Canada (Citizenship and Immigration) v. Harkat

Canada (Citizenship and Immigration) v. Harkat

The amended IRPA security-certificate scheme is constitutional when interpreted to require an incompressible minimum of disclosure so the named person can be 'reasonably informed' and when designated judges actively ensure fairness; CSIS human sources are not protected by a judicially-created class informer privilege (although the IRPA regime generally protects source identity and special advocates receive full disclosure of closed materials), destruction of CSIS operational materials breached disclosure obligations under s.7 but exclusion of summaries was not required where admission did not render the proceeding unfair, special advocates are not entitled as of right to interview or...

Citation
2014 SCC 37
Parties
Appellants/respondents on Cross Appeal: Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness; Respondent/appellant on Cross Appeal: Mohamed Harkat; Intervener: Attorney General of Ontario; Intervener: British Columbia Civil Liberties Association; Intervener: Canadian Council of Criminal Defence Lawyers; Intervener: Canadian Civil Liberties Association; Intervener: Canadian Bar Association; Intervener: Canadian Association of Refugee Lawyers; Intervener: Canadian Council for Refugees; Intervener: International Civil Liberties Monitoring Group; Intervener: Canadian Council on American-Islamic Relations (now National Council of Canadian Muslims); Intervener: Amnesty International; Intervener: Criminal Lawyers’ Association (Ontario); Intervener: Special Advocates
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
14 May 2014
Procedural Posture
Appeal From Federal Court of Appeal / Supreme Court of Canada Judgment (appeal Allowed in Part; Cross Appeal Dismissed)
Outcome
Appeal allowed in part; cross-appeal dismissed; IRPA scheme upheld as constitutional; designated judge’s finding that the security certificate was reasonable reinstated; no stay of proceedings granted.
Legal Topics
Security Certificate Scheme, Special Advocates, Informer Privilege, Procedural Fairness Under S.7 Charter, Remedies Under S.24(1) Charter, Judicial Review Reasonableness
Source Language
English
Constitutional Law Immigration Law Evidence Law Administrative Law National Security Law Security Certificate Scheme Special Advocates Informer Privilege +3 more

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Parties

Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness

Appellants/respondents on Cross Appeal

Mohamed Harkat

Respondent/appellant on Cross Appeal

Attorney General of Ontario

Intervener

British Columbia Civil Liberties Association

Intervener

Canadian Council of Criminal Defence Lawyers

Intervener

Canadian Civil Liberties Association

Intervener

Canadian Bar Association

Intervener

Canadian Association of Refugee Lawyers

Intervener

Canadian Council for Refugees

Intervener

International Civil Liberties Monitoring Group

Intervener

Canadian Council on American-Islamic Relations (now National Council of Canadian Muslims)

Intervener

Amnesty International

Intervener

Criminal Lawyers’ Association (Ontario)

Intervener

Special Advocates

Intervener

Procedural Posture

Appeal From Federal Court of Appeal / Supreme Court of Canada Judgment (appeal Allowed in Part; Cross Appeal Dismissed)

Legal Issues

  1. 1 Whether the IRPA security-certificate scheme violates s.7 of the Charter by denying a fair process
  2. 2 Whether CSIS human sources are protected by a class informer privilege and whether they can be cross-examined
  3. 3 Whether summaries of intercepted conversations must be excluded where original source materials were destroyed

Ratio Decidendi

The amended IRPA security-certificate scheme is constitutional when interpreted to require an incompressible minimum of disclosure so the named person can be 'reasonably informed' and when designated judges actively ensure fairness; CSIS human sources are not protected by a judicially-created class informer privilege (although the IRPA regime generally protects source identity and special advocates receive full disclosure of closed materials), destruction of CSIS operational materials breached disclosure obligations under s.7 but exclusion of summaries was not required where admission did not render the proceeding unfair, special advocates are not entitled as of right to interview or...

Court Disposition

Appeal allowed in part; cross-appeal dismissed; IRPA scheme upheld as constitutional; designated judge’s finding that the security certificate was reasonable reinstated; no stay of proceedings granted.

Orders

  • Appeal allowed in part
  • Cross-appeal dismissed