Friday, February 23, 2007

SCC Strikes Down Security Certificates

I have not had the chance to review the full decision, but the Supreme Court of Canada in a 9-0 decision has in a struck down detentions of non-citizens under security certificates as a violation of the Charter. This does not mean the immediate release of the three non-citizens currently held under the said certificates, as the SCC has suspended the decison for a year. The court concludes:

The scheme set up under Division 9 of Part 1 of the IRPA suffers from two defects that are inconsistent with the Charter.

139 The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes. It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on the person’s rights. It follows that the IRPA’s procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter. I would declare the procedure to be inconsistent with the Charter, and hence of no force or effect.

140 However, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui’s certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the “reasonable” status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.

141 The second defect is found in s. 84(2) of the IRPA, which denies a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release. Counsel for the ministers submitted in oral argument that if this Court were to find that s. 84(2) violates the Charter, the appropriate remedy would be to strike s. 84(2) and read foreign nationals into s. 83. This is a good first step, but it does not provide a complete solution, since s. 83 deals with detention review only until the certificate has been determined to be reasonable, whereas s. 84(2) deals with detention review after it has been determined to be reasonable. Striking s. 84(2) would therefore leave no provision for review of detention of foreign nationals once the certificate has been deemed reasonable.

142 Accordingly, I conclude that the appropriate remedy is to strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike the words “until a determination is made under subsection 80(1)” from s. 83(2).

(Cross post Little Tobacco)

1 Comment:

Anonymous said...

Lemme get somethin' straight wit' youse guys. Da judge has spoken. Persons suspected of committing heinous crimes (gangbangers to you and me) have the right to not be deported by the government wit'out due process. You don't have the right to refuse to support them and their families wit' your tax money, and nobody needs to follow no due process in order to deprive you of dis right. You also do not have the right to refuse to pay the salaries of the SCC.