Is Indefinite Detention of Terrorist Suspects Really Constitutional?

Abstract

The Federal Court of Appeal’s holding in Charkaoui suggests the astounding conclusion that it is lawful to detain terrorist suspects indefinitely without placing a criminal charge. The Immigration and Refugee Protection Act (IRPA) can be seen to have contemplated both indefinite detention of terrorist suspects and inability of detainees to see the evidence against them. In this article, the author argues that the court should have recognized more of the constitutional challenges to the IRPA provisions. After examining the Federal Court of Appeal’s reasons for rejecting the constitutional challenges, this article revisits the constitutional arguments concerning the principles of fundamental justice, the standard of proof, and equality. Next, the article suggests some ways that the court could have addressed the constitutional infirmities of the security certificate scheme without compromising security: 1) a special advocate to represent the detainee’s position, 2) a clarified standard of proof for the current scheme, and possibly 3) a response to the citizen/non-citizen equality concerns.

Keywords: Charkaoui, Immigration and Refugee Protection Act, IRPA, secret evidence, terrorist suspect, indefinite detention, constitutional challenge