Second Session, Thirty-ninth Parliament,
56-57 Elizabeth II, 2007-2008
STATUTES OF CANADA 2008CHAPTER 3
An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act
ASSENTED TO
14th FEBRUARY, 2008
BILL C-3
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
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56-57 ELIZABETH II
——————
CHAPTER 3
An Act to amend the Immigration and Refugee Protection Act (certificate and special advocate) and to make a consequential amendment to another Act
[Assented to 14th February, 2008]
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 »
“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 »
“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 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;
(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; 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.
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.
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.
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.
Administrative support and resources
(3) The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.
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.
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.
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 (1) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court may each establish a committee to make rules governing the practice and procedure in relation to the participation of special advocates in proceedings before the court over which they preside. The rules are binding despite any rule of practice that would otherwise apply.
Composition of committees
(2) Any committee established shall be composed of the Chief Justice of the Federal Court of Appeal or the Chief Justice of the Federal Court, as the case may be, the Attorney General of Canada or one or more representatives of the Attorney General of Canada, and one or more members of the bar of any province who have experience in a field of law relevant to those types of proceedings. The Chief Justices may also designate additional members of their respective committees.
Chief Justices shall preside
(3) The Chief Justice of the Federal Court of Appeal and the Chief Justice of the Federal Court — or a member designated by them — shall preside over their respective committees.
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 (1) 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.
Requirements
(2) The regulations
(a) shall require that, to be included in the list, persons be members in good standing of the bar of a province, not be employed in the federal public administration, and not otherwise be associated with the federal public administration in such a way as to impair their ability to protect the interests of the permanent resident or foreign national; and
(b) may include provisions respecting those requirements.
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 CommonsAvailable from:Publishing and Depository ServicesPublic Works and Government Services Canada