National Security Certificate Procedure: ss76-87

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 Minister’s decision is reasonable, not correct…prima 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 interpretation…not 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 C’s 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