Process and Substance: Charkaoui I in the Light of Subsequent Developments
Bibliographic record
Abstract
The relationship between process and substance in the Canadian Supreme Court’s 2007 Charkaoui decision, on the legality of the indefinite detention of foreign terrorist suspects under the Canadian Charter, is examined in the light of subsequent jurisprudential developments. Procedural modifications to the relevant detention regime, instigated by Charkaoui I had, by the end of 2009, resulted in cases which saw the release of two of the five men held under the regime (decisions of the Canadian Federal Court in the Charkaoui and Almrei litigation). I argue that the benefits of the procedural solution arrived at by the Court in Charkaoui I do not outweigh the costs. My objective is to provide a fuller accounting of the costs of the Court’s decision in Charkaoui I to opt for an exclusively procedural solution to rights infringements. I characterise the procedural solution determined on by the Court in Charkaoui I as a form of constitutional minimalism, as associated with Sunstein. Amongst other criticisms of the Court’s fixation with process, I suggest that Charkaoui I raises doubts as to the extent to which constitutional minimalism can, in practice, deliver on one of the desiderata it prides itself on, namely leaving the issues “open”.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.011 | 0.026 |
| Meta-epidemiology (narrow) | 0.000 | 0.001 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.003 | 0.003 |
| Science and technology studies | 0.019 | 0.052 |
| Scholarly communication | 0.023 | 0.010 |
| Open science | 0.003 | 0.007 |
| Research integrity | 0.009 | 0.017 |
| Insufficient payload (model declined to judge) | 0.004 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".