Charkaoui v. Canada (Citizenship and Immigration)

Charkaoui v. Canada (Citizenship and Immigration)

The IRPA certificate procedure infringes s.7 because secrecy and lack of an independent agent to protect the named person’s interests prevent the person from knowing and meeting the case and undermine the judge’s ability to decide on facts and law; the infringement is not justified under s.1 because less intrusive alternatives (eg. special counsel/special advocates or SIRC‑style procedures) exist; s.84(2)’s 120‑day embargo on review for foreign nationals breaches ss.9 and 10(c); s.12 and s.15 were not breached on the record; remedy: declaration of invalidity suspended one year, strike/modify s.84(2) and read foreign nationals into s.83 with consequential textual amendment.

Citation
2007 SCC 9
Parties
Appellant: Adil Charkaoui; Appellant: Hassan Almrei; Appellant: Mohamed Harkat; Respondents: Minister of Citizenship and Immigration; Minister of Public Safety and Emergency Preparedness; Attorney General of Canada; Intervener: Attorney General of Ontario; Intervener: Amnesty International; Intervener: British Columbia Civil Liberties Association; Intervener: Canadian Bar Association; Intervener: Canadian Civil Liberties Association; Interveners: Canadian Council for Refugees; African Canadian Legal Clinic; International Civil Liberties Monitoring Group; National Anti‑Racism Council of Canada; Intervener: Canadian Arab Federation; Interveners: Canadian Council on American‑Islamic Relations; Canadian Muslim Civil Liberties Association; Intervener: Criminal Lawyers' Association (Ontario); Intervener: Federation of Law Societies of Canada; Interveners: University of Toronto, Faculty of Law — International Human Rights Clinic; Human Rights Watch
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
23 February 2007
Procedural Posture
Immigration, Constitutional Challenge on Appeal to the Supreme Court of Canada / Judgment on Appeal (supreme Court of Canada) Appeals Allowed With Costs to Appellants (2007 SCC 9)
Outcome
Appeals allowed. Court declared IRPA certificate judicial review procedure inconsistent with the Charter and of no force or effect; declaration suspended one year; s.84(2) struck and foreign nationals to be read into s.83 with textual amendment; appeals allowed with costs to appellants.
Legal Topics
Security Certificates, Detention Review, Fair Hearing, Procedural Fairness, Arbitrary Detention, Cruel and Unusual Treatment, Equality (s.15), Rule of Law, Special Advocates, Section 1 Justification
Source Language
English
Constitutional Law Immigration Law Administrative Law National Security Law Security Certificates Detention Review Fair Hearing Procedural Fairness +6 more

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Parties

Adil Charkaoui

Appellant

Hassan Almrei

Appellant

Mohamed Harkat

Appellant

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

Respondents

Attorney General of Ontario

Intervener

Amnesty International

Intervener

British Columbia Civil Liberties Association

Intervener

Canadian Bar Association

Intervener

Canadian Civil Liberties Association

Intervener

Canadian Council for Refugees; African Canadian Legal Clinic; International Civil Liberties Monitoring Group; National Anti‑Racism Council of Canada

Interveners

Canadian Arab Federation

Intervener

Canadian Council on American‑Islamic Relations; Canadian Muslim Civil Liberties Association

Interveners

Criminal Lawyers' Association (Ontario)

Intervener

Federation of Law Societies of Canada

Intervener

University of Toronto, Faculty of Law — International Human Rights Clinic; Human Rights Watch

Interveners

Procedural Posture

Immigration, Constitutional Challenge on Appeal to the Supreme Court of Canada / Judgment on Appeal (supreme Court of Canada) Appeals Allowed With Costs to Appellants (2007 SCC 9)

Legal Issues

  1. 1 Does IRPA certificate procedure infringe s.7 by denying knowledge of the case to meet?
  2. 2 Are detention review provisions (s.83/s.84) consistent with s.7, s.9, s.10(c) and s.12?
  3. 3 Does s.84(2) denying prompt review to foreign nationals violate s.9/s.10(c)?

Ratio Decidendi

The IRPA certificate procedure infringes s.7 because secrecy and lack of an independent agent to protect the named person’s interests prevent the person from knowing and meeting the case and undermine the judge’s ability to decide on facts and law; the infringement is not justified under s.1 because less intrusive alternatives (eg. special counsel/special advocates or SIRC‑style procedures) exist; s.84(2)’s 120‑day embargo on review for foreign nationals breaches ss.9 and 10(c); s.12 and s.15 were not breached on the record; remedy: declaration of invalidity suspended one year, strike/modify s.84(2) and read foreign nationals into s.83 with consequential textual amendment.

Court Disposition

Appeals allowed. Court declared IRPA certificate judicial review procedure inconsistent with the Charter and of no force or effect; declaration suspended one year; s.84(2) struck and foreign nationals to be read into s.83 with textual amendment; appeals allowed with costs to appellants.

Orders

  • Declaration that IRPA procedure for judicial confirmation of certificates (ss.33 and 77‑85 insofar as they permit reliance on undisclosed material without adequate substitute) violates s.7 and is of no force or effect; declaration suspended for one year from judgment date
  • S.84(2) of IRPA struck down