Parliament’s Response to Charkaoui: Bill C-3 and the Special Advocate Regime under IRPA

Authors

David Dunbar
Scott Nesbitt

Abstract

The Supreme Court of Canada’s decision in Charkaoui and Parliament’s subsequent enactment of Bill C-3 demonstrate how the Charter dialogue between the judiciary and legislatures can enhance the protection of constitutional rights and freedoms while preserving the ability of elected officials to pursue legitimate policy objectives.The notion of constitutional dialogue suggests that Charkaoui be read as setting parameters for future legislative action, recognizing not only those aspects of the security certificate scheme where the Court found constitutional deficiencies, but also those where it found the scheme to be constitutionally sound. The Court’s conclusion that the in camera, ex parte hearing process violated the right to a fair hearing obviously constrained the scope of permissible action left open to Parliament. However, it is equally significant that the Court endorsed the general objective of the certificate process and afforded Parliament considerable latitude to remedy the constitutional deficiencies it had identified. Bill C-3 demonstrates the different levels at which the constitutional dialogue between the judiciary and Parliament may take place. In those areas where the Court held that the Charter mandates a specific result, Parliament responded accordingly. Even in some areas where the Court rejected challenges to the previous certificate regime, Parliament addressed some issues that continued to affect the perceived fairness of the process. And, on the central fair hearing issue where the Court indicated that the Charter required greater procedural protections but did not stipulate precisely what more should be done, Parliament adopted the solution it deemed most appropriate: A special advocate regime. Despite criticisms of Bill C-3, it protects the named person’s right to a fair hearing while still ensuring that national security is not compromised, and is likely to pass constitutional scrutiny.

Citation Information

Dunbar, David and Nesbitt, Scott. "Parliament’s Response to Charkaoui: Bill C-3 and the Special Advocate Regime under IRPA." The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference 42. (2008).
DOI: https://doi.org/10.60082/2563-8505.1159
https://digitalcommons.osgoode.yorku.ca/sclr/vol42/iss1/13

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