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February 2007

Current Event…The Supreme Court decides that security certificates are invalid

The Supreme Court of Canada recently decided that security certificates violate the Canadian Charter. This decision could be an example for other countries where the fight against terrorism is being scrutinized by the courts.

Obviously, it can be hard to understand why Canada’s highest court has decided that security certificates are ‘‘unconstitutional’’ if one doesn’t know what this word means… or if one doesn’t fully understand what a security certificate is.

In the text that follows, Éducaloi will explain these concepts, what was at stake in this judgement and its consequences.

What does the word ‘‘unconstitutional’’ mean?

A law or a decision is ‘‘unconstitutional’’ if it violates the rules contained in the Canadian Constitution (‘‘the Constitution’’).

Because the Canadian Charter is part of the Constitution, the word “unconstitutional” is also used to describe a law or a decision that violates the rules contained in the Canadian Charter.

What is a security certificate?

A security certificate is a document that forbids a person from setting foot in Canada. This certificate is issued by the authorities when there are reasons to believe that a foreigner or a Canadian permanent resident is a danger to public security.

A security certificate can lead to a person being deported. Before deportation, the person can also be imprisoned for an indefinite amount of time, if it is necessary.

Although security certificates are often seen as a tool in the fight against terrorism, they existed well before September 11th, 2001.

How do security certificates work?

First, the federal government, through the Ministers of Immigration and Public Security, signs the security certificate based on the information it has about the person in question. Then, a Federal Court judge examines the certificate and the evidence held by the government to determine if the certificate is reasonable.

If the government requests it, this examination takes place behind closed doors and in the absence of the person affected by the certificate. Furthermore, this person and their lawyer can’t see the documents put forward by the government; they also can’t see ‘‘sensitive’’ or confidential information held by the government. They can, however, see information that is ‘‘not sensitive.’’ The government decides whether a piece of information is sensitive or not.

If the judge decides that the certificate is reasonable, his decision is final and it can’t be appealed. The government can immediately imprison or deport the person affected by the security certificate.

Why did the Supreme Court decide that security certificates are unconstitutional?

The Supreme Court decided that security certificates are unconstitutional because they prevent the person affected by them from finding out about the evidence against her and from presenting arguments to defend herself.

The Canadian Charter says that certain fundamental principles of justice must be respected if a person’s liberty or safety is undermined, for example if that person is imprisoned or deported to a country at war.

One of these principles is that everyone has the right to know the accusations brought against them, to find out the evidence against them, and to be heard in order to present opposing arguments. In Latin this principle is called ‘‘audi alteram partem.’’


What is the impact of this judgment? What will be its repercussions?

Generally, a law that is declared to be against the Charter immediately ceases to have effect. For example, as soon as the Court of Appeal of Quebec decided that prohibiting marriage between same-sex couples was against the Charter, same-sex marriages became possible in Quebec.

In the case of security certificates, though, the Supreme Court acted in a prudent and nuanced way because of national security concerns. The court suspended the effect of its judgment for one year to give the federal government time to change the security certificate regime. Therefore, security certificates that are already issued remain valid during this period. When this period is over, their validity will be examined again under a new security certificate regime, which is more respectful of the Charter.

While respecting the freedom of the government to choose the limits of the new regime, the Supreme Court insisted on certain points, like the necessity that foreigners who are detained be heard more quickly. The court also suggested the adoption of a system where a ‘‘special advocate’’ would objectively examine government documents in order to protect the interests of the person affected by the security certificate, as is done in the United Kingdom.

To read the judgment, click here.