Court File: IN THE SUPREME COURT OF CANADA (On appeal from the Federal Court of Appeal)
B E T W E E N :
MOHAMED HARKAT Applicant
THE MINISTER OF CITIZENSHIP AND IMMIGRATION THE SOLICITOR GENERAL OF CANADA THE ATTORNEY GENERAL FOR CANADA Respondents
MEMORANDUM OF ARGUMENT
PART I – STATEMENT OF FACTS 1. Mr. Harkat, an Algerian national and a Convention refugee, is the subject of a security certificate. Mr. Harkat has been held in the Ottawa Detention Centre since December 10th, 2002. Mr. Harkat seeks leave of this Court to appeal from the judgement of the Federal Court of Appeal which dismissed his appeal against the decision of Justice Dawson, which upheld the constitutional validity of the procedures under Section 76-80 of the Immigration and Refugee Protection Act (IRPA). 2. Aside from preliminary matters, the hearings in relation to the reasonableness of the certificate in this case and in relation to the constitutional validity of the procedure followed in relation to the security certificate under the provisions of Section 76-80 of IRPA were held before Justice Dawson in Ottawa during four days in October 2004 and four days from December 5th to December 9th, 2004. 3. On December 9th, 2004 Justice Dawson reserved her decisions on the constitutional validity of the security certificate provisions under the Charter and on the reasonableness of the security certificate. 4. On December 10th, 2004 the Federal Court of Appeal released its decision in the Charkaoui case and held, in part, that the secret evidence, the lack of disclosure of evidence, and the use of ex-parte in-camera hearings did not violate the fundamental justice requirements of Section 7 of the Canadian Charter of Rights and Freedoms. 5. On March 22nd, 2005 Justice Dawson released her decision on the reasonableness of the security certificate and on the constitutional issue. She found that the security certificate was reasonable and followed, as she was obliged to do, the decision of the Federal Court of Appeal in Charkaoui. She ruled that the provisions of Section 76-80 of IRPA were not contrary to the fundamental justice provisions of Section 7 of the Canadian Charter or Rights and Freedoms. 6. An appeal was filed in regard to the constitutional issue. In relation to that appeal a conference call was held with Chief Justice Richard and counsel for the parties. Counsel for the Applicant suggested in that conference call that the Federal Court of Appeal dismiss the appeal without argument and allow the Applicant to attempt to catch up with the Charkaoui application for leave to appeal in the Supreme Court of Canada. 7. Chief Justice Richard indicated in the conference call that the appeal would need to be argued. September 6, 2005 in Ottawa was the earliest date available for the appeal to be argued. 8. On August 25th, 2005 the Supreme Court of Canada granted leave to appeal in the Charkaoui case. 9. The Harkat appeal was argued in the Federal Court of Appeal in Ottawa on September 6th, 2005. The Court did not call on the Respondent and in an oral judgement dismissed the appeal. 10. The remainder of the facts in the case and the nature of the hearings before Justice Dawson are set out in the decision of Justice Dawson, dated March 22nd, 2005. PART II – QUESTIONS IN ISSUE 11. Are the provisions of Section 76-80 of the Immigration and Refugee Protection Act unconstitutional on the ground that the procedures set out in those sections, do not meet the standard of fundamental justice within the meaning of Section 7 of the Canadian Charter of Rights and Freedoms? 12. It is the position of the Applicant that the provisions of Section 76-80 of IRPA infringe on the right of the Appellant to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. PART III – STATEMENT OF ARGUMENT 13. The issue in this appeal is the appropriate balance to be made between the Stateâ€™s need for secrecy in matters of so called â€œnational securityâ€ and the rights of Mr. Harkat to know and meet the case against him. 14. The following comments from the Suresh decision, while they do not relate to the constitutional validity of Section 76-80 of IRPA, reflect the issue at hand in this application for leave to appeal. 3 The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge. 4 On the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments. Suresh v. Canada (2001) 208 D.L. R. (4th) 1 15. The Applicant respectfully submits that the decisions in Ahani and Charkaoui were in error and that Section 76 to 80 of IRPA deny the Appellantâ€™s rights under Section 7 of the Charter. In doing so, they fail to comply with the principles of fundamental justice and the interest of Mr. Harkat in being able to respond in a meaningful way to the allegations made against him in the context of an immigration removal procedure. Ahani v. Canada  F.C.J. No. 937 Re Charkaoui  F.C. J. No. 2060 16. If leave is granted in the case, argument will be introduced concerning the historical background of national security confidentiality and references will be made to the following cases: R. v. Secretary of State for the Home Department; Ex p. Hosenball ; All ER 452 (CA); R. v. Atwal (1987) 36 C.C.C. (3rd) 161, at 187 (FCA); Canada (Minister of Employment and Immigration) v. Chiarelli  1 SCR 711. 17. This Court in the Chiarelli case held that the removal of the right of appeal on humanitarian grounds from a deportation order did not violate fundamental justice and that the procedures followed before the Security Intelligence Review Committee in that case did not violate fundamental justice. It is respectfully submitted that the Chiarelli reasoning about the process in hearings before the SIRC is not applicable to security certificate proceedings before a single judge of the Federal Court of Appeal. 18. It is respectfully submitted that Madam Justice McGillis and the Federal Court of Appeal erred in applying the Supreme Court of Canada decision in the Chiarelli case to the procedure followed in the Ahani case. (Note: Application for Leave to Appeal to the Supreme Court of Canada was refused in the Ahani case.) Ahani v. Canada  FCJ No. 1190,  3FC 669 Ahani v. Canada  FCJ No. 937 19. In both Ahani and Charkaoui the Federal Court of Appeal reached its decision without factoring in Section 1 of the Canadian Charter of Rights and Freedoms. In effect that Court held that in national security matters fundamental justice does not require that the person concerned or his counsel, or anyone representing his interest, have an opportunity to know the case against the person, to test the case and the evidence through cross examination, or to be aware of issues in the case about which the person concerned might or should call evidence. 20. It is respectfully submitted that the Federal Court of Appeal erred in the Charkaoui case in ruling that the procedures under Section 76-80 of IRPA did not violate the right of the Applicant to life, liberty, and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice. 21. As to the standard of fundamental justice in the Immigration context the Applicant relies on the reasoning of Madam Justice Wilson and two other judges of the Supreme Court of Canada in Singh v. Canada (Minister of Employment and Immigration). Justice Wilson dealt with the fundamental justice issue in relation with the procedures for determination of Convention Refugee Status set out in the Immigration Act in paragraph 59-64 of the judgment The following extracts are taken from that portion of the judgment of Justice Wilson: 59â€¦ I am of the view that where a [page214] serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearingâ€¦ I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions. 60 â€¦ My greatest concern is (â€¦) with the inadequacy of the opportunity the scheme provides for a refugee claimant to state his case and know the case he has to meet. 61 It seems to me that the basic flaw in Mr. Bowie’s characterization of the procedure under ss. 70 and 71 is his description of the procedure as non-adversarial. It is in fact highly adversarial but the adversary, the Minister, is waiting in the wings. What the Board has before it is a determination by the Minister based in part on information and policies to which the Appellant has no means of access that the Appellant for redetermination is not a Convention refugee. The Appellant is entitled to submit whatever relevant material he wishes to the Board but he still faces the hurdle of having to establish to the Board that on the balance of probabilities the Minister was wrong. Moreover, he must do this without any knowledge of the Minister’s case beyond the rudimentary reasons which the Minister has decided to give him in rejecting his claim. It is this aspect of the procedures set out in the Act which I find impossible to reconcile with the requirements of “fundamental justice” as set out in s. 7 of the Charter. 62 â€¦ It seems to me that, as a matter of fundamental justice, a refugee claimant would be entitled to discovery of the Minister’s case prior to such a hearing. â€¦ 63 Under the Act as it presently stands, however, a refugee claimant may never have the opportunity to make an effective challenge to the information or policies which underlie the Minister’s decision to reject his claim. Singh v. Canada (Minister of Employment and Immigration)  1 S.C.R. 177 22. Three other judges of the Supreme Court of Canada in reasons written by Justice Beetz allowed the appeal on the basis of a violation of Section 2(e) of the Canadian Bill of Rights. 23. The relevant provision of the Canadian Bill of Rights are as follows: 1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely, (a) the right of the individual to life, liberty security of the person and enjoyment of property, and the right not to be deprived thereof except by due process of law; (b) the right of the individual to equality before the law and the protection of the law; (c) freedom of religion; [page226] (d) freedom of speech; (e) freedom of assembly and association, and (f) freedom of the press. 2. Every law of Canada shall, unless it is expressly declared by an Act of the Parliament of Canada that it shall operate notwithstanding the Canadian Bill of Rights, be so construed and applied as not to abrogate, abridge or infringe or to authorize the abrogation, abridgment or infringement of any of the rights or freedoms herein recognized and declared, and in particular, no law of Canada shall be construed or applied so as to * * * (e) deprive a person of the right to a fair hearing in accordance with the principles of fundamental justice for the determination of his rights and obligations. 24. Justice Beetz found at paragraph 89 that the appellants were not afforded a fair hearing in accordance with the principles of fundamental justice. Justice Beetz held that an oral hearing was required in refugee cases. 25. In the Singh case this Court considered whether the infringement on fundamental justice in the refugee process was saved by Section 1 of the Charter. The Court found it was not saved by Section 1. Singh (supra) paragraphs 65-74 26. In the Suresh case this Court considered whether the procedures under Section 53(1)(b) of the Immigration Act violated the Section 7 guarantees of fundamental justice and went on to consider whether the violation of Sureshâ€™s Section 7 rights were justified as a reasonable limit under Section 1 of the Charter. The Court ruled against a Section 1 justification. Suresh (supra) paragraph 128 27. On the 25th and 26th day of March 2002 a conference was held at the Canadian Institute for the Administration of Justice entitled â€œTerrorism, Law and Democracyâ€. At that conference the Honourable James K. Hugessen spoke about the security certificate process in the Federal Court: â€œAll the national security functions which are laid on the Federal Court have this in common: â€¦ a judge of the Court sitting alone in what are called hearings, but they are held in the absence of one of the partiesâ€¦ That is to say ex parte so that the judge may, if he or she sees fit, take communication of the evidence, the information which is said to be too sensitive to be allowed to be revealed to the person concerned and not only evidence, but also argument which may rely on the evidence or may deal with matters which may be too sensitive to be revealed to the public. â€œThis is not a happy posture for a judge, and you are in fact looking at an unhappy camper when I tell you about this function. Often, when I speak in public I make the customary disavowal that I am not speaking for the Court and I am not speaking for my colleagues but I am speaking only for myself. I make no such disavowal this afternoon. I can tell you because we talked about it, we hate itâ€¦ We do not like this process of having to sit alone hearing only one party, and looking at the materials produced by only one partyâ€¦ If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do thatâ€¦ we do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. â€œWe greatly miss, in short, our security blanket which is the adversary system that we were all brought up with and that, as I said at the outset, is for most of us, the real warranty that the outcome of what we do is going to be fair and justâ€¦ it might be helpful if we created some sort of system somewhat like the public defender system where some lawyers were mandated to have full access to the CSIS files, the underlying files, and to present whatever case they could against the granting of the relief soughtâ€¦ I am not sure what the judges of the Federal Court are doing in this picture and if I may be forgiven for using the expression, I sometimes feel a little bit like a fig leaf.â€ 28. It is respectfully submitted that the comments of Justice Hugessen are indicative of the fact that the procedure mandated by the IRPA legislation does not meet the requirements of fundamental justice. 29. In the case of Chahal, Mr. Chahal had no success in the English Courts but when his case reached the European Court of Human Rights, that Court ruled that the procedure followed in England was inadequate pursuant to the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on November 1950. Chahal v. United Kingdom (1996) 23 EHRR 413 30. The European Court of Human Rights misconstrued the Canadian process and in its decision recommended the Canadian model. The Court mixed the process before the Security Intelligence Review Committee (used for permanent residents under the Immigration Act where SIRC counsel performed a role similar to the role of an amicus curiae or special counsel) and the process before the Federal Court (used for non-residents under the Immigration Act where no amicus curiae or special counsel was available). 31. The Court said at paragraph 144: â€¦ Under the Canadian Immigration Act 1976, a Federal Court judge holds an in camera hearing of all the evidence, at which the Appellant is provided with a statement summarizing, as far as possible, the case against him or her and has the right to be represented and to call evidence. The confidentiality of security material is maintained by requiring such evidence to be examined in the absence of both the Appellant and his or her representative. However, in these circumstances, their place is taken by a security-cleared counsel instructed by the court, who cross-examines the witnesses and generally assists the court to test the strength of the Stateâ€™s case. A summary of the evidence obtained by this procedure, with necessary deletions, is given to the Appellant. 32. As a result of the decision in Chahal, the government of the United Kingdom created the Special Immigration Appeals Commission (SIAC). Under the SIAC procedure a security cleared Special Advocate is appointed and that Special Advocate argues the case before SIAC. PART IV â€“ SUBMISSIONS REGARDING COSTS 33. The Applicant is prepared to recognize and acknowledge the right of the state to advance national security interests in the removal of a non-citizen from Canada. But it is the respectful submission of the Applicant that that process must be done in a manner that does respect the Applicantâ€™s right to life, liberty and security of the person and the right not to be deprived thereof of except in accordance with the principles of fundamental justice. 34. The Supreme Court of Canada granted costs to the Applicant on the Charkaoui application for leave to appeal. 35. In this case counsel for the Respondents was asked whether the Respondents would consent to an application for leave to appeal. The Respondents to date have not taken a position as to whether they would consent to such an application. 36. In the circumstances of this case it is respectfully submitted that the costs of this application for leave to appeal should be allowed on a solicitor/client basis in any event of the cause. PART V â€“ THE ORDER SOUGHT 37. The Applicant seeks an order granting leave to appeal to the Supreme Court of Canada from the decision of the Federal Court of Appeal dated September 6th, 2005 in which that Court dismissed the appeal from a decision of Justice Dawson upholding the constitutional validity of Section 76-80 of IRPA DATED at Toronto, Ontario, this 17th day of October, 2005. ______________________________ Paul D. Copeland Copeland, Duncan Barristers & Solicitors 31 Prince Arthur Avenue Toronto, Ontario M5R 1B2 Tel. (416) 964-8126 Ext. 142 Fax: (416) 960-5456 Solicitor for the Applicant PART VI – TABLE OF AUTHORITIES A. Statutes: 1. Immigration & Refugee Protection Act, s. 76-81 2. Criminal Code s. 83.01-83.33 B. Case Authorities: Cited at Paragraph(s) 3. Suresh v. Canada (2001) 208 D.L. R. (4th) 1 14, 26 4. Ahani v. Canada  F.C.J. No. 937 15, 18, 19 5. Re Charkaoui  F.C. J. No. 2060 4-6, 8, 15, 19, 20, 34 6. R. v. Secretary of State for the Home Department Ex p. Hosenball ; All ER 452 (CA) 16 7. R. v. Atwal (1987) 36 C.C.C. (3rd) 161, at 187 (FCA) 16 8. Canada (Minister of Employment and Immigration) v. Chiarelli  1 SCR 711 16-17 9. Ahani v. Canada  FCJ No. 1190,  3FC 669 18, 19 10. Singh v. Canada (Minister of Employment and Immigration)  1 S.C.R. 177 21, 25 11. Chahal v. United Kingdom (1996) 23 EHRR 413 29 C: Judgements: 12. Order and Reasons of Justice Dawson, dated March 22nd, 2005. 1-3, 5, 10, 37 13. Judgement of Chief Justice Richard, Federal Court of Appeal, dated September 6th, 2005, Docket A-144-05 6, 7 PART VII – STATUTORY AUTHORITIES Immigration & Refugee Protection Act, S.C. 2001, Ch. 27 SS. 34, 77, 78, 80, 81, 82, 83, 84 34(1) A permanent resident or a foreign national is inadmissible on security grounds for (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. S.C. 2001, c. 27, s. 34, in force June 28, 2002 (SI/2002-97) 77(1) The Minister and the Solicitor General of Canada shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80. (2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination. 78 The following provisions govern the determination: (a) the judge shall hear the matter; (b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit; (d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination; (e) on each request of the Minister or the Solicitor General of Canada made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person; (f) the information or evidence described in paragraph (e) shall be returned to the Minister and the Solicitor General of Canada and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary; (g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person; (h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed; (i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and (j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. S.C. 2001, c. 27, s. 78, in force June 28, 2002 (SI/2002-97) 80(1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made. (2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection. (3) The determination of the judge is final and may not be appealed or judicially reviewed. S.C. 2001, c. 27, s. 80, in force June 28, 2002 (SI/2002-97). 81. If a certificate is determined to be reasonable under subsection 80(1), (a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible; (b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and (c) the person named in it may not apply for protection under subsection 112(1). S.C. 2001, c. 27, s. 81, in force June 28, 2002 (SI/2002-97). 82(1) The Minister and the Solicitor General of Canada may issue a warrant for the arrest and detention of a permanent resident who is named in a certificate described in subsection 77(1) if they have reasonable grounds to believe that the permanent resident is a danger to national security or to the safety of any person or is unlikely to appear at a proceeding or for removal. (2) A foreign national who is named in a certificate described in subsection 77(1) shall be detained without the issue of a warrant. 83(1) Not later than 48 hours after the beginning of detention of a permanent resident under section 82, a judge shall commence a review of the reasons for the continued detention. Section 78 applies with respect to the review, with any modifications that the circumstances require. (2) The permanent resident must, until a determination is made under subsection 80(1), be brought back before a judge at least once in the six- month period following each preceding review and at any other times that the judge may authorize. (3) A judge shall order the detention to be continued if satisfied that the permanent resident continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal. S.C. 2001, c. 27, s. 83, in force June 28, 2002 (SI/2002-97). 84(1) The Minister may, on application by a permanent resident or a foreign national, order their release from detention to permit their departure from Canada. (2) A judge may, on application by a foreign national who has not been removed from Canada within 120 days after the Federal Court determines a certificate to be reasonable, order the foreign national’s release from detention, under terms and conditions that the judge considers appropriate, if satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person. S.C. 2001, c. 27, s. 84, in force June 28, 2002 (SI/2002-97). Loi sur l’immigration et la protection des rÃ©fugiÃ©s L.C. 2001, Ch. 27 SS. 34, 77, 78, 80, 81, 82, 83, 84 34(1) Emportent interdiction de territoire pour raison de sÃ©curitÃ© les faits suivants: (a) ïŒtre l’auteur d’actes d’espionnage ou se livrer ï‚ la subversion contre toute institution dÃ©mocratique, au sens oïª cette expression s’entend au Canada; (b) ïŒtre l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) se livrer au terrorisme; (d) constituer un danger pour la sÃ©curitÃ© du Canada; (e) ïŒtre l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sÃ©curitÃ© d’autrui au Canada; (f) ïŒtre membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a Ã©tÃ© ou sera l’auteur d’un acte visÃ© aux alinÃ©as a), b) ou c). (2) Ces faits n’emportent pas interdiction de territoire pour le rÃ©sident permanent ou l’Ã©tranger qui convainc le ministre que sa prÃ©sence au Canada ne serait nullement prÃ©judiciable ï‚ l’intÃ©rïŒt national. 77(1) Le ministre et le solliciteur gÃ©nÃ©ral du Canada dÃ©posent ï‚ la Section de premiïre instance de la Cour fÃ©dÃ©rale le certificat attestant qu’un rÃ©sident permanent ou qu’un Ã©tranger est interdit de territoire pour raison de sÃ©curitÃ© ou pour atteinte aux droits humains ou internationaux, grande criminalitÃ© ou criminalitÃ© organisÃ©e pour qu’il en soit disposÃ© au titre de l’article 80. (2) Il ne peut ïŒtre procÃ©dÃ© ï‚ aucune instance visant le rÃ©sident permanent ou l’Ã©tranger au titre de la prÃ©sente loi tant qu’il n’a pas Ã©tÃ© statuÃ© sur le certificat; n’est pas visÃ©e la demande de protection prÃ©vue au paragraphe 112(1) 78 Les rïgles suivantes s’appliquent ï‚ l’affaire: (a) le juge entend l’affaire; (b) le juge est tenu de garantir la confidentialitÃ© des renseignements justifiant le certificat et des autres Ã©lÃ©ments de preuve qui pourraient lui ïŒtre communiquÃ©s et dont la divulgation porterait atteinte, selon lui, ï‚ la sÃ©curitÃ© nationale ou ï‚ la sÃ©curitÃ© d’autrui; (c) il procïde, dans la mesure oïª les circonstances et les considÃ©rations d’Ã©quitÃ© et de justice naturelle le permettent, sans formalisme et selon la procÃ©dure expÃ©ditive; (d) il examine, dans les sept jours suivant le dÃ©pÃ´t du certificat et ï‚ huis clos, les renseignements et autres Ã©lÃ©ments de preuve; (e) ï‚ chaque demande d’un ministre, il examine, en l’absence du rÃ©sident permanent ou de l’Ã©tranger et de son conseil, tout ou partie des renseignements ou autres Ã©lÃ©ments de preuve dont la divulgation porterait atteinte, selon lui, ï‚ la sÃ©curitÃ© nationale ou ï‚ la sÃ©curitÃ© d’autrui; (f) ces renseignements ou Ã©lÃ©ments de preuve doivent ïŒtre remis aux ministres et ne peuvent servir de fondement ï‚ l’affaire soit si le juge dÃ©cide qu’ils ne sont pas pertinents ou, l’Ã©tant, devraient faire partie du rÃ©sumÃ©, soit en cas de retrait de la demande; (g) si le juge dÃ©cide qu’ils sont pertinents, mais que leur divulgation porterait atteinte ï‚ la sÃ©curitÃ© nationale ou ï‚ celle d’autrui, ils ne peuvent faire partie du rÃ©sumÃ©, mais peuvent servir de fondement ï‚ l’affaire; (h) le juge fournit au rÃ©sident permanent ou ï‚ l’Ã©tranger, afin de lui permettre d’ïŒtre suffisamment informÃ© des circonstances ayant donnÃ© lieu au certificat, un rÃ©sumÃ© de la preuve ne comportant aucun Ã©lÃ©ment dont la divulgation porterait atteinte, selon lui, ï‚ la sÃ©curitÃ© nationale ou ï‚ la sÃ©curitÃ© d’autrui; (i) il donne au rÃ©sident permanent ou ï‚ l’Ã©tranger la possibilitÃ© d’ïŒtre entendu sur l’interdiction de territoire le visant; (j) il peut recevoir et admettre en preuve tout Ã©lÃ©ment qu’il estime utile – mïŒme inadmissible en justice – et peut fonder sa dÃ©cision sur celui-ci. 80(1) Le juge dÃ©cide du caractïre raisonnable du certificat et, le cas Ã©chÃ©ant, de la lÃ©galitÃ© de la dÃ©cision du ministre, compte tenu des renseignements et autres Ã©lÃ©ments de preuve dont il dispose. (2) Il annule le certificat dont il ne peut conclure qu’il est raisonnable; si l’annulation ne vise que la dÃ©cision du ministre il suspend l’affaire pour permettre au ministre de statuer sur celle-ci. (3) La dÃ©cision du juge est dÃ©finitive et n’est pas susceptible d’appel ou de contrÃ´le judiciaire. 81 Le certificat jugÃ© raisonnable fait foi de l’interdiction de territoire et constitue une mesure de renvoi en vigueur et sans appel, sans qu’il soit nÃ©cessaire de procÃ©der au contrÃ´le ou ï‚ l’enquïŒte; la personne visÃ©e ne peut dïs lors demander la protection au titre du paragraphe 112(1). 82(1) Le ministre et le solliciteur gÃ©nÃ©ral du Canada peuvent lancer un mandat pour l’arrestation et la mise en dÃ©tention du rÃ©sident permanent visÃ© au certificat dont ils ont des motifs raisonnables de croire qu’il constitue un danger pour la sÃ©curitÃ© nationale ou la sÃ©curitÃ© d’autrui ou qu’il se soustraira vraisemblablement ï‚ la procÃ©dure ou au renvoi. (2) L’Ã©tranger nommÃ© au certificat est mis en dÃ©tention sans nÃ©cessitÃ© de mandat. 83(1) Dans les quarante-huit heures suivant le dÃ©but de la dÃ©tention du rÃ©sident permanent, le juge entreprend le contrÃ´le des motifs justifiant le maintien en dÃ©tention, l’article 78 s’appliquant, avec les adaptations nÃ©cessaires, au contrÃ´le. (2) Tant qu’il n’est pas statuÃ© sur le certificat, l’intÃ©ressÃ© comparaÃ®t au moins une fois dans les six mois suivant chaque contrÃ´le, ou sur autorisation du juge. (3) L’intÃ©ressÃ© est maintenu en dÃ©tention sur preuve qu’il constitue toujours un danger pour la sÃ©curitÃ© nationale ou la sÃ©curitÃ© d’autrui ou qu’il se soustraira vraisemblablement ï‚ la procÃ©dure ou au renvoi. 84(1) Le ministre peut, sur demande, mettre le rÃ©sident permanent ou l’Ã©tranger en libertÃ© s’il veut quitter le Canada. (2) Sur demande de l’Ã©tranger dont la mesure de renvoi n’a pas Ã©tÃ© exÃ©cutÃ©e dans les cent vingt jours suivant la dÃ©cision sur le certificat, le juge peut, aux conditions qu’il estime indiquÃ©es, le mettre en libertÃ© sur preuve que la mesure ne sera pas exÃ©cutÃ©e dans un dÃ©lai raisonnable et que la mise en libertÃ© ne constituera pas un danger pour la sÃ©curitÃ© nationale ou la sÃ©curitÃ© d’autrui.