The sovereign Charter: security, territory and the boundaries of constitutional rights.

• Author: Ceric, Irina
• Position: Canada

"The Sovereign Charter" takes as its starting point the Supreme Court of Canada's decision in Charkaoui v Canada, which struck down some portions of the security certificate process of the Immigration and Refugee Protection Act as contrary to s. 7 of the Charter. Although this decision was hailed as a victory, I argue that Charkaoui redraws long-standing divisions along long-standing lines of alleged risk, allegiance and origin. I then explore the emergence of tentative shifts in jurisprudential conceptions of state sovereignty and extra-territoriality through a consideration of four post-Charkaoui decisions: the two judgments in the Omar Khadr matter, the Amnesty International claim regarding Afghan POWs detained by the Canadian military and a case with respect to an overseas RCMP investigation. The article then develops three arguments about the dialectical process by which changing notions of sovereignty both determine and are reflected in the territorial reach of the Charter, and theorize this process as one in which rights continue to constrain ways of challenging disciplinary power at the same time as they minimally limit its reach. These three meditations consider rights and sovereignty as a juridical "act", through the lens of international law and in the context of biopolitics.

Le concept de > tire son origine de la decision rendue par la Cour supreme du Canada dans Charkaoui c Canada, qui a invalide certaines parties du processus du certificat de securite prevu a la Loi sur l'immigration et la protection des refugies au motif qu'elles contrevenaient a l'article 7 de la Charte. Bien que cette decision ait ete saluee comme une victoire, je soutiens que l'arret Charkaoui ranime de vieilles controverses de meme que des visions anciennes des concepts de risques presumes, d'allegeance et d'origine. J'explore ensuite l'emergence de tentatives de renversements dans les conceptions jurisprudentielles de la souverainete de l'Etat et de l'extraterritorialite dans quatre decisions rendues dans la foulee de l'arret Charkaoui: soit les deux jugements prononces dans l'affaire Omar Khadr, la poursuite intentee par Amnistie internationale relative aux prisonniers de guerre afghans detenus par l'armee canadienne et une cause portant sur une enquete menee a l'etranger par la GRC. L'article elabore par la suite trois arguments au sujet du processus dialectique en vertu duquel des notions novatrices de souverainete determinent la portee territoriale de la Charte, et definit ce processus comme permettant aux droits de continuer a restreindre les manieres de contester les pouvoirs disciplinaires tout en limitant de facon minimale leur portee. Ces trois formes de reflexion examinent les droits et la souverainete en tant qu' > selon la perspective du droit international et dans le contexte des biopolitiques.

Table of Contents I. INTRODUCTION II. CHARKAOUI AND ITS PREDECESSORS A. Charter Jurisprudence Pre-Charkaoui B. Charkaoui III. POST-CHARKAOUI IV. SOVEREIGNTY: THREE DELIBERATIONS A. The State of Rights: Acts of Sovereignty and the Charter B. International Law, State Sovereignty and the Domestic Realm of the Charter C. Biopolitics and the Rights of the Abandoned V. CONCLUSIONS I. INTRODUCTION

The jurisprudential borders of the Canadian state appeared to shift in the aftermath of the landmark judgment of the Supreme Court of Canada (Supreme Court or the Court) on the constitutionality of the security certificate provisions of the Immigration and Refugee Protection Act. (1) By granting limited constitutional rights to non-citizens implicated in national security proceedings, the decision in Charkaoui v Canada (Citizenship and Immigration), (2) striking down portions of the IRPA's security certificate procedure, was a signal departure from previous caselaw upholding the use of secret evidence and indefinite detention. Charkaoui ultimately maintained the contingency of the Canadian Charter of Rights and Freedoms, (3) re-drawing longstanding divisions along lines of alleged risk, allegiance and origin, despite the emergence of tentative shifts in jurisprudential conceptions of state sovereignty and extra-territoriality. Where previous national security cases involving constitutional rights claims by non-citizens were predicated on a conceptualization of state sovereignty as the right to exclude from territory (e.g. the oft-quoted maxim that "[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country" (4)), reading Charkaoui in the context of four subsequent cases involving the role of Canadian state actors abroad (5) gives rise to the prospect of the Charter operating to delineate and maintain the limits of state sovereignty within and beyond national borders. While the Charter may accompany the extended reach of the Canadian state in some of its guises, it provides only a minimal constraint on the actions of its agents, reinscribing rather than challenging sovereignty. Accordingly, this article argues that the "sovereign Charter" represents a key moment in the evolution of the Canadian state's national security, immigration and foreign policy strategies, serving to harden the boundaries of the nation from within and without. By theorizing the doctrinal rules related to the extra-territorial application of the Charter, this article concludes that rights, as reflected in Charkaoui and subsequent caselaw, continue to offer only a limited mode of resistance against sovereign power.

I take as a starting point Kunal Parker's contention that the emancipatory potential of rights cannot be divorced from the seemingly contradictory process in which "the unmitigated 'defence' of territory against the incursion of aliens goes along with--indeed, cannot be separated from- the unmitigated commitment to protecting the fundamental constitutional rights of aliens as persons on the territorial 'inside.'" (6) Parker further argues that "[l]eft-liberal discourses of the nation ... are thus fully aware that the universality of nation and law as they imagine them--in other words, of nation as law or law as nation--can only be realized in and by building walls around [that] space...", such that rights become constitutive of a national sense of self. (7) It is within this context, I argue, that the framework of the sovereign Charter emerged, particularly in relation to cases involving the rights of non-citizens and "national security." Beyond both immigration law's historical preoccupation with race and the contemporary focus on the "war on terror," the very notion of rights functions as a discursive and aspirational marker of sovereignty. The focus of the remainder of this article is the trajectory of this jurisprudential process as courts perpetuate and shift the content and strength of rights guarantees.

I begin with a brief historical overview of the key Charter decisions on citizenship, national security and the Charter prior to Charkaoui (especially the previous unsuccessful constitutional challenges to the security certificate process), and then outline the Charkaoui decision. In the second part of this article, I discuss four post-Charkaoui decisions that engage the Charter and questions of territory, security and sovereignty. Finally, I develop three arguments about the dialectical process by which changing notions of sovereignty both determine and are reflected in the territorial reach of the Charter. I theorize this process as one in which rights continue to constrain ways of challenging disciplinary power--understood as the operation of broadly dispersed systems of control, regulation and management (8)-- at the same time as they minimally limit its reach.

A preliminary question regarding my engagement with the concept of "sovereignty" remains: although the caselaw, as shown below, is replete with references to and justifications for sovereignty, it is almost entirely bereft of definitions, relying on a common-sense understanding of the term. (9) Recent scholarly literature on law and sovereignty, on the other hand, takes as its starting point Carl Schmitt's now apocryphal statement that "[sjovereign is he who decides on the exception." (10) This concept of the "exception" took on increased (but hardly new") juridical salience after the events of September 11, 2001, particularly with respect to questions of (anti-)terrorism, states of emergency and constitutional politics. (12) However, as Jeremy Webber explains, for Schmitt, "the emergency tends to swallow up normality," (13) and his conceptualization of sovereignty and the role of "the decision" was intended as a "general concept in the theory of the state, and not merely ... a construct applied to any emergency decree or state of siege." (14) In his later work, Schmitt thus outlined a conception of the nomos, a "constituting power that bestows upon the laws their sovereign legitimacy," the outcome of the historical event by which law becomes legal. (15) While I briefly engage with Schmitt's theoretical framework in part IV of this article, I am concerned far less with questions about the exception in constitutional politics than with the notion of sovereignty as constructed by and through law. Rather than rely on a juridical ideal in which sovereignty is usually understood as exclusive authority over territory (with the corollary being that said territory be coterminous with that authority), Saskia Sassen argues that "it is becoming evident that state sovereignty articulates both its own and external conditions and norms." (16) She concludes that "[t]he politics of contemporary sovereignties are far more complex than notions of mutually exclusive territorialities can capture" and "[t]he question of territory as a parameter for authority and rights has entered a new phase." (17) This article aims to articulate the scope of that parameter, theorizing the processes by which sovereignty is...