The Never-Ending Story? Charkaoui (Re) and the Virtues of Persistence

If at first you do not succeed, try, try again. These words of wisdom convey the ethos of human rights advocacy: paucities of political power, limited financial resources, public indifference (if not outright hostility), and the slow pace of social change regularly conspire to cast those who persist in the fight for justice as idealistic at best, naïve at worst. Such has certainly been the experience of those who have launched a barrage of constitutional challenges to our post-9/11 security certificate regime; a regime that allows the government to detain and deport non-citizens who are deemed to be, among other things, a threat to national security. Despite compelling arguments and the persuasive authority of developing international and foreign law, the Federal Court and the Federal Court of Appeal repeatedly refused to intervene on behalf of persons named in certificates. Relying on deep-rooted assumptions about the administrative “nature” of certificate proceedings, as well as the limited rights to which non-citizens are entitled, Federal judges did little to infuse enhanced procedural protections into what have progressively been recognized to be quasi-criminal proceedings.