Bill C-3
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C-3
Second Session, Thirty-ninth Parliament,
56 Elizabeth II, 2007
HOUSE OF COMMONS OF CANADA
BILL C-3
An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act
first reading, October 22, 2007
THE MINISTER OF PUBLIC SAFETY
90418
RECOMMENDATION
Her Excellency the Governor General recommends to the House of Commons the appropriation of public revenue under the circumstances, in the manner and for the purposes set out in a measure entitled “An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act”.
SUMMARY
This enactment amends the Immigration and Refugee Protection Act to add provisions relating to a special advocate to Division 9 of Part 1 of that Act. The special advocate’s role is to protect a person’s interests in certain proceedings when evidence is heard in the absence of the public and of the person and their counsel. The special advocate may challenge the claim made by the Minister of Public Safety and Emergency Preparedness to the confidentiality of evidence as well as the relevance, reliability, sufficiency and weight of the evidence and may make submissions, cross-examine witnesses and, with the judge’s authorization, exercise any other powers necessary to protect the person’s interests.
The enactment eliminates the suspension of consideration of the reasonableness of a security certificate that occurs when the person named in it makes an application for protection.
The enactment also provides that, when a person is detained under the security certificate regime, a judge of the Federal Court must commence a review of the detention within 48 hours after the detention begins and then, until it is determined whether a certificate is reasonable, at least once in the six-month period following the conclusion of each preceding review. A person who continues to be detained after a certificate is determined to be reasonable and a person who is released under conditions may apply to the Court for a review of the reasons for their continued detention or for continuing the conditions if a period of six months has expired since the conclusion of the preceding review.
The enactment permits the appeal of a determination whether a security certificate is reasonable and of a decision resulting from a review of a person’s detention or release under conditions to the Federal Court of Appeal if the judge certifies that a serious question of general importance is involved.
It also permits a peace officer to arrest and detain a person who is subject to a security certificate if the officer has reasonable grounds to believe that the person has contravened or is about to contravene their conditions of release.
The enactment enables the Minister to apply for the non-disclosure of confidential information during a judicial review of a decision made under the Act and gives the judge discretion to appoint a special advocate to protect the interests of the person concerned.
It also contains transitional provisions and makes a consequential amendment to the Canada Evidence Act.
Also available on the Parliament of Canada Web Site at the following address:
http://www.parl.gc.ca
http://www.parl.gc.ca
2nd Session, 39th Parliament,
56 Elizabeth II, 2007
house of commons of canada
BILL C-3
An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
2001, c. 27
IMMIGRATION AND REFUGEE PROTECTION ACT
2005, c. 38, s. 118
1. (1) Subsection 4(1) of the Immigration and Refugee Protection Act is replaced by the following:
Minister of Citizenship and Immigration
4. (1) Except as otherwise provided in this section, the Minister of Citizenship and Immigration is responsible for the administration of this Act.
Designated Minister
(1.1) The Governor in Council may, by order, designate a minister of the Crown as the Minister responsible for all matters under this Act relating to special advocates. If none is designated, the Minister of Justice is responsible for those matters.
2005, c. 38, s. 118
(2) The portion of subsection 4(2) of the Act before paragraph (a) is replaced by the following:
Minister of Public Safety and Emergency Preparedness
(2) The Minister of Public Safety and Emergency Preparedness is responsible for the administration of this Act as it relates to
2005, c. 38, s. 118
(3) Subsection 4(3) of the Act is replaced by the following:
Specification
(3) Subject to subsections (1) to (2), the Governor in Council may, by order,
(a) specify which Minister referred to in any of subsections (1) to (2) is the Minister for the purposes of any provision of this Act; and
(b) specify that more than one Minister may be the Minister for the purposes of any provision of this Act and specify the circumstances under which each Minister is the Minister.
2004, c. 15, s. 70
2. Subsection 5(2) of the Act is replaced by the following:
Tabling and referral of proposed regulations
(2) The Minister shall cause a copy of each proposed regulation made under sections 17, 32, 53, 61, 87.2, 102, 116, 150 and 150.1 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.
3. Paragraph 36(3)(e) of the Act is replaced by the following:
(e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence for which the permanent resident or foreign national is found guilty under the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 or the Youth Criminal Justice Act.
2002, c. 8, subpar. 194(a)(ii) and (b)(ii) and par. 194(d); 2005, c. 10, par. 34(1)(o) and s. 34(2)(E)
4. Division 9 of Part 1 of the Act is replaced by the following:
Division 9
Certificates and Protection of Information
Interpretation
Definitions
76. The following definitions apply in this Division.
“information”
« renseigne- ments »
« renseigne- ments »
“information” means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, the government of a foreign state, an international organization of states or an institution of such a government or international organization.
“judge”
« juge »
« juge »
“judge” means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.
Certificate
Referral of certificate
77. (1) The Minister and the Minister of Citizenship and Immigration shall sign a certificate stating that a permanent resident or foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, and shall refer the certificate to the Federal Court.
Filing of evidence and summary
(2) When the certificate is referred, the Minister shall file with the Court the information and other evidence on which the certificate is based, and a summary of information and other evidence that enables the person who is named in the certificate to be reasonably informed of the case made by the Minister but that does not include anything that, in the Minister’s opinion, would be injurious to national security or endanger the safety of any person if disclosed.
Effect of referral
(3) Once the certificate is referred, no proceeding under this Act respecting the person who is named in the certificate — other than proceedings relating to sections 82 to 82.3, 112 and 115 — may be commenced or continued until the judge determines whether the certificate is reasonable.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
Appearance before judge
(2) The peace officer shall bring the person before a judge within 48 hours after the detention begins.
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.
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.
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.
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
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;
(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;
(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, including in relation to the appointment of the special advocate;
(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; and
(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.
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.
Protection of information on appeal
84. Section 83 — other than the obligation to provide a summary — and sections 85.1 to 85.5 apply to an appeal under section 79 or 82.3, and to any further appeal, with any necessary modifications.
Special Advocate
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.
Statutory Instruments Act
(2) The Statutory Instruments Act does not apply to the list.
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.
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.
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.
Powers
85.2 A special advocate may
(a) make oral and written submissions with respect to the information and other evidence that is provided by the Minister and is not disclosed to the permanent resident or foreign national and their counsel;
(b) participate in, and cross-examine witnesses who testify during, any part of the proceeding that is held in the absence of the public and of the permanent resident or foreign national and their counsel; and
(c) exercise, with the judge’s authorization, any other powers that are necessary to protect the interests of the permanent resident or foreign national.
Immunity
85.3 A special advocate is not personally liable for anything they do or omit to do in good faith under this Division.
Obligation to provide information
85.4 (1) The Minister shall, within a period set by the judge, provide the special advocate with a copy of all information and other evidence that is provided to the judge but that is not disclosed to the permanent resident or foreign national and their counsel.
Restrictions on communications — special advocate
(2) After that information or other evidence is received by the special advocate, the special advocate may, during the remainder of the proceeding, communicate with another person about the proceeding only with the judge’s authorization and subject to any conditions that the judge considers appropriate.
Restrictions on communications — other persons
(3) If the special advocate is authorized to communicate with a person, the judge may prohibit that person from communicating with anyone else about the proceeding during the remainder of the proceeding or may impose conditions with respect to such a communication during that period.
Disclosure and communication prohibited
85.5 With the exception of communications authorized by a judge, no person shall
(a) disclose information or other evidence that is disclosed to them under section 85.4 and that is treated as confidential by the judge presiding at the proceeding; or
(b) communicate with another person about the content of any part of a proceeding under any of sections 78 and 82 to 82.2 that is heard in the absence of the public and of the permanent resident or foreign national and their counsel.
Rules
85.6 With the Governor in Council’s approval, the rules committee established under section 45.1 of the Federal Courts Act may make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the Federal Court and the Federal Court of Appeal. The rules are binding despite any rule of practice that would otherwise apply.
Other Proceedings
Application for non-disclosure
86. The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, apply for the non-disclosure of information or other evidence. Sections 83 and 85.1 to 85.5 apply to the proceeding with any necessary modifications, including that a reference to “judge” be read as a reference to the applicable Division of the Board.
Application for non-disclosure — judicial review
87. The Minister may, during a judicial review, apply for the non-disclosure of information or other evidence. Section 83 — other than the obligations to appoint a special advocate and to provide a summary — applies to the proceeding with any necessary modifications.
Special advocate
87.1 If the judge during the judicial review, or a court on appeal from the judge’s decision, is of the opinion that considerations of fairness and natural justice require that a special advocate be appointed to protect the interests of the permanent resident or foreign national, the judge or court shall appoint a special advocate from the list referred to in subsection 85(1). Sections 85.1 to 85.5 apply to the proceeding with any necessary modifications.
Regulations
Regulations
87.2 The regulations may provide for any matter relating to the application of this Division and may include provisions respecting conditions and qualifications that persons must meet to be included in the list referred to in subsection 85(1) and additional qualifications that are assets that may be taken into account for that purpose.
5. (1) The portion of paragraph 166(b) of the English version of the Act before subparagraph (i) is replaced by the following:
(b) on application or on its own initiative, the Division may conduct a proceeding in the absence of the public, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is
(2) Paragraph 166(c) of the English version of the Act is replaced by the following:
(c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Immigration Division concerning a claim- ant of refugee protection, proceedings concerning cessation and vacation applications and proceedings before the Refugee Appeal Division must be held in the absence of the public;
(3) Paragraph 166(f) of the Act is replaced by the following:
(f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information or other evidence in respect of which an application has been made under section 86, and not rejected, or with information or other evidence protected under that section.
TRANSITIONAL PROVISIONS
Definition of “the Act”
6. In sections 7 to 10, “the Act” means the Immigration and Refugee Protection Act.
Proceedings relating to reasonableness of certificates
7. (1) A proceeding relating to the reasonableness of a certificate referred to the Federal Court under subsection 77(1) of the Act is terminated on the coming into force of this Act.
Existing removal orders
(2) A removal order made against a person who is named in a certificate referred to the Federal Court under the Act, or under the Immigration Act, chapter I-2 of the Revised Statutes of Canada, 1985, before this Act comes into force and who is in Canada when this Act comes into force ceases to have effect on that coming into force.
New certificates
(3) If, on the day on which this Act comes into force, the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration sign a new certificate and refer it to the Federal Court under subsection 77(1) of the Act, as enacted by section 4 of this Act, the person who is named in the certificate
(a) shall, if they were detained under Division 9 of Part 1 of the Act when this Act comes into force, remain in detention without a new warrant for their arrest and detention having to be issued under section 81 of the Act, as enacted by section 4 of this Act; or
(b) shall, if they were released from detention under conditions under Division 9 of Part 1 of the Act when this Act comes into force, remain released under the same conditions unless a warrant for their arrest and detention is issued under section 81 of the Act, as enacted by section 4 of this Act.
Application for review of detention or conditions
(4) A person referred to in subsection (3) may apply to the Federal Court for a review of the reasons for their continued detention or of the reasons for continuing the conditions, as the case may be, within 60 days after the day on which this Act comes into force.
Review of detention
(5) If a person who is detained and who is entitled to make an application under subsection (4) does not do so, a judge shall commence a review of the reasons for the person’s continued detention at least once in the six-month period following the day on which this Act comes into force.
Review of conditions
(6) If a person who is released from detention under conditions and who is entitled to make an application under subsection (4) does not do so, they may apply to the Federal Court for a review of the reasons for continuing the conditions if a period of six months has expired since the day on which this Act comes into force.
Calculation of period for next review
(7) For the purpose of calculating the six-month period referred to in subsection 82(2), (3) or (4) of the Act, as enacted by section 4 of this Act, the conclusion of the preceding review is deemed to have taken place on the day on which a judge makes a decision under this section.
Proceedings relating to section 112 or 115
8. (1) Any proceeding that involves a person who is named in a certificate and that relates to section 112 or 115 of the Act is terminated on the coming into force of this Act.
Persons subject to stay of removal
(2) A person who is named in a certificate referred to the Federal Court under subsection 77(1) of the Act, as enacted by section 4 of this Act, is not required to apply for protection under section 112 of the Act after the day on which this Act comes into force if a removal order made against them was stayed under subsection 114(1) of the Act when this Act comes into force unless the stay is cancelled under subsection 114(2) of the Act.
Existing removal orders — section 86
9. (1) A removal order made against a person in a proceeding in which an application was made for the non-disclosure of information under section 86 of the Act, as it read immediately before the coming into force of this Act, ceases to have effect when this Act comes into force if the person is in Canada on that coming into force.
New reports on inadmissibility
(2) If the Minister of Public Safety and Emergency Preparedness refers a report to the Immigration Division under subsection 44(2) of the Act on the day on which this Act comes into force, then the person who is named in the report
(a) shall, if they were detained under Division 9 of Part 1 of the Act when this Act comes into force, remain in detention without a new warrant for their arrest and detention having to be issued under Division 6 of Part 1 of the Act; or
(b) shall, if they were released from detention under conditions under Division 9 of Part 1 of the Act when this Act comes into force, remain released under the same conditions unless a warrant for their arrest and detention is issued under Division 6 of Part 1 of the Act.
Calculation of period for next review
(3) If the Minister of Public Safety and Emergency Preparedness refers a report to the Immigration Division under subsection 44(2) of the Act on the day on which this Act comes into force, then, for the purpose of calculating the 30-day period referred to in subsection 57(2) of the Act, the previous review is deemed to have taken place on that day.
Proceedings under section 86
(4) On the coming into force of this Act, section 86 of the Act, as enacted by section 4 of this Act, applies to a proceeding that is pending or in progress immediately before that coming into force and in which an application was made for the non-disclosure of information under section 86 of the Act, as it read immediately before that coming into force.
Proceedings under section 87
10. On the coming into force of this Act, sections 87 and 87.1 of the Act, as enacted by section 4 of this Act, apply to a proceeding that is pending or in progress immediately before that coming into force and in which an application was made for the non-disclosure of information under section 87 of the Act, as it read immediately before that coming into force.
R.S., c. C-5
CONSEQUENTIAL AMENDMENT TO THE CANADA EVIDENCE ACT
2001, c. 41, s. 124(2)
11. Item 3 of the schedule to the Canada Evidence Act is replaced by the following:
3. A judge of the Federal Court, the Federal Court of Appeal or the Immigration Division or Immigration Appeal Division of the Immigration and Refugee Board, for the purposes of sections 77 to 87.1 of the Immigration and Refugee Protection Act
COMING INTO FORCE
Order in council
12. This Act comes into force on a day to be fixed by order of the Governor in Council.
Published under authority of the Speaker of the House of Commons
Available from:
Publishing and Depository Services
Public Works and Government Services Canada
Available from:
Publishing and Depository Services
Public Works and Government Services Canada
Explanatory Notes
Immigration and Refugee Protection Act
Clause 1: (1) Existing text of subsection 4(1):
4. (1) Subject to subsection (2), the Minister of Citizenship and Immigration is responsible for the administration of this Act.
(2) Relevant portion of subsection 4(2):
(2) The Minister as defined in section 2 of the Canada Border Services Agency Act is responsible for the administration of this Act as it relates to
(3) Existing text of subsection 4(3):
(3) Subject to subsections (1) and (2), the Governor in Council may specify
(a) which Minister referred to in subsections (1) and (2) shall be the Minister for the purposes of any provision of this Act; and
(b) that both Ministers may be the Minister for the purposes of any provision of this Act and the circumstances under which each Minister shall be the Minister.
Clause 2: Existing text of subsection 5(2):
(2) The Minister shall cause a copy of each proposed regulation made pursuant to sections 17, 32, 53, 61, 102, 116, 150 and 150.1 to be laid before each House of Parliament, and each House shall refer the proposed regulation to the appropriate Committee of that House.
Clause 3: Relevant portion of subsection 36(3):
(3) The following provisions govern subsections (1) and (2):
...
(e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act.
Clause 4: Existing text of Division 9:
Division 9
Protection of Information
Examination on Request by the Minister and the Minister of Public Safety and Emergency Preparedness
76. The definitions in this section apply in this Division.
“information” means security or criminal intelligence information and information that is obtained in confidence from a source in Canada, from the government of a foreign state, from an international organization of states or from an institution of either of them.
“judge” means the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice.
77. (1) The Minister and the Minister of Public Safety and Emergency Preparedness shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80.
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination.
78. The following provisions govern the determination:
(a) the judge shall hear the matter;
(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;
(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;
(e) on each request of the Minister or the Minister of Public Safety and Emergency Preparedness made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;
(f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Minister of Public Safety and Emergency Preparedness and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;
(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;
(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that 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;
(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and
(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence.
79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).
(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Courts Act.
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.
(3) The determination of the judge is final and may not be appealed or judicially reviewed.
81. If a certificate is determined to be reasonable under subsection 80(1),
(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;
(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and
(c) the person named in it may not apply for protection under subsection 112(1).
Detention
82. (1) The Minister and the Minister of Public Safety and Emergency Preparedness may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal.
(2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant.
83. (1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require.
(2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six-month period following each preceding review and at any other times that the judge may authorize.
(3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal.
84. (1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada.
(2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person.
85. In the case of an inconsistency between sections 82 to 84 and the provisions of Division 6, sections 82 to 84 prevail to the extent of the inconsistency.
Consideration During an Admissibility Hearing or an Immigration Appeal
86. (1) The Minister may, during an admissibility hearing, a detention review or an appeal before the Immigration Appeal Division, make an application for non-disclosure of information.
(2) Section 78 applies to the determination of the application, with any modifications that the circumstances require, including that a reference to “judge” be read as a reference to the applicable Division of the Board.
Consideration During Judicial Review
87. (1) The Minister may, in the course of a judicial review, make an application to the judge for the non-disclosure of any information with respect to information protected under subsection 86(1) or information considered under section 11, 112 or 115.
(2) Section 78, except for the provisions relating to the obligation to provide a summary and the time limit referred to in paragraph 78(d), applies to the determination of the application, with any modifications that the circumstances require.
Clause 5: (1) to (3) Relevant portion of section 166:
166. Proceedings before a Division are to be conducted as follows:
...
(b) on application or on its own initiative, the Division may conduct a proceeding in private, or take any other measure that it considers necessary to ensure the confidentiality of the proceedings, if, after having considered all available alternate measures, the Division is satisfied that there is
...
(c) subject to paragraph (d), proceedings before the Refugee Protection Division and the Immigration Division concerning a claimant of refugee protection, proceedings concerning cessation and vacation applications and proceedings before the Refugee Appeal Division must be held in private;
...
(f) despite paragraph (e), the representative or agent may not observe any part of the proceedings that deals with information protected under subsection 86(1), or with information in respect of which an application has been made and not rejected under subsection 86(1).
Canada Evidence Act
Clause 11: Existing text of item 3 of the schedule:
3. A judge of the Federal Court, or the Immigration Division or Immigration Appeal Division of the Immigration and Refugee Board, for the purposes of sections 77 to 87 of the Immigration and Refugee Protection Act
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