Last week, each and every judge of the Supreme Court of Canada endorsed the following words of Chief Justice Beverley McLachlin in connection with the successful constitutional challenge to the “national security certificate” provisions of Canada’s immigration laws:
“It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law… This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.”
Our country’s top judge reminded us that we had regressed to the days before the Magna Carta of 1215. She reminded us that, almost 800 years ago, people who were far less “advanced” than us recognized that even a king should not be able to hold a prisoner without giving him a fair chance to challenge the lawfulness of his detention.
Our immigration laws ignored this wisdom and allowed our government to detain a permanent resident or foreign national virtually indefinitely if they were considered a national security threat without affording them the chance to challenge the evidence used to detain them.
Last week, the court struck down certain provisions of the Act on the grounds that there are less intrusive alternatives than this to preserve our national security. It referred to the procedures that are followed by the United Kingdoms’ special advocate system, which it compared to the model once used by our own Security Intelligence Review Committee. It also viewed favourably the procedures that were adopted at the Air India trial and the Arar inquiry as being reasonable alternatives to the complete denial of access to evidence.
Critics of this decision hold that these are “different times” and that the court may have endangered us by impeding our governments’ ability to thwart terrorism.
This is nonsense.
Firstly, the very first words of the court’s reasons recognized that “One of the most fundamental responsibilities of a government is to ensure the security of its citizens.” It noted that the tensions between this responsibility and due process “… are not new … nor are these tensions unique to Canada”.
In passing this legislation, our politicians succumbed to public fears and to political pressures from our allies. While they steered us dangerously away from legal principles that have stood the test of time, our top court kept its eye on the ball and brought us back to our deeply held political and constitutional values.
While sitting in the Birmingham city jail in 1963, Martin Luther King, Jr. wrote, “Injustice anywhere is a threat to justice everywhere.”
A terrible injustice has now been corrected in Canada. Let people everywhere witness Canada’s return to its rightful place as a beacon of justice and an opponent of injustice.
Guidy Mamann practices law in Toronto at Mamann & Associates and is certified by the Ontario Law Society as an immigration specialist. Reach him confidentially at 416-862-0000 or at email@example.com