In
its February 23,
2007
ruling on Charkaoui v. Canada
the
Supreme Court took the view that
the Immigration and Refugee
Protection
Act, 2002 cannot compromise Charter
due process rights around detention in
the name of national security.
In
calling for reforms of the security
certificate regime the Court moved Canada
towards
meeting some of its human rights
treaty obligations.
In
my
book Singh
to
Suresh: Non-Citizens, The Canadian
Courts and Human Rights
Obligations”(Trafford:
2006), I show how the Canadian
courts shifted from interpreting the
Charter and its
rights in a manner
compatible with Canada’s
international
human rights treaty obligations. In
my book I expected
that the Charkaoui
case would deal with the right
to liberty in Charter
s.7 but noted:
“due process for other rights
currently bundled into Charter
s.7 balancing is unlikely to
be addressed by these cases …
it is unlikely the Supreme Court
will include ‘natural justice’
within
the
fundamental principles of justice.”
(Page 224) The decision went some
way
towards closing the gap between
international human rights law and Charter s 7 (Everyone
has the right to
life, liberty and security of the
person and the right not to be
deprived
thereof except in accordance with
the principles of fundamental
justice).
In Charkaoui the
international rights to “liberty” in
American
Declaration Art.1 and
Covenant on Civil and Political
Rights Art.9 were given
effect
through Charter s.7 by
this decision (See para.
1). The international right to
protection from torture or cruel
treatment Covenant
Art.7 with 2 was given effect
by the recognition in the decision
that the Charter
s.12 right to protection from
cruel treatment was engaged by
indefinite
detention without hope of release
(para.3). Similarly the
international
fair
trial right American
Declaration
Art.XVIII and parts of Covenant Art.9
were given effect by the Charkaoui reference
to a “guarantee of procedural
fairness” within Charter
s.7 and by the application of
Charter ss 9 and 10c (no
arbitrary detention and Habeas
Corpus)
(para. 2) These are significant
shifts in approach even if results
are
limited - “the context is the
detention
incidental to removal”. In this
context, the Court affirms: “The
protection
of due process that lies at the
heart of s.7” must remain
“meaningful
and
substantial.”
It is
also significant
that in Charkaoui
the court used Charter
s.1, as
international human
rights law would require,
to consider
possible limitations of Charter
s.7 rights, rather
than its
often-used “balancing” within Charter s.7.
Internationally a limit must be in
law, for a legitimate purpose,
necessary and
proportionate. In Charkaoui
the
limitation of Charter
s.7 procedural
fairness by withholding evidence on
security grounds failed on
“necessity”
because the court was aware of less
invasive alternatives than simply
withholding evidence (para. 69, 87).
(The Court notes that the least
invasive
alternative is not required.)
There
is little effect
given to other international human
rights treaty obligations. The
international right
to freedom of movement, Covenant
Art.12, is engaged by
deportation and can preclude
deportation in
some
cases, such as a stateless person.
In Charkaoui the
court repeats from Chiarelli
that “deportation of a non-citizen
in itself cannot implicate the
liberty and
security interests protected by
s.7” and that the Charter
s.6
right to freedom of movement “provides
for differential treatment of
citizens and non-citizens in
deportation
matters”
(para. 4). Nevertheless, not since
Singh
et al 1985 has due process
been central to Charter
s.7
“fundamental principles of
justice” for non-citizens.
The Charkaoui decision
does not resolve other problems for
non-citizens being imprisoned. In
theory
the Charter offers
everyone the
ancient Magna
Carta right of Habeas
Corpus - the right to
be
brought
promptly before a judge who will
consider the lawfulness of a
detention. The
Supreme Court ruled in the Reza
case that the review by leave
of a
Federal Court judge under the then Immigration
Act 1976 was
equivalent
to Habeas Corpus. This Reza position
is repeated in passing in Charkaoui.
Even
though the due
process
central to Charter
s.7 must
be
“meaningful
and
substantial”,
the
Supreme Court
leaves the
test as
before: the
judge is to
determine
whether
“there are
reasonable
grounds to
believe.”
The Court
leaves
the judge
“designated”
as before. It
simply offers
a
re-interpretation
of the
required role
of
the judge so
that “IRPA [Immigration
and
Refugee
Protection
Act, 2002]
does
not require the designated
judge to be
deferential, but rather, asks
him or her to engage in a
searching
review”
(para.40) and “the judge is
performing an adjudicative
evaluation
rather than
the executive function of
investigation” (para. 44). As
before, the
decision must
be based on facts and law (para
48). The Court is asking the IRPA judge
to
act so as
to be more
impartial and independent and to
rule on the law and facts as
before. Finally,
the Court required that the
non-citizen should be able to
hear the
evidence
against him or her and challenge
it (para 65). The models offered
for
doing
that include models like the
Security Intelligence Review
Committee
which,
incidentally, was dropped in IRPA
but
which could be accessed under
the former Immigration
Act
1976.
The
underlying question
from my book remains: can
non-citizens – or can any of us for
that matter - consider
international treaty
rights “ensured” as Canada’s
international
human rights treaty obligations
require? I think
not. Nonetheless, the Charkaoui
decision falls in line with
international
human rights views and reports on
the security certificate regime
issues. The
UN Human Rights Committee acting
according to Protocol I under the UN
Covenant
on Civil and Political Rights,
accepted that judicial review of
"reasonableness" was in principle
acceptable as review by a judge of
the lawfulness of detention, but
questioned this procedure for the
long
term.
The Supreme Court is in line with
just that. The Committee noted that
Canada's
procedure
must decide "without delay" on the
lawfulness of detention
when those circumstances evolve. Canada
was found to be in
violation
of the Covenant. (See Human Rights
Committee, Ahani v. Canada
case, 25 May 2004.)
The Court appears to
have addressed this Committee issue
of long delays (120 days) before
detention
review.
The
Inter-American
Commission on Human Rights
expressed
concern in its report on Canada
issued in 2000. This
report was based on Canada's
obligations
under
the
American Declaration of
Rights and Duties of Man,
applicable to all OAS
members.
“…
it is a
fundamental
principle of due process
that the parties engaged in
the judicial
determination
of rights and duties must
enjoy equality of arms.
A person
named in a
certificate who is the
subject of secret evidence
will not enjoy a full
opportunity
to be heard with minimum
guarantees, the essence of
the right to due
process …”
(Report, para. 156, 157.
The
Inter-American
Commission on Human Rights
also commented
on this issue indirectly in
its report accepting the
admissibility of
the
complaint now before it from Suresh
about his
detention under the security
certificate regime. The
report refers
to issues of equal treatment
(Art.II), fair trial
(Art.
XVIII) and arbitrary
detention (Art.XXV):
“The
Commission considers
that the
petitioner’s complaint refers
to facts which, if true, tend
to
establish a
violation of the rights
guaranteed by Articles II,
XVIII, and XXV of
the
American Declaration, thus
the requirements of Article
47(b) of the
Convention
have been met.” Admissibility
Report, Para.
30.
The
Supreme Court decision appears
to have addressed these
Inter-American
Commission issues, except,
possibly, for the equal
treatment issues. It
is
interesting that the Court makes
no reference to the
international
human rights
obligations nor to the pertinent
views and reports of the
international
human
rights treaty bodies.
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