“The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process,” Chief Justice Beverley McLachlin [of the Supreme Court of Canada] wrote in the ruling....
The decision reflected striking differences from the current legal climate in the United States.
Saturday, February 24, 2007
In Canada, Liberty Cannot Be Taken Away without Due Process
Ian Austen, "Canadian Court Limits Detention in Terror Cases," NYTimes (Feb. 23, 2007):
Subscribe to:
Post Comments (Atom)
5 comments:
But the decision fails to reflect its non-binding binding power on the Canadian government, due to the existence of the Canadian constitution's notwithstanding clause. Canada's government will only comply with this Supreme Court decision because it wants to, not because it has to.
Yes, based on my faint recollections about the Canada's Charter of Rights, I believe the civil uncivil litigator is quite right. But we should nevertheless give credit to the Supreme Court of Canada for recognizing the following broad principle: "The right to a fair hearing comprises the right to a hearing before an independent and impartial magistrate who must decide on the facts and the law, the right to know the case put against one, and the right to answer that case. While the [Immigration and Refugee Protection Act] procedures properly reflect the exigencies of the security context, security concerns cannot be used, at the s. 7 stage of the analysis, to excuse procedures that do not conform to fundamental justice."
The Canadian Supreme Court's judgment (I'm using the word "judgment" in its ordinary sense) has (at least) some hortatory force in Canada -- and perhaps even (one can hope!) elsewhere.
Note that in my previous post I quoted the "court summary" rather than the body of the Court's opinion.
Here is an example of the sort of language I very much like:
"Section 7 of the Charter guarantees [*37] the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ...
"...
"In [*41] determining whether s. 7 applies, we must look at the interests at stake rather than the legal label attached to the impugned legislation. As Professor Hamish Stewart writes:
"'Many of the principles of fundamental justice were developed in criminal cases, but their application is not restricted to criminal cases: they apply whenever one of the three protected interests is engaged. Put another way, the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings.' [Emphasis in original.]
"(J.H. Stewart, "Is Indefinite Detention of Terrorist Suspects Really Constitutional?" (2005), 54 U.N.B.L.J. 235, at p. 242)."
I conclude that the appellants' challenges to the fairness of the process leading to possible deportation and the loss of liberty associated with detention raise important issues of liberty and security, and that s. 7 of the Charter is engaged.
More glorious language from the Supreme Court of Canada:
" 3. Relevant Principles of Fundamental Justice
"[28] The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 . 'It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process': Ferras, at para. 19. This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.
"[29] This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right [*49] to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance."
This language, incidentally, is reminiscent of the US Supreme Court decision _Goldberg v. Kelly_, 397 U.S. 254 (1970). But the aroma of Goldberg v. Kelly now seems like a distant dream.
Post a Comment