Division 9 of the Immigration and Refugee Protection Act allows the Government to use and protect classified information in immigration proceedings to determine whether non-citizens can enter or remain in Canada. Some of these proceedings, such as security certificates, are used in cases related to national security matters, including terrorism and espionage. The information cannot be disclosed publicly because doing so would injure national security (for example, by revealing investigation techniques) or would endanger the safety of a person (for example, by putting a witness’ life in danger).
The use of Division 9 proceedings is rare. For instance, since 1991, only 27 individuals have been subject to a security certificate proceeding.
The Bill would allow the Minister of Public Safety and Emergency Preparedness and the Minister of Citizenship and Immigration to appeal or have the Court review orders for public disclosure during Division 9 proceedings. Currently, an appeal or judicial review may be available only at the end of a proceeding. Even if the Minister sought and won an appeal at the end of the proceeding, it could be too late, as the information could have been disclosed publicly and the injury to national security may have already occurred, or a person’s safety may have already been endangered. While the Minister could seek to withdraw this information from the case to mitigate the risk of injury, this may not be possible or doing so could weaken the case.
The new appeal and judicial review would, therefore, offer another opportunity for the Government to ask the Court to protect this information.
The Government’s experiences with recent Division 9 cases have shown that there are times when classified information was made part of the case even when it was not useful to the Government or to the non-citizen subject to the proceedings. Some judges have commented on the inclusion of such information in past proceedings, when this meant that cases could not proceed as expeditiously as possible.
In order to ensure expeditious proceedings, the Bill outlines what information would form part of security certificates before the Federal Court and cases involving applications for non-disclosure before the Immigration and Refugee Board. This would include information:
- that is relevant to the case,
- on which the case is based, and
- that allows the person to be reasonably informed of the case.
The Bill would also create an exception to the provision of information to special advocates. The Ministers could ask the Court to be exempted from providing some classified information to the special advocate, but the judge would only grant this exemption if he was satisfied that the information would not enable the person to be reasonably informed of the Minister’s case. In making a decision on the exemption, the judge could consult the special advocates as need be. This new exemption aims to provide another protection for classified information, while establishing a fair process that is subject to judicial discretion.
Overall, these amendments will ensure that Division 9 proceedings continue to be fair, while offering more robust protections for classified information. It is expected that Division 9 proceedings will continue to be rarely used.
