Today is the tenth anniversary of the Supreme Court of Canada’s [SCC] decision in Charkaoui v. Canada (Citizenship and Immigration).1 This decision centred on the Canadian government’s procedure on issuing security certificates. These certificates are used to identify non-citizens who might be a risk to public safety. The SCC forced the federal government to amend the Immigration and Refugee Protection Act [IRPA] to ensure its constitutionality.2
The legal question that Mr. Charkaoui’s Constitutional challenge presented was how the government should balance its responsibility to protect the safety of its citizens and to remain accountable to constitutional values and democracy.3 The security certificate provisions in the IRPA tried to balance these issues by giving the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness the authority to issue “security certificates” to detain and deport non-citizens deemed to be a danger to public safety. These certificates and the detention based on them were reviewed by a judge, but the evidence on which they were based did not have to be disclosed to the subject of the certificate. This was a major violation of habeas corpus, the idea that someone must be charged with a specific crime to be kept in custody.4 The SCC held that this violated sections 7, 9, and 10(c) of the Charter.5 Most of the violations fell under s. 7, the right to life, liberty, and security of the person.6
Section 7 specifies that life, liberty, and security (usually liberty) can be deprived “in accordance with the principles of fundamental justice”.7 The provisions violated the principle of fundamental justice of fair procedure.8 The individual affected was entitled to a hearing before a judge but the SCC’s concerns with the hearing were twofold. Firstly with the appearance of impartiality of the judge and secondly with the accused’s inability to raise a proper defence. Both issues stem from the secret nature of the incriminating evidence.9
When the judge reviewed the secret evidence, they would have to be alone with the government lawyers. No representative of the accused was allowed to be present.10 This was concerning because the judge may appear to be acting as an agent of the state and that their role in the process was investigative and defense-oriented.11 Canada’s judicial system is adversarial, not inquisitorial, which aims to maintain the impartiality of judges.
One of the SCC’s suggestions was to establish specially cleared legal counsel to represent the person named in the certificate.12 The federal government used this method to bring the legislation into compliance with the Charter. The new provisions direct the Minister of Justice to establish a list of special advocates.13 They have the responsibility to challenge the claim that evidence must be kept secret and to challenge the relevance, reliability, and sufficiency of the information when it is to be kept secret.14
Security certificates recognize that some things must be kept secret in order to safeguard public safety. However, that safety must not come at the expense of the fundamental rights and freedoms guaranteed by the Charter. The special advocates system ensures that people being held or deported based on secret information have someone to represent them throughout the process, just as anyone else accused of a criminal offence is afforded that right.
12007 SCC 9, 1 SCR 350.
2SC 2001, c 27.
3Supra note 1 at para 1.
4Ibid at para 2.
5Canadian Charter of Rights and Freedoms, ss 7, 9, and 10(c), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
6Supra, note 1, at para 3.
7Supra, note 5, at s 7.
8Ibid at para 28.
9Ibid at para 31.
10Ibid at para 35.
11Ibid at para 36.
12Ibid at para 70.
13Supra note 2, s 85(1).
14Ibid s 85.1(2).