Habeus Corpus

Keith Olbermann of MSNBC comments on the potentially detrimental impact of recent U.S. legislation on the traditional, constitutional entitlement to habeus corpus in America.

(This legislation, the Military Commission’s Act of 2006, represents Congress' response to the U.S. Supreme Court's decision in Hamdan v. Rumsfeld, on which I commented here.)

For a short primer on habeus in Canada, see the excerpt below, from Canadiana.org:

Habeas corpus: A writ or order requiring that prisoners be brought before a court to determine if he or she is being held lawfully. [sic]

The right of habeas corpus is intended to prevent imprisonment without charges.

The right of habeas corpus has been suspended several times in Canadian history, most notably when German, Ukrainian and other Slavic Canadians were interned in World War I, and when Japanese Canadians were interned during World War II. It was also suspended in Québec in 1970 during the October Crisis.

Highly related is the issuance of Canadian Security Certificates under the Immigration and Refugee Protection Act. This legislation provides for the removal, without open hearing, of any non-citizen who is found to pose a security threat to Canada:

DIVISION 9 - PROTECTION OF INFORMATION

Examination on Request by the Minister and the Minister of Public Safety and Emergency Preparedness

Referral of certificate
77. (1) The Minister and the Minister of Public Safety and Emergency Preparedness shall sign a certificate stating that a permanent resident or a foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality and refer it to the Federal Court, which shall make a determination under section 80.

Effect of referral
(2) When the certificate is referred, a proceeding under this Act respecting the person named in the certificate, other than an application under subsection 112(1), may not be commenced and, if commenced, must be adjourned, until the judge makes the determination. 2001, c. 27, s. 77; 2002, c. 8, s. 194; 2005, c. 10, s. 34.

Judicial consideration
78. The following provisions govern the determination:

(a) the judge shall hear the matter;

(b) the judge shall ensure the confidentiality of the information on which the certificate is based and of any other evidence that may be provided to the judge if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

(c) the judge shall deal with all matters as informally and expeditiously as the circumstances and considerations of fairness and natural justice permit;

(d) the judge shall examine the information and any other evidence in private within seven days after the referral of the certificate for determination;

(e) on each request of the Minister or the Minister of Public Safety and Emergency Preparedness made at any time during the proceedings, the judge shall hear all or part of the information or evidence in the absence of the permanent resident or the foreign national named in the certificate and their counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person;

(f) the information or evidence described in paragraph ( e) shall be returned to the Minister and the Minister of Public Safety and Emergency Preparedness and shall not be considered by the judge in deciding whether the certificate is reasonable if either the matter is withdrawn or if the judge determines that the information or evidence is not relevant or, if it is relevant, that it should be part of the summary;

(g) the information or evidence described in paragraph (e) shall not be included in the summary but may be considered by the judge in deciding whether the certificate is reasonable if the judge determines that the information or evidence is relevant but that its disclosure would be injurious to national security or to the safety of any person;

(h) the judge shall provide the permanent resident or the foreign national with a summary of the information or evidence that enables them to be reasonably informed of the circumstances giving rise to the certificate, but that does not include anything that in the opinion of the judge would be injurious to national security or to the safety of any person if disclosed;

(i) the judge shall provide the permanent resident or the foreign national with an opportunity to be heard regarding their inadmissibility; and

(j) the judge may receive into evidence anything that, in the opinion of the judge, is appropriate, even if it is inadmissible in a court of law, and may base the decision on that evidence. 2001, c. 27, s. 78; 2005, c. 10, s. 34(E).

Proceedings suspended
79. (1) On the request of the Minister, the permanent resident or the foreign national, a judge shall suspend a proceeding with respect to a certificate in order for the Minister to decide an application for protection made under subsection 112(1).

Proceedings resumed
(2) If a proceeding is suspended under subsection (1) and the application for protection is decided, the Minister shall give notice of the decision to the permanent resident or the foreign national and to the judge, the judge shall resume the proceeding and the judge shall review the lawfulness of the decision of the Minister, taking into account the grounds referred to in subsection 18.1(4) of the Federal Courts Act. 2001, c. 27, s. 79; 2002, c. 8, s. 194.

Determination that certificate is reasonable
80. (1) The judge shall, on the basis of the information and evidence available, determine whether the certificate is reasonable and whether the decision on the application for protection, if any, is lawfully made.

Determination that certificate is not reasonable
(2) The judge shall quash a certificate if the judge is of the opinion that it is not reasonable. If the judge does not quash the certificate but determines that the decision on the application for protection is not lawfully made, the judge shall quash the decision and suspend the proceeding to allow the Minister to make a decision on the application for protection.

Determination not reviewable
(3) The determination of the judge is final and may not be appealed or judicially reviewed.

Effect of determination — removal order
81. If a certificate is determined to be reasonable under subsection 80(1),

(a) it is conclusive proof that the permanent resident or the foreign national named in it is inadmissible;

(b) it is a removal order that may not be appealed against and that is in force without the necessity of holding or continuing an examination or an admissibility hearing; and

(c) the person named in it may not apply for protection under subsection 112(1).

The constitutionality of Security Certificate procedures was reviewed by the Supreme Court of Canada in June 2006. The Court's decision is now pending.

CTV News had this backgrounder (excerpted below) on Security Certficates in the context of the S.C.C. case:

Three men are being detained in Canada with little information why, or even when they may be released. Some have been locked away for years. All are legally held using national security certificates.

The government argues the certificates are crucial to protecting Canadians from potential terrorists who have come into the country. Critics say they're an affront to the Charter of Rights and Freedoms...

... The judge's decision is made in private, without the presence of the person named in the certificate or any legal counsel. The person named in the certificate only receives a summary of the information that "enables them to be reasonably informed of the circumstances giving rise to the certificate."

... these summaries are brief sketches at best, giving little indication why an individual is being held. He or she is then allowed to present their case in open court and argue why they are not a threat and should not be deported.

When a judge does make a ruling, the person cannot appeal it. If the judge agrees with the certificate, the person is removed from the country. If not, the certificate is rejected and the person is released.

-Garry J. Wise, Toronto

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