Security Background

By Elizabeth Liu, University of Alberta LL.B. Student

Information and History

Security issues, in one form or another, touch all aspects of Canadian life. Recently, there have been controversies arising over security certificates (which may be used to deport a non-citizen on the grounds of national security) and other national and international initiatives designed to combat terrorism. National security affects all those living, working, and traveling in Canada, regardless of their citizenship status. The underlying issue of national security is evident in many areas, from international and domestic travel, to privacy rights, to immigration and deportation, to the import and export of goods, to government intelligence. Security concerns that arise in these different realms eventually trickle down into almost all parts of daily life. The result is an emerging tension that exists between security and freedom: to what extent can national security infringe upon individual civil liberties?

How are national security initiatives exercised by the government? Under the division of powers set out in section 91 of the Constitution Act, 1867, national security is the responsibility of the federal government. The legislative, executive, and judicial branches of government all have considerable yet equal power in the determination and implementation of national security initiatives. Specifically, the legislative branch of government, acting within the scope of constitutional authority, is the source of all legitimate state power. Security initiatives are carried out by the executive through powers delegated by the legislature. This authority is often encoded in statutes and regulations. The duty of the courts (the judicial branch) is to monitor government decisions through judicial review.

Issues related to national security have always presented challenges to the Canadian government, and these challenges have grown significantly after the events of September 11, 2001. Since then, the governments of Canada, United States, and Europe have allocated substantial financial and political resources to national security issues. While there has been a recent increase in national security awareness, this issue has been one of primary concern of the Canadian government since Confederation.

One well-known example of the tension between security and freedom occurred during the Second World War with the application of the War Measures Act[i]. Here, the federal government (acting on a suspicion that Japanese spies were operating out of Canada following the bombing of Pearl Harbor) used the Act to intern some 22,000 Japanese-Canadians in southern Alberta and the interior of British Columbia. The War Measures Act enabled the federal Cabinet to enact temporary laws in the event that a national emergency was declared. The Act was utilized during the FLQ crisis of 1970 when the Front de Libération du Québec kidnapped British diplomat James Cross and Quebec Justice Minister Pierre Laporte. In mid-October of that year, Prime Minister Pierre Trudeau invoked the Act, effectively placing Quebec under martial law until December 1970. The Act was repealed in 1988 and replaced by the federal Emergencies Act,[ii] which is similar in nature to the previous act, with the exception that any temporary laws are subject to the Canadian Charter of Rights and Freedoms [iii]("Charter") and any declaration of an emergency is subject to parliamentary review.

Contemporary national security issues include those related to security certificates, extradition and deportation, privacy interests, and the Anti-Terrorism Act[iv]. After the events of September 11, 2001, Parliament quickly enacted the Anti-Terrorism Act as part of the federal government's comprehensive plan to develop measures to deal with terrorism. Included in the Act are amendments to the Criminal Code which creates new criminal offences, such as collecting funds to support terrorist activities, participating or contributing to terrorist activities, or knowingly harboring or concealing a terrorist. The Act also attempts to give law enforcement and national security officials greater power to acquire information about terrorist organizations. For example, where electronic surveillance was previously viewed as a last resort in the investigative process, the Act makes it easier for officials to use electronic surveillance methods for intelligence gathering by permitting its use earlier on in an investigation.

For further reading on security certificates, please refer to:

CBC News "Security Certificates Constitutional: Court." Available at: http://www.cbc.ca/canada/story/2004/12/10/security-certificate-041210.html

Citizenship and Immigration Canada (official website). Available at: http://www.cic.gc.ca

"Fact Sheet: Security Certificates Under the Immigration and Refugee Protection Act." Canada Border Services Agency.

For further reading on the War Measures Act, please refer to:

"Canada's Concentration Camps - The War Measures Act" by Diane Breti, Centre for Education, Law and Society (CELS), Simon Fraser University. The Law Connection (1998).

"War Measures Act." Wikipedia, The Free Encyclopedia. Available at:
http://en.wikipedia.org/wiki/War_Measures_Act

For further reading on the FLQ crisis, please refer to:

CBC Archives, "The October Crisis: Civil Liberties Suspended" Available at: http://archives.cbc.ca/IDD-1-71-101/conflict_war/october_crisis/

"October Crisis Timeline" by Susan Munroe. About.com. Available at: http://canadaonline.about.com/cs/octobercrisis/a/octobercrisistl.htm

"October Crisis." Wikipedia, The Free Encyclopedia. Available at: http://en.wikipedia.org/wiki/October_Crisis

For further reading on the Anti-Terrorism Act, please refer to:

"Government of Canada Introduces Anti-Terrorism Act." Department of Justice (Canada). Available at: http://www.justice.gc.ca/eng/antiter/

Security and Freedom

Former Secretary of State for Western Economic Diversification Mr. Stephen Owen has noted that "democracy is a balance between security and freedom." Living in a free and democratic society ensures the protection of individual civil liberties. The question is the extent to which an individual's enshrined Charter rights may be compromised for the sake of national security interests. In an address to the Canadian Association for Intelligence and Security Studies, former Deputy Minister of Justice, Morris Rosenberg, further clarified this idea and noted the importance of context and proportionality when considering the relationship between national security and civil liberties.[v] Referring to comments made by Mr. Stephen Owen, Mr. Rosenberg noted that the balance between security and freedom is highly contextual and greatly affects the courts - interpretation of individual rights afforded by the Charter.

Working in tandem with the idea of context is that of proportionality. All possible Charter restrictions must be considered within the framework of proportionality, which finds its roots in section 1: "The Charter 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" [emphasis added]. If the federal or provincial government wishes to restrict a Charter right, it must first pass the test set out in R. v. Oakes: a law is a reasonable limit if it is a rational, proportional, minimally intrusive means of achieving a pressing and substantial state objective. The "Oakes" Test is largely contingent on proportionality, and where national security interests are at stake, proportionality as outlined in the Oakes Test must be carefully considered.

In the 1984 decision in Hunter v. Southam[vi], Justice Dickson recognized that the requirements of section 8 of the Charter may vary when national security is at issue. Section 8 states that "everyone has the right to be secure against unreasonable search or seizure." Hunter became the first case in which the Supreme Court examined the purpose and effect of section 8 since the Charter was introduced in 1982. In Hunter, a government director applied a section of the Combines Investigation Act and had authorized several officers to enter and examine documents at businesses in Edmonton. The affected companies argued that the authorization was in violation of section 8 of the Charter. Both the Alberta Court of Appeal and the Supreme Court agreed, effectively ensuring that section 8 offered considerable protection of an individual's reasonable expectation of a right to privacy.

In more contemporary times, Chief Justice Dickson's recognition of national security issues and the significance of proportionality were acknowledged by the Supreme Court in the 2002 decision of Suresh v. Canada (Minister of Citizenship and Immigration)[vii]. The case was brought as an appeal before the Supreme Court by Mr. Suresh, a refugee from Sri Lanka who had applied for landed immigrant status. Based on information provided by the Canadian Security Intelligence Service (CSIS), the government detained Mr. Suresh under allegations that he was an active member of a supposed terrorist organization (the Tamil Tigers). Canadian authorities began deportation proceedings on the grounds that Mr. Suresh was a risk to Canada's national security. Mr. Suresh argued that if he was deported to Sri Lanka, he faced the possibility of torture. Both Canadian immigration laws and international customary laws deny deportation of individuals into torture situations. Ultimately, the Supreme Court held that section 7 of the Charter afforded Mr. Suresh protection from deportation into torture, and ordered that the Minister of Immigration reconsider Mr. Suresh's application.

The proportionality between Canada's interests in combating terrorism and fundamental justice found under section 7 of the Charter is essential to Canada's constitutional system. According to section 7 of the Charter, "everyone has the right to life, liberty, and security of the person and the right not to be deprived thereof expect in accordance with the principles of fundamental justice." The principles of fundamental justice constitute the basic tenets of our legal system and have been used by the courts to determine concepts of fairness in law. The Supreme Court recognized the competing interests of combating terrorism and fundamental justice in Suresh and stated that "a broad and flexible approach to national security"[viii] is required when considering what may constitute a "danger to the security of Canada."[ix] The Court's decision in Suresh demonstrated the significance of proportionality as an underlying consideration in national security matters, emphasizing the importance of invoking the Oakes Test whenever a government action threatens to restrict the rights and freedoms guaranteed by the Charter.

All national security issues, then, require an analysis of the balance between interests of security and freedom. The significance of security issues within Canada's constitutional framework lies in its pervasiveness in all aspects of daily life. While the Charter guarantees the rights and freedoms of individuals, those rights and freedoms must be considered against the backdrop of the interests of Canada as a whole. An additional dimension to this is created by Canada's commitments to international treaty obligations and to customary international law. The possible restriction of Charter rights gives rise to a number of critical considerations that have the potential to affect Canada's citizens, residents, refugees, and visitors.

For further reading on Security and Freedom, please refer to:

"An Effective Canadian Legal Framework to Meet Emerging Threats to National Security" by Morris Rosenberg, Dep. Min. of Justice; address to Canadian Association for Intelligence and Security Studies.

Citizenship and Immigration Canada (official website). Available at:http://www.cic.gc.ca

"Making Canada safe: The National Security Policy." CBC News Online (27 April 2004). Available at: http://www.cbc.ca/news/background/cdnsecurity/securitypolicy.html

Public Safety and Emergency Preparedness Canada (official website). Available at: http://www.psepc-sppcc.gc.ca/index-en.asp

"Securing an Open Society: Canada's National Security Policy." Government of Canada. Available at: http://www.pco-bcp.gc.ca/index.asp?doc=natsec-secnat/natsec-secnat_e.htm&lang=eng&page=information&sub=publications

[i] War Measures Act, S.C, 1914, c. 2.
[ii] Emergencies Act, R.S., 1985, c. 22 (4th Supp.)
[iii] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [Charter]
[iv] Anti-Terrorism Act, 2001, c. 41.
[v] Morris Rosenberg, "'An Effective Canadian Legal Framework to Meet Emerging Threats to National Security' Speaking Notes for Morris Rosenberg, Deputy Minister of Justice to the Canadian Association for Intelligence and Security Studies" (26 September 2002), online: Department of Justice http://canada.justice.gc.ca/en/news/sp/2002/doc_30694.html.
[vi] Hunter v. Southam [1984] 2 S.C.R. 145
[vii] Suresh v. Canada (Minister of Citizenship and Immigration) [2002] 1 S.C.R. 3 [Suresh]
[viii] Suresh at para. 85.
[ix] Suresh at para. 85.

Further Reading

Canada

U.S.

International Defence Organizations

Centre for Constitutional Studies

Security Background