Sunday, February 25, 2007

Charkaoui -- Thumbs Up

Since I started the Supreme Court of Canada case comment feature, the Court has done distressingly little in the way of far-reaching controversial "judicial activism." Between May and December 2006, there didn't seem to be any headline shakers, no Morgentalers or Delgamuukws or Chaoullis. True, there were some fundamental shifts in mining hedging tax transaction treatment, pension windup and airline insolvency. But somehow the Pithlord's brilliant thoughts on these exciting developments failed to register an increased hit count. I suggest you speak to the Sitemeter technical staff about it. Anyhoo, it makes a nice change to be blogging about a case that really is firing up the blood pressure on talk radio.

On Friday, the Supreme Court of Canada allowed the appeals of three men -- Adil Charakaoui, Hassan Almrei, and Mohamed Harkat -- all of whom are believed by the federal government to be connected to jihadist terrorism, and none of whom is a Canadian citizen -- challenging sections of the Federal Immigration and Refugee Protection Act relating to the issuance of "certificates of inadmissibility" by the Ministers of Citizenship/Immigration and of Public Safety. A certificate of inadmissibility results in immediate detention and (ultimately) in deportation.

The decision was a good one on a number of grounds. It struck down the right parts of the law: the ability of the judge to rely on information never disclosed to the subject of the certificate to uphold the detention/deportation without further safeguards and the lengthy period of unreviewed detention for foreign nationals without permanent residence status. It also rejected a number of bad arguments -- that difference in treatment of deportation of citizens and non-citizens is contrary to equlaity guarantees, or that the possibility of long detention while fighting deportation is "cruel and unusual punishment." And the remedy of suspended declaration of invalidity (the law dies a year from now if Parliament doesn't fix it), while overused in general, was the right one here.

To prove a case under section 7, our alleged terrorists have to show two things: first, that their liberty or security of the person is at stake and, second, that they have been treated contrary to "the principles of fundamental justice." If they do this, then the government can still get the law upheld by proving it is a reasonable limit on rights in a free and democratic society. This third move is analyzed via the Oakes test, target of some gentle mockery here, but, in essence, about whether there is a Paretian alternative that meets the government's needs just as well, but does not damage the right so much.

The first part -- whether Messrs. Charakaoui, Almrei and Harkat's liberty and security of the person was on the table -- is a pretty easy. A controversial line of cases -- Singh, Burns & Rafay and Suresh -- tells us that Canada violates the security of a person by not acting to keep them from being tortured or executed (say by deportation of a non-Canadian). I find this line troubling, but even if we reject it, in this case Canada is itself detaining and labelling a person a terrorist. I wouldn't consider pure executive discretion to decide a foreign national should leave the country without cause unconstitutional, but matters are different when we jail somebody first and send them home with "al Qaeda" stamped on their forehead.

"Principles of fundamental justice" means, at least, due process. In fact, it ought to just be about due process, but that's an argument for another day. No one doubts that one part of due process is knowing the case against you. Ideally, everyone would have a right to all the information in the possession of the state in relation to the case. Even in ordinary criminal trials, this ideal has to be compromised somewhat. If I give the police some information about the Hell's Angels, the Crown isn't obliged to pass my identity or information on, unless they want to use my testimony to convict. In ordinary criminal law, the Crown can't keep the evidence it is going to convict with a secret from the accused. But the inadmissibility certificate system does let the government both keep sensitive stuff from the subject of the certificate AND use that stuff to justify the certificate. It's hard to see how you can have a fair trial in those circumstances.

Of course, the problem is that much of what governments know about really bad guys they are presumably not at liberty to discuss openly.

The Court made two moves here, both of which I approve of. The first is to kick the discussion of the security rationale down to the section 1 analysis. Convicting on evidence the accused doesn't even get to hear is a sufficiently big departure from English-speaking traditions that it should be up to the government to show the necessity. The second move is to suggest other options that meet the government's stated concern -- in this case, the use of special counsel who can be expected to keep the stuff secret. (Note that this is the solution the court rejected in the solicitor-client privilege case last year.)

The Pithlord bitches about judicial review from time-to-time, but this is it at its best. The Court encouraged a more moderate response to a serious problem, one that has the potential to reduce miscarriages of justice.

Case Comment of Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9

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