Monday, February 23, 2015

On constitutional questions

Most of the analysis surrounding the Cons' terror bill so far has assumed that CSIS' powers will be interpreted based on a plain reading of the legislation. Under this reading of C-51, any action which could violate the Charter or other Canadian law would only be authorized by a warrant, meaning that deprivations of rights and freedoms would be subject to judicial oversight (however flawed the process itself may be). In contrast, CSIS' authority to act unilaterally would be limited to intrusions on property or other matters which don't affect Charter rights or legal entitlements.

But that assumption may grant the benefit of the doubt where none is warranted. And before C-51 is rammed through Parliament, we should take a close look at what might be authorized if the federal government chooses to interpret the standard of constitutionality and legality of CSIS' actions using exactly the same standard it actually applies to its own laws.

Thanks to Edgar Schmidt's whistleblowing, we already know what test past federal governments (Lib and Con alike) have applied in assessing the constitutionality of legislation. Legislation is generally subject to all three of the below standards (via Slaw):
  • s.3 of the Canadian Bill of Rights, SC 1960, c 44:
    . . . the Minister of Justice shall . . . examine every regulation . . . and every Bill introduced in or presented to the House of Commons by a Minister of the Crown, in order to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions of this Part and he shall report any such inconsistency to the House of Commons
  • s.3(2), (3) of the Statutory Instruments Act, RSC 1985, c S-22, which require an examination of regulations to ensure they’re not ultra vires and:
    [do] not trespass unduly on existing rights and freedoms and [are] not, in any case, inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights
  • s.3 of the Canadian Charter of Rights and Freedoms Examination Regulations, SOR/85-781 (pursuant to the Department of Justice Act, RSC 1985, c J-2):
    the Minister shall . . . (a) examine the Bill in order to determine whether any of the provisions thereof are inconsistent with the purposes and provisions of the Canadian Charter of Rights and Freedoms . . .
A plain reading of each of those provisions would require the government to carry out an analysis as to whether laws are more likely than not compliant with the Charter and other laws on at least a balance of probabilities standard. But here's the standard that's been applied instead:
Since about 1993, with the knowledge and approval of the Deputy Minister, an interpretation of the statutory examination provisions has been adopted in the Department to the effect that what they require is the formation of an opinion as to whether any provision of the legislative text being examined is manifestIy or certainly inconsistent with the Bill of Rights or the Charter and, in the case of proposed regulations, whether any provision is manifestly or certainly not authorized by the Act under which the regulation is to be made.
In other words, faced with multiple laws requiring an evaluation as to whether legislation is in fact compliant with the Charter, Lib and Con governments alike have instead limited themselves to asking whether the legislation is at most arguably compliant, having as little as a 5% chance of being found valid. And if the latter standard is met, Parliament and the public have been told that laws are in fact constitutional - at least, until courts predictably apply the proper standard which the government has chosen to overlook.

By way of comparison, here's the provision of C-51 which determines whether CSIS is required to seek a warrant to carry out a particular action:
(3) The Service shall not take measures to reduce a threat to the security of Canada if those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedoms or will be contrary to other Canadian law, unless the Service is authorized to take them by a warrant issued under section 21.1.
If anything, C-51 may be more slanted toward allowing Charter violations than the provisions which have been so blithely ignored in assessing past legislation. The no-warrant provisions can be read to allow CSIS to do whatever it wants in the absence of a warrant unless it is certain that the action will be contrary to the Charter or to other law.

As a further reason for concern, all of the rights and freedoms set out in the Charter are subject to section 1:
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 
By pointing to the Charter definition of rights, Bill C-51 then allows CSIS to consider the potential application of section 1 in determining whether a violation arises. That means it could approve of an action based solely on speculation that it could be justified under what's known as the Oakes test, even if the action plainly violates a Charter right or freedom on its face.

If that interpretation were applied, the warrant provisions of C-51 would effectively become superfluous except in cases where CSIS wanted authorization to breach the terms of the proposed section 12.2 dealing with wilful killings, obstruction of justice and violations of sexual integrity.

To put the above into perspective, let's consider a couple of familiar examples.

The Charter provides "everyone" with the right not to be deprived of life, liberty or security except in accordance with fundamental justice (section 7), the right not to be arbitrarily detained or imprisoned (section 9), and the right not to be subjected to cruel or unusual treatment or punishment (section 12). And those rights have been subject to enough analysis in past case law for us to be relatively sure that a black site detention program or torture program would represent violations of Charter rights (among other standards and obligations).

But the combination of the government's historical interpretation of Charter compliance, the wording of C-51 and the effect of section 1 of the Charter might point toward a radically different test. Applying those factors, I wouldn't want to bet against some Canadian equivalent of John Yoo twisting enough words to opine that black sites or torture could be found to be constitutional under some circumstances. And that analysis in turn could be taken under C-51 as a green light for CSIS to go ahead with them.

What's worse, there would be no ready means for anybody to test CSIS' interpretation.

Unlike in the case of non-compliant legislation, there would be no public record of what's been done to allow for a challenge in court.

While anybody actually having their constitutional rights infringed would want to be able to pursue legal action, that possibility might only be seen as reason to hold detainees incommunicado. In this respect, keep in mind that the non-warrant provisions of C-51 are subject to no time limits whatsoever, meaning that locking people away indefinitely rather than allowing them to argue for their rights would be an available option.

And we can safely figure that whatever "general description" CSIS provides of its own activity (the only reporting required for the non-warrant process) would gloss over any obvious abuses.

As a result, one of the most important questions to be asked about C-51 may revolve around the Cons' intentions in defining when the non-warrant provisions will apply. In principle, a relatively simple set of amendments could provide for a stronger version of individual rights to be taken into account, confirm that a warrant is required if there's any risk at all that an action might breach those rights, and require enough reporting to test whether that obligation is being met.

But if the Cons aren't willing to both accept those amendments and admit to having been wholly wrong in their constitutional analysis in the past, then there's real risk that C-51 could facilitate gross human rights abuses.

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