CHARKAOUI V. CANADA (CHARKAOUI II)
Amnesty International was represented in this case by Michael Bossin, Vanessa Gruben, and Owen M. Rees.
WHAT IS THIS CASE ABOUT?
On 9 May 2003, the government of Canada issued a security certificate against Adil Charkaoui, then a permanent resident of Canada, alleging that he was a threat to national security. Pursuant to the security certificate scheme under the Immigration and Refugee Protection Act (IRPA), Mr. Charkaoui was detained. The Federal Court judge determined his security certificate was reasonable, and Mr. Charkaoui remained in detained with the right to periodic review of his detention.
In a separate case, Mr. Charkaoui and two other individuals named in security certificates challenged the constitutionality of the IRPA security certificate scheme. They alleged that severe limitations on access to information forming the basis of the certificate violated their right to a fair trial under section 7 of the Canadian Charter of Rights and Freedoms (Charter). In that case, the Supreme Court of Canada found that the secrecy involved in the security certificate process undermined the right to a fair hearing under the Charter. Amnesty International also intervened in that case. To learn more about our work in Charkaoui I, click here.
In response to the first Charkaoui case, the government of Canada amended the IRPA to include a new security certificate scheme. Among the changes, the new scheme introduced the new 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. This new scheme was the subject of a separate constitutional challenge. Amnesty also intervened in that case. To learn more about our intervention, click here.
This appeal arose in the context of the fourth review of Mr. Charkaoui’s detention. The Federal Court of Appeal’s judgment in this case was released prior to Charkaoui I which invalidated he security certificate scheme under the Charter. In the course of the detention review, Mr. Charkaoui received several summaries of information forming the basis of the security certificate against him. One summary referred to two interviews of Mr. Charkaoui conducted by the Canadian Security Intelligence Services (CSIS). CSIS conceded that the underlying documents had been destroyed. Another summary referred to information obtained from Nouredinne Nafia, who was being held in a Moroccan prison. The summary failed to address the circumstances relevant to whether the information may have been obtained by prohibited means, and there was evidence that torture and other prohibited treatment or punishment are used against detainees in Morocco. Several other summaries disclosed to Mr. Charkaoui also referred to information obtained from third parties. They too failed to disclose the circumstances relevant to whether the information may have been obtained by torture or other prohibited treatment or punishment.
In light of the Supreme Court of Canada’s judgment in his previous case, and the deficiencies in the summary evidence used against him, Mr. Charkaoui filed a motion to stay the proceedings and quash his security certificate. The Federal Court of Canada and Federal Court of Appeal dismissed his motion. Mr. Charkaoui appealed to the Supreme Court of Canada.
AMNESTY INTERNATIONAL’S INTERVENTION
Amnesty International intervened in Mr. Charkaoui’s case before the Supreme Court of Canada. In our submissions, Amnesty International argued that the principle of procedural fairness protected by section 7 of the Charter and international human rights norm require that, in the context of a security certificate proceeding, the circumstances relevant to whether information may have been obtained through torture or other cruel, inhuman, or degrading treatment or punishment or through coercion (“prohibited means”) must be disclosed to the Ministers, the designated judge, and the person named on a security certificate. Accordingly, any interpretation of the Canadian Security Intelligence Service Act or the IRPA that authorizes the destruction of such information, and thereby precludes the disclosure of these circumstances, violates the Charter and international human rights norms.
STATUS OF THE CASE
The Supreme Court of Canada found that the destruction of operational notes breached CSIS’s duty to retain and disclose information under the Canadian Security Intelligence Service Act. CSIS has a duty to disclose the evidence to the Federal Court judge examining the reasonableness of the security certificate and ongoing detention, whose job is to filter the evidence and determine how much access the named person should have to it. However, the Supreme Court refused to grant Mr. Charkaoui a stay of proceedings. Rather, the Court felt that it was sufficient to confirm CSIS’s duty to disclose Mr. Charkaoui’s entire file to the Federal Court judge. In coming to its judgment, the Supreme Court did not deal with Amnesty International’s concerns about the use of evidence possibly derived from torture against Mr. Charkaoui.
Following the introduction of the new regime for security certificates, the government re-issued a security certificates against Mr. Charkaoui. In 2009, the Federal Court quashed that security certificate.
Amnesty International’s application to intervene before the Supreme Court of Canada in Mr. Charkaoui’s case
Amnesty International’s submissions to the Supreme Court of Canada in Mr. Charkaoui’s case
Supreme Court of Canada judgment in Mr. Charkaoui’s case