Guarding Individual Rights in Cases Involving National Security

• Author: Lorne Waldman
• Pages: 203-232

203

Guarding Individual Rights in Cases

Involving National Security

Lorne Waldman1

A. INTRODUCTION

In order to respond to perceived and actual threats to national security,

states seek to implement protective measures. Although these measures

may be viewed as the product of necessary vigilance, especially in the

post-9/11 era, they may also have a severe impact on individual rights.

Determining whether measures that are taken to protect national se-

curity are compatible with our democratic values is a diff‌icult task. This

problem arose well before the attacks on the twin towers. However, in

the aftermath of 9/11, legislators felt compelled to expand the arsenal of

powers available to the national security apparatus and, consequently,

the issue of the impact of measures taken to protect national security

on our democratic values has become even more pressing.

Among the powers that existed prior to, but were expanded after

9/11 was that of asserting conf‌identiality over information that was de-

termined to put our national security or international relations in jeop-

ardy if released. In Canada, the Canada Evidence Act was amended to

allow the attorney general to overturn any determination by the Federal

Court that information ought to be released after properly balancing the

1 The author wishes to acknowledge the contributions of Karin Baqri and Debbie

Rachlis. Both provided invaluable assistance in the writing of this chapter.

lorne waldman204

need to protect the information with the public interest in disclosure.2

Since 9/11 the assertion of conf‌identiality over sensitive evidence has

become even more prevalent. Although this issue has arisen to a lim-

ited extent in the criminal context,3 it is in the area of immigration law

that government attempts to use secret information have been most

common. While the Supreme Court has very recently declared one such

attempt—that outlined by the security certif‌icate provisions of the Im-

migration and Refugee Protection Act (IRPA)4—to be unconstitutional, it

has not recommended a course of action for the legislature to adopt.5

However, the Supreme Court asserted that the extent to which pro-

cedural fairness is required is context-specif‌ic, and accepted that na-

tional security may often preclude full disclosure of information. In any

event, it concluded that section 7 of the C anadian Charter of Rights and

Freedoms6 requires that “either the person must be given the necessary

information, or a substantial substitute for that information must be

found.”7 While certainly the next step, with respect to the impugned

provisions, will involve the enactment of legislation by Parliament, the

dilemma facing the legislature is determining the scope of procedural

2 Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38.13.

3 See, for example, Canada (Attorney General) v. Ribic, [2002] F.C.J. No. 1835 (T.D.);

Ribic v. Canada (Attorney General), [2003] F.C.J. No. 1966 (F.C.), aff’d [2003] F.C.J.

No. 1964 (C.A.); Ribic v. Canada (Attorney General), [2003] F.C.J. No. 1965 (F.C.), aff’d

[2003] F.C.J. No. 1964 (C.A.); Canada (Attorney General) v. Ribic, [2002] F.C.J. No.

1186 (T.D.); Ribic v. Canada, [2002] F.C.J. No. 384 (T.D.).

4 Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA]. The security certif‌i-

cate procedure is outlined in ss. 76–85 of the Act and allows for the detention and

deportation of permanent residents, refugees, and foreign nationals on the grounds

that they pose a threat to national security. Under the procedure, the person

named in the security certif‌icate issued by the minister of citizenship and immi-

gration and the minister of public safety and emergency preparedness is not made

aware of the precise allegations or evidence adduced against him. Further, neither

he nor his counsel is given an opportunity to participate in the in camera hearings

in which the minister’s representatives present the Crown’s case to a federal court

judge. The security certif‌icate regime is explained more fully in section C of this

chapter.

5 Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 [Charkaoui v. Can-

ada].

6 Canadian Charter of Rights and Freedoms, ss. 8–12, Part I of the Constitution Act,

1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter].

7 Charkaoui v. Canada, above note 5 at para. 61.