1. 10/7/20141 Charkaoui v Canada (Citizen and Immigration) 2007 SCC 0 [2007] 1 S.C.R.

2. Background At issue: “Security Certificates” At issue: “Security Certificates” Part of Canadian immigration law since 1978 Part of Canadian immigration law since 1978 Ernst Zundel, German-born landed immigrant and Holocaust denier, deported under security certificate Ernst Zundel, German-born landed immigrant and Holocaust denier, deported under security certificate 10/7/20142

3. 3 Charkaoui Issue: Constitutional validity of Immigration and Refugee Protection Act, S.C. 2001, c. 27 Under IRPA, permanent residents and foreign nationals in Canada named in security certificates rendered inadmissible to Canada and subject to deportation Under IRPA, permanent residents and foreign nationals in Canada named in security certificates rendered inadmissible to Canada and subject to deportation Conditions: (a) Gov’t satisfied that sufficient evidence that continued presence in Canada constitutes threat to national security; (b) Federal judge confirms reasonableness of certificate Conditions: (a) Gov’t satisfied that sufficient evidence that continued presence in Canada constitutes threat to national security; (b) Federal judge confirms reasonableness of certificate

4. 10/7/20144 Held in custody till deportation – Kingston Immigration Housing Centre (Millhaven Penitentiary) Held in custody till deportation – Kingston Immigration Housing Centre (Millhaven Penitentiary) Review hearing before Federal judge mandatory Review hearing before Federal judge mandatory Gov’t can request hearing be held “in camera” w/o named person present Gov’t can request hearing be held “in camera” w/o named person present

5. Permanent residents: mandatory hearing required within 48 hours of detention Permanent residents: mandatory hearing required within 48 hours of detention Foreign nationals: mandatory hearing required within 120 days Foreign nationals: mandatory hearing required within 120 days Some or all of information on which gov’t makes its case may be withheld from named person and his/or her lawyer Some or all of information on which gov’t makes its case may be withheld from named person and his/or her lawyer Judge determines whether non-disclosure warranted for reasons of national security Judge determines whether non-disclosure warranted for reasons of national security 10/7/20145

6. 6 Judge must provide named person with summary of govt’s evidence Judge must provide named person with summary of govt’s evidence Summary must omit reference to non-disclosed, confidential evidence Summary must omit reference to non-disclosed, confidential evidence No right of appeal No right of appeal A Problem: Deportation to country where person may face torture or death illegal A Problem: Deportation to country where person may face torture or death illegal Result: Indefinite detention Result: Indefinite detention

7. 10/7/20147 Charkaoui’s claim: IRPA violates, S. 7: right to life, liberty and security of the person….principles of fundamental justice S. 7: right to life, liberty and security of the person….principles of fundamental justice S. 9: right against arbitrary detention S. 9: right against arbitrary detention S. 10 (c): right to prompt review of detention (habeas corpus –more later) S. 10 (c): right to prompt review of detention (habeas corpus –more later) S. 12: right against cruel and unusual punishment S. 12: right against cruel and unusual punishment S. 15: right to equal protection and equal benefit S. 15: right to equal protection and equal benefit of the law of the law

8. 10/7/20148 SCC found three Charter breaches SCC found three Charter breaches S. 7, S. 9 & S. 10 (c) all unjustifiably infringed by IRPA S. 7, S. 9 & S. 10 (c) all unjustifiably infringed by IRPA Courts opinion authored by Chief Justice, Beverley McLachlin Courts opinion authored by Chief Justice, Beverley McLachlin

9. 10/7/20149 Section 7 “The issue is whether the process is fundamentally unfair to the affected person.” (296) “The issue is whether the process is fundamentally unfair to the affected person.” (296) “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process…” (296) “The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process…” (296)

10. 10/7/201410 Section 7, cont’d Fair judicial process involves: Fair judicial process involves: Right to a hearing involving… Right to a hearing involving… 1. Independent and impartial magistrate/judge 2. Decision on both the facts and the law 3. Right to know case put against one & right to answer that case (296-7) “the IRPA scheme meets the first requirement of independence and impartiality, but fails to satisfy the second and third requirements…” (297) “the IRPA scheme meets the first requirement of independence and impartiality, but fails to satisfy the second and third requirements…” (297)

11. 10/7/201411 Section 7, cont’d Gov’t allowed to present evidence content of which unknown to named person or his/her lawyer Gov’t allowed to present evidence content of which unknown to named person or his/her lawyer No opportunity of named person to assess and challenge evidence; no right to respond No opportunity of named person to assess and challenge evidence; no right to respond No opportunity to submit own evidence and challenge legal basis of govt’s case No opportunity to submit own evidence and challenge legal basis of govt’s case

12. 10/7/201412 Section 7, cont’d “The normal standards used to ensure the reliability of evidence in court do not apply…The named person may be shown little or none of the material relied on by the ministers and the judge, and may thus not be in a position to know or challenge the case against him or her. It follows that the judge’s decision, while based on the evidence before him or her, may not be based on all the evidence available.” (298, emphasis added)

13. 10/7/201413 Section 7, cont’d “…the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged – perhaps unknowingly – to make the required decision based on only part of the relevant evidence.” (298) “…the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged – perhaps unknowingly – to make the required decision based on only part of the relevant evidence.” (298)

14. 10/7/201414 Adversarial v Inquisitorial Adversarial system in Canada and other common law systems Adversarial system in Canada and other common law systems Judge relies on contesting parties to present best evidence and arguments supporting his/her case Judge relies on contesting parties to present best evidence and arguments supporting his/her case Inquisitorial system in Continental Europe and other Civil Law jurisdictions Inquisitorial system in Continental Europe and other Civil Law jurisdictions Judge’s responsibility to gather (and assess) evidence Judge’s responsibility to gather (and assess) evidence Under IRPA, “judge is not afforded power to independently investigate all relevant facts that true inquisitorial judges enjoy” Under IRPA, “judge is not afforded power to independently investigate all relevant facts that true inquisitorial judges enjoy”

15. 10/7/201415 Under IRPA, judge must rely exclusively on govt’s evidence and legal argument Under IRPA, judge must rely exclusively on govt’s evidence and legal argument Advantages of neither inquisitorial nor adversarial systems Advantages of neither inquisitorial nor adversarial systems “…without disclosure and full participation throughout the process, [named person] may not be in a position to put forward a full legal argument.” “…without disclosure and full participation throughout the process, [named person] may not be in a position to put forward a full legal argument.”

16. Conclusions: Distinct possibility that decision not based on all relevant evidence and law Distinct possibility that decision not based on all relevant evidence and law Violation of fair process; fundamental justice Violation of fair process; fundamental justice IRPA violates S. 7 IRPA violates S. 7 10/7/201416

17. 10/7/201417 Next Step: Sec 1 Analysis Can IRPA’s, violation of Sec. 7” be demonstrably justified in a fee and democratic society?” Can IRPA’s, violation of Sec. 7” be demonstrably justified in a fee and democratic society?” Oakes Test: Oakes Test: IRPA has “pressing and substantial objective”, national security (300) ✔ IRPA has “pressing and substantial objective”, national security (300) ✔ IRPA “rationally connected to this objective” (300) ✔ IRPA “rationally connected to this objective” (300) ✔ IRPA fails minimal impairment criterion ✗ IRPA fails minimal impairment criterion ✗

18. 10/7/201418 Less invasive alternatives available Less invasive alternatives available Security Intelligence Review Act establishes independent review body – Security Intelligence Review Committee (SIRC) – to assess denials of entry into Canada by Minister of Employment and Immigration and Solicitor General “due to [the person’s] involvement in organized crime, espionage, subversion, acts of violence, etc…” (300) Security Intelligence Review Act establishes independent review body – Security Intelligence Review Committee (SIRC) – to assess denials of entry into Canada by Minister of Employment and Immigration and Solicitor General “due to [the person’s] involvement in organized crime, espionage, subversion, acts of violence, etc…” (300) Some info. withheld from candidates for reasons of national security, but steps taken to minimize effect Some info. withheld from candidates for reasons of national security, but steps taken to minimize effect

19. 10/7/201419 SICR, empowered to develop its own investigative procedures, “established a formal adversarial process, with ‘a court like hearing room’ and ‘procedures that mirror judicial proceedings as much as possible.” (301) SICR, empowered to develop its own investigative procedures, “established a formal adversarial process, with ‘a court like hearing room’ and ‘procedures that mirror judicial proceedings as much as possible.” (301) Process includes “an independent panel of lawyers with security clearances to act as counsel to SIRC.” (301) Process includes “an independent panel of lawyers with security clearances to act as counsel to SIRC.” (301)

20. 10/7/201420 “Special Counsels” – charged with protecting & advancing interests of candidate for entry “Special Counsels” – charged with protecting & advancing interests of candidate for entry Not ideal from perspective of candidate’s right to fair hearing – he/she not privy to non-disclosed evidence and hence not in position to advise Special Counsel on, e.g., further evidence that might help refute case for denial of entry Not ideal from perspective of candidate’s right to fair hearing – he/she not privy to non-disclosed evidence and hence not in position to advise Special Counsel on, e.g., further evidence that might help refute case for denial of entry

21. 10/7/201421 But: “SIRC’s procedures represented ‘an attempt to preserve the best features of the adversarial process with its insistence on vigorous cross-examination, but not to run afoul of the requirements of national security’.” (301, quoting from Rankin, “The Security Intelligence Review Committee: Reconciling National Security with Procedural Fairness.”) But: “SIRC’s procedures represented ‘an attempt to preserve the best features of the adversarial process with its insistence on vigorous cross-examination, but not to run afoul of the requirements of national security’.” (301, quoting from Rankin, “The Security Intelligence Review Committee: Reconciling National Security with Procedural Fairness.”)

22. 10/7/201422 Other examples of better balances between national security and fairness to the individual Other examples of better balances between national security and fairness to the individual Air India trial – sensitive information disclosed to defence counsel but not accused Air India trial – sensitive information disclosed to defence counsel but not accused Arar Inquiry – use of Special Counsel Arar Inquiry – use of Special Counsel UK’s “Special Advocates” for deportation cases involving national security UK’s “Special Advocates” for deportation cases involving national security

23. 10/7/201423 Conclusion re: S. 7 & S. 1 “I conclude that the IRPA’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case. Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA. Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society.” (303, emphasis added)

24. 10/7/201424 S. 9 and S. 10(c) “Section 9 of the Charter guarantees freedom from arbitrary detention.” (303) “Section 9 of the Charter guarantees freedom from arbitrary detention.” (303) Foreign nationals entitled to review within 120 days Foreign nationals entitled to review within 120 days Permanent Residents entitled to review within 48 hours Permanent Residents entitled to review within 48 hours Freedom from arbitrary detention encompasses “the right to prompt review.” (303) Freedom from arbitrary detention encompasses “the right to prompt review.” (303)

25. 10/7/201425 Clear that there is “a need for flexibility regarding the period for which a suspected terrorist may be detained.” Clear that there is “a need for flexibility regarding the period for which a suspected terrorist may be detained.” “…state officials may need to act immediately.” “…state officials may need to act immediately.” But, “this cannot justify the complete denial of timely detention review.” But, “this cannot justify the complete denial of timely detention review.” Right of “habeas corpus” Right of “habeas corpus”

26. 10/7/201426 Habeas Corpus Latin: "you have the body” Latin: "you have the body” One of the concessions the British Monarch, King John, made in the Magna Carta and has stood as a basic individual right against arbitrary arrest and imprisonment One of the concessions the British Monarch, King John, made in the Magna Carta and has stood as a basic individual right against arbitrary arrest and imprisonment “...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” (Magna Carta) “...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.” (Magna Carta)

27. Habeas Corpus, cont’d Writ of Habeas Corpus: judicial mandate to a prison official ordering that an inmate be brought to the court to determine if inmate is imprisoned lawfully or should be released from custody Writ of Habeas Corpus: judicial mandate to a prison official ordering that an inmate be brought to the court to determine if inmate is imprisoned lawfully or should be released from custody E.g., must have sufficient evidence to warrant detention and (probably) trial E.g., must have sufficient evidence to warrant detention and (probably) trial 10/7/201427

28. Back to Charkaoui In Charkaoui case: IRPA allows detention without production of evidence for significant periods of time In Charkaoui case: IRPA allows detention without production of evidence for significant periods of time Permanent residents: 48 hours Permanent residents: 48 hours Foreign nationals: 120 days Foreign nationals: 120 days 10/7/201428

29. 10/7/201429 “Permanent residents who pose a danger to national security are also meant to be removed expeditiously. If this objective can be pursued while providing permanent residents with a mandatory detention review within 48 hours, then how can a denial of review for foreign nationals for 120 days after the certificate is confirmed be considered a minimal impairment?”

30. 10/7/201430 Main Conclusions 1. “…the IRPA’s procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter. I would declare the procedure to be inconsistent with the Charter, and hence of no force or effect.” Declaration suspended for 1 year, thus giving Parliament time to amend law Declaration suspended for 1 year, thus giving Parliament time to amend law

31. 10/7/201431 Conclusion re: S. 9 & 10(c) 2. “…the lack of timely review of the detention of foreign nationals violates s. 9 [arbitrary detention] and s. 10(c) [habeas corpus] and cannot be saved by s. 1.”  Relevant sections of Act struck down  In October, 2007 gov’t introduced legislation incorporating “Special Advocate” system parallel to one used in UK

32. Belmarsh Prison Case, 2004 Anti-Terrorism, Crime and Security Act (ATCSA) passed by UK Parliament in 2001 in response to 9/11 Anti-Terrorism, Crime and Security Act (ATCSA) passed by UK Parliament in 2001 in response to 9/11 Parliament “derogated from” ECHR Parliament “derogated from” ECHR I.e., “opted out” of sections of ECHR violated by ATCSA I.e., “opted out” of sections of ECHR violated by ATCSA Analogous to Canadian Charter’s s.33 notwithstanding clause Analogous to Canadian Charter’s s.33 notwithstanding clause 10/7/201432

33. Derogation Under ECHR “Article 15 – Derogation in time of emergency “Article 15 – Derogation in time of emergency (1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” (1) In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.” 10/7/201433

34. Belmarsh, cont’d Problem: Insufficient evidence to warrant criminal trial and detention in UK Problem: Insufficient evidence to warrant criminal trial and detention in UK Public trial threat to national security Public trial threat to national security Can’t detain indefinitely without trial (Habeas Corpus) Can’t detain indefinitely without trial (Habeas Corpus) Can’t deport to country where person might face torture or death Can’t deport to country where person might face torture or death Result: Indefinite detention without trial Result: Indefinite detention without trial 10/7/201434

35. Belmarsh, cont’d Case before House of Lords, the (then) highest court of appeal in UK Case before House of Lords, the (then) highest court of appeal in UK Ruling: Indefinite detention not necessary to prevent extremist attacks Ruling: Indefinite detention not necessary to prevent extremist attacks “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law “ (Lord Nicholls) “Indefinite imprisonment without charge or trial is anathema in any country which observes the rule of law “ (Lord Nicholls) ATCSA unconstitutional ATCSA unconstitutional 10/7/201435

36. Belmarsh, cont’d Parliament’s response: Prevention of Terrorism Act, 2005 Parliament’s response: Prevention of Terrorism Act, 2005 Indefinite detention replaced with “control orders” Indefinite detention replaced with “control orders” Form of house arrest Form of house arrest Restrictions placed on movement Restrictions placed on movement Report daily to police station Report daily to police station 10/7/201436

37. Back to Charkaoui: Questions 1.Even with the use of special counsel, does the security certificate process strike a reasonable balance between rights and state interest in preventing terrorism? 2.Is it still unfair to the named person not to know the evidence against him/her? 10/7/201437

38. Questions cont’d 3.Does the new process still unjustifiably violate habeas corpus? Due process? Natural Justice? 4.Should the normal rules of evidence be used, instead of rules which allow, e.g., for use of hearsay evidence? (N.B. Judge has discretion to allow whatever evidence he/she thinks is relevant.) 10/7/201438

39. Questions cont’d 5.The standard of proof gov’t has to meet is very low – “reasonable grounds to believe” that named person threat to national security. Special counsel therefore in position of having to prove that it is not reasonable to believe that named person poses threat to security of Canada. 10/7/201439

40. Questions cont’d Is this standard high enough? Is this standard high enough? Or should higher standard of proof be used: e.g., Or should higher standard of proof be used: e.g., “probable that” “probable that” “highly probable that” or “highly probable that” or “beyond a reasonable doubt”? “beyond a reasonable doubt”? 10/7/201440

41. Questions cont’d 6.Is indefinite detention consistent with principles of fundamental justice? Or would (UK type) “control orders” be preferable? 10/7/201441