The Supreme Court of Canada leaves us in a quandary - Charkaoui v. Canada

The issues the Supreme Court had to decide in Charkaoui and the two appeals heard with it were pretty simple.

Is it just that foreigners living in Canada can be arrested without being given the full reasons for their arrest? Should they have to wait months or more before they can ask a judge to release them? If the answer to either of these questions is no, can the breach of the foreigners' rights be justified for security reasons? The issues have been widely canvassed in the media and no consensus has emerged. The Supreme Court reached a perfect consensus unanimously saying: No. No. No. But it did not keep it simple

Adil Charkaoui, a permanent resident, what used to be called a landed immigrant, and Hassan Almrei and Mohamed Harkat, refugees, had been arrested, in 2003, 2001 and 2002 respectively, under provisions of the Immigration and Refugee Protection Act that allow the Minister of Immigration or the Minister of Public Safety to issue a certificate declaring someone not a citizen of Canada "inadmissible". The certificate must be reviewed by a judge but the judge may determine that the certificate is reasonable on the basis of information or evidence heard in the absence of its subject or his lawyer, if persuaded by the minister that its disclosure would injure national security or anyone's safety.

The certificate has the immediate effect of an arrest warrant and after it is passed by a judge becomes an order for removal of the subject from the country. A review of the detention of a permanent resident must be commenced within 48 hours of an arrest. Others such as the refugees Harkat and Almrei must wait 120 days before they can apply to have their detention reviewed.

Charkaoui has been on conditional release since last year and Harkat since 2005. Almrei is still locked up.

The Court first considered Section 7 of the Charter:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

It was not difficult to decide that the appellants had been deprived of their liberty. They had been locked up. That was enough to be getting on with. But Chief Justice McLachlin writing for the whole Court made heavy going of Section 7 by also considering the vague, catch all phrase "security of the person". Being called a terrorist may not be nice if you are innocent and the risk of return to the somewhat Hobbesian lands whence Charkaoui and the others came may be worse but the first is curable and the second hypothetical. The unnecessary disquisition on "security of the person" signals the Court's readiness to entertain strained and imaginative arguments in other cases.
Under Section 7 of the Charter you can be locked up "in accordance with the principles of fundamental justice". The court considered whether national security could affect the requirements of "fundamental justice". But not for long. The court has generally shown itself keen to find breaches of the Charter. Once it has done that it can consider whether the breach is a "reasonable limit" under Section 1, looking to whatever it pleases as "evidence" and drawing a "reasonable limit" wherever it sees fit.

Having decided that security concerns could not excuse the procedures under the Immigration and Refugee Protection Act, McLachlin then blathered on about "fundamental justice" for twenty pages, worrying for seven pages whether the reviewing judges can be perceived as independent and impartial before roundly concluding that they can, yanking in a completely irrelevant comment on the Arar affair and allowing that, after all, "societal concerns [including national security] formed part of the relevant context for determining the scope of the applicable principles of fundamental justice", before finally reaching the predictable conclusion that there was a breach of Section 7.

Consideration then of whether the breach could be justified came down to a decision that the breach was not a "minimal impairment" of Section 7 rights, that the government could do better, by providing for a special counsel who would have security clearance and see all the evidence but not disclose it to the detainee or take instructions from him. Such counsel used to be used by Canada's Security Intelligence Review Committee and are used in the United Kingdom in some immigration appeals. Perhaps they will be helpful. But it is not something that follows necessarily from the language of the Charter.

What follows necessarily from the language of the Charter is that the Court is free to second guess Parliament and impose its will on it. That is what law professors with solemn facetiousness call a "dialogue between the Court and Parliament". It is no fun having a power if you do not use it and use it the Supreme Court of Canada will.

The court briskly considered Section 9 and subsection 10(c) of the Charter:

9. Everyone has the right not to be arbitrarily detained or imprisoned.
10. Everyone has the right on arrest or detention
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

holding that security was a "rational foundation" for detention but that the ban on a review of the detention for foreign nationals such as Harkat and Almrei breached Section 9 and subsection 10(c) together. They like Charkaoui must have continuing opportunities for review of their detention and any conditions of release.

Finally the court considered Section 12 of the Charter:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or
punishment.

which the court eyes as a blanket authority to let the Court decide how to make the punishment fit the crime. After ten pages of hemming and hahing the court decided that Almrei's indefinite detention was not "cruel and unusual treatment" while saying:

...this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter...

just to keep us on our toes.

Reactions to the decision were far too excited. The judgment will not change much. Almrei will remain in detention indefinitely. Charkaoui and Harkat will remain on conditional release indefinitely. Security certificates can still be issued and foreigners can still be arrested without knowing the grounds for their arrest. Parliament will try to amend the Immigration and Refugee Protection Act to satisfy the Court. There will be more litigation and controversy. Whatever Parliament does will be challenged and it will be years before we know whether the Court is satisfied or whether it may change its mind in one direction or another.

The excited reaction was fuelled by the Court's pompous language and elaborate treatment of simple issues. McLachlin's reasons are full of invocations of liberty, justice, equality and so on that contribute nothing to the decision but signal the solemnity, importance and almost sacredness of the Court. Issues are dealt with briefly or at length with no rhyme or reason and whether or not they are necessary to deciding the appeals. Whether issues are dealt with at length or briefly, whether they are necessary to the decision or not, the reasons are studiously vague and qualified. Context, used thirty-six times, is all. The purpose of reasons for judgment is to clarify the law. If the Court were doing its work properly its reasons would bring clarity to the vague language of the Charter so that governments and people would know what to make of it. But that would limit the Court's freedom to do as it pleases.

The Immigration and Refugee Protection Act was passed in 2001 when we had already had almost 20 years experience with the Charter. The drafters and Parliament must have supposed that it would withstand Charter challenges. Several Federal Court judges dismissed Charter challenges. But it should have surprised no one that the Supreme Court, unanimously, had at the Immigration and Refugee Protection Act. The Charter licences it to do what it likes. We cannot know what it may like until we ask it. And its power would atrophy if not used. So it was predictable that the Court would do something, but predictable also that it would do nothing radical. The judges are not a bunch of radicals, whatever Stephen Harper may think. They are just nine fairly ordinary lawyers enjoying extraordinary eminence and power.

Most laws are effective because people know them and follow them. Occasionally the courts are drawn in to enforce them on the recalcitrant or sort out confusions but, while the authority of the courts is fundamental to the authority of the law, the courts remain largely in the background. The Charter is different. Its effect and reach result precisely from our not knowing what the courts may make of it, the readiness of people to find whatever they like in it, and the readiness of the Supreme Court to give it to them.

There is unusually little in the reasons on the facts and the proceedings that brought the appeals before the Court. For a full understanding of the appeals it is necessary to refer to some of the 46 reported Federal Court decisions running to about a thousand pages of reasons that the three appellants have generated.

The Court heard 15 intervenors; Amnesty International, Canadian Arab Federation etc., etc.. The practice of welcoming intervenors presents the Court as a public forum where all have their say. It is a false picture. In the end only the Court has its say and the intervenors did not represent all opinions but basically lined up with the appellants. The most impertinent intervenor was "University of Toronto, Faculty of Law — International Human Rights Clinic and Human Rights Watch", a clique of specially unctuous law professors, condescending to offer their learning to the Court knowing that they had already infested it with their annointed students serving as judges' clerks.

The underlying problem in all these cases is that the purpose of the impugned provisions of the Immigration and Refugee Protection Act is simply to get dangerous people out of the country but Charkaoui, Almrei and Harkat can all argue that they risk torture if sent back where they came from. The Minister can issue an opinion that the danger to the security of Canada justifies removal to a country where there is a risk of torture but in the case of Almrei such opinions have repeatedly been quashed by the Federal Court. We are left in a quandary. The Supreme Court has no better idea how to get out of it than the government does.