National Security

• Author: International Law Group
• Pages: 30-35

Page 30

The Canadian Immigration and Refugee Protection Act, S. C. 2001, c. 27 (IRPA), tries to resolve the tension between national security and individual liberty in the immigration context. It authorizes the Minister of Citizenship and Immigration (the MCI), and the Minister of Public Safety and Emergency Preparedness (MPSEP) (collectively "the Ministers") to issue a certificate of inadmissibility that leads to the detention of a permanent resident or foreign national believed to be a threat to national security. The certificate and the detention are both subject to review by a judge.

This process, however, may deny the named person some or all of the information on which the certificate or the detention rested. The question is whether the solution that Parliament has enacted conforms to the Constitution, and specifi cally to the guarantees in the Canadian Charter of Rights and Freedoms. These provisions protect against unjustifi able intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.

Appellants before the Supreme Court of Canada are Mr. Adil Charkaoui, a permanent resident, plus Messrs. Mohamed Harkat and Hassan Almrei, foreign nationals who had been recognized as covered by the Refugee Convention. All these Appellants were living in Canada when authorities arrested and detained them. At the time of the decisions on appeal, all had been in custody for some time-since 2003, 2002 and 2001 respectively.

In 2001, a judge of the Federal Court determined Mr. Almrei's certificate to be reasonable; another determined Mr. Harkat's certificate to be reasonable in 2005. No court has yet determined the reasonableness of Mr. Charkaoui's certificate. Canadian authorities released Messrs. Charkaoui and Harkat on certain restrictive conditions in 2005 and 2006 respectively, but the Government has told Mr. Harkat that it plans to deport him to Algeria. Mr. Almrei remains in detention. In these three cases, the detentions stemmed from allegations that the individuals posed a threat to Canadian security due to their links to terrorist activities.

The Appellants argue that the IRPA's certificate scheme is unconstitutional. They contend that it violates fi ve provisions of the Charter: the § 7 guarantee of life, liberty and security of the person; the § 9 guarantee against arbitrary detention; the § 10(c) guarantee of a prompt judicial review of detention; the § 12 guarantee against cruel and unusual treatment; and the § 15 guarantee of equal protection and equal benefit of the law. They also allege violations of unwritten constitutional principles.

The Canadian Supreme Court's principal rulings are as follows. First, the procedure under the IRPA for determining the reasonableness of the certificate of inadmissibility does infringe § 7 of the Charter, and the infringement is not demonstrably justifi ed in a free and democratic society under § 1 of the Charter. Second, the detention of permanent residents or foreign nationals under the IRPA infringes § 9 of the Charter, and the infringements are not demonstrably justified in a free and democratic society under § 1 of the Charter. Third, the IRPA in whole or in part or through their combined effect, does infringe § 10 of the Charter and the infringement is not a reasonable limit prescribed by law which can be demonstrably justifi ed in a freePage 31 and democratic society under § 1 of the Charter. A unanimous Court, therefore, allows the appeal.

The question at the § 7 stage is whether the Government has, in substance, observed the principles of fundamental justice relevant to the case, having regard to the context and the seriousness of the violation. The crux is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of § 7. The inquiry then shifts to § 1 of the Charter, at which point the government has a chance to justify the fl awed process, having regard, notably, to the public interest.

It follows that while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, the Government cannot use security concerns to excuse procedures that do not conform to fundamental justice at the § 7 stage of the analysis. If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, there may exist adequate substitutes. The bottom line is that the Government has to respect these principles to pass the hurdle of § 7.

The procedures required to comply with the principles of fundamental justice must, of course, refl ect to some extent the demands of the security context. Yet the courts cannot let them erode the essence of § 7. The Government cannot reduce the...