National Security Certificate Procedure: ss7687

1
National Security Certificate Procedure ss76-87

• Protection of Information !!
• information security or criminal intelligence
• judge ACJ of FC, or other designate
• basic procedure 2 ministers refer a certificate
  relating to the serious inadmissibility of a FN
  or PR to designated judges of the Federal Court
  who then determine if it is reasonable
• following a s.80 determination that it is rble,
  conclusive proof of inadmissibility and an
  enforceable removal order

2
Procedure

• confidentiality, informality and expedience
• judge examines information in private
• person in question receives a summary (test
  injurious to the national security or to the
  safety of any person)
• person has an opportunity to be heard
• any appropriate evidence is okay even if
  inadmissible
• may not be appealed or judicially reviewed

3
Important Overlaps with Other things

• detention provisions special here, FN and PR
  distinction, fewer detention reviews, law leans
  towards continued detention
• may release for departure from Canada, may
  release if unlikely to be removed w. appropriate
  conditions and if not a dgr to nat.sec. or person
• intersection with PRRA process suspension of
  PRRA process, some determinations could end PRRA
  (s. 115), s.80 wraps up an includes JR of PRRA
• possibility of protecting this information
  extends to IAD and JR proceedings

4
Re Ikhlef FC 2002

• high profile case
• good eg of how the secret info process works
• test is whether the Ministers decision is
  reasonable, not correctprima facie evidence
  negativing the fact does not change this onus
• the fact itself need not be established, the
  burden of proof is significantly lightened (para
  18)
• normal stds of proof from criminal law do not
  apply to immigration law generally or to these
  proceedings specifically
• direct proof of a specific threat sets the bar
  too high in contemporary terrorism circumstances

5
Charkaoui v Canada FCA 2003

• challenge to appeal bar in for security detention
  (ss. 80 vs 82 and 83)
• current provisions
• resolved based on sttty interpretationnot right
  of appeal from a security certificate detention
  review decision
• reasons for detention and for certificate near
  identical
• cannot read one paragraph isolation
• key objective of IRPA is protecting Cs security
• follows logically from no appeal to the
  determination
• comparison with detention review procedures
  before the Immigration Division
• impractical evidential problems ( Qs of fact)
• a multiple overlapping provisions cd not have
  been intended

6
Zundel v Canada FCA 2004

• issue whether decision to keep evidence secret
  subject to appeal to the FCA
• part of a multi-pronged attack by Z on the
  security certificate
• held that the secrecy decision is a step on the
  way to the final determination and thus is
  covered by the no appeal bar in subs.80(3)
  Parliament evinced an intention of finality of
  proceedings
• reliance on 1997 Tobiass decision and on
  Charkaoui
• one main purpose of IRPA to streamline imm
  process decrease time it take to determine
  s-one ineligible to remain in Canada