The CCLA has reviewed the decision of the Supreme Court of Canada, released today in Minister of Citizenship and Immigration et al v Harkat, (“Harkat”).
CCLA had intervened in this important decision considering the constitutionality of the current Security Certificate regime. CCLA focused its arguments on the communications structures permitted — or more to the point, denied and restricted — between the Named Individual and Counsel, and the Special Advocate. CCLA had argued that fundamental to our democracy is the principle of fair trial, and fundamental to the principle of fair trial is the right of the Named Person to know the case against him/her and to make full answer and defence. We argued that the restraints upon communications by the Special Advocate, and the Named Individual and Counsel, unconstitutionally undermined the right to make full answer and defence. In our factum we explicitly stated that “There is no question that the protection of national security affects how we comply with values of fundamental justice, but national security concerns cannot serve as a justification for failing to provide fundamental justice protections“.
The Supreme Court held that the communications restrictions were not unconstitutional because the presiding Judge could still lift the restrictions, provided the Minister does not on a balance of probabilities show a “real risk of injurious disclosure.” In our view, the decision puts us in a better place regarding communications than we were before. There is a effectively a presumption in the decision in favour of communications, and a recognition of the qualifications of Special Advocates, as well as a new requirement for the Minister to show a “real risk” as opposed to speculative concerns.
Click here to read the decision
Click here to read CCLA’s factum before the Supreme Court of Canada