Supreme Court Ruling on Security Certificates

As most readers of legal news know by now, the Supreme Court of Canada unanimously ruled yesterday that the security certificate process under which the federal government can detain and deport foreign-born terrorist suspects is unconstitutional.

The full text of the ruling is on the Lexum University of Montreal website.

Under the system, the individuals affected by the certificates as well as their legal counsel cannot see the national security evidence used by the Crown.

There is commentary and reaction from a variety of sources:

• Security-law ruling puts Parliament on notice - Ottawa forced to scramble after top court overturns controversial detention measures (Globe and Mail): "Alex Neve, Canadian director of Amnesty International, said the decision will reverberate through legislatures and courtrooms around the world, and provide a model for other countries attempting to deal with security at a time of increased international terrorism."
• Top court strikes down key anti-terror measure (CanWest News Service): "Other anti-terrorism measures that became law in the emotional months following the Sept. 11, 2001 terrorist attacks in the United States have also been under attack in recent months. Two key elements of the Anti-Terrorism Act - investigative hearings and preventive arrests - are due to expire next month unless renewed by Parliament and the government is struggling to save them from defeat."
• Supreme Court puts rights first (Toronto Star editorial): "Has Canada's Supreme Court suddenly thrown open the country's doors to Al Qaeda and its ilk, by ruling yesterday that Ottawa's procedures for dealing with terror suspects are unlawful? That's what some commentators might want Canadians to believe, but it is hardly the truth (...) This is not a 'soft on terror' decision by a weak-kneed bench. Rather, it is a principled demand by a vigilant and respected court that the 25-year-old Charter of Rights and Freedoms not be shoved aside as we fight terror. Five years after the panic of the 9/11 terror attacks on the U.S. swept Parliament, it reaffirms a healthier balance between national security and basic liberties. There will be no Guantanamo detention centre here."
• Possible et nécessaire (Le Devoir editorial): "La Cour suprême, en parlant d'une seule voix sur la constitutionnalité des certificats de sécurité, a rappelé hier que sécurité et droits fondamentaux peuvent être conciliés. Un rappel qui tombe à point, au moment où les libéraux se divisent et où le gouvernement conservateur use de bas arguments en matière de lutte contre le terrorisme (...) Les juges sont trop polis pour s'exprimer ainsi, mais, à la lecture de leur décision, on a en fait l'impression qu'ils nous disent collectivement de respirer par le nez. Préserver la sécurité est essentiel, mais le faire dans le respect de nos valeurs est réaliste, possible et impératif. [In speaking with a single voice on the constitutionality of the security certificates, the Supreme Court reminded us yesterday that security and fundamental rights can be reconciled. This is a welcome reminder, at a time when Liberals are divided and the Conservative government is using low arguments in the fight against terrorism... The judges are too polite to say so, but reading their decision, one has the impression they are telling all of us to take a deep breath. Preserving security is essential, but doing so while respecting our values is realistic, possible and imperative]"
• Charkaoui: Beyond Anti-Terrorism: Procedural Fairness and Section 7 of the Charter (The Court, Osgoode Hall Law School): "Today, the Government's honeymoon before the Supreme Court in anti-terrorism cases came to an end. For those who followed these cases as they made their way before the Court the result is not entirely surprising. At the hearing, the judges aggressively challenged the Government lawyers on the fairness of holding individuals for potentially indefinite periods without providing the detainee, or a lawyer acting on his or her behalf, with an opportunity to review and respond to the actual evidence (...) The Court also pointed out something that has too often been forgotten by many Western Democracies in the post-911 world. Simply because the state's interest happens to be national security does not mean that long established principles of fair process should automatically be suspended..."
• CBA Welcomes Supreme Court of Canada Decision on Charkaoui (Canadian Bar Association): "The CBA argued that special counsel – who would review secret evidence and advocate on behalf of a detained person – would be an appropriate alternative. The court agreed with this argument. The CBA also advocated that Canada learn from the U.K. experience, and permit ongoing contact between the detained person and the special counsel after review of the secret evidence."

In its ruling, the Supreme Court justices did indeed propose that the government look into something like the "special advocate" system used abroad, in particular in the UK.