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...Emergency Preparedness (MPSEP) (collectively "the Ministers") to issue certificate of inadmissibility that leads to the detention of a permanent resident or foreign national believed to be a threat to national security. The certificate and the detention are both subject to review by a judge.
This process, however, may deny the named person some or all of the information on which the certificate or the detention rested. The question is whether the solution that Parliament has enacted conforms to the Constitution, and specifically to the guarantees in the Canadian Charter of Rights and Freedoms. These provisions protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.
Appellants before the Supreme Court of Canada are Mr. Adil Charkaoui, a permanent resident, plus Messrs. Mohamed Harkat and Hassan Almrei, foreign nationals who had been recognized as covered by the Refugee Convention. All these Appellants were living in Canada when authorities arrested and detained them. At the time of the decisions on appeal, all had been in custody for some time since 2003, 2002 and 2001 respectively.
In 2001, a judge of the Federal Court determined Mr. Almrei's certificate to be reasonable; another determined Mr. Harkat's certificate to be reasonable in 2005. No court has yet determined the reasonableness of Mr. Charkaoui's certificate. Canadian authorities released Messrs. Charkaoui and Harkat on certain restrictive conditions in 2005 and 2006 respectively, but the Government has told Mr. Harkat that it plans to deport him to Algeria. Mr. Almrei remains in detention. In these three cases, the detentions stemmed from allegations that the individuals posed a threat to Canadian security due to their links to terrorist activities.
The Appellants argue that the IRPA's certificate scheme is unconstitutional. They contend that it violates five provisions of the Charter: the Section 7 guarantee of life, liberty and security of the person; the Section 9 guarantee against arbitrary detention; the Section 10(c) guarantee of a prompt judicial review of detention; the Section 12 guarantee against cruel and unusual treatment; and the Section 15 guarantee of equal protection and equal benefit of the law. They also allege violations of unwritten constitutional principles.
The Canadian Supreme Court's principal rulings are as follows. First, the procedure under the IRPA for determining the reasonableness of the certificate of inadmissibility does infringe Section 7 of the Charter, and the infringement is not demonstrably justified in a free and democratic society under Section 1 of the Charter. Second, the detention of permanent residents or foreign nationals under the IRPA infringes Section 9 of the Charter, and the infringements are not demonstrably justified in a free and democratic society under Section 1 of the Charter. Third, the IRPA in whole or in part or through their combined effect, does infringe Section 10 of the Charter and the infringement is not a reasonable limit prescribed by law which can be demonstrably justified in a free and democratic society under Section 1 of the Charter. A unanimous Court, therefore, allows the appeal.
The question at the Section 7 stage is whether the Government has, in substance, observed the principles of fundamental justice...
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