Punting terrorists, assassins and other undesirables: Canada, the human rights committee and requests for interim measures of protection.

• Author: Harrington, Joanna

The author critically analyzes the derisory manner in which Canadian courts have regarded Canada's international human rights treaty obligations. More specifically, relying on the recent Canadian judicial pronouncements in Ahani v. Canada, the author questions the usual justifications put forth by domestic courts to disregard requests for interim measures of protection made by the Human Rights Committee.

As a human rights adjudicative body of last resort, the Human Rights Committee was established by states via the International Covenant on Civil and Political Rights ("ICCPR") and provides safeguards for the protection of individual rights and liberties when domestic remedies have been exhausted. Simply because the ICCPR cannot be enforced in the manner that domestic measures can does not make the ICCPR any less binding.

In its annual reports and its views in individual cases, the Human Rights Committee has made it clear that the failure of a state to respect a request for interim measures is a serious breach of that state's obligations under the ICCPR regime. Additional support for the proposition that interim measures are binding can be found in the landmark LaGrand Case, which was heard before the International Court of Justice, and in various Caribbean cases heard by the Judicial Committee of the Privy Council.

Consequently, for not providing adequate protection of human rights by respecting the request for interim measures made by the Human Rights Committee, and for not considering the cases where other legal venues have found requests for interim measures binding on states, Canada acts in bad faith with respect to its international human rights treaty obligations.

L'auteur analyse de facon critique la maniere derisoire par laquelle les tribunaux canadiens ont considere les obligations du Canada decoulant des traites internationaux des droits de la personne. Se basant sur le recent arret Ahani c. Canada, l'auteur remet en question les justifications habituelles employees par les tribunaux domestiques pour ne pas tenir compte des demandes de mesure de protection temporaire formulees par le Comite des droits de l'homme.

Etabli par le Pacte international relatif aux droits civils el politiques (>) en tant que corps judiciaire de derniere instance en matiere de droits de la personne, le Comite des droits de l'homme prevoit certaines garanties de protection des droits et libertes individuels lorsque tousles recours domestiques ont ete epuises, Le fait que l'on ne puisse fake respecter le PIRDCP au meme titre que d'autres regles domestiques n'enleve rien a sa force contraignante.

Par ses rapports annuels et ses interventions darts divers cas individuels, le Comite des droits de l'homme a clairement fait savoir que le defaut d'un Etat de faire suite a une demande de mesure de protection temporatre constitue une grave violation des obligations de l'Etat sous le PIRDCP. L'argument selon lequel les mesures temporaires de protection ont force contraignante peut trouver appui clans l'arret LaGrand, entendu par la Cour internationale de justice, ainsi que pinsieurs decisions des Caraibes rendues par le Comite judiciaire du Conseil prive.

Par consequent, en ne fournissant pas de protection adequate des droits de la personne par le non-respect des demandes de mesure temporaire formulees par le Comite des droits de l'homme, et en ne tenant pas compte des decisions et juridictions ayant reconnu l'aspect contraignant de ces demandes de protection temporaine, le Canada agit de mauvaise foi face a ses obligations internationales relatives aux droits de la personne.

Introduction I. The Case of Ahani v. Canada II. Bringing a Complaint to the Human Rights Committee A. Functions of the Human Rights Committee B. Human Rights Committee Requests for Interim Measures of Protection III. Effects of Interim Measures Requests A. The Position of the Human Rights Committee B. Turning to the International Court of Justice for Guidance C. The View of the Privy Council on Interim Measures IV. Further Criticisms of the Ahani Decision Conclusion Introduction

After a nine-year battle in Canada's courts, Mansour Ahani, the alleged Iranian assassin, terrorist, and Convention refugee, (1) lost his bid to remain in Canada. On 16 May 2002, the Supreme Court of Canada dismissed Ahani's application for leave to appeal the decision of the Ontario Court of Appeal and finally paved the way for his deportation to Iran on grounds of terrorism and national security. (2) In so doing, both courts enabled the government of Canada to ignore once again the requests made by an international forum for a stay of proceedings while a claim against Canada is currently pending before that forum, thereby frustrating the very purpose of the right of individual petition that was granted by states such as Canada to operate at the international level.

The forum in question in Ahani's case is the Human Rights Committee, the United Nations (UN) body established by one of the world's most important human rights treaties, the International Covenant on Civil and Political Rights, (3) and authorized by that treaty to monitor its implementation within the states that have consented to be bound by its terms. After having lost on the merits of his case in an earlier judgment by the Supreme Court of Canada, (4) Ahani lodged a petition (or "communication") with the Human Rights Committee alleging that Canada was in violation of its obligations under the ICCPR by deporting him to a country where he might face a risk of torture or death. He also invoked the Committee's Rules of Procedure, (5) asking the Committee to exercise its power to make what is known as a request for interim measures of protection. Interim measures are essentially the international law equivalent of a domestic interlocutory injunction issued to avoid irreparable harm to a party while a case is pendente lite. The Committee made such a request, asking Canada to refrain from deporting Ahani while his case was pending, but Canada declined to abide by this request, prompting Ahani to make one last but unsuccessful visit to court to force Canada to respect the Committee's request for interim measures of protection.

Judicial consideration of the domestic effect of an interim measures request by an international forum such as the Human Rights Committee is novel in Canada (6) and worth further examination. In light of the Supreme Court of Canada's refusal to grant leave, this article will focus on the judgment of the Ontario Court of Appeal. It will also examine the jurisprudence of the Human Rights Committee on the legal import of its requests for interim measures, before examining a landmark judgment by the International Court of Justice and a series of constitutional law cases from the Judicial Committee of the Privy Council that support the principle that interim measures requests must carry some connotation of obligation if they are to fulfill their function of ensuring some efficacy to the final outcome of the proceedings.

1. The Case of Ahani v. Canada

   We begin with an overview of the Ahani case. Mansour Ahani is a citizen of Iran. He came to Canada in October 1991 and was granted Convention refugee status in April 1992. By June 1993, the government of Canada had declared him a terrorist and a danger to national security. According to the Canadian Intelligence Security Service (CSIS), Ahani was a trained assassin who worked with the Iranian Ministry of Intelligence Security (MOIS), an organization that CSIS considered responsible for a wide range of terrorist activities, including the assassination of Iranian political dissidents. CSIS also reported that Ahani bad travelled to various destinations in Europe shortly after his refugee hearing in 1992 to meet with a MOIS agent and possibly take part in an assassination plot. In response to these reports, Canada commenced deportation proceedings against Ahani. (7)

   Deportation of a non-national from Canada on national security grounds is essentially a four-part process. (8) The process begins with the filing by the Solicitor General and the Minister of Citizenship and Immigration of a security certificate under section 40.1 of the Immigration Act, (9) claiming in Ahani's case that he should be removed from Canada because of his membership in a terrorist organization and because he had engaged or would engage in terrorism. With the filing of the certificate, Ahani was immediately arrested and detained in custody, where he would remain for eight years. The next step required the Federal Court of Canada (Trial Division) to determine whether the certificate was reasonable, which it so held in Ahani's case after hearing evidence led by CSIS to show that Ahani was a threat to Iranian dissidents. (10) This led to the third step in the deportation process, namely, the holding of a deportation hearing before an immigration adjudicator who subsequently found that reasonable grounds did exist to believe that Ahani was a member of a terrorist organization and that he had engaged or would engage in terrorism. (11) As a result, a deportation order was issued on 28 April 1998.

   The minister then took the fourth and final step in the deportation process, advising Ahani that she intended to issue a "danger opinion" under paragraph 53(1)(b) of the Immigration Act, indicating that Ahani constituted a danger to the security of Canada. At the minister's invitation, Ahani made written submissions. He denied that he was an assassin and further claimed that he would be at risk of torture in Iran for having made a refugee claim and for having disclosed information to Canadian authorities about his work with MOIS. These submissions, together with other relevant documents, were considered and ultimately rejected by the minister, who issued the opinion that Ahani was a danger to Canada on 12 August 1998. (12) The minister also rejected Ahani's claim that he would be at risk of...