Supreme Court of Canada - Decisions - Security Certificate Case - Charkaoui v. Canada (Citizenship and Immigration)

The Supreme Court of Canada has declared the key elements of the security certificate system invalid in  Charkaoui v. Canada (Citizenship and Immigration). This is the system under which Ministers may declare that a foreign national or permanent resident may not be admitted to Canada because of security concerns. The person is then detained, subject to limited review rights (the limits include restrictions on disclosure of the information that led to the issuing of the certificate or the decision to detain). The procedures for detention and review differ as between foreign nationals and permanent residents.

Charter violations were found in the failure to provide a fair hearing; failure to provide timely review of detention of foreign nationals. Extended periods of detention do not per se constitute a Charter breach, so long as there are regular opportunities for review of the detention taking into account all relevant factors. The differential treatment of citizens and non-citizens did not constitute a Charter breach, because (at least in the present cases) the detention of non-citizens remained linked to their eventual deportation. The unwritten constitutional principle of the rule of law does not (at least, not in any case yet postulated) provide a basis for review of legislation based on its content.