A. Precautionary Measures

7. On January 8, 1998, Mr. Suresh was informed that he would be removed to Sri Lanka by January 19, 1998. Given the imminence of his deportation from Canada, Mr. Suresh requested that the IACHR issue precautionary measures aimed at suspending said deportation until such time as it had an opportunity to consider the case. The Commission granted the request and the precautionary measures were issued on January 16, 1998.

B. Proceedings Subsequent to the Admissibility Report

8. By communications dated March 27, 2002, the Inter-American Commission transmitted the admissibility report to the parties and, pursuant to former Article 41 of the Inter-American Commission's Rules of ProcedureFootnote ¹ , placed itself at the disposal of the parties with a view to reaching a friendly settlement. The petitioners accepted the offerFootnote ² , but the State rejected itFootnote ³ . From that date until the adoption of the instant report, the Inter-American Commission solicitedFootnote ⁴ and receivedFootnote ⁵ observations and additional information (on the merits) from the parties.

A. The petitioners

12. According to the petitioners, Mr. Manickavasagam Suresh is a Sri Lankan citizen of Tamil ethnicity, who entered Canada in October 1990 and was subsequently recognized as a refugee by the State. The petitioners further state that, in 1991, Mr. Suresh applied for landed immigrant status.

13. The petitioners claim that Mr. Suresh's application for landed immigrant status was aborted in 1995 when the Solicitor General of Canada and the Minister of Citizenship and Immigration (M.C.I.) certified Mr. Suresh as a danger to national security and accordingly initiated proceedings to deport him to Sri Lanka. In this respect, the petitioners allege that Mr. Suresh was certified under section 40.1 of the Immigration ActFootnote ⁷ , which made Mr. Suresh inadmissible to Canada on security grounds. In accordance with section 40.1 of the Immigration Act, the Solicitor General and the M.C.I. filed the certificate with the Federal Court of Canada on October 17, 1995. As a consequence, the Canadian authorities detained Mr. Suresh on the following day. Mr. Suresh was subsequently released on March 23, 1998 after 29 months in detention.

14. The petitioners claim that the certification was based on the opinion of the CSIS that Mr. Suresh was a member of the LTTE. The petitioners further allege that the CSIS considers the LTTE to be a terrorist organization that has a branch operating in Canada under the auspices of the World Tamil Movement (WTM), for the purposes of fundraising, propaganda, and procurement of material. According to the petitioners, Mr. Suresh was the coordinator for the WTM in Canada. The petitioners allege that at the hearing in Federal Court to consider the reasonableness of the issuance of the certificate, counsel for the Minister conceded that neither Canada nor Sri Lanka had any allegations of criminal misconduct or criminal activity against Mr. Suresh.

15. The petitioners claim that Mr. Suresh's detention was in violation of Articles II, XVIII and XXV of the American Declaration, and more particularly that he:

1. (a) Was detained by Canadian Immigration Authorities under a legislative provision which provides for indefinite, mandatory detention without review;

2. (b) Was detained on the basis of his association with an organization, not on the basis of any alleged unlawful conduct on his part;

3. (c) Had no access to habeas corpus as a non-citizen detained under the Immigration Act, even though it is constitutionally entrenched in section 10 of the Canadian Charter of Rights and Freedoms; and

4. (d) Had no effective remedy to challenge his detention.

16. The petitioners further contend, inter alia, that:

1. (a) Section 40 of the Immigration Act operated without distinction to mandate the detention of all non-citizens, who are not permanent residents and are subject to a security certificate, and allowed for review of the need to detain by a competent authority only after the conclusion of proceedings to determine the reasonableness of the grounds supporting the security certificate and the person is thereby afterward ordered deported and is still not deported after 120 days following the issuance of the detention order;

2. (b) Mr. Suresh's ultimate release after almost two and half years of detention demonstrates the absence of any compelling national security imperative to justify his detention (maintained without periodic review) in the first place. If Mr. Suresh needed to be detained to protect national security, there would have been no basis for permitting his release after the conclusion that the security certificate was reasonable;

3. (c) Mr. Suresh's detention was arbitrary to the extent that it occurred automatically on the issuance of a security certificate and the filing of it in the Federal Court; that no detention review (such as habeas corpus) was available to him between October 1995 and January 1998, and that if and when such detention review becomes available and is granted, such persons bear the onus of establishing that their release is justified;

4. (d) The judicial review of the “reasonableness” of the security certificate did not address the substantive issue of the need to detain the subject of the security certificate; the purpose of the security certificate review process was concerned solely with the reasonableness of the certificate and not with whether a person ought to be detained or released; and

5. (e) The law that governed the detention of Mr. Suresh is discriminatory given, inter alia, that persons facing serious criminal allegations, including murder, are entitled to a bail review within 24 hours of detention and to regular bail reviews thereafter; it is only persons who are not permanent residents or citizens who are subjected to the regime of security certification/mandatory detention; and that Mr. Suresh had the onus of establishing that his release was justified; and generally, once there is a detention review, there are no further regular detention reviews.

17. With regard to the impact of the Charkaoui decisionFootnote ⁸ , the petitioners contend that it vindicates Mr. Suresh's complaints regarding the alleged violations of Articles XXIII and XXV. Nonetheless, the petitioners reject the State's contention that Mr. Suresh's complaints in this regard are now “moot” in all respects. The petitioners note that, pursuant to Charkaoui, decided in February 2007, Mr. Suresh was entitled to have ongoing reviews of the terms of his release by the Federal Court (every six months) and to apply in February 2008 to have his certificate quashed. However, as of November 2007, the petitioners asserted that no dates had been scheduled to review Mr. Suresh's conditions of release, despite the passage of over six months.Footnote ⁹

18. Following Charkaoui, the petitioners argue that, while the Supreme Court has upheld constitutional challenges to the certification and detention regime, such review is of limited assistance in respect to the right to equality before the law under Article II of the American Declaration. Petitioners submit that Charkaoui does nothing to address the violation that Suresh claimed, namely that he was treated differently from other non-citizens alleged to be members of terrorist organizations who were brought before regular immigration tribunals to answer allegations rather than being subject to security certificates.Footnote ¹⁰ The petitioners argue that Mr. Suresh was also treated differently than permanent residents subject to security certificates on the same allegations. In this regard, petitioners lastly affirm that Charkaoui does not place security certificate subjects on the same footing as other non-citizens facing terrorism allegations in the regular immigration stream. They maintain that those non-citizens have an immediate review of the need to detain followed by a seven day review, then review every 30 days, whereas security certificate subjects are entitled to an immediate review and then review every six months.Footnote ¹¹

19. While the petitioners acknowledge that the holding of Charkaoui will “ensure that Canada's laws are brought into compliance” with Articles I, XVII, XVIII, XXIV, and XXV of the Declaration, they observe that Suresh cannot recover damages under Canadian law “for the breach of his human rights while in detention” but maintain that damages should flow from this breach of Mr. Suresh's rights.Footnote ¹² The petitioners reaffirm that Mr. Suresh's complaints are not moot because under the pre-Charkaoui legal regime, Mr. Suresh did not have the right to have the legality of his detention ascertained without delay by a simple, brief procedure and therefore had no remedy available to him while in detention.Footnote ¹³

B. The State

20. According to the State, prior to Charkaoui, Mr. Suresh's petition did not disclose any violations of the American Declaration: he was detained pursuant to legislation that was found, by Canadian Courts, not to violate Canadian constitutional rights to liberty and freedom from arbitrary detention. Post-Charkaoui, the State contends that this decision has rendered Mr. Suresh's complaints “moot” or otherwise without merit and should be dismissed.

21. The State maintains that Mr. Suresh was detained because of his classification as an inadmissible alien. In this regard, the State argues that section 19 of Canada's Immigration Act listed classes of aliens who were inadmissible because they were allegedly involved in espionage, subversion of democratic governments, or terrorism. According to the State, the Immigration Act permitted the detention of inadmissible aliens to achieve two purposes: first, to ensure the effective removal of inadmissible individuals who may resist removal; and second, to protect Canadian society from persons who are considered to be dangerous. In this respect, the State alleged that Mr. Suresh was detained because of his suspected involvement in terrorism.

22. In addressing the issues raised by the petitioners that: a) Mr. Suresh was never in charge of fundraising for the LTTE, and b) there was never any evidence that the funds collected by the WTM went directly to buy arms or to finance terrorist acts, the State affirms that Canada gives great importance to preventing the financing of terrorist acts, as part of its obligations under the various international conventions and resolutions to which the State is party. However, the State maintains that the issue here is not a criminal one, and as such, it is irrelevant that fundraising for a terrorist organization was not criminal in Canada at the time Mr. Suresh was detained. Along similar lines, the State argues that it is irrelevant that the evidence did not establish that Mr. Suresh had committed criminal activity or the direct procurement of ammunition, arms weapons or material of military application in Canada or that he was involved in shipping materials from Canada. Rather, the only issue properly before the Inter-American Commission, according to the State, is Mr. Suresh's detention, and specifically whether the State could detain a non-citizen during deportation proceedings on the basis that he poses a danger to the Canadian public. The State further argues that Mr. Suresh's release from detention has rendered this issue moot.

23. The State also maintains that Mr. Suresh's arrest and detention were in accordance with pre-existing law as required by Article XXV of the American Declaration, and that continued detention for purposes of exclusion from the country of persons involved in terrorism for the purpose of protecting public security was “entirely compatible with the American Declaration.”Footnote ¹⁴ The State maintains its overall position that extended periods of detention during deportation do not violate Article XXV, but concedes that any such process must provide for meaningful and ongoing detention reviews in the wake of Charkaoui.Footnote ¹⁵

24. The State further contends that the American Declaration does not specifically refer to habeas corpus as the necessary procedure for the review of a detention, and that the rule of the domestic system that habeas corpus need not be available when an alternative mechanism exists to review the detention does not violate the American Declaration. Section 40.1 of the Immigration Act, the State contends, represented such a mechanism. The State submits that section 40.1, in effect during the processing of Mr. Suresh, provides a simple, brief procedure for the review of detention by a court, and that the certification review process before a judge of the Federal Court includes a procedure established to review the detention of the person named in the security certificate. According to the State, if, as a result of this procedure, the court comes to the conclusion that the grounds for the issuance of the certificate are not reasonable, the person is released. If, however, the court comes to the conclusion that they are reasonable, then the person remains in detention, and if he or she is not removed within 120 days, he or she may then apply to the judge for release.

25. The State argues that the regime of mandatory detention is not arbitrary because it is expressly authorized by law and occurs only following a separate decision by two ministers, based on security information, that a person who is neither a Canadian citizen nor a permanent resident has a terrorist background or propensities; and, as in the case of Mr. Suresh, that the person has engaged or will engage in terrorism or was or is a member of a terrorist organization. The State adds that the continuation of the detention of the person is inextricably linked with the certificate review process, as the person's continued detention depends on whether a Federal Court judge believes that the certificate filed by the M.C.I. and the Solicitor General is reasonable on the basis of evidence and information available to the judge. On this basis, the State submitted that there was no need for a separate hearing into the person's detention, when the person could have been released as a direct result of the inquiry into the reasonableness of the grounds for issuance of the certificate. Thus, for the State, the procedure mandated by section 40.1 (4) (d) of the Immigration Act constituted a statutory detention review by a Court available to the person detained.

26. Regarding the right to equality, Canada contends that States have the right, as a matter of well-established international law, and subject to their treaty obligations, to control the entry, residence and expulsion of aliens. Further, Canada maintains that States have the right to deport a person who represents a danger to the security of the persons on their territory or to their national security, and, consequently, to detain for the purposes of the deportation proceedings. In this respect, the State contends that detention during deportation proceedings does not violate the right to equality under the American Declaration. Given that Canadians are not subject to deportation proceedings, the State argues that it is inappropriate to compare the regime applied to Canadian citizens and/or permanent residents on the one hand and non-Canadian citizens and/or non-permanent residents on the other. The State submits that the equality rights of Mr. Suresh have not been violated since, as a non-resident alien, he enjoys the same right, in common with Canadian citizens and permanent residents, to have the legality of his detention ascertained without delay by the court.

27. As noted previously, in its submission after the Charkaoui decision, the State has affirmed that the conclusions of the Supreme Court have rendered Mr. Suresh's complaints moot or that the complaints are otherwise without merit. With respect to Mr. Suresh's complaints under Article XVIII of the American Declaration the State argues that the Supreme Court expressly recognized the right of certified detainees to have the legality of their detentions ascertained without delay by a simple, brief procedure. In the State's view, this recognition renders these complaints moot. The State also notes that the Supreme Court had dismissed allegations that the security certificate process violated section 15 of the Canadian Charter (right to equal protection). The State observes that Section 6 of the Canadian Charter specifically allows for differential treatment of citizens and non-citizens in deportation matters, as only citizens are accorded the right to enter, remain in and leave Canada. The State contends that foreign nationals now have the same rights with respect to review of detention as permanent residents, which is that they are entitled to automatic review of detention within 48 hours. The State reiterates that the fact that fund-raising for a terrorist organization was not unlawful for a Canadian citizen at the time is irrelevant. The State maintains that it may use its sovereign power to detain for the purpose of deportation and to deport aliens who represent a danger to national security. Accordingly, the State concludes that Mr. Suresh's complaints under Articles II and XXV of the American Declaration are also moot.

28. Pursuant to Charkaoui, the State points out that Mr. Suresh was eligible to apply to quash the existing security certificate on or after February 23, 2008.Footnote ¹⁶ The State has acknowledged the petitioners' complaint about delays in scheduling judicial review of Mr. Suresh's conditions of release but asserts that “any delay, while regrettable, is not relevant to the issues before the Inter-American Commission.”Footnote ¹⁷

29. The State agrees with the petitioners that Canadian law does not permit Mr. Suresh to recover damages for being detained between 1995 and 1998 under a law that was only recognized as unconstitutional in 2007. The State rejects any claim made by the petitioners before the Inter-American Commission for compensation and/or any other remedies. The State argues that there is no legal or equitable basis upon which Mr. Suresh would be eligible for compensation, given the history of his detention on national security grounds under a law that was not challenged until 2007.

A. Domestic Proceedings

30. At the time of Mr. Suresh's petition, Canada's Immigration ActFootnote ¹⁸ authorized the removal from Canada of persons who were not citizens or permanent residents for reasons of national security. The domestic proceedings against Mr. Suresh entailed four distinct, possible steps, namely: 1) the issuance of a security certificate, 2) a determination of whether the certificate is reasonable on the basis of the evidence available to the judge; 3) the deportation hearing; and 4) the notification of deportation.

B. Legal Challenges by Mr. Suresh

37. Based on the above-outlined domestic procedure, the Commission notes that Mr. Suresh's legal challenges began with his seeking to overturn the Minister's decision to issue a security certificate against him, as a first step in contesting the legality of his detention and ultimately procuring his own release. To this end, on January 9, 1998, Mr. Suresh applied to the Federal Court of Canada – Trial Division, for leave to commence judicial review of the Minister's decision. In his application, Mr. Suresh alleged that: (1) the Minister's decision was unreasonable and (2) the procedures under the Act (which did not require an oral hearing and an independent decision-maker) were unfair. On January 19, 1998, Mr. Suresh applied with the Ontario Court General Division for a constitutional declaration that the Act infringed ss. 2(b), 2(d), and 7, of the Canadian Charter of Rights and Freedoms, the latter specifically because Mr. Suresh alleged that he feared torture if return to Sri Lanka. On January 28, 1998, Justice Lane of the Ontario Court stayed the application for a constitutional declaration, finding that it was tied to the resolution of the application for leave to review the Minister's Decision, which was pending in the Federal Court – Trial Division.Footnote ²⁴ In June 1999, the Federal Court – Trial Division dismissed Mr. Suresh's application.Footnote ²⁵

38. Mr. Suresh subsequently appealed to the Federal Court of Canada – Appellate Division.Footnote ²⁶ The Appellate Division dismissed Mr. Suresh's appeal on January 18, 2000, and, with regard to s. 7, reasoned that “the right under international law to be free from torture was limited by a country's right to expel those who pose a security risk.”Footnote ²⁷ While this aspect of the case was not brought before the Commission in the present, the IACHR wishes to indicate that it has already addressed this issue and the standards under international law governing the absolute prohibition on torture, requiring States to refrain from returning all persons – even those suspected of terrorism – where substantial grounds of real risk of persecution are at issue, in its Report on the Situation of Human Rights of Asylum Seekers Within the Canadian Refugee Determination System of 2000 (“the Canada Report”).Footnote ²⁸

39. Mr. Suresh then appealed to the Supreme Court of Canada. On January 11, 2002, just one month before the Commission published its admissibility report on the present case, the Supreme Court of Canada upheld the constitutionality of the security certification regime under the Immigration Act.Footnote ²⁹ However, the Court found that the Minister breached a duty of fairness to Mr. Suresh by issuing her opinion without first affording Mr. Suresh a fair opportunity to respond to the case against him (as presented in Mr. Gautier's memorandum), and by failing to give reasons for her opinion.Footnote ³⁰ Accordingly, the Court held that Mr. Suresh was entitled to a new hearing that conformed to the requirements of “fundamental justice,” and the Court consequently remanded the case to the Minister for reconsideration. As such, as the parties understand and was previously mentioned, the issue of whether Mr. Suresh can be deported to Sri Lanka if he might be subject to the risk of torture upon return is not before the Commission.

40. In early 1998, Mr. Suresh applied for release from detention.Footnote ³¹ On March 23, 1998, Mr. Suresh was released from detention, based on the results of the hearings held on February 6, 1998 and March 19-20, 1998.Footnote ³² The release was ordered on terms.Footnote ³³

41. On the issue of detention, which the parties agree is the only issue before this Commission, Mr. Suresh filed an action in Federal Court in April 1996 claiming that the detention provisions of section 40.1 of the Immigration Act violated the Charter of Rights and Freedoms.Footnote ³⁴ The Federal Court – Trial Division held on October 21, 1999 that there was no breach of the principles of fundamental justice under Section 7 of the Charter in relation to the process and the detention, nor any breach of the right to be free from arbitrary detention under Section 9 of the Charter. The Appellate Division upheld this judgment.Footnote ³⁵ The Supreme Court of Canada declined to hear any further appeal in the matter.

C. Charkaoui v. Canada

42. In February 2007, the Supreme Court of Canada ruled in the case of Charkaoui v. Canada that the regime of certification and mandatory detention under the Immigration and Refugee Protection Act (IRPA)Footnote ³⁶ violated section 7 (the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principles of “fundamental justice”) of the Canadian Charter of Rights and Freedoms.Footnote ³⁷ The Supreme Court concluded that IRPA “unjustifiably violated s. 7 of the Charter” by “allowing the issuance of a certificate of admissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person's interests,”Footnote ³⁸ and by failing to assure the hearing that s. 7 requires before the State deprives a person of this right.”Footnote ³⁹ The Court further concluded that the

43. The Court further noted that, “While there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained, this cannot justify the complete denial of a timely detention review.”Footnote ⁴¹

44. The Court also considered whether the certificate and detention review procedures discriminate between citizens and non-citizens, contrary to section 15 of the Canadian CharterFootnote ⁴² , and if so, whether the discrimination is justified under section 1 of the CharterFootnote ⁴³ . The Court concluded, based on the particular facts of the Charkaoui case, that a violation had not been established. The Court noted that only Canadian citizens are accorded the right to enter, remain in, and leave CanadaFootnote ⁴⁴ ; and that accordingly, this allowed for differential treatment of citizens and non-citizens in deportation matters. For that reason, the Court concluded that a deportation scheme that applies to non-citizens, but not to citizens, does not, for that reason alone, violate s. 15 of the Charter.

45. As part of its rationale on this point, the Court acknowledged that there are two ways in which the IRPA could, in certain circumstances, result in discrimination.Footnote ⁴⁵ The first is when detention may become indefinite, as deportation is put off or becomes impossible. An example provided by the Court of the latter is when there is no country to which the person can be deported. A second instance is if the government was to use the IRPA not for the purpose of deportation but rather to detain the person on security grounds. In both situations, the Court noted that the source of the problem is that the detention is no longer related, in effect or purpose, to the goal of deportation. Concluding, the Court found that

46. The Supreme Court also held that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular opportunities for review of detention, taking into account all of the relevant factors, including the reasons for detention, the length of the detention, the reasons for the delay in deportation, the anticipated future length of detention, if applicable, and the availability of alternatives to detention. The Court further acknowledged that, despite this review process, a judge is not precluded from concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice.Footnote ⁴⁷

47. With respect to its declaration that s. 7 of the Charter had been violated by the failure to afford a fair hearing, the Supreme Court concluded that IRPA's procedure for the “judicial confirmation and review of detention” was inconsistent with the Charter and “hence of no force or effect.” However, the Court suspended the date by which the declaration became effective for a year to give the Canadian Parliament an opportunity to amend the offending provisions of the IRPA.Footnote ⁴⁸ The Court ruled that if the government chose to go forward with the proceedings to determine the reasonableness of Mr. Charkaoui's certificate, then the existing processes under the IRPA would apply. After a year, the certificate of any individual that had been deemed reasonable would lose this “reasonable” status, such as in the case of Mr. Suresh,Footnote ⁴⁹ and it would then be open to the affected individuals to apply to have these certificates quashed.Footnote ⁵⁰

A. Application and Interpretation of the American Declaration of the Rights and Duties of Man

49. The petitioners claim that the State has violated the rights of Manickavasagam Suresh under Articles II, XVIII and XXV of the American Declaration. As concluded in the admissibility report in this matter, the IACHR is competent to examine and pronounce upon these allegations against the State of Canada. The Declaration became a source of legal obligation for application by the Inter-American Commission to Canada when it became a Member State of the Organization of American States (OAS). Canada deposited its instrument of ratification of the OAS Charter on January 8, 1990. Article 20 of the Inter-American Commission's Statute, and the Rules of Procedure of the Inter-American Commission, authorize the Inter-American Commission to entertain the alleged violations of the Declaration raised by the petitioners against the State, which relate to acts or omissions that transpired after the State joined the OAS.

50. In addressing the allegations raised by the petitioners in this case, the Inter-American Commission emphasizes that it is necessary to consider the provisions of the American Declaration in the broader context of both the Inter–American and international human rights systems. The Inter-American Commission considers this appropriate in light of developments in the field of international human rights law since the Declaration was adopted and having regard to other relevant rules of international law applicable to member states against which complaints of violations of the Declaration are properly lodged.Footnote ⁵¹ Pursuant to the principles of treaty interpretation, the Inter-American Court of Human Rights has likewise endorsed an interpretation of international human rights instruments that takes into account developments in the corpus juris gentium of international human rights law over time and in present-day conditions.Footnote ⁵²

51. Developments in the corpus of international human rights law relevant to interpreting and applying the American Declaration may in turn be drawn from the provisions of other prevailing international and regional human rights instruments. In particular, this includes the American Convention on Human Rights, which, in many instances, may be considered to represent an authoritative expression of the fundamental principles set forth in the American Declaration. While the Commission clearly does not apply the American Convention in relation to Member States that have yet to ratify that treaty, its provisions may well be relevant in informing an interpretation of the Declaration.Footnote ⁵³

52. The Commission notes that as a modern human rights instrument, the American Declaration must be applied in a way to protect the basic rights of individuals, irrespective of nationality, both with respect to one's State of nationality and all other States. This is based on the precept that human rights are fundamentally derived from one's attributes as a human being and not by virtue of being a citizen of a particular State.Footnote ⁵⁴

B. Other Considerations

53. The Inter-American Commission has already noted that in 2007, the Supreme Court of Canada ruled the regime of certification and mandatory detention under the Immigration and Refugee Protection ActFootnote ⁵⁵ (IRPA) infringed section 7 of the Canadian Charter of Rights and Freedoms (the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice). The Court also found that the lack of review of the detention of foreign nationals until 120 days after the reasonableness of the certificate has been judicially confirmed infringed the guarantee against arbitrary detention in s. 9Footnote ⁵⁶ of the Charter, which encompasses the right to prompt review of detention under s. 10(c)Footnote ⁵⁷ of the Charter.

54. While the State acknowledges the impact of the Court's judgment, it continues to argue that Mr. Suresh's complaints are without merit and undeserving of any redress. On the other hand, the petitioners consider that the Supreme Court's judgment vindicates Mr. Suresh's complaints relative to his 29-month detention, and that he is entitled to reparation for the violation of his rights.

55. The Inter-American Commission does not consider that the Charkaoui ruling renders Mr. Suresh's complaints under Articles XXV and XVIII of the American Declaration ‘moot’ as a result. Based on the foregoing, the Inter-American Commission considers that the judgment of the Supreme Court is instructive but does not resolve the petitioners' complaints before the Inter-American Commission. Accordingly, the Inter-American Commission now sets out its analysis of Mr. Suresh's complaints under Articles XXV, XVIII, and II of the American Declaration.

C. The right to protection from arbitrary detention (Article XXV) and the right to a fair trial (Article XVIII)

56. Article XXV of the American Declaration establishes that “No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law”; that “every individual who has been deprived of liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise to be released”; as well as “the right to humane treatment during the time he is in custody.”

57. While the right to liberty is not absolute, any such restriction must be consonant with the protections set out in Article XXV of the Declaration. The Commission has derived three requirements from Article XXV: a) detention must have a legal basis; b) detention cannot be arbitrary; and c) there must be an expeditious judicial review mechanism; in circumstances of ongoing detention, that means the review of the decision at regular intervals of time.Footnote ⁵⁸ The review proceedings for detention orders must fulfill procedural requirements, to include: an impartial adjudicator, the opportunity to submit evidence, and respect for the rights to a defense and to counsel.Footnote ⁵⁹

58. The Inter-American Commission notes that the right to protection from arbitrary arrest and detention is concerned with the exercise of physical freedomFootnote ⁶⁰ and is similar to the provisions of other international human rights instruments in this regard. For example, Canada is party to the International Covenant on Civil and Political Rights (ICCPR), having acceded to it on May 19, 1976. Article 9 of the ICCPR provides the right “to not be subjected to arbitrary arrest or detention except . . . on such grounds and in accordance with such procedures as are established by law” as well as that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court,” that court to decide “without delay” on the lawfulness of the detention. This right to protection from arbitrary detention, as with all others under the Declaration, applies to every individual falling within the authority and control of the State and must, in principle, be afforded to all such persons without distinction, in accordance with the right to equal protection of the law under Article II of the Declaration.

59. In assessing the first issue for review – whether the mandatory nature of Mr. Suresh's detention violated the American Declaration, and in particular, Article XXV – the Commission reiterates the importance of respecting the exceptionality of detention.Footnote ⁶¹ In this regard, Principle III (2) of the Inter-American Principles on the Protection of Persons Deprived of Liberty in the Americas reflects the basic principle that deprivation of liberty of detention must be an exceptional measure, and that

60. In Rafael Ferrer-Mazorra et al v. United States, the Commission reiterated that, when considering the application of the deprivation of liberty, the presumption must be of liberty rather than of detention. More specifically, the IACHR found that

61. Along with the presumption of liberty, there must be an individualized assessment of the need to detain. As the Commission has previously established, detention is only permissible when a case-specific evaluation concludes that the measure is necessary in order to serve certain legitimate interests of the State.Footnote ⁶³ In all cases, the Commission reiterates that the arguments in support of the appropriateness of detention must be set out clearly in the corresponding decision.Footnote ⁶⁴

62. As indicated above, Mr. Suresh was detained in Canada pursuant to the security certification that indicated that he was a “high ranking member of the LTTE in Canada who maintains contact with the international leadership of the LTTE.”Footnote ⁶⁵ It must be noted that neither party has suggested that Mr. Suresh actively or directly participated in any criminal or terrorist act.

63. The State has indicated two justifications for the detention of Mr. Suresh and others detained under the security certification regime: first, to ensure the effective removal of inadmissible individuals who may resist removal; and second, to protect Canadian society from persons who are considered to be dangerous. In other words, the detention was presumably based on the ongoing interest in eventually removing the person certified as posing a danger.

64. The certification process is an immigration proceeding, not a criminal trial. It includes neither the administrative and judicial reviews of a normal deportation process, nor the due process protections required in a criminal trial, and accordingly raises particular concerns. The Commission takes note that the Working Group on Arbitrary Detention of the United Nations Human Rights Council has found resort to administrative detention on the basis of suspicion of direct participation in terrorist activity to be inadmissible. The Working Group has emphasized that suspicion of terrorism must be dealt with through the filing of criminal charges with the attendant due process protection, including effective access to habeas corpus upon detention.Footnote ⁶⁶

65. While citizen security is an issue of great importance, its invocation is not sufficient to justify the mandatory or indefinite detention of a certain group of persons, namely non-citizens and non-permanent residents. The legislation in effect neither required nor permitted an individualized review of the need to detain Mr. Suresh during the time the certificate was under review.

66. Based on the facts presented, the Commission determines that the detention of Mr. Suresh was applied not based on a presumption in favor of liberty, but rather on a presumption of detention and of mandatory detention for an indefinite period, according to the law. In this regard, the State of Canada failed to respect the overarching principle of the exceptionality of detention as applied to Mr. Suresh. Further, the Commission observes that Canada did not conduct an individualized assessment nor did it provide clear justifications in a corresponding decision of the need to detain Mr. Suresh based on the risk he posed to Canadian society, due to his alleged participation in the financing of terrorist activities.

67. Even detention which was at first legal can nonetheless become arbitrary and violative of Article XXV when the law does not set a maximum duration. Under no circumstances should detention be indefinite or of excessive duration. In this regard, Inter-American jurisprudence has established that when detention – preventive or otherwiseFootnote ⁶⁷  – is unduly prolonged, it becomes punitive in nature.Footnote ⁶⁸ In the present case, the Commission observes that there was no maximum duration set for the mandatory detention of persons subject to security certificates, and Mr. Suresh was ultimately detained for over two years.

68. In light of the foregoing, on the first issue the Commission finds that the State of Canada violated Article XXV to the detriment of Mr. Suresh.

69. In regards to the second issue – whether Mr. Suresh was afforded simple, prompt access to judicial oversight of the decision to detain, the Commission refers to Article XVIII, which prescribes a fundamental role for the courts of a State in ensuring and protecting the legal rights of the individual. Specifically, it provides that “Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights.”

70. As the Commission noted in the Canada Report, the security certification process of section 40.1 provides for judicial review of the grounds for issuing the certificate, but provides no recourse to seek review of the legality of the related detention. Under the terms of the Immigration Act, detention is mandatory until the certificate is quashed. The only exception, prior to that point, is release for the purpose of removal. If the certificate is not quashed, the terms of the Act expressly excluded the possibility of access to the writ of habeas corpus for 120 days after a removal order is issued.Footnote ⁶⁹

71. This security certification process raises three principle concerns implicating the provisions of the American Declaration. Two of these concerns have been previously raised in the Commission's Canada Report: the compatibility of the provisions concerning access to review of the legality of detention and the compatibility of the procedures allowing the judge to consider evidence, which may be withheld from the person concerned on the basis of the need to protect national security, with Canada's obligations under Inter-American legal instruments.Footnote ⁷⁰

72. With respect to the first concern, the Commission has held inter alia that the grounds and procedures by which non-nationals may be deprived of their liberty should define with sufficient detail the basis for such action, that authorities should have a very narrow and limited margin of discretion, and that guarantees for the revision of the detention should be available at a minimum at reasonable intervals.Footnote ⁷¹

73. Article XXV of the American Declaration also provides that any person detained has the right to have the legality of the detention ascertained without delay. The requirement that detention not be left to the sole discretion of the State agents responsible for carrying it out is so fundamental that it cannot be overlooked in any context. Supervisory control over detention is an essential safeguard, because it provides effective assurance that the detainee is not exclusively at the mercy of the detaining authority.Footnote ⁷² Under normal circumstances, review of the legality of detention must be carried out without delay, which generally means as soon as practicable. This approach has been applied by the United Nations Human Rights Committee (UNHRC) in considering the application of Article 9 (4)Footnote ⁷³ of the ICCPR to 40.1 of the Immigration Act. The Committee (by majority) opined:

74. While the certificate reviews process provides an important judicial check on State action, the Commission finds that it does not provide the simple, prompt access to judicial oversight with respect to the decision to detain required by Articles XXV and XVIII of the Declaration. What section 40.1 of the Immigration Act does provide for is, first, the requirement that the Minister cause a copy of the certificate to be referred to the Federal Court for a determination as to whether the certificate should be quashed. The Commission notes that no time frame is provided for this action. The section also requires that the judge examine the security or criminal intelligence reports considered by the M.C.I. or the Solicitor General in camera within seven days after the certificate is referred to the Federal Court.Footnote ⁷⁵ The next steps include, most pertinently, that the designated judge: provide the person named with a reasonable opportunity to be heard (no time frame provided) (s. 40.1(4)(c)); determine whether the certificate filed by the M.C.I. and the Solicitor General is reasonable on the basis of the evidence and information available (no time frame provided) (s. 40.1(4)(d)); and notify the M.C.I., the Solicitor General, and the person named in the certificate of the determination made (no time frame provided) (s. 40.1(4)). Ultimately, if the judge determines that the grounds underlying the certificate are reasonable, a final order of deportation is issued and, if following its issuance, 120 days pass and the named person is still not deported, then and only then does the detainee become eligible to seek review of his detention. Thus, the Commission observes that, in reality, the time period before which a detainee could have been eligible to seek review of his detention constitutes an indefinite period of time.

75. As mentioned above and in conjunction with the risk of becoming punitive in nature, the Commission considers that a period of indefinite or even 120-days duration far exceeds that which would qualify as a review “without delay” of the legality of detention under Article XXV, as previously established in the Inter-American system.Footnote ⁷⁶

76. As the Commission previously established in its Canada Report, in principle, the terms of Article XXV, concerning the right to detention review without delay, particularly when read in conjunction with those of Article XVIII, concerning the right to a simple, brief procedure for the protection of fundamental rights, require the existence of a procedure such as habeas corpus or its equivalentFootnote ⁷⁷ which does not then require the institution of separate legal proceedings such as an application for judicial review.Footnote ⁷⁸ Indeed, this argument was advanced by the State, in proffering that the process prescribed by s. 40.1 of the Immigration Act “constitutes per se detention review” and therefore is an adequate substitute for habeas corpus.

77. For the reasons contained within this report, the Commission finds that the process prescribed in s. 40.1 is neither “simple” nor “brief” and was not available without delay. Therefore, it does not constitute a valid equivalent to habeas corpus.

78. Regarding the second concern, the Commission observes that the notion of fairness is particularly fundamental to ensuring that a process for the deprivation of liberty is not rendered arbitrary contrary to Article XXV of the Declaration. Thus, so as to make effective the fair trial guarantees provided by Article XVIII, in order to contest the legality of a deprivation of liberty, the Commission has established that the State has the obligation to inform the affected individual of the motives or reasons for the detentionFootnote ⁷⁹ ; further, detention review proceedings must also ensure that: (1) the decision-maker meets standards of impartiality; (2) the detainee is given an opportunity to present evidence and to know and meet the claims against him or her; and (3) the detainee is given an opportunity to be represented by counsel or another representative.Footnote ⁸⁰

79. In the context of terrorism, this Inter-American Commission and other international human rights bodies have consistently recognized the right and duty of the State to investigate, prosecute, and punish acts of terrorism and protect citizen security, as well as attend to the special problems which arise in this context. In this regard, the Commission reaffirms the key principle expressed in its Report on Terrorism and Human Rights, the overriding requirement that any counter-terrorism initiatives by States comply with their existing obligations under international law, including those under international human rights and humanitarian law.”Footnote ⁸¹ As the Commission has previously observed, “unqualified respect for human rights must be a fundamental part of any anti-subversive strategies when such strategies have to be implemented.”Footnote ⁸²

80. Through the Inter-American Convention against Terrorism, the Inter-American system confirms that terrorism represents a serious threat to democratic values and to international peace and security, and recognizes that it is a cause of profound concern to all Member States.Footnote ⁸³ The Convention, which entered into force in 2003, contains extensive provisions addressing the prevention, combating, and eradication of the financing of terrorism, such as requiring comprehensive regulatory and supervisory schemes for banks and addressing the seizure and confiscation of funds or assets used to finance terrorism.Footnote ⁸⁴ Nonetheless, in accordance with its Article 15, it also cautions that the measures carried out by States parties “shall take place with full respect for the rule of law, human rights, and fundamental freedoms.” In particular, it prescribes that, in the processes of interpretation and application of certain treaty provisions, fundamental human rights must be taken into account, including “the right to personal liberty and security, the right to due process, and the non-refoulement principle for the apprehension, detention, and prosecution or extradition of suspected terrorists.”Footnote ⁸⁵

81. Even under extreme circumstances, effective judicial control of State action remains a fundamental prerequisite for ensuring the rule of law. Accordingly, this Commission has consistently found that resort to restrictive measures under the American Declaration may not be such as to leave “the rights of the individual without legal protection.”Footnote ⁸⁶ As the IACHR has established on multiple occasions, “under no circumstances may governments employ . . . the denial of certain minimum conditions of justice as the means to restore public order.”Footnote ⁸⁷ Applying this principle to the specific context of terrorism, the Commission has established that

82. The Commission also reaffirms that, even in the context of terrorism or suspected terrorism, the right to the review of legality of detention exists independent of whether the detention itself is lawful.Footnote ⁸⁹ The Commission further underscores the importance of periodic review, as the consideration that a person may be a danger to national security is “a characteristic susceptible to change” because, over time, “new issues [pertaining to] the lawfulness of detention may arise [and may later render the continuation of such detention unlawful].”Footnote ⁹⁰

83. While the Commission recognizes the State's right to exclude non-citizens and to protect Canadian society from persons considered to be dangerous, having regard to the foregoing considerations, the Commission finds that the State impermissibly denied Mr. Suresh the right to challenge the legality of his detention without delay in violation of Article XXV and that the State violated Article XVIII by failing to afford Mr. Suresh adequate or effective protection from deprivation of his basic right to liberty.

84. The Commission's conclusions in this regard are consistent with the considerations of the United Nations Human Rights Committee (UNHRC) in Ahani v Canada Footnote ⁹¹ in applying Article 9 (4)Footnote ⁹² of the ICCPR. Like Mr. Suresh, Mr. Ahani had been certified as presenting a danger to public security and detained pursuant to section 40.1 of the Immigration Act.Footnote ⁹³ Mr. Ahani was detained for almost five years pending the outcome of constitutional challenges to section 40.1 of the Immigration Act and the “reasonableness” hearing itself. He was ordered deported in April 1998, and after waiting the requisite 120 days under the Act, he applied for judicial review of the ministerial determination and release from detention. As the UNHRC determined:

D. The right to equal protection of the law (Article II)

85. Article II of the American Declaration establishes that “All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.”

86. As the Commission has previously observed, “[O]ne of the American Declaration's objectives was to assure in principle ‘the equal protection of the law to nationals and aliens alike in respect to the rights set forth.’”Footnote ⁹⁵

87. In this regard, the Commission maintains that “The notion of equality before the law set out in the Declaration relates to the application of substantive rights and to the protection to be given to them in the case of acts by the State or others.”Footnote ⁹⁶ The Inter-American Court has also observed that Article II, while not prohibiting all distinctions in treatment in the enjoyment of protected rights and freedoms, fundamentally requires that any permissible distinctions be based upon objective and reasonable justification.Footnote ⁹⁷ The Court, in an advisory opinion on domestic naturalization provisions, concluded in general terms that “no discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice.”Footnote ⁹⁸ The Commission considers that these principles apply with equal force in the treatment afforded by States to resident and non-resident aliens.

88. In the context of immigration management, the Commission recognizes that under certain circumstances it may be appropriate for States to treat non-residents or foreigners differently from citizens or legal residents within the State's jurisdiction. Under international law, States have the right to establish their immigration policies, laws and practices, which may include provisions for the control of their borders and the requirements for entering and remaining in their territory, and the right to expel or deport foreign nationals.Footnote ⁹⁹ Differential treatment may, for example, be justified in controlling the entry in and residence of foreigners in their territory.Footnote ¹⁰⁰ Nonetheless, such immigration policies, laws, and practices must be respectful of and guarantee the human rights of all persons, including migrants and other non-nationals, including persons in an irregular migratory situation.Footnote ¹⁰¹ Specifically, and consistent with the principles underlying Article II of the Declaration, any such distinctions must be shown by the State to be objective, reasonable, and proportionate to the objective sought in the circumstances.

89. A context of counter-terrorism measures may give rise to particular considerations. For example, as the Commission previously noted in its report on Terrorism and Human Rights, migrants, asylum seekers, and other non-nationals may be “especially vulnerable” to discrimination in emergency situations resulting from terrorist violence.Footnote ¹⁰² States must therefore remain vigilant in ensuring that their laws and policies are not developed or applied in a manner that encourages or results in discrimination; that their officials and agents conduct themselves fully in conformity with these rules and principles; and that policies and practices are prohibited upon a showing that they discriminate against a certain category of persons, even when lacking proof of discriminatory intent.Footnote ¹⁰³

90. The Commission recognizes that, in the present case, the intent of section 40.1 of the Immigration Act was to create “a mechanism for the expeditious review by an independent judicial arbiter of the reasonableness of the decision of two separate ministers to issue a certificate that a person, other than a Canadian citizen or permanent resident, is a member of an inadmissible class of persons for various specified reasons, including terrorism.”Footnote ¹⁰⁴ The Commission acknowledges that differential treatment of persons suspected of terrorist acts may legitimately be utilized by States to protect their security where such treatment meets the abovementioned requirements.

91. In the present case, section 40.1 of the Act expressly required the mandatory and indefinite detention of non-citizens, who were not permanent residents, and restricted access to prompt judicial review of the legality of their detention. Until the enactment of the IRPA in 2002, permanent residents and citizens of Canada were expressly excluded from this regime. While there may be valid differences in the treatment of such groups for immigration purposes, those differences do not validate a blanket distinction in their treatment with respect to the right to liberty.

92. Further, the Commission observes that the treasurer of the WTM was a Canadian citizen and in charge of the organization's fundraising efforts and was not jailed or otherwise sanctioned for participating in the collection of funds.Footnote ¹⁰⁵ The Commission in addition takes note that the LTTE and WTM were not classified by the Canadian government as terrorist organizations until April 8, 2006 and June 13, 2008, respectively.Footnote ¹⁰⁶

93. The principal justifications proffered by the State for this distinction are that

1. (a) States have the right, as a matter of well-established international law, and subject to their treaty obligations, to control the entry, residence and expulsion of aliens; and that

2. (b) States have the right to deport a person who represents a danger to security of the persons on their territory or to their national security, and consequently to detain for the purposes of the deportation proceedings.

94. The State further relies on the Charkaoui case as a basis for rejecting the petitioners' complaint of discrimination under the certification and detention regime. As already noted, the Supreme Court of Canada considered whether the certificate and detention review procedures discriminate between citizens and non-citizens, contrary to section 15Footnote ¹⁰⁷ of the Canadian Charter, and if so, whether the discrimination is justified under section 1 of the Charter. The Court concluded, based on the particular facts of the Charkaoui case, that a violation had not been established. The Court noted that only Canadian citizens are accorded the right to enter, remain in, and leave Canada under s. 6 of the Charter; and that accordingly, this allowed for differential treatment of citizens and non-citizens in deportation matters. For that reason, the Court concluded that a deportation scheme that applies to non-citizens, but not to citizens, does not, for that reason alone, violate s. 15 of the Charter.Footnote ¹⁰⁸

95. While differences exist between citizens and foreigners for the purpose of immigration law, those differences do not imply, in and of themselves, some restriction to or lessening of such fundamental rights as due process or personal liberty. Under the American Declaration, all persons are entitled to the rights of liberty and due process; any distinction in treatment must be objective, reasonable, and proportionate. The IACHR reiterates, in this regard, the fundamental character of the obligation of non-discrimination:

96. The Commission considers that the distinction between citizens and non-citizens in their enjoyment of the right to liberty at the time Mr. Suresh was detained and the a priori imposition of mandatory detention for non-citizens and non-residents absent an individualized assessment of the need to detain was discriminatory.

97. As the Commission previously observed in relation to Article XXV, while there is no absolute right to liberty, there must be a presumption of liberty and any deprivation of it must not be arbitrary. Along these lines, the Commission stresses the utmost importance of habeas corpus and that the standards of the regional system admit no circumstances in which access to it by any person, regardless of citizenship or migratory situation would rightfully be limited.

98. Based on the above considerations, the Commission finds that the differential treatment accorded to Mr. Suresh as a non-resident and non-citizen of Canada was not objective, reasonable, or proportionate to the interests the State sought to advance. The State referred to its legitimate right and duty to control its borders and combat the threat of terrorism; however, the Commission observes that it did not provide specific justification as to why these objectives would require that one class of persons, namely non-resident foreigners, be treated differently than citizens or permanent residents in requiring mandatory detention nor why this class of persons would be excluded from the fundamental protection of habeas corpus or an adequate equivalent. Nor has the State indicated why the legitimate interests it sought to advance could not be accomplished through less restrictive measures than the deprivation of liberty. The terms of the mandatory detention regime did not require an individualized determination or justification for the need to detain, and no such determination was made.

99. In light of the above, the Commission finds that the State violated Mr. Suresh's rights under Article II of the American Declaration.