed — Appeal allowed in part — Appeal allowed with respect to privilege decision, it was set aside, and declaration was made that CSIS human sources did not benefit from police-informer class privilege or class privilege analogous to police-informer class privilege — Appeal allowed with respect to abuse of process decision, it was set aside, and order was made that confidential summaries made of destroyed originals of conversations be excluded as evidence, except for conversations appellant was privy to — Appeal allowed with respect to reasonableness decision, matter was referred back to judge for new determination of reasonableness of security certificate on basis of evidence on record, excluding confidential summaries made of destroyed originals of conversations to which appellant was not privy — Declaration was made that appellant’s s. 7 Canadian Charter of Rights and Freedoms right of disclosure of originals of conversations to which he was privy was violated — Evidence that trial judge relied upon to confirm summaries’ veracity and accuracy was presented only in most general terms — Witness J had not talked to CSIS analysts about operational methods in long time — He had no personal involvement in appellant’s case — Closed testimony of another witness, CM, was similarly vague — No specific examples of steps taken to ensure summaries’ accuracy were provided.

 

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