Charkaoui: Resisting Categorical Distinctions that Erode Individual Rights

Last Thursday the Supreme Court of Canada handed down its ruling in Charkaoui v. Canada (Citizenship and Immigration), 2008 SCC 38. The ruling has significant implications for the Canadian security certificate regime, and for the practices of the Canadian Security Intelligence Service (“CSIS”). Before discussing these implications, a brief overview of the case is in order:

A security certificate was signed against Adil Charkaoui on May 9, 2003. The state alleges that Charkaoui, a Moroccan citizen, has ties to terrorist groups. He was arrested and detained pending deportation on May 21 2003, and remained in detention until he was ordered released – still subject to a certificate and under strict bail conditions – in 2005. The latest ruling deals with the submission of new information by the state during an ongoing security certificate proceeding, and with the rules governing the retention of records created by CSIS. In a January 2005 ex parte and in camera hearing, counsel for the ministers presented the Federal Court judge reviewing Charkaoui’s case with new information in the form of a summary of two interviews conducted by CSIS officers with Charkaoui in 2002. The judge provided a summary of this summary (!) to Charkaoui and granted him a postponement in order to allow him to review the new material. Charkaoui filed a motion to have the material excluded. He also requested the full CSIS interview notes, whereupon it was revealed that the interviewing agents, pursuant to CSIS internal policy OPS-217, had systematically destroyed their original notes once they had written their reports. Alleging a violation of procedural fairness, Charkaoui filed a motion for a stay of proceedings, and a quashing of his certificate. Both the Federal Court and the Court of Appeal dismissed his application. The Supreme Court ruled that the Federal Court can receive new information at any point in a security certificate proceeding. However, it also ruled that CSIS’s OPS-217 policy rests on an erroneous interpretation of s. 12 of the CSIS Act, resulting, in this case, in a breach of CSIS’s duty to retain and disclose information, potentially invoking s.7 of the Charter. Despite this, the Court also found that the initial postponement of Charkaoui’s detention review was an appropriate remedy for the violation, and on that basis dismissed Charkaoui’s application for a stay in proceedings.

Policing and / or Intelligence? Administrative and / or Criminal Law?

Security certificates sit at the intersection of a variety of processes, institutions, and areas of law: national and transnational security, administrative and criminal legal procedure, immigration detention and corrections, and security intelligence and the policing of citizenship. The certificate regime allows for the exercise of sweeping state power over non-citizen certificate subjects, who enjoy considerably diminished rights relative to individuals prosecuted through the criminal justice system. Indeed, the state has consistently defended the mechanism by noting that security certificates are components of the Immigration and Refugee Protection Act (“IRPA”), and not the Criminal Code, and that the procedural protections associated with the latter are not applicable to the former. In the latest Charkaoui case (not to be confused with the 2007 Charkaoui ruling) the state argued that CSIS is not a police agency, is not responsible for laying charges, and therefore is not bound by the same obligations applicable to a police force when it comes to dealing with evidence. The Court rejected the application of such categorical distinctions to security certificates, explicitly acknowledging the hybrid nature of the regime. Two aspects of the judgment emphasize this.

Echoing a line of thought that has become increasingly prevalent in the criminological literature, the Court noted that “it must be acknowledged that the activities of the RCMP and those of CSIS have in some respects been converging as they, and the country, have become increasingly concerned about domestic and international terrorism” (para. 20). In particular, distinctions based on an understanding of policing as reactive and security intelligence as preventive and anticipatory are rightly seen as being outdated; we can observe the expansion of intelligence-led policing practices and the ongoing shift from post-crime to pre-crime societies (Zedner 2007) concerned with the forestalling of risks. At the same time, the products of intelligence services are increasingly finding their way into the courtroom, as exemplified by security certificates. This blurring, intersection, and / or convergence of policing and intelligence functions can have significant consequences for individuals subject to security certificates. Accordingly, the Court found that – despite the functional and technical differences between CSIS and the RCMP – procedural fairness and the guarantees of s. 7 of the Charter demand that CSIS be held to standards of information retention and disclosure commensurate with those of a police force. Specifically, the Court held that “as a result of s. 12 of the CSIS Act, and for practical reasons, CSIS officers must retain their operational notes when conducting investigations that are not of a general nature” (para. 27).

Security certificates are a textbook (though longstanding) example of what Richard Ericson (Richard V. Ericson, Crime in an Insecure World, (Cambridge: Polity, 2007)) refers to as criminalization through counter-law, whereby “[n]ew laws are enacted and new uses of existing law are invented to erode or eliminate traditional principles, standards, and procedures of criminal law that get in the way of preempting imagined sources of harm” (at p. 24). Counter-law, he argues, “involves efforts to counter the traditional distinctions between the different legal forms of criminal, civil, and administrative law” (at p. 25). The net results of this criminalization by other means – for example, through security certificates under the IRPA – are no less severe than those associated with the traditional criminal justice system, but states maintain the position that the technical differences between the forms of law allow for different frameworks of procedural justice.

What the Charkaoui decision and its 2007 predecessor effectively do is reduce the scope of the counter-legal sleight of hand that underpins the security certificate regime. In recognizing an enhanced duty on the part of CSIS to retain and disclose information, the Court rejected the argument that CSIS’s activities are governed purely by administrative law. The Supreme Court stated that, because it involves a decision by a Federal Court judge, it is “simplistic to characterize the proceeding to determine whether a security certificate is reasonable as a purely administrative procedure” (para. 32). Additionally, the Court noted that “[w]hether or not the constitutional guarantees of s. 7 of the Canadian Charter of Rights and Freedoms apply does not turn on a formal distinction between the different areas of law, but depends instead on the severity of the consequences of the state’s actions for the individual’s fundamental interests of liberty and security and, in some cases, the right to life” (para. 4).

Conclusion

It is too early to determine exactly what effects this ruling will have on the day-to-day practices of CSIS officers involved in targeted investigations. Certainly, it will increase the scope of paper trails. Judges (and presumably special advocates) will now have the right to consult original field notes and recordings, and not just prepared summaries. From a rights perspective, this is heartening. It removes the ability of CSIS to appear before the court as the inscrutable sole author and editor of its reports; for the first time, the Service has been ordered to systematically “show its work” when the rights of specific individuals or groups are at stake. In essence, it means that the functional convergence of intelligence and policing must be reflected at the level of obligations and duties, as opposed to simply capacities. At the same time, it places an additional burden on Federal Court judges, who will have to review, consider, filter, and summarize a larger pool of information in security certificate cases.

Taken in context, the Charkaoui ruling represents the latest step in a gradual process that has chipped away at the exceptionality or counter-legality of the security certificate regime at the procedural level, while leaving the underlying mechanism intact. Over the last year, we have seen the introduction of special advocates (through Bill C-3, in response to the 2007 Charkaoui decision), and now the incorporation of disclosure duties associated with criminal law. Since April 2006, certificate detainees have been held at a special facility on the grounds of a federal penitentiary. As the differences between security certificates and criminal proceedings become increasingly indistinct, and given the unlikelihood that any of the five current certificate cases will end with deportation in the foreseeable future, the regime itself becomes harder and harder to justify.