CAT/C/39/D/297/2006 page 9 6.10 Counsel further claims that the Canadian Government was a party in the decision on protection for the complainant, thereby violating his right to be judged by an independent, impartial decision maker. She notes that it is clear from an e-mail sent to CBSA on 10 May 2006 by an official of the Government’s Security and War Crimes Unit that CBSA was already aware that the protection decision would be negative and that the removal procedure had been set in motion, even though the decision had not yet appeared in the immigration computer files (FOSS). Yet the complainant was only notified of the negative decision on his case on 15 May 2006. The enforcement of the complainant’s removal had thus already begun, despite the fact that he himself had not yet been informed of the decision and at this stage still had several remedies available to him against the decision. In counsel’s view, the Minister’s delegate responsible for taking the decision on protection failed to act in an independent and impartial manner. 6.11 Counsel argues that the 23 June 2006 decision rejecting the application for a stay was unlawful and incorrect in fact and in law since the evidence showed that there was a probable risk of torture were the complainant to be returned, in violation of article 3 of the Convention. Counsel argues that the application for a stay had to be presented in provisional fashion because she had been given only very short notice of the date of removal, leaving little time to prepare an application in such a complex case. However, the presiding judge at the hearing had refused to hold an interim hearing on the application and instructed the counsels to present their arguments on the merits. This procedure, she says, violated the complainant’s right to proper representation. The judge at first instance had erred in the decision on the stay insofar as he had ignored the evidence of the three PRRAs pointing to probable risk of torture or persecution in the event of return to India. 6.12 Counsel notes that the complainant had been arrested and held for nearly four years on the basis of secret evidence and was never allowed to know the charges or evidence against him. In its recent Charkaoui decision,5 the Supreme Court of Canada had found that the holding of in camera proceedings to consider evidence withheld from the applicant and with no public hearing on the admissibility of that evidence violated the rights to life, liberty and security of person under section 7 of the Canadian Charter of Rights and Freedoms. 6.13 During his four years in detention, the complainant was under constant threat of removal to a country where he risked torture, a situation that was in itself a form of torture and a violation of article 3 of the Convention.6 As certified in the psychologist’s report submitted in 2003, he suffered from serious psychological distress and showed symptoms of insomnia and stress, which made for additional risk in the event of return. 5 6 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9. Counsel cites a report by Physicians for Human Rights entitled “Break them down Systematic use of psychological torture by US forces” (20 May 2005), which defines the use of threats to return someone to a country where torture is practised as a form of torture in itself.