CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Harkat (Re)
DES-4-02
2003 FC 918, Dawson J.
25/7/03
12 pp.
Motion seeking order compelling attendance of knowledgeable CSIS employee to testify about summary of security intelligence report provided to applicant--Also seeking order quashing security certificate for abuse of process--Two of purposes set out in Immigration and Refugee Protection Act, s. 3 to protect safety of Canadians and maintain security of Canadian society, to promote security by denying access to Canadian territory to persons who are security risks--Act, s. 78 governing conduct of proceeding, reflects Parliament's effort to meet both objectives--Unless judge concludes disclosure of information, evidence put before him would be injurious to national security, safety of any person, such evidence, information would be disclosed to person named in certificate--Summary representing disclosure of information upon which certificate based--If applicant seeks further disclosure of facts supporting certificate, motion should be dismissed, as summary discloses all facts which may be disclosed, applicant has already made one unsuccessful motion for further disclosure--Motion allowed in part--Leave given to applicant to deliver questions in writing for purpose of clarifying matter set out in summaries provided--Response in writing shall be prepared to all of questions not ruled to be improper--Questions, resultant answers in final form will be provided to applicant, will be in public record--Procedure meets duty imposed by Act to deal with matters as informally, expeditiously as circumstances, considerations of fairness, natural justice permit--Abuse of process said to be abusive threat of criminal prosecution of applicant's proposed expert witness, Mr. Marchessault, applicant's lawyers--Threat said to be contained in letter sent from counsel to Ministers to counsel for applicant--In administrative context, Court must be satisfied damage to public interest in fairness of administrative process should proceeding go ahead would exceed harm to public interest in enforcement of legislation if proceedings halted--Evidence failing to establish abuse of process--Letter measured in tone, informative in contents--No express threat of prosecution made in letter as opposed to exposition of applicable legislation--Letter not sent to proposed witness-- Letter, when shown to proposed witness, did not cause him to reconsider testifying--Evidence not led as to relevance of testimony which Mr. Marchessault may be able to give-- Action of counsel for Ministers in sending letter not improper --Letter has not tainted process--As no abuse of process established on evidence, part of applicant's motion dismissed --Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3, 78.