Backgrounder No. 14

Certificates Under The Immigration and Refugee Protection Act (IRPA)

Revised February 2005

What is a Certificate?

A certificate—also referred to as a security certificate—is one way for the Canada Border Services Agency (CBSA) to remove from this country a person who poses a security threat to Canada or Canadians. A certificate is only issued when there is sensitive information that needs to be protected for reasons of national security or the safety of any person.

The Immigration and Refugee Protection Act (IRPA) contains provisions which allow a certificate to be prepared and signed by the Minister of Public Safety and Emergency Preparedness (PSEP) (formerly referred to as the Solicitor General of Canada) and the Minister of Citizenship and Immigration (CIC) when a permanent resident or foreign national (the subject) is deemed to be inadmissible on grounds of security, espionage, violating human or international rights, serious criminality or organized criminality.

Once signed, certificates are referred to the Federal Court. At the request of the Minister of PSEP and the Minister of CIC, the designated judge may hear all or part of the information or evidence in private, in the absence of the subject of the certificate and his or her counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person.

The judge provides the subject with a summary of the information or evidence heard in private and in the absence of the subject.

Such summary has to enable the subject to be reasonably informed of the circumstances giving rise to the certificate. However, it does not include anything that, in the opinion of the judge, would be injurious to national security or to the safety of any person if disclosed.

The subject has an opportunity to be heard in an open hearing and can present evidence and testimony.

If the judge determines that the certificate is not reasonable, the certificate is quashed. If, however, the judge decides that it is reasonable, then the certificate becomes a removal order. The Federal Court's decision cannot be appealed.

Certificates have been used as a means to remove inadmissible non-Canadians since 1991.

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What Leads to the Issuance of a Certificate?

A carefully considered and rigorous process is undertaken when it comes to the issuance of certificates. The decision by the Ministers of PSEP and CIC to sign a certificate is based on a security intelligence report (SIR). SIRs are normally prepared by CSIS.

Due to the serious implications of issuing a certificate, the preparation of supporting documentation by CSIS is both deliberate and rigorous. Several conditions must be met before CSIS even considers preparing a SIR:

• The individual must be assessed as posing a significant threat to the security of Canada.
  
  
• CSIS must possess sufficient threat-related information and intelligence.
  
  
• That information must be reliable and come from multiple sources.
  
  
• The removal must be of strategic value in light of CSIS' investigative priorities.
  
  
• CSIS must have sufficient releasable open-source information to support the unclassified summary document.

The SIR must present sufficient security and intelligence information to allow the Minister to conclude that an individual is inadmissible to Canada as defined by IRPA. The preparation of the SIR entails an exhaustive review of all information collected by CSIS. The result is a very detailed document, the contents of which are meticulously "facted".

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Judicial Process Once a Certificate is Signed

The certificate regime is based on a framework of judicial control. If after receiving a security intelligence report, the Ministers of PSEP and CIC decide to sign a certificate, the certificate is referred to a judge of the Federal Court, who determines whether the certificate is reasonable. Under this process, the government can seek the removal of an individual from Canada on the stated grounds, based on classified information.

When a certificate is issued, all other immigration proceedings against the subject are suspended until the Federal Court makes a decision on the reasonableness of the certificate. Foreign nationals who are the subject of a certificate are automatically detained. Permanent residents may be detained if the Ministers of PSEP and CIC issue a warrant for his or her arrest and detention, if there are reasonable grounds to believe that the permanent resident is a danger to national security or the safety of any person or is unlikely to appear at a proceeding for removal.

In the process of determining the reasonableness of the certificate, the Federal Court judge, at the request of the Ministers of PSEP and CIC in accordance with Section 78 of the IRPA, shall hear all or part of the information or evidence in the absence of the subject and his or her counsel. Upon review of the classified information, the judge will then determine how much information will be included in an unclassified summary to be provided to the subject of the certificate and the subject's counsel. As per the IRPA, the summary must include sufficient information to enable the individual to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything which, in the opinion of the judge, would be injurious to national security or the safety of any person. Information that would be withheld from the subject of the certificate could include, but is not limited to, details concerning human or technical sources, intelligence-gathering techniques and methods or information communicated in confidence from a foreign agency. During the process, the judge may choose to hear all or part of the information or evidence in the absence of the subject of the certificate and counsel, if it would be injurious to national security or the safety of any person. In every case, the Federal Court judge provides the subject with an opportunity to be heard regarding their inadmissibility.

During the Federal Court proceeding, the person named in the certificate, if eligible, can make an application for a pre-removal risk assessment (PRRA). On request, the judge will suspend the proceeding in order for the Ministers of PSEP and CIC to make a decision on the PRRA application. During the assessment of the PRRA, the Minister may seek assurances from the applicant's country of nationality that the applicant's human rights will be protected upon return. The Federal Court judge will determine the lawfulness of the Minister's PRRA decision together with the reasonableness of the certificate.

If a certificate is deemed to be reasonable, it is considered conclusive proof that the perma-nent resident or foreign national named in it is inadmissible. The certificate then automatically becomes a removal order that cannot be appealed. There is thus no need to hold an admissibility hearing after such a determination.

If a foreign national has not been removed from Canada within 120 days after the judge determines a certificate to be reasonable, a Federal Court judge may, on application by the subject of the certificate, order the foreign national released if the judge is satisfied that the subject will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or the safety of any person.

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The Effect of Certificates

Certificates, as instruments for removing inadmissible permanent residents and foreign nationals who pose a threat to the security of Canada, have been available under Canadian immigration legislation since 1991. Given the serious consequences of issuing certificates and the extensive resources that must be dedicated to their preparation, the process has been used judiciously over the years and is employed only in exceptional cases. In total, 27 certificates have been issued between January 1991 and October 2003. Of these 27 certificates, three were quashed by the Federal Court. One of these three certificates later became the subject of a 2nd certificate.

A review of all certificates demonstrates that they have been directed at a broad range of subjects including Islamic terrorists, Russian nationals engaged in espionage, Sikh terrorists, Hindu extremists in support of the Liberation Tigers of Tamil Eelam, secular Arab terrorists and a right-wing extremist.

Certificates are used when there is information that needs to be protected for reasons of national security or the safety of any person. The Federal Court and the Federal Court of Appeal have ruled that the certificate process strikes the proper balance between the rights of an individual and the need to protect Canada's national security.

The Government of Canada takes a broad-based approach to addressing security threats. The certificate process is one of the many tools at the government's disposal to ensure the safety and security of Canadians.

Contact

For comments/enquiries, please contact the Canadian Security Intelligence Service (CSIS)
c/o P.O. Box 9732, Postal Station T,
Ottawa, Ontario, KIG 4G4.
Telephone (613) 231-0100
or fax (613) 231-0612.

Date modified: 2005-11-14

Important Notices