Immigration and Refugee Protection Act (S.C. 2001, c. 27)

Marginal note: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.

Marginal note:Appeal by Minister

• 82.31 (1) Despite section 82.3, the Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, any decision made in the proceeding requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision until the appeal has been finally determined.

Marginal note: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

Marginal note: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 international relations, national defence or national security or endanger the safety of any person;

  • (c.1) on the request of the Minister, the judge may exempt the Minister from the obligation to provide the special advocate with a copy of information under paragraph 85.4(1)(b) if the judge is satisfied that the information does not enable the permanent resident or foreign national to be reasonably informed of the case made by the Minister;

  • (c.2) for the purpose of deciding whether to grant an exemption under paragraph (c.1), the judge may ask the special advocate to make submissions and may communicate with the special advocate to the extent required to enable the special advocate to make the submissions, if the judge is of the opinion that considerations of fairness and natural justice require it;

  • (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 international relations, national defence or 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 international relations, national defence or 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;

  • (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; and

  • (k) the judge shall not base a decision on information that the Minister is exempted from providing to the special advocate, shall ensure the confidentiality of that information and shall return it to the Minister.

• Marginal note: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.

• Marginal note: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 international relations, national defence or 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.

• Marginal note: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.

Marginal note:Protection of information on appeal

84 Section 83 — other than the obligation to provide a summary — and sections 85.1 to 85.5 apply in respect of an appeal under section 79, 79.1, 82.3 or 82.31 and in respect of any further appeal, with any necessary modifications.

Special Advocate

Marginal note: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.

• Marginal note:Statutory Instruments Act

  (2) The Statutory Instruments Act does not apply to the list.

• Marginal note:Administrative support and resources

  (3) The Minister of Justice shall ensure that special advocates are provided with adequate administrative support and resources.

Marginal note: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.

• Marginal note:Responsibilities

  (2) A special advocate may challenge

  • (a) the Minister’s claim that the disclosure of information or other evidence would be injurious to international relations, national defence or 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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note:Immunity

85.3 A special advocate is not personally liable for anything they do or omit to do in good faith under this Division.

Marginal note:Obligation to provide information

• 85.4 (1) Subject to paragraph 83(1)(c.1), the Minister shall, within a period set by the judge,

  • (a) provide the special advocate with a copy of the information and other evidence that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, on which the certificate or warrant is based and that has been filed with the Federal Court, but that is not disclosed to the permanent resident or foreign national and their counsel; and

  • (b) provide the special advocate with a copy of any other information that is in the Minister’s possession and that is relevant to the case made by the Minister in a proceeding under any of sections 78 and 82 to 82.2, but on which the certificate or warrant is not based and that has not been filed with the Federal Court.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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

Marginal note: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.

Marginal note:Judicial review

• 86.1 (1) The Minister may, at any stage of the proceeding, apply for judicial review of any decision made in a proceeding referred to in section 86 requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person. The application may be made without an application for leave.

• Marginal note:Effects of judicial review

  (2) The making of the application suspends the execution of the decision and, except in the case of a detention review, the proceeding referred to in section 86, until the application has been finally determined.

Marginal note:Application for non-disclosure — judicial review and appeal

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 in respect of the proceeding and in respect of any appeal of a decision made in the proceeding, with any necessary modifications.

Marginal note:Appeal by Minister

• 87.01 (1) The Minister may, without it being necessary for the judge to certify that a serious question of general importance is involved, appeal, at any stage of the proceeding, to the Federal Court of Appeal any decision made in a judicial review requiring the disclosure of information or other evidence if, in the Minister’s opinion, the disclosure would be injurious to international relations, national defence or national security or endanger the safety of any person.

• Marginal note:Effects of appeal

  (2) The appeal suspends the execution of the decision, as well as the judicial review, until the appeal has been finally determined.