Charkaoui’s Implications for Canada’s Anti-terrorism Act

The Supreme Court of Canada’s (“SCC”) ruling in Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9, striking down the procedures for the review of Security Certificates under the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], has implications in a number of different security-related contexts.¹

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, SC 2001, c 41 [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 provisions of the Criminal Code, RSC 1985, c C-46, was upheld by the SCC 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.