Eroding Canadian Rights and Freedoms; Post 9/11 Canadian Laws and their Effects on Citizens

Peter Wilson

ERODING CANADIAN RIGHTS AND FREEDOMS; POST 9/11 CANADIAN LAWS AND THEIR EFFECTS ON CITIZENS Eroding Canadian Rights and Freedoms; Post 9/11 Canadian Laws and their Effects on Citizens ABSTRACT This essay argues that Anti Terror laws implemented in Canada following the New York World Trade Center bombings of September 11 th 2001, (9/11) have resulted in the violation of individual rights and freedoms of Canadians. 1 While legislative changes by the government were done in the interest of safety and security, they have caused considerable damage to the delicate balance that exists within society and between that of law and security and individual rights and freedoms. To begin, the state and the social contract will be defined and discussed so as to outline the relationship between Canadians and their government. Examining the historical and philosophical roots that contributed to the formation of laws and rights is an important part of understanding the balance that exists within the construct of the social contract. Next, the legislative changes within Canada, in response to terrorism events before and after 9/11, will be examined in order to contrast differences in governmental response to terrorism and their effects on society. KEYWORDS Rights & Freedoms, Anti Terrorism, Canadian, Law 1 David W. Elliot (ed.) Introduction to Public Law at 1. 2

PETER WILSON Canadian society embodies the essence of western governance and philosophy within its democratic construct. Within the makeup of the democratic construct, the social contract is an aspect of the understanding between a government and the people; it is the idea of people submitting to an authority, which is supposed to work for the overall best interests of society. 2 Within Canadian society, this contract is not new as it embodies the roots of Canadian laws that are based on French and English legal systems which have been influenced by an array of political philosophers through the ages, all of whose ideas have had some influence in the laws and societal ideologies of today. The ideas put forth overtime by Jean-Jacques Rousseau, John Locke, as well as Gramsci, will be explored and in examining the essence of these philosophical legal thinkers, the roots of the Canadian legal system will be contrasted with current Canadian laws. The State and Social Contract The state is a human creation that is an artificial construct contrary to the laws of nature. In order for the state to exist, people have to submit to the authority of a sovereign or one body of power so as to collectively create a power monopoly where others can buy into the monopoly by submitting to the will of the sovereign. 3 Within this concept, the idea is to establish a society that puts the greater good of the people at the forefront of its existence, and by expressing this through equality, peace, order and good governance as within the constitutional makeup that is Canada. This concept is reflected within the historic roots of Canadian legal practice. The social contract, as described by Rousseau, is the idea of being born into slavery as he states, Man is born free, and everywhere he is in chains. Rousseau reiterates the concept of the social contract in contrasting humanity s social existence between that of man s civilized society and the animal world. 4 The idea of a person being born into a state of slavery based on society's rules and laws is one which he argues to be the case within the construct of the state. Within the social construct of society, Rousseau s idea of society could be compared to a family; the leader of the family, father or mother, is the leader of society. 5 The leader of Canadian society in relation to Rousseau s concept could be considered to be the Prime Minister as they are the sovereign under which Canadians are governed. Society's laws and the rights and freedoms provided are what give people the trade-offs required to submit to the sovereign. When first born, there is a disposition of being under the authority of a caregiver, once grown up and children become adults, the protection and assumed obedience dissolves, and it is then up to the individual to willingly remain with and under the protection of their parents. 6 The social contract occurs when we choose to submit to the will of the sovereign in exchange for protection, when a person has become an adult and acknowledges as well as buys into the idea of society and the protections it 2 Ibid at 1. 3 Jean-Jacques Rousseau, The Major Political Writings of Jean-Jacques Rousseau, the Two Discourses & the Social Contract at 163. 4 Ibid 164. 5 Idem. 6 Idem. CAPSTONE SEMINAR SERIES, Disturbing Representations; Citizenship, Media, and Identities, Volume 5, number 1, Spring 2015. 3

ERODING CANADIAN RIGHTS AND FREEDOMS; POST 9/11 CANADIAN LAWS AND THEIR EFFECTS ON CITIZENS offers. Benefits of being a part of society are gained such as protection, security, and safety, which helps the construct of society as it enables citizens to call upon the state for the Police, Fire, or Ambulance services. By establishing a helpline for the most basic of necessities when it comes to health and personal security of individuals or within the Charter of Rights and Freedoms, a guarantee to the people that they are able to fall back on these rights if they face legal action or are victimized. 7 The society exists because individual citizens buy into the idea of society and the values and trade-offs that come along with it which results in the relationship between citizens and the government known as the social contract. Rousseau argues that within the concept of the social contract, there is a loss in natural freedom for the individual but what is gained is civil freedom. 8 Civil freedom is bound by the civil will, laws, rules and regulations which society places their will in to establish a government that has power over all. Canada is a democratic country and so when the parents-- or in other words the government-- implement the rules of the house, there may be a debate but more often than not, as we will see when it comes to implementing anti-terror laws, they are advertised as already a permanent aspect of our society's legal framework. Locke argues that laws, which are created, should be for the overall good of the people. Within this idea is the act of balancing the laws created for the good of the people and those, which are created for the good of the state. This is an inherent balancing act. As argued by Gramsci, there is a hegemonic balancing act between the state and its civil society, between actions that are coerced and ones that are consented. 9 Within the Canadian context, the social contract applies to the democratic system of government. When examining what makes up the social contract, it is important to understand that it is a relationship between the government and the people to require the sacrifice of the people to submit to the authority of the sovereign in order to establish a society with the understanding that there will be a certain level of reciprocity with respect to peace, order, good governance and the interests of the people in mind. The social contract and the essence of the various legal philosophies must consider the rights and freedoms within Canadian society. Canada and many other countries throughout the world have transitioned from being a colony to a country, and with this transition, implemented its own social contract through the adoption and adaptation of legal systems which have created the society we see before us today. The beginning the Canadian Social contract could arguably be said to begin in 1867 with the implementation of the Constitution Act that asserted Canada s position within the world and later would be amended in 1982 to establish full autonomy from the British Crown. 10 Canadians and the Government of Canada started off with a weak social contract in that the Rights and Freedoms of Canadian s was not very well established within the legal framework of Canada. The 1960 s Canadian Bill of Rights was a Federal statute, which lacked in protection as 7 Canadian Charter of Rights and Freedoms, (2015). 8 Rousseau, Op.Cit., at 172. 9 Dawson, T. Brettle, ed. Persons & Property Law in Private Law at 142. 10 Constitution Act, Constitution Act (1867). 4

PETER WILSON it was a federal statute that could be changed quite easily and was often overlooked. 11 It was for these reasons that 22 years later the Canadian Charter of Rights and Freedoms was established in 1982. 12 This was a magnificent re-working of the social contract between the government and the people of Canada as it implemented legal charter protections and solidified people's rights and freedoms as it was added into Canada's Constitution. Terrorism & Legislative Responses To understand how the rights of Canadians have been eroded by the implementation of Anti- Terror legislation it would be beneficial to briefly review the history of terrorism in Canada since the second world war and contrast the respective laws which have followed these incidents. The Crisis of October 1970 was a serious event, which resulted in the passing of the War Measures Act, (WMA) during the time of the crisis. 13 During the October crisis, people were stripped of their civil liberties and were living in a police state as a temporary measure to ensure public safety. While this crisis resulted in a number of violent incidents, including murder and pubic terrorism through bombings, people s liberties were restored as the WMA was lifted once the crisis came to a close. Twelve years after the FLQ crisis, Canada was again the victim of terrorism with the largest terror attack in Canadian history, which took place when Air India flight 182 was destroyed by a bomb that exploded while the plane was 31000 feet above the Atlantic Ocean. The attack caused the deaths of 329 people, of which 268 were Canadians. The aftermath of this attack took some 20 years to resolve due to a series of multinational investigative efforts to track down witnesses, and convict those who orchestrated and planned the attacks. While there were some institutional restructurings, there were not any major changes to laws that compared to those of the 2003 Anti Terrorism laws, which came into effect. Post 9/11 Anti Terrorism Laws When examining Canada s legal response to 9/11, the response was far more serious to events that happened outside of Canada than those in it. It is important to keep in mind the geographical relevance when considering the implementation of new Anti-Terror laws; the Canadian government implemented a series of laws, which would gradually erode the rights and freedoms of Canadians. In contrasting the events prior to 9/11, the laws did not change following two major terrorist attacks within Canada. However, the 9/11 attack in the United States marked the beginnings of legal modifications to combat terrorism in Canada, starting with the implementation of Bill C-36, otherwise known as the Anti Terrorism Act, which came into effect Dec 24th 2001. 11 Canadian Bill of Rights, Parliament of Canada (1960). 12 Canadian Charter of Rights and Freedoms, (2015). 13 Ross, Jeffrey Ian. "From the McDonald Report to the Kelly Committees: The Government Research and Policy Making Process Connected to Oppositional Political Terrorism in Canada." At 1. CAPSTONE SEMINAR SERIES, Disturbing Representations; Citizenship, Media, and Identities, Volume 5, number 1, Spring 2015. 5

ERODING CANADIAN RIGHTS AND FREEDOMS; POST 9/11 CANADIAN LAWS AND THEIR EFFECTS ON CITIZENS In contrasting the proximity of past terrorist events with those of 9/11, the implementation of Bill C-36 is strange in that it was in response to an attack that did not happen on Canadian soil and yet was the largest and most complex piece of legislation to have ever passed in Canadian history. C-36 defined terrorism and created new categories of crime, which include participating in, financing and otherwise facilitating terrorist activity, and allowed the federal cabinet to bypass courts and unilaterally decide whether certain groups are terrorist organizations. 14 The bill also enabled security agencies to expand the use of electronic surveillance and permitted the interception of communications of foreign targets abroad. Canadian courts were granted the authority to imprison terrorists and their controllers for life. Preventative arrest clauses were created which allowed authorities to arrest individuals without warrants on the belief that the arrest will prevent a terrorist activity, without even having committed a crime and can be detained for up to 72 hours. These changes are what would begin the gradual erosion of our rights as they subvert the charter of rights and freedoms. Every person has the right to a presumption of innocence according to section 11(d) of the Charter of Rights and Freedoms. 15 When laws begin to subvert our own charter of rights and freedoms in the interest of security, the social contract becomes grey; the principles behind our legal system are compromised in that it has changed the type of relationship between society and the government. Anti Terror laws enabled police to bring a suspected terrorist before a court and request a peace bond or restraining order to be issued against them. This can limit the individual s movements and associations, and in doing so, contravenes Section 2 of the Charter in that the police are restricting a person's movements based on their suspicions, without charging a person and without a trial. 16 Investigative judicial hearings allow police and prosecutors to bring a person before a secret court and compel them to disclose information related to a suspected or known coming attack without their identity becoming public. Briefly returning to the Air India bombings, this provision was used during the Air India Trial of 2003 when a woman being question under the secret tribunal attempted to fight this in the Supreme Court. 17 It was ruled to be constitutional and not in violation of her rights. Section 11(d) of the Charter requires a public hearing in the event a person is charged with an offence. Given the broad overview of the first official anti-terrorism legislation in Canada, the implications it had on people's rights were significant as this legislation would begin to erode the rights and freedoms of Canadians. Changes encompassed a number of areas, such as removing people's right to silence if they are accused of being a terrorist or involved in a plot, making trials secret for national security reasons, and exclusion of evidence within trials in the interest of 14 Ibid 83(1) 15 Canadian Charter of Rights and Freedoms, (2015) 15(1). 16 The Anti Terrorism Act, Parliament of Canada (2001) 83.3. 17 MacQueen, Ken. Maclean's. http://www.thecanadianencyclopedia.ca/en/article/air-india-bombing-arrests/ (accessed 03/03, 2015). 6

PETER WILSON national security. All of these changes and modifications to the law are dangerous in their implications as they undermine the purpose and principles behind the laws that were put in place to protect people and promote transparency within our justice system. The idea that we need to treat terrorism differently from that of other crimes is one which contravenes section 15(1) of the Charter: everyone is to be considered equal and treated equally under and before the law. Within the realm of charter violations, Security certificates are another tool used by the government to prevent the entry of immigrants into Canada, or remove them. 18 This process is a serious violation of human rights as the proceedings are secret and the evidence being used against an individual can be classified as secret in the interest of national security. The security certificate program in Canada has victimized non-citizens in ways which subvert their rights that they are entitled to upon becoming residents of Canada. Non-citizens can be detained and held indefinitely which is illustrated in Temitope Oriola s essay Counter Terrorism and Alien Justice. Oriola illustrates the human rights violations that security certificates propagate within Canada. Specific examples of 5 men are discussed in their individual problems with security certificates. 19 Currently Bill C-51, otherwise known as the 2015 Anti-Terrorism Act, is sitting before parliament. It has similar legal aspects that further undermine the rights and freedoms of Canadians. 20 In an effort to combat terrorism, the bill proposes to share personal information within different government departments despite the fact that a citizen may only willingly disclose information to a certain department. It also includes sharing information with the Royal Canadian Mounted Police and Canadian Security Intelligence Service, despite the fact that you may only have filed your taxes with Revenue Canada or filled out a Health Canada survey. 21 The bill re-defines the term security and would now include preventing interference with public life or in interfering with the economic stability of Canada. In situations of union strikes or political activism, participants could face jail time if they are not in a legal position to undertake those activities. CSIS is granted police-like powers in their abilities as they would be allowed to disrupt suspected terrorists by cancelling their reservations and intercepting their mail as well as confiscating or rendering the contents of that mail inert or unusable. 22 A No Fly list, as well as an accompanying secret evidence for said No Fly list, would also be created in the interest of preventing terrorism. 23 This provision contravenes people s freedom of movement into and out of Canada, as well as within Canada itself, according to Section 6 of the Charter. Similar to Bill C-36, Bill C-51 outlines implementations of preventative arrests in the interest of stopping terrorism if the authorities have reasonable grounds. In addition to this, the time that 18 Public Safety Canada. "Security Certificates." Government of Canada 19 Oriola, Temitope. "Counter-Terrorism and Alien Justice: The Case of Security Certificates in Canada." Critical Studies on Terrorism 2, no. 2 (August 2009, 2009): at 262. 20 The Anti Terrorism Act, House of Commons (2015). 21 Ibid 5(1). 22 Ibid 40. 23 Ibid 11. CAPSTONE SEMINAR SERIES, Disturbing Representations; Citizenship, Media, and Identities, Volume 5, number 1, Spring 2015. 7

ERODING CANADIAN RIGHTS AND FREEDOMS; POST 9/11 CANADIAN LAWS AND THEIR EFFECTS ON CITIZENS they may detain a person without charging them is doubled so as to allow for a thorough interview process to take place before deciding on how to proceed. While there are many other changes within Bill C-51, these are some of the most serious as they have the potential to further erode the rights and freedoms if this legislation receives royal assent. In conclusion, the erosion of Canadian rights and freedoms created by Anti Terror legislation has brought into question the social contract within Canadian society. The idea of citizens losing their freedoms and submitting to the authority of the sovereign is one which gives way to a questionable future when the Government seeks to establish security to the point where the rights of Canadians are diminished and the values found within the justice system are undermined. The events of the past have undoubtedly set a precedent for both citizens and future law makers in that the allowance of violations of human rights have been committed in the name of national security, without rights for citizens what motivation is there for individuals to buy into the social contract, this is an important question when looking to the future. The implementation of further security measures within Canada can only lead to more infringements on the rights and freedoms of Canadians, just as those which were affected post 9/11. Works cited Canadian Charter of Rights and Freedoms, (2015):, http://lawslois.justice.gc.ca/eng/const/page-15.html (accessed 28 January 2015). Cheung, Karmen. "Submission to the Standing Committee on Public Safety and National Security: Bill C-51, the Anti-Terrorism Act, 2015." British Columbia Civil Liberties Association. https://bccla.org/our_work/submission-to-the-standing-committee-on-publicsafety-and-national-security-bill-c-51-the-anti-terrorism-act-2015/ (accessed 03/09, 2015). Dawson, T. Brettle, ed. Persons & Property Law in Private Law. Canadian Legal Studies Series, 2011. Elliot, W. David, ed. Introdcution to Public Law. Canadian Legal Studies Series. 7th ed. Concord, ON: Captus Press, 2007. Government of Canada. "About the Anti Terrorism Act." Department of Justice. http://www.justice.gc.ca/eng/cj-jp/ns-sn/act-loi.html (accessed 03/08, 2015). Constitution Act, Constitution Act (1867):, http://laws-lois.justice.gc.ca/eng/const/index.html (accessed 03 March 2015). MacQueen, Ken. Maclean's. http://www.thecanadianencyclopedia.ca/en/article/air-indiabombing-arrests/ (accessed 03/03, 2015). 8

PETER WILSON Nacos, L. Brigitte. Terrorism and Counterterrorism. 4th ed. Columbia University: Pearson Education Inc, 2012. The Anti Terrorism Act, Parliament of Canada (2001):, http://www.parl.gc.ca/housepublications/publication.aspx?docid=2330951 (accessed 10 March 2015). The Anti Terrorism Act, House of Commons (2015):, http://www.parl.gc.ca/housepublications/publication.aspx?language=e&mode=1&docid=6932 136 (accessed 10 March 2015). Canadian Bill of Rights, Parliament of Canada (1960):, http://lawslois.justice.gc.ca/eng/acts/c-12.3/page-1.html (accessed 10 March 2015). Ross, Jeffrey Ian. "From the McDonald Report to the Kelly Committees: The Government Research and Policy Making Process Connected to Oppositional Political Terrorism in Canada." Journal of Homeland Security and Emergency Management 8, no. 1 (2011). Rousseau, Jean-Jacques. The Major Political Writings of Jean-Jacques Rousseau the Two Discourses & the Social Contract. Translated by T. John Scott, edited by T. Scott John 2012. CAPSTONE SEMINAR SERIES, Disturbing Representations; Citizenship, Media, and Identities, Volume 5, number 1, Spring 2015. 9