Detention
| Author | Craig Forcese |
| Profession | Faculty of Law, Common Law. University of Ottawa |
| Pages | 519-590 |
519
cha Pter 14
DETENTION
Mere security clearance and access control may be insufficient to pre-
empt threats to national security. In some insta nces, those per sons who
pose the threat may h ave to be detai ned, often in circumstances where
the evide nce jus tify ing t heir i mpri sonmen t would not supp ort a c rimi nal
conviction. In such circumstance s, the state’s dilemma is acute. As L aws
L.J. of the English Court of Appeal has noted, di scussing terrorism:
This grave and present t hreat [of ter rorism] cannot be neutra lised
by the processes of investigation and tr ial pursuant to the gener al
crimin al law. The reach of those proce sses is marked by what ca n
be proved beyond reasonable doubt. … In these ci rcumstances the
state faces a dilemm a. If it limits the mean s by which the citizens ar e
protected against the threat of terrorist outrage to the ordinar y meas-
ures of the criminal law, it leaves a yawning gap. It exposes its people
to the possibi lity of indis criminate murder committed by extremist s
who for want of evidence could not be brought to book in the cri m-
inal courts. But if it fills the gap by confining t hem w ithout tr ial it
affronts “the most fund amental and probably the oldest, most hardly
won and the most u niversally r ecognised of human rig hts”: freedom
from executive detention.1
1 A and others v. Secretary of Sta te for the Home Department, [2004] EWCA Civ
1123 at paras. 154–55.
NATIONAL SECUR ITY LAW520
As this passage suggests, detention on the basis of suspected antici-
pated actions, rather than in response to actual, provable past act ions,
is an enormously controversial practice. Reviewing so-called prevent-
ive detention in seventeen countries in 1993, Steven Greer concluded
that “preventive detention on the grounds of public or state security is
a flims y and highly suspect justification for the deprivation of liberty.
Abuse of power is seemingly w idespread throughout the juri sdictions
surveyed here. … [M]uch more rigorous criteria th an generally apply
ought to be met if the practice is to be convincingly defended.”2
Since 1993, preventive detention has become more commonplace,
even in those countries generally hostile to the practice. Detentions with-
out cr imin al tri als of fo reign n ationa ls susp ected of being n ationa l secur-
ity thr eats have p rovoke d pa rtic ular cont rover sy in the p ost-9/ 11 era . The
long -ter m dete ntion of sus pect ed te rror ists by th e U.S. m ilit ar y at va riou s
locations outside of the United States is the most famous example.
In Canada, preventive detention laws were in a state of evolution by
the time of this w riting. Cri minal l aw preventive detention provisions
were enhanced as part of Canada’s 2001 anti-terrorism law.3 By 2007,
however, some of these powers had e xpired and t he government had
tabled Bill S -3 in an effort to revive them. Moreover, the government
had relied upon imm igration “secur ity certificates” to detain five sus-
pected ter rorists after 2001 pending effort s to remove them from the
co un t ry.4 In part because these individuals have resisted deportation
to states that may torture them, the men subject to security certificates
at the time of th is w riting had been behind b ars for long periods: by
the beginning of 2007, the average period of detention for the men still
imprisoned at that time was almost six years.5 This is a period of deten-
2 Steven Greer, “Preventive Dete ntion and Public Security: Toward s a General
Model,” in Andre Hard ing & John Hatchard, eds., Preven tive Detention and Se-
curity Law: A Comparative Sur vey (Dordrecht: M. Nijhoff, 1993) at 36 [Preventive
Detention].
3 See Criminal Code, R.S.C. 1985, c. C-4 6, s. 83.3.
4 Immigration and Ref ugee Protection Act, S.C. 2001, c. 27, s. 77 et seq. [IRPA]. For
representat ive cases concerning t hese five men see, for example, Mahjoub v.
Canada (Minister of Citizen ship and Immigration), 2005 FC 156 [Mahjoub]; Almrei
v. Canada (Minister of Citizenship and Im migration), 2004 FC 420; Jaballah (Re),
5 This figure wa s calculated in relation to t he three men still deta ined as of
January 20 07. As this book wa s completed, two men (Mahjoub and Jaballa h)
were released on cond itions, pending the res olution of their cases. There were,
therefore, four men subject to s ecurity certificat es, but released on conditions,
and one other stil l detained. The precise fate of t he security certific ate process,
Detention 521
tion longer th an the average sentence for convicted attempted murder-
ers in Canada.6 In ea rly 2007, the Supreme Court of Canada declared
aspects of the security-certificate procedure unconstitutional, without
denouncing the concept in principle, and the government subsequently
tabled bill C-3 in an effort to amend t he process in response to the
Court’s ruling.7
Similar practices in the United Kingdom have also sparked con-
troversy. In December 20 04, the United Kingdom’s highest court of
appeal — the House of Lords — decla red indefinite detention of foreign
terrorist suspects wit hout trial under immigration law contrary to U.K.
human rights obligations.8 In the words of Lord Nicholls of Birken-
head, “indefinite imprisonment without ch arge or tria l is anat hema in
any country which observes the rule of law.”9 The Blair government
responded by developing a new regime of “control orders” imposing
constraints on the liberties of both foreigners and U.K. citizens where
security grounds warrant.
Meanwhile, official preventive detentions appear to have been sup-
plemented in some states by a practice of “extr aordinary rendition” — the
extralegal removal of persons to face prolonged detention (and possibly
torture) at the hands of foreign governments.10 Detention in these cases
is coupled with “disappearances.”
This ch apter reviews international and domest ic laws applicable to
preventive detention. It begin s w ith a review of pertinent international
hum an r ight s and huma nita ria n la w pri ncipl es. I t the n ass ess es do mest ic
law, focusing first on conventional criminal law detention powers and
then on speciali zed anti-terrorism detention law, assessed in a compara-
tive context. Next, it examines detentions under immigration law — most
notably the security certificate process. Finally, it examines foreign de-
tentions and their implications for Can adian law and practice.
at least as applied t o these individual s, was uncertain, followi ng the release of
Charkaoui v. Canada (Citizenship and Im migration), 2007 SCC 9 [Charkaoui].
6 See Statist ics Canada, Senten ced Cases and Outcomes in Adult Crimina l Court,
by Province and Yukon Territor y (Canada) (2003 data), online: www40.st atcan.
ca/l01/cst01/legal21a.htm.
7 Charkaoui, above note 5.
8 A and others v. Secretary of Sta te for the Home Department, [2004] UK HL 56.
9 Ibid. at para. 74.
10 For a disc ussion of this practice, se e, for example, Committee on Intern ational
Human Right s of the Association of the B ar of the City of New York & Cen-
ter for Human Right s and Global Justice, New York University School of L aw,
Torture by Proxy: Internat ional and Domestic Law Applica ble to “Extraordinary
Renditions” (October 200 4), online: ww w.chrgj.org /docs/TortureByProxy.pdf.
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