Learning from Britain's mistakes: best practices and legislative revision in Canadian immigration law.

• Author: Jenkins, David

INTRODUCTION

In the decade following 11 September 2001, the Canadian and British governments adopted many controversial legal measures to fight terrorism. They especially turned to stricter immigration laws to exclude and remove more easily those aliens suspected of involvement in terrorism. This strategy has had a considerable cost to the principle of procedural fairness. Canadian and British legislation increasingly restricted aliens' rights to legal counsel and access to evidence in deportation proceedings involving national security issues. To compensate for such procedural restrictions, Canada has adopted a controversial British system of "special advocates." Under this system, specially designated lawyers are authorized to view secret evidence and represent the deportee in hearings from which he is excluded.

However, the European Court of Human Rights (1) and the House of Lords (2) later ruled that the British special advocate system violated the European Convention on Human Rights. These decisions held that the system denied an individual sufficient knowledge of the case against him and prevented effective legal instructions to the special advocate. Because Canada's lawmakers copied this procedurally flawed British law, they should now take these rulings into account in order to improve the existing Canadian version of special advocates. Lawmakers must do so in order to find the "best practice" that optimally balances due process rights with the State's national security concerns.

The Canadian Parliament should therefore amend its special advocate system --which replicates the British one--to require (at least) more disclosure of evidence to the individual to be deported, as well as permit more communication between him and the special advocate. Parliament should make such changes expeditiously and on its own initiative before the system is challenged before the Supreme Court of Canada.

COMPARATIVE ANTI-TERRORISM LAW AFTER 9/11: A REFLECTION

In 2003, I examined Canada's Anti-Terrorism Act (3) of 2001 in a positive light. (4) As one American reviewer put it, this work

reads as it bills itself: The article is a rousing thumbs-up for our northern neighbor's legislative response to the attacks of September 11. Comparing Canada's 2001 Anti-Terrorism Act to Britain's Anti-terrorism, Crime and Security Act 2001 and the United States' Patriot Act, Jenkins contends that Canada has found a superior way to balance protection of civil liberties with the fight against terrorism. (5) At that time, I made two arguments to support my conclusion that, on the whole, Canadians had carefully improved upon foreign ideas to arrive at a tough, necessary, yet more rights-conscious legal response to terrorism.

First, I advocated a comparative approach to the creation and development of new anti-terrorism laws in Canada and elsewhere. Canada, the U.K., and the U.S. can learn from one another because they share similar national security concerns about terrorism, as well as a common law tradition that shapes and limits legal responses. Comparison thus encourages a best-practices approach to formulating legislation. With that approach, lawmakers look to foreign law in seeking the optimal balance between effective anti-terrorism measures and individual rights.

Second, using this comparative approach, I focused on the ATA's controversial changes to Canadian criminal law. Specifically, I compared terrorist offences, restrictions on financing terrorism, investigatory powers of the police, and hate crimes provisions found in Canadian, British, and American legislation. For example, the definition of terrorism in Canada's ATA was highly influenced by British law, but tailored to be narrower in scope. The ATA also subjected controversial provisions like investigative hearings and special recognizance conditions to sunset clauses, so that they would automatically expire after a statutory time-period.

THE EXPLOITATION OF IMMIGRATION LAW AFTER 9/11

My earlier article focused on anti-terrorism measures in the criminal law and did not...