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

Act current to 2016-08-15 and last amended on 2015-07-01. Previous Versions

Marginal note:Protection of information on appeal

 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.

  • 2001, c. 27, s. 84;
  • 2008, c. 3, s. 4;
  • 2015, c. 20, s. 58.

Special Advocate

Marginal note:List of persons who may act as special advocates
  •  (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.

  • 2001, c. 27, s. 85;
  • 2008, c. 3, s. 4.
Marginal note:Special advocate’s role
  •  (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 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.

  • 2008, c. 3, s. 4.
Marginal note:Powers

 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.

  • 2008, c. 3, s. 4.
Marginal note:Immunity

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

  • 2008, c. 3, s. 4.
Marginal note:Obligation to provide information
  •  (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.

  • 2008, c. 3, s. 4;
  • 2015, c. 20, s. 59.
Marginal note:Disclosure and communication prohibited

 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.

  • 2008, c. 3, s. 4.
Marginal note:Rules
  •  (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.

  • 2008, c. 3, s. 4.

Other Proceedings

Marginal note:Application for non-disclosure

 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.

  • 2001, c. 27, s. 86;
  • 2008, c. 3, s. 4.
Marginal note:Judicial review
  •  (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 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.

  • 2015, c. 20, s. 60.
Marginal note:Application for non-disclosure — judicial review and appeal

 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.

  • 2001, c. 27, s. 87;
  • 2008, c. 3, s. 4;
  • 2015, c. 20, s. 60.
 
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