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Charkaoui v Canada Charkaoui v Canada (Citizen and Immigration)(Citizen and Immigration)

2007 SCC 0 [2007] 1 S.C.R.2007 SCC 0 [2007] 1 S.C.R.

BackgroundBackground

At issue: “Security Certificates”At issue: “Security Certificates” Part of Canadian immigration law Part of Canadian immigration law

since 1978since 1978 Ernst Zundel, German-born landed Ernst Zundel, German-born landed

immigrant and Holocaust denier, immigrant and Holocaust denier, deported under security certificatedeported under security certificate

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CharkaouiCharkaoui

IssueIssue: Constitutional validity of : Constitutional validity of Immigration Immigration and Refugee Protection Actand Refugee Protection Act, S.C. 2001, c. 27, S.C. 2001, c. 27

Under IRPA, permanent residents and Under IRPA, permanent residents and foreign nationals in Canada named in foreign nationals in Canada named in security certificates rendered inadmissible security certificates rendered inadmissible to Canada and subject to deportationto Canada and subject to deportation

ConditionsConditions: (a) Gov’t satisfied that sufficient : (a) Gov’t satisfied that sufficient evidence that continued presence in evidence that continued presence in Canada constitutes threat to national Canada constitutes threat to national security; (b) Federal judge confirms security; (b) Federal judge confirms reasonableness of certificatereasonableness of certificate

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Held in custody till deportation – Held in custody till deportation – Kingston Immigration Housing Centre Kingston Immigration Housing Centre (Millhaven Penitentiary)(Millhaven Penitentiary)

Review hearing before Federal judge Review hearing before Federal judge mandatorymandatory

Gov’t can request hearing be held “in Gov’t can request hearing be held “in camera” w/o named person presentcamera” w/o named person present

Permanent residents: mandatory hearing Permanent residents: mandatory hearing required within required within 48 hours48 hours of detention of detention

Foreign nationals: mandatory hearing Foreign nationals: mandatory hearing required within required within 120 days120 days

Some or all of information on which gov’t Some or all of information on which gov’t makes its case may be withheld from makes its case may be withheld from named person and his/or her lawyernamed person and his/or her lawyer

Judge determines whether non-disclosure Judge determines whether non-disclosure warranted for reasons of national securitywarranted for reasons of national security

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Judge must provide named person with Judge must provide named person with summary of govt’s evidence summary of govt’s evidence

Summary must omit reference to non-Summary must omit reference to non-disclosed, confidential evidencedisclosed, confidential evidence

No right of appealNo right of appeal A ProblemA Problem: Deportation to country where : Deportation to country where

person may face torture or death illegalperson may face torture or death illegal ResultResult: Indefinite detention: Indefinite detention

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Charkaoui’s claimCharkaoui’s claim: IRPA violates,: IRPA violates, S.S. 77: right to life, liberty and security of the : right to life, liberty and security of the

person….principles of fundamental justiceperson….principles of fundamental justice S.S. 99: right against arbitrary detention: right against arbitrary detention S. 10S. 10 (c): right to prompt review of detention (c): right to prompt review of detention

((habeas corpus habeas corpus –more later)–more later) S. 12S. 12: right against cruel and unusual: right against cruel and unusual

punishment punishment S. 15S. 15: right to equal protection and equal benefit: right to equal protection and equal benefit

of the lawof the law

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SCC found three Charter breachesSCC found three Charter breaches

S.S. 77, , S. 9S. 9 & & S. 10 (c)S. 10 (c) all unjustifiably all unjustifiably infringed by IRPAinfringed by IRPA

Courts opinion authored by Chief Courts opinion authored by Chief Justice, Beverley McLachlinJustice, Beverley McLachlin

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Section 7Section 7

““The issue is whether the process is The issue is whether the process is fundamentally unfair to the affected fundamentally unfair to the affected person.” (296)person.” (296)

““The overarching principle of The overarching principle of fundamental justice that applies here fundamental justice that applies here is this: before the state can detain is this: before the state can detain people for significant periods of time, people for significant periods of time, it must accord them a it must accord them a fair judicial fair judicial processprocess…” (296)…” (296)

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Section 7, cont’dSection 7, cont’d

Fair judicial process involves:Fair judicial process involves: Right to a hearing involving…Right to a hearing involving…1.1. Independent and impartial magistrate/judgeIndependent and impartial magistrate/judge2.2. Decision on both the Decision on both the factsfacts and the and the lawlaw3.3. Right to know case put against one & right to Right to know case put against one & right to

answer that case (296-7)answer that case (296-7)

““the IRPA scheme meets the first the IRPA scheme meets the first requirement of independence and requirement of independence and impartiality, but fails to satisfy the second impartiality, but fails to satisfy the second and third requirements…” (297)and third requirements…” (297)

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Section 7, cont’dSection 7, cont’d

Gov’t allowed to present evidence Gov’t allowed to present evidence content of which unknown to named content of which unknown to named person or his/her lawyerperson or his/her lawyer

No opportunity of named person to No opportunity of named person to assess and challenge evidence; no assess and challenge evidence; no right to respondright to respond

No opportunity to submit own No opportunity to submit own evidence and challenge legal basis of evidence and challenge legal basis of govt’s casegovt’s case

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Section 7, cont’dSection 7, cont’d

““The normal standards used to ensure the The normal standards used to ensure the reliability of evidence in court do not reliability of evidence in court do not apply…The named person may be shown apply…The named person may be shown little or none of the material relied on by little or none of the material relied on by the ministers and the judge, and may the ministers and the judge, and may thus not be in a position to know or thus not be in a position to know or challenge the case against him or her. It challenge the case against him or her. It follows that the judge’s decision, while follows that the judge’s decision, while based on the evidence before him or her, based on the evidence before him or her, may not be based on may not be based on all the evidence all the evidence availableavailable.” (298, emphasis added).” (298, emphasis added)

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Section 7, cont’dSection 7, cont’d

“…“…the designated judge, despite his the designated judge, despite his or her best efforts to get all the or her best efforts to get all the relevant evidence, may be obliged – relevant evidence, may be obliged – perhaps unknowingly – to make the perhaps unknowingly – to make the required decision based on only part required decision based on only part of the relevant evidence.” (298)of the relevant evidence.” (298)

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Adversarial v InquisitorialAdversarial v Inquisitorial

Adversarial systemAdversarial system in Canada and other in Canada and other common law systemscommon law systems Judge relies on contesting parties to present best Judge relies on contesting parties to present best

evidence and arguments supporting his/her caseevidence and arguments supporting his/her case Inquisitorial systemInquisitorial system in Continental Europe and in Continental Europe and

other Civil Law jurisdictionsother Civil Law jurisdictions Judge’s responsibility to gather (and assess) Judge’s responsibility to gather (and assess)

evidenceevidence Under IRPA, “judge is not afforded power to Under IRPA, “judge is not afforded power to

independently investigate all relevant facts independently investigate all relevant facts that true inquisitorial judges enjoy”that true inquisitorial judges enjoy”

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Under IRPA, judge must rely exclusively Under IRPA, judge must rely exclusively on govt’s evidence and legal argumenton govt’s evidence and legal argument

Advantages of neither inquisitorial nor Advantages of neither inquisitorial nor adversarial systemsadversarial systems

“…“…without disclosure and full without disclosure and full participation throughout the process, participation throughout the process, [named person] may not be in a [named person] may not be in a position to put forward a full legal position to put forward a full legal argument.”argument.”

ConclusionsConclusions: : Distinct possibility that decision not Distinct possibility that decision not

based on all relevant based on all relevant evidenceevidence and and lawlaw

Violation of fair process; fundamental Violation of fair process; fundamental justicejustice

IRPA violates S. 7IRPA violates S. 7

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Next Step: Sec 1 AnalysisNext Step: Sec 1 Analysis

Can IRPA’s, violation of Sec. 7” be Can IRPA’s, violation of Sec. 7” be demonstrably justified in a fee and demonstrably justified in a fee and democratic society?”democratic society?”

Oakes TestOakes Test: : IRPA has “pressing and substantial IRPA has “pressing and substantial

objective”, national security (300)objective”, national security (300)✔✔ IRPA “rationally connected to this IRPA “rationally connected to this

objective” (300)objective” (300)✔✔ IRPA fails minimal impairment criterionIRPA fails minimal impairment criterion✗✗

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Less invasive alternatives availableLess invasive alternatives available Security Intelligence Review ActSecurity Intelligence Review Act establishes establishes

independent review body – independent review body – Security Security Intelligence Review Committee Intelligence Review Committee ((SIRCSIRC) – to ) – to assess denials of entry into Canada by assess denials of entry into Canada by Minister of Employment and Immigration and Minister of Employment and Immigration and Solicitor General “due to [the person’s] Solicitor General “due to [the person’s] involvement in organized crime, espionage, involvement in organized crime, espionage, subversion, acts of violence, etc…” (300)subversion, acts of violence, etc…” (300)

Some info. withheld from candidates for Some info. withheld from candidates for reasons of national security, but steps taken reasons of national security, but steps taken to minimize effectto minimize effect

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SICR, empowered to develop its own SICR, empowered to develop its own investigative procedures, “established a investigative procedures, “established a formal adversarial process, with ‘a court formal adversarial process, with ‘a court like hearing room’ and ‘procedures that like hearing room’ and ‘procedures that mirror judicial proceedings as much as mirror judicial proceedings as much as possible.” (301)possible.” (301)

Process includes “an independent panel Process includes “an independent panel of lawyers with security clearances to of lawyers with security clearances to act as counsel to SIRC.” (301)act as counsel to SIRC.” (301)

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““Special Counsels” Special Counsels” – charged with – charged with protecting & advancing interests of protecting & advancing interests of candidate for entrycandidate for entry

Not ideal from perspective of Not ideal from perspective of candidate’s right to fair hearing – he/she candidate’s right to fair hearing – he/she not privy to non-disclosed evidence and not privy to non-disclosed evidence and hence not in position to advise Special hence not in position to advise Special Counsel on, e.g., further evidence that Counsel on, e.g., further evidence that might help refute case for denial of might help refute case for denial of entryentry

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But: “SIRC’s procedures represented But: “SIRC’s procedures represented ‘an attempt to preserve the best ‘an attempt to preserve the best features of the adversarial process features of the adversarial process with its insistence on vigorous cross-with its insistence on vigorous cross-examination, but not to run afoul of examination, but not to run afoul of the requirements of national the requirements of national security’.” (301, security’.” (301, quoting from Rankin, quoting from Rankin, “The Security Intelligence Review “The Security Intelligence Review Committee: Reconciling National Security Committee: Reconciling National Security with Procedural Fairness.”)with Procedural Fairness.”)

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Other examples of better balances Other examples of better balances between national security and fairness between national security and fairness to the individualto the individual

Air India trial Air India trial – sensitive information – sensitive information disclosed to defence counsel but not disclosed to defence counsel but not accusedaccused

Arar Inquiry Arar Inquiry – use of Special Counsel– use of Special Counsel UK’s “Special Advocates” UK’s “Special Advocates” for deportation for deportation

cases involving national securitycases involving national security

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Conclusion re: S. 7 & S. 1Conclusion re: S. 7 & S. 1

““I conclude that the I conclude that the IRPAIRPA’s’s proceduresprocedures for for determining whether a certificate is reasonable and determining whether a certificate is reasonable and for detention review cannot be justified as for detention review cannot be justified as minimal minimal impairments impairments of the individual’s right to a judicial of the individual’s right to a judicial determination on the facts and the law and right to determination on the facts and the law and right to know and meet the case.  Mechanisms developed know and meet the case.  Mechanisms developed in Canada and abroad illustrate that the in Canada and abroad illustrate that the government can do more to protect the individual government can do more to protect the individual while keeping critical information confidential than while keeping critical information confidential than it has done in the it has done in the IRPAIRPA.  .  Precisely what more should Precisely what more should be done is a matter for Parliament to decide.  be done is a matter for Parliament to decide.  But it But it is clear that is clear that more must be done more must be done to meet the to meet the requirements of a free and democratic society.” requirements of a free and democratic society.” (303, emphasis added)(303, emphasis added)

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S. 9 and S. 10(c)S. 9 and S. 10(c)

““Section 9 of the Charter guarantees Section 9 of the Charter guarantees freedom from arbitrary detention.” freedom from arbitrary detention.” (303)(303)

Foreign nationals entitled to review Foreign nationals entitled to review within 120 dayswithin 120 days

Permanent Residents entitled to Permanent Residents entitled to review within 48 hoursreview within 48 hours

Freedom from arbitrary detention Freedom from arbitrary detention encompasses “the right to prompt encompasses “the right to prompt review.” (303)review.” (303)

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Clear that there is “a need for Clear that there is “a need for flexibility regarding the period for flexibility regarding the period for which a suspected terrorist may be which a suspected terrorist may be detained.”detained.”

“…“…state officials may need to act state officials may need to act immediately.”immediately.”

But, “this cannot justify the complete But, “this cannot justify the complete denial of timely detention review.”denial of timely detention review.”

Right of Right of “habeas corpus”“habeas corpus”

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Habeas CorpusHabeas Corpus

Latin: "you have the body”Latin: "you have the body” One of the concessions the British Monarch, One of the concessions the British Monarch,

King John, made in the King John, made in the Magna Carta Magna Carta and and has stood as a basic individual right against has stood as a basic individual right against arbitrary arrest and imprisonmentarbitrary arrest and imprisonment

““...no free man shall be taken or imprisoned ...no free man shall be taken or imprisoned or disseised or exiled or in any way or disseised or exiled or in any way destroyed except by the lawful judgment of destroyed except by the lawful judgment of their peers or by the law of the land.” their peers or by the law of the land.” ((Magna CartaMagna Carta))

Habeas Corpus, cont’dHabeas Corpus, cont’d

Writ of Habeas CorpusWrit of Habeas Corpus: judicial : judicial mandate to a prison official ordering mandate to a prison official ordering that an inmate be brought to the that an inmate be brought to the court to determine if inmate is court to determine if inmate is imprisoned lawfully or should be imprisoned lawfully or should be released from custody released from custody

E.g., must have sufficient evidence to E.g., must have sufficient evidence to warrant detention and (probably) warrant detention and (probably) trialtrial

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Back to CharkaouiBack to Charkaoui

In Charkaoui case: IRPA allows In Charkaoui case: IRPA allows detention without production of detention without production of evidence for significant periods of evidence for significant periods of timetime

Permanent residents: 48 hoursPermanent residents: 48 hours Foreign nationals: 120 daysForeign nationals: 120 days

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““Permanent residents who pose a danger Permanent residents who pose a danger to national security are also meant to be to national security are also meant to be removed expeditiously.  If this objective removed expeditiously.  If this objective can be pursued while providing can be pursued while providing permanent residents with a mandatory permanent residents with a mandatory detention review within 48 hours, then detention review within 48 hours, then how can a denial of review for foreign how can a denial of review for foreign nationals for 120 days after the nationals for 120 days after the certificate is confirmed be considered a certificate is confirmed be considered a minimal impairment?” minimal impairment?”

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Main ConclusionsMain Conclusions

1.1. “…“…the the IRPAIRPA’s’s procedure for the judicial procedure for the judicial confirmation of certificates and review confirmation of certificates and review of detention violates s. 7 of the of detention violates s. 7 of the CharterCharter and has not been shown to be justified and has not been shown to be justified under s. 1 of the under s. 1 of the CharterCharter.  I would .  I would declare the procedure to be declare the procedure to be inconsistent with the inconsistent with the CharterCharter, and , and hence of no force or effect.”hence of no force or effect.”

Declaration suspended for 1 year, thus Declaration suspended for 1 year, thus giving Parliament time to amend lawgiving Parliament time to amend law

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Conclusion re: S. 9 & 10(c)Conclusion re: S. 9 & 10(c)

2.2. “…“…the lack of timely review of the the lack of timely review of the detention of foreign nationals detention of foreign nationals violates s. 9 [arbitrary detention] and violates s. 9 [arbitrary detention] and s. 10(s. 10(cc) [habeas corpus] and cannot ) [habeas corpus] and cannot be saved by s. 1.”be saved by s. 1.”

Relevant sections of Act struck downRelevant sections of Act struck down In October, 2007 gov’t introduced In October, 2007 gov’t introduced

legislation incorporating “Special legislation incorporating “Special Advocate” system parallel to one used in Advocate” system parallel to one used in UKUK

Belmarsh Prison Case, 2004Belmarsh Prison Case, 2004

Anti-Terrorism, Crime and Security Anti-Terrorism, Crime and Security Act Act (ATCSA) passed by UK Parliament (ATCSA) passed by UK Parliament in 2001 in response to 9/11 in 2001 in response to 9/11

Parliament Parliament “derogated from” “derogated from” ECHRECHR I.e., “opted out” of sections of ECHR I.e., “opted out” of sections of ECHR

violated by ATCSAviolated by ATCSA Analogous to Canadian Charter’s Analogous to Canadian Charter’s

s.33 notwithstanding clauses.33 notwithstanding clause

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Derogation Under ECHRDerogation Under ECHR

““Article 15 – Derogation in time of Article 15 – Derogation in time of emergency emergency (1) In time of war or other public emergency (1) In time of war or other public emergency

threatening the life of the nation any High threatening the life of the nation any High Contracting Party may take measures Contracting Party may take measures derogating from its obligations under this derogating from its obligations under this Convention to the extent strictly required Convention to the extent strictly required by the exigencies of the situation, provided by the exigencies of the situation, provided that such measures are not inconsistent that such measures are not inconsistent with its other obligations under with its other obligations under international law.”international law.”

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Belmarsh, cont’dBelmarsh, cont’d

ProblemProblem: Insufficient evidence to warrant : Insufficient evidence to warrant criminal trial and detention in UKcriminal trial and detention in UK

Public trial threat to national securityPublic trial threat to national security Can’t detain indefinitely without trial Can’t detain indefinitely without trial

(Habeas Corpus)(Habeas Corpus) Can’t deport to country where person Can’t deport to country where person

might face torture or deathmight face torture or death ResultResult: Indefinite detention without trial: Indefinite detention without trial

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Belmarsh, cont’dBelmarsh, cont’d

Case before House of Lords, the (then) Case before House of Lords, the (then) highest court of appeal in UKhighest court of appeal in UK

RulingRuling: Indefinite detention not : Indefinite detention not necessary to prevent extremist attacks necessary to prevent extremist attacks

““Indefinite imprisonment without Indefinite imprisonment without charge or trial is anathema in any charge or trial is anathema in any country which observes the rule of law country which observes the rule of law “ (Lord Nicholls)“ (Lord Nicholls)

ATCSA unconstitutionalATCSA unconstitutional

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Belmarsh, cont’dBelmarsh, cont’d

Parliament’s response: Parliament’s response: Prevention of Prevention of Terrorism Act, 2005Terrorism Act, 2005

Indefinite detention replaced with Indefinite detention replaced with “control orders”“control orders”

Form of house arrestForm of house arrest Restrictions placed on movementRestrictions placed on movement Report daily to police stationReport daily to police station

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Back to Charkaoui:Back to Charkaoui:QuestionsQuestions

1.1. Even with the use of special Even with the use of special counsel, does the security certificate counsel, does the security certificate process strike a reasonable balance process strike a reasonable balance between rights and state interest in between rights and state interest in preventing terrorism?preventing terrorism?

2.2. Is it still unfair to the named person Is it still unfair to the named person not to know the evidence against not to know the evidence against him/her?him/her?

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Questions cont’dQuestions cont’d

3.3. Does the new process still Does the new process still unjustifiably violate habeas corpus? unjustifiably violate habeas corpus? Due process? Natural Justice?Due process? Natural Justice?

4.4. Should the normal rules of evidence Should the normal rules of evidence be used, instead of rules which be used, instead of rules which allow, e.g., for use of hearsay allow, e.g., for use of hearsay evidence? (N.B. Judge has evidence? (N.B. Judge has discretiondiscretion to allow whatever evidence he/she to allow whatever evidence he/she thinks is relevant.)thinks is relevant.)

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Questions cont’dQuestions cont’d

5.5. The standard of proof gov’t has to The standard of proof gov’t has to meet is very low – “reasonable meet is very low – “reasonable grounds to believe” that named grounds to believe” that named person threat to national security. person threat to national security. Special counsel therefore in position Special counsel therefore in position of having to of having to prove prove that it is not that it is not reasonable to believereasonable to believe that named that named person poses threat to security of person poses threat to security of Canada. Canada.

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Questions cont’dQuestions cont’d

Is this standard high enough? Is this standard high enough?

Or should higher standard of proof be Or should higher standard of proof be used: e.g., used: e.g.,

““probable that” probable that” ““highly probable that” or highly probable that” or ““beyond a reasonable doubt”?beyond a reasonable doubt”?

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Questions cont’dQuestions cont’d

6.6. Is indefinite detention consistent Is indefinite detention consistent with principles of fundamental with principles of fundamental justice? justice?

Or would (UK type) “control orders” Or would (UK type) “control orders” be preferable?be preferable?

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