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Supreme Court strikes down security certificates

This just in – The Supreme Court has ruled unanimously 9-0 to that the security certificates used to detain and deport suspected terrorists violates the Charter of Rights and is unconstitutional. They have however, given the federal government a year to re-write the law to comply with the Charter and the Constitution.

First impression: A big win for Alexandre Trudeau, (the Trudeau not in the news this week) who has long publicly opposed these.

Second Impression: Though it is not exactly related to the sunset clause brouhaha going on in the Commons, it does I think give extra moral legitimacy for the Liberals (and NDP and BQ) who argue that the clauses aren’t needed.

Prediction: The Conservative supporters will try to use this as another example of “liberal bias” on the High Court to justify Harper stacking the judicial councils in order to get “their type” of judges in higher courts.

Final Impression: This is a big win for maintaining and guarding civil liberties in Canada. Bravo to the Supreme Court.

UPDATE: I dont agree with much of what Phantom Observer writes, but I commend him for a very sensible piece in his reaction to the ruling. Honestly, I dont see how those who consider themselves libertarians can’t applaud this ruling.


9 comments to Supreme Court strikes down security certificates

  • I am surprised there aren’t more libertarians within the Conservative Party. It seems the party really isn’t about smaller government, but simply shifting government resources from one area to another. I have strong libertarian leanings, although I did vote Liberal last election and plan to next election, however I will be voting PC provincially and did in 2000, and I think this ruling is a great ruling. If anything national security has been the most common excuse to restrict civil liberties and increase the size of government so those worried about bigger government should definitely applaud this ruling.

  • Lord Kitchener's Own

    Scott, please read the decision. I’m not trying to “justify my position” I’m honestly trying to explain to people that security certificates have NOT been struck down. If it gives me any more credibility (which it probably won’t) I actually LIKE that they haven’t been struck down. What I don’t like is the idea that people who do oppose the detention of foreign nationals and permanent residents on security certificates are being led to believe the Court has struck security certificates down.

    Let me see if this helps.

    The first and most important sentence of the Courts Remedy (in the sense that it comes closest to “striking down” security certificates, and it kinda sounds like it does) is this:

    “The IRPA’s procedure for the judicial approval of certificates is inconsistent with the Charter, and hence of no force or effect.”

    Read that carefully. It’s as close as it gets as far as I can see.

    Since people are used to warrants, which are issued by judges, when they hear “the procedure for the judicial review of certificates is unconstitutional” they think “the procedure for detaining people under security certificates is unconstitutional”. Then they write in the newspaper that “the procedure for detaining people under security certificates has been stuck down”. That’s not it. Judicial review of security certificates occurs AFTER the security certificate is issued, and the suspect detained, not before. That’s crucial. It’s the whole point of security certificates. Striking down the procedure for the judicial review of security certificates does not affect the issuance and enforcement of security certificates, and the detention of foreign nationals and permanent residents under security certificates (well, it affects their detention, in the sense that it changes the way in which that detention is later reviewed by the courts, but it doesn’t affect the INITIAL detention – and I also don’t think you’d like the latitude the Court has left for the kinds of changes to the review process that would pass constitutional muster).

    The SCC has not given the government a year to “re-write the certificates”. They’ve given the government a year to re-write the procedure for the judicial review of security certificates (which occurs AFTER the certificates are issued, and suspects detained). Trust me. I may not be a lawyer, so I admit I could be wrong, but I can read. To convince me I’m wrong you’ll have to cite the decision, not an article ABOUT the decision.

    I hope before I give up (’cause frankly, I LIKE the ruling) that someone to the left of me politically realizes I’ve got it right here. If you don’t like security certificates, you’ve got to keep fighting. I’m not some Blogging Tory trying to dismiss what the Court has done. I’m a moderate liberal trying to tell people to my left that they shouldn’t be satisfied (even though I am).

  • You’re really trying to justify your position LKO. The fact of the matter is.. I’ve said in my piece that the SC has given the government a year to re-write the certificates to comply to the Charter and Constitution.. so I’m not really sure why you’re thinking I and others are wrong in stating its been “struck down”. Of course it has – its been struck down in its present form.

  • Lord Kitchener's Own

    Hi Scott,

    I really think, if you have the time, you should read the decision itself. LINK

    I honestly think that the characterization that “security certificates have been struck down” gives a false impression of what the Court has done, and while I’m pleased by the Court’s decision myself, I know that many people (yourself?) dislike the notion of permanent residents and foreign nationals being detained on security certificates signed by the Minister, and this notion that this practice has been “struck down” may lead them (you?) to be shocked as security certificates continue to be issued, and detentions enforced (though under new rules of judicial review which I think can satisfy the Court’s ruling without REMOTELY satisfying opponents of security certificates, which are still allowed).

    A couple of quotes from the Court’s decision to whet your appetite (C, H, and A are appellants, C and H had been released on conditions prior to the ruling, only A remains in detention) – all emphasis mine:

    “The IRPA’s procedure for the judicial approval of certificates is inconsistent with the Charter, and hence of no force or effect. This declaration is suspended for one year from the date of this judgment. If the government chooses to have the reasonableness of C’s certificate determined during the one?year suspension period, the existing process under the IRPA will apply. After that period, H and A’s certificates will lose their ‘reasonable’ status and it will be open to them to apply to have the certificates quashed. Likewise, any certificates or detention reviews occurring after the one?year delay will be subject to the new process devised by Parliament”.

    Of note: All three security certificates remain valid, and of full effect for 12 months, under the old process. C’s certificate is even to be REVIEWED under the old process, if the government does this within the next 12 months. I believe that this is because C is a permanent resident, not a foreign national (A and H are foreign nationals). Many of the provisions for detentions of permanent residents under security certificates were left unchanged by the ruling, while similar provisions for detentions of foreign nationals under security certificates were changed or struck down, because they were deemed too onerous (for example, under the current system permanent residents got review of their detention after 48 hours, while foreign nationals had to wait 120 days – which the Court ruled was an unreasonable difference, though without striking down or amending the 48 hour rule for permanent residents). Also, even after 12 months, H and A’s certificates are not quashed, or even automatically reviewed. It is simply open to them to APPLY to have the certificates quashed. Finally, the Court explicitly states that security certificates issued after the 12 month delay will be subject to the new review process enacted by Parliament. If “security certificates” themselves had been “struck down” it would be strange indeed for the Court to mandate how future security certificates will be reviewed for “reasonableness”.

    If you’re opposed to the concept of security certificates, you really should read the ruling. Nothing in the ruling gets rid of the use of security certificates to detain permanent residents or foreign nationals on national security grounds. What will change is how the “reasonableness” of those detentions are reviewed, and the Court’s ruling suggests that changes to that review process could pass constitutional muster without remotely (I think) satisfying opponents of security certificates.

  • Scott–

    OT (sort of), but…..

    You may want to check out the latest at my place.

    I have, apparently, heard from Kim Bolan, the author of the original Bains/Saini connection piece in the Vancouver Sun.


  • Come now… if Dion and company had come out prior to this and stated they’d changed their views on the Security Certificates, Harper and his thugs (actually.. scrap that, Harper has been THE thug) would have bene all over the Liberals with their “soft on terror” theme. The fact the SC has ruled against them effectively mutes that.. and it gives the Liberals and the other parties the moral upper hand on the sunset clauses, regardless of what the Supreme Court said 3 years ago.

    The argument is that the police dont need these draconian tools to effectively fight terror.. yet Harper tries to use the George Bush/Karl Rove/Republican smear tactic of being “soft on terror” or “you’re helping the terrorists win” nonsense.

    This specific ruling is a victory for civil liberties and human rights and justice.. and I believe the same to be true when the Sunset clauses are voted out of existence.. and I predict Harper’s screaming about Liberals being soft on terror and hating the police and smearing a Liberal MP and his family will eventually come back to bite him.

  • wilson61

    The government was given 1 year to make the law Charter acceptable, the House needs to roll up their sleeves to do that. It’s not about any one party, it’s about the laws of Canada.

    If the ATA clauses passed the Charter test, why is Dion forcing his MPs to vote against the extension?

    It’s a non-partisan question Scott.
    If a ruling hadn’t already come down, I’d have to give this one to you; but it’s not the case.

    Libs should seriously be discussing this behind closed doors.

  • You’re pretty good at Conservative spin, Wilson.. I’ll give you that.

    So tell me.. is Harper going to stand up in the House and accuse the SC of being soft on terror as well?

  • wilson61

    SCoC already ruled, in 2004, that the clauses WERE constitutional, NOT an infringement on citizens Charter rights.

    This ruling on certificates magnifies the point that Dion is WRONG to force Libs to vote nay on the 3 year extension.

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