Prime Time Crime

(Prime Time Crime exclusive Feb. 26, 2007)

‘Victory’ is a Subjective Concept - Security Certificate Ruling

By Scott Newark



Amidst the self serving commentary  following the recent Supreme Court ruling on security certificates, I can't help but wonder if those proclaiming 'victory' have actually read the decision. A review of the decision demonstrates that the current system remains very much validated and in place which, is unfortunate because, 'human rights' aside, it clearly isn't working. 

The Court upheld the validity of the entire specialized security certificate issuing process including arrest and detention. It validated the withholding of information to detainees on the basis of national security. It rejected claims of unconstitutionality on the basis of extended or uncertain detention or restrictive release and it rightly affirmed that, as the Charter itself notes in s. 6, non citizens do not have a Charter right to enter or remain in Canada. Finally, the Court accepted the notion that the rule of law permits restricted rights of appeals and presumptive detention in a security immigration context.

Let's put it this way, while taxpayer funded defence counsel retired to celebrate their 'victory' with lobster bisque and a glass of Chablis, their clients hooked back up their tracking device or went back to their cell.

What the decision does do is eliminate an unnecessary bail eligibility distinction between foreign nationals and permanent residents. The Chief Justice displays a subtle sense of humour here by reminding the Crown that the original purpose of the distinction was the expectation that this new process would result in expedited removals which, of course, it hasn't. If the courts are looking for an explanation for that anomaly, by the way, they only need to look in the mirror.

The essence of the decision however is that the Court has concluded that there is a better way to try and reconcile the competing principles of withholding information from a person for national security or source protections reasons and the cornerstone right of a person to know the case against them. As the judgement explicitly states; there is no 'perfect' answer but the Court has decided that the current process of requiring judges to be informed and ask the tough questions is not as good as having specialized counsel do so.

Make no mistake, the Court agrees that these new 'special counsel' will not be permitted to disclose the sensitive information to the detainee and they must be security cleared by the Government

Adding an additional player to the process takes a scrutinizing task away from judges that some were clearly uncomfortable performing. The judgement actually quotes judges in public speeches saying just that which has got to be a first. Thus, while the ‘new’ process (which is actually the ‘old’ process used previously when the Security Intelligence Review Committee was involved) gets judges off the hook for this high profile work, there is no guarantee that it will result in enhanced scrutiny and it may well cause more problems than it solves. This is what the Court has mandated, however, and if the Crown continues to want to rely on evidence not disclosed to the non citizen, this is the procedure that Parliament must now enact.

Unlike the thankfully previous Tony Lamer court, this judgement does not make the new law, rather it defers to Parliament to do so and responsibly extends the application of the current law for sufficient time for that to occur. One hopes M. Dion has taken notice that this is how responsible authority is exercized when the vote on temporarily extending the preventive provisions of the Anti Terrorism Act is finally before Parliament.

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