When secrecy doesn't mean security.

• Author: Mann, Michelle
• Position: Today's Trial - Canada. Immigration and Refugee Protection Act 2002

As the 25th anniversary of the Charter of Rights and Freedoms hovers on the horizon, a unanimous Supreme Court of Canada delivered an early birthday gift to Canadians in finding Canada's security certificate process to be unconstitutional.

Civil libertarians across the country could be heard to breathe a collective sigh of relief. With the emergence of new security threats post-9/11, the political landscape may have changed, but the legal environment remains reliably steeped in respect for the rights of the individual.

Under the Immigration and Refugee Protection Act (IRPA), the government could issue a security certificate to detain for years a non-citizen considered a risk to Canadian security pending deportation. Now struck down by the court, the security certificate process did not include such standard protections as formal charges, the presumption of innocence and allowing detainees access to evidence them.

Meanwhile, guilt was not established because there was no trial.

For those who think the presumption of innocence is a formality undeserved by suspected terrorists, let us recall Operation Shock in 2001, where the RCMP swooped down and arrested 20 men, mostly Muslim Arabs. Or what about Project Thread two years later? Twenty men, 19 of them Pakistanis, were arrested on suspicion of terrorist activities. Despite a few in the latter case being deported for immigration matters, the majority of the combined 40 men have been freed.

Ultimately, nothing held up in court. The weight of government, however, had been brought to bear.

In this Supreme Court case, the three men who challenged the process, Charkaoui, Almrei and Harkat, all spent years in detention while fighting deportation to their countries of origin on the basis that they would be tortured or killed.

They successfully argued that the security certificate process, in providing for indefinite detention without charge or trial and on the basis of secret evidence, contravenes the Charter of Rights and Freedoms Section 7 rights to life, liberty and security of the person.

The court also agreed that the process violated their Charter rights to not be arbitrarily detained or imprisoned and their rights to due process on arrest, including timely review of the detention.

We legal types pretty much suspected that the court would say this. It was hard to imagine how the process as it was constructed was not a violation of the rights of the detainees.

We also knew all the action would...