As Good as It Gets? Security, Asylum, and the Rule of Law after the Certificate Trilogy

Osgoode Hall Law Journal, Vol. 52(3), 2015

Osgoode Legal Studies Research Paper No. 1/2016

32 Pages Posted: 14 Oct 2015 Last revised: 7 Jan 2016

Date Written: October 9, 2015

Abstract

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision-makers to deport individuals who pose de jure security risks to face torture or similar abuses remains effectively unconstrained — so much so that it is doubtful that Canada has complied with Suresh v. Canada. If the Supreme Court of Canada takes its own rationale in the certificate trilogy seriously, it must either revise its position in Suresh or encourage the extension of the procedures and practices used in the certificate regime to the entire security and migration nexus, including the removal process.

Keywords: Security, migration, human rights, constitutional law, torture

JEL Classification: K00, K10, K19, K30, K39, K37

Suggested Citation

Hudson, Graham, As Good as It Gets? Security, Asylum, and the Rule of Law after the Certificate Trilogy (October 9, 2015). Osgoode Hall Law Journal, Vol. 52(3), 2015, Osgoode Legal Studies Research Paper No. 1/2016, Available at SSRN: https://ssrn.com/abstract=2673543 or http://dx.doi.org/10.2139/ssrn.2673543

Graham Hudson (Contact Author)

Ryerson University ( email )

350 Victoria Street
Toronto, Ontario M5B 2K3
Canada

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