Section 7 of the Charter and national security: rights protection and proportionality versus deference and status.

• Author: Roach, Kent W.
• Position: Canada

This paper examines section 7 jurisprudence in the context of national security cases involving collective security considerations and/or Canada's interactions with other states on security-related matters. National security, like section 7 of the Canadian Charter of Rights and Freedoms, spans the traditional divides between administrative, criminal, extradition and international law. The paper identifies two distinct strands in the jurisprudence: one associated with rights protection and a requirement that any limits on rights be justified as proportionate, and another based on an a priori deference to governments, consideration of the status of individuals--notably non-citizens--and respect for the sovereignty of other nations. The paper concludes that despite some post-9/11 attraction to deference and status concerns, rights protection and proportionality concerns may eventually win out, especially when supported by concerns about compliance with international human rights commitments and the reconciliation of rights protection with the fulfillment of various national security goals.

Dans cet article, on examine la jurisprudence relative a l'article 7 dans le contexte des causes en matiere de securite nationale impliquant des elements de securite collective et/ou les relations du Canada avec d'autres Etats sur des questions liees a la securite. La securite nationale, a l'instar de l'article 7 de la Charte canadienne des droits et libertes, souleve les divergences habituelles entre les droits administratif, criminel, de l'extradition et international. Dans cet article, on degage deux courants distincts dans la jurisprudence : le premier est lie a la protection des droits et a la condition que les restrictions a l'encontre de droits soient justifiees par leur caractere proportionne, tandis que l'autre courant se fonde sur une deference a priori envers les gouvernements, l'examen du statut des individus--notamment les non-citoyens--et le respect pour la souverainete des autres nations. En conclusion, l'auteur fait observer que, malgre une certaine inclination, dans la foulee des evenements du 11 septembre, pour les questions de deference et de statut, les preoccupations relatives a la protection des droits et a la proportionnalite pourraient l'emporter, en particulier lorsqu'elles sont etayees par un souci de respect envers les obligations internationales en matiere de droits de la personne et la conciliation entre la protection des droits et l'atteinte de divers objectifs de securite nationale.

Table of Contents I. INTRODUCTION II. FROM RIGHTS PROTECTION/PROPORTIONALITY TO DEFERENCE/STATUS A. From BC Motor Vehicle Reference to Suresh B. From Operation Dismantle to Khadr II C. From Singh to the Afqhan Detainee Case III. FROM DEFERENCE/STATLISTO RIGHTS PROTECTION/ PROPORTIONALITY A. From Mellino and Kindler to Burns and Ferras B. From Chiarelli to Charkaoui I C. From the Air India era to Charkaoui II and Abroad IV. CONCLUSIONS I. INTRODUCTION

Section 7 of the Charter (1) is the most difficult section to evaluate because of its sprawling nature. Its protection of 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" (2) ranges over the traditional doctrinal categories of criminal law, administrative law, extradition law, military law and the conduct of foreign affairs. The national security context is a good fit for an evaluation of section 7 because national security law itself encompasses a diversity of similar concerns. The leading Canadian text on national security law moves effortlessly and expertly through various areas of law, with author Professor Craig Forcese concluding that Canada's national security law may constitute "a patchwork quilt." (3) Although the scattered nature of national security law presents serious scholarly challenges, it also provides an opportunity to observe patterns that may not be apparent when section 7 is examined within more traditional doctrinal categories.

National security in this paper will refer not only to substantial and serious threats to our collective well-being, (4) but also to cases in which Canada, as a country, interacts with other countries in a way that may affect important security interests of either state. This latter part of the definition affects matters such as extradition, even though not all extradition matters involve terrorism or other national security offences.

The national security context is worth examining because of its inherent importance. The state's interests are often central when it comes to issues of national security. These interests include the protection of Canadians from acts of terrorism and Canada's ability to interact with other nations in an increasingly interdependent world. State objectives in the national security area can also be supplemented by international mandates, including those declared by the United Nations Security Council under its Chapter VII powers with respect to the maintenance of international peace and security. (5) The national security context is increasingly an internationalized one and Canadian courts must reconcile international mandates with domestic rights protection. (6)

Canada's foreign policy has always been preoccupied with our relations with our southern neighbour and this has certainly had an impact on out national security law. Canada's first section 7 case in the national security context involved its decision to allow the United States to test cruise missiles in Canada's north. (7) Other more recent decisions involved questions of whether Canada should secure undertakings from the United States not to use the death penalty when it extradites a fugitive, (8) whether a court could order Canada to ask the United States to repatriate Omar Khadr, a Canadian citizen, from Guantanamo Bay (9) and whether extradition proceedings of Abdullah Khadr should be stayed because of misconduct by American and Pakistani officials in his initial capture and detention in Pakistan. (10)

The stakes in national security cases are high, not only for the state and society, but also for the individual claiming the section 7 right. Although Canadian courts are generally not accustomed to dealing with state threats to the right to life in the domestic context, such threats are more common in the national security context where the courts have considered and refused to rule out the possibility of extradition to face the death penalty or deportation to face torture. Even outside of these potential life or death contexts, section 7 claims may involve prolonged detention under either criminal or immigration law in situations where detainees might not know the full case against them for reasons related to secrecy and/or respect for the decisions and processes of other sovereign states. (11) Even in cases not involving detention, the denial of citizenship or a security clearance on the basis of national security concerns may stigmatize an affected individual, especially if, as is often the case, the full reasons for the decision are not made public.

It is a truism that national security cases call for a fine balance between state and collective interests and those of the individual. In Suresh, the Court described its task under section 7 as "essentially one of balancing," and stressed that the importance of context made it "impossible to say in advance ... that the balance will necessarily be struck the same way in every case." (12) The Court's commitment to balancing in that case led it to declare that while the Charter would generally prohibit deportation to a substantial risk of torture, exceptions could be justified under either sections 7 or 1 of the Charter, even though such a result would place Canada in breach of its absolute international obligations not to be complicit in torture. (13) The frequent conflation of the process of defining the section 7 right and considering justifications under section I presents a risk that judges will avoid the structure and discipline provided by the section I proportionality test and in particular its demand that the state demonstrate how a rights-invasive measure is rationally connected to a precise objective and whether there are less rights-invasive means to achieve such goals.

It will be suggested in what follows that some of the Court's most rights- invasive decisions under section 7 have not emerged from a sustained proportionality test, or even a true balancing process, but rather from a posture of judicial deference to the state on security matters, and explicit or implicit judgments based on the status of the affected parties such as the diminished rights of non-citizens and the need to respect the sovereignty of foreign states. For example, the Court in Suresh quoted Lord Hoffmann with approval when he stated that courts should respect decisions of the executive on national security matters, not only because of their "access to special information and expertise" but also because of the "legitimacy which can be conferred only by entrusting [such decisions] to persons responsible to the community through the democratic process." (14). It will also be suggested below that decisions to not apply the Charter abroad, even in situations in which Canadian Forces transfer Afghan detainees to face torture, (15) or to not allow courts to order the executive to request Omar Khadr's repatriation, (16) are related more to concerns about the status of the detainees as non-citizens and the status of Canadian and foreign governments as sovereign states than to the results of a full balancing or a sustained proportionality analysis. A full proportionality analysis in these cases could have delineated with greater precision the relevant state interests and the issue of whether there were less rights-invasive means to pursue those interests. Moreover, it could have avoided...