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Minister of Citizenship and Immigration et al. v. Harkat et al.

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This case focuses on the security certificate process which is used by the government to detain or remove non-citizens believed to be a threat to national security. At issue is the constitutionality of the current security certificate regime and the use of special advocates as a substitute for full disclosure in open court. In 2007, the Court struck down a previous version of the regime for being unconstitutional.

The BCCLA is an intervener in the case and argued that the current security certificate process fails to provide adequate procedural protections and therefore violates the Canadian Charter of Rights and Freedoms. A person named in a security certificate faces prolonged or indefinite detention or removal from Canada. Yet, despite these serious consequences, the government can rely on secret evidence – never seen by the person in question – in the hearing to validate security certificates. The BCCLA will argue that a hearing process which allows a person to be detained indefinitely on the basis of “secret” evidence is unacceptable. The Association also argued that, even with the appointment of a “special advocate” to represent the interests of the person, the liberty interests at stake are so important that the current process is unconstitutional.

The Supreme Court of Canada rendered its decision in May 2014, upholding the security certificate regime as constitutional. In doing so, however, it emphasized the importance of the judge’s role in ensuring the fairness of the security certificate proceedings. The Court clarified that judges hearing security certificate cases have a duty to ensure that individuals named on the security certificate be provided with an “incompressible minimum amount of disclosure” to know and meet the case against them, and to be adequately informed about all the evidence on the record. Importantly, it found that the security certificate scheme “must be interpreted as precluding the Minister from bringing a case in respect of which the named person cannot be kept reasonably informed,” such that the Minister “must withdraw the information or evidence whose non-disclosure prevents the named person from being reasonably informed.”

The Supreme Court also recognized that judges hearing security certificate cases will have to take an active role in ensuring that only truly sensitive information is withheld, and to “ensure throughout the proceedings that the Minister does not cast too wide a net with his claims of confidentiality.” The Court made clear that the judge has a duty to be both “vigilant and skeptical” when it comes to government claims of confidentiality, noting “government’s tendency to exaggerate claims of national security confidentiality.”

The BCCLA is represented by Nader Hasan and Gerald Chan of Ruby Shiller Chan Hasan Barristers.

The BCCLA’s argument in this case is available here >>

The Supreme Court of Canada’s judgment is available here >>