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LAWS 2502- February 5, 2014.docx

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LAWS 2502
Stacy Douglas

2014­02­05 Lecture 5: February 5 th Review Security Certificates • Legal basis is in the Immigration and Refugee Protection Act (IRPA) • Issued by minister of citizenship and immigration and minister of Public safety (executive order) • Allow for arrest and detention of permanent residents and foreign nationals • Process may deprive individuals and their arrest and detention • Threat to national security, violating human rights or being involved in organizations? What was found in Charkaoui v Canada (2007) • Certificate process infringes s7 due to reasonability test, s9 and s10 due to length of detention (response to QA from last lecture) • SC regime’s detention of PRs and FNs does not infringe S7 or s12 (response to QB from last lecture) • s15 not violated (ok to discriminate against citizens and non citiΩens re: deportation) (response to QC from last lecture) • IRPA SC regime consistent with the rule of law (response to QD from last lecture) • Parliament has one year to fix law Aftermath of Charkaoui • Bill C3 implemented with creates a special advocate system • Detainees still do not know evidence against them • Special advocate to work in best interest of detainee THIS DUDE. • Carl Schmidt “The sovereign is he who decides the exception” • Illuminates who is above the law when they make these decisions It’s not irregular, it’s part of sovereignty Liberal democrats who are obsessed with having order of law are covering over the truth of sovereignty The truth is that sovereignty is in the POWER of the person making that decision (derogate or erode those rights) Forces us to ask tough questions of liberal democracy Difference between s7 and s1 of charter • S7 concerned with whether limit has been imposed in a way that respects fundamental justice • S1 concerned with whether limit is justified Real Lecture Borowski v Canada (Attorney General) (No 2) 1989 • Borowski claims s251 (4) (5) and (6) of the criminal code contravene s7 and s15 charter rights of the foetus • Seeks declaration that legislation is invalid • Claims he has standing due to interest as general citizen and there is no other reasonable manner to bring issue before court • Lower sask court found foetus not protected by charter and courts not able to assess substantive content of legislation • Upon appeal, found that s7 and s15 do not apply to foetus • By time case comes to SCC, s251 struck down in R v Morgentaler (No. 2) Question: Does Borowski lose standing and therefore, is the appeal moot? YES. Standing • the thing you need in order to take a case forward • In order to have standing, one must be DIRECETLYAFFECTED or have genuine interest as a citizen in the validity of the legislation (and have no other reasonable manner to bring matter before court) Known as the “Borowski test” established in Minister of Justice (Canada) v Borowski (1981) 2 SCR 575 This is an EARLIER case than the one we’re looking at Constitutional basis • s24(1) of charter: “Anyone whose rights or freedom, as guaranteed by this charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such a remedy as the court considers appropriate and just in the circumstances” • s52(1) of the constitution act, 1982: “the constitution of Canada is the supreme law of Canada , and any law that is inconsistent with the provisions of the constitution is, to the extent of the inconsistency, of no force or effect” Mootness • The ways to which we determine whether something is moot • Two-step analysis: Has the concrete dispute disappeared? If so, should court use discretion to hear case? An appeal cannot be transformed into a reference (a question that parliament puts to judges, gives legal guidance) This is a right that PARLIAMENT has and not citizens They can only pontificate on outcome if they are ASKED to do this Judges can’t start pontificating on some constitutional matter by their own will/ private citizen If there’s no concrete dispute, they are at risk of overstepping their judicial role Rationale is comprised of these things…. Rationale: I) System is based on two parties having stake in issue II) Court must assess whether it is wor
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