Security Certificates

[August1991]

Security certificates are a bureaucratic patch to a gaping problem in Canadian immigration law. We allow into the country people who we shouldn't allow in, but we can't deport them either. And furthermore, we can't charge them with anything because the evidence against them was obtained in a way that makes it inadmissible in a court.

So, what do we do?

We create a new bureaucratic document, allow a minister to issue it under judicial review - sort of.

In some ways, this returns the Canadian government back to a pre-Renaissance, pre-Enlightenment, pre-French Revolution pre-Whatever Royal Autocracy. Think Henry, English or French. In other ways, we are dealing with pre-Whatever thinking in this fanatical Muslim terrorist threat. Maybe we should fight fire with fire. Dunno.

I do know that a Constitution in a civilized regime should primarily restrict a government's actions, and in particular the Government's actions against the individual. I'm very curious to see how our Supreme Court rules on this case.

Our Charter of Rights gives the Court an out, if it wants to take it:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It also has this:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

"Free and democratic society" and "Principles of fundamental justice" are terms open to interpretation. And since this Court seems to like post-modern free association, God knows what direction they'll take. For those interested, here's the Charter.

I usually dislike making comparisons to the US but here's an instance where I will, in part because the US Bill of Rights is an enviable standard. (The Bill of Rights is rightly all about protecting a minority individual against the collective majority.)

No person shall ... be deprived of life, liberty, or property, without due process of law...

But the US Court has an out too (with much less wiggle room):

...except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger...

US Constitution

Despite the wiggle room, I expect that a US Supreme Court will eventually strike down the Patriot Act. If our Supreme Court strikes down Security Certificates, I'll bet it will be in a fit of pique for a Conservative government - certainly not out of any clear principle.

[geoffrey]

I don't think our constitution/charter of rights needs to apply to non-Canadians, which is all the security certificates apply to.

I'd argue the "Everyone" in "Everyone has the right to..." applies to citizens and members of society, not non-citizen immigrants.

[Argus]

Despite the wiggle room, I expect that a US Supreme Court will eventually strike down the Patriot Act. If our Supreme Court strikes down Security Certificates, I'll bet it will be in a fit of pique for a Conservative government - certainly not out of any clear principle.

If I was Harper I would be prepared to reintroduce the same legislation so that five minutes after the SC shot it down he would be standing in the House, reintroducing it with the notwithstanding clause, deeply regretting the lack of interest the SC has shown of the reality of the danger to Canada and its citizens, and talking about the difference between his government, which has to act to protect Canadians, and pie-in-the-sky ivory tower intellectual arguments about the sanctity of the individual, especially a foreigner.

IMHO foreigners should get only the rights we decide to give them. And we should be able to boot them out of Canada at any time for any reason without appeal.

[Charles Anthony]

I would be prepared to reintroduce the same legislation

What is wrong with "due process"?

I prefer due process for every human being in Canada regardless of citizenship.

[Leafless]

[i don't think our constitution/charter of rights needs to apply to non-Canadians, which is all the security certificates apply to.]

[i'd argue the "Everyone" in "Everyone has the right to..." applies to citizens and members of society, not non-citizen immigrants.]

IMO the Charter of Rights and Freedoms applied at the federal level gurantees the interpretation of to many rights and is cumbersome to applying the law of the land aspecially in cases such as this one.

This particular issue is extremely serious and with the kind of evidence secured so far these 'suspects' should be kicked out of the country.

If their lawyers are successful and if I read this right the 'suspects' can actually apply for permanent residence.

This is part of (PRRA) Pre-removal risk assesment, part of security certificates.

WHAT HAPPENS WHEN AN APPLICATION …

… is approved?

Most people who are found to be at risk may apply for permanent residence. If an individual is inadmissible for reasons of security, serious criminality, involvement in organized crime, or violation of human or international rights, or was denied access to the refugee determination process, a positive determination will result in a temporary stay of removal.

… is rejected?

People who receive a negative decision must leave Canada as required by the removal order they were issued. CIC will make removal arrangements.

http://www.cic.gc.ca/english/irpa/fs-risk.html

http://www.cbsa-asfc.gc.ca/newsroom/factsh...rtificat-e.html

[gc1765]

I don't think our constitution/charter of rights needs to apply to non-Canadians, which is all the security certificates apply to.

I'd argue the "Everyone" in "Everyone has the right to..." applies to citizens and members of society, not non-citizen immigrants.

Next to section 1, the Charter says: "Rights and freedoms in Canada", but nothing about having to be a Canadian citizen, even though it specifically says that every citizen has the right to vote etc... Some sections specifically mention Canadian citizens, while others say Everyone. So that would imply that Everyone in Canada, regardless of citizenship, has those rights.

[August1991]

I don't think our constitution/charter of rights needs to apply to non-Canadians, which is all the security certificates apply to.

I'd argue the "Everyone" in "Everyone has the right to..." applies to citizens and members of society, not non-citizen immigrants.

Everyone means everyone, regardless of their status in Canada. gc is right.

This is the reason our refugee determination system is a BS nightmare: A foreigner who applies as a refugee on Canadian soil is protected by the Charter but the same foreigner who applies abroad is SOL. (Pardon, as my father would say, my French.)

----

I tend to agree with Argus. If the Charter is to have any meaning, and the Supreme Court to have any substance, then the Court will have to strike down these certificates.

If the Court allows these certificates based on a X, Y, Z "democratic, free, blah-blah" split decision whatever reason, then it basically means the Charter is meaningless. As before 1982, established convention protects minority rights. The Charter only throws in the changeable, uncertainty of flavour of the month.

Argus also raises an interesting scenario. Use of the notwithstanding clause. It'd be legal.

[Argus]

I would be prepared to reintroduce the same legislation

What is wrong with "due process"?

It's designed by lawyers, takes years, and costs a fortune.

I prefer due process for every human being in Canada regardless of citizenship.

I prefer not to spend my money hiring greasy lawyers for illegal immigrants to fight their deportation.

[Rue]

I don't think our constitution/charter of rights needs to apply to non-Canadians, which is all the security certificates apply to.

I'd argue the "Everyone" in "Everyone has the right to..." applies to citizens and members of society, not non-citizen immigrants.

Well a refugee determination decision went all the way to the Supreme Court of Canada which stated the Charter of Rights applies to anyone who steps foot on Canadian soil so the distinction between Canadian citizen and non citizen when it comes to guaranteeing full rights was eradicated by that decision.

[Rue]

August, it will be very interesting to see if someone does challenge the Patriot Act in the US. It does appear to raise fundamental constitutional issues that could create a challenge but I would imagine such a challenge could take years.

In Canada since non citizens have totally the same rights as Canadian citizens due to a Supreme Court of Canada decision on a refugee determination, it is possible one could try challenge the grounds for a security writ and of course use the Charter as the basis for arguement and I would imagine this would be an in camera hearing not open to the public.

Immigration law however is not my area so I defer to anyone out there with more expertise.

I think what suprised me with the Patriot Act was just how unconstitutional it was and how it in effect rewrites the constitution of the US and barely a peep was heard.

In Canada, we have not tended to be a society that has worried about the erosion of civil rights-our focus on constitutional concerns seems to be about language or provincial government rights not freedom of expression. It wasn't that long ago the vast majority of Canadians supported a supposed left wing pinko Trudea in implementing the War Measures Act which was no different then the state of siege legislations promulgated in so many South American regimes we thought we were "better than".

[Leafless]

Rue

You wrote:

"It wasn't that long ago the vast majority of Canadians supported a supposed left wing pinko Trudea in implementing the War Measures Act which was no different then the state of siege legislations promulgated in so many South American regimes we thought we were "better than"."

I support the 'War measures Act to-day' not the 'Emergency Act' and am no fan of Mr. Trudeau.

I would hate to see the confusion in Canada to-day if Canada was rocked by some sort of terrorist attack with everone protected by some 'right' making it virtually impossible to launch a government counter offensive without the government being held responsible for hurting someone's pinko left wing feelings.

[betsy]

Security Certificates had been around since the late 70's, and had been used very rarely. Liberal Anne Mclellan said she knows only of 6 cases where -in the certificates were used, and they were special cases.

It is used only for non-citizens of Canada.

It's been explained that at anytime, the "detainee" is free to abandon his appeal and leave Canada.

[mcqueen625]

Security certificates are a bureaucratic patch to a gaping problem in Canadian immigration law. We allow into the country people who we shouldn't allow in, but we can't deport them either. And furthermore, we can't charge them with anything because the evidence against them was obtained in a way that makes it inadmissible in a court.

So, what do we do?

We create a new bureaucratic document, allow a minister to issue it under judicial review - sort of.

In some ways, this returns the Canadian government back to a pre-Renaissance, pre-Enlightenment, pre-French Revolution pre-Whatever Royal Autocracy. Think Henry, English or French. In other ways, we are dealing with pre-Whatever thinking in this fanatical Muslim terrorist threat. Maybe we should fight fire with fire. Dunno.

I do know that a Constitution in a civilized regime should primarily restrict a government's actions, and in particular the Government's actions against the individual. I'm very curious to see how our Supreme Court rules on this case.

Our Charter of Rights gives the Court an out, if it wants to take it:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It also has this:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

"Free and democratic society" and "Principles of fundamental justice" are terms open to interpretation. And since this Court seems to like post-modern free association, God knows what direction they'll take. For those interested, here's the Charter.

I usually dislike making comparisons to the US but here's an instance where I will, in part because the US Bill of Rights is an enviable standard. (The Bill of Rights is rightly all about protecting a minority individual against the collective majority.)

No person shall ... be deprived of life, liberty, or property, without due process of law...

But the US Court has an out too (with much less wiggle room):

...except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger...

US Constitution

Despite the wiggle room, I expect that a US Supreme Court will eventually strike down the Patriot Act. If our Supreme Court strikes down Security Certificates, I'll bet it will be in a fit of pique for a Conservative government - certainly not out of any clear principle.

I have absolutely no faith in those morons taking up space in the Supreme Court. I think that rather than thme being appointed they should be elected to specific terms of office. Right now the only criteria is that they be lawyers (liars) and that they belong to the Party in power. They are nothing more than political hacks who who where their pay-cheques come from, and they will follow the agenda of the government that appointed them to serve. Our elected officials have no right adbicating their responsibility to an appointed, undemocartic bunch of individuals. When you have the Prime Minister saying that as far as he is concerned the Supreme Court is the final word in this country, that is wrong, wrong, wrong. It smacks of dictatorship, and government without representation.

[Charles Anthony]

These guys are now dying on a hunger strike. Would it be civilized to ignore these guys and let them starve themselves to death?

It appears increasingly that the denial of medical care is part of an overall pattern of arbitrary decisionmaking that contributes to a punitive atmosphere against men who have not been charged with anything and who have never behaved in a manner requiring discipline or punishment within the prison system. For example, during Eid celebrations last week, the family of Mr. Jaballah came to visit, and he was allowed to walk to the next building unescorted. However, when he asked to see a doctor in the very same building, he was told he could NOT walk to the same building unescorted. When Mr. Jaballah asked that a supervisor be present if he was escorted by a guard, the request was declined. Mr. Jaballah was forced to stay in the living unit.

---SNIP---

We have been very patient and done our best to deal with a process where it is impossible to defend yourself. And we will remain patient, because we know that ultimately, we will be let out, because we are innocent men.

---SNIP---

Our demands are very simple.

There must be a supervisor to be present with us when we move anywhere within the facility. In particular, this is important if we move from the living unit to the next building or to the Millhaven building for health care. Without a supervisor present, the possibility remains of a guard making a false accusation against us. As we have seen too often here, when it comes down to our word against a guard's, the staff will side with the guards.

Homes Not Bombs

Their list goes on but they are not asking for much.