Is Indefinite Detention of Terrorist Suspects Really Constitutional?

University of New Brunswick Law Journal, Vol. 55, p. 235, 2005

16 Pages Posted: 22 Aug 2010

See all articles by Hamish Stewart

Hamish Stewart

University of Toronto - Faculty of Law

Date Written: 2005

Abstract

The Federal Court of Appeal’s holding in Charkaoui suggests the astounding conclusion that it is lawful to detain terrorist suspects indefinitely without placing a criminal charge. The Immigration and Refugee Protection Act (IRPA) can be seen to have contemplated both indefinite detention of terrorist suspects and inability of detainees to see the evidence against them. In this article, the author argues that the court should have recognized more of the constitutional challenges to the IRPA provisions. After examining the Federal Court of Appeal’s reasons for rejecting the constitutional challenges, this article revisits the constitutional arguments concerning the principles of fundamental justice, the standard of proof, and equality. Next, the article suggests some ways that the court could have addressed the constitutional infirmities of the security certificate scheme without compromising security: 1) a special advocate to represent the detainee’s position, 2) a clarified standard of proof for the current scheme, and possibly 3) a response to the citizen/non-citizen equality concerns.

Keywords: Charkaoui, Immigration and Refugee Protection Act, IRPA, secret evidence, terrorist suspect, indefinite detention, constitutional challenge

Suggested Citation

Stewart, Hamish, Is Indefinite Detention of Terrorist Suspects Really Constitutional? (2005). University of New Brunswick Law Journal, Vol. 55, p. 235, 2005, Available at SSRN: https://ssrn.com/abstract=1662150

Hamish Stewart (Contact Author)

University of Toronto - Faculty of Law ( email )

78 and 84 Queen's Park
Toronto, Ontario M5S 2C5
Canada

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