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

The appellants in this case challenged Sections 77 to 85 of the Immigration and Refugee Protection Act, which authorized the federal government to detain a permanent resident or refugee for national security reasons. Although detainees could challenge these so called “security certificates” in Federal Court, they were not entitled to review the evidence against them. Furthermore, once a Federal Court judge determined that the certificate was “reasonable” (on the basis of evidence that the accused could not see), there was no avenue of appeal or judicial review.

The appellants alleged that the security certificate process violated their right to liberty under Section 7 of the Charter of Rights and Freedoms, and that the policy of detention without charge constituted arbitrary detention, contrary to the principle of habeas corpus protected by Sections 9 and 10 of the Charter. The appellants also claimed that the extended periods of detention possible under security certificates violated the right to be free from cruel and unusual punishment (Charter, s. 12), that the difference in treatment of citizens and non-citizens infringed equality rights (Charter, s. 15), and that the lack of an appeal process was contrary to the rule of law.

The appellants sought remedy under Section 24(1) of the Charter, which states that “anyone whose rights or freedoms … have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

The Court ultimately ruled that the appellants’ Charter rights had been violated and that Sections 33 and 77 to 85 of the Immigration and Refugee Protection Act were unconstitutional and therefore of no force or effect.

The Court agreed with the appellants that detaining individuals without allowing them (or their lawyers) to review the evidence against them was an infringement of the right to liberty protected by Section 7 of the Charter. The infringement was not a “reasonable limit” under Section 1 of the Charter because it was not a “minimal impairment” of the right in question. “Less intrusive alternatives developed in Canada and abroad, notably the use of special counsel to act on behalf of the named persons, illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA,” the Court explained in its ruling.

The Court also ruled that forcing foreign nationals to wait 120 days to have a security certificate reviewed amounts to arbitrary detention and violates the principle of habeas corpus, thereby infringing Sections 9 and 10(c) of the Charter, respectively.

The Court rejected the appellants’ other arguments, ruling that an extended period of detention does not necessarily constitute “cruel and unusual punishment,” and that the difference in treatment between citizens and non-citizens did not violate equality rights, given that “the right to enter, remain in and leave Canada” is explicitly reserved for citizens under Section 6 of the Charter. Furthermore, the Court said that there is no constitutional right to an appeal and that the lack of an appeal process for security certificates was not necessarily contrary to the rule of law.

The Supreme Court of Canada’s decision to invalidate the objectionable sections of the Immigration and Refugee Protection Act was a reversal of previous rulings by the Federal Court of Canada and Federal Court of Appeal, which upheld the legislation as constitutional.

The ruling, penned by Chief Justice Beverley McLachlin, was unanimous. No dissenting opinions were filed.

Decided by the Supreme Court of Canada on February 23, 2007.
Click here for the full text of the decision.

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Filed under Section 15: Equality Rights, Section 7: Life, Liberty, & Security of the Person, Section 9: Arbitrary Detention

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