Discriminating Against Non-Citizens Under the Charter: Charkaoui and Section 15
Bibliographic record
Abstract
The Canadian security certificate regime has proved dysfunctional when assessed against its ostensible statutory purpose of facilitating the removal of foreign terrorist suspects. The regime has resulted in indefinite detention or constraint, not removal. The article considers how the Canadian Supreme Court [the Court] in Charkaoui (2007) gave legal sanction to the indefinite detention of non-citizens under the security certificate regime, and the implication of this for the view that section 15 of the Charter marked a departure from the days of status-based discrimination against non-citizens under a division of powers constitution. It is argued that the Court was only able to characterize the security certificate regime as “immigration” detention by relying on the hypothetical possibility of deportation to torture and treating a review process as a sufficient answer to indefinite detention. The features of two competing judicial responses to the prospect of the indefinite detention of non-citizens subject to a removal order are considered. These two models of indefinite detention are developed as critical tools in the analysis of the case law. It is argued that both of these judicial responses are in play in both legal systems containing a bill of rights, and those that retain a division of powers constitution without one. The argument is developed with reference to a comparison of the Australian High Court decisions in Chu Kheng Lim and Al-Kateb in relation to a division of powers constitution, and in relation to Charkaoui and Belmarsh (A v. Secretary of State for the Home Department) in relation to systems containing a bill of rights. What is determinative of the legal result is the judicial understanding of the relationship between equality of treatment (the equal application of general norms) on the one hand, and a non-citizen’s vulnerability to removal on the other.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.007 | 0.014 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.001 | 0.001 |
| Science and technology studies | 0.020 | 0.020 |
| Scholarly communication | 0.013 | 0.003 |
| Open science | 0.002 | 0.003 |
| Research integrity | 0.008 | 0.010 |
| Insufficient payload (model declined to judge) | 0.003 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".