Charkaoui v. Canada (Minister of Citizenship and Immigration)
Encyclopedia
Charkaoui v. Canada, 2007 SCC 9 is a landmark decision of the Supreme Court of Canada
on the constitutionality of procedures for determining the reasonableness of a security certificate
and for reviewing detention under a certificate. The Court held that the security certificate process, which prohibited the named individual from examining evidence used to issue the certificate, violated the right to liberty and habeas corpus
under section 7, 9 and 10 of the Canadian Charter
. The Court however rejected the appellant arguments that the extension of detentions violated the right against indefinite detention
, that the differential treatment violated equality rights
, and that the detention violated the rule of law
. As remedy, the Court declared the "judicial confirmation of certificates and review of detention" to be of no force and effect, striking down articles 33 and 77 to 85 of the Immigration and Refugee Protection Act, but suspended the ruling for one year.
, a permanent resident in Canada since 1995, was arrested and imprisoned under a security certificate issued by the Solicitor General of Canada
(then Wayne Easter
) and the Minister of Immigration (then Denis Coderre
). The evidence upon which the certificate was issued is secret, disclosed neither to Charkaoui nor his lawyers. Public summaries of the evidence issued by the Federal Court
alleged a connection with "the bin Laden network". Charkaoui appealed his detention three times before being released on the fourth try in February 2005, having spent almost two years in Rivière-des-Prairies prison in Montreal
. He was released under severely restrictive bail
conditions. Charkaoui has never been charge
d or tried
. The certificate against Charkaoui has never undergone any judicial review; the Federal Court suspended its review process in March 2005, pending a new decision from the Minister of Immigration on Charkaoui's deportability (a decision which evaluates, inter alia, risk to Mr. Charkaoui).
is a foreign national who was granted refugee
status in Canada in June 2000. It was later reported that Almrei was potentially involved with a terrorist network that supported Osama bin Laden
and was further involved in forging travel documentation. Almrei was arrested on October 19 of 2001 on a security certificate and has been in custody to this day. The certificate has since been upheld as valid by the Federal Court.
In December 2001 the government attempted to have Almrei declared a "danger to Canadian security" thereby be deported to Syria. In December of 2003 the declaration was given. Almrei sought judicial review
of the decision to deport him and a stay was granted in November of 2003.
(IRPA) for Mohamed Harkat
, an Algerian living in Canada, on the basis that they reasonably believed he was supporting terrorist activity. The certificate was reviewed by a Federal Court judge under section 77 of IRPA. The Federal judge found that the certificate was reasonable. Harkat challenged constitutionality of the provisions of IRPA under which the security certificate was reviewed.
Leave to appeal to the Supreme Court was granted on October 20, 2005.
On the section 1 analysis for justification of the violation the Court held that the certificate process was not minimally impairing. The Court cited a clearance system used elsewhere in the world that would designate certain lawyers to view the evidence on behalf of the accused.
The court also found that s. 84(2) of the IRPA was unconstitutional because it denied a prompt hearing to foreign nations by imposing a 120-day embargo on any application for release. The court corrected this defect by removing this mandatory waiting-period.
On September 24, 2009 Justice Tremblay-Lamer announced she would lift all restrictions on Mr. Charkaoui by the end of the day.
Federal Court of Appeal
Federal Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
on the constitutionality of procedures for determining the reasonableness of a security certificate
Security certificate
In Canadian law, a security certificate is a mechanism by which the Government of Canada can detain and deport foreign nationals and all other non-citizens living in Canada...
and for reviewing detention under a certificate. The Court held that the security certificate process, which prohibited the named individual from examining evidence used to issue the certificate, violated the right to liberty and habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
under section 7, 9 and 10 of the Canadian Charter
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
. The Court however rejected the appellant arguments that the extension of detentions violated the right against indefinite detention
Indefinite detention
Indefinite detention is the incarceration of an arrested person by a national government or law enforcement agency without a trial. It is a controversial practice on the part of any government or agency that is in violation of many national and international laws, including human rights laws...
, that the differential treatment violated equality rights
Section Fifteen of the Canadian Charter of Rights and Freedoms
Section Fifteen of the Canadian Charter of Rights and Freedoms contains guaranteed equality rights. As part of the Constitution, the section prohibits certain forms of discrimination perpetrated by the governments of Canada with the exception of ameliorative programs and rights or privileges...
, and that the detention violated the rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
. As remedy, the Court declared the "judicial confirmation of certificates and review of detention" to be of no force and effect, striking down articles 33 and 77 to 85 of the Immigration and Refugee Protection Act, but suspended the ruling for one year.
Charkaoui
In 2003, Adil CharkaouiAdil Charkaoui
Adil Charkaoui is a Morocco-born permanent resident of Canada who was arrested by the Canadian government under a security certificate in May 2003....
, a permanent resident in Canada since 1995, was arrested and imprisoned under a security certificate issued by the Solicitor General of Canada
Solicitor General of Canada
The Solicitor General of Canada was a position in the Canadian ministry from 1892 to 2005. The position was based on the Solicitor General in the British system and was originally designated as an officer to assist the Minister of Justice...
(then Wayne Easter
Wayne Easter
Arnold Wayne Easter, PC, MP is a Canadian politician.-Before politics:Born in North Wiltshire, Prince Edward Island the son of A. Leith Easter and Hope MacLeod, he was educated at the Charlottetown Rural High School and the Nova Scotia Agricultural College. In 1970, he married Helen Arleighn...
) and the Minister of Immigration (then Denis Coderre
Denis Coderre
Denis Coderre, PC, MP is a Canadian politician from Quebec, Canada. Coderre is the Liberal Member of Parliament for the Montreal riding of Bourassa.-Background:...
). The evidence upon which the certificate was issued is secret, disclosed neither to Charkaoui nor his lawyers. Public summaries of the evidence issued by the Federal Court
Federal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
alleged a connection with "the bin Laden network". Charkaoui appealed his detention three times before being released on the fourth try in February 2005, having spent almost two years in Rivière-des-Prairies prison in Montreal
Montreal
Montreal is a city in Canada. It is the largest city in the province of Quebec, the second-largest city in Canada and the seventh largest in North America...
. He was released under severely restrictive bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...
conditions. Charkaoui has never been charge
Criminal charge
A criminal charge is a formal accusation made by a governmental authority asserting that somebody has committed a crime. A charging document, which contains one or more criminal charges or counts, can take several forms, including:* complaint...
d or tried
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
. The certificate against Charkaoui has never undergone any judicial review; the Federal Court suspended its review process in March 2005, pending a new decision from the Minister of Immigration on Charkaoui's deportability (a decision which evaluates, inter alia, risk to Mr. Charkaoui).
Almrei
Hassan AlmreiHassan Almrei
A Syrian, Hassan Ahmed Almrei arrived in Canada in 1999 claiming refugee status. He has been since held, and accused of terrorist connections and ideology, for his "reputation... for obtaining false documents", and his relationship with Ibn al-Khattab following time shared together during the...
is a foreign national who was granted refugee
Refugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...
status in Canada in June 2000. It was later reported that Almrei was potentially involved with a terrorist network that supported Osama bin Laden
Osama bin Laden
Osama bin Mohammed bin Awad bin Laden was the founder of the militant Islamist organization Al-Qaeda, the jihadist organization responsible for the September 11 attacks on the United States and numerous other mass-casualty attacks against civilian and military targets...
and was further involved in forging travel documentation. Almrei was arrested on October 19 of 2001 on a security certificate and has been in custody to this day. The certificate has since been upheld as valid by the Federal Court.
In December 2001 the government attempted to have Almrei declared a "danger to Canadian security" thereby be deported to Syria. In December of 2003 the declaration was given. Almrei sought judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the decision to deport him and a stay was granted in November of 2003.
Harkat
The Minister of Citizenship and Immigration issued a security certificate under section 34 of the Immigration and Refugee Protection ActImmigration and Refugee Protection Act
Immigration and Refugee Protection Act is an Act of the Parliament of Canada, passed in 2001 as Bill C-11, which replaced the Immigration Act of 1976 as the primary federal legislation regulating Immigration to Canada....
(IRPA) for Mohamed Harkat
Mohamed Harkat
Born in Algeria, Mohamed Harkat has drawn Canadian media attention as being one of several Muslim-Canadians alleged to have ties to terrorism and imprisoned under security certificates. The Canadian Security Intelligence Service alleges that he entered the country as a sleeper agent for al-Qaeda...
, an Algerian living in Canada, on the basis that they reasonably believed he was supporting terrorist activity. The certificate was reviewed by a Federal Court judge under section 77 of IRPA. The Federal judge found that the certificate was reasonable. Harkat challenged constitutionality of the provisions of IRPA under which the security certificate was reviewed.
Leave to appeal to the Supreme Court was granted on October 20, 2005.
Decision of the Court
Chief Justice McLachlin, writing for a unanimous court, holds that sections 33 and 77 to 85 of the IRPA unreasonably violates sections 7, 9 and 10 of the Canadian Charter of Rights and Freedoms.On the section 1 analysis for justification of the violation the Court held that the certificate process was not minimally impairing. The Court cited a clearance system used elsewhere in the world that would designate certain lawyers to view the evidence on behalf of the accused.
The court also found that s. 84(2) of the IRPA was unconstitutional because it denied a prompt hearing to foreign nations by imposing a 120-day embargo on any application for release. The court corrected this defect by removing this mandatory waiting-period.
Events Subsequent to the Decision
On July 31, 2009 the Crown admitted there was insufficient evidence to uphold the security certificate against Mr. Charkaoui. This followed the Crown withdrawing much of its evidence in the face of Court orders for greater transparency. In response Justice Tremblay-Lamer presiding over the case issued a directive on August 5, 2009 saying she will consider whether she should quash the certificate or order the Ministers to revoke it themselves on her return from holidays, in early September.On September 24, 2009 Justice Tremblay-Lamer announced she would lift all restrictions on Mr. Charkaoui by the end of the day.
Court documents
SCC- Charkaoui's SCC factum (french)
- BC Civil Liberties intervener factum
- Application for leave to intervene from BC Civil Liberties Association
- Supporting affidavit for leave to intervene from BC Civil Liberties Association
Federal Court of Appeal
Federal Court