An Ounce of Cure for a Pound of Preventive Detention: Security Certificates and the Charter

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Security Certificate Process, Immigration and Refugee Protection Act (IRPA), Canada, Charkaoui v Canada, Supreme Court of Canada, Charter of Rights and Freedoms, Section 15, Equality Rights


The security certificate process set out in Canada's Immigration and Refugee Protection Act (IRPA) authorizes the government to hold suspected terrorists in preventive detention during deportation proceedings. In Charkaoui v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada held that those provisions violated the Charter on procedural grounds, but did not comment on their impact on the substantive and equality rights guaranteed by the Charter. The author criticizes the Courts approach in Charkaoui, arguing that the security certificate process violates the liberty rights protected by sections 7 and 9 of the Charter and the equality rights guaranteed by section 15(1). The author begins by discussing the presumption of innocence as a principle of fundamental justice that governs the use of preventive detention in the criminal context. He argues that the presumption of innocence should also apply in the immigration law context - not when admission to or expulsion from Canada is at issue, but when liberty is at stake, as it is in the security certificate process. He then argues that the stigma attached to terrorism allegations equates with that attached to any serious criminal charge, and that the government should thus have to show just cause for detaining an individual under the IRPA, by proving on a balance of probabilities that the individual poses a specific risk to national security. Parliament, he maintains, should amend the IRPA to that effect. The author further argues that the security certificate process discriminates against noncitizens, in breach of section 15 of the Charter, because that process allows the government to detain non-citizens on much lower standards than citizens. When liberty is at stake, he maintains, citizenship should be an analogous prohibited ground of discrimination under section 15(1). Moreover, the security certificate process adversely affects the dignity of noncitizens, by sending the message that they are the sole threat to national security. The author concludes that the IRPA must be amended to bring it into compliance with the procedural, substantive and equality rights guaranteed by the Charter.