Decision of the Court
Chief Justice McLachlin, writing for a unanimous court, holds that sections 33 and 77 to 85 of the IRPA unreasonably violates sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms.
On the section 1 analysis for justification of the violation the Court held that the certificate process was not minimally impairing. The Court cited a clearance system in the United Kingdom that would designate certain lawyers to view the evidence on behalf of the accused.
The court also found that s. 84(2) of the IRPA was unconstitutional because it denied a prompt hearing to foreign nationals by imposing a 120-day embargo on any application for release. The court corrected this defect by removing this mandatory waiting-period. [4]
R v Morgentaler, [1988] 1 SCR 30 was a decision of the Supreme Court of Canada which held that the abortion provision in the Criminal Code was unconstitutional because it violated women's rights under section 7 of the Canadian Charter of Rights and Freedoms ("Charter") to security of the person. Since this ruling, there have been no criminal laws regulating abortion in Canada.
Vriend v Alberta [1998] 1 S.C.R. 493 is an important Supreme Court of Canada case that determined that a legislative omission can be the subject of a Charter violation. The case involved a dismissal of a teacher because of his sexual orientation and was an issue of great controversy during that period.
Reference Re BC Motor Vehicle Act, [1985] 2 SCR 486, was a landmark reference submitted to the Supreme Court of Canada regarding the constitutionality of the British Columbia Motor Vehicle Act. The decision established one of the first principles of fundamental justice in the Canadian Charter of Rights and Freedoms ("Charter"), beyond mere natural justice, by requiring a fault component for all offences with penal consequences. The decision also proved important and controversial for establishing fundamental justice as more than a procedural right similar to due process, but also protects substantive rights even though such rights were counter to the intent of the initial drafters of the Charter.
In Canada, a security certificate is a legal mechanism by which the Canadian government can detain and deport permanent residents and all other non-citizens living in Canada.
The Immigration and Refugee Protection Act (IRPA) is an Act of the Parliament of Canada, administered by Immigration, Refugees and Citizenship Canada (IRCC) and Canada Border Services Agency (CBSA), that replaced the Immigration Act, 1976 in 2002 as the primary federal legislation regulating immigration to Canada. The "Immigration and Refugee Protection Regulations" (IRPR) specify how provisions of IRPA are to be applied.
Adil Charkaoui is a Morocco-born Canadian citizen who was arrested by the Canadian government under a security certificate in May 2003.
Hassan Ahmed Almrei, a Syrian citizen, arrived in Canada in 1999 claiming refugee status. He has been since held, and accused of terrorist connections and ideology, for his "reputation... for obtaining false documents", and his relationship with Ibn al-Khattab following time shared together during the Civil war in Tajikistan. He had "not supported Khattab financially or otherwise", but "admired Khattab... had pictures of Khattab on his computer; and visited Chechen extremist websites".
Mohamed Harkat is a native-born Algerian and permanent resident of Canada who was arrested in 2002 on suspicion of ties to terrorism and was imprisoned under security certificates. The Canadian Security Intelligence Service (CSIS) alleged that he entered the country as a sleeper agent for al-Qaeda.
Singh v Canada (Minister of Employment and Immigration), [1985] 1 S.C.R. 177 is a 1985 case of the Supreme Court of Canada.
Section 12 of the Canadian Charter of Rights and Freedoms, as part of the Constitution of Canada, is a legal rights section that protects an individual's freedom from cruel and unusual punishments in Canada. The section has generated some case law, including the essential case R. v. Smith (1987), in which it was partially defined, and R. v. Latimer (2001), a famous case in which Saskatchewan farmer Robert Latimer protested that his long, mandatory minimum sentence for the murder of his disabled daughter was cruel and unusual.
Suresh v Canada (Minister of Citizenship and Immigration) is a leading decision of the Supreme Court of Canada in the areas of constitutional law and administrative law. The Court held that, under the Canadian Charter of Rights and Freedoms, in most circumstances the government cannot deport someone to a country where they risk being tortured, but refugee claimants can be deported to their homelands if they are a serious security risk to Canadians.
Section 9 of the Canadian Charter of Rights and Freedoms, found under the "Legal rights" heading in the Charter, guarantees the right against arbitrary detainment and imprisonment. Section nine states:
9. Everyone has the right not to be arbitrarily detained or imprisoned.
Mohammed Zeki Mahjoub is an Egyptian national who was arrested in May 2000 on a security certificate for his alleged membership in the Vanguards of Conquest.
Paul Copeland C.M. is a retired Toronto-based human rights lawyer, who is widely known as the defence attorney of security certificate detainee Mohamed Harkat, and an avid supporter of legal aid.
Lavoie v Canada, [2002] 1 SCR 769, 2002 SCC 23 is a leading decision of the Supreme Court of Canada on whether preference on basis of citizenship infringed equality guarantee under section 15(1) of the Canadian Charter of Rights and Freedoms. The Court found that the federal Public Service Employment Act (PSEA), which gave preference to citizens when referring to departments, was discriminatory. The violation was saved under section 1 of the Charter as a reasonable limitation on equality rights.
Canadian administrative law is the body of law that addresses the actions and operations of governments and governmental agencies in Canada. That is, the law concerns the manner in which courts can review the decisions of administrative decision makers such as a board, tribunal, commission, agency, or Crown minister, while exercising ministerial discretion.
Ahani v Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 72; 2002 SCC 2 is a significant decision of the Supreme Court of Canada in the areas of constitutional law and administrative law. It is a companion case to Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3. Both cases deal with the procedure for removal of Convention refugees for reasons of national security under the Immigration Act, R.S.C. 1985, and address questions of procedural fairness.
Barbara Louise Jackman is a Canadian lawyer specializing in immigration and refugee law, with particular emphasis on cases involving domestic violence and international human rights issues, torture and other cruel or unusual punishment, allegations of membership in and/or support of terrorist organizations, the rights and protections afforded by the Canadian Charter of Rights and Freedoms, and Canada's responsibilities under international treaties. She has been described as being one of Canada's most effective advocates for immigration and refugee rights.
Deepan Budlakoti is an Ottawa-born man best known for Canada's refusal to acknowledge him as a citizen. His case, supported by numerous human rights organizations and a broad mobilization of public support, was heard by several Canadian courts, and has captured domestic and international attention. Since Budlakoti does not hold any citizenship, his case raises questions of citizenship, statelessness and deportation.
Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020), was a United States Supreme Court case involving whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which limits habeas corpus judicial review of the decisions of immigration officers, violates the Suspension Clause of Article One of the U.S. Constitution. In the 7–2 opinion, the Court ruled that the law does not violate the Suspension Clause.
