Friday, February 23, 2007

Security Certificates have NOT been "struck down"

Progressive Bloggers were cheering today that "Guantanamo North" was being shut down, while Blogging Tories lamented that the Supreme Court of Canada was getting into bed with Osama bin Laden, all over a Supreme Court Decision I'm quite certain no one's read.

Whatever side of the ideological divide you are on, I recommend one thing. Don't believe the hype.

To be clear "security certificates" have NOT been struck down. Nor will they go forward unchanged.

Personally, I think it was a very good ruling.

For a good summary of what the Supreme Court ACTUALLY DID today, may I recommend reading this editorial.

As is, sadly, not uncommon, folks on the left and the right were cheering and booing today based on headlines, not facts. Look beyond the surface everyone. The world is a wonderfully complex place.

UPDATE: For those who feel the National Post editorial is nothing but spin, and that security certificates have indeed been struck down, I refer you to the ruling itself. Particularly, the Court's Remedy (C, H, and A are appellants, C and H had been released on conditions prior to the ruling, only A remains in detention - comments not in bold are my editorial additions.):

"The IRPA’s procedure for the judicial approval of certificates is inconsistent with the Charter, and hence of no force or effect (the procedure for judicial approval of the certificates is of no force and effect, the certificates themselves are unmentioned at this point). This declaration is suspended for one year from the date of this judgment (nothing changes for 12 months). 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 (in determining whether the certificate effecting appellant C is reasonable, if the government acts to establish that "reasonableness" within 12 months, they will do so under current IRPA guidelines). 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 (note that these certificates, even after the 12 months, are still in effect. The appellants must APPLY to have them quashed). Likewise, any certificates or detention reviews occurring after the one‑year delay will be subject to the new process devised by Parliament (This is key. Parliament must devise a new process of reviewing the reasonableness of security certificates that will apply to any security certificates issued later than 12 months from now. Note that the court is setting out conditions for the review of future security certificates, something they would NOT do if their intention was to "strike down" the use of security certificates.). Further, s. 84(2), which denies a prompt hearing to foreign nationals by imposing a 120‑day embargo, after confirmation of the certificate, on applications for release, is struck (the Court's ruling suggests, earlier, that the reason for this is that permanent residents are allowed review after just 48 hours, so this shows that the 120 day limit before review for foreign nationals, "does not minimally impair the rights guaranteed by ss. 9 and 10(c)), and s. 83 is modified so as to allow for review of the detention of a foreign national both before and after the certificate has been deemed reasonable (simply allows foreign nationals to have their detention reviewed AFTER it has been determined to be reasonable, as was always the case for permanent residents)".

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