Harkat, Re, (2005) 261 F.T.R. 52 (FC)

• Judge: Dawson, J.
• Court: Federal Court (Canada)
• Case Date: March 22, 2005
• Jurisdiction: Canada (Federal)
• Citations: (2005), 261 F.T.R. 52 (FC);2005 FC 393

Harkat, Re (2005), 261 F.T.R. 52 (FC)

MLB headnote and full text

Temp. Cite: [2005] F.T.R. TBEd. AP.002

In The Matter Of a certificate signed pursuant to subsection 77(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the "Act")

And In The Matter Of the referral of that certificate to the Federal Court of Canada pursuant to subsection 77(1), sections 78 and 80 of the Act

And In The Matter Of Mohamed Harkat

(DES-4-02; 2005 FC 393)

Indexed As: Harkat, Re

Federal Court

Dawson, J.

March 22, 2005.

Summary:

On February 24, 1997, Harkat was found to be a Convention refugee. Thereafter, on December 10, 2002, a Minister's certificate claiming that Harkat was inadmissible because of terrorist activities, 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 determined that the certificate was reasonable and dismissed Harkat's challenge to the constitutional validity of the applicable legislation.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - Harkat was the subject of a security certificate issued under the Immigration and Refugee Protection Act (IRPA) - During the hearing respecting the reasonableness of the certificate, Harkat alleged that ss. 78 to 80 of the IRPA violated the principles of fundamental justice (Charter, s. 7) - Alternatively, Harkat sought the appointment of a special advocate to represent him during any of the ex parte in camera proceedings - The Federal Court dismissed the constitutional challenge - The court pointed out that the Federal Court of Appeal had authoritatively decided that the impugned legislative scheme was constitutionally sound and that it conformed with s. 7 of the Charter - Further, the Court of Appeal had found that appointment of an amicus curiae was not necessarily required to provide a hearing in accordance with the principles of fundamental justice - In any event, previously in these proceedings, the court had decided that there was nothing in the particular circumstances of this case justifying appointment of an amicus curiae - See paragraphs 23 to 34.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - The Federal Court set out the legal principles applicable in determining the reasonableness of a security certificate issue under the Immigration and Refugee Protection Act - See paragraphs 35 to 47.

Aliens - Topic 1561

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Reasonableness - On February 24, 1997, Harkat was found to be a Convention refugee - On December 10, 2002, a Minister's security certificate claiming that Harkat was inadmissible on security grounds because he was involved in terrorism was issued under the Immigration and Refugee Protection Act (IRPA), ss. 34(1)(c) and 34(1)(f) - The matter was referred for a determination of the reasonableness of the certificate under s. 77(1) of the IRPA - The Federal Court determined that the certificate was reasonable - There were reasonable grounds to believe that prior to arriving in Canada Harkat had engaged in terrorism by supporting terrorist activity and had lied to Canadian officials about his involvement with terrorists and his travels to Afghanistan - While in Canada he had been in contact with individuals known to be involved in Islamic militant activities - Harkat was therefore inadmissible - See paragraphs 102 to 144.

Aliens - Topic 1564

Exclusion and expulsion - Power to detain and deport - Minister's certificate - Review - Disclosure - In the context of a reasonableness hearing respecting a security certificate, the Federal Court discussed the need to keep security information confidential and the principles relevant to the assessment of confidential information - See paragraphs 80 to 101.

Civil Rights - Topic 1325

Security of the person - Immigration - Deportation, removal or exclusion - Security certificate - Reasonableness hearing - [See first Aliens - Topic 1561 ].

Civil Rights - Topic 3193

Trials - Due process, fundamental justice and fair hearings - Administrative and noncriminal proceedings - Procedure not contrary to fundamental justice - [See first Aliens - Topic 1561 ].

Cases Noticed:

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

Charkaoui, Re (2004), 328 N.R. 201; 2004 FCA 421, refd to. [para. 26].

Ahani v. Canada (1996), 201 N.R. 233 (F.C.A.), refd to. [para. 29].

Chiarelli v. Minister of Employment and Immigration, [1992] 1 S.C.R. 711; 135 N.R. 161, refd to. [para. 35].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 35].

Canada (Minister of Citizenship and Immigration) v. Singh (Iqbal) (1998), 151 F.T.R. 101 (T.D.), refd to. [para. 39].

Chiau v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 297; 265 N.R. 121 (F.C.A.), refd to. [para. 41].

Zündel, Re (2005), 259 F.T.R. 36 (F.C.), refd to. [para. 43].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 44].

Poshteh v. Canada (Minister of Citizenship and Immigration) (2005), 331 N.R. 129; 2005 FCA 85, refd to. [para. 45].

R. v. Shayler, [2002] 2 All E.R. 477 (H.L.), refd to. [para. 81].

Halperin v. Central Intelligence Agency (1980), 629 F.2d 144 (D.C.C.C.A.), refd to. [para. 81].

Murray v. United Kingdom (1995), 19 E.H.R.R. 193 (E.C.H.R.), refd to. [para. 81].

Vereniging Weekblad Bluf! v. Netherlands (1995), 20 E.H.R.R. 189 (E.C.H.R.), refd to. [para. 81].

Canada (Minister of Citizenship and Immigration) v. Singh (Igbal) (1998), 153 F.T.R. 183 (T.D.), refd to. [para. 85].

Almrei v. Canada (Minister of Citizenship and Immigration), [2004] F.C.R. 327; 249 F.T.R. 53 (F.C.), affd. (2005), 330 N.R. 73; 2005 FCA 54, refd to. [para. 93].

Charkaoui, Re, [2004] 3 F.C.R. 32; 253 F.T.R. 22 (F.C.), refd to. [para. 93].

R. v. Sheppard (C.), [2002] 1 S.C.R. 869; 284 N.R. 342; 211 Nfld. & P.E.I.R. 50; 633 A.P.R. 50, refd to. [para. 103].

Statutes Noticed:

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 33, sect. 34, sect. 76, sect. 77, sect. 78, sect. 79, sect. 80, sect. 81 [Appendix].

Counsel:

Paul Copeland and Matthew Webber, for Mohamed Harkat;

James Mathieson and Michael W. Dale, for the Ministers.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the Ministers;

Copeland, Duncan, Toronto, Ontario, for Mohamed Harkat.

This matter was heard in Ottawa, Ontario, on July 21, 23 and 25, 2003, and October 25-28 and December 6-9, 2004, before Dawson, J., of the Federal Court, who delivered the following decision on March 22, 2005.