The intense media and popular chatter around the ten-year anniversary of 9/11 shows how much this seminal event has affected lives and society at large. For organizations like CCLA, that are concerned with the rule of law, civil liberties and the protection of fundamental democratic principles, the political and legal changes engendered by 9/11 have been nothing short of transformative. During a panel discussion hosted by the Canadian Civil Liberties Association at Toronto’s historic Campbell House on September 7th, leading experts discussed these changes, and the implications for Canada.
Attorney Paul Champ, CCLA general counsel Nathalie Des Rosiers, ACLU deputy legal director Jameel Jaffer and Osgoode Hall Dean Lorne Sossin debated questions such as whether there is an opposition between national security and civil liberties, how significant are pieces of legislation such as Canada’s Anti-Terrorism Act and the U.S. Patriot Act, and whether the “old rules” of war, of due process were becoming moot in the age of “the war on terror.”
One of the strongest messages from the evening was that we should not consider important issues of national security to be antithetical to civil liberties. Dean Sossin, whose broad legal, political and academic experience helped shed light on some of the broader issues at play.
Nathalie Des Rosiers said she thought the biggest legacy of 9/11 is that our “traditional” system – habeas corpus, presumption of innocence, due process, fairness – is made to be considered “insufficient” to fight terrorist threats, and law enforcement authorities view rules – such as obtaining warrants – as impediments. Dean Sossin reinforced this notion, stating “I’m still unconvinced that the existing system would not have been sufficient, in retrospect, to the work that the national security apparatus needs to do.”
In terms of implications for Canada, panelists expressed concern that extraordinary measures – such as the ones contained in the provisions of the Anti-Terrorism Act – are becoming the norm. Nathalie Des Rosiers explained that the government hurried to pass legislation that is constitutionally unsound, expecting the courts to deal with the constitutionality of new laws and regulations. However, upholding constitutional principles is not just the job of the courts and judges – it’s also the job of the government. Furthermore, both Des Rosiers and Paul Champ noted that it was particularly difficult to challenge these laws in the courts.
Champ explained how lawyers have been wrestling with cases dealing with brand new issues, and that there has been a learning curve. Ten years after 9/11, there has been a lot of litigation around these questions, but we’re still struggling to find appropriate remedies. Moving forward, a key legal challenge will be to find appropriate remedies when courts recognize that people’s rights were violated in the context of national security. The Kadhr case provides an interesting example. Canadian courts declared Kadhr’s imprisonment to be unconstitutional on two occasions, yet a remedy has not yet been found. Des Rosiers reflected on the ease with which the Canadian government evaded its obligations under the Convention on the Rights of the Child in this context.
Jameel Jaffer drew parallels with what is happening south of the border. He spoke of the “safe secrets doctrine”, whereby the U.S. government refuses to respond to allegations having to do with torture, renditions or other actions linked to the war on terror on the basis that even responding to the allegations would jeopardize important state secrets. The fact that this holds up in court is concerning, because we need more accountability – not less – when the government engages in enhanced surveillance, monitoring and extra-judicial activities. All the panelists agreed that in an age of increased government powers, we need equally strengthened accountability mechanisms.
Throughout the discussion, panelists did not question the need for better and more security to protect populations from terrorist threats. The question is how do we balance this need for security with the need to protect and uphold civil liberties? Dean Sossin put it eloquently “There is an ongoing challenge to our rights-oriented, inclusive society and preserving the idea of open communities.” Ultimately, the question is what kind of society do we want to be, and how do we reconcile national security imperatives with our aspirations as a democratic society. Dean Sossin reflected on the apparent lack of political leadership on these very important questions.
On the topic of eroding equality rights, Paul Champ spoke about how Muslim Canadians were disproportionately affected by anti-terrorism activities, though he did warn that if the provisions of the Anti-Terrorism Act and tools such as “No-Fly Lists” became the norm, we would soon see other types of communities, such as environmentalists and trade unionists, targeted by increased surveillance, monitoring and invasive law enforcement methods.
In terms of long term implications, Jameel Jaffer said he believed that the “surveillance society” created by 9/11 was here to stay. For example, the fact that the Obama administration has “entrenched” the practices started under the Bush administration shows how that these changes are not just about one administration, but societal shifts that people will need to contend with moving forward. For Jaffer, one of the big questions is how to reconcile the fact that governments are becoming increasingly secretive but that through increased surveillance, they are able to find out more and more on individuals.
Nathalie Des Rosiers reminded the audience that eternal vigilance is key in a democracy, and that people need to speak out when they see injustice. We need to educate people about their rights, about the Charter, so that each individual can be an effective advocate and stand up in the face of injustice. Jaffer and Champ both agreed that it is not just up to lawyers to fight against unfair measures, that everyone – experts, non-experts, people from all fields and backgrounds – have a role to play in challenging the erosion of democratic rights. Champ said that while “lawyers can help channel issues through the courts, it’s a collective duty to ask for accountability.”
The implications of 9/11 for Canada concern huge paradigm shifts regarding the rule of law and respect for fundamental rights. Throughout the discussion, the panelists noted that it might be too early to say what the true legacy of 9/11 will be. While it may be so, the discussion highlighted many key issues that people – as citizens, as voters, as democrats – need to contend with.
>> A transcript of the discussion is available here (replay of the live blog)
>> The full 90 minute discussion will be broadcast on CPAC on Saturday, September 10th, at 9:30 a.m. EST, and will be available through CPAC’s video-on-demand archive shortly.
