THE SEPTEMBER CRISIS: THE SUPREME COURT OF CANADA AND THE ANTI-TERRORISM ACT by Myles Sean Poff B.A., University of Lethbridge, 2001 THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in POLITICAL SCIENCE © Myles Sean Poff, 2004 THE UNIVERSITY OF NORTHERN BRITISH COLUMBIA March 2004 All rights reserved. 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Conformément à la loi canadienne sur la protection de la vie privée, quelques formulaires secondaires ont été enlevés de cette thèse. While these forms may be included in the document page count, their removal does not represent any loss of content from the thesis. Bien que ces formulaires aient inclus dans la pagination, il n'y aura aucun contenu manquant. Canada Abstract The September Crisis: The Supreme Court and the Anti-Terrorism Act Since Bill C- 36 became law in December 2001 there has been widespread speculation that it is destined to come before the Supreme Court of Canada. There are many portions of the Bill that seem to contravene the Charter to an extent that may not be justified in a free and democratic society. What would the Court do if it heard a challenge to the amendments in Bill C-36? This thesis argues that the Court would take issue with several sections of the Act and strike down these constitutionally offensive portions. The McLachlin court, while perhaps not as activist as the Lamer and Dickson courts, would still act to protect legal Charter rights. The established institutional history of the Court weighs heavily on the side of protection of legal and equality rights. A study of the academic writings and some of the past decisions provide insight into the type of judge Madam Chief Justice Beverly McLachlin is and how she would decide a case involving Bill C-36 in the context of protecting the legal and equality rights contained in the Charter. The McLachlin Court will err on the side of the institutional history rather than uphold the Government’s poorly and hastily drafted response to the events of September 1 2 0 0 1 . Table of Contents Abstract.................................................................................................................ü Table of Contents................................................................................................iii List of Tables........................................................................................................ v Acknowledgements............................................................................................vi Introduction...........................................................................................................1 Chapter One.........................................................................................................14 Policy Analysis using Kingdon’s modei of “Poiicy Windows”............ 14 Kingdon’s Model of Policy Analysis............................................................ 14 Policy Windows.............................................................................................16 Appiying Kingdon’s Model to Bill C-36................................................... 18 What is Bill 0 -3 6 ? ........................................................................................ 18 The Problem Window:..................................................................................19 The Political Window:...................................................................................24 The Policy W indow :.....................................................................................29 Perceived Problems with BiiiC-36..........................................................32 Criticism in the House of Commons:...........................................................32 Criticisms o f the Bill in Committee:............................................................. 34 Amendments:............................................................................................... 39 Summary:................................................................................................... 41 Conclusions............................................................................................... 42 Chapter Tw o....................................................................................................... 43 Potential problems with Biii C-36............................................................ 43 Chapter Three..................................................................................................... 52 Ronald Dworkin’s Theory of Judicial Decisions.................................... 52 Policy V. Principle ................................................................................................................................ 52 Types of Rights............................................................................................ 54 Institutional History....................................................................................... 57 Hercules vs. Herbert....................................................................................59 Judicial C riteria............................................................................................ 61 Some Critiques of Dworkin’s Theory.......................................................... 62 Summary.................................................................................................... 64 Dworkin’s theory applied to the Canadian Supreme Court................. 66 Conclusion.......................................................................................................... 83 The Supreme Court Decision...................................................................87 Policy Implications.................................................................................... 95 What will the Court Do?............................................................................95 Possible legislative response.................................................................. 99 Revisiting the Reasons this Thesis is Valuable.....................................99 Summary............................................................................................................103 Bibliography..................................................................................................... 104 IV List of Tables Table 1...................................................................................................................97 Remedies Available under the Oakes Test.......................................................97 V Acknowledgements There are many people that I would like to acknowledge as being instrumental in the creation of this work. First, I would like to thank Dr. Tracy Summerville who has helped me to stay on track. I would also like to thank Dr’s Gary Wilson and Boris DeWiel for their invaluable support. I also owe a debt of gratitude to my mother and father, Reg and Sheila Poff, to Dr. Ernest T. Barth and to Dr. Peter Spendelow and Ms. Jill Schatz. Most of all, I would like to thank my wife Lara for standing by me and supporting me. Finally, I would like to dedicate this thesis to the memory of Dorlous “Dee” Schatz-Barth, whose spirit and strength of character has inspired me to live every day to the fullest, and to the re-appearance of that same spirit in my baby daughter Morgan Dee Poff. Thank you all. Myles Poff VI Introduction With passing of Bill C-36, the Anti-Terrorism Act, 2001, the Canadian government signaled that it had taken the terrorist threat seriously and that it had acted decisively to protect Canadians from the type of attack that shook the United States on September 11'*^ 2001. Bill C-36 is, at least in part, Canada’s response to the global threat of terrorism. It consists of several amendments to the Criminal Code with respect to the definition of a terrorist offence or terrorist activity, the type of steps that can be taken when a terrorist offence or terrorist activity (planning/ financing a terrorist offence) is committed or suspected. These steps include preventative arrest and investigative hearings. The Bill also amends the Official Secrets Act in order to ensure that evidence collected is able to remain secret in order to preserve the security of Canada and other countries’ intelligence networks. Bill C-36 also contains amendments to the Canada Evidence Act in order to ensure that some of the same pieces of intelligence evidence remain secret or are subject to limited disclosure in the interest of public safety and security. In addition Bill C-36 also amended the Proceeds o f Crime (Money Laundering) Act in order to improve the Crown’s ability to choke off funding of terrorist organization; Finally, the Bill also amended select sections of the Access to Information Act, Canadian Human Rights Act, Canadian Security Intelligence Service Act, Corrections and Conditional Release Act, Federal Court Act, Firearms Act and the National Defence Act in order to bring them into line with, and to support, the more sweeping amendments to the other pieces of legislation mentioned above. The idea was to create a useful tool that would give the law enforcement and intelligence communities the ability to monitor, charge and prosecute individuals and groups that were knowingly involved in planning, executing and financing terrorist activity. Bill C-36 was enacted very quickly with comparatively little debate and has major ramifications for all Canadians and the protection of their legal rights contained in the Charter of Rights and Freedoms. The goal of this thesis is to study Bill C-36 from its inception and to try and determine what those ramifications are or could be. This is important in order to anticipate how the courts will rule in a case involving Bill C-36. The argument that this thesis makes is that if the Supreme Court of Canada heard a case involving a Charter challenge of Bill C-36, in the context of legal theory, case law and due to the character of the court, it would not uphold the law as enacted. This thesis is divided into four sections. First, this thesis will employ Kingdon’s theory of policy windows to analyze the policy and to illustrate how it was created, where it came from and what potential problems were exposed with the Bill. Second, this thesis will look at what portions of the Bill could be interpreted as inconsistent with the Canadian Charter of Rights and Freedoms. Third, this thesis will look at precedent set by the Supreme Court of Canada regarding the relevant legal and equality rights sections contained in sections 7 through 15 of the Charter. The thesis will also as examine the personality and opinions of the Chief Justice Beverly McLachlin which are contained in her past decisions and the ever growing body of media coverage discussing her role in the Court, in order to theorize what type of decision the court may reach in this case. Finally, the thesis will examine the options open to the Court for disposition of a Charter challenge to Bill C-36. While the stated reason for the timely passage of the Bill was to protect Canada from a terrorist threat, there is some compelling evidence that economics and the need to show the United States that Canada was acting to fight the terrorist threat played a significant part in the swift passage of the legislation. While it is true that the Minister of Justice at the time, Anne McLellan stated that the legislation had been “Charter-proofed,” there are still several areas of the legislation that appear to be unconstitutional on their face.^ If these offending portions of the legislation were identified in a Charter challenge one could argue that they would be found to be unconstitutional and not justified as reasonable limits in a free and democratic society. As a result, they would need to be altered or struck down in total. Chapter One of this thesis uses a policy analysis, framed by John Kingdon’s theory of policy creation that relies on the opening of policy windows, to look at the types of pressure, from foreign and domestic sources, on Canadian policy makers to pass such a bill. Kingdon’s theory is valuable for two reasons. First, there are many different theories that explain the process of policy creation. Theorists like Charles Lindblom argue that the ^ The National Post, October 16, 2001, Section A01 policy-making process is not rational but incremental and the best that policy makers can do is “muddle through.”^ This means that there is no time when policy can be formulated and embraced in complete form, as Kingdon’s theory seems to suggest. Other theories, like Paul Press’ theory of policy communities, are quite complicated and have several actors. ^ Kingdon’s model has been used by Brian W. Tomlin in a Canadian policy context to outline how Canada’s policy on banning landmines was created. Tomlin outlines the three policy streams of Kingdon’s model and identifies the policy entrepreneurs who drove the policy process‘d. Kingdon’s theory is easy to operationalize since it is largely concerned with one actor and is comprised of three policy windows, the problem window, the policy window and the political window, and the opening of each window allows for policy creation and implementation. The main actor in his theory is the “policy entrepreneur”, who creates and lobbies for the implementation of their policy alternative. In each stream there are always several policy entrepreneurs each espousing a particular policy alternative or solution to a problem. In this case the political will was driven by crisis circumstances. Second, Kingdon’s policy-making model is especially useful in explaining the creation of policy in response to a crisis situation, as was the case after September 11“". This is true because the theory is simple and allows for a ready-made policy to be offered. If there were a multitude of ^ Leslie A. Pal, Beyond Policy Analysis, 2"^ ed, (Scarborough: Nelson, 2001), p. 21. ^ S ee Paul Press, Group Politics and Public Policy, (Toronto: Oxford University Press, 1992) Brian W . Tomlin, “On A Fast Track T o A Ban: The Canadian Policy Process”, To Walk Without Fear: The Global M ovem ent To Ban Landmines, Eds, Maxwell A. Cameron, Robert J. Lawson and Brian W . Tomlin (Toronto: Oxford University Press, 1998), pp.185-207 actors involved In creation of policy after the problem exists then the policy creation process would look much more like Lindblom says and would be a matter of muddling through. This would be fine if the problem event was simply a routine renewal of a contract. But if there were a crisis situation, such as the events of September 2001, there is not time to muddle through the creation of a variety of policy options. Kingdon’s theory supposes that there are always solutions floating around just looking for a problem and the political will to solve that problem. This is why Kingdon’s theory of policy windows is more suited to a crisis situation than most other theories. In the process of the policy analysis the thesis looks at the political and social climate during the policy creation phase of Bill C-36. Since policy is not created in a vacuum, this gives context to the debate and creation of the Bill, which highlights some of the Charter and civil rights concerns that were raised as the Bill was being debated and amended. In order to do this the thesis draws on media sources as well as Hansard transcripts of House of Commons debates on Bill C-36 and committee submissions to the standing committee on justice and human rights. There are many parts of the Bill that are useful tools for fighting a terrorist threat and do not limit rights to an extent that is not justified in a free and democratic society. However, there are a few key provisions of the Bill that appear to go too far. The likely result of a court challenge would be that several significant portions of the Bill would be altered or struck down by the Supreme Court of Canada. Chapter Two of the thesis goes on to look at the case law, or institutional history, and apply the precedents contained therein to the relevant sections of the Bill and their compatibility with the Charter. Chapter Two examines what portions of the Bill seem to represent a limit on a Charter right and what sort of case law there is to support or deny that limit as justified in a free and democratic society. The Court would have to apply the section 1 Oakes test to determine if the legislation meets the criteria of being demonstrably justified in a free and democratic society. The Oakes test is the standard of proof used by the Courts in Canada to measure all legislation that limits a Charter right. The test, which resulted from a criminal case, R v. Oakes (1986),^ consists of four parts. The first part is that the objective the legislation purports to have must be important or pressing and substantial enough to justify a limit on a Charter right.® In this case many would argue that protection from terrorist activity is an important objective and is, given the climate that existed while this Bill was being created and debated, pressing and substantial. The second part of the Oakes test is what is known as the rational connection portion of the test. This means that the law must be rationally connected to its objective and cannot be based on arbitrary or irrational assumptions.^ The third part of the Oakes test is called the minimal impairment, or the least drastic means of limiting a Charter right.® This requires that the ^ A v O a k e s (1986), 1. S.C .R . 103 ® Peter Hogg. The Constitutional Law of Canada. 4"’ ed. (Toronto: Carswell, 1997), p. 702. ^ Hogg, Constitutionai iaw o f Canada, p. 702. ® Hogg, Constitutionai iaw o f Canada, p. 702. legislation do only what it has to in order to meet its rationally connected objectives. For example, in R v. Sharpe, a case regarding possession of child pornography, the Court felt that even if possession of child pornography is linked to harm to children, that harm is fully addressed by laws against the production and distribution of child pornography.^ Criminalizing mere possession adds greatly to the limitation on free expression but adds little benefit in terms of harm prevention. The key consideration is what the impugned section seeks to achieve beyond what is already accomplished by other legislation. If other laws already achieve the goals, new laws limiting constitutional rights are unjustifiable. Therefore, in this instance, criminalizing mere possession was not the least drastic means to combat child pornography and as such failed the minimal impairment portion of the test. The fourth part of the Oakes test is called proportional effect. This means that the way in which the law is applied must not be severe and overly limiting even if the other requirements of the test are met. The other sections of the test are tests of the legislation but this section is a test of the application of that legislation. Although it is considered by some to be redundant and simply a restatement of the first section in that if an objective is important enough, rationally connected and minimally impairing how can its effects be too severe?^° If the effects are too severe then it is likely that the objective was not important enough to justify a limit on a Charter right and pass as a “pressing and substantial objective.” ® R V. Sharpe (2001), 1 S.C.R. 45, 2001 Hogg, Constitutional law of Canada, p. 722. The argument in Chapter Two is that the legislation infringes on Charter rights in a manner that is not always rationally connected to the objectives and is not minimally impairing. The thesis also argues that the limits in the legislation also have the potential to fail the proportional effect section of the Oakes test in that the results of the application of Bill C-36 may be too severe. Laws that are essentially constitutional may still be vague and as such applied in a manner that is not what policy makers intended. In other words, some pieces of legislation exist that rely on further regulation to enforce the spirit of the law. However, there are times when either that regulation is not created or is created with a different focus than the legislators imagined when they created the original legislation. The result can be that the legislation is applied in a manner that infringes on a constitutionally protected right due, in part, to the original legislation being too vague. Chapter Three employs Ronald Dworkin’s theory of judicial decision making in hard cases to determine, generally speaking, what decision the Supreme Court of Canada would produce. Dworkin’s theory is useful in this case because his theory presupposes that institutional history or precedent is like a road map that can be read to determine where arguments on specific issues have come from and where they are going. In the context of Canadian jurisprudence on Charter rights the timeline is only twenty years and in that time the Courts in Canada have created a roadmap, with a few detours, that can be followed. In contrast, the American Courts have had much longer to 8 take detours and create bypasses as the justices have attempted to define and protect rights that are enshrined in the American Bill of Rights. There are other theorists who are critical of Dworkin’s approach and their theories will be dealt with in detail in the chapter. However, these theorists are critical of Dworkin’s approach to judicial decision-making in the American context saying that it is too simplistic and that it assumes order and patterns where they do not exist. In that case, the criticisms may be valid. But in the Canadian context the passage of time has not yet made it impossible to see the road map that is made up of case law and precedent and Dworkin’s abstract theory is affirmed by the reality of Canadian judicial decision-making and this is why Dworkin’s theory, rather than some other, is the most salient to this Canadian example of Bill C-36. Central to Dworkin’s theory is the idea that the institutional history or precedent contained in case law will direct the decision of the court in cases where there is an argument of principle, as any Charter case would certainly be. A challenge to Bill C-36 would be based on an accepted principle of a legal right contained in the Charter and the past case law decisions on the Charter. Dworkin’s theory is also useful in that it not only takes into account the institutional history of the court but the way in which the judge reads or uses that history in deciding the case at hand. Judges do not all read the institutional history the same way and in some cases may ignore it completely if they are determined to break from past decisions on an issue. Dworkin’s theory provides a loose criterion for categorizing what type of judges sit on the Supreme Court and by extension what type of decisions they will make based on their reading of the institutional history contained in case law. Chapter Four of the thesis goes on to determine what sort of justice the current Chief Justice, Beverly McLachlin is by applying Dworkin’s criteria for classifying judges. The thesis argues that McLachlin CJ would defer to the institutional history of the Court or precedent in a case involving Bill C-36. Chapter Four also applies Peter McCormick’s argument that the CJ can set the tone for the Court by virtue of her position. The makeup of the current court as well as examples of McLachlin’s own personal charisma and history from various sources can categorize what type of justice she is within the confines of Dworkin’s theory. McCormick’s argument is that it is better to be the CJ than not, because there are several advantages that are inherent to the position that allow the CJ, if they choose use these advantages, to set the tone for the rest of the Court with respect to decision-making. McCormick’s argument also includes some comment on the makeup of the current Supreme Court of Canada and McLachlin’s personal style, both of which affords her with some power over and above the power inherent to her position. The purpose of using this argument is to demonstrate that while Dworkin’s theory that the personality of judges informs their decision-making could be applied to any judge on any court in Canada it is logical to choose the Chief Justice of the highest court in the land as a test case for the reasons listed above. 10 In the Conclusion, the research questions are answered and the types of remedy that the Court would most likely employ are presented. In order to answer the research questions mentioned in the previous chapters the conclusions are drawn together to support the thesis that the Court will find Bill C-36 unconstitutional. The second part of the Conclusion is a presentation of alternatives that the Court may use to dispose of a Charter case involving the Oakes test. Schacter v. Canada is known as the remedies case and has been used as a general roadmap to determine what type of remedy is appropriate for the disposal of a case involving a Charter challenge and the use of the section one Oakes’ test. The Conclusion goes on to make some predictions about how the legislative community might react to the alteration or striking down of Bill C36. The constitutional options that are available are somewhat limited but nonetheless very powerful. Summary This research is important for at least four reasons. One, a review of Bill C-36 has had only minimal treatment by academia.” The main reason for this is that there have been no cases involving Bill C-36 to analyze and academics have reserved judgment until such time as there is more concrete information to study. This thesis will be one of the first analyses of the ” Daniels, Ronald J., Patrick Macklem and Kent Roach, eds. The Security o f Freedom: Essays on C an ad a’s Anti-Terrorism Biii. (Toronto: University of Toronto Press, 2001) 11 legislation and its impact on Charter rights albeit devoid of a real Charter challenge to analyze. Two, if our Charter rights are important to us as citizens then studying the ramifications that this legislation has on several of those rights is also important. Limiting rights in order to secure protection and order is something that should not be taken lightly. In the case of Bill C-36 this thesis will give a snapshot of what may happen if there is a challenge to the legislation with the additional advantage of dealing with several diverse sections of both the Charter and the legislation. The judicial system is such that problems with Bill C-36 would most likely not be dealt with in a single, or perhaps in multiple, court challenges. It would be improbable that a single case would come along that would allow the Courts to make decisions on all of the offending portions of the legislation. The power that the Courts’ possess is reactive power, which requires them to be asked to decide the constitutionality of legislation. As it is unlikely that the Court could render a decision on all of the problematic provisions of the legislation, this thesis vests the Court with the proactive power to decide on all of the portions of the legislation that are incompatible with the Charter in one hypothetical instance in order to yield a coherent decision. Three, this thesis is important because it sets out two rational models that can be employed in a policy analysis of any piece of legislation. However, despite employing these rational models, the end result of jurisprudence may well turn out to be irrational. This does not reduce the 12 value of the models presented in this thesis; in fact, the rationality of the result is largely beside the point and leads to the fourth point. Regardless of whether or not a decision is a rational response or an irrational response from the Courts, this thesis illustrates that policy makers need to understand the importance of the role they play in the process. The thesis provides a warning that hastily drafted policy which may limit the rights of Canadians without valid justification may lead directly to the Courts. Policy makers need to take note that legislation that may have been drafted to bring stability can do the opposite when jurisprudence spins out of control. The message to policy makers is to ensure that the legislation is constitutional during the policy making process and take the duty of creating legislation that limits rights, where justifiable, seriously. Protecting rights is as much a function of policy makers as it is of the courts. 13 Chapter One Policy Analysis using Kingdon’s model of “Policy Windows” In order to predict what the Supreme Court of Canada might do with a case involving the Anti-Terrorism Act it is important to understand what the social and political climate was like in the days and weeks following September 11, 2001. To facilitate this understanding John Kingdon’s model of policy creation will be used to frame the debate. This chapter will illustrate that Bill C-36 was created, debated and passed quite quickly. Due to this fact, there are several portions of the Bill that may not have come under the level of scrutiny necessary to ensure that a proper balance was struck between security and preservation of legal. Charter rights. First, this chapter will outline Kingdon’s model. Second, Kingdon’s model will be applied to Bill C-36 to illustrate how the bill was created and what forces contributed to the substance of the resulting policy. Finally, this chapter examines the amendments that were added to the Bill after the committee stage. Kingdon’s Model of Policy Analysis This section will present the portions of Kingdon’s model that are salient to the policy analysis of Bill C-36. It will begin with an explanation of the two types of agenda that Kingdon employs. Then it will provide a definition and explanation of the three types of policy windows as well as a 14 definition and explanation of the role of the main actor in Kingdon’s model, the policy entrepreneur. Agendas Kingdon argues that governments operate with two types of agenda: the governmental agenda and the decision agenda. The governmental agenda is the broad strokes of what the government hopes to accomplish over the long term. It is comprised of a list of subjects and issues that are getting the attention of the government.^^ Part of this larger list of issues is the decision agenda. This list of issues consists of subjects that are up for active decision-making. In other words the list consists of issues on which the government is prepared to make some sort of d e c i s i o n . I t is important to note the difference between the two types of agenda. As will be argued below, the need for anti-terrorism legislation was present prior to September 11, 2001 and in its most abstract form it was part of the overall governmental agenda probably under the heading “security concerns.” However, after September 11, 2001 the need for anti-terrorism legislation moved to the top of the decision agenda where a solution was actively sought and decisions were actively made. John Kingdon, Agendas, Alternatives and Public Pollcles (Boston: Little, Brown and Company, 1984), p. 4. Kingdon, Agendas, p. 4. 15 Policy Windows Kingdon theorizes that there are three policy windows that must open for a policy to be created. The first window is the problem window, the second window is the political window and the third window is called the policy w i n d o w . T h e problem window opens when there is a new problem that arises or an old problem takes on new importance. Sometimes the problem window opens on a routine basis as in the case of a program renewal.^® Kingdon states that for each problem that exists there is a person or group that he calls a policy entrepreneur who is pushing to have some sort of policy created to deal with their pet problem.^® When the problem window opens that policy entrepreneur must be ready to present a policy alternative or solution to solve the problem at hand. Kingdon states that these windows do not stay open very long and as such require that the policy entrepreneurs be ready well in advance to push their policy alternative.’ ^ In order to do this the policy entrepreneur plays a significant role in what Kingdon calls coupling. That is when the problem stream is coupled with either the political stream or the policy stream. The policy entrepreneur must be able to rally the political support in order to demonstrate to the policy makers that it is politically possible to implement the policy alternative espoused by the entrepreneur. Kingdon, Agendas, p. 173. Kingdon, Agendas, p. 195. Kingdon, Agendas, p. 188. Kingdon, Agendas, p. 190. 16 This also is the case when the problem and policy streams couple together. The policy stream can open and a policy entrepreneur can present a solution to a problem and then go searching for the political support for that policy solution. At some point all three windows are open and are coupled and this is largely the result of luck and the groundwork laid in advance by the policy entrepreneur.^® Therefore, in order for a policy to become reality there needs to be a problem that opens the problem window. Then there needs to be a policy entrepreneur who can either bring to bear political support or convince the policy makers to put it on the decision agenda if he can find the political support. The result is that if everything goes according to plan a policy will be created and the policy entrepreneur will have solved the problem using his proposal or policy alternative. Kingdon writes, One key coupling is that of a policy alternative to something else. Entrepreneurs who advocate their pet alternatives are responsible for this coupling. They keep their proposals ready, waiting for one of two things: a problem that might float by to which they can attach their solution, or a development in the political stream, such as a change of administration, that provides a receptive climate for their proposal. Some windows open largely on a schedule; others are quite unpredictable. But a window closes quickly. Opportunities come, but they also pass. If a chance is missed, another must be awaited.^® In relation to policy windows and their effect on the governmental and decision agendas Kingdon writes. While governmental agenda is set by events in either the problems or political streams, setting of decision agendas emphasizes, in addition, an available alternative. A worked-out, viable proposal, available in the policy stream, enhances the odds that a problem will rise on a decision Kingdom, Agendas, p. 190. Kingdon, Agendas, p. 204. 17 agenda. In other words, the probability of an item rising on a decision agenda is dramatically increased if all three elements - problem, proposal, and political receptivity - are coupled in a single package.^® It is apparent that the policy entrepreneur has a significant role to play in the creation of policy. What appears on the decision agenda is, according to Kingdon, almost entirely due to the efforts of the entrepreneur to present a viable policy alternative. If we apply Kingdon’s model to Bill C-36 we are able to show how the Bill was created and identify the policy entrepreneurs. Kingdon’s model is useful in analyzing this policy because, as mentioned above, it is particularly helpful in describing the policy creation process in the face of a crisis situation, as the terrorist attack of September 11, 2001 most certainly was. Not only was there a crisis in security there was, as will be argued later in thesis, also a potential economic crisis. Applying Kingdon’s Model to Bill C-36 What is Bill C-36? Bill 0-36 is a piece of legislation that makes several amendments to the Criminal Code of Canada, the Canada Evidence Act, The Officiai Secrets Act and various other acts. When Justice Minister Anne McLellan tabled the bill on October 15, 2001 she outlined what the aims of the bill were to suppress the very existence of terrorist groups, to provide new investigative ^ Kingdon, Agendas, p. 204. 18 tools and to provide a tougher sentencing regime to incapacitate terrorists and terrorist groups.^^ The Problem Window: What problem opened the window and allowed for a policy entrepreneur to attach his alternative policy? It seems obvious that the events of September 11*^ 2001 galvanized policy makers into creating this legislation. Terrorism is not a new concern for Canada. Canadian Security and Intelligence Service (CSIS) has kept track of terrorist organizations operating in Canada for several decades,however, there has never been a comprehensive anti-terrorist law to deal with that threat. Also Canada has signed two separate international accords, the Suppression of Terrorist Financing and the Suppression of Terrorist Bombing and they were ratified in Bill C-36. In fact. Justice Minister Anne McLellan presented this as one of the reasons for the creation of the legislation.^^ However, until September 11*^ it was not on the decision agenda of the Canadian Government to ratify these conventions into law. This is evidenced by the comments in the House by Canadian Alliance MP Vic Toews the day the Bill was tabled. He stated. The bill being tabled today is an important step forward and reflects many of the issues the Canadian Alliance has been raising over the past years. The bill echoes many recommendations made by Canadian Alliance members of parliament, including the identification of terrorist organizations, the ratification of international obligations to Hansard, House of Commons debates. Vol. 137. Number 094.1® session. 37 Parliament. October 15'*' 2001, p. 6048 ^ Canadian Security and Intelligence Service, Public Reports, online® http://www.csisscrs.qc.ca/enq/publicrp/pubreps e.html accessed July 26, 2003 Hansard, House of Com m onslfebates, Vol. 137. Number 095.1®* session 37*'^ Parliament. October 16'^ 2001, p. 6165. 19 suppress terrorist bombings, and banning fundraising activities that support terrorism. As recently as September 18 our party introduced a supply motion putting forth a number of the same elements Bill C-36 introduces. The motion unfortunately was voted down as the government accused the Canadian Alliance of playing politics or trying to score political points. Bill C-36 is a result of a problem that suddenly became pressing and required action. The need for legislation like this policy existed before September 11*'^ but was not seen as pressing. Further, as mentioned above CSIS has kept track of the terrorist threat for several years and have demanded policy that would allow the organization to effectively fight the perceived domestic terrorist th re a t.T h e r e f o re it seems clear that the terrorist attacks on the World Trade Center and the Pentagon galvanized Canadian policy makers. This new sense of urgency was only partially due to the need to protect Canada from a terrorist attack. The most likely reason the “problem window” opened was Canada’s need to restore the confidence of the United States that Canada was dealing with identified terrorist elements with legislation that was proactive and substantive. There are two compelling pieces of evidence to support this view. The first compelling piece of evidence is that in the days and weeks immediately following the attacks the American media portrayed Canada as a terrorist haven. The Seattle Times printed a story that was filled with quotes like; “[ejxperts on both sides of the 4,000-mile border say the nation to the north is a haven for terrorists, and that the U.S.-Canada line is little more Hansard, October 16'^ 2001, p. 6167. C SIS , Public Reports, online® http://www.csis-scrs.qc.ca/enq/publicrp/pubreps e.html last accessed July 26, 2003. 20 barrier than ink on a map.”^® The Wall Street Journal had a story entitled, “Threat From The North: Canada needs to toughen up on terrorists.” This story contained many references to Canada as being a haven for terrorists and statements to the effect that Canada does not have the will to do anything about the terrorist cells that operate within Canada.^^ The New York Times also printed a story that stated, “[s]everal recent investigations of Canadian terror suspects underscore what are widely perceived in the United States as weaknesses in the Canadian system.”^® This story also lent weight to the idea that Bill C-36 was created in part to dispel the perception that Canada was a terrorist haven. As was noted in the New York Times, “faced with persistent and increasingly uncomfortable accusations that it has become an unwitting haven for terrorists, Canada is trying to shift its laws and practices to ease tensions with its neighbor.”^® These are just some examples of the type of stories that demonstrate the perception that Canada needed to do something about their laws in order to keep something like September 11**^ from happening again, even though there was no evidence uncovered that the September 11*'^ terrorists came to be in the United States via Canada. ^ “Few Resources Spent Guarding C anada Border”. Seattle Times online edition archive, 23 September 2001 O n line® O n lin e ® http://archives.seattletimes.nwsource.com/caibin/texis.cgi/web/vortex/display?slug=border23m0&date=20010923, last accessed April 3, 2002. Mary O ’Grady, “The Threat from the North” Wall Street Journal, 14 Septem ber 2001. O nline® http://www.opinionjournal.com/wsj/?id=950011 29 , last accessed April 7, 2002. ^^Anthony DePalm a, “ Security Concerns: C anada Altering its System of Vigilance against Terror” N ew York Times, 3 D ecem ber 2001. Online ® http://www.northamericaninstitute.ora/articlearcive/nvtimes120301.htm. last accessed April 7, 2002. ^ DePalm a, “Security Concerns”, N ew York Times 21 Immediately after the attacks US government officials began to speak about strengthening borders and during their press briefings suggested that Canada’s weak policies may have allowed some terrorist to slip into the United States. Prime Minister Chretien’s statements in the House of Commons on October 16'^ lend some weight to the argument that keeping the border open and economic concerns had a lot to do with the creation of Bill C36. He answered a question about border security from Canadian Alliance MP, Rahim Jaffer by saying, “the President of the United States told me that it was [in] the interests of Canada and of the United States that the free flow of goods at the border be accommodated quickly.”^° The media also began to immediately draw parallels between the 1999 arrest of Ahmad Ressam, the so-called millennium bomber, at a border checkpoint trying to enter the United States from Canada.^^ The United States also sought to secure some agreements with Canadian officials that there would be some action taken in order to improve immigration and security laws. This rhetoric created by the American media fostered the perception that the Canada was soft on known terrorist groups and constituted another reason that Canadian policy makers needed to act quickly. Anthony DePalma, author of the New York Times article mentioned above, sums up the situation this way, “Canadian officials, who have been ^ Hansard, House of Commons debates, October 16"^ 2001, p. 6197. Few Resources Spent Guarding C anada Border” Seattle Times online edition archive, 23 Septem ber 2001 ^ “U.S. Plans Stronger Border Security”. Washington P o s t 2 Decem ber 2001. O nline© http://www.washinqtonpost.com/ac2/wp-dvn?paqename=article&node=&contentld=A439482001 P e el 22 fighting false rumors that some of the Sept. 11 terrorists crossed the border from Canada, hope the tough new law will prove that Canada is serious about fighting terrorism.”^^ This idea was echoed in Canada by Vic Toews in the House of Commons when he said, “we let down our American allies who suffered a terrible tragedy in New York City. It is one thing to say now that we stand shoulder to shoulder with the Americans, which we do, but it is quite another to have not come to that realization that it was our obligation to do that prior to the horrific events of September 11 The second piece of evidence is that, in addition to the comments of the Prime Minister above, another top Canadian official admitted that economics played a principal role in the creation of Bill C-36 in a speech to students at Mount Allison University. John Manley, who was at the time Foreign Affairs’ Minister, conceded that Canadian policy makers were held as economic hostages. He is quoted as saying “[i]f the United States decides it's worried ... then we've got a problem;” and, “we could certainly not ignore the concerns that our best customer had. When one customer buys 87 per cent of your product, if that customer has a concern, whether you think it's real or not, it's your concern.”^^ However, he hastened to add that he does not believe Canadians “should take actions simply to satisfy the United States.”®® ^ DePalm a, “Security Concerns”, N ew York Times Hansard, House of Commons debates, October 15"’ 2001, p. 6048. Jennifer Robinson, “Ottawa had to listen to U.S. security fears because of economics: Manley”. Yahoo News online @ http://ca.news.vahoo.com/020112/6/qvb2.htmI accessed April 8, 2002. ^ Robinson, “Ottawa”, Yahoo News 23 Regardless of Manley’s last statement it seems plausible that this is what occurred in the case of Bill C-36. Based on the information presented above it can be suggested that the problem, which opened the window, was not just terrorism but the economic effects of the terrorist acts committed on September 2001. Certainly, combating terrorism in the wake of the attacks was of great importance. However, this was not as pressing as the Canadian government’s desire to be perceived by the United States as pro-active and, for want of a better word “busy.” The Political Window: Another of the policy windows that must be opened is the political window. Generally speaking there are problems floating around all the time that compete to be solved based on their perceived importance. It could be argued that until September 1 terrorism and how to deal with it was one of those problems. In any case, in order for a problem to be solved through policy creation a certain amount of political will is required. There needs to be a person or group Kingdon calls the policy entrepreneur Xo exert the political will to solve the p r o b l e m . I n other words, a group or a person, in the context of the Canadian system I would argue a bureaucrat or lobbyist with access to policy makers^®, has to be eager to develop a policy that solves a problem Kingdon, Agendas, p. 183. This aiso fits with Tomlin’s reading of Kingdon in his analysis Canada’s landmine policy. He identifies the policy entrepreneurs as bureaucrats and lobbyists with access. See Tomlin, pp.188, 207 24 that exists or will exist in the future. The policy entrepreneur then tries to present the current or upcoming problem as pressing enough to warrant policy maker’s attention. As mentioned above, Kingdon suggests that for every problem there is at least one entrepreneur who advocates for some sort of policy creation. However, until there is sort of critical mass of political support that problem will simply continue to sit on the policy back burner and never reach the decision agenda. This seemed to be the case with previous calls for powers to aid in the fight against terrorism as we did not have any sort of anti-terror provisions in existence outside the general application of what is already contained in the Criminal Code. The political will did not reach the critical mass mentioned above required to solve the problem until the terrorist attacks of September 11**^. In most cases there is the expectation of a suitable level of broad based grassroots popular support required for a bill in order for it to be created.®^ However, in this case there did not seem to be any grassroots support from the majority of the electorate. There was one, and only one, public opinion poll put in the field between October 2- 4. This poll consisted of asking 1000 people from each province in Canada a series of general questions on terrorism and Charter rights. The result was that 58 percent of ^ Admittedly, sometimes bills, such as Bill C -68 the Gun Control bill, which do not enjoy broad based national appeal, but do enjoy regional appeal within the populous urban centers of central Canada, are introduced and passed. 25 Canadians felt that fighting terrorism currently outweighed the protection of civil rights such as due process or privacy rights."^” In the days and weeks after Sept.11 there were few articles in the print media, editorial or otherwise that called for any type of anti-terrorism bill/^ The only media stories that addressed due process and privacy rights in relation to this Bill were those discussing the poll mentioned above which was sponsored by The Globe and Mail and GTV. It could be said that the poll results were a type of grassroots support, but this poll was conducted in the absence of any actual proposed legislation. A poll that would have asked people about Bill 0-36 specifically may have shown different results. Further, even if we allow that this could have been called a mandate for protection from terrorist activity in Canada the context in which the poll was taken would make that mandate limited to consultations and rigorous debate, not the quick response that created Bill C-36. Bill C-36 was created and passed in under three months but not, it seems, because there was a call for it in the media or by the population of Canada. The potential economic consequences of a long closure of the Canada-US border and the corresponding loss of American confidence also galvanized the domestic business lobby to press government for some type of solution in order to show the Americans that something was being done. The “Majority (58% ) say terrorism threats outweigh protection of individual rights, freedom and due process of law: Police intelligence officials should get tools they need to protect collective safety of Canadians against terrorism.” O n line® http://www.iosos-reid.com/ca/index.cfm accessed February 4, 2002. In examinations of most national newspapers as well as some regional newspapers like the Toronto Star and the Calgary Herald, there were no articles or editorials that called for a comprehensive anti terrorism bill. 26 Canadian Chamber of Commerce as well as several other business actors and associations needed a government solution sooner rather than later and implored policy makers to do whatever needed to be done to improve the situation/^ In order for the problem and political windows to open the policy stream a coupling must occur/^ This means that simply having a problem with no political will to solve it will not allow the policy window to open and a solution to the problem to emerge as a policy. The windows must be open at the same time and couple to solve the problem at hand. Kingdon suggests that policy windows do not stay open very long and when the opportunity is there it must be taken."*"* For several years CSIS had been warning the government that terrorism is on the rise and that CSIS needed funding to properly collect intelligence."*^ Each year the organization put out a threat report on terrorism and each year its implications went more or less ignored by policymakers, which is evidenced by the shrinking resources budgeted for the organization."*® However, in the days and weeks following Sept. 11 the conditions became right to ask for the powers and funding needed to better serve its purpose. In fact, CSIS as well as the RCMP and several intelligence and terrorism experts were part of the policy "*^The Canadian Cham ber of Comm erce, Online @ http://www.chamber.oa/newDaaes/Dolicv.html. accessed Feb 26, 2002. Kingdon, Agendas, p. 181 Kingdon, Agendas, p. 175 C SIS. Year 2000 public report, O n line® http://www.csisscrs.qc.ca/enq/publicrp/pub2000 e.html. accessed July 26, 2003 C SIS, Year 1995 public report, O n line® http://www.csisscrs.qc.ca/enq/publicrp/pub1997 e.html#19 . accessed July 26, 2003 27 network and the policy entrepreneurs who helped to formulate Bill C-36 in committee hearings.'*^ Further, in order to ensure that the bill not be mired in the morass that is political debate the Government limited debate on the committee’s amendments during the final reading in the House of Commons, the Honourable Dan Boudria moved, [t]hat in relation to C-36, an act to amend the Criminal Code, the Official Secrets Act, the Canada Evidence Act, the Proceeds of Crime (Money Laundering) Act and other acts, and to enact measures respecting the registration of charities, in order to combat terrorism, not more than one further sitting day shall be allotted to the consideration of the report stage of the bill and one sitting day shall be allotted to the third reading stage of the said bill and fifteen minutes before the expiry of the time provided for government business on the day allotted to the consideration of the report stage and on the day allotted to the third reading stage of the said bill, any proceedings before the House shall be interrupted, if required for the purpose of this order, and in turn every question necessary for the disposal of the stage of the bill then under consideration shall be put forthwith and successively without further debate or amendment.'^® The danger in waiting until the Bill has been exhaustively debated, as it should have been, is that the political window would have eventually closed and many of the economic problems that spurred the creation of the Bill would have become a reality. The government is aware that political debate is often an endurance contest and in this case they were not prepared to lose the opportunity to maintain the confidence of the United States. 47 raiiicimt Parliament of Canada. Standing Committee on Justice and Human Rights. Evidence. October 23"^ 2001. Online @ http://www.Darl.gc.ca/lnfoComDoc/37/1/JUST/M eetinqs/Evidence/iustev30-e.htm accessed Jan 22, 2002. The director of C SIS , W ard Elcock and the Commissioner of the R C M P Guiliano Zaccardeili appeared before the Committee to voice their support for the Bill and to suggest amendments. Hansard, House of Commons debates, November 27''^ 2001, p.7532. 28 However, invoking existing legislation such as the Emergencies Act (the act which replaced the War Measures Act) was also not an attractive option politically. The events of October 1970 are still vigorously debated in Canadian political and legal circles and the consequences for the federal government of evoking such drastic measures would likely have been negative. If the attacks of September 11, 2001 had occurred in Canada rather than the United States then the matter may have been different. In that case, the use of Emergencies Act vjou\6 have been employed as part of the government’s overall crisis management plan. The federal government would also not be anxious to invoke the measures contained in the Emergencies Act because it had portrayed the terrorist threat as ongoing and argued that Bill C-36 was a required, permanent tool for countering the terrorist threat. The Emergencies Act is not designed to be in permanent operation. It contains strict criteria with regard to when it is applicable or appropriate to be invoked, to be revoked and strict reporting criteria to ensure that there are no abuses of fundamental rights.'^® In short, the Emergencies >4cf contemplates a beginning, middle and end to the emergency which triggered its operation, and a return to normalcy. On the other hand, with Bill C-36 the federal government sought to redefine normalcy in the context of a post-September 11 th world. The Policy Window: ^ Emergencies Act, R .S. 1985, c.22, 4*^ supp (Ottawa: Q ueen’s Printer, 1985) 29 After September 1 t he need for some reaction to the terrorist threats and the problems created by it became pressing enough for it to be high on the decision agenda. The policy entrepreneurs in the case of Bill C-36 are varied and in some respects difficult to identify. In their submissions before the Standing Committee on Justice and Human Rights, the Director of CSIS, Ward Elcock, and the Commissioner of the RCMP, Guiliano Zaccardeili, both voiced their support for the Bill and indicated their intention to ask for more funding to accomplish the task of fighting terrorism and employing the new powers contained in Bill C-36.^° This could be a classic example of policy entrepreneurs, in this case the Director of CSIS, Ward Elcock, and the Commissioner of the RCMP, Guiliano Zaccardeili offering solution to a problem or as Kingdon would argue, “a problem that might float by to which they can attach their solution.”^^ However, access to documents pertaining to who actually helped draft the bill are limited, but it seems likely that the Minister of Justice would have consulted with members of CSIS or the RCMP through the Solicitor General in order to find out what was required for the task of fighting the terrorist threat. Therefore, it could be suggested that members of the counter terrorism and law enforcement community such as the Director of CSIS, Ward Elcock, and the Commissioner of the RCMP, Guiliano Zaccardeili, were the policy entrepreneurs. The public reports released by CSIS each year that call for more resources could be seen as standing Committee on Justice and Human Rights. Evidence. October 23^'^ 2001. Kingdon, Agendas, p. 204 30 “softening up”^^ the policy stream for a time when a problem presented itself or a change in the political climate made it possible to act.^^ In their 2000/2001-performance report the RCMP identifies a lack of funding as one of the challenges to their ability to provide good police service and update or replace aging equipment.^'* This may also be considered an example of softening up the policy stream so that when a problem arises the policy alternative presented will deliver the required funds. The fact that during submissions to the standing committee both Elcock and Zaccardeili indicated that while the money they have received is useful it is “short term money” and that they would be asking for more funds to make sure that they could meet their new responsibilities.®^ This illustrates that even after Bill 0-36 was contemplated and tabled the ROMP and CSIS were both engaged in an ongoing attempt to shape the policy even though they had benefited from the money its tabling had already generated. The purpose of this section was to identify the main policy entrepreneurs and to illustrate that the terrorist attack on September 11, 2001, both directly for security reasons and indirectly for economic reasons, opened Kingdon’s problem window. The policy entrepreneurs sensing that ^ Kingdon, Agendas, p.123, Kingdon’s word for what policy entrepreneurs do while they wait for a window to open. It means pushing the merits of the point of view and trying to rally political support for their policy alternative. C SIS website, Public reports 1991-2001 see also “On June 2 4 ,1 9 9 8 , W ard Elcock, Director of the Canadian Security Intelligence Service tabled the following submission to the Special Committee of the Senate on Security and Intelligence.” Royal Canadian Mounted Police, 2000/2001 Performance Report, online @ http://www.rcmp-qrc.ac.ca/dpr/performance01e.pdf accessed July 26, 2003. Proceedings of the Standing Committee on Justice and Human Rights. Evidence, October 23 “^ 2001. online® http://www.parl.qc.ca/lnfoComDoc/37/1/JUST/Meetinas/Evi dence/justev30- e.htm last accessed Jan 12, 2002 31 the political will existed to solve the problem opened the policy window and presented their solution to the problem. With all of the windows open and coupled the result was the creation of Bill C-36. Perceived Problems with Bill C-36 Throughout the creation of the policy there were criticisms of the Bill. These criticisms were varied and came from many different groups and individuals. For organizational purposes the presentations and /or debates will be organized in chronological order starting from the debate in the house when it was tabled and finishing with the royal assent. Criticism in the House of Commons: In the initial days of debate, during first and second reading, several things about Bill C-36 were criticized. Many different members of the opposing parties brought to light problems with the Bill that would need to be addressed at the committee stage. There was some concern that the definition of a terrorist activity was too broad and as such could be used to curtail legitimate protests or strikes.^® There was also concern that several sections involving preventative arrest and investigative hearings be subject to a “sunset clause” that would make those sections of no force and effect or require a re-enactment and review after a period of three years.®^ Hansard, October 16"’ 2001, p. 6197. Hansard, October 16'" 2001, see comments by Peter MacKay M P (PC ) p. 6179. 32 The need to protect the legal and equality rights of Canadians was also raised as a concern. The sections of preventative arrest and investigative hearings could possibly be against a persons legal Charter ngh\s and it was hoped that there had been significant attention devoted to making sure that the Bill would preserve the Charter rights of Canadians.^® NDP Member of Parliament Svend Robinson spoke explicitly about his party’s concerns with the legislation and he urged that the Bill be heavily amended in committee and he stated that he would not support the Bill in its present form because he felt that it went too far with the granting of new police powers which “constitute potentially a very grave abuse of civil liberties.’’^® Another area of concern was that the power of review and disclosure would be concentrated in the hands of the Attorney General. Also the power to conduct electronic surveillance would be concentrated in the hands of the Minister of National Defence rather than the Minister of Justice or some sort of committee. Mr. Claude Bachand, Bloc Quebecios member from SaintJean, asked the question “(h)ow can the government justify that the Minister of National Defence will be the only one to authorize electronic surveillance instead of calling on a judge to obtain such authorization?’’®® He was uncomfortable with the prospect that there would be no judicial oversight of wiretapping and video surveillance under the provisions in Bill 0-36. Finally, a major area of concern was that the Bill was drafted very hastily and as such did not get the normal level of scrutiny that a Bill its Hansard, October 16"’ 2001, pp.6195-6196. Hansard, October 16'" 2001, p. 6247. Hansard, October 16'" 2001, P. 6200. 33 magnitude required.®^ The implication was that the Bill was not vigorously tested as to its harmony with Charter rights. Criticisms of the Bill in Committee: According the Minister of Justice Anne McLellan, the standing Committee on Justice and Human rights heard over 60 submissions regarding Bill 0-36.®^ There were several concerns that were voiced by a variety of organizations and individual presenters. A reading of the minutes and evidence of the standing committee allows for the presenters to be divided into two general groups. On one hand there are those who strenuously support the Bill and on the other those who have serious reservations about it or do not support it at all. It is no surprise that Ward Elcock, Director of CSIS, and Guiliano Zaccardeili, Commissioner of the RCMP, were strongly supportive of the Bill. In their testimony they both felt that the Bill gave them the financial resources and legislative tools to use in the fight against terrorism. Mr. Zacardelli stated. Traditional investigative tools are inadequate. It is our view that Bill C36, the proposed anti-terrorism act, will make a significant contribution to the ability of law enforcement to fight terrorism in this country and abroad More specifically. Bill C-36 will criminalize terrorist financing, establish a procedure to freeze, seize and forfeit proceeds for and proceeds of terrorist activities or groups. It will enhance our ability to protect sensitive information. It will create new investigative tools and allow for preventative arrests when needed to address the serious threats posed by terrorists groups and those who would carry out Hansard, October 16"^ 2001, p. 6204. ^ Hansard, House of Commons debates, Vol 137. Number 119.1^' session, November 27, 2001, p. 7533. 34 Parliament. terrorist activities. It will establish a means to identify and list terrorist groups®^ The Canadian Association of Chiefs of Police; the Canadian Police Association; the National Association of Professional Police also strongly supported the Bill and its new powers.®'^ Gwen Boniface, President of the Canadian Association of Chiefs of Police, took the opportunity to ask for amendments to the Bill that would grant even more powers to police.®® Constable Grant Obst, president of the Canadian Police Association, stated that his organization strongly supported the Bill and urged the Parliament to proceed with swift passage. In addition he also took the opportunity to ask for additional funds to fulfill the new role of fighting terrorism.®® The main concern of these groups was that, after debate, a “sunset clause” might be added to the legislation. The group felt that a review would be prudent and useful but a sunset clause did not make sense. They argued that terrorism existed before September11th and would exist after any sort of sunset clause timeline.®^ The second most prevalent criticism was not so much directed at the Bill but at Parliament and the need for more funds to hire and train more officers.®® Of those that presented to the committee the vast majority fell into the category of organizations or individuals that had serious reservations about 63 standing Committee, October 23'^'' 2001. ^ Standing Committee, November 1®’ 2001 ^ Standing Committee, November 1®' 2001 Standing Committee, November 1®' 2001 Standing Committee, November 1®’ 2001, see comments by Constable Grant Obst and Mr. Leo Knight ^ Standing Committee, November 1®* 2001, see Mr. Mike Neibudek’s answers to questions from Ms. Pierrette Venne 35 the Bill. Most of their criticism centered on the definition of terrorism contained in the first draft of Bill C-36. Section 83.01 b ii (E) of the first draft of the Bill states that “to cause serious interference with or serious disruption of an essential service, facility or system, whether public or private, other than as a result of lawful advocacy, protest, dissent or stoppage of work that does not involve an activity that is intended to result in the conduct or harm referred to in any of clauses (A) to (0).”®^ The main problem with the definition is the use of the word lawful, which implies that if a protest or strike is not lawful it could be considered a terrorist act. The argument made by Professor Errol Menedes, as well as others, illustrate that many times protests, strikes or other types of civil disobedience are not legal or lawful but do not rise to the level of a terrorist act.^° Some groups echoed the concerns of the Members of Parliament and felt that there should be an outright “sunset clause” for all or part of the legislation.^^ Most felt that there should be a review of some kind at either three years or annually. Errol Mendes suggested that if there was a yearly review then it would be possible to make sure that sections like the Bill C -36, first reading, October 15, 2001, House of Commons Canada. Bill C -3 6 . 1®* session, 37 Pariiament, 4 9-50 Elizabetfi II, 2001 (Ottawa:Public Works and Government Services Publishing, 2001) Standing Committee evidence, November s"’ 2001, October 24'*’ 2001 comments by Patrick Monahan; see also Irwin Cotier. “Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy”. The Security of Freedom: Essays on C an ad a’s AntiTerrorism Bin. Ronald Daniels, Patrick Macklem and Kent Roach eds. (Toronto: University of Toronto Press, 2001), p. 123. Standing Committee, November 6"’ 2001, see comments by Michael Bossin, President of Amnesty International (Canada) English section.; Comments by Bryan Schwartz. 36 preventative arrest section and the investigative hearing sections were working within the confines of the Charter Heading the group of organizations that did not support the Bill at all in its first draft was the Canadian Civil Liberties Association. Alan Borovoy stated in his presentation before the Committee “the Canadian Civil Liberties Association believes this bill is too broad. It is capable of targeting a variety of behaviour that bears no resemblance to the kind of behaviour most of us would call t e r r o r i s m . J o h n Russell of the British Columbia Civil Liberties Association was slightly less critical of the Bill but raised the point that a sort of racial profiling could occur that would result in people of Muslim descent being targeted for scrutiny or arrest.^'^ The Canadian Arab Federation also felt that the Bill was poorly written and moreover, redundant. They argued that there were other parts of Canadian law to cover terrorist offences and that the Committee was rushing into creation of a new Bill without giving the House and the Government enough time to deal with, or even conceive of. Bill C-36's potential consequences.^^ Professor Mohamed Elmasry , National President of the Canadian Islamic Congress, is quoted as saying. Mr. Chair, you're going to hear supporters of this bill saying it's a good bill, but I submit to you that it's a bad bill. Muslim Canadians—Arab Canadians and those who are similar in appearance or by name to Ibid, Novem ber 6*^ 2001, Comments by Errol Mendes. Ibid, October 24*^ 2001. Standing Committee, October 30'^ 2001. Standing Committee, November 6"^ 2001. 37 those known to be Muslim and Arabs—will be the most targeted group in this country, and we should not allow this to happen. Rocco Galati, the Canadian Islamic Congress’s legal counsel, went even farther: This bill is, in my humble submission, obscene in the net it casts. You might as well have deleted the constitution from our landscape. The bill is so overbroad, it catches socio-economic and political offences. It creates them: strikes, work stoppages, boycotts, protests, association, assembly, and free speech. What's insidious about this bill, if you read clause 27 and the definition of what is a prejudicial act to the safety or interest of the state, is that there are various economic crimes that relate back to the definition of terrorism that would catch boycotts for environmental and ethical reasons; would catch any legal strike against the financial markets. This is as much about stomping anti-globalization, anti-poverty, anti­ logging protest as it is about terrorism. In fact, if it were just about terrorism, this bill would be ten to fifteen pages long [rather than 187 pages]. You are invoking extraordinary measures we haven't seen since June 21,1941, and October 1970 in terms of secret trials, secret trial mechanisms, the abrogation of the right to remain silent, self­ incrimination, the 72-hour detention without charge. You have investigative hearings that do away with all charter rights, and then you have seizure of property, and then the power to charge, convict, and sentence someone— even without knowledge whether he's a facilitator—with secret trials. I'm probably the only one in the room who's actually conducted these secret trials under the Immigration Act. They are the substance of a dictatorship, of a police state. You don't get to see the evidence, ever. It's all dealt with by the judge. It's covered; the accused person never gets to see it. The concerns of both sides of the debate were valid, but the above quote by Mr. Galati illustrates the main point of this thesis. There are portions of the Bill that are clearly incompatible with the Charter and with the basic tenets of Standing Committee, November 6'^ 2001. Standing Committee, November 6*^ 2001. 38 due process. These concerns were clearly raised during the creation and amending of the Bill and were, for the most part, ignored. While there were some substantial amendments recommended by the Committee, the general tone and tenor of the Bill remains the same and Mr. Galati’s concerns were largely ignored. Amendments: The various submissions and criticisms resulted in a handful of substantive amendments to the Bill. On November 20, 2001, the Government of Canada tabled these amendments before the Justice and Human Rights Committee. Provisions in Bill C-36 dealing with preventive arrest and Investigative hearing powers would sunset after five years unless a resolution was passed by both the House of Commons and Senate to extend either or both of these powers for up to five more years. A provision would also be added to grandfather proceedings that have already started prior to the sunset date so that they could be completed, if the powers are not extended. The Attorney General and Solicitor General of Canada, provincial Attorneys General and Ministers responsible for policing would be required to report annually to Pariiament on the use of the preventive arrest and investigative hearing provisions in Bill C-36. Provisions dealing with Attorney General certificates would be amended so that the certificate could no longer be issued at any time, but only after an order or decision for disclosure has been made in a proceeding. The life of the certificate would be fifteen years, unless re-issued. The certificate would be published in the Canada Gazette. The Attorney General certificate would be subject to review by a judge of the Federal Court of Appeal. The existing provisions and process for the collection, use, and protection of information would be preserved under the Privacy Act and the Personal Information Protection and Electronic Documents Act. 39 The word "lawful" would be deleted from the definition of terrorist activity. This will ensure that protest activity, whether lawful or unlawful, would not be considered a terrorist act unless it was intended to cause death, serious bodily harm, endangerment of life or serious risk to the health or safety of the public. An interpretive clause would be added to the Bill clarifying that the expression of political, religious or ideological beliefs is not a terrorist activity unless it also constitutes conduct that meets the definition of "terrorist activity." The provisions concerning facilitation of a terrorist activity would be reordered so that they clearly state that, in order to be guilty of an offence, an individual must know or intend that his or her act would help a terrorist activity to occur, even if the details of the activity are not known by the individual. The result is that many of the main sticking points of the Bill that were explored in Committee proceedings were dealt with in some manner. However, several of the most constitutionally offensive portions of the Bill, such as those portions highlighted by Rocco Galati, like preventative arrest and secret investigative hearings, still remain. The amended legislation was debated for a mere 5 hours after it was reported by Committee and the Government took the unusual step of invoking closure of debate in order to pass the legislation quickly.^® Anne McLellan defended the measure by saying “[t]he purpose of time allocation is to ensure that the government discharges its obligation in relation to the safety and security of Canadians. There has been much debate. It is now time for Standing Committee, November 20 2001. Hansard, November 27*'^ 2001, p. 7532. 40 action.”®° Of course, fast law does not necessarily mean bad law but there was considerable concern expressed by Members of Parliament that a Bill of this breadth and depth, which could fundamentally alter the sanctity of Charter rights was not given the due diligence and debate that such legislation should command. Limiting the debate meant that the moral question, “should we be enacting this legislation?” was replaced with the question, “how should we enact this legislation.” Summary: Bill 0-36 received Royal Assent on December 18, 2001. The purpose of this chapter was to present the issues and concerns raised by various groups and to draw a line from the time of the Bill’s inception and creation to the date of Royal Assent. Temporally that timeline was remarkably short, just over three months from the “problem” event, until the Bill became an Act. Kingdon’s model served as the framework for the policy analysis that allowed for the identification of the forces, organizations and individuals that created and shaped the policy as it traveled through the policy window. The policy analysis identified the policy entrepreneurs, the basis of political support and the rise of the issue of anti-terrorism/counter-terrorism on the governmental and decision agendas. Further, through the House of Commons debates and the Standing Committee on Justice and Human Rights proceedings, the various actors involved in policy making who were not the entrepreneurs but played an important role nonetheless were identified. Hansard, November 27*^ 2001, p. 7536. 41 Conclusions The Canadian government created and passed Bill 0-36 in haste, as a response to pressure from the United States to tighten Canadian security and in its haste, did not deal adequately with some components of the Bill that may, later, be deemed unconstitutional. Perhaps a longer time frame punctuated with more open and honest debate where the question of “should we enact this legislation?” would have created an effective and, more importantly, constitutional solution to the problem of losing the confidence of the United States. 42 Chapter Two Potential problems with Bill C-36 Bill C-36 amends the Criminal Code, herein referred to as the Code, in numerous ways. First, the bill defines what constitutes terrorist activity.®^ The main criticism is that the definition is much too broad. Section 83.01 (1) E of the Act was originally amended to remove the word “lawful” from the definition, as it would tend to make any sort of disruptive but legitimate protest or strike a terrorist off e n c e . H o w e v e r , even with this amendment the definition may still be too broad. This is true because the Bill does not explicitly list what types of offences are, or are not, terrorist offences it will be law enforcement entities that will create the definition, which will either be accepted or discounted by the Courts. Second, the bill defines what is to take place if a terrorist offence has or is about to be committed. This includes preventative arrest and investigative hearings that compel people who appear to provide evidence even though they are not under arrest. If they do not testify or turn over materials that are required by the Court then there is the possibility of arrest. Section 83.28 (8) of the code compels people appearing before a judge to Government of Canada, “The Anti-Terrorism Act,” Statutes of Canada, Volume III,(Ottawa: Queens Printer, 2001) 0-41 ^ Irwin Cotier. “Thinking Outside the Box: Foundational Principles for a Counter-Terrorism Law and Policy”. The Security of Freedom:Essays on C anada’s Anti-Terrorism Biii. Ronald Daniels, Patrick Macklem and Kent Roach eds. (Toronto: University of Toronto Press, 2001), p. 122. See also Amendments to Bill C -36 Online @ http://canada.iustice.gc.ca/en/news/nr/2001 /doc 27902.htm l accessed July 26, 2003. 43 answer questions or supply information and materials. Section 83.28 (10) expressly prohibits people appearing before a judge to exercise their right to not incriminate themselves.®^ This is a clear violation of section 13, the right to refuse to provide self-incriminating evidence, of the Charter and the court has ruled on numerous occasions that a person has the right to refuse to provide information that would be self-incriminating.®'* Section 83.29 allows for issuance of an arrest warrant for people who do not appear to answer questions or produce information.®® It is important to note that while a person appearing is not under arrest, per se, they are not able to leave the proceedings until the judge says they can go. If they do leave or do not appear in the first place they can be arrested. In R y. Therens the court defined detention as a deprivation of liberty by physical constraint or psychological compulsion or coercion where the police or other agent of the State assumes control over the movements of a person by demand or direction.®® Section 9 of the Charter states that everyone has the right not to be arbitrarily detained or imprisoned.®^ If person involved in an investigative hearing is not under arrest but cannot leave or not attend then they are detained under the court’s definition of detention. They are both physically ^ Anti-Terrorism Act, p. 32. In British Columbia Securities Commission v. Branch (1995) 2 S.C .R . 3, the court ruled that if the purpose of the investigative hearing was to gather evidence against the person called rather than some legitimate public purpose then the right to avoid seif-incrimination was intact, if a person is compelled to testify or give information that does incriminate them they are immune from prosecution using their statements in any sort of subsequent trial proceedings. See also Canada(Attorney Generai)v. Canada(Comm issioner of the Inquiry on the Blood System) (1997) 3 S.C .R . 440, and R v. lyiannion, (1986) 2 S.C .R . 272 Anti-Terrorism Act, p. 35. R V. Therens, (1985) 1 S.C .R . 613 Constitution Act, 1982, the Canadian Charter of Rights and Freedoms, The Constitution Acts 1867 to 1982 (Ottawa: Canadian Government Publishing Centre, 1989), p. 60. 44 and, more importantly, psychologically compelled to participate in the hearing since failure to do so will result in a warrant for their arrest. The issue will hinge on whether this consitutes arbitrary detention. Arbitrariness has been interpreted by the courts to mean “capricious, despotic or unjustifiable.”®® It is possible that the detention contained within s 83.28 and 83.29 could be justifiable in the interest public safety but that does not preclude that it may be capricious or despotic. Preventative arrest is another troublesome part of the code that has resulted from the creation of Bill C-36. Section 83.30 (4) allows a peace officer to arrest any person that he/she feels has or is going to commit a terrorist offence.®® On its face, that is not unreasonable. Police officers detain and arrest people all the time based on probable cause. Probable cause is the belief that a crime has been committed; is being committed; or its commission is imminent.®® Yet in the case of Bill C-36, a police officer only need believe that a crime might be committed in the future, not necessarily that it is imminent. The courts have ruled in the past that a person cannot be arrested or detained without probable cause to believe that an offence has or will be committed.®^ This sort of arrest and detention also seems to be in violation of section 9 of the Charter, which guarantees against arbitrary detention, because the reason for the detention may be considered arbitrary. For example, it is possible that a person may be detained simply because R V. Sieben (1989), 73 C .R (3d) 31. See also R v. Madsen (1994), 67 W .A .C 259 Anti-Terrorism Act, p. 36. Criminal Code of Canada, R.S, c. C -34, s. 1, (Ottawa: Q ueen’s Printer, 1985), s. 495 (1) R V. Duguay, Murphy and Sevigny (1989) 1 S.C.R 93, see also R v. Young (1997),138 F.T.R 3 7 (1 9 9 8 ) 45 they belong to a particular ethnic or religious group whose physical and cultural characteristics are similar to those of members of know terrorist organizations. This could also be construed as a violation of s. 15(1) equality rights and s. 2 rights of association, assembly, religion and belief. When a person is arrested in this manner section 83.30(6) requires that they be brought before a judge within 24 hours unless a judge is not available. If a judge is not available then the accused must be brought before a judge as soon as possible.®^ Bear in mind that at this point a suspect has not been charged yet, only detained. This too is not unreasonable since it is also a common occurrence in normal procedure of arrest and indictment. However, what is not common is that a judge may adjourn for up 48 additional hours in order to consider evidence of the legality of the detention.®^ This means that a person could be detained for up to 72 hours without being charged with an offence. Further, the judge may decide that the detention is not lawful and release the detained individual; but impose conditions on the released person at the judge’s discretion. This is problematic in light of the Charter and section 10 (c), which guarantees due process and habeas corpus. Section 10 (c) states that: “Everyone has the right on arrest or detention to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.”®"^ The court has ruled that a period of approximately 20 hours but no more than 24 hours is ^ Anti-Terrorism Act, p. 37 ^ Anti-Terrorism Act, p. 38, s. 83.30(7). Constitution Act, 1982, p. 60 46 sufficient to produce the body of a case and lay a charge or affect a release.^^ Further, section 503(1) of the Criminal Code also affirms the 24 hour time limit to bring an arrested person before a justice to determine if the detention is lawful.^® This is similar to what is included in section 83.30(6) of Bill C-36 including the provision for a delay if there is no justice available. However, there was previously no provision in the Code for a judge to take an additional 48 hrs to decide if the detention is lawful. This is a novel power contained in Bill 0-36, and, as the court has ruled on what sort of timeline is acceptable, this power is inconsistent with s. 10 (c) of the Charter and established case law. Bill C-36 also amends the Official Secrets Act in a number of ways. The main issue here is the ability of the Crown to keep information secret if it is deemed in the public interest to do so. Section 15 of the Official Secrets Act, herein known as the OSA, allows for information to be kept secret if there is a specified public interest.®^ The judge in the case would be allowed to see information but it would not be made public. In the case of an investigative hearing such information may not even be available to a detained individual or their legal counsel. The amendments to the Canada Evidence Act include another provision for excluding information if it is in the public interest. Section 37 (1) of the act allows for an objection by the government to disclosure of information on the grounds that it is in the specified public interest to keep it R V. Sullivan (1991), 96 Nfld. & P .E .I.R ., 305 A .P.R. 7 Criminal Code of C anada,. R.S., c. C-34, s. 1, (Ottawa: Queens Printer, 1985), s. 503.1 Anti-Terrorism Act, p. 66. 47 confidential.®® Section 38.06 (1 -3) allows for tfie judge to dictate what sort of disclosure there will be. The judge may rule on the merits of full, partial or non- disclosure if the disclosure would be injurious to the public interest.®® Also when making a determination in a hearing the court may receive into evidence anything that is reliable and appropriate even if it would not normally be admissible under Canadian law.^°° The lack of disclosure and the inclusion of discretionary evidence that would not normally be admitted is problematic when measured against an accused person’s right to mount a proper defense. Section 38.14(1) is designed to protect the right of a fair trial. As long as that protection does not violate section 38.06 mentioned above. In other words, the right to fair trial can be compromised by failure to disclose relevant information if it is deemed that its release would harm the public interest. There are several problems that are exposed in the Bill’s amendments to the Evidence Act. First, the court has ruled that in order for a person to know if they are in enough jeopardy to exercise their right to retain legal counsel their s. 10 (a) rights have to be respected. Section 10 (a) of the Charter states that: “Everyone has the right on arrest or detention to be informed of the reasons thereof.”^®®This means that they need to be told why they have been detained for the investigative hearing. Theoretically, this also means that they should be apprised of any evidence against them and from Anti-Terrorism Act, p. 78. Anti-Terrorism Act, p. 88. Anti-Terrorism Act, p. 79. Anti-Terrorism Act, p. 94. Constitution Act, 1982, p. 60. 48 this they can then decide if they wish to retain counsel. At first blush Bill C- 36 seems to respect the spirit of s. 10(a). Section 83.28(11) of the AntiTerrorism Act allows for a person to retain counsel at any time during the p r o c e e d i n g s . Ho we v e r , since it is possible that the information needed to make the determination of jeopardy may not have been disclosed it is also possible that the person involved in the hearing may not be aware that they need counsel. The court has ruled that simply telling someone they can have counsel but not telling them enough to decide if they need counsel does not satisfy the crown’s obligation under s. 10(a) and 10(b) of the Charter.^^^ The second problem with the amendments to the Evidence Act is that disclosure has the potential to be severely limited. In most cases, the person involved, as a “witness” in an investigative hearing will not have been charged. However, that does not mean that full or partial disclosure should not apply, regardless of the admissibility of the evidence. The protection of adequate disclosure is designed to prevent the Crown from hiding potentially exculpatory information. This would also be the case in an actual trial under the provisions of Bill C-36 and then the previous court rulings on disclosure would certainly apply. The fact that this evidence can be kept secret based on public interest is contrary to what the court has ruled in the past. In cases like R. V. Dersch and R. v. Stinchcombe the court has ruled that disclosure of evidence is required regardless of whether that evidence is inculpatory or exculpatory. The only exception is if the judge finds that the evidence does Anti-Terrorism Act, p. 37. R. V. Evans (1991) 1 S.C.R. 869, see also R. u.O ’D o n n e //(1991) 296 A .P .R .( N.B .C .A ) 91 49 not need to be disclosed in order for a person to make a full answer and defense under s. 7 of the Charter.^®® The need to balance the public interest with the interests of the accused is ongoing but Bill C-36 has made it even more imperative. The release of documents and information during a trial or a hearing may jeopardize intelligence personnel or may tip off terrorist organizations that they are being targeted. That said, it is also very important to protect an individual’s right to a fair trial and their right to make a full answer defence. The Court is in the position of having to balance these two very important considerations. The purpose of this chapter was to illustrate the flaws in the Bill that may be considered in a Charter challenge. Further, this chapter also presented examples of precedent or institutional history that support the claim that each of the highlighted sections could be considered incompatible with the Charter. The principles that would be argued in a case involving the AntiTerrorism Act, 2001 are encompassed in many past decisions by the Supreme Court of Canada and many lower courts. The court has been clear on such things as evidence disclosure, warrant less arrest, due process and immunity from self-incrimination. This suggests that a case involving any one of these legal rights would have a large number of precedents militating a court or judge to find the offending portions of the legislation unconstitutional. Further, it also means that this finding of unconstitutionality would not be saved by section 1 of the Charter. R. V. Dersch, (1990) 2 S .C .R 1505; R. v. Stinchcombe, (1991) 3 S .C .R 326 see also R. v. O ’Connor, (1995) 4 S.C .R . 411 50 However, the business of judicial decision-making is fraught with difficulties. Chief among them is the balance that must be maintained between freedom and security. The context of the case, the timing of the challenge and other things may make a difference as to what the judge in question may decide is more important, freedom or security. 51 Chapter Three Ronald Dworkln’s Theory of Judicial Decisions Ronald Dworkin Is a respected judicial theorist and this thesis employs his theory of judicial decision-making, as it is salient to the argument. Dworkin’s theory supposes that judges employ some sort of rational criteria to their judicial decisions. Dworkin presupposes two things, one is that since there is an element of rationality to the decisions judges make, patterns can be identified and studied to ascertain what will be decided in future cases, either by another judge in a similar case or by the same judge; two, this theory gives us a criteria with which to categorize judges based on their past decisions. There are other theories that explain the judicial decision-making process from a variety of standpoints. These theories, and some of their proponents, will be presented at the end of this chapter. Policy V. Principle Arguably, the traditional view of judicial decision-making is that a judge’s decision should be as unoriginal as possible and simply uphold legislature as passed and not make new law to cover what elected officials had not envisioned, or purposely left out, when the legislation in question was e n a c t e d . D w o r k i n suggests that the traditional view of how a judge comes to an original decision in a hard case is not at all accurate. He writes, “judges Ronald Dworkin, Taking Rights Serious/y (Cambridge: Harvard University Press 1978), p. 84. 52 do not decide hard cases in two stages, first checking to see where the institutional constraints end, and then setting the books aside to stride off on their own.”^°^ Dworkin theorizes that there are two types of cases, which are based either on policy or principle. A case based on principle is one that justifies a political decision that secures some type individual or group right. A case that is based on policy justifies a political decision that furthers some sort of collective goal.^°® For example, an argument of policy might be that protection from terrorism is a political decision that secures the collective goal of security and safety. On the other hand, an argument of principle on the same issue may be that increased safety is not worth diminishing individual or group rights. Dworkin suggests that most cases that are based on rights are, by their nature, cases of principle. In the context of Canada, a case could be made that the enumerated equality rights contained in section 15 of the Charter of Rights and Freedoms are incomplete and some other right, like sexual orientation, should be included because the principle behind the right is the same as the enumerated rights already included. That argument that the principle of equality has been made in the past and as a result of an original judicial decision the right now enjoys the same protection as surely as if it was written in the Charter. Dworkin, Taking Rights Seriousiy, p. 66. Dworkin, Taking Rights Seriously, p. 82. Dworkin, Taking Rights Seriously, p. 82. 53 Types of Rights According to Dworkin there are several types of rights that bear on the judicial decision-making process. They are abstract rights, background rights, concrete rights and institutional rights. Abstract rights Abstract rights are rights that are held by each person in society and justify political decisions by s o c i e t y . ^ A n example would be the right to liberty. It is an abstract concept that while not spelled out it is important to all members of society. People would not want a political or judicial entity acting in a manner that was inconsistent with society’s view of liberty. They would not want people to be detained and lose their liberty without some sort of reason. So in that vein the government and courts would have to act in a manner that would preserve liberty, everyday. The particular way in which governments preserve that liberty is unimportant when discussing abstract rights, it is enough that it is broadly recognized as a right that society holds as important. Background rights are an example of an abstract right. They exist in the background of everyday life. They exist but they contain no form or function except in the mind of each individual. Concrete rights Concrete rights are an example of an abstract right that has been given some form and function such as legal rights that have been spelled out. Dworkin, Taking Rights Seriousiy, p. 93. 54 Institutional rights are examples of a concrete right that has been affirmed to be important by the institutions, like legislatures, and are protected by some sort of defining. They are rights that have been entrenched in some sort of political action or legislation.^” An example of that sort of right would be the Charter requirement, under s. 10(b), that upon arrest or detention you be allowed to contact a lawyer as soon as possible.” ^ This is right that is concrete because it is entrenched in legislation as well as convention. This right cannot be limited and is, barring impossibility, absolute. The Canadian Charter of Rights and Freedoms In the Canadian context, the Charter not only lists what sort of rights Canadians possess but also what sort of freedoms they enjoy. The fundamental difference between a right and a freedom is that a right is a positive protection of a freedom by a concrete legislative response that defines that right at the same time as protecting it. A freedom, on the other hand, also enjoys a measure of legislative protection but is not limited or defined by the legislation that protects it. In this sense a charter freedom is more like Dworkin’s conception of a background or abstract right and a charter right is more like a concrete or institutional right. Even though a freedom may owe its codification to a legislative response, the response does not define it or limit it and therefore it remains an abstract notion of a freedom. All of this is not to say that concrete rights affirming or defining freedoms does not exist, it does. An example would be freedom of the press, which is Dworkin, Taking Rights Seriousiy, p. 93. Constitution Act, 1982, p. 60. 55 contained in section 2 (b) of the Charter.^^^ This freedom is tempered by legislation and case law that defines what freedom of the press means in practice. For example, sections 110(1) and 111 (1) of the Youth Criminal Justice Act (YCJA) expressly prohibits the publication of the identities of any person charged or acts as witness under the Act if they are under the age of 18 and are not being tried as an adult.^^"^ In this case, freedom of the press is limited by the young person’s concrete right to privacy as it is recognized by the YCJA. In a certain sense, freedoms are absolute if there is no legislation created to limit or define how far a freedom can be enjoyed. Dworkin suggests that all rights could, but need not always be, a b s o l u t e . ^ F o r example an abstract right (or a freedom) is absolute but the conception of what that right means in practice is tempered by the legislative and judicial bodies ability to recognize and protect it. A concrete right is absolute in the sense that it not only has “thought” but also has the element of “deed” or “existence.” The right is preserved as a law or policy and therefore has force. It is also a legal right, by virtue of the legislative and judicial consequences that will result in not respecting or complying with it. Dworkin states that judges decide hard cases by confirming or denying concrete r i g h t s . T h e r e f o r e it is the concrete rights that are most salient to this thesis. Concrete rights are rights that have been entrenched in legislation or in an over arching constitution. The Charter rights that are guaranteed in Constitution Act, 1982, p. 58. Youth Criminal Justice Act, Acts of the Parliament of Canada, 2 00 2. Vol. 1 c .1 , (Ottawa: Queens Printer, 2002), p.1 Dworkin, Taking Rights Seriousiy, p. 92. Dworkin, Taking Rights Seriously, p. 101. 56 the first 32 sections of the Constitution Act, 1982 are mixture of concrete rights and abstract freedoms. Concrete rights cannot be compromised away, the way that a community goal can, and they cannot be unfairly limited without some sort of justification. This is what the court justices must decide when they hear a hard case based on a Charter rights challenge. Limiting rights is normal in the context of competing rights and the justices of the court need to be able to justify the limit on a right that as Dworkin states may well be absolute. However, all rights cannot be absolute. It is difficult to imagine a world where the right to do whatever one wants is paramount. That is tempered only by other people’s right to do whatever they want and inevitably would result in a conflict of competing rights. The courts recognize this conflict will occur and interprets the concrete rights and abstract freedoms contained in the Crtarter with an eye to allowing the most freedom possible, without limiting either person’s rights unjustly. Institutional History Institutional history is what Dworkin calls the entire body of precedent, or cases that have been decided in the past, that exists that upholds or denies a certain argument of principle. This body of cases has a gravitational force that would drive any cases that come after it towards a certain direction Section 1 of the Charter allows for the limit of rights If It Is demonstrably justified In a free and democratic society. This takes Into account Dworkin’s view that rights, concrete rights, compete with other concrete rights as It recognizes that there will be times when rights need to be balanced against each other. This could be In the context of Individual versus group rights or even Individual versus Individual rights. 57 that would necessarily uphold the findings of principle in the case at hand/^® This force is pervasive and in a sense prevents a truly novel and original decision from being rendered. That said, there are times when the gravitational force of precedent is pulling the judge towards what is clearly an injustice and that can result in an original decision. The example of sexual orientation illustrates the point. Suppose the issue has been consistently ignored and defeated in the courts thus setting up a line of precedent that perpetrated what, in the fullness of time, has come to be seen as an injustice. If a judge does nothing but follow precedent in order to make sure that his/her decision is consistent it will most likely result in the same sort of injustice being perpetrated in the case at hand. However, if a judge recognizes that the precedents, which may have served well in the past, are no longer reflective of society, then he/she might step outside precedent and create an original decision that would in turn start another line of precedent and a new institutional history. However, Dworkin theorizes that judges will want to be able to bring their decision within some sort of larger scope or context. He calls this articulated consistency and it means that even in an original decision a judge looks for precedent that can back up his findings even if, perhaps, it is stretching the meaning of the principle a p p l i e d . ^ T h e r e is always a point of departure, sometimes it is a fracture and sometimes it is an incremental change that requires the government and the courts to respond to society’s changing visions and conceptions of abstract or background 118 Dworkin, Taking Rights Seriousiy, p. 113. Dworkin, Taking Rights Seriousiy, pp. 87-88. 58 rights. The difference is largely dependant on the type of judge(s) that hear(s) the case at hand. Hercules vs. Herbert Dworkin creates two categories of judges to assist in explaining his theory. One he calls Hercules and the other he calls Herbert. Their approaches to decision making are markedly different. Hercules is the name that Dworkin gives to a judge who is able gauge what the spirit of the statute is, what the meaning of the precedents, or institutional history, of the previous decisions of principle is and what the community morality is on the issue at hand. This supposes that Hercules would know the mind of the legislators and what policy or statute, if they were presented with the case at hand, they would enact. Herbert is the name that Dworkin gives to the type of judge who is not all knowing and who generally speaking would defer to precedent or the legislature on most issues. Herbert does not know or presume to be able to discover what was in the mind of legislators who created the statute at hand. If the case is a simple matter that asks him to apply a set of rules then Herbert will do just that and will not try to go any further in his analysis. However, in a hard case he/she must decide that the principle being argued is actually valid and that there is someone who deserves to “win” the case. Herbert’s version of an original decision does not take into account community morality as he/she supposes that it is included in the precedents 59 or institutional history/^° He/she feels that one does not need to choose between history, past cases, and morality, as they are one in the same. The morality of society is included in the institutional history.^^^ Herbert will want to use the gravitational force to illustrate that his/her original decision is well supported by precedent and well accepted as moral based on institutional history. In that sense it may not be a truly original decision at all, but merely a reflection gravitational force. Hercules, on the other hand, will want to limit or even deny that force if he/she feels that he cannot consistently appeal to that force in the case at hand or in the f u t u r e . T h i s is the primary difference between Herbert and Hercules. Both may come to the conclusion that someone has a right to win the case and that while there is no allowance for the particular situation in the statute in question an argument of principle could convince them to make an original decision. Herbert may have some reservations but if he/she did agree to these premises he/she would write his/her decision based on the institutional history and precedent at hand. Hercules would write his/her decision based on his conception of fairness and morality while still trying to be true to the doctrine of articulated consistency while limiting the gravitational force of precedent. Herbert sees himself/herself as a mirror of the legislature and the case law contained in the precedents or institutional history. In Hebert’s mind the citizens of society would look at him/her and the legislature and see a more or Dworkin, Taking Rights Seriousiy, pp. 125-126. Dworkin, Taking Rights Seriousiy, p. 87. Dworkin, Taking Rights Seriousiy, pp.121, 113. 60 less seamless wall with the only seam being where arguments of policy end and arguments of principle begin. Hercules also sees himself/hersellf as a mirror of the citizens that make up society. His/her perception is that community morality and community values are not necessarily contained in legislation or even in the mind of the legislator who is supposed to represent the citizen. In his/her mind, community morality and community values are contained in his/her decisions. Judicial Criteria So what then are the criteria that we can use to decide if the Chief Justice of the Supreme Court of Canada is a Herbert or a Hercules? If a justice, is, to a certain extent, deferent to the legislature, relies on precedent to preserve articulated consistency and is not concerned with expressions of community morality in their decisions, outside what is contained in the precedent employed, then they can be categorized as a Herbert type judge. A Hercules type judge would not be deferent to the legislature since he/she presumes to know what the legislators would do to solve the case at hand. He/she would also not be inclined to use the gravitational force of precedent to remain true to the doctrine of articulated consistency. Finally, he/she would make certain that his decision included and upheld an expression of community morality since he/she does not feel that morality is necessarily contained in past precedents and existing legislation. 61 Some Critiques of Dworkin’s Theory There are, of course, other theories that explain how judicial decisions are made. Some of them and their proponents are presented below. Realists Realist theory centers on the idea that there are no discernable patterns in case law judicial decisions. Judges simply muddle through and make decisions that are indicative of their experiences and personal b i a s e s . R o b e r t W. Gordon is from the “realist” arm of the movement known as Critical Legal Theory and he suggests that there is no pattern to judicial decision-making. He argues that even if you could see patterns in institutional history they do not govern the actions of justices as much as Dworkin s u g g e s t s . J e r o m e Frank, another realist, who calls the idea of following institutional history an exercise in finding “Illusory Precedents”, echoes this.^^^ What Frank means is that there are precedents contained in institutional history but they are not in a discernable pattern and, individually, they could be used to support almost any position. Legal Positivism Legal positivist theory, which is closer than the realist school of thought to Dworkin’s conception of how judicial decisions are made, is, nonetheless, also at odds with some of his assertions. Legal positivists assume that there Jerome Frank, “Realism and the Law”, Readings in the Phiiosophy of Law, 3’'* ed, Eds John Arthur and William H. Shaw (New Jersey: Prentice-Hall Inc, 2001), p. 133-140. Robert W . Gordon, “Critical Legal Histories”, Criticai Legai Studies, Ed. Jam es Boyle (New York: New York University Press, 1992), p. 57-161. Frank, Realism and the Law, p. 136-137. 62 is a gulf between the way that the law is and the way that the law ought to be. That is, they believe that there is some point where law, as it is, and morality, as it ought to be, intersect.^^® W. L. Waluchow, a legal positivist, argues that Dworkin’s suggestion that morality, which is contained in the institutional history, creates the best example of a settled conception of law is, at best, a haphazard representation of morality and its effect on decision making. Instead, Waluchow states that judges will make decisions based on their understanding of community morality even if there is some measure of community morality contained in institutional history. Waluchow also argues that Dworkin’s theory does not sufficiently take into account the effect that some institutional forces of law, like the make-up and hierarchy of the court system, can limit the power of lower court judges, even Herculean judges.^^® What he means is that Hercules may not be able to deny the gravitational force of precedent because it is simply not in his power to ignore it. This true because, precedent, even mistaken precedent, still has force and, middle and lower court judges may not be able to ignore its gravitational force even if the judge in question is a lower court Hercules. While the criticisms of both schools of thought suggest that Dworkin has, to some extent, simplified the process that judges go through when they make decisions they do not render his theory impotent for the purposes of this 126 H.L.A Hart,i, “Positivism and the Separation of Law and Morals”, Readings in the n.i_.rv ridi ruoi Phiiosophy of Law, 3’'* ed, Eds John Arthur and William H. Shaw (New Jersey: Prentice-Hall Inc, 2001), p. 151. W .L. Waluchow, Inciusive Legal Positivism (New York: Oxford University Press, 1994), pp. 43-45. Waluchow, Inciusive Legai Positivism, pp. 53-55. 63 thesis. Dworkin’s theory is useful in this case because his theory presupposes that institutional history or precedent is like a road map that can be read to determine where arguments on specific issues have come from and where they are going. In the context of Canadian jurisprudence on Charter rights the timeline is only twenty years and in that time the Courts in Canada have created a roadmap, with a few detours, that can be followed. In contrast, the American Courts have had much longer to take detours and create bypasses as the justices have attempted to define and protect rights that are enshrined in the American Bill of Rights. The theorists that are critical of Dworkin’s approach dismissing his theory by declaring it too simplistic and Dworkin guilty of assuming order and patterns where they do not exist are measuring the validity of the theory in relation to 200 odd years of jurisprudence, in the American context. In that case, the criticisms may be valid. But in the Canadian context the passage of time has not yet made it impossible to see the road map that is made up of case law and precedent. Dworkin’s abstract theory is affirmed by this reality of Canadian judicial decision-making, which is why Dworkin’s theory, rather than some other, is the most salient to this Canadian example of Bill C-36. Summary The purpose of this chapter was to examine Dworkin’s theory of judicial decision making to ascertain what criteria may be used to label a judge as either Hercules or Herbert. With that criterion in mind the thesis will 64 examine what sort of justice Beverly McLachiln Is and what effect, If any, this could have over the rest of the justices who sit on the Supreme Court of Canada. 65 Chapter Four Dworkin’s theory applied to the Canadian Supreme Court The Justices of the Supreme Court of Canada, herein referred to as the SCC, are not like Dworkin’s Hercules. In reality, few judges, if any are able to know and balance all that Hercules does when he decides a hard case. That is not to say that original decisions are not written, they are. It simply means that judges do what they can to understand the principle being argued and in some way come to a decision that, as Dworkin says, either upholds or denies a concrete right.^^® For the purposes of this thesis the test case will be Madam Chief Justice Beverly McLaughlin. Theoretically Dworkin’s criterion could be applied to any justice on the Supreme Court, or any lower court for that matter. Having said that, it may be problematic to analyze the decision-making patterns of other justices especially if their background is not in constitutional law or their career experience does not span a long period of time. The analysis of their decisions may not yield a conclusive picture as to what type of justice they may be. Further, to study all of the Justices of the Supreme Court is not feasible and, at best, would only yield an incomplete picture of individual justices’ decision-making patterns for the reasons just mentioned. In order to examine decision-making patterns of Chief Justice McLachlin the author will employ some of the opinions of Peter McCormick. Dr. McCormick is one of, if not the, foremost expert in the area of Canada’s Supreme Court and judging and jurisprudence in general. He has researched Dworkin, Taking Rights Seriousiy,pAOl 66 and written extensively on the decision-making patterns of the various incarnations of the Supreme Court of Canada, most extensively in his book Supreme at Last. Due to this breadth and depth of academic research, McCormick’s observations about the type of court the “McLachlin Court” is/will be, are imperative in any discussion of judicial decision-making. The reasons for using McLaughlin CJ as the test case for Dworkin’s theory are varied. McLaughlin has been a Justice of the Supreme Court since 1989 and prior to that she was Chief Justice of the British Columbia Supreme Court, so her personal experience is both long and steeped in Charter jurisprudence. As the Chief Justice of the Supreme Court of Canada, McLaughlin has the power to set the tone for the court. Some of this power is indicative of her position, some is indicative of the current make-up of the Court and some is indicative of her personal ability to manage the other justices and the media. While it is true that McLachlin’s vote is only one out of nine, there are, at least, four ways that she can set the tone for the Court. First, the CJ has several advantages that give her more leverage over the other members of the court. McCormick writes, [ajrguably, it always better to be chief justice than not chief justice, because the chief justice makes decisions about panel sizes and panel assignments, and, when in the majority, she makes the decision about who will draft the judgment. Without suggesting that there is anything devious about the use of these opportunities and without denying that there is a price to pay if that use is too clumsy or too heavy handed, these choices can, in aggregate, be highly significant.^^® 130 Peter McCormick, Supreme at Last: The Evolution of the Supreme Court o f Canada. (Toronto; Jam es Lorimer, 2000), p. 163 67 As Chris Manfred! argues “I know she is one vote out of nine, but the chief justice sets the tone for the court and can have a far greater influence beyond that vote”^®^ Second, by virtue of the fact that there has been a comparatively high turnover due to retirement in the last three years, the Court is one of the most junior in history and, according to Peter McCormick, this will mean that McLachlin will posses more influence over the decisions-making process of the Court. McCormick writes: To be sure all judges come to the Court with a considerable degree of experience, professionalism, and intelligence, but there is still normally a transition period (typically, I would suggest, of two years or more before new judges are ‘up to speed’ with their senior colleagues, and during that transition period, seniority carries more weight than usual. For the first several years of her chief justiceship, McLachlin will be presiding over the most junior and inexperienced Courts in its history, and this means she will enjoy more leverage from the center chair than is normally the case.^®^ Third, she has made herself much more available to the media than her predecessors. She has not been afraid to defend the Court’s actions in public and she accepts more speaking invitations than former Chief Justices of the Supreme Court of Canada Antonio Lamer and Brian D i c k s o n . T h i s results in her being able to control the “spin” on decisions even if she did not agree with them. McCormick sums up this power well. He writes: The net effect of all this is to make the chief justice more than ever the visible spokesperson for and public access point to the Supreme Court. Especially if media availability becomes a regular feature of the Julian Beitrame, “Judging Beverly” M aclean’s, 20 May 2002, 28 McCormick, Supreme at Last, pp. 163-164 Beitrame, “Judging Beverly” M aclean’s, 68 McLachiin chief justiceship rather than a one time transitional effect, she has an added point of leverage over her colleagues: when the Court divides, she will (but they will not) be on the national news for the next few days, putting the “spin” on the outcome. Finally, and perhaps the most salient point, her intellect and ability to persuade others to reach a consensus on an issue gives her more opportunity to press the inherent power of her position. This is evident in the statistics for last year. In 2001, 82% of cases were decided unanimously. This is the highest it has been in the last ten years and up from 72% in Lamer’s last year as chief j u s t i c e . T h i s may be due to the Court being more junior than Lamer’s in his last year. Regardless, this only serves to illustrate the point that McLachiin can wield significant influence from the center chair. That is not say that the other justices of the Supreme Court will blindly follow her; they will not. However, she is the logical choice as a test case by virtue of the abilities listed above and the experience she has gained as a Supreme Court Justice. Madam Chief Justice Beverly McLachiin is a justice that is more a Herbert than a Hercules. McLachiin, CJ has always considered the law to be paramount over personal feelings of an i s s u e . S h e is quoted as saying “I’m very much in the middle. I feel strongly about individual liberties, but I also feel strongly about equality and anti-discrimination provisions in the Charter.”^^^ She is also quoted as saying “I’m not there to vote for this law or McCormick, Supreme at Last, p. 165 Supreme Court of Canada, Statistics 1991-2001, O niine® http://www.scccsc.gc.ca/information/statistics/HTML/cat4 e.asp accessed October 1, 2003 Beitrame, “Judging Beverly”, M acLean’s Beitrame, “Judging Beverly” M acLean’s 69 that. My job is to decide each case fairly, according to the law.”^^® She has also stated this position in response to criticisms of judicial activism. She writes, Judges must be impartial. They must not be biased. Their job is to study the law and the facts, listen to all the arguments pro and con, and after due deliberation, rule as their intellect, informed conscience, and training dictate. The spectre of agenda-driven judging is, to the best of my knowledge, just that - a spectre. If established, it would be a terrible thing and could not be tolerated. In particular relation to the Charter she writes. In the course of their work, judges may have developed fairly firm views about what a particular Charter provision means or where the lines should be drawn between conflicting rights and interests. It is the task of the judge, at the beginning of each new case, to suspend those views and reconsider them in light of the submissions of the parties in that particular case.^'^® There is also evidence that McLachiin has always identified herself with a style of judging that is more inclined towards that of a Herbert. In fact, she has expressed the opinion that a judging style similar to that of a Hercules is not the most advantageous when dealing with Charter cases. In a 1989 University if British Coiumbia Law Rev/ew article McLachiin, Chief Justice of the British Columbia Court of Appeal, as she was then, writes, [cjourts must insofar as possible strive for consistency. Judicial oscillations may result in decisions which seem more the product of particular judges, and perhaps of the particular politicians who appointed them, rather than the rule of law. The balance between flexibility and consistency is a difficult one, but one which the courts must struggle to maintain if their decisions on the Charter are to be 138 Beitrame. “Judging Beverly” M acLean’s Hon. Beverly McLachiin, “Courts, Legislatures and Executives in the Post-Charter Era.” Judicial Pow er and Canadian Democracy, edited by Paul Howe and Peter H. Russel, (Montreal-Kingston: McGill-Queen’s University Press, 2001), p. 70 McLachiin, Courts, Legislatures, p. 70 70 seen as more than the cumulative product of caprice or the political process. With regard to the role of the Courts and the limited deference to the Legislative and Executive branches of government that is also a characteristic of a Herbert type judge, McLachiin writes, The second rule judges should follow is that they should be appropriately respectful of the role of Parliament and the legislatures and the difficulty of their task. While always important, this rule assumes particular significance in cases where the Charter or law at issue permits two or more interpretations or authorizes the judge to exercise discretion. “Appropriate respect” presupposes an understanding of the role of the legislative branch of government as the elected representative of the people to enact laws that reflect the will and interests of all the people. To state this role is to acknowledge the difficulty of its execution. In a society as diverse and complex as ours, enacting laws is rarely a simple process of codifying the will of the people. It is rather a delicate task of accommodating conflicting interests and rights. Compromise is the watchword of modern governance. Judicial decision-making, on the other hand, is necessarily a blunt instrument, incapable of achieving the balances necessary for a workable law acceptable to society as a whole. That is not to say that, where an individual’s constitutional rights are at stake, the courts must always accept the compromises the legislators work out. Where laws unjustifiably violate constitutional rights, it is the clear duty of the courts to so declare, with the result that the offending law is to that extent null and void under Section 52 of the Charter. Slavish deference would reduce Charter rights to meaningless words on a scrap of paper. It is to say, however, that judging should be grounded in principle and an appropriate respect for the different roles of elected representatives of the people and the courts. Thus far in our Charter’s short history, the courts have repeatedly countenanced respect for the choices of Parliament and the legislatures. They have repeatedly affirmed that it is not the Court’s role to strike the policy compromises that are essential to effective modern legislation. The role of the courts is the much more modest but nevertheless vital task of hearing constitutional claims brought by individuals, identifying unconstitutional legislative acts where such can 141 Justice Beverly McLachiin, “The Charter of Rights and Freedoms: A Judicial Perspective”, The University o f British Columbia Law Review, Vo! 23, no. 3, (1989), p. 589 71 be demonstrated, and applying the Charter we have all agreed McLachiin respects the role of the legislative body and does not seek to occupy that role. Hercules, by his nature as described by Dworkin, would not hesitate to substitute his reasoning and decisions for that of the legislature, to as McLachiin writes, “strike the policy compromises that are essential to effective modern legislation.” This is something that McLachiin recognizes is not the role of courts or judges. Hercules wants to legislate, McLachiin wants to interpret and communicate the results of that interpretation so that legislatures can legislate. She calls judicial decision­ making a “necessarily a blunt instrument, incapable of achieving the balances necessary for a workable law acceptable to society as a whole.” Hercules would not agree with that assessment, as he/she would see it as a blunt instrument rendered a surgical tool by virtue of his superior ability to wield it. While McLachiin may have some deference to the legislature she will not allow something that is unfair and clearly against the supreme law of Canada, the Constitution, to exist unless it can be justified. It is the method, and goal expected from that method, of dealing with the constitutional breach that differs in their approaches. There are some examples of this difference that illustrate the goals and methods that divide a Hercules from a Herbert, or in this case a McLachiin. In R V. Keegstra McLachiin wrote a dissenting opinion that outlined this position. She argued that, even though Keegstra had been accused and McLachiin, Courts, Legislatures, pp. 71-72 72 convicted of spreading hate his Section 11 (d) Charter rights had been infringed by the state due to the fact that truth is the only defence to making defaming remarks or spreading hate and this puts the burden on the accused to prove innocence when it is really the role of the Crown to prove guiltJ"^^ Section 11 (d) allows that a person is innocent until proven guilty in a fair and public tr\a\V^ In dissenting McLachiin stated that, Section 319(2) breaches the guarantee of freedom of expression enshrined in the Charter. Moreover, the defence provided under s. 319(3)(a) infringes an accused’s right to be presumed innocent. The importance of such objectives as avoiding discrimination, racial violence and promoting multiculturalism, is such that a limited and measured infringement of free speech may be justifiable under s. 1 of the Charter, provided that the means chosen are proportionate. However, the broad criminalization of virtually all expression which might be construed as promoting hatred effected by s. 319(2) of the Criminal Code is not, in my view, a proportionate and appropriate means of achieving the ends to which the legislation is directed. The breadth of the category of speech it catches, the absolute nature of the prohibition it applies to such speech, the draconian criminal consequences it imposes coupled with the availability of preferable remedies, and finally, the counterproductive nature of its actual effects - all these features of s. 319(2) of the Criminal Code combine to make it an inappropriate means of protecting our society against the evil of hate propaganda.^'^^ In this case a Hercules may have felt that though there was a technical infringement of sections 2(b) (freedom of expression) and 11 (d) of the Charter the community standards regarding speech that is unpopular or morally offensive would have to be upheld. This would mean that Hercules would have upheld the legislation based on the fact that the benefit derived from limiting free speech is sufficient. Hercules may recognize the argument R V. Keegstra (1990) 3 S.C .R ., p. 706 Constitution Act, 1982, p. 60 R v. Keegstra (1990) 3 S.C .R ., pp. 867-868 73 made regarding section 11 (d) as problematic. However, this is something that he/she could easily overcome if he/she felt that the speaker or writer of the offensive material should have to defend the validity of the statements made. In a much more broad sense than Hercules’ conception, truth or the belief of truth is currently the only clear defence against a defamation charge. However, if challenging the accused to defend the truth of the statement is carried much farther than a basic questioning of the belief of truth, McLachiin, a Herbert, believes that such a tack violates the Chartet’s conception of the Crown having to prove guilt and not the accused’s responsibility to prove innocence. In R V. Zundel, McLachiin sided with the majority and wrote the decision which struck down Section 181 of the Criminal Code^^^, which prohibits spreading of false or defamatory information or “telling tales”, on the grounds that it was an unjustifiable limit on the section 2(b) Charter right of freedom of e x p r e s s i o n . T h e message from the Court was that expression is protected regardless of the information that is being conveyed. McLachiin stated that, (b)efore we put a person beyond the pale of the Constitution, before we deny a person the protection which the most fundamental law of this land on its face accords to the person, we should, in my belief, be entirely certain that there can be no justification for offering protection. Once again, Hercules could argue that the material being conveyed did matter insofar as whether or not it offends community morality or standards of R I/. Zundel (1992) 2 S .C .R ., p. 743 R V. Zundel (1992) 2 S .C .R ., pp. 733-732 R V. Z u n d e /(1992) 2 S.C .R ., p. 758 74 what is acceptable. Hercules would see the offering of the protection of section 2(b) as a matter of truth and validity of the statements being made. If he/she feels that the message or speaker is unpopular or offends community standards then he/she would move to have it excluded from the protections offered by the Charter. He/she would not need to be “entirely certain that there can be no justification for offering protection.” He/she would only need to believe that the Charter ser\/es the will of the community and should be interpreted as to allow the greatest amount of latitude to exclude speech and expression rather than, as McLachiin is saying, the greatest amount of latitude to include speech and expression. In R V. Sharpe, McLachiin wrote the majority opinion, which stated that while some of the sections of the Criminal Code that pertain to possession and distribution of child pornography are useful they are unnecessarily broad in their application.^"^® This meant that in the case of mere possession in order for the Crown to justifiably limit Sharpe’s section 2(b) freedom of expression rights the relevant sections had to be very narrowly applied. The legislation as written had the potential to be broadly applied and not defensible as a justified limit on a Charter right. In f? V. Hall, a 2002 case involving the standards by which bail can be denied, McLachiin stated that. The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of iustice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has R V. Sharpe (2001) 1 S.C .R ., p. 45 75 specified. The judge cannot conjure up his own reasons for denying bail; while the judge must look at all the circumstances, he must focus particularly on the factors Parliament has specified. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. In addition, as McEachern C.J.B.C. (in Chambers) noted in R. v. Nguyen (1997), 119 0 .0 .0 . (3d) 269, the reasonable person making this assessment must be one properly informed about "the philosophy of the legislative provisions. Charter \/a\ues and the actual circumstances of the case" (p. 274). For these reasons, the provision does not authorize a "standardless sweep" nor confer open-ended judicial discretion. Hercules could have looked at this case as an opportunity to keep the discretionary power of granting bail broadly defined and he/she would have wanted the power to “conjure up his own reasons for denying bail” and couch them in terms of maintaining confidence in the administration of justice. Mclachlin, who is a Herbert, defers to the criterion that is laid down by Parliament through the legislation and by the overarching imperative to maintain confidence in the administration of justice. She does not seek to insert her own reasons, even as additional support to the stated Parliamentary reasons for denying bail, but rather defers to Parliament’s reasons for doing so. As she stated in Canada (Human Rights Commissioner) V. Taylor, Absolute precision in the law exists rarely, if at all. The question is whether the legislature has provided an intelligible standard according to which the judiciary must do its work. The task of interpreting how that standard applies in particular instances might always be characterized as having a discretionary element, because the standard can never specify all the instances in which it applies. On the other hand, where there is no intelligible standard and where the legislature 150 R V. Hall (2002) 3 S.C .R ., p. 41 76 has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no "limit prescribed by law"/^^ The above decisions illustrate that McLachiin does not mind and, in fact, requires that legislation and case law govern the direction that her decisions are to go. Hercules, on the other, does not willingly submit to the yoke of Parliamentary legislation or case law if there is the opportunity to reserve broad power to substitute his decisions and reasons for the legislature’s or the precedent contained in the institutional history of the courts. According to Peter McCormick, McLachiin is not the judicial activist that Lamer CJ was and her court will not be as active as his in these areas and in fact may beat a hasty retreat in the equality rights area of sexual o r i e n t a t i o n . A l l of this suggests that there will be less of the Hercules type original decisions that employ personal morality and more of a deference to the institutional history of the Court. In other words, the breaking of new ground may no longer be the focus of this SCC. Instead the court will focus on original decisions that are more incremental and that have a strong support of the body of cases and institutional history they represent. We can see further proof of this from McLachlin’s own statements. She writes. It is still very early days for the Canadian Charter. But already we have a significant body of jurisprudence fleshing out its guarantees. Future decisions will build on this. The first time a Charter pronouncement is made that seems to change the law, it may strike many as “activist.” But as a body of principle develops, the foundation of court decisions Canada (Hum an Rights Commissioner) v. Tayior (1990) 3 S.C.R., pp955-956 McCormick, Supreme at Last, pp. 1 5 9 ,1 6 2 77 on the words of the Charter and the stable nature of the jurisprudence will become more apparent/^^ When the above quotes from McLachlin’s academic writings, as well as the decisions that she has authored, are examined it seems apparent McLachiin is a judge who is more inclined to be like Herbert. Central to Herbert style judging is the respect for the doctrine of articulate consistency, which we know from Chapter Three means to be able to bring a judicial decision within a larger frame of reference or body of precedent, and respect for the institutional history of the Court. Madam Chief Justice Beverly McLachiin would follow the basic tenets that differentiate Herbert from Hercules: Herbert’s respect for institutional history, and the morality contained therein, and the embracing of the gravitational force of past decisions in deciding hard cases. As opposed to Hercules’s inclination to limit the gravitational force in order to come to a decision that is based on some other personal or community moral concept of fairness. McLachiin would argue that this is an example of the “agenda-driven judging” which she discounts above as a “terrible thing” which “could not be tolerated”. This is clear indication that she sees the role of judges as limited by the facts in the case at hand and the precedent that enshrines the principle being argued. She would see the role of a Hercules type judge as more “agenda driven” and activist in aggressively advancing rights through decisions that lack the gravitational force of precedent. McLachiin, Courts, Legislatures, p. 71 78 It is not the author’s intention to argue that McLachiin and by extension her Court, are less interventionist than other previous supreme courts when they rule on Charter cases. The nature of jurisprudence is founded on the principle that the courts intervene between two, or more, opposing groups. The primary function of the judicial branch of government is to be an effective check on the power of the legislative and executive bodies who, left unaccountable, could pass legislation that would ignore minority concerns and leave them with no recourse or appeal. The Madam Chief Justice McLachiin is interventionist because that is the job description of a judge, especially an appeal court judge. What she, and her Court, is not, however, is overly activist. This means that in cases involving the Charter, such as the ones mentioned above, McLachiin has consistently acted to protect the rights and freedoms that were stated and defined through precedent. This is what the author would consider interventionist and, therefore, an expected function of the Court. On the other hand, judicial activism is the creation and extension of rights to new groups or individuals. As McCormick writes above, during McLachlin’s time as Chief Justice the activist role of the court will be diminished. What her own words and actions suggest is that rights that are within the Charter are to be respected and only limited in very specific incidences. In Chapter Two, the constitutional weaknesses of the Bill were exposed. Further, the Institutional history of the Court with respect to the 79 areas of constitutional weakness was also presented. Those weaknesses and the accompanying precedent illustrate that the legislation is created to limit legal rights contained in the Charter. A case involving a challenge to Bill C-36 will not be argued on the basis of extending new rights but of preserving long held and fairly clearly defined existing and basic, equality and legal rights. Since, as we have seen above, McLachiin is, by her own words and actions, a Herbert and she would look at the precedent or institutional history of the court with respect to the Cha/ter sections infringed upon by Bill C-36 and defer to it. In a very real sense, the opportunity to be an activist Court is limited because the Executive and Legislature are filling the activist role by creating legislation that is an, unprecedented, unjustified limit of Charter rights; these are rights that Canadians had previously possessed without the encumbrances of Bill C-36. The real question then becomes, as a Herbert will she defer to the legislature or the institutional history of the Court? Her words and actions suggest that that she will side with the institutional history in the case of Bill C-36 because that is all that she can do and still protect the legal rights in the Charter. Her words, presented above and reproduced here, state. That is not to say that, where an individual’s constitutional rights are at stake, the courts must always accept the compromises the legislators work out. Where laws unjustifiably violate constitutional rights, it is the clear duty of the courts to so declare, with the result that the offending law is to that extent null and void under Section 52 of the Charter. Slavish deference would reduce Charter rights to meaningless words on a scrap of paper. It is to say, however, that judging should be grounded in principle and an appropriate respect for the different roles of elected representatives of the people and the courts. 80 Thus far in our Charter’s short history, the courts have repeatedly countenanced respect for the choices of Parliament and the legislatures. They have repeatedly affirmed that it is not the Court’s role to strike the policy compromises that are essential to effective modern legislation. The role of the courts is the much more modest but nevertheless vital task of hearing constitutional claims brought by individuals, identifying unconstitutional legislative acts where such can be demonstrated, and applying the Charter we have all agreed upon.^^'^ The essence of McLachiin is that she is a Herbert who is forced, from time to time, to act like a Hercules and seem activist in order to protect rights that are gained and defined incrementally (through jurisprudence) but are threatened by a great leap backwards. This is what the author would argue is the case with Bill C-36. In addition, if the power that McCormick believes McLachiin possesses is employed it is not unreasonable to assume that she could influence the decisions of the other justices of the Supreme Court. Summary The purpose of this chapter was to apply Dworkin’s theory of judicial decision-making to the SCC, particularly Chief Justice Beverly McLachiin. This in turn allowed us to label her as a Herbert type judge. The result of that comparison illustrates that McLachiin wields significant influence over the Court and that could mean that McLachlin’s vision of Charter rights may also be the entire Court’s vision of Cha/ter rights. That being the case, the Court as a whole could then be considered to also be more closely associated with Herbert rather than Hercules. This means that the Supreme Court would most likely find that several sections of Bill C-36 infringe the Charter lu a McLachiin, Courts, Legislatures, pp. 71-72 81 manner that is not justified in a free and democratic society. Precisely what the Court would do after this finding is speculative, but some options are presented within the Conclusion. 82 Conclusion The purpose of this thesis was to argue that if the Supreme Court of Canada heard a case involving a Charter challenge of Bill C-36 (the AntiTerrorism Act, 2001) in the context of legal theory, case law and due to the character of the court, it would not uphold the law as enacted. Kingdon’s model helped to illustrate the policy creation and implementation stage to highlight amendments and concerns that were raised at that time. The fact that the legislation was passed very quickly does not, in itself, account for the flaws in the legislation that were highlighted in Chapter Two- but it also cannot be discounted as a contributing factor. Dworkin’s theory of judicial decision-making was presented in order to provide a criterion for categorizing judges and decisions. In Chapter Four that criteria was applied to our test case judge Madam Chief Justice Beverly McLachiin. This allowed us to suggest that McLachiin is more Herbert than Hercules. This means that in a case involving Bill C-36 she would side with precedents contained in the institutional history of the courts. In contrast, based on Chapter Three’s description, Hercules would seek to control, limit or ignore altogether the force that precedent, or institutional history of the Court, exerts in a case that turns on an argument of principle. In this case, Hercules, like McLachiin, would not defer to the legislature and simply uphold the legislation as written. Hercules would most likely take a much more invasive and proactive approach and strike down or significantly alter, through the doctrine of “reading in”, the legislation by substituting his own meaning 83 and morality. Remember, Hercules has no qualms about stepping into the domain of the legislators because he is able, through his heightened powers of deduction, to know the intent of the legislation and the overriding morality the is the underpinning of the law. Why send it back to be altered by the legislators when it can be done in one mighty stroke of Hercules’ pen. McLachiin decries this method or role of judging and would not go so far and that is what makes her more like Herbert. They both may decide that something is wrong with the legislation but the disposition of the case would reflect the level of deference and respect that each has for the legislators and the institutional history of the Court. The principles contained in the precedents that are outlined in Chapter Three would require any judge following them to conclude that the limits placed on the legal rights in question are not justifiable and as such would fail on or more of the tests laid out in R v. Oakes. In the section below the “Oakes Test” is explained further in the context of remedy, which was developed by the Supreme Court in response to the 1992 case entitled Schachter v. Canada. Remedies Available Under Schachter v. Canada: Shalom Schachter and his wife had a child in 1985. His wife took 15 weeks of maternity leave as allowed by the Unemployment Act, 1971 and it was Mr. Schachter’s intention to stay home with the child as soon as his wife went back to work. He applied for benefits under s.32 (later s.20) of the Unemployment Insurance Act, 1971 and he was denied benefits because he 84 was not an adoptive father. Section 32 (now s.20) of the Unemployment Insurance Act, 1971 states that; Notwithstanding section 25 [now s. 14] but subject to this section, initial benefit is payable to a major attachment claimant who proves that it is reasonable for that claimant to remain at home by reason of the placement with that claimant of one or more children for the purpose of adoption pursuant to the laws governing adoption in the province in which that claimant resides. He ultimately took three weeks off work without pay. He appealed to a board of referees where his appeal was dismissed. He then appealed to an Umpire. At this point he made it known that he was going to launch a court challenge in via The Federal Court, Trial Division. Justice Strayer of the Federal Court agreed that s.32 (s20) of the Unemployment Insurance Act, 1971 was not compatible with s. 15 of the Canadian Charter of Rights and Freedoms.^^^ The legislation itself was not unconstitutional but the manner in which it was applied was. Section. 32 of the Act was under-inclusive in its application. Section 24(1) of the Charter guarantees a remedy if rights have been infringed and a case has been brought before the c o u r t s . T h a t is not to say that a win or positive outcome for the plaintive is guaranteed in every case. This simply means that there has to be a decision made, a remedy prescribed which from the standpoint of either plaintive or the accused may or may not mean a “win.” Under section 52(1) of the Constitution Act, 1982 if a law is deemed inconsistent with the Constitution, the Charter included, it is to be declared to have no force or Schachter V. Canada (1992) 2 S.C.R 690. Schachter, p. 691. Schachter, p. 690. 85 effect to the extent of the inconsistency/^^ If this is the case there are generally two options for the court. The court can strike down the whole piece of legislation or the court can sever the offending part of the legislation provided the remaining part of the legislation will still have force and value. In this case the justice felt that this was not an issue that could be solved by striking down the legislation in question since it would not give remedy to Mr. Schachter and would deprive those who benefit from the policy. He also felt that severing the offending part of the legislation would mean the same thing for those who were currently receiving benefit from section 32(s. 20). So in order to satisfy the need for an s.24 (1) remedy he “read in” the rights of the natural father. This means that s.32 would now include both adoptive and natural fathers as being entitled to benefits. The decision was appealed to the Federal Court of Appeal on the grounds that Justice Strayer had erred when he provided a remedy under s.24 (1) without engaging s.52 (1) and the required tests that would guide the disposition of the case.^^® In appeal the court was split on this issue with Heald J.A siding with the lower court ruling and the logic contained therein and Mahoney J.A who felt that the power to grant relief in this manner was outside the power of the court and resided solely with the legislature. Mahoney J.A writes in his decision; Even if the power of a court to legislate by way of a subsection 24(1) remedy were found to exist in circumstances which do not entail the appropriation of public monies, no such power can be found to exist where the remedy appropriates monies from the Consolidated Schachter, p. 691. Schachter, p. 692. 86 Revenue Fund for a purpose not authorized by Parliament. A purposive approach to remedies under subsection 24(1) cannot take a court that far.^®° Clearly Mahoney J.A felt that it was outside the power of the court to “make law” because that function of policy making rests with parliament. The case was referred to the Supreme Court of Canada on this issue. The justices of the Supreme Court of Canada were asked; does the court have the power to make law via section 24(1) or does it only have the power to strike down laws that are not consistent with the Constitution? In addition, if the SCC found that the courts did have the power to “read in” rights to an under-inclusive policy it could mean that the constitutionally granted power of making laws reserved for the legislative and executive branches of government is no longer absolute. The courts could make policy in every case. They would no longer simply interpret what is constitutional and what is not. The Supreme Court Decision In deciding Schachter the Supreme Court of Canada took the opportunity to define what powers the courts have with respect to correct disposition of consitutional cases. Any cases that appear before the courts in Canada that are argued on the basis of an infringement of Charter rights must go through a s.1 test know as the Oakes test. This test helps the court decide what remedies are available to them based on the parts of the test that the policy in question fails. In the case of Schachter the policy that would be required to pass the test would be the U.l Act in general and s.32 (later s.20) ^^°Schachter, p. 693. 87 in particular. To better understand the test and the SCC decision in this case I will take a moment to explore the elements of the Oakes test. The Oakes test has two main elements. The first part of the test asks the question “is the legislative objective which measures limiting an individuals rights or freedoms are designed to serve sufficiently pressing and substantial to justify the limitation of those rights or freedoms?”^®^ This means that is the objective of the legislation sufficiently important to limit a right. In the case of SchachterXhe policy objective of the U.l. Act was to provide a safety net for those who were out of work or who were in need of maternity or disability benefits. This need for a safety net was pressing and substantial enough to warrant a policy and therefore it would pass the first part of the Oakes test. If a policy did not pass the pressing and substantial objective part of the Oakes test it would mean that the policy was most likely unconstitutional in itself regardless of how it is applied and as Lamer C.J wrote; “where the purpose of the legislation is itself unconstitutional, the legislation should be struck down in its entirety.”^®^ The second part of the Oakes test is commonly called the proportionality test and it has three parts. The first part is called the rational connection test and it requires that a policy be rationally connected to the objectives of that policy. In other words, does the policy do what it was designed to do. For example, in Sauve v. Canada (Chief Electoral Officer), 2002 case turned on the issue that section 51 (e) of the Canada Elections Act denied prisoners who were serving sentences of two years or more the right Schachter, p. 703. Schachter, p. 703. 88 to vote.^®^ Section 3 of the Cha/ter guarantees everyone the right to vote or be a member of a legislative assembly/^"^ Section 51(e) was challenged as being an unjustified limit on the prisoner’s section 3 rights as well as discriminatory under section 15(1) of the Charter. In this case the stated legislative objectives of the law were to enhance civic responsibility and respect for the rule of law, and to provide additional punishment or enhance the general purpose of the criminal s a n c t i o n . T h e court found that section 51 (e) was not rationally connected to the stated objectives in the case in that “the argument that only those who respect the law should participate in the political process cannot be accepted. Denial of the right to vote on the basis of attributed moral unworthiness is inconsistent with the respect for the dignity of every person that lies at the heart of Canadian democracy and the Charter. The second part of the proportionality test is called minimal impairment and it requires that the policy in question impair the right as little as possible. An example was provided in the introduction, which explains what minimal impairment is and is reproduced here for the sake of clarity. In R V. Sharpe, a case regarding possession of child pornography, the Court felt that even if possession of child pornography is linked to harm to children, that harm is fully addressed by laws against the production and distribution of child pornography.’ ®^ Criminalizing mere possession adds Canada Elections Act, R .S.C. 1985, c. E2, (Ottawa: Q ueen’s Printer, 1985), s. 51(e). Constitution Act, 1982, p. 58. Sauve V. Canada (C hief Electoral Officer) (2002) 218 D.L.R(4) 577 Sauve V. Canada (Chief Electoral Officer) (2002) 218 D.L.R(4) 577 R V. Sharpe (2001), 1 S.C.R. 45 89 greatly to the limitation on free expression but adds little benefit in terms of harm prevention. The key consideration is what the impugned section seeks to achieve beyond what is already accomplished by other legislation. If other laws already achieve the goals, new laws limiting constitutional rights are unjustifiable. Therefore, in this instance, criminalizing mere possession was not the least drastic means to combat child pornography and as such failed the minimal impairment portion of the test. The third part of the proportionality test is requires that the effects of the policy be proportional to the objective identified. This means that the policy may pass all other parts of the test but the measures are not in proportion to the objective. They may be overly punitive or just not an intended effect of the policy. An example of this can be observed in Thomson Newspapers Co. v. Canada (Attorney General), 1998. At issue in this case was the federal legislation (s. 322.1 of the Canada Elections Act) banning the publication public opinion survey results on or near the polling date.^®® In Thomson the court ruled that there was little or no evidence that prohibiting the release of polling information affected the outcome of an election and preserved a persons right to an informed vote. In addition the court found that even if there was a minimal benefit that is realized by banning the release of polling data it is outweighed by the significant breach to s.2 Charter guarantees of freedom of speech.^®® In this case, the breach of s.2 Charter rights was much greater than the benefit realized and therefore not justifiable. Thomson Newspapers Co. v. Canada (Attorney General) 1998 1 S.C.R. Thomson Newspapers Co. v. Canada (Attorney General) 1998 1 S.C .R . 90 When looking at Schachter Vne Supreme Court outlined what tools would be appropriate to dispose of the case based on what part of the test it failed. This was to clarify the power the courts have when dealing with policy that is inconsistent with the Charter. While the case was argued on the point that the court does not have the power to “make law” by reading into legislation that is under inclusive and the SCC held this to be true. The court also felt that there is a definite need for “reading in.” They argued that, in some cases, reading in would level the playing field when severing and striking down, or striking down in total, are not appropriate and would be tantamount to eliminating the game altogether. The Lamer C.J. writing for the majority argued that rather than s.24 (1) being the source of power for “reading in” a right it should be part of the s. 52(1) doctrine of severance and a legitimate remedy that would be the least intrusive into the legislative domain while still adhering to the spirit of equality of the Charter.^^° From the previous sentence we can see that the Court does not see this as making law, but more of a way of preserving the spirit of equality within the existing laws. We have already seen above that the court felt that any inconsistency with the first part of the Oakes test should result in a law being struck down in its entirety. This would also generally be true of the part A of the second part of the Oakes test. It would not matter if it passed the pressing and substantial objective part because regardless of how pressing and substantial it is if the Schachter, p. 702. 91 law does not do what it says it will do then it is most likely a bad law in total and should be struck down in total. In order to consider reading in and severance as remedies the policy would have to have failed the minimal impairments/effects tests. That would mean that there would be only small parts of the policy that were inconsistent with the Charter and they could be solved by severing and striking down that part as long as the legislation could survive without that part and it could be assumed that the legislature would have passed the law without the offending part. In the case of Schachter, s.32 could not be severed since it would take away the benefits of those it was designed to help, adoptive fathers, without providing any remedy for Mr. Schachter who was a natural father. The Court would argue that if reading in were a legitimate option under s. 52(1) it could be used in a case like this, but then there would be other budgetary concerns that have to be addressed. The court chose, in Schachter, to declare a suspension of invalidity of s.32 (s.20) of the U. I Act in order to let the legislative body solve the problem, which it did even before this case was heard by the SCC, and thus avoid the imposing law that would have significant budgetary implications. The SCC has laid out what must be considered before with reading in or severance should be considered as a remedy. This is what dictates the current role of the courts in policy making. The SCC in ruling on the Schachter case have made a road map for themselves and the lower courts to follow when it comes to reading in rights or severing and striking down portions of offending policy. For the purpose of 92 clarity I will use the headings from the decision and explain what each means for the policy-making role of the courts. Remedial Precision In order for the court to consider reading in to a piece of legislation it has to be able to ascertain what part of the legislation is the offending part and what is required by the Constitution to repair it. Lamer C.J writes: In some cases, the question of how the statute ought to extend in order to comply with the Constitution cannot be answered with a sufficient degree of precision on the basis of constitutional analysis. In such a case, it is the legislature’s role to fill in the gaps, not the court’s. In other words, if the court cannot see a clear path then it must consider severing or outright striking down a piece of legislation and let the legislature start over. Interference with the Legislative objective There is always the possibility that any ruling by the court will have significant budgetary consequences for the legislative body. In some cases it will be a ruling that saves money and in others it will cost the legislative branch money. The key is that there cannot be an intrusion into the legislative area that will substantially change the budget and operation of the policy. In the case of a law being passed and a policy formulated that is deliberately unconstitutional because the alternative would cost more than the legislature was willing to spend the courts would have no problem reading in 171 Schachter, p. 705. 93 or striking down the law. The implication for the court’s policy-making role is that the legislature must make laws in good faith. The court, even McLachlin’s court, would have no qualms about overhauling a law that seems to be a deliberate attempt to save money by being unconstitutional. Change in Significance of the Remaining Portion. Will the courts decision change the significance of the legislation in question? In the case of severance, can the remaining part of the legislation survive without the offending part? If it can, does it still mean the same thing and still follow the objectives of the policy. The court must also decide whether the legislative branch would have passed the remaining portion. If not it might have to strike it down in total. In the case of reading in, it is important to consider the affected group. If, for example, the size of the group whose rights the courts are extending was smaller than the group already included in the policy it may be possible to do so without too much budgetary intrusion. If, on the other hand, the group to whom one was extending rights was quite large, such as natural fathers, it might be construed as being too much of an intrusion. The alternative would be to strike down the legislation in total, which would be at least as intrusive as extending rights to make a policy over inclusive. In the case of SchachterVne legislative objective of this provision is not readily discernible. The language of the act would seem to suggest that natural fathers were purposely left out of the legislation. In the decision 94 Lamer C.J writes that the case is a prime example of when reading in is not appropriate when the legislative intention with respect to budgetary issues is not clear/^^ Policy implications It is clear from the lessons learned in SchachterXhai the court seeks to keep the power to bring laws within the scope of the Constitution by way of reading in. They have not done this very often but it does happen from time to time. In Vriendthe court read sexual orientation into the Alberta Human Rights Act.^^^ This was a case where the legislative body did not want to change the legislation for a variety of political reasons and the SCO was required to step in to add sexual orientation (into the definition of sex and discrimination based on sex) it since it felt that given the choice the legislature would not remedy the situation on its own. The court still sees itself as an interpretive body but does not feel that it should simply interpret, test and strike down legislation without being able ameliorate parts of legislation that are unconstitutional by virtue of a poorly drafted section or an under inclusive policy. The courts see themselves active members in policymaking. Further, they do not feel it is their place to try and take the place of the legislative body unless the legislative body refuses to act where there is a need for a policy to be extended, as was the case in Vriend. What will the Court Do? ^^^Schachter, p. 723. Vriend v. Alberta, 1998 1 S.C .R , p. 493. 95 As mentioned above, the course of action that the Court takes is largely dependant on what portion of the Bill is being challenged. For example, preventative arrest may not come into play in the case of an investigative hearing of a person who appeared voluntarily to provide information and objects. There may be breach of Charter rights with respect to a lawyer, or the arbitrary detention as I have listed above but not specifically a breach of all Charter rights. Therefore, the justices of the SCO may not, in a single case, look at and rule on all of the different breaches of Charter rights outlined in Chapter Two. In any case, any sort of Charter challenge will require that the justices do two things. One, they must first decide if the legislation in question. Bill C-36, limits a right that is guaranteed in the Charter. In this case, the legislation does limit Charter rights, that is with the goal of protecting Canada from terrorist attack and arrest and detention of know terrorists. Second, the SCC then must decide if that limit to the concrete right is justified by applying the section 1 test laid out in R v. Oakes. It is here that Bill C-36 will fail. As was presented in Chapter Two, the legislation contains some serious problems. Further, the cases listed above illustrate that the Courts have ruled extensively on how far each right can be limited. The principle that is affirmed in the institutional history as well as the gravitational force brought to bear on the case involving Bill C-36 compels the Court to follow precedent rather than ignoring its, and lower courts, interpretation of what can limit concrete rights. 96 If the Court decides that there Is a breach of some portion of the Oakes test they have several options, which are largely contextual. Table I, below, indicates what remedies are available based on the Sc/iacbter decision. Table I Remedies Available under the Oakes Test Remedy Option 1 Other Remedy Options Part 1 : Is the objective If not, the legislation pressing and would be struck down in total. substantial? If not, it may be struck Sever and strike the Part 2 (a): Is the offending portion of the legislation rationally down in total or; legislation if the connected to the remaining portion can objective? survive. If it can’t, see option 1. “Reading in” or “reading If not, then severance, Part 2(b) Does the up” if Option one is not or declaration of a legislation constitute a appropriate. suspension of Invalidity minimal impairment on for a specified period of the right? time or; Part 2(c) Is the Effect of If not, depending on the Reading in” or “reading up” if Option one is not the measure gulf between the measure and legislative appropriate. Proportional to the objective severance, or objective of the declaration of a legislation? suspension of Invalidity for a specified period of time or; The Court could decide to strike down the entire statute. That probably will not happen since there are many well conceived provisions in the Bill outside the ones listed above. The Court could suspend the invalidity of the offensive section of the statute for a specified period to allow the legislative branch to correct the mistake that the case at bar has unearthed. This might happen 97 since McLachlln is partial to having a dialogue with the legislature. Finally, the Court could sever the offensive portions of the legislation and strike them down. This depends on what portion and, generally speaking, if the legislature would have passed the Bill without the offending portion. The Bill can survive without the sections that grant extraordinary powers to limit legal rights. However, it would really depend on what portion of the Bill is being challenged. Suspension of invalidity could be equally attractive if there was some chance that the legislation could be reformed slightly to bring it into line with the Charter. The most likely courses of action would be either a suspension of declaration invalidity or sever/strike of the offensive portions. However, this would also depend on the timing of the case at hand as there is a review date for the investigative hearing and preventative arrest portions of the Bill which were part of the committee amendments presented in chapter one. This date would be December 2006 and if the House of Commons to did not resolve to continue these portions they would “sunset” and cease to have force or effect. Therefore, if a case was at bar it may be that the Court would suspend the invalidity of the portions because it was about to sunset anyway. However, since the case at bar in this thesis is hypothetical we will assume that it is happening now and not three years from now near the review date. 98 Possible législative response If the courts found the legislation to be an unjustified limit of a Charter right and prescribed a remedy above what would be the reaction of the legislative branch of government? The reaction would depend on two things. One, if there were several cases in progress that were deemed important or if there has been a duplication of the principle in other areas of criminal law and there are important cases at stake; it may be that the legislative branch would re-enact the legislation with a notwithstanding clause attached. Section 33 of the Constitution Act, 1982 (the notwithstanding clause) affirms legislative supremacy and allows for legislation that is inconsistent with sections 2, and 7 through 15 of the Charter Xo be enacted notwithstanding the inconsistency. This can be enacted for a period of 5 years at which time it would “sunset” and cease to have force. That is, unless the government involved, in this case the federal government, re­ enacts the legislation through r e s o l u t i o n . S i n c e the sections on legal rights, the rights that Bill C-36 mostly infringe upon, are contained in sections 7 through 14 of the Charter th\s could be an option that may be considered. Revisiting the Reasons this Thesis is Valuabie In the introduction I presented some reasons that this thesis is valuable and why anyone should care. In light of the issues that the thesis has raised, these reasons are reproduced and expanded upon below. Constitution Act, 1982, p. 66. 99 This research is important for at least four reasons. One, a review of Bill C-36 has had only minimal treatment by academia.^^^ The main reason for this is that there have been no cases involving Bill C-36 to analyze and academics have reserved judgment until such time as there is more concrete information to study. This thesis will be one of the first analyses of the legislation and its impact on Charter rights albeit devoid of a real Charter challenge to analyze. Two, if our Charter rights are important to us as citizens then studying the ramifications that this legislation has on several of those rights is also important. Limiting rights in order to secure protection and order is something that should not be taken lightly. In the case of Bill C-36 this thesis will give a snapshot of what may happen if there is a challenge to the legislation with the additional advantage of dealing with several diverse sections of both the Charter and the legislation. The judicial system is such that problems with Bill C-36 would most likely not be dealt with in a single, or perhaps in multiple, court challenges. It would be improbable that a single case would come along that would allow the Courts to make decisions on all of the offending portions of the legislation. The power that the Courts’ possess is reactive power, which requires them to be asked to decide the constitutionality of legislation. As it is unlikely that the Court could render a decision on all of the problematic provisions of the legislation, this thesis vests the Court with the proactive power to decide on all of the portions of the legislation that are Daniels, Ronald J., Patrick Macklem and Kent Roach, eds. The Security of Freedom: Essays on C an ad a’s Anti-Terrorism Biii. (Toronto: University of Toronto Press, 2001) 100 incompatible with the Charter in one hypothetical instance in order to yield a coherent decision. Third, this thesis is important because it sets out two rational models that can be employed in a policy analysis of any piece of legislation. However, despite employing these rational models, the end result of jurisprudence may well turn out to be irrational. It may well be that even after using Kingdon’s model to do a careful policy analysis of a piece of legislation it is still possible that the legislation, created with logical and rational steps could end up being irrational in practice. The same can be said about the Dworkin’s theory, it is possible that judges will ignore institutional history despite their leanings toward a Hercules or Herbert and deliver a an irrational decision. In the case of Bill C-36, it would require Madam Chief Justice Beverly McLachlin to ignore her own tendency to be a Herbert, to ignore the institutional history that she helped create in upholding the provisions of the legislation that are un-justified limits on legal rights, as outlined in Chapter Three. This uncertainty of rationality bears greatly on the fourth point that, policies are not mere words on paper; they have real effect in the real world. Policy makers need to understand that when they contemplate and create policy through whatever policy instruments they choose, they are not simply pushing paper but creating the moral and social framework that Canadians live in. The function of all three branches of government, legislative, judicial and executive, is to work together in a dynamic relationship of shifting power roles to create the best policy possible. Policy makers must understand that 101 they are as much protectors of rights and freedoms as courts and judges are. As such, they have a duty to ensure that legislation limits rights freedoms as little as possible to satisfy their legislative objective. If they abandon this fundamental function or they, for whatever reason, do it poorly the courts are there to protect the rights of Canadians. Because, there are sometimes irrational decisions made by the legislative and executive branches of government, the courts are there for Canadians. When one falters, the others are designed to be there to step in. However, when the judicial branch of government comes up with an irrational decision the legislative and executive branches must be there as well; but they only have a limited ability to correct judicial mistakes. It is far better that policy makers get it right the first time than risk legislation being brought before the courts, where an irrational decision that serves no legislative or social objective is possible. It is the legislative and executive branch’s job to legislate; this thesis is an example of what can happen when they do that job hastily and poorly. 102 Summary One may wonder, what the federal government would use as a review criteria for the legislation at the five year review date if there have been no cases brought forward. While there have been preventative arrests that are affected in the name of national security most of those have immigration implications and as such are done under powers provided in the Immigration Act and result in deportation. Most recently a Montreal area teacher was arrested on a warrant signed by Solicitor-General Wayne Easter and Immigration Minister Denis Coderre for allegedly belonging to an al-Qaeda cell.176 While it seems unlikely, if no cases are prosecuted under the AntiTerrorism Act, 2001 it may well be that the hypothetical case(s) alluded to in this thesis are the only ones that will challenge the Act on its constitutional (de)merits. If that turns out to be the case it may be fortunate for Canadians of all races and origins, as our position as agents over our own rights remains secure and we may have dodged a potential bullet. It is a bullet that the United States has just started to bite with the “Patriot Act”, passed in 2001, and the so-called “Patriot Two”. The citizens of the United States who hold freedom so dear have realized in the fullness of time that crisis is often the mother of timely, but ill conceived, policy. They have also learned what I hope Canada already realizes. Ben Franklin was correct when he said, “those that would give up freedom for security deserve neither. Stewart Ball and Graem e Hamilton. “Terror suspect alleges ‘witch hunt’: Moroccan arrested in Montreal linked to al-Q aeda: C S IS ” National Pos,t 23 M ay 2003 103 Bibliography Alberta Court of Appeal. Alberta Reports. R v. Sieben. Vol. 99. Fredericton: Maritime Law Books, 1990. 379 Arthur, John and William H. Shaw, Eds. 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