successfully claim protection from deportation based on Canada’s nonrefoulement obligations is significantly reduced. In the 2002 case of Suresh v. Canada, the Supreme Court of Canada acknowledged that international law bans absolutely returns to countries where there is a risk of torture, but in an extraordinary departure from that law, stated, “We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified:”139 Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because article 3 of the Convention against Torture directly constrains the actions of the Canadian government, but because the fundamental justice balance under s[ection] 7 of the [Canadian] Charter [of Rights and Freedoms] generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of the exceptional discretion to deport to torture, if any, must await future cases.140 One can only assume that by securing assurances for controversial deportations, the Canadian government is seeking to avoid invoking the disturbing “exception” carved out by the Suresh court. The Canadian government has openly acknowledged that some persons subject to security certificates would be at risk of torture or ill-treatment upon return (see Charkaoui and Mahjoub cases below), thus triggering the nonrefoulement obligation. The government then seeks assurances from the receiving country, ostensibly to reduce the risk of abusive treatment. Diplomatic assurances, however, do nothing to mitigate that risk. As a result, relying on diplomatic assurances, an ineffective safeguard against torture, to effect such deportations in fact would place the Canadian government within the terms of the Suresh “exception” and would violate the absolute prohibition against torture and refoulement. 139 Manickavasagam Suresh v. Minister of Citizenship and Immigration and the Attorney General of Canada (Suresh v. Canada), 2002, SCC 1. File No. 27790, January 11, 2002, para. 78 [online] http://www.lexum.umontreal.ca/csc-scc/en/pub/2002/vol1/html/2002scr1_0003.html (retrieved February 25, 2005). In the April 2004 “Empty Promises” report, Human Rights Watch did not highlight security certificate cases. The Suresh case was featured in that report for what the judgment said about diplomatic assurances, namely “Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.” Suresh was granted a new deportation hearing after the court concluded that his original hearing did not provide the procedural safeguards necessary to protect his right not to be deported to a place, in this case India, where he was at risk of torture, including the opportunity to challenge the validity of diplomatic assurances. See “Empty Promises,” pp. 18-19. 140 Suresh v. Canada, para. 78. HUMAN RIGHTS WATCH VOL. 17 NO. 4(D) 48