Research Paper Number

1/2016

Document Type

Article

Publication Date

2016

Keywords

Security, migration, human rights, constitutional law, torture

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.

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