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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Scott Tribe said...

Not true.

The Court has struck down the Certificates in their current format, and given the Government a year to change the certificates to comply with the Charter and the Constitution.

The government has no choice but to comply and change them, and they will need to meet Supreme Court scrutiny.

Lord Kitchener's Own said...

I don't disagree that the government has no choice but to respond and change the administration of security certificates to comply with the court's ruling. That is NOT "striking down" security certificates.

As the National Post Editorial is titled: "security certificates are here to stay".

catnip said...

Well, the NP can speculate all it wants to. They can't state that as a fact.

And I agree with Scott, the security certificates were struck down in their current form. That is a fact.

Dr.Dawg said...

Of course they've been struck down. Any future "security certificate" won't resemble the ones that have just been wiped out.

I wouldn't use the NP as a source. They're trying to minimize the damage, but it's all hype. Now we get due process, full disclosure, representation and cross-examination.

To claim that the result will be the same is fatuous. It's like tearing down a house, building a completely new one, and then saying, "See, it's still a house." Well, yeah. But also no.

Anonymous said...

I've just read somewhere that Harper can use the Notwithstanding Clause to overrule the SCoC. Is this possible?

Canadian Tar Heel said...

Hi LKO et al.

Actually, it seems to me that you're all right, in a crude manner of speaking.

After a quick read of the decision (as I need to read it again more carefully), the SCC has indicated which provisions of the Security Certificate regime infringe Charter rights, and how they may or may not be saved by section 1 of the Charter. The Court undeniably stated that the current Security Certificate regime cannot stand. However, the Court also provides clues as to how the regime might be tweaked so that it can stand in the future.

Thus, the notion of the Security Certificate regime itself has not been struck down, so much as the way it is currently devised (or parts thereof) has been.

Additionally, it's important to note that Parliament can still derogate from the decision under the Charter, meaning that it could keep the system in place, as is, despite this SCC judgment.

Lord Kitchener's Own said...

Those of you who oppose the use of security certificates to detain permanent residents and foreign nationals REALLY need to read the ruling (there's a link in my update to this post). Portions of the Act which detail the review of the "reasonableness" of detentions under a security certificate have been struck, portions have been changed, and portions have been left untouched.

Two quotes from the decision to whet your appetites (emphasis mine):

"any certificates or detention reviews occurring after the one‑year delay will be subject to the new process devised by Parliament" (Ed. if "security certificates" have been "struck down" why is the Court explaining how future security certificates will be reviewed?)

"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". (Ed. So, from now on (well, from 12 months from now on), foreign nationals are eligible to have their detention under security certificates reviewed AFTER the certificate has been ruled reasonable (a process permanent residents held under security certificates already had access to, and continue to enjoy). Again, if "security certificates" have been "struck down" why is the Court allowing foreign nationals held on security certificates to have their detentions reviewed both before and after the security certificates are deemed reasonable? Answer: Because security certificates have not been struck down by the Court.

To Dr. Dawg in particular: This ruling most certainly DOES NOT give us (or rather permanent residents and foreign nationals held on security certificates) "full disclosure, representation and cross-examination" Not REMOTELY. (I'd argue it DOES give due process, but I'd bet if you read the ruling, you'll disagree that people held on security certificates will get what you would consider "due process" in the future). Maybe some of the NP editorial could be described as "hype", or "spin". But I swear to you, the notion that today's ruling gives people held on security certificates now, or in the future "full disclosure, representation and cross-examination" is most definitely hype. And make no mistake that security certificates will still be used to detain foreign nationals, and permanent residents in the future.

If you oppose the use of security certificates, and believe that's been dealt with today you need to read the ruling. You've been misinformed, and need to keep fighting. Trust me. I actually LIKE the ruling. But I sincerely believe many to my left would not, if they read it, and knew what it actually says. I'm pleased today, but I never had a problem with security certificates. If you do, don't believe the line that they've been struck down. The law (and the ruling) is much more complicated than that.

Dr.Dawg said...

Lord: With respect, you're plain wrong on this. The reason that the SCC struck down offending sections of the law was precisely because they prevented a defendant from mounting an effective defence. Any new legislation will have to allow for representation, cross-examination and disclosure of the case against the defendant, or it, too, will fall afoul of the Charter. If this can be done by a system of "special counsel," that may be enough to satisfy the requirements of the Charter. But we'll have to wait and see.

The decision itself reads, in part:

The scheme set up under Division 9 of Part 1 of the IRPA suffers from two defects that are inconsistent with the Charter.

The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes.

The key here is "adequate measures to compensate." I'll be interested in seeing what those might be.