Tuesday, February 27, 2007

More Commentary on Supreme Court Security Certificate Ruling

The Osgoode Hall Law School blog The Court has compiled a list of commentary on last week's Supreme Court of Canada ruling that the security certificate process under which the federal government can detain and deport foreign-born terrorist suspects is unconstitutional:
  • Reworking Canadian Immigration Security Detention in Light of Charkaoui et al.: "While the SCC has given some clear recommendations and guidance in terms of the how and when of an acceptable security detention procedure, it has not commented on the where - the actual, carceral space where detention should take place. The Supreme Court, as the current government has been quick to point out, did not rule against the indefinite detention of non-citizens on security grounds ipso facto; rather, it made it clear that any such detention must be subject to prompt, fair, and regular review. Indefinite detention itself does not constitute a s.7 Charter violation, but, without regular review, the uncertainty associated with the process poses the potential for psychological stress, and therefore raises the possibility of cruel and unusual punishment. This suggests that the task before Parliament is to develop a regime where detention is accompanied by a robust review process. In addressing this matter, the issue of where detention takes place - and, as importantly, under whose jurisdiction - will have to be considered."
  • The Charkaoui Decision, International Human Rights, and Canadian National Self-Image: A Blow to "Security Relativism"?: "...[I]n coming to all of the afore-mentioned conclusions, the court took heed of relevant developments in some other lands; firmly placed itself on the side of the more progressive constitutional courts in comparable English-speaking jurisdictions; aligned itself with more humanist practice in this socio-legal sphere; and thus delivered a judgment that ranks 'up there' with cases such as the much celebrated A. v. Secretary of State for the Home Department, [2004] UKHL 56, [2005] 3 All England Reports 169 (the British decision on the illegality of indefinite detention of terrorist suspects); and Zadvydas v. Davis 533 U.S. 678 (2001) (the US Supreme Court decision on a similar question). In terms of the depth of consideration that Charkaoui gave to the practice of some similarly situated jurisdictions, the judgment demonstrates that - much like other branches of the Canadian government - the Supreme Court is keenly aware of Canada's historical place in the world (however constructed that location may seem)(...) However, this pro-human rights conception of Canadian national selfimage was not enough to prod the court in Charkaoui toward a more robust and convincing deployment of internationalist legal norms/discourse (in this case, international human rights law) in order to enrich - and perhaps even re-orient - its reasoning regarding the question of the existence or otherwise of a right of appeal in cases in which a security certificate has been issued against a non-citizen and has been subsequently declared "reasonable" by a federal court judge."
  • Collected commentary on the Charkaoui decision: "The decision of the Supreme Court of Canada last week in the cases of Charkaoui v. Canada (Citizenship and Immigration), Almrei v. Canada (Citizenship and Immigration) and Harkat v. Canada (Citizenship and Immigration), reported online at 2007 SCC 9 has engendered a lot of commentary. We will collect here the links to comments on The Court and elsewhere, updating this information throughout the week as necessary." [I even get two mentions for my earlier posts on the subject...]

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posted by Michel-Adrien at 4:55 pm

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