Charkaoui and Bill C-3: Some Implications for Anti-Terrorism Policy and Dialogue between Courts and Legislature

Abstract

The first part of the paper examines Charkaoui with particular attention to the Court’s survey of less rights-invasive alternatives, including British special advocates and the Arar Commission’s use of security-cleared lawyers. The Court’s holding with respect to indeterminate detention and its relation to the possibility of deportation to torture is also examined.The second part of the paper examines the legislative response to Charkaoui with attention to the role of special advocates and the role of Federal Court judges in defining their precise role. The issue of whether Parliament simply obeyed the Court’s decision or expanded the policy debate is examined. In the third part, Bill C-3 is assessed as an example of truncated dialogue with respect to both security certificates and the treatment of secret information. The conclusion assesses the lessons of Charkaoui and Bill C-3 both for the development of fair and effective anti-terrorism policy and for dialogue between courts and legislatures about the treatment of the rights of the unpopular. It suggests that many issues are left to be resolved with respect to both the sustainability of security certificates and the proper approach to secret information in security certificate proceedings and other legal proceedings.

Keywords: Arar Commission, Charkaoui, immigration law