Symons Lecture - 2008
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
It is an honour and privilege to have been invited to present the 2008 Symons Lecture on the state of Canadian Confederation.
The phrase “the state of the Canadian Confederation” conjures up a broad-ranging review of where Canada stands as a nation. Where does our confederation stand on relations between the provinces and the federal government? Where does it stand with respect to its First Nations people? Where does it stand in dealing with its increasing diversity? The economy? All of these offer scope for fascinating and useful exploration. But this afternoon, in the spirit of the purpose of these lectures – to celebrate the origins and evolution of Canada as a nation – I propose to focus on a challenge the Canadian Confederation is facing as we speak – the challenge of fighting the scourge of terrorism while still maintaining our civil liberties.
We gather today in a time when the rule of law and civil liberties are under challenge. It is not that we do not value our freedoms – we do. It is rather that we fear – or some may fear – that we can no longer afford those freedoms; that the threats we face are so great that we must, for a time at least, accept their abridgement.
Two decades ago, we could not have imagined ourselves in this situation. The cold war had ended. Freedom and democracy were being restored throughout much of the former communist world. Francis Fukuyama famously declared the “end of history”. Liberties were secure, the future was bright.
Today, we live in a very different world. Seven years ago, on September 11th, two passenger jets crashed into the World Trade Center and a third rammed into the Pentagon. Thousands died. In the ensuing years, Britain has been struck by successive terrorist actions, most notably the London subway bombing of 2005. Canada has been spared such devastating events. But we have searing memories of the Air India bombing 20 years ago, and are told more recent plots have been foiled. The enemy is as real as it is amorphous. It is called terrorism.
Terrorism poses special challenges to democratic states that prize civil liberties. It is the norm, indeed the pride, of such states that citizens are permitted to go about their business unimpeded, so long as they conform to the law. It is also the norm in such states that citizens are accorded a high degree of autonomy and privacy. Yet this very autonomy and privacy may permit terrorists to prepare and execute acts of devastating impact. The question is how we preserve the rights and freedoms that we hold dear, that are our historic birthright and the hallmark of our societies, while preventing acts of terrorism by those in our midst who at once despise these freedoms and exploit them for terrorist ends. The task is not easy.
It is clear that terrorism must be fought. Terrorists seek to achieve their ends by violence. They care nothing for individual liberties or democracy. If we prize our liberties and the history that enshrines them, we cannot let those who seek to destroy these very things prevail. That would be the end of all our vaunted liberties. As Justice Robert Jackson of the United States Supreme Court famously declared, the constitution is not a suicide pact.Footnote 1
It is also clear, however, that it would be equally disastrous to jettison our liberties in the name of fighting terrorism. That way we lose as well. We may combat terrorism, but the terrorists will effectively have deprived us of what we hold most dear – our democratic liberties. As Benjamin Franklin famously pronounced, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”Footnote 2
To lose our liberties is to lose our sense of who we are. Our civil liberties are not accidental accretions borrowed from foreign civilizations. They are deeply rooted in Canada’s own unique history. We cannot deny them without denying our history and ourselves. From time to time in our histories, these values have been challenged. Sometimes, for years at a time, they have been put aside. Yet they have always resurged. They have survived the tests of time, and define what we are – peoples of a free society possessed of rights that can be limited, yes, but only if the state can justify the limitation in terms of the greater public good.
It follows from what I have said that we cannot view the problem in terms of “either-or” – either rights or terrorism. Our only option is to fight terrorism while maintaining our constitutional rights and freedoms to the maximum extent possible. Inevitably, we will be obliged to accept some limitations on our freedoms, as the price of vigilance. But we should not accept wholesale surrender. We should accept only those curtailments that after reasoned examination meet the test of justification.
This lecture will explore how we in Canada can pursue a balanced approach to fighting terror that will preserve our constitutionally protected rights and freedoms. I will begin by discussing the institutions through which we strike the balance between security and preservation of our rights – Parliament, the Executive and the courts. I will move on to discuss the sources of the values and principles that govern where we strike the balance in particular cases – our history; the Charter of Rights and Freedoms, and international legal norms to which Canada has adhered. Finally, applying this law, I will look at how the law has struck this balance with respect to three specific issues – detention, search and seizure, and torture? By the end, I hope you will agree with me that the approach we have developed in Canada to the vexed problem of maintaining civil liberties while fighting terrorism – an approach deeply rooted in our history and our values – is a workable and just approach. It may seem, as former Chief Justice Barak of Israel has said, that democracies fight terrorism with one hand tied behind their back. But as he also asserted, for that very reason, that they are likely to prevail in the end – not only in containing terrorism, but in preserving the liberties peoples of the free world have fought for since the Magna Carta.Footnote 3
B. Our institutions: Who is responsible for what?
The Canadian constitution divides power between three institutions of governance – Parliament, the Executive and the courts. Each of these institutions plays a different but essential role in fighting terrorism.
To Parliament falls the duty of passing laws to combat terrorism. We currently have a number of such laws on our books. The most basic of these laws is the Criminal Code. Most terrorist acts, like killing, kidnapping, extortion or threats and conspiracies to do these things, are also crimes. To deal with the specific threat of terrorism, Parliament has added to this arsenal by passing the Anti-terrorism Act,Footnote 4 legislation that amends the Criminal Code and twenty other statutes. The Public Safety ActFootnote 5 also provides for changes to a broad range of statutes in response to terrorist threats, as well as creating a new statute dealing with biological weapons. Finally, our immigration legislation contains provisions providing for the detention and deportation of landed immigrants and refugees for alleged involvement in terrorist activities.Footnote 6
In drafting, debating and adopting these laws, Parliament has a dual responsibility. Obviously, it must seek to protect Canada from terrorist activities. But because all laws must conform to the Constitution, including the Charter of Rights and Freedoms, Parliament must also consider the impact of these laws on the rights and freedoms of individuals. Parliament is therefore required to ask itself whether the laws and regulations it proposes limit the rights as minimally as reasonably possible and are proportionate in effect.
The Executive is the second branch of governance involved in combating terror. The Executive is the acting arm of government, charged with applying the laws Parliament has passed. The Prime Minister, the Minister of Justice and the Minister of Public Safety, aided by their departments, play important roles at the cabinet level. The police play a vital role, as does CSIS. Finally, Immigration Boards are involved in determining the status of landed immigrants and refugee claimants who are alleged to have terrorist ties. In the course of discharging their functions, these individuals and institutions make decisions that impact on the rights and liberties of individuals. It is their duty to do so in a manner that respects the Charter rights of these individuals. They may also be required to take into account Canada’s binding international human rights obligations.Footnote 7 Like Parliament, the Executive branch of government is required to constantly gauge whether the limits it is imposing on a particular person’s rights are justified and constitutional under the Charter and international law norms.
The third branch of governance involved in efforts to combat terrorism is the judicial branch – the courts. The courts do not initiate legislation, nor do they actively enforce it in the field. The courts’ role is to resolve disputes between the state and affected individuals and to answer questions that may arise as to the constitutionality of laws or executive acts. Courts review the balance that Parliament or the executive has struck between rights on the one hand and fighting terrorism on the other, according due deference to the fact that Parliament or the executive may be better positioned than judges to determine precisely where the balance should be struck in a particular case. Nevertheless, the state bears the burden under the constitution of justifying intrusions on guaranteed rights, and if the state fails to provide this justification, the court is required to so hold. In the case of noncompliant laws, the court makes a declaration on the respects in which they fail to comply with the Charter, and the law is null and void to that extent under section 52 of the Charter. In the case of unconstitutional executive actions, the remedy may lie under section 24 of the Charter or, in some cases, by way of administrative review.
It is important to realize that a court’s decision on whether a particular law conforms to the constitution is usually not the final word on the matter. The court sets out in what respects the law falls short of the constitutional norm. The government may then introduce a new law to remedy these deficiencies. This is what happened, for example, when the Supreme Court of Canada ruled unconstitutional aspects of the Immigration Act’s provisions dealing with permanent residents and refugees alleged to have terrorist ties. The Court deferred its declaration for a year, during which Parliament enacted a new law addressing the deficiencies noted by the Court.Footnote 8
This, in brief outline, is a description of the branches of governance and how they engage in issues involving the clash between individual rights and freedoms and measures aimed at combating terrorism. The task of maintaining the balance between fighting terrorism and conserving our rights and freedoms is shared amongst the three branches of democratic governance – Parliament, the executive and the courts. Each has a critical role to play.
Sometimes the decisions of one branch of governance will find themselves in tension with those of another branch. This tension is not to be condemned, but welcomed. It is our best assurance that we will do what is necessary to fight terrorism, without unnecessarily curtailing our democratic and civil liberties. The genius of democracy – our great advantage – lies in the division of power between Parliament, the executive and the judiciary that I have just described. In Canada, as in the United States, Great Britain and other liberal democracies, legislatures, executives and courts have been engaged in a dialogue about what intrusions on liberties are justifiable in the goal of fighting terrorism.
C. The values that govern the balance
The values and principles that guide our institutions of governance in striking the balance between fighting terrorism and preserving the fundamental liberties of a free society are derived from three sources: (1) Canadian history; (2) the Charter of Rights and Freedoms; and (3) international norms to which Canada has subscribed. All three sources combine to produce an approach that starts with the primacy of rights and liberties, permits the state to impose limits, but only where and to the extent that the state can justify these limits as reasonable in a free and democratic society. By putting the burden on the government to justify infringements on rights in the name of the broader public good, Canadian law palliates the ever-present danger that rights and liberties will be eroded in the name of fighting terrorism.
1. Canada’s History: The Ethos of Justification
Canada has a complex history – much more complex than we sometimes assume. Our notion of ourselves, and hence of our rights and freedoms, is built on the ideas and actions of three principle groups – the Aboriginal peoples who lived here when Europeans first came and who pursue their values here to this day; the French settlers who came from France to settle in what is now the Maritimes and the valley of the St. Lawrence; and a mixed collection of mainly English-speaking peoples who arrived from Europe or from south of the border after the American War of Revolution – English, Scots, Irish, Germans and many others. But this catalogue of our make-up belies the enormous complexity of our country. Our Aboriginal peoples are made up of countless nations speaking over sixty different languages. The French settlers came from different parts of France in repeated waves and intermarried with Aboriginals to produce both the Métis nation and diversity among those who called themselves "pure laine". John Ralston Saul in his most recent book, A Fair Country asserts that "[a]nyone whose family arrived before the 1760's is probably part Aboriginal".Footnote 9 The European settlers included French, Scots, Germans and peoples from a host of mid-European countries. The Loyalists who came in the late 1700's were diverse too. And overlain on this motley base have been wave after wave of settlers from all over the globe. In short, Canada is one of the most complicated, diverse countries the world has ever produced.
Dealing with this diversity has taught us that our particular way forward is to respect and accept diversity, to learn from each other, and to negotiate compromises when our interests conflict. We have made many mistakes to be sure. The mistakes of failing to recognize and respect the rights of Aboriginal citizens. The mistakes of internment of members of races deemed to be enemy aliens in the Second World War. The mistakes of failing to fully respect the linguistic and cultural rights of Canadians of French ancestry.
Looking back, we realize that when we have made mistakes, it has been because we failed to respect the differences among us, and imposed black-and-white solutions on complex situations that impaired rights without asking whether the degree of the impairment was really necessary and justified. Today, we are struggling to resolve Aboriginal land claims and our government, on behalf of the people of Canada, has offered an official apology for enforced residential schooling. We have offered official apologies to groups interned in World War II. We have moved to full and respectful acceptance of equal linguistic and cultural rights for Franco-Canadians. We have learned that the only way forward is through respect, always, and compromise, when necessary.
Our history of diversity has produced a legal structure that expresses the need to balance conflicting interests. From Britain we inherited the rule of law and respect for the civil liberties of every citizen – a respect that can be traced to the Magna Carta. From France we took the notions of "liberté, égalité et fraternité". Liberty, the right to choose. Equality, the basic entitlement of every citizen. Fraternity, with its connotation of accommodation and group rights. From our Aboriginal roots came the idea of justice through negotiation and consensus – the closest Cree word to "justice" is "talking".Footnote 10 Mid-century European ideas of proportionality, balance and minimal impairment of rights resonated with the already established Canadian tradition of strong recognition of rights coupled with a flexible approach that allowed them to be limited if the state can justify this in the broader public interest. And so they too became part of our approach to the fundamental freedoms of our citizens.Footnote 11
2. The Charter
Our Charter and the balance it dictates between the exercise of rights and broader public goals like fighting terrorism is the product of our history of constant compromise and negotiation between conflicting ideas and groups. It reflects our understanding that solutions to our problems must be based on acceptance of diversity and accommodation, and that the public good must be allowed to limit the enjoyment of individual rights only where justified. The result is a legal instrument that allows us to shape solutions that strike a fair balance between the enjoyment of individual liberty and the war on terrorism.
We are all familiar with the basic rights and freedoms guaranteed by the Canadian Charter. Those most typically engaged by the fight against terrorism are the section 7 guarantee of liberty, the section 8 guarantee against unreasonable search and seizure, the guarantees against arbitrary detention in sections 9 and 10, and the guarantees of a fair trial found in sections 11 to 13.
We may be less familiar with the mechanism by which the Charter seeks to resolve the tension between the individual rights it guarantees and broader public interests that may justify limiting individual rights and freedoms in particular cases. Early bills of rights, such as the American Bill of Rights, contain no explicit provision for limiting the rights they guarantee. The rights are cast in broad terms – for example, the First Amendment’s right to peaceable assembly – and the document contains no provision for limiting those rights. Of course, the individual exercise of rights and freedoms is continually clashing with the broader public interest. The unlimited exercise of individual rights would lead to injury to the public weal and to the exercise by other individuals and groups of conflicting rights. The absence of a provision for limiting individual rights meant that the U.S. Supreme Court has been forced to develop internal limitations on rights.
By contrast, more modern bills of rights give express guidance as to how the balance between individual rights and the broader public interest should be struck. Canada, with its history of negotiated compromise and its embrace of the ethos of justification, has embraced this approach and used it as the foundation for its principal rights document, the Charter of Rights and Freedoms.
Section 1 of the Canadian Charter is such a provision. It provides:
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.
The single big idea driving section 1 is that limits on rights must be justified as proportionate. Proportionality means a fair and justified balance between the exercise of a guaranteed right and a broader conflicting public goal.
Section 1 makes it clear that the starting point of the balancing exercise in a particular case is the right. The right is a given. It is guaranteed by the Charter. It stands as the unshakeable, although not final, point of departure. The burden then shifts to the government to justify the limit on the right as a reasonable limit in a free and democratic society. To discharge this burden, the government must show that the limit is a “reasonable limit ”, a limit that is “justified in a free and democratic society”. This language tells us two things. First, the limitation on the right must be reasonable. In other words, it must be capable of reasoned justification. The reasoning involved must take into account both the importance of the right and the importance of the public goal that purports to limit it. Second, the limit must be justified in the context of a free and democratic society. In other words, the balance finally struck must be consistent with life in a free, democratic society. The Charter forbids any concession to the arbitrary or authoritarian. It demands a reasoned and constant adherence to liberty and democracy, no matter what our fears or how menacing the threat.
The Supreme Court of Canada, taking up ideas pioneered by the German constitutional court in the 1950s and honed by later European courts, fleshed out these ideas in the form of a three-part proportionality test in the Oakes case.Footnote 12 The government must first establish that the legislative measures are rationally connected to a public goal that is “pressing and substantial”. This means that the infringement of rights can be justified only where the public interest advanced is truly important. Second, the government must show that the law that limits the right does not go further than necessary to accomplish the public goal – the test of minimal impairment. Third, it must show that with respect to its effects the law is proportionate, striking a fair balance between the impairment of the exercise of the right and the public good it is likely to achieve.Footnote 13
3. International Human Rights Norms
I have spoken of Canadian history and the Canadian Charter of Rights and Freedoms as sources of values and principles that inform the balance we stake between fighting terrorism and maintaining our liberties. The third source of values and principles that inform the balance between the fight against terrorism and fundamental liberties are international human rights norms that Canada has endorsed. The endorsement of these norms, like our Charter, may be seen as the result of our complex history and our embrace of the need to respect each other.
It should therefore come as no surprise to learn that Canada and Canadians have played a seminal role in the development of international human rights norms. The United Nations Universal Declaration of Human Rights was drafted by a Canadian, John Humphrey. Canada has endorsed this document and many other international human rights documents, including the Geneva Convention Relative to the Treatment of Prisoners of War, the International Covenant on Civil and Political Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention relating to the Status of Refugees, the Convention against torture and other, cruel, inhumane or degrading treatment or punishment, and the Convention on the rights of the child. Many of the provisions of these documents are relevant to efforts to combat terrorism and deal with people suspected of terrorist ties.
The Supreme Court of Canada has held that even when the protections in these documents have not been enacted into Canadian law they may be taken into account in interpreting and applying Canadian laws and regulations.Footnote 14 In Baker, for example, the Court held that in deciding whether to deport a mother, Canada’s subscription to the Convention on the Rights of the Child required the tribunal making the decision on deportation to consider the effect of deportation on the woman’s children, who would remain in Canada.
International norms to which Canada has subscribed have played an important role in Charter interpretation. The Charter, like all constitutional bills of rights, is cast in broad language. Its guarantees are cast in general terms like “freedom of religion”, “freedom of expression”, “liberty”, freedom from “unreasonable search and seizure”, and “cruel and unusual punishment”. It is the task of the courts to decide whether a particular situation falls within these phrases. The answer depends on how broadly or narrowly the court construes the guarantee. How is the court to make this decision? Courts do not simply pull the answer out of the air. One of the sources that may aid in interpreting the Charter’s broadly cast rights are the protocols and conventions to which Canada has subscribed. For example, in Suresh,Footnote 15 where the issue was whether the Charter guarantees of liberty and freedom from cruel and unusual punishment prohibited deportation to a country where there was risk that the deportee would be tortured, the Supreme Court of Canada relied on principles of international law to support its conclusion that as a general rule, the Charter would not permit deportation to torture. The Supreme Court again relied on international law principles in Burns,Footnote 16 where the issue was whether the Charter permitted the extradition of Canadian citizens wanted on charges of murder in the United States to a state where conviction would attract the death penalty. The Court concluded that extradition to face the death penalty amounted to cruel and unusual punishment and was contrary to the Charter.
It is thus clear that in judging the constitutionality of laws and reviewing governmental acts within Canada, international norms to which Canada has subscribed may affect the duties of government decision makers. They may also be relevant to the duties of government agents operating abroad, insofar as they affect Canadian citizens whose liberty is at stake.Footnote 17
D. How Canada has struck the balance: A look at what we have done
I have been discussing the values and principles that guide Parliament, the Executive and the courts in drawing the difficult lines between maintaining security and preserving the rights and liberties of Canadians. These principles, based on the need to justify limits on rights, provide the roadmap that helps us decide where – and how far -- to go in a particular case. But just as the proof of the pudding is in eating, so the test of constitutional norms are in their application. So we must look at the actual decisions our institutions of governance have made in the fight against terrorism and assess them by the standard of the principles we profess.
In the remainder of this lecture, I will consider how the balance between rights and combating terrorism has been struck in three areas – detention, search and seizure and torture.
It is a fundamental principle in a free and democratic state that the state should not confine or imprison individuals without lawful justification. This principle is the most fundamental expression of the basic liberty that the law accords to every person. It is an old principle; the ancient writ of habeas corpus is grounded in it. If a person is detained, he or she is entitled to prompt review by a judge and, if the state cannot show good reason for the detention, to be released.
The issue of preventive detention is the one that most often comes up in the context of terrorism. The law has always frowned on the idea of detaining a person on the basis, not of past criminal conduct, but on mere suspicion that in the future the person may commit criminal acts. Canadian criminal law has permitted this in a few exceptional cases, as, for example, where it is established that an individual is at risk of posing harm to herself or others by reason of mental illness or having been found to be a dangerous offender.
In the public sphere, detention has sometimes taken on a different colour. In the Second World War, Canada and the United States detained entire communities of Japanese people, but this episode is now regarded as a shameful blot on both nations’ histories. Again, in the 1970's, the government imposed the War Measures ActFootnote 18 in the Province of Quebec, under which many people were held in preventive detention. The mention of these measures still provokes controversy. History and the law teach us that in times of crisis and fear, states are apt to resort to preventive detention. They also teach that sometimes states overreact, and that preventive detention is a dangerous tool that must be closely guarded.
The fear of terrorism has once more confronted us with the demand for preventive detention. Canada, Great Britain and the United States have enacted special laws and regulations to permit preventive detention related to terrorism. These have come before the courts. The courts have been asked to rule whether the laws are constitutional. Also, courts have been brought in as part of the scheme to vet the propriety of particular detentions.
The Immigration and Refugee Protection ActFootnote 19 creates a scheme for detention and deportation of non-citizens certified to be inadmissible to Canada on grounds of national security. Last year, in CharkaouiFootnote 20, the Supreme Court of Canada held that aspects of the procedure for review of security certificates did not comply with the Charter. The law failed to provide a fair hearing because it allowed the government to base its case on secret evidence and summaries of evidence – evidence that could be withheld from the accused person on grounds that to disclose it to him or his lawyer would threaten security or violate conditions imposed on disclosure by foreign countries who shared the evidence. This is one of the conundrums of fighting terrorism while maintaining rights. Some evidence cannot be disclosed without compromising security or information-sharing arrangements necessary to fight security. Yet if the detained person cannot see the case against him, it may become impossible to rebut allegations that may, in fact, be unsound.
The Supreme Court of Canada recognized that Canadian security required that in some circumstances, evidence must be withheld from the detained person. However, applying the principle of minimum impairment, it also held that the security certificate legislation intruded too far on the right of a detainee to know the case against him or her. It held that the law failed to provide for a fair hearing because it did not ensure that all relevant facts would be put before the reviewing judge, nor did it give the detained person a meaningful opportunity to respond. And it pointed to other measures that could have been taken to intrude more minimally on the fair trial right, such as the use of special advocates to review the evidence. Canada had pioneered the use of special advocates long before 9/11 in the context of CSIS hearings. Subsequently, in the context of the fight against terrorism, the United Kingdom introduced this measure. The Supreme Court in Charkaoui suggested that measures such as this would strike a less intrusive balance between civil liberties and security concerns. Parliament responded by amending the legislation to provide an independent perspective on the evidence against the detained person through the use of special advocates.
Other democracies are grappling with the same issues. In the UK, following on a decision by the House of Lords that held that indefinite detention of foreign nationals without charge or trial was unjustifiably discriminatory,Footnote 21 Parliament passed the Prevention of Terrorism Act 2005,Footnote 22 which authorized use of a “control order” to impose house arrest with conditions or to prevent a citizen or foreign national from leaving the United Kingdom. The U.K. courts have confirmed that these control orders are subject to judicial review for fairness, that the person detained is entitled to disclosure of sensitive information,Footnote 23 and that only a court can make a control order whose conditions are so severe as to amount to a deprivation of liberty under article 5 of the European Convention.Footnote 24
The bottom line in Great Britain and Canada is that there must be meaningful judicial review.Footnote 25 The risk of affecting an innocent person’s liberty is high, and the risk of erroneous release can often be reduced by conditions.
Courts in the United States have wrestled with a more fundamental issue whether courts have jurisdiction even to review detentions. The U.S. administration took the position that by detaining prisoners in Guantánamo Bay, outside the United States, it deprived the courts of any power to review what there took place. Following a series of cases by the U.S. Supreme Court that upheld the right of foreign national enemy combatants at Guantánamo Bay to challenge their detention,Footnote 26 Congress passed the Military Commissions Act of 2006, which purported to remove the federal court’s jurisdiction to review habeas corpus claims. In June of this year, in the Boumedienne case, the U.S. Supreme Court found this provision unconstitutional, affirming that Congress cannot oust judicial review and that Guantanamo Bay is not beyond the reach of the law.Footnote 27
Preventive detention in the context of combating terrorism raises a number of problems. How much proof is a detained individual entitled to? What form of proof is required? What information must be disclosed to the detained person to permit him or her to know the grounds of detention and answer them? When, in the context of an off-shore facility such as Guantánamo Bay, is judicial review available? What happens when temporary preventive detention may become permanent in effect because no country is willing to receive the person, or there is a risk that the receiving country will torture the detainee upon arrival?Footnote 28 Finally, what of the practice known in the U.S. as rendition – sending a suspect to a foreign country for interrogation that may involve long confinement and torture? The issue of Canadian participation in rendition and detention abroad has been usefully examined by the Arar Commission and the Iacobucci Commission. The conclusions of these Commissions attest to Canada’s commitment to striking a justifiable balance between the need to combat terrorism and respect for individual rights.
2. Search and Seizure
Like the right not to be arbitrarily detained, the right not to be subjected to search and seizure is ancient and fundamental. The common law thus implicitly recognizes a right to privacy. For the state to search a person’s premises, monitor her telephone conversations or computer, or seize her goods, a judge must first give authorization. This is the basic norm of the criminal law in common law countries.
The war against terror has had a major impact on the privacy rights of ordinary citizens. We routinely accept to be searched at airports, and if the custodian chooses to confiscate our cosmetics or shaving cream, we part with them without demur. We accept this as the price we must pay for the assurance of greater security when we travel. In London, street cameras photograph passers-by on every corner, and no one seems to mind. If this is necessary to be secure against attack, so be it.
Preventing terrorist attacks, however, may require more, at least in the view of those charged with keeping our streets, cities and transportation routes safe. The criminal law traditionally seeks to attribute responsibility and punishment after a crime has been committed. The enormity of the harm that can result from a terrorist act is leading government authorities increasingly to use measures designed to intercept criminal terrorist acts before they occur. This is necessary. We must prevent loss of life and injury. Moreover, those who commit terrorist acts are typically not deterred by the possibility of after-the-fact punishment. The traditional criminal law approach must be adapted to the unique realities of terrorism.
At the same time, we must ensure that intrusion on the private lives of citizens is not disproportionate to what is really required. As the Stasi regime of East Germany demonstrated – recently dramatically relived in the film The Lives of Others – information about what people are doing in the privacy of their homes and offices can be misused to devastating effect. Most of us do not want to live in a country where Big Brother watches our every act or monitors our every association.
Those responsible for security in democratic countries do not want this either. They want only as much information as is required to prevent terrorist acts. But there is a practical problem. It is difficult, perhaps impossible, to know in advance what information may prove relevant. So the inexorable tendency is to overreach, to seek more information than is necessary.
Traditionally, the common law has required individualized suspicion and probable grounds to believe an offence has been committed before a search can be made of a person’s body, property or communications. One view is that if this standard is to be changed, it is for Parliament to do so. However, the courts in Canada have held in recent times that in situations of imminent risk, individualized reasonable and probable grounds are not required.Footnote 29 In R. v. ClaytonFootnote 30 this was applied to condone the stopping of vehicles in the absence of individualized suspicion outside a club where firearms had been reported to have been brandished. Courts in the United States have gone so far as to uphold a roadblock set up by police to stop cars so that the drivers could be asked about a hit-and-run accident, for the purpose of apprehending the offender elsewhere.Footnote 31
Neither the Canadian Parliament nor Canadian courts have crafted special rules for search and seizure to meet the threat of terrorism, as has been in the U.S. and the U.K. In the U.S., emergency wiretap regulations have been introduced for the purpose of obtaining information that may be relevant to planned terrorist attacks.Footnote 32 In the United Kingdom, where police reasonably believe an incident of serious violence may take place in a particular area, the police may stop and search persons or vehicles in the area for a period not exceeding 24 hours, “whether or not [the officer] has any grounds for suspecting that the person or vehicle is carrying weapons or [dangerous instruments]”.Footnote 33 Canada, while recognizing the need for some flexibility, has not found it necessary to adopt such sweeping measures.
At common law, evidence obtained by torture is inadmissible in court on the basis that such evidence would not be voluntarily given by the individual. The concern behind admitting evidence obtained by torture rests on concerns about fairness to the individual, and on concerns about the reliability of evidence obtained by torture.
International treaty supports this position. Canada, the U.S. and the U.K. are all parties to the U.N. Convention against torture and other cruel, inhuman or degrading treatment or punishment. The Convention against torture provides, inter alia, that parties to the convention shall take legislative, administrative and judicial measures to prevent torture within their jurisdiction, and shall not send or extradite a person to a state where there are substantial grounds for believing that he or she would be in danger of being subjected to torture.Footnote 34
In SureshFootnote 35, the Supreme Court held that deportation of a person to a state where there is a substantial risk the person will face torture violates s. 7 of the Charter. The Court left open the possibility that in “exceptional circumstances” deportation to face torture may be justified. However, what would constitute “exceptional circumstances” has not been addressed by the courts, and would necessarily be very rare.
The recent decision of the Supreme Court of Canada in Khadr,Footnote 36while not directly raising the issue of torture, sheds light on how violative interrogation procedures may play out. In 2002 , Khadr, A Canadian citizen aged 15, was arrested in Afghanistan by the U.S. and charged with murdering a U.S. soldier. He was taken to Guantánamo Bay, where he has been incarcerated ever since awaiting trial, which is scheduled to begin in the new year. Khadr was interrogated repeatedly and at length in circumstances that appear to have involved “softening up”. One interrogation was conducted by CSIS. Noting that the United States Supreme Court itself had ruled that the regime in Guantánamo Bay violated international and American norms of justice, the Supreme Court of Canada ordered Canadian authorities to disclose the content of the interview and related documentation to Mr. Khadr. Among these documents was a video of the interrogation that has been made public.
The law in the United Kingdom rejects torture. In Chahal v. United Kingdom,Footnote 37 the European Court rejected the argument of the U.K. government that it should be permitted to deport to a state where there is a risk of torture if the individual poses a threat to national security. In A and Others v. Secretary of State for the Home Department,Footnote 38 the House of Lords held that evidence obtained by torture is not admissible.
In the United States, discussion of the use of torture arose in the context of executive and military action in the war on terror. In the wake of the Abu Ghraib scandal, it emerged that the executive branch of government had used a very restrictive definition of what constitutes torture in order to broaden permissible range of interrogation methods.Footnote 39
New legislation was enacted by Congress in 2006. The Military Commissions Act of 2006, reinforced by an Executive Order issued July 20, 2007,Footnote 40 prohibits the use of torture against detainees and excludes evidence obtained by torture from proceedings. However, the Act permits admission of evidence obtained by cruel, inhuman or degrading treatment in some instances.Footnote 41 Critics have argued that the Executive Order contains loopholes that would still permit torture, and recent reports suggest that the Executive branch is failing to apply the law and prevent torture.Footnote 42
Those who argue in favour of permitting the use of torture in extreme circumstances often cast the argument in very stark terms – would you torture a person to prevent a city being destroyed by a nuclear attack? But examples such as this pose an artificial dilemma. The reality is that decisions to use torture are typically made in much more mundane circumstances. And history has shown that use of physically or mentally abusive methods of interrogation may produce unreliable information and are subject to overreach and abuse. This is the real face of torture, and why democratic societies generally do not condone it.
Canada, the United States, Britain – indeed all democratic societies – are struggling with how to balance the concern for national security against the need to protect basic rights and liberties. While the laws and mechanisms at play in the three societies differ, all three have affirmed that the fear of terrorism does not excuse governments from complying with the rights of affected persons.
Canada has developed its own unique approach, based on its history, its Charter and its respect for international norms of justice. It is an approach founded on the primacy of rights and an insistence that those rights can be limited only where the state – and the burden always is on the state – can justify those limits. We recognize the gravity of the threat of terrorism and the need to combat it with vigilance. But we also recognize that intrusions on rights must be justified as minimally impairing the rights and proportionate in effect. We in Canada are fortunate to possess the Charter of Rights and Freedoms, which articulates that the balance between fighting terrorism and maintaining rights must be struck through a process based on minimal impairment of rights and proportionality of impact - a process grounded in Canadian history and the values of respect for rights that Canada’s history has produced.
Terrorism is far from conquered; the road ahead will not be easy. But if we follow the path of balance and justification charted by our most fundamental law, I for one believe we will not go far wrong.
- Footnote 1
Terminiello v. City of Chicago, 337 U.S. 1 at 37 (1949), dissenting.
- Footnote 2
Benjamin Franklin, Contribution to the Constitutional Conference, February 17, 1775.
- Footnote 3
HCJ 5100/94, The Public Committee Against Torture in Israel & The State of Israel at 37.
- Footnote 4
S.C. 2001, c. 4, ss. 2 - 23.1.
- Footnote 5
S.C. 2004, c. 15.
- Footnote 6
Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 34, 35, 44-61, as am. by S.C. 2008, c. 3.
- Footnote 7
Canada (Justice) v. Khadr, 2008 SCC 28,  2 S.C.R. 125.
- Footnote 8
Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9,  1 S.C.R. 350.
- Footnote 9
(Toronto: Penguin, 2008) at 8.
- Footnote 10
Saul, ibid. at 66.
- Footnote 11
Proportionality, balance, and minimal impairment are the cornerstones of the Oakes test (R. v. Oakes,  1 S.C.R 103 at 138-140). Although documentary evidence of the precise origins of the Oakes test is scarce, it is highly likely that jurisprudence from the European Court of Human Rights played an important role. See Robert J. Sharpe & Kent Roach, Brian Dickson: A Judge's Journey (Toronto: University of Toronto Press, 2003) at 334. The European Court of Human Rights is widely held to have been influenced by the German Constitutional Court in its writings on proportionality. See Georg Nolte, "General Principles of German and European Administrative Law - A Comparison in Historical Perspective" (1994) 54 Mod. L. Rev. 191.
- Footnote 12
See supra note 9. The modern origins of proportionality can arguably be traced to, in the German context, the Pharmacy Case (7 BVerfGE 377 (1958)) and, in the European Court of Human Rights, Handyside v. The United Kingdom (1976) 24 Eur. Ct. H.R. (Ser. A) 23 at para. 49. For a discussion on the relationship to the German proportionality and the Oakes test, see Dieter Grimm, "Proportionality in Canadian and German Constitutional Jurisprudence" (2007) 57 U.T.L.J. 383.
- Footnote 13
The Charter clearly applies to laws and government actions within Canada. It is now clear that in some cases the Charter may affect the duties of government agents operating abroad. Generally, the Charter does not apply to acts in a foreign state, because those acts are governed by the law of the foreign state, which Canada recognizes because of a principle of international law called comity. However, comity requires deference to foreign laws only to the point at which those laws violate international human rights or other international legal obligations binding on Canada. R. v. Hape, 2007 SCC 26,  2 S.C.R. 292. Thus in Khadr, supra note 5, the Supreme Court held that Mr. Khadr, a Canadian citizen being held in Guantánamo Bay, had rights under the Charter because, as recognized by the United States Supreme Court itself (in Hamdan v. Rumsfeld, 548 U.S. 557 (2006)), the regime at Guantánamo Bay violated international human rights norms. Accordingly, Mr. Khadr was held entitled to see transcripts of interviews with him, conducted by members of CSIS in Guantánamo Bay.
- Footnote 14
Baker v. Canada (Ministry of Citizenship and Immigration),  2 S.C.R. 817 at para. 70.
- Footnote 15
Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1,  1 S.C.R. 3.
- Footnote 16
United States v. Burns, 2001 SCC 7,  1 S.C.R. 283
- Footnote 17
See Khadr, supra.
- Footnote 18
R.S.C. 1970, c. W-2.
- Footnote 19
R.S.C. 2001, c. 27.
- Footnote 20
 1 S.C.R. 350.
- Footnote 21
A v. Secretary of State for the Home Department, UKHL 56 (Discrimination was found considering that the government did not find it necessary to detain suspects who were U.K. citizens, nor to prevent foreign nationals from leaving the country. The House of Lords affirmed the role of the courts in reviewing detention in order to protect rights guaranteed under the European Convention on Human Rights and Fundamental Freedoms).
- Footnote 22
(U.K.), 2005, c. 2.
- Footnote 23
Secretary of State for the Home Department v. M.B.; Secretary of State for the Home Department v. A.F.,  UKHL 46.
- Footnote 24
Secretary of State for the Home Department v. J.J.,  UKHL 45.
- Footnote 25
Charkaoui, supra; Re A, supra
- Footnote 26
Rasul v. Bush, 542 U.S. 466 (2004). See also Hamdan v. Rumsfeld, supra (President possesses no inherent power as Commander-in-Chief of the Armed Forces to set up military commissions that would preclude a non-citizen’s right to have detention judicially reviewed). Cf. Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (U.S.-citizen enemy combatants detained within the U.S. have a right to challenge their detention by presenting or rebutting facts before the courts).
- Footnote 27
Boumediene v. United States; Al Odah v. United States, 128 S. Ct. 2229 (2008).
- Footnote 28
The United Kingdom has adopted the practice of entering into accords with countries committing them not to torture the deportee upon return. However, many question the value of such accords in the absence of ability to monitor compliance in the foreign country. See e.g. Human Rights Watch, “UK: Torture a Risk in Libya Deportation Accord”, Human Rights Watch.
- Footnote 29
R. v. Mann, 2004 SCC 52,  3 S.C.R. 59.
- Footnote 30
2007 SCC 32,  2 S.C.R. 725.
- Footnote 31
Illinois v. Lidster,540 U.S. 419 (2004).
- Footnote 32
The Foreign Intelligence Surveillance Act (50 U.S.C. §§1801-1863 (2000 & Supp. IV 2004) provides for a special court to consider wiretap requests in terrorism and spying cases, which may issue a warrant on probable cause that an individual is an agent of a “foreign power”, and provides that no warrant is necessary where the Attorney General certifies that the surveillance is solely directed at communications involving foreigners, and that in emergency situations no warrant is required, subject to retroactive authorization within 72 hours (§§ 1805, 1802). In Canada, the Criminal Code also exceptionally permits wiretaps without prior judicial authorization, in circumstances of urgency, where the wiretap is immediately necessary to prevent an unlawful act that would cause serious harm to any person or property: Criminal Code of Canada, s. 184.4. Probable cause is still required.
- Footnote 33
Criminal Justice and Public Order Act 1994 (U.K), 1994, c. 33, s. 60(5)
- Footnote 34
10 December 1984, 1465 U.N.T.S. 85, arts. 2, 3 (entered into force 26 June 1987) [Convention against torture].
- Footnote 35
 1 S.C.R. 3.
- Footnote 36
Supra note 5.
- Footnote 37
(1996) 23 EHRR 413
- Footnote 38
 UKHL 71
- Footnote 39
See Mike Allen & Dana Priest, “Memo on Torture Draws Focus to Bush” (9 June 2004) Washington Post A03.
- Footnote 40
- Footnote 41
120 Stat. 2600 at 2607, § 948r.
- Footnote 42
See e.g. David Cole, “Bush’s torture ban is full of loopholes” (23 July 2007);
Amnesty International, “United States of America: Military Commissions Act of 2006 – Turning bad policy into bad law”.
Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada
Symons Lecture - 2008
Charlottetown, Prince Edward Island
October 21, 2008
- Date modified: