When immigration judicial reviews involve sensitive national security information, the ordinary rules of open court proceedings can change dramatically. Section 87 of the Immigration and Refugee Protection Act (“IRPA”) creates a unique procedure that allows the Minister to ask the Federal Court to protect certain information from disclosure during a judicial review.
Although these applications are relatively uncommon, they play an important role in cases involving security screening, intelligence information, or confidential investigative material.
What is a Section 87 Order?
Section 87 of the IRPA permits the Minister, during a judicial review, to apply for an order preventing the disclosure of information or other evidence. Rather than creating a standalone procedure, s. 87 incorporates the procedural framework found in s. 83 of the IRPA—with the exception of the requirements to appoint a special advocate and provide a summary of the confidential information.
In practical terms, this allows the Federal Court to receive evidence in a closed hearing, outside the presence of the applicant and their counsel, if disclosure could:
- injure international relations;
- injure national defence;
- injure national security; or
- endanger the safety of any person.
How Does the Process Work?
When the Minister brings a s. 87 application, the Court reviews the confidential material privately. The applicant and their lawyer are excluded from that portion of the hearing.
The judge must independently determine whether the information genuinely deserves protection. The Court does not simply accept the government’s position. Instead, the judge reviews the evidence and decides whether disclosure would create one of the harms identified in the legislation.
If the Court concludes that disclosure would be harmful, it will order that the information remain confidential and may nevertheless rely upon that information when deciding the judicial review.
When Are Section 87 Orders Used?
Section 87 applications most commonly arise in cases involving:
- security screening conducted by CSIS;
- intelligence obtained from domestic or foreign security agencies;
- confidential law enforcement techniques;
- information received from foreign governments;
- information that could reveal confidential human sources or investigative methods.
In Mamut v Canada (Citizenship and Immigration), 2024 FC 536, Justice Norris explained some of the categories of information that are commonly claimed under s. 87. They are:
- interest in individuals, groups or issues, including the existence or non-existence of past or present files or investigations, the intensity of investigations, or the degree or lack of success of investigations
- methods of operation and investigative techniques
- relationships that the government authority maintains with foreign police, security and intelligence agencies, and information exchanged in confidence with such agencies
- employees, internal procedures and administrative methodologies, and telecommunication systems used by the authority
- individuals who provided information to the immigration authority.
Many immigration litigants never encounter a s. 87 application. However, they are more common in judicial reviews involving security inadmissibility, comprehensive security screening, or other national security issues.
Balancing Fairness and National Security
Section 87 reflects Parliament’s attempt to balance two competing principles.
On one hand, parties are generally entitled to know the case against them and to respond to the evidence relied upon by the Court. On the other hand, Parliament recognized that disclosing certain intelligence or security information could itself create serious risks.
Unlike the security certificate process, judicial reviews under s. 87 do not involve the appointment of a special advocate. As a result, applicants generally have no representative present during the confidential hearing. Instead, the Court itself acts as the primary safeguard by carefully scrutinizing the government’s claim that confidentiality is necessary.
A Significant Departure from the Open Court Principle
Canadian courts generally operate under the open court principle, which presumes that court proceedings and evidence should be public. Section 87 represents a limited statutory exception to that principle for cases involving sensitive national security information.
Because it permits evidence to be withheld from both the public and, in some circumstances, from the affected party, the Federal Court applies the statutory requirements carefully and independently before restricting disclosure.
As per the Supreme Court of Canada decision in Harkat:
The judge must be vigilant and skeptical with respect to the Minister’s claims of confidentiality. Courts have commented on the government’s tendency to exaggerate claims of national security confidentiality: Canada (Attorney General) v. Almalki, 2010 FC 1106, [2012] 2 F.C.R. 508, at para. 108; Khadr v. Canada (Attorney General), 2008 FC 549, 329 F.T.R. 80, at paras. 73-77 and 98; see generally C. Forcese, “Canada’s National Security ‘Complex’: Assessing the Secrecy Rules” (2009), 15:5 IRPP Choices 3. As Justice O’Connor commented in his report on the Arar inquiry,
overclaiming exacerbates the transparency and procedural fairness problems that inevitably accompany any proceeding that can not be fully open because of [national security confidentiality] concerns. It also promotes public suspicion and cynicism about legitimate claims by the Government of national security confidentiality.
(Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006), at p. 302)
[64] The judge is the gatekeeper against this type of overclaiming, which undermines the IRPA scheme’s fragile equilibrium. Systematic overclaiming would infringe the named person’s right to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter
Jurisprudence
A.B. v. Canada (Citizenship and Immigration), 2025 FC 1887, provides an example of the type of information or summaries that a court can order publicized.
Conclusion
Section 87 orders are an important—but exceptional—feature of Canadian immigration litigation. They allow the Federal Court to consider confidential national security information without publicly disclosing material that could harm Canada’s security interests or endanger individuals.
For applicants involved in security-related judicial reviews, understanding the s. 87 process is essential. Although much of the proceeding may occur outside the applicant’s presence, the Court remains responsible for ensuring that confidentiality is justified and that the judicial review is conducted fairly within the framework established by Parliament.