Charter Rights and Universality
There's a piece published on CBC News Opinion this week, arguing that Canada should invoke the notwithstanding clause to facilitate the prosecution of returning ISIS fighters. The piece is authored by Brian Cox, a former US military lawyer and prosecutor, currently at Queen's Law as a visiting scholar.
And his suggestion is one that ought to be rejected out of hand.
Put briefly, he's arguing that the self-imposed constraints on our domestic legal system shouldn't impact our prosecution of offences that are committed overseas; that carrying out prosecutions under the auspices of those constraints makes these prosecutions unduly difficult; and that the protections aren't necessary when it relates to offences committed outside the country, because the kinds of government overreach against which the Charter protects aren't really concerns when we're talking about overseas conduct.
The argument is specious, for a few reasons, but the one of the most important is that we're still talking about a domestic government exerting control over people within its national borders, in a way that needs to be constrained by legal principles - because, regardless of where the offence is alleged to have occurred, we're looking at a legal process that is entirely domestic. (The American practice of extraordinary rendition raises a different set of concerns, but there are a different set of principles at issue here.) Perhaps more fundamentally, his justification - that the accused shouldn't get the same legal protections as other criminal accused because of the circumstances under which the (alleged) crime was committed - is premised on an assumption of guilt.
The Charter
The Charter is complicated, but for present purposes, it sets out a series of procedural guarantees - like rights against arbitrary search, seizure, or detention; the right to counsel; the presumption of innocence; rights against self-incrimination; to be tried within a reasonable period of time; etc.
Cox specifically suggests modifying the process by changing "the method for the defendant to confront evidence" and the Crown's burden of proof. Incidentally, neither of these is expressly mentioned in the Charter - because they don't need to be, falling within references like the "principles of fundamental justice". The right to make full answer and defence has been a cornerstone of Canadian criminal law since long before the Charter, as has the Crown's obligation to prove its case beyond a reasonable doubt.
So when Cox suggests that people be convicted of terror-related offences on the basis of a lower standard of proof, without having a full opportunity to confront the evidence against them...while Cox doesn't go into much detail as to what that would look like, it isn't hard to imagine: A tribunal that hears evidence in secret, or under circumstances where the defendant isn't allowed to know where the evidence comes from or to cross-examine on it, and where a conviction is based on a mere probability of guilt.
There can be legitimate reasons for the government to want to hold back evidence in these kinds of trials. Often, evidence gathered against foreign combatants is the result of sensitive intelligence-gathering processes. And our courts have allowed for modified processes, to an extent, to balance out the rights of the accused against the legitimate security interests of the state. Cox wants to remove those fetters altogether.
And if you assume that those intelligence sources are reliable, that they've been vetted effectively and in good faith by government agents, and that government agents will bring these charges only when there's a compelling reason to do so, it's tempting to agree with Cox.
But the problem is that those assumptions are not always true, and in fact those are exactly the assumptions that the legal protections in the Charter are designed to test: Does the state, in fact, have a compelling reason to believe that this individual committed a crime? Is the evidence of guilt compelling and reliable?
Universality of Charter Rights
And an arguably larger problem is that, if we create a process where those assumptions will not be tested, even for a narrow class of cases, that will create a temptation for the state to fit as many scenarios as possible into that class of cases. If an unnamed source, who will never be identified or cross-examined, is all you need in order to convict a person of terrorism-related offences, then the government won't have a problem finding sources to incriminate whomever it wants.
Not to put too fine a point on it, but if there's a magic phrase (like 'national security grounds') that the government can invoke that will prevent the courts from making them prove their case - or even the appropriateness of their invocation of the phrase - then expect them to use that magic phrase a lot.
Some will tell you that using the Notwithstanding Clause - the legislative override - in respect of one class of cases is a slippery slope. I disagree: No further slipping is necessary. Once we've allowed the government to convict and incarcerate people without a fair trial, even if it's ostensibly for a narrow category of people, the government will be able to put whomever they want into that category.
This is why Charter Rights need to apply across the board. It's relatively easy for law-abiding citizens to look at the criminal justice system as "us versus them", and to be persuaded by arguments that it should be easier to put "them" in jail. (Something like: I'm happy that the police can't arbitrarily arrest me, but for people who are actually engaged in criminal activity, making the police jump through so many hoops isn't ideal...) The trouble is that the entire point of the criminal legal process is to separate out people who have committed criminal activity from those who haven't. Anything that allows for the adverse treatment of people who have not been proven guilty in a fair process...is something to which I am just as exposed as any person who has actually committed a crime.
That's even easier to lose sight of, however, in issues of international terrorism, because of racial associations and racial profiling. If we're talking about removing Charter protections for a range of crimes, where we generally associate a given visible minority with those crimes, then people outside of that minority will be less concerned about the possibility of being unfairly caught up in those Charter-exempt processes.
On the other hand, people within that racial minority will be even more likely to be wrongly accused, and unfairly convicted through a Charter-exempt process. It's really a very troubling prospect.
Guantanamo North
One of the lines that I find most telling in Cox's article is this one: "Canada is in a position to set an example for other governments to follow."
Telling, because it's not an example that other governments necessarily could follow. In particular, the USA has a more restrictive entrenched Bill of Rights, which does not have a legislative override like our Notwithstanding Clause.
This has been a problem for Americans in the course of the War on Terror. They physically detain people they suspect of having terrorist connections, but either don't have the court-admissible evidence to prove wrongdoing, or don't want to show their hand - and so can't bring them to trial. And yet, they don't want to release them, either, so one of two things happens: They get sent to a third party country, like Syria, Jordan, or Egypt, on the expectation that they will be detained (or worse) by local authorities perpetually, or they get held in an offshore US detention facility like Guantanamo Bay, perpetually, without trial.
Their solution, to date, to the problems associated with giving a fair trial to suspected terrorists...is to send them to places where they won't get a fair trial.
If Canada were to develop a domestic legal process for trying people suspected of assisting ISIL or similar groups, without the procedural protections necessary for a fair trial, then that wouldn't be a model for the US to follow with its Guantanamo detainees (etc.); it would become the destination for Guantanamo detainees: All the legitimacy of a conviction obtained in the legal system of an advanced western democracy, without any of the baggage associated with having to prove your case in a fair trial.
The Notwithstanding Clause
Section 33 of the Charter, known as the Notwithstanding Clause or the legislative override, is controversial in and of itself. It was originally a compromise - Pierre Trudeau wanted a more rigidly entrenched bill of rights, where the judiciary had the final word. Some of the Premiers, however, were troubled by the loss of autonomy.
Outside of Quebec, the legislative override has almost never been used. It's incredibly exceptional, and is controversial whenever it is threatened or invoked, triggering a debate as between two propositions. To oversimplify the issue, there are those who argue that the democratic mandate of the elected government takes, and should take, precedence over the will of unelected judicial officers; and there are those who argue that the Charter is designed to protect foundational rights and principles, and that the ebbs and flows of popular opinion should not affect the application of those rights.
Historically, there has been a widespread belief that use of the Notwithstanding Clause would be politically costly, and so it has been regarded as reserved for a rare case where the judiciary clearly overstepped, or where there were unusually compelling public policy concerns at issue.
I've never been entirely convinced that the electorate cared all that much about section 33. And given the widespread success of populist movements in recent years, I'm even less sure that there would be significant political cost to its use: While there's little question that Canadian courts are significantly more trusted than the politicians in government, the courts are also essentially unable to defend themselves against the kinds of smears that populists use whenever they strike down a law on constitutional grounds: Even in Canada, there has been an increasing amount of noise about partisan judicial activism - even though, as those of us who work within the system know well, there's no such thing.
Last year, Ontario showed this perfectly clearly: The Ford government wanted to rush through legislation significantly cutting the size of Toronto City Council - in the middle of the municipal election campaign. Any urgency on doing it in that election cycle was artifice: This was not something that Ford had campaigned upon, and it would have been generally uncontroversial if he had tried to change the size of Council, effective as of the next election cycle.
When Justice Belobaba ruled against the Ford Government, he took a lot of heat in political circles, most of which was unfair. Many legal commentators (myself included) disagreed with his analysis. (Personally, my view is that there were stronger challenges to the legislation than the one to which Justice Belobaba gave effect.) Ordinarily, the response of a government to losing an application of that nature is to either appeal, or to enact different legislation correcting the deficiencies in the original. Ford appealed...but also started the process for new legislation that invoked the Notwithstanding Clause.
In circles that supported the Ford government, it was easy to write-off Justice Belobaba's decision - unfairly - as partisan judicial activism, justifying use of the legislative override. Even though Ford had not campaigned on this, he was widely seen as having a democratic mandate to do it. Even though the ostensible public policy goals sought were financial (and, in the scheme of a Provincial budget, a fairly trivial sum of money...and one that's not actually funded through Provincial tax dollars anyways, but through taxes levied on Torontonians specifically, who predominantly voted against Ford), it was a sufficiently compelling issue to override Charter rights. Even though - constitutional issues aside - the manner of making the change in the middle of an election campaign was objectively and manifestly unfair, it was still proper and appropriate for Ford to use every tool at his disposal, including the Notwithstanding Clause, to rapidly force the change through.
Even if you agree with reducing the size of Toronto City Council, this would be the quintessential low watermark for a pressing public policy objective warranting use of the Notwithstanding Clause - and the public response was largely partisan.
The decision on the appeal is still pending; however, the government received interlocutory relief, allowing the change to take effect in time for last fall's election, following which the bill invoking the Notwithstanding Clause was dropped. (It's not clear what the impact would be of a finding that the legislation was unconstitutional now, given that Toronto has been governed for nearly a year by a Council elected pursuant to it.)
There's a compelling question raised by this episode: If the point of the entrenched Charter is to protect fundamental freedoms from the tyranny of the majority, doesn't that make these rights too important to have a legislative override accessible to majoritarian governments? We already have a 'reasonable limits' clause that restricts application of the Charter; why do we need to give elected officials an 'out' to ignore the Charter even when it's not a reasonable limit?
Particularly in today's Canadian context, where the Canadian judicial system has a privileged place of confidence in the hearts and minds of Canadians, especially compared to political institutions, it's tempting to say that the final word on our Charter rights should lie with the judicial branch, and not the legislative. I can say, without hesitation, that I trust the 9 people on our Supreme Court with my fundamental freedoms far more than any political leader at any level.
And yet, while a series of conventions and practices has brought us to a place where judicial appointees are highly qualified and fair-minded, it's an appointment process fundamentally driven by the political branches of government. Eliminating the Notwithstanding Clause would provide a layer of insulation between Charter rights and majoritarian interests...but it wouldn't immunize our Charter rights to majoritarianism, and would merely require politicians to engage in more subtle methods of attempting to get around judicial intervention. We've seen the results in the United States, with politicians driving toward increasingly partisan judicial appointments, leading to a slow but inexorable erosion of the objectivity of the institution. (The very concept of "party line" voting, while a normal concept on the American Supreme Court, is a literally foreign concept in Canada.)
Thus, despite being cynical about the extent to which Canadians are actually willing to punish politicians for using the Notwithstanding Clause, I simultaneously believe that they can and should be: The Notwithstanding Clause makes our Charter rights very precarious, and vulnerable to being cast aside by populist governments, and it is that very vulnerability that creates electoral accountability for the protection of those rights. If the electorate cares about protection of freedom of expression, and freedom of religion, and due process, etc., it has to choose governments that will not, barring truly exceptional circumstances, exercise the Notwithstanding Clause.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
And his suggestion is one that ought to be rejected out of hand.
Put briefly, he's arguing that the self-imposed constraints on our domestic legal system shouldn't impact our prosecution of offences that are committed overseas; that carrying out prosecutions under the auspices of those constraints makes these prosecutions unduly difficult; and that the protections aren't necessary when it relates to offences committed outside the country, because the kinds of government overreach against which the Charter protects aren't really concerns when we're talking about overseas conduct.
The argument is specious, for a few reasons, but the one of the most important is that we're still talking about a domestic government exerting control over people within its national borders, in a way that needs to be constrained by legal principles - because, regardless of where the offence is alleged to have occurred, we're looking at a legal process that is entirely domestic. (The American practice of extraordinary rendition raises a different set of concerns, but there are a different set of principles at issue here.) Perhaps more fundamentally, his justification - that the accused shouldn't get the same legal protections as other criminal accused because of the circumstances under which the (alleged) crime was committed - is premised on an assumption of guilt.
The Charter
The Charter is complicated, but for present purposes, it sets out a series of procedural guarantees - like rights against arbitrary search, seizure, or detention; the right to counsel; the presumption of innocence; rights against self-incrimination; to be tried within a reasonable period of time; etc.
Cox specifically suggests modifying the process by changing "the method for the defendant to confront evidence" and the Crown's burden of proof. Incidentally, neither of these is expressly mentioned in the Charter - because they don't need to be, falling within references like the "principles of fundamental justice". The right to make full answer and defence has been a cornerstone of Canadian criminal law since long before the Charter, as has the Crown's obligation to prove its case beyond a reasonable doubt.
So when Cox suggests that people be convicted of terror-related offences on the basis of a lower standard of proof, without having a full opportunity to confront the evidence against them...while Cox doesn't go into much detail as to what that would look like, it isn't hard to imagine: A tribunal that hears evidence in secret, or under circumstances where the defendant isn't allowed to know where the evidence comes from or to cross-examine on it, and where a conviction is based on a mere probability of guilt.
There can be legitimate reasons for the government to want to hold back evidence in these kinds of trials. Often, evidence gathered against foreign combatants is the result of sensitive intelligence-gathering processes. And our courts have allowed for modified processes, to an extent, to balance out the rights of the accused against the legitimate security interests of the state. Cox wants to remove those fetters altogether.
And if you assume that those intelligence sources are reliable, that they've been vetted effectively and in good faith by government agents, and that government agents will bring these charges only when there's a compelling reason to do so, it's tempting to agree with Cox.
But the problem is that those assumptions are not always true, and in fact those are exactly the assumptions that the legal protections in the Charter are designed to test: Does the state, in fact, have a compelling reason to believe that this individual committed a crime? Is the evidence of guilt compelling and reliable?
Universality of Charter Rights
And an arguably larger problem is that, if we create a process where those assumptions will not be tested, even for a narrow class of cases, that will create a temptation for the state to fit as many scenarios as possible into that class of cases. If an unnamed source, who will never be identified or cross-examined, is all you need in order to convict a person of terrorism-related offences, then the government won't have a problem finding sources to incriminate whomever it wants.
Not to put too fine a point on it, but if there's a magic phrase (like 'national security grounds') that the government can invoke that will prevent the courts from making them prove their case - or even the appropriateness of their invocation of the phrase - then expect them to use that magic phrase a lot.
Some will tell you that using the Notwithstanding Clause - the legislative override - in respect of one class of cases is a slippery slope. I disagree: No further slipping is necessary. Once we've allowed the government to convict and incarcerate people without a fair trial, even if it's ostensibly for a narrow category of people, the government will be able to put whomever they want into that category.
This is why Charter Rights need to apply across the board. It's relatively easy for law-abiding citizens to look at the criminal justice system as "us versus them", and to be persuaded by arguments that it should be easier to put "them" in jail. (Something like: I'm happy that the police can't arbitrarily arrest me, but for people who are actually engaged in criminal activity, making the police jump through so many hoops isn't ideal...) The trouble is that the entire point of the criminal legal process is to separate out people who have committed criminal activity from those who haven't. Anything that allows for the adverse treatment of people who have not been proven guilty in a fair process...is something to which I am just as exposed as any person who has actually committed a crime.
That's even easier to lose sight of, however, in issues of international terrorism, because of racial associations and racial profiling. If we're talking about removing Charter protections for a range of crimes, where we generally associate a given visible minority with those crimes, then people outside of that minority will be less concerned about the possibility of being unfairly caught up in those Charter-exempt processes.
On the other hand, people within that racial minority will be even more likely to be wrongly accused, and unfairly convicted through a Charter-exempt process. It's really a very troubling prospect.
Guantanamo North
One of the lines that I find most telling in Cox's article is this one: "Canada is in a position to set an example for other governments to follow."
Telling, because it's not an example that other governments necessarily could follow. In particular, the USA has a more restrictive entrenched Bill of Rights, which does not have a legislative override like our Notwithstanding Clause.
This has been a problem for Americans in the course of the War on Terror. They physically detain people they suspect of having terrorist connections, but either don't have the court-admissible evidence to prove wrongdoing, or don't want to show their hand - and so can't bring them to trial. And yet, they don't want to release them, either, so one of two things happens: They get sent to a third party country, like Syria, Jordan, or Egypt, on the expectation that they will be detained (or worse) by local authorities perpetually, or they get held in an offshore US detention facility like Guantanamo Bay, perpetually, without trial.
Their solution, to date, to the problems associated with giving a fair trial to suspected terrorists...is to send them to places where they won't get a fair trial.
If Canada were to develop a domestic legal process for trying people suspected of assisting ISIL or similar groups, without the procedural protections necessary for a fair trial, then that wouldn't be a model for the US to follow with its Guantanamo detainees (etc.); it would become the destination for Guantanamo detainees: All the legitimacy of a conviction obtained in the legal system of an advanced western democracy, without any of the baggage associated with having to prove your case in a fair trial.
The Notwithstanding Clause
Section 33 of the Charter, known as the Notwithstanding Clause or the legislative override, is controversial in and of itself. It was originally a compromise - Pierre Trudeau wanted a more rigidly entrenched bill of rights, where the judiciary had the final word. Some of the Premiers, however, were troubled by the loss of autonomy.
Outside of Quebec, the legislative override has almost never been used. It's incredibly exceptional, and is controversial whenever it is threatened or invoked, triggering a debate as between two propositions. To oversimplify the issue, there are those who argue that the democratic mandate of the elected government takes, and should take, precedence over the will of unelected judicial officers; and there are those who argue that the Charter is designed to protect foundational rights and principles, and that the ebbs and flows of popular opinion should not affect the application of those rights.
Historically, there has been a widespread belief that use of the Notwithstanding Clause would be politically costly, and so it has been regarded as reserved for a rare case where the judiciary clearly overstepped, or where there were unusually compelling public policy concerns at issue.
I've never been entirely convinced that the electorate cared all that much about section 33. And given the widespread success of populist movements in recent years, I'm even less sure that there would be significant political cost to its use: While there's little question that Canadian courts are significantly more trusted than the politicians in government, the courts are also essentially unable to defend themselves against the kinds of smears that populists use whenever they strike down a law on constitutional grounds: Even in Canada, there has been an increasing amount of noise about partisan judicial activism - even though, as those of us who work within the system know well, there's no such thing.
Last year, Ontario showed this perfectly clearly: The Ford government wanted to rush through legislation significantly cutting the size of Toronto City Council - in the middle of the municipal election campaign. Any urgency on doing it in that election cycle was artifice: This was not something that Ford had campaigned upon, and it would have been generally uncontroversial if he had tried to change the size of Council, effective as of the next election cycle.
When Justice Belobaba ruled against the Ford Government, he took a lot of heat in political circles, most of which was unfair. Many legal commentators (myself included) disagreed with his analysis. (Personally, my view is that there were stronger challenges to the legislation than the one to which Justice Belobaba gave effect.) Ordinarily, the response of a government to losing an application of that nature is to either appeal, or to enact different legislation correcting the deficiencies in the original. Ford appealed...but also started the process for new legislation that invoked the Notwithstanding Clause.
In circles that supported the Ford government, it was easy to write-off Justice Belobaba's decision - unfairly - as partisan judicial activism, justifying use of the legislative override. Even though Ford had not campaigned on this, he was widely seen as having a democratic mandate to do it. Even though the ostensible public policy goals sought were financial (and, in the scheme of a Provincial budget, a fairly trivial sum of money...and one that's not actually funded through Provincial tax dollars anyways, but through taxes levied on Torontonians specifically, who predominantly voted against Ford), it was a sufficiently compelling issue to override Charter rights. Even though - constitutional issues aside - the manner of making the change in the middle of an election campaign was objectively and manifestly unfair, it was still proper and appropriate for Ford to use every tool at his disposal, including the Notwithstanding Clause, to rapidly force the change through.
Even if you agree with reducing the size of Toronto City Council, this would be the quintessential low watermark for a pressing public policy objective warranting use of the Notwithstanding Clause - and the public response was largely partisan.
The decision on the appeal is still pending; however, the government received interlocutory relief, allowing the change to take effect in time for last fall's election, following which the bill invoking the Notwithstanding Clause was dropped. (It's not clear what the impact would be of a finding that the legislation was unconstitutional now, given that Toronto has been governed for nearly a year by a Council elected pursuant to it.)
There's a compelling question raised by this episode: If the point of the entrenched Charter is to protect fundamental freedoms from the tyranny of the majority, doesn't that make these rights too important to have a legislative override accessible to majoritarian governments? We already have a 'reasonable limits' clause that restricts application of the Charter; why do we need to give elected officials an 'out' to ignore the Charter even when it's not a reasonable limit?
Particularly in today's Canadian context, where the Canadian judicial system has a privileged place of confidence in the hearts and minds of Canadians, especially compared to political institutions, it's tempting to say that the final word on our Charter rights should lie with the judicial branch, and not the legislative. I can say, without hesitation, that I trust the 9 people on our Supreme Court with my fundamental freedoms far more than any political leader at any level.
And yet, while a series of conventions and practices has brought us to a place where judicial appointees are highly qualified and fair-minded, it's an appointment process fundamentally driven by the political branches of government. Eliminating the Notwithstanding Clause would provide a layer of insulation between Charter rights and majoritarian interests...but it wouldn't immunize our Charter rights to majoritarianism, and would merely require politicians to engage in more subtle methods of attempting to get around judicial intervention. We've seen the results in the United States, with politicians driving toward increasingly partisan judicial appointments, leading to a slow but inexorable erosion of the objectivity of the institution. (The very concept of "party line" voting, while a normal concept on the American Supreme Court, is a literally foreign concept in Canada.)
Thus, despite being cynical about the extent to which Canadians are actually willing to punish politicians for using the Notwithstanding Clause, I simultaneously believe that they can and should be: The Notwithstanding Clause makes our Charter rights very precarious, and vulnerable to being cast aside by populist governments, and it is that very vulnerability that creates electoral accountability for the protection of those rights. If the electorate cares about protection of freedom of expression, and freedom of religion, and due process, etc., it has to choose governments that will not, barring truly exceptional circumstances, exercise the Notwithstanding Clause.
*****
Dennis Buchanan is a lawyer practicing labour and employment law and civil litigation in Edmonton, Alberta.
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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