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Immigration - Security Certificates. Mahjoub v. Canada (Public Safety and Emergency Preparedness)
In Mahjoub v. Canada (Public Safety and Emergency Preparedness) (Ont CA, 2023) the Court of Appeal explained the Security Certificate scheme under the IRPA:(1) Process for determining whether a person poses a threat to national security
[8] Division 9 of the IRPA addresses the process the Minister and the Federal Court are required to follow in dealing with people who pose a threat to national security.
[9] Section 76 of the IRPA, which sets out the definitions in Division 9, specifies that references to “judge” means “the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice”. In other words, only the Chief Justice or a judge of the Federal Court designated by the Chief Justice has the jurisdiction to decide issues dealing with security certificates in the Federal Court.
[10] Section 77(1) of the IRPA gives the Minister the power to sign a certificate stating that a permanent resident or foreign national is inadmissible to Canada on various grounds, including grounds of security. Once the certificate is signed, it must be referred to the Federal Court. Section 78 of the IRPA requires a judge of the Federal Court to determine whether the certificate is reasonable and, if not, to quash the certificate. Section 79 of the IRPA provides for a right of appeal to the Federal Court of Appeal, but only if the judge who decided the reasonableness of the certificate “certifies that a serious question of general importance is involved and states the question”. Section 80 provides that a certificate that is determined to be reasonable is “conclusive proof” that the person is inadmissible and is deemed to constitute a removal order without the need for a further hearing.
[11] Pursuant to s. 115(1) of the IRPA, a person recognized as a refugee cannot be removed from Canada if there is a risk that they will be persecuted, tortured or subject to cruel and unusual punishment. However, s. 115(2)(b) of the IRPA provides that s. 115(1) does not apply where a person has been found inadmissible based on grounds of security if the Minister is of the opinion that the person should not remain in Canada “on the basis of the nature and severity of the acts committed or of danger to the security of Canada.”
(2) Detention and conditions of release pending removal
[12] Besides addressing the procedure for determining whether a person should be removed from Canada on the basis of a threat to national security, the IRPA addresses the detention or conditions that can be imposed pending that determination.
[13] Section 81 of the IRPA gives the Minister the power to issue a warrant for the arrest and detention of a person named in a security certificate if the Minister has reasonable grounds to believe that the person is a danger to national security, or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
[14] Section 82(1) provides that, within 48 hours of the person’s detention, a judge of the Federal Court is required to commence a review of the reasons for the person’s detention. In addition, pursuant to s. 82(2), as long as the person remains detained and until there is a determination of whether the certificate is reasonable, a Federal Court judge is to review the reasons for detention at least every six months.
[15] Pursuant to s. 82(4) of the IRPA, if the person is released from detention under conditions, the person may apply to the Federal Court for a review of the continuing conditions six months after the conclusion of the previous review.
[16] Section 82(5) of the IRPA sets out the powers of a Federal Court judge on review of a detention or of release on conditions:(5) On review, the judge
(a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or
(b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate. [Emphasis added.] [17] Section 82.1(1) specifies that a judge has the power to vary an order on review “if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order”.
[18] There is no automatic right of appeal for a detainee from a decision regarding detention or conditions of release. Rather, s. 82.3 of the IRPA provides that a Federal Court judge must certify a serious question of general importance, and state the question, before the matter can proceed to the Federal Court of Appeal.
(3) Protection of information and appointment of special advocate
[19] In Charkaoui v. Canada, 2007 SCC 9, [2007] 1 S.C.R. 350, the Supreme Court of Canada found that a previous version of the provisions in the IRPA setting out the process in the Federal Court for confirming the reasonableness of security certificates violated s. 7 of the Charter. The basis for this finding was that the previous version of the IRPA allowed the Federal Court to conduct a hearing in the absence of the person subject to the security certificate: at para. 5. Non‑sensitive material could be disclosed to the person involved, but sensitive information that might compromise national security could not be disclosed if the government objected: at para. 5. The Supreme Court held that this process violated the right of the individual being subject to the security certificate to know the case to be met: at para. 54. While the Supreme Court recognized that there may be legitimate reasons for withholding some evidence from a person subject to a security certificate, the provisions in place at the time did not minimally impair the person’s rights because there are protections that could be put in place that are less impairing, such as the use of special advocates: see paras. 70, 86, and 87.
[20] In response to the decision, the security certificate procedure in the IRPA was amended, including by mandating the participation of special advocates. In Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37, [2014] 2 S.C.R. 33, the Supreme Court found that these amendments to the IRPA do not breach s. 7 of the Charter.
[21] Accordingly, the provisions of the IRPA dealing with security certificates now include specific procedures for dealing with information and evidence that the Minister believes should not be disclosed to the public or the person subject to the security certificate because disclosure could be injurious to national security or endanger the safety of a person. These procedures are set out in ss. 83 to 87 of the IRPA, and they apply to a review of conditions of release made pursuant to s. 82(4).
[22] Section 83(1)(c) of the IRPA provides that hearings can be held in camera and ex parte, when the Minister is presenting evidence that could be injurious to national security or endanger the safety of any person. However, s. 83(1)(b) of the IRPA requires the designated Federal Court judge to appoint one or more special advocates to protect the interests of the person named in a security certificate in closed hearings.
[23] Special advocates must have security clearance and their “role is to protect the interests of the named person and ‘to make up so far as possible for the [named person’s] own exclusion from the evidentiary process’”: Harkat, at para. 35. Pursuant to s. 85.1(1) and (2) of the IRPA, during the closed hearings, the special advocate is to perform the functions that the lawyer for the person named in a security certificate performs in open court; this includes challenging the claim that information and evidence should not be disclosed, and testing the relevance, reliability and sufficiency of that evidence: Harkat, at para. 35. In the context of closed hearings, special advocates are entitled to make submissions and cross‑examine witnesses: IRPA, s. 85.2(a) and (b); Harkat, at para. 35.
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