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 On
October 22nd the government tabled
amendments to the Immigration and
Refugee Protection Act 2002 (IRPA
2002).
The amendments were in response to the
Supreme Court's Charkaoui
decision in February 2007 which found that
the way in which secret
evidence was used to detain and deport
non-citizens by means of
"security certificates" was
unconstitutional. The Court gave the
government a one year grace period to
produce the new legislation. The
approach proposed will introduce special
advocates into a security
certificate process with no other
significant changes. The
special advocates will be lawyers who have
been given security
clearance and who will then represent the
interests of non-citizens and
their normal lawyers who are excluded from
hearings where the
government presents information classified
as secret on national
security grounds.
Lawyers Craig Forcese and Lorne Waldman presented a scathing critique of such special advocates in an Op. Ed. in the National Post on October 25th based on a decade of UK experience with special advocates and the particular way the Canadian legislation is contructed. Craig Forcese teaches national security law at the University of Ottawa and Lorne Waldman is an immigration lawyer in Toronto. In August 2007 they co-athored a study on special advocates. Forcese and Walman note that there are better ways of satisfying the Supreme Court's critique such as the use of the existing Security Intelligence Review Committee (SIRC). This could be used as an appeal mechanism for the non-citizen against secret intelligence information used to justify long term incarceration just as it is currently used by Canadian citizens. There is another authority in favour of this approach - Canada's international human rights obligations. The golden rule for non-citizens' rights is that non citizens are to enjoy rights in equality with others (See Mr. David Weissbrodt, Final report on the rights of non-citizens, U.N. Doc. E/CN.4/Sub.2/2003/23 (2003)). The case law from international human rights committees, commissions and courts supports Weissbrodt's broad conclusion that any distinction made must be for a legitimate purpose, necessary and proportionate to the legitimate purpose. Simply put, the international equal treatment obligation requires SIRC. Moreover, if SIRC is the solution for everyone else, the government needs to justify why non-citizens may not benefit. Ironically, as Forcese and Waldman note, before Refugee Protection became part of the named intention of the law with IRPA 2002, non-citizens could use SIRC. Indeed two Convention Refugees in Canada, whose causes were championed by Andrew Brouwer and the Sanctuary Coalition, successfully appealed to the SIRC in the 1990s. But the SIRC decision was not binding on the government so these refugees ended up begging the then minister to respect the SIRC decision (with support from many of us). Then in IRPA 2002, the government took away even this limited right of access to SIRC. Unfortunately, as I show in my book about Canadian Courts, equality rights is one of several areas in which Canada's Supreme Court chose its own parochial way rather than following Canada's international rights obligations. Of course, one could try explaining the matter to their honours on the Supreme Court. Indeed to attempt that would be a precondition for any international human rights complaint. It is intriguing to contemplate an international complaint based on a combination of the third rate detention review process which Forcese and Waldman forsee and lack of equal treatment. |
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