Adil Charkaoui v. Minister of Citizenship and Immigration, et al.

(Federal Court) (Civil) (By Leave)

(Sealing order)


Constitutional law.


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(Sealing Order)

Constitutional law - Charter of Rights - Fundamental justice (s. 7) - Cruel and unusual treatment or punishment (s. 12) - Right to equality (s. 15) - International law - Immigration - Removal to torture - Pre-removal risk assessment - Abuse of process - Whether ministers and Canadian government, through their actions or omissions, treated Applicant in manner prohibited by ss. 7, 12 and 15 of Charter and by Convention Against Torture - Whether ss. 95(1)(c), 98, 112(1) and (3)(d), 113(b), (c) and (d), and 115(2) of Immigration and Refugee Protection Act, S.C. 2001, c. 27, and ss. 167 to 172 of Immigration and Refugee Protection Regulations, SOR/2002-227, are unconstitutional.

A security certificate was issued against the Applicant under s. 77 of the Immigration and Refugee Protection Act. The Applicant applied for protection under s. 112 of the Act. A pre-removal risk assessment officer found that there was a danger of torture, a risk to life and a risk of cruel and unusual treatment or punishment if the Applicant were returned to Morocco. Another officer responsible for assessing the Applicant’s dangerousness concluded that he was a danger to the security of Canada. The delegate of the Minister of Citizenship and Immigration, with these two reports before her, rejected the Applicant’s application for protection because, in her opinion, the Applicant was not faced with a serious personal danger of torture or risk of cruel and unusual treatment if he returned to Morocco and, if she were underestimating the risk, the exceptional circumstances test justified his removal despite the danger of torture. The decision to reject the application for protection was set aside by the Federal Court after the Minister informed it that a new pre-removal risk assessment was to be conducted because of new facts, namely the issuance by Morocco of an international arrest warrant against the Applicant. The Applicant brought a motion for a permanent stay of proceedings. He also asked that the provisions of the Act and Regulations governing applications for protection be declared unconstitutional.