Process and substance: Charkaoui I in the light of subsequent development.

• Author: Thwaites, Rayner
• Position: Canada

INTRODUCTION

The Canadian security certificate regime found in the Immigration and Refugee Protection Act 2001 (1) provides for the removal of non-citizens on security grounds and detention pending removal. In February 2007, by way of a unanimous judgment in Charkaoui I, (2) the Supreme Court of Canada upheld the regime, subject to changes to its procedures mandated by the Canadian Charter of Rights and Freedoms. (3) The Court addressed the procedures for the review of certification and detention, leaving the legality of the indefinite detention of non-citizens and deportation to torture to be resolved on a case by case basis. The Court's reasoning in Charkaoui I has been criticized, by myself and others, on the grounds that it used procedure to avoid the substantive issues of primary concern to the appellants. (4)

But that criticism may be insufficiently appreciative of what improved procedures can achieve. Procedural modifications to the security certificate regime instigated by Charkaoui I had, by the end of 2009, resulted in the release of two of the five men certified under the regime. The security certificates issued against Mr. Charkaoui and Mr. Almrei were ruled to be void and quashed, respectively.

From the present vantage point, it appears that Charkaoui I initiated a cycle of legal developments that was beneficial to constitutionalism and ultimately to some of the detainees. (5) These jurisprudential developments, discussed below, highlight the positive contribution made by the procedural rulings in Charkaoui I.

In this article I examine the relationship between process and substance in Charkaoui I in the light of these subsequent jurisprudential developments. I argue that the benefits of the procedural solution on which the Court determined in that decision do not outweigh the costs. My objective is to provide a fuller accounting of the costs of the Court's decision in Charkaoui I to opt for an exclusively procedural solution to rights infringements.

My analysis of the relationship between process and substance in Charkaoui I is informed by United States commentary on litigation on alleged enemy combatants in the "war on terror", in particular an article by Jenny Martinez. (6) In response to the question "why is it that the litigation concerning the alleged enemy combatants at Guantanamo and elsewhere has been going on for more than six years and almost nothing seems to have been decided?", Martinez turned to the way in which the "war on terror" litigation in the United States had been "fixated on process". (7) Speaking to the implications of a pattern of procedural rulings in the United States counterterrorism context, she stated:

[f]irst, by delaying the ultimate resolution of rights claims, it has allowed serious violations of human rights to continue for years. Second, this approach has foreclosed many rights based challenges without considering the merits of those challenges. (8) The first of Martinez's points is serious, but it is the more obvious, and I want to focus on the second issue she raises.

In Part I, I return to Charkaoui I, highlighting the Court's lack of decision on the substantive rights challenges before it. In Part II, I examine subsequent jurisprudential developments, which show that Charkaoui I has served as the basis for a steady ratcheting up of the procedural protections afforded to those certified under the security certificate regime. Putting Parts I and II together, I characterize Charkaoui I as simultaneously an evasive decision on the substantive rights challenges, and a solid contribution in relation to the procedural rights of those concerned. In Part III I provide an accounting of the costs of the procedural solution adopted in Charkaoui I.

It may lend clarity to my argument to state my underlying position on the substance at the outset. The central concern of the article is with the need for full and transparent engagement with rights infringements arising from the use of highly coercive powers. Although my sympathies with the situation of those subject to indefinite detention and/or constraint under the security certificate process will be evident, I do not dispute that some form of preventive detention may be necessary. The decisive legal move on preventive detention should be the imposition of a time limit, transforming it into either provisional-charge or provisional-deportation detention. (9) This would allow time for the collection of evidence. A variation on this suggestion would be to hold that while "reasonable grounds for suspicion" might suffice for initial detention, the evidential burden on the government should increase with the lapse of time until a point is reached where the evidential burden is that of criminal law, and the government is forced to charge or release. (10) Finally, it should be acknowledged that the Canadian security certificate regime has become, at least in its application to foreign terrorist suspects, a preventive detention regime rather than detention for the purpose of facilitating removal, and its application should accordingly be extended to citizens.

1. The "procedural solution" adopted in Charkaoui I

   The appellants in Charkaoui I were non-citizens, against whom either a removal order had been made or who were in the midst of proceedings ultimately concerned with whether such an order should be made. The removal orders in question followed from issuance of a ministerial certificate that the relevant individual was inadmissible to Canada for reasons of security (a security certificate) and determination by a single judge of the Federal Court, following the procedures set out under IRPA, that the individual's certification was "reasonable". (11) The appellants remained in Canada due to concerns about a risk of persecution or torture on return to their respective countries of nationality. (12) The IRPA provides for open-ended detention of those certified, with the danger the certified non-citizen poses to national security or the safety of any person constituting a sufficient reason for continued detention. (13) All three appellants remained in detention or were subject to onerous conditions on release at the time of hearing and judgment in Charkaoui 1. (14)

   The three appellants in Charkaoui I challenged the constitutionality of the security certificate regime on a number of grounds. (15) They argued that procedures for "reasonableness" review of a decision to issue a security certificate, and the procedures for reviewing detention, infringed s. 7 of the Charter, and that the incidence of detention review did not meet the requirements of ss. 9 and 10. They also argued that detention under the regime constituted "cruel and unusual treatment or punishment" under s. 12, and was discriminatory under s. 15. (16) The Court directed most of its reasoning to the deficiencies of the statutory requirements for the Federal Court's review of certification and detention. (17) The Court held that the procedures under the security certificate regime did not comply with s. 7 of the Charter and further that the procedures were not justified under s. 1. (18) It issued a declaration of invalidity (suspended for one year) on this ground. The Court suggested procedural changes to mitigate the damage to procedural rights that resulted when information was withheld from those named in security certificates on grounds of national security. It also severed certain phrases and provisions, and read in terms, so as to ensure that judicial review commenced within 48 hours of the beginning of detention and took place at least once in each six-month period following the preceding review. (19)

   The Court did not set any time limits on how long a non-citizen could be held in detention after a deportation order had been made. Crucially, the Court held that, subject to the procedural changes it required, continuing detention of non-citizens under the security certificate regime did not contravene ss. 12 (cruel or unusual treatment) or 15 (equality) of the Charter. (20) It reasoned that the augmented procedural protections required under its s. 7 analysis "answered" the substantive Charter challenges under ss. 12 and 15. (21)

   The Court devoted most of its reasoning to identifying deficiencies in the statutory requirements for review of certification and detention contained in Part 1, Div 9 of the IRPA. A central characteristic of the Court's reasoning in Charkaoui I was its lack of decision on the substantive issues. No one was ordered released. No one was ordered removed. The spectacle of a detention regime ostensibly facilitating deportation, under which deportation does not occur, continued. There was no discussion of the existing constitutional allowance for a discretion to deport to torture in exceptional circumstances, (22) nor was the constitutionality of indefinite detention directly addressed. Instead, the Court provided for the possibility of rights infringements being identified on a case by case basis and devoted its energies to examining and ultimately strengthening the procedural protections afforded to those certified under the regime.

   The features of the Court's reasoning set out in the preceding paragraph can be characterized as implementing a form of constitutional minimalism. (23) The characterization is useful in that it points to a principled motivation for the Court's approach. In the influential account of constitutional minimalism offered by Sunstein in the United States counterterrorism context, (24) the approach is defined by a preference for narrowness over breadth and shallowness over depth. (25) Sunstein's position is motivated by the view that it is better, particularly in the area of national security where the threat is uncertain and unknown, to avoid setting substantive constitutional standards, at least for a few more years. (26) Such a delay is prudent given the risk of an inappropriately calibrated response...