{"id":261486,"date":"2002-09-01T04:00:00","date_gmt":"2002-09-01T08:00:00","guid":{"rendered":"https:\/\/policyoptions.irpp.org\/issues\/finding-the-right-balance\/"},"modified":"2025-10-07T19:29:50","modified_gmt":"2025-10-07T23:29:50","slug":"finding-the-right-balance","status":"publish","type":"issues","link":"https:\/\/policyoptions.irpp.org\/fr\/2002\/09\/finding-the-right-balance\/","title":{"rendered":"Finding the right balance"},"content":{"rendered":"

I take as my departure the search for the right balance between the freedoms of the individual and the security of the state. Clearly, there is often a dynamic tension, and sometimes quite anomalous behaviour, as we try to find our way through the maze to achieve the right kind of solution. Take, for example, the actions of Prime Minister Trudeau when he enunciated in 1970 the right of the state to carry out its functions, in that case by using a decades-old blunt instrument called the War Measures Act<\/em>. And yet this is the same prime minister who some years later championed, and encouraged some of the best minds in the country to craft, what has become the seminal Canadian legislation protecting an individual’s rights\u201d\u201dthe Canadian Charter of Rights and Freedoms<\/em>.<\/p>\n

Clearly, legitimate advocacy, protest and dissent are fundamental to the health of our democracy. When do such advocacy, protest and dissent cross the line from legitimacy to violence and incitement to violence? Where should the lines be drawn when matters of state or international questions are being debated, as we have seen in the protests and marches and criticisms in Seattle, in Quebec City and in Genoa? To have this work effectively there has to be an\u00a0understanding on both sides of the fence, so to speak. Unfortunately, the dialogue needed to define this particular balance is largely absent, in part because governments suspect that those with legitimate concerns or with relatively little understanding of the issues at play are stampeded by others advocating divisive and conceivably violent courses of action. The radicals, for their part, have no interest in dialogue and compromise.<\/p>\n

We should, then, have a look at whether the (first draft of) anti-terrorism legislation brought forward by the government in the wake of September 11 has materially altered the balance between the rights and freedoms of individuals to protest and to advocate and the safety and security of the nation and its population collectively. These issues have been debated extensively across the country. Views range from a ringing affirmative that this legislation does pose dangers to our democratic rights to advocate, protest and dissent, to a rather muted call for improvements to the bill by restricting some of its more sweeping clauses, to the view held by some that parts of the bill do not go far enough. They represent a healthy spectrum of views, intellectually yet passionately argued. Significantly, there is a recurring concern that the new powers given to the police will not be effectively monitored and overseen to ensure that these provisions are rigorously restricted to matters which dwell directly on potential or actual terrorist activities or acts. In short, there is uneasiness that, wilfully, inadvertently or through inexperience, the police will deploy these new powers in unrelated or unintended areas.<\/p>\n

The question is not whether Canada needed additional legislative heft in its efforts to counteract terrorism. It did. The question is whether the hastily drafted legislation (since revised) has accomplished its essential purposes without tipping the balance away from legitimate advocacy, protest and dissent and toward the security of the state and its inhabitants, thereby unacceptably chilling exercise of these rights.<\/p>\n

Even in the absence of a state of war, in the strict legal sense there is no question that the United States and its allies have a right to respond to the recent attacks on American territory. This right is accepted under international\u00a0law.<\/p>\n

States have the inherent right in international law to take action individually and collectively to deal with terrorist attacks and to safeguard the peace and security of their populations. Article 51 of the UN Charter codifies this right. It says that nothing in the Charter \u201cshall impair the inherent right<\/em> of individual or collective self-defence if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.\u201d<\/p>\n

In addition, supporting direct action by the United States and its allies is the legal doctrine of self-help in times of necessity, reflected in numerous decisions by the International Court of Justice and its predecessor, the Permanent Court of International Justice. That doctrine, part of the inherent right of state security, allows states to take actions to protect themselves, individually and collectively, in terms of immediate and grave threats to international peace and security, and to their own safety.<\/p>\n

That is not to say that self-help has not often been abused as a means of justifying aggressive behaviour. For example, of particular concern to Martin Friedland at the University of Toronto Law School is the fact that in the United States and the United Kingdom which have, give or take, equivalent legislation, the police powers are much more carefully overseen and controlled by the central government. In the case of the United States the additional powers under their legislation are given to the FBI, whereas in the United Kingdom policing is a centralized function with the responsibility lying ultimately with the Home Office. The point is that in our decentralized law enforcement system there is likely to be much less oversight and control over the potential misuse of these powers by police forces of widely differing size and experience across the country.<\/p>\n

Ironically, by granting these increased powers to all police forces in Canada\u201d\u201dand policing is, at the end of the day, designed to make an arrest and secure a conviction\u201d\u201dzealous police forces may well be interfering with the preventive intelligence-gathering process which is centred in the Canadian Security Intelligence Service (CSIS).<\/p>\n

The recent terrorist attacks raised serious questions about the adequacy of Canada’s existing laws concerning economic sanctions and embargoes, as well as those permitting the freezing of financial and other assets belonging to or forming part of the activities of any international terrorist organization.<\/p>\n

The Canadian anti-terrorist regime was divided among at least three different statutes and separate enforcement regimes. Sanctions were enforced mainly through the provisions of the United Nations Act<\/em> and the Export and Import Permits Act.<\/em> This first law operates under certain limitations, the most critical being the restriction of its application to the implementation Canada’s obligations under binding resolutions of the United Nations Security Council adopted under Article 41 of the UN Charter. There was no authority for the federal cabinet to make orders beyond the scope of such resolutions. Therefore, if the Security Council did not act under Article 41, no cabinet orders could be issued under the UN Act,<\/em> whatever the crisis or whatever the urgency to protect Canada’s vital interests.<\/p>\n

With these limitations in view, the federal government has filled the gaps through regulation and legislation. The initial regulations implemented UN Security Resolution 1373 of September 28 and for the first time included a list of terrorist organizations in addition to the Taliban and bin Laden and his circle. The regulations penalize knowingly raising funds for or dealing in the assets of any such listed organizations. In addition, these regulations impose significant new reporting and disclosure obligations, placing the onus on Canadian financial institutions to determine \u201con a continuing basis\u201d if they are in possession or control of terrorist property. I have no difficulty with these provisions on the surface but acknowledge that legitimate concerns arise whenever a \u201clist\u201d is created with coercive intent.<\/p>\n

Bill C-36, the Anti-terrorism Act<\/em>, has four objectives:<\/p>\n