JURIST Guest Columnist Kent Roach of the University Toronto Faculty of Law says the Supreme Court of Canada's ruling that security certificates for the indefinite detention of foreign terror suspects are unconstitutional may help propel new Canadian anti-terror legislation, although the travails of that for Canada's minority Conservative government may be greater than those encountered in other Commonwealth jurisdictions such as the UK and Australia…

In a landmark and unanimous ruling, the Supreme Court of Canada has declared immigration law security certificates used to detain suspected terrorists to be fundamentally unfair and unconstitutional.

The Court, however, did not order the immediate release of six men presently subject to security certificates in Canada. It gave the Parliament of Canada 12 months to fix the legislation, likely through the use of British-style security-cleared special advocates who could challenge secret intelligence presented to the court to justify the detention and deportation of non-citizens. The Court did not exempt the three cases before them from this grace period.

The Court’s decision recognized the fundamental unfairness of not being allowed to meet a case one does not know. Although recognizing the need to keep intelligence confidential and Canada’s reliance on foreign intelligence, it stressed the importance of allowing adversarial challenge to the evidence that the government presents against suspected terrorists.

It also held that the denial of judicial review to foreign nationals (ie non permanent residents) until 120 days after their security certificate was upheld as reasonable – a process that can take years – constituted arbitrary detention and an unjustified denial of habeas corpus. This part of the ruling has immediate effect, as opposed to the Court’s decision that Parliament has one year to provide for some form of adversarial challenge in the process.

Although holding that the specialized Federal Court that reviews security certificates remained an independent court, Chief Justice Beverley McLachlin expressed skepticism about its ability to decide cases fairly in the absence of full adversarial argument. She stated:

There are two types of judicial systems, and they ensure that the full case is placed before the judge in two different ways. In inquisitorial systems, as in Continental Europe, the judge takes charge of the gathering of evidence in an independent and impartial way. By contrast, an adversarial system, which is the norm in Canada, relies on the parties — who are entitled to disclosure of the case to meet, and to full participation in open proceedings — to produce the relevant evidence. The designated judge under the IRPA does not possess the full and independent powers to gather evidence that exist in the inquisitorial process. At the same time, the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged — perhaps unknowingly — to make the required decision based on only part of the relevant evidence. As Hugessen J. has noted, the adversarial system provides “the real warranty that the outcome of what we do is going to be fair and just” (p. 384); without it, the judge may feel “a little bit like a fig leaf” (Proceedings of the March 2002 Conference, at p. 385).

The Court rejected arguments that the security certificate regime constituted only a three wall prison given the risk of torture that the men may face if they returned to their countries of birth. It also approved of the decisions of Federal Court judges to release some of the men under controls and held that judges should continue to review the detentions in light of the reasons for the detention, the length of the detention, reasons for delay in deportation, anticipated future length of detention and alternatives to detention.

In examining less drastic alternatives, the Court noted that Canada’s public inquiry on the activities of Canadian officials in relation to Maher Arar used and recommended that security-cleared special advocates be available where the directly affected parties were excluded from hearing classified information. It also looked at a previous practice used in Canada where independent counsel representing a review agency for Canada’s security intelligence agency were able to challenge classified intelligence introduced in support of a security certificate and the process used in the Air India terrorism trial in which classified information was disclosed to defence counsel on initial undertakings that it not be disclosed to their client. The Court concluded that all of these procedures provided more adversarial challenge than the present system. No adequate justification had been provided about why they were excluded from the present immigration regime.

The Court’s decision is largely compatible with recommendations made a day earlier by a special committee of Canada’s unelected Senate. That committee had recommended that security cleared special advocates be available in all security cases where the government sought to make ex parte representations to a court. It also recommended increased judicial review of security certificates and that appeals be allowed. The Senate Committee also recommended legislative abolition of the Supreme Court’s controversial holding in Suresh v. Canada that deportation to a substantial risk of torture might be constitutional in undefined “exceptional circumstances”. The Supreme Court declined to revisit this issue in its case striking down the security certificate decisions on procedural grounds. The Court will, however, likely have to revisit the issue given the government’s decision to seek to deport some of the men to Egypt and Syria.

The Court also did not deal with the reliability and accuracy of the intelligence used in security certificate cases despite the recent findings of the Arar Commission about the use of unreliable intelligence and the Senate Committee’s recommendation that judge reviewing security certificates only received evidence that is “reliable and appropriate.”

Although it noted criticisms of the British special advocate system that severely restricted the ability of the special advocate to consult the affected person after having received classified information, the Court did not mandate that such consultation should occur, even though it did occur in the Arar Commission and was recommended by the Senate Special Committee.

The Canadian Court’s decision is in some respects less bold than the House of Lords 2004 Belmarsh decision. The Canadian Court declined to hold that indeterminate detention under security certificates was unconstitutional cruel and unusual punishment provided that appropriate procedural review of detention decisions was available. The Court tried to distinguish the Canadian from the British legislation on the basis that the former does not authorize indefinite detention. At the same time, the Canadian legislation places no limits on detention pending deportation and in
some of the men have been detained over 6 years under the security certificate regime because reviewing judges still believe their release to be a danger to national security.

The Canadian Court also did not find that long term detention of terrorist suspects under immigration law constituted discrimination against non-citizens given that the terrorist threats is not limited to non-citizens. The Court ruled that the Canadian Charter itself contemplated differential treatment of citizens and non-citizens with respect to deportation.

The ball is now in Parliament’s court. The Court’s decision comes a week before what many anticipate will be a failure of the minority Conservative government to renew two of the most controversial provisions of the 2001 Anti-Terrorism Act, preventive arrests and investigative hearing, from a sun-setting provision. The end result may be new security legislation, but the Canada government may find it more difficult to legislate than their counterparts in the United Kingdom and Australia who have majorities in their legislatures.

Kent Roach is the Prichard-Wilson Chair in Law and Public Policy at the University of Toronto and the author of September 11: Consequences for Canada (McGill Queens Press, 2003) and co-editor of Global Anti-Terrorism Law and Policy (Cambridge University Press, 2005)
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