The BC Civil Liberties Association is one of the country’s pre-eminent civil liberties organizations. The BCCLA has played an important and prominent role on almost every significant national civil liberties issue for over 40 years. The BCCLA has intervened before this Court on numerous occasions, and believes that its oral and written submissions have been of some assistance.
In relation to the Security Certificate regime under the Immigration and Refugee Protection Act (“IRPA”), the BCCLA testified before the Senate Special Committee on the Anti-Terrorism Act and made representation to the House of Commons Subcommittee on Public Safety and National Security.
It is the submission of the BCCLA that its mandate and historical involvement in making submissions to inquiries, lobbying, litigating, and civilian oversight constitute a significant interest in these appeals.
The statutory imperatives of the IRPA that enable security certificate hearings are fundamentally under tension. Section 78(i) requires the judge to provide the detainee with an opportunity to be heard regarding their inadmissibility but s.78(e) requires the judge to hear information or evidence taken in the absence of the detainee. Ex parte hearings are, on the face of it, incompatible with the detainee having a full and fair opportunity to be heard.
Section 78(h) requires the judge to provide the detainee with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate but s.78(g) prevents the judge from disclosing information to the detainee when disclosure would be injurious to national security or to the safety of any person. As the Harkat case shows, the Federal Court has shown itself prepared in some cases to hear evidence not disclosed to the detainee or the public, and make critical findings based on that evidence. Such detainees could not in good faith be said to be “reasonably informed” of the evidence.