Security crackdown a threat to rights, legal experts warn
By KIRK MAKIN, The Globe and Mail
Monday, September 24, 2001
JUSTICE REPORTER -- The threat of terrorism promises to be a powerful tool for governments hoping to justify Charter of Rights violations in the name of national security, legal experts say.
Breaches that not long ago would have been considered intolerable may soon pass judicial muster, they say, while coercive laws or police procedures that have been struck down could be revived.
"This is something a lot of us are worried about," said University of Ottawa law professor David Paciocco. "The courts are going to be very, very receptive to claims of security interests. We can expect some abridgments of the civil rights we took for granted not long ago."
Virtually any security measure or rights limitation the government imposes against a racial group, refugee or terrorism suspect is likely to end up in the courts.
Even if the judiciary elects to buck public sentiment and strike down a violation, the federal government may be emboldened to override it by invoking the Constitution's "notwithstanding clause," predicted University of Alberta law professor Sanjeev Anand.
"I don't think the people of Canada would raise a hue and cry if Parliament were to use it at a time like this to save a law," Prof. Anand said. "It really is a slippery slope, because you can link just about anything up to fighting terrorism. . . . I think that even those who have problems with it would be afraid to speak up."
Prof. Anand said the current Supreme Court bench is notably deferential to Parliament and very conscious of its public image. This raises a strong possibility that it might bow to the government's view of suitable emergency measures, he said.
"I'm convinced that the judges act out of principles they believe in," Prof. Paciocco said. "On the other hand, they have also demonstrated a very serious commitment to the context of the right that is being adjudicated."
The current context is a sobering one in which public and politicians alike appear willing to forgo many civil rights and liberties in the pursuit of security, he said.
Lawyer Frank Addario noted that a recent poll showed two of three Americans are willing to see security measures take precedence over civil liberties. "You only have to look as far back as the internment of Japanese Canadians to know that the same thing could happen in Canada," he said.
Legislation drafted recently by the Department of Justice to curtail biker activity is an object lesson in how quickly civil liberties can succumb to public panic, Mr. Addario said.
Charter challenges to the government's forthcoming law to stop fundraising for terrorists are almost a certainty, he said. In addition, the government may well spawn even more litigation by beefing up conspiracy laws and curtailing freedom of association for certain racial, cultural or political groups.
The government could also target past Charter rulings that liberalized police interrogation techniques, as well as the obligation to disclose information surrounding wiretap authorizations, Mr. Addario said.
"There is going to be enormous pressure on the courts to relax these rules," he said. "There is no doubt that by levelling the privacy rights of every Canadian, you would get a safer country. But the price in civil liberties is too high to pay."
Prof. Anand said that among the Charter cases that may be resurrected is the ruling from the late 1980s that extended to refugees on Canadian soil the right to a fair and impartial hearing.
"I wouldn't be surprised if the court said the pendulum has swung, and that the Canadian public wants more deference to the will of Parliament," Prof. Anand said. "This Supreme Court bench has absolutely no problem overturning itself when it sees events occurring that seem to have a profound impact on society."
He cited a recent ruling where the court refused to allow the extradition of two men to the United States if it would mean they could be executed -- an about-face on earlier rulings in similar cases.