Security Certificates and the Harkat Decision

25th May 2014 Comments Off on Security Certificates and the Harkat Decision

On May 14, 2014, the Supreme Court of Canada (“SCC”) issued its decision in Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37 (“Harkat“).  While the SCC upheld the constitutionality of Canada’s security certificate regime, it provided detailed guidance to the Federal Court on applying the process. 

Mohamed Harkat and the Security Certificate Regime

Mohamed Harkat (“Mr. Harkat”) entered Canada in 1995, and obtained refugee status shortly thereafter.  In 2002, the Government of Canada detained him under a security certificate (described in more detail below).  It declared that Mr. Harkat was a threat to Canada for allegedly being an al-Qaeda sleeper agent, and sought to have him declared inadmissible to Canada.  During the past decade, Mr. Harkat has either been detained or living under strict conditions.

At the SCC, Mr. Harkat argued that the Immigration and Refugee Protection Act, SC 2001, c27, did not provide him a fair opportunity to defend himself against the Government of Canada’s allegations.  His arguments were similar to those that Adil Charkaoui successfully made when the SCC struck down Canada’s previous security certificate regime as being unconstitutional.

The Security Certificate Regime

Canada’s security certificate regime compared to its criminal justice system offers the Government of Canada numerous procedural advantages.  As the SCC noted in Harkat:

From a practical perspective, the IRPA scheme is in some respects more advantageous for the state than criminal proceedings. It has a lower standard of proof and is more protective of confidential national security information than the criminal law: ibid. As will be discussed further below, any information that would be injurious to national security or to the safety of any person is not disclosed to the named person.

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