What is a Security Certificate?
The security certificate process within the Immigration and Refugee Protection Act (IRPA) is an immigration proceeding for the purpose of removing from Canada non-Canadians who are inadmissible for reasons of national security, violating human or international rights, or involvement in organized or serious crimes. Only permanent residents or foreign nationals can be subject to a security certificate.
The Government of Canada issues a security certificate only in exceptional circumstances where the information to determine the case cannot be disclosed without endangering the safety of a person (for example, by putting a witness’ life in danger) or national security (for example, by revealing investigation techniques).
The security certificate process has been in place since 1978. Since 1991, only twenty-seven individuals have been subject to certificate proceedings.
In 2014, in its Harkat decision, the Supreme Court of Canada found the framework to protect classified information in immigration proceedings to be consistent with the Canadian Charter of Rights and Freedoms.
The Government of Canada takes very seriously its obligation to safeguard public safety and national security. It is also committed to respecting individual rights under the Charter and to uphold international human rights obligations.
How Security Certificate Proceedings Work
The Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration review and sign security certificates. It is a statement by both Ministers that the individual is inadmissible to Canada. Once signed, the certificate is referred to the Federal Court for determining if is reasonable or not. If found reasonable by the Federal Court, it becomes an enforceable removal order. This Federal Court determination can be appealed to the Federal Court of Appeal. Further, leave to appeal can also be sought from the Supreme Court of Canada. The protection of classified information continues throughout.
The judge hears the person named before ruling on the certificate. The person may also call witnesses to testify in his/her defence.
The Ministers may issue a warrant for the arrest of the individual if they have reasonable grounds to believe that the individual is a danger to national security or to the safety of any person, or is unlikely to appear for the proceedings or for their removal of Canada. The Federal Court is also responsible for reviewing the individual’s detention after 48 hours and at least once every six months, to determine whether detention is still required or whether the individual could be released on conditions. However, a person subject to a security certificate is free to leave Canada at any time.
The IRPA allows the federal government to use, and a judge to consider, classified information in closed proceedings. The information in these proceedings must be kept confidential because its release would injure national security or would endanger the safety of a person.
The judge appoints a special advocate that protects the interests of the named person in the closed portions of the hearings on the reasonableness of the security certificate and the reviews of detention or conditions of release.
Information that forms part of security certificates is information:
- that is relevant to the case,
- on which the case is based, and
- that allows the person to be reasonably informed of the case.
An unclassified summary of the case is provided to the person to inform them and their counsel of the case against them. The summary must include sufficient information to reasonably inform the person of the circumstances giving rise to the certificate, but it does not include anything that, in the opinion of the judge, would be injurious to national security or the safety of any person if disclosed. As the Supreme Court indicated in the Harkat case (2014), ultimately, it is the judge that is the arbiter of whether the person has been enabled to be reasonably informed.
The new appeal and judicial review provision offers another opportunity for the Government to ask the Court to protect classified information. The Ministers can now appeal or have the Court review orders for public disclosure during the proceedings. In the past, an appeal or judicial review was available only at the end of a proceeding and even if the Ministers sought and won an appeal at the end of the proceeding, it could be too late, as the information could have been disclosed publicly and the injury to national security may have already occurred, or a person’s safety may have already been endangered.
How Special Advocates Work
The role of specials advocates, who are security-cleared, private lawyers independent of government, is to protect the interests of a permanent resident or foreign national in closed hearings held in the absence of that person or their lawyer.
During the closed proceedings, the special advocate has the ability to challenge the Government of Canada's claim that the disclosure of information used to support the security certificate would be injurious to national security or would endanger the safety of any person. The special advocate is authorized to cross-examine witnesses and make submissions to the Court.
Before the special advocate sees the classified information, he/she can communicate freely with the person subject to a security certificate and their public counsel. Once the special advocate sees the classified information upon which the certificate is based, the judge must authorize the communications to protect the classified information.
In a situation where some relevant information in the Minister’s possession is not relied upon to make the Ministers’ case, the Ministers can ask the Court to be exempted from providing that classified information to the special advocate. The judge may grant this exemption only if he/she is satisfied that the information does not enable the permanent resident or foreign national to be reasonably informed of the Minister’s case. In making a decision on the exemption, the judge can consult the special advocate as need be. This exemption aims to provide another protection for classified information, while establishing a fair process that is subject to judicial discretion.
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