Academic journal article University of New Brunswick Law Journal

Process and Substance: Charkaoui I in the Light of Subsequent Development

Academic journal article University of New Brunswick Law Journal

Process and Substance: Charkaoui I in the Light of Subsequent Development

Article excerpt


The Canadian security certificate regime found in the Immigration and Refugee Protection Act 2001 (1) provides for the removal of non-citizens on security grounds and detention pending removal. In February 2007, by way of a unanimous judgment in Charkaoui I, (2) the Supreme Court of Canada upheld the regime, subject to changes to its procedures mandated by the Canadian Charter of Rights and Freedoms. (3) The Court addressed the procedures for the review of certification and detention, leaving the legality of the indefinite detention of non-citizens and deportation to torture to be resolved on a case by case basis. The Court's reasoning in Charkaoui I has been criticized, by myself and others, on the grounds that it used procedure to avoid the substantive issues of primary concern to the appellants. (4)

But that criticism may be insufficiently appreciative of what improved procedures can achieve. Procedural modifications to the security certificate regime instigated by Charkaoui I had, by the end of 2009, resulted in the release of two of the five men certified under the regime. The security certificates issued against Mr. Charkaoui and Mr. Almrei were ruled to be void and quashed, respectively.

From the present vantage point, it appears that Charkaoui I initiated a cycle of legal developments that was beneficial to constitutionalism and ultimately to some of the detainees. (5) These jurisprudential developments, discussed below, highlight the positive contribution made by the procedural rulings in Charkaoui I.

In this article I examine the relationship between process and substance in Charkaoui I in the light of these subsequent jurisprudential developments. I argue that the benefits of the procedural solution on which the Court determined in that decision do not outweigh the costs. My objective is to provide a fuller accounting of the costs of the Court's decision in Charkaoui I to opt for an exclusively procedural solution to rights infringements.

My analysis of the relationship between process and substance in Charkaoui I is informed by United States commentary on litigation on alleged enemy combatants in the "war on terror", in particular an article by Jenny Martinez. (6) In response to the question "why is it that the litigation concerning the alleged enemy combatants at Guantanamo and elsewhere has been going on for more than six years and almost nothing seems to have been decided?", Martinez turned to the way in which the "war on terror" litigation in the United States had been "fixated on process". (7) Speaking to the implications of a pattern of procedural rulings in the United States counterterrorism context, she stated:

   [f]irst, by delaying the ultimate resolution of rights claims, it
   has allowed serious violations of human rights to continue for
   years. Second, this approach has foreclosed many rights based
   challenges without considering the merits of those challenges. (8)

The first of Martinez's points is serious, but it is the more obvious, and I want to focus on the second issue she raises.

In Part I, I return to Charkaoui I, highlighting the Court's lack of decision on the substantive rights challenges before it. In Part II, I examine subsequent jurisprudential developments, which show that Charkaoui I has served as the basis for a steady ratcheting up of the procedural protections afforded to those certified under the security certificate regime. Putting Parts I and II together, I characterize Charkaoui I as simultaneously an evasive decision on the substantive rights challenges, and a solid contribution in relation to the procedural rights of those concerned. In Part III I provide an accounting of the costs of the procedural solution adopted in Charkaoui I.

It may lend clarity to my argument to state my underlying position on the substance at the outset. The central concern of the article is with the need for full and transparent engagement with rights infringements arising from the use of highly coercive powers. …

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