The Never-Ending Story? Charkaoui (Re) and the Virtues of Persistence
If at first you do not succeed, try, try again. These words of wisdom convey the ethos of human rights advocacy: paucities of political power, limited financial resources, public indifference (if not outright hostility), and the slow pace of social change regularly conspire to cast those who persist in the fight for justice as idealistic at best, naïve at worst. Such has certainly been the experience of those who have launched a barrage of constitutional challenges to our post-9/11 security certificate regime; a regime that allows the government to detain and deport non-citizens who are deemed to be, among other things, a threat to national security. Despite compelling arguments and the persuasive authority of developing international and foreign law, the Federal Court and the Federal Court of Appeal repeatedly refused to intervene on behalf of persons named in certificates. Relying on deep-rooted assumptions about the administrative “nature” of certificate proceedings, as well as the limited rights to which non-citizens are entitled, Federal judges did little to infuse enhanced procedural protections into what have progressively been recognized to be quasi-criminal proceedings.
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),  1 SCR 350, (hereinafter “Charkaoui I”) and Charkaoui v. Canada (Citizenship and Immigration),  2 SCR 326, (hereinafter “Charkaoui II”). Reversing years of jurisprudence, including its own judgment in Canada (Minister of Employment and Immigration) v. Chiarelli,  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),  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 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),  FCJ No. 1207, and Gallardo v. Canada (Minister of Citizenship and Immigration),  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.
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,  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.