The Canadian Security Certificate Regime. CEPS Special Report, 30 March 2009

This work was prepared as part of the EU–Canada project - The Changing Landscape of Justice and Home Affairs Cooperation in the European Union and EU-Canada Relations – funded by the European Commission, Directorate-General for External Relations, Relations with the US and Canada. This project assesses the relations between the European Union (EU) and Canada in the area of Justice and Home Affairs (JHA). It aims at facilitating a better understanding of the concepts, nature, implications and future prospects related to the Europeanisation of JHA in the EU, as well as its role and dilemmas in the context of EU-Canada relations. The current Canadian system for naming and deporting non-citizens on grounds of national security reflects the influence of several salient trends in post- 9/11 policy making in Canada: judicial minimalism, the adoption of the most restrictive (as opposed to least restrictive) alternative that does not tip over into unconstitutionality, and the avoidance of political risk by following precedents already set by other jurisdictions. In this respect, the UK has been a clear source of inspiration for Canadian courts and parliamentarians regarding Special Advocates and control orders

"Who is the Citizen's Other? Considering the Heft of Citizenship"

The objective of this article is to integrate legal and social conceptions of citizenship as they materialize at the geographic, political, and social border crossings that accompany transnational mobility. Rather than pose the question "who is the citizen?," I ask "who is the citizen’s Other?," partly as a means of surfacing what we mean by citizenship by thinking about who we designate as its alterity. Against the current of most contemporary scholarship, I commend resurrecting the concept of statelessness as an antipodal reference point for citizenship. My intuition is that a version of statelessness still dwells in the substratum of much citizenship discourse, and that rendering a plausible account of it under contemporary conditions may prove helpful in linking conversations about legal and social citizenship. I supplement the conventional understanding of the stateless person (apatride) as one who lacks any citizenship in a state by also designating as stateless one who possesses citizenship but lacks a state. My analysis draws on Hannah Arendt’s famous exegesis on the relationship between the apatride, the refugee, and the condition of rightlessness, as well as contemporary refugee jurisprudence. I demonstrate how subject positions commonly identified as the citizen’s Other, including the refugee, the alien and the second-class citizen, are better understood as nested within a larger matrix where the apatride represents the ultimate negation of citizenship. I then introduce the notion of the "heft" of citizenship as a method of assessing how legal citizenship and social citizenship interact to position an array of subjects between these stylized poles of citizenship and statelessness

Seven Out of Nine Legal Experts Agree: Expertise No Longer Matters (in the Same Way) After Vavilov!

When an important case is appealed to the Supreme Court of Canada, interested observers focus their attention on the substantive principles that they hope the Court will articulate. Typically, some uncertainty in the law exists — after all, the case would not be worthy of the Supreme Court’s attention otherwise. But the confusion reigning in standard of review jurisprudence had reached a level where some people’s desire for certainty, especially in the mechanics of deference, broke free from any substantive substrate. Thumb’s second postulate, “An easily-understood, workable falsehood is more useful than a complex, incomprehensible truth”, held even more attraction than usual for some of my exasperated law students

Comment on Canada (Prime Minister) v. Khadr (2010)

The Supreme Court of Canada judgment in Khadr rules that the Charter applies to the actions of Canadian officials who interrogated Omar Khadr in Guantánamo Bay. It rules that their conduct violated section 7 of the Charter. Although the Court acknowledges that a request for repatriation would be an effective remedy, it declines to order the government to take any specific action to remedy the violation, and simply declares that Khadr’s rights were and are being violated. This comment develops two points: The timidity of the remedial aspect of the judgment is presaged and enabled by a narrow and convoluted characterization of how the government violated Khadr’s section 7 right to life, liberty and security of the person. Second, the significance of the Court’s remedial ruling in terms of its institutional responsibility to protect human rights must be read against a political context in which the government had repeatedly and unequivocally asserted that it would not seek Khadr’s repatriation of its own accord

Charter Right or Charter-Lite?: Administrative Discretion and the Charter

The Supreme Court of Canada has vacillated in its guidance about the incorporation of the Charter into the exercise of discretion. The author contends that Doré’s attempt to synchronize proportionality analysis (derived from constitutional adjudication) with deferential reasonableness review (derived from administrative law) is unsatisfactory. The replacement of Charter “right” or “freedom” with Charter “value” obscures the recognition of rights and freedoms in play. The administrative law proportionality analysis that the Court endorses in Doré does not respect the primacy or priority of Charter rights, and curial deference toward the outcomes it produces exacerbates the dilution of rights protection. The author warns of the negative incentives this creates for governance and the rule of law. She proposes a set of alternative factors and considerations that ought to animate the exercise of discretion, and judicial review of discretion, where Charter rights or freedoms are at stake

Charter Right or Charter-Lite?: Administrative Discretion and the Charter

The Supreme Court of Canada has vacillated in its guidance about the incorporation of the Charter into the exercise of discretion. The author contends that Doré’s attempt to synchronize proportionality analysis (derived from constitutional adjudication) with deferential reasonableness review (derived from administrative law) is unsatisfactory. The replacement of Charter “right” or “freedom” with Charter “value” obscures the recognition of rights and freedoms in play. The administrative law proportionality analysis that the Court endorses in Doré does not respect the primacy or priority of Charter rights, and curial deference toward the outcomes it produces exacerbates the dilution of rights protection. The author warns of the negative incentives this creates for governance and the rule of law. She proposes a set of alternative factors and considerations that ought to animate the exercise of discretion, and judicial review of discretion, where Charter rights or freedoms are at stake

"Transjudicial Conversations About Security and Human Rights"

Citation by one national court of another state’s jurisprudence or legislation has attracted much attention recently, especially in relation to the interpretation and application of constitutional and international human rights norms. Commentators document these practices, judges extol or deride them, and academics theorise about them. A commonly shared assumption is that the comparative undertakings are accurate and systematic, if superficial. Tracking judgments from the European Court of Human Rights and the Supreme Court of Canada across a series of cases dealing with non-citizens and national security reveals that courts not only circulate practices and legal arguments between jurisdictions, they also circulate – perhaps inadvertently – misrepresentations of practices, and remain strategically deaf to dissonant arguments. Scholarly accounts of transjudicial communication that claim to document the emergence of a systematic pattern of judicial behaviour across jurisdictions should take these practices seriously and avoid the temptation to dismiss them as mere aberrations.This work was prepared as part of the EU–Canada project - The Changing Landscape of Justice and Home Affairs Cooperation in the European Union and EU-Canada Relations – funded by the European Commission, Directorate-General for External Relations, Relations with the US and Canada

Law Reform Error: Retry or Abort?

The void left by the demise of the Law Reform Commission of Canada (LRCC) in 1991 presents an opportunity to rethink the scope and legitimacy of law reform as it has been conceptualized and practised by academic lawyers. I am concerned that the dominant meaning ascribed to the term federal law reform under the tenure of the LRCC was partial, inadequate, and ultimately conservatizing in its influence. In reviewing past commentary on law reform in Canada, I have been struck by the recurring themes that emerged from the literature. I was particularly impressed by an exceptional piece written by the late Dalhousie scholar, Professor Robert Samek, entitled Social Law Reform. \u27 What I hope to offer is a somewhat updated perspective on what ailed institutional law reform efforts in the past and what we might do differently in the future

Comment on Canada (Prime Minister) v. Khadr (2010)

The Supreme Court of Canada judgment in Khadr rules that the Charter applies to the actions of Canadian officials who interrogated Omar Khadr in Guantánamo Bay. It rules that their conduct violated section 7 of the Charter. Although the Court acknowledges that a request for repatriation would be an effective remedy, it declines to order the government to take any specific action to remedy the violation, and simply declares that Khadr’s rights were and are being violated. This comment develops two points: The timidity of the remedial aspect of the judgment is presaged and enabled by a narrow and convoluted characterization of how the government violated Khadr’s section 7 right to life, liberty and security of the person. Second, the significance of the Court’s remedial ruling in terms of its institutional responsibility to protect human rights must be read against a political context in which the government had repeatedly and unequivocally asserted that it would not seek Khadr’s repatriation of its own accord