Our Evolving Judicature: Security Certificates, Detention Review, and the Federal Court

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University of British Columbia Law Review, Vol. 39, No. 1, pp. 101-137, 2006


Federal Court, Terrorism, Canada, Constitutional Law, Habeas Corpus


Two issues have been particularly prominent in the contemporary scholarly discussion about civil liberties in Canada: the ever-present debate about the legitimacy of judicial review, with its current "dialogue theory" inflection, and the wisdom and constitutionality of national security measures introduced or made more prominent in light of the current concern with terrorism. In this article, the author draws together these concerns around civil liberties and judicature in an examination of the detention review powers of the Federal Court within the contentious security certificate procedure in the Immigration and Refugee Protection Act. Contrary to conventional wisdom, the author concludes that the Federal Court has the power to review the automatic detention of foreign nationals pursuant to security certificates. Most commentators and our courts have misassessed the powers of the Federal Court and this misdiagnosis is attributable, in part, to a myopic view of judicature that has failed to recognize certain profound shifts in the structure of Canadian judicature.


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