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Great White Rule of Law


I am proud of my non-home and native land today, as the Canadian Supreme Court unanimously rejected a government policy that permitted the indefinite detention of foreign born suspects based on secret evidence. Chief Justice McLachlan:

The procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter. The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be.


I conclude that the IRPA’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case. Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA. Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society.

The opinion is, I think, a good model for thinking through questions of balancing fundamental rights against legitimate security interests. I wish I thought we would see somethign similar from the United States Supreme Court.

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