Canada’s Supreme Court Strikes Down Detention Regime

by Kevin Jon Heller

Canada is so close to the United States — yet sometimes it seems thousands of miles away politically. Exhibit 1: the Supreme Court of Canada has unanimously struck down a controversial security-certificate process used to detain terrorism suspects on the ground that the process violates the right to life, liberty, and security of the person:

The security certificate process is hopelessly flawed and must be redrafted by Parliament to eliminate the extreme secrecy in which hearings to determine the reasonableness of certificates take place, the court said on Friday.

While carefully paying heed to fears of terrorism and the special difficulties of protecting national security, the court said that certain elements of fairness cannot be dispensed with — including the right of a detainee to know the case against them and to make full answer and defence.

“While there is a risk of catastrophic acts of violence, it would be foolhardy to require a lengthy review process before a certificate should be issued,” the court said.

However it said the various forms of review in which a designated lawyer is empowered to act on behalf of detainees could pass constitutional muster.

Writing for a unanimous court, Chief Justice Beverley McLachlin suspended the effects of the ruling for one year to give the Federal Government time to craft a new security certificate process.

However, foreign nationals will benefit immediately from one aspect of the ruling which grants them a bail review within 48 hours of their first being detained — a far shorter period than they must currently wait.

Canada’s security-certificate process, which is part of the inaptly-named Immigration and Refugee Protection Act — has long been criticized by human-rights groups. It’s not difficult to understand why:

The provisions pre-date the Sept. 11, 2001, terrorist attacks, and allow for a non-resident to be designated as a risk to national security, detained indefinitely, and ultimately deported.

The detainees and their counsel are provided with only a vague summary of the allegations against them. Evidence to back up the allegations is given in secret to a judge, and neither the accused nor their lawyer can attend.

The three men behind the Supreme Court challenge – Adil Charkaoui, Mohamed Harkat and Hassan Almrei – had all spent several years behind bars before being released recently under tight conditions of house arrest and their agreement not to communicate with a wide range of individuals.

The conditions of their detention – in a special holding unit nicknamed Guantanamo North – led some of the detainees to resort to desperate tactics such as hunger strikes.

In fact, in at least one respect the security-certificate process was harsher than the detention regime that currently exists in the U.S. Whereas the U.S. government is prohibited from deporting terrorism suspects to countries where they might be tortured — a rule honored only in the breach, to be sure — Canada has no such limitation. Although IRPA affirms the principle of non-refoulement, an exception is made for a suspect who poses a “danger to the security of Canada.”

The most striking aspect of the case, however, has to be the conservative reaction to it. Indignation? Outrage? Calls to impeach the terrorism-loving Justices? Actually, the correct answer is (D), none of the above:

In the House of Commons, Conservative House leader Peter van Loan offered formal thanks to the court for its decision and signalled that the Tories would get to work trying to bring the legislation into accord with the Charter.

“We will be reviewing that decision and seeing if there is a way to — and we are confident we can — reconcile the need to protect the security of Canadians with the directions to Parliament from the court,” Mr. van Loan said.

The text of the decision — my nominee for case of the month! — is available here.

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