Security Certificate - Constitutionality

Constitutionality

In 2002, the Supreme Court of Canada upheld the security certificate process as constitutional in Suresh v. Canada. The Court ruled that the operative provisions of the security certificate process do not violate Section 7 of the Charter, but that the Immigration Act generally does not allow for the deportation of a person to a country where they will likely be tortured. The Court did rule that deportation to countries suspected of torture may be justified in "exceptional circumstances". The court declined to define those circumstances, instead stating that "The ambit of an exceptional discretion to deport to torture, if any, must await future cases."

On June 13–14, 2006, the Supreme Court heard three different appeals from Adil Charkaoui, Hassan Almrei and Mohamed Harkat regarding the constitutionality of the security certificate process. Most of the appellants have argued that the refusal to disclose the evidentiary basis of the certificate violates Section 7 of the Charter. Counsel for Charkaoui also argued that the security certificate process violates judicial independence, the rule of law, and sections 9, 10, 12, and 15 of the Charter of Rights and Freedoms.

On February 23, 2007, the Supreme Court released its decision of Charkaoui v. Canada (Minister of Citizenship and Immigration). It voted unanimously that the process of certificate review which prohibited the accused from seeing evidence against them violated the Charter. Legislative amendments have been made by the Government of Canada to bring Canada's security certificate regime in compliance with the Court's ruling and were passed in February 2008.

The case of Jaballah v. Canada (Minister of Public Safety and Emergency Preparedness) (2006) challenged the constitutionality of detention under the certificate. The Federal Court upheld the detention. It is currently on appeal.