Harkat (Re)

Harkat (Re)

The Court held that the certificate against Mohamed Harkat is reasonable and certified two questions for the Federal Court of Appeal: (1) whether specified IRPA provisions breach s.7 by denying a fair hearing and if so whether any breach is justified under s.1; and (2) whether human sources enjoy a class-based privilege and whether the ‘need to know’ exception for Special Advocates as articulated in earlier Harkat rulings was correctly formulated. The Court rejected certification of numerous proposed questions as they were fact-specific, arose from the judge’s reasons rather than the issues of the case, or were not of general importance or determinative of the appeal.

Citation
2011 FC 75
Parties
Named Person: Mohamad Harkat; Respondents/ministers: The Ministers (Citizenship and Immigration; Public Safety); Intervenor: Special Advocates
Court
Federal Court
Jurisdiction
Canada
Judgment Date
21 January 2011
Procedural Posture
Immigration — Security Certificate Under the Immigration and Refugee Protection Act / Federal Court Judgment Certifying Questions for Appeal and Ruling on Reasonableness of Certificate
Outcome
Certificate against Mohamed Harkat declared reasonable; two questions certified for appeal; Special Advocates permitted to participate on human source privilege question.
Legal Topics
Security Certificates, Human Source Privilege, Charter Section 7 and Section 1, Disclosure Duties and Destruction of Notes, Special Advocates Regime, Certification of Questions to Appellate Court
Source Language
English
Immigration Law Constitutional Law National Security Law Evidence Law Administrative Law Security Certificates Human Source Privilege Charter Section 7 and Section 1 +3 more

Case Brief

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Parties

Mohamad Harkat

Named Person

The Ministers (Citizenship and Immigration; Public Safety)

Respondents/ministers

Special Advocates

Intervenor

Procedural Posture

Immigration — Security Certificate Under the Immigration and Refugee Protection Act / Federal Court Judgment Certifying Questions for Appeal and Ruling on Reasonableness of Certificate

Legal Issues

  1. 1 Whether specified IRPA provisions breach s.7 of the Charter by denying a fair hearing and if any breach is saved by s.1
  2. 2 Whether the judicial process can be fair where findings are based on information not disclosed to the named person
  3. 3 Whether human sources benefit from a class-based privilege and the correct scope of a ‘need to know’ exception for Special Advocates

Ratio Decidendi

The Court held that the certificate against Mohamed Harkat is reasonable and certified two questions for the Federal Court of Appeal: (1) whether specified IRPA provisions breach s.7 by denying a fair hearing and if so whether any breach is justified under s.1; and (2) whether human sources enjoy a class-based privilege and whether the ‘need to know’ exception for Special Advocates as articulated in earlier Harkat rulings was correctly formulated. The Court rejected certification of numerous proposed questions as they were fact-specific, arose from the judge’s reasons rather than the issues of the case, or were not of general importance or determinative of the appeal.

Court Disposition

Certificate against Mohamed Harkat declared reasonable; two questions certified for appeal; Special Advocates permitted to participate on human source privilege question.

Orders

  • The certificate signed pursuant to subsection 77(1) against Mohamed Harkat is reasonable.
  • Certified question 1: Do sections 77(2), 78, 83(1)(c)-(e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b) of the IRPA breach section 7 of the Charter of Rights and Freedoms by denying the person concerned the right to a fair hearing? If so, are the provisions justified under section 1?