Process and Substance: Charkaoui I in the Light of Subsequent Development (Canada‪)‬

INTRODUCTION The Canadian security certificate regime found in the Immigration and Refugee Protection Act 2001 (1) provides for the removal of non-citizens on security grounds and detention pending removal. In February 2007, by way of a unanimous judgment in Charkaoui I, (2) the Supreme Court of Canada upheld the regime, subject to changes to its procedures mandated by the Canadian Charter of Rights and Freedoms. (3) The Court addressed the procedures for the review of certification and detention, leaving the legality of the indefinite detention of non-citizens and deportation to torture to be resolved on a case by case basis. The Court's reasoning in Charkaoui I has been criticized, by myself and others, on the grounds that it used procedure to avoid the substantive issues of primary concern to the appellants. (4)