Security Certificates and Law

Now that Canada's Supreme Court has examined the whole "Security Certificate" mechanism and found that it is in violation of basic principles of civil rights, such as due process, it's time to take apart one of the most abusive pieces of law on Canada's books.

I've always argued that in a country like Canada, we have a clear system of due process and law which should take precedence over the fear-mongering paranoia of politicians whose idea of power is nearly authoritarian in nature. A free and democratic society should not need tools as arbitrary as security certificates. If someone has been accused of the kind of criminal activity that warrants detention, then bloody well charge and prosecute them in the open courts. Secretive "you can't see the evidence" processes are abusive, and subject to political manipulation in ways that are simply not acceptable in a civil society.

For those willing to delve into the arcane language of law, the full ruling is already posted here, and it contains some intriguing insights.

From the Chief Justice's commentary (emphasis added):

2 In this case, we are confronted with a statute, the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), that attempts to resolve this tension in the immigration context by allowing the Minister of Citizenship and Immigration (the “Minister”), and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security. The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The question is whether the solution that Parliament has enacted conforms to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.



3 I conclude that the IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary. I find that s. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. Finally, I find that there is no breach of the s. 15 equality right.

This more or less encompasses the fundamental problems that I have expressed (repeatedly) around the subject of detaining people on arbitrary mechanisms like this. I still fundamentally disagree with the whole notion of a secretive process, as it seems to me that it creates serious problems with the transparency and accountability that is essential in the government of an open society.