“Security Certificates and the Charter” by Jonathon Shapiro

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Introduction

The topics of criminal prosecution for terrorist activities and the application of appropriate measures to detect and punish extremists are the pressing issues of modern policies that guarantee countries’ national security. As an object of analysis, the article “An Ounce of Cure for a Pound of Preventive Detention: Security Certificates and the Charter” by Jonathan Shapiro and published in 2008 will be considered.¹ At the time of writing, the author was an outstanding academic and had significant recognition in the scientific community due to activities in the field of jurisprudence and criminal law.

To appreciate the importance of the theme raised by Shapiro, the article in question will be analyzed by its content and key issues concerning legislative nuances about counter-terrorism and its identification. National security topics in the context of immigration will be discussed, and the possible impact of refugees on anti-extremism policies in Canada will be studied. As an additional justification, relevant legislative acts will be engaged, and corresponding provisions will be analyzed based on the given problem. Some issues of the criminal prosecution of extremist activities against immigrants are controversial, and the analysis of this problem may help identify real and reasonable grounds for legislative interference.

The Author’s Research Project

One of the key issues addressed in the article is obtaining certificates of safety for refugees in Canada and, as a result, the legality of the legislative authorities’ actions about arresting suspected terrorists. Separate documents analyzed in the work are reviewed and evaluated in terms of relevance for these topics. The violation of legal civil rights is one of the theses, and Shapiro argues that serious reasons are needed to keep a person in custody under an accusation that does not have a sufficiently objective substantiated basis.²

As evidence used for this work, excerpts from state acts and regulations are given. In addition, Shapiro mentions some criminal cases and analyzes the outcomes of specific court hearings.³ For a comprehensive assessment, cases from various courts are dealt with, including both local hearings and debates in the Supreme Court of Canada. The structure of the article is divided into paragraphs, and a phased analysis of the Charter that regulates the rights and obligations of refugees is carried out by reviewing individual provisions. As specific topics, such nuances are considered as the key standards of the Charter, its specific excerpts regarding the interaction and criminal prosecution of refugees, as well as the standards of evidence.

Summary and Analysis of the Article

As a key thesis of the article, Shapiro argues that existing legislation is biased against immigrants residing in Canada, which translates into the illegal preventive detention of the suspected of extremist activities.⁴ The theories of human rights and, in particular, the presumption of innocence are the basic concepts to which the author resorts in his arguments. The essence of the allegations is that if there is no appropriate evidence base in support of the accusation of a certain person for committing criminal acts. Consequently, the detention of that person based on his pr her status as an immigrant violates human rights. In addition, the claim is repeated several times that the compulsory receipt of a security certificate is a violation of non-citizens’ dignity. The status of immigrants as the only threat to the national security of the country is unacceptable, and this idea is traced throughout the work.

Individuals cannot be prosecuted until they are involved in criminal cases. Shapiro cites the provisions of the Charter, in particular, its sections 7 and 9, and notes that by these rules, the government is obliged “to establish just cause before detaining an individual.”⁵ In addition, according to the author, those responsible should consider any risks, while taking into account the “balance of probabilities,” thereby ensuring a fair solution to issues related to national security.⁶ Regarding the problem of obtaining a safety certificate, Shapiro states that this procedure is a violation of the equality rights provided for by the Charter because, by law, Canadian legislation applies equally to all people.⁷ As a result, preventive detention about non-citizens is unfounded, and justice standards are not maintained. The Law test cited by the author is one of the pieces of evidence that prejudices against participants in legal proceedings based on personal criteria are unacceptable.⁸ If differentiation treatment is observed, this is a direct violation of ethical rules and civil liberties. As a result, these references confirm the proposed thesis and prove the relevance of this topic.

Locating Secondary Sources and Government Documents

To prove the relevance of the topic raised in the considered article, additional resources will be involved, and the topics of national security and terrorism in the Canadian context will be reviewed. The study “How the War Was ‘One:’ Countering Violent Extremism and the Social Dimensions of Counter-Terrorism in Canada” by Jacoby published in 2016 is one of the sources that provide valuable information on this topic.⁹ The key topic of the article is the description of counter-terrorism measures based on social dimensions and involving the use of various approaches to countering extremist actions. In particular, Canadian initiatives are considered, and the values of local people about the global problem of terrorism are applied to elicit answers to basic questions. The research scope includes the analysis of not only local legislation about countering terrorism but also international practices, including the laws of different countries and examples of states with extremist movements. References are given both to the contemporary manifestations of extremism in society and to terrorist acts and crimes of past years for conducting a comparative analysis.

In the context of the problems of terrorism and national security, the study under consideration addresses such an issue as asymmetry that implies attacks by small groups on a stronger enemy through extremist activities, for instance, bombing. Jacoby argues that this principle was typical of the past century, but today, due to the development of weapons and combat techniques, terrorist threats pose a significant threat to society.¹⁰ Also, the author considers extremism in comparison with existing national legislation, in particular, liberal democracy and a radical approach to countering terrorists.¹¹ In general, the article provides reliable information and contains relevant data that are of practical value. All historical facts cited are confirmed by links to corresponding academic resources and official documents. There are no obvious weaknesses in the article since all the key topics are touched upon, and both problems and solutions are mentioned.

Another work that also addresses the theme of terrorism in Canada and countering this phenomenon is the report of the House of Commons entitled “Protecting Canadians and their Rights: A New Road Map for Canada’s National Security” and published in 2017.¹² The parliamentary meeting was dedicated to assessing measures adopted in the country to combat extremism and improve national security, and one of the points is the promotion of a program to protect against terrorist threats. Also, the report raises the issues of the importance of sharing information and developing modern tracking and control systems. Terrorist propaganda is seen as a dangerous phenomenon, and the prevention of this practice is one of the target areas of internal security agencies’ activities. In the context of the topic under discussion, this report provides relevant data demonstrating the interest of the government in combating terrorism at the national level.

Although this work was published more than two years ago, it contains relevant information concerning developments in the field of national security. The information provided is completely reliable not only because it is quoted by the supreme government but also due to a large number of references to authoritative sources. In addition, the Charter of Rights and Freedoms is mentioned more than once in the text, which is also relevant to the issues analyzed. The main weakness of the report is that it focuses solely on the participation of government boards and does not discuss citizens’ security issues. In this regard, the problem of countering extremism in the context of the protection of rights and freedoms remains relevant.

Situating the Shapiro Article in the Broader Literature

When considering the original article analyzed and the related resources provided to describe the theme of terrorism in Canada and national security policies, certain assumptions can be made. In general, I do not agree with the current government actions regarding the issue under consideration, and the article by Shapiro is an essential argument in support of my beliefs. Firstly, I believe that treating immigrants as potential extremists is unacceptable today not only for ethical but also for legislative reasons. Shapiro mentions the Charter and notes that the judiciary violates immediate human rights, and preventive detention is one of the manifestations of such decisions’ illegitimacy.¹³ The representatives of the national security system are to have good reasons to accuse people of extremism. Consequently, countermeasures based on immigrants’ arrests contradict the principles of democratization that are promoted by the official report of the House of Commons.¹⁴ In my understanding, this cause is the most compelling and convincing.

Secondly, I believe that the role of civil rights is underestimated when national security issues are raised, which, in turn, are expressed in total control and the arrests of civilians. Despite the usefulness of policies aimed at strengthening counter-terrorism measures, for instance, the intensified renewal of weapons that Jacoby¹⁵ mentions, assisting the country’s residents is the government’s key task. Nevertheless, when analyzing the presented sources, one can note that more attention is paid not to the population and its protection but the radicalization of the central position of the authorities about extremism. The provisions of official documents and codes of laws are legitimate as long as the ruling elites find value in them. However, when the problem is particularly acute, these laws are neglected, and the most defenseless strata of the population, for instance, immigrants are forced to experience pressure. Therefore, the position of ignoring human rights in favor of national security seems to me irrational and unreasonably harsh directly about the population.

Finally, thirdly, I do not agree with the current legislation regarding terrorism and the Canadian system of national security due to the lack of an opportunity to appeal a certain decision. The topic of extremism is acute, and examples in world practice prove that preparedness to repel attacks is an important aspect of the work of law enforcement agencies. At the same time, persons accused of complicity with terrorists do not have any chance to prove their innocence since a measure in the form of preventive detention is appointed. As a result, as Shapiro argues, limits restricting liberty are not taken into account by the courts, which, again, is a direct violation of human rights.¹⁶ Thus, the topic under consideration is relevant, and creating a more perfect and advanced system of national security is logical and reasonable. Nevertheless, when ordinary citizens are forced to bear responsibility for the incompetence of security agencies in detecting criminals, this means that the system is unstable, and it is impossible to solve problems by attributing all crimes to immigrants.

Locating the Immigration and Refugee Protection Act

One of the documents defining legislation for non-citizens in Canada is the Immigration and Refugee Protection Act (IRPA) that aims to resolve issues related to visitors.¹⁷ In particular, Part 2 concerns the protection of refugees, as well as the rights and freedoms granted to them by the state. This section includes a set of rules that is to be followed concerning non-citizens and the conditions that allow them to ask the legislature for help. The purpose of enacting this part of the Act is to help those people who need help due to the lack of official Canadian citizenship, and the corresponding responsible authorities are called upon to resolve issues related to this topic. As a result, Part 2 has become the main set of rules determining legislation regarding refugees, exceptions to generally accepted norms, as well as the principles of interaction between the non-Canadian population and the authorities. All the issues associated with criminal prosecution, including threats to national security, also fall under the authority of this document and regulate the nature of actions against the accused.

Updating the Statute

The Act in question is the document where amendments or changes are periodically made based on the decisions of the competent authorities.¹⁸ As an example, some provisions of the Appeal to Refugee Appeal Division were repealed in 2012.¹⁹ In particular, the proposal to review appeals in case of contentious issues was withdrawn. Also, the mission was canceled to determine whether a specific case concerned the jurisdiction of the board or not.

Another example of changes made to this document is the deadline for appeals. According to the official information, the section determining the period of a possible application to the competent authority was also repealed in 2012.²⁰ Special paragraphs of the rules determined whether a person could count on protection if one or more years had passed since the moment he or she was refused to appeal.

Finally, one of the earliest paragraphs of the document, which related to offenders, was abolished in 2001.²¹ This section of Part 2 provided for a certain volume of pecuniary damages that the accused had to pay “on conviction on indictment.”²² Alternatively, preventive detention was also considered as a potential punishment method, but today, these rules are not relevant and cannot serve as a justification base.

Previous Version of the Statute

In the previous version of the Statute in question, which regulates the rights and obligations of immigrants and refugees located in Canada, some sections were different. In particular, after updating the Act, section 117 was amended. The previous document published in 1976 defined kinship in families as one of the criteria for obtaining refugee status and presumed punishment for certain violations based on these data.²³ In the new Act, these principles were revised since many found the terms of this section unreasonably harsh. The arrival of residents of other countries in Canada has become more loyal, and the rights and freedoms of non-citizens have become broader by the updated terms of the Statute. Based on the prerequisites of the changes made to the document, any person or family has the right to help if they ask for it.²⁴ As a result, in addition to fines and penalties for crimes, the new section began to include provisions on entry into the country and rules for controlling visitors.

Delegated Legislation: Immigration and Refugee Protection Regulations

As a separate set of rules, the Canadian Department of Justice issued an individual document called “Immigration and Refugee Protection Regulations” in the same year as IRPA.²⁵ The provisions of this Act include special rights and obligations related to refugees and defining the aspects of the legal, social, customs, and other conditions of non-citizens staying in the country. One of the parts of this document is section 75(1) that defines “the federal skilled worker class.”²⁶ The essence of this part is that any non-citizen living in Canada can become a permanent resident due to his or her skilled labor. If a person carries out a specific list of work instructions qualitatively and productively, thereby making a personal contribution to the state’s economy, this is one of the possible conditions for obtaining citizenship. Accordingly, this section is relevant to those visitors who have officially registered jobs.

Locating Bill S-7

In 2015, Bill S-7 was adopted, which was called “An Act to Amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to Make Consequential Amendments to Other Acts.”²⁷ The exact date of its royal assent was June 18th, 2015, and at the third reading, the document was approved.²⁸ At the same reading, Don Davies, Member of Parliament and the representative of the New Democratic Party voted against the adoption of this Bill, as well as all the members of his party. At the second Senate reading, Chris Alexander, a spokesman for the Conservative Party, was the first to deliver a speech after Bill’s editorial presentation. Debbie Douglas who was Ontario Council of Agencies Serving Immigrants at that time expressed her concerns regarding this document. She referred to some ethical aspects, in particular, the application of this law to toughen punishment for refugees, special treatment for immigrants’ children born in Canada, as well as intensive studying certain families’ biographies.

Bibliography

Canada, Department of Justice, Immigration and Refugee Protection Act (Ottawa: Justice Canada, 2002).

Canada, Department of Justice, Immigration and Refugee Protection Regulations (Ottawa: Justice Canada, 2002).

Canada, Parliament of Canada, Immigration Act (Ottawa: Justice Canada, 1976).

Canada, Senate Government Bill, S-7: An Act to Amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to Make Consequential Amendments to Other Acts (Ottawa: Justice Canada, 2015).

House of Commons, Standing Committee on Public Safety and National Security, Protecting Canadians and Their Rights: A New Road Map for Canada’s National Security (May 2017) (Chair: Robert Oliphant).

Jonathan Shapiro, “An Ounce of Cure for a Pound of Preventive Detention: Security Certificates and the Charter” (2008), 33 Queen’s L J 519-564.

Tami Amanda Jacoby, “How the War Was ‘One:’ Countering Violent Extremism and the Social Dimensions of Counter-Terrorism in Canada” (2016), 6 J Deradical 272-304.

Footnotes

Jonathan Shapiro, “An Ounce of Cure for a Pound of Preventive Detention: Security Certificates and the Charter” (2008), 33 Queen’s L J 519.
Shapiro, supra note 1, at 519.
Ibid. 519.
Ibid. 521
Shapiro, supra note 2, at 523.
Ibid. 523.
Ibid. 519.
Ibid. 537.
Tami Amanda Jacoby, “How the War Was ‘One:’ Countering Violent Extremism and the Social Dimensions of Counter-Terrorism in Canada” (2016), 6 J Deradical 272.
Ibid. 277
Ibid. 282
House of Commons, Standing Committee on Public Safety and National Security, Protecting Canadians and Their Rights: A New Road Map for Canada’s National Security (May 2017) (Chair: Robert Oliphant).
Shapiro, supra note 3, at 519.
House of Commons, supra note 4, at 1.
Jacoby, supra note 5, at 277.
Shapiro, supra note 6, at 521.
Canada, Department of Justice, Immigration and Refugee Protection Act (Ottawa: Justice Canada, 2002).
Ibid. 96.
Ibid. 96.
Canada, Department of Justice, supra note 7, at 98.
Ibid. 108.
Ibid. 108.
Canada, Parliament of Canada, Immigration Act (Ottawa: Justice Canada, 1976).
Canada, Department of Justice, supra note 8, at 102.
Canada, Department of Justice, Immigration and Refugee Protection Regulations (Ottawa: Justice Canada, 2002).
Ibid. 78.
Canada, Senate Government Bill, S-7: An Act to Amend the Immigration and Refugee Protection Act, the Civil Marriage Act and the Criminal Code and to Make Consequential Amendments to Other Acts (Ottawa: Justice Canada, 2015).
Ibid. i.

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