The Administration of Justice? Certificate Proceddings, Charkaoui II, and the Value of Disclosure

20 Pages Posted: 5 Nov 2010

Date Written: August 3, 2010

Abstract

The Canadian intelligence community has been the subject of much controversy relating to its role in global intelligence cooperation and accompnaying human rights abuses.Characterized by the feral exchange of intelligence across national borders, global intelligence cooperation has helped Canada adapt Cold War security institutions to contend with transitioning global environments. Although in many ways necessary, the pace of this change has vastly outstripped changes to traditional regulatory frameworks; a factor not helped by courts' reluctance to exert greater regulatory control in the national security field. In its 2008 ruling in Charkaoui v. Canada (Citizenship and Immigration), however, the Supreme Court used a dispute over disclosure in security certificate proceedings to magentize efferent intelligence practices around core constitutional principles. Recognizing CSIS’ growing, functional associations with domestic and foreign law-enforcement agencies, as well as the government’s use of immigration provisions in lieu of extradition proceedings, the court held that CSIS and other governmental institutions are obligated to disclose to reviewing courts all information on file relevant to persons named in certificates. Greater levels of disclosure reflective of criminal law values were intended to counter-balance the free exchange of personal information across national boundaries and enhance the performance capacity of court-appointed special advocates; this goal has been achieved to some degree. Notwithstanding the symbolic significance of the ruling, though, the over-arching structure of certificate proceedings and the recent infusion by lower courts of exceptions to the duty to disclose suggest that changes to certificate-based detention and deportation practices are likely to be modest.

Keywords: Global intelligence agency cooperation, security certificates, extradition, human rights, Charter of Rights and Freedoms

JEL Classification: K10, K14, K33

Suggested Citation

Hudson, Graham, The Administration of Justice? Certificate Proceddings, Charkaoui II, and the Value of Disclosure (August 3, 2010). Alberta Law Review, Vol. 48, No. 1, 2010, Available at SSRN: https://ssrn.com/abstract=1702485

Graham Hudson (Contact Author)

Ryerson University ( email )

350 Victoria Street
Toronto, Ontario M5B 2K3
Canada

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