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ARCHIVED The Role of the Judiciary in Times of Crisis

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by Chief Justice John D. Richard
Federal Court of Canada
September 2002, Ottawa

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