Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note:Determination

78 The judge shall determine whether the certificate is reasonable and shall quash the certificate if he or she determines that it is not.

Marginal note:Appeal

79 An appeal from the determination may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.

Marginal note:Appeal by Minister

• 79.1 (1) Despite section 79, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision, as well as the proceeding under section 78, until the appeal has been finally determined.

Marginal note:Effect of certificate

80 A certificate that is determined to be reasonable is conclusive proof that the person named in it is inadmissible and is a removal order that is in force without it being necessary to hold or continue an examination or admissibility hearing.

Detention and Release

Marginal note:Ministers’ warrant

81 The Minister and the Minister of Citizenship and Immigration may issue a warrant for the arrest and detention of a person who is named in a certificate if they have reasonable grounds to believe that the person is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.

Marginal note:Initial review of detention

• 82 (1) A judge shall commence a review of the reasons for the person’s continued detention within 48 hours after the detention begins.

• Marginal note:Further reviews of detention — before determining reasonableness

  (2) Until it is determined whether a certificate is reasonable, a judge shall commence another review of the reasons for the person’s continued detention at least once in the six-month period following the conclusion of each preceding review.

• Marginal note:Further reviews of detention — after determining reasonableness

  (3) A person who continues to be detained after a certificate is determined to be reasonable may apply to the Federal Court for another review of the reasons for their continued detention if a period of six months has expired since the conclusion of the preceding review.

• Marginal note:Reviews of conditions

  (4) A person who is released from detention under conditions may apply to the Federal Court for another review of the reasons for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.

• Marginal note:Order

  (5) On review, the judge

  • (a) shall order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions; or

  • (b) in any other case, shall order or confirm the person’s release from detention and set any conditions that the judge considers appropriate.

• Marginal note:Conditions — inadmissibility on grounds of security

  (6) If the judge orders the release, under paragraph (5)(b), of a person who is named in a certificate stating that they are inadmissible on grounds of security, the judge shall also impose the prescribed conditions on the person.

• Marginal note:No review of conditions

  (7) The prescribed conditions imposed under subsection (6) are not subject to review under subsection (4).

• Marginal note:Variation of conditions

  (8) If a person is subject to the prescribed conditions imposed under subsection (6), any variation of conditions under subsection 82.1(1) or paragraph 82.2(3)(c) is not to result in the person being subject to conditions that do not include those prescribed conditions.

• Marginal note:Duration of conditions

  (9) The prescribed conditions imposed under subsection (6) cease to apply only when one of the events described in paragraphs 77.1(2)(a) to (e) occurs.

Marginal note:Variation of orders

• 82.1 (1) A judge may vary an order made under subsection 82(5) on application of the Minister or of the person who is subject to the order if the judge is satisfied that the variation is desirable because of a material change in the circumstances that led to the order.

• Marginal note:Calculation of period for next review

  (2) For the purpose of calculating the six-month period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (1) is made.

Marginal note:Arrest and detention — breach of conditions

• 82.2 (1) A peace officer may arrest and detain a person released under section 82 or 82.1 if the officer has reasonable grounds to believe that the person has contravened or is about to contravene any condition applicable to their release.

• Marginal note:Appearance before judge

  (2) The peace officer shall bring the person before a judge within 48 hours after the detention begins.

• Marginal note:Order

  (3) If the judge finds that the person has contravened or was about to contravene any condition applicable to their release, the judge shall

  • (a) order the person’s detention to be continued if the judge is satisfied that the person’s release under conditions would be injurious to national security or endanger the safety of any person or that they would be unlikely to appear at a proceeding or for removal if they were released under conditions;

  • (b) confirm the release order; or

  • (c) vary the conditions applicable to their release.

• Marginal note:Calculation of period for next review

  (4) For the purpose of calculating the six-month period referred to in subsection 82(2), (3) or (4), the conclusion of the preceding review is deemed to have taken place on the day on which the decision under subsection (3) is made.

Marginal note:Appeal

82.3 An appeal from a decision made under any of sections 82 to 82.2 may be made to the Federal Court of Appeal only if the judge certifies that a serious question of general importance is involved and states the question. However, no appeal may be made from an interlocutory decision in the proceeding.

Marginal note:Appeal by Minister

• 82.31 (1) Despite section 82.3, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision until the appeal has been finally determined.

Marginal note:Minister’s order to release

82.4 The Minister may, at any time, order that a person who is detained under any of sections 82 to 82.2 be released from detention to permit their departure from Canada.

Protection of Information

Marginal note:Protection of information

• 83 (1) The following provisions apply to proceedings under any of sections 78 and 82 to 82.2:

  • (a) the judge shall proceed as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

  • (b) the judge shall appoint a person from the list referred to in subsection 85(1) to act as a special advocate in the proceeding after hearing representations from the permanent resident or foreign national and the Minister and after giving particular consideration and weight to the preferences of the permanent resident or foreign national;

  • (c) at any time during a proceeding, the judge may, on the judge’s own motion — and shall, on each request of the Minister — hear information or other evidence in the absence of the public and of the permanent resident or foreign national and their counsel if, in the judge’s opinion, its disclosure could be injurious to national security or endanger the safety of any person;

  • (c.1) on the request of the Minister, the judge may exempt the Minister from the obligation to provide the special advocate with a copy of information under paragraph 85.4(1)(b) if the judge is satisfied that the information does not enable the permanent resident or foreign national to be reasonably informed of the case made by the Minister;

  • (c.2) for the purpose of deciding whether to grant an exemption under paragraph (c.1), the judge may ask the special advocate to make submissions and may communicate with the special advocate to the extent required to enable the special advocate to make the submissions, if the judge is of the opinion that considerations of fairness and natural justice require it;

  • (d) the judge shall ensure the confidentiality of information and other evidence provided by the Minister if, in the judge’s opinion, its disclosure would be injurious to national security or endanger the safety of any person;

  • (e) throughout the proceeding, the judge shall ensure that the permanent resident or foreign national is provided with a summary of information and other evidence that enables them to be reasonably informed of the case made by the Minister in the proceeding but that does not include anything that, in the judge’s opinion, would be injurious to national security or endanger the safety of any person if disclosed;

  • (f) the judge shall ensure the confidentiality of all information or other evidence that is withdrawn by the Minister;

  • (g) the judge shall provide the permanent resident or foreign national and the Minister with an opportunity to be heard;

  • (h) the judge may receive into evidence anything that, in the judge’s opinion, is reliable and appropriate, even if it is inadmissible in a court of law, and may base a decision on that evidence;

  • (i) the judge may base a decision on information or other evidence even if a summary of that information or other evidence is not provided to the permanent resident or foreign national;

  • (j) the judge shall not base a decision on information or other evidence provided by the Minister, and shall return it to the Minister, if the judge determines that it is not relevant or if the Minister withdraws it; and

  • (k) the judge shall not base a decision on information that the Minister is exempted from providing to the special advocate, shall ensure the confidentiality of that information and shall return it to the Minister.

• Marginal note:Clarification

  (1.1) For the purposes of paragraph (1)(h), reliable and appropriate evidence does not include information that is believed on reasonable grounds to have been obtained as a result of the use of torture within the meaning of section 269.1 of the Criminal Code, or cruel, inhuman or degrading treatment or punishment within the meaning of the Convention Against Torture.

• Marginal note:Appointment of special advocate

  (1.2) If the permanent resident or foreign national requests that a particular person be appointed under paragraph (1)(b), the judge shall appoint that person unless the judge is satisfied that

  • (a) the appointment would result in the proceeding being unreasonably delayed;

  • (b) the appointment would place the person in a conflict of interest; or

  • (c) the person has knowledge of information or other evidence whose disclosure would be injurious to national security or endanger the safety of any person and, in the circumstances, there is a risk of inadvertent disclosure of that information or other evidence.

• Marginal note:For greater certainty

  (2) For greater certainty, the judge’s power to appoint a person to act as a special advocate in a proceeding includes the power to terminate the appointment and to appoint another person.

Marginal note:Protection of information on appeal

84 Section 83 — other than the obligation to provide a summary — and sections 85.1 to 85.5 apply in respect of an appeal under section 79, 79.1, 82.3 or 82.31 and in respect of any further appeal, with any necessary modifications.

Special Advocate

Marginal note:List of persons who may act as special advocates

• 85 (1) The Minister of Justice shall establish a list of persons who may act as special advocates and shall publish the list in a manner that the Minister of Justice considers appropriate to facilitate public access to it.

• Marginal note:Statutory Instruments Act

  (2) The Statutory Instruments Act does not apply to the list.

• Marginal note:Administrative support and resources

  (3) The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.

Marginal note:Special advocate’s role

• 85.1 (1) A special advocate’s role is to protect the interests of the permanent resident or foreign national in a proceeding under any of sections 78 and 82 to 82.2 when information or other evidence is heard in the absence of the public and of the permanent resident or foreign national and their counsel.

• Marginal note:Responsibilities

  (2) A special advocate may challenge

  • (a) the Minister’s claim that the disclosure of information or other evidence would be injurious to national security or endanger the safety of any person; and

  • (b) the relevance, reliability and sufficiency of information or other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel, and the weight to be given to it.

• Marginal note:For greater certainty

  (3) For greater certainty, the special advocate is not a party to the proceeding and the relationship between the special advocate and the permanent resident or foreign national is not that of solicitor and client.

• Marginal note:Protection of communications with special advocate

  (4) However, a communication between the permanent resident or foreign national or their counsel and the special advocate that would be subject to solicitor-client privilege if the relationship were one of solicitor and client is deemed to be subject to solicitor-client privilege. For greater certainty, in respect of that communication, the special advocate is not a compellable witness in any proceeding.