CHARKAOUI V. CANADA (CHARKAOUI I)
Amnesty International was represented in this case by Thomas G. Conway, Vanessa Gruben, Michael Bossin, and Owen M. Rees.
WHAT IS THIS CASE ABOUT?
This case concerned three men – Adil Charkaoui, Hassan Almrei, and Mohamad Harkat – who were accused of posing threats to the security of Canada and named on security certificates which declared them inadmissible to Canada. Mr. Charkaoui was a permanent resident of Canada at the time, and Mr. Almrei and Mr. Harkat were foreign nationals with Convention refugee status.
Under the Immigration and Refugee Protection Act (IRPA), the security certificate and associated detention were subject to judicial review by a Federal Court judge. However, this review process occurred in secret and deprived those named on security certificates of some or all of the information forming the basis of the certificate, severely limiting their ability to mount an effective defense. If the Federal Court judge found the security certificate reasonable, a removal order would be issued. Individuals named on security certificates had no right to appeal the Federal Court judge’s determination or the removal order.
Mr. Charkaoui, Mr. Almrei, and Mr. Harkat challenged the constitutionality of the security certificate scheme under the IRPA, arguing that the process infringed their right to a fair trial guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (Charter).
AMNESTY INTERNATIONAL’S INTERVENTION
In our intervention before the Supreme Court of Canada, Amnesty International argued that the IRPA security certificate scheme deprived Mr. Charkaoui, Mr. Almrei, and Mr. Harkat of their right to a fair hearing under section 7 of the Charter and contrary to article 14 of the International Covenant on Civil and Political Rights (ICCPR). We argued that this violation was not justified under section 1 of the Charter or an international law. Further, Amnesty International provided submissions that the security certificate scheme enabled arbitrary detention contrary to section 9 of the Charter and article 9 of the ICCPR. These provisions arbitrarily discriminated between foreign nationals and permanent residents in a manner that is not justified under section 1 of the Charter or at international law.
STATUS OF THE CASE
The Supreme Court of Canada found that the secrecy involved in the process of Federal Court judges reviewing security certificates denied Mr. Charkaoui, Mr. Almrei, and Mr. Harkat an opportunity to know the case against them and be able to challenge it. As a result, the Supreme Court found that the IRPA security certificate scheme undermined the right to a fair hearing contrary to section 7 of the Charter. The Supreme Court held that the security certificate scheme could not be saved by section 1 of the Charter, because alternatives exist that are less intrusive of the rights of named person, including the use of Special Advocates to represent the interests of named persons in secret hearings. Consequently, the Supreme Court struck down the IRPA provisions relating to security certificate reviews as unconstitutional.
The Supreme Court also found that while detention of foreign nationals without warrant when a security certificate is issued against them does not infringe the guarantee against arbitrary detention in section 9 of the Charter, the long delay before the detention is reviewed (120 days after the reasonableness of the security certificate is confirmed) does constitute a violation that is not saved by section 1 of the Charter.
Finally, the Supreme Court affirmed that indefinite detention without the hope of release or any meaningful opportunities for named person to challenge their continued detention would constitute cruel and unusual treatment under section 12 of the Charter. However, the Supreme Court found that extended periods of detention pending deportation under the security certificate scheme did not violate sections 7 and 12 of the Charter if named persons were provided with regular opportunities to review their detention, taking into account all relevant factors.
In response to the Supreme Court of Canada’s declaration that the security certificate scheme was unconstitutional, in 2008 the government of Canada introduced a new new regime for security certificates into the Immigration and Refugee Protection Act. Among the changes, the new scheme introduced the role of “Special Advocate.” Special Advocates are counsel with high-level security clearance appointed to represent the interests of individuals named on security certificates in secret hearings. However, Special Advocates operate under strict communications rules and with limited powers to challenge evidence in secret hearings that continue to limit the right to a fair hearing of the named person.
Following the introduction of the new regime for security certificates, the government re-issued security certificates against Mr. Charkaoui, Mr. Almrei, and Mr. Harkat. In 2009, the Federal Court quashed the security certificates against Mr. Charkaoui and Mr. Almrei.
Mr. Harkat challenged the constitutionality of the new security certificate regime at the Supreme Court of Canada, arguing that it continued to undermine the right to a fair. The Supreme Court of Canada found that the new security certificate and Special Advocate regime in the IRPA is constitutional. Amnesty International also intervened in that case. To learn more about our intervention, click here.
Amnesty International’s application to intervene before the Supreme Court of Canada in the Charkaoui case
Amnesty International’s submissions to the Supreme Court of Canada in the Charkaoui case
Supreme Court of Canada Judgment in the Charkaoui case