Federal Court ruling on constitutional challenge

Federal Court Chief Justice Allan Lutfy ruled on November 3rd that the motion brought forward on behalf of Hassan Almrei challenging the constitutionality of the revised security certificate provisions was premature. The judge determined that the new provisions came into effect too recently to fully understand their impact and that the challenge brought forth was based on a rejection of the legislation based on its content (or “legislative facts”) rather than evidence of its impact on the complainant.

The case was based on the concerns of special advocates regarding their ability to effectively do their jobs while subject to the “gag-orders” in place preventing them from sharing classified information with detainees and their lawyers, among others including staff, and other special advocates. Permission must even be sought from the court to continue to communicate with the detainee and their lawyer after the special advocate has viewed the ‘secret information’, severely limiting the ability of special advocates to serve the needs of the detainees.

Chief Justice Lutfy determined that it was necessary to wait and see how “the role of special advocates evolve” based on interpretations of the law by presiding judges faced with these decisions. However, he did clarify that special advocates working on the same case could share information with each other. He noted that there were five ongoing certificate proceedings and while these were underway it was premature to rule on the impact of the legislative changes.
Lorne Waldman, the lawyer representing Hassan Almrei (and a spec ial advocate himself), is not ruling out another constitutional challenge once the provisions have been in place for a little longer.

This ruling appears to mean that the men subject to security certificates will be forced to wait until their rights are further violated and that the system fails them even more before they will be in a position to challenge their situation. It is not enough that these special advocates, all seasoned lawyers approved by the government to play this role, are arguing that they can’t do their jobs with the current limitations placed on them. They will somehow have to prove the system’s failures, which will depend in part on the ways in which individual judges interpret the new provisions, while detainees bear the consequences of this delay.

Article regarding Federal Court decision: www.macleans.ca/artcile.jsp?content=n1103111A