Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37:
Constitutionality of IRPA Scheme
The impugned provisions of the IRPA scheme are constitutional. They do not violate the named person's right to know and meet the case against him, or the right to have a decision made on the facts and the law. The alleged defects of theIRPA scheme must be assessed in light of the scheme's overall design and of the two central principles that guide the scheme: (1) the designated judge is intended to play a gatekeeper role, is vested with broad discretion and must ensure not only that the record supports the reasonableness of the ministers' finding of inadmissibility but also that the overall process is fair; and (2) participation of the special advocates in closed hearings is intended to be a substantial substitute for personal participation by the named person in those hearings. However, the scheme remains an imperfect substitute for full disclosure in an open court, and the designated judge has an ongoing responsibility to assess the overall fairness of the process and to grant remedies under s. 24(1) of the Charter where appropriate.
The IRPA scheme provides sufficient disclosure to the named person to be constitutionally compliant, since the designated judge has a statutory duty to ensure that the named person is reasonably informed of the case against him or her throughout the proceedings. However, the IRPA scheme's requirement that the named person be "reasonably informed" of the case should be read as a recognition that the named person must receive an incompressible minimum amount of disclosure. A named person is "reasonably informed" if he or she has personally received sufficient disclosure to be able to give meaningful instructions to his public counsel and meaningful guidance and information to his or her special advocates which will allow them to challenge the information and evidence presented in the closed hearings. The level of disclosure required for a named person to be reasonably informed is case-specific, depending on the allegations and evidence against him or her. Ultimately, the designated judge is the arbiter of whether this standard has been met.
Only information and evidence that raises a serious risk of injury to national security or danger to the safety of a person can be withheld from the named person. The designated judge must be vigilant and skeptical with respect to the claims of national security confidentiality and must ensure that only information or evidence which would injure national security or endanger the safety of a person is withheld from the named person. Systematic overclaiming would infringe the named person's right to a fair process or undermine the integrity of the judicial system, requiring a remedy under s. 24(1) of the Charter.
The IRPA scheme's approach to disclosure, which fails to provide for a balancing of countervailing interests, does not render the scheme unconstitutional. Section 7 of the Charterdoes not require a balancing approach to disclosure, rather, it requires a fair process. Parliament's choice to adopt a categorical prohibition against disclosure of sensitive information, as opposed to a balancing approach, does not as such constitute a breach of the right to a fair process.
The communications restrictions imposed on special advocates do not render the scheme unconstitutional. They are not absolute and can be lifted with judicial authorization, subject to conditions deemed appropriate by the designated judge. The judicial authorization process gives the designated judge a sufficiently broad discretion to allow all communications that are necessary for the special advocates to perform their duties. This broad discretion averts unfairness as the designated judge can ensure that the special advocates function as closely as possible to ordinary counsel in a public hearing. The judge should take a liberal approach in authorizing communications and only refuse authorization where the Minister has demonstrated, on a balance of probabilities, a real risk of injurious disclosure. In addition, the named person and his public counsel can send an unlimited amount of one-way communications to the special advocates at any time throughout the proceedings.
The admission of hearsay evidence or the denial of the opportunity for special advocates to cross-examine sources do not render the IRPA scheme unconstitutional. The IRPA scheme achieves the purpose of excluding unreliable evidence by alternative means to the rule against hearsay evidence and the right to cross-examine witnesses – it provides the designated judge with broad discretion to exclude evidence that is not "reliable and appropriate", which allows the judge to exclude not only evidence that he or she finds, after a searching review, to be unreliable, but also evidence whose probative value is outweighed by its prejudicial effect against the named person.