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Constitutionality of Security Certificates: Harkat, Charkaoui, Almrei

In the context of security certificates, this appeal will define the constitutional limits of the power of the government executive and judiciary to rely on secret evidence to the prejudice of interests at the core of a non-citizen’s right to life, liberty and security. The BCCLA believes that the security certificate deportation apparatus need not be declared of no force and effect, provided the enabling provisions of the Immigration and Refugee Protection Act are interpreted to comport with constitutional values that ensure the integrity of our legal process and the public perception thereof.

The BCCLA says that a demonstrated threat to national security may justify judicial reliance on secret evidence to deport non-citizens on a case-by-case basis, provided (a) the ministers are unable to deport the non-citizen without recourse to secret evidence, (b) the phrase “would be injurious to national security” is rigorously defined to minimize withholding of information, closed hearings and reliance on confidential information and (c) the phrases “reasonably informed” and “an opportunity to be heard” are defined to require the participation of security cleared lawyers at closed hearings to preserve the integrity of the proceedings by challenging the purported need for confidentiality and testing the evidence supporting deportation.