Canada (Citizenship and Immigration) v. Harkat was a landmark case in Canada especially in regards to the era of terrorism. This case brief outlines the details of this landmark Supreme Court Ruling. Included in the brief are the details of the case, in summary, its background, accompanying facts, the ratio dicidendi, and the judges’ decision. The report also consists of a brief analysis of the case regarding law studies.
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Canada (Citizenship and Immigration) v. Harkat1 was a case that was presented to the Supreme Court in 2014. The case pitted the Minister of Citizenship and Immigration, and the Minister of Public Safety and Emergency Preparedness on one side and Mohamed Harkat on the other. The case also included the Attorney General’s office among other Civil Rights Groups as interveners. This case brief will provide a summary of the court proceedings including the background and facts surrounding the judgment including its connection to the September 11 terrorist attacks in the United States of America. Furthermore, the brief will analyze the decision of the court and its rationale. Finally, the brief will provide a discussion of the case about other similar ones and an accompanying conclusion.
Summary of the Case: Background of the Case
The Canada (Citizenship and Immigration) v. Harkat case was lodged as a result of the detention of Mohamed Harkat. The incident began in 2002 when the pursuant was issued with a Ministerial Security Certificate by the Immigration and Refugee Protection Act (IRPA). The issuance of the security certificate deemed Harkat as an individual who was not admissible to the country due to matters relating to Canada’s national security. When Harkat was issued with another security certificate in 2008, he sought the court’s intervention to determine the rationale and legality behind this move. Mr. Harkat was represented in court by special advocates who were appointed to safeguard his interests. A series of Federal court decisions denied all the motions that were sought by Harkat’s special advocates. The Federal Court of Appeal upheld the legality of the security certificates but excluded some evidence from the case. This prompted the Ministers of Immigration and Citizenship to advance the case to the Supreme Court with the view of having the evidence that was thrown out to be reinstated. At the same time, Harkat cross-appealed in the hope that the Supreme Court would decide on the constitutionality of IRPA’s certificates.
The origin of Canada (Citizenship and Immigration) v. Harkat traces back to a parliamentary decision to enact IRPA primarily in response to the September 11 attacks in the US. The legislation provided a basis for security certificates to be issued to Canadian residents or non-residents. Mohamed Harkat was residing in Canada as a refugee from Algeria and he had entered the country using a fake Saudi Arabian passport. Harkat was issued with a security certificate because he had affiliations with the Al Qaeda terror group. Harkat ended up being held without charges for more than three years and he was eventually released albeit on stringent bail conditions. Harkat first challenged IRPA through Charkaoui v. Canada, 2007 SCC 9,  1 SCR 3502. The decision of the court in this case faulted the constitutionality of IRPA. The issuance of a second security certificate to Harkat in 2008 was the basis for Canada (Citizenship and Immigration) v. Harkat.
The main legal issue, in this case, was the Canadian Charter of Rights and Freedoms. Point number seven in this Charter stipulates that “Everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof except by the principles of fundamental justice”3. Consequently, the special advocates sought to find out whether IRPA violates this law.
The Supreme Court was tasked with ruling whether the Federal Court of Appeal erred in dismissing the evidence that was the basis of Harkat being issued with a security certificate. On the other hand, Harkat’s special advocates sought the court to decide whether IRPA’s issuance of a security certificate to Harkat (under amended terms) was constitutional as per the Charter of Rights. In a previous judgment (Charkaoui v. Canada), the Supreme Court had ruled that IRPA infringed on basic human rights4. Furthermore, the government ministers had hoped that the decision of the Federal Court of appeal would be overturned because police informers who provided information on Harkat were subject to certain privileges. Immigration issues were also a consideration for the Supreme Court5.
The court ruled that the IRPA’s issuance of a security certificate and the accompanying actions were within the provisions of the constitution. The court “found that the rules do not violate the named person’s right to know the case being made against him or her or prevent the named person from having a decision made based on the facts and the law”6.
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The ratio decided, in this case, encompassed the fact that although the IRPA was constitutional, the overall system had imperfection especially in regards to special advocates. Consequently, when a defendant is facing serious accusations lack of full disclosure might lead to unfair proceedings. For instance, in some cases, the special advocates might be subject to manipulation by the minister under IRPA.
Mr. Harkat’s main argument was that even though amendments had been made on IRPA, the fact that he could not communicate with his advocate freely left him in the dark when it came to certain matters. This made it possible for hearsay to be used as evidence against him. The majority of the judges found that the information that was provided through IRPA to Harkat was constitutionally sufficient7. Also, the minister involved was found to be acting by the interests of national security. The majority’s decision also upheld that there was a need to accord informers with privileges but only to a certain degree.
There was an obvious bias in this case as it is evident that Mr. Harkat’s rights were ‘justifiably’ infringed upon. The interests of the Crown took precedence on those of the individual and at one point, this was tantamount to human rights violations. From the onset, IRPA was instituted as a tool for circumventing the preexisting constitutional stipulations. Before 2001, Harkat’s hearing would have turned out better than it did in 2014.
Canada (Citizenship and Immigration) v. Harkat case is a good example of how the rule of law clashes with the fight against global terrorism. In this case, most of the involved courts argued in favor of the state in a matter that has several underlying issues.
1 Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37,  2 SCR 33.
2 Charkaoui v. Canada, 2007 SCC 9,  1 SCR 350.
3 Khadr v. Canada (Attorney General), 2008 FC 549, 329 FTR 80.
4 Charkaoui v. Canada, 2007 SCC 9,  1 SCR 350.
5 Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37,  2 SCR 33 at para 59
6 Canada (Citizenship and Immigration) v. Harkat, 2014 SCC 37,  2 SCR 33 at para 32.
7 Canadian Broadcasting Corp. v. New Brunswick (Attorney General),  3 SCR 480 at para 4.