Saturday, February 24, 2007

Security Certificates - Supreme Court of Canada - Decisions - Charkaoui v. Canada (Citizenship and Immigration)

On Friday, the Supreme Court of Canada released the most significant and powerful judgment from a Commonwealth country since September 11, 2001. The rippling effects of these pronouncements by our highest Court will be felt worldwide and is perhaps indicative of a changing zeitgeist: one of disillusionment and dismay with the "War on Terror"; one that is quickly experiencing a renaissance of freedom, liberty, and democracy; one where we have hopefully come to appreciate something that one of the founders of democracy once wrote:

"Those that would give up essential liberty in pursuit of a little temporary security deserve neither liberty nor security." - Benjamin Franklin

An excerpt from the judgement reads:

One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.


The realities that confront modern governments faced with the challenge of terrorism are stark. In the interest of security, it may be necessary to detain persons deemed to pose a threat. At the same time, security concerns may preclude disclosure of the evidence on which the detention is based. But these tensions are not new. As we shall see, Canada has already devised processes that go further in preserving s. 7 rights while protecting sensitive information; until recently, one of these solutions was applicable in the security certificate context. Nor are these tensions unique to Canada: in the specific context of anti-terrorism legislation, the United Kingdom uses special counsel to provide a measure of protection to the detained person’s interests, while preserving the confidentiality of information that must be kept secret. These alternatives suggest that the IRPA regime, which places on the judge the entire burden of protecting the person’s interest, does not minimally impair the rights of non-citizens, and hence cannot be saved under s. 1 of the Charter.

Source: Supreme Court of Canada - Decisions - Charkaoui v. Canada (Citizenship and Immigration)

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