Minister of Citizenship and Immigration, et al. v. Mohamed Harkat, et al.
(Federal Court) (Civil) (By Leave)
Canadian charter - civil - Constitutional law, Right to life, liberty and security of person, Fundamental justice (s. 7), Immigration Law, Evidence, Remedy, Standard of review.
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Charter of Rights - Constitutional law - Right to life, liberty and security of person - Fundamental justice - Fair hearing - Immigration law - Evidence - Security certificate issued against Mohamed Harkat stating that he is inadmissible to Canada on grounds of security - Whether sections 77(2), 78, 83(1)(c) to (e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b) of the Immigration and Refugee Protection Act breach section 7 of the Charter and if so, whether the provisions are justified under s. 1 of the Charter - Whether the designated judge’s conclusion that there was no abuse of process and no violation of s. 7 of the Charter should be restored - Whether the designated judge properly assessed the evidence - Whether CSIS informers in security certificate proceedings benefit from a class privilege Canadian Charter of Rights and Freedoms, ss. 1, 7 - Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 77(2), 78, 83(1)(c) to (e), 83(1)(h), 83(1)(i), 85.4(2) and 85.5(b).
In 2008, a security certificate naming Mohamed Harkat as a person inadmissible to Canada on grounds of national security was signed by the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration. It is alleged that Mr. Harkat is inadmissible on security grounds for engaging in terrorism, being a danger to the security of Canada, and being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. Mr. Harkat challenged the constitutionality of the security certificate regime, but it was upheld by the Federal Court and the Federal Court of Appeal. The Federal Court also held that a class privilege applied to CSIS human sources, which decision was overturned by the Federal Court of Appeal. The Federal Court was of the view that the destruction by CSIS of originals of conversations did not breach Mr. Harkat’s s. 7 Charter rights, but the Federal Court of Appeal disagreed and ordered the exclusion of the evidence derived from these originals. Finally, the Federal Court upheld the reasonableness of the security certificate, but the Federal Court of Appeal overturned this decision in view of its above mentioned decision to exclude evidence, sending the matter back to the designated judge for a new determination as to the reasonableness of the certificate.
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