Volume 26 Refuge Number 1 Whither International Law? Security Certificates, the Supreme Court, and the Rights of Non-Citizens in Canada Graham Hudson Abstract contribuant à une volonté accrue chez les juges de recon- In this paper, the author examines the role of international naître les droits de non citoyens visés par les certificats et law on the development of Canada’s security certificate d’envisager de meilleurs moyens de concilier la sécurité regime . On the one hand, international law has had a nationale et les droits de la personne . D’autre part, l’at- perceptible impact on judicial reasoning, contributing to titude de la magistrature à l’égard du droit international judges’ increased willingness to recognize the rights of non- comme source non contraignante d’éclairement apparentée citizens named in certificates and to envision better ways à la jurisprudence étrangère est venue renforcer la dispa- of balancing national security and human rights . On the rité entre la protection conférée par la Charte canadienne other hand, the judiciary’s attitudes towards international des droits et libertés et celle offerte par le droit humain law as non-binding sources of insight akin to foreign law international . Avec scepticisme, on pourrait soutenir que has reinforced disparities in levels of rights afforded by l’utilisation sélective, axée sur les résultats que fait la the Canadian Charter of Rights and Freedoms and those magistrature du droit international et de la jurisprudence afforded by international human rights . Viewed skeptic- étrangère camoufle sous un vernis de légitimité un régime ally, one might argue that the judiciary’s selective result- de certificat par ailleurs intact et discriminatoire . Situant oriented use of international law and foreign law helped it les décisions de la cour dans l’affaire Charkaoui dans un spread a veneer of legality over an otherwise unaltered and contexte international, l’auteur suggère une autre lecture : discriminatory certificate regime . Reviewing Charkaoui l’utilisation qu’a fait la magistrature du droit internatio- I and II in international context, the author suggests an nal et étranger, bien que très ambiguë et ambivalente, était alternative account . He suggests that the judiciary’s use of régie par des principes et a progressivement rapprocher les international law and foreign law, although highly ambigu- droits des individus sous la Charte de leurs droits humains ous and ambivalent, both was principled and has progres- internationaux . Bien que l’équilibre actuel entre la sécu- sively brought named persons’ Charter rights more closely rité nationale et les droits de l’homme soit imparfait, la in step with their international human rights . Although manière dont certains aspects de notre régime des certifi- the current balance between national security and human cats ont été améliorés suggère que le droit international est rights is imperfect, the way in which aspects of Canada’s une ressource précieuse pour la protection des droits de non certificate regime have been improved suggests that inter- citoyens au Canada . national law is a valuable resource for protecting the rights of non-citizens in Canada . nyone interested in whether international law improves respect for non-citizens’ rights in Canada Résumé would do well to survey the post-9/11 development Aof Canada’s security certificate regime. First established in Dans cet article, l’auteur examine le rôle du droit inter- 1976, security certificate legislation authorizes the executive national sur le développement du régime canadien de to arrest, detain, and ultimately deport non-citizens who certificats de sécurité . D’une part, le droit international a are believed on reasonable grounds to, among other things, eu un impact perceptible sur le raisonnement judiciaire, 172 Refuge26-1.indd 172 8/13/10 9:10:29 PM Whither International Law? pose a threat to Canadian national security. Certificates are choice permitted the government to continue using immi- issued by the Ministers of Public Safety and of Citizenship, gration law provisions to perform quasi-criminal law func- Immigration, and Multiculturalism (the ministers) without tions. On the other hand, when international law was used, any prior independent review, while significant portions of it was conflated with foreign law, as though the obligatory proceedings concerning the reasonableness of certificates qualities of the former do not matter. In this case, the failure and conditions of detentions are held in the absence of the to distinguish international law from foreign law facilitated public, persons named in certificates (named persons), and the entrenchment of a special advocate system the Court their counsel. knew fell below international human rights standards.5 In Charkaoui I,1 the Supreme Court (the Court) ruled In suggesting that this system would nonetheless pass that aspects of certificate provision violated the Canadian Canadian constitutional muster, the Court seemed to have Charter of Rights and Freedoms (the Charter), breaking with sent the government a message concerning how the form courts’ traditional reluctance to do so.2 Relying on inter- of certificate provisions could be altered without adversely national law and foreign law, the Court found that extreme affecting their overall function. The message was loud and secrecy and executive discretion unjustifiably infringed clear: the Charter does not provide protections at least as named persons’ right to a fair trial. Although the Court great as those offered by international human rights. based its decision on long-standing Canadian criminal law Adding to the Court’s inconsistent stance towards principles, international law and foreign law supported its international law is its 2008 judgment in Charkaoui II 6. finding that the government could have achieved a more Concerned with issues of disclosure directly relevant to proportionate ways of balancing national security and those raised in Charkaoui I, the Court in this case ruled human rights. In suggesting how to achieve this balance, the government is required to retain and disclose to judges the Court looked to analogous national security legislation and special advocates all information on file relevant to a in the United Kingdom, noting that it had been designed named person. Although the facts of this case concerned, to (although it does not) comply with international human among other things, the human rights dimensions of global rights. It then suggested that adopting this system in Canada intelligence agency co-operation, the Court did not cite would bring certificate provisions into conformity with the international law even once. Yet, by forcing greater levels Charter . of disclosure, the decision helped remedy some of the more Acting on the Court’s advice, Parliament integrated serious defects of the new special advocate system, effect- a version of the UK’s special advocate system into the ively bringing it more closely in step with those international Immigration and Refugee Protection Act3 (IRPA), provid- human rights standards the Court declined to fully enforce ing named persons with limited legal representation during in Charkaoui I . What, if anything, influenced the Court’s secret hearings. In addition to introducing a special advo- choices about whether, how, or why to use international law cate system, Parliament made it easier for named persons in these cases? Did it take seriously its role in giving effect to to procure conditional release pending a decision as to the binding international law? If so, how did this affect its deci- reasonableness of the certificates against them; to appeal sion about the appropriate balance between national secur- decisions about detentions and the reasonableness of certifi- ity and human rights? cates; to apply for protection as refugees or persons in simi- The purpose of this paper is to sketch how international lar situations; and to challenge the admissibility of evidence law has influenced court-led refinements to the security cer- on the grounds that it has been acquired through the use tificate regime. My focus will be directed primarily towards of torture or other cruel, inhuman, or degrading treatment international human rights, although I will also recognize or punishment.4 It would appear that the Court effectively the place and impacts of other fields of international law. used international law to expand the rights to which non- I will argue that, although its reasoning has been highly citizens are entitled. ambiguous and ambivalent, the Supreme Court’s con- However, a closer look suggests that international law has sideration of international law has contributed to marked played a far more ambivalent and ambiguous role. On the improvements in the protection of named persons’ rights. I one hand, the Court in this case curtly ignored powerful will begin by looking at the legislative and the international international legal arguments concerning the discriminatory contexts of certificate provisions. I will then examine how nature of certificate provisions, a confusing choice consid- the Court used international law in Charkaoui I to bring ering its willingness to use international law when forming certificate provisions into conformity with the Charter . its judgment on issues of fairness, disclosure, and adversarial After reviewing the many ways in which the government’s challenge. Far from simply producing mixed messages about legislative response failed to respect