How Suresh haunts Bill C-3 and Section 2 of the Charter

A central objective and guiding principle in Canadian immigration policy has been the management of migration flows. At the core is a balance between two broad interests; state sovereignty and security versus the basic human right to mobility and to shelter from persecution. While the first set of interests has historically dominated in Canadian immigration laws, the advent of the point system in the Immigration Act in 1967 and the birth of the Canadian Charter of Rights and Freedoms in 1982 have been touted as markers of a new modern era that offers constitutional rights to foreign nationals and leverages human rights. However, this does not conclude the story.

Today, despite the often positively cited Charkaoui v. Canada (2007) SCC 9 decision and the legislative amendments of Bill C-3 to the Immigration and Refugee Protection Act (IRPA) on February 14, 2008, the current state of the law maintains a propensity to diminish the right of refugees to freedom of association guaranteed by Section 2(d) of the Charter.

When issued a certificate of inadmissibility on security grounds, one faces two vague terms of allegation. One is “terrorism” and the other is “being a member” of an organization that there are reasonable grounds to believe engages in, has engaged in or will engage in terrorism (IRPA Section 34(1)(f)). The courts have continually refrained from defining “membership” and only recently has the Supreme Court adopted a definition for “terrorism” that was borrowed from the Convention against Torture and Other Cruel and Inhumane Punishment. By allowing the meaning of “membership” to remain elusive the courts have effectively subordinated Section 2 Charter rights and in specific, Section 2(d): Freedom of association.

The Federal Court was also called to provide guidance and failed to do so in the absence of legislative direction in such cases as Baroud v. Canada (Minister of Citizenship and Immigration) (1995) F.C.J. No. 829, McAllister v. Minister of Citizenship and Immigration (1996) F.C.J. No. 177, Re Ahani (1998) F.C.J. No. 507, Canada (Minister of Citizenship and Immigration) v. Singh (1998) F.C.J. No. 978, and Husein v. Canada (1999) F.C.J. No. 1375.

In 1996, Justice Mackay of the Federal Court of Canada in Al Yamani v. Canada (Solicitor General) (1995) F.C.J. No. 1453 recognized that Section 2 of the Charter applies to everyone, including non-citizens. However, this interpretation was not adopted in later constitutional challenges to Section 34(1)(f) of IRPA. It was especially in Suresh v. Canada (Minister of Citizenship and Immigration) (2002) SCC 1 that the Supreme Court of Canada qualified the right to membership in Section 2(d) to be one that is not meant to protect “membership in a terrorist organization”; in an attempt to subvert any broad critical reading of the rights in Section 2. This narrow reading of a Charter right has been rejected in all other jurisprudence but immigration law.

Mr. Suresh is a Convention refugee from Sri Lanka, who upon applying for landed immigrant status was issued a security certificate. In 1995, he was detained and his deportation proceedings commenced on security grounds. Allegations in the security certificate were based on the opinion of the Canadian Security Intelligence Service (CSIS) that he was a member of the Liberation Tigers of Tamil Eelam (LTTE); an organization alleged to be engaged in terrorist activity in Sri Lanka. After 50 days of hearings, Mr. Justice Teitelbaum found the security certificate to be “reasonable” and upheld it. The reasons outlined were that “(1) Suresh had been a member of the LTTE since his youth and is now (or was at the time of Teitelbaum J.’s consideration) a member of the LTTE executive; (2) the World Tamil Movement is part of the LTTE or at least an organization that supports the activities of the LTTE; (3) Suresh obtained refugee status “by willful misrepresentation of facts” and lacks credibility; (4) there are reasonable grounds to believe the LTTE has committed terrorist acts; and (5) Tamils arrested by Sri Lankan authorities are badly mistreated and in a number of cases the mistreatment bordered on torture.” [para. 13]

The immigration officer who recommended that the Minister issue a danger opinion recognized that Mr. Suresh “is not known to have personally committed any acts of violence either in Canada or Sri Lanka” and that his activities on Canadian soil were “non-violent” in nature”. [para.16] Nevertheless, when “membership” is under investigation, it is not the individual’s actions or criminal behavior that determines whether one is a terrorist, but rather, it is the mere association with a group. In this case, Mr. Suresh’s terrorism is his involvement with a Canadian non-profit organization that all Canadians can freely join; the World Tamil Movement.

In Suresh, it is notable that the Supreme Court quickly dismissed the argument that Section 19(1)(f)(ii)(b) (now Section 34(1)(f)) violates Section 2(d) of the Charter, when a finding as such might have appropriately placed the provision under the justificatory scheme of Section 1 (Oakes test). The decision summarized the discussion by inserting the ratio from R.v. Keegstra (1990) 3 S.C.R. 697, which states in brief that restricting hate speech is a violation of Section 2(b) but is justified under Section 1 of the Charter. As such, the Supreme Court hastily surmised that “[t]he effect of Section 2(b) and the justification analysis under Section 1 of the Charter suggest that expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter in the guarantees of the Charter.”[para. 107]

A key distinction between the two cases, however, must be made, which illuminates the need for a different Section 2 analysis in Suresh. In Keegstra, the challenged law was Section 319 of the Criminal Code that limits communicating statements, other than in private conversations that “willfully promotes hatred” against any identifiable group. The law was clearly intended to limit Section 2(b) rights when the exercise of that the “willful promotion of hate”. The section of the Immigration Act that Mr. Suresh challenged is one that does not investigate the mens rea of the accused, and that indicts non-citizens who, if they were citizens, could not be prosecuted for joining the same organization (WTM). Mr. Suresh argued that “it is not a criminal offence to belong to such an organization and that the government seeks to deport him for something that Canadian citizens may lawfully do without sanction.” [para.100] This key distinction from Keegstra requires the courts to engage in a fresh Section 1 analysis instead of uncritically importing the ratio from a case that was quite different than Suresh.

As a result, in Suresh, the Supreme Court provided no clear boundaries on the meaning of “membership” and thereby failed to limit the haphazardly wide net of people that the language of inadmissibility captures. There was no Section 2 Charter analysis in Charkaoui et al, effectively leaving Suresh as the law and as a conversation stopper. It is important to remember that the political nature of refugeehood and asylum seeking makes refugees a very vulnerable segment of foreign nationals and mostly at risk to face the persecution they escaped if deported. This reality was not addressed in Bill C-3 nor was any analysis that demonstrates how Section 34(1)(f) of IRPA denies foreign nationals the constitutional right to freedom of association guaranteed by Section 2(d) of the Charter. Bill C-3 is, after all, a last minute response to Charkaoui and the specific constitutional failings identified by the Supreme Court with respect to the security certificate regime. The Bill claims to amend the system of security certificates, but in effect, remains “undemocratic and unjust”.

The formula that Canadian judges use to adjudicate in refugee and immigration law is one that balances Canada’s sovereign interest in controlling who enters and leaves its territory and the human rights of people fleeing persecution. Unique to the context today, however, is that in a world laden with images and narratives of terrorism, the new formula used by the courts is a balance between Canada’s interest in combating terrorism and refugees’ interest (and right in international law) not to be deported to face torture. This change is obvious in a number of cases regarding the issue of “terrorism” but especially in Suresh where we find the Supreme Court rethinking its ever-changing role. The court embellished their decision with a quote from the House of Lords in the case of Secretary of State for the Home Department v. Rehman, (2001) 3 W.L.R. 877 (H.L.) where Lord Hoffmann following the events of September 11, 2001 added the following to his speech:

I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. [Emphasis added.] [para. 33]

The language herein reflects a new role crystallizing for the courts in matters regarding “terrorism.” The concept of “the judicial arm of government” reproduced in Suresh is a militant expression for the complex relationship between the judiciary and the government. This militarized role of the court points to a solidarity newly forged in the “fight against terrorism” but as it applies to immigration and refugee law, it is yet again mugging the crisis unto the other. The role of the courts (at least in Canada and at least as the rhetoric goes) is not and should not be to preserve the “legitimacy” of government actions, but rather it is, at times, quite the contrary. One can browse archives of decisions that strike down arrays of legislation. Mr. Justice Dickson in The Law Society of Upper Canada v. Skapinker (1984) 1 S.C.R. 357, discussed the then new role of the court with the advent of the Charter by stating that: “[w]ith the Constitution Act, 1982 comes a new dimension, a new yardstick of reconciliation between the individual and the community and their respective rights, a dimension which, like the balance of the Constitution, remains to be interpreted and applied by the Court.” The court was to be the arbitrator between excessive state power and constitutional rights of the people, but maybe after Suresh and Charkaoui, this is debatable.

Whether refugees deserve judicial and constitutional protection is a matter subject to continuous change. The courts’ myriad opportunities to curb the broad net of “membership” and “terrorism” were met with highly subjective judgments about plausibility and the uncertainty of the origins of meaning, which disguises what is really going on. The reality post September 11, 2001 – and even after the Charkaoui celebrations have ended – demonstrates a continued trend of retreat by the judiciary from upholding Charter rights when confronted by the faceless threat of “terrorism.” Viewed as such, judicial deference to opaque fears for national security reinforces the notions that refugees are threats to order and furthermore constructs refugees as prima facie involved in terrorism.

If the legislature or the Canadian courts build the political will to rinse their current policies from the racist invocation of moral panic, they should remove any references to “terrorism” from the Immigration Act and relocate them to the domain of criminal law. Indeed, some scholars argue that the inadmissibility provisions in Section 19 of IRPA are sufficient to tackle security concerns. Foreign nationals can already be excluded for committing unlawful acts in the past or for their likelihood to commit any such acts in Canada. There is no reason to continue making unqualified references to “terrorism” or “membership” in the Immigration Act and as demonstrated above, this practice has only led to diminishing the rights of refugees and constructing them as “threats” to Canada.