1. Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s. 7 of the Charter, and if so, is the infringement justified under s. 1 of the Charter?
2. Does the detention of permanent residents or foreign nationals under the IRPA infringe ss. 7, 9, 10(c) or 12 of the Charter, and if so, are the infringements justified under s. 1 of the Charter?
3. Do the certificate and detention review procedures discriminate between citizens and non-citizens, contrary to s. 15 of the Charter, and if so, is the discrimination justified under s. 1 of the Charter?
4. Are the IRPA certificate provisions inconsistent with the constitutional principle of the rule of law?
Add special advocates to review of reasonableness of certificates ( now s.77(2)) and detention review (now s.82), and give FNs and PRs the same rights to review of detention under (former) s.84(2)
ISSUE 1: Determining the reasonableness of security certificates and detention review
** Div 9 of Part 1 of IRPA can deprive detainees of liberty, and could affect their security by being deported as a ‘terrorist’ and thus risk torture --- though deportation per se does not engage s.7
** PFJs require asking if the process is fundamentally unfair to the affected person --- greater the effect on liberty = greater need for procedural protections to meet duty of fairness and requirements of FJ
** PFJ requires: hearing before an independent and impartial judge, a decision based on facts and the law, and a right to know the case put against one and the right to answer that case --- IRPA scheme meets hearing by impartial and independent judge, but not the other 2 requirements
*** Though there are concerns for independence and impartiality as well [para 37]
**** reasonable grounds to believe = objective basis, based on compelling and credible info = the appropriate standard when reviewing detention
**** PFJs breached if judge is reduced to an executive investigation function
*** without knowing evidence, can't challenge facts or make legal objections or arguments
*** fair hearing in immigration requires person be informed of the case against him and be permitted to respond to it --- denial of info = inability to meet the case
**** while the right to know the case is not absolute and disclosure can be limited in a nat'l security context, only some contexts will allow substitutes for full disclosure to meet s.7
**** judge's activity on behalf of person is limited by what the Minister puts in front of them: lack of informed scrutiny, challenge and counter-evidence: “The fairness of the IRPA procedure rests entirely on the shoulders of the designated judge. Those shoulders cannot by themselves bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person's knowledge of the case to meet. The judge, working under the constraints imposed by the IRPA, simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing. The judge sees only what the ministers put before him or her.” [para 63]
** IRPA's procedure for determining whether a certificate is reasonable does not conform to PFJs as embodied in s. 7--- same conclusion necessarily applies to the detention review procedures under ss. 83 and 84 of the IRPA.
** does not minimally impair, as there are alternatives for keeping info secret --- describes SIRC immigration function under old Immigration Act; CEA alternative; Air India example; Arar Inquiry; UK special advocate system
*** special advocate system is not perfect but better protects s.7 interests without compromising security
ISSUE 2: differential treatment of FNs with regards to automatic detention and length of time before review of detention
** automatic detention of FNs is not arbitrary --- 3-sided wall
** but lack of review for 120 days violates s.9, which encompasses the right to prompt review of detention under s.10(c)
** lack of timely review for FNs violates s.9 and s.10(c) and not saved by s.1
** indefinite detention with no hope of release or ability to procure release under IRPA may cause psych stress, but does not amount to cruel and unusual treatment --- but detention/release conditions must have a meaningful process of review
** extended detention does not violate ss. 7 and 12 if there is regular process of review, including [para110]:
*** reasons for detention
*** length of detention
*** reasons for delay in deportation
*** anticipated future length of detention
*** availability of alternatives to detention
ISSUE 3: no s.15 violation as detentions have remained tied to state's purpose of deportation
** Rule of law is not violated by the unavailability of an appeal of the judge’s determination of reasonableness of the certificate
** Rule of law does not categorically prohibit automatic detention or detention on the basis of an executive decision
IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person's interests
Some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary
S. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention
There is no breach of the s. 15 equality right.