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9 - The Law Working Itself Pure? The Canadian Experience with Exceptional Courts and Guantánamo

Published online by Cambridge University Press:  05 June 2014

Kent Roach
Affiliation:
University of Toronto Faculty of Law
Fionnuala Ni Aoláin
Affiliation:
University of Minnesota School of Law
Oren Gross
Affiliation:
University of Minnesota School of Law
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Summary

CANADA HAS NOT BEEN IMMUNE FROM THE USE OF exceptional courts or the legal and political controversies that often accompany their use. Canada did not use its newly enacted antiterrorism law to prosecute suspected terrorists in the ordinary criminal courts for three years after 9/11. Instead, it relied on administrative detention under immigration law that had not been used extensively before 9/11. Security certificates issued under immigration law are subject to review by specially designated judges of the Federal Court. Although the Federal Court is a regularly constituted superior court that hears civil and administrative claims against the federal government, it was an exceptional court in the context of security certificates because of the use of specially designated judges who examine secret evidence submitted by the government, but never disclosed to the detainee. The justifications offered for such use of the Federal Court are the familiar ones for exceptional courts: the need for secrecy; the expertise of specially selected judges trained in security matters; and the difficulties of criminal prosecutions in open court before juries. Security certificates have resulted in long-term and indefinite detention and have been politically and legally controversial. Indeed, some have criticized them as a milder Canadian version of Guantánamo. In any event, security certificates have been the subject of successful challenges under the Canadian Charter of Rights and Freedoms (hereinafter the Charter). In this way, the Canadian security certificate cases provide a case study of exceptional courts that have been successfully resisted and reformed.

Type
Chapter
Information
Guantánamo and Beyond
Exceptional Courts and Military Commissions in Comparative Perspective
, pp. 201 - 224
Publisher: Cambridge University Press
Print publication year: 2013

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References

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Morgan, Ed, A Thousand and One Rights, in The Security of Freedom: Essays on Canada's Anti-Terrorism Bill 412 (Daniels, Ronald J. ed., 2001).
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Roach, Kent, The Criminal Law and its Less Restrained Alternatives, in Global Anti-Terrorism Law and Policy 191 (Ramraj, Victor et al eds., 2d ed., 2012).

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