Monday, March 16, 2015

On choosing forums

In addition to grossly misrepresenting the NDP's position in opposition to C-51, Yves Messy makes the bizarre argument that we should decline to fight against the Cons' terror bill through the political system, and instead count on courts to rein in its excesses. So let's look at what's wrong with that theory.

At the outset, the structure of C-51 makes it difficult for some of the most important provisions to be challenged at all. As I've noted before, the entire point of providing CSIS with the power to act in secret is to ensure that people don't know what's being done - meaning we'll have no idea what exactly to try to enjoin through the courts. And particularly if the public sends the message that it'll accept implausible assertions of national security without question, we can fully expect to see a Con or Lib government to stonewall against the release of any evidence which might shed light on the issue.

And even after it's clear how rights are being violated under C-51, it's a lengthy and costly process to have the courts pronounce on the issue.

What's more, a lack of alternative proposals and objection to the Cons' plans may itself affect the results of a court proceeding. In applying section 1 of the Charter, courts consider both the importance of the policy at issue and the existence of other options to meet the objective being pursued by the government - meaning that a failure to discuss both the real stakes and the availability of alternatives might well weaken the argument against C-51.

That said, let's set aside the delay in discovering and challenging abuses arising out of a secret police force as well as the damage done to the argument against it by failing to raise alternatives. Even there, there's a basic question which Messy seems to want to ignore.

Do we really want and expect government power to expand to fill every single crack in our constitution?

After all, the point of review under the Charter is not to actually evaluate the public policy merits of any given government action. Instead, the courts only determine whether a particular action has crossed into the realm of being constitutionally impermissible - while anything short of that standard is left to be decided by the political processes which Messy wants to abandon.

In effect, then, a lack of political opposition in the name of letting the courts decide concedes the question of whether we should have a pervasive security state. Messy thus suggests that we should see no problem with governments seeking out and exercising every shred of unaccountable power they can possibly get their hands on, rather than even considering the possibility of less intrusion into individual freedoms than the most they're permitted to pursue under the Charter.

Now, it's fair to point out (as Dr. Dawg does here) that we may not yet have the strength we should as a body politic to fight off the Cons' creeping authoritarianism. But the logical response to that reality is to get down to work - not to decree that an election year is no time for citizens or parliamentarians to exercise their democratic muscles.

[Edit: fixed wording.]

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