Charkaoui, Re, (2007) 358 N.R. 1 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: February 23, 2007
• Jurisdiction: Canada (Federal)
• Citations: (2007), 358 N.R. 1 (SCC);2007 SCC 9;[2007] 1 SCR 350;EYB 2007-114995;[2007] ACS no 9;276 DLR (4th) 594;[2007] SCJ No 9 (QL);JE 2007-455;152 CRR (2d) 17;54 Admin LR (4th) 1;154 ACWS (3d) 363;358 NR 1;44 CR (6th) 1;59 Imm LR (3d) 1

Charkaoui, Re (2007), 358 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2007] N.R. TBEd. FE.004

Adil Charkaoui (appellant) and Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness (respondents) and Attorney General of Ontario, Amnesty International, British Columbia Civil Liberties Association, Canadian Bar Association, Canadian Civil Liberties Association, Canadian Council for Refugees, African Canadian Legal Clinic, International Civil Liberties Monitoring Group, National Anti-Racism Council of Canada, Canadian Arab Federation, Canadian Council on American-Islamic Relations, Canadian Muslim Civil Liberties Association, Criminal Lawyers' Association (Ontario), Federation of Law Societies of Canada, University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch (interveners)

(30762)

Hassan Almrei (appellant) v. Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness (respondents) and Attorney General of Ontario, Amnesty International, British Columbia Civil Liberties Association, Canadian Bar Association, Canadian Civil Liberties Association, Canadian Council for Refugees, African Canadian Legal Clinic, International Civil Liberties Monitoring Group, National Anti-Racism Council of Canada, Canadian Council on American-Islamic Relations, Canadian Muslim Civil Liberties Association, Criminal Lawyers' Association (Ontario), Federation of Law Societies of Canada, University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch (interveners)

(30929)

Mohamed Harkat (appellant) v. Minister of Citizenship and Immigration, Minister of Public Safety and Emergency Preparedness and Attorney General of Canada (respondents) and Attorney General of Ontario, Amnesty International, British Columbia Civil Liberties Association, Canadian Bar Association, Canadian Civil Liberties Association, Canadian Council for Refugees, African Canadian Legal Clinic, International Civil Liberties Monitoring Group, National Anti-Racism Council of Canada, Canadian Council on American-Islamic Relations, Canadian Muslim Civil Liberties Association, Criminal Lawyers' Association (Ontario), Federation of Law Societies of Canada, University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch (interveners)

(31178; 2007 SCC 9; 2007 CSC 9)

Indexed As: Charkaoui, Re

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

February 23, 2007.

Summary:

Re Charkaoui

In May 2003, Charkaoui, a permanent resident, was arrested and placed under detention pursuant to a security certificate issued under the Immigration and Refugee Protection Act (IRPA) for alleged membership in the Osama bin Laden terrorist network and involvement in terrorist activities, etc. Proceedings ensued under the IRPA to determine the reasonableness of the certificate and of his continued detention as well as with regard to disclosure of information. During the course of proceedings, Charkaoui filed a motion before the judge designated to preside over the reasonableness hearing for a determination of: (1) whether such a designated judge had jurisdiction to decide constitutional questions; and (2) 40 questions relating to the constitutional validity of ss. 33 and 77 to 85 of the IRPA.

The Federal Court, in a decision reported 253 F.T.R. 22, dismissed the application, holding that the designated judge had jurisdiction to deal with the constitutional questions. The court answered all the constitutional questions in the negative. Charkaoui appealed.

The Federal Court of Appeal, in a decision reported 328 N.R. 201, dismissed the appeal. The court affirmed that the designated judge had jurisdiction to hear and decide the constitutional questions. However, Charkaoui was unable to demonstrate that the procedure for reviewing the reasonableness of the security certificate issued against him, the procedure for reviewing the reasons for the continuing detention or the procedure for reviewing protection of information under ss. 77 et seq. of the IRPA did not meet the requirements of the Charter, the Bill of Rights or Canada's international obligations. Therefore the court upheld the conclusions of the designated judge. Charkaoui appealed again. (He was released on conditions in 2005.)

The Supreme Court of Canada allowed the appeal. The court held that the scheme set up under Division 9 of Part 1 (i.e., ss. 33 and 77 to 85), of the IRPA suffered from two defects that were inconsistent with the Charter. The first being that s. 78(g) of the IRPA allowed for the use of evidence that was never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it caused. Thus, the IRPA's procedure for the judicial confirmation of certificates and review of detention violated s. 7 of the Charter and was not shown to be justified under s. 1 of the Charter. The court therefore declared the procedure to be inconsistent with the Charter and hence of no force or effect. The court suspended its declaration for one year to give Parliament time to amend the law. The court held that the second defect was found in s. 84(2) of the IRPA, which denied a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release. The court held that the appropriate remedy was to strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike the words "until a determination is made under subsection 80(1)" from s. 83(2). The court also found that s. 12 of the Charter was not shown to have been violated since a meaningful detention review process offered relief against the possibility of indefinite detention and that there was no breach of the s. 15 equality right. The court answered the constitutional questions raised in this appeal accordingly (see paragraph 143).

Re Almrei

Since 2001, Almrei, a foreign national, was being detained on a security certificate, alleging his involvement with the Osama Bin Laden terrorist network and with a forgery ring with international connections. The certificate was found to be reasonable, a danger opinion was given and a removal order had been issued. He sought judicial release under s. 84(2) of the Immigration and Refugee Protection Act (IRPA). Section 84(2) provided that "a judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national's release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person".

The Federal Court, in a decision reported 249 F.T.R. 53, dismissed Almrei's application to be released from detention. The court was not satisfied that he would not be removed from Canada within a reasonable time and opined that his release could pose a danger to national security or to the safety of any person. Almrei appealed.

The Federal Court of Appeal, in a decision reported 330 N.R. 73, dismissed the appeal. Almrei appealed again. (He remained in detention.)

The Supreme Court of Canada allowed the appeal for the reasons given in the Charkaoui summary above.

Harkat, Re

Since 2002 Harkat, a foreign national, was detained on the basis of a security certificate because of alleged terrorist activities. The certificate was referred to the Court under s. 77(1) of the Immigration and Refugee Protection Act (IRPA) for determination as to whether the certificate was reasonable. In the context of the reasonableness hearing, Harkat challenged the constitutionality of the applicable legislation (IRPA, ss. 78-80).

The Federal Court, in a decision reported 261 F.T.R. 52, determined that the certificate was reasonable and dismissed Harkat's challenge to the constitutional validity of the applicable legislation. Harkat appealed.

The Federal Court of Appeal, in a decision reported 340 N.R. 286, dismissed the appeal. Harkat appealed again. (He was released on conditions in 2006.)

The Supreme Court of Canada allowed the appeal for the reasons given in the Charkaoui summary above.

Aliens - Topic 1558

Exclusion and expulsion - Power to detain and deport - Minister's certificate (Immigration and Refugee Protection Act) - General - The Supreme Court of Canada summarized the scheme set out in the Immigration and Refugee Protection Act whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - See paragraphs 2 to 10.

Aliens - Topic 1558

Exclusion and expulsion - Power to detain and deport - Minister's certificate (Immigration and Refugee Protection Act) - General - [See first Aliens - Topic 1561 ].

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - Charkaoui, a permanent resident, and Harkat and Almrei, foreign nationals (collectively the appellants) had been detained since 2003, 2002 and 2001, respectively, under the IRPA security certificate scheme - The detentions were based on allegations that the individuals constituted a threat to the security of Canada by reason of involvement in terrorist activities - Charkaoui and Harkat were released on conditions in 2005 and 2006 respectively, but Almrei remained in detention and was advised that he would be deported to Algeria - The appellants argued that the procedure under the IRPA for determining the reasonableness of the certificates (ss. 33 and 77 to 85) infringed s. 7 of the Charter - The Supreme Court of Canada, held that "the scheme set up under Division 9 of Part 1 of the IRPA suffers from two defects that are inconsistent with the Charter. The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes. It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on the person's rights. It follows that the IRPA's procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter" - The court declared the procedure to be inconsistent with the Charter, and hence of no force or effect, although the court suspended the declaration for one year to give Parliament time to amend the law - The court held that the second defect was found in s. 84(2) of the IRPA, which denied a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release - The court held that the appropriate remedy was to strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike the words "until a determination is made under subsection 80(1)" from s. 83(2) - See paragraphs 138 to 142.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - An issue arose as to whether the procedure under the IRPA for determining the reasonableness of the certificates met with the principles of fundamental justice as required by s. 7 of the Charter - The Supreme Court of Canada noted that the overarching principle of fundamental justice applicable here was that before the state could detain people for significant periods of time, it had to accord them a fair judicial process - The court noted that the IRPA process included a hearing - The process consisted of two phases, one executive and one judicial - There was no hearing at the executive phase that resulted in issuance of the certificate - However, this was followed by a review before a judge, where the named person was afforded a hearing - Thus, the first requirement of a fair judicial process, that of a hearing, was met - The court stated that questions arose, however, on the other requirements, namely: that the judge be independent and impartial; that the judge make a judicial decision based on the facts and the law; and finally, that the named person be afforded an opportunity to meet the case put against him or her by being informed of that case and being allowed to question or counter it - The court concluded that the IRPA scheme met the first requirement of independence and impartiality, but failed to satisfy the second and third requirements, which were interrelated in this case - See paragraphs 28 to 31.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - The IRPA scheme provided for the certificate to be reviewed by a "designated judge", a judge of the Federal Court of Canada - An issue arose as to whether, from an institutional perspective, the role assigned to designated judges under the IRPA led to a perception that independence and impartiality were compromised - The Supreme Court of Canada reviewed the role of designated judges - The court concluded that, on its face, the IRPA process was designed to preserve the independence and impartiality of the designated judge, as required by s. 7 of the Charter - Properly followed by judges committed to a searching review, the process could not be said to have compromised the perceived independence and impartiality of the designated judge - See paragraphs 33 to 47.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - The IRPA scheme provided for the certificate to be reviewed by a "designated judge", a judge of the Federal Court of Canada - An issue arose as to whether decisions made by these designated judges were based on facts and law such as to be in compliance with the principles of fundamental justice under s. 7 of the Charter - The Supreme Court of Canada stated that because a designated judge was not afforded the power to independently investigate all relevant facts that true inquisitorial judges enjoy and since the person named in a security certificate was not given a full picture of the case to meet, the judge could not rely on the parties to present missing evidence - Therefore, at the end of the day, one could not be sure that the judge was exposed to the whole factual picture - Similar concerns arose with respect to the requirement that the decision be based on the law - Without knowledge of the information put against him or her, the named person might not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence - Although the named person was permitted to make legal representations, without disclosure and full participation throughout the process, he or she might not be in a position to put forward a full legal argument - See paragraphs 48 to 52.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - The IRPA scheme provided for the certificate to be reviewed by a "designated judge", a judge of the Federal Court of Canada - Under that scheme, the person named in the certificate could be deprived of access to some or all of the information put against him which would deny that person the ability to know the case he had to meet - The named person was provided with a summary of the information by the designated judge, but that summary could not include anything that, in the opinion of the judge, could be injurious to national security or to the safety of any person (i.e., the judge could decide the case on information that the named person or his counsel could never see) - An issue arose as to whether the IRPA procedures provided an adequate opportunity for the person named in the certificate to state his case and know the case he had to meet and to challenge the information relied on by the Ministers - The Supreme Court of Canada held that the "case to meet principle" had not been satisfied - The court stated that "here that principle has not merely been limited; it has been effectively gutted ..." - See paragraphs 53 to 64.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - In the context of determining whether the procedure under the IRPA for determining the reasonableness of the certificates infringed s. 7 of the Charter, the Supreme Court of Canada noted that in some contexts, substitutions for full disclosure might permit compliance with s. 7 of the Charter - However, "in the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here" - See paragraph 61.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - An issue arose as to whether the procedure under the IRPA for determining the reasonableness of the certificates using designated judges met with the principles of fundamental justice as required by s. 7 of the Charter - The Supreme Court of Canada, per McLachlin, C.J.C., stated that "in the IRPA, an attempt has been made to meet the requirements of fundamental justice essentially through one mechanism - the designated judge charged with reviewing the certificate of inadmissibility and the detention. To Parliament's credit, a sincere attempt has been made to give the designated judge the powers necessary to discharge the role in an independent manner, based on the facts and the law. Yet, the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government's case. This, in turn, undermines the judge's ability to come to a decision based on all the relevant facts and law. Despite the best efforts of judges of the Federal Court to breathe judicial life into the IRPA procedure, it fails to assure the fair hearing that s. 7 of the Charter requires before the state deprives a person of life, liberty or security of the person. I therefore conclude that the IRPA's procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter. The same conclusion necessarily applies to the detention review procedures under ss. 83 and 84 of the IRPA" - See paragraph 65.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention and deportation of a permanent resident or foreign national deemed to be a threat to national security - An issue arose as to whether the procedure under the IRPA for determining the reasonableness of the certificates by using designated judges met with the principles of fundamental justice as required by s. 7 of the Charter - The Supreme Court of Canada held that the IRPA's procedure for determining whether a certificate was reasonable did not conform to the principles of fundamental justice as embodied in s. 7 of the Charter - The same conclusion necessarily applied to the detention review procedures under ss. 83 and 84 of the IRPA - The court held also that this Charter violation was not justified under s. 1 of the Charter - While the protection of Canada's national security and related intelligence sources constituted a pressing and substantial objective and the IRPA's provisions regarding the non-disclosure of evidence at certificate hearings were rationally connected to this objective, the means chosen by Parliament (i.e., a certificate procedure leading to detention and deportation of noncitizens on the ground that they posed a threat to Canada's security), more than minimally impaired the rights of noncitizens - See paragraphs 66 to 87.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention and deportation of a permanent resident or foreign national deemed to be a threat to national security - Almrei, a foreign national, argued that detention under the IRPA was arbitrary and contrary to ss. 9 and 10(c) of the Charter with respect to foreign nationals, first because it permitted their detention without warrant and without regard to their personal circumstances, and second because it prevented review until 120 days after the certificate was confirmed - In both respects, foreign nationals were treated differently than permanent residents, who were entitled to an automatic review within 48 hours - The Supreme Court of Canada rejected Almrei's argument that automatic detention of foreign nationals was arbitrary because it was effected without regard to the personal circumstances of the detainee; however, the court agreed that the lack of review for foreign nationals for 120 days violated the guarantee against arbitrary detention in s. 9 of the Charter, a guarantee which encompassed the right to prompt review of detention under s. 10(c) of the Charter - This violation of ss. 9 and 10(c) could not saved by s. 1 - See paragraphs 88 to 94.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention and deportation of a permanent resident or foreign national deemed to be a threat to national security - This scheme led to extended periods of detention in certain situations - An issue arose as to whether these extended periods of detention violated s. 12 of the Charter (i.e., the guarantee against cruel and unusual treatment) - The Supreme Court of Canada held that the IRPA did not impose cruel and unusual treatment within the meaning of s. 12 of the Charter because, although detentions could be lengthy, the IRPA, properly interpreted, provided a process for reviewing detention and obtaining release and for reviewing and amending conditions of release, where appropriate - The court noted that this finding did not preclude the possibility of a judge concluding at a certain point that a particular detention constituted cruel and unusual treatment or was inconsistent with the principles of fundamental justice - See paragraphs 95 to 128.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention and deportation of a permanent resident or foreign national deemed to be a threat to national security - The Supreme Court of Canada held that a deportation scheme that applied to noncitizens, but not to citizens, was not for that reason alone contrary to s. 15 of the Charter - The court noted that s. 6 of the Charter specifically allowed for differential treatment of citizens and noncitizens in deportation matters - The court held that while some detentions under the IRPA security certificate scheme had been lengthy, no breach of s. 15 had been established - The court stated that "... the record on which we must rely does not establish that the detentions at issue have become unhinged from the state's purpose of deportation. More generally, the answer to these concerns lies in an effective review process that permits the judge to consider all matters relevant to the detention, as discussed earlier in these reasons" - See paragraphs 129 to 132.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Immigration and Refugee Protection Act (IRPA), ss. 77-81 - The Immigration and Refugee Protection Act (IRPA) provided for a scheme (ss. 33 and 77 to 85) whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention and deportation of a permanent resident or foreign national deemed to be a threat to national security - The Supreme Court of Canada rejected an argument that the content of the IRPA violated the rule of law - See paragraphs 133 to 137.

Aliens - Topic 1561.1

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention pending reasonableness review - Immigration and Refugee Protection Act (IRPA), ss. 82-83 - [See all Aliens - Topic 1561 ].

Aliens - Topic 1561.2

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Detention - Judicial release - Immigration and Refugee Protection Act (IRPA), s. 84 - [See all Aliens - Topic 1561 ].

Aliens - Topic 1562

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Summary of information - [See fifth Aliens - Topic 1561 ].

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - Immigration and Refugee Protection Act (IRPA), s. 78 - [See first to eighth Aliens - Topic 1561 ].

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - The Supreme Court of Canada noted that in Medovarski v. MCI (SCC 1995), the court cited Chiarelli v. MCI (SCC 1992), that "[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada" and noted that court added: 'Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7'" - The court stated that "Medovarski thus does not stand for the proposition that proceedings related to deportation in the immigration context are immune from s. 7 scrutiny. While the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter, some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so" - See paragraphs 16 to 17.

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - Security certificates - [See first and seventh Aliens - Topic 1561 ].

Civil Rights - Topic 1012

Discrimination - Immigration - Security certificate scheme - [See eleventh Aliens - Topic 1561 ].

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - Security certificates - [See first Aliens - Topic 1561 and first Civil Rights - Topic 660.2 ].

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - The Supreme Court of Canada stated that "section 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice - the basic principles that underlie our notions of justice and fair process. These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security ... Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake ... The procedures required to meet the demands of fundamental justice depend on the context ... Societal interests may be taken into account in elucidating the applicable principles of fundamental justice ... Unlike s. 1, s. 7 is not concerned with whether a limit on life, liberty or security of the person is justified, but with whether the limit has been imposed in a way that respects the principles of fundamental justice. Hence, it has been held that s. 7 does not permit 'a free-standing inquiry ... into whether a particular legislative measure "strikes the right balance" between individual and societal interests in general' ... Nor is 'achieving the right balance ... itself an overarching principle of fundamental justice' ... to hold otherwise 'would entirely collapse the s. 1 inquiry into s. 7' ... This in turn would relieve the state from its burden of justifying intrusive measures, and require the Charter complainant to show that the measures are not justified. ... The question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of s. 7. The inquiry then shifts to s. 1 of the Charter, at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest" - See paragraphs 19 to 22.

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - The Immigration and Refugee Protection Act (IRPA) provided for a scheme whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - In the context of determining whether procedure under the IRPA for determining the reasonableness of the certificates infringed s. 7 of the Charter, the Supreme Court of Canada stated that "while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage of the analysis. If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of s. 7. That is the bottom line" - See paragraph 23 - The court continued: "The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be" - See paragraph 27.

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - The Immigration and Refugee Protection Act (IRPA) provided for a scheme whereby a certificate of inadmissibility could be issued by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness leading to the detention of a permanent resident or foreign national deemed to be a threat to national security - In the context of determining whether procedure under the IRPA for determining the reasonableness of the certificates infringed s. 7 of the Charter, the Supreme Court of Canada stated that "the overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process ... This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance" - See paragraphs 28 and 29.

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - The Supreme Court of Canada stated that "although the scope of the required hearing can vary according to context ... a hearing must include '[a]n independent judicial phase and an impartial judge' ... This requirement is also consistent with the unwritten constitutional principle of judicial independence ... It has also been called 'the cornerstone of the common law duty of procedural fairness' ... and is necessary in order to ensure judicial impartiality ... It is not enough that the judge in fact be independent and impartial; fundamental justice requires that the judge also appear to be independent and impartial. This flows from the fact that judicial independence has two facets: actual independence and perceived independence ..." - See paragraph 32.

Civil Rights - Topic 3106

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Procedural fairness - Scope of - [See second and seventh Aliens - Topic 1561 ].

Civil Rights - Topic 3180

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Fair hearing - [See second and seventh Aliens - Topic 1561 and third and fourth Civil Rights - Topic 3106 ].

Civil Rights - Topic 3187

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to independent and impartial tribunal - [See second and third Aliens - Topic 1561 and third and fourth Civil Rights - Topic 3106 ].

Civil Rights - Topic 3188

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to make full answer and defence - [See second, fifth and sixth Aliens - Topic 1561 and third Civil Rights - Topic 3106 ].

Civil Rights - Topic 3190

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Right to decision based on the law and the facts - [See fourth Aliens - Topic 1561 ]

Civil Rights - Topic 3192

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure contrary to fundamental justice - [See second and seventh Aliens - Topic 1561 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See ninth Civil Rights - Topic 1561 ].

Civil Rights - Topic 3831

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Immigration, deportation, sponsorship, etc. - [See tenth Aliens - Topic 1561 ].

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - [See eleventh Aliens - Topic 1561 ].

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See second and seventh Aliens - Topic 1561 and first, second, third and fourth Civil Rights - Topic 3106 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See eighth and ninth Aliens - Topic 1561 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Supreme Court of Canada stated that "the Canadian Charter of Rights and Freedoms does not guarantee rights absolutely. The state is permitted to limit rights - including the s. 7 guarantee of life, liberty and security - if it can establish that the limits are demonstrably justifiable in a free and democratic society. This said, violations of s. 7 are not easily saved by s. 1. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Lamer J. (as he then was) stated, for the majority: 'Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.' The rights protected by s. 7 - life, liberty, and security of the person - are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests. It follows that violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under s. 1: G. (J.). Nevertheless, the task may not be impossible, particularly in extraordinary circumstances where concerns are grave and the challenges complex." - See paragraph 66.

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - [See first Aliens - Topic 1561 ].

Civil Rights - Topic 8380.2

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Declaration of statute invalidity - [See first Aliens - Topic 1561 ].

Civil Rights - Topic 8380.14

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Severance of portion of statute or section - [See first Aliens - Topic 1561 ].

Civil Rights Topic 8467

Canadian Charter of Rights and Freedoms - Interpretation - Interrelationship among Charter rights - [See first Civil Rights - Topic 3106 ].

Civil Rights - Topic 8547

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Principles of fundamental justice (incl. what constitute) - [See first, second, third and fourth Civil Rights - Topic 3106 ].

Constitutional Law - Topic 5.3

General principles - Unwritten constitutional principles, constitutionalism and the rule of law - [See twelfth Aliens - Topic 1561 ].

Constitutional Law - Topic 5.3

General principles - Unwritten constitutional principles, constitutionalism and the rule of law - The Supreme Court of Canada stated that the rule of law incorporated a number of themes - The court stated that "most fundamentally, it requires government officials to exercise their authority according to law, and not arbitrarily: Roncarelli v. Duplessis, [1959] S.C.R. 121; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 748-49. It requires the creation and maintenance of an actual order of positive laws: Reference re Manitoba Language Rights. And it is linked to the principle of judicial independence: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island" - See paragraph 134.

Constitutional Law - Topic 2507.1

Determination of validity of statutes or acts - General principles - Reading in - [See first Aliens - Topic 1561 ].

Courts - Topic 314

Judges - Independence of judiciary - Institutional independence - [See third Aliens - Topic 1561 ].

Cases Noticed:

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 14].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 15].

Jaballah, Re (2006), 301 F.T.R. 102; 2006 FC 1230, refd to. [para. 15].

Medovarski v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 539; 339 N.R. 1; 2005 SCC 51, refd to. [para. 16].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 16].

United States of America et al. v. Ferras, [2006] 2 S.C.R. 77; 351 N.R. 1; 214 O.A.C. 326; 2006 SCC 33, refd to. [para. 20].

R. v. Jackpine (R.), [2006] 1 S.C.R. 554; 347 N.R. 201; 210 O.A.C. 200; 2006 SCC 15, refd to. [para. 20].

R. v. Rodgers - see R. v. Jackpine (R.).

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 20].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 20].

Mount Sinai Hospital Center et al. v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281; 271 N.R. 104; 2001 SCC 41, refd to. [para. 20].

R. v. Malmo-Levine (D.) et al., [2003] 3 S.C.R. 571; 314 N.R. 1; 191 B.C.A.C. 1; 314 W.A.C. 1; 179 C.C.C.(3d) 417; 2003 SCC 74, refd to. [para. 20].

Dehghani v. Minister of Employment and Immigration, [1993] 1 S.C.R. 1053; 150 N.R. 241, refd to. [para. 25].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 28].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 32].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 32].

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 248; 322 N.R. 205; 199 B.C.A.C. 45; 326 W.A.C. 45; 2004 SCC 42, refd to. [para. 32].

Lippé et autres v. Québec (Procureur général) et autres, [1991] 2 S.C.R. 114; 128 N.R. 1; 39 Q.A.C. 241, refd to. [para. 32].

R. v. Lippé - see Lippé et autres v. Québec (Procureur général) et autres.

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 32].

Jaballah, Re (2004), 247 F.T.R. 68; 2004 FC 299, refd to. [para. 38].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 39].

R. v. Taubler (1987), 20 O.A.C. 64 (C.A.), refd to. [para. 45].

R. v. Turlon (1989), 32 O.A.C. 396; 49 C.C.C.(3d) 186 (C.A.), refd to. [para. 45].

New Brunswick Provincial Court Judges' Association et al. v. New Brunswick (Minister of Justice), [2005] 2 S.C.R. 286; 336 N.R. 201; 367 A.R. 300; 346 W.A.C. 300; 288 N.B.R.(2d) 202; 751 A.P.R. 202; 201 O.A.C. 293; 2005 SCC 44, refd to. [para. 47].

Dr. Bonham's Case, Re (1610), 8 Co. Rep. 113b; 77 E.R. 646, refd to. [para. 48].

Ontario (Minister of Correctional Services) v. Goodis et al., [2006] 2 S.C.R. 32; 350 N.R. 154; 214 O.A.C. 377; 2006 SCC 31, refd to. [para. 57].

Ruby v. Royal Canadian Mounted Police et al., [2002] 4 S.C.R. 3; 295 N.R. 353; 2002 SCC 75, refd to. [para. 58].

Ruby v. Canada (Solicitor General) - see Ruby v. Royal Canadian Mounted Police et al.

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 66].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 67].

R. v. Malik (R.S.) et al., [2005] B.C.T.C. 350; 2005 BCSC 350, refd to. [para. 78].

Chahal v. United Kingdom (1996), 23 E.H.R.R. 413 (Eur. Ct. Hum. Rts.), refd to. [para. 80].

M. v. Secretary of State for the Home Department, [2004] 2 All E.R. 863; [2004] EWCA Civ  324, refd to. [para. 84].

R. v. Chaulk and Morrissette, [1990] 3 S.C.R. 1303; 119 N.R. 161; 69 Man.R.(2d) 161, refd to. [para. 85].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 89].

Rasul v. Bush (2004), 542 U.S. 466, refd to. [para. 90].

Zadvydas v. Davis (2001), 533 U.S. 678, refd to. [para. 90].

Slivenko v. Latvia (2004), 39 E.H.R.R. 24, refd to. [para. 90].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 95].

R. v. Wiles (P.N.), [2005] 3 S.C.R. 895; 343 N.R. 201; 240 N.S.R.(2d) 1; 763 A.P.R. 1; 2005 SCC 84, refd to. [para. 95].

Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214; 85 F.T.R. 99 (T.D.), refd to. [para. 96].

Soering v. United Kingdom (1989), 11 E.H.R.R. 439, refd to. [para. 98].

Ahani v. Canada (Minister of Citizenship and Immigration) et al. (2000), 184 F.T.R. 320; 24 Admin. L.R.(3d) 171 (F.C.A.), refd to. [para. 100].

R. v. Governor of Durham Prison; Ex parte Singh, [1984] 1 All E.R. 983 (Q.B.), refd to. [para. 124].

A et al. v. United Kingdom (Secretary of State for the Home Department), [2004] N.R. Uned. 234; [2005] 3 All E.R. 169; [2004] UKHL 56, refd to. [para. 125].

Roncarelli v. Duplessis, [1959] S.C.R. 121, refd to. [para. 134].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 134].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2005] 2 S.C.R. 473; 339 N.R. 129; 218 B.C.A.C. 1; 359 W.A.C. 1; 2005 SCC 49, refd to. [para. 135].

Kourtessis et al. v. Minister of National Revenue et al., [1993] 2 S.C.R. 53; 153 N.R. 1; 27 B.C.A.C. 81; 45 W.A.C. 81, refd to. [para. 136].

Zündel, Re (2004), 331 N.R. 180; 2004 FCA 394, refd to. [para. 136].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 66]; sect. 6(1) [para. 129]; sect. 7 [para. 12]; sect. 9, sect. 10(c) [para. 88]; sect. 12 [para. 95]; sect. 15(1) [para. 129].

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 221, art. 5 [para. 90]; art. 14 [para. 126].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 33, sect. 77(1), sect. 77(2), sect. 78, sect. 79(1), sect. 79(2), sect. 80(1), sect. 80(2), sect. 80(3), sect. 81, sect. 82(1), sect. 82(2), sect. 83(1), sect. 83(2), sect. 83(3), sect. 84(1), sect. 84(2), sect. 85, sect. 112(1), sect. 112(2), sect. 112(3), sect. 115(1), sect. 115(2), sect. 115(3) [Appendix].

Authors and Works Noticed:

Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Mahar Arar, A New Review Mechanism for the RCMP's National Security Activities (2006), pp. 439, 562 to 565 [para. 26].

Canada, Commission of Inquiry into the Actions of Canadian Officials in Relation to Mahar Arar,  Report of the Events Relating to Mahar Arar: Analysis and Recommendations (2006), p. 30 [para. 26].

Canada, Security Intelligence Review Committee, Annual Report 1988-1989 (1989), p. 64 [para. 73].

Canada, Department of Citizenship and  Immigration, Clause by Clause Analysis, Immigration and Refugee Protection Act (2001), p. 72 [para. 4].

Hogg, Peter W., Constitutional Law of Canada (3rd Ed. 1992) (1999 Update, Release 1), vol. 2, p. 46-5 [para. 89].

Hugessen, James K., Watching the Watchers: Democratic Oversight (2002), pp. 384 [paras. 36, 50]; 385 [para. 50].

Rankin, Murray, The Security Intelligence Review Committee: Reconciling National Security with Procedural Fairness (1990), 3 C.J.A.L.P. 173, pp. 179 [para. 72]; 184 [para. 73]; 185 [para. 74].

Roach, Kent, Ten Ways to Improve Canadian Anti-Terrorism Law (2005), 51 Crim. L.Q. 102, p. 120 [para. 82].

Stewart, J. Hamish, Is Indefinite Detention of Terrorist Suspects Really Constitutional? (2005), 54 U.N.B.L.J. 235, p. 242 [para. 18].

United Kingdom, House of Commons Constitutional Affairs Committee Report on The Operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates, vol. 1, 7th Report, Sess. 2004-05 (2005), para. 52 [para. 83].

Counsel:

Johanne Doyon and Julius H. Grey, for the appellant, Charkaoui (30762);

John Norris and Barbara Jackman, for the appellant, Almrei (30929);

Paul D. Copeland and Matt Webber, for the appellant, Harkat (31178);

Bernard Laprade, Normand Lemyre and Daniel Latulippe, for the respondents, Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness (30762);

Urszula Kaczmarczyk, Donald A. MacIntosh and Cheryl D. Mitchell, for the respondents, Minister of Citizenship and Immigration and Minister of Public and Emergency Preparedness (30929);

Bernard Laprade, Urszula Kaczmarczyk and Donald A. MacIntosh, for the respondents, Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness and Attorney General of Canada (31178);

John Corelli and Ian Bulmer, for the intervener, the Attorney General of Ontario (30762 and 31178);

Shaun Nakatsuru and Michael Doi, for the intervener, the Attorney General of Ontario (30929);

Michael Bossin, Owen M. Rees, Vanessa Gruben and Thomas G. Conway, for the intervener, Amnesty International;

Gregory P. DelBigio and Jason B. Gratl, for the intervener, the British Columbia Civil Liberties Association;

Lorne Waldman, for the intervener, Canadian Bar Association;

Edward L. Greenspan, Q.C., for the intervener, the Canadian Civil Liberties Association;

Sharryn Aiken, Marie Chen and Mary Eberts, for the interveners, the Canadian Council for Refugees, the African Canadian Legal Clinic, the International Civil Liberties Monitoring Group and the National Anti-Racism Council of Canada;

R. Douglas Elliott and Gabriel R. Fahel, for the intervener, the Canadian Arab Federation;

David Baker and Faisal Bhabha, for the interveners, the Canadian Council on American-Islamic Relations and the Canadian Muslim Civil Liberties Association;

Michael Code, for the intervener, the Criminal Lawyers' Association (Ontario);

Neil Finkelstein and Catherine Beagan Flood, for the intervener, the Federation of Law Societies of Canada;

Sujit Choudhry and Robert A. Centa, for the interveners, the University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch.

Solicitors of Record:

Doyon Morin, Montréal, Quebec, for the appellant, Charkaoui;

Jackman & Associates, Toronto, Ontario, for the appellant, Almrei;

Copeland, Duncan, Toronto, Ontario, for the appellant, Harkat;

Deputy Attorney General of Canada, Ottawa, Ontario, for the respondents, Minister of Citizenship and Immigration, Minister of Public Safety and Emergency Preparedness and Attorney General of Canada (30762 and 31178);

Attorney General of Canada, Toronto, Ontario, and Vancouver, British Columbia, for the respondents, Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness (30929);

Attorney General of Ontario, Toronto, Ontario, for the intervener, The Attorney General of Ontario;

McCarthy Tétrault, Ottawa, Ontario, for the intervener, Amnesty International;

Gregory P. DelBigio and Jason B. Gratl, Vancouver, British Columbia, for the intervener, the British Columbia Civil Liberties Association;

Waldman & Associates, Toronto, Ontario, for the intervener, the Canadian Bar Association;

Greenspan, White, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

African Canadian Legal Clinic, Toronto, Ontario, for the interveners, the Canadian Council for Refugees, the African Canadian Legal Clinic, the International Civil Liberties Monitoring Group and the National Anti-Racism Council of Canada;

Roy Elliott Kim O'Connor, Toronto, Ontario, for the intervener, the Canadian Arab Federation;

Bakerlaw, Toronto, Ontario, for the interveners, the Canadian Council on American - Islamic Relations and the Canadian Muslim Civil Liberties Association;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario);

Blake, Cassels & Graydon, Toronto, Ontario, for the intervener, the Federation of Law Societies of Canada;

Paliare Roland Rosenberg Rothstein, Toronto, Ontario, for the interveners, the University of Toronto, Faculty of Law - International Human Rights Clinic and Human Rights Watch.

These appeals were heard on June 13 to 15, 2006, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The following decision was delivered for the court, on February 23, 2007, by McLachlin, C.J.C., in both official languages.