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59 Crim. L.Q. 47 (2012-2013)
The Myth of Universal Jurisdiction in Canadian anti-Terrorism Law

handle is hein.journals/clwqrty59 and id is 53 raw text is: The Myth of Universal Jurisdiction in Canadian Anti-Terrorism Law Bradley PC. Wiffen Introduction This article starts with a simple premise: criminal prosecutions of suspected terrorists are preferable - legally, morally, and politically - to indefinite detention without charge. This is consistent with a growing international consensus that the criminal law is the primary vehicle to be used to address terrorism and that states should not permit preventative detention without exhausting all other options.' The problems with indefinite detention are well- documented.2 In Canada, indefinite detention can arise under the security certificate regime created by the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA), in response to the seemingly intractable problem of dealing with a suspected terrorist who is inadmissible to Canada on security grounds but who nevertheless cannot be deported to his native country without violating the principle of non-refoulment. This inadmissible-but- undeportable paradox, when combined with issues of national security and state secrecy, creates a number of difficult issues for which there are no easy solutions. If, however, one accepts that criminal prosecutions are preferable to indefinite detention without charge, then one must address these problems head-on. This article focuses narrowly on one of those issues: whether the Bradley Wiffen, J.D. M.A. is a graduate of the University of Toronto Faculty of Law and the Munk School of Global Affairs and the recipient of the James B. Milner Bronze Medal for academic achievement. He wishes to thank the Honourable Peter Van Loan, PC MP for his insightful discussions of Canadian anti-terrorism law and Professor Kent Roach, University of Toronto, for his able assistance and helpful suggestions throughout the writing of this piece. 1. Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights, Assessing Damage, Urging Action: Executive Summary (2008), at p. 4 (Eminent Jurists Panel). 2. See, for instance, R. Diab, Guantanamo North: Terrorism and the Admin- istration of Justice in Canada (Halifax: Fernwood Publishing, 2008). 47

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