In reflecting on the 25th anniversary of the Canadian Charter of Rights and Freedom, I offer some observations on the Charter in the context of ”œterrorism, secu- rity and human rights: the dilemma of democracies.” In so doing, I will incorporate by reference my own involvement with the issues of security and rights over the years, which reflect the different vantage points from which my various roles and responsibilities have allowed me to view the Charter.
First, I will share six models, which find expression on both the conceptual and operational level, and which underpin the spectrum of the relationship between security and rights, or, more broadly, terrorism, security and rights. Second, I will offer a brief snapshot of the basic principles, from a constitutional and Charter perspective, which in turn underpin these models.
The first model is what might be called the International Criminal Justice and Anti-Terrorism Model. Bill C-36 " which became our Anti-Terrorism Act and basic anti-terrorism law " is a manifestation of this model. I will address this model at greater length as I have been involved with it as law professor, member of Parliament and minister of justice, and it is the founda- tional model for Canadian anti-terrorism law and poli- cy anchored in an international criminal justice framework.
First, as a law professor I wrote in the 1990s that I felt a distinguishable genre of law was necessary for a specific, dis- tinguishable category of crime: namely, terrorist criminality, and that this needed to be anchored in an international criminal justice perspective.
Second, I was a member of Parliament when the then justice minister and former law professor Anne McLellan rose in the House of Commons on October 15, 2001, just five weeks after the events of 9/11, to intro- duce Bill C-36. The very next day I rose in the House of Commons to say that I had 10 civil libertarian concerns with the proposed Bill, and that if it remained in its orig- inal form I not only would oppose it, but would vote against it.
This engendered a series of discus- sions with the government at the time, and within the Standing Committee on Justice and Human Rights, which resulted in seven of those ten areas of concern being met wholly or in part. At that time, Anne McLellan advised me to remember that I was no longer a law professor, but a member of the government at a particularly crucial time, and was obliged not only to critique but to decide. Accordingly, I chose to support Bill C-36, but continued to express and write about my residual concerns.
My third role, that of minister of justice from December 2003 to January 2006, included responsibility for the enforcement of the Anti- Terrorism Act. Indeed, it was as minister that I was involved in the initiation of the first prosecution under this Anti- Terrorism Act, in the case of R. v. Khawaja. Interestingly enough, in striking down part of the Anti- Terrorism Act, Justice Rutherford referred to one of my law review arti- cles in which I had written about my opposition to the provision that dealt with motivational considerations of a religious, political or ideological nature, as constituent elements of the definition of a terrorist act.
This is an example of where my various roles over the years have gen- erated plural perspectives on the International Criminal Justice and Anti-Terrorism Model. Accordingly, as minister I was responsible for the enforcement of the Anti-Terrorism Act, including superintending responsi- bility for the first prosecution there- under; yet, as I mentioned, in the course of the prosecution an article I had written while a law professor was cited with respect to declaring unconstitutional, under the Charter, part of this same law.
All three of my roles have also allowed me to appreciate the important international dimension to this International Criminal Justice and Anti-Terrorism Model. It is sometimes forgotten that the Anti-Terrorism Act involves the domestic implementation of some 13 issue-specific anti-terrorism treaties, United Nations Security Council mandates and responsibilities with respect to extradition and the like. The international element is an essential part of this model, just as it is an essential part of the legislation itself.
The second model is what might be called the Immigration Law Model. This model includes the Immigration and Refugee Protection Act, and its provi- sions that render inadmissible people who are deemed to be a threat to national security.
Suspected terrorists are individuals who fall into one of these inadmissible categories, as threats to national secu- rity. This is where security certificates, under the immigration law model, enter the anti-terrorism debate. Indeed, security certificates, after 9/11, became an important remedy of choice as part of the overall anti-terror- ism law and policy, though this Immigration and Refugee Protection Act was not initially enacted as an anti-ter- rorism law and policy remedy, and now has emerged as such.
As I mentioned in reference to the previous model, as minister of justice I had the responsibility for enforcing legislation which I had also critiqued " a somewhat anomalous position to be in. This held true as well for this immigration law model and the matter of security certificates.
I regarded it as an unpalatable Hobson’s choice to have to choose between deporting someone to a coun- try where there would be a substantial risk of torture, and engaging in pro- longed detention. I also had concerns, as I expressed, not only about the pro- longed detention, but about the due process issues of a right to a fair hear- ing for the detainees.
Accordingly, while serv- ing as minister of jus- tice, I invited the Justice, Human Rights, and Public Security Committee of the House of Commons and its counterpart in the Senate " both of which have since reported " to provide the government with rec- ommendations in this matter, so that we could effectively respond to this Hobson’s polarized choice to the secu- rity certificates dilemma.
Therefore, I was pleased, as I wrote recently, when the Supreme Court of Canada in the Charkaoui case struck down the provisions in the Immigration and Refugee Protection Act that denied detainees the right to a fair hearing, and Parliament is now tasked to enact amendments to the Act to comport with the court’s ruling.
I also had indicated while minister of justice that as a matter of policy I would not deport to a country where there was a substantial risk of torture, as I regarded it as contrary to interna- tional law, though Suresh v. Canada provided for this possibility, as an exceptional remedy.
The third model might be called the Domestic Criminal Law Due Process Model. This model, which is organized around the rights of the accused and underpins the work of the defence bar, has also underlain a good portion of my own work as a defender of political prisoners in dif- ferent parts of the world. Indeed, these prisoners were often charged, particularly in authoritarian or dicta- torial regimes, with trumped-up charges of terrorism, sedition and the like. In these cases, emphasis on due process is imperative, and in my writ- ings I have identified some 14 due process concerns to which one must be sensitive, such as the presumption of innocence, protection against arbi- trary arrest and detention, the protec- tion against torture or coercive forms of interrogation, the right to counsel and the like. While this model is a rel- evant one, it should not be the only prism from which the relationship between terrorism, security, and rights is observed, as it might, standing alone, skewer the analysis.
The fourth model is what might be called the Domestic Criminal Law Crime Control or Law Enforcement Model. As minister of justice and attorney general, I had responsibility for the enactment of criminal law, including offences that might be part of anti-terrorism law and policy, and for working with my counterpart provincial and territorial ministers who had primary responsibility for law enforcement purposes.
As attorney general, and with respect to certain subject matters that came with- in the federal law enforcement jurisdiction " e.g., anti-terror- ism law " I would also have a prosecutorial responsibility for subject matters that came within this model.
The fifth model is the War Crimes Model, anchored in the Crimes against Humanity and War Crimes Act, which I helped shepherd through the House of Commons in 2000. While this Act does not contain specific refer- ence to acts of terrorism, it does con- tain reference to ”œcrimes against humanity” and incorporates by refer- ence the definition from the International Criminal Court treaty. Accordingly, you could find a situation where the terrorist acts, when utilized in a widespread and systematic man- ner, could be characterized as crimes against humanity.
The last model is the Armed Conflict Model. We in Canada have for the most part been spared involvement with this particular model, other than in an overseas way through our involvement in Afghanistan. However, for countries that are engaged in a contiguous rela- tionship with those that may be engaged in acts of terror " and I am referring for example to the Israel- Hezbollah war " it is the principle of proportionality under our Charter that has emerged as an important measure by which to assess the legiti- macy of an act of self-defence in response to acts of terror. For instance, proportionality was one of the principles invoked and applied during the Israel-Hezbollah war.
However, notwithstanding that our involvement in Afghanistan is in an overseas conflict, compliance issues with the Charter and international law may still arise, as they did in the mat- ter of the transfer of Afghan detainees to the Afghan authorities, which must accord with the protections of the Geneva Convention.
These six models, then, serve as a prism, or looking glass, for the spec- trum of the relationship between secu- rity and human rights.
I will now summarize briefly the basic principles which underpin these models, principles which have the Charter at their core. These principles will be addressed in relation to terror- ism, security and human rights.
The first principle is what I refer to as the Human Security Principle, and is inclusive of a dual human rights dimension. The first sees terrorism as constituting an assault on the security of a democracy like Canada and an assault on our individual and collective rights " our rights to life, liberty and security of the person. In this context, anti-terrorism law and policy my be said to be the pro- motion and protection of the security of democracy and fun- damental human rights in the face of this injustice " the pro- tection, indeed, of human secu- rity in the most profound sense.
But there is a second human rights dimension of human security which must never be forgotten: that the enactment, enforcement and application of anti-terrorism law must always comport with the rule of law. More specifically, anti-terrorism law and policy must always adhere to the Charter and the rule of law, individuals and groups must never be singled out for differential or discrimi- natory treatment, acts of torture must everywhere be condemned and prohib- ited, and vulnerable and visible minori- ties must be protected against discrimination while also being protect- ed from becoming targets of hatred or incitement.
Simply put, in the course of pro- moting and protecting human security we cannot undermine our individual and collective human rights, which are constituent elements of that human security itself.
The second principle is what the Supreme Court of Canada has called the Contextual Principle, which con- tends that we cannot look at issues sur- rounding counter-terrorism law and policy in the abstract. Rather, we must examine these issues with an aware- ness of the existing context and facts of the case, and appreciate the issues in terms of the actual ”œthreat environ- ment.” As former Supreme Court jus- tices Frank Iacobucci and Louise Arbour have put it, the Constitution is not a suicide pact, adding that ”œthe challenge for democracies in the battle against terrorism is not whether to respond, but rather how to do so.”
The third principle is the International Criminal Justice Principle. This principle underscores the International Criminal Justice and Anti-Terrorism Model referred to above and underlines the importance of what Chief Justice Brian Dickson of the Supreme Court of Canada said in 1987 in Reference Re Public Service Employee Relations Act (Alta.): ”œThe Charter conforms to the spirit of this contemporary international human rights movement, and it incorporates many of the policies and prescriptions of the various international docu- ments pertaining to human rights.”
This principle emphasizes that our anti-terrorism law and policy is inextri- cably bound up with the international criminal justice system in the invocation and application of international law treaties, general principles of law recog- nized by the community of nations, UN Security Council mandates, bilateral and multilateral agreements and the like. We cannot have the appropriate legal or fac- tual understanding of the dynamics involved in our domestic counter-terror- ism measures (such as the Anti-Terrorism Act) if we view these measures in the abstract, without an understanding of the international threat environment and the international law context in which it takes place.
A fourth principle is the Prevention Principle. In essence, the raison d’é‚tre of Canadian anti-terror- ism law and policy, that of other democracies, and of UN Security Council 1373, precedes from a culture of prevention and pre-emption, as dis- tinct from reactive, after-the-fact law enforcement. This includes, therefore, the range of international terrorist offences, domesticated into the anti- terrorist act, which seek to disable and dismantle the terrorist network itself " not to mention the investigative and procedural mechanisms that seek to protect and deter rather than just prosecute and punish.
But in all of these components, anti-terrorism law and policy must comport with the Charter. This issue arose in the debate over the sunsetting of the provisions respect- ing preventive arrest and investiga- tive hearings, both of which were held out as part of the principles of prevention and protection, but which some also felt overreached and could be ripe for abuse.
It is interesting to note that the five-year review of the Anti-Terrorism Act showed that, in fact, these provi- sions were never invoked and applied. This led supporters of the extension of these provisions to argue that since they had not been abused, they should be maintained for protection and preventive means; whereas others, who supported the sunsetting, argued that since the pro- visions had not been used they were no longer necessary.
The fifth principle is the Proportionality Principle. This principle has emerged not only as a domestic constitutional law principle, but now also as an international law one. As I mentioned when dealing with the Armed Conflict Model, Canadian constitutional jurisprudence in the matter of the Proportionality Principle is now being looked to by other countries that are engaged in armed conflict.
The sixth is the Comparativist Principle, an approach that requires that we look to the law and experience of other jurisdictions to help inform and refine our own domestic law, in terms of executive decision-making, parliamen- tary enactment and juridical review.
The seventh principle is the Anti- Hate Principle " a centrepiece of Charter ”œhate speech jurisprudence.” Here one has to appreciate that incite- ment to terrorism, hatred and violence has emerged as one of the most proxi- mate causes of terrorism itself. This principle has found expression in the jurisprudence of the Supreme Court of Canada in upholding the constitution- ality of our anti-hate legislation, refer- ring, inter alia, to the right of minorities to protection against group vilifying speech (Keegstra et al.). This has emerged as a constitutional frame- work with respect to the protection against incitement to terrorism.
The eighth is the Minority Rights Principle, referred to in the Quebec Secession Reference as a basic constitu- tional principle. This principle stands for two main requirements: First, anti- terrorism law should protect minorities from being targeted by terrorism, including terrorism incitement. Second, minorities should be protected in the course of the enforcement of anti-terrorism policy.
Ninth, the Due Process Principle, which should be factored into an overall appreciation of anti-terrorism law and policy. As I have stated, it has been used as the prism for the criminal defence bar " and I have utilized it myself " but it needs to be brought into the general spectrum of under- standing when looking at the Charter issues surround- ing anti-terrorism policy.
Finally, the Oversight Principle. We must appreci- ate the importance of oversight, whether it be judicial oversight, parliamentary oversight, oversight by officers of Parliament, oversight by ref- erence to our international law obliga- tions " perhaps most importantly in the context of the 25th anniversary of our Charter " oversight of civil socie- ty in its broadest sense. We speak not only of sunset clauses but of the sun- shine of civil society in that regard.
The Canadian approach to anti-ter- rorism law and policy has developed greatly since the inception of the Charter, with the parliamentary debates and court judgments in the first part of this year dramatizing the importance of the Charter. One can best appreciate the importance of the Charter by asking how the relationship between terrorism, security and rights might have evolved in the absence of the Charter; and one can best understand the relationship itself through the looking glass of the models which underpin the spectrum of this relationship between terrorism, security and rights, together with the basic Charter principles.
Adapted and updated from a presentation to the McGill Institute for the Study of Canada’s Charter @ 25.