Harkat (Re)

Harkat (Re)

The Federal Court held that the challenged IRPA provisions (77(2), 78, 83(1)(c)-(e),(h),(i), 85.4(2), 85.5(b)) are constitutional: summaries plus the special advocate regime provide a substantive and meaningful substitute for full disclosure that preserves the principles of fundamental justice under s.7 while protecting national security; in the alternative any limits are justified under s.1 (they serve pressing national security objectives, are rationally connected, minimally impair rights through judicial oversight and are proportionate).

Citation
2010 FC 1242
Parties
Applicant / Named Person: Mohamed Harkat; Respondent / Crown: Ministers (Attorney General of Canada; Minister of Public Safety and Emergency Preparedness; Minister of Citizenship and Immigration)
Court
Federal Court
Jurisdiction
Canada
Judgment Date
9 December 2010
Procedural Posture
Immigration Security Certificate — Judicial Review / Constitutional Challenge / Reasonableness Hearing and Constitutional Motion Decided (judgment)
Outcome
Motion challenging constitutionality of IRPA provisions dismissed; provisions upheld as constitutional (alternatively saved by s.1)
Legal Topics
Security Certificates, Disclosure of National Security Information, Special Advocates, Section 7 Charter (right to Life, Liberty and Security), Section 1 Charter (oakes Test), Admissibility of Evidence, Detention Review
Source Language
English
Immigration Law Constitutional Law National Security Law Evidence Law Security Certificates Disclosure of National Security Information Special Advocates Section 7 Charter (right to Life, Liberty and Security) +3 more

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Parties

Mohamed Harkat

Applicant / Named Person

Ministers (Attorney General of Canada; Minister of Public Safety and Emergency Preparedness; Minister of Citizenship and Immigration)

Respondent / Crown

Procedural Posture

Immigration Security Certificate — Judicial Review / Constitutional Challenge / Reasonableness Hearing and Constitutional Motion Decided (judgment)

Legal Issues

  1. 1 Do sections 77(2), 78, 83(1)(c)-(e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b) of IRPA violate s.7 Charter (right to life, liberty and security) by denying the named person the right to know and answer the case?
  2. 2 Are the IRPA disclosure/special advocate protections meaningful substantive substitutes to satisfy principles of fundamental justice?
  3. 3 Are communication restrictions on special advocates (prior judicial authorization) overly broad and unconstitutional?

Ratio Decidendi

The Federal Court held that the challenged IRPA provisions (77(2), 78, 83(1)(c)-(e),(h),(i), 85.4(2), 85.5(b)) are constitutional: summaries plus the special advocate regime provide a substantive and meaningful substitute for full disclosure that preserves the principles of fundamental justice under s.7 while protecting national security; in the alternative any limits are justified under s.1 (they serve pressing national security objectives, are rationally connected, minimally impair rights through judicial oversight and are proportionate).

Court Disposition

Motion challenging constitutionality of IRPA provisions dismissed; provisions upheld as constitutional (alternatively saved by s.1)

Orders

  • Motion challenging constitutionality of sections 77(2), 78, 83(1)(c)-(e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b) of IRPA dismissed (see para. 237)
  • Parties invited to submit serious questions of general importance under s.82.3 of IRPA within 15 days and have 5 days to comment on submitted questions