A Bismarckian Moment: Charkaoui and Bill C-3

Abstract

Bill C-3, an effort to remedy the core defects of the prior Canadian immigration security certificate regime, cobbles together a potentially half-hearted “special advocate” regime and converts immigration law into a de facto system of indefinite limits on liberty for foreigners. The new system will generate an inevitable series of new constitutional challenges, some of which may succeed at the Supreme Court unless the deficiencies of bill C-3 are cured by careful innovation at the Federal Court level. The article that follows explores these contentions. Part II of this article provides a brief overview of the immigration security certificate regime and the core Charkaoui holding on the question of fair hearings. Part III canvasses the various models of “special counsel” the Supreme Court suggested might satisfy constitutional requirements under section 1 of the Charter. Part IV examines the policy and political environment in which bill C-3 was then developed, the nature of bill C-3’s response to the core findings of the Charkaoui decision and the law-making process in Parliament. Part V then turns to other features of bill C-3, noting both changes that will likely prove important and other areas that will likely create new controversies, including the question of indefinite detention. The article concludes that bill C-3 represents an unsatisfactory waypoint in – rather than an ultimate culmination of – protracted constitutional debates over security certificates.

Keywords: Canada, immigration law, national security, terrorism, security certificates, special advocates