Recapping Recent CLAIHR Initiatives
Counsel for CLAIHR prepared motions to intervene in two high-profile appeals to the Supreme Court of Canada, Charkaoui and Almrei. Both cases pertained to the constitutionality and proper interpretation of the security certificate provisions of the Immigration and Refugee Protection Act (IRPA). These provisions create a regime whereby a person may be detained and deported from Canada on national security grounds even in cases where that person faces a serious risk of torture if returned to his or her home country. CLAIHR’s counsel for these intervention applications was Gib van Ert of Hunter Voith in Vancouver. Hunter Voith is a well-known litigation practice specializing in public law cases. Gib is a CLAIHR member and frequent commentator on the application of international law in Canadian legal proceedings.
This appeal concerns Adil Charkaoui, a Moroccan national who was held in a Montreal jail for 21 months under a security certificate on claims that he was a terrorist with links to the al-Qaeda network. CLAIHR sought leave to intervene in the appeal to explain the relevance of international human rights law to the constitutional and interpretive issues presented by this appeal. In particular, CLAIHR sought to argue that the IRPA must be seen in the light of Canada’s international legal obligation not to return persons to torture (refoulement), and that the Supreme Court of Canada’s consideration of this issue in the Suresh case is inconsistent with that obligation.
CLAIHR also sought leave to intervene in a companion appeal to Charkaoui, the Almrei case. Hassan Almrei, a Syrian refugee, was detained on a government security certificate and imprisoned for nearly four years. He was accused of participating in an international forgery operation with connections to al-Qaida. Almrei brought constitutional challenges to two provisions of the IRPA on the basis of their infringement of s. 12 of the Canadian Charter of Rights and Freedoms, which protects against “cruel and unusual treatment or punishment”. CLAIHR sought leave to intervene to address the relationship of Charter s. 12 to Canada’s obligations under international human rights law to prevent cruel, inhuman or degrading treatment or punishment.
CLAIHR’s interest in the above-noted appeals arises from its ongoing concern to protect and promote internationally recognized human rights. In particular, the IRPA provisions at issue engage the right, expressed in article 3(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, not to be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Other recognized or developing norms of international human rights law may also be engaged by the IRPA provisions. As a Canadian charity devoted to the protection and promotion of international human rights, CLAIHR feels especially well-placed to advance arguments on the relevance and application of international human rights law to constitutional and statutory interpretation in Canada. CLAIHR has played this role once before as intervener in the 2004 Bouzari v. Islamic Republic of Iran appeal before the Court of Appeal for Ontario.
Unfortunately, CLAIHR’s applications for leave to intervene in the above-noted appeals were dismissed by the Supreme Court of Canada in May 2006. Notably, CLAIHR’s intervention applications in both cases were opposed by the Government of Canada. CLAIHR remains extremely concerned with the international human rights issues that have arisen from both cases and intends to monitor them closely.