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Citation:Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R.
350

Date:February 23, 2007

Docket: 30929, 31178, 30762

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SUPREME COURT OF CANADA

Citation:  Charkaoui v. Canada
(Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9

Date:  20070223

Docket:  30762,
30929, 31178

Between:

Adil
Charkaoui

Appellant

and

Minister of
Citizenship and Immigration and

Minister of Public
Safety and Emergency Preparedness

Respondents

‑ and ‑

Attorney General
of Ontario, Amnesty International,

British Columbia
Civil Liberties Association, Canadian Bar Association,

Canadian Civil
Liberties Association, Canadian Council for Refugees,

African Canadian
Legal Clinic, International Civil Liberties Monitoring Group,

National
Anti‑Racism Council of Canada, Canadian Arab Federation,

Canadian Council
on American‑Islamic Relations, Canadian Muslim Civil

Liberties
Association, Criminal Lawyers’ Association

(Ontario),
Federation of Law Societies of Canada,

University of
Toronto, Faculty of Law — International

Human Rights
Clinic and Human Rights Watch

Interveners

and
between:

Hassan
Almrei

Appellant

and

Minister of
Citizenship and Immigration and

Minister of Public
Safety and Emergency Preparedness

Respondents

‑ and ‑

Attorney General
of Ontario, Amnesty International,

British Columbia
Civil Liberties Association, Canadian Bar Association,

Canadian Civil
Liberties Association, Canadian Council for Refugees,

African Canadian
Legal Clinic, International Civil Liberties Monitoring Group,

National
Anti‑Racism Council of Canada, Canadian Council on American‑Islamic

Relations,
Canadian Muslim Civil Liberties Association,

Criminal Lawyers’
Association (Ontario), Federation of Law Societies of Canada,

University of
Toronto, Faculty of Law — International

Human Rights
Clinic and Human Rights Watch

Interveners

and
between:

Mohamed
Harkat

Appellant

and

Minister of
Citizenship and Immigration, Minister of

Public Safety and
Emergency Preparedness and

Attorney General
of Canada

Respondents

‑ and ‑

Attorney General
of Ontario, Amnesty International,

British Columbia
Civil Liberties Association, Canadian Bar Association,

Canadian Civil
Liberties Association, Canadian Council for Refugees,

African Canadian
Legal Clinic, International Civil Liberties Monitoring Group,

National
Anti‑Racism Council of Canada, Canadian Council on American‑Islamic

Relations,
Canadian Muslim Civil Liberties Association,

Criminal Lawyers’
Association (Ontario), Federation of Law Societies of Canada,

University of
Toronto, Faculty of Law — International

Human Rights
Clinic and Human Rights Watch

Interveners

Coram:
McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron
and Rothstein JJ.

Reasons for
Judgment:

(paras. 1 to 143)

McLachlin C.J.
(Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein
JJ. concurring)

______________________________

Charkaoui v. Canada
(Citizenship and Immigration), [2007] 1 S.C.R. 350, 2007 SCC 9

Adil Charkaoui

Appellant

v.

Minister of Citizenship and
Immigration and

Minister of Public Safety and
Emergency Preparedness

Respondents

and

Attorney General of Ontario,
Amnesty International,

British Columbia Civil
Liberties Association, Canadian

Bar Association, Canadian
Civil Liberties Association,

Canadian Council for Refugees,
African Canadian

Legal Clinic, International
Civil Liberties Monitoring

Group, National Anti‑Racism
Council of Canada,

Canadian Arab Federation,
Canadian Council on

American‑Islamic Relations,
Canadian Muslim Civil

Liberties Association,
Criminal Lawyers’ Association

(Ontario), Federation of Law
Societies of Canada,

University of Toronto, Faculty
of Law — International

Human Rights Clinic, and Human
Rights Watch

Interveners

‑ and ‑

Hassan Almrei

Appellant

v.

Minister of Citizenship and
Immigration and

Minister of Public Safety and
Emergency Preparedness

Respondents

and

Attorney General of Ontario,
Amnesty International,

British Columbia Civil
Liberties Association, Canadian

Bar Association, Canadian
Civil Liberties Association,

Canadian Council for Refugees,
African Canadian Legal

Clinic, International Civil
Liberties Monitoring Group,

National Anti‑Racism Council
of Canada, Canadian

Council on American‑Islamic
Relations, Canadian Muslim

Civil Liberties Association,
Criminal Lawyers’ Association

(Ontario), Federation of Law
Societies of Canada,

University of Toronto, Faculty
of Law — International

Human Rights Clinic, and Human
Rights Watch

Interveners

‑ and ‑

Mohamed Harkat

Appellant

v.

Minister of Citizenship and
Immigration, Minister of

Public Safety and Emergency
Preparedness, and

Attorney General of
Canada

Respondents

and

Attorney General of Ontario,
Amnesty International,

British Columbia Civil
Liberties Association, Canadian

Bar Association, Canadian
Civil Liberties Association,

Canadian Council for Refugees,
African Canadian Legal

Clinic, International Civil
Liberties Monitoring Group,

National Anti‑Racism Council
of Canada, Canadian

Council on American‑Islamic
Relations, Canadian Muslim

Civil Liberties Association,
Criminal Lawyers’ Association

(Ontario), Federation of Law
Societies of Canada,

University of Toronto, Faculty
of Law — International

Human Rights Clinic, and Human
Rights Watch

Interveners

Indexed
as:  Charkaoui v. Canada (Citizenship and Immigration)

Neutral
citation:  2007 SCC 9.

File Nos.:  30762,
30929, 31178.

2006:  June 13,
14, 15; 2007:  February 23.

Present:  McLachlin
C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and
Rothstein JJ.

on appeal from the federal court
of appeal

Constitutional law — Charter of Rights — Right to life,
liberty and security of person — Fundamental justice — Fair hearing —
Immigration — Removal — Permanent resident and foreign nationals detained
following issuance of certificates stating that they are inadmissible to Canada
on grounds of security — Judge reviewing reasonableness of certificate must
ensure confidentiality of information on which certificate is based if
disclosure would be injurious to national security — Named persons in
certificates denied opportunity to known case put against them — Whether named
persons deprived of their right to life, liberty and security of person in
accordance with principles of fundamental justice — If not, whether limit
imposed on named persons’ constitutional right justifiable — Canadian Charter of
Rights and Freedoms, ss. 1, 7.

Constitutional law — Charter of Rights — Arbitrary detention
— Right to prompt review of detention — Immigration — Removal — Detention of
foreign nationals automatic upon issuance of certificate stating they are
inadmissible to Canada on grounds of security — Whether detention without
warrant or lack of review of detention until 120 days after reasonableness
of certificate judicially confirmed infringes guarantee against arbitrary
detention — If so, whether infringement justified — Canadian Charter of
Rights and Freedoms, ss. 1, 9, 10(c).

Constitutional law — Charter of Rights — Cruel and unusual
treatment — Fundamental justice — Immigration — Extended period of detention
pending removal — Permanent resident and foreign nationals detained
following issuance of certificates stating that they are inadmissible to Canada
on grounds of security — Immigration legislation permitting lengthy
and indeterminate detention or lengthy periods subject to onerous release
conditions — Whether legislation constitutes cruel and unusual treatment or is
inconsistent with principles of fundamental justice — Canadian Charter of Rights
and Freedoms, ss. 7, 12.

Constitutional law — Charter of Rights — Right to equality —
Immigration — Removal — Whether deportation scheme applicable only to
non‑citizens infringes equality rights — Canadian Charter of Rights and
Freedoms, s. 15(1).

Constitutional law — Rule of law — Immigration — Removal —
Permanent resident and foreign nationals detained following issuance of
certificates stating that they are inadmissible to Canada on grounds of security
— Judge’s determination on reasonableness of certificate final — Whether
unavailability of appeal infringes rule of law — Whether rule of law prohibits
automatic detention or detention on basis of executive
decision.

Immigration law — Inadmissibility and removal — Permanent
resident and foreign nationals detained following issuance of certificates
stating that they are inadmissible to Canada on grounds of security — Whether
scheme under which certificates issued and detentions ordered constitutional —
Canadian Charter of Rights and Freedoms, ss. 1, 7, 9, 10(c), 12, 15 —
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 33,
77 to 85.

The
Immigration and Refugee Protection Act (“IRPA”) allows the
Minister of Citizenship and Immigration and the Minister of Public Safety and
Emergency Preparedness to issue a certificate declaring that a foreign national
or permanent resident is inadmissible to Canada on grounds of security, among
others (s. 77), and leading to the detention of the person named in the
certificate.  The certificate and the detention are both subject to review
by a judge of the Federal Court, in a process that may deprive the person of
some or all of the information on the basis of which the certificate was issued
or the detention ordered (s. 78).  Once a certificate is issued, a
permanent resident may be detained, and the detention must be reviewed within
48 hours; in the case of a foreign national, the detention is automatic and
that person cannot apply for review until 120 days after a judge determines
the certificate to be reasonable (ss. 82‑84).  The judge’s
determination on the reasonableness of the certificate cannot be appealed or
judicially reviewed (s. 80(3)).  If the judge finds the certificate to
be reasonable, it becomes a removal order, which cannot be appealed and which
may be immediately enforced (s. 81).

Certificates
of inadmissibility have been issued by the Ministers against the appellants C, H
and A.  While C is a permanent resident, H and A are foreign nationals who
had been recognized as Convention refugees.  All were living in Canada when
they were arrested and detained on the basis of allegations that they
constituted a threat to the security of Canada by reason of involvement in
terrorist activities.  C and H were released on conditions in 2005 and 2006
respectively, but A remains in detention.  Both the Federal Court and the
Federal Court of Appeal upheld the constitutional validity of the IRPA’s
certificate scheme.

Held:  The appeals should be allowed.

(1)   Procedure for determining reasonableness of
certificate and for review of detention

The
procedure under the IRPA for determining whether a certificate is
reasonable and the detention review procedures infringe s. 7 of the
Charter.  While the deportation of a non‑citizen in the immigration
context may not in itself engage s. 7, features associated with deportation
may do so.  Here, s. 7 is clearly engaged because the person named in
a certificate faces detention pending the outcome of the proceedings and because
the process may lead to the person’s removal to a place where his or her life or
freedom would be threatened.  Further, the IRPA’s impairment of the
named person’s right to life, liberty and security is not in accordance with the
principles of fundamental justice.  The procedure for determining whether a
certificate is reasonable and the detention review procedure fail to assure the
fair hearing that s. 7 requires before the state deprives a person of this
right.  [13-14] [17-18] [65]

The right to
a fair hearing comprises the right to a hearing before an independent and
impartial magistrate who must decide on the facts and the law, the right to know
the case put against one, and the right to answer that case.  While the
IRPA procedures properly reflect the exigencies of the security context,
security concerns cannot be used, at the s. 7 stage of the analysis, to
excuse procedures that do not conform to fundamental justice.  Here, the
IRPA scheme includes a hearing and meets the requirement of independence
and impartiality, but the secrecy required by the scheme denies the person named
in a certificate the opportunity to know the case put against him or her, and
hence to challenge the government’s case.  This, in turn, undermines the
judge’s ability to come to a decision based on all the relevant facts and
law.  The judges of the Federal Court, who are required under the
IRPA to conduct a searching examination of  the reasonableness of
the certificate, in an independent and judicial fashion and on the material
placed before them, do not possess the full and independent powers to gather
evidence that exist in an inquisitorial process.  At the same time, the
person named in a certificate is not given the disclosure and the right to
participate in the proceedings that characterize the adversarial process.
The result is a concern that the judge, despite his or her best efforts to get
all the relevant evidence, may be obliged, perhaps unknowingly, to make the
required decision based on only part of the relevant evidence.  Similar
concerns arise with respect to the requirement that the decision be based on the
law.  Without knowledge of the information put against him or her, the
person named in a certificate may not be in a position to raise legal objections
relating to the evidence, or to develop legal arguments based on the
evidence.  If s. 7 is to be satisfied, either the person must be given
the necessary information, or a substantial substitute for that information must
be found.  The IRPA provides neither.  [23] [27‑31] [38] [45]
[50‑52] [61] [65]

The
infringement of s. 7 is not saved by s. 1 of the Charter.
While the protection of Canada’s national security and related intelligence
sources constitutes a pressing and substantial objective, and the non‑disclosure
of evidence at certificate hearings is rationally connected to this objective,
the IRPA does not minimally impair the rights of persons named in
certificates.  Less intrusive alternatives developed in Canada and abroad,
notably the use of special counsel to act on behalf of the named persons,
illustrate that the government can do more to protect the individual while
keeping critical information confidential than it has done in the
IRPA.  [66] [68] [70] [73] [85] [87]

(2)
Detention of foreign nationals

The
detention of foreign nationals without warrant does not infringe the guarantee
against arbitrary detention in s. 9 of the Charter.  The
triggering event for the detention of a foreign national is the signing under
s. 77 of the IRPA of a certificate stating that the foreign national
is inadmissible on grounds of security, violation of human or international
rights, serious criminality or organized criminality.  The security ground
is based on the danger posed by the named person, and therefore provides a
rational foundation for the detention.  However,  the lack of review
of the detention of foreign nationals until 120 days after the
reasonableness of the certificate has been judicially confirmed (s. 84(2))
infringes the guarantee against arbitrary detention in s. 9 of the
Charter, which encompasses the right to prompt review of detention under
s. 10(c) of the Charter.  While there may be a need for
some flexibility regarding the period for which a suspected terrorist may be
detained, this cannot justify the complete denial of a timely detention review.
[88-89] [91] [93]

The
infringement of ss. 9 and 10(c) is not justified under s. 1 of
the Charter.  The IRPA provides permanent residents who pose
a danger to national security with a mandatory detention review within
48 hours.  It follows that denial of review for foreign nationals for
120 days after the certificate is confirmed does not minimally impair the
rights guaranteed by ss. 9 and 10(c). [93-94]

(3)   Extended periods of detention

While the
s. 12 guarantee against cruel and unusual treatment cannot be used as a
mechanism to challenge the overall fairness of a particular legislative regime,
indefinite detention without hope of release or recourse to a legal process to
procure release may cause psychological stress and therefore constitute cruel
and unusual treatment.  The IRPA in principle imposes detention only
pending deportation, but it may in fact permit lengthy and indeterminate
detention, or lengthy periods of detention subject to onerous release
conditions.  The principles of fundamental justice and the guarantee of
freedom from cruel and unusual treatment require that, where a person is
detained or is subject to onerous conditions of release for an extended period
under immigration law, the detention or the conditions must be accompanied by a
meaningful process of ongoing review that takes into account the context and
circumstances of the individual case.  The person must be accorded
meaningful opportunities to challenge his or her continued detention or the
conditions of his or her release. [97-98] [105] [107]

Extended
periods of detention pending deportation under the certificate provisions of the
IRPA do not violate ss. 7 and 12 of the Charter if
accompanied by a process that provides regular opportunities for review of
detention, taking into account all of the relevant factors, including the
reasons for detention, the length of the detention, the reasons for the delay in
deportation, the anticipated future length of detention, if applicable, and the
availability of alternatives to detention.  However, this does not preclude
the possibility of a judge concluding at a certain point that a particular
detention constitutes cruel and unusual treatment or is inconsistent with the
principles of fundamental justice. [110‑116] [123]

(4)     Differential treatment of citizens and
non‑citizens

Since
s. 6 of the Charter specifically provides for differential treatment
of citizens and non‑citizens in deportation matters, a deportation scheme that
applies to non‑citizens, but not to citizens, does not for that reason alone
infringe s. 15 of the Charter.  Even though the detention of
some of the appellants has been long, the record does not establish that the
detentions at issue have become unhinged from the state’s purpose of
deportation. [129] [131]

(5)   Rule of law

The rule of
law is not infringed by (1) the unavailability of an appeal of the
designated judge’s review of the reasonableness of the certificate; or
(2) the provision for the issuance of an arrest warrant by the executive in
the case of a permanent resident, or for mandatory arrest without a warrant
following an executive decision in the case of a foreign national.  First,
there is no constitutional right to an appeal, nor can such a right be said to
flow from the rule of law in the present context.  Second, the rule of law
does not categorically prohibit automatic detention, or detention on the basis
of an executive decision, and the constitutional protections surrounding arrest
and detention are set out in the Charter.  [133] [136-137]

(6)   Remedy

The
IRPA’s procedure for the judicial approval of certificates is
inconsistent with the Charter, and hence of no force or effect.
This declaration is suspended for one year from the date of this judgment.
If the government chooses to have the reasonableness of C’s certificate
determined during the one‑year suspension period, the existing process under the
IRPA will apply.  After that period, H and A’s certificates will
lose their “reasonable” status and it will be open to them to apply to have the
certificates quashed.  Likewise, any certificates or detention reviews
occurring after the one‑year delay will be subject to the new process devised by
Parliament.  Further, s. 84(2), which denies a prompt hearing to
foreign nationals by imposing a 120‑day embargo, after confirmation of the
certificate, on applications for release, is struck, and s. 83 is modified
so as to allow for review of the detention of a foreign national both before and
after the certificate has been deemed reasonable. [139‑141]

Cases
Cited

Referred
to:  Singh v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; Suresh v. Canada (Minister of Citizenship and
Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Jaballah
(Re) (2006), 148 C.R.R. (2d) 1, 2006 FC 1230; Medovarski v.
Canada (Minister of Citizenship and Immigration), [2005]
2 S.C.R. 539, 2005 SCC 51; Chiarelli v. Canada (Minister
of Employment and Immigration), [1992] 1 S.C.R. 711; United
States of America v. Ferras, [2006] 2 S.C.R. 77,
2006 SCC 33; R. v. Rodgers, [2006] 1 S.C.R. 554,
2006 SCC 15; Idziak v. Canada (Minister of Justice), [1992]
3 S.C.R. 631; R. v. Lyons, [1987] 2 S.C.R. 309;
Mount Sinai Hospital Center v. Quebec (Minister of Health and Social
Services), [2001] 2 S.C.R. 281, 2001 SCC 41; R. v.
Malmo‑Levine, [2003] 3 S.C.R. 571, 2003 SCC 74;
Dehghani v. Canada (Minister of Employment and Immigration), [1993]
1 S.C.R. 1053; New Brunswick (Minister of Health and Community
Services) v. G. (J.), [1999] 3 S.C.R. 46; Baker v. Canada
(Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817;
Reference re Remuneration of Judges of the Provincial Court of Prince Edward
Island, [1997] 3 S.C.R. 3; Application under s. 83.28 of
the Criminal Code (Re), [2004] 2 S.C.R. 248,
2004 SCC 42; R. v. Lippé, [1991] 2 S.C.R. 114;
Valente v. The Queen, [1985] 2 S.C.R. 673; Jaballah, Re
(2004), 247 F.T.R. 68, 2004 FC 299; Charkaoui (Re),
[2005] 3 F.C.R. 389, 2005 FC 248; Mugesera v. Canada
(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100,
2005 SCC 40; R. v. Taubler (1987), 20 O.A.C. 64;
R. v. Turlon (1989), 49 C.C.C. (3d) 186; Provincial Court
Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice),
[2005] 2 S.C.R. 286, 2005 SCC 44; Goodis v. Ontario (Ministry
of Correctional Services), [2006] 2 S.C.R. 32,
2006 SCC 31; Ruby v. Canada (Solicitor General), [2002]
4 S.C.R. 3, 2002 SCC 75; Re B.C. Motor Vehicle Act, [1985]
2 S.C.R. 486; R. v. Oakes, [1986] 1 S.C.R. 103; R.
v. Malik, [2005] B.C.J. No. 521 (QL), 2005 BCSC 350; Eur.
Court H.R., Chahal v. United Kingdom, judgment of 15 November 1996,
Reports of Judgments and Decisions 1996-V; M. v. Secretary of State
for the Home Department, [2004] 2 All E.R. 863, [2004] EWCA
Civ 324, aff’g [2004] UKSIAC 17/2002 (BAILII), March 8, 2004; R. v.
Chaulk, [1990] 3 S.C.R. 1303; R. v. Swain, [1991]
1 S.C.R. 933; Rasul v. Bush, 542 U.S. 466 (2004);
Zadvydas v. Davis, 533 U.S. 678 (2001); Slivenko v.
Latvia [GC], No. 48321/99, ECHR 2003-X; R. v. Smith, [1987]
1 S.C.R. 1045; R. v. Wiles, [2005] 3 S.C.R. 895,
2005 SCC 84; Sahin v. Canada (Minister of Citizenship and
Immigration), [1995] 1 F.C. 214; Eur. Court H.R., Soering
case, judgment of 7 July 1989, Series A, No. 161; Charkaoui (Re), [2004]
1 F.C.R. 528, 2003 FC 882; Ahani v. Canada (Minister of
Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 171;
Harkat v. Canada (Minister of Citizenship and Immigration), [2007] 1
F.C.R. 321, 2006 FC 628; Almrei v. Canada (Minister of Citizenship
and Immigration) (2005), 270 F.T.R. 1, 2005 FC 1645;
R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All
E.R. 983; A. v. Secretary of State for the Home Department, [2005]
3 All E.R. 169, [2004] UKHL 56; Roncarelli v. Duplessis,
[1959] S.C.R. 121; Reference re Manitoba Language Rights, [1985]
1 S.C.R. 721; British Columbia v. Imperial Tobacco Canada Ltd.,
[2005] 2 S.C.R. 473, 2005 SCC 49; Kourtessis v.
M.N.R., [1993] 2 S.C.R. 53; Zündel, Re (2004),
331 N.R. 180, 2004 FCA 394.

Statutes and Regulations Cited

Anti‑terrorism Act, S.C. 2001, c. 41.

Anti‑terrorism, Crime and Security Act 2001 (U.K.), 2001,
c. 24, s. 23.

Canada Evidence Act, R.S.C. 1985, c. C‑5,
ss. 37 to 39, 38.01, 38.02, 38.04.

Canadian Charter of Rights and Freedoms, ss. 1,
6(1), 7, 9, 10(c), 11(d), 12, 15, 24(1).

Canadian Security Intelligence Service Act, S.C. 1984, c.
21 (later R.S.C. 1985, c. C‑23).

Constitution Act, 1867, s. 96.

Criminal Code, R.S.C. 1985, c. C‑46,
ss. 487.055, 503(1).

Federal Courts Act, R.S.C. 1985, c. F‑7, s. 4.

Immigration Act, R.S.C. 1985, c. I‑2 (formerly
Immigration Act, 1976, S.C. 1976‑77, c. 52), ss. 39(2), (6), (9),
(10), 40(1), 40.1.

Immigration and Refugee Protection Act, S.C. 2001, c. 27,
ss. 33, 55 to 58, 77 to 85, 112, 115.

Immigration and Refugee Protection Regulations,
SOR/2002‑227, r. 248.

Special Immigration Appeals Commission Act 1997 (U.K.),
1997, c. 68, s. 6(1), (4).

Special Immigration Appeals Commission (Procedure) Rules
2003, S.I. 2003/1034, rr. 35, 36, 38.

Treaties and Other International Instruments

Convention for the Protection of Human Rights and Fundamental
Freedoms, 213 U.N.T.S. 221, arts. 5, 14.

Authors Cited

Canada.  Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar.  A New Review Mechanism for the
RCMP’s National Security Activities.  Ottawa:  The Commission,
2006.

Canada.  Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar.  Report of the Events Relating to
Maher Arar:  Analysis and Recommendations.  Ottawa:  The
Commission, 2006.

Canada.  House of Commons. Standing Committee on
Citizenship and Immigration, Evidence, 1st Sess., 37th Parl.,
April 26, 2001 (online:
http://cmte.parl.gc.ca/cmte/CommitteePublication.aspx?SourceID=54760).

Canada.  Security Intelligence Review Committee.
Annual Report 1988‑1989.  Ottawa:  The Committee, 1989.

Hogg, Peter W.  Constitutional Law of Canada,
vol. 2, loose‑leaf ed.  Scarborough, Ont.:  Thomson/Carswell,
1997 (updated 2006, release 1).

Hugessen, James K.  “Watching the Watchers:
Democratic Oversight”, in David Daubney et al., eds., Terrorism, Law and
Democracy:  How is Canada changing following September 11?
Montréal:  Thémis, 2002, 381.

Rankin, Murray.  “The Security Intelligence Review
Committee:  Reconciling National Security with Procedural Fairness” (1990),
3 C.J.A.L.P. 173.

Roach, Kent.  “Ten Ways to Improve Canadian Anti‑Terrorism
Law” (2006), 51 Crim. L.Q. 102.

Stewart, Hamish.  “Is Indefinite Detention of Terrorist
Suspects Really Constitutional?” (2005), 54 U.N.B.L.J. 235.

United Kingdom.  House of Commons Constitutional Affairs
Committee.  The operation of the Special Immigration Appeals Commission
(SIAC) and the use of Special Advocates, 7th Report, Sess. 2004‑05,
vol. 1.  London: Stationery Office, 2005.

APPEAL from
a judgment of the Federal Court of Appeal (Richard C.J. and Décary and
Létourneau JJ.A.), [2005] 2 F.C.R. 299, 247 D.L.R. (4th)
405, 328 N.R. 201, 126 C.R.R. (2d) 298, 42 Imm. L.R.
(3d) 165, [2004] F.C.J. No. 2060 (QL), 2004 FCA 421,
upholding a decision of Noël J., [2004] 3 F.C.R. 32,
253 F.T.R. 22, 38 Imm. L.R. (3d) 56, [2003] F.C.J.
No. 1816 (QL), 2003 FC 1419, refusing to declare parts of the
Immigration and Refugee Protection Act unconstitutional at the request of
the appellant Charkaoui.  Appeal allowed.

APPEAL from
a judgment of the Federal Court of Appeal (Létourneau, Sexton and
Sharlow JJ.A.), [2005] 3 F.C.R. 142, 251 D.L.R. (4th) 13,
330 N.R. 73, 45 Imm. L.R. (3d) 163, [2005] F.C.J.
No. 213 (QL), 2005 FCA 54, upholding a decision of Blanchard J.,
[2004] 4 F.C.R. 327, 249 F.T.R. 53, 38 Imm. L.R.
(3d) 117, [2004] F.C.J. No. 509 (QL), 2004 FC 420, refusing
to declare parts of the Immigration and Refugee Protection Act
unconstitutional at the request of the appellant Almrei.  Appeal
allowed.

APPEAL from
a judgment of the Federal Court of Appeal (Richard C.J. and Décary and
Létourneau JJ.A.) (2005), 340 N.R. 286, [2005] F.C.J.
No. 1467 (QL), 2005 FCA 285, upholding a decision of Dawson J.
(2005), 261 F.T.R. 52, 45 Imm. L.R. (3d) 65, [2005] F.C.J.
No. 481 (QL), 2005 FC 393, refusing to declare parts of the
Immigration and Refugee Protection Act unconstitutional at the request of
the appellant Harkat.  Appeal allowed.

Johanne Doyon and Julius H. Grey,
for the appellant Charkaoui.

John Norris and Barbara Jackman, for the
appellant Almrei.

Paul D. Copeland and Matt Webber,
for the appellant Harkat.

Bernard Laprade, Normand Lemyre and
Daniel Latulippe, for the respondents (30762).

Urszula Kaczmarczyk,
Donald A. MacIntosh and Cheryl D. Mitchell,
for the respondents (30929).

Bernard Laprade, Urszula Kaczmarczyk and
Donald A. MacIntosh, for the respondents (31178).

John
Corelli and Ian Bulmer, for the intervener the Attorney General
of Ontario (30762, 31178).

Shaun Nakatsuru and Michael Doi, for the
intervener the Attorney General of Ontario (30929).

Michael Bossin, Owen M. Rees,
Vanessa Gruben and Thomas G. Conway, for the
intervener Amnesty International.

Gregory P. DelBigio and
Jason B. Gratl, for the intervener the British Columbia
Civil Liberties Association.

Lorne Waldman, for the intervener the Canadian Bar
Association.

Edward L. Greenspan, Q.C., and David
N. Tice, for the intervener the Canadian Civil Liberties Association.

Sharryn Aiken, Marie  Chen and
Mary Eberts, for the interveners the Canadian Council for Refugees,
the African Canadian Legal Clinic, the International Civil Liberties Monitoring
Group and the National Anti‑Racism Council of Canada.

R. Douglas Elliott and
Gabriel R. Fahel, for the intervener the Canadian Arab
Federation.

David Baker and Faisal Bhabha, for the
interveners the Canadian Council on American‑Islamic Relations and the Canadian
Muslim Civil Liberties Association.

Michael Code, for the intervener the Criminal
Lawyers’ Association (Ontario).

Neil Finkelstein and
Catherine Beagan Flood, for the intervener the Federation of
Law Societies of Canada.

Sujit Choudhry and Robert A. Centa,
for the interveners the University of Toronto, Faculty of Law — International
Human Rights Clinic, and Human Rights Watch.

The judgment
of the Court was delivered by

The Chief Justice —

I.      Introduction

1

One of the most fundamental
responsibilities of a government is to ensure the security of its
citizens.  This may require it to act on information that it cannot
disclose and to detain people who threaten national security. Yet in a
constitutional democracy, governments must act accountably and in conformity
with the Constitution and the rights and liberties it guarantees. These two
propositions describe a tension that lies at the heart of modern democratic
governance.  It is a tension that must be resolved in a way that respects
the imperatives both of security and of accountable constitutional
governance.

2

In this case, we are
confronted with a statute, the Immigration and Refugee Protection Act,
S.C. 2001, c. 27 (“IRPA”), that attempts to resolve this tension in the
immigration context by allowing the Minister of Citizenship and Immigration (the
“Minister”), and the Minister of Public Safety and Emergency Preparedness
(collectively “the ministers”) to issue a certificate of inadmissibility leading
to the detention of a permanent resident or foreign national deemed to be a
threat to national security.  The certificate and the detention are both
subject to review by a judge, in a process that may deprive the person named in
the certificate of some or all of the information on the basis of which the
certificate was issued or the detention ordered.  The question is whether
the solution that Parliament has enacted conforms to the Constitution, and in
particular the guarantees in the Canadian Charter of Rights and Freedoms
that protect against unjustifiable intrusions on liberty, equality and the
freedom from arbitrary detention and from cruel and unusual treatment.

3

I conclude that the
IRPA unjustifiably violates s. 7 of the Charter by allowing the
issuance of a certificate of inadmissibility based on secret material without
providing for an independent agent at the stage of judicial review to better
protect the named person’s interests.  I also conclude that some of the
time limits in the provisions for continuing detention of a foreign national
violate ss. 9 and 10(c) because they are arbitrary.  I find that s.
12 has not been shown to be violated since a meaningful detention review process
offers relief against the possibility of indefinite detention.  Finally, I
find that there is no breach of the s. 15 equality right.

II.      Background

4

The provisions of the
IRPA at issue in this case, reproduced in the Appendix, are part of
Canada’s immigration law.  Their purpose is to permit the removal of
non-citizens living in Canada — permanent residents and foreign nationals — on
various grounds, including connection with terrorist activities.  The
scheme permits deportation on the basis of confidential information that is not
to be disclosed to the person named in the certificate or anyone acting on the
person’s behalf or in his or her interest.  The scheme was meant to
“facilitat[e] the early removal of persons who are inadmissible on serious
grounds, including persons posing a threat to the security of Canada” (Clause
by Clause Analysis (2001), at p. 72). In reality, however, it may also lead
to long periods of incarceration.

5

The IRPA requires
the ministers to sign a certificate declaring that a foreign national or
permanent resident is inadmissible to enter or remain in Canada on grounds of
security, among others: s. 77.  A judge of the Federal Court then reviews
the certificate to determine whether it is reasonable: s. 80.  If the state
so requests, the review is conducted in camera and ex parte.
The person named in the certificate has no right to see the material on the
basis of which the certificate was issued.  Non-sensitive material may be
disclosed; sensitive or confidential material must not be disclosed if the
government objects.  The named person and his or her lawyer cannot see
undisclosed material, although the ministers and the reviewing judge may rely on
it.  At the end of the day, the judge must provide the person with a
summary of the case against him or her — a summary that does not disclose
material that might compromise national security. If the judge determines that
the certificate is reasonable, there is no appeal and no way to have the
decision judicially reviewed: s. 80(3).

6

The consequences of the
issuance and confirmation of a certificate of inadmissibility vary, depending on
whether the person is a permanent resident of Canada or a foreign national whose
right to remain in Canada has not yet been confirmed. Permanent residents who
the ministers have reasonable grounds to believe are a danger to national
security may be held in detention.  In order to detain them, the
ministers must issue a warrant stating that the person is a threat to national
security or to another person, or is unlikely to appear at a proceeding or for
removal.  Foreign nationals, meanwhile, must be detained once a
certificate is issued: under s. 82(2), the detention is automatic.  While
the detention of a permanent resident must be reviewed within 48 hours, a
foreign national, on the other hand, must apply for review, but may not do so
until 120 days after a judge of the Federal Court determines the certificate to
be reasonable. In both cases, if the judge finds the certificate to be
reasonable, it becomes a removal order. Such an order deprives permanent
residents of their status; their detention is then subject to review on the same
basis as that of other foreign nationals.

7

The removal order cannot be
appealed and may be immediately enforced, thus eliminating the requirement of
holding or continuing an examination or an admissibility hearing: s.
81(b). The detainee, whether a permanent resident or a foreign national,
may no longer apply for protection: s. 81(c). Additionally, a refugee or
a protected person determined to be inadmissible on any of the grounds for a
certificate loses the protection of the principle of non-refoulement under s.
115(1) if, in the opinion of the Minister, the person should not be allowed to
remain in Canada on the basis of the nature and severity of acts committed or of
danger to the security of Canada: s. 115(2).  This means that he or she
may, at least in theory, be deported to torture.

8

A permanent resident
detained under a certificate is entitled to a review of his or her detention
every six months. Under s. 83(3), a judge must order the detention of a
permanent resident to be continued if the judge is satisfied that the person
continues to pose a danger to security or to the safety of another, or is
unlikely to appear at a proceeding or for removal.

9

The detention of foreign
nationals, on the other hand, is mandatory.  If a foreign national has not
been removed within 120 days of the certificate being found reasonable by a
judge, however, the judge may order the person released on appropriate
conditions if “satisfied that the foreign national will not be removed from
Canada within a reasonable time and that the release will not pose a danger to
national security or to the safety of any person”: s. 84(2).  Even if
released, the foreign national may be deported.

10

Mr. Charkaoui is a permanent resident, while
Messrs. Harkat and Almrei are foreign nationals who had been recognized as
Convention refugees.  All were living in Canada when they were arrested and
detained.  At the time of the decisions on appeal, all had been detained
for some time — since 2003, 2002 and 2001 respectively. In 2001, a judge of the
Federal Court determined Mr. Almrei’s certificate to be reasonable; another
determined Mr. Harkat’s certificate to be reasonable in 2005. The reasonableness
of Mr. Charkaoui’s certificate has yet to be determined. Messrs. Charkaoui and
Harkat were released on conditions in 2005 and 2006 respectively, but Mr. Harkat
has been advised that he will be deported to Algeria, which he is contesting in
other proceedings.  Mr. Almrei remains in detention.  In all these
cases, the detentions were based on allegations that the individuals constituted
a threat to the security of Canada by reason of involvement in terrorist
activities.  In the course of their detentions, all three appellants
challenged, unsuccessfully, the constitutionality of the IRPA’s
certificate scheme and detention review process.

III.  Issues

11

The appellants argue that the IRPA’s
certificate scheme under which their detentions were ordered is
unconstitutional.  They argue that it violates five provisions of the
Charter: the s. 7 guarantee of life, liberty and security of the
person; the s. 9 guarantee against arbitrary detention; the s. 10(c)
guarantee of a prompt review of detention; the s. 12 guarantee against cruel and
unusual treatment; and the s. 15 guarantee of equal protection and equal benefit
of the law.  They also allege violations of unwritten constitutional
principles.  I discuss these claims under the following headings:

A.
Does the procedure under the IRPA for determining the
reasonableness of the certificate infringe s. 7 of the Charter,
and if so, is the infringement justified under s. 1 of the Charter?

B.
Does the detention of permanent residents or foreign
nationals under the IRPA infringe ss. 7, 9, 10(c) or 12 of the
Charter, and if so, are the infringements justified under s. 1 of
the Charter?

C.
Do the certificate and detention review procedures
discriminate between citizens and non-citizens, contrary to s. 15 of the
Charter, and if so, is the discrimination justified under s. 1 of the
Charter?

D.
Are the IRPA certificate provisions inconsistent with the
constitutional principle of the rule of law?

A.     Does the Procedure Under the IRPA for
Determining the Reasonableness of the Certificate Infringe Section 7 of the
Charter, and if so, Is the Infringement Justified Under Section 1 of the
Charter?

1.  Is Section 7 of the Charter Engaged?

12

Section 7 of the Charter guarantees the
right to life, liberty and security of the person, and the right not to be
deprived thereof except in accordance with the principles of fundamental
justice.  This requires a claimant to prove two matters: first, that there
has been or could be a deprivation of the right to life, liberty and security of
the person, and second, that the deprivation was not or would not be in
accordance with the principles of fundamental justice. If the claimant succeeds,
the government bears the burden of justifying the deprivation under s. 1, which
provides that the rights guaranteed by the Charter are subject only to
such reasonable limits prescribed by law as can be demonstrably justified in a
free and democratic society.

13

The provisions at issue, found at Division 9 of
Part 1 of the IRPA, clearly deprive detainees such as the appellants of
their liberty.  The person named in a certificate can face detention
pending the outcome of the proceedings. In the case of a foreign national, this
detention is automatic and lasts at least until 120 days after the
certificate is deemed reasonable.  For both foreign nationals and permanent
residents, the period of detention can be, and frequently is, several years.
Indeed, Mr. Almrei remains in detention and does not know when, if ever, he will
be released.

14

The detainee’s security may be further affected
in various ways.  The certificate process may lead to removal from Canada,
to a place where his or her life or freedom would be threatened: see e.g.
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at
p. 207, per Wilson J.  A certificate may bring with it the
accusation that one is a terrorist, which could cause irreparable harm to the
individual, particularly if he or she is eventually deported to his or her home
country.  Finally, a person who is determined to be inadmissible on grounds
of security loses the protection of s. 115(1) of the IRPA, which means
that under s. 115(2), he or she can be deported to torture if the Minister is of
the opinion that the person is a danger to the security of Canada.

15

In Suresh v. Canada (Minister of Citizenship
and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, this Court stated, at para.
76, that “barring extraordinary circumstances, deportation to torture will
generally violate the principles of fundamental justice protected by s. 7 of the
Charter.”  More recently, the Federal Court has ruled that another
certificate detainee is at risk of torture if deported, and that there were no
exceptional circumstances justifying such a deportation: Jaballah (Re)
(2006), 148 C.R.R. (2d) 1, 2006 FC 1230.  The appellants claim that they
would be at risk of torture if deported to their countries of origin. But in
each of their cases, this remains to be proven as part of an application for
protection under the provisions of Part 2 of the IRPA.  The issue of
deportation to torture is consequently not before us here.

16

The individual interests at stake suggest that
s. 7 of the Charter, the purpose of which is to protect the life, liberty
and security of the person, is engaged, and this leads directly to the question
whether the IRPA’s impingement on these interests conforms to the
principles of fundamental justice.  The government argues,  relying on
Medovarski v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 539, 2005 SCC 51, that s. 7 does not apply
because this is an immigration matter. The comment from that case on which the
government relies was made in response to a claim that to deport a non-citizen
violates s. 7 of the Charter.  In considering this claim, the
Court, per McLachlin C.J., noted, at para. 46, citing Chiarelli v.
Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p.
733, that “[t]he most fundamental principle of immigration law is that
non-citizens do not have an unqualified right to enter or remain in
Canada”.  The Court added: “Thus the deportation of a non-citizen in
itself cannot implicate the liberty and security interests protected by s.
7” (Medovarski, at para. 46 (emphasis added)).

17

Medovarski thus does not stand for the
proposition that proceedings related to deportation in the immigration context
are immune from s. 7 scrutiny.  While the deportation of a non-citizen in
the immigration context may not in itself engage s. 7 of the
Charter, some features associated with deportation, such as detention in
the course of the certificate process or the prospect of deportation to torture,
may do so.

18

In determining whether s. 7 applies, we must
look at the interests at stake rather than the legal label attached to the
impugned legislation.  As Professor Hamish Stewart writes:

Many of the
principles of fundamental justice were developed in criminal cases, but their
application is not restricted to criminal cases: they apply whenever one of the
three protected interests is engaged.  Put another way, the principles of
fundamental justice apply in criminal proceedings, not because they are
criminal proceedings, but because the liberty interest is always engaged in
criminal proceedings. [Emphasis in original.]

(“Is
Indefinite Detention of Terrorist Suspects Really Constitutional?” (2005), 54
U.N.B.L.J. 235, at p. 242)

I conclude that the appellants’
challenges to the fairness of the process leading to possible deportation and
the loss of liberty associated with detention raise important issues of
liberty and security, and that s. 7 of the Charter is engaged.

2.  How Do Security Considerations Affect the Section 7
Analysis?

19

Section 7 of the Charter requires that
laws that interfere with life, liberty and security of the person conform to the
principles of fundamental justice — the basic principles that underlie our
notions of justice and fair process.  These principles include a guarantee
of procedural fairness, having regard to the circumstances and consequences of
the intrusion on life, liberty or security:  Suresh, at para. 113.

20

Section 7 of the Charter requires not a
particular type of process, but a fair process having regard to the nature of
the proceedings and the interests at stake:  United States of America v.
Ferras,  [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14; R. v.
Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47; Idziak v.
Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp. 656-57. The
procedures required to meet the demands of fundamental justice depend on the
context (see Rodgers; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361;
Chiarelli, at pp. 743-44; Mount Sinai Hospital Center v. Quebec
(Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41,
at paras. 20-21).  Societal interests may be taken into account in
elucidating the applicable principles of fundamental justice: R. v.
Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 98.

21

Unlike s. 1, s. 7 is not concerned with whether
a limit on life, liberty or security of the person is justified, but with
whether the limit has been imposed in a way that respects the principles of
fundamental justice.  Hence, it has been held that s. 7 does not permit “a
free‑standing inquiry . . . into whether a particular legislative measure
‘strikes the right balance’ between individual and societal interests in
general” (Malmo-Levine, at para. 96).  Nor is “achieving the right
balance . . . itself an overarching principle of fundamental justice”
(ibid.).  As the majority in Malmo-Levine noted, to hold
otherwise “would entirely collapse the s. 1 inquiry into s. 7”
(ibid.).  This in turn would relieve the state from its burden of
justifying intrusive measures, and require the Charter complainant to
show that the measures are not justified.

22

The question at the s. 7 stage is whether the
principles of fundamental justice relevant to the case have been observed in
substance, having regard to the context and the seriousness of the
violation.  The issue is whether the process is fundamentally unfair to the
affected person. If so, the deprivation of life, liberty or security of the
person simply does not conform to the requirements of s. 7.  The inquiry
then shifts to s. 1 of the Charter, at which point the government has an
opportunity to establish that the flawed process is nevertheless justified
having regard, notably, to the public interest.

23

It follows that while administrative
constraints associated with the context of national security may inform the
analysis on whether a particular process is fundamentally unfair, security
concerns cannot be used to excuse procedures that do not conform to fundamental
justice at the s. 7 stage of the analysis.  If the context makes it
impossible to adhere to the principles of fundamental justice in their usual
form, adequate substitutes may be found.  But the principles must be
respected to pass the hurdle of s. 7.  That is the bottom line.

24

In the instant case, the context is the
detention, incidental to their removal or an attempt to remove them from the
country, of permanent residents and foreign nationals who the ministers conclude
pose a threat to national security.  This context may impose certain
administrative constraints that may be properly considered at the s. 7
stage.  Full disclosure of the information relied on may not be possible.
The executive branch of government may be required to act quickly, without
recourse, at least in the first instance, to the judicial procedures normally
required for the deprivation of liberty or security of the person.

25

At the same time, it is a context that may have
important, indeed chilling, consequences for the detainee.  The seriousness
of the individual interests at stake forms part of the contextual analysis. As
this Court stated in Suresh, “[t]he greater the effect on the life of the
individual by the decision, the greater the need for procedural protections to
meet the common law duty of fairness and the requirements of fundamental justice
under s. 7 of the Charter” (para. 118).  Thus, “factual situations
which are closer or analogous to criminal proceedings will merit greater
vigilance by the courts”: Dehghani v. Canada (Minister of Employment and
Immigration), [1993] 1 S.C.R. 1053, at p. 1077, per Iacobucci J.

26

The potential consequences of deportation
combined with allegations of terrorism have been under a harsh spotlight due to
the recent report of the Commission of Inquiry into the Actions of Canadian
Officials in Relation to Maher Arar.  Mr. Arar, a Canadian citizen born in
Syria, was detained by American officials and deported to Syria.  The
report concludes that it is “very likely that, in making the decisions to detain
and remove Mr. Arar to Syria, the U.S. authorities relied on information about
Mr. Arar provided by the RCMP”, including unfounded suspicions linking Mr. Arar
to terrorist groups: Report of the Events Relating to Maher Arar: Analysis
and Recommendations (2006) (“Arar Inquiry”), at p. 30. In Syria, Mr. Arar
was tortured and detained under inhumane conditions for over 11 months. In his
report, Commissioner O’Connor recommends enhanced review and accountability
mechanisms for agencies dealing with national security, including not only the
Royal Canadian Mounted Police, but also Citizenship and Immigration Canada and
the Canada Border Services Agency. He notes that these immigration-related
institutions can have an important impact on individual rights but that there is
a lack of transparency surrounding their activities because their activities
often involve sensitive national security information that cannot be disclosed
to the public: A New Review Mechanism for the RCMP’s National Security
Activities (2006), at pp. 562-65.  Moreover, the sensitive nature of
security information means that investigations lead to fewer prosecutions. This,
in turn, restricts the ability of courts to guarantee individual rights: “Unless
charges are laid, . . . the choice of investigative targets, methods of
information collection and exchange, and means of investigation generally will
not be subject to judicial scrutiny, media coverage or public debate” (p.
439).

27

The procedures required to conform to the
principles of fundamental justice must reflect the exigencies of the security
context.  Yet they cannot be permitted to erode the essence of s. 7. The
principles of fundamental justice cannot be reduced to the point where they
cease to provide the protection of due process that lies at the heart of s. 7 of
the Charter. The protection may not be as complete as in a case where
national security constraints do not operate.  But to satisfy s. 7,
meaningful and substantial protection there must be.

3.  Relevant Principles of Fundamental Justice

28

The overarching principle of fundamental
justice that applies here is this: before the state can detain people for
significant periods of time, it must accord them a fair judicial process:
New Brunswick (Minister of Health and Community Services) v. G. (J.),
[1999] 3 S.C.R. 46.  “It is an ancient and venerable principle that no
person shall lose his or her liberty without due process according to the law,
which must involve a meaningful judicial process”:  Ferras, at
para. 19. This principle emerged in the era of feudal monarchy, in the form
of the right to be brought before a judge on a motion of habeas
corpus.  It remains as fundamental to our modern conception of liberty
as it was in the days of King John.

29

This basic principle has a number of
facets.  It comprises the right to a hearing. It requires that the
hearing be before an independent and impartial magistrate.  It
demands a decision by the magistrate on the facts and the law.  And
it entails the right to know the case put against one, and the right
to answer that case.  Precisely how these requirements are met will
vary with the context.  But for s. 7 to be satisfied, each of them must be
met in substance.

30

The IRPA process includes a
hearing.  The process consists of two phases, one executive and one
judicial.  There is no hearing at the executive phase that results in
issuance of the certificate.  However, this is followed by a review before
a judge, where the named person is afforded a hearing.  Thus, the first
requirement, that of a hearing, is met.

31

Questions arise, however, on the other
requirements, namely: that the judge be independent and impartial; that the
judge make a judicial decision based on the facts and the law; and finally, that
the named person be afforded an opportunity to meet the case put against him or
her by being informed of that case and being allowed to question or counter
it.  I conclude that the IRPA scheme meets the first requirement of
independence and impartiality, but fails to satisfy the second and third
requirements, which are interrelated here.

4.  Is the Judge Independent and Impartial?

32

Although the scope of the required hearing can
vary according to context (Baker v. Canada (Minister of Citizenship and
Immigration), [1999] 2 S.C.R. 817), a hearing must include “[a]n independent
judicial phase and an impartial judge” (Ferras, at para. 25).
This requirement is also consistent with the unwritten constitutional principle
of judicial independence: Reference re Remuneration of Judges of the
Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3. It has also
been called “the cornerstone of the common law duty of procedural fairness”
(Application under s. 83.28 of the Criminal Code (Re), [2004] 2
S.C.R. 248, 2004 SCC 42 (“Re Bagri”), at para. 81), and is necessary in
order to ensure judicial impartiality: R. v. Lippé, [1991] 2 S.C.R. 114,
at p. 139.  It is not enough that the judge in fact be independent and
impartial; fundamental justice requires that the judge also appear to be
independent and impartial. This flows from the fact that judicial independence
has two facets: actual independence and perceived independence (Valente v.
The Queen, [1985] 2 S.C.R. 673, at p. 689).

33

The IRPA scheme provides for the
certificate issued by the ministers to be reviewed by a “designated judge”, a
judge of the Federal Court of Canada.  The question here is whether, from
an institutional perspective, the role assigned to designated judges under the
IRPA leads to a perception that independence and impartiality are
compromised.

34

The designated judge has been aptly described
as the “cornerstone of the procedure established by Parliament” in the
IRPA (Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, at para.
120, per Noël J.).  The judge is the sole avenue of review for the
named person and the only person capable of providing the essential judicial
component of the process.

35

When reviewing the certificate, the judge sees
all the material relied on by the government.  But if the government claims
confidentiality for certain material, the judge cannot share this material with
the named person.  The judge must make his or her decision without hearing
any objections the named person might be able to make, were he or she granted
access to the whole of the record.  Part of the hearing may be held in
camera, with only the judge and the government lawyers in the room.
The named person is not there.  His or her lawyer is not there.  There
is no one to speak for the person or to test the evidence put against him or
her.

36

These circumstances may give rise to a
perception that the designated  judge under the IRPA may not be
entirely independent and impartial as between the state and the person named in
the certificate.  Speaking at a conference in March 2002, Hugessen J. of
the Federal Court expressed unease with the role assigned to designated judges
under the IRPA:

We do not
like this process of having to sit alone hearing only one party, and looking at
the materials produced by only one party . . . .

If there is one thing that I learned in my practice at the Bar,
and I have managed to retain it through all these years, it is that good
cross-examination requires really careful preparation and a good knowledge of
your case.  And by definition, judges do not do that. . . . [W]e do
not have any knowledge except what is given to us and when it is only given to
us by one party we are not well suited to test the materials that are put before
us. [Emphasis added.]

(J. K.
Hugessen, “Watching the Watchers: Democratic Oversight”, in D. Daubney et al.,
eds., Terrorism, Law and Democracy: How is Canada changing following
September 11? (2002), 381, at p. 384)

37

Three related concerns arise with respect to
independence and impartiality.  First is the concern that the IRPA
may be perceived to deprive the judge of his or her independent judicial
role and co-opt the judge as an agent of the executive branch of government.
Second is the concern that the designated judge functions as an investigative
officer rather than a judge. Third is the concern that the judge, whose role
includes compensating for the fact that the named person may not have access to
material and may not be present at the hearing, will become associated with this
person’s case.

38

The first concern is linked to the degree of
deference that the judge accords to the ministers’ conclusion that the facts
supported the issuance of a certificate and the detention of the named person.
Judges working under the process have eschewed an overly deferential approach,
insisting instead on a searching examination of the reasonableness of the
certificate on the material placed before them: Jaballah, Re
(2004), 247 F.T.R. 68, 2004 FC 299; Charkaoui (Re), [2005] 2 F.C.R. 299,
2004 FCA 421, at para. 74.  They are correct to do so, having regard to the
language of the provision, the history of its adoption, and the role of the
designated judge.

39

First, an active role for the designated judge
is justified by the language of the IRPA and the standards of review it
establishes.  The statute requires the designated judge to determine
whether the certificate is “reasonable”, and emphasizes factual scrutiny by
instructing the judge to do so “on the basis of the information and evidence
available” (s. 80(1)).  This language, as well as the accompanying factual,
legal and administrative context, leads to the conclusion that the designated
judge must review the certificate on a standard of reasonableness.
Likewise, since the ministers’ decision to detain a permanent resident is
based on “reasonable grounds to believe” (s. 82(1)), “[i]t is logical to assume
that in subsequent reviews by a designated judge, the same standard will be
used”  (Charkaoui (Re), [2005] 3 F.C.R. 389, 2005 FC 248, at para.
30).  The “reasonable grounds to believe” standard requires the judge to
consider whether “there is an objective basis . . . which is based on compelling
and credible information”: Mugesera v. Canada (Minister of Citizenship and
Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, at para. 114. “Reasonable
grounds to believe” is the appropriate standard for judges to apply when
reviewing a continuation of detention under the certificate provisions of the
IRPA. The IRPA therefore does not ask the designated judge to be
deferential, but, rather, asks him or her to engage in a searching review.

40

This interpretation of the IRPA is
confirmed by statements made in the course of the adoption of the scheme. While
it was considering the IRPA, the Standing Committee on Citizenship and
Immigration was informed that the role of the designated judge would be to avoid
treatment that is unfair, arbitrary, or in violation of due process (Transcript
of the Standing Committee on Citizenship and Immigration, Thursday, April 26,
2001 (online)).

41

Finally, the fact that the designated judge may
have access to more information than the ministers did in making their initial
decision to issue a certificate and detain suggests that the judge possesses
relative expertise on the matters at issue and is no mere rubber stamp:
Charkaoui (Re), 2003 FC 1419, at para. 125.

42

I conclude that a non-deferential role for the
designated judge goes some distance toward alleviating the first concern, that
the judge will be perceived to be in the camp of the government.

43

The second concern is that the judge may be
seen to function more as an investigator than as an independent and impartial
adjudicator.  The law is clear that the principles of fundamental justice
are breached if a judge is reduced to an executive, investigative
function.  At the same time, the mere fact that a judge is required to
assist in an investigative activity does not deprive the judge of the requisite
independence.  In Re Bagri, the Court considered whether a provision
of the Criminal Code, R.S.C. 1985, c. C-46, that provides for a judge to
assist the state in gathering evidence in the investigation of a terrorist
offence violated s. 7 or s. 11(d) of the Charter.  Under
s. 83.28, a judge can order a person to attend before the judge (or before
another judge) to give information on a suspected past or future terrorism
offence, and supervise the taking of the person’s statement.  The hearing
can take place in camera, and its very existence can be kept
secret.  Critics of s. 83.28 argued that it co-opts the presiding judge
into performing an investigative rather than an adjudicative role. The majority
held that the provision violates neither s. 7 of the Charter nor the
unwritten principle of judicial independence. It stressed that s. 83.28 gives
judges broad discretion to vary the terms of the order made under it and to
ensure that constitutional and common law values are respected.  It also
noted that judges routinely participate in investigations in the criminal
context and that their role in these situations is to “act as a check against
state excess” (para. 86), and emphasized that in the context of investigative
hearings the judge was not asked to question the individual or challenge the
evidence, but merely to mediate and ensure the fairness of the proceeding.
However, it warned that “once legislation invokes the aid of the judiciary, we
must remain vigilant to ensure that the integrity of its role is not compromised
or diluted” (para. 87).

44

The IRPA provisions before the Court,
like s. 83.28 of the Criminal Code, preserve the essential elements of
the judicial role.  It is even clearer in this case than in Re Bagri
that the process established by the legislation at issue is not purely
investigative; the judge’s task of determining whether the certificate is
“reasonable” seems on its face closer to adjudicative review of an executive act
than to investigation.  On the other hand, the provisions seem to require
the judge to actively vet the evidence, an activity that the Court viewed as
suspect in Re Bagri.  Noël J., the designated judge for Mr.
Charkaoui’s case, stated:

Designated
judges preside over hearings and hear the Minister’s witnesses.  They
examine witnesses themselves as the need arises.  They examine the
documents carefully to determine which information is related to security and
which information is not.  In order to do so, they examine, among other
things, the sources of the information, the way in which it was obtained, the
reliability of the sources and the method used, and whether it is possible to
corroborate the information by other means.

(2003 FC
1419, at para. 101)

These comments suggest that while
the designated judge may be more involved in vetting and skeptically
scrutinizing the evidence than would be the case in a normal judicial hearing,
the judge is nevertheless performing the adjudicative function of evaluation,
rather than the executive function of investigation.  However, care must be
taken to avoid allowing the investigative aspect of the process to overwhelm its
adjudicative aspect.

45

The third concern is that the judge’s role as
sole protector of the named person’s interest may associate the judge, in fact
or perception, with that interest.  A judge who is obliged to take on a
“defence” role in the absence of counsel may unconsciously become associated
with that camp: R. v. Taubler (1987), 20 O.A.C. 64, at p. 71; R. v.
Turlon (1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 191. This concern must
be balanced against the opposite concern that the judge may appear to be part of
the government scheme and hence in the government’s camp.  The critical
consideration, however, is that the IRPA permits — indeed requires — the
judge to conduct the review in an independent and judicial fashion.
Provided the judge does so, the scheme cannot be condemned on the ground that he
or she is, in fact or perception, in the named person’s camp.

46

I conclude that, on its face, the IRPA
process is designed to preserve the independence and impartiality of the
designated judge, as required by s. 7.  Properly followed by judges
committed to a searching review, it cannot be said to compromise the
perceived independence and impartiality of the designated judge.

47

I note that this conclusion conclusively rebuts
the appellant Charkaoui’s contention that the IRPA breaches the unwritten
constitutional principle of judicial independence affirmed in Provincial
Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice),
[2005] 2 S.C.R. 286, 2005 SCC 44.

5.  Is the Decision Based on the Facts and the
Law?

48

To comply with s. 7 of the Charter, the
magistrate must make a decision based on the facts and the law. In the
extradition context, the principles of fundamental justice have been held to
require, “at a minimum, a meaningful judicial assessment of the case on the
basis of the evidence and the law.  A judge considers the respective rights
of the litigants or parties and makes findings of fact on the basis of evidence
and applies the law to those findings.  Both facts and law must be
considered for a true adjudication.  Since Bonham’s
Case [(1610), 8 Co. Rep. 113b, 77 E.R. 646], the essence of a judicial
hearing has been the treatment of facts revealed by the evidence in
consideration of the substantive rights of the parties as set down by law”
(Ferras, at para. 25). The individual and societal interests at stake in
the certificate of inadmissibility context suggest similar requirements.

49

The IRPA process at issue seeks to meet
this requirement by placing material before the judge for evaluation.  As a
practical matter, most if not all of the material that the judge considers is
produced by the government and can be vetted for reliability and sufficiency
only by the judge.  The normal standards used to ensure the reliability of
evidence in court do not apply: s. 78(j).  The named person may be
shown little or none of the material relied on by the ministers and the judge,
and may thus not be in a position to know or challenge the case against him or
her.  It follows that the judge’s decision, while based on the evidence
before him or her, may not be based on all of the evidence available.

50

There are two types of judicial systems, and
they ensure that the full case is placed before the judge in two different
ways.  In inquisitorial systems, as in Continental Europe, the judge takes
charge of the gathering of evidence in an independent and impartial way.
By contrast, an adversarial system, which is the norm in Canada, relies on the
parties — who are entitled to disclosure of the case to meet, and to full
participation in open proceedings — to produce the relevant evidence.  The
designated judge under the IRPA does not possess the full and independent
powers to gather evidence that exist in the inquisitorial process.  At the
same time, the named person is not given the disclosure and the right to
participate in the proceedings that characterize the adversarial process.
The result is a concern that the designated judge, despite his or her best
efforts to get all the relevant evidence, may be obliged —  perhaps
unknowingly — to make the required decision based on only part of the relevant
evidence.  As Hugessen J. has noted, the adversarial system provides “the
real warranty that the outcome of what we do is going to be fair and just” (p.
385); without it, the judge may feel “a little bit like a fig leaf” (Proceedings
of the March 2002 Conference, at p. 386).

51

Judges of the Federal Court have worked
assiduously to overcome the difficulties inherent in the role the IRPA
has assigned to them.  To their credit, they have  adopted a
pseudo-inquisitorial role and sought to seriously test the protected
documentation and information.  But the role remains
pseudo-inquisitorial.  The judge is not afforded the power to
independently investigate all relevant facts that true inquisitorial judges
enjoy.  At the same time, since the named person is not given a full
picture of the case to meet, the judge cannot rely on the parties to present
missing evidence.  The result is that, at the end of the day, one cannot be
sure that the judge has been exposed to the whole factual picture.

52

Similar concerns arise with respect to the
requirement that the decision be based on the law.  Without knowledge of
the information put against him or her, the named person may not be in a
position to raise legal objections relating to the evidence, or to develop legal
arguments based on the evidence.  The named person is, to be sure,
permitted to make legal representations.  But without disclosure and full
participation throughout the process, he or she may not be in a position to put
forward a full legal argument.

6.  Is the “Case to Meet”
Principle Satisfied?

53

Last but not least, a fair hearing requires
that the affected person be informed of the case against him or her, and be
permitted to respond to that case.  This right is well established in
immigration law.  The question is whether the procedures “provide an
adequate opportunity for [an affected person] to state his case and know the
case he has to meet” (Singh, at p. 213).  Similarly, in
Suresh, the Court held that a person facing deportation to torture under
s. 53(1)(b) of the former Immigration Act, R.S.C. 1985,
c. I-2, must “[n]ot only . . . be informed of the case to be met . . .
[but] also be given an opportunity to challenge the information of the Minister
where issues as to its validity arise” (para. 123).

54

Under the IRPA’s certificate scheme, the
named person may be deprived of access to some or all of the information put
against him or her, which would deny the person the ability to know the case to
meet.  Without this information, the named person may not be in a position
to contradict errors, identify omissions, challenge the credibility of
informants or refute false allegations.  This problem is serious in
itself.  It also underlies the concerns, discussed above, about the
independence and impartiality of the designated judge, and the ability of the
judge to make a decision based on the facts and law.

55

Confidentiality is a constant preoccupation of
the certificate scheme. The judge “shall ensure” the confidentiality of the
information on which the certificate is based and of any other evidence if, in
the opinion of the judge, disclosure would be injurious to national security or
to the safety of any person: s. 78(b).  At the request of either
minister “at any time during the proceedings”, the judge “shall hear”
information or evidence in the absence of the named person and his or her
counsel if, in the opinion of the judge, its disclosure would be injurious to
national security or to the safety of any person: s. 78(e).  The
judge “shall provide” the named person with a summary of information that
enables him or her to be reasonably informed of the circumstances giving rise to
the certificate, but the summary cannot include anything that would, in the
opinion of the judge, be injurious to national security or to the safety of any
person: s. 78(h).  Ultimately, the judge may have to consider
information that is not included in the summary: s. 78(g).  In the
result, the judge may be required to decide the case, wholly or in part, on the
basis of information that the named person and his or her counsel never
see.  The named person may know nothing of the case to meet, and although
technically afforded an opportunity to be heard, may be left in a position of
having no idea as to what needs to be said.

56

The same concerns arise with respect to the
detention review process under ss. 83 and 84 of the IRPA.  Section
78 applies to detention reviews under s. 83, and it has been found to apply to
detention reviews under s. 84(2):  Almrei v. Canada (Minister of
Citizenship and Immigration), [2005] 3 F.C.R. 142, 2005 FCA 54, at paras.
71-72.

57

The right to know the case to be met is not
absolute. Canadian statutes sometimes provide for ex parte or in
camera hearings, in which judges must decide important issues after hearing
from only one side. In Rodgers, the majority of this Court declined to
recognize notice and participation as invariable constitutional norms,
emphasizing a context-sensitive approach to procedural fairness.  And in
Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R.
32, 2006 SCC 31, the Court, per Rothstein J., held that while “[h]earing
from both sides of an issue is a principle to be departed from only in
exceptional circumstances”, in the ordinary case, a judge would be “well
equipped . . . to determine whether a record is subject to [solicitor-client]
privilege” without the assistance of counsel on both sides (para. 21).

58

More particularly, the Court has repeatedly
recognized that national security considerations can limit the extent of
disclosure of information to the affected individual. In Chiarelli, this
Court found that the Security Intelligence Review Committee could, in
investigating certificates under the former Immigration Act, 1976, S.C.
1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclose details of
investigation techniques and police sources. The context for elucidating the
principles of fundamental justice in that case included the state’s “interest in
effectively conducting national security and criminal intelligence
investigations and in protecting police sources” (p. 744).  In
Suresh, this Court held that a refugee facing the possibility of
deportation to torture was entitled to disclosure of all the information on
which the Minister was basing his or her decision, “[s]ubject to privilege or
similar valid reasons for reduced disclosure, such as safeguarding confidential
public security documents” (para. 122). And, in Ruby v. Canada
(Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court upheld the
section of the Privacy Act, R.S.C. 1985, c. P-21, that mandates in
camera and ex parte proceedings where the government claims an
exemption from disclosure on grounds of national security or maintenance of
foreign confidences.  The Court made clear that these societal concerns
formed part of the relevant context for determining the scope of the applicable
principles of fundamental justice (paras. 38-44).

59

In some contexts, substitutes for full
disclosure may permit compliance with s. 7 of the Charter.  For
example, in Rodgers, the majority of the Court upheld the
constitutionality of ex parte hearings for applications under s. 487.055
of the Criminal Code to take DNA samples from listed multiple offenders,
on the ground that the protections Parliament had put in place were adequate
(paras. 51-52). Similarly, in Chiarelli, the Court upheld the lack
of disclosure on the basis that the information disclosed by way of summary and
the opportunity to call witnesses and cross-examine RCMP witnesses who testified
in camera satisfied the requirements of fundamental justice.  And in
Ruby, the Court held that the substitute measures provided by Parliament
satisfied the constitutional requirements of procedural fairness (para. 42).
Arbour J. stated: “In such circumstances, fairness is met through other
procedural safeguards such as subsequent disclosure, judicial review and rights
of appeal” (para. 40).

60

Where limited disclosure or ex parte
hearings have been found to satisfy the principles of fundamental justice,
the intrusion on liberty and security has typically been less serious than that
effected by the IRPA:  Rodgers, at para. 53.  It is one
thing to deprive a person of full information where fingerprinting is at stake,
and quite another to deny him or her information where the consequences are
removal from the country or indefinite detention.  Moreover, even in the
less intrusive situations, courts have insisted that disclosure be as specific
and complete as possible.

61

In the context of national security,
non-disclosure, which may be extensive, coupled with the grave intrusions on
liberty imposed on a detainee, makes it difficult, if not impossible, to find
substitute procedures that will satisfy s. 7.  Fundamental justice requires
substantial compliance with the venerated principle that a person whose liberty
is in jeopardy must be given an opportunity to know the case to meet, and an
opportunity to meet the case.  Yet the imperative of the protection of
society may preclude this.  Information may be obtained from other
countries or from informers on condition that it not be disclosed.  Or it
may simply be so critical that it cannot be disclosed without risking public
security.  This is a reality of our modern world.  If s. 7  is to
be satisfied, either the person must be given the necessary information, or a
substantial substitute for that information must be found.  Neither is the
case here.

62

The only protection the IRPA accords the
named person is a review by a designated judge to determine whether the
certificate is reasonable.  The ministers argue that this is adequate in
that it maintains a “delicate balance” between the right to a fair hearing and
the need to protect confidential security intelligence information.  The
appellants, on the other hand, argue that the judge’s efforts, however
conscientious, cannot provide an effective substitute for informed
participation.

63

I agree with the appellants.  The issue at
the s. 7 stage, as discussed above, is not whether the government has struck the
right balance between the need for security and individual liberties; that is
the issue at the stage of s. 1 justification of an established limitation on a
Charter right.  The question at the s. 7 stage is whether the basic
requirements of procedural justice have been met, either in the usual way or in
an alternative fashion appropriate to the context, having regard to the
government’s objective and the interests of the person affected.  The
fairness of the IRPA procedure rests entirely on the shoulders of the
designated judge.  Those shoulders cannot by themselves bear the heavy
burden of assuring, in fact and appearance, that the decision on the
reasonableness of the certificate is impartial, is based on a full view of the
facts and law, and reflects the named person’s knowledge of the case to
meet.  The judge, working under the constraints imposed by the IRPA,
simply cannot fill the vacuum left by the removal of the traditional guarantees
of a fair hearing.  The judge sees only what the ministers put before him
or her.  The judge, knowing nothing else about the case, is not in a
position to identify errors, find omissions or assess the credibility and
truthfulness of the information in the way the named person would be. Although
the judge may ask questions of the named person when the hearing is reopened,
the judge is prevented from asking questions that might disclose the protected
information. Likewise, since the named person does not know what has been put
against him or her, he or she does not know what the designated judge needs to
hear.  If the judge cannot provide the named person with a summary of the
information that is sufficient to enable the person to know the case to meet,
then the judge cannot be satisfied that the information before him or her is
sufficient or reliable.  Despite the judge’s best efforts to question the
government’s witnesses and scrutinize the documentary evidence, he or she is
placed in the situation of asking questions and ultimately deciding the issues
on the basis of incomplete and potentially unreliable information.

64

The judge is not helpless; he or she can note
contradictions between documents, insist that there be at least some evidence on
the critical points, and make limited inferences on the value and credibility of
the information from its source. Nevertheless, the judge’s activity on behalf of
the named person is confined to what is presented by the ministers.  The
judge is therefore not in a position to compensate for the lack of informed
scrutiny, challenge and counter-evidence that a person familiar with the case
could bring.  Such scrutiny is the whole point of the principle that a
person whose liberty is in jeopardy must know the case to meet.  Here that
principle has not merely been limited; it has been effectively gutted.  How
can one meet a case one does not know?

7.  Conclusion on Section 7

65

In the IRPA, an attempt has been made to
meet the requirements of fundamental justice essentially through one mechanism —
the designated judge charged with reviewing the certificate of inadmissibility
and the detention.  To Parliament’s credit, a sincere attempt has been made
to give the designated judge the powers necessary to discharge the role in an
independent manner, based on the facts and the law.  Yet, the secrecy
required by the scheme denies the named person the opportunity to know the case
put against him or her, and hence to challenge the government’s case.
This, in turn, undermines the judge’s ability to come to a decision based on all
the relevant facts and law.  Despite the best efforts of judges of the
Federal Court to breathe judicial life into the IRPA procedure, it fails
to assure the fair hearing that s. 7 of the Charter requires before the
state deprives a person of life, liberty or security of the person.  I
therefore conclude that the IRPA’s procedure for determining whether a
certificate is reasonable does not conform to the principles of fundamental
justice as embodied in s. 7 of the Charter. The same conclusion
necessarily applies to the detention review procedures under ss. 83 and 84 of
the IRPA.

8.  Is the Limit Justified Under Section 1 of the
Charter?

66

The Charter does not guarantee rights
absolutely.  The state is permitted to limit rights — including the s. 7
guarantee of life, liberty and security — if it can establish that the limits
are demonstrably justifiable in a free and democratic society. This said,
violations of s. 7 are not easily saved by s. 1.  In Re B.C. Motor
Vehicle Act, [1985] 2 S.C.R. 486, Lamer J. (as he then was) stated, for the
majority:

Section 1
may, for reasons of administrative expediency, successfully come to the rescue
of an otherwise violation of s. 7, but only in cases arising out of exceptional
conditions, such as natural disasters, the outbreak of war, epidemics, and the
like. [p. 518]

The rights protected by s. 7 —
life, liberty, and security of the person — are basic to our conception of a
free and democratic society, and hence are not easily overridden by competing
social interests.  It follows that violations of the principles of
fundamental justice, specifically the right to a fair hearing, are difficult to
justify under s. 1: G. (J.). Nevertheless, the task may not be
impossible, particularly in extraordinary circumstances where concerns are grave
and the challenges complex.

67

The test to be applied in determining whether a
violation can be justified under s. 1, known as the Oakes test (R. v.
Oakes, [1986] 1 S.C.R. 103), requires a pressing and substantial objective
and proportional means.  A finding of proportionality requires: (a) means
rationally connected to the objective; (b) minimal impairment of rights;
and (c) proportionality between the effects of the infringement and the
importance of the objective.

68

The protection of Canada’s national security
and related intelligence sources undoubtedly constitutes a pressing and
substantial objective.  Moreover, the IRPA’s provisions regarding
the non‑disclosure of evidence at certificate hearings are rationally connected
to this objective.  The facts on this point are undisputed.  Canada is
a net importer of security information.  This information is essential to
the security and defence of Canada, and disclosure would adversely affect its
flow and quality: see Ruby.  This leaves the question whether the
means Parliament has chosen, i.e. a certificate procedure leading to detention
and deportation of non-citizens on the ground that they pose a threat to
Canada’s security,  minimally impairs the rights of non‑citizens.

69

The realities that confront modern governments
faced with the challenge of terrorism are stark.  In the interest of
security, it may be necessary to detain persons deemed to pose a threat.
At the same time, security concerns may preclude disclosure of the evidence on
which the detention is based.  But these tensions are not new.  As we
shall see, Canada has already devised processes that go further in preserving s.
7 rights while protecting sensitive information; until recently, one of these
solutions was applicable in the security certificate context.  Nor are
these tensions unique to Canada: in the specific context of anti-terrorism
legislation, the United Kingdom uses special counsel to provide a measure of
protection to the detained person’s interests, while preserving the
confidentiality of information that must be kept secret.  These
alternatives suggest that the IRPA regime, which places on the judge the
entire burden of protecting the person’s interest, does not minimally impair the
rights of non-citizens, and hence cannot be saved under s. 1 of the
Charter.

(a) Less Intrusive Alternatives

70

This is not the first time Canada has had to
reconcile the demands of national security with the procedural rights guaranteed
by the Charter. In a number of legal contexts, Canadian government
institutions have found ways to protect sensitive information while treating
individuals fairly. In some situations, the solution has involved the use of
special counsel, in a manner closely approximating an adversarial process.

71

The Security Intelligence Review Committee
(“SIRC”) is an independent review body that monitors the activities of the
Canadian Security Intelligence Service (“CSIS”).  Established in 1984 under
the Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now
R.S.C. 1985, c. C-23), SIRC is composed of three to five members of the Privy
Council who are not currently serving in Parliament.  Under the former
Immigration Act, SIRC had the power to vet findings of inadmissibility
based on alleged threats to national security; a ministerial certificate could
not be issued without a SIRC investigation. If the Minister of Employment and
Immigration and the Solicitor General were of the opinion that a non-citizen was
inadmissible due to involvement in organized crime, espionage, subversion, acts
of violence, etc., they were first obliged to make a report to SIRC:
Immigration Act, s. 39(2).  SIRC would then investigate the grounds for
the report, providing the affected person with “a statement summarizing such
information available to it as will enable the person to be as fully informed as
possible of the circumstances giving rise to the report”: s. 39(6). After
completing its investigation, SIRC would send a report to the Governor in
Council containing its recommendation as to whether a security certificate
should be issued: s. 39(9). A copy of the same report would be provided to the
non-citizen: s. 39(10). If the Governor in Council was satisfied that the
non-citizen was inadmissible on appropriate grounds, he or she could then direct
the Minister of Employment and Immigration to issue a security certificate: s.
40(1).

72

Empowered to develop its own investigative
procedures, SIRC established a formal adversarial process, with “a court-like
hearing room” and “procedures that mirrored judicial proceedings as much as
possible”. The process also included an independent panel of lawyers with
security clearances to act as counsel to SIRC (M. Rankin, “The Security
Intelligence Review Committee: Reconciling National Security with Procedural
Fairness” (1990), 3 C.J.A.L.P. 173, at p. 179).

73

A SIRC member presiding at a hearing had the
discretion to balance national security against procedural fairness in
determining how much information could be disclosed to the affected person. The
non-citizen and his or her counsel would normally be present in the hearing
room, except when sensitive national security evidence was tendered. (The
presiding SIRC member would decide whether to exclude the non-citizen during
certain testimony.) At such a juncture, independent, security-cleared SIRC
counsel would act on behalf of the non-citizen.  The SIRC counsel were
instructed to cross-examine witnesses for CSIS “with as much vigour as one would
expect from the complainant’s counsel” (Rankin, at p. 184; SIRC Annual Report
1988-1989 (1989) (“SIRC Annual Report”), at p. 64). At the end
of this ex parte portion of the hearing, the excluded person would be
brought back into the room and provided with a summary, which would include “the
gist of the evidence, without disclosing the national security information”
(SIRC Annual Report, at p. 64).  The SIRC counsel would negotiate
the contents of the summary with CSIS, under the supervision of the presiding
SIRC member (ibid.). The affected person and his or her counsel would
then be allowed to ask their own questions, and to cross-examine on the basis of
the summary (Rankin, at p. 184).

74

In the words of Professor Rankin, SIRC’s
procedures represented “an attempt to preserve the best features of the
adversarial process with its insistence on vigorous cross-examination, but not
to run afoul of the requirements of national security” (p. 185).  These
procedures illustrate how special counsel can provide not only an effective
substitute for informed participation, but can also help bolster actual informed
participation by the affected person.  Since the special counsel had a role
in determining how much information would be included in the summary, disclosure
was presumably more complete than would otherwise have been the case. Sensitive
national security information was still protected, but the executive was
required to justify the breadth of this protection.

75

In 1988 Parliament added s. 40.1 to the
Immigration Act to empower the Minister and the Solicitor General to
issue security certificates in respect of foreign nationals. Section 40.1
effectively bypassed the SIRC investigation process where foreign nationals were
concerned, instead referring the certificate to a designated judge of the
Federal Court for subsequent review. Security certificates in respect of
permanent residents remained subject to SIRC scrutiny until 2002, when
Parliament repealed the Immigration Act and replaced it with the
IRPA.

76

Certain elements of SIRC process may be
inappropriate to the context of terrorism. Where there is a risk of catastrophic
acts of violence, it would be foolhardy to require a lengthy review process
before a certificate could be issued. But it was not suggested before
this Court that SIRC’s special counsel system had not functioned well in
connection with the review of certificates under the Immigration Act,
nor was any explanation given for why, under the new system for vetting
certificates and reviewing detentions, a special counsel process had not been
retained.

77

The SIRC process is not the only example of the
Canadian legal system striking a better balance between the protection of
sensitive information and the procedural rights of individuals.  A current
example is found in the Canada Evidence Act, R.S.C. 1985, c. C-5
(“CEA”), which permits the government to object to the disclosure of
information on grounds of public interest, in proceedings to which the Act
applies: ss. 37 to 39.  Under the recent amendments to the CEA set
out in the Anti-terrorism Act, S.C. 2001, c. 41, a participant in a
proceeding who is required to disclose or expects to disclose potentially
injurious or sensitive information, or who believes that such information might
be disclosed, must notify the Attorney General about the potential disclosure,
and the Attorney General may then apply to the Federal Court for an order
prohibiting the disclosure of the information: ss. 38.01, 38.02, 38.04. The
judge enjoys considerable discretion in deciding whether the information should
be disclosed.  If the judge concludes that disclosure of the information
would be injurious to international relations, national defence or national
security, but that the public interest in disclosure outweighs in importance the
public interest in non-disclosure, the judge may order the disclosure of all or
part of the information, on such conditions as he or she sees fit.  No
similar residual discretion exists under the IRPA, which requires judges
not to disclose information the disclosure of which would be injurious to
national security or to the safety of any person. Moreover, the CEA makes
no provision for the use of information that has not been disclosed.  While
the CEA does not address the same problems as the IRPA, and
hence is of limited assistance here, it illustrates Parliament’s concern under
other legislation for striking a sensitive balance between the need for
protection of confidential information and the rights of the individual.

78

Crown and defence counsel in the recent Air
India trial (R. v. Malik, [2005] B.C.J. No. 521 (QL), 2005 BCSC 350) were
faced with the task of managing security and intelligence information and
attempting to protect procedural fairness.  The Crown was in possession of
the fruits of a 17-year-long investigation into the terrorist bombing of a
passenger aircraft and a related explosion in Narita, Japan. It withheld
material on the basis of relevance, national security privilege and litigation
privilege.  Crown and defence counsel came to an agreement under which
defence counsel obtained consents from their clients to conduct a preliminary
review of the withheld material, on written undertakings not to disclose the
material to anyone, including the client. Disclosure in a specific trial, to a
select group of counsel on undertakings, may not provide a working model for
general deportation legislation that must deal with a wide variety of counsel in
a host of cases.  Nevertheless, the procedures adopted in the Air India
trial suggest that a search should be made for a less intrusive solution than
the one found in the IRPA.

79

The Arar Inquiry provides another example of
the use of special counsel in Canada. The Commission had to examine confidential
information related to the investigation of terrorism plots while preserving Mr.
Arar’s and the public’s interest in disclosure.  The Commission was
governed by the CEA.  To help assess claims for
confidentiality, the Commissioner was assisted by independent security-cleared
legal counsel with a background in security and intelligence, whose role was to
act as amicus curiae on confidentiality applications.  The scheme’s
aim was to ensure that only information that was rightly subject to national
security confidentiality was kept from public view.  There is no indication
that these procedures increased the risk of disclosure of protected
information.

80

Finally, I note the special advocate system
employed by the Special Immigration Appeals Commission (“SIAC”) in the United
Kingdom.  SIAC and the special advocate system were created in response to
Chahal v. United Kingdom, 15 November 1996, Reports of Judgments and
Decisions 1996-V, p. 1831, in which the European Court of Human Rights had
held that the procedure then in place was inadequate. The court in Chahal
commented favourably on the idea of security‑cleared counsel instructed by the
court, identifying it as being Canadian in origin (perhaps referring to the
procedure developed by SIRC).

81

The U.K.’s special advocate system resembles
the Canadian SIRC model.  Section 6(1) of the Special Immigration
Appeals Commission Act 1997 (U.K.), 1997, c. 68, states that the
special advocate is appointed to “represent the interests of an appellant” in
any proceedings before SIAC from which the appellant and his or her legal
representatives are excluded.  Section 6(4), however, specifies that the
special advocate “shall not be responsible to the person whose interests he is
appointed to represent”.  Rule 35 of the Special Immigration Appeals
Commission (Procedure) Rules 2003, S.I. 2003/1034, sets out the special
advocate’s three main functions: (1) to make submissions to the Commission at
any hearings from which the appellant and the appellant’s representatives are
excluded; (2) to cross-examine witnesses at any such hearings; and (3) to make
written submissions to the Commission.  After seeing the protected
information, the special advocate may not communicate with the appellant
or  the appellant’s representative without authorization from the
Commission: rule 36.  If the special advocate requests such authorization,
the Commission gives the Secretary of State an opportunity to object to the
proposed communication before deciding whether to authorize it:  rule 38.

82

The use of special advocates has received
widespread support in Canadian academic commentary. Professor Roach, for
example, criticizes the Court of Appeal’s conclusion in Charkaoui (Re),
2004 FCA 421, that such a measure is not constitutionally required:

In my view,
this approach was in error because in camera and ex parte hearings
offend basic notions of a fair hearing and special advocates constitute one
example of an approach that is a more proportionate response to reconciling the
need to keep some information secret and the need to ensure as much fairness and
adversarial challenge as possible. [Emphasis added.]

(K. Roach,
“Ten Ways to Improve Canadian Anti-Terrorism Law” (2006), 51 Crim. L.Q.
102, at p. 120)

83

This said, the U.K.’s special advocate system
has also been criticized for not going far enough.  In April 2005, the
House of Commons Constitutional Affairs Committee published a report on the
operation of SIAC and the use of special advocates (The operation of the
Special Immigration Appeals Commission (SIAC) and the use of Special
Advocates).  The Committee listed three important disadvantages faced
by special advocates:  (1) once they have seen the confidential material,
they cannot, subject to narrow exceptions, take instructions from the appellant
or the appellant’s counsel; (2) they lack the resources of an ordinary legal
team, for the purpose of conducting in secret a full defence; and (3) they have
no power to call witnesses (para. 52).

84

Despite these difficulties, SIAC itself has
commented favourably on the assistance provided by special advocates, stating
that as a result of the “rigorous cross-examination” of the government’s
evidence by the special advocate, it was satisfied that the government’s
assertions were unsupported by the evidence (M. v. Secretary of State for the
Home Department, [2004] UKSIAC 17/2002 (BAILII), March 8, 2004, at para.
10).  The England and Wales Court of Appeal upheld SIAC’s decision: [2004]
2 All E.R. 863, [2004] EWCA Civ 324.

(b)   The IRPA Scheme Does Not Minimally Impair the
Named Person’s Rights

85

Parliament is not required to use the
perfect, or least restrictive, alternative to achieve its
objective:  R. v. Chaulk, [1990] 3 S.C.R. 1303.   However,
bearing in mind the deference that is owed to Parliament in its legislative
choices, the alternatives discussed demonstrate that the IRPA does not
minimally impair the named person’s rights.

86

Under the IRPA, the government
effectively decides what can be disclosed to the named person.  Not only is
the named person not shown the information and not permitted to participate in
proceedings involving it, but no one but the judge may look at the information
with a view to protecting the named person’s interests.  Why the drafters
of the legislation did not provide for special counsel to objectively review the
material with a view to protecting the named person’s interest, as was formerly
done for the review of security certificates by SIRC and is presently done in
the United Kingdom, has not been explained.  The special counsel system may
not be perfect from the named person’s perspective, given that special counsel
cannot reveal confidential material.  But, without compromising security,
it better protects the named person’s s. 7 interests.

87

I conclude that the IRPA’s
procedures for determining whether a certificate is reasonable and for
detention review cannot be justified as minimal impairments of the individual’s
right to a judicial determination on the facts and the law and right to know and
meet the case.  Mechanisms developed in Canada and abroad illustrate that
the government can do more to protect the individual while keeping critical
information confidential than it has done in the IRPA.  Precisely
what more should be done is a matter for Parliament to decide.  But it is
clear that more must be done to meet the requirements of a free and democratic
society.

B.   Does the Detention of Permanent Residents or
Foreign Nationals Under the IRPA Infringe Sections 7, 9, 10(c) or 12 of the
Charter, and if so, Are the Infringements Justified Under Section 1 of the
Charter?

1.  Time Constraints on Review for Foreign Nationals:
Breach of Section 9 or Section 10(c)?

88

Section 9 of the Charter guarantees
freedom from arbitrary detention.  This guarantee expresses one of the most
fundamental norms of the rule of law.  The state may not detain
arbitrarily, but only in accordance with the law.  The appellant Mr. Almrei
argues that detention under the IRPA is arbitrary with respect to
foreign nationals, first because it permits their detention without warrant and
without regard to their personal circumstances, and second because it prevents
review until 120 days after the certificate is confirmed.  In both
respects, foreign nationals are treated differently than permanent residents.

89

I would reject Mr. Almrei’s argument that
automatic detention of foreign nationals is arbitrary because it is effected
without regard to the personal circumstances of the detainee.  Detention is
not arbitrary where there are “standards that are rationally related to the
purpose of the power of detention”: P. W. Hogg, Constitutional Law of
Canada (loose-leaf ed.), vol. 2, at p. 46-5.  The triggering event for
the detention of a foreign national is the signing of a certificate stating that
the foreign national is inadmissible on grounds of security, violating human or
international rights, serious criminality or organized criminality. The security
ground is based on the danger posed by the named person, and therefore provides
a rational foundation for the detention.  R. v. Swain,
[1991] 1 S.C.R. 933, in which this Court struck down a provision of the
Criminal Code requiring that an accused acquitted of an offence on the
basis of an insanity defence be detained automatically without a hearing, is
distinguishable. The Court held that it was arbitrary to require the detention
of persons acquitted by reason of mental disorder without the application of any
standard whatsoever, because “[n]ot all of these individuals will be dangerous”:
at p. 1013, per Lamer C.J. But in the national security context, the
signature of a certificate under s. 77 of the IRPA on the ground of
security is necessarily related to the dangerousness of the individual.
While not all the other grounds for the issuance of a certificate under s. 77(1)
are conclusive of the danger posed by the named person, danger is not the only
constitutional basis upon which an individual can be detained, and arbitrariness
of detention under the other grounds was not argued.

90

This leaves Mr. Almrei’s argument that the
IRPA imposes arbitrary detention because it prevents review of the
detention of foreign nationals until 120 days after the certificate is
confirmed.  Whether through habeas corpus or statutory mechanisms,
foreign nationals, like others, have a right to prompt review to ensure that
their detention complies with the law. This principle is affirmed in s.
10(c) of the Charter. It is also recognized internationally:
see Rasul v. Bush, 542 U.S. 466 (2004); Zadvydas v. Davis,
533 U.S. 678 (2001); art. 5 of the Convention for the Protection of Human
Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (“European Convention
on Human Rights”); Slivenko v. Latvia [GC], No. 48321/99, ECHR
2003-X, p. 229.  While the government accepts this principle, it argues
that the 120-day period in s. 84(2) is sufficiently prompt, relying, as did the
courts below, on the fact that foreign nationals can apply for release and
depart from Canada at any time.

91

The lack of review for foreign nationals until
120 days after the reasonableness of the certificate has been judicially
determined violates the guarantee against arbitrary detention in s. 9 of the
Charter, a guarantee which encompasses the right to prompt review of
detention under s. 10(c) of the Charter.  Permanent residents
named in certificates are entitled to an automatic review within 48 hours.
The same time frame for review of detention applies to both permanent residents
and foreign nationals under s. 57 of the IRPA.  And under the
Criminal Code, a person who is arrested with or without a warrant is to
be brought before a judge within 24 hours, or as soon as possible:  s.
503(1).  These provisions indicate the seriousness with which the
deprivation of liberty is viewed, and offer guidance as to acceptable delays
before this deprivation is reviewed.

92

The government submits that the detention
provisions, and more specifically the absence of review for foreign nationals
until 120 days after the certificate has been determined to be reasonable,
reflect its objective of creating a timely removal process for individuals
thought to constitute a danger to national security, and asserts that when the
provisions were drafted, it was thought that the removal process would be so
fast that there would be no need for review.  This is more an admission of
the excessiveness of the 120-day period than a justification.

93

It is clear that there may be a need for some
flexibility regarding the period for which a suspected terrorist may be
detained.  Confronted with a terrorist threat, state officials may need to
act immediately, in the absence of a fully documented case.  It may take
some time to verify and document the threat.  Where state officials act
expeditiously, the failure to meet an arbitrary target of a fixed number of
hours should not mean the automatic release of the person, who may well be
dangerous.  However, this cannot justify the complete denial of a timely
detention review. Permanent residents who pose a danger to national security are
also meant to be removed expeditiously.  If this objective can be pursued
while providing permanent residents with a mandatory detention review within 48
hours, then how can a denial of review for foreign nationals for 120 days after
the certificate is confirmed be considered a minimal impairment?

94

I conclude that the lack of timely review of
the detention of foreign nationals violates s. 9 and s. 10(c) and cannot
be saved by s. 1.

2.  Do Extended Periods of Detention Under the Scheme
Violate Section 7 or the Section 12 Guarantee Against Cruel and Unusual
Treatment?

95

The question at this point is whether the
extended detention that may occur under the IRPA violates the guarantee
against cruel and unusual treatment under s. 12 of the Charter. The
threshold for breach of s. 12 is high.  As stated by Lamer J. in
Smith, treatment or punishment is cruel and unusual if it is “so
excessive as to outrage [our] standards of decency”: R. v. Smith, [1987]
1 S.C.R. 1045, at p. 1067; also R. v. Wiles, [2005] 3 S.C.R. 895, 2005
SCC 84, at para. 4.

96

The s. 12 issue of cruel and unusual treatment
is intertwined with s. 7 considerations, since the indefiniteness of detention,
as well as the psychological stress it may cause, is related to the mechanisms
available to the detainee to regain liberty.  It is not the detention
itself, or even its length, that is objectionable. Detention itself is never
pleasant, but it is only cruel and unusual in the legal sense if it violates
accepted norms of treatment.  Denying the means required by the principles
of fundamental justice to challenge a detention may render the detention
arbitrarily indefinite and support the argument that it is cruel or unusual.
(The same may be true of onerous conditions of release that seriously restrict a
person’s liberty without affording an opportunity to challenge the
restrictions.)  Conversely, a system that permits the detainee to challenge
the detention and obtain a release if one is justified may lead to the
conclusion that the detention is not cruel and unusual: see Sahin v. Canada
(Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.),
per Rothstein J. (as he then was).

97

Mr. Almrei’s first submission is that “the
combination of the legislative scheme and the conditions of detention . . .
[transforms] the Appellant’s detention into one that is cruel and
unusual”.  I would reject this submission.  This Court has not, in its
past decisions, recognized s. 12 as a mechanism to challenge the overall
fairness of a particular legislative regime.

98

More narrowly, however, it has been
recognized that indefinite detention in circumstances where the detainee has no
hope of release or recourse to a legal process to procure his or her release may
cause psychological stress and therefore constitute cruel and unusual treatment:
Eur. Court H.R., Soering case, judgment of 7 July 1989, Series A, No.
161, at para. 111; compare Lyons, at pp. 339-41. However, for the reasons
that follow, I conclude that the IRPA does not impose cruel and unusual
treatment within the meaning of s. 12 of the Charter because, although
detentions may be lengthy, the IRPA, properly interpreted, provides a
process for reviewing detention and obtaining release and for reviewing and
amending conditions of release, where appropriate.

99

On its face, the IRPA permits detention
pending deportation on security grounds.  In reality, however, a release
from detention may be difficult to obtain.  The Federal Court suggested
that Mr. Almrei “holds the key to his release”: Almrei v. Canada (Minister of
Citizenship and Immigration), [2004] 4 F.C.R. 327, 2004 FC 420, at para.
138. But voluntary departure may be impossible.  A person named in a
certificate of inadmissibility may have nowhere to go. Other countries may
assume such a person to be a terrorist and are likely to refuse entry, or the
person may fear torture on his or her return.  Deportation may fail for the
same reasons, despite the observation that “[i]n our jurisdiction, at this
moment, deportation to torture remains a possibility” in exceptional
circumstances:  Almrei, 2005 FCA 54, at para. 127.  The only
realistic option may be judicial release.

100

In the case of a permanent resident, detention is continued
if the judge is satisfied that the person “continues to be a danger to national
security or to the safety of any person, or is unlikely to appear at a
proceeding or for removal”: s. 83(3). The ministers bear the initial burden of
establishing that these criteria are met: Charkaoui (Re), [2004] 1 F.C.R.
528, 2003 FC 882, at para. 36. In the case of a foreign national, release may be
granted if the judge is “satisfied that the foreign national will not be removed
from Canada within a reasonable time and that the release will not pose a danger
to national security or to the safety of any person”:  s. 84(2). Unlike s.
83(3), s. 84(2) places the onus on the detainee: see Ahani v. Canada
(Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 171
(F.C.A.).

101

Courts thus far have understood these provisions to set a
high standard for release. In interpreting the predecessor to s. 84(2) under the
Immigration Act, the Federal Court of Appeal held that judicial release
“cannot be an automatic or easy thing to achieve”, and that it “is not to be
routinely obtained”:  Ahani, at para. 13.  At the same time,
courts have read the provision as allowing the judge to inquire whether terms
and conditions could make the release safe. This is an invitation that Federal
Court judges have rightly accepted: Harkat v. Canada (Minister of Citizenship
and Immigration) [2007] 1 F.C.R. 321, 2006 FC 628, at para. 82; Almrei v.
Canada (Minister of Citizenship and Immigration) (2005), 270 F.T.R. 1, 2005
FC 1645, at paras. 419-26. Likewise, when reviewing the detention of a permanent
resident under s. 83(3), judges have examined the context that would surround
release in order to determine whether the person would pose a security risk:
Charkaoui (Re), 2005 FC 248, at paras. 71-73.

102

The cases at bar illustrate the difficulty that may be
encountered in seeking release from a detention imposed under the IRPA.
At the time of writing, Mr. Almrei, a foreign national, has been detained
for over five years.  He cannot be deported until  the Minister issues
an opinion that he constitutes a danger to the public.  But two “danger
opinions” have already been quashed by the Federal Court, the last one in March
2005.  The Minister has yet to issue a new one.  In dismissing Mr.
Almrei’s application for judicial release, Layden-Stevenson J. held that Mr.
Almrei had established that his removal was not imminent, was not a “done deal”
and would not occur within a reasonable time (para. 272).  However, she
held that she was compelled to keep him in detention because she found that his
release would pose a danger to national security under s. 84(2): Almrei,
2005 FC 1645.  Mr. Almrei argues that as far as he is concerned, his
detention is indefinite.

103

Mr. Harkat has been released from detention, but remains
under house arrest and continuous surveillance by the Canada Border Services
Agency (“CBSA”) and the RCMP by virtue of an order by Dawson J.  He must at
all times wear an electronic monitoring device and obtain the CBSA’s permission
before leaving his house.  He must at all times be under the supervision of
either his wife or his mother-in-law.  Access to his residence is
restricted to individuals who have posted sureties and to Mr. Harkat’s legal
counsel, as well as to emergency, fire, police and health care
professionals.  The CBSA is permitted to intercept all telephone and oral
communications between Mr. Harkat and any third party.  Mr. Harkat is
forbidden to use any cellular phone or any computer with Internet
connectivity.  Breach of any of the numerous conditions in Dawson J.’s
order would lead to automatic rearrest; however, these conditions are subject to
ongoing review and amendment. The government is attempting to deport him to
Algeria; whether this is possible may depend on the outcome of legal processes
that are still pending.

104

Mr. Charkaoui has been released from detention under
conditions that are somewhat less onerous: Charkaoui (Re), 2005 FC 248,
at para. 86.  These conditions have a serious impact on his liberty, and he
remains in jeopardy of being rearrested for a breach of his conditions.
But the conditions are subject to ongoing review and have been amended several
times subsequent to his release.  More legal avenues remain to be
explored.  Whether the government will seek to deport Mr. Charkaoui or
detain him anew may depend on the outcome of his application for protection and
the determination of the reasonableness of his certificate.

105

It is thus clear that while the IRPA in principle
imposes detention only pending deportation, it may in fact permit lengthy and
indeterminate detention or lengthy periods subject to onerous release
conditions.  The next question is whether this violates s. 7 or s. 12 based
on the applicable legal principles.

106

This Court has previously considered the possibility of
indefinite detention in the criminal context. In Lyons, a majority of the
Court held that “dangerous offender” legislation allowing for indefinite
detention did not constitute cruel and unusual treatment or punishment within
the meaning of s. 12 of the Charter because the statutory scheme includes
a parole process that “ensures that incarceration is imposed for only as long as
the circumstances of the individual case require” (p. 341, per La Forest
J.). It is true that a judge can impose the dangerous offender designation only
on a person who has been convicted of a serious personal injury offence; this
Court indicated that a sentence of indeterminate detention, applied with respect
to a future crime or a crime that had already been punished, would violate s. 7
of the Charter (pp. 327-28, per La Forest J.).  But the use
in criminal law of indeterminate detention as a tool of sentencing — serving
both a punitive and a preventive function — does not establish the
constitutionality of preventive detention measures in the immigration context.

107

The principles underlying Lyons must be adapted in
the case at bar to the immigration context, which requires a period of time for
review of the named person’s right to remain in Canada. Drawing on them, I
conclude that the s. 7 principles of fundamental justice and the s. 12 guarantee
of freedom from cruel and unusual treatment require that, where a person is
detained or is subject to onerous conditions of release for an extended period
under immigration law, the detention or the conditions must be accompanied by a
meaningful process of ongoing review that takes into account the context and
circumstances of the individual case. Such persons must have meaningful
opportunities to challenge their continued detention or the conditions of their
release.

108

The type of process required has been explored in cases
involving analogous situations.  In Sahin, Rothstein J. had occasion
to examine a situation of ongoing detention (for reasons unrelated to national
security) under the Immigration Act. He concluded that “what amounts to
an indefinite detention for a lengthy period of time may, in an appropriate
case, constitute a deprivation of liberty that is not in accordance with the
principles of fundamental justice” (p. 229) and held that ongoing detention
under the Immigration Act could be constitutional if it resulted from the
weighing of a number of factors (at pp. 231-32):

The
following list, which, of course, is not exhaustive of all considerations, seems
to me to at least address the more obvious [considerations]. Needless to say,
the considerations relevant to a specific case, and the weight to be placed upon
them, will depend upon the circumstances of the case.

(1) Reasons
for the detention, i.e. is the applicant considered a danger to the public or is
there a concern that he would not appear for removal. I would think that there
is a stronger case for continuing a long detention when an individual is
considered a danger to the public.

(2) Length
of time in detention and length of time detention will likely continue. If an
individual has been held in detention for some time as in the case at bar, and a
further lengthy detention is anticipated, or if future detention time cannot be
ascertained, I would think that these facts would tend to favour release.

(3) Has the
applicant or the respondent caused any delay or has either not been as diligent
as reasonably possible. Unexplained delay and even unexplained lack of diligence
should count against the offending party.

(4) The
availability, effectiveness and appropriateness of alternatives to detention
such as outright release, bail bond, periodic reporting, confinement to a
particular location or geographic area, the requirement to report changes of
address or telephone numbers, detention in a form that could be less restrictive
to the individual, etc.

A consideration that I think deserves significant weight is the
amount of time that is anticipated until a final decision, determining, one way
or the other, whether the applicant may remain in Canada or must leave.

109

Factors regarding release are considered in another part of
the IRPA and the accompanying Immigration and Refugee Protection
Regulations, SOR/2002-227 (“IRP Regulations”).  When a
non-citizen not named in a certificate is detained because he or she is
inadmissible and also is a danger to the public or is unlikely to appear for
examination, the non-citizen is entitled to detention reviews before the
Immigration and Refugee Board: IRPA, ss. 55 to 57.  In determining
whether the non-citizen should be held or released, the Board must take into
account “prescribed factors”:  (a) the reason for detention; (b) the length
of time in detention; (c) whether there are any elements that can assist in
determining the length of time that detention is likely to continue and, if so,
that length of time; (d) any unexplained delays or unexplained lack of diligence
caused by the Department or the person concerned; and (e) the existence of
alternatives to detention (s. 58 IRPA and r. 248 IRP Regulations).

110

I conclude that extended periods of detention under the
certificate provisions of the IRPA do not violate ss. 7 and 12 of the
Charter if accompanied by a process that provides regular opportunities
for review of detention, taking into account all relevant factors, including the
following:

(a)
Reasons for Detention

111

The criteria for signing a certificate are “security,
violating human or international rights, serious criminality or organized
criminality” (s. 77). Detention pursuant to a certificate is justified on the
basis of a continuing threat to national security or to the safety of any
person. While the criteria for release under s. 83 of the IRPA also
include the likelihood that a person will appear at a proceeding or for removal,
a threat to national security or to the safety of a person is a more important
factor for the purpose of justifying continued detention. The more serious the
threat, the greater will be the justification for detention.

(b)
Length of Detention

112

The length of the detention to date is an important factor,
both from the perspective of the individual and from the perspective of national
security.  The longer the period, the less likely that an individual will
remain a threat to security: “The imminence of danger may decline with the
passage of time”:  Charkaoui (Re), 2005 FC 248, at para.
74.  Noël J. concluded that Mr. Charkaoui could be released safely from
detention because his long period of detention had cut him off from whatever
associations with extremist groups he may have had.  Likewise, in Mr.
Harkat’s case, Dawson J. based her decision to release Mr. Harkat in part on the
fact that the long period of detention meant that “his ability to communicate
with persons in the Islamic extremist network has been disrupted”:
Harkat, 2006 FC 628, at para. 86.

113

A longer period of detention would also signify that the
government would have had more time to gather evidence establishing the nature
of the threat posed by the detained person. While the government’s evidentiary
onus may not be heavy at the initial detention review (see above, at para. 93),
it must be heavier when the government has had more time to investigate and
document the threat.

(c)
Reasons for the Delay in Deportation

114

When reviewing detentions pending deportation, judges have
assessed whether the delays have been caused by the detainees or the government:
Sahin, at p. 231.  In reviewing Mr. Almrei’s application for
release, the Federal Court of Appeal stated that a reviewing judge could
“discount, in whole or in part, the delay resulting from proceedings resorted to
by an applicant that have the precise effect of preventing compliance by the
Crown with the law within a reasonable time”: Almrei, 2005 FCA 54, at
para. 58; see also Harkat, 2006 FC 628, at para. 30.  Recourse by
the government or the individual to applicable provisions of the IRPA
that are reasonable in the circumstances and recourse by the individual to
reasonable Charter challenges should not count against either
party.  On the other hand, an unexplained delay or lack of diligence should
count against the offending party.

(d)   Anticipated Future Length of
Detention

115

If there will be a lengthy detention before deportation or
if the future detention time cannot be ascertained, this is a factor that weighs
in favour of release.

(e) Availability of Alternatives to Detention

116

Stringent release conditions, such as those imposed on Mr.
Charkaoui and Mr. Harkat, seriously limit individual liberty. However, they are
less severe than incarceration. Alternatives to lengthy detention pursuant to a
certificate, such as stringent release conditions, must not be a
disproportionate response to the nature of the threat.

117

In other words, there must be detention reviews on a regular
basis, at which times the reviewing judge should be able to look at all factors
relevant to the justice of continued detention, including the possibility of the
IRPA’s detention provisions being misused or abused. Analogous principles
apply to extended periods of release subject to onerous or restrictive
conditions:  these conditions must be subject to ongoing,  regular
review under a review process that takes into account all the above factors,
including the existence of alternatives to the conditions.

118

Do the provisions for review of detention under the
IRPA’s certificate scheme satisfy these requirements?  To answer
this question, we must examine ss. 83(3) and 84(2) in greater detail.

119

Section 84(2) governs the release of foreign
nationals.  It requires the judge to consider whether the “release” of the
detainee would pose a danger to security.  This implies that the judge can
consider terms and conditions that would neutralize the danger.  The judge,
if satisfied that the danger no longer exists or that it can be neutralized by
conditions, may order the release.

120

Section 83(3), which applies to permanent residents, has a
slightly different wording.  It requires the judge to consider not whether
the release would pose a danger as under s. 84(2), but whether the
permanent resident continues to be a danger.  An issue may arise as
to whether this difference in wording affects the ability of the judge to
fashion conditions and hence to order conditional release. In my view, there is
no practical difference between saying a person’s release would be a danger and
saying that the person is a danger. I therefore read s. 83(3), like s. 84(2), as
enabling the judge to consider whether any danger attendant on release can be
mitigated by conditions.

121

On this basis, I conclude that for both foreign nationals
and permanent residents, the IRPA’s certificate scheme provides a
mechanism for review of detention, which permits the reviewing judge to fashion
conditions that would neutralize the risk of danger upon release, and hence to
order the release of the detainee.

122

Reviewing judges have also developed a practice of periodic
review in connection with release procedures: Charkaoui (Re), 2005 FC
248, at para. 86. In the immigration context, such periodic reviews must be
understood to be required by ss. 7 and 12 of the Charter.  The
Federal Court of Appeal has suggested that once a foreign national has brought
an application for release under s. 84(2), he or she cannot bring a new
application except on the basis of (i) new evidence or (ii) a material change in
circumstances since the previous application: Almrei, 2005 FCA 54; see
also, Ahani, at paras. 14-15. Such an interpretation would lead to a
holding that s. 84(2) is inconsistent with ss. 7 and 12; however, since s. 84(2)
has already been found to infringe s. 9 and cannot be saved under s. 1, it is
not necessary to decide this issue.

123

In summary, the IRPA, interpreted in conformity with
the Charter, permits robust ongoing judicial review of the continued need
for and justice of the detainee’s detention pending deportation.  On this
basis, I conclude that extended periods of detention pending deportation under
the certificate provisions of the IRPA do not violate s. 7 or s. 12 of
the Charter, provided that reviewing courts adhere to the guidelines set
out above.  Thus, the IRPA procedure itself is not unconstitutional
on this ground.  However, this does not preclude the possibility of a judge
concluding at a certain point that a particular detention constitutes cruel and
unusual treatment or is inconsistent with the principles of fundamental justice,
and therefore infringes the Charter in a manner that is remediable under
s. 24(1) of the Charter.

124

These conclusions are consistent with English and American
authority.  Canada, it goes without saying, is not alone in facing the
problem of detention in the immigration context in situations where deportation
is difficult or impossible.  Courts in the United Kingdom and the United
States have suggested that detention in this context can be used only during the
period where it is reasonably necessary for deportation purposes:  R. v.
Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.);
Zadvydas.

125

A case raising similar issues is the decision of the House
of Lords in A. v. Secretary of State for the Home Department, [2005] 3
All E.R. 169, [2004] UKHL 56 (“Re A”). This was an appeal brought by nine
foreign nationals who were suspected of involvement in terrorism, but were not
charged with any crime. The United Kingdom government sought to deport them, but
in most cases this was impossible due to a risk of torture. So most of the
individuals were detained at Belmarsh Prison under s. 23 of the
Anti-terrorism, Crime and Security Act 2001 (U.K.), 2001, c. 24. This
provision empowered the government to detain suspected international terrorists
under the provisions governing detention pending deportation, despite the fact
that removal from the United Kingdom was temporarily or indefinitely prevented,
in derogation from art. 5 of the European Convention on Human Rights: see
Chahal.

126

The government claimed that this derogation was necessary to
combat the national security threat posed by Al-Qaeda terrorists. The House of
Lords, by a majority of 8 to 1, accepted that Al-Qaeda terrorism represented a
serious threat to the life of the nation, but seven of the eight Lords who
accepted this premise nevertheless concluded that s. 23 was not strictly
required by the exigencies of the situation. These same seven Lords also
concluded that s. 23 was incompatible with art. 14 of the European Convention
on Human Rights, because of the way it discriminated between nationals and
non-nationals.  The derogation permitting permanent detention of
non-nationals treated them more harshly than nationals.  Absent the
possibility of deportation, it lost its character as an immigration provision,
and hence constituted unlawful discrimination.

127

The finding in Re A of breach of the detention norms
under the European Convention on Human Rights was predicated on the U.K. Act’s
authorization of permanent detention.  The IRPA, unlike the U.K.
legislation under consideration in Re A, does not authorize indefinite
detention and, interpreted as suggested above, provides an effective review
process that meets the requirements of Canadian law.

128

The fairness of the detention review procedure arises as an
independent issue. I concluded above that this procedure, like the certificate
determination procedure, denies the right to a fair hearing and does so in a way
that does not minimally impair the detainee’s rights. For the reasons given
earlier, Parliament must therefore revisit the provisions for detention review
in order to meaningfully protect the procedural rights of detainees.

C.  Do the Certificate and Detention Review Procedures
Discriminate Between Citizens and Non-Citizens, Contrary to Section 15 of the
Charter, and if so, Is the Discrimination Justified Under Section 1 of the
Charter?

129

The appellant Mr. Charkaoui argues that the IRPA
certificate scheme discriminates against non‑citizens, contrary to s. 15(1) of
the Charter. However, s. 6 of the Charter specifically allows for
differential treatment of citizens and non‑citizens in deportation matters: only
citizens are accorded the right to enter, remain in and leave Canada (s.
6(1)).  A deportation scheme that applies to non‑citizens, but not to
citizens, does not, for that reason alone, violate s. 15 of the
Charter:  Chiarelli.

130

It is argued that while this is so, there are two ways in
which the IRPA could, in some circumstances, result in
discrimination.  First, detention may become indefinite as deportation is
put off or becomes impossible, for example because there is no country to which
the person can be deported.  Second, the government could conceivably use
the IRPA not for the purpose of deportation, but to detain the person on
security grounds.   In both situations, the source of the problem is
that the detention is no longer related, in effect or purpose, to the goal of
deportation.   In Re A, the legislation considered by the House
of Lords expressly provided for indefinite detention; this was an important
factor leading to the majority’s holding that the legislation went beyond the
concerns of immigration legislation and thus wrongfully discriminated between
nationals and non-nationals: paras. 54, 81, 134, 157-58, 180 and 229.

131

Even though the detention of some of the appellants has been
long — indeed, Mr. Almrei’s continues — the record on which we must rely does
not establish that the detentions at issue have become unhinged from the state’s
purpose of deportation.  More generally, the answer to these concerns lies
in an effective review process that permits the judge to consider all matters
relevant to the detention, as discussed earlier in these reasons.

132

I conclude that a breach of s. 15 of the Charter has
not been established.

D.      Are the IRPA Certificate
Provisions Inconsistent With the Constitutional Principle  of  the
Rule of Law?

133

The appellant Mr. Charkaoui claims that the unwritten
constitutional principle of the rule of law is infringed by two aspects of the
IRPA scheme: the unavailability of an appeal of the designated judge’s
determination that the certificate is reasonable; and the provision in
s. 82 for the issuance of an arrest warrant by the executive (in the case
of a permanent resident) or for mandatory arrest without a warrant following an
executive decision (in the case of a foreign national).

134

The rule of law incorporates a number of themes. Most
fundamentally, it requires government officials to exercise their authority
according to law, and not arbitrarily: Roncarelli v. Duplessis, [1959]
S.C.R. 121; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721,
at p. 748-49.  It requires the creation and maintenance of an actual order
of positive laws: Reference re Manitoba Language Rights. And it is linked
to the principle of judicial independence: Reference re Remuneration of
Judges of the Provincial Court of Prince Edward Island.

135

Mr. Charkaoui’s claim is based not on any of these themes,
but on the content of the IRPA. But as this Court held in British
Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49,
“it is difficult to conceive of how the rule of law could be used as a basis for
invalidating legislation . . . based on its content” (para. 59). Even if
this dictum leaves room for exceptions, Mr. Charkaoui has not established that
the IRPA should be one of them.

136

First, Mr. Charkaoui argues that the rule of law is violated
by the unavailability of an appeal of the judge’s determination of the
reasonableness of the certificate. But there is no constitutional right to an
appeal (Kourtessis v. M.N.R., [1993] 2 S.C.R. 53); nor can such a right
be said to flow from the rule of law in this context. The Federal Court is a
superior court, not an administrative tribunal: Federal Courts Act,
R.S.C. 1985, c. F‑7, s. 4. Federal Court judges, when reviewing certificates
under the IRPA, have all the powers of Federal Court judges and exercise
their powers judicially. Moreover, the Federal Court of Appeal has reinforced
the legality of the process by holding that it is appropriate to circumvent the
s. 80(3) privative clause where the constitutionality of legislation is
challenged (Charkaoui (Re), 2004 FCA 421, at paras. 47‑50) or where the
named person alleges bias on the part of the designated judge (Zündel, Re
(2004), 331 N.R. 180, 2004 FCA 394).

137

Second, Mr. Charkaoui argues that the rule of law is
violated by the provision for arrest under a warrant issued by the executive (in
the case of a permanent resident) or for automatic detention without a warrant
(in the case of a foreign national). But the rule of law does not categorically
prohibit automatic detention or detention on the basis of an executive decision.
The constitutional protections surrounding arrest and detention are set out in
the Charter, and it is hard to see what the rule of law could add to
these provisions.

IV.   Conclusion

138

The scheme set up under Division 9 of Part 1 of the
IRPA suffers from two defects that are inconsistent with the
Charter.

139

The first is that s. 78(g) allows for the use of
evidence that is never disclosed to the named person without providing adequate
measures to compensate for this non-disclosure and the constitutional problems
it causes.  It is clear from approaches adopted in other democracies, and
in Canada itself in other security situations, that solutions can be devised
that protect confidential security information and at the same time are less
intrusive on the person’s rights.  It follows that the IRPA’s
procedure for the judicial confirmation of certificates and review of
detention violates s. 7 of the Charter and has not been shown to be
justified under s. 1 of the Charter.  I would declare the
procedure to be inconsistent with the Charter, and hence of no force or
effect.

140

However, in order to give Parliament time to amend the law,
I would suspend this declaration for one year from the date of this judgment. If
the government chooses to go forward with the proceedings to have the
reasonableness of Mr. Charkaoui’s certificate determined during the one-year
suspension period, the existing process under the IRPA will apply.
After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other
individuals whose certificates have been deemed reasonable) will lose the
“reasonable” status that has been conferred on them, and it will be open to them
to apply to have the certificates quashed. If the government intends to employ a
certificate after the one-year delay, it will need to seek a fresh determination
of reasonableness under the new process devised by Parliament. Likewise, any
detention review occurring after the delay will be subject to the new process.

141

The second defect is found in s. 84(2) of the IRPA,
which denies a prompt hearing to foreign nationals by imposing a 120-day
embargo, after confirmation of the certificate, on applications for
release.  Counsel for the ministers submitted in oral argument that if this
Court were to find that s. 84(2) violates the Charter, the appropriate
remedy would be to strike s. 84(2) and read foreign nationals into s. 83.
This is a good first step, but it does not provide a complete solution, since s.
83 deals with detention review only until the certificate has been determined
to be reasonable, whereas s. 84(2) deals with detention review after it
has been determined to be reasonable.  Striking s. 84(2) would
therefore leave no provision for review of detention of foreign nationals once
the certificate has been deemed reasonable.

142

Accordingly, I conclude that the appropriate remedy is to
strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike
the words “until a determination is made under subsection 80(1)” from s.
83(2).

143

I would allow the appeals with costs to the appellants, and
answer the constitutional questions as follows:

1.  Do ss. 33 and 77 to 85 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, in whole or in part or through
their combined effect, offend the principle of judicial independence protected
by:

(a)   s. 96 of the Constitution Act, 1867,
or

(b)  the Preamble to the Constitution Act, 1867?

Answer:      No.

2.  Do ss. 33 and 77 to 85 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, in whole or in part or through
their combined effect, offend the constitutional principle of the rule of
law?

Answer:      No.

3.  Do ss. 33 and 77 to 85 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, in whole or in part or through
their combined effect, infringe s. 7 of the Canadian Charter of Rights and
Freedoms?

Answer:      Yes.

4.  If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer:      No.

5.  Do ss. 33 and 77 to 85 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, in whole or in part or through
their combined effect, infringe s. 9 of the Canadian Charter of Rights and
Freedoms?

Answer:      Yes.

6.  If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer:      No.

7.  Do ss. 33 and 77 to 85 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, in whole or in part or through
their combined effect, infringe s. 10 of the Canadian Charter of Rights and
Freedoms?

Answer:      Yes.

8.  If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer:      No.

9.  Do ss. 33 and 77 to 85 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, in whole or in part or through
their combined effect, infringe s. 12 of the Canadian Charter of Rights and
Freedoms?

Answer:      No.

10.  If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer:      It is unnecessary to answer
this question.

11.  Do ss. 33 and 77 to 85 of the Immigration and
Refugee Protection Act, S.C. 2001, c. 27, in whole or in part or through
their combined effect, infringe s. 15 of the Canadian Charter of Rights and
Freedoms?

Answer:      No.

12.  If so, is the infringement a reasonable limit
prescribed by law as can be demonstrably justified in a free and democratic
society under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer:      It is unnecessary to answer
this question.

APPENDIX

Immigration and Refugee
Protection Act, S.C. 2001, c. 27

33. [Rules of interpretation] The facts that constitute
inadmissibility under sections 34 to 37 include facts arising from omissions
and, unless otherwise provided, include facts for which there are reasonable
grounds to believe that they have occurred, are occurring or may occur.

77. (1) [Referral of certificate] The Minister and the
Minister of Public Safety and Emergency Preparedness shall sign a certificate
stating that a permanent resident or a foreign national is inadmissible on
grounds of security, violating human or international rights, serious
criminality or organized criminality and refer it to the Federal Court, which
shall make a determination under section 80.

(2) [Effect of referral] When the certificate is referred, a
proceeding under this Act respecting the person named in the certificate, other
than an application under subsection 112(1), may not be commenced and, if
commenced, must be adjourned, until the judge makes the determination.

78. [Judicial consideration] The following provisions
govern the determination:

(a)  the judge shall hear the matter;

(b)  the judge shall ensure the confidentiality of
the information on which the certificate is based and of any other evidence that
may be provided to the judge if, in the opinion of the judge, its disclosure
would be injurious to national security or to the safety of any person;

(c)   the judge shall deal with all matters as
informally and expeditiously as the circumstances and considerations of fairness
and natural justice permit;

(d)  the judge shall examine the information and any
other evidence in private within seven days after the referral of the
certificate for determination;

(e)   on each request of the Minister or the
Minister of Public Safety and Emergency Preparedness made at any time during the
proceedings, the judge shall hear all or part of the information or evidence in
the absence of the permanent resident or the foreign national named in the
certificate and their counsel if, in the opinion of the judge, its disclosure
would be injurious to national security or to the safety of any person;

(f)   the information or evidence described in
paragraph (e) shall be returned to the Minister and the Minister of
Public Safety and Emergency Preparedness and shall not be considered by the
judge in deciding whether the certificate is reasonable if either the matter is
withdrawn or if the judge determines that the information or evidence is not
relevant or, if it is relevant, that it should be part of the summary;

(g)  the information or evidence described in
paragraph (e) shall not be included in the summary but may be considered
by the judge in deciding whether the certificate is reasonable if the judge
determines that the information or evidence is relevant but that its disclosure
would be injurious to national security or to the safety of any person;

(h)  the judge shall provide the permanent resident
or the foreign national with a summary of the information or evidence that
enables them to be reasonably informed of the circumstances giving rise to the
certificate, but that does not include anything that in the opinion of the judge
would be injurious to national security or to the safety of any person if
disclosed;

(i)   the judge shall provide the permanent
resident or the foreign national with an opportunity to be heard regarding their
inadmissibility; and

(j)   the judge may receive into evidence
anything that, in the opinion of the judge, is appropriate, even if it is
inadmissible in a court of law, and may base the decision on that evidence.

79. (1) [Proceedings suspended] On the request of the
Minister, the permanent resident or the foreign national, a judge shall suspend
a proceeding with respect to a certificate in order for the Minister to decide
an application for protection made under subsection 112(1).

(2) [Proceedings resumed] If a proceeding is suspended under
subsection (1) and the application for protection is decided, the Minister shall
give notice of the decision to the permanent resident or the foreign national
and to the judge, the judge shall resume the proceeding and the judge shall
review the lawfulness of the decision of the Minister, taking into account the
grounds referred to in subsection 18.1(4) of the Federal Courts Act.

80. (1) [Determination that certificate is reasonable]
The judge shall, on the basis of the information and evidence available,
determine whether the certificate is reasonable and whether the decision on the
application for protection, if any, is lawfully made.

(2) [Determination that certificate is not reasonable] The judge
shall quash a certificate if the judge is of the opinion that it is not
reasonable. If the judge does not quash the certificate but determines that the
decision on the application for protection is not lawfully made, the judge shall
quash the decision and suspend the proceeding to allow the Minister to make a
decision on the application for protection.

(3) [Determination not reviewable] The determination of the
judge is final and may not be appealed or judicially reviewed.

81. [Effect of determination — removal order] If a
certificate is determined to be reasonable under subsection 80(1),

(a)  it is conclusive proof that the permanent
resident or the foreign national named in it is inadmissible;

(b)  it is a removal order that may not be appealed
against and that is in force without the necessity of holding or continuing an
examination or an admissibility hearing; and

(c)   the person named in it may not apply for
protection under subsection 112(1).

Detention

82. (1) [Detention of permanent resident] The Minister
and the Minister of Public Safety and Emergency Preparedness may issue a warrant
for the arrest and detention of a permanent resident who is named in a
certificate described in subsection 77(1) if they have reasonable grounds to
believe that the permanent resident is a danger to national security or to the
safety of any person or is unlikely to appear at a proceeding or for removal.

(2) [Mandatory detention] A foreign national who is named in a
certificate described in subsection 77(1) shall be detained without the issue of
a warrant.

83. (1) [Review of decision for detention] Not later than
48 hours after the beginning of detention of a permanent resident under section
82, a judge shall commence a review of the reasons for the continued detention.
Section 78 applies with respect to the review, with any modifications that the
circumstances require.

(2) [Further reviews] The permanent resident must, until a
determination is made under subsection 80(1), be brought back before a judge at
least once in the six‑month period following each preceding review and at any
other times that the judge may authorize.

(3) [Order for continuation] A judge shall order the detention
to be continued if satisfied that the permanent resident continues to be a
danger to national security or to the safety of any person, or is unlikely to
appear at a proceeding or for removal.

84. (1) [Release] The Minister may, on application by a
permanent resident or a foreign national, order their release from detention to
permit their departure from Canada.

(2) [Judicial release] A judge may, on application by a foreign
national who has not been removed from Canada within 120 days after the Federal
Court determines a certificate to be reasonable, order the foreign national’s
release from detention, under terms and conditions that the judge considers
appropriate, if satisfied that the foreign national will not be removed from
Canada within a reasonable time and that the release will not pose a danger to
national security or to the safety of any person.

85. [Inconsistency] In the case of an inconsistency
between sections 82 to 84 and the provisions of Division 6, sections 82 to 84
prevail to the extent of the inconsistency.

Pre‑removal Risk Assessment

Protection

112. (1) [Application for protection] A person in Canada,
other than a person referred to in subsection 115(1), may, in accordance with
the regulations, apply to the Minister for protection if they are subject to a
removal order that is in force or are named in a certificate described in
subsection 77(1).

(2) [Exception] Despite subsection (1), a person may not apply
for protection if

(a)  they are the subject of an authority to proceed
issued under section 15 of the Extradition Act;

(b)  they have made a claim to refugee protection
that has been determined under paragraph 101(1)(e) to be ineligible;

(c)   in the case of a person who has not left
Canada since the application for protection was rejected, the prescribed period
has not expired; or

(d)  in the case of a person who has left Canada
since the removal order came into force, less than six months have passed since
they left Canada after their claim to refugee protection was determined to be
ineligible, abandoned, withdrawn or rejected, or their application for
protection was rejected.

(3) [Restriction] Refugee protection may not result from an
application for protection if the person

(a)  is determined to be inadmissible on grounds of
security, violating human or international rights or organized criminality;

(b)  is determined to be inadmissible on grounds of
serious criminality with respect to a conviction in Canada punished by a term of
imprisonment of at least two years or with respect to a conviction outside
Canada for an offence that, if committed in Canada, would constitute an offence
under an Act of Parliament punishable by a maximum term of imprisonment of at
least 10 years;

(c)   made a claim to refugee protection that
was rejected on the basis of section F of Article 1 of the Refugee Convention;
or

(d)  is named in a certificate referred to in
subsection 77(1).

Principle of Non‑refoulement

115. (1) [Protection] A protected person or a person who
is recognized as a Convention refugee by another country to which the person may
be returned shall not be removed from Canada to a country where they would be at
risk of persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion or at risk of torture or cruel and
unusual treatment or punishment.

(2)
[Exceptions] Subsection (1) does not apply in the case of a person

(a)  who is inadmissible on grounds of serious
criminality and who constitutes, in the opinion of the Minister, a danger to the
public in Canada; or

(b)  who is inadmissible on grounds of security,
violating human or international rights or organized criminality if, in the
opinion of the Minister, the person should not be allowed to remain in Canada on
the basis of the nature and severity of acts committed or of danger to the
security of Canada.

(3) [Removal of refugee] A person, after a determination under
paragraph 101(1)(e) that the person’s claim is ineligible, is to be sent
to the country from which the person came to Canada, but may be sent to another
country if that country is designated under subsection 102(1) or if the country
from which the person came to Canada has rejected their claim for refugee
protection.

Appeals
allowed with costs.

Solicitors for the appellant Charkaoui:  Doyon
Morin, Montréal.

Solicitors for the appellant Almrei:  Jackman &
Associates, Toronto.

Solicitors for the appellant Harkat:  Copeland,
Duncan, Toronto.

Solicitors for the respondents:  Deputy Attorney
General of Canada, Ottawa; Attorney General of Canada, Toronto and
Vancouver.

Solicitor
for the intervener the Attorney General of Ontario:  Attorney General
of Ontario, Toronto.

Solicitors for the intervener Amnesty
International:  McCarthy Tétrault, Ottawa.

Solicitors for the intervener the British Columbia Civil
Liberties Association:  Gregory P. DelBigio and Jason B. Gratl,
Vancouver.

Solicitors for the intervener the Canadian Bar
Association:  Waldman & Associates, Toronto.

Solicitors for the intervener the Canadian Civil Liberties
Association:  Greenspan, White, Toronto.

Solicitor
for the interveners the Canadian Council for Refugees, the African Canadian
Legal Clinic, the International Civil Liberties Monitoring Group and the
National Anti‑Racism Council of Canada:  African Canadian Legal
Clinic, Toronto.

Solicitors for the intervener the Canadian Arab
Federation:  Roy Elliott Kim O’Connor, Toronto.

Solicitors for the interveners the Canadian Council on
American‑Islamic Relations and the Canadian Muslim Civil Liberties
Association:  Bakerlaw, Toronto.

Solicitors for the intervener the Criminal Lawyers’
Association (Ontario):  Sack Goldblatt Mitchell, Toronto.

Solicitors for the intervener the Federation of Law Societies
of Canada:  Blake, Cassels & Graydon, Toronto.

Solicitors for the interveners the University of Toronto,
Faculty of Law — International Human Rights Clinic, and Human Rights
Watch:  Paliare Roland Rosenberg Rothstein, Toronto.

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