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Current Event…The Canadian government changes the law on security certificates

On February 14, 2008, the government passed a new law on security certificates. This was done in response to a 2007 Supreme Court of Canada decision that the government’s security certificates violated the Canadian Charter. The changes include the creation of a “special advocate” and new rules on detention.

It can be hard to understand why Canada’s highest court decided that security certificates were “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 explains these concepts, what was at stake in the 2007 judgment, and the government’s subsequent response.

What does the word ‘‘unconstitutional’’ mean?

A law or a decision is ‘‘unconstitutional’’ if it violates the rules contained in the Canadian 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 seeks to expel a Canadian permanent resident or a foreigner from Canada and to forbid him from setting foot in Canada. The certificate is issued by the government when there are reasons to believe that the person is a danger to public security. A security certificate can lead to a person being imprisoned indefinitely or being deported.

The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness sign the security certificate based on the information that they have on 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.

The Minister of Public Safety and Emergency Preparedness can decide that the judge’s examination must be held behind closed doors and in the absence of the person affected by the certificate and of his lawyer.

The person and his lawyer can only see the portion of the Minister’s evidence that does not risk harming national security or that does not endanger the safety of someone else.

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

The Supreme Court decided that security certificates were unconstitutional because they prevented the person affected by them from finding out about the evidence against him and from presenting arguments to defend himself.

The Supreme Court suspended the effects of its judgment for one year, giving the government time to change its law without impacting national security.

How do the 2008 changes affect security certificates?

The person affected by the certificate and his lawyer have the right to obtain a summary of the information on which the security certificate is based. The Minister of Public Safety and Emergency Preparedness can still keep secret some of the evidence against the person. The judge makes sure that any “non-sensitive” information is given to the person affected by the certificate and to his lawyer.

To deal with the “sensitive” information, the 2008 law creates the position of “special advocate”. The special advocate is an experienced lawyer who is independent of the government. She is appointed to protect the interests of the person who is affected by the security certificate.

Unlike the person’s lawyer, the special advocate can see all of the evidence that the Minister files against the person and can attend any confidential hearing. She can challenge the Minister’s claim about the need to keep the information secret from the person and his lawyer, cross-examine the witnesses and challenge the evidence in general.

The 2008 law also changed the rules for reviewing a person’s detention under a security certificate. The detention must now be reviewed by the judge within 48 hours of the person’s arrest. It must be re-reviewed by a judge, every 6 months until a final ruling is made on the reasonableness of the certificate.

If the judge decides that the certificate is reasonable, his decision is final unless he says that the case involves a serious question of general importance.

How do these changes affect people currently detained under security certificates?

For people who were being detained under security certificates issued under the old rules, new security certificates have to be signed for them in order to keep them detained. These people have a 60 day period in which they can ask the Federal Court to review the reasons for their detention. If they do not ask the Federal Court to review, then the Federal Court will, on its own, review the reasons for the detention within 6 months.

To read the judgment, click here  (http://scc.lexum.umontreal.ca/en/2007/2007scc9/2007scc9.html).
To read the new law, click here  (http://www2.parl.gc.ca/HousePublications/Publication.aspx?Docid=3300375&file=4).