Process and Substance: Charkaoui I in the Light of Subsequent Developments
University of New Brunswick Law Journal, Vol. 62, No. 13, May 2011
Victoria University of Wellington Legal Research Paper No. 26/2012
24 Pages Posted: 29 Feb 2012 Last revised: 6 Jun 2012
Date Written: May 1, 2011
Abstract
The relationship between process and substance in the Canadian Supreme Court’s 2007 Charkaoui decision, on the legality of the indefinite detention of foreign terrorist suspects under the Canadian Charter, is examined in the light of subsequent jurisprudential developments. Procedural modifications to the relevant detention regime, instigated by Charkaoui I had, by the end of 2009, resulted in cases which saw the release of two of the five men held under the regime (decisions of the Canadian Federal Court in the Charkaoui and Almrei litigation).
I argue that the benefits of the procedural solution arrived at by the Court in Charkaoui I do not outweigh the costs. My objective is to provide a fuller accounting of the costs of the Court’s decision in Charkaoui I to opt for an exclusively procedural solution to rights infringements. I characterise the procedural solution determined on by the Court in Charkaoui I as a form of constitutional minimalism, as associated with Sunstein. Amongst other criticisms of the Court’s "fixation with process", I suggest that Charkaoui I raises doubts as to the extent to which constitutional minimalism can, in practice, deliver on one of the desiderata it prides itself on, namely leaving the issues “open”.
Keywords: counter-terrorism, immigration, detention of non-citizens, indefinite detention, preventive detention, deportation to torture, foreign terrorist suspects, rights of non-citizens, the Canadian Charter, security certificates, constitutional minimalism, Sunstein, Martinez, Charkaoui, Almrei
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