Procedure over substance

Abstract

The Supreme Courts of Canada and the US have both adjudicated cases concerning the rights claims of suspected terrorists. While the Canadian Supreme Court adjudicates these cases asking whether the government actions violate the Charter of Rights and Freedoms, the US Supreme Court, in the American tradition, does not look to its Bill of Rights for answers, but rather adjudicates such claims based on a separation of powers framework. This article examines the judicially-created reasoning used to decide security cases in a post-9/11 world in Canada and the United States. I show that while the Canadian experience looks like it is more rights-based, the Canadian Supreme Court, like its American counterpart, looks at the procedure of how the law goes about limiting rights over the substance of the legitimacy of the limit in the first place. I conclude that the two courts end up using similar legal reasoning, despite differing approaches, resulting in each state providing a delicate balance between security and liberty.