I. Introduction
The impact of September 11 was eloquently expressed by Mr. Eric Rice, President
of the Canadian Bar Association, in a letter of condolence to U.S. Ambassador
Paul Cellucci.
Freedom, democracy and the rule
of law are tested at moments like these. But we must never allow those who pursue unlawful and violent means to subvert our way of life. 1
The societal values which are reflected in the Canadian Charter of Rights
and Freedoms have not changed; Canadians continue to value those rights and
freedoms which are necessary in a free and democratic society.
The judiciary's role is to protect the rule of law, the Constitution and the
Charter. In the Reference Re Secession of Quebec, the Supreme Court of
Canada underlined that constitutionalism and the rule of law is one of the
fundamental and organizing principles of the Constitution of Canada.
The challenge now confronting the judiciary, indeed the legal community as a
whole, is to achieve a new equilibrium between the dictates of security and our
cherished civil rights and liberties. While September 11 may have shifted the
balance, the protection of those three cornerstones of our society - freedom,
democracy and the rule of law - continue to be the priority of all
judges.
In Suresh v. Canada 2
rendered on January 11, 2002, the Supreme Court of Canada
recognized that Canada has a legitimate and compelling interest in combatting
terrorism. It added, however, that Canada is also committed to fundamental
justice.
In an interview with the Lawyers Weekly on January 2, 2002, Chief Justice
McLachlin said that the task of the law is to find ways to maintain our
freedom, our democracy and the rule of law, while maintaining
security.
The role of the judiciary as "resolver of disputes, interpreter of the law and
defender of the Constitution" 3
remains unchanged in times of crisis. What must change
however, are the tools and resources which judges draw upon when they are
interpreting and applying the law. The events of September 11 and the response
of the world, including the enactment of legislation such as Canada's
Anti-terrorism Act, have created a new environment for judicial
decision-making. Within this new climate judges must adopt a global perspective
in performing their role. The judiciary must be aware of and take into account
the various declarations, resolutions and conventions made by non-adjudicative
bodies with international standing, as well as the decisions of international
tribunals. As recently stated by the Supreme Court of Canada in Suresh v.
Canada, a complete understanding of the legislation under review and the
Charter requires consideration of the international
perspective.
II. The Legislative
Response to the Crisis
In Canada, terrorist activities have always been treated as a criminal offence.
The Criminal Code allows for the investigation of terrorism and the
prosecution of those individuals who have engaged in various specific
activities generally associated with terrorism, including hijacking, murder and
sabotage. Under these laws the government is able to convict terrorists who
actually engage in acts of violence if it is able to identify and apprehend
them once the acts have been committed.
After September 11, the threat posed by terrorism, and the need for countries
to work together and to strengthen their laws was widely recognized and acted
upon. In resolutions passed soon after the events, the United Nations Security
Council and the General Assembly clearly stressed the need for concerted and
multilateral action. 4
The Security Council called upon all States to work together
urgently and to redouble their efforts to prevent and suppress terrorist acts,
including by increased cooperation.
In response to its international obligations, Canada enacted the
Anti-terrorism Act which came into force on December 24, 2001. Prior to
its enactment, Canada had signed all twelve United Nations Conventions and
Protocols relating to terrorism and had ratified ten of them. With the passage
of the Act, Canada ratified the remaining two U.N. Conventions and Protocols;
The Suppression of Terrorist Financing Convention and The Suppression
of Terrorist Bombings Convention.
The Anti-terrorism Act contains provisions aimed at immobilizing and
dismantling the activities of terrorist groups and those who support them. It
creates measures which are designed to identify, prosecute, convict and punish
terrorists before they engage in acts of violence and to that end, provides law
enforcement and national security agencies with new investigative tools to
assist in gathering information about terrorists and terrorist
groups.
The Act amends a number of statutes including the Criminal Code, the
Official Secrets Act, the Canada Evidence Act, the Proceeds of
Crime (Money Laundering Act), the Access to Information Act, the
Canadian Human Rights Act, the Immigration Act, the Canadian
Security Intelligence Service Act, the National Defence Act, and the
Privacy Act, to name but a few. Certificates can be issued under the
Canada Evidence Act, the Access to Information Act, the
Privacy Act and other Acts in order to prohibit disclosure of sensitive
information relating to international relations, national defence or
security.
Various review mechanisms already established under the law apply to the
exercise of powers under the Act. Significant powers under the Act are subject
to judicial supervision and, in some cases, this is in addition to explicit
ministerial review and supervision powers.
The Federal Court of Canada has experience in dealing with sensitive questions
of national security and is eminently suited to meet the challenges arising
from the new legislation.
For example, the Canada Evidence Act gives the Federal Court
jurisdiction to review a decision of the Attorney General of Canada to issue a
certificate which prohibits disclosure of information relating to national
defence or security. 5
Under the Canadian Security Intelligence Service Act 6
an application must be made to the Federal Court for a
warrant to enable the Service to investigate a threat to national
security.
Where a request for information is refused under the Access to Information
Act 7
or the Privacy Act 8
on the grounds of national security, an application may be
made to the Federal Court which has jurisdiction, not simply to review the
decision for correctness, but to compel disclosure of that information where
appropriate.
Under the Immigration and Refugee Protection Act 9
a certificate may issue that a permanent resident or a
foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. Once a certificate is issued, the matter is referred to the Federal Court for determination.
Parliament has recognized this expertise and has selected our Court, a national
court, to judicially review matters of public interest arising under the
Anti-terrorism Act.
For example, the Criminal Code has been amended to allow the Attorney
General to make an ex parte application to a judge of the Federal Court
for an order of forfeiture in respect of property owned or controlled by or on
behalf of a terrorist group. These sections also apply to property that has
been or will be used to facilitate or carry out a terrorist activity. 10
The new Charities Registration (Security Information)
Act allows the Court to review a certificate that a charity is funding
terrorism.
III. The Role of the
Judiciary
In addressing the issues raised by the Anti-terrorism Act, the
judiciary's primary role is, as always, to safeguard the rule of law, the
Constitution and the Charter. The primary tools of the judicial trade
will continue to be the well-established common law principles of natural
justice and the duty of fairness together with the principles of fundamental
justice developed under the Charter.
The principles of natural justice and the duty of fairness which have been
established by the courts through judicial review focus on the pivotal issue of
whether, in all the circumstances, the procedure followed in a particular case
was fair. The open processes and the transparency of decision-making which have
been structured through judicial review are one of the primary safeguards in
achieving an acceptable balance between the country's need for security and its
citizen's human rights and freedoms.
The Charter has proven to be a worthy and distinguished instrument in
preventing government transgression of our civil rights and liberties. Canada's
declaration that the Constitution is our supreme law has replaced the tradition
of Parliamentary democracy with constitutional democracy. It has conferred upon
the courts the responsibility of ensuring that every exercise of state power
can be reconciled with the Charter's guarantee of those freedoms and
rights which are essential for the protection of individual human
dignity.
And it has tested the resolve of the judiciary to make unpopular decisions
according to the law and the evidence regardless of media or public
disapproval. As a result, judgments have sometimes conflicted with public
expectations and controversy has arisen. But controversial decisions are
neither illegitimate nor undemocratic; rather, they are a reflection of
democracy at work. 11
In applying and interpreting the provisions of the
Anti-terrorism Act, judges will continue to hold Parliament accountable
to the high standards embodied in the Charter. Judicial independence
from both government influence and other sources, including public opinion, is
a constitutional right of every individual in Canada.
The interpretation and application of the Act will also require the judiciary
to come to terms with the more frequent introduction of international and
comparative law. The legislative changes brought about by the Anti-terrorism
Act will result in more and more issues coming before Canadian courts
involving international agreements and customary law.
The concept of using international law as guidance in the interpretation of our
domestic laws is certainly not new. The Supreme Court of Canada has accepted
that international law may play a role in interpreting the Constitution,
statutes and even the common law. 12
But the enactment of the Charter, with its many
underlying human rights issues, has engaged the courts more often and more
intensely in the process. Former Justice La Forest has observed that human
rights principles "are applied consistently, with an international vision and
on the basis of international experience. Thus our courts - and many other
national courts - are truly becoming international courts in many areas
involving the rule of law." 13
The Supreme Court of Canada has articulated some important guiding principles.
In Pushpanathan v. Canada 14
, one of the issues before the Court was the interpretation
of the UN Convention Relating to the Status of Refugees. Of significance was
the Court's finding that the purpose and context of the Convention as a whole,
as well as the purpose of the individual provision in question as suggested by
the travaux preparatoires, were to be used as helpful interpretative
guidelines.
In Baker v. Canada 15
the Court held that although Canada has never adopted the
Convention on the Rights of the Child 16
into domestic law, an immigration official exercising
discretion is nevertheless bound to consider the "values" expressed in that
Convention. The majority was of the view that "the values reflected in
international human rights law may help inform the contextual approach to
statutory interpretation and judicial review." 17
The Supreme Court more recently contemplated the impact of international law in
Suresh v. Canada 18
. Although the appeal was heard by the Court prior to
September 11, the decision was rendered subsequent to those events and after
the coming into force of the Anti-terrorism Act. The judgment is
instructional with respect to how international law guides the interpretation
and application of Canadian law. The Court stated:
The issues engage concerns and
values fundamental to Canada and indeed the world. On the one hand stands the
manifest evil of terrorism and the random and arbitrary taking of innocent
lives, rippling out in an ever-widening spiral of loss and fear. Governments,
expressing the will of the governed, need the legal tools to effectively meet
this challenge.
On the other hand stands the
need to ensure that those legal tools do not undermine values that are
fundamental to our democratic society - liberty, the rule of law, and the
principles of fundamental justice - values that lie at the heart of the
Canadian constitutional order and the international instruments that Canada has
signed. In the end, it would by a Pyrrhic victory if terrorism were defeated at
the cost of sacrificing our commitment to those values. Parliaments challenge
is to draft laws that effectively combat terrorism and conform to the
requirements of our Constitution and our international
commitments. 19
In determining whether Parliament has succeeded in meeting this challenge, the
Court held that consideration must be given not only to Canadian experience and
jurisprudence, but also to international law. This takes into account our
international obligations and values as expressed in the various sources of
international human rights law; declarations, covenants, conventions, decisions
of international tribunals and customary norms. A complete understanding of the
legislation under review and the Charter requires reflection on the
international perspective.
In Suresh, the Supreme Court recognized the dilemma facing the judiciary
in bringing to bear international treaty norms which have not been incorporated
into Canadian law by enactment. As the Court points out however, "in seeking
the meaning of the Canadian Constitution, the courts may be informed by
international law. Our concern is not with Canada's international obligations
qua obligations; rather, our concern is with the principles of fundamental
justice. We look to international law as evidence of these principles and not
as controlling in itself." 20
The affirmation of the Supreme Court of Canada in Pushpanathan, Baker
and Suresh that international law has a substantial impact on our
domestic law is timely and welcome. The interpretation of the Anti-terrorism
Act will require judges to be open to the influence of collective
international legal values articulated in a variety of multilateral
instruments. In keeping with global judicial developments, our judgments must
reflect increasing interest and knowledge of international law which may not be
binding but is nevertheless appropriately influential. 21
IV.
Conclusion
The role of the judiciary has not changed since September 11. However, the
environment in which cases are heard and decisions are rendered and the tools
of the judicial trade have taken on a more global perspective. In interpreting
and applying the Anti-terrorism Act, the judiciary will face questions
which are new and unfamiliar and which are characterized by complex social and
moral issues of considerable import to society.
Successfully dealing with this challenge will require a multi-disciplinary
approach. Judges will continue to rely upon the insights and wisdom of members
of the legal community. However, input from a variety of disciplines is
essential. Academics, community and government workers, policy-makers and
social scientists can assist the judiciary in attaining a more complete
perspective. Together, we must strive to achieve the complex and intricate
balance which will foster the growth and development of sound and rational
principles under the new legislation.
1 Letter dated September 12, 2001; www.cba.org
2 2002 SCC 1
3 Beauregard v. Canada, [1986] 2 S.C.R. 56, per Dickson, C.J.
4 UN Security Council: Resolution 1368 (On Threats to International Peace and Security
Caused by Terrorist Acts), S/RES/1368 September 12, 2001 (operative paras. 3, 4 & 5).
U.N. General Assembly: Resolution 56/1 (Condemnation of Terrorist Attacks in the
United States of America), A/RES/56/1 (September 18, 2001).The General Assembly in paras 3
and 4 of Resolution 56/1 urgently called for “international cooperation” to bring to justice the
culprits and “to prevent and eradicate acts of terrorism.”
5 Section 38.13 Canada Evidence Act, R.S.C. 1985, c. C-5
6 R.S.C. 1985, c. C-23.
7 R.S.C. 1985, c. A-1, ss. 41 and 42
8 R.S.C. 1985, c. P-21, ss. 41, 42 and 43
9 S.C. 2001, c. 27, sections 76 -81
10 Section 4 Anti-terrorism Act amending the Criminal Code by adding section 83.13,
83.14 and 83.15
11 The Honourable Justice Rosalie Silberman Abella, The Judicial Role in a Democratic
State, (2001) 26 Queen’s L.J. 573 at 580-1.
12 The Honourable Mr. Justice Michel Bastarache, The Interpretation of Human Rights:
The Challenge, (2001) 50 U.N.B.L.J 3 at pp. 9 - 10. See also Reference Re Public Service
Employee Relations Act (Alta.), [1987] 1 S.C.R. 313 at 349-50, wherein Dickson, C.J.C. states
that the norms of international law “provide a relevant and persuasive source for interpretation of
the provisions of the Charter, especially when they arise out of Canada’s international
obligations under human rights conventions.”
13 G.V. La Forest, “The Expanding Role of the Supreme Court of Canada in International
Law Issue” (1996) 34 Can. Y.B.I.L. 89 at 100.
14 [1998] 1 S.C.R. 982
15 [1999] 2 S.C.R. 817.
16 United Nations Convention on the Rights of the Child, 20 November 1989, 1577
U.N.T.S. 3.
17 Baker, supra note 10, at para. 70.
18 2002 S.C.J.No. 3
19 Ibid., at p. 7 (paras 3 & 4)
20 Ibid., at p. 19 (para. 60)
21 Stephen J. Troope, The Uses of Metaphor: International Law and the Supreme Court
of Canada, (2001) 80 Can. Bar Rev. 534 at 535..
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