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33 Queen's L.J. 519 (2007-2008)
An Ounce of Cure for a Pound of Preventive Detention: Security Certificates and the Charter

handle is hein.journals/queen33 and id is 523 raw text is: An Ounce of Cure for a Pound of Preventive Detention: Security Certificates and the Charter Jonathan Shapiro The security certificate process set out in Canada's Immigration and Refugee Protection Act (IRPA) authorizes the government to hold suspected terrorists in preventive detention during deportation proceedings. In Charkaoui v. Canada (Minister of Citizenship and Immigration), the Supreme Court of Canada held that those provisions violated the Charter on procedural grounds, but did not comment on their impact on the substantive and equality rights guaranteed by the Charter. The author criticizes the Courts approach in Charkaoui, arguing that the security certificate process violates the liberty rights protected by sections 7 and 9 of the Charter and the equality rights guaranteed by section 15(1). The author begins by discussing the presumption of innocence as a principle of fundamental justice that governs the use of preventive detention in the criminal context. He argues that the presumption of innocence should also apply in the immigration law context - not when admission to or expulsion from Canada is at issue, but when liberty is at stake, as it is in the security certificate process. He then argues that the stigma attached to terrorism allegations equates with that attached to any serious criminal charge, and that the government should thus have to show just cause for detaining an individual under the IRPA, by proving on a balance of probabilities that the individual poses a specific risk to national security. Parliament, he maintains, should amend the IRPA to that effect. The author further argues that the security certificate process discriminates against non- citizens, in breach of section 15 of the Charter, because that process allows the government to detain non-citizens on much lower standards than citizens. When liberty is at stake, he maintains, citizenship should be an analogous prohibited ground of discrimination under * B.A. (U.B.C.), LL.B. (Dalhousie), LL.M. (Columbia). Counsel, Department of Justice, Canada, Atlantic Regional Office. The opinions expressed in this paper are the opinions of the author and should not be construed as representing the views or opinions of the Attorney General of Canada, the Department of Justice or the Government of Canada. I am very grateful for the suggestions, comments and guidance of Professor Harold Edgar, the Julius Silver Professor of Law, Science, and Technology at Columbia Law School, and Professor Steve Coughlan at Dalhousie Law School, and for the research assistance provided by my friend and colleague David Steeves, LL.M. candidate at Dalhousie Law School. I am also extremely thankful for the boundless love and support of my wife, Valerie, without whom this work would not have been possible. J. Shapiro

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