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Terrorism and the administration of justice in Canada Diab, Robert 2007

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T E R R O R I S M A N D T H E ADMINISTRATION OF JUSTICE IN C A N A D A  By  R O B E R T DIAB  L L . B . , T h e University of British C o l u m b i a , 2001 M . A . , T h e University of Western Ontario, 1997 M . A . , T h e University of Western Ontario, 1995 B . A . , T h e University of Western Ontario, 1993  A THESIS SUMBITTED IN PARTIAL F U L F I L L M E N T O F T H E REQUIREMENTS FOR THEDEGREE OF  MASTER OF LAWS In T H E F A C U L T Y O F G R A D U A T E STUDIES  T H E UNIVERSITY OF BRITISH C O L U M B I A J a n u a r y 2007  © R o b e r t D i a b , 2007  ABSTRACT T h i s thesis explores ways in w h i c h perspectives i n C a n a d a o n (he a d m i n i s t r a t i o n o f justice have shifted after  September  11, 2 0 0 1 . in c r i m i n a l  and  a d m i n i s t r a t i v e law.  The  i n t r o d u c t o r y chapter sets out the general context o f my thesis, i n c l u d i n g a discussion o f the d e v e l o p m e n t o f due process and constitutional rights, and a b r i e f c o m p a r i s o n between A m e r i c a n , British a n d C a n a d i a n legislative responses to 9 / 1 1 . context, i n w h i c h the C a n a d i a n Anti-tmromm  C h a p t e r 2 concerns the  Act (2001) was drafted, the  government's  u n d e r s t a n d i n g o f its purpose and function, and critical reception o f the A c t . In the face o f considerable skepticism, the g o v e r n m e n t (and a m i n o r i t y o f sympathetic figures) insisted u p o n the consistency o f the A c t w i t h the Canadian Charier of Rights and Freedoms, a n d argued that it struck a balance between appropriate fashion.  individual  and c o m m u n a l interests  in a n e w  yet  C h a p t e r 3 focuses o n j u d i c i a l responses to anti-terror legislation,  i n c l u d i n g provisions dealings w i t h 'security certificate' detentions;  the d e p o r t a t i o n o f  terrorist suspects to face the risk of torture: a n d provisions o f the Anti-lenorisin Act. cases suggest a general tendency  The  to justify or rationalize departures, from t r a d i t i o n a l  notions o f due process, constitutionalism a n d 'fundamental justice' (in section 7 o f the Chartei) as a p p r o p r i a t e , balanced,- a n d n o r m a l .  C h a p t e r -I addresses the p r o b l e m o f  accountability o f law enforcement a n d intelligence agencies i n light o f the post-9/1 1 a m e n d m e n t s to the Canada Evidence Act that significantly e x p a n d the scope of slate secrecy a n d privilege i n ' n a t i o n a l security' matters.  u  T A B L E OF C O N T E N T S  ABSTRACT  ii  TABLE OF CONTENTS  iii  ACKNOWLEDGEMENTS DEDICATION  iv :  v  C H A P T E R 1: I N T R O D U C T I O N  1  C H A P T E R 2: P A R L I A M E N T A N D T H E A N T I - T E R R O R I S M A C T  25  C H A P T E R 3: T H E C O U R T S A N D S E C T I O N 7 A F T E R 9/11  72  C H A P T E R 4: A C C O U N T A B I L I T Y L O S T ? L A W E N F O R C E M E N T IN T H E A G E OF N A T I O N A L SECURITY  Ill  C H A P T E R 5: C O N C L U S I O N  145  BIBLIOGRAPHY  153  APPENDIX  161  iii  ACKNOWLEDGEMENTS  I would like to thank Professor R o b i n Elliot, Q . C . , for graciously agreeing to act as m y supervisor; for all of the time and effort involved; for sharing invaluable insight and advice i n matters law related and otherwise; and for his kind encouragement and support.  I w o u l d also like to thank Professor W . Wesley Pue, who acted as a very keen second reader, challenging me to reflect further on a number of the points made i n earlier drafts of this thesis, and to think about many issues that were overlooked. I especially enjoyed our conversations about many of the questionable developments discussed i n the pages that follow, and his often consolingly humourous responses.  A l o n g all o f my fellow L L . M . classmates, I owe a sincere debt of gratitude to Joanne G h u n g for being extremely helpful, patient, kind, and supportive throughout program.  IV  the  DEDICATION:  T h i s thesis is dedicated to my daughter Rosemary, who probably won't be ready to read it for some time, and my wife C i a r a , who can probably wait until Rosemary has read it.  T h a n k you for your love and support.  V  C h a p e r l : Introduction  " T e r r o r i s m , " one author has written, "is as o l d as war itself."  1  T h e ancient Greek  historian X e n o p h o n noted the practice of "spreading terror a m o n g enemies engaging them i n battle."  2  before  Contemporary historians of terrorism have traced a thread  from Greece to the rebellious acts of the Jewish sect, the Zealots, i n R o m a n times, through the assassinations of S u n n i Muslims by Isma'ili M u s l i m s i n the eleventh to thirteenth centuries, and the renegade tactics of the Thuggees i n India and the F a r East i n later centuries. 1790s.  4  3  T h e w o r d 'terrorism' emerges i n modern times i n France, i n the early  T h e Jacobins had used the term i n a positive, self-descriptive sense; but the w o r d  soon acquired a negative connotation and became synonymous with the 'reign of terror' (1793-4).  5  B y 1798, the Academie Francaise had defined the term i n its Dictionnaire i n a  broader and more abstract sense to mean 'systeme, regime de la terreur.'  6  D a v i d C . Rapoport, looking at the period after the French R e v o l u t i o n , discerns four distinct 'waves' of modern terrorism.  7  T h e 'Anarchist wave' began i n Russia i n the  1880s, and was, he says, "the first global or truly international terrorist experience i n history."  8  W h a t followed were  [...] three similar, consecutive, and overlapping expressions [...] T h e 'anticolonial wave' began i n the 1920s and lasted about forty years. T h e n came the ' N e w Left wave,' w h i c h diminished greatly as the twentieth century closed, leaving only a few groups still active today i n N e p a l , Spain, the U n i t e d K i n g d o m , Peru, and  Michael Kronenwetter, " A Short History of Terrorism," Terrorism: A Guide to Events and Documents. London: Greenwood Press, 2004, at 23. Kranenwetter, at 23. Ibid, at 24. Walter Laqueur, Hie Age of Terrorism. (Toronto: Little, Brown, 1987), at 11. Ibid. Ibid. "The Four Waves of Modern Terrorism" in Attacldng Terrorism: Elements of a Grand Strategy. Audrey Kurth Cronin and James M . Ludes, Editors. (Washington: Georgetown U P, 2004), 46 to 73. Ibid at 47. 1  2  3  4  5  6  7  8  1  Columbia. In 1979, a 'religious wave' emerged; i f the pattern of its three predecessors is relevant it could disappear by 2025, at w h i c h time a new wave might emerge. 9  T h e first wave of modern terrorism was made possible to a large extent by changes i n communication technology and travel, including the steam train and the telegraph.  10  It  was also aided by the strategic use of doctrine and culture. T h e second wave was notable for the tactical use of language, with the widespread use of slogans such as 'freedom fighters'  and the 'struggle for liberation.'  11  T h e third and fourth waves have caused the  events that average Canadians today w o u l d associate with the w o r d 'terrorism.'  In distinction to the first and second waves, i n w h i c h members of terrorist groups targeted political figures and then police and military units, the third and fourth waves have been defined by the choice of 'theatrical targets': international high-jackings, kidnappings, 'punitive assassinations,' and, finally, suicide b o m b i n g s .  12  But, whereas i n  the third wave, terrorist groups consisted mostly of radical nationalists, with secular, political aims, and organized and understood themselves i n terms of quasi-national armies and militias (the Palestinian Liberation Organization, the Quebec L i b e r a t i o n Front), groups framework.  13  i n the  fourth  wave function i n a stateless, pre-  or  post-national  R a p o p o r t also notes that while the number of terrorist groups i n operation  globally has fallen dramatically (from 200 to 40, by his count), " a major religious community, such as Islam, is m u c h larger than any national g r o u p . "  14  Ibid. O n the 'religious wave,' sec also Tariq Ali's Hie Clash of Fundamentalisms: Crusades, Jihads and Modernity (Verso: London, 2003). Ibid, at 49. Ibid. Ibid , at 53. Ibid, at 62. Ibid, at 63. 9  10  11  12  13  1 4  2  In the five years that have followed the events of September 11, 2001 ("9/11"), terrorist attacks appear to be unfolding with a mounting frequency, and an ever-widening geographic scope.  A l Q a e d a , the M u s l i m extremist group c o m m o n l y assumed to be  responsible for the events of 9 / 1 1 , has since been associated with attacks i n the U n i t e d K i n g d o m , H o l l a n d , Spain, Saudi A r a b i a , J o r d a n , Afghanistan, and Indonesia; and any number of foiled attempts i n places ranging from Sydney to N e w Y o r k .  T o a large  extent, the notoriety of A l Q a e d a has contributed to the profile of a religious terrorist as being someone of N o r t h African, M i d d l e Eastern, Afghani, or Pakistani origin, and probably someone who has only recently immigrated to an advanced western democracy. H o w e v e r , more recent acts have raised questions about this stereotype, i n c l u d i n g the murder of D u t c h film-maker T h e o V a n G o g h i n 2004, the bombings i n L o n d o n i n the summer of 2005, and a series of purported foiled attacks by M u s l i m extremists i n Sidney and M e l b o u r n e i n N o v e m b e r of 2005, and i n T o r o n t o and L o n d o n i n 2006. These more recent events suggest that the terrorist may be someone m u c h closer to home. H e or she might be a y o u n g person—born, raised, and educated i n a western milieu, but recruited and mobilized by members of a radical religious clergy. T h e terrorist suspect might be a citizen, or might not; they might be poor and marginalized, but might not.  T h e difficulty posed by the threat of terrorism, for nations, like C a n a d a , that seek to respond pro-actively, is that the threat cannot be easily reconciled with conventional notions that shape the administration of justice i n a broader  sense.  T h e phrase  'administration of justice' is often used to describe both the criminal justice system and the legal system as a whole. I propose to use it here as a synonym for a constellation of concepts fundamental to our system of justice ~ including due process; the accountability of police, prosecutors and judges; constitutionalism; democracy; and the rule of law. U n t i l now, our notion of the proper administration of justice i n C a n a d a has evolved as a framework for dealing with acts prohibited by Parliament and investigated, prosecuted  3  and adjudicated after they are alleged to have taken place. Ours is a system that treats all persons it prosecutes, citizens and non-citizens, as equally entitled to the presumption of innocence and a fair trial. Punishments are imposed only i n accordance with written law, and are subject to the protections of the Constitution.  T h e framework of a constitutionally protected right to a fair trial, the presumption of innocence, and other aspects of what we call 'due process,' has roots that extend at least as far back as the English Magna Carta i n the thirteenth century.  15  Later English legal  historians, including Sir E d w a r d C o k e i n the seventeenth century, have read into certain passages of the great charter early efforts to protect the right to a trial by a j u r y o f one's peers; the right not to be arbitrarily arrested; and the right to be tried within a reasonable time.  16  Magna Carta is an important antecedent to the m o d e m history of constitutional  rights, because it contained a concession by K i n g J o h n — the sovereign of the realm — that he w o u l d be subject to law, as opposed to .the law being a mere expression of his w h i m . H o w e v e r , Magna Carta lacked an enforcement mechanism, some way of lending force to the guarantee of rights it contained. T h e English continued to encounter this problem i n later experiments with constitutional reform — including the Petition o f R i g h t of 1628 and the B i l l of Rights of 1689.  In each of these cases, an assertion of rights by Parliament  could, i n theory, either be easily amended by later Parliaments or ignored with impunity by the Sovereign h i m or herself.  17  But a tradition was developing i n the British world, on both sides o f the Atlantic, of respecting various 'due process' rights, including (in addition to those traced back to Magna Carta), the right against unreasonable search and seizure, double jeopardy, self-  Bernard Schwartz, The Great Rights of Mankind: A History of the American Bill of Rights. (New York, Oxford University Press: 1977), at 2. Sec Chapter 39 of Magna Carta and ibid, at 6. Ibid, 14-23. 1 5  1 6  11  4  incrimination, and cruel and unusual punishment. further impetus for change.  18  Early A m e r i c a n culture provided a  Beginning with the Puritans, w h o had fled from religious  persecution i n E n g l a n d , the colonial settlers of N e w E n g l a n d developed more robust constitutions that sought to protect a wider range of rights and assert further limitations on imperial authority.  Finally, the age-old problem of how to lend force to the assertion  of constitutional rights was more effectively addressed i n the A m e r i c a n Constitution a n d B i l l of Rights at the end of the eighteenth century. governmental structure  i n w h i c h the  These documents contemplate a  courts w o u l d act as guardians  of the  entrenched i n the constitution. A n d with its decision i n Marbury v. Madison (1803),  rights 19  the  U . S . Supreme C o u r t began to take up this guardianship role i n earnest, by fashioning the doctrine of 'judicial review'.  O t h e r c o m m o n law nations, including C a n a d a , have drawn o n the A m e r i c a n model of a constitutionally entrenched set of rights and a role for the courts as a referee and enforcer of those rights. However, almost two hundred years separates the Canadian Charter of Rights and Freedoms  20  and the U . S . Constitution, and a remarkable degree o f  consensus has since emerged throughout the western w o r l d — including Britain, w h i c h has no written constitution of its own ~ about the importance of 'due process' rights i n a healthy d e m o c r a c y .  21  In an effort to explain w h y we value these rights as fundamental to  the make-up o f ' a d v a n c e d ' democracies, the A m e r i c a n legal theorist R o n a l d D w o r k i n has written: T h e institution of rights against the Government is not a gift o f G o d , or an ancient ritual, or a national sport. It is a complex and troublesome practice that makes the Government's j o b o f securing the general benefit more difficult a n d more  Ibid, at 24. 1 Cranch 137 (U.S. 1803). Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 Piereinaf'ter, Charter]. The U . K . is, however, a signatory to the European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocol No. 11, Council of Europe, Rome, 4. X L 1950. 18  1 9  2 0  2 1  5  expensive, and it w o u l d be a frivolous and wrongful practice unless it served some point. A n y o n e who professes to take rights seriously, and w h o praises our Government for respecting them, must have some sense of what that point is. H e must accept, at the m i n i m u m , one or both of two important ideas. T h e first is the vague but powerful idea of h u m a n dignity. T h i s idea, associated with K a n t , but defended by philosophers of different schools, supposes that there are ways of treating a m a n that are inconsistent with recognizing h i m as a full member of the h u m a n community, and holds that such treatment is profoundly unjust. T h e second is the more familiar idea of political equality. T h i s supposes that the weaker members of a political community are entitled to the same concern and respect of their government as the more powerful members have secured for themselves, so that i f some men have freedom of decision whatever the effect on the general good, then all m e n must have the same freedom. 22  W e might question whether this reading of the 'axiomatic assumptions' o f m o d e r n constitutional rights flows from an essentially left or right perspective — but it w o u l d seem plausible that, at the least, there is, i n theory, some connection between the idea of legal rights and those of equality and dignity.  T h e Supreme C o u r t of C a n a d a has recognized as m u c h i n its o w n early musings about the content and purpose of the 'legal rights' i n the Charter. T h e key provisions of the C a n a d i a n Charter that are meant, to protect legal rights are those found i n sections 7 to 14 — and perhaps the most crucial among them is section 7.  T h a t section guarantees  everyone i n C a n a d a "the right to life, liberty and security of the person and the right not to be deprived thereof except i n accordance with the principles of fundamental justice." Sections 8, 9, and 10 deal with rights against unreasonable search and seizure and arbitrary detention, and the right to counsel.  Sections 11, 13, and 14 set out rights  relating to the trial process including the right to be tried within a reasonable time, the right not to have incriminating evidence given i n evidence i n one proceeding used against  Taking Rights Seriously (Cambridge, Harvard University Press: 1977), at 198-9. 6  oneself i n another proceeding, and the right to be presumed innocent.  Section 12  guarantees the right not to be subjected to cruel and unusual treatment or punishment.  In 1985, L a m e r J . , as he then was, writing for a majority of the Supreme C o u r t of C a n a d a , attempted to elucidate the meaning of section 7 and, i n particular, the vague but suggestive phrase 'principles of fundamental justice,' i n this way: [...] ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision i n our statutes, 'and, without limiting the generality of the foregoing (s. 7) the following shall be deemed to be i n violation of a person's rights under this section'. [...] T h u s , ss. 8 to 14 provide an invaluable key to the meaning of 'principles of fundamental justice'. M a n y have been developed over time as presumptions of the c o m m o n law, others have found expression i n the international conventions on h u m a n rights. A l l have been recognized as essential elements of a system for the administration of justice w h i c h is founded upon a belief i n 'the dignity and w o r t h of the h u m a n person' (preamble to the Canadian Bill of Rights, R . S . C . 1970, A p p . Ill) and on 'the rule of law' (preamble to the Canadian Charter of Rights and Freedoms). It is this c o m m o n thread which, i n m y view, must guide us i n determining the scope and content of 'principles of fundamental justice'. In other words, the principles of fundamental justice are to be found i n the basic tenets o f our legal system. T h e y do not lie i n the realm of general public policy but i n the inherent d o m a i n of the judiciary as guardian of the justice system. 23  Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, paragraphs 29 to 31. The Court has recently reiterated its commitment to 'dignity' as a fundamental value underlying Charter rights generally. Bastarache, J . , for the majority in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at paragraph 77, wrote: In Rodriguez [v. British Columbia (Attorney General), [1993] 3 S.C.R. 519], Sopinka J . states that it is unquestioned that respect for human dignity is an underlying principle upon which our society is based (at 592). In R. v. O'Connor [[1995] 4 S.C.R. 411], at para. 63, L'Hcureux-Dube J . states that, "[t]his Court has repeatedly recognized that human dignity is at the heart of the Charter". More recently, this Court has stated in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at para. 51, that the purpose of s. 15(1) of the Charter, "is to prevent the violation of essential human dignity and freedom". Respect for the inherent dignity of persons is clearly an essential value in our free and democratic society which must guide the courts in inteqDreting the Charter. 2 3  7  In the twenty some years since this passage was written, the Court's understanding of the legal rights i n the Charter, and perhaps also its role i n relation to the Charter, has evolved significantly.  24  O n e could argue that as the custodian of the Charter, the C o u r t has been  more or less mindful of this ' c o m m o n thread' that underwrites the notion o f 'fundamental justice'.  A n o t h e r central notion i n the idea of constitutional government — traceable back to Magna Carta and an integral part of due process rights as they have developed — is the notion of the 'rule of law.' T h e phrase 'rule of law' is invoked i n the brief preamble o f the Charter of Rights and Freedoms and lies at the heart of the A n g l o - C a n a d i a n constitutional tradition. T h e point of departure for most commentary on, and analysis of, this concept i n the c o m m o n law tradition is the work of the English scholar A . V . Dicey, and i n particular his 1885 treatise Introduction to the Study of the Law of the Constitution^  Dicey  distinguished three meanings of the concept. First, it entailed "the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even of wide discretionary authority on the part of the government."  26  Second, all are equal before the law and no one, no  matter what their status, is exempt from the duty to obey the l a w .  27  T h e third was a  meaning that was somewhat peculiar to E n g l a n d ~ a nation i n which, i n the absence o f a written constitution, Parliament is supreme. "[T]he law of the constitution", as D i c e y put  For a more detailed exploration of this evolution, see Kent Roach's The Supreme Court on Trial: Judicial Activism or Democratic Dialogue (Toronto, Irwin Law: 2001). London, MacMillan & Co: 1965 (Tenth edition). Ibid, at 202. Ibid. 2 4  2 5  2 6  2 7  8  it, is "not the source but the consequence of rights . . . the constitution is the result o f the ordinary law of the l a n d . "  28  D i c e y was clear to point out that the concept of the 'rule of law' was a general principle, w h i c h influenced how specific provisions of the  'constitution' could  be  interpreted, but was something less than a provision of the constitution i n itself.  29  However, with the explicit reference to the concept of the 'rule o f law' i n the C a n a d i a n Charter, commentators and the courts have had occasion to explore what import the concept might have beyond that of an interpretive a i d .  30  I n other words, could it have  the force of a substantive provision? T h i s question is beyond the scope of the present discussion. B u t the debate surrounding these issues highlights one feature about the rule of law that is relevant to this thesis: there is no definitive, exhaustive statement of the scope and meaning of this very rich and central concept i n our tradition, and Dicey's definition clearly suggests more than it states. In a recent article on C a n a d i a n anti-terror legislation, W . Wesley Pue provides a more expansive definition, w h i c h sets out a number of propositions that are implied by Dicey's analysis, and serves the purpose of articulating the practical scope of the concept: 1.  A l l law should seek to attain m i n i m a l infringement of civil liberty.  Ibid, at 203. Ibid. See, for example, Marc Ribeiro, Limiting Arbitrary Power: The Vagueness Doctrine in Canadian Constitutional Law ( U B C Press, Vancouver: 2004); Hogg, Peter W. and Cara F. Zwibel, "The Rule of Law in the Supreme Court of Canada" (2005), 55 U.T.L.J. 715; Newman, Warren J . , "The Principles of the Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation" (2005), 16 .N.J.C.L. 175; see also R. v. Nova Scotia Pharmaceutical Society [1992] 2 S.C.R. 606 and British Columbia v. Imperial Tobacco Canada Ltd., 2005 S C C 49. 2 8  2 9  3 0  9  2.  There  should  be  maximum  clarity of definition regarding  powers  conferred, restrictions imposed, and offences created. 3.  A l l exercise of governmental power should be accountable, visible, and reviewable  by the  ordinary courts  constitutional principle of responsible  i n the  ordinary ways. T h e core  government  requires  clear  and  effective channels of political and legal accountability. 4.  Secrecy should only be tolerated i n the smallest possible zone, only as absolutely essential, and only for limited duration. Power exercised i n secret is never accountable.  5.  Where extraordinary powers are invoked i n times of perceived crisis, they should be of limited duration, renewable only by full reconsideration and re-enactment by Parliament.  T h e 'rule of law', therefore, supremacy.  31  is something more than a synonym for constitutional  It is a core value i n any constitutional system of government,  and it  underwrites the system of concepts and principles that we think of i n broader terms as 'the administration of justice.'  T h e figure of the terrorist, and the threat of terrorism, are deeply unsettling to this entire system.  T h e potential terrorist is both foreigner and citizen, quasi-military  'combatant' (from certain perspectives) and criminal. T o the extent that laws designed to deal with terrorism will have to blend elements that respond to both dimensions ~ criminal sanction and military defence ~ as Lindsay Clutterbuck has argued it must,  32  the  legal framework for dealing with terrorism will break with many foundational concepts i n  "The War on Terror: Constitutional Governance in a State of Perpetual Warfare." Osgoode Hall Law Journal (Vol. 41, Nos 2 & 3) 267, at 270. "Law Enforcement" in Attacking Terrorism, supra, note 7, 140 to 161. 3 1  3 2  10  criminal and constitutional law. I propose to advance the thesis that Canada's response to terrorism i n the period after 9/11 constitutes not simply a suspension or erosion of certain constitutional rights and principles, or the questionable expansion o f the scope of our criminal law; rather, that it constitutes a transformation i n the administration of justice i n C a n a d a i n a broader sense. O r , to put this i n another way, it m a y be necessary to think i n terms of a concept broader than constitutional infringement i n order to grasp the nature o f the change taking place i n our legal system.  T h e task of using ' n o r m a l , '  domestic law to deal with terrorism is leading us to refashion our understanding of principles protected i n the constitution, but also other principles and ideals not so clearly enshrined. W e are beginning to ask whether i n •some cases it is appropriate to suspend due process, the presumption of innocence, arid executive, police and prosecutorial oversight, for the sake of public safety — and i n the absence of a state of emergency. W e are beginning to accept all of this, or turn a blind eye to it, as i f it were somehow compatible with the rule of l a w .  33  T o argue that a shift is taking place i n our notion o f the  For example, Canada's Department of Justice, on a webpage setting out 'frequently asked questions' about the Anti-Terrorism Act, S.C. 2001, c. 41, states: "The A T A , like all laws, was crafted in accordance with the rule of law and the Canadian Charter of Rights and Freedoms. The A T A includes a number of safeguards that balance the need to protect individuals from the threat of terrorist acts while ensuring their rights and freedoms are respected..." See online: <http://www.justice.gc.ca/en/anti_terr/faq.html> (last accessed January 9, 2007). Fortunately, a healthy proportion of lawyers, judges and academics in Canada are generally critical of these propositions (in ways that will explored in some detail below). D o n Stuart, in "The Anti-terrorism Bill C-36: an Unnecessary Law and Order Quick Fix that Permanently Stains the Canadian Criminal Justice System," 14 KJ.C.L. 153-166 (2003), notes, at 163, that at the third reading of Bill C-36, Members of Parliament from the New Democratic Party and the Block Quebecois, in addition to M.P.s from other parties, voted against the bill. But as Kent Roach has pointed out, in September 11: Consequencesfor Canada (Montreal: M c G i l l U P, 2003), a majority of the Canadian public supported the bill, as well as a number of other antiterror measures. A n d , as will be seen below, a number of politicians, lawyers, and academics in Canada have supported the bill, which raises the possibility that a deeper shift in perspectives may be taking place. Two sources for public consensus on the bill can be found on the Department of Justice's website: Millward Brown Goldfarb's "Public Views on the Anti-terrorism Act, a Qualitative Study" (online at: <http://www.justice.gc.ca/en/ps/rs/rep/2005/rr05-3/index.html> (last accessed January 9, 2007)) and Thomas Gabor's "The Views of Canadian Scholars on the Impact of the Anti-terrorism Act" (online at: <http://www.justicc.gc.ca/en/ps/rs/rep/2005/rr05l/rr05-l_06.html#63> (last accessed January 9, 2007)). 3 3  11  administration of justice is to take a wider view of the field i n w h i c h change is arguably taking place.  T o explore this thesis, I propose to look not primarily at the legislative measures with w h i c h the government of C a n a d a has responded to the events of 9 / 1 1 , but at three institutions w h i c h play a key role i n the administration of justice, and ways i n w h i c h each has shaped our emerging counter-terror law and practice.  Parliament, the first o f these  institutions, made a number of significant decisions i n the weeks and months after 9/11 that have distinguished Canada's response from that of the governments of the U n i t e d States and the U n i t e d K i n g d o m .  Parliament's choices were shaped by existing law,  3 4  contemporary party politics, and by our constitutional framework. B u t the differences are worth noting.  In the fall of 2001, both the U n i t e d K i n g d o m and the U n i t e d States invoked a state of emergency declaration.  3S  and asserted  extraordinary  executive powers pursuant  to that  President Bush soon after issued a 'military order' that created a power to  declare a person an 'unlawful combatant,' to detain them indefinitely, and to eventually try them before a military t r i b u n a l .  36  T h e Italian political theorist G i o r g i o A g a m b e n  noted:  I have chosen to use the term 'Parliament' here in a strictly synecdochal sense, to refer to the government of Canada - i.e., in most cases, the Privy Council, but in other contexts (which will be noted), the governing Liberal Party of Canada, and occasionally (once again, to be noted) the democratically elected legislature in a general sense. President Bush's state of emergency was issued on September 14, 2001 in "Proc. 7463, Declaration of National Emergency by Reason of Certain Terrorist Attacks". The government of the United Kingdom invoked a state of emergency on November 13, 2001: see online: <http://obscr\'cr.guardian.co.uk/international/story/0,6903,591394,00.html> (last accessed January 9, 2007). This order is set out online at: <http://www.whitchousc.gOv/ncws/relcases/2001/l 1/2001 1113-27.html.> (last accessed January 9, 2007). 3 4  3 5  3 6  12  [w]hat is new about President Bush's order is that it radically erases any legal status of the individual, thus producing a legally unnamable and unclassifiable being. N o t only do the T a l i b a n captured i n Afghanistan not enjoy the status of P O W s as defined by the Geneva C o n v e n t i o n , they do not even have the status of persons charged with a crime according to A m e r i c a n laws. Neither prisoners nor persons accused, but simply 'detainees,' they are the object of a pure de facto rule, of a detention that is indefinite not only i n the temporal sense but i n its very nature as well, since it is entirely removed from the law and from j u d i c i a l oversight. 37  T h i s is i n part an overstatement, given that a number of legal challenges to the status of the detainees i n Guantanamo Bay, C u b a , have been brought, and the U . S . Supreme C o u r t has recognized that some of the detainees i n the camp possess certain rights. However,  Agamben's  description clearly captures  the  thrust  of what  the  38  Bush  administration is attempting to do i n Guantanamo. T h e r e has also been m u c h discussion of the merit of Bush's strategy, and speculation as to whether he w o u l d suspend habeas corpus, as provided for i n section 9, Article I of the U . S . Constitution: "when i n Cases of R e b e l l i o n or Invasion the public Safety may require i t . "  39  U n d e r the guise of n o r m a l law-  making power, the U . S . congress, i n October of 2001, passed the U.S.A Patriot Act,  40  w h i c h gave rise to a number of controversial powers w h i c h are beyond the scope of this study. T h e A c t notably subjected a number of its provisions to sunset clauses. T h e A c t itself was also clearly understood as temporary, extraordinary legislation that departed from any desirable standard of the constitutional freedoms that are central to the A m e r i c a n self-identity.  State of Exception, trans, by Kevin Attell (Chicago: University of Chicago Press, 2005) pages 3-4. See, for example, Rasul v. Bush, 542 U . S . 466 (2004), a decision recognizing the right of nonnational detainees to challenge their detention on the grounds of the doctrine of 'wrongful imprisonment'; Hamdi v. Rumsfeld, 542 U.S. 507 (2004), recognizing the right of only those detainees with U . S . citizenship to challenge their detention by habeas corpus; and Hamdan v. Rumsfeld, 548 U.S. (2006), successfully challenging the validity of the military tribunals set up to try detainees. See, for example, Ronald Dworkin, "The Threat to Patriotism," New York Review of Books, v. 49, no. 3, February 28, 2002; "Terror and the Attack on Civil Liberties," New York Review of Books, v. 50, no. 17, November 6, 2003; "What the Court Really Said,"^Vew York Review of Books, v. 51, no. 13, August 12, 2004. Uniting and Strengthening Ameiica by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act of2001, Pub. L . No. 107-56, 115 Stat. 272, 276 (2001). 3 7  3 8  3 9  4 0  13  In  L o n d o n , the  legislation i n 2 0 0 0 ,  41  L a b o u r government  of T o n y Blair  passed  counter-terror  but following 9/11 was created a number of more invasive powers i n  a second round of legislation, tided the Anti-terrorism, Crime and Security Act, 2001.  42  The  first parts of that A c t came into force i n December of 2001. A m o n t h prior, following the invocation of a state of emergency, the H o m e Secretary issued a 'Derogation O r d e r ' to comply w i t h the requirement of member states under the European Convention on Human Rights to derogate formally from the Convention when seeking to make law that is justifiably i n violation of its provisions.  43  However, the Convention includes a strict test for what  qualifies as an emergency that w o u l d justify derogation. A m o n g the new powers asserted i n the second round of legislation were provisions allowing for the indefinite detention of non-nationals, not charged of any crime, and their deportation to nations where they might face torture.  44  In a 2004 appeal to the House of Lords, a group of detainees  successfully challenged both the 'Derogation O r d e r , ' or the U . K . ' s assertion o f a state emergency under the Convention, and the immigration detention provisions of the new Act.  4 5  A central issue i n the case was the degree of deference to be afforded Parliament,  and the balancing of national security concerns and civil rights.  T h e court  was  resoundingly opposed to any suggestion that recent terror events presented the nation with a challenge or threat of a different kind from any faced i n the past, or that national security should justify significant departures from the protection o f individual rights.  In  L o r d Hoffmann's words, T h i s is a nation w h i c h has been tested i n adversity, w h i c h has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we w o u l d survive Hitler hung i n the balance, but there is no Terrorism Act, 2000, Acts of the U . K . Parliament, 2000, c. 11. Acts of the U . K . Parliament, 2001, c. 24. Supra, note 21. Sec Part 4 the 2001 Act, supra, note 42. A (FC) and Others (FC) v. SSHD, [2004] U K H L 56. This was an eight to one decision in which the 'derogation order' was quashed and the provisions of part 4 of the 2001 Act overturned for being in violation of articles 5 and 14 of the European Convention, supra, note 21. 4 1  4 2  4 3  4 4  4 5  14  doubt that we shall survive A l - Q a e d a . T h e Spanish people have not said that what happened i n M a d r i d , hideous crime as it was, threatened the life o f their nation. T h e i r legendary pride w o u l d not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community. [...] I said that the power of detention is at present confined to foreigners and I w o u l d not like to give the impression that all that was necessary was to extend the power to U n i t e d K i n g d o m citizens as well. In m y opinion, such a power i n any form is not compatible with our constitution. T h e real threat to the life of the nation, i n the sense of a people living i n accordance with its traditional laws and political values, comes not from terrorism but from laws such as these. T h a t is the true measure of what terrorism may achieve. It is for Parliament to decide whether to give the terrorists such a v i c t o r y . 46  E v e n after the bombings i n L o n d o n i n J u l y of 2005, a majority o f Parliamentarians resisted Blair's efforts to pass further legislation containing more drastic curtailments o f civil rights, including a 90 day detention period without charge.  47  Although  the  government of the U . K . is as eager as the governments of C a n a d a and the U n i t e d States to take advantage of the current events to curtail civil liberties, the judiciary and a healthy proportion of the politicians i n the U . K . have clearly been more vigilant, or more successful i n their resistance, than their counter-parts i n C a n a d a or the U . S .  The  4 8  C a n a d i a n government, by contrast, d i d not invoke a state of emergency i n  the wake of 9 / 1 1 .  In a matter of weeks after the event, it passed a hastily drafted  omnibus Anti-Terrorism Act (Bill C - 3 6 ) ,  49  w h i c h brought into force an unprecedented legal  framework for the investigation, arrest, detention, and prosecution of persons suspected of  Ibid, at paragraphs 96 and 97. Bill 55 was the fourth anti-terror statute created by the U . K . Parliament since 2000. It did eventually pass the House, but with the proposed detention period without charge reduced from 90 to 28 days. (In addition to the two statutes mentioned above, in March of 2005, Parliament passed the Prevention of Terrorism Act, 2005, c. 2, in response to the House of Lords decision discussed above.) Notably, however, following events in London in the summer of 2005, the Home Secretary has not issued a derogation order, or invoked a state of emergency. This is not to say that the government of Tony Blair is not making significant inroads in curtailing civil liberties. See for example the provisions allowing for the use of 'control orders' in the Prevention of Terrorism Act, ibid, and those allowing for detention without charge i n Bill 55, ibid. S.C. 2001, c. 41. 4 6  4 7  4 8  4 9  15  terrorism. A m o n g the many controversial features of the A c t were its expansive definition of terrorism, its incorporation of motive as an essential element of certain terrorism offences, its authorization of 'preventive arrests' and 'judicial investigative hearings,' its expansion of government privilege i n and secrecy of evidence, and its expanded criminalization of participation i n terrorist groups and activities with definitions that virtually do away with a knowledge requirement of specific acts or consequences related to p a r t i c i p a t i o n .  50  T h e A c t also authorizes cabinet to compile a list of terrorist  organizations, creating significant consequences for those groups, including the seizure of property and evidentiary presumptions i n cases i n w h i c h members are charged with terrorist offences. T h e A c t contains a very limited right of appeal to any group added to the list.  51  T h e Liberal government openly conceded that B i l l C - 3 6 was i n violation of a number of fundamental rights i n the Charter. However, the availability of the s. 1 limitation clause allowed the government to take the position that the legislation was consistent with the Charter, that it was 'constitutional,' because the violations were likely to be justified as reasonable limits on those rights.  Aside from the preventive arrest and  j u d i c i a l interrogation provisions, however, no provisions of the A c t are subject to a sunset clause.  52  In other words, although the government passed the legislation to respond to  For a discussion of the bill's provisions, see Roach, supra, note 33, Chapter 2, "Criminalizing Terrorism." See Roach, ibid, at 35 to 40. Section 145 of the Act mandates a review of the Act by a Parliamentary committee after three years. However, the provision goes no further than to mandate that the committee table its recommendations to Parliament or the Senate. The first such review was in the process of concluding in the fall of 2005. More than one hundred persons and groups made submissions in some 43 public hearings before a Senate committee, raising a wide range of concerns. A t the close of hearings, four members of the Liberal cabinet, including 'Public Safety' Minister Anne McLellan and Justice Minister Irwin Coder, spoke briefly in defence of the bill. A summary of the concerns raised in all of the previous hearings were summarily dismissed, and the committee was advised — in advance of its tabling its recommendations — that the Act would not be repealed, nor would the most controversial provisions be struck pursuant to the sunset clause (i.e., preventive arrests and investigative hearings). See The Vancouver Sun, November 15, 2005, A 7 . 5 0  5 1  5 2  16  the immediate threat of terrorism, and the need to place national security concerns before individual rights, there was no acknowledgement that eventually the national security concerns might subside, or that many of the limitations on rights imposed here w o u l d become permanent.  Lorraine W e i n r i b has analyzed Parliament's options at this juncture and notes that although a state of emergency might have been declared pursuant to the relatively recently enacted  Emergencies Act (1988),  53  this would  have  limited the  exercise o f  extraordinary powers to a short period of time, and it w o u l d also have required the government to submit to the ongoing oversight of an all-party committee i n P a r l i a m e n t .  54  T h e government might also have invoked the section 33 override clause of the Charter to allow for a temporary derogation of fundamental rights, but she argues that the override in the Charter was not intended to be used as an emergency derogation clause (otherwise it w o u l d have included language making this purpose clear). U s i n g it might have made the government's reaction. permanent  actions seem heavy-handed  and excessive, and provoked a  negative  T h e result, however, has been the enactment of a bill that amounts to a departure from  many principles crucial to our notions of the  proper  administration of justice, with wide ranging consequences.  H o w e v e r , i n addition to the choices Parliament made i n the wake of September, 2001,  earlier decisions had suddenly acquired new value and utility.  A s A n n a Pratt  argues i n Securing Borders: Detention and Deportation in Canada,^ for at least the last fifteen years, Parliament had been m o v i n g steadily i n the direction of shaping law and policy i n  R . S . , 1985, c. 22. "Terrorism's Challenge to the Constitutional Order" in Ronald J . Daniels, Patrick Macklem, & K e n Roach, eds. The Security of Freedom: Essays on Canada's Anti-terror Bill (Toronto: Toronto U P, 2001) 93 to 108. Vancouver: U . B . C . Press, 2005. 5 3  5 4  5 5  17  the field of immigration and border control around concerns relating to crime and security.  T h e emotional response to the figure of the fraudulent refugee claimant, or  immigrant with a history of'serious criminality,' had begun to overshadow humanitarian concerns or obligations under refugee or h u m a n rights conventions. Despite the rhetoric of favouring high levels of immigration, m u c h of the new Immigration and Refugee Protection Act, and accompanying regulations, are concerned with exclusionary grounds  and  procedures for the arrest, detention and deportation of persons deemed unsuitable for entry into C a n a d a .  56  Pratt notes that under IRPA,  relating to identity are m u c h more prominent.  "the use of detention for reasons  T h e powers of i m m i g r a t i o n officers to  arrest without warrant are expanded, and officers are allowed to detain i f they believe it is necessary to complete the e x a m i n a t i o n . "  57  Since 9 / 1 1 , the budget for security has also  been boosted, and enforcement efforts have been stepped up significantly.  58  F r o m a governmental perspective, after 9 / 1 1 , the most useful element i n the security and enforcement  apparatus under IRPA  is the provision for the indefinite  detention without charge, and eventual deportation, of non-citizens pursuant 'security certificate' signed by the Minister of Immigration.  to a  T h e M i n i s t e r may sign a  certificate i f he or she has "reasonable grounds to believe" the person i n question poses a threat to national security. Although the 'security certificate' provisions have existed i n a similar form i n previous versions of immigration legislation, they were seldom u s e d .  59  Since September of 2001, five men, all A r a b or M u s l i m , have been detained (although one was released on bail i n February of 2005, after having been detained since M a y of  S.C. 2001, c-27. The Act was passed in the House of Commons in June of 2001, received Royal Assent in November of 2001, and came into force in June of 2002. Supra, note 55, at 51. Ibid. Pratt outlines the history of their use back to the 1976 Immigration Act. See Pratt, supra, note 55, pages 152-153. See sections 76 to 87 of IRPA for the provisions setting out the current regime. 5 6  5 7  5 8  5 9  18  2003).  60  T h e detentions and certificates are subject to judicial review, but only to the  extent of assessing whether it was 'reasonable' for the Minister to have issued the certificate.  61  T h e Minister is not obliged to disclose to the detainee more than a 'gist' of  the evidence on w h i c h the suspicion is grounded, but is, upon review, obliged to disclose the evidence to a judge in camera, and i n the absence of the detainee and his or her counsel.  T h e r e is, i n other words, neither an independent trier of fact here, nor the  equivalent of a right to 'full answer and defence.'  Persons deemed a threat could be  deported to countries where they will face torture. In June of 2006, the Supreme C o u r t of C a n a d a heard appeals from the Federal C o u r t decisions on the constitutional validity of the certificates i n three of these cases.  62  T h e C a n a d i a n court system, the second institution i n m y analysis, has dealt i n recent years with a host of issues central to the debate about terrorism, including the degree of deference to be accorded to Parliament i n matters pertaining to national security, and the scope of Charter protections i n cases involving foreigners i n detention. O n this basis, it was possible for the C a n a d i a n government i n the fall of 2001 to predict how the court might respond to its legislative initiatives, and it wagered with confidence that the courts w o u l d be deferential.  F o u r years later, the court's response to the  government's actions i n the counter-terror sphere are complicated and subtle ~ a position  For the court's reasons on releasing M r . Charkaoui on bail, see Re Charkaoui 2005 F C 248. Cases of the other detainees will be discussed in Chapter 3, below. The law in this area is set out in some detail in a pair of decisions involving one of the five detainees: Canada (Minister of Citizenship and Immigration) v. Jaballah 1999 F.C.J. N o . 1681, in which a first security certificate was reviewed and quashed, and a later decision of the same court, 2003 F C T 640, which dealt with a second security certificate, issued upon new information coming to light. In the earlier decision, Cullen J . characterizes the test of 'reasonableness' by citing a passage from a previous decision of his in Saygili v. Canada (Minister of Citizenship & Immigration) (1997) 127 F . T . C . R . 112: " M y task is not to substitute my decision for that of the two Ministers, but rather to decide whether the Certificate filed by the Ministers is reasonable on the basis of the evidence and information available to them, and to me." Mohamed Harkat, Adil Charkaoui and Hassan Almrei. A t the time of writing, this decision is still pending. 6 0  6 1  6 2  19  w h i c h reflects subtleties i n the law and politics of judicial review i n C a n a d a generally. But this is an issue worth exploring i n more detail to understand how concepts central to the administration of justice are being tested, qualified, subverted or transformed.  T h e Supreme C o u r t of C a n a d a has heard two challenges to the Anti-terrorism Act, both dealing with the application of the 'judicial investigative hearing' provisions.  One  involved the open court principle and the other involved a challenge to the right to silence and the principle of judicial independence. intact.  63  T h e legislation survived the  challenges  A l t h o u g h the C o u r t determined that "the level of secrecy" i n the fact pattern at  issue was "unnecessary", the decision was limited to the facts at hand.  Significantly,  however, the C o u r t declined to embark on an assessment of the correct balance to be struck between national security and individual rights, because the majority explicitly declined to agree with the assertion that the purpose of the A c t was 'national security.' T h e C o u r t concluded instead that its purpose was "the prosecution and prevention of terrorism offences."  64  T h i s leaves open the question of how future  challenges  to  provisions of the A c t might be resolved, given that the C o u r t declined to find that the purpose of the A c t was something as broad as 'national security.' T h e question will likely return when the C o u r t deals with the challenge to the security certificate provisions, because i n that context, the purpose of national security is more explicitly and directly articulated i n the provisions.  Pending the  outcome  of the  Supreme  C o u r t of Canada's  decision on  the  constitutional validity of the security certificate regime, the relevant law i n this area is that set out i n the Federal C o u r t of A p p e a l decision i n Charkaoui (Re) and Jaballah.  65  T h e court  Re Vancouver Sun [2004] 2 S.C.R. 332, and Re Application Under s. 83.28 of the Criminal Code [2004] 2 S.C.R. 248. Re Application, ibid, at paragraph 40. ™Charkaoui (Re) 2004 F C A 421, [2005] 2 F . C . R . 299; Jaballah, supra, note 61. 6 3  6 4  20  i n Charkaoui's challenge to the constitutionality of the security certificate regime was unequivocally i n favour of suspending the applicant's section 7 rights, or any other under the Charter, for the sake of national security.  56  T h e question is whether the Supreme  C o u r t of C a n a d a will be equally deferential. There is, however, some indication that the C o u r t will probably exercise considerable deference to Parliament i n a case i n w h i c h the purpose of the impugned legislation is national security.  67  A question remains as to the  limits of this deference. Rather than draw a clear line, the option will remain open to the C o u r t to choose the subtler, safer middle ground it chose i n two recent decisions dealing with the question of deporting suspected terrorists to nations where they risk being tortured.  T h e court found that deportation i n these circumstances could constitute a  violation of section 7 of the Charter, but declined to rule that, i n principle, deportation to face torture could never be justified.  68  T h e Court, i n other words, will likely seek first and  foremost to be deferential and politic, but will necessarily be shaping law on matters of fundamental principle.  T h e last institution i n my analysis is that of law enforcement, broadly conceived. A number o f agencies of the state, including the R o y a l C a n a d i a n M o u n t e d Police ( R . C . M . P . ) and the C a n a d i a n Security Intelligence Service (C.S.I.S.), have acquired a  For example, in the majority opinion of Dccary and Letourneau J.J.A., in Charkaoui, ibid, at paragraph 100: "If we were to accept the appellant's position that national security cannot justify any derogations from the rules governing adversarial proceedings we would be reading into the Constitution of Canada an abandonment by the community as a whole of its right to survival in the name of a blind absolutism of the individual rights enshrined in that Constitution. We fail to discern any legislative intention along those lines, quite the contrary." Kent Roach, in "Dangers of a Charter-Proof and Crime-Based Response to Terrorism", in The Security of Freedom, supra, note 54, at 133 notes that "[fjhc courts might uphold most of Bill C-36 as consistent with the Charter. They reject a large majority of Charter claims and the Supreme Court has already indicated in one of its very first Charter cases [Hunter v. Southam (1984) 14 C . C . C . (3) 97] that the protection of national security was a particularly compelling objective that would affect the manner in which it would determine both the content of Charter rights and reasonable limits on those rights." Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3; Ahani v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 72. 6 6  6 7  6 8  21  host of new powers and responsibilities under Bills C-36 and C-55 (the Public Safety Act), but very few measures are i n place to ensure the accountability that we have come to expect of the administration of justice i n C a n a d a .  69  In addition to the shift i n the  standard for grounds of arrest and detention under Bill C-36 and cases involving security certificates, the work of investigating and prosecuting suspected terrorists is being shared by a wider net of agencies and departments.  After 9 / 1 1 , both C . S . I . S . and the R . C . M . P .  are part of an increasingly interconnected web of agencies, with increased funding and more  sophisticated  tools for investigation.  70  Both  agencies  now  work i n  close  coordination with new agencies such as the C a n a d i a n Border Services Agency, Financial Transactions and Reports Analysis Centre of C a n a d a ( F . I . N . T . R . A . C . ) , and existing agencies, i n c l u d i n g the Coast G u a r d , the C a n a d a Revenue Agency, Citizenship and Immigration C a n a d a , and various municipal and provincial police forces.  Also, under  the auspices of the R . C . M . P . , "multi-agency law enforcement teams" have been created, called " I . N . S . E . T . s , " or Integrated N a t i o n a l Security Enforcement Teams, w h i c h have been deployed i n T o r o n t o , M o n t r e a l , O t t a w a and V a n c o u v e r .  71  These teams work w i t h  all levels of domestic law enforcement i n Canada, and also with their 'international partners,'  exchanging information, resources  and services.  72  A s these groups  and  networks become more elaborate and complex, the question of accountability — the legal jurisdiction for their accountability - is more difficult to answer. In testimony before the A r a r commission of inquiry, G a r y F i l m o n , C h a i r m a n of the Security Intelligence R e v i e w  Note that the C.S.I.S. is not, strictly speaking, a 'law enforcement' agency. I have placed it under this rubric because, for reasons that will become clearer in chapter 3, the work of C.S.I.S. in the area of counter-terrorist activities has become so intertwined with the various conventional law enforcement agencies in Canada, including the R . C . M . P . , that it makes sense to include the Service in this category. The British Columbia Civil Liberties Association, "National Security: Curbing the Excess to Protect Freedom and Democracy. A Brief Prepared for the House of Commons Subcommittee on Public Safety and National Security A n d the Senate Special Committee on the Anti-Terrorism Act, October 2005, at 27. See online: <www.bccla.org/othercontcnt/curbing%20exccss.pdf> (last accessed January 9, 2007). Pratt, supra, note 55, at 190. Ibid. 6 9  7 0  7 1  7 2  22  Committee, stated that although more than 20 federal agencies and departments are responsible for national security issues, his committee has oversight only over C . S . I . S .  73  H e conceded that because C.S.I.S. works closely with many o f the other government agencies and departments, it is becoming very difficult to monitor the conduct of security investigations.  A n additional concern with law enforcement i n the counter-terror field is the cooperation of C a n a d i a n officials with foreign governments k n o w n to use torture and other questionable methods of interrogation and enforcement.  T h e case of M a h e r A r a r  has raised the question of whether information obtained by C a n a d i a n law enforcement or intelligence agents was exchanged with officials i n Syria i n ways that resulted i n torture by that state. Conversely, the question remains open as to what extent the investigation of persons suspected of terrorism i n C a n a d a has involved, or should lawfully involve, information obtained abroad through the use of torture.  Finally, given the fact that  C a n a d i a n intelligence agencies are working closely with their A m e r i c a n counter-parts, to what extent are our agencies complicit i n or benefiting from the emerging A m e r i c a n practice o f 'rendering' suspected terrorists to nations, or secret locations, where they may be interrogated outside of the l a w .  74  W e have reached a point i n C a n a d a i n w h i c h the government has  asserted  extraordinary investigatory and prosecutorial powers, w h i c h the executive has conceded are contrary to fundamental  Charter rights, but nonetheless  deems to be justifiable.  Because many i f not most of the incursions are not subject to a sunset clause, they amount to a permanent erosion of constitutional and h u m a n rights. W h a t the government cannot accomplish i n the realm of criminal law, it has sought to accomplish through immigration  7 3  7 4  Jeff Sallot, "Security Oversight Too Diffuse," The Globe and Mail, November 18, 2005, A 7 . Sec, for example, Jane Mayer, "Outsourcing Torture," Tie New Yorker, February 14, 2005. 23  law. H e r e , the R . C . M . P . and other police and investigatory agencies throughout C a n a d a are empowered to detain non-citizens (including permanent residents) without charge on the merest suspicion, and to begin the process that will result i n the deportation o f these people to regimes that could torture or murder them.  T h e judiciary has arguably been  conscripted to play the role not of the impartial tribunal but an appendage of the prosecution (under both the Anti-Terror Act and IRPA).  A n enormous space of exception is  opening up i n the administration of justice ~ a space i n w h i c h rights are suspended, due process is ignored, the presumption of innocence is dispensed with, and the accountability of the wrongful, reckless, or malicious accuser is quietly forgotten.  Does the problem o f  terrorism justify this exception? A n d by using the language of justification, a framework imposed u p o n us by the Charter, are we not on the road to normalizing the exceptional? A r e we not i n the process of c o m i n g to accept these changes as part of a new notion o f the 'proper administration of justice'?  24  Chapter 2: Parliament and the Anti-Terrorism  Act  In this chapter, I explore the question of whether Parliament's legislative response to the events of 9/11  marks a shift i n our conventional notions of the  'proper'  administration o f justice (as set out i n the introductory chapter) - even i f only i n the limited context of terrorism. M o r e specifically, was the decision to respond to a perceived 'crisis' or 'emergency' with permanent legislation that expands government power and curtails civil liberties counter to the rule of law?  A n d i n criminalizing terrorism by  introducing controversial provisions i n the Criminal Code, i n what ways has the Antiterrorism Act enacted law that is genuinely new and contrary to conventional principles of the administration of justice?  Emergency Response  M u c h turns on the question of whether Parliamentarians, o f all parties, believed they were dealing with an emergency when they turned their attention to the question o f terrorism i n the weeks following 9 / 1 1 .  W h a t is at issue, i n other words, is whether  Parliamentarians conceived of terrorism as a pending crisis that Canadians needed to deal with immediately, using extraordinary measures that w o u l d last for a limited time; or whether they believed they were dealing with a problem of a more enduring nature that h a d to be dealt with urgently nonetheless.  W h a t is clear is that members of Parliament  were engrossed by the problem of terrorism. Irwin C o d e r , a member o f the governing L i b e r a l Party of C a n a d a , wrote i n the fall of 2001: "...not a day has passed since Parliament convened on September 17 that has not been dominated by the cataclysmic  25  events of September  11.  Every party caucus, every meeting of the House Standing  Committee on Justice and H u m a n Rights, every Question Period, has been organized around the terrorist threat and the appropriate response."  1  W h a t was unclear, however, was whether the exercise of m a k i n g law i n the emotionally fraught atmosphere of the days and weeks after 9/11 should have been taking place within the framework of the exercise of emergency powers or n o r m a l government. Fortunately, there was a great deal of discussion — on the part of politicians, news media, and academics — about the fact that controversial law was being made i n a time of emergency.  A n editorial i n October of 2001 i n one of Canada's two national  newspapers, Hie Globe and Mail, took the view that the anti-terrorism bill was a response to an emergency or crisis.  2  T h e editors urged the government to subject the bill to a sunset  clause, because, a crisis is "by definition finite."  3  A number of other facts attest to the  existence o f a shared belief i n the weeks and months after 9/11 that the problem of terrorism had become an emergency or crisis.  A s outiined i n the introduction to this  thesis, the U n i t e d States and the U n i t e d K i n g d o m were i n the process of invoking states of emergency and passing extraordinary legislation. hastily putting together B i l l C - 3 6 ,  4  T h e C a n a d i a n government was  and academics at the University of T o r o n t o were  convening a conference and debating the issue i n a spirit of urgency. T h e attacks i n N e w Y o r k and Washington were obviously exceptional and extraordinary; but it was not clear  "Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy," in Ronald J . Daniels, Patrick Macklem, & K e n Roach, eds. The Security of Freedom (Toronto: University of Toronto Press, 2001), 111-129, at 111. Cited by David Dyzenhaus "The Permanence of the Temporary", ibid, 21 to 37, at 22. Ibid, at 22. S . C . 2001, c. 41. 1  2  3  4  26  how long the threat of such large-scale attacks i n N o r t h A m e r i c a w o u l d remain at the fore of our concerns.  In C a n a d a , there was, i n other words, the appearance of a crisis or emergency, but no explicit governmental recognition of one.  Instead, the government sought to  capitalize on the sense of urgency many N o r t h Americans felt i n the weeks that followed 9/11 that something be done i n response to this infamous act. Speaking i n the legislature at third reading, on N o v e m b e r 27, 2001, then Minister of Justice, A n n e M c L e l l a n urged members to forego further debate and bring the bill to a final vote, stating: M r . Speaker, as I said, there has been an exceptional amount of debate, both i n the House at second reading and at committee, i n relation to the legislation. A s my parliamentary secretary reminds me, there were even emergency debates following the tragic events of September 11. Committee members obviously had the opportunity for some days to reflect u p o n amendments that they would propose and that we have proposed. It was a week ago that I was at committee proposing amendments that the government put forward to improve the legislation, all of w h i c h i n some part were based u p o n what we heard before committee. N o w is the time to move forward. Canadians expect their government to act to ensure their security and safety. O u r allies around the w o r l d are m o v i n g and it w o u l d be irresponsible for us, as a government, not to move. A government's primary obligation is first and foremost to ensure the safety and security of its people. W h a t we are doing i n B i l l C - 3 6 , and subsequently i n B i l l C - 4 2 , is putting i n place the legal and operational infrastructure necessary to provide Canadians with that degree of safety and security that permits them to get on with their fives. But what made Canada's legislative response distinct from that of "our allies around the w o r l d " - and i n particular, the U n i t e d States and the U n i t e d K i n g d o m — is the fact that Canada's anti-terror bill was passed without recognizing the temporary nature of the problem through a formal, legal gesture.  Whereas the U n i t e d States and the U n i t e d  27  K i n g d o m both invoked a state of emergency after 9/11 but prior to passing legislation i n response to it, C a n a d a d i d not invoke a formal emergency.  T h e r e was a feeling of  urgency and a sense of crisis, but no acknowledgement that the crisis might pass. T h e C a n a d i a n government took the position that although extraordinary measures  were  urgently necessary, a response designed for the m e d i u m to long term could be crafted that was consistent with the Charter.  But by proposing to pass permanent legislation that would, i n many people's views, curtail civil liberties and expand government powers, the government had come dangerously close to "stepping outside the rule of l a w . " Resisting the inclusion of a sunset 5  clause i n B i l l C - 3 6 , then Justice Minister A n n e M c L e l l a n stated: ...placing a sunset clause [in the Bill] will i m p a i r efforts to identify and prosecute terrorists and their supporters. A sunset clause for the entire bill w o u l d lead to a legislative vacuum. W e cannot expect terrorism to disappear i n a few years, thereby running the risk of not having effective laws i n place for extended periods. 6  M a n y academics, lawyers, and interest groups i n C a n a d a took issue with this position.  7  D a v i d Dyzenhaus argued, on the contrary, that  Dyzenhaus, ibid, at 22. Sec also Ziyaad M i a , "Terrorizing the Rule of Law: Implications of the Anti-Terrorism Act," (2002-2003) 14 N.J.C.L. 126 to 152 at 141; and Hamish Stewart's "Rule of Law or Executive Fiat? Bill C-36 and Public Interest Immunity", supra, note 1, 217-237, at 230. Cited by Dyzenhaus, ibid, at 27. See, for example, Kent Roach's contributions to the The Security of Freedom, supra, note 1, and also M i a , supra, note 5, at 127; and the C B A brief from 2001. M i a notes at 128: "Some have suggested that the existing criminal laws are reactive only, and that they are insufficient to prevent terrorist acts. These arguments ignore the' array of provisions in the Criminal Code which may be used effectively to prevent terrorist acts before they are committed. For example, Part XIII of the Criminal Code [which is headed: 'Attempts - Conspiracies - Accessories'] criminalizes a wide range of activities, both inside and outside of Canada, where two or more people conspire to commit an offence. In other words, criminal activity can be prevented before it takes place. Since terrorist acts are already subject to the Criminal Code, it follows that Part XIII may be used to prevent terrorist acts that are on the drawing board." The same point is explored more extensively by the authors of the 2005 submission to the Parliamentary Subcommittee on Public Safety and 5  6  7  28  .. .the point of the B i l l is to create a legal vacuum. T h e B i l l is designed to remove, i n so far as the Charter permits this, law-enforcement and intelligence gathering activities from the discipline of the rule of law. A n d by rule of law here I mean simply the general principles of the c o m m o n law of j u d i c i a l review that require openness and accountability of officials when they make decisions affecting important individual interests. 8  Dyzenhaus was of the view that all anti-terror statutes depart from the rule of law to the extent that they grant to the discretion of government the power to define w h o is a terrorist — and effectively shield that decision from the scrutiny o f the courts.  9  "It will be  for the agents of law-enforcement and security to tell us who the terrorist is, w h e n they have h i m i n their grasp."  10  This, combined with the intent to make a permanent change  i n the law, amounted to a marked departure for Dyzenhaus: "...even i f sunset clauses are introduced, the fact that what we have is not emergency legislation but a terrorism law — an emergency law masquerading as an ordinary statute — means that we have stepped outside the rule of l a w . "  11  What might have been  Lorraine W e i n r i b was also critical of the government's decision not to frame its response to 9/11 as a temporary, emergency measure.  In the paper she contributed to  Tlie Security of Freedom, she arrives at a similar conclusion to that of Dyzenhaus by arguing that the government's decision not to invoke Canada's statutory machinery of emergency National Security of the Canadian Association of University Teachers, online at: <http://www.waronterrorismwatch.ca/default.asp> (last accessed January 9, 2007). At page 27 of this brief, the authors canvas a lengthy list of provisions in the Criminal Code that could have been used in a terrorism prosecution in lieu of the provisions of Bill C-36. Supra, note 1, at 27. Ibid. Ibid. Ibid, at 28. 8  9  w  11  29  derogation amounts to an exercise of power reminiscent of that under the now repealed War Measures Act.  n  She makes this point i n two ways.  First, she explores how Charter  rights might have been temporarily suspended by recourse to the 'notwithstanding' clause (s. 33); and second, she outlines the history of the law i n C a n a d a dealing with the use of emergency powers.  The  'notwithstanding'  clause  of the  Charter allows federal  and  provincial  governments to suspend the operation of certain rights i n the Charter (including all of the 'legal rights' ) for a period of five years ~ and the suspension can be renewed. 13  This  w o u l d seem to allow for a derogation of rights i n a time of emergency; but W e i n r i b makes two arguments for w h y this reading of the Charter w o u l d be contrary to the intent of its authors — contrary, that is, to the hope that the Charter w o u l d make it more difficult to derogate from civil rights protections i n a period of emergency power.  First, she argues that i f the framers had intended section 33 to function as an emergency derogation clause, they w o u l d have included specific language to that effect.  14  W e i n r i b notes that a number constitutional instruments i n the western world, created after the Second W o r l d W a r , have entrenched derogation clauses that include a detailed set of conditions for the suspension of rights.  15  T h i s is conspicuously absent i n section 33  of the Charter. B y opting not to follow the approach taken by drafters o f post-war bills of  "Terrorism's Challenge to the Constitutional Order", in Hie Security of Freedom, supra, note 1, at 93-108. Sections 2 and 7 to 15. Supra, note 1, at 98. See, for example, the 1996 Constitution of South Africa, or the European Convention on Human Rights, cited in the Introduction. 1 2  1 3  1 4  1 5  30  rights, Canadians were making clear that "their complaint against the Charter was its restraint on political power generally, not specifically i n times of emergency."  16  As  W e i n r i b points out, the models for section 33 were the provisions i n federal and provincial statutes that allow for the suspension of other provisions - and these were rarely, i f ever, i n v o k e d .  17  In addition to the absence of an emergency derogation clause i n the Charter, W e i n r i b notes that the drafters of section 1 of the Charter sought to narrow the range of circumstances i n which limits to rights could be justified — and they d i d so with precisely this kind of scenario i n m i n d .  1 8  A n earlier proposal for the section w o u l d have allowed  "reasonable limits as are generally accepted i n a free and democratic society with a parliamentary system of government." too expansive.  20  19  But upon closer scrutiny, this was thought to be  As W e i n r i b writes:  O f particular importance was the generally held view that past breaches of fundamental freedoms i n C a n a d a under the War Measures Act w o u l d pass muster under this [proposed] standard. O n e of the p r i m a r y legal purposes of the Charter was to ensure that emergency conditions no longer authorize unjustifiable encroachments on these fundamental freedoms. 21  W e i n r i b emphasizes that when the Charter was drafted, Trudeau's invocation of the War Measures Act i n the F . L . Q . crisis i n Quebec i n the early 1970s was well within the m e m o r y of the general public. Ironically, i n Weinrib's view, the Charter was intended to limit the  Ibid. Ibid, at 97. Ibid, at 97. Cited by Weinrib, ibid, at 97. The final formulation reads: "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Ibid, at 97. ]G  17  18  1 9  2 0  2 1  31  use of Parliamentary power, i n precisely the kind of emergency situation that might arise after an event, like the F . L . Q . crisis, w h i c h amounted to a terrorist act on Canadian soil.  T h e War Measures Act was Canada's governing law on emergency powers, from 1914 to 1988. W e i n r i b cites a passage from an article on the A c t by Patria P e p p i n to underscore the point that prior to the Charter, the War Measures Act had been invoked on a number of occasions to allow for some of the most egregious injustices ever perpetrated by the C a n a d i a n government. As Peppin writes, Citizenship, the right to hold property, freedom to contract, the right to bring a civil suit, freedom of speech, freedom of the press, freedom of association, habeas corpus, ecjuality before the law, due process, the right to a fair trial, the presumption of innocence and the rule of law itself have all been denied i n greater and lesser measure under the War Measures Act.' ' 1 2  T h e A c t allowed for an inordinate degree of concentrated, unchecked power i n the executive, and after the F . L . Q . episode, it stood out i n recent memory as the enabling instrument for a shocking and excessive display of executive power i n a time of peace.  It  pointed to a serious problem i n C a n a d i a n law.  In addition to the Charter as a remedy for this situation, Parliament enacted the Emergencies Act i n 1988.  23  It provides a m u c h more stringent framework for the invocation  of emergency powers by limiting the assertion of those powers to strict time limits and dispersing the power to invoke or continue a state of emergency a m o n g a wider group of Parliamentarians, as opposed to the executive alone.  W e i n r i b highlights, a m o n g other  features o f the A c t , that both houses of Parliament must confirm the invocation of a state Patricia Peppin, "Emergency Legislation and Rights in Canada: The War Measures Act and Civil Liberties," (1993) 18 Queen's Law Journal 129 at 131, cited in Weinrib, ibid, at 100. S.C. 1988, c. 29. 2 2  2 3  32  of emergency, and the fact that any law made during the period of emergency must be considered by Parliament as a whole within two sitting days.  24  She also notes that  [f]he A c t authorizes the Cabinet [to] make orders and regulations under the authority of the proclamation of emergency. These powers are extensive and as invasive of existing rights and liberties as the provisions made a permanent component of C a n a d i a n law under Bill 36. T h e powers are however temporary. T h e y are also subject to the ongoing involvement of P a r l i a m e n t . 25  Weinrib's broader point was that the Liberal government, i n power at the time B i l l C - 3 6 was passed, chose not to invoke the Emergencies Act at least i n part because it believed the bill w o u l d survive Charter scrutiny under section 1.  A s then Minister o f Justice A n n e  M c L e l l a n stated, "the balance between individual and collective security shifted after the attacks."  26  T h e implication for W e i n r i b is that invoking the Emergencies Act was therefore  unnecessary, and not invoking it would afford the government greater leeway.  Stanley C o h e n and Irwin C o d e r have commended the government for not invoking a state of emergency under the A c t  2 7  - but it should be noted that neither of  these m e n is, to say the least, an impartial observer. (Cohen, at the time, was counsel for the Department of Justice and a draftsman of B i l l C - 3 6 , and C o d e r was a L i b e r a l M e m b e r of Parliament.) However, an important question to ask at the outset is whether it was even possible for government to invoke a state of emergency under the A c t . T h a t is, could Parliament have validly invoked the Emergencies Act given the nature of the threat posed by 9/11? Does the A c t contemplate that k i n d of emergency? W e i n r i b conjectured Supra, note 1, at 102. Ibid. A statement made by Justice Minister McLellan through news media and cited by Weinrib (and many other authors in Hie .Security of Freedom) at 94, ibid. Sec, for example, Stanley Cohen, "Safeguards in and Justifications for Canada's New Antiterrorism Acf (2002-2003) li.KJ.CL. 99-123, at 102, and also Irwin Coder's "Terrorism, Security and Rights: The Dilemma of Democracies" from the same issue of the N.J.C.L., 13-69. 2 4  2 5  2 6  2 7  33  that of the four possible emergency scenarios proposed by the A c t , B i l l C - 3 6 might have been preceded by a proclamation under the heading: 'international  emergency.'  28  Section 27 of the A c t defines this as: an emergency involving C a n a d a and one or more other countries that arises from acts of intimidation or coercion or the real or imminent use of serious force or violence and that is so serious as to be a national emergency. Conceivably, the 'involvement' of one or more nations here need not be i n an adversarial capacity. I f there was some connection i n the events of 9/11 between C a n a d a and the U . S . , this might have made sense.  However, there was no clear evidence o f such a  connection, and it w o u l d therefore seem that this ground of emergency might have been questioned or even challenged.  29  T h e other three classes of emergency include:  a 'public welfare emergency'  (section 5), w h i c h involves a natural disaster, an outbreak of disease, or an accident or pollution "that results or may result i n a danger to life or property, social disruption or a breakdown i n the flow of essential goods, services or resources, so serious as to be a national emergency"; a 'war emergency' (section 37), w h i c h means "war or other armed conflict, real or imminent, involving C a n a d a or any of its allies that is so serious as to be a national emergency." Neither of these two classes w o u l d seem appropriate to the 'threat' facing C a n a d a after 9 / 1 1 . T h e fourth class of emergency, however, might be applicable: a 'public order emergency' (section 16), w h i c h is defined as "an emergency that arises from threats to the security of C a n a d a and that is so serious as to be a national  Ibid, at 101. Sections 58 and 59 provide for a Parliamentary committee to assess the validity of a declaration of emergency made under the Act and the power to revoke it. 2 8  2 9  34  emergency" (and die A c t states that "'threats to the security of C a n a d a ' has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act")  T h a t A c t states:  "threats to the security of C a n a d a " means (a) espionage or sabotage that is against C a n a d a or is detrimental to the interests of C a n a d a or activities directed toward or i n support of such espionage or sabotage, (b) foreign influenced activities within or relating to C a n a d a that are detrimental to the interests of C a n a d a and are clandestine or deceptive or involve a threat to any person, (c) activities within or relating to C a n a d a directed toward or i n support o f the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within C a n a d a or a foreign state, and (d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government i n C a n a d a , but does not include lawful advocacy, protest or dissent, unless carried on i n conjunction with any of the activities referred to i n paragraphs (a) to (a). But i n every case, the activity i n question requires a connection to C a n a d a . I n the case of 9 / 1 1 , the connection was arguably tenuous at best, and more likely non-existent — at least i n any clear sense.  It may well have been the case that a declaration of emergency under C a n a d i a n law i n the wake of 9/11 was not legally viable. A t the very least, declaring an emergency under the Emergencies Act would have been a serious political gamble for the governing L i b e r a l party.  It was safer and more desirable to table Bill C-36 i n a spirit of crisis and  emergency, and reap the benefits of seeming reasonable or moderate for not invoking either the notwithstanding clause or the Emergencies Act.  35  T h e unique structure of the  Charter helped to shape this political strategy by giving the governing party a mechanism to point to, a space within w h i c h to work (the section 1 limitation clause) that w o u l d allow for the suspension of rights on precisely the grounds that any emergency power w o u l d be justified i n the name of national security.'  In one sense, the decision not to invoke a state of emergency seemed more consistent with the rule of law, because the crisis was being addressed within a n o r m a l state of the law, with the executive remaining subject to constitutional limits.  But in  another sense, it was inconsistent with, or undermined, the rule of law because, arguably, by choosing not to invoke a state of emergency, and passing permanent law that curtails fundamental rights, the government brought about a number of changes to C a n a d i a n law that could — i f deemed 'justifiable' limits on those rights by the courts — result i n permanent erosions to those rights. In what follows, I will explore this argument i n more detail.  But first, I will address the question of how the government understood B i l l C - 3 6 . Was it a temporary suspension or departure from the rule of law, or from basic Charter rights?  W a s it understood to be a special case i n the law, w h i c h w o u l d justify a  curtailment of civil liberties, or a departure from notions fundamental to our concept of the proper administration of justice? O r was it somehow consistent with the Charter a n d a careful balancing of individual liberties and society's need to protect itself?  The  best indication of what the government of C a n a d a thought it was d o i n g i n  tabling B i l l C - 3 6 can be found i n statements made by the government i n the House of  36  C o m m o n s during the debates i n October and N o v e m b e r of 2001. W h a t we find w h e n we look at this record is that the government consistently took the position that the bill conformed to Charter rights and values. M e m b e r s of the government d i d not make this case by arguing that certain aspects of the bill might be deemed a violation of the rights i n the Charter but ultimately justifiable under section 1.  T h e case was simpler and more  direct — more media friendly: trust us, it's consistent with the Charter, just don't ask us how.  O n first reading of the bill, October 15, 2001, then Minister o f Justice, A n n e M c L e l l a n announced: . . . C h a r t e r rights have been considered and preserved against the objectives of fighting terrorism and protecting national security. I assure everyone i n the House and all Canadians that we have kept the individual rights and freedoms o f Canadians directly i n m i n d i n developing these proposals. 30  O v e r the course of the many hours spent debating specific provisions i n the bill, M c L e l l a n took to responding to concerns of other members of the House with a breezy, cavalier assurance. F o r instance, later on October 15th: M s . Pierrette V e n n e (Saint-Bruno—Saint-Hubert, Ind. Bloc Quebecois): M r . Speaker, this bill contains a provision whereby preventive detention without a warrant will now be possible i n the context of the fight against terrorism. Interestingly, even members of the official opposition took a generally positive view of the potential impact of the bill on Charter rights at first reading. Speaking in response to Minister McLellan, Peter M a c K a y for the 'Conservative Alliance' (as it was then called) stated: "We will hear from experts and from those who may very well raise concerns about civil liberties. However, I believe an initial reading.of the bill indicates that it sought to strike a careful balance between civil liberties and the protection of Canadian citizens, which is certainly very much the backdrop to Bill C-38 [sic] before us." At second and third reading (on October 16 and November 27 and 28 , 2001), M a c K a y expressed concern with certain provisions - including those pertaining to the expansion of Crown privilege in the Canada Evidence Act, discussed in more detail below. But he continued to receive essentially the same response from Anne McLellan as to the constitutional validity of all aspects of the bill. 3 0  th  th  37  Does this not interfere with fundamental rights and freedoms, i n addition to being completely at odds with the intentions expressed by the Prime Minister? H o n . A n n e M c L e l l a n (Minister of Justice and Attorney General of C a n a d a , Liberal.): M r . Speaker, the hon. member refers to a concept called preventive arrest. Let me reassure the House that we have reviewed this provision very carefully. First of all, any officer w o u l d have to reasonably believe that a terrorist act would or will take place and i n addition have a reasonable suspicion that the individual involved w o u l d participate i n that particular act. Cons'ec]uently, we do believe that with those two protections, the requirement for reasonable belief and reasonable suspicion, this does not impact on the rights and freedoms of Canadians. T h e Prime M i n i s t e r himself took a similarly casual, self-assured view of the continuity of the bill with Canada's basic constitutional values. Speaking i n the House later that same day, J e a n Chretien stated: ... A free and open society never lightly increases the powers of law enforcement authorities. O u r challenge i n developing this legislation has been to respond i n a way that reflects and protects, for the long term, our core values of freedom, democracy and equality. C a n a d a is a free nation, a just nation, a nation o f laws. It is also a l a n d of immigrants, a place where people from almost every nation and faith on earth have come to find freedom, respect, harmony and a brighter future. These values are the very bricks and mortar of our society. T e r r o r i s m seeks to undermine the rule of law and the preservation of h u m a n rights. T h e real test of our values is how they guide us i n times of crisis. Quite frankly, as a country we d i d not always pass that test i n the past. W e must be vigilant today to make sure that we do not repeat past mistakes. A s the minister of justice, it was my privilege to introduce the C a n a d i a n Charter of Rights and Freedoms. I am deeply committed to it. I believe that the legislation we have introduced today is essential to preserving those very values. In the drafting of the anti-terrorism act, we have taken great care to protect these rights and freedoms. It provides meaningful protection of individual rights through the inclusion of due process guarantees. It provides for a parliamentary review after three years to re-examine the necessity and effectiveness of these  38  measures. I understand that today the minister said i f it is needed earlier it will be earlier. (In the days that followed, there was no further mention by either the P r i m e M i n i s t e r or the Minister of Justice of the need to subject the bill to an earlier parliamentary review date — nor was there any movement on the issue w h e n members of other parties urged the government to reduce the period to one year.)  On  31  second reading, on October 16 , A n n e M c L e l l a n ' s rhetoric became even lh  more inflated and self-assured: O u r w o r l d changed dramatically on September 11 but not i n the manner that the terrorists who planned and carried out the horrific attacks had hoped. T h e y aimed to frighten us, disrupt our lives and force us to question our most basic democratic values of freedom and liberty. T h e y d i d not succeed. O u r commitment to democracy is stronger than ever. Together all Canadians are committed to increasing public security while maintaining our core values. Bill C-36 represents an appropriate legislative balance to reflect C a n a d i a n values. T h o u g h our allies may have designed different legislative means to suit their legislative and constitutional frameworks, we nevertheless share a collective goal: to provide our citizens with security for themselves, their families and their communities. And  by third reading, on N o v e m b e r 2 7 , her position was reduced to a lh  repeated  affirmation: ...We have reviewed the legislation i n detail. It has gone through the most intense scrutiny i n terms of whether or not it is consistent with the charter of rights and freedoms. W e believe that this law is consistent. M e m b e r s of the Conservative Alliance were generally accommodating of M c L e l l a n ' s rhetoric and stood i n support of the bill, especially so after certain amendments suggested  See Canada, Parliament, House of Commons, 37 Parliament, 1st Session: House of Commons Debates (Hansard), October 16 to 18 and November 27 and 28 , 2001; see online: <http:/ / vvwvv2.paii.gc.ca/housechamberbusincss/chamberindex.aspx?View=H&Parl=37&Scs= l&File=t-37-l_2-e.htm&Language=E&Modc=l> (last accessed January 9, 2007). 3 1  th  th  39  by the party were m a d e .  A d m i r a b l y , however, a number of the remaining members of  32  Parliament, expressed concern, dissent, discontent and distress at parts of B i l l C - 3 6 , the manner i n which it was hastily tabled, amended and pushed to a final vote, and the lack of a substantial debate as to the nature of what the government was doing by passing i t .  33  Specific Provisions  T h e literature critiquing aspects of the Anti-tenorism Act from a constitutional or civil libertarian perspective is v o l u m i n o u s . mark  a departure from  what  34  M y focus will be on aspects of the legislation that  might be  described  as  an  earlier concept  of  the  administration of c r i m i n a l justice, or the administration of justice i n a broader sense. T h i s will not be an exhaustive catalogue of provisions that might fall within this category, but is, rather, an attempt to highlight some of the more critical provisions.  35  A paper by Irwin C o d e r published roughly a year after the bill was first tabled serves as a useful guide for this purpose.  36  Cotler was a M e m b e r of Parliament i n the  governing party; he sat on a Parliamentary committee that heard submissions w i t h respect to the bill; and he was involved i n its drafting.  Cotler had tabled a number of  These are set out in Keith Martin's lengthy submission to the House, on behalf of the Conservatives, November 27 . Sec the Appendix. Among the sources to highlight in this respect are the submissions to Parliamentary committees in 2001 and 2005 by the Canadian Bar Association, the British Columbia Civil Liberties Association, and the Canadian Association of University Teachers; these arc available online at: <http:/ / www. cba.org/CBA/submissions/Main/>; <http:/ / www.bccla.org/05antiterror.htm>; and <http://www.caut.ca/en/issucs/civil_liberties/Default.asp> (last accessed January 9, 2007). 35 p u n t overview of the enacted version of Bill C-36 see Kent Roach, "Criminalizing Terrorism" in September 11: Consequencesfor Canada (McGill-Queens U P: Montreal, 2003). Cotler discusses this in "Terrorism, Security and Rights", supra, note 27. 3 2  th  3 3  3 4  o r  a  n  e x c e  C  3 6  40  concerns with the bill i n the House of C o m m o n s i n October of 2001, a n d a number of changes were made i n response to those concerns.  37  These included the insertion of a  sunset clause for the preventive arrest and investigative hearing powers, review powers for information deemed privileged under the newly expanded scope of privilege i n the Canada Evidence Act,™ elements of the definition of terrorism, and the mens rea component of certain terrorism offences.  39  However, a number of concerns raised i n submissions to  Parliament and shared by C o d e r — but not addressed i n the final version o f the bill ~ are discussed i n Coder's paper. Coder's list of continuing concerns provides a handy tool for measuring deviations from the conventional approach to the administration of justice.  The definition of terrorism  Section 83.01 of the Criminal Code defines 'terrorist activity' as, among other things, an act committed " . . . f o r a political, religious or ideological purpose, objective or cause."  40  C o d e r shares K e n t Roach's objections to including a motive element i n the definition o f terrorism.  41  C o d e r cites Roach's point that "a motivational requirement such as this  stands i n stark contrast to the criminal law's historical refusal to either require motive for conviction or excuse conduct by reason of lack of m o t i v e . "  42  These are discussed in the article, ibid, at 32. R . S . C . 1985, c. C-5, hereafter CEA. All of these provisions arc explored in more detail below. R . S . 1985, c. C-46. Supra, note 36, at 35. Ibid. Roach makes this point repeatedly: "The New Terrorism Offences and the Criminal Law" in "Hie Security of Freedom., supra, note 1, at 156; in "Criminalizing Terrorism", September 11: Consequences for Canada, supra, note 35, at 28, and the source cited in Coder's article: Roach's "Canadian Values in the Face of Terrorism" [2002] 47 McGill L.J. 4 at 12. The same point is addressed by Zayeed M i a , supra, note 5, at 130, and D o n Stuart in "The Dangers of Quick Fix 3 7  3 8  3 9  4 0  4 1  4 2  41  T h i s feature of the definition was also criticized by a number of commentators concerned about the potential for a group to be deemed 'terrorist' for following an ideology contrary to that of the prosecution or the government.  43  Z i y a a d M i a , of the  M u s l i m Lawyers' Association of T o r o n t o , wrote "the inherent p r o b l e m i n defining 'terrorist activity', and hence, 'terrorism' is that one man's terrorism is another liberation struggle."  44  man's  M i a ' s fear is that the definition of terrorism i n the A c t could be  used as a tool for political suppression, especially i n cases relating to groups acting outside of C a n a d a . H e argues, History has borne out that effective civil disobedience, political and social activism sometimes require forms of advocacy that may involve violence, for example i n the form of armed resistance to attack, occupation or oppression. [...] T h e exception to 'terrorist activity' carved out i n the A T A w o u l d have offered no protection to Nelson M a n d e l a and the African N a t i o n a l Congress, or fighters i n the French Resistance to N a z i occupation. 45  M i a also questions whether the definition of 'terrorist activity' w o u l d apply to a group that resisted, by acts of violence, the regimes of Saddam Hussein or R o b e r t M u g a b e .  4 6  Legislation in the Criminal Law: the Anti-Terrorism Bill C-36 should be Withdrawn," supra, note 1, 205 to 213, at 208. In addition Roach, sec also M i a , ibid, at 130, and Don Stuart, ibid, and a later version of Stuart's paper, "The Anti-terrorism Bill C-36: A n Unnecessary Law and Order Quick Fix that Permanently Stains the Criminal Justice System" (2002-2003) 14 KJ.C.L. 153-166.2, at 158 to 9; see also David Schneiderman and Brenda Cossman "Political Association and the Anti-terrorism B i l l " in Tlie Security of Freedom, supra, note 1, 173-194, at 183. 4 3  4 4  M i a , ibid, at 130.  Ibid, at 131. The exception M i a refers to is presumably what is set out at the end of the definition of'terrorist activity' in 83.01(1 )(b)(ii), "an act or omission, in or outside Canada... that intentionally... causes death or serious bodily harm to a person by the use of violence [...] but, for greater certainty, docs not include an act or omission that is committed during an armed conflict and that, at the time and in the place of its commission, is in accordance with customary international law or conventional international law applicable to the conflict, or the activities undertaken by military forces of a state in the exercise of their official duties, to the extent that those activities are governed by other rules of international law." 4 5  Ibid. W . Wesley Pue, in "The War on Terror: Constitutional Governance in a State of Permanent Warfare" Osgoode Hall L J V o l . 41, Nos 2 &3, 267 to 291, at 275, approaches the same point in an interesting way: "It would be no defence to show that the particular government really is reprehensible or that it ought to be compelled, intimidated, or overthrown for the benefit of 4 6  42  H i s point is that i n taking sides, as it were, and applying the definition to one group and not  another,  concerns."  the  law will  be  "delegitimiz[ed]  ...by injecting subjective  political  47  R o a c h points to two further consequences of including motive i n the definition of terrorism that Cotler does not mention. A failure to prove motive can lead to an acquittal of a terrorist charged for some nefarious act of significant magnitude.  48  T h e question  w o u l d then be raised whether the person could be accused of committing the act itself (for instance, murder) i f motive was not established beyond a reasonable doubt. Section 662 of the Criminal Code allows for findings of guilt of lesser included offences, but the question might arise i n a prosecution on a charge of 'terrorist activity' as to precisely w h i c h other offences this charge w o u l d contain, i.e., as 'lesser included' offences.  49  R o a c h also points out that by criminalizing motive on religious, political or ideological grounds, the prosecution of terrorism offences necessarily becomes a trial about religious, political and ideological issues — as opposed to a trial on whether the act was c o m m i t t e d .  50  As R o a c h notes, police w o u l d be required i n this context to gather  information about and investigate a suspect's beliefs and religious practices — a task for  either its own citizens or others who might fall victim to its power." In other words, "...the statute allows for no distinction between liberation armies and terrorists." Ibid. Roach, 2003, supra, note 35, at 26. In conversations with the author, Professor Robin Elliot put this question in a different way by asking whether, if motive were removed from the definition of a 'terrorist activity', there would still be an offence separate and distinct from all of the possible included offences that it might amount to. Ibid, at 21. 4 7  4 8  4 9  5 0  43  w h i c h the police are not likely well equipped.  51  Suspects i n this context w o u l d all too  easily r u n the risk o f blurring "the line between terrorism a n d radical political or religious dissent."  52  The mens rea element  In addition to defining a 'terrorist activity,' the A c t includes a definition of a 'terrorism offence' a n d a number of provisions w h i c h , together, have the effect o f reclassifying certain actions as 'terrorism offences,' including high-jacking an airplane or financing a terrorist g r o u p .  53  It also includes the act o f 'facilitating' or 'participating i n ' a 'terrorist  organization'.  Cotler questions whether the offence o f 'facilitating' a terrorism offence contains a sufficient mens rea component, but argues that the enacted version o f the B i l l improves u p o n earlier drafts.  54  Other commentators, including R o a c h , are more c r i t i c a l .  55  The  provision (section 83.19) states: (1) E v e r y one w h o knowingly facilitates a terrorist activity is guilty o f an indictable offence and liable to imprisonment for a term not exceeding fourteen years. (2) F o r the purposes of this Part, a terrorist activity is facilitated whether or not (a) the facilitator knows that a particular terrorist activity is facilitated;  Ibid. Ibid. The definition of'terrorism offence' appears in section 2 of the Code and includes "an indictable offence under this or any other Act of Parliament where the act or omission constituting the offence also constitutes a terrorist activity." Ibid, at 38. See, for example, Pue, supra, note 46, at 277. 51  5 2  5 3  5 4  5 5  44  (b) any particular terrorist activity was foreseen or planned at the time it was facilitated; or (c) any terrorist activity was actually carried out.  F o r R o a c h , "[t]his w o r d i n g goes beyond watering down the fault element to obliterating it."  56  T h e key is subsection 2(b). If the accused is not aware that an activity is foreseen or  planned, how can he or she 'knowingly' facilitate?  R o a c h conjectures that the only  remaining fault element here would be "failing to take reasonable care to ensure that what was being facilitated was actually not a terrorist activity."  57  T h i s means that a  person could be convicted of facilitating without knowing they were i n fact facilitating a terrorist activity.  58  Participating in terrorism  Aside from the mens rea issue, C o d e r was silent on the companion provision, section 83.18, w h i c h deals with participating i n or contributing to a terrorist activity.  Stuart and  R o a c h , a m o n g others, are critical of the mens rea element of the provision: (1) Every one who knowingly participates i n or contributes to, direcdy or indirectly, any activity of a terrorist group for the purpose of enhancing the ability  Supra, note 35, at 44. Ibid. Ibid. Puc, supra, note 46, at 277, describes this weakness in the legislation less charitably: "Bizarrely, knowing facilitation can happen even though no terrorist activity was in fact carried out... and where no particular terrorist activity was foreseen... This is grammatical, if not legal, nonsense inasmuch as there is no 'it' capable of being 'knowingly' facilitated if nothing is foreseen or planned. Nonsense or not, a very real fourteen-year sentence of imprisonment attaches to the offence." See also the hypothetical cases Pue raises (at 278 to 280) that involve civil society groups and charities—to illustrate how easily tangential relationships to distant groups involved in what might be deemed 'terrorist activities' can result in charges for these unsuspecting groups in Canada under the facilitation provisions. 5 6  5 7  5 8  45  of any terrorist group to facilitate or carry out a terrorist activity is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. [•••]  (3) Participating i n or contributing to an activity of a terrorist group includes (a) providing, receiving or recruiting a person to receive training; (b) providing or offering to provide a skill or an expertise for the benefit of, at the direction of or i n association with a terrorist group; (c) recruiting a person i n order to facilitate or c o m m i t (i) a terrorism offence, or (ii) an act or omission outside C a n a d a that, i f committed i n C a n a d a , would be a terrorism offence; (d) entering or remaining i n any country for the benefit of, at the direction of or i n association with a terrorist group;  Stuart notes that representatives from a number of bar associations across C a n a d a were concerned that 3(b) w o u l d capture the act of providing legal representation to persons accused of terrorism — but the concern was i g n o r e d .  59  H e also argues that the scenarios  set out i n subsection (3) would likely be found unconstitutional for being vague or overbroad.  60  R o a c h notes that the offence i n (2)(b) "may be committed whether or not  the accused's participation or contribution actually enhances the ability of a terrorist group to carry out a terrorist activity."  5 9  6 0  6 1  61  Stuart, supra, note 43, at 157. Ibid. Supra, note 35, at 43.  46  An early test of the provisions  T h e first prosecution i n C a n a d a under the Anti-terrorism Act is an O n t a r i o case currently under way called R. v. Khawaja.  62  T h e accused i n that case is charged with a  number of the new terrorism offences i n the Criminal Code, i n c l u d i n g all of the ones discussed above.  03  In December of 2005, Justice Rutherford o f the O n t a r i o Superior  C o u r t of Justice had occasion to hear a challenge to the definition of terrorism (section 83.01) and the mens rea element i n a number of the provisions discussed a b o v e .  64  The  challenge was made i n a preliminary motion (before evidence has been called i n the case), and was worded i n this way: T h e Applicant brings this Application seeking a declaration that sections 83.01(1), 83.03(a), 83.18, 83.18(1), 83.18(3)(a), 83.19, 83.2, and 83.21(1) are of no force and effect pursuant to section 52(1) of the Constitution Act, 1982, on the basis that the provisions are vague a n d / o r over-broad, they dilute the essential fault requirements of criminal law, and they infringe his rights to freedom of association, freedom of conscience and religion, and freedom of thought, belief, opinion, and expression pursuant to section 2 of the Charter.^ T h e court declined to find any of the provisions v o i d for vagueness or overbroad i n their reach. T h e y were not vague, because "they describe conduct i n a fashion that provides notice of what is prohibited and set an intelligible standard for both citizen and law  Court file: 04-G30282. At the present time January 2007), there appears to be only one other prosecution in Canada under the terrorism provisions of the Criminal Code. This is also a case in its preliminary stages at the time of this writing, and involves a number of young persons in Brampton, Ontario: R. v. Fahim Ahmed et al. For more information on this case, see Kent Roach "Canadian Anti-Terror Law on Trial: The Toronto Terrorism Arrests" from Jurist, June 2006, see online: <http://jurist.law.pitt.edu/forumy/2006/06/canadian-anti-terror-law-on-trial.php> (last accessed January 9, 2007). For the full text of the counts charged, see R. v. Khawaja, [2006] C C S . N o . 12212, [2006] O J . No. 4245. Ibid. Ibid, at paragraph 3. 6 2  6 3  6 4  6 5  47  enforcement officials."  60  T h e impugned provisions were not overbroad because they h a d  "sufficiently clear meanings".  67  O n the question of whether the mens rea i n some of the provisions (conspiracy, providing assistance) was diluted to the point of being non-existent, as some h a d argued, the court disagreed: R e t u r n i n g then to the qualifying provisions that it is suggested m a y water down or even obliterate the required mens rea, it seems to me that they do not do more than allow for the subjective guilty knowledge to be non-specific, lacking i n detail or generalized. T h e y also allow for culpability when the object of a guilty intent goes unrealized, or is wasted. It is unnecessary that an accused be shown to have knowledge of the specific nature of terrorist activity he intends to aid, support, enhance or facilitate, as long as he knows it is terrorist activity i n a general way. It doesn't have to be shown that an accused actually facilitated terrorist activity as long as it can be shown that he intended to do so. It doesn't matter i f an accused knows the identity of the one he instructs to carry out terrorist activity, as long as he knowingly instructs someone to do so. A n d so on. These so called erosions or diluents do not, i n m y view, significantly reduce the m o r a l o p p r o b r i u m or fault requirement of the accusations open under sections 83.18, .19 and .21 merely because of the lack of details or specifics of the operation. W h i l e the specific qualifying provisions spelled out i n these sections w o u l d seem to be a response to the type of cellularized activity the Parliamentary Committees were warned of i n the evidence of such witnesses as M r . K e n n e d y and M r . Mosley, the provisions also reflect c o m m o n law principles that have long been part of our criminal conspiracy l a w . 68  The  court d i d , however, find that the inclusion of a "political, religious or ideological  purpose" i n the definition of 'terrorist activity' (section 83.01(l)(b)(i)(A)) was contrary to the freedoms protected i n section 2 of the Charter: It seems to me that the inevitable impact to flow from the [motive] requirement i n the definition of "terrorist activity" will be to focus investigative and prosecutorial scrutiny on the political, religious and ideological beliefs, opinions a n d expressions of persons and groups both i n C a n a d a and abroad. Equally inevitable will be the 6 6  6 7  6 8  Ibid, at paragraph 18. Ibid, at paragraph 24. Ibid, at paragraphs 39-40.  48  chilling effect W e b b predicts. There will also be an indirect or re-bound effect of the sort Professor Stribopoulos described, as individuals' and authorities' attitudes and conduct reflect the shadow of suspicion and anger falling over all who appear belong to have any connection with the religious, political or ideological grouping identified with specific terrorist acts. T h i s i n m y view amounts to a prima facie infringement [...] 69  T h e infringement could not be justified on a section 1 analysis, because it could not meet the ' m i n i m a l impairment' phase of the test under R. v. Oakes. A s Rutherford J . put it, 70  [...] "the provision used to narrow the focus leads inevitably to putting the searchlights o f investigative and enforcement activity, and the attention of the public, on some o f the freedom-protected aspects of the lives of those on w h o m any shadow of suspicion may fall, with or without justification."  T h e trial was scheduled to begin i n J a n u a r y of 2007.  A t the present time, the  accused has been granted an adjournment of the commencement of the trial to A p r i l of 2007 for the purpose of seeking leave to appeal Rutherford J.'s decision. A s it stands, without the motive element i n the definition of'terrorist activity', the C r o w n now has less to prove i n its case against the accused than it d i d at the outset. A m o n g the issues that the Supreme C o u r t of C a n a d a will have to decide, i f it grants leave i n this matter, is whether, as Rutherford J . has ruled, the mens rea element i n many of the impugned provisions and the allegedly overbroad w o r d i n g of others is consistent with earlier criminal law principles and jurisprudence.  6 9  7 0  Ibid, at paragraph 58. [1986] 1 S.C.R. 103.  49  Privilege  Returning, once again, to B i l l C-36, I will now shift m y focus to a set of amendments made to provisions i n the Canada Evidence Act that give government the power to assert a wide swath of privilege over information deemed to be sensitive for 'national security' reasons. C o d e r notes that i n the earlier drafts, this power was "unfettered, unreviewable and secret."  71  A number of small, technical amendments were made to address these  concerns — but the most significant substantive limitation on these powers is a limited right of review i n the Federal C o u r t of A p p e a l .  72  C o d e r concedes that the final version o f  the bill allows for the "non-disclosure of information" i n ways " w h i c h may affect the right to a fair t r i a l . " below.)  73  (I explore the amendments to the Canada Evidence Act i n more detail  Suffice it to say for the moment that these provisions contemplate a terrorism  prosecution i n w h i c h the public is excluded (under 486(1) of the Criminal Code, w h i c h allows for this where it is 'necessary to prevent injury to . . . national security'), and very little disclosure is made to the accused pursuant to new sections of the Canada Evidence Act (which allow for the protection of such information on 'national security' grounds).  74  Sunset clauses  A l t h o u g h sunset clauses were added to the two features of the B i l l mentioned above, C o d e r agrees with the criticism shared by a number of the groups that made submissions  71  7 2  7 3  7 4  Supra, note 27, at 38. Coder sets out the revisions to the draft on pages 38 to 39, ibid. Ibid, at 39. Ibid, at 39.  50  to Parliamentiary committees that the scope of the clauses is too n a r r o w .  75  Cotler echoes  the concerns of the C a n a d i a n B a r Association's submission that more of the controversial features of the B i l l should have been subject to sunset clauses — including those pertaining to the keeping of lists of terrorist organizations w h i c h would authorize the forfeiture of assets, those enabling ministerial (as opposed to judicial) authorization of wiretapping, and those precluding the full disclosure of evidence to persons whose liberty interests are at stake.  76  T h e fact that a weak sunset clause with a narrow scope has been included i n  the B i l l instead of what is suggested here means that Parliament was intending something more than a temporary departure from the set of assumptions about due process and the administration of justice that underlie these provisions.  Preventive detention  Cotler concedes that the preventive detention provisions constitute "novel demarches i n criminal investigations and procedure".  77  These allow for a person's arrest and detention  before a crime has taken place — where there are reasonable grounds to suspect a terrorist activity " w i l l be carried out" or that the arrest is necessary to "prevent the carrying out o f the terrorist a c t i v i t y . "  78  Cotler notes the provisions contain a number of 'due process'  protections, including the requirement that any perceived threat be specific and involve the person i n particular; that, except i n 'exigent circumstances', the Attorney General's consent be given before making an arrest; and the provision for j u d i c i a l review of the  7 5  7 6  7 7  7 8  Ibid, at 41. Section 83.32 of the Code. Ibid, at 42. Ibid, at 43. (Section 83.3 of the Code). Section 83.3(2).  51  detention. However, Cotler also notes that "the A c t w o u l d allow warrantless arrest and detention on a mere suspicion that a terrorist activity is planned, without the need for a reasonable belief that the activity is i n any way i m m i n e n t . "  79  M i a takes a more critical view of the preventive arrest provisions, especially the proposition that it protects due process to some extent.  80  M i a argues that it marks a  "drastic departure from Charter and criminal law standards" and that, i n particular, it violates four 'legal' protections i n the Charter: arbitrary detention, the right to be informed promptly of the reasons for arrest or detention, the right to be informed of the specific offence, and the right to have the detention reviewed by way of habeas corpus? M i a also 1  questions the necessity of these provisions by pointing out that section 495 o f the Criminal Code enables an officer to arrest without warrant " a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to c o m m i t an indictable offence... "  8 2  M i a argues that this provision is a sufficient tool for  preventative action on the part of law enforcement.  83  B y contrast, section 83.3 allows for  Ibid. Stuart, supra, note 43, at 160 is similarly doubtful of the effect of what Coder believes were important 'due process' concessions in the later amendments to these provisions. Speaking of both the investigative hearing and preventive arrest provisions, Stuart writes: "These extraordinary new powers may not be as bad as such provisions in other countries. They expressly cannot be triggered without the consent of the Attorney General. But that does not mean that they are not repressive or that they are needed." Supra, note 5, at 134. This is not to say that the preventive arrest provisions fail to provide for review of the detention by the court. Sections 83.3(4) to (8) provide for expedient review of a detention pursuant to an arrest without warrant in section 83.3(4). But this review would take place in provincial court within 24 hours or "as soon as possible." The provisions do not appear to preclude a habeas corpus application, nor is M i a clear on the grounds for his assertion with respect to this remedy. 7 9  8 0  81  8 2  8 3  Ibid, at 128, and section 495(1 )(a) of the Code. Ibid.  52  arrest and detention on a mere hunch, without the officer providing for a p r o m p t explanation of the grounds of arrest, and it allows for a delay i n bail or review.  Investigative hearings  T h e investigative hearing provisions enable a judge to order a person to appear before the court to answer questions posed by the C r o w n ; to charge a person with contempt for refusing to answer; and to issue an arrest warrant for those who fail or refuse to appear.  84  T h e provisions also give courts the broad power to impose on the hearing any "terms or conditions that the judge considers desirable, including terms [...] for the protection o f any ongoing investigation." hearings in camera?  6  85  T h i s has been interpreted to allow for the conduct of these  C o d e r points out that the A c t includes a number of safeguards over  the exercise of this power, including the requirement for reasonable grounds to believe a terrorist offence has been or will be committed; protection from self-incrimination; and powers to protect the interests of witnesses compelled to testify.  87  B u t Cotler also notes  the power to force a person to testify is not new i n C a n a d i a n law.  Persons can be  compelled to testify i n coroners' inquiries and public inquiries, a n d also i n criminal proceedings, pursuant to section 545 of the Criminal Code. T h a t section of the Code provides for persons to be compelled to testify i n a preliminary inquiry, w h i c h is a hearing held i n a case where charges are laid i n an indictable matter and the purpose o f the hearing is to determine whether there is sufficient merit to the accusations to proceed to a  Section 83.28 of the Code. ^Ibid, ats. 83.28(5)(c). See Chapter 2 and the discussion of Vancouver Sun (Re) [2004] 2 S.C.R. 332. Ibid, at 44. 8 4  8 6  8 7  53  full trial.  Cotler, however, shares the concern of the C a n a d i a n B a r Association that  investigative hearings  bring the criminal law closer to an 'inquisitorial m o d e l ' by  curtailing the right to silence — despite the inclusion i n the provision o f a protection from self-incrimination.  88  But while Cotler is correct to point out that the notion of forcing a  person to give evidence is not new, the prominence of the concept of investigative hearings i n the broader framework of anti-terror prosecutions, as contemplated by B i l l C - 3 6 , arguably is new.  T h e inclusion of a provision dedicated to this subject i n a new chapter  of the Criminal Code dealing with terrorism demonstrates, a significant shift towards an inquisitorial approach to evidence i n terrorism cases.  T h e investigative hearing provisions were invoked i n a proceeding linked to the ' A i r India' trial, and resulted i n a constitutional challenge before the Supreme C o u r t of Canada.  89  T h e majority upheld the provision as constitutional (for reasons I explore i n  the next chapter). However, i n their dissenting opinion, L e B e l and Fish J J . found that the provision "compromises the institutional dimension of judicial independence" and should be declared unconstitutional.  90  A judge presiding over an investigative hearing might be  Ibid, at 45. The protection is found in section 83.28(10). The authors of the 2005 C A U T submission to Parliament, supra, note 34, at 35 note that "[w]hile the witness is supposedly protected from self incrimination under s. 83.28 in that no evidence he gives in the investigative hearing can be admitted or used against him in subsequent proceedings except for the purposes of proving he is guilty of perjury (s. 132 of the Criminal Code) or contradictory evidence (s. 136 of the Criminal Code), one wonders what will stop the police from using his evidence to follow secondary leads that can incriminate him. Also, he remains subject to being swept off the street to assist police in their investigations in a way that we only associate with police states." Jason Gratl, instructing a seminar in civil liberties at the Faculty of Law of the University of British Columbia in the winter of 2006, noted that although statements made by a person questioned under section 83.28 could not be used in any proceedings under Canadian law, the protection against selfincrimination would not extend to a person extradited to the United States (or elsewhere) to stand trial for offences relating to the evidence obtained in an investigative hearing in Canada. 8 8  8 9  9 0  R. v. Malik andBagri, 2005 B C S C 350. Ibid, from the headnote.  54  impartial, they reasoned, but the process w o u l d turn the courts into a b r a n c h of the executive. T h e judge's role i n such a hearing would be little more than to act as a tool to facilitate a C r o w n or police investigation. Also, the Justices found that the section does not equip the judge with the means to "effectively play his or her role as protector of the fundamental rights of the person being e x a m i n e d . "  91  Furthermore, investigations held in  camera w o u l d add to the perception that the judiciary and the executive i n these hearings were not acting independently of one another. A n d lastly, they noted, "the judge's duties under s. 83.38 are unlike any of the duties traditionally discharged by the judiciary."  In  addition to these arguments,  one key difference that makes investigative  hearings exceptional and unusual i n the administration of the criminal law is the fact that although witnesses can be compelled to testify i n criminal cases, or preliminary hearings, witnesses cannot be compelled to testify i n the investigative stages of a case.  The  investigative hearings are exceptional because they can be invoked before anyone has been charged with an offence.  T h e y are an extraordinary tool available to the C r o w n to carry  out an investigation that breaches the rights to privacy and to silence o f persons not clearly involved i n an offence. M a r t h a Shaffer notes that until B i l l C - 3 6 , there was "no requirement under C a n a d i a n law that ordinary citizens assist police officers i n their investigations, and certainly no power that w o u l d permit a person to effectively be detained, compelled to attend a hearing, and to answer questions for this purpose."  92  O t h e r commentators point out that these provisions mark a departure from "the rule i n  Ibid. "Effectiveness of Anti-Terrorism Legislation: Does Bill C-36 Give Us What We Need?" Security of Freedom., supra, note 1, 195-204, at 197. 91  9 2  55  our criminal law system that there can be no trials in absentia, that is, i n the absence of the accused, so that he may be present to protect his rights i n the criminal process."  93  Wiretapping  T h e bill enables the Minister of N a t i o n a l Defence to authorize the ' C o m m u n i c a t i o n s Security Establishment' to intercept communications between persons outside C a n a d a and those inside C a n a d a .  94  Cotler suggests that what is new and troubling i n these  provisions is that a minister, and not a court, can issue this warrant. C o t l e r believes that a minister should have the power to authorize the wiretap but the authorization should be subject to judicial confirmation.  Clearly, without judicial oversight of the process of  wiretapping, the 'security establishment'  could be eavesdroping on any number of  communications with no public or independent oversight whatsoever.  A list of terrorist entities  Section 83.05 of the bill sets out a scheme by w h i c h the Solicitor General o f C a n a d a can recommend to the G o v e r n o r i n C o u n c i l that groups be added to a list of 'entities' deemed  C A U T 2005 submission to Parliament, supra, note 34, at 35. Ibid. Bill C-36 amends the National Defence Act, R.S., 1985, c. N-5, by adding sections 273.65 and 273.69. The authors of the 2005 C A U T Parliamentary submission, supra, note 35, at 40, note that the power to authorize wiretapping here is restricted to "the sole purpose of obtaining foreign intelligence" and the "sole purpose of protecting the computer systems or networks of the Government of Canada" (s. 273.65(1) and (3)). They note, however, that "there is no express prohibition on the [Canadian Security Establishment] giving information to law enforcement about Canadians." 9 3  9 4  56  to be 'terrorist groups.'  95  O n c e added to the list, a group's property may be seized, and  persons involved with the group can be charged i f their involvement 'enhances the ability' of the group to carry out a terrorist activity.  96  Cotler cites the criticism raised by A l a n  Borovoy of the C a n a d i a n C i v i l Liberties Association with respect to the low standard the government is required to meet here.  97  T h e Solicitor General alleging a belief that an  entity "has knowingly carried out, attempted to carry out, participated i n or facilitated a terrorist activity" requires only 'reasonable grounds' for the belief. A n d he or she is not required to present evidence i n support of the belief.  98  Cotler notes that although the decision to add a group to the list can be challenged by way of judicial review, this safeguard operates 'after the fact.'  99  It w o u l d be  preferable to give notice to an entity and allow for a response before m a k i n g the decision than to make it first and provide for a review l a t e r .  100  C o d e r does not, however, address  the obstacles i n place i f an entity does seek review of the decision.  Section 83.05(6)  mandates that the judge (a) examine, i n private, any security or criminal intelligence reports considered i n listing the applicant and hear any other evidence or information that m a y be  Section 83.05, which sets out the scheme for a list of terrorist entities, points back to the definition of'terrorist group' in section 83.01(1). In Roach's discussion of this feature of the Act, in September 11, supra, note 35, at 37, he notes that "[t]he idea that the Cabinet, as opposed to the courts, can decide which group is terrorist goes back to the 1970 invocation of the War Measures Act, when the Cabinet declared the FLQ_to be an illegal organization. One difference now is that the Cabinet docs not have to declare an emergency to list a group as a terrorist organization." Section 83.05 provides for the creation of a list and section 83.18 addresses 'participating, facilitating, instructing and harbouring' in the activities of a 'terrorist group'. Supra, note 27, at 46. See sections 83.05(1) and (1.1). Ibid, at 47. The review provisions are found in sections 83.05(4) to (11) and are discussed above. Stuart, supra, note 42, at 156, argues that allowing for review only after being added to the list violates the presumption of innocence guaranteed in section 11(d) of the Charter. 9 5  9 6  9 7  9 8  9 9  1 0 0  57  presented by or on behalf of the Solicitor General and may, at the request of the Solicitor General, hear all or part of that evidence or information i n the absence of the applicant and any counsel representing the applicant, i f the judge is of the o p i n i o n that the disclosure of the information w o u l d injure national security or endanger the safety of any person; ib) provide the applicant with a statement summarizing the information available to the judge so as to enable the applicant to be reasonably informed of the reasons for the decision, without disclosing any information the disclosure of w h i c h would, i n the judge's opinion, injure national security or endanger the safety of any person; (c) provide the applicant with a reasonable opportunity to be heard; and (d) determine whether the decision is reasonable on the basis of the information available to the judge and, i f found not to be reasonable, order that the applicant no longer be a listed entity. T h e notion of the court examining evidence to decide whether it should be disclosed to the accused (or, i n this case, the party alleged to be culpable) is not new. T h e provisions i n sections 278.2 to 9 of the Criminal Code provide for the examination, by the court, of medical and psychiatric records of complainants i n sexual assault cases — before they can be disclosed to the accused.  However, there are a number of important  differences  between the two contexts. Section 278.2(3) states that " i n the case of A record i n respect of w h i c h this section applies that is i n the possession or control of the prosecutor, the prosecutor shall notify the accused that the record is i n the prosecutor's possession..." (emphasis added). In this case, the state has an obligation to disclose the existence of any record of w h i c h the C r o w n has knowledge. In section 83.05(6), the state (or the Solicitor General) is not under the same duty to disclose all relevant information. Arguably, the w o r d i n g i n section 83.05(6)(a) is permissive of a more selective disclosure to the court of the evidence relied upon by the state i n forming its belief.  58  A second key difference i n the two contexts is that i n the sexual assault provisions, the court can order the production of a record from a third p a r t y .  101  U n d e r section  83.05(6), the judge cannot order a third party - such as C.S.I.S. or any of the agencies assisting the Solicitor General - to disclose a record to the court or the accused entity. So, for example, i f the accused entity has knowledge of a document on w h i c h the Solicitor General is relying, and the document has not been disclosed to the court, there w o u l d be no way of compelling disclosure of that document to either the court or the accused.  A third key difference is i n the grounds for disclosure.  Sections 278.7(1) to (6)  require the judge to balance the complainant's (or record-holder's) privacy interests with the accused's right to make full answer and defence.  102  In section 83.05(6)(a) and (b), there  is to be no disclosure to the applicant, and the applicant's counsel can even be excluded from the hearing of the evidence, i f the judge deems this necessary i n the interest of 'national security.'  In other words, the section contemplates not a balancing but a  complete trumping of the applicant's rights by the state's r i g h t s .  103  O n e key flaw i n this scheme is that it assumes that a judge is qualified to assess whether "the disclosure" of certain information w o u l d "injure national security" or endanger a person's safety. There is no legal test i n the A c t to assist the court i n m a k i n g this determination. extraordinary  Furthermore, section 83.05(6)(b) asks the court to do something  i n the  criminal  law: to  "provide the  applicant with  a  statement  See sections 278.2(2) and 278.5(1). 102 These provisions withstood a Charter challenge in R v. Milts, [1999] 3 S.C.R. 668. Stuart, supra, note 43, at 156, notes that the decision of the court in this instance would not be shrouded in absolute secrecy, given the Privacy Commissioner's power to access this decision for review. 1 0 1  1 0 3  59  summarizing the information available" without disclosing that w h i c h w o u l d be injurious or unsafe.  In the 278 scheme, the judge's ultimate role was to order disclosure, not  summarize it.  T h e role contemplated for the judge i n section 83.05(6)(b) is almost  adversarial or prosecutorial. It places the court i n the position of assuming the facts are true, hence the necessity for all of the protection and secrecy.  A n o t h e r unusual feature of the list scheme is the scope of evidence that may form a part of the review. Section 83.05(6.1) states: T h e judge may'receive into evidence anything that, i n the o p i n i o n of the judge, is reliable and appropriate, even i f it w o u l d not otherwise be admissible under C a n a d i a n law, and may base his or her decision on that evidence. A further provision, 85.06, allows for an even broader scope: (1) F o r the purposes of subsection 83.05(6), i n private and i n the absence o f the applicant or any counsel representing it, (a) the Solicitor General of C a n a d a may make an application to the judge for the admission of information obtained i n confidence from a government, an institution or an agency of a foreign state, from an international organization of states or from an institution or an agency of an international organization of states; and (b) the judge shall examine the information and provide counsel representing the Solicitor General with a reasonable opportunity to be heard as to whether the information is relevant but should not be disclosed to the applicant or any counsel representing it because the disclosure w o u l d injure national security or endanger the safety of any person. These provisions raise the possibility of an entity being declared a 'terrorist group' based on information obtained from a foreign state that used torture i n the process of obtaining the information, or a state that had closer ties to C a n a d a than to the group i n question. T h e information i n turn could be used to prosecute a person i n C a n a d a with alleged ties to the listed entity. A good example cited by Wesley Pue is the Evangelical Fellowship o f  60  C a n a d a , w h i c h made submissions to Parliament i n the fall of 2001. T h e i r concern was that some of the humanitarian and charity work they do abroad runs contrary to the interests of certain foreign governments or entities.  '[FJalse or misleading' information  provided to C a n a d a could result i n their becoming a listed entity, or the fear of this possibility could result i n a 'chilling effect' on the part of international organizations i n C a n a d a .  charitable  1 0 4  T o recap, then, the party calling for judicial review i n this context w o u l d be precluded from receiving full disclosure of the evidence upon w h i c h the decision was made, and even the court could be precluded from reviewing all of the available relevant evidence. T h i s could happen i f the Solicitor General, or C.S.I.S., provided only selective disclosure of available evidence to the court (either out of a fear that full disclosure w o u l d compromise national security, or because the investigative agency, or the  Solicitor  General, took a different view of what evidence was 'relevant' to the hearing).  These  issues arise at least i n part because the provision dispenses with the presumption of innocence.  It also allows for a finding of guilt before a full trial ~ and even the review  provision contemplates a challenge without the benefit of full answer and defence.  I turn now to a more detailed exploration of one category o f amendments i n B i l l C-36 — potentially the most contentious.  Pue, supra, note 46, at 278-9.  61  Expanding Privilege  In  recent years, Parliament has passed a number of bills dealing with access to  information and the protection of state secrets. the scope o f this thesis,  105  A n exploration of these laws is beyond  but one important development i n this area of the law concerns  amendments to the Canada Evidence Act i n B i l l C - 3 6 . These amendments considerably expand the possible scope of the assertion of what is called 'public interest i m m u n i t y . ' T h e scope is now so broad that it marks what might be the most serious departure i n B i l l C-36 from earlier assumptions about the administration of justice i n C a n a d a .  1 0 6  Bill C-36 replaces both the statutory scheme for the state's assertion o f 'public interest i m m u n i t y ' and the assertion of privilege over certain information and the c o m m o n law doctrine on p o i n t .  107  Before the bill was enacted, sections 37 to 39 of the  CEA allowed for a process by which the C r o w n could object to requests for disclosure, or the requirement that a witness answer certain questions, on the basis that to divulge the information w o u l d be contrary to the public interest — or that the information was a Cabinet secret.  If it belonged to the former category, the court w o u l d adjudicate the  105 p e y of these developments, see Craig Forcese's "Clouding Accountability: Canada's Government Secrecy and National Security Law 'Complex'" Ottawa Law Review 36:1, 49 to 91. Coder, supra, note 27, at 39, makes only a brief mention of these amendments, commenting that "[w]hilc these limitations arc intended to protect 'international relations or national defence or security' they may risk prejudicing the accused's right to make a full answer and defence and to a fair trial." By contrast, Hamish Stewart devotes an entire article to the amendments, in a contribution to Tlie Security of Freedom, supra, note 1. For this portion of the chapter, I draw extensively upon this article as well as Stewart's more recent "Public Interest Immunity after Bill C-36" (2003) 47 Criminal Law Quarterly, 249-264. See also Peter Rosenthal's "Disclosure to the Defence after September 11: Sections 37 and 38 of the Canada Evidence Act" (2003), 48 C.L.Q_., 186-204; and Kathy Grant's "The Unjust Impact of Canada's Anti-terrorism Act on an Accused's Right to Full Answer and Defence" 16 Windsor Rev. Legal & Social Issues 137, 2003. Rosenthal discusses a number of cases in which the revised scheme in the CEA has been applied. Ibid, Stewart (2001) at 217. o r  a  s u r v  1 0 6  1 0 7  62  claim, balancing the public's general interest i n disclosure with the specific public interest at issue i n the claim for p r o t e c t i o n .  108  O n e of the possible grounds of public interest was  that "the disclosure w o u l d be injurious to international relations or national defence or security."  109  A considerable body of case law had evolved over time, and it tended to  demonstrate less deference toward the executive when balancing these interests.  110  If the information belonged i n the second category (a Cabinet secret), the Clerk of the Privy Counsel for C a n a d a could issue a certificate, pursuant to section 39 of the CEA, to the effect that the information was a Cabinet confidence, and this assertion was beyond review. It was an extraordinary power, but was limited to Cabinet secrets.  111  B i l l C - 3 6 amends sections 37 and 38 of the CEA i n a number of significant ways.  112  T h e former procedure for adjudicating claims of privilege is mostly intact i n the  new version of section 37, but the section is now subject to the procedure contemplated i n sections 38 to 3 8 . 1 6 . categories  113  Those sections are meant to deal with two new and broader  of privilege: "potentially  injurious  information,"  w h i c h is  defined  as  information that, i f disclosed, "could injure international relations or national defence or  Ibid, 219; see the former section 37(2) of the CEA. Ibid, 220; sec the former section 37(1). A n attempt to assert privilege on that ground could be adjudicated only by the Chief Justice of the Federal Court, or his or her designate (see the former section 37(2)). Sec Stewart, ibid, at 219, for a discussion of this case law. Ibid; see the former section 39. It is worth noting that on second reading of Bill C-36, on October 16 ' , 2001, Anne McLcllan justified the amendments in the House of Commons by stating: " The Canada Evidence Act would be amended to allow for better protection of sensitive information during legal proceedings. One of the key reasons we need this improved protection is to be able to assure our allies that sensitive information they provide to us can be protected from release." Section 37(1). 1 0 8  1 0 9  1 1 0  111  1 1 2  1 1  1 1 3  63  national security"; and "sensitive information," w h i c h is defined as information "relating to international relations or national defence or national security that is i n the possession of the Government of C a n a d a , whether originating from inside or outside C a n a d a , and is of a type that the Government of C a n a d a is taking measures to safeguard."  114  In the former version of the A c t , the government official involved i n a proceeding was the person responsible for asserting privilege. T h i s is also the case i n the new scheme, but i n addition, 'participants' i n proceedings, whoever they may be, now have a positive obligation to bring to the attention of the Attorney General the fact that they believe they possess sensitive or potentially injurious information that may be disclosed, or that they are seeking to have disclosed.  115  A person possessing such information is prohibited from  disclosing that information, except i n accordance section.  116  with the scheme  set out i n the  H a m i s h Stewart argues that this obligation is "remarkable", because  virtually everyone connected with a proceeding w o u l d have a positive obligation to be aware of the nature of the information he or she might disclose and to notify the Attorney General of C a n a d a of any possible disclosure. It is unclear how 'participants' are to be made aware of their obligations; whether there is any sanction for failure to discharge the obligation; and how the obligation relates to other obligations i n the trial process, such as the C r o w n ' s constitutional duty of disclosure i n criminal prosecutions, or the accused's constitutional right to solicitor-client p r i v i l e g e . 117  Section 38 in the current version of the Act. The authors of the 2005 C A U T Parliamentary submission, supra, note 34, at 4 note that the previous version of section 38 allowed for the assertion of privilege over information that "would be injurious to international relations, or national defence or security". They argue that the amended phrasing — "potentially injurious information" and "sensitive information" - are both vague, but that the latter threshold "has the distinction of being so low that the term could cover almost anything government officials wanted it to cover — from information relating to a Watergate, tainted water, or sponsorship-type scandal, to information relating to delicate relations with a province, to information showing government liability or government financial problems." Section 38.01(1) and (2); see also Stewart, supra, note 1, at 223. Section 38.02(1); Stewart, ibid. Supra, note 1, at 223. 1 1 4  1 1 5  1 1 6  1 1 7  64  It remains unclear what sanction could be imposed for a failure to notify the state of sensitive information, or to disclose sensitive information that one should have known was not to be disclosed. But it seems clear that the provision could be easily violated without intending to do so, or without even being aware of the fact.  Assuming, then, that the C r o w n or a party other than the C r o w n is i n possession of potentially injurious or sensitive information, an application can be made for its disclosure under sections 38.04 to 38.06.  T h e C h i e f Justice of the Federal C o u r t or a  judge he or she designates has exclusive jurisdiction over the process.  T h e test for  disclosure is found i n 38.06, w h i c h allows the court, but does not require the court, to disclose information i f the court concludes that it is sensitive or w o u l d be injurious. I f the court concludes that the information falls within one of those categories, it can still be disclosed if, after considering possible forms of disclosure or conditions that "are most likely to limit any injury to international relations... or national security..."-and the court decides that i n this case, "the public interest i n disclosure outweighs i n importance the public interest i n non-disclosure."  1 1 8  O n c e the court has considered a matter under section 37 or 38 and decided that information should be disclosed, the Attorney General of C a n a d a has an unusual power under section 38.13 to issue a certificate that appears to trump the decision of the court — by preventing the disclosure i n spite of the court's decision.  In earlier drafts of the bill,  the issuance of a certificate under this section marked the end of the process.  1 1 8  Section 38.06(2).  65  But this  aspect of the scheme provoked considerable criticism by, a m o n g others, Stewart, Stuart, and R o a c h .  1 1 9  T h e final version of the bill does something curious: instead of removing  section 38.13, it subjects the C r o w n ' s certificate to review by a single judge i n the Federal C o u r t of A p p e a l .  1 2 0  T h e test on appeal is whether some or none of the information  subject to the certificate "relates either to information obtained i n confidence from, or i n relation to, a foreign entity ... or to national defence or national s e c u r i t y . . . " certificate can be varied, cancelled or upheld — and the decision is f i n a l .  122  121  The  Stewart notes  Sections 38.13 and 38.131 as enacted represent an improvement over the earlier version. But the right of appeal is still extremely limited, both institutionally and i n the scope of the grounds. It is not the person presiding over the proceeding who makes the decision either to issue the certificate or to vary or cancel the certificate; indeed these sections apply only after the person presiding and a judge of the Federal Court, T r i a l Division have done whatever they can do. Furthermore, the new provisions still provide no mechanism for correcting any error by the Attorney General i n assessing the balance between the interests i n non-disclosure. In short, under ss. 38.13 and 38.131 the Attorney G e n e r a l is permitted to second-guess the outcome of a proceeding to w h i c h he was a party. 123  A n o t h e r significant and novel feature of the new scheme worth noting is the inclusion of companion sections 37.3 and 38.14, headed "protection o f right to a fair trial." In essence, these sections state that i f the court decides that information cannot be disclosed, or a certificate has been issued under 38.13, that impairs the right of the accused to a fair trial, the court can dismiss counts on an indictment, make a finding against the party asserting privilege, or even order a stay of proceedings.  124  Stewart  argues that these sections add nothing to the court's jurisdiction to grant remedies under 1 1 9  1 2 0  1 2 1  1 2 2  1 2 3  1 2 4  See Stewart, supra, note 1, Roach, supra, note 35, and Stuart, supra, note 42. Section 38.131. Section 38.131(8)-(10). Section 38.131(11). 2003, supra, note 106, at 255. This is set out in subsection (2) of 37.3 and 38.14.  66  section 24(1) of the Charter.  125  H e also fears that these sections do not "[go] far enough to  satisfy the trial right protected by s. 7 of the Charter, i n that [they] subordinate the accused's right to a fair trial to the [new] disclosure r e g i m e " .  126  B u t this argument is  questionable i n two respects.  First, precisely because the general remedy provision i n the Charter (section 24(1)) is sufficiently broad, a remedy could be granted to the accused to prevent his or her section 7 rights from being subordinated. T h a t is, there w o u l d be no difference between the way that courts w o u l d exercise the power under section 24(1) i n a case involving an egregious deprivation of material information under the new scheme and the way i n w h i c h the power was applied i n a typical, summary drug-trafficking case under the former scheme.  Second, Stewart underestimates the significance of including an explicit  direction to judges to consider the otherwise extraordinary remedy o f a judicial stay of proceedings i n this context. B y presenting the remedy to judges within the provisions that set out the scheme, Parliament is, i n effect, suggesting to judges that even though j u d i c i a l stays are extraordinary, including under the Charter, they are likely going to be more c o m m o n l y appropriate i n this context. In short, by articulating the remedies, and giving judges full discretion, they cease to be extraordinary.  However, as both K e n t R o a c h and K a t h y G r a n t point out, this can work both ways. G r a n t expands on Roach's comment that a dispute between a court and a C r o w n prosecutor over a question of privilege may well result i n a stay of proceedings if the court  Supra, note 1, at 221. ^ Ibid. 1 2 5  67  perceives the violation of the right to a fair trial is more serious i n that case than the nature of the crime i n question.  127  G r a n t suggests that "while incredulous, the interests of  justice i n a case such as murder or terrorism might tip the balance i n favour of proceeding in an unfair trial rather than ordering a judicial stay." Iacobucci J J . i n R. v. Mills,  ]2d  128  She cites M c L a c h l i n and  to the effect that "it can never be i n the interests of justice  for an accused to be denied the right to make full answer and defence"; however, as she notes, "these comments were made prior to September 1 l cases of terrorism i n C a n a d a .  l h  and we have not experienced  There is a real possibility that trial judges, responding to  the changing values of society, w o u l d prefer i n such cases to proceed with a trial that may be borderline u n f a i r . "  130  T h e new scheme is certainly unusual and may well have the practical effect of expanding the scope of government privilege, or, as K a t h y G r a n t suggests, o f lowering the threshold o f the C r o w n ' s duty to disclose.  131  However, the two features -  the  possibility of judicial review of the Attorney General's power to issue a certificate, and the remedy provisions to protect fair trial rights ~ arguably bring this set of amendments i n B i l l C - 3 6 i n closer conformity with older ideas of the administration of justice than earlier versions of the B i l l . Stewart is skeptical on this point: .. .it might be held that B i l l C-36 infringes s. 7, with the C r o w n having to establish a justification under s. 1. I think that such a justification w o u l d be very hard to make out. Quite apart from the fact that the Supreme C o u r t has never upheld a Grant, supra, note 106, at 159, cites Roach's 2002 article, " D i d September 11 Change Everything? Struggling to Preserve Canadian Values in the Face of Terrorism" 47 M c G i l l L . J . 893. Ibid. [1999] 3 S.C.R. 688. Supra, note 106, at 159. Ibid, at 167. 1 2 7  128  1 2 0  1 3 0  131  68  s. 7 breach under s. 1, B i l l C-36 does not satisfy all the elements of the Oakes test. T h e restrictions on disclosure undoubtedly have a pressing and substantial objective and are rationally connected . . . but where the right to a fair trial could be protected by not trying the accused, i.e., through a stay of proceedings entered either by the C r o w n or by the court, it is hard to see how a refusal to disclose material relevant to making full answer and defence could be a m i n i m a l impairment of the fair trial r i g h t . 132  G r a n t concurs witii this assessment, arguing that the CEA amendments i n B i l l C - 3 6 w o u l d fail the ' m i n i m a l impairment' portion of the Oakes test because "there are no effective limits on prosecutorial discretion to prohibit disclosure."  133  She also takes issue with the  fact that "the law is permanent and not of temporary duration" and asks, " i f the law is part of the ' W a r on T e r r o r ' should not the law only i m p a i r rights while the w a r is being fought?  I f the W a r on T e r r o r is a permanent war, then the provisions cease to be  extraordinary and the problem of being overbroad becomes more serious."  134  There  might also have been other measures i n the legislation to mitigate the impairment to an accused's right to a fair trial, including the use of amicus curiae to access the information on the accused's behalf, but without disclosing it to anyone.  T h e more critical point, however, is whether even i f the powers of the state could be restrained i n some acceptable way, the changes to the CEA will, over the long run, result i n a normalization of a deeper shift i n our thinking about privilege.  If it is  acceptable to allow the government to make these demands on 'participants' and to create what amounts to a separate proceeding within existing litigation, one has to ask where will the process end? In other words, i f it becomes acceptable to build into the law so many protections for state secrets - and to make it easy to assert the privilege over 1 3 2  1 3 3  1 3 4  2 0 0 3, supra, note 106, at 258. Supra, note 106, at 163. Ibid.  69  something as nebulous legislation),  135  as 'national security' (a term  not denned  i n any  federal  at what point will the principle of holding a full trial i n open court cease to  mean anything? Charges might be stayed more frequently, but i n many cases the cloud of suspicion w o u l d linger over the wrongfully accused indefinitely — and with no recourse.  Conclusion " . . . W h e n the State turns to its power to investigate, detain, punish and standard of justification should be high, even i n extraordinary times. Basic criminal justice system that deserves the name require the state to prove individual acted and was at fault, that responsibility be fairly labeled punishment be proportionate to the accused's a c t i o n s . "  imprison, the principles of a both that the and that any  136  T h e intended effect of focusing on these sections of B i l l C - 3 6 is to demonstrate that at its core, as it were, the A c t contains a significant departure from what D o n Stuart, i n the passage above, calls the "basic principles of a criminal justice system that deserves the name..."  T h e c o m m o n assumption i n these sections is that an accused terror suspect or  group is too dangerous to be afforded the presumption of innocence.  T h e fear of  terrorism (or its code phrase i n the A c t , "national security") justifies an approach i n w h i c h the accused terrorist has to be assumed guilty — because there is simply too m u c h at stake. T h e criminalization of terrorism i n the hands of Canada's Department of Justice i n some ways seems like a narrow but complete paradigm shift i n criminal justice: better that ten innocent m e n be convicted than one terrorist go free. Whereas elsewhere i n the criminal law, individual rights are to be balanced with collective interests, i n the case of B i l l C - 3 6 , the collective interest has trumped individual rights i n a more pervasive sense. 135 F supra, note 105, at 88, notes that the closest term in Canadian law that functions as a synonym for 'national security' that has been defined is 'threats to the security of Canada' in the Canadian Security Intelligence Service Act, R.S.C. 1985 c. C-23. Stuart, supra, note 43, at 154. o r c c s C ;  1 3 6  70  But i f this is true, then it would seem to qualify K e n t R o a c h ' s concern that i n criminalizing terrorism, Parliament continues to expand and burden the criminal law with the task of politicizing or 'memorializing' sensational events — i n ways that do not make Canadians safer or the justice system any better at dealing with such issues.  137  That  is, although there was obviously a political and ' m e m o r i a l ' character to amendments i n B i l l C - 3 6 , the most troubling aspect of the bill is that it subverts principles fundamental to the administration of justice — but it does so for reasons that seem unique to the case of the terrorist.  Ultimately, however, whether these provisions will remain a permanent part of our law — whether they will withstand Charter scrutiny i n the majority of cases, or are revisited by Parliament at a later point - may well depend on whether we are prepared to extend our thinking about the presumption of innocence and due process to the case o f the terrorist. A r e we prepared to be wrong, i n other words, about someone who may well be a terrorist?  138  This is one of the broader arguments in September 11: Consequences for Canada, supra, note 35; at 15, Roach writes: "Before September 11, we were already in the habit of expanding our criminal law in a symbolic attempt to respond to well-publicized crimes that threatened Canadian's sense of security. The 1990s had seen an expansion and toughening of the criminal law in more or less direct response to a number of well-publicized murders..." A n d at 25, "The rationale for these Criminal Code amendments rests on the felt need to recognize tragic cases, not the more abstract issues of coherence within the code or respect for fundamental principles of criminal law." In R. v. Malik and Bagri, supra, note 89, Josephson, J . made precisely this decision, but was dealing with very different facts, and a much different kind of collective interest, when he concluded: "I began by describing the horrific nature of these cruel acts of terrorism, acts which cry out for justice. Justice is not achieved, however, if persons are convicted on anything less than the requisite standard of proof beyond a reasonable doubt. Despite what appear to have been the best and most earnest of efforts by the police and the Crown, the evidence has fallen markedly short of that standard." 1 3 7  1 3 8  71  Chapter 3: The Courts and Section 7 After 9/11  I have explored the argument that changes to the Criminal Code and other statutes, along with certain court decisions and changes i n the structure of the intelligence and enforcement apparatus of the state, demonstrate that a shift is taking place i n our law that cannot be captured exclusively i n the terms of constitutional rights and civil liberties. I am interested i n testing the thesis that i n the case of the suspected terrorist, or terrorist entity, our assumptions about the basic principles that underlie what might be called the 'proper' administration of justice are evolving.  T h a t is to say, we may be witnessing a  shift i n our way of thinking about the appropriate way to approach the administration of justice as it pertains to terrorism such that we no longer assume the centrality or p r i m a c y of the presumption of innocence, due process, and the subordination of the executive to the rule of law.  W h e n dealing with terrorism, we are not only willing to de-privilege all o f  these principles, we are creating a legal and intellectual framework i n w h i c h their discounted status reflects a new sense of the proper administration of justice.  M y focus i n the previous chapter was on aspects of B i l l C - 3 6 i n w h i c h principles 1  integral to the administration of criminal justice elsewhere i n the criminal law were compromised i n favour of other interests — but most commonly, that o f ' n a t i o n a l security.' In this chapter, I will look at three cases decided after 9/11 that reflect a shift i n thinking on the part of the courts that resembles the shift discussed above and i n the previous chapter on the part of Parliamentarians.  1  Anti-terrorism Act, S.C. 2001, c. 41  72  T h e Supreme C o u r t of Canada's decisions i n Re: Application under s. 83.28 of the Criminal Code and Suresh v. Canada (Minister of Citizenship and Immigration), and the Federal 2  Court  of Canada's  3  decision i n Re: Charkaoui,' each 1  engage the  question  of  the  constitutional rights of terrorist suspects - and i n particular the application of section 7 of the Charter. T h e first decision listed here concerns the validity of the investigative hearing 5  provisions i n the Anti-Terrorism Act discussed i n the previous chapter; the Suresh decision assesses the scope of the  Charter's protection against deportation  where there is a  substantial risk of facing torture; and the final case concerns the constitutional validity of the "security certificate" regime under Canada's Immigration and Refugee Protection Act.  6  The  security certificate regime allows the Minister of Immigration to order the detention, de facto indeterminate imprisonment, and eventual deportation of anyone i n C a n a d a w h o does not possess C a n a d i a n citizenship, i f the Minister has 'reason to believe' the person is a threat to national security. T h e process involves a m i n i m a l disclosure of evidence to the detainee, and a limited right of judicial review i n w h i c h the detainee is presumed guilty on the Minister's w o r d .  In each of these three decisions, when dealing with the argument that section 7 of the Charter has been violated, the courts engage i n a 'balancing' o f individual and state interests at the section 7 stage of the analysis. T h e y do so i n order to accomplish what  [2004] 2 S.C.R. 248. [2002] 1 S.C.R. 3. + 2004F.C.A. 421. Part I of the Constitution Act, J982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter, Charier]. S.C. 2001, c. 27 [hereafter, IRPA]. 2  3  5  6  73  could and should have been accomplished at the section 1 stage.  7  T h a t is to say, by  undertaking a balancing of interests when considering whether something is consistent with 'the principles of fundamental justice,' the courts have avoided having to concede that the impugned provisions violate a fundamental right, i n a way that may or may not have been justified under section 1. W h a t makes this a notable feature o f each of these key j u d i c i a l encounters with the question of terrorism and rights is that the court i n these cases has not simply found the impugned provisions consistent with the Charter, it has found them consistent with 'fundamental justice,' thus unnecessarily diluting die meaning of a core constitutional value.  As the following analysis illustrates, the point of these intellectual contortions on the part of the C o u r t is to make significant departures from fundamental principles seem normal — that is, part and parcel of a new approach to the administration of justice i n the post-9/11  era.  Arguably, it was possible for the courts to find that the impugned  provisions i n each of these cases — the sections of immigration legislation that w o u l d allow for deportation to torture, the security certificate regime, or the investigative hearing scheme — violated section 7 but were justified under section 1. But the need to go further and to make these provisions seem consistent with 'fundamental justice' in each of these cases demonstrates a recurring desire to make extraordinary anti-terrorism measures seem not simply acceptable but appropriate.  In his factum on behalf of the Appellant, Mohamed Harkat, in a pending appeal to the Supreme Court of Canada (a companion appeal to that of Charkaoui, supra, note 4), counsel Paul D . Copcland makes this argument with respect to the Federal Court of Appeal's reasoning in both Harkat v. Canada (Minister of Citizenship and Immigration), [2004] F . C J . N o . 1104 and Charkaoui. The factum is online at: <http://www.zerra.net/freemohamed/legal_docs/FileNo3117 8Harkat,Factumofthe Appellant.p df> (last accessed January 9, 2007). 1  74  The Principles of Fundamental Justice  Before m o v i n g on to a discussion of the cases mentioned above, it w o u l d be useful to look for a moment at section 7 of the Charter itself. T h e section states Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except i n accordance with the principles o f fundamental justice. 8  T h e question that immediately arises is: what exacdy is meant by the second part of the sentence? T h e Supreme C o u r t of C a n a d a answered this question i n a 1985 constitutional reference that serves as a starting point for the judicial interpretation of 'fundamental justice', and provides a basic model for a section 7 challenge.  T h e reference was initiated by the government of British C o l u m b i a i n respect to a provision of its Motor Vehicle Act.  9  Section 94 of the A c t proposed to make 'driving while  prohibited' or driving without a valid licence an absolute liability offence. A person could be found guilty and sentenced to prison without having known, at the time, that they were i n fact a prohibited driver or lacked a valid licence. A person could therefore be found guilty and imprisoned despite the possibility of an innocent explanation.  T h e British  C o l u m b i a C o u r t of A p p e a l found the provision contrary to section 7 and not justified by section 1, and the Supreme C o u r t of C a n a d a agreed.  8  9  Supra, note 5. Re B.C. Motor Vehicle Act, [1985] 2 S.C.R 586.  75  W r i t i n g for a majority of the Court, L a m e r J . as he then was, set out the Court's first substantial judicial interpretation of the phrase 'principles of fundamental justice,' and two important points emerge from his analysis. T h e first is that the C o u r t rejected the Attorney General's argument  that 'fundamental justice' should be  restrictively to refer to procedural as opposed to substantive content. was some indication that the Charter's drafters  interpreted  A l t h o u g h there  10  believed 'fundamental justice' to be  synonymous with 'natural justice,' L a m e r J . opted to instead to look at section 7 i n the context of the Charter as a whole. C i t i n g the Court's recent decision i n Hunter v. Southam,  u  L a m e r J . proposed to read section 7 with the broader purposes of the Charter i n m i n d — and with a view to the rights intended to be protected i n the section.  12  T h e difference  between the two approaches is that i f fundamental justice were to mean procedural or natural justice, the right to life, liberty or security of the person could be easily addressed by p r o v i d i n g only for certain procedural protections, such as an impartial tribunal, an opportunity to be heard, and so forth. T h e obvious danger, as L a m e r J . pointed out, is that [...]  "the narrower the meaning given to "principles of fundamental justice" the  greater will be the possibility that individuals may be deprived o f these most basic rights."  13  T h e second point was that the best indication of how to read the phrase 'principles of fundamental justice' was to be found i n the Charter itself: Sections 8 to 14 are illustrative of deprivations of those rights to life, liberty and security of the person i n breach of the principles of fundamental justice. F o r they, 10  11  12  13  Ibid, at paragraph 19. [1984] 2 S.C.R. 145. Ibid, note 9, at paragraphs 22 to 26. Ibid, paragraph 25.  76  in effect, illustrate some of the parameters of the "right" to life, liberty and security of the person; they are examples of instances i n w h i c h the "right" to life, liberty and security of the person w o u l d be violated i n a manner w h i c h is not i n accordance with the principles of fundamental justice. T o put matters i n a different way, ss. 7 to 14 could have been fused into one section, with inserted between the words of s. 7 and the rest of those sections the oft utilised provision i n our statutes, "and, without limiting the generality of the foregoing (s. 7) the following shall be deemed to be i n violation of a person's rights under this section". Clearly, some of those sections embody principles that are beyond what could be characterized as "procedural". 14  It is important to note, however, that sections 8 to 14 — the sections of the Charter that set out specific 'legal rights', such as the right to counsel, the right to be free  from  unreasonable search and seizure, the right to trial within a reasonable time, and so on ~ are illustrative for L a m e r J . of the possible content of fundamental justice and  not  exhaustive or exclusive. O n this latter point, L a m e r J . added: W h e t h e r any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 will rest upon an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and i n our legal system, as it evolves. Consequently, those words cannot be given any exhaustive content or simple enumerative definition, but will take on concrete meaning as the courts address alleged violations of s. 7 . 15  But while the phrase 'fundamental justice' is open-ended and therefore somewhat vague, it should also clearly be seen i n the context of a broader tradition: ['Fundamental justice'] represent^] principles w h i c h have been recognized by the c o m m o n law, the international conventions and by the very fact o f entrenchment i n the Charter, as essential elements of a system for the administration o f justice w h i c h is founded upon the belief i n the dignity and worth of the h u m a n person and the rule of l a w . 16  Ibid, paragraph 29. Ibid, paragraphs 66-7. Ibid, paragraph 63. The Court had occasion to revisit the issue of what constitutes a principle of fundamental justice in its decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519. That case dealt with a criminal prohibition against assisted suicide. The appellant argued that her freedom to choose when to die followed from the principles of 'human dignity and autonomy'. The issue was whether a 'respect for human dignity and autonomy' constituted a 14  15  16  77  After setting out what the phrase 'principles of fundamental justice' might mean, L a m e r J . then d i d something else that is important to understanding section 7. N a m e l y , he explained what should happen when the C o u r t does find that a law violates the principles of fundamental justice.  T h e section under review i n this case violated the principles o f fundamental justice because the 'fundamental principles of penal liability' have long held that it is repugnant to send a 'morally innocent' person to p r i s o n .  17  In other words, to send a person to j a i l ,  the C r o w n should have to prove both the mens rea an the actus reus of the offence.  But  principle of fundamental justice. SopinkaJ., for the majority, wrote: "[wjhile respect for human dignity is the genesis for many principles of fundamental justice, not every law that fails to accord such respect runs afoul of these principles." O n the question of how to decide what constitutes such a principle, SopinkaJ. wrote: A mere common law rule does not suifice to constitute a principle of fundamental justice, rather, as the term implies, principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice are required. Principles of fundamental justice must not, however, be so broad as to be no more than vague generalizations about what our society considers to be ethical or moral. They must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also, in my view, be legal principles. While the principles of fundamental justice are concerned with more than process, reference must be made to principles which are "fundamental" in the sense that they would have general acceptance among reasonable people, (pages 590-91 and 607) This passage was cited by Gonthier and Binnie J J . , for the majority, in R. v. Malmo-Levine; R. v. Caine, [2003] 3 S.C.R. 571, where the Court expanded on the test. This case was a recent challenge to the criminal prohibition against simple marihuana possession (and the possibility of a prison sentence) as a breach of section 7. One of the issues was whether the 'harm principle' — the notion that an action should have to cause harm to others to justify being criminalized with penal consequences — was a principle of fundamental justice for the purposes of section 7. With the exception of Arbour J . , the entire Court found that the 'harm principle' was not a principle of fundamental justice. The Court reformulated the test, at paragraph 113, in this way: [...] for a rule or principle to constitute a principle of fundamental justice for the purposes of s. 7, it must be a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. Ibid, paragraphs 73 to 75. 17  78  having decided this point, L a m e r J . is clear that the focus of the analysis should then turn to section 1 - to determine whether the violation of section 7 constitutes a reasonable limit.  T h e Attorney General's strongest argument i n favour of allowing for absolute  liability i n this context was 'administrative expediency.'  L a m e r J . makes clear w h y this  argument should be addressed at the section 1 stage and not section 7 by writing: Administrative expediency, absolute liability's main supportive argument, will undoubtedly under s. 1 be invoked and occasionally succeed. Indeed, administrative expediency certainly has its place i n administrative law. B u t when administrative law chooses to call i n aid imprisonment through penal law, indeed sometimes c r i m i n a l law and the added stigma attached to a conviction, exceptional, i n my view, will be the case where the liberty or even the security of the person guaranteed under s. 7 should be sacrificed to administrative expediency. Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only i n cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the l i k e . 18  T h e issue at the section 7 stage is, therefore, not whether a law violates a principle of fundamental justice but is justifiable nonetheless; it is strictly a question of whether a violation has been made out. Justifications - including the balancing of individual with societal or state interests — belong to section 1.  A n d , finally, whereas at the section 7 stage, the accused has the onus of p r o o f (to establish a breach), the onus of proof (to establish a justification) shifts, at the section 1 stage, to the state.  In this case, the state failed to meet this burden, because it failed to  establish w h y a strict liability regime (allowing for a 'due diligence' defence) w o u l d not have been equally effective or expedient i n terms of the province's objectives.  19  Notably,  Ibid, paragraph 85. This case precedes the more elaborate test for a section 1 justification set out in R. v. Oakes [1986] 1 S.C.R. 103, but the law in question would probably have failed the proportionality stage of that analysis. 18  1 9  79  it was L a m e r J.'s sense, i n dicta, at this early phase of Charter jurisprudence, that a violation of the principles of fundamental justice should only be found justifiable on the grounds of administrative expedience, or something similar, i n exceptional circumstances.  In what follows, I will consider three cases decided after 9/11 i n w h i c h almost all of these points are lost. A purposive interpretation means less and less; a justification of a deprivation of life, liberty and security of the person takes place at the section 7 stage instead of section 1; and, by virtue of that fact, a breach of fundamental justice no longer requires exceptional circumstances to be justified. T h i s is not, however, the beginning of a trend on the part of the Court. T h e migration o f the justification' analysis from section 1 to section 7 i n Supreme C o u r t jurisprudence can be traced back at least as far as the Rodriguez decision (1993), discussed above.  20  W h a t is notable is how m u c h  more  important this strategy has become i n the context of terrorism-related matters.  For  reasons that will become clear below, the urge to justify matters at the section 7 stage follows from a desire on the part of the C o u r t to avoid having to concede  that  fundamental principles have been violated, or having to finesse the more contentious question of whether such violations can be justified i n a 'free and democratic society.'  Justifying Torture  T h e case of Manickavasagam Suresh reached the Supreme C o u r t of C a n a d a i n May  of 2001, but the Court's decision was rendered i n J a n u a r y of 2002.  A cursory  reading of the Court's unanimous decision i n this case w o u l d suggest that it deals mostiy 2 0  Supra, note 16.  80  with technical and procedural aspects of the Minister of Immigration's decision to deport a refugee who fears that he may face torture i f returned to S r i L a n k a .  But a closer  reading of certain parts of this decision demonstrates that it is i n fact quite a significant statement on the part of the C o u r t i n the area of terrorism and h u m a n rights. It amounts to a declaration that i n the case of a suspected terrorist, even the most fundamental of h u m a n rights — the right not to be tortured — is not absolutely protected, but rather, is to be balanced with the interest of 'national security'. Furthermore, i n an extraordinary show of deference to government, the C o u r t ruled that the question of whether the balance has been struck correctly i n any given case is one the courts are content to defer to the M i n i s t e r h i m or herself.  Suresh was a S r i L a n k a n refugee who the C a n a d i a n Security and Intelligence Service (C.S.I.S.) believed was a member of and fundraiser for a group k n o w n as the 'Liberation Tigers of T a m i l E e l a m . ' T h e C a n a d i a n government believed this group to be involved i n terrorist activities, but also knew that members of the group h a d been tortured in Sri Lanka. proceedings  21  were  Suresh was detained i n 1995 as a security risk and commenced under  the  deportation  earlier federal i m m i g r a t i o n statute,  the  Immigration Act.  22  T h e constitutional validity of a number of sections of the A c t was at issue. A l t h o u g h the A c t was replaced i n 2002 with the Immigration and Refugee Protection Act, the  The Court in Suresh, supra, note 3, at paragraph 11, refers to a 2001 report from Amnesty International attesting to the use of torture in Sri Lanka. R . S . C . 1985, c. 1-2. 2 1  2 2  81  scheme and m u c h of the language i n the provisions discussed i n this case have remained the same. Section 53(1) of the earlier A c t stated that no person who is determined under this A c t or the regulations to be a C o n v e n t i o n refugee [...] shall be removed from C a n a d a to a country where the person's life or freedom w o u l d be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless  [•••] (b) the person is a member of an inadmissible class described i n paragraph 19(l)(e), (f), (g), (j), (k) or (1) and the Minister is o f the opinion that the person constitutes a danger to the security of C a n a d a [...] Section 19(l)(e) and (f) stated: N o person shall be granted admission who is a member of any of the following classes: [...] (e) persons who there are reasonable grounds to believe [...'] (iv) are members of an organization that there are reasonable grounds to believe will [...] (C) engage i n terrorism; (f) persons who there are reasonable grounds to believe [...] (ii) have engaged i n terrorism, or (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged i n [...] (B) terrorism, except persons who have satisfied the Minister that their admission w o u l d not be detrimental to the national interest; [...] Section 40.1 of the A c t contemplated the issuance of what is colloquially referred to as a 'security certificate.' This document could be ~ and under the new A c t , can be — issued by the A4inister of Immigration and the Solicitor G e n e r a l of C a n a d a when the two are o f the opinion that a person, other than a C a n a d i a n citizen or a permanent resident, is a person described i n section 19(1). O n c e issued, the security certificate acts as a warrant for the detention of the person named i n it. T h e person can challenge the validity of the  82  certificate - that is, seek review of whether the Minister and Solicitor General's opinions giving rise to the issuance of the certificate were 'reasonable.' opinion  of the  Minister  and  Solicitor  23  I f the court defers to the  General, deportation  proceedings  can  be  commenced.  In this case, the review hearing of the security certificate i n Federal C o u r t took some fifty days.  24  A t the conclusion of that hearing, Teitelbaum J . found the certificate to  be reasonable, but also made other key findings. Suresh h a d been a member of the group i n question; the group had been involved i n terrorist activities; and some members of the group h a d been subject to torture by the S r i L a n k a n government. T h e matter then went before an i m m i g r a t i o n adjudicator to decide on whether Suresh should be deported. T h e adjudicator found that there was no reason to believe Suresh h a d been directly involved i n terrorism, but should be deported on the basis of his membership i n a terrorist organization  (in accordance with  sections  19(l)(f)(iii)(B)  and  19(l)(e)(iv)(c)).  25  The  adjudicator also recommended that the Minister issue an opinion under section 53(l)(b) of the A c t that Suresh constituted a danger to the security of C a n a d a and should be deported. T h e Minister promptiy provided this opinion.  T h e adjudicator, however, made this recommendation without providing Suresh with a copy of his m e m o r a n d u m to the Minister and without giving Suresh an  See sections 40.1(3) to (11). This is noted at paragraph 13 of the Supreme Court of Canada decision, supra, note 3; see the trial decision at (1999), 1 73 F . T . R . 1. This decision is summarized at paragraph 14 of Suresh, supra, note 3. 2 3  2 4  2 5  83  opportunity to respond to the assertions- it contained.  26  T h e adjudicator stated that  Suresh "is not k n o w n to have personally committed any acts of violence either i n C a n a d a or S r i L a n k a " and that his conduct i n C a n a d a was "non-violent."  27  T h e adjudicator also  conceded that Suresh was at risk i f returned to S r i L a n k a , but took the view that the risk was "difficult to assess; might be tempered by his high profile; and was counterbalanced by Suresh's terrorist activities i n C a n a d a . "  28  Suresh sought j u d i c i a l review of the  Minister's section 53 opinion as being unreasonable and the result of an unfair process (involving the adjudicator's memo), arguing violations of section 7 and section 2 (i.e., the right to freedom of association — or being a danger to C a n a d a on the basis of being a member of a terrorist organization).  It is notable that Suresh's Charter challenge on both section 2 and section 7 grounds failed i n the Federal Court, the Federal C o u r t of A p p e a l , and eventually, the Supreme C o u r t of C a n a d a . Robertson J . A . , of the Federal Court, stated that not only was section 7 not violated by the prospect of Suresh being deported to a nation that could very well submit h i m to torture, but that the right under international law not to be tortured was not absolute.  It was limited, rather, by a nation's right to deport those who threaten  national security.  T h e Supreme C o u r t of Canada's review of the case yielded only a  29  slight adjustment to the remarkable tenor of this thinking: i.e., international law may not recognize limits to the protection against torture, but C a n a d i a n law does. that will become  2 6  2 7  2 8  2 9  clear, the Supreme  F o r reasons  Court's section 7 analysis i n Suresh entails a  Paragraph 18, ibid. Ibid, paragraph 16. Ibid. [2000] 2 F . C . 592.  84  significant shift from  both international law norms and earlier approaches  to  the  protection of h u m a n rights i n the Charter.  30  T h e section 7 analysis is framed by the question 'does the A c t permit deportation to torture contrary to the Charter?'  31  Section 7 of the Charter guarantees "[ejveryone . . .  the right to life, liberty and security of the person and the right not to be deprived thereof except i n accordance with the principles of fundamental justice". T h e issue i n this case was whether a deportation under section 53(l)(b) w o u l d be contrary to 'fundamental justice.' O n the content of that key phrase, the C o u r t stated: Deportation to torture [...] requires us to consider a variety of factors, i n c l u d i n g the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or the country's security, a n d the threat of terrorism to C a n a d a . [...] D e t e r m i n i n g whether deportation to torture violates the principles of fundamental justice requires us to balance Canada's interest i n combating terrorism and the C o n v e n t i o n refugee's interest i n not being deported to torture. C a n a d a has a legitimate and compelling interest i n combating terrorism. B u t it is also committed to fundamental justice. T h e notion of proportionality is fundamental to our constitutional system. T h u s we must ask whether the government's proposed response is reasonable i n relation to the threat. I n the past, we have held that some responses are so extreme that they are per se disproportionate to any legitimate government interest: see Burns [i.e., United States v. Bums ]. W e must ask whether deporting a refugee to torture w o u l d be such a response. 32  33  T h e tone of these paragraphs belies the significance of what they assert. W h e n the C o u r t states, i n paragraph 45, that "the approach is essentially one of balancing", it is contemplating nothing short of a possible justification of forcing a person to face the risk The remainder of the decision explores the need for procedural fairness in the tradition of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, and the requirement that the decision-making that takes place in this context be more transparent. A t paragraph 42, supra, note 3. [2001] 1 S.C.R. 283. Ibid, paragraphs 45 and 47. 3 0  3 1  3 2  3 3  85  of torture.  A s has been mentioned above, the Courts have undertaken a balancing of  social and individual interests at the section 7 stage i n earlier cases — but with less striking results, and for different purposes.  T o demonstrate this, I will pause momentarily and look at the Court's analysis of 'fundamental justice' i n Bums, a case dealing with deportation to face the possibility of the death penalty. T h e 'balancing' contemplated i n Burns was entirely different from what is contemplated i n Suresh. Burns concerned the plight of two 18 year olds charged with murders that took place i n Washington State.  If extradited, the case could result i n the  death penalty. T h e Minister's authority under the Extradition Act to deport the accused i n this case depended on the interpretation of powers under the A c t .  3 4  T h e treaty provided  the Minister with some discretion as to whether to grant an extradition order, and the Minister had taken the position that it was not necessary i n every case to seek an assurance that the death penalty w o u l d not be imposed before granting an order. T h e question for the C o u r t was whether the Minister's discretion was limited by section 7 o f the Charter that is, whether the Charter required the Minister to seek the assurance i n every case. Notably, the C o u r t asserted that given the nature of the case (an extreme deprivation of 'life, liberty and security of the person'), it was appropriate to be less deferential to ministerial discretion: 38 W e affirm that it is generally for the Minister, not the C o u r t , to assess the weight of competing considerations i n extradition policy, but the availability o f the death penalty, like death itself, opens up a different dimension. T h e difficulties and occasional miscarriages of the criminal law are located i n an area of h u m a n experience that falls squarely within "the inherent d o m a i n of the j u d i c i a r y as guardian of the justice system": Re B.C. Motor Vehicle Act, supra, at p. 503. It is from  3 4  Specifically, section 25, Extradition Act, R.S.C. 1985, c. E-23.  86  this perspective, recognizing the unique finality and irreversibility of the death penalty, that the constitutionality of the Minister's decision falls to be decided. A n d with respect to the application of section 7 specifically, the C o u r t took a critical view of earlier jurisprudence: O u r analysis will lead to the conclusion that in the absence of exceptional circumstances, w h i c h we refrain from trying to anticipate, assurances i n death penalty cases are always constitutionally required. [Emphasis added.] T h e C o u r t appears to leave open the possibility of an exception while gesturing i n the direction of absolute protection against the death penalty — m o v i n g away from the position set out i n earlier decisions on point, Kindler v. Canada (Minister of Justice) and Reference re JVg Extradittion (Can.).  35  T h e issue i n both of these cases was the same as i n  Burns: whether the Minister's decision to extradite the appellants to face the possibility o f the death penalty without seeking assurances that they w o u l d not be executed was contrary to the principles of fundamental justice. In both cases, the majority found that it was not contrary, because, i n essence, it w o u l d not 'shock the conscience' to learn that they were being extradited for this purpose, and because taking an absolute stand i n favour of assurances could lead to C a n a d a becoming a 'safe heaven' for murderers.  The  C o u r t retreats from this position i n Bums: [...] even though the rights of the fugitive are to be considered i n the context of other applicable principles of fundamental justice, w h i c h are normally o f sufficient importance to u p h o l d the extradition, a particular treatment or punishment m a y sufficiently violate our sense of fundamental justice as to tilt the balance against extradition. Examples might include stoning to death individuals taken i n adultery, or lopping off the hands of a thief. T h e punishment is so extreme that it becomes the controlling issue i n the extradition and overwhelms the rest of the analysis. T h e respondents contend that now, unlike perhaps i n 1991 w h e n Kindler and JVg were decided, capital punishment is the issue. 36  3 5  3 6  [1991] 2 S.C.R. 779 and [1991] 2 S.C.R. 858. Paragraph 69, Bums, supra.  87  T h i s is tantamount, i n other words, to the proposition that 'our sense o f fundamental justice' is intimately related to the extremity of abuse - and that i f the abuse is sufficiently extreme, it can 'overwhelm' the analysis. In other words, it may be possible to balance factors, but when it is clear that a person would suffer unspeakable harm, fundamental justice is violated. Whether the violation could be justified by other considerations is a question that is reserved for the section 1 analysis.  In Bums, the C o u r t proceeds to weigh factors 'for and against' extradition without assurances and it balances these as a part of its analysis of whether extradition to face the death penalty is i n accordance with 'fundamental justice'.  T h e C o u r t concludes that  fundamental justice favours extradition only with assurances, and the violation of section 7 cannot be justified under section 1 in this case, because "[wjhile the  government  objective of advancing mutual assistance i n the fight against crime is entirely legitimate, the Minister has not shown that extraditing the respondents to face the death penalty without assurances is necessary to achieve that objective."  37  But the C o u r t includes this  exception, at paragraph 133: Nevertheless, we do not foreclose the possibility that there may be situations where the Minister's objectives are so pressing, and where there is no other way to achieve those objectives other than through extradition without assurances, that a violation might be justified. In this case, we find no such justification.  Therefore, the way i n w h i c h the exception functions i n Bums and Suresh is different. Whereas i n Bums extreme harm is simply contrary to fundamental justice, i n Suresh, it may not be. A n d , whereas i n Bums a person could be extradited without an assurance i f the extraordinary Ministerial objective were appropriate under section 1, i n Suresh, the 3 7  From the headnote, Burns, supra,  88  balancing exercise i n section 7 would, i n exceptional circumstances, justify actual torture i n the name of some national security c o n c e r n .  38  T h e difference may be technical, but it  leads to this perverse consequence that i n the one case, a person w o u l d be extradited without being executed; i n the other case, a person w o u l d be tortured to make C a n a d a safer. In the one case, the C o u r t comes m u c h closer to providing an absolute protection against extradition to face the death penally than it does to p r o v i d i n g an absolute protection against deportation to face torture.  39  T o return, then, to the analysis of section 7 i n Suresh, the next notable step i n the Court's logic is to ask whether "from a C a n a d i a n perspective, returning a refugee to the risk of torture because of security concerns violates the principles of fundamental justice where the deportation is effected for reasons of national security".  40  T h e C o u r t draws a  comparison between deportation to torture i n the present case and the problem o f extradition to face the death penalty i n Burns and concludes that both w o u l d be repugnant to the C a n a d i a n sensibility of 'fundamental justice.' C r u c i a l to the analysis i n this case, however, is a balancing of interests: 58 C a n a d i a n jurisprudence does not suggest that C a n a d a m a y never deport a person to face treatment elsewhere that w o u l d be unconstitutional i f imposed by C a n a d a directly, on C a n a d i a n soil. T o repeat, the appropriate approach is  This result may be peculiar, but in principle, it was foreseen as early as Re: B. C. Motor Vehicle Act, supra, note 5, where, once again, Lamer J . , stated: "Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like." This point was made by David Siegal, in "Canadian Fundamental Justice and U.S. Due Process: Two Models for a Guarantee of Basic Adjudicative Fairness", (2005) 37 Geo. Wash Int'l L. Rev. 1, at 45, in the context of a discussion of Suresh and Burns. 3 8  For a further comparison of Burns and Suresh on section 7, see Peter Carver's "Shelter from the Storm: A Comment on Suresh v. Canada (Minister of Citizenship and Immigration)", (2002) 40 Alberta L . Rev. 465, at pages 482-5. Paragraph 49, Suresh, supra, note 3. 3 9  4 0  89  essentially one of balancing. T h e outcome will depend not only on considerations inherent i n the general context but also on considerations related to the circumstances and condition of the particular person w h o m the government seeks to expel. O n the one hand stands the state's genuine interest i n combating terrorism, preventing C a n a d a from becoming a safe haven for terrorists, and protecting public security. O n the other hand stands Canada's constitutional commitment to liberty and fair process. T h i s said, C a n a d i a n jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere.  L o o k i n g exclusively at domestic law, then, the C o u r t concludes that despite the social consensus against the use of torture here or elsewhere, i n exceptional cases, deportation to face the risk of torture could be consistent with 'fundamental justice' — and never engage section 1.  T h e C o u r t goes on to survey various international law instruments and treaties on the question of torture and asserts that these must be factored into the analysis of 'fundamental justice.' O n the status of these principles, the C o u r t states, at paragraph 60: "International treaty norms are not, strictly speaking, b i n d i n g i n C a n a d a unless they have been incorporated into C a n a d i a n law by enactment. However, i n seeking the meaning of the C a n a d i a n Constitution, the courts may be informed by international l a w . "  The  C o u r t cites a list of international treaties that prohibit torture, including the International Covenant on Civil and Political Rights (1966), w h i c h C a n a d a ratified i n 1976.  41  C o n t r a r y to  the findings o f the Federal C o u r t of A p p e a l , the C o u r t here acknowledges that this and other international treaties absolutely prohibit deportation to torture, and do not allow  Can. T.S. 1976 No. 47. The other international treaties cited include the Geneva Convention Relative to the Treatment of Prisoners of War (1949) Can. T.S. 1965 No. 20; the United Nation's Universal Declaration of Human Rights (1948) G A Res. 217 A (III), U . N . Doc. A / 8 1 0 ; the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) 213 U . N . T . S . 221, Article 3. 4 1  90  for derogation from the prohibition where derogation clauses are included. T h e C o u r t also notes that "the Supreme C o u r t of Israel sitting as the H i g h C o u r t of Justice and the House of Lords have rejected torture as a legitimate tool to use i n combating terrorism and protecting national security."  42  T h e C o u r t concludes:  76 [...] both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. T h i s suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the C h a r t e r . 43  Curiously, however, although the C o u r t appears here to treat deportation to torture as 'categorically'  inconsistent  with  fundamental  justice,  it  eventually  shifts,  without  explanation, to being "generally" inconsistent. T h e closest the court comes to explaining this shift is the following: 78 W e do not exclude the possibility that i n exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. [...] the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. W e m a y predict that it will rarely be struck i n favour of expulsion where there is a serious risk o f torture. H o w e v e r , as the matter is one of balance, precise prediction is elusive. T h e ambit of an exceptional discretion to deport to torture, i f any, must await future cases. 44  Paragraph 74. The cases cited are H . C . 6536/95, Hat'm Abu %ayda v. Israel General Security Sewice, 38 I . L . M . 1471 (1999); Secretary of State for the Home Department v. Rehman, [2001] 3 W . L . R . 877. Paragragh 75. O n the question how the phrase 'substantial grounds' might function in future cases, Audrey Macklin, in " M r . Suresh and the Evil Twin," (2002) 20(4) Refuge 15-22, notes that the companion case to Suresh is instructive. Suresh was heard together with Ahani v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 72, which concerned an Iranian refugee whom C.S.I.S. believed to be a former assassin in the employ of the Iranian government. The Court found that Ahani was not entitled to the protection set out in section 7 of the Charter because he had failed to establish a prima facie case that he faced a 'substantial risk' of torture upon his return to Iran. This is instructive to Macklin, who argues, at page 21, that given the analysis set out in Suresh: [...], no one will be returned to face a substantial risk of torture if the Minister always forms the opinion that the evidence is insufficient to establish a substantial risk of torture, and if the courts systematically defer to the Minister's assessment of that risk.  4 2  4 3  4 4  91  For these reasons, the C o u r t finds that section 53(l)(b) does not violate section 7 of the Charter.  In short, fundamental justice requires a balancing, and i n some cases, it is  conceivable that the national security interest could outweigh a person's right to face torture — and that equation w o u l d be tantamount to "fundamental justice" under section 7.  Security Certificates in Question T h e security certificate regime that was employed against Suresh has come to play a more important role i n the government's terrorists.  legal tool-box for dealing with  suspected  T h e security certificate regime was added to the Immigration Act i n the early  1990s and carried over i n substantially the same form i n the Immigration and Refugee Protection Act (2002).  4 5  Since 9 / 1 1 , five M u s l i m men suspected to be involved i n terrorism  have been detained pursuant to security certificates on questionable evidence, and a number of court challenges have ensued.  40  O n e of these cases, Re: Charkaoui  41  has  involved a challenge i n the Federal C o u r t of A p p e a l on, among other grounds, the section 7 Charter validity of the regime. T h e C o u r t upheld the constitutionality of the regime and found it consistent with 'fundamental justice'.  T h e decision has been appealed to the  Supreme C o u r t of C a n a d a , and the matter was heard i n J u n e o f 2 0 0 6 .  48  P e n d i n g the  Kent Roach and Gary Trotter, "Miscarriages ofJustice in the War Against Terror" (2005) 109 Penn St. L. Rev. 967. Roach and Trotter note that as of 2005, Canada had issued 27 security certificates. In addition to Adil Charkaoui, the following have been detained and have launched challenges to various aspects of the security certificate regime: Hassan Almrei, Mohammed Harkat, Mohammad Mahjoub, and Mahmoud Jaballah. See, for example, Almrei v. Canada (Minister of Citizenship and Immigration) 2005 F C A 54; Harkat v. Canada, supra, note 7; Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2004 F C 1028; Re: Jaballah 2005 F C 399. Supra, note 4. A t the present time, the decision is still pending. 4 5  4 6  4 7  4 8  92  outcome of that decision, the Federal C o u r t of A p p e a l ruling represents an important case on the evolution i n judicial thinking on the interpretation of 'fundamental justice' i n this context.  Briefly, the security certificate regimes works as follows. Section 34 of IRPA states that a permanent resident or foreign national is 'inadmissible' to C a n a d a " o n security grounds" for a number of possible reasons, including "engaging i n terrorism," or being involved with an organization that is engaged i n terrorism, or "being a danger to the security of C a n a d a " .  Section 77 allows the M i n i s t e r and Solicitor general to sign a  certificate stating that a permanent resident or foreign national is inadmissible to C a n a d a on grounds  of 'security' or 'serious criminality,' among others.  O n c e signed,  certificate functions as an warrant for the person's arrest and detention. Federal C o u r t must then be held within 48 hours.  50  49  the  A hearing i n  T h e court may conduct the hearing  in camera; prevent the disclosure of information to the subject o f the certificate; consider information or evidence i n private (and for up to seven days after the matter has been referred for determination); and can hear all or part of the evidence i n the absence o f the person named i n the certificate and their counsel.  51  T h e court can receive into evidence  "anything that, i n the opinion of the judge, is appropriate".  T h e person named i n the  certificate may receive only a summary of the information or evidence against them sufficient to "enable them to be reasonably informed of the circumstances giving rise to  See the British Columbia Civil Liberties Association's "National Security: Curbing the Excess to Protect Freedom and Democracy", (authored by Jason Gratl and Murray Mollard, available online: <www.bccla.org> last accessed January 10, 2007), at page 68, for an explanation of the precise process at this stage — i.e., depending on whether the named person is a foreign national or a permanent resident. Section 77, IRPA. Section 78(\), IRPA. 4 9  5 0  5 1  93  the certificate" - but excluding anything which, i f disclosed, w o u l d be "injurious to national security".  52  T h e test on review of the certificate is simply "whether the certificate  is reasonable and whether the decision on the application for protection, i f any, is lawfully made."  53  In  If it is found reasonable, deportation proceedings begin.  a  speech  to  the  C a n a d i a n Institute  for the  Administration  of Justice  Conference, i n M a r c h of 2002, Justice Hugessen of the Federal C o u r t h a d this to say about the role of judges i n security certificate hearings: T h i s is not a happy posture for a judge, and y o u are i n fact looking at an unhappy camper when I tell y o u about this function. Often, when I speak i n public I make the customary disavowal that I a m not speaking for the C o u r t and I a m not speaking for m y colleagues but I am speaking only for myself. I make no such disavowal this afternoon. I can tell y o u because we talked about it, we hate it. W e do not like this process of having to sit alone hearing only one party, and looking at the materials produced by only one party. I f there is one thing that I learned i n m y practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation a n d a good knowledge of your case. A n d by definition, judges do not do that, we do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. W e greatly miss, i n short, our security blanket w h i c h is the adversary system that we were all brought up with and that, as I said at the outset, is for most of us, the real warranty that the outcome of what we do is going to be fair and just. It might be helpful i f we created some sort of system somewhat like the public defender system where some lawyers were mandated to have full access to the C S I S files, the underlying files, and to present whatever case they could against the granting of the relief sought . . . I am not sure what the judges o f the Federal C o u r t are doing i n this picture and i f I may be forgiven for using the expression, I sometimes feel a little bit like a fig leaf. 54  Ibid. Section 80, IRPA. 54 This passage is cited in Re: Harkat, supra, note 7, at paragraph 19. 5 2  5 3  94  But w o u l d the introduction of amicus curiae or counsel with a special security clearance make the security certificate regime a fairer, more balanced process? W o u l d it make the process consistent with conventional approaches to adversarial justice?  Arguably not, because the process contemplated by section 78 w o u l d still be different from C a n a d i a n criminal and administrative law hearings i n two key respects. First, the judge w o u l d receive and ponder the evidence i n the absence of the subject of the hearings, and could hold hearings with the Minister and his or her counsel with respect to the evidence without the named person present.  Second, disclosure i n these hearings can  be so limited as to be almost ineffectual. G r a t l and M o l l a r d of the British C o l u m b i a C i v i l Liberties Association have argued: E v e n on the degraded standard of disclosure i n Certificate cases, there is a tension between the statutory imperatives. T h e requirement that the deportee be 'reasonably informed of the circumstances giving rise to the certificate' carries the potential to conflict with the requirement that the judge withhold information believed to be injurious to national security. In some cases at least, the disclosure of some information will be considered necessary to reasonably inform a person named i n a Certificate, and the information must be withheld for national security reasons. In those circumstances, w h i c h are likely not infrequent, the judge will no doubt err on the side of national security, and the potential deportee will not be reasonably informed on the circumstances giving rise to the certificate. [...] Several lawyers for persons named i n certificates including R o c c o Galati i n the Jaballah case have argued that the information contained i n the summary is so vague as to render this right meaningless. A n opportunity to respond cannot be acted upon i n a meaningful way i f the summary mostly contains allegations but not any of the substantive evidence upon w h i c h they are based. 55  In short, the scheme allows for the arrest, lengthy detention, and eventual deportation (possibly to face torture) of a person on reasonable suspicion, with very limited means of testing the evidence or becoming aware of it i n the first place.  Supra, note 4, at page 73.  95  Adil Charkaoui: the case in question A d i l C h a r k a o u i is an A r a b - M u s l i m immigrant w h o resides i n M o n t r e a l . H e had traveled throughout the M i d d l e East, N o r t h Africa, and Pakistan i n the late 90s for employment and family purposes.  In the  course of these travels, he made  the  acquaintance of persons who knew A h m e d Ressam and others involved i n radical M u s l i m terrorist groups active i n Spain, M o r r o c o , and Pakistan.  But he took issue with  government allegations that he himself had been involved i n or was acting as an agent for any of these organizations at the time he was detained i n 2 0 0 3 .  56  A t the time o f his arrest  and detention, he was i n the process of completing a Masters degree at the University o f M o n t r e a l and running a pizzeria with his father.  Charkaoui's counsel i n the Federal C o u r t of A p p e a l challenged the certificate regime on a number of grounds.  57  A challenge under section 7 of the Charter raised the  question whether: "sections 77 and 78 of the I R P A contravene the rights under the Charter with respect to a fair trial before an independent and impartial tribunal, when, for example, the designated judge must determine the "reasonableness" of the security certificate issued by the ministers and not the merits of the case?" C h a r k a o u i had argued that the 'cumulative effect' of a number of factors amounted to a breach of 'the right to a fair and equitable hearing by an impartial and independent tribunal.'  A m o n g these  factors were the claims that "the decision that leads to his inadmissibility is taken by the  The history and case against him is set out in some detail at the outset of the bail decision, supra, note 43. The Court consolidated these into eight grounds, set out at paragraph 6 of the decision, supra, note 4. 5 0  5 7  96  executive authority and not by a judge;" "the decision of the designated judge is made on the basis o f secret evidence to w h i c h the appellant does not have access;" there is no means for h i m to test the validity and credibility of this information and thus it is difficult i f not impossible for h i m to refute it;" and "the standard of evidence adopted by Parliament to justify the issuance of a security certificate is too m i n i m a l , since it is enough to have reasonable grounds to believe that the acts described i n section 34 have occurred, are occurring or may occur when this standard should have been more stringent and require  that  probabilities".  the 58  acts be  proved  according to  the  standard  of the  balance  of  T h e Charter protection of the right to a fair trial i n section 11(d) applies  only to those 'charged with an offence,' therefore,  C h a r k a o u i was relying on an  interpretation of 'fundamental justice' i n section 7 that w o u l d seem consistent w i t h these listed factors.  T h e C o u r t dealt summarily with all of the grounds except the charges that the certificates entail deprivations of liberty on the basis of 'secret evidence', less than full disclosure, and the impossibility for the appellant to test the credibility o f the information at issue. T u r n i n g to these, Decary and Letourneau J J . A . wrote: These three factors are related [and...] are, i n fact, at the heart of this particular problem posed by the need to protect national security while respecting the principles of fundamental justice where there is an infringement of someone's right to life or security. T h e y derogate i n a significant way from the adversarial process normally adhered to i n criminal and civil matters. T h e y raise—properly i n this context—the following question: does the special process established by Parliament to determine whether the executive's denial of access to C a n a d a o f a permanent resident, his arrest and his detention are justified, comply with the principles of fundamental justice? 59  5 8  5 9  Ibid, paragraph 62. Paragraph 75, ibid.  97  T o begin with, the C o u r t insists, some evidence may be withheld from the detainee, but the evidence against h i m or her will usually be derived from various sources, and will "either i n whole or i n the form of a summary [...]  allow h i m to gain  knowledge of the content, nature and scope of the evidence."  60  reasonable  A n d the detainee should  console himself that "while there is no denying that it is harder [...] to test the validity and credibility of the information that is not disclosed to h i m , the fact is that he is assisted in this task by the designated Judge who has the heavy responsibility of maintaining a balance between the parties and accordingly respect for the principles o f fundamental justice."  61  T h e analysis concludes as follows:  If we were to accept the appellant's position that national security cannot justify any derogations from the rules governing adversarial proceedings we w o u l d be reading into the Constitution of C a n a d a an abandonment by the c o m m u n i t y as. a whole of its right to survival i n the name of a blind absolutism o f the individual rights enshrined i n that Constitution. [...] T h e individual right to liberty and the security of the person can only be exercised within an institutional framework or social order that commands respect and is respected. It no longer has m u c h meaning or scope when, collectively, the society charged with ensuring its protection has lost its o w n right to liberty and security as a result of terrorist activities that it was powerless to prevent or eradicate owing to this individual right that it was to protect and intended to protect. T h e choice, as Justice Jackson said i n Terminiello v. Chicago, 337 U . S . 1 (1949), at page 37, "is not between order and liberty. It is between liberty with order and anarchy without either." 62  A m o n g the many notable features of the Court's statement here is that the 'derogation from the adversarial' process that the C o u r t sanctions is one that it finds to be consistent with 'fundamental justice' i n the Charter. In other words, this is not an analysis that concedes that the derogations from the usual principles of fairness and impartiality i n the security certficate regime are contrary to fundamental justice but justifiable under a 6 0  61  6 2  Paragraph 77, ibid. Ibid, paragraph 82. Paragraph 100, ibid.  98  section 1 analysis. It is an analysis that concludes those derogations are a part o f a new, watered-down definition of'fundamental justice.'  63  But also, it is notable that the decision makes no concession to the exceptional nature o f this reading of'fundamental justice.' There is, i n other words, no qualification to the effect that i n light o f 9 / 1 1 , the C o u r t must take this approach to 'fundamental justice' a n d contemplate the unlikely but theoretically possible scenario o f a necessary deportation o f a suspected terrorist i n a case where the risk o f torture is made out. Instead, the court is suggesting that 'fundamental justice' will have this new meaning, a n d this meaning will represent the normal, appropriate reading o f the phrase indefinitely.  Investigative Hearings In the previous chapter I reviewed the 'investigative hearing' provisions (section 83.28) o f the Anti-terrorism Act. These provisions are the only part o f the bill to have resulted thus far in a Charter challenge that has reached the Supreme C o u r t o f C a n a d a .  Briefly, section  83.28 allows for C r o w n counsel to approve an application for, a n d a judge to grant, an order requiring a person w h o has not been charged with an offence to appear before the court for questioning with respect to a terrorism offence.  B y involving the court i n the  investigative stage o f a matter, the 'investigative hearing' diverges from the n o r m a l practice o f allowing for compelled testimony only once charges have been laid, a n d only i n the course o f a trial or a preliminary hearing. O n c e a n order is granted under section  The Supreme Court of Canada will likely negotiate the application of section 7 in this case more tactfully, but it remains to be seen whether the high court will decline to take a similarly deferential view of the 'national security' imperative and the powers of the Minister under IRPA, and the elasticity of the phrase 'fundamental justice' in the context of security certificates. 0 3  99  83.28, the person named can be arrested, compelled to answer questions, and charged with contempt for refusing to testify or providing false testimony.  T h e section does,  however, preclude the use of the testimony i n criminal proceedings against the person, except proceedings for contempt.  64  T h e decision i n (Re) Application under s. 83.28 of the Criminal Code  65  involved a  peculiar resort to the investigative hearing provisions by C r o w n counsel i n the course of the A i r India t r i a l .  66  T h e C r o w n i n that case sought to question a witness w h o had  proved to be uncooperative, and section 83.28 provided a means to compel the witness to attend for questioning under oath, before a judge.  T h e provisions also allowed for the  questioning to be conducted in camera, i n the absence of counsel for the accused, and without counsel's knowledge. O n e o f the counsel for the defence became aware o f the hearing by happenstance and, together with counsel for the co-accused, challenged the constitutional validity of the entire scheme.  In a parallel matter, the V a n c o u v e r S u n  newspaper sought access to the proceeding and challenged the closed nature o f the hearing.  Both challenges were heard i n short order by the Supreme C o u r t o f C a n a d a , w h i c h rendered two decisions. O n the question of the secrecy of the hearings, the C o u r t found that a presumption of openness could be read into the provisions, thus rendering  I will return below to address an important limit to this protection: the use that might be made of this testimony by states to which a person subject to these hearings might be deported or extradited. Supra, note 2. R. v. Malik andBagn, 2005 B C S C 350. 6 4  6 5  6 6  100  them constitutional i n that respect.  67  T h e other matter, challenging the scheme i n a  broader sense, alleged a violation of section 7 of the Charter - for breaching one's right to liberty and to silence i n a manner contrary to fundamental justice — and for breaching the principle of j u d i c i a l independence.  T h i s principle was derived from section 11(d) of the  Charter (which applies only to persons charged with an offence), but also from sections 96 to 100 of the Constitution Act, 1867.  m  T h e majority of the C o u r t found that the scheme d i d  not breach section 7, due to various protections it contained, and that it d i d not violate the principles of judicial independence.  A strong dissent from L e B e l and Fish J J . ,  however, argued that the scheme marked a significant departure from the traditional role of the  judiciary such that it amounted  to a breach  of the  independence, and was unconstitutional on that ground alone.  principle of j u d i c i a l A n exploration of the  reasons o f both the majority and the minority illustrates the nature of the shift taking place around notions of fundamental justice and the role of the judiciary i n the context of terrorism.  T h e majority's reasons i n this case are dispersed i n three opinions, one authored by Iacobucci and A r b o u r J J . (writing also for M c L a c h l i n C J . and M a j o r J.), another by Bastarache and Deschamps J J . (agreeing with the former decision, but expanding on the analysis briefly), and a third by Binnie J . (noting that the section was constitutional but the purpose for w h i c h it was applied i n this instance was improper).  O n e key aspect o f  (Re) Vancouver Sun [2004] 2 S.C.R. 332. See paragraphs 81 and 170 of the decision, supra, note 2. In paragraph 81, Iacobucci and Arbour JJ. for the majority note that "(j]udicial independence has also been implicitly recognized as a residual right protected under s. 7, as it, along with the remaining protections in ss. 8 to 14, are specific examples of broader principles of fundamental justice: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503." 6 7  6 8  101  Iacobucci and A r b o u r JJ.'s reasons provided at the outset of their analysis - and one that may  become more important i n future challenges to the Anti-terrorism Act — is their  determination of the purpose of the bill: 39 It was suggested i n submissions that the purpose of the A c t should be regarded broadly as the protection of "national security". H o w e v e r , we believe that this characterization has the potential to go too far and w o u l d have implications that far outstrip legislative intent. T h e discussions surrounding the legislation, and the legislative language itself clearly demonstrate that the A c t purports to provide means by w h i c h terrorism may be prosecuted and prevented. As we cautioned above, courts must not fall prey to the rhetorical urgency of a perceived emergency or an altered security paradigm. W h i l e the threat posed by terrorism is certainly more tangible i n the aftermath of global events such as those perpetrated i n the U n i t e d States, and since then elsewhere, including very recentiy i n Spain, we must not lose sight of the particular aims of the legislation. Notably, the C a n a d i a n government opted to enact specific criminal law and procedure legislation and d i d not make use of exceptional powers, for example under the Emergencies Act, R . S . C . 1985, c. 22 (4th Supp.), or invoke the notwithstanding clause at s. 33 of the Charter. 40 W e conclude that the purpose of the A c t is the prosecution and prevention of terrorism offences.  Interpreting the bill to have this more restricted purpose shapes the nature of the majority's section 7 Charter analysis further on. Iacobucci and A r b o u r J J . find that section 83.28 clearly engages a person's liberty interest, the right to silence and the right against self-incrimination; but they also find that the provision contains a number o f protections against self-incrimination, including 'use i m m u n i t y ' and 'derivative use i m m u n i t y ' .  69  The  majority, however, noted the concern that compelled testimony obtained i n this context could be passed on to foreign governments for use i n prosecutions abroad; or it could be used against non-citizens i n deportation proceedings within C a n a d a .  70  T h e Court's  response to this concern is simply to make explicit that i f a person is involved i n either a  Sec paragraphs 71 and 72, supra, note 2. Ibid, at paragraph 74.  102  deportation or extradition that raises the potential for statements to be used i n an incriminatory fashion, section 7 w o u l d be engaged and to prevent its being breached, certain orders w o u l d have to be made — and can be made under section 83.28.  They  speak again here of 'striking a balance' between 'the principle against self-incrimination' and 'the state's interest i n investigating offences.'  71  T h e y propose that  where there is the potential for such use by the state [i.e., where penal sanctions are a possibility], the hearing judge must make and, i f necessary, vary the terms of an order to properly provide use and derivative use i m m u n i t y i n extradition or deportation proceedings. 72  B u t there is no discussion of how this w o u l d work i n practice.  T h a t is, w o u l d this  preclude deportations or extraditions to nations that w o u l d be free to make use o f the compelled testimony? O r w o u l d other states be expected to respect orders of a C a n a d i a n court? (Probably not.) A n d how exactly w o u l d one test whether the court had provided 'proper' i m m u n i t y of either kind?  Clearly, the balancing of the state's interest i n  investigations with the individual's right to protection from self-incrimination is more important here than a guarantee against the deprivation of liberty as a result of selfincrimination.  O n the issue of judicial independence, the question for Iacobucci and A r b o u r J J . was whether "a reasonable and informed person w o u l d conclude that the court under s. 83.28 is independent".  73  T h e majority acknowledges that the crux of the charge against  investigative hearings on grounds of judicial independence is that the scheme forces the judiciary to play a role traditionally belonging to the executive — i.e., partaking o f the  71  7 2  7 3  Ibid, at paragraph 78. Ibid, at paragraph 79. Paragraph 83, ibid.  103  investigation and evidence gathering stage of the criminal process — as opposed to being an independent decision-maker at the end of it. T h e majority rejected this assertion by arguing that judges do play a role i n proceedings that have an 'investigatory purpose', such as wire-tap or search warrant authorizations, or applications for D N A warrants.  74  In all of these cases, "[t]he place of the judiciary i n such investigative contexts is to act as a check against state excess."  75  In the particular case of investigative hearings, "[t]he  function of the judge [...] is not to act as 'an agent of the state', but rather, to protect the integrity of the investigation and, i n particular, the interests of the named person vis-a-vis the state."  76  T h i s entails ensuring the questioning is "fair and relevant," a n d m a k i n g sure  terms and conditions are not imposed " i n a manner w h i c h goes beyond the role of the judiciary as guardian of the Constitution [...]" entirely clear i n the judgment.  77  - whatever this may mean, w h i c h is not  Finally, the majority concludes, whether the reasonable,  informed person w o u l d find the investigative hearing scheme to compromise j u d i c i a l independence turns largely on the fact of the hearing being held in camera.  18  T h i s concern  is dealt with by reading the presumption of openness into the scheme (i.e., i n Re: Vancouver Sun).  19  Paragraph 86, ibid. Ibid. Paragraph 87, ibid. Paragraph 88, ibid. Paragraphs 89 and 90. Bastarache J . , writing on behalf of himself and Deschamps J . added the following single paragraph on the issue, at 108, ibid: "In my view, where a judicial investigative hearing is closed, the independence or impartiality of the judiciary will not be compromised as several other factors promote independence and impartiality. Further, the subsequent release of the information disclosed during these proceedings promote the accountability of the judiciary." 7 4  7 5  7 6  7 7  7 8  7 9  104  O n the question of whether the scheme was constitutional, L e B e l J . authored a dissenting decision on behalf of himself and Fish J . , and the analysis could not be further apart from that of the majority.  80  It is worth exploring here briefly, because it serves as a  gauge by w h i c h to measure the extent of the shift i n thinking that the majority is attempting to justify. section  83.28  does  L e B e l and Fish J J . conclude that the scheme contemplated i n compromise judicial  independence  and  should  be  deemed  unconstitutional for this reason alone. T h e y arrive at this conclusion i n part because they take a stricter view of what it means for the judiciary to be independent and a d i m m e r view of the problems that can arise i f the courts take on the role envisioned i n section 83.28. B u t more to the point, the tenor of the argument is to resist the logic pursued by the majority -  w h i c h entailed a justification of the judiciary's involvement i n the  investigation of terrorism offences for the sake of the importance o f the intended purpose of the legislation — a trade-off, or 'balancing,' w h i c h the majority undertook i n its analysis of section 7. In the view of these dissenting justices, no legislative purpose, including the prevention or prosecution of terrorism, can justify compromising j u d i c i a l independence, or detract from the likely perception that independence has been compromised i n these situations.  L e B e l J.'s exploration of the concept of judicial independence  turns on a  distinction he draws between the 'individual' and 'institutional' dimensions o f that independence.  81  T h e latter requires courts as institutions to be not only independent i n  their functioning (administratively and otherwise) from that of the executive b r a n c h of the  8 0  8 1  The dissenting judgment begins at paragraph 169 of the decision, ibid. Paragraph \ 72, ibid.  105  state, but also to appear to be functioning independently.  H e r e i n lies the difference  82  between the dissent and the majority; as L e B e l J . writes, 177 W h e n analysed from this perspective, s. 83.28 Cr. C. compromises the institutional dimension of judicial independence. T o conclude otherwise, it w o u l d be necessary to ignore the fundamental distinction between the two dimensions of j u d i c i a l independence when applying the law to the facts of this case. A l t h o u g h they do discuss the institutional dimension of j u d i c i a l independence, Iacobucci and A r b o u r J J . seem to have inferred the existence of j u d i c i a l independence from the individual independence of the judge acting pursuant to s. 83.28 without considering whether the- institutional dimension was i n fact protected. In m y colleagues' view, i f a judge conducting an investigation pursuant to this provision fails, i n exercising his or her discretion, to uphold the rights and freedoms o f the person being examined, then, and only then, could it be concluded, after the fact, that judicial independence had been compromised.  N o r could the requirements of 'institutional' independence be satisfied by a different judge handling an investigative hearing from the trial itself. words, i n w h i c h appearances  83  T h i s is one case, i n other  do matter: "[...] without the appearance  of a clear  separation of powers between the judicial, executive and legislative branches, j u d i c i a l independence cannot be said to exist."  84  L e B e l J . was also critical of the role played by judges i n an investigative hearing. "Section 83.28 [...] requires judges to preside over police investigations..."  85  It w o u l d be  difficult for a presiding judge to protect the rights of the person examined because of "the overly b r o a d discretionary powers wielded by the judge, the legislative objectives behind the provision a n d the very nature of these p r o c e e d i n g s . . . "  86  It w o u l d be difficult to rule  on objections — given the amendments to the Canada Evidence Act (section 37 to 42, 8 2  8 3  8 4  8 5  8 6  Ibid. Paragraph 178, ibid. Paragraph 179, ibid. Paragraph 180, ibid. Ibid.  106  discussed i n the previous chapter of this thesis); the fact that rules of evidence i n this context are developed for the adjudication of an accused person's culpability; and given the judge's lack of access to "the full record of the police investigation."  There would  8 7  also be a wide discrepancy i n the way judges w o u l d individually approach their role under the section: T o m y m i n d , a judge's individual perception of his or her role will necessarily affect the nature and conduct of the examination. T h u s , some judges will be more inclined to protect the fundamental rights of the person being examined, while others, who are more conservative, will adopt a contrary a p p r o a c h . 88  T h i s might be another way of saying that the role for the court envisioned i n the section is not one analogous to any other played by judges i n our legal system.  T h e majority had attempted to justify the role of the judge i n this context as a protector against excesses on the part of the state - and argued that the role was therefore analogous to the one judges played elsewhere i n the criminal law. L e B e l J . counters this argument by distinguishing what judges do i n those other areas of criminal law. H e notes that section 83.28 entails powers distinct from those exercised i n wiretap and search warrant applications because the latter involve "specific investigative techniques" and because the judge's involvement i n the investigation is indirect i n those contexts — i.e., is limited to the granting or refusing of authorization.  89  In addition to these factors, L e B e l J . notes that to the reasonable member of the public, the role of the judge i n what amounts to a stage i n a police investigation, together 8 7  8 8  8 9  Paragraph 182 and 183, ibid. Paragraph 184, ibid. Paragraph 188, ibid.  107  with the increased powers given to the state to combat terrorism i n recent legislation, the impression w o u l d be that the judiciary and executive had become "allies" i n the procedure set out i n section 8 3 . 2 8 .  90  H e concludes:  I believe that s. 83.28 compromises the institutional dimension o f j u d i c i a l independence. [...] T h e tension and fears resulting from the rise i n terrorist activity do not justify such an alliance. It is important that the criminal law be enforced firmly and that the necessary investigative and punitive measures be taken, but this must be done i n accordance with the fundamental values of our political system. T h e preservation of our courts' institutional independence belongs to those fundamental values. T h i s is a clear stand against the refashioning of 'fundamental principles' i n ways that w o u l d accommodate what amounts to a new role for the judiciary, or schemes that compromise the rights and freedoms enjoyed by persons i n C a n a d a outside the context of terrorism investigations and prosecutions.  Conclusion  In all three cases discussed above, the Court's analysis of 'fundamental justice' i n section 7 of the Charter involves a balancing of individual and state interests. In Suresh, at paragraph 78 of the Supreme Court's decision, extraordinary circumstances could tip the 'balance' to justify deportation to torture i n a manner that w o u l d be consistent with 'fundamental justice'; i n Charkaoui, at paragraph 82 of the Federal C o u r t of Appeal's decision,  the  'fundamental  entire  security  justice' because  certificate of the  scheme  need  was  seen  to balance  to  be  individual  consistent rights  and  with the  community's right protect itself; and i n Re: Application under s. 83.28, at paragraph 78, LeBel J . is borrowing here from language used by David Paciocco, in "Constitutional Casualties of September 11: Limiting the Legacy of the Anti-Terrorism Act" (2002), 16 S . C . L . R . (2d) 185, at p. 233 — a source cited in the decision at paragraph 186, ibid.  9 0  108  Iacobucci and A r b o u r J J . spoke of a need to balance the right against self-incrimination with the interest i n investigating terrorism offences. T h e question, then, is whether this is consistent with earlier approaches to section 7.  In his factum to the Supreme C o u r t of C a n a d a on behalf o f the Appellant, M o h a m e d Harkat, (a matter heard i n June of 2006, with the decision pending), counsel P a u l D . C o p e l a n d raised the question of justification, and at w h i c h stage i n the analysis it belongs. H e argued that at the section 7 stage of the analysis, the C o u r t should consider the demands of fundamental justice only with respect to the individual, and should not conduct a balancing of state and individual interests at that stage. T h e question at that stage should simply be: "what level of procedural participation and protection should be afforded a person facing detention, and other grave personal consequences, when he or she is ordered deported as a potential threat to national security?"  91  C o p e l a n d argued  that the result of this analysis will lead to the conclusion that the security certificate scheme clearly violates the principles of fundamental justice, and should not be justified under section 1 for failing the ' m i n i m a l impairment' element of the test under R. v. Oakes.™  Whether or not the Supreme C o u r t of C a n a d a adopts this line of reasoning i n the pending appeal, its decisions i n Suresh and Re: Application under s. 83.28, and the Federal C o u r t of Appeal's decision i n Charkaoui will be looked back upon as hallmarks o f a period Paragraph 41, Copeland factum, ibid. [1986] 1 S.C.R. 103. See the part D of the factum, ibid, for Copeland's arguments on this point. He suggests that Parliament should revise the Act to include provision for an amicus curiae or 'special counsel' who would have special security clearance to assist the court in assessing whether the decision to issue the certificate was reasonable. 9 1  9 2  109  i n C a n a d i a n jurisprudence i n which strenuous intellectual efforts were made to make the unusual seem usual, or the abnormal seem normal — i n the name of fighting terrorism. But what makes this a peculiar moment, seen from a broader perspective, is that Canada's courts i n these cases have not simply proven to be exceedingly deferential to the executive i n declining to find certain laws unconstitutional.  T h e courts have also  demonstrated a peculiar form of denial i n the face of a clear consensus on the part of commentators  and even certain members of the judiciary itself that  fundamental  principles have been subverted or violated. Whether this results i n a permanent shift i n our collective thinking about the administration of justice i n a broader sense remains to be seen.  110  Chapter 4: Accountability Lost? Law Enforcement in the Age of 'National Security'  A third key area of C a n a d i a n law i n w h i c h change has taken place since 9/11 is law  enforcement.  B y criminalizing  terrorism,  matters  of 'national  security'  are  increasingly becoming the subject of police investigations. But since 9 / 1 1 , the powers to investigate, prosecute and conceal matters relating to national security have expanded significantly. T h e question is whether there are adequate review mechanisms i n place to ensure the accountability of law enforcement i n this evolving capacity, and i f not w h y not? In short, I will argue that current measures are inadequate; that certain post-9/11 amendments to the law of evidence make it m u c h less likely that adequate measures will be instituted; and that this fact raises questions about our commitment to the rule of law and our ideas about the administration of justice.  Why accountability is important  The  argument  i n this chapter  depends  on an important proposition: the  accountability of law enforcement is fundamental to the rule o f law and, by implication, the administration of justice.  T o understand why this is so, consider first the meaning of  'accountability' i n this context. T h e authors of a background paper prepared for the A r a r Inquiry, titled "Accountability and Transparency", describe accountability as a 'key value in a democratic society' and approach its meaning i n terms of three basic relationships. T h e y argue that when we invoke the concept of accountability with respect to a public service entity i n a democracy, we imply that it should be subject to a kind o f control by  111  some higher entity or authority; it should have the duty of explaining itself, or justifying or rationalizing its actions - maybe to the controlling entity, but possibly to others; and we also i m p l y that by having another entity or body overseeing the entity i n question to provide an impartial assessment of its conduct, the entity enjoys a more legitimate status than it otherwise might.  1  H o w , then, are any of these meanings connected to the rule o f  law?  T h e reader may recall the discussion of A . V . Dicey's interpretation of the rule of law i n the Introduction to this thesis.  T h e need for accountability on the part o f law  enforcement can be inferred from the first two of Dicey's three readings of concept o f the rule of law.  T o reiterate, the first was that the rule of law is "opposed to the influence o f  arbitrary power", and excludes "arbitrariness . . . or wide discretionary authority...".  2  T h e second is that everyone is equal under the law and no one is exempt from the duty to obey law. T h e obvious concern on the part of citizens of a society governed by the rule of law is that those charged with the duty of enforcing the law will fail to submit themselves to the same duty to obey the law that they have undertaken to enforce.  Without  mechanisms for the accountability of law enforcement agencies i n precisely the three senses set out by the authors of the background paper mentioned above, there w o u l d be no way of k n o w i n g whether the people involved i n law enforcement were conducting themselves i n accordance with the law and not i n an arbitrary fashion.  1  2  Infra, note 22, at page 3. London, MacMillan & Co: 1965 (Tenth edition), at 202.  112  T h e reader may recall Wesley Pue's expanded definition of the rule o f law cited i n the Introduction to this thesis.  Pue's definition is helpful for understanding the link  between accountability and the rule of law. T w o of Pue's five points deal explicitiy w i t h accountability — "[a] 11 exercise of governmental power should be accountable, visible, and reviewable by the ordinary courts i n the ordinary ways", and "[p]ower exercised i n secret is never accountable."  3  I n Pue's reading of the rule of law, accountability is closely  related to the notion of transparency and to the idea of oversight by the courts.  With  respect to the latter, D o n a l d Sorochan has written, "[t]he availability of the courts to provide remedies to citizens who complain of police misconduct is, of course, the ultimate safeguard to ensure control and accountability of the police i n a society governed by the rule of l a w . "  4  But judicial oversight is, Sorochan argues, only one o f the ways i n w h i c h  law enforcement can be held accountable. J u d i c i a l supervision is, i n his view, appropriate for certain kinds of control but inappropriate for the task of p r o v i d i n g an "ongoing administrative supervisory role".  5  It makes more sense to submit law enforcement power  to an independent oversight body, such as a 'public complaints commission' — provided that such a body is given the powers to pierce the veil of secrecy and to make orders that can correct problems when they arise.  W i t h o u t the principle of accountability, and mechanisms to implement the notion, the government, executive, or sovereign may be subject to the rule of law, but the people  "The War on Terror: Constitutional Governance in a State of Perpetual Warfare." Osgoode Hall Law Journal (Vol. 41, Nos 2 & 3) 267, at 270. "The A P E C Protest, the Rule of Law, and Civilian Oversight of Canada's National Police Force," in W . Wesley Pue, ed. Pepper In Our Eyes: Hie APEC Affair (UBC Press, Vancouver: 2000), at 64. Ibid, at 73. 3  4  5  113  responsible for enforcing the law w o u l d not be.  H o l d i n g law enforcement  agents  accountable necessarily entails a degree of transparency and independent oversight. T h e history of the twentieth century provides ample evidence of how a state without mechanisms for accountability can readily descend into a state of arbitrary rule.  Setting the Stage  Before 9 / 1 1 , the mandate to collect intelligence and investigate matters relating to national security belonged primarily to a civilian body - the C a n a d i a n Security and Intelligence Service (C.S.I.S.) — that was separate and distinct from the law enforcement arm of the state, i n c l u d i n g the R o y a l C a n a d i a n M o u n t e d Police ( R . C . M . P . ) .  This  division o f labour was the result of m u c h public discussion and review i n the 1960s and 70s (and is explored i n more detail below). W h e n Parliament finally created C . S . I . S . i n the mid-1980s, it gave the Service various investigative powers and the ability to operate under a cloud of considerable secrecy. But it also instituted various review mechanisms. These mechanisms are unique to C.S.I.S., and are more powerful than the comparable mechanisms i n place to hold the R . C . M . P . and most provincial and m u n i c i p a l police agencies accountable. W e assumed the more secretive nature of C.S.I.S.'s activities called for more powerful and thorough accountability measures.  T h e R . C . M . P . has also had a role to play i n investigating matters pertaining to national security, but after September 1 1  th  2001 (9/11), the scope of its mandate i n this  area has broadened significantly — and through its work with a wide range of law enforcement agencies, the same can be said of C a n a d i a n law enforcement generally.  114  W i t h the creation of 'terrorism offences' i n the Criminal Code (which were instituted i n the 6  Anti-Tenorism Act of 2001), and amendments to the Security of Information Acfi and The 7  Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the investigative role o f 9  police, for national security purposes, has increased considerably.  T h e R . C . M . P , now  participates alongside C.S.I.S., and works i n close coordination with a wide range of other state agencies, i n c l u d i n g municipal and provincial police forces, border and customs officials, the coast guard, the C a n a d a Revenue Agency, and bodies such as the F i n a n c i a l Transactions  and Reports Analysis Centre of C a n a d a ( F . I . N . T . R . A . C . ) to  pursue  investigations that are very similar i n essence to those undertaken i n the past by C . S . I . S .  For  this reason,  the  once  clear distinction between  law enforcement  and  intelligence work is now being blurred, and perhaps permanentiy so. I n a work published i n 2005, Stanley C o h e n suggests that this blurring is not a necessary consequence o f the nature of counter-terrorism investigations, and that even though the situation after 9/11 brings the two fields into closer coordination, the distinction between the two can and should still be m a i n t a i n e d .  10  However, Cohen's o w n ideas about h o w this divide might  be maintained i n practice point to the difficulty at issue; for example, he writes: It is appropriate for the state to intervene with coercive measures w h e n freedom or security is threatened. Thus, the primary tools for the investigation o f threats  See Part II. 1 of the Criminal Code, R.S., 1985, c. C-46. S . C . 2001, c. 41. S . C . 2001, c. 41, s. 25 S . C . 2001 c. 41, s. 48. Privacy, Crime and Terror: Legal Rights and Security in a Time of Peril (Butterworths, Toronto: 2005) at 54: "It is vitally important that a bright line be maintained between national security intelligence gathering activities and ordinary criminal investigation. If we are unable to ascertain and maintain the existence of this bright line, then our ability to protect the ordinary criminal justice system from the tainting effects of activities or techniques used in the national security sphere will be compromised." 6  7  8  9  10  115  to the national security are surveillance and intelligence gathering. T h e r e is a difference to be noted between surveillance as part of crime-specific investigation and surveillance as spying. 11  But i f there is, how does the difference become apparent to R . C . M . P . officers exchanging information with C.S.I.S. agents (and visa versa) i n the field? In other words, there may be a semantic game to be played at any given point i n a national security investigation — whether this or that agent is carrying out one kind of function or another; but, i n practice, the individual players i n law enforcement  and intelligence are increasingly finding  themselves on the same team, on the same field, dealing w i t h the same adversary.  There is, therefore, a significant potential for abuse i n at least two respects. M u c h of the information gathered by the R . C . M . P . , and related agencies, i n the process o f these investigations is subject to secrecy, allowing the force i n that sense to operate w i t h m u c h less accountability than was the case with C . S . I . S .  12  Also, i n its cooperative work witii  members o f other state agencies, such as the work of the 'Integrated N a t i o n a l Security Enforcement Teams,' (explored i n more detail below), it is often impossible to determine w h i c h accountability mechanisms, i f any, apply to these investigations at any given time.  T h e recent events involving the detention and deportation o f M a h e r A r a r , a Canadian  citizen of Syrian decent, have  served  as the  catalyst for a  substantial  Ibid, at 57. This is as a result, in part, of amendments to the Canada Evidence Act, R.S., c. E-10, s. 2, that allow for a much broader assertion on the part of the state of what is called 'public interest immunity' and the creation of a new and very general category of 'sensitive information,' which can include anything related to national security. These amendments arc discussed in more detail below. 11  1 2  116  exploration of these issues, i n the form of a public i n q u i r y .  13  Briefly, A r a r ' s ordeal began  i n September of 2002 when he was stopped i n N e w Y o r k on a return trip from T u n i s i a with his family i n September of 2002.  A c t i n g on information provided by C a n a d i a n  intelligence officials, A m e r i c a n border authorities detained A r a r for two weeks a n d then deported h i m to J o r d a n .  14  In J o r d a n , A r a r was beaten and tortured and then taken to  Syria to a prison where he was tortured further and forced to sign a confession to the effect that he h a d traveled to Afghanistan and was involved i n military training. H e was then kept i n a small cell i n a Syrian prison for just over a year.  In the first of two final reports tabled i n September of 2006, the A r a r C o m m i s s i o n found that both before and after M r . Arar's detention i n the U . S . the R C M P provided A m e r i c a n authorities with information about M r . A r a r w h i c h was inaccurate, portrayed h i m i n an unfair fashion and overstated his importance to the investigation. Some o f this inaccurate information h a d the potential to create serious consequences for M r . A r a r i n light of A m e r i c a n attitudes a n d practices at the time. 1 5  O n l y days after A r a r was taken overseas, Canada's then Ambassador to Syria, Franco Pillarella, met with Syrian military officials who agreed to pass on to C a n a d a any  The website of the "Commission of Inquiry into the Actions of Canadian Officials in Relation to Mahar Arar" can be found at: <http://www.ararcommission.ca> (last accessed January 9, 2007). The details of the following summary can be found in "Mahar Arar's Story", a document prepared by the Committee of Organizations with Intervenor Status at the Arar Inquiry; see online: <http://www.bccla.org/temp/0505091caflet.pdf> (last accessed January 9, 2007). Press release, Arar Commission, September 18, 2006; see online: <http://www.ararcommission.ca/eng/index.htm> (last accessed January 9, 2007). The first report, titled Report of the Events Relating to Maker Arar, is set out in three volumes, subtitled respectively: 'Analysis and Recommendations' and 'Factual Background' volumes I and II. See online: <http://www.ararcommission.ca/eng/26.htm> (last accessed January 9, 2007). 1 3  1 4  1 5  117  information obtained i n the course of interrogations.  16  A summary o f A r a r ' s confessions  was then provided to C.S.I.S. and the R . C . M . P . . T h e A r a r C o m m i s s i o n found that while A r a r was detained i n Syria, " C a n a d i a n agencies relied on information about M r . A r a r received from the Syrians w h i c h was likely the product of torture. N o adequate reliability assessment was done to determine whether the information resulted from torture."  As  the months passed, the government resisted calls on the part of A r a r ' s wife, M o n i a M a z i g h , to investigate his whereabouts and the role of state agencies i n his deportation. M a z i g h was told by authorities that there was no clear consensus i n the C a n a d i a n government on whether A r a r ' s release should be sought.  17  In retrospect, the equivocation  on the part of the government was one of the m a i n reasons A r a r ' s ordeal was extended for as long as it w a s .  18  Three other M u s l i m C a n a d i a n m e n ( A h m a d E l M a a t i , A b d u l l a h  A l m a l k i , and M u a y y e d Nureddin) were investigated i n C a n a d a by the R . C . M . P . and C . S . I . S . d u r i n g roughly the same period of time and were all detained i n 2002 by Syrian officials w h e n traveling through Syria on family visits — and were eventually tortured and imprisoned there.  19  T h e broader issues raised by these events include the concern that the C a n a d i a n government never i n fact had credible evidence linking any of these m e n to terrorism; that either the R . C . M . P . or C.S.I.S. was instrumental i n encouraging the U n i t e d States to  Supra, note 14, at 2. Supra, note 15. Supra, note 14. These three men sought standing at the Arar inquiry and the government of Canada successfully resisted their motion. Ibid, at 3. In December of 2006, the Canadian government, under the direction Stephen Harper, announced that an inquiry into the events involving all three of these men would be conducted by Frank Iacobucci, former Justice of the Supreme Court of Canada. The inquiry has yet to begin but is expected to report its conclusions in January of 2008. 16  17  1 8  1 9  118  detain and deport A r a r to Syria; that C a n a d i a n officials were actually aware that A r a r was being tortured and did nothing about it; that C a n a d i a n officials were potentially the source of information used during Arar's interrogation i n Syria; and that given the allegations of the three other M u s l i m Canadians detained i n Syria, these events might be part of a pattern of such conduct on the part of C a n a d i a n authorities.  20  T h e mandate of the A r a r Inquiry was twofold: to make findings of fact w i t h respect to the A r a r incident and to make policy recommendations  for the  possible  creation of a new review mechanism for the R . C . M . P . i n its national security intelligence function.  21  T h i s second mandate is useful for the purposes of this chapter, because the  inquiry has made available to the public a number of 'background' papers prepared for the C o m m i s s i o n on issues relating to the question of accountability i n the R . C . M . P . ' s national security intelligence activities.  22  I will draw on these sources w i t h a view to  arguing two points: given its new mandate, the existing review mechanisms for the R . C . M . P . ' s national security related activities are inadequate, and the new review models considered by the Inquiry will likely also prove to be inadequate. T h e trouble lies i n the nature of c r i m i n a l investigations into terrorism offences: on the one hand, they are police investigations, w h i c h are subject  to the usual mechanisms  o f police accountability;  All of these issues are raised on page 4, ibid. The final recommendations of the Inquiry arc due at the end of the summer of 2006. The background papers in the Arar Inquiry include: "The R . C . M . P . and National Security," "Statutory Framework for the R . C . M . P . ' s National Security Activities," "Accountability and Transparency", "Police Independence," "Domestic Models of Review of Police Forces," "Accountability of Security Intelligence in Canada," and "International Models of Review and Oversight of Police Forces and Security Intelligence Agencies." Sec online at: <http://www.ararcommission.ca/eng/15.htm> (last accessed January 9, 2007). Also available at that address is the Commission's "Consultation Paper," authored by Commissioner Dennis R. O'Connor; it sets out the scope of the policy review mandate and objectives of the Inquiry. 2 0  2 1  2 2  119  however, on the other hand, because they are terrorism offences and involve issues of national security, there will always be a necessary measure of secrecy and confidentiality that will impede the scope of accountability. In the case of C.S.I.S., the need to keep information confidential can also affect the degree to w h i c h the service can be held accountable — but the Service's mandate is generally to advise government.  The  R . C . M . P . ' s mandate is to investigate and, where possible, to prevent crime, i n c l u d i n g terrorism ~ w h i c h entails arrests, detentions,  seizures of property  and potentially  devastating allegations of involvement i n national security-related offences.  W i t h the  increase i n integration and interrelations among intelligence and law enforcement, police activity is more often raising questions about accountability, and will more frequently go unanswered for reasons of secrecy and privilege.  I will proceed by discussing i n more detail the creation and evolving mandates of the R . C . M . P . and C.S.I.S.; how the work of the R . C . M . P . and its partner agencies has changed after 9 / 1 1 ; the accountability issues raised by these changes; new accountability models considered; and, finally, why the conflict between secrecy and accountability i n the R . C . M . P . will remain unresolved, and what this might mean for the administration of justice.  The Creation and Mandates of the R . C . M . P . and C.S.I.S. T h e R . C . M . P . was formed i n 1873 and originated as a k i n d of military force with the additional powers of peace officers.  2 3  23  T h e force sent members to the Boer W a r and to  I am drawing, for this portion of the paper, on "The R C M P and National Security", ibid, page  5.  120  battle fields of W o r l d W a r I, but i n that era, it acted more often i n the capacity of a domestic police force. T h e present mandate of the R . C . M . P . is set out i n section 18(a) o f a substantially updated version of the Royal Canadian Mounted Police Act that was passed i n 1986.  24  T h a t section makes the force responsible for, among other things, "...the  preservation of the peace, the prevention of crime and of offences against the laws o f Canada..."  T h e force has contracted w i t h all provinces and territories, except Quebec  and O n t a r i o , to provide police services i n accordance with this m a n d a t e .  25  T h e force  itself is managed by an R . C . M . P . Commissioner, who is accountable to (but not directed by) the M i n i s t e r of Public Safety and Emergency Preparedness.  26  T h e R . C . M . P . had some early involvement i n national security matters, such as guarding government buildings i n Ottawa and providing security for dignitaries, but eventually, i n the inter-war period, this role expanded to include the gathering of intelligence relating to threats to the security of the n a t i o n .  27  D u r i n g the C o l d W a r era,  national security activities included surveillance of foreign intelligence agencies operating i n C a n a d a and persons suspected of espionage. began to take form, i n the late  28  A s the contemporary era o f terrorism  1960s and early 1970s, the force concerned itself  increasingly with the threat of terrorism on C a n a d i a n soil, and took a cautionary view of  R . S . C . 1985, c. R-9.; ibid, page 1; for more on the context of these revision, see discussion below. Ibid, page 2. The relationship between the Commissioner and the Minister is explored in detail in "Police Independence" paper, supra, note 22. Ibid. Ibid, page 8. 2 4  2 5  2 6  2 7  2 8  121  groups that included the Quebec Seperatist movement, radical student and labour organizations on the far left, and some aboriginal groups.  29  As late as the mid-1960s, there were no formal review mechanisms i n place for the R . C . M . P . ' s security intelligence activities, but public interest i n the issue began to become more  prominent.  30  In  1966, a R o y a l  C o m m i s s i o n on Security (the  Commission') was established to inquire into the "operations methods and procedures."  31  'Mackenzie  of C a n a d i a n security  T h e C o m m i s s i o n recommended the creation of a security  intelligence service distinct from the R . C . M . P . and made generally three arguments i n supports of its recommendation.  32  T h e role of a conventional police force and the task o f  conducting national security investigations are too disparate and essentially different.  33  T h e police lack the specialized knowledge and training necessary to conduct security intelligence work effectively. A n d given the intrusive powers and techniques deployed i n the course of security intelligence work, the body charged with this mandate should be subject to tighter accountability measures than were i n place for the R . C . M . P . at that time.  34  The  Trudeau  government  neglected  to  implement  the  Commission's  recommendations on this point.  F o l l o w i n g the R . C . M . P . ' s involvement i n the F . L . Q . crisis (Front de liberation d u Quebec) i n the early 1970s, the federal government sought further recommendations i n a Ibid, page 9. / t o / , page 10. Report of the Royal Commission on Security (Mackenzie Report), Minister of Supply and Services Canada, 1981; cited at page 10, ibid. Ibid. Ibid, page 10. Ibid, page 11.  2 9  30  31  3 2  3 3  3 4  122  second commission into the issue (the M c D o n a l d Commission), w h i c h tabled its results i n 1981.  35  These recommendations form the basis of the current framework of national  security intelligence and investigations as they pertain to C.S.I.S.  T o appreciate  the  context of the Commission's work, it is important to note that i n the F . L . Q . crisis, the R . C . M . P . ' s investigatory activities were arguably intrusive and abusive to an excessive degree, giving rise, once again, to the question of whether it was appropriate to have the force involved i n work of this nature at a l l .  36  T h e M c D o n a l d C o m m i s s i o n recommended  a separation of security intelligence from the R . C . M . P . altogether and  recommended  various forms of'external control' over the proposed independent security service.  T h e government recommendations. Act,  39  38  37  chose to implement many of the M c D o n a l d Commission's  In 1985, with the passing of the Canadian Security Intelligence Service  Parliament created the C a n a d i a n Security Intelligence Service. Section 12 of the  A c t sets out the mandate of the Service i n these terms: T h e Service shall collect, by investigation or otherwise, to the extent that it is strictly necessary, and analyse and retain information and intelligence respecting activities that may on reasonable grounds be suspected of constituting threats to the security of C a n a d a and, i n relation thereto, shall report to and advise the Government of C a n a d a . T h e phrase 'threats to the national security of C a n a d a ' is defined at length i n section 2 of the A c t , and includes espionage, 'foreign influenced activities,' and activities or acts " o f serious violence against persons or property for the purpose of achieving a political,  Ibid, page 13. Sec also "The Accountability of Security Intelligence in Canada", supra, note 22, at 5 to 8. For specific allegations see page 13, ibid. These are discussed at page 18 to 20, ibid. Ibid, page 21. R . S . C . 1985 c. C-23. (C.S.I.S. Act.) 3 5  3 6  3 7  3 8  3 9  123  religious or ideological object within C a n a d a or a foreign state." T h e A c t contemplates the use of various intrusive techniques for the gathering of information, i n c l u d i n g wiretaps or other interceptions of communication, but only subject to authorization by the Courts, w h i c h may or may not involve applications made in camera.  40  In addition to this form of review by the judiciary, the A c t mandates a review by an Inspector General who looks to see i f the Service has complied with its o w n policies, and a report by the Inspector General to what is now the Minister of Public Safety and Emergency Preparedness. the  Security  41  Intelligence  A further key source of oversight i n the A c t is the creation o f Review  Committee  (S.I.R.C.),  which  is  a  completely  independent and external review body (discussed i n more detail below), with a broad range of review powers.  42  D u r i n g the same year the C.S.I.S. Act was passed, the government passed the Security Offences Act.  45  T h i s A c t addressed the R . C . M . P . ' s responsibilities i n the area of  national security matters. Section 6 of the A c t gives the force the mandate to investigate matters "constituting a threat to the security of C a n a d a within the meaning o f the Canadian Security Intelligence Service Act."  44  T h e specific role of the force is to perform the  "duties that are assigned to police officers" with respect to offences that might pose a  Supra, note 22; section 21 to 28 of the Act, ibid. Ibid, at 22. See sections 30 to 33 of the C.S.I.S. Act for specific provisions pertaining to the mandate of the Inspector General. Ibid; the scope and powers of review of the S.I.R.C. arc set out in sections 34 to 40 of the Act. R.S., 1985, c. S-7. R . S . C . 1985, c. 21. This passage is a quotation from section 2 of the R.C.M.P. Act, supra, note 24, which is cross-referenced in section 6 of that Act. 4 0  4 1  4 2  4 3  4 4  124  threat to national security, or the "apprehension of the commission" of such offences.  45  T h e authors of the background paper " R C M P and N a t i o n a l Security," note that [t]he Security Offences Act therefore clarified that, even with the advent of a civilian security intelligence agency, the R C M P w o u l d still have significant duties i n relation to criminal investigations and the prevention of crime that affected national security. It also established the R C M P , as opposed to m u n i c i p a l or provincial police services, as having primary responsibility i n relation to such criminal offences. 46  T h e scope of R . C . M . P . activities, as contemplated i n this A c t , was clearly quite broad, but generally distinct i n its nature and purpose from that of C . S . I . S .  T h e latter was  equipped to conduct sophisticated investigations, but only with a view to advising the government.  T h e R . C . M . P . might have been somewhat less sophisticated and less  specialized, but its primary purpose was to investigate offences and make arrests. T h e two might work together, but with those different aims i n v i e w .  47  However, the overlap between their functions w o u l d become even greater, given the new investigative style that began to emerge i n the R . C . M . P . i n the late 1980s. 'Intelligence-led policing' became a more c o m m o n approach i n various levels of police investigations and involved the collection of information i n shared databases and the analysis of that information to investigate and prevent c r i m e .  48  T h e technique w o u l d be  used by the emerging special departments for national security i n the R . C . M . P . , i n c l u d i n g the N a t i o n a l Security Investigation Directorate (N.S.I.D.) and the N a t i o n a l Security  This point is made by the authors of the "The R C M P and National Security," supra, note 22, at 23. ^ Ibid, at 23. Ibid, at 26. Ibid, at 25. 4 5  4 7  4 8  125  Operations B r a n c h (N.S.O.B.) -  both established i n 1988.  49  I n 1991, a C r i m i n a l  Intelligence Directorate was created, w h i c h also bore a national security investigative function that was to be carried out by various N a t i o n a l Security Investigation Sections (N.S.I.S.),  50  giving the force an increasingly complex network of teams and departments  with some involvement i n national security matters.  T h e networking and elaborate extended  to the  relationship between  interrelationships of actors on the field the  R.C.M.P.  and  C.S.I.S.  Initially,  also their  relationship was addressed i n the form of a 'Ministerial Directive,' and later i n a ' M e m o r a n d u m of Understanding' (1986), w h i c h was approved by the M i n i s t e r .  51  The  m e m o r a n d u m states that each entity would provide assistance to the other for the fulfillment of their respective mandates, as set out i n the legislation — and that each w o u l d consult the other i n the course of conducting national security investigations and w o u l d carry out the investigations under the guidance and direction of the Solicitor G e n e r a l .  52  T h e agreement also stipulated that all information provided to one or the other entity w o u l d remain confidential and w o u l d not be used i n the course of obtaining warrants or as evidence i n court proceedings, without the approval of the other p a r t y .  4 9  5 0  51  5 2  5 3  Ibid, Ibid, Ibid, Ibid. Ibid,  at 26. at 29. at 30. at 31.  126  53  The National Security mandate of the R . C . M . P . after 9-11  W i t h the advent of the Anti-terrorism Act™ i n the fall of 2001, the scope of the  R.C.M.P.'s  national security-related investigations expanded significantly. T h i s is not the place to set out i n detail the ways i n w h i c h the Anti-terrorism Act has criminalized acts o f terrorism, but it should suffice here to say that by including terrorists offences i n the Criminal Code,  55  Parliament has made the R . C . M . P . responsible for the investigation and prevention of a range of offences that include conspiracy, attempts to commit terrorism offences, and a host of related activities, such as money laundering, and facilitating, harbouring or concealing actions that may relate i n some way to a terrorist offence.  56  equips the R . C . M . P . with new powers of investigation, including the  T h e A c t also 'investigative  hearings' i n section 83.28 and 83.29 of the Code, w h i c h allow the Attorney G e n e r a l to apply to a judge to compel a person, who is not charged with an offence, to appear before the court and answer questions pertaining to a possible terrorist offence.  Another  important investigative tool is the provision for obtaining a warrant for electronic surveillance without the normal requirement that other avenues of investigation be exhausted or proven ineffective.  57  T h e warrant can also be extended for a period o f up to  three years without the subject of the investigation being aware o f i t .  58  Supra, note 7. See Part II. 1, supra, note 6. In addition to the Code provisions, ibid, sec "The R . C . M . P . and National Security," supra, note 22, at 38 for a more detailed discussion of these provisions. This is discussed, ibid, page 39; see also section 185(1.1) and 186(1.1.) of the Code. Ibid.  5 4  5 5  5 6  5 7  5 8  127  In addition to amending the Criminal Code, the Anti-terrorism Act amended a host o f other legislation that affects the scope of R . C . M . P . activities i n the field of national security. banks  T h e Proceeds of Crime (Money Laundering) Act and Terrorist Financing Act  and  requires  59  other  financial  institutions  to  disclose  information  to  the  Financial  Transactions and Reports Analysis Centre of C a n a d a ( F . I . N . T . R . A . C . ) where there are reasonable grounds to suspect a link to a terrorism offence. made  to the Public Safety Act,  6]  F.I.N.T.R.A.C,  60  Pursuant to amendments  i n turn, is authorized to disclose  information to police where it would assist i n the investigation of a terrorism offence.  62  As  a result of these legislative changes, the authors of a background paper to the A r a r Inquiry point out, ... most, i f not all, actions w h i c h affect the national security of C a n a d a have been criminalized. In consequence, virtually all information and intelligence that C S I S w o u l d be interested i n is potentially also of interest to the R C M P i n connection with its national security crime prevention and law enforcement mandate. 63  The Practical workings of the R . C . M . P . in the post 9-11 era  T h e R . C . M . P . acts under the supervision of an R . C . M . P . Commissioner, who is accountable to the Minister of Public Safety and Emergency Preparedness. H o w e v e r , the Minister's oversight o f the Commissioner is limited to general statements o f policy, under the  5 9  6 0  0 1  6 2  6 3  assumption  that  in  a  developed  democracy  a  healthy  measure  of 'police  Supra, note 9. "The R . C . M . P . and National Security,"supra, note 22, at 40; see also section 7 of the Act, ibid. R . S . C . 2004, c. 15, s. 100. "The R . C . M . P . and National Security," supra, note 22, at 40. Ibid, at 41.  128  independence' from the executive is essential.  64  B o t h the Minister and the R . C . M . P . itself  have issued directives pertaining to the R . C . M . P . ' s national security work. notionally  guide  the  actions  of the  Commissioners i n the various regions.  Commissioner, and  the  numerous  These Deputy  65  N a t i o n a l Security investigations are carried on i n various departments o f the R . C . M . P . , including the C r i m i n a l Intelligence Directorate, and its sub-branches,  the  N a t i o n a l Security Investigations B r a n c h (N.S.I.B.) and the N a t i o n a l Security Operations B r a n c h (N.S.O.B.).  But the bulk of the work is undertaken by N a t i o n a l Security  Investigation Sections, w h i c h operate i n M o n t r e a l , Ottawa, T o r o n t o and V a n c o u v e r i n the form of Integrated N a t i o n a l Security Enforcement Teams ( I . N . S . E . T . s ) .  66  W i t h i n the  cluster of these various teams and departments are groups with such special designations as 'the Terrorist and C r i m i n a l Extremist Special Projects G r o u p , ' 'the Anti-Terrorist Financial G r o u p , ' and the 'Critical Infrastructure Intelligence S e c t i o n ' .  67  O n e group (the  N.S.I.B.) is primarily responsible for matters taking place outside of C a n a d a , while the other is focused on matters within C a n a d a ( N . S . O . B . ) .  68  T h e point, i n other words, is  that the apparatus for dealing with national security matters within the R . C . M . P . has now  The scope and jurisdiction for this 'direction', and its relationship to the principle of 'police independence', is explored in more detail in the paper titled "Police Independence," supra, note 22. For citations to these directives, see "The R . C . M . P . and National Security," supra, note 22, at 44. Ibid, at 45. For a more detailed discussion of the work conducted by I.N.S.E.T.s, see pages 5 to 10 of "The R . C . M . P . and National Security: Supplementary Background Paper", supra, note 22. Supra, note 22, at 48. The workings of both of these groups is explored in detail in the "Supplementary Background Paper," pages 1-5, supra, note 22. 6 4  6 5  6 6  6 7  6 8  129  become exceedingly elaborate and intricate — w h i c h is significant given the degree of integration with outside agencies that is c o m m o n among all of these subgroups.  A good illustration of this is the way i n w h i c h I . N . S . E . T . s function. T h e teams were created after 9/11 with a view to coordinating the involvement of, a m o n g others, police officers from both the R . C . M . P . and various provincial and m u n i c i p a l police forces, members of C.S.I.S., the C a n a d a Border Services Agency, members of C i t i z e n and Immigration C a n a d a , and the C a n a d a Revenue A g e n c y .  69  T h e I . N . S . E . T . s draw  u p o n a wide range of institutional resources among various police agencies and state entities, and are not limited i n their purview to national security investigations; they also investigate more conventional criminal offences, including organized c r i m e .  70  T h i s raises  questions of jurisdiction and authority that w o u l d have to be clarified before it w o u l d be possible to address questions  of accountability.  A s the authors o f the  R.C.M.P.  background paper for the A r a r Inquiry note, Because of their integrated nature, the exact nature o f the responsibilities a m o n g the various partner agencies involved i n I N S E T s is not always clear. A s yet, there are no formal agreements i n place among such agencies regarding I N S E T s generally. M e m b e r s of other police services who j o i n an I N S E T are seconded to the I N S E T and. are made Supernumerary Special Constables i n the R C M P . T h e r e are agreements i n place between the R C M P and other police services regarding this status. W e have examined one such agreement w h i c h provides that the officer from a municipal service shall be supervised by the R C M P , but shall remain under the jurisdiction of the m u n i c i p a l service's disciplinary process as well as the appropriate civilian oversight agency. Pursuant to the agreement, the municipal service agrees to hold harmless and indemnify the R C M P i n respect o f claims arising from the conduct of the officer. 71  6 9  7 0  71  "The R . C . M . P . and National Security," supra, note 22, at 50. Ibid. at50-l.  130  Other  groups  and teams within the  'Integrated Border Enforcement  R . C . M . P . ' s organizational structure,  Teams'  and 'Integrated Immigration  such  as  Enforcement  Teams', function i n a similarly expansive fashion with respect to other state agencies and raise similar issues of jurisdiction and responsibility.  72  There are many ways trouble can arise as a result of these integrated dealings. O n e example is information sharing — the root cause of M r . Arar's  misfortunes.  Internally, the R . C . M . P . shares information about national security matters through a central database specifically devoted to national security investigations, called the Secure C r i m i n a l Information  System.  73  Information  is entered into the  database at  the  discretion of the officer dealing with it — on the basis of a judgment call as to its relevance, but members are encouraged to be inclusive.  74  T h e information i n the database is classed  i n terms of quality, with classifications that range from 'reliable' to 'believed reliable,' to 'unknown reliability,' and finally 'doubtful reliability' ~ and whether the information is confidential.  75  cleared  access it, it can  to  A l t h o u g h the R . C . M . P . restricts access to the database to be  shared  with external  governments, on an 'as need to know' basis.  agencies,  members  including foreign  76  T h e sharing of information becomes all the more routine as various inter-agency entities are created with national security as their specific purpose.  I n addition to  These issues arc discussed in some detail at 51-2, ibid. Ibid, at 56. Ibid at 57. Ibid, at 58. Ibid, at 59. For an extended discussion of the R . C . M . P . ' s internal policies pertaining to the sharing of information with both domestic and foreign entities, and its implications, see pages 62 to 66. 7 2  7 3  7 4  7 5  7 6  131  I.N.S.E.T.s,  these entities  would  include the  recentiy  created  Integrated  Threat  Assessment Centre ( I . T . A . C . ) , w h i c h is operated by C.S.I.S. but is mandated to assess any information relevant to a possible threat to C a n a d a and to share that information with any agency that may require the information, including the Department of Public Safety and Emergency Preparedness, Defence, the Department  C.S.I.S., the R . C . M . P . , the Department o f N a t i o n a l  of Foreign Affairs,  the Privy Counsel Office,  Transport  C a n a d a , the C a n a d a Border Services Agency, and another inter-agency entity called the Communications Security Establishment ( C . S . E . ) .  77  T h e C . S . E . is an entity that operates  under the aegis of the Minister of Defence and deals primarily with foreign intelligence and activities taking place outside the country.  78  It is specifically mandated to provide  assistance to both federal law enforcement and security agencies, and is empowered to intercept  communications with foreigners  that begin or end i n C a n a d a .  79  The  Department of N a t i o n a l Defence also has an Intelligence Division, w h i c h contains a N a t i o n a l Counter-intelligence U n i t that works with C.S.I.S. and the R . C . M . P .  8 0  Accountability Mechanisms of the R . C . M . P . and C.S.I.S.  H o w , then, is the R . C . M . P . accountable for its activities and are there specific formal accountability mechanisms to correspond to the force's new, expanded national security mandate (post-911)? T h e answer to the latter question is, i n short, no. T h e only formal accountability mechanisms that are i n place are simply those that were put i n Ibid, at 68. Ibid, at 70. For more on the history of this entity and more detail on the scope of its mandate, see ibid, pages 70 to 71. "The R . C . M . P . and National Security," supra, note 22, at 72. 7 7  7 8  7 9  8 0  132  place with the 1986 amendments to the R.C.M.P.  Act. Before c o m i n g to those, however,  there are a number of less formal internal and external accountability mechanisms that should be considered.  In a catalogue of internal mechanisms, the authors of " T h e R C M P and N a t i o n a l Security" include provisions i n the R.C.M.P.  Act that require officers to obey the l a w ,  internal policy directives, and the fact that national security activities are  81  mostiy  centralized at R C M P headquarters (this is intended, i n the words of one policy directive, to "enhance the Commissioner's operational accountability"). whether  any of these 'mechanisms'  82  However, it is arguable  function i n a way that holds the  R.C.M.P.  accountable for its actions, i n a practical sense.  Notionally, the less formal external mechanisms for R . C . M . P . accountability w o u l d include the media and the judiciary. But with respect to the role of the Courts as an external accountability mechanism, Commissioner O ' C o n n o r of the A r a r Inquiry, noted that [...] few of the R C M P ' s national security investigations have, to this point, resulted i n prosecutions before a court. G i v e n the emphasis on crime prevention i n the national security context, it is unlikely that most such activities will be subject to frequent scrutiny by the courts i n the future. W h e n one considers as well the "top secret" nature of m u c h national security work, it may be that m a n y of the national security activities of the R C M P w i l l not be subjected to review by any outside e n t i t y . 83  T h e media is i n essentially the same position, given that what is u n k n o w n cannot be commented on. 8 1  8 2  8 3  Ibid, at 76; see, for example, sections 18 and 37 of the Act. Cited at 77, ibid. The Commission's "Consultation Paper," supra, note 22, at 12.  133  T h e formal accountability mechanisms include an R . C . M . P . External R e v i e w Committee, the C o m m i s s i o n for Public Complaints Against the R . C . M . P . (C.P.C.) (about w h i c h , more i n a moment), and the A u d i t o r G e n e r a l . R.C.M.P.  84  There is also a provision i n the  Act that allows either the Commissioner of the force or the Solicitor General to  appoint a B o a r d of Inquiry to investigate and report on the conduct of the force i n a given matter.  85  A p a r t from these, however, there is no independent oversight.  Prior to amendments to the A c t i n 1986, there was no independent oversight of the  R.C.M.P.  Internal  civilian  directives set guidelines for handling public  complaints i n a process that amounted, i n essence, to an internal disciplinary review procedure.  80  T h e 1986 A c t created both the C . P . C . and External R e v i e w Committee.  T h e External R e v i e w Committee functions as an external forum for the appeals of internal disciplinary hearings,  87  while public complaints are heard by an entirely separate  external body, the C . P . C .  Complaints made to the C . P . C , i n the normal course, are investigated by the force, involve hearings internal to the R . C . M . P . , and can result i n the imposition o f penalties — but not directiy by the C . P . C .  8 8  T h e C o m m i s s i o n lacks the power to  subpoena documents, to investigate the R . C . M . P . ' s conduct beyond the scope of the  Ibid. Ibid, at 78; the Arar Inquiry was commissioned under not under this provision but under the Inquiries Act, R.S., c. 1-1 3, s. 1. The Arar Inquiry's specific terms of reference are set out in a document by that name, available: <http://www.ararcommission.ca/cng/Terms_of_Refercncc.pdf> (last accessed January 9, 2007). Supra, note 22, "Domestic Models of Review of Police Forces", at 29. v Ibid, at 21 8 4  8 5  8 6  8 8  Ibid, at 22.  134  complaint itself, to make a finding that is binding on the force, or to award a remedy to the c o m p l a i n a n t .  89  T h e authors of a background paper on police accountability models  note: [...] the C o m m i s s i o n is, i n effect, an ombudsman. It has no power to impose a penalty. O n l y the R C M P Commissioner can do that. Its power is the power o f persuasion and the publicity that it can engender to persuade. After a hearing, triggered by a complainant's appeal, the C o m m i s s i o n issues an interim report, to w h i c h the R C M P Commissioner must respond and i n w h i c h the Commissioner can accept or reject the Commission's findings. T h e C o m m i s s i o n then sends its final report with the Commissioner's response to the minister. T h e C o m m i s s i o n gives its report whatever publicity it thinks w o u l d help its position. It notes on its web site that over 9 4 % of the Commission's adverse findings and recommendations are accepted by the R C M P C o m m i s s i o n e r . 90  T h e C o m m i s s i o n does, however, have the mandate to conduct its o w n investigation and hold a hearing — i f the C o m m i s s i o n is of the view that it is i n the 'public interest' to do so.  91  A n investigation of this kind was commenced i n both the A r a r case and i n the  matter of police conduct at the A P E C meeting i n V a n c o u v e r i n 1997.  92  The A P E C  hearing was the last the C o m m i s s i o n has conducted (having conducted a total of only 18 since the inception of the Commission i n 1988).  93  T h e Commission's investigation into  the A r a r matter was adjourned pending the outcome of the I n q u i r y .  94  B y contrast to the powers given to the C . P . C . under the R.C.M.P  Act,  the  equivalent body that overseas the conduct of C.S.I.S. — the Security Intelligence R e v i e w  8 9  9 0  9 1  9 2  9 3  9 4  "Consultation Paper" of October 5, 2004, supra, note 22, at 21. Ibid, at 29-30. Ibid, at 23. Ibid, at 24. Ibid. Ibid.  135  Committee (S.I.R.C.) — has much more power to review and censure the S e r v i c e .  The  95  S . I . R . C . is entitled to disclosure of information on any of C.S.I.S.'s activities (including warrants and affidavits used), ministerial directions, and for activities not drawn to the attention of the S . I . R . C , the Service has a duty to report on its conduct to the S . I . R . C .  9 6  In a 2002 speech to the C a n a d i a n Institute of the Administration of Justice, then Commissioner of the C . P . C , Shirley Heafey, commented on this disparity of powers indirectly by stating: problems are generally drawn to my attention by a complainant. But what happens when a potential complainant doesn't know of the C P C ' s existence or, worse, is afraid to complain about the actions of the police?...Without a complaint and without the power to randomly review files, it is difficult to investigate and to assess R C M P use of the new powers... A search is authorized by warrant issued by a judicial official w h o has read an affidavit i n support of the request for the warrant. I f I don't have access to those documents, how can I, i n good conscience, assure the Minister of Justice and the Solicitor General that I am overseeing the R C M P ' s use o f these new powers? 97  She concluded that the C o m m i s s i o n "requires additional powers and additional resources to restore balance — to balance the new powers and resources given to the R C M P for the purpose of combating t e r r o r i s m . "  98  Ibid, at 31. The powers of the Committee are set out in Part III of the CSIS Act, supra, note 39. Note, however, that the Committee's power to 'censure' is similarly limited to making recommendations and tabling reports. In this case, the Committee reports annually to the Minister, who in turn tables to report to Parliament (section 53), and can, at the conclusion of an investigation, make recommendations to the Director of the Service (section 52). For a much more detailed discussion of the scope and powers of the S . I . R . C , see part D of "The Accountability of Security Intelligence in Canada", supra, note 22. Ibid, at 32. Sec section 39 of the Act on the scope of the Committee's disclosure entitlement. O n the requirement to report to the Committee, see section 40. "Civilian Oversight in a Changed World", see online: <www.cpc-cpp.gc.ca/DefaultSitc/NcwsRoom/index_e.aspx?articleid=274> (last accessed January 9, 2007). Cited ibid, at 32. Ibid. 9 5  9G  9 7  9 8  136  T h e current civilian accountability mechanisms for the R . C . M . P . are  therefore  limited i n two ways: the C . P . C . ' s powers of investigation are more limited than those available to S . I . R . C . and its power to censure or remedy a problem is limited to m a k i n g recommendations that may or may not be adopted by the R . C . M . P . M o r e to the point, in a field of investigation i n w h i c h so m u c h information and activity is conducted i n secret, a 'public' complaint commission is necessarily m u c h more limited i n its powers than a more robust external review body, such as the S . I . R . C .  Models of review proposed  A m o n g the possibilities for an updated  accountability model contemplated  by  the  Commissioner of the A r a r Inquiry are an enhancement of the powers of the C . P . C . , the creation of a review body for the R . C . M . P . with similar powers to those o f the S . I . R . C , or the allocation to the S . I . R . C . of jurisdiction over the R . C . M . P . ' s national security investigations."  However, after having suggested these options i n December of 2004,  and calling for public comment on them, the Commission released a further proposal, i n N o v e m b e r of 2005, w h i c h was based on the recognition of a limitation c o m m o n to all of these m o d e l s .  100  T h e y all fail to address the problem of integration a m o n g agencies and  the increasingly inter-jurisdictional character of national security investigations. T h e later proposal is to create an 'Integrated N a t i o n a l Security R e v i e w Committee,' ( I . N . S . R . C . ) ,  9 3  1 0 0  See the Commission's "Policy Review: Consultation Paper," supra, note 22, at part I V . Ibid.  137  which  w o u l d not  necessarily preclude  combination of t h e m .  any  of the  previous  suggestions,  or  some  101  T h e I . N . S . R . C . model is of interest for the purposes of this chapter, because it purports to address a key problem identified here with respect to accountability i n national security investigations — namely, that so m u c h integration makes jurisdiction almost impossible to determine. T h e I . N . S . R . C . model goes some distance i n addressing this concern. It w o u l d consist of the chairpersons of a revised version of the C . P . C . , the S . I . R . C . and the C . S . E . , along with a chairperson of its o w n .  1 0 2  It w o u l d review the  integrated dealings of the R . C . M . P . , C.S.I.S. and the C . S . E . on matters of national security.  Complaints and investigations could be initiated from a number o f sources,  including any of the constituent agencies, a member of Cabinet, or a member of the public.  T h e issue i n any given case w o u l d then be whether an 'integrated review' was  necessary, and i f so how best to carry it out.  W o r k might be delegated to other  accountability bodies or investigative agencies, and powers of review w o u l d be at least as broad as those assigned to the S . I . R . C .  There are, however, two remaining issues with this model.  O n e is that, as it is  contemplated at the recommendation stage, the I . N . S . R . C . w o u l d have only the power to report and recommend - likely to Cabinet or P a r l i a m e n t .  103  T h i s is certainly consistent  "Arar Commission Policy Review: Integrated National Security Review Committee; Further Option for Public Comment", online: <http://www.ararcommission.ca/cng/public_consultation_nov25.pdf.> (last accessed January 9, 2007). See pages 5 to 10, ibid, for a more detailed discussion of this model. See page 8, ibid. 1 0 1  1 0 2  1 0 3  138  with the powers of the S . I . R . C . and other review bodies of police forces across C a n a d a , discussed i n the background paper on that subject. secrecy.  But it fails to address the problem of  W o u l d these reports to Parliament be public i n their entirety?  W o u l d the  I . N . S . R . C . be i n a position to conduct a fully transparent review of the actions on an I . N . S . E . T . , for instance? W o u l d it have powers to grant a remedy or impose a penalty, or to make b i n d i n g recommendations? make a difference?)  (And, for the purposes of m y argument, w o u l d it  Another issue is that many of the agencies and players i n national  security investigations are provincial or even m u n i c i p a l institutions, w h i c h raise question o f constitutional of jurisdiction over their c o n d u c t .  104  the  O n e proposed solution to  this issue i n the Commissioner's text is to include members on the Committee who w o u l d represent provincial and municipal review b o d i e s .  105  These concerns are also raised by the accountability mechanisms for national security agencies i n Britain and the U n i t e d States, and suggest that the p r o b l e m o f transparency i n this area may be endemic.  In Britain, the 'Intelligence and Security  C o m m i t t e e ' is mandated by statute to oversee the "expenditure, administration and policy" of the various intelligence agencies working i n the field of national security.  106  H o w e v e r , "the Prime Minister, i n consultation with the Committee, may decide that the publication of certain matters w o u l d be 'prejudicial to the continued discharge of the functions' of any of the three intelligence agencies, and may exclude that matter from the  Ibid, page 7. Ibid, at 8. Intelligence Services Act (U.K.), 1994, c. 13, s. 10, cited in the Arar Commission background paper, "International Models of Review and Oversight of Police Forces and Security Intelligence Agencies", supra, note 22, at 89. 1 0 4  1 0 5  1 0 6  139  copy of the report laid before P a r l i a m e n t . "  107  G i v e n that the Committee consists o f  members of both Houses of Parliament excluding those within the Cabinet, and that the decision to exclude or censor material requires the Prime Minister's consultation with Committee members, this structure for accountability w o u l d presumably tend toward greater transparency i n practice (than the models under review i n the A r a r Commission). B u t it w o u l d not be i m m u n e to the executive's efforts to limit transparency i n a selfserving fashion.  In the U n i t e d States, national security investigations are conducted p r i m a r i l y by the Federal Bureau of Investigations, w h i c h is a law enforcement agency dealing w i t h domestic matters, and the Central Intelligence Agency, w h i c h is an intelligence gathering entity dealing with foreign matters. T h e U . S . has no equivalent to C.S.I.S., w h i c h is a strictly intelligence gathering agency that performs national security investigations on the domestic f r o n t .  108  T h e counter-terrorism activities of both the F . B . I , and the C . I . A . are  overseen by a number of committees at the executive level — i n Congress, under the direction of the President, and under the auspices of the Department of H o m e l a n d Security.  109  T h e authority for Congressional committee oversight of the F.B.I.'s national  security activities is set out i n the National Security Act (1947). up  and  duties  of the  various committees,  and  110  T h e A c t defines the make  it allows that i n  "extraordinary  circumstances affecting vital interests of the U n i t e d States," the President can limit disclosure of sensitive information to the chair and ranking minority members o f the  Ibid, at 89-90. / t o / , at 90. 109 The principle committees are set out on page 91, ibid. Ibid, at 100. 1 0 7  108  1 1 0  140  intelligence committees and the majority and minority congressional leaders.  111  While  this power to censor may not amount to a lack o f transparency altogether, it once again suggests the possibility of limiting transparency i n certain situations.  The Limits of Accountability after Bill C-36  T h e broader difficulty with all of the accountability models contemplated by the Commissioner, including the I . N . S . R . C . , however, is that i n the area of terrorist-related investigations, the state has demonstrated a tendency to assert confidentiality over information  that w o u l d  be central to any investigation into the  conduct o f law  enforcement. O n c e again, the A r a r inquiry is a good illustration of this. T h e ' C o m m i t t e e of Organizations with Intervenor Status at the A r a r Inquiry' put the p r o b l e m i n these terms: M u c h of what was supposed to be a public inquiry has been held behind closed doors — only five days o f contextual public hearings were held before the inquiry disappeared into eight months of in-camera hearings w h i c h excluded M a h e r ' s lawyers and organizations that were granted Intervenor Status. T h e C o m m i s s i o n had hoped to issue public summaries of the secret hearings, but the government used the threat of lengthy federal court battles to block their release. T h e government claimed that releasing this information w o u l d threaten national security, but the Commissioner's ruling disagreed, noting that m u c h o f what the government suppressed has already been published i n the media, or is favourable to M a h e r . W i t h o u t access to the evidence presented i n these secret hearings, M a h e r ' s team and intervening organizations have learned very little on w h i c h to base their participation at the i n q u i r y . 112  Ibid, at 101-102. Supra, note 14, at 3. The 'Commissioner's ruling' referred to in this passage was rendered on December 20, 2005; sec online: <http://www.ararcommission.ca/eng/FinalrulingonnscREDACTED_Dec20.pdf> (last accessed January 9, 2007). 111  1 1 2  141  After the lengthy period of in camera hearings, the Inquiry resumed hearing evidence for a number of weeks i n M a y and J u n e of 2005.  T h e majority of the time taken to hear  evidence, i n other words, was held in camera.  W h e n the A r a r C o m m i s s i o n tabled the first of its two final reports i n September of 2006, the government censored portions o f the report by invoking provisions i n the Canada Evidence Act that expand the scope o f state privilege over matters relating to national security.'  13  T h e C o m m i s s i o n made clear at the time of publishing the report  that, i n its opinion, the censored portions should be made public and called on the government to "refer this dispute to the Federal C o u r t for an expeditious resolution so that the public might get m a x i m u m disclosure."  114  A t the time of this writing, the status  of this reference, or potential challenge, is unclear.  T h e grounds on w h i c h the government relied i n its assertion of privilege at the A r a r Inquiry, and i n censoring passages i n the first of the Commission's two final reports, are also new and intimately related to the issue of terrorism. These are set out i n section 38.01 of the Canada Evidence Act,  Ub  w h i c h came into existence with the Anti-Terrorism Act.  116  T h e section creates a new category of evidence called "sensitive information", w h i c h includes information relating to "national defence or national security that is i n the possession of the Government of C a n a d a , whether originating from inside or outside C a n a d a , and is of a type that the Government of C a n a d a is taking measures to  1 1 3  1 1 4  1 1 5  1 1 6  R . S . C . 1985, c. C-5; I discuss these provisions in more detail in Chapter 1 and below. Supra, note 15. Supra, note \ 13 (C.E.A.). Supra, note 7.  142  safeguard."  117  Section 38.01 considerably extends the scope of privilege on the grounds  of 'public interest immunity,' where "the disclosure w o u l d be injurious to international relations or national defence or security."  Where the government asserts the privilege,  the A c t provides an opportunity for the Attorney General to apply to the Federal C o u r t for an order with respect to the assertion of p r i v i l e g e .  118  T h e test on that application will  be whether  the  security".  T h i s decision can be appealed to the Federal C o u r t of A p p e a l .  119  information " w o u l d be injurious to national defence  or 1 2 0  national  A n d i f the  outcome i n that forum is unfavourable to the government, it can rely o n section 38.13(1), w h i c h states: T h e Attorney General of C a n a d a may personally issue a certificate that prohibits the disclosure of information i n connection with a proceeding for the purpose o f protecting information obtained i n confidence from, or i n relation to, a foreign entity as defined i n subsection 2(1) of the Security of Information Act or for the purpose of protecting national defence or national security. T h e certificate may only be issued after an order or decision that w o u l d result i n the disclosure of the information to be subject to the certificate has been made under this or any other A c t of Parliament. T h e certificate contemplated here is an extraordinary measure, but the mere fact that it is available makes litigation over die issue of 'public interest i m m u n i t y ' of limited utility.  In his "Consultation Paper" on behalf of the A r a r C o m m i s s i o n , one of the key issues that Commissioner O ' C o n n o r identifies as going to the crux o f the question of how to fashion an appropriate accountability mechanism is that of transparency.  A s the  Commissioner put it, T h e challenge will always be to design a process that provides public transparency 1 1 7  1 1 8  1 1 9  1 2 0  Section 38, C.E.A., definitions. See section 38.04(1). Section 38.06(1). . Section 38.09(1).  143  where elements of that review will, of necessity, have to be kept secret. H o w can transparency best be achieved i n a review of the R C M P ' s national security activities? 121  T h e question is posed rhetorically, but the broader concern is whether any model can resolve this fundamental disparity i n goals.  It may well be that at this time, given the expanded potential for the assertion o f state privilege i n the Canada Evidence Act, no accountability model will succeed i n m a k i n g the R . C . M . P . , or its related agencies, accountable for its conduct i n the area of national security investigations — or at least not to the standard of accountability possible before the CEA amendments. Where the government is i n a position to control the scope o f any particular accountability exercise with respect to the police, i n both theory and i n practice, the police are able to operate outside of the law.  T h i s marks a shift i n what was thought to be an important limitation on police power i n recent C a n a d i a n history. It raises the concern that our fear of terrorism will, for the foreseeable future, prevail over our desire to hold law enforcement accountable.  We  may not, as an electorate, consciously be choosing security over accountability, or security over freedom, but this is certainly the consequence of the majority's support for B i l l C - 3 6 and related post-9/11 amendments. Another consequence is that our ignorance o f what is lost may be the best evidence of a real shift i n our perception about the administration of justice.  "Consultation Paper", mpra, note 22, at 19.  144  Chapter 5: Conclusion  The  question I set out to explore was not whether the Anti-terrorism Act a n d related  amendments made after 9/11 are consistent with the rule of law, or w i t h the concepts that,are implied by our constitutional tradition with respect to the proper administration of justice. I asked whether our perspective on the latter has begun to change after 9 / 1 1 .  As the events of the fall of 2001 recede further into the past, and the threat o f terrorism i n N o r t h A m e r i c a seems somewhat less menacing now than it d i d then, we m a y soon be witnessing the beginnings of a shift i n the way that citizens, law-makers, a n d judges are prepared to think about issues relating to security and justice. H o w e v e r , the exercise i n this thesis was to look at the five year period after 9/11 with a view to assessing whether the law that was made i n response to the events i n the U n i t e d States, and the court decisions dealing with those changes, can be seen as part of an effort to forge a new sense of what is n o r m a l or acceptable i n the administration of justice; a new sense, that is, of h o w to deal appropriately with the prosecution of accused persons, or the detention and deportation of undesirable non-citizens.  T h e Chretien government, along with then Minister of Justice A n n e M c L e l l a n , and figures i n supporting roles, such as Stanley C o h e n and Irwin Cotler, helped to b r i n g about a set of amendments i n the fall of 2001 that will form a part of C a n a d i a n law indefinitely. A m o n g the most crucial amendments for the purposes of this discussion are the inclusion o f terrorism related offences with a relatively m i n i m a l mens rea component, provisions for the creation of a list of 'terrorist entities' that allows for the criminalization  145  of parties without anything like due process; provisions for the arrest and detention of persons for the purpose of forced interrogations at the hands of a judge; provisions for the arrest and detention of non-citizens and their deportation to countries where their lives w o u l d be i n danger - without affording them the benefit of a fair trial, full disclosure, or full answer and defence.  Finally, and perhaps most crucial of all, there are  the  amendments to the Canada Evidence Act that have broadened the scope of C r o w n privilege over evidence for reasons of national security i n a manner so expansive that they call into question the possibility of holding state agents such as C.S.I.S. or the  R.C.M.P.  accountable for their m a n y covert activities.  In a single piece of legislation, therefore, the federal government proposed to usher i n a new set of standards and approaches to dealing with terrorism suspects that clearly marks a departure from ancient and venerable concepts of due process, the presumption of innocence, and a fair trial — thereby testing the scope of the 'principles of fundamental justice' i n section 7 of the Charter. B u t given the existence i n the Charter o f a limitation clause that enables the courts to contemplate a justification for breaches of Charter rights and principles, it was possible for the government to take the position that B i l l C - 3 6 was consistent with the Charter. It was never clear whether the government was relying on section 1 explicitly - i n fact, the rhetoric often tended to be more ambitious; Chretien at one point assured us B i l l C-36 "provides meaningful protection of individual rights through the inclusion of due process guarantees."  1  B u t m a n y o f the assurances  were of a more general nature typical of Minister M c L e l l a n ' s declarations: " [ B i l l C-36]  Cited in Chapter 1, page 38.  146  has gone through the most intense scrutiny i n terms of whether or not it is consistent with the Charter of Rights and Freedoms. W e believe that this law is consistent."  2  T h e existence of a limitation clause i n the Charter was one factor that explains the government's decision to make indefinite amendments to C a n a d i a n law.  T h e other  factor, intimately related to the first, was the government's view that the events o f 9/11 did not constitute an 'emergency' and should not be thought of as something temporary. M c L e l l a n argued "[t]he basis of the legislation is not an emergency. legislation is the threat of ongoing terrorism."  3  T h e basis of the  But the sincerity of this assertion is belied  by two facts. T h e threat of terrorism is, i n a certain sense, indefinite. B u t government at the time the bill was tabled conceded the possibility that the magnitude of the p r o b l e m may change over time. N o t only were sunset clauses (albeit very limited i n scope) included, as well as annual reporting mechanisms, but also Chretien stated that the Bill "provides for a parliamentary review after three years to reexamine the necessity and effectiveness o f these measures. will be earlier."  [And,] I understand that today the minister said i f it is needed earlier it 4  T h e second fact is that C a n a d a had recently passed a revamped  Emergencies Act (1988), w h i c h raised a whole host of-thorny issues about the politics o f emergency proclamations and the real nature of the threat facing C a n a d a .  A host o f  issues the government could conveniently ignore by adjusting its rhetoric.  Ibid, page 39. C i t e d i n Stanley Cohen, Privacy, Crime and Terror: Legal Rights and Security in a Time of Peril, (Butterworths, Toronto: 2005) at 185. Cited in Chapter 1, page 39. 2  3  4  147  The  focus then shifted to the courts, where almost on cue, the language o f  justification and 'balancing' and collective security came to the fore.  In the cases  discussed i n Chapter 2, it was clear that the courts were prepared to go some distance i n rationalizing features of the immigration legislation and the new terrorism provisions i n B i l l C-36 as necessary, acceptable and appropriate. B u t what was almost more important than the outcome i n many of these challenges was the rationale for the result.  The  investigative hearing provisions were upheld i n Re: Application under s. 83.28 of the Criminal Code, but the majority tried to make the idea of judicial interrogations seem perfectiy 5  normal.  Similarly, i n Suresh v. Canada (Minister of Citizenship and Immigration), and the 6  Federal C o u r t of Canada's decision i n Re: Charkaoui, the court's deference to Ministerial 7  decision-making powers i n the area of national security was almost secondary i n importance to the insistence on the propriety and normality of a certain balancing: O n the one hand stands the state's genuine interest i n combating terrorism, preventing C a n a d a from becoming a safe haven for terrorists, and protecting public security. O n the other hand stands Canada's constitutional commitment to liberty and fair process. T h i s said, C a n a d i a n jurisprudence suggests that this balance will usually come d o w n against expelling a person to face torture elsewhere. 8  In the n o r m a l course, we will probably do the right thing; but at the same time, in the normal course, the risk of facing torture is just one side of the equation. T h e possibility of torture is no longer enough for us to draw a firm line i n the sand.  It was, however, with the amendments to the Canada Evidence Act that the most subde but potentially momentous changes were made. T h e expanded scope of privilege 5  6  7  8  [2004] 2 S.C.R. 248. [2002] 1 S.C.R. 3. 2004 F . C . A . 421. Supra, note 6, at paragraph 58.  148  allows the  C r o w n to conceal information or evidence i n proceedings wherever a  connection can be drawn to national security interests.  T h e provisions for challenging  the assertion of privilege on these grounds are so daunting for the potential challenger that it raises the obvious concern that the scope for state secrecy is now vastly greater than it was before.  O n e suspects that the use of these provisions i n the course o f the A r a r  Inquiry to conceal large portions of the witness testimony, and the censorship of portions of the Commission's first report (the factual findings), is only a hint of what lies ahead.  In the eyes of the public  T h e chapters of this thesis have explored facets of m y central argument as it pertains to government, the courts, and law enforcement. But a large part o f whether the change I have explored is real — a change i n perspective on the proper administration o f justice — depends also on whether it is reflected i n the eyes of the citizenry.  Some indication of the public's perspective on the changes brought about by the Anti-terrorism Act was assessed i n a pair o f studies conducted for the Department of Justice i n the winter of 2004-.  9  T h e first study canvassed the views of 196 people i n 22 focus  groups held i n T o r o n t o , Ottawa, Winnipeg, M o n t r e a l , Calgary, R e g i n a , V a n c o u v e r , Quebec City, and Halifax.  T h e participants ranged from ages 18 and over.  The  Executive S u m m a r y stated:  Millward Brown Goldfarb, "Public Views on the Anti-terrorism Act (Formerly Bill C-36); a Qualitative Study." See online: <http://www.justice.gc.ca/en/ps/rs/rep/2005/rr05-3/index.html> (last accessed January 9, 2007).  9  149  Awareness of the anti-terrorism legislation was generally low, with about only half of the participants i n each group saying, w h e n prompted, that they were aware of some aspects of the legislation. T h e r e was also low recall of pre-9/11 C a n a d i a n terrorist incidents; post-9/11 terrorist incidents outside of C a n a d a were mentioned more often. T h e general feeling was that terrorist incidents i n C a n a d a prior to September 11, 2001, w o u l d have been dealt with under the Criminal Code; however, there was uncertainty as to what aspect o f the C o d e w o u l d apply to terrorism. Participants were generally aware of heightened airport a n d border security measures, as well as tougher immigration procedures post-9/11. [...] Overall, participants felt that the risks associated with the Anti-terrorism A c t and the new powers it bestows on the police were acceptable i n light o f the protection the A c t affords to the country and its citizens, although the level of safety they felt d i d not change after learning about the provisions of the A c t , since they d i d not feel unsafe to begin with. T h e majority of participants said that the A c t has had no direct impact on them, apart from them having to wait longer at the border or i n line for ticketing or security at airports, w h i c h can primarily be attributed to post-9/11 security measures rather than to the A c t itself. A few participants stated that they had friends or relatives adversely affected by post September f 1 security measures, with experiences ranging from being pulled over at the border to being deported from the U n i t e d States. I n these cases, the individuals affected were said to be members of visible minority groups. T h e views of minority groups formed the object of the second study, w h i c h was conducted by the Research and Statistics division of the Department of J u s t i c e .  10  In that  study, " i 6 focus groups were carried out i n Halifax, M o n t r e a l , T o r o n t o , Calgary, and V a n c o u v e r covering 138 male and female participants from approximately 60 ethnocultural minority backgrounds."  11  T h e Executive S u m m a r y concluded:  O v e r a l l , participants expressed general support for the provisions of the A n t i terrorism A c t , with varying degrees of concern about its application. T h e A c t was generally thought to create a sense of comfort, safety, and increased security. Participants generally assumed that Canada's anti-terrorism legislation was less severe than that of the U n i t e d States and the U n i t e d K i n g d o m . [...] Overall, the majority of focus group participants felt the risk of having the A T A and its new police powers were acceptable to protect the country and its population. M o s t felt safer or the same with the legislation, a n d most hoped their "Minority Views on the Canadian Anti-Terrorism Act (Formerly Bill C-36) A Qualitative Study". See online: <http://www.justice.gc.ca/en/anti_terr/reports.html> (last accessed January 9, 2007). From the Executive Summary, at 1.. 1 0  11  150  reservations w o u l d not be validated. People adopted a "wait-and-see" a p p r o a c h . B o t h of these studies were conducted for the government.  12  Arguably, they are less  'objective' than an assessment conducted by an independent third party.  However, i n  both cases, there are general facts that one can assume to be true: the wider public's ignorance as to the specifics; their acceptance of, acquiescence or indifference to the expansion of state power; and their deference to authority.  Whether this amounts to  p r o o f that members of the C a n a d i a n public accept the expansion of state power and the curtailing of civil liberties i n anti-terrorism legislation as a normal and  acceptable  evolution of the administration of justice is one issue; but clearly it is some indication of where we stand as a nation. W h a t can be inferred from the public's ignorance or indifference? T h i s is a difficult question to answer, but statistics on popular opinions concerning civil liberties after 9/11 in the U n i t e d States can assist us i n extrapolating the potential consequences here.  In a  recent monograph entitled Dark Ages America: the Final Phase of Empire,^ M o r r i s B e r m a n writes: A m e r i c a n hatred of freedom, for example, shows up quite clearly i n the statistics of public attitudes toward the Bill of Rights. A n t h o n y Lewis, who worked as a columnist for the New York Times for thirty-two years, observes that what has happened i n the wake of 9/11 is not just the threatening o f the rights of a few detainees, but the undermining of the very foundation of democracy. Detention without trial, denial of access to attorneys, years of interrogation i n isolation — these are all now standard A m e r i c a n practice, and most Americans don't care. N o r d i d they care about the revelation, i n J u l y 2004 (reported i n Newsweek), that for several months the W h i t e House and the Department of Justice had been discussing the feasibility of canceling the upcoming presidential election i n the event of a possible terrorist attack, w h i c h w o u l d have been a first i n A m e r i c a n history. In a 'State of the First A m e n d m e n t Survey' conducted by the University of Connecticut i n 2003, 34 percent of Americans polled said the First A m e n d m e n t 'goes too far'; 46 percent said there was too m u c h freedom of the press; 28 percent  12  1 3  Ibid, p. 2. Norton: New York, 2006.  151  felt that newspapers should not be able to publish articles without p r i o r approval of the government; 31 percent wanted public protest o f a war to be outlawed during that war; and 50 percent thought the government should have the right to infringe on the religious freedom of 'certain religious groups' i n the name of the war on terror. Quite honestly, we may be only one more terrorist attack away from a police state. 14  T h e r e is certainly a difference between the cultural climate i n the U n i t e d States and that i n C a n a d a . W e were not the direct targets of the terrorism that took place on 9 / 1 1 . A n d Canadians may well hold the Charter of Rights and Freedoms i n m u c h higher regard than Americans do their B i l l of Rights. But the point is that an indifference or ignorance to the importance of rights can, i n times of crisis, lead quite readily to the k i n d of hostility to fundamental freedoms suggested here.  W h e t h e r the changes i n C a n a d i a n law following 9/11 mark a permanent shift i n our perspective on the administration of justice and the rule of law remains to be seen. It will depend on a number of factors, including what might be called our civic literacy — or the degree of understanding among average citizens of the content and value of their rights; the frequency and seriousness of further terrorist activities i n C a n a d a ; trends across other developed nations relating to counter-terrorism; and the actions and views o f our o w n elected officials and judges.  14  O n e can only be patient and hopeful.  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" A r a r C o m m i s s i o n (2006), online: <http: / / www.ararcommission.ca/eng/index. htm>.  156  " A r a r C o m m i s s i o n Policy Review: Integrated N a t i o n a l Security R e v i e w Committee; Further O p t i o n for Public C o m m e n t . " A r a r C o m m i s s i o n (2006), online: http://www.ararcommission.ca/eng/public_consultation_nov25.pdf. "Domestic M o d e l s of Review of Police Forces." A r a r C o m m i s s i o n (2006), online: <http: / / w w w . ararcommission. c a / e n g / i n d e x . h t m > . "International M o d e l s of Review and Oversight of Police Forces and Security Intelligence Agencies." A r a r C o m m i s s i o n (2006), online: <http://www.ararcommission.ca/eng/index.htm>. " M a h a r A r a r ' s Story." Committee of Organizations with Intervenor Status at the A r a r Inquiry, online: <http://www.bccla.org/temp/0505091eafiet.pdf>. " M i n o r i t y Views on the C a n a d i a n A n t i - T e r r o r i s m A c t (Formerly B i l l C-36) A Qualitative Study." Department ofJustice, C a n a d a ; online: <http://www.justice.gc.ca/en/anti_terr/reports. html>. " N a t i o n a l Security: C u r b i n g the Excess to Protect Freedom and D e m o c r a c y . A B r i e f Prepared for the House of C o m m o n s Subcommittee on Public Safety and N a t i o n a l Security and the Senate Special Committee on the Anti-Terrorism Act." British C o l u m b i a C i v i l Liberties Association, October 2005, online: <www.bccla.org/othercontent/curbing%20excess.pdf>. "Police Independence." A r a r C o m m i s s i o n (2006), online: <http: / / www.ararcommission.ca/eng/index.htm>. " T h e R . C . M . P . and N a t i o n a l Security." A r a r Commission (2006), online: <http://www.ararcommission.ca/eng/index.htm>. " T h e R . C . M . P . and N a t i o n a l Security: Supplementary Background Paper." A r a r C o m m i s s i o n (2006), online: <http://www.ararcommission.ca/eng/index.htm>. "Statutory Framework for the R . C . M . P . ' s N a t i o n a l Security Activities." A r a r C o m m i s s i o n (2006), online: <http://www.ararcommission.ca/eng/index.htm>.  Legislation/Agreements: Anti-Terrorism Act, S . C . 2001, c. 41. Anti-terrorism, Crime and Security Act, 2001, Acts of the U . K . Parliament, 2001, c. 24. Canada Evidence Act, R . S . C . 1985, c. C - 5 . Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 ( U . K . ) , 1982, c. 11.  157  Canadian Security Intelligence Service Act, R . S . C . 1985 c. C - 2 3 . Convention for the Protection ofHuman Rights and Fundamental Freedoms, as amended by Protocol No. 11, C o u n c i l o f Europe, R o m e , 4. X I . 1950. Criminal Code, R . S . 1985, c. C - 4 6 . Emergencies Act, S . C . 1988, c. 29 European Convention for the Protection ofHuman Rights and Fundamental Freedoms (1950) 213 U . N . T . S . 221. Extradition Act, R . S . C . 1985, c. E - 2 3 . Geneva Convention Relative to the Treatment of Prisoners of War (1949) C a n . T . S . 1965 N o . 20. Immigration Act, R . S . C . 1985, c. 1-2. Immigration and Refugee Protection Act, S . C . 2001, c-27 Inquiries Act, R . S . , c. 1-13, s. 1. Intelligence Services Act ( U . K . ) , 1994, c. 13. International Covenant on Civil and Political Rights (1966) C a n . T . S . 1976 N o . 47. National Defence Act, R . S . , 1985, c. N - 5 . Prevention of Terrorism Act, 2005, Acts o f the U . K . Parliament, c. 2. Terrorism Act, 2000, Acts of the U . K . Parliament, 2000, c. 11. Uniting and Strengthening America by Providing Appropriate Tools Required To Intercept and Obstruct Terrorism (USA PATRIOT) Act of2001, Pub. L . N o . 107-56, 115 Stat. 272, 276 (2001).  Universal Declaration of Human Rights (1948) G A Res. 217 A (III), U . N . D o c . A / 8 1 0 .  Jurisprudence: A (FC) and Others (FC) v. SSHD, [2004] U K H L 56. Ahaniv. Canada (Minister of Citizenship and Immigration), [2002] 1 S . C . R . 72. Almrei v. Canada (Minister of Citizenship and Immigration), 2005 F C A 54. 158  Canada (Minister of Citizenship and Immigration) v.Jaballah, 1999 F . C J . N o . 1681. Canada (Minister of Citizenship and Immigration) v. Mahjoub, 2004 F C 1028. Charkaoui (Re) 2004 F C A 421. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S . C . R . 817 Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S . C . R . 307. British Columbia v. Imperial Tobacco Canada Ltd., 2005 S C C 49. Hat'mAbu J^ayda v. Israel General Security Service, 38 I . L . M . 1471 (1999). Hamdan v. Rumsfeld, 548 U . S . _  (2006).  Hamdi v. Rumsfeld, 542 U . S . 507 (2004). Harkat v. Canada (Minister of Citizenship and Immigration), [2004] F . C . J . N o . 1104. Hunter v. Southam, (1984) 14 C . C . C . (3) 97. Law v. Canada (Minister of Employment and Immigration), [1999] 1 S . C . R . 497. R. v. Fahim Ahmed et al. R. v. Kliawaja, [2006] C C S . N o . 12212, [2006] O . J . N o . 4245. R. v. Malik and Bagri, 2005 B C S C 350. R. v. Malmo-Levine; R. v. Caine, [2003] 3 S . C . R . 571 Rv. Mills, [1999] 3 S . C . R . 668. R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S . C . R . 606. R. v. O'Connor, [1995] 4 S . C . R . 411. R. v. Oakes, [1986] 1 S . C . R . 103. Rasul v. Bush, 542 U . S . 466 (2004). Re Application Under s. 83.28 of the Criminal Code, [2004] 2 S . C . R . 248. Re B.C. Motor Vehicle Act, [1985] 2 S . C . R . 486. Re Charkaoui, 2005 F C 248.  159  Re: Jaballah, 2005 F C 399. Re Vancouver Sun, [2004] 2 S . C . R . 332. Rodriguez v. British Columbia (Attorney General), [1993] 3 S . C . R . 519. Saygiliv. Canada (Minister of Citizenship & Immigration), (1997) 127 F . T . C . R . 112. Secretary of Statefor the Home Department v. Rehman, [2001] 3 W . L . R . 877. Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S . C . R . 3. United States v. Burns, [2001] 1 S . C . R . 283.  160  Appendix: Bill C-36 at third reading O n November 27 , M r . Michel Bellehumeur (Bcrthier-Montcalm, Bloc Quebecois): th  M r . Speaker, I will be brief. First, as a result of our questions in the Standing Committee on Justice and Human Rights, we have learned that there is no indication at the present time that Canada could be a terrorist target. This is one thing that must not be lost sight of. Also, a scant 72 hours after Bill C-36 was tabled, in this very place I questioned the Minister of Justice on certain provisions of the criminal code. She answered that the criminal code contained everything necessary to fight organized crime effectively. I remember very well that she even ridiculed the Canadian Alliance's desire for antiterrorism legislation. Suddenly, we learn that the Minister of Justice has hurriedly drafted a bill. It is tabled, then rushed through committee. Witnesses told us that they did not even have 48 hours to prepare, to properly study the bill. Then the Standing Committee on Justice and Human Rights sat until three in the morning to study it clause by clause and push it through. The minister tabled amendments on the spot, out of the blue one might say, ones the Liberals had not even seen and which they blindly passed. Today, they are putting a gag on us at the report stage, the 72nd one this government has imposed. M y question is a simple one: given the exceptional nature of this bill, given that individual and collective rights and freedoms are being wiped off the map by the Liberals, regardless of the minister's claimed desire to hear what the taxpayers had to say—which she obviously did not do, nor did she heed the Senate—where is the urgency to once again rush things and not at least listen to what the people's elected representatives have to say on a bill such as this? Hon. Anne McLellan: M r . Speaker, on the hon. member's point in relation to time, let me just remind the hon. member and everyone here that Bill C-36 has had extensive debate in the House of Commons. We had almost 13 hours of debate over a three day period on October 16, 17 and 18, at second reading, including an extension of hours on October 16. The House committee on justice and human rights as well as the special Senate committee on Bill C-36 have thoroughly studied the bill. The House committee heard from over 60 witnesses over a three week period. I think this kind of intensive study by committee is something quite unusual. [...] We are acting to protect the safety and security of Canadians. It is too bad that the opposition could not act with us— A n d later on the 27 , M r . Robert Lanctot (Chateauguay, Bloc Quebecois): th  It is a well-known fact that the Bloc Quebecois voted in favour of the bill at second reading because we were convinced in principle that we had to pass an antiterrorism bill to make our fellow citizens feel more secure. However, we are not fools, and we are not blind. It does not take much imagination to sec the scope of the powers granted under this bill. I am not just talking about the powers of the government in  161  general, but about the powers of ministers, such as the Minister of Justice, the Attorney General of Canada and the Minister of National Defence, who will wield extreme power. This bill was supposed to be an exceptional series of provisions. Beyond the exception, situations must be dealt with. Is there a balance between security and freedom? We worked on amendments to bring some balance to the bill. There is no balance in it. Amendments were put forward. The government put forward several amendments on the first day. The amendments were presented to us. I am a member of the standing committee on justice. The government amendments were presented to us at 4.15 p.m., between 4:15 and 5. Moreover, some were added as we moved along. [...] How can these members say today that they have studied the bill? H o w could they study the amendments? It was impossible except during the proceedings of the committee, which ended at 3 a.m. You should have seen how quickly the vote was taken and how little time wc had to look at each amendment and read it. Some amendments were several lines long and wc only had three to four seconds to read them before we had to vote on material received at 4.15 p.m. We had a binder three to four inches thick full of amendments. How can wc say that the impact of those amendments was considered? Not only arc wc witnessing window dressing but things are being concealed in a bill of great importance. I am very disappointed with the kind of work done in committee. I was sure that through our involvement as members of parliament we would have a say. Wc tried to give these amendments serious consideration. At one time, we were not even discussing the amendments. Those moved by the Bloc Qucbecois, the New Democratic Party or the Progressive Conservative-Democratic Representative Coalition were all rejected. It was a charade. I am disappointed as a citizen, as a lawyer, and most of all as a member of parliament. I thought we were seeking a balance between security and freedom. T o enjoy freedom, however, we must maintain democracy, but this is not the way to build it. What happened on September 11 was definitely a breach of democracy, but wc are doing the same thing here in another way. What message are we sending to the rest of the world? This is but a facade: we keep hearing that ours is a democratic country, but it is completely false. Wc would have liked to have a well thought out legislation that would have provided a balance between security and freedom. However, we are being deprived of any chance to ensure that this bill truly meets the expectations of Quebecers and Canadians. When the government says that Canadians agree with what this bill is trying to do, that is completely false. In order to achieve that kind of balance, first the Minister of Justice would have had to do more than say "I will listen". During oral question period in the House, she said "Yes, I am open to your ideas, I will listen. I will listen to the members, I will listen to the witnesses". More than 60 witnesses appeared before the committee, and it is not true to say that they were listened to. There was so little listening done that not even the Senate was not heard. The Senate put out a report that was not even followed by the government. How are we supposed to take the government seriously? It cannot be taken seriously, and that is a problem. This is not simply about taking the government seriously; it is about our democracy, our institution known as the House of Commons, and the Standing Committee on Justice and Human Rights. This is a complete stalling tactic, because the government is fooling people into believing that there was an opportunity for debate, but the debate took place before the bill was introduced in the House.  162  It gets worse. Yesterday was the first day of the report stage for the bill. After only three hours, notice was given that there would be a gag. Today, we voted on this motion. After only three hours of debate at report stage, a gag was ordered, not only for the report stage but also for third reading. It cannot get any more anti-democratic than that. It is really unbelievable.  163  

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