An Immigrant, Big Brother and the Three Judges

Second open letter by Adil Charkaoui, 20 December 2004

This is neither a Kafka novel nor a mediocre tale unfolding in a banana republic, but quite simply the state of human rights in the very best country in the world.

The judgement on the constitutionality of security certificates, made public on 10 December 2004, international human rights day, is a revealing illustration of post-September 11th Canada.

In this decision, decried by all human rights organisations and by an impressive number of Canadian jurists (more than 60 coast to coast), the three Federal Court of Appeal judges stated that security certificates – a measure of the Immigration Law in which the presumption of innocence does not exist, part or all of the evidence is withheld, hearsay is accepted, counter-examination of witnesses refused, the right of appeal denied, and closed sessions between judges and attornies are ready currency – are “an exceptional albeit permissible derogation.” 1

What was surprising was less the decision itself – the Federal Court of Appeal is known for its conservatism – but the symbolism of the day chosen to render the decision, as well as the somewhat disengenuous restriction of the legal question to a dilemma between the rights of an immigrant and those of the citizenry and their representatives; between the “right to survival” of the community as a whole and “a blind absolutism of … individual rights”; between “liberty with order and anarchy without either”. 1

Formulated in this manner, the balance of justice – which has never been so blind – inevitably tilts in favour of the greater number and their representatives, towards sacro-sanct National Security. However, in the argument presented to the Federal Court of Appeal, the central point of the defense was that “the right to have rights defined by a court is not tied to the context of immigration or immigration status as such.

This fundamental right relies, above all, on the recognition, in international as well as domestic law, of all persons to have their rights and responsibilities defined by an independent tribunal on the merit”.2

In denying a Permanent Resident, whose parents and children are Canadian citizens and who has lived in the country for ten years, the right to be judged by the same standards of justice as other inhabitants of the country, the Federal Court of Appeal embraces this formula of George Orwell in Animal Farm, “all the animals are equal, but certain are more equal than others.”

1 Extract from the Federal Court of Appeal decision.
2 Extract from the legal memo.