The prospect of change appeared slight, but persistence eventually paid off. The Supreme Court of Canada (SCC) overturned these rulings when it laid down its judgments in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 SCR 350, (hereinafter “Charkaoui I”) and Charkaoui v. Canada (Citizenship and Immigration), [2008] 2 SCR 326, (hereinafter “Charkaoui II”). Reversing years of jurisprudence, including its own judgment in Canada (Minister of Employment and Immigration) v. Chiarelli, [1992] 1 S.C.R. 711, the SCC found that ss. 7, 9, and 10(c) of the Charter of Rights and Freedoms require that named persons be provided with procedural rights customarily reserved for persons accused of committing crimes. Perhaps more significant than the formal changes subsequently made to the Immigration and Refugee Protection Act (IRPA) have been the changes in Federal Court judges’ attitudes towards certificate proceedings. The very same judges who refused to recognize named persons Charter rights prior to Charkaoui I and II have since exercised their statutorily authorized discretion to extend to named persons rights beyond that which is expressly provided in IRPA. Times are changing, indeed.

Then, on 14 October, 2009, the Federal Court in Charkaoui (Re), (2009) CF 1030, went further than many would have imagined: it ruled that the certificate issued against Mr. Charkaoui was illegal, null, and ultra vires the Ministers of Citizenship and of Public Safety (“the Ministers”). This decision was most directly prompted by the government’s withdrawal of key pieces of evidence; a tactic employed in numerous jurisdictions to protect the confidentiality of sensitive information which would otherwise have to be disclosed. The reviewing judge in this case, Tremblay-Lamer J., found that the withdrawal of this evidence rendered the certificate factually unsupportable and ruled that the only appropriate remedy was to quash it, setting Mr. Charkaoui free. To add force to her disapproval of the Ministers’ strategy, she proceeded to refuse their request to have certified a set of questions for the Court of Appeal. One could be excused for seeing in this judgment a fitting end to Mr. Charkaoui’s 7-year struggle. Such a result, however, is unlikely to be the case.

Context: The Background, Facts, and Issues

Adil Charkaoui, a permanent resident in Canada, was named in a security certificate jointly issued on May 9, 2003 by the Minister of Citizenship and Immigration and what was then the Solicitor General. A warrant for his arrest was issued on May 16 and executed on May 21, at which point he was detained until his conditional release was ordered in February 2005. As a person named in a security certificate, Mr. Charkaoui was throughout this period denied access to evidence the disclosure of which would, in the opinion of the judges reviewing the reasonableness of his certificate, compromise national security or the safety of any person. Although undisclosed to Mr. Charkaoui, this evidence could still be considered by reviewing judges during closed-door hearings and form the basis of their decision about the reasonableness of the certificate. According to s. 80 of IRPA, a certificate found to be reasonable stands as conclusive proof that the person named in it is inadmissible to Canada and serves as an effective removal order.

Detained indefinitely, facing the prospect of deportation as an alleged terrorist, and unable to effectively defend himself, Mr. Charkaoui quickly initiated a series of constitutional challenges to the security certificate regime. In Charkaoui v. Canada (Minister of Citizenship and Immigration), [2004] 3 FCR 32, and Charkaoui v. Canada (Minister of Citizenship and Immigration), (2005) FC 149, he cumulatively argued that: security certificates were discriminatory; that the non-retention and non-disclosure of relevant information to named persons violated their s. 7 Charter right to know the case against them; that the exclusion of named persons from substantial portions of proceedings, even if for the purposes of protecting the confidentiality of sensitive intelligence, violated their s. 7 right to respond to the case against them; and, that the lack of these and other procedural rights impaired reviewing judges’ capacity to fairly, independently, and impartially decide cases on the basis of the facts and the law.

None of these claims met with much success at the Federal Court level. In Charkaoui I, however, the SCC ruled that existing levels of secrecy unjustifiably infringed named persons’ s. 7 right to a fair hearing, principally because named persons face indefinite detentions and may be deported to face the substantial risk if persecution and –under exceptional circumstances– torture and similar abuses (at paras. 13-18, 65, 87). The government subsequently amended IRPA, authorizing security-cleared Special Advocates (SAs) to access, as well as to challenge the relevance, reliability, and sufficiency of, evidence tendered during secret hearings. Amendments to IRPA helped integrate criminal law values of fairness and adversarial challenge into proceedings that were, by this time, generally recognized to be quasi-criminal in character. In Charkaoui II, the SCC further enhanced levels of disclosure and adversarial challenge by requiring intelligence agencies and the Ministers to retain and disclose to reviewing judges and SAs all information in their possession relevant to a named person. The SCC further instructed reviewing judges to draft and then forward to named persons accurate summaries of this information in the event that such information could not be fully disclosed for reasons of national security or the safety of any person.

Charkaoui (Re) dealt with the criteria that reviewing judges are to use when deciding whether the disclosure of information would be injurious to national security or the safety of any person. In particular, it concerned how they are to resolve the tensions between the state’s interest in maintaining the secrecy of national security-based information and named persons’ right to be reasonably informed of the case against them, principally through the provision of summaries of undisclosed information. Problems began immediately following Charkaoui II, when Mr. Charkaoui and his SAs requested the disclosure of considerable amounts of previously unreleased information. Notwithstanding the Ministers’ arguments to the contrary, Tremblay-Lamer J. found that certain evidence could be disclosed to Mr. Charkaoui without compromising national security or the safety of any person. She proceeded to order the Ministers to disclose this evidence directly to Mr. Charkaoui and to further submit (during closed hearings) original copies of CSIS’ operational notes pertaining to this evidence. Tremblay J. then indicated that she would forward to Mr. Charkaoui summaries of these originals and associated information, and would include details the Minister had insisted could not be safely disclosed. Unwilling to see any of this information and other evidence disclosed, the Ministers invoked s. 83(1)(j) of IRPA, which reads:

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.

By withdrawing key evidence, the court lacked the authority to require the disclosure of the contested information, either in full or in summary form. This had the additional effect of securing the confidentiality of CSIS’ operational notes, since Charkaoui II-disclosure is designed to help reviewing judges and SAs test the veracity and credibility of evidence. Without attendant evidence for the reviewing judge to vet for veracity and credibility, the totality of information that was the subject of the Court Order became, on one reading, irrelevant and hence non-compellable. Of course, an inconvenient side effect was that the Ministers lacked sufficient evidence to support the reasonableness of the certificate.

Why would the Ministers willingly compromise the reasonableness of the certificate in order to avoid disclosing information to security-cleared officials obligated to maintain its confidentiality? First, and most obviously, they hoped to preserve the confidentiality of sensitive information. More importantly, though, the Ministers wanted to force a decision on the reasonableness of the certificate so they could then have certified a set of questions for the Court of Appeal. In general, their questions related to what criteria reviewing judges are to use when deciding whether the disclosure of information and other evidence submitted by the Minister would be injurious to national security or the safety of any person (at para. 49). In particular, the Ministers wanted to know: first, how judges are to balance the inherent tension between their duty to safeguard the confidentiality of sensitive information and their duty to protect named persons’ right to be reasonably informed of the case against them through the provision of summaries; and, second, they wanted to know how much weight should be given to the fact that named persons are represented by SAs when judges consider how to resolve this tension.

Given the Ministers’ admission, on 31 July, 2009, that they lacked enough evidence to support the reasonableness of the certificate, the court thought it appropriate to resolve all of these questions at once. It accordingly put the following questions to the Ministers, Mr. Charkaoui, and the SAs:

A. Le certificat est-il valide et raisonnable ?
B. Les questions proposées par les ministres doivent-elles être certifies? (at para. 22)

The Judgement

The court very quickly disposed of the question about the legal status of the certificate: it was null and void the moment the Ministers admitted they lacked evidence sufficient to justify the certificate (at para. 28). Tremblay-Lamer J. based her decision on s. 77(2) of IRPA, which obligates the Ministers to “file with the Court the information and other evidence on which the certificate is based” immediately upon the referral of the certificate to the Federal Court. Without this accompanying information, such a certificate would be ultra vires the Ministers’ authority, illegal, and null (at para. 24).

Was this the situation here? It was not initially, as the Ministers filed supporting information when they first referred Mr. Charkaoui’s certificate to the Federal Court. However, as per s. 83(1)(j) of IRPA, the withdrawal of this evidence precluded the reviewing judge from basing any decision on it, and so whatever information was initially submitted ceased to perform the necessary function contemplated by s. 77(2). The non-existence of factual support sufficient to base a decision on the certificate’s reasonableness rendered the certificate unjustifiable (and not simply unjustified) and, accordingly, not mandated by any terms of law.

The court did not entertain the Ministers’ argument that s. 77(2) was satisfied by virtue of the fact that the withdrawn evidence still existed materially and was in the process of being reintegrated into the government’s investigative file on Mr. Charkaoui. This argument, Tremblay-Lamer J. noted, was an element of the Ministers’ plan to obtain from the Court of Appeal a judgment narrowing its disclosure obligations. Once obtained, the Ministers would then have re-filed the withdrawn information and proceeded as though none of this had happened (at para. 30). For reasons that will be made clearer later, Tremblay-Lamer J. refused to certify the Ministers questions for the Court of Appeal. In any event, Tremblay-Lamer J. could not regard this legal strategy as sufficient to enable actions not authorized under the terms of IRPA. Put another way, the answers to future legal questions, no matter how pressing they may be, cannot be arrived at through procedurally improper means.

It is true that the court might have ruled on the reasonableness of the certificate rather than declaring it to be null. Tremblay-Lamer J. stated in no uncertain terms that she would have found the certificate to be unreasonable were she to have taken this approach (at para. 44). This would not, however, have affected her decision about whether to certify the Ministers questions for the Court of Appeal. She wanted to be clear that the Ministers do not posses the discretion whether or not to revoke a certificate the existence of which has no factual support (at para. 34). The Ministers’ refusal to revoke such a certificate rendered it illegal, and not simply unreasonable. Faced with the Ministers’ refusal to withdraw the certificate, Tremblay-Lamer J. was forced to quash it herself, consistently with her authority under s. 18(1) of the The Federal Courts Act, R.S. 1985 c. F-7:

(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal.

When dealing with the Ministers’ questions for the Court of Appeal, Tremblay-Lamer J. was bound to apply s. 79 of IRPA. Section 79 states that:

An appeal from the determination 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.

On the whole, s. 79 provides a limited right of appeal, reinforcing reviewing judges’ general obligation, imposed under s. 83(1)(a), to conduct proceedings “as informally and expeditiously” as possible. This in mind, the Federal Court has established a strong line of case law on what constitutes a question of serious and general importance. Established in such cases as Varela v. Canada (Citizenship and Immigration), (2009) FCA 14, Zazai v. Canada (Minister of Citizenship and Immigration), (2004) FCA 89, Bath v. Canada (Minister of Citizenship and Immigration), [1999] FCJ No. 1207, and Gallardo v. Canada (Minister of Citizenship and Immigration), [2003] FCT 45, the applicable criteria are: that the question transcend the interests of the parties to that case; that its (non-)resolution have important consequences for outside parties; that it be dispositive of the appeal; and, that the question arise from the facts of a case. This last criterion has, as recently as in Varela, been specified to mean that the question arise “from the issues in the case and not from the judge’s reasons” (at para. 29). The question, in other words, must be one of law or mixed law and fact and not one of pure fact.

Mr. Charkaoui argued that the Ministers’ questions failed the s. 79 threshold because they were questions of fact. In his submission, the Ministers simply disagreed with Tremblay-Lamer J.’s finding that certain levels of disclosure would, in fact, not be injurious to national security or the safety of any person and were hoping to get a second opinion (at para. 57). Similarly, the general legal question of what criteria should be used when making these types of determinations had, in Mr. Charkaoui’s view, already been sufficiently answered in Charkaoui II. The SAs echoed these points, arguing that that the reviewing judge did not commit an error of law by “balancing” national security and procedural fairness, deciding at the end of the day that Mr. Charkaoui’s (and the public’s) interest in disclosure outweighed the government’s interest in confidentiality (at paras. 62-64). Were this to be the case, the SAs conceded the question would have been one of mixed law and fact (at para. 65), since both Charkaoui II and IRPA clearly state that no information is to be disclosed if its release would be injurious to national security or personal safety: there is an absolute bar on the disclosure of this kind of information, regardless of what may be a named person’s or the public’s interest in disclosure. But Tremblay-Lamer J. did not balance competing interests in this way; she simply ordered the disclosure of information that she expressly decided would not compromise national security or the safety of any person if released. The issue was solely about whether this was a factually correct determination and whether an improper balancing or trade-off had occurred.

On the strength of these reasons, Tremblay-Lamer J. found that the Ministers’ questions were not questions of serious and general importance. Rather, they formed part of an attempt to garner a “second opinion” on whether the disclosure of certain information would, in fact, be injurious to national security or the safety of any person. It was hoped that this would allow the re-submission of information without having to comply with Tremblay-Lamer J.’s orders. Accordingly, she refused to certify the Ministers’ questions, ending Mr. Charkaoui’s 7 year struggle –for now.

Concluding Thoughts

There is something seductive about landmark judgments. They are dramatic, cathartic, and can reaffirm our faith in law as an instrument of justice. Although Charkaoui (Re) will probably not change much by way of the law, it is part of a stream of cases that have radically altered the character of certificate proceedings in a fairly short period of time. On the one hand, Charkaoui (Re) reflects deep transformations in some basic categories of thought about the “nature” of certificate proceedings and the rights to which non-citizens are entitled. Just a few short years ago, our Federal Courts flatly rejected most of Mr. Charkaoui’s constitutional arguments. Certificate proceedings, we were told, are administrative and not criminal in nature, while it is axiomatic that non-citizens are not entitled to as full a range of rights as are citizens (particularly in the context of national security.)

Yet, these same courts reversed their positions following the SCC’s judgments in Charkaoui I and II. Whatever may have been the reason for their reluctance to take the initial steps, they have followed the SCC’s lead by taking an expansive view of named persons’ rights and imposing upon the government exacting disclosure obligations. Charkaoui (Re) is but one of a number of recent decisions in which our courts have refused to defer to the judgments of our intelligence community concerning what information can safely be disclosed to named persons and their SAs. Of course, Charkaoui (Re) captures our attention because of the way it ended: with the quashing of a certificate, the release of a high profile detainee, and a judge’s biting criticism of the Ministers’ excess of the powers conferred upon them by Parliament. This was, in her view, not a matter of judges substituting their personal values for those of the government or of preferring the rights of non-citizens to the public’s interest in safeguarding the integrity of our national security operations. This was, instead, a matter of her exercising the judgment and discretion democratically conferred upon her by Parliament. Given the Federal Court’s track record in this area, the Ministers could be excused for being surprised at how suddenly and closely reviewing judges have scrutinized them.

On the other hand, there is an important transnational dimension to this case and certificate proceedings generally. Clearly, this dimension has to be presupposed when immigration law provisions stand as the primary means by which the government has chosen to deal with global terrorism. We have, for good reasons, integrated many of our intelligence and law-enforcement activities with those of foreign states, blurring the boundaries between what is domestic and international, administrative and criminal, civilian and law-enforcement. But Canadian judges and lawyers have similarly joined transnational networks, opening up channels of decision-making to a range of external stimuli. In Secretary of State for Home Department and AN, [2009] EWHC 1966 (Admin.), for instance, Mitting J. issued a judgment similar to Tremblay-Lamer J.’s, finding that the withdrawal of proof sufficient to support a control order (which is similar to a security certificate) rendered the decision to issue it flawed. Unlike Tremblay-Lamer J., however, Mitting J. refused to quash the order, choosing instead to direct the Secretary of State to revoke the order. Although she chose to provide a different remedy, Tremblay-Lamer J. derived principled support from this decision and integrated it into the appendix to her judgment. It may be that Charkaoui (Re) will rebound back to the UK, supporting a judicial willingness to quash flawed decisions to issue control orders.

Another example of how our judges have responded to international and foreign legal developments lies in their efforts to enhance the performance capacity of SAs and named person’s counsel. In Charkaoui I, the SCC relied on international and foreign law when reflecting on how IRPA could be made to consist with the Charter (at paras. 80-82). In response, our government borrowed heavily from the UK when modeling our special advocate system. As part of this borrowing, however, we integrated a number of the UK model’s most serious deficiencies, such as its failure to grant SAs the power to subpoena documents and witnesses or to freely communicate with named persons. These deficiencies have been well-documented by Canadian Parliamentary committees, counsel and interveners in Charkaoui I and II, and the SCC. Importantly, changing attitudes among reviewing judges has bolstered a willingness to remedy many of these deficiencies by infusing comparatively high levels of disclosure and adversarial challenge into certificate proceedings. Charkaoui (Re), for instance, exemplifies how the Ministers’ expanded obligation to disclose relevant information not submitted as evidence and the judicial provision of detailed summaries of confidential information counter-balance, respectively, SAs inability to subpoena documents and witnesses and named person’s inability to freely communicate with their SAs. Charkaoui (Re) serves as but one example of how engagement with other legal systems can improve law’s responsiveness to changing social needs, values, and expectations. This dialogue is in full swing, standing as one reason why Charkaoui (Re), although in one sense cathartic, is just a small piece of an ongoing story.

Despite these positive notes, then, one would do well to guard against the belief that Canada’s overall detention and deportation practices will change in some grand manner. True, Mr. Charkaoui’s certificate has been quashed, but so was Mahmoud Jaballah’s…twice. Mr. Jaballah is still awaiting a determination of the reasonableness of a third certificate. There is nothing at all preventing the Ministers from issuing another certificate against Mr. Charkaoui, relying in the meantime on intrusive investigative techniques in order to gather fresh evidence which the Ministers can tolerate disclosing; here, too, the Ministers may learn a little from how Secretary of State for the Home Department is adapting to UK courts’ rulings.

More generally, we should also remember that standard admissibility hearings, and not certificate proceedings, are the site in which most non-citizens come into contact with Canadian national security law and policy. While landmark judgments and high-profile courtroom battles are thrilling, the reality is that the lion’s share of national security-based detentions and deportations occur under the radar and are handled, not by the Federal Court, but by the Immigration Division of the Immigration and Refugee Protection Board. As with certificate proceedings, a different set of rules apply during national security-based admissibility hearings, with affected persons having little access to secret evidence and few committed human rights advocates to help them. There is nothing new in the use of public safety as a means of denying aliens entry into Canadian territory, nor any reason to think that this will change any time soon.

So, on the whole, there is cause for celebration. Much has changed in a short period of time, and committed human rights advocates should be proud of what they have accomplished. But, while Charkaoui (Re) may seem a fitting end to Mr. Charkaoui’s struggle, it is best not to be overcome by euphoria: there is much work yet to be done.

The Background

The security certificate regime found in the Immigration and Refugee Protection Act and its related court battles should be a familiar topic to readers of TheCourt.ca, being the subject of headline-making legislative amendments, and groundbreaking rulings. In brief, however, the regime allows for the detention and removal of anyone posing a threat to national security. Because evidence relating to these proceedings can be confidential and highly sensitive to security matters, the regime allows for a variety of unusual secrecy mechanisms: the evidence may be heard in secret, in the absence of the detainee; and evidence may be withheld from disclosure to the detainee or his solicitor.

In 2007, the Supreme Court of Canada held that these secrecy mechanisms violated the s.7 Charter right to a fair judicial process. The key failing of the regime was that it allowed for the detention and deportation of an individual “without providing for an independent agent at the stage of judicial review to better protect the named person’s interests.” The SCC recognized that the pressing need to preserve some level of secrecy over information concerning national security means that in some circumstances ‘administrative constraints’ might make it impossible for the government to adhere to procedural protections in their usual form. That is to say, there are times when national security prevents the government from disclosing information in the traditional manner. In such circumstances, however, the government must provide some other ‘meaningful and substantial’ substitute for normal procedural protection. National security does not give the government a carte blanche to violate procedural rights – s.7 demands some creative adherence to fundamental justice.

The 2007 Amendments

It was against this backdrop that in late-2007 parliament amended the IRPA. The new amendments provide for ‘special advocates’ who may appear at the secret hearings and gain access to secret evidence in the absence of the detainee. These security-cleared lawyers would act to ensure that the interests and rights of the detainee are protected in the hearings, and may challenge the government’s case. Importantly, however, their ability to communicate with the detainees, other lawyers and the public is significantly curtailed. S.85.4 of the new Act states that once a special advocate receives secret evidence, he or she cannot communicate with any other person about the proceedings except with authorization of the presiding judge. This meant that special advocates could not speak with their clients, other lawyers, members of the public, the media or any one else about anything concerning to the proceedings, whether it was about the confidential information or not.

The Case

In short, the applicants in the Almrei case argued that the restrictions on special advocates simply go too far. Read liberally, they would restrict special advocates from communicating with their spouses concerning travel to or from hearings, it would restrict communication with administrative and support staff, and communication with other special advocates on the same case. In attempting to strike a balance between protecting national security and protecting the procedural rights of the detainees, parliament simply tipped the scales too far to the side of national security.

At the end of the day, however, Chief Justice Allan Lutfy balked at the challenge stating that notwithstanding the applicant’s understandable anxiety and frustration, without time for an evidentiary base to develop, the claim is at best speculative. It would be preferable to wait and see how the regime operates in practice rather that rule on its constitutionality simply on the basis of hypotheticals. The applicants admittedly characterized their challenge as a ‘facial challenge’ based almost entirely on legislative facts rather than adjudicative facts, but perhaps with good reason. It is hard to see what evidence might develop given that the special advocates find themselves unable to communicate.

In any event, the constitutional dialogue over security certificates has come to a temporary impasse. If the history of this issue is any indication, however, this writer is willing to bet that the last word has yet to be spoken.

This order represents the first application of the recent Supreme Court ruling in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38 (known as Charkaoui #2), which held, among other things, that in targeted investigations, CSIS is required to adhere to information retention and disclosure standards comparable to those of a police force.

Both Adil Charkaoui and Mohamed Harkat are individuals subject to security certificates, which are a quasi-administrative mechanism under the Immigration and Refugee Protection Act (2001, c. 27) (IRPA) that allows for the indefinite detention (ostensibly pending deportation) of non-citizens deemed to represent a threat to Canada’s national security. The dossiers of information that form the basis of the state’s arguments in certificate cases are comprised of intelligence collected by CSIS, and the government is able to use a claim of national security confidentiality prerogative to withhold this material from certificate subjects, their counsel, and the public.

The recent introduction of Special Advocates in security certificate cases (mandated by Bill C-3) has, in theory, exposed some of this material to critical examination by a party other than the presiding Judge of the Federal Court for the first time. However, since the Special Advocates are barred from communicating with anyone (even each other, and especially the certificate subject and his counsel) after viewing the sensitive material, security certificate cases remain “secret trials” to all but a select few.

Interpreting the Order

When Judge Noël issued his order and a companion communication to the parties in Harkat, some commentators – particularly the media – interpreted it to mean that the veil of secrecy was finally being lifted, and that Mr. Harkat’s counsel would finally be able to argue the facts of his case in open court. For example, CBC News ran a story with the headline “Feds ordered to share evidence with defence in Harkat security case”, which opened with the sentence “All intelligence and information related to the case of an Ottawa man arrested in 2002 on a security certificate must be released by the federal government to his lawyers, a Federal Court judge has ruled”. The Canadian Press ran with “Terror suspect wins right to see spy agency documents”, a story that began by stating that “[a]ccused terrorist Mohamed Harkat has won the right to see secret material compiled against him by the Canadian Security Intelligence Service”.

Both stories later noted that there could be a delay of up to six months before the material in question becomes available to Mr. Harkat’s counsel, reflecting Judge Noël’s communication (at para’s 3 & 4), which notes that CSIS has argued that it needs time to disclose its records, but that the Service promises to act expeditiously and make material available once it is identified as being relevant.

But neither story reported on what is, to my mind, the most significant aspect of Judge Noël’s order and communication – that, rather than simply requiring disclosure and setting a rough timeline, it places the Federal Court in the position of information gatekeeper. The flow of records will not go directly from CSIS to Mr. Harkat’s counsel. Instead, records deemed by CSIS to be of relevance to Mr. Harkat’s case will be disclosed to the Federal Court, and the Court will “determine the scope of possible further disclosure to Mr. Harkat” (Communication, para. 6). While it is possible, and perhaps even probable, that this will translate into a significant and ongoing process of disclosure, this is by no means a given. With this order, the Court has essentially set itself up as the arbiter of reasonableness when it comes to the disclosure of sensitive material in designated proceedings. Those who assume that something that resembles full disclosure (as suggested in the quoted headlines) will ensue should bear in mind that the Federal Court has, in the past, been sympathetic to state arguments about the need for national security confidentiality.

In reality, the implications of the order are potentially far more conservative. CSIS will, over the course of the next six months, release its records to the Federal Court. Presumably, the Special Advocates acting on behalf of Mr. Harkat – but not able to communicate with him, and not bound to a solicitor-client relationship – will have full access to this material, and will be able to challenge it in in camera, ex parte hearings. It will be the responsibility of the Federal Court to sift through the accumulated records, and decide whether and to what extent they will be released to the public counsel for Mr. Harkat. The only major media outlet to catch this important nuance was the Ottawa Citizen, in a September 25 article by Andrew Duffy.

Conclusion

The security certificate process continues its incremental creep towards fairness, but it still remains highly secretive. Judge Noël’s order and explanatory communication did not usher in a new era of openness for Mr. Harkat’s case, or the cases of other security certificate subjects. In fact, it is difficult, at this juncture, to understand exactly what the end result of the application of Judge Noël’s order might look like, particularly assuming that similar processes of filtered disclosure will take place in the cases of Almrei, Charkaoui, Mahjoub, and Jaballah, in addition to Harkat. Judge Noël has acknowledged as being reasonable CSIS’s claim that the disclosure of its full dossier of information – thousands of records in the Harkat case alone – will require six months. Some of this material (I suspect a great deal of it, actually) has not previously appeared before the Federal Court. So, the Judges hearing the five ongoing security certificate cases – each with several upcoming hearings – will now face the additional burden imposed by the need to expeditiously review stacks of CSIS documents, in some cases stretching back over a decade. How they will accomplish this, or on what basis they will determine whether a given record should be disclosed to public counsel, remains to be seen. In closing, I can’t help but continue to point out that, the more procedural nuance, bureaucratic baggage, and general complexity security certificate cases acquire (a trend destined to continue), the less tenable arguments in favour of the mechanism become. By now, even a criminal trial involving tailor-made amicus curiae and confidentiality measures would be comparatively simple, given the alternative, with its special rules, special advocates, special prison, and a laundry list of special problems.

At issue was the Canadian Security Intelligence Service’s admitted destruction of the notes and recordings of an interview with Mr. Charkaoui – materials that had served as the basis of his detention under a security certificate – before the evidence could be examined in court. Mr. Charkaoui had argued that CSIS ought to have disclosed the destruction policy when proceedings started against him, interpreted s. 12 of the Canadian Security Intelligence Service Act more broadly than simply requiring the retention of information supporting arguments that individuals posed a danger, met their duty to disclose evidence promptly, and ought not to have issued a security certificate based on their investigation. Mr. Charkaoui also argued that the Federal Court of Appeal had underestimated the impact of the above breaches on his rights, and that it should not have upheld a Federal Court judge’s approval of the use of supporting evidence obtained subsequent to the original decision to hold Mr. Charkaoui on a security certificate.

Meanwhile, as Mr. Charkaoui fought in the courts, outside the courthouse a variety of people and organizations gathered to protest on his behalf. One of the people who helped to organize that demonstration was Mary Foster from the aptly named Justice for Adil action group that is spearheading Mr. Charkaoui’s campaign. TheCourt.ca asked her a couple of questions via email.

TheCourt.ca: In protesting outside the court, what was the message for the public?

Mary Foster: We wanted to bounce off the public attention generated by the court hearing to draw attention to CSIS profiling and harassment of immigrant and other targetted groups.

The Court.ca: Traditionalists would argue that the Supreme Court does not play an explicitly political role. What role do you see the court playing and should they be playing a different one?

MF: Whether we have a “political” court, or a court which seeks to present its decisions as mere application of legal principles, the court’s decisions are filtered through a narrow debate conducted among a legal elite which is influenced by the wider political climate. I think a more interesting question would be whether and how, at a popular level, we can hope to push the Supreme Court to make more progressive decisions, more reflective of the reality of those who are directly affected by their decisions, in a time of political conservatism such as the one we are currently living through.

TheCourt.ca: How does the Supreme Court litigation fit in with the lobbying and mobilization efforts taking place around security certificates?

MF: [It is] complementary. Our purpose is to build popular opposition to the injustices perpetrated by the security certificate system based on principles of solidarity and respect for the dignity and freedom of all. Our role is to help demystify the legal and political systems when they threaten to block the application of those principles by side-tracking people into narrow, legalistic debates which divert from the core issues.

TheCourt.ca: Now that Parliament has passed a new security certificates bill, will we see Mr. Charkaoui back in the courts?

MF: If the government decides to issue new security certificates on the basis of this law – which resembles the old law in all essential aspects – against those who are currently under the certificate, [those charged under security certificates] will have no choice but to contest its legality. The legal framework obviously does not offer them an opportunity to clear their name; it threatens them with endless more years of arbitrary detention, and deportation to torture, so there is really no other option but to contest. The question of when and how to launch a challenge is being discussed, not sure much more than that can be said at the moment.

Regarding justification under s. 1 of the Charter the SCC wrote that

The rights protected by section 7—life liberty and the security of the person—are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests. It follows that violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under section 1.

Further on in the decision the SCC wrote that

These alternative suggest that the IRPA regime, which places on the judge the entire burden of protecting the person’s interest, there is not minimally impair the rights of non-citizens, and hence cannot be saved under s. 1 of the Charter.

The SCC went on to review a number of different models under the heading “Less Intrusive Alternatives.”

Included in these alternatives were:

1. the Security Intelligence Review Committee model which in the past had been used in national security matters;
2. the Canada Evidence Act model found in sections 37 to 39 of the CEA;
3. the Arar Inquiry model and
4. the special advocate model employed by the Special Immigration Appeals Commission in the United Kingdom.

In the first two models, special counsel may communicate with the person involved after having seen the secret evidence, while in the third model, a defendant’s counsel is allowed access to such evidence. In all these cases, counsel must avoid disclosing the secret evidence to the person concerned, but can ask the person questions aimed at testing its accuracy.

The SCC noted that the UK special advocate system was criticized in the House of Constitutional Affairs Committee report on the operation of SIAC and the use of special advocates.

The Committee listed three important disadvantages faced by the special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant’s counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses.

Well after the Supreme Court of Canada decision, in July 2007, the Joint Committee on Human Rights of the U.K. House of Commons and House of Lords concluded that the British special advocate process was “very far removed from what we would consider to be anything like a fair procedure.” To make the system minimally fair, it recommended that special advocates be allowed to communicate with the person concerned after having seen the secret evidence, that the government be obliged to inform the person of the gist of its case against him and that the government be held to a higher standard of proof, preferably a balance of probabilities standard.

On October 22, 2007 the Harper government introduced Bill C-3, an act to amend IRPA by providing for a special advocate in the security certificate reasonableness hearing. I presume that the Bill was drafted by the same government lawyers who until February 23, 2007 had successfully argued over the decades that the procedures for determining the reasonableness of the security certificate complied with the principles of fundamental justice. The government lawyers, rather than learning from the experience of the special advocates in the UK, have in effect reproduced the UK model.

I presume that counsel for the security certificate detainees will argue that the bare-bones special advocate model in Bill C-3 does not satisfy the “Case to Meet” Principle. I certainly intend to advance that argument on behalf of Mohamed Harkat and Hassan Almrei. My guarded prediction is that several years from now the Supreme Court of Canada will again rule that the procedure for determining the reasonableness of the security certificate violates s. 7 of the Charter.

The “lack of resources an ordinary legal team, for the purposes of conducting in secret a full defence” is a vitally important omission from Bill C-3. Unless one is litigating these cases on almost a full-time basis, it will be impossible to know the detailed and intricate background of the jihad fought by the muhadajeen in Afghanistan. An adequately funded and competent research facility is essential to seeing some modicum of justice done.

In Bill C-3 there is a requirement that those to be considered for appointment as special advocates must have five years of litigation experience. In my view that level of experience is woefully inadequate for the almost impossible task that will be faced by the special advocates.

By striking down the security certificate procedures, the Supreme Court of Canada allowed Canada to catch up with the UK circa 1996 after the European Court of Human Rights struck down the UK security certificate provisions in the Chahal case.
Bill C-3 would leave Canada where the UK was in 1996 and where the UK is at the present time.

Canada should be a leader in human rights values in the world. If we are going to have a special advocate model, many amendments and additions are required to Bill C-3.

In light of Charkaoui, Parliament has some serious work to do. By deferring the full effect of the decision for one year, the Court made an important statement about the need to balance concerns for national security with a full respect for the legal and legislative processes. An immediate striking of the violating provisions of the Immigration and Refugee Protection Act would have created a climate of urgency and crisis, not unlike that surrounding the hasty drafting of the Anti Terrorism Act in the immediate aftermath of the September 11 attacks. Rather than risk the effects of a hasty, politicized Parliamentary process, the Court has made it clear, through the deferral of its decision, that the issue of non-citizen security detention is serious enough to warrant careful consideration.

I want to make a few comments about what must go into the Parliamentary process that will follow from the Charkaoui decision, in addition to the more obvious concerns about representation, secrecy, and detention review. While the SCC has given some clear recommendations and guidance in terms of the how and when of an acceptable security detention procedure, it has not commented on the where – the actual, carceral space where detention should take place. The Supreme Court, as the current government has been quick to point out, did not rule against the indefinite detention of non-citizens on security grounds ipso facto; rather, it made it clear that any such detention must be subject to prompt, fair, and regular review. Indefinite detention itself does not constitute a s.7 Charter violation, but, without regular review, the uncertainty associated with the process poses the potential for psychological stress, and therefore raises the possibility of cruel and unusual punishment. This suggests that the task before Parliament is to develop a regime where detention is accompanied by a robust review process. In addressing this matter, the issue of where detention takes place – and, as importantly, under whose jurisdiction – will have to be considered. The status quo, which I will briefly outline, is problematic.

At present, those individuals who are subject to security certificates but not released on bail are being detained at the Kingston Immigration Holding Centre (KIHC), on the grounds of Millhaven Correctional Facility, a federal penitentiary near Bath, Ontario. KIHC is a truly exceptional space: it is an immigration detention centre located within a prison, operated by staff of Correctional Services Canada (CSC), but not subject to the standard CSC mandate as defined by the Corrections and Conditional Release Act (CCRA). Technically, KIHC is under the operational jurisdiction of the Canada Border Services Agency (CBSA), but the day-to-day running of the facility, including the task of guarding the detainees, falls to employees of CSC. In a hearing before the Select Committee on Citizenship and Immigration, CBSA summarized this by noting that CBSA is the “operational authority,” while CSC is the “service provider.”

This means that CSC is now involved in the detention – on the grounds of a penitentiary – of non-citizens who have not been charged with a crime, much less convicted with definite sentences of two years plus. As a criminologist, I feel the need to underscore the significance of this point. CSC is not officially mandated to take part in the detention of individuals with the legal status of the security certificate detainees. The presence of KIHC on the grounds of Millhaven represents a rupture in the normal location of CSC within the criminal justice process – in fact, it represents a departure from that process altogether, given the non-criminal status of the detainees.

We need only look south of the border to be reminded that the where and by whom decisions of non-citizen security detention are matters of no small import. If the Government of Canada decides to go through with a Parliamentary process designed to bring the IRPA in line with Charkaoui, it will have to give serious consideration to the issues of location and operating authority. If the decision is made to continue with a KIHC model, where agencies with vastly different mandates take part in the detention of certificate detainees, then the exact nature of the rules, procedures, and enabling legislation behind such a scheme will have to be made considerably more transparent.

On the bright side (and this is the side of the decision that predominates), Charkaoui is notable for declaring unconstitutional the full or partial use of secret evidence in the judicial determination of the reasonableness of the said certificates; and for determining as unlawful the lack of a sufficiently timely review of the validity and appropriateness of the mandatory detention that is the lot of any non-permanent resident foreign national (including an accepted refugee) against whom such a certificate has been issued. Prior to Charkaoui, permanent resident non-citizens enjoyed much more favorable legal treatment than their non-permanent resident counterparts in this latter connection. Charkaoui is also noteworthy for its fairly explicit denunciation of the possibility of the indefinite detention (without meaningful opportunities for review) of non-citizens who are suspected of posing security threats to Canada. But as much other commentary has been and will continue to be directed at the nature and valency of each of these conclusions, they are not the main focus of the present commentary. Rather, certain other significant aspects and implications of the decision are highlighted.

The first is that in coming to all of the afore-mentioned conclusions, the court took heed of relevant developments in some other lands; firmly placed itself on the side of the more progressive constitutional courts in comparable English-speaking jurisdictions; aligned itself with more humanist practice in this socio-legal sphere; and thus delivered a judgment that ranks “up there” with cases such as the much celebrated A. v. Secretary of State for the Home Department, [2004] UKHL 56, [2005] 3 All England Reports 169 (the British decision on the illegality of indefinite detention of terrorist suspects); and Zadvydas v. Davis 533 U.S. 678 (2001) (the US Supreme Court decision on a similar question). In terms of the depth of consideration that Charkaoui gave to the practice of some similarly situated jurisdictions, the judgment demonstrates that – much like other branches of the Canadian government – the Supreme Court is keenly aware of Canada’s historical place in the world (however constructed that location may seem). As most students of Canadian citizenship and immigration law/policy will realize, the relevant socio-legal place, and Canada’s lived-in national self-image, is more often than not portrayed as humanitarian, pro-human rights, and anti-despotic: which is why the court declared in at least one key portion of its Charkaoui decision that “The rights protected by s.7 – life, liberty and security of the person – are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests.” [paragraph 66]

However, this pro-human rights conception of Canadian national self-image was not enough to prod the court in Charkaoui toward a more robust and convincing deployment of internationalist legal norms/discourse (in this case, international human rights law) in order to enrich – and perhaps even re-orient – its reasoning regarding the question of the existence or otherwise of a right of appeal in cases in which a security certificate has been issued against a non-citizen and has been subsequently declared “reasonable” by a federal court judge. The court was of the view that:

there is no constitutional right to an appeal [presumably even in criminal cases]… nor can such a right be said to flow from the rule of law in this context. The federal Court is a superior court, not an administrative tribunal. [paragraph 136]

Although there was a certain displacement of international human rights law from the explicit version of the court’s reasoning this decision, this back-grounding of a relevant body of (international) law is most consequential with respect to the question of the existence of a right of appeal. In just one paragraph, or so, [paragraph 136] the court rejected the argument of one of the appellants, Adil Charkaoui, that the constitutional principle of the rule of law is infringed by… “the unavailability of an appeal of the designated judge’s determination that the [security] certificate is reasonable [paragraph 133].” Although this issue may seem settled to a Canadian constitutional lawyer and does not seem to excite all that much dispute among scholars of the court’s jurisprudence, a more detailed canvassing of the issue – especially in regard to international human rights developments – may just have led the court in a different direction.

For one thing, in international human rights law there is clearly a right of appeal from a criminal conviction (even by a superior court). And although there is no explicit provision in almost all of the major international human rights treaties for a right of appeal in civil causes or in immigration matters, considering that – as the court properly acknowledged – the consequences for a non-citizen of the kind of immigration matter under consideration (i.e. death, torture or the serious deprivation of liberty) could be just as grave as those that may affect a person convicted of an offence, there are at the very least reasonable grounds upon which the court could have devoted more energy, time and space to this question. And this is so despite Canadian case law to the effect that immigration matters are civil, not criminal causes. As such, the point here is not necessarily that the court should have definitely held that a right of appeal does flow from the principle of rule of law in this context, but that the court’s treatment of this issue would have been much more robust, rich, and convincing had international human rights law not suffered significant displacement from this and most other portions of the decision.

All in all, though, while the court has gone a very long way down the path that leads toward a departure from the much stronger kinds of security relativism that marked (and some say marred) its otherwise commendable decision in Suresh, security relativism still played a significant role in the Supreme Court’s reasoning process – albeit in a milder and more understandable way. As such, although the SCC has declared indefinite detentions without meaningful review illegal, in the name of security it has still left open the possibility of lawful detention that lasts for significantly extended periods. Although the court has declared the use of secret evidence unconstitutional, it has for security reasons still left some room for the lawful concealment of the relevant evidence from the person who is the subject of the proceedings (as opposed to say her/his security-cleared counsel). And while the court did outlaw the lack of a timely review of the validity of the detention of non-permanent resident foreign nationals who are subject to the security certificate process, it did – largely on security grounds – hold that such persons could be subjected to mandatory detention by the executive branch. Thus, what the court refers to in the decision as “the exigencies of the security context” are quite understandably at work all through the decision, circumscribing, constraining, and limiting its logic.

Thus, although much commentary on the decision is celebratory, as it should be, we must not forget that while security relativism (a faithful servant of despot and democrat alike) seems to be either dead or dying at the Supreme Court, there is still some cause among the more historically savvy observers of that institution to give a cheer and exclaim: security relativism is dead (in Canadian immigration law)… long live security relativism.

______________________

* This concept was developed in O.C. Okafor and P.L. Okoronkwo, “Re-Configuring Non-Refoulement? The Suresh Decision, ‘Security Relativis’, and the International Human Rights Imperative” (2003) 15 International Journal of Refugee Law 30.

Of immediate interest is whether the Supreme Court’s decision has any significance in terms of the resolution that will be voted on this week in Parliament proposing to extend certain provisions in the Anti-Terrorism Act (the “ATA“). The ATA provisions in question provide for so-called “investigative hearings”² as well as recognizances with conditions or “preventive arrest.”³ Enacted in 2001, the provisions will expire on Thursday of this week unless extended by resolutions passed by the House of Commons and the Senate.

In order to determine whether Charkaoui is relevant to the decision as to whether to extend these ATA provisions, it is necessary to briefly review the basis for the Supreme Court’s recent decision. Charkaoui found that the basic defect in the IRPA Security Certificate regime was that a person subject to such a certificate was prevented from knowing the case he or she had to meet, coupled with the fact that there were alternative procedures reasonably available which would have been more protective of the individual’s liberty without compromising the state’s interest in national security. In particular, the SCC pointed out that in other contexts where there is sensitive national security information at issue, provision has been made for the use of special counsel, who are granted access to the information in question and permitted to cross-examine government officials seeking to detain or deport a person on the basis of such information. Thus, while the protection of Canada’s security and related intelligence sources constitutes a pressing and substantial objective under section 1 of the Charter, the existence of less intrusive alternatives such as the special counsel procedure meant that the scheme did not minimally impair the rights of persons named in certificates.

In light of this reasoning, it would seem evident that the provisions in the ATA being considered in Parliament this week are not subject to the constitutional objection that led to the result in Charkaoui. This is because in both the investigative hearing context as well as in cases of preventive arrest, there are appropriate safeguards in place to protect the liberty interests of persons subject to those provisions.

Considering first investigative hearings, it is important to note that the constitutional validity of the relevant Criminal Code provisions was upheld by the Supreme Court of Canada in 2004,⁴ and nothing in Charkaoui would indicate a rethinking of that earlier decision. Of particular significance is the fact that evidence obtained in an investigative hearing cannot be used against the individual providing the information, in either criminal or immigration-related proceedings. Individuals are also entitled to retain and instruct counsel and can invoke any law relating to privilege or non-disclosure.

With respect to the provisions dealing with recognizance conditions or preventive arrest, the individual must be brought before a judge expeditiously and the onus is on the government to show that a recognizance or detention is necessary for public safety or the administration of justice. Unlike in Charkaoui, the individual is permitted access to the information that is being relied upon by the government as the basis for the recognizance or detention.

Thus the concerns raised in Charkaoui do not arise in the case of either investigative hearings or preventive arrest. The Parliamentary debate on whether to extend those provisions should not be impacted by this recent decision.

At the same time, there are certain other provisons in the ATA which do raise concerns regarding non-disclosure. In particular, the decision to list an organization as a “terrorist entity” under section 83.05 of the Criminal Code is based on provisions limiting disclosure of the grounds for such a listing to the entity concerned. Moreover, the ATA also contains a procedure for revoking the charitable status of an organization without disclosure. Accordingly, the same concerns raised by the Court in Charkaoui should lead the government to review the operation of these provisions, with a view to determining whether the ‘special counsel’ mechanism is appropriate in these contexts.

The Supreme Court of Canada’s decision in Charkaoui v. Canada (Citizenship and Immigration) 2007 SCC 9 [Charkaoui] will undoubtedly attract much public attention. Most newsworthy will be the fact that these cases represent the first time since September 11, 2001 that the Supreme Court has delivered a defeat to the Government in its anti-terrorism efforts.

Until now, the Court had shown much deference toward the Government in this sensitive area. For example, in Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3 the Court left open the possibility that at least in “extraordinary circumstances” it might be permissible for the Government to deport a non-resident to a country where she faces a substantial likelihood of torture. Even more important in that case was the Court’s endorsement of a deferential approach for reviewing the Minister of Immigration’s determination about the likelihood of torture on deportation. Through this move the Court abdicated much responsibility for protecting individual rights to the Executive.

Less significant, but still noteworthy, was the Court’s decision in Application under s. 83.28 of the Criminal Code (Re) [2004] 2 S.C.R. 248 upholding the controversial anti-terrorism investigative hearings that were hastily added to Canadian law as part the Anti-Terrorism Act. That Act was introduced in the Fall of 2001, while the Twin Towers still smoldered.

To many observers these cases seemed to signal that everything may have indeed changed since 9-11, even in Canada. As in other Western Democracies, our commitment to longstanding human rights principles suddenly seemed vulnerable when suspected terrorists were the targets.

Today, the Government’s honeymoon before the Supreme Court in anti-terrorism cases came to an end. For those who followed these cases as they made their way before the Court the result is not entirely surprising. At the hearing, the judges aggressively challenged the Government lawyers on the fairness of holding individuals for potentially indefinite periods without providing the detainee, or a lawyer acting on his or her behalf, with an opportunity to review and respond to the actual evidence

Not surprisingly then, in Charkaoui the Supreme Court recognized the fundamental unfairness of denying a person of their liberty without affording them a chance to know the case that is put against them, or to respond to that case.

A legislative response from the Government, within the one-year grace period granted by the Court, will undoubtedly follow. The most likely solution will be a regime like that in the United Kingdom, where a small group of lawyers with security clearance are charged with the responsibility of responding to the confidential aspects of the Government’s allegations. Any portion of the proceedings that might reveal state secrets will take place in camera, with the targeted individual excluded from the courtroom while the lawyer with security clearance challenges the secret evidence on that person’s behalf.

Such a scheme would seem to be the minimum demanded by the Charkaoui judgment. (In fact, at paragraph 80 of its judgment, the Court referred to the English approach with approval.)

The Section 7 Story

Equally important, but unlikely to be reported in the popular press, is the significance of Charkaoui to the Supreme Court’s section 7 procedural fairness jurisprudence.

In truth, had the Court wanted to turn a blind eye to the unfairness inherent in the current security certificate system, its existing section 7 precedents gave it much flexibility in choosing a more deferential path. I will explain the topography of the road not traveled in a moment; for now a more detailed consideration of the Court’s analysis is warranted.

In Charkaoui the Court restated many of the key principles that have emerged from its prior section 7 procedural fairness cases. So, for example, the Court reminded us [at para. 20] that what is constitutionally required from a procedural standpoint may vary from one context to another, depending on the individual and state interests that are implicated.

The Court also pointed out something that has too often been forgotten by many Western Democracies in the post-911 world. Simply because the state’s interest happens to be national security does not mean that long established principles of fair process should automatically be suspended:

23 … [W]hile administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage of the analysis. If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of s. 7. That is the bottom line.

The difficulty with the procedure contemplated by the existing regime is that it fails to meet what the Court identifies, for the first time, as the minimum constitutional requirements for fair process.

29 … It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance. [emphasis in original]

Here, the regime fell down because it did not respect the final two requirements: the right to know the case one is facing and the right to answer that case. Nor did it provide an adequate substitute for those rights, for example by employing a system like that in the United Kingdom (see above).

This was so, even though the Act requires the reviewing judge to provide the affected individual with a summary of the information furnished by the Government so as to enable him to be reasonably informed of the circumstances giving rise to the certificate. The person could then use that summary to argue that the security certificate should not have issued. The summary, however, cannot include anything that would, in the opinion of the judge, be injurious to national security or to the safety of any person.

For the Court, the summary, and the chance to respond it, were not enough to comply with section 7. The difficulty with this, said the Court, was that “it could mean that the judge may be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. The person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said.” [para. 55]

In addition, for very similar reasons, this constitutionally deficient scheme could not be justified under section 1 of the Charter.

The Court’s analysis seems clear and compelling. The main difficulty with its approach is that it is hard to reconcile with its own prior judgments. Before Charkaoui, the Supreme Court had consistently rejected the idea that fair process necessitated full access to all relevant information and an opportunity to address the decision-maker on the merits.¹

So, for example, just last year, in Rodgers, the Court rejected a section 7 challenge to s. 487.055 of the Criminal Code. That provision allows for the issuance of a court order, on an ex parte bases, for the collection of DNA samples from already convicted and incarcerated offenders. In other words, the Court upheld a scheme whereby an individual’s DNA could be taken without prior notice or an opportunity to address the judge who is asked to issue the order. This procedure was upheld, even though there was no compelling state interest necessitating an ex parte process. Remember, in that context, those affected are already in custody and therefore unable to flee the jurisdiction if given notice and a chance to be heard. In addition, the DNA of these offenders was not something that could be destroyed or concealed, such that the need for stealth on the part of the Government could be justified.

Even more significantly, in Chiarelli, a case involving a landed immigrant who was subject to an immigration removal certificate for alleged connections to organized crime, under a legislative scheme that was strikingly similar to that at issue in Charkaoui, the Supreme Court upheld the impugned provisions. It did so, even though, at the time, the legislation required only that a summary of the evidence relied on be disclosed to the individual whose deportation was being sought.

The challenge in Charkaoui was how to distinguish these prior judgments. The Court did so by emphasizing the stakes involved in this case.

60 Where limited disclosure or ex parte hearings have been found to satisfy the principles of fundamental justice, the intrusion on liberty and security has typically been less serious than that effected by the IRPA: Rodgers, at para. 53. It is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention. Moreover, even in the less intrusive situations, courts have insisted that disclosure be as specific and complete as possible.

Of course, conspicuously absent from this paragraph is any attempt by the Court to distinguish the circumstances in Chiarelli from those in Charkaoui. This isn’t entirely surprising. The cases are difficult to distinguish, remembering that both involve the permanent removal of individuals from Canada.

Also refreshingly absent from Charkaoui, no doubt because of the ultimate result, is the rhetorical device that the Court has often offered up whenever a procedural fairness claim is denied—that the principles of fundamental justice only require fairness not “the most favourable procedures that could possibly be imagined.”²

What I hope is apparent by this point is that there has been much imprecision in the Court’s prior section 7 jurisprudence regarding what procedural fairness demands. And, as a result, it would have been very easy for the Court to rationalize upholding the sections at issue in this case.

That said, I do not mean to suggest that the decision in Charkoui should not be celebrated. It is profoundly unfair that someone could be arrested, held in custody and ultimately deported based entirely on evidence that neither they nor their legal representative is permitted to see and consequently answer.

My complaint is much more general, extending well beyond the context of Canada’s anti-terrorism efforts. In short, that the judgment fails to provide much guidance on when the implications for liberty or security of the person will be sufficiently great that notice, full disclosure (at least to the individual’s legal representative) and an opportunity to be heard will be constitutionally mandated.

The standards for engaging liberty or security of the person under section 7 are not low. Only serious interferences with individual autonomy qualify.³ Therefore, simply suggesting, as the Court does in Charkaoui, that when the stakes are great enough the demands of procedural fairness increase, tells us very little.

By choosing the path it did, the Court carefully avoided acknowledging any limitation in its prior section 7 decisions involving procedural fairness claims. In the process, it missed an important opportunity to offer a more coherent account of how to go about measuring what due process demands in any given context.

You may be wondering what I have in mind?

Ultimately, “how much due process?” is a question that necessitates an analysis that begins from the perspective of the individual whose interests are affected. The concrete impact on that individual’s liberty or security of the person must be considered against the state’s more abstract and competing interest(s). In measuring how much due process to provide, the most sensible question is to ask how much can the state reasonably afford? Here, I do not mean simply monetary cost, although that is undoubtedly a legitimate consideration. Rather, what I have in mind are the potential drawbacks for the interests of the state if more due process is given.

Returning to the circumstances in Charkaoui. The individual interests involved in this case are significant. The issuance of a security certificate leads to arrest, detention and, ultimately, deportation. Weighted on the other end of the scale are the legitimate interests of the state, which would seem to be twofold here. First, streamlining security certificate procedures so that individuals who do pose a threat to the safety of Canada are removed from the country as quickly as possible. And, second, ensuring that sensitive state secrets remain confidential. Both state objectives are very important.

Once the competing interests are identified and placed on the scale in this way the question to be asked is this: if more due process is provided would the state’s legitimate objectives be undermined? If the answer to that question is “no”, as it is in Charkaoui, then the amount of procedural fairness being provided should be increased until the balancing point is reached. Here, as the Court correctly concluded, the interests of the state could be more than adequately met through a system of security cleared counsel that could have full access to the evidence and can therefore meaningfully challenge the Government’s case. In other words, the existing regime is fundamentally unjust because it subordinates the interests of the individual to those of the state in circumstances where there is no appreciable benefit to state interests.

Unfortunately, a more coherent account of how to go about determining how much due process section 7 of the Charter demands will need to await some future case.

Specifically, what was challenged in these cases, Charkaoui, Almrei, and Harkat, was the process followed in the detention review hearings and in the hearings considering the reasonableness of the certificates themselves (which are not subject to review or appeal), in which the Court hears the Minister’s evidence in camera and ex parte. The individual is only given a summary of the case, which usually contains little more than public information, and does not include any details of the basis for the certificate or, of course, any information that the Minister believes needs to be protected for national security reasons. No counsel for the detainee, or independent counsel, is permitted to attend the ex parte hearing or to cross-examine or otherwise meaningfully test the evidence, and the rules of evidence themselves may have little or no application. Any testing of the evidence is left to the discretion, willingness and ability of the presiding judge.

After finding that s. 7 of the Charter clearly applied to the appellants, and noting the importance of national security and that “the principles of fundamental justice must reflect the exigencies of the security context”, the Court said that this “cannot be permitted to erode the essence of s. 7,” which, to be met, must provide “meaningful and substantial protection.” The Court cited due process principles dating back to “the days of King John” in finding that the current scheme fails to provide adequate protection to individuals.

In striking down the secret hearings, McLachlin CJC held that the legislation failed to meet certain requirements of due process. First, the judge is not able to make a decision based on the facts and the law due to the concern that, as a judge and not an advocate who is able to investigate and challenge the evidence “one cannot be sure that the judge has been exposed to the whole factual picture”. Similarly, the judge does not benefit from full legal argument.

Second, the inability of the detainee to know the case to meet, and to challenge it, is a violation of due process. While noting that confidentiality is of critical importance in national security cases, the deprivation of liberty is also severe, and the scheme fails to draw an appropriate balance by putting all of the burden of determining the reasonableness of the certificate on the judge. As McLachlin CJC stated, “the fairness of the IRPA procedure rests entirely on the shoulders of the designated judge…[who] cannot…bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person’s knowledge of the case to meet.” In short, “the judge’s activity on behalf of the named person is confined to what is presented by the ministers”, and therefore the judge is “not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring.” This is, the Court noted, the “whole point of the principle that a person whose liberty is in jeopardy must know the case to meet.”

The Court went on to find that the breaches of due process were not justified under s. 1 of the Charter. The Court reviewed prior procedures followed by SIRC, and by the Arar Commission that permitted an independent counsel to participate on behalf of, essentially, the detained person. It noted that the United Kingdom has a “special advocate” system. “Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person’s interest, as was formerly done for the review of security certificates by SIRC and is presently done in the United Kingdom, has not been explained.” That system may not be perfect, the Court said, but it better protects s. 7 interests.

Another aspect of the case dealt with the inability of non-residents to obtain a timely review of their detention, which can only occur after the certificate has been found to be reasonable – which may take years. This lack of timely review breaches ss. 9 and 10 of the Charter, the Court held, and was not saved by s. 1. The Court did not, however, find that the length of detention and the circumstances of it (such as being held for years in short term facilities with few amenities) constituted cruel and unusual punishment under s. 12 of the Charter.

In interesting asides, the Court also addressed arguments relating to the rule of law, and s. 15 of the Charter as it applies to foreign nationals.

In the result the Court struck down the provisions dealing with secret hearings for confirmation of certificates and review of detention under them, but has suspended its declaration for one year in order to allow Parliament to legislate a new procedure. The provisions dealing preventing timely review of detention of foreign nationals were struck down immediately.