Dilemmas

AuthorCraig Forcese/Leah West
Pages23-61
23
CHA PTER 2
DILE MM A S
Canada’s one-and-only national secur ity policy statement noted in 2004
that there is “no greater role, no more important obligation for a gov-
ernment, than t he protection and safety of its citizens.”1 It urged that
a “clear and eective approach to security is not just the foundation of
our prosperity it is the best assurance that future generations wil l
continue to enjoy the very best qualities that make this countr y a place
of hope in a troubled world.2
There is undeniable truth in these assertions. National s ecurity cre-
ates an environment in which other values f‌lour ish. Before the Supreme
Court of Canada, government law yers reportedly argued in 200 6 that
protecting national secur ity “is not just an option or a policy choice,
such as the amount to be invested in hea lth care. It is the sine qu a non to
the very existence of the r ule of law and our democratic system of gov-
ernment.”3 Without adequate security, the rights found in instruments
such as the Canadian Charte r of Rights and Freedom4 are unattainable.
1 Canada, Securing an Ope n Society: Canada’s National Securit y Policy (Ottawa:
Privy Coun cil Oce, 2004) at vii. See also Ch arkaoui v Canada (Citizenship and
Immigration), 2007 SCC 9 at para 1 [Charkaoui].
2 Canada, above not e 1 at 1.
3 Bernard L aprade as cited by Jim Brown, “Cana dian Security, Libert y Debated”
Canadian Press (14 June 2006). The case was de cided as Charkaoui, above note 1,
and is disc ussed in several place s in this book.
4 Canadian Charte r of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to t he Canada Act 1982 (UK) 1982, c 11.
NATIONAL SECUR ITY LAW24
To claim, however, that eorts to protect Canadian national sec-
urity should necessar ily trump other democratic values overstates the
case. In response to the government’s Supreme Court argument, FishJ
reportedly shot back that, absent right s and the rule of law, “we’ll be
living in North Korea.”5 In other words, lending too much primacy to
national securit y at the expense of rights a nd liberties creates a st ate
not worth securing.
The challenge lies, therefore, in defending national security in a
manner that arms rather than under mines our values. This tension
sits at the heart of national security law and courses through this book.
In the chapters that follow, we point to dilemmas in speci f‌ic areas. This
chapter takes a more general approach, draw ing out several key themes
implicated by the balancing of national security with individual rights
and freedoms. It begins w ith a broad discussion of the relationship
between rights and security and then highlight s several hard “rights /
security” di lemmas. In so doing, it als o provides an overv iew of several
central and recurr ing legal doctrines.
PART I: THE RELATIONSHIP BETWEEN
NATIONAL SECURITY A ND RIGHTS
A. SECURIT Y AS THE FOUNDATION
FOR R IGHTS
The seventeenth-century philosopher Thomas Hobbes fa mously
described the lives of humans in the anarch ic “state of nature” as “soli-
tary, poor, nasty, brutish, and short.”6 Where no states exist, only those
individuals independently powerful enough to subdue threats enjoy
rights and freedoms, or indeed survive. In contrast, a successf ul state
marshals power and re sources, collectivizing re sponses to hazards to
create security for its inhabitants. Indeed, Hobbes urged it is exact ly
the human need for security t hat prompts people to form states in the
f‌irst place.
5 Brown, above note 3. In Charka oui, above note 1 at para 1, the Court he ld:
“One of the most fund amental responsibil ities of a government is to ensur e the
security of it s citizens. This may r equire it to act on information th at it cannot
disclose a nd to detain people who threaten n ational security. Yet in a constitu-
tional democr acy, government s must act accountably and in conformit y with
the Constitution and the rights and liberties it guarantees.
6 Thomas Hobbes, The Leviath an (1651) (Oxford: B Black well, 1957), ch 13.
Dilemmas 25
Hobbes saw little room in his model for inherent rights: to wrest
humanity from fatal a narchy, the state must be absolute, and all civil
rights posse ssed by individuals a re subject to the overarching impera-
tive of preservi ng security. Western state s no longer embrace this model
of absolutism; yet, even those warmly pred isposed to rights empha size
security. For instance, former Canadi an justice minister Ir win Cotler
rejected a stark dichotomy between national secur ity and civil liberties.
Referring speci f‌ically to anti-terrorism, Cotler argued that “anti-terror-
ism law and policy is huma n rights legislation in that we’re dealing w ith
the protection of a democracy and the fundamental human rights of its
in h ab it a nt s.”7 Cotler’s argument and the government’s 2004 n ational
secur ity polic y8 were both premised on the idea t hat national security
underpins the rig ht to life, liberty, and securit y of the person, a concept
enshrined in sect ion 7 of the Charter. These views demand attention.
While from a strictly legal per spective, courts generally interpret sec-
tion 7 as a constraint on state power, not a justif‌ication for its exertion,9
the political point is indisputable: creating a secure environment is a
prerequisite for safeguarding un iversal rights.
Nevertheless, it is dangerous to envi sage national security a s foun-
dational to human right s themselves. Governments m ay abuse such
reasoning to forestal l, limit, or eliminate individual right s and liberties
in times of cri sis. Substantial international and domestic law exist s in
an attempt to defend against the denial of r ights in the name of national
security emergencies.
More subtly, security primacy may create human rights winner s
and losers. In the name (putatively) of securing the li fe, liberty, and
security of the majority, the national security policies of the state may
sacrif‌ice the right s of a minority, a point explored later in this chap-
ter. Alternatively, a geography of rights observance may emerge: in the
name of preserving rights at home, the state violates the rights of those
abroad. States may accept collateral injurie s to foreigners to a much
greater extent and in much greater number t han they will tolerate for
7 Irwin C otler, “Terrorism , Security & Rights i n the Post-September 11th Universe”
(2002) 21 Windsor YB Access Justice 519; Irwin C otler, “Terrorism, S ecurity and
Rights: The Dilem ma of Democracies” (2002–3) 14 National Journal of Constitu-
tional Law 13 at 15.
8 Canada, above note 1 at 1.
9 In Gosselin v Quebec (Attorne y General), [2002] 4 SCR 429 at para 81, the Supreme
Court noted that “[n]othing in the ju risprudence thus fa r suggests that s. 7 place s
a positive obligat ion on the state to ensure that e ach person enjoys life, libert y or
security of t he person. Rather, s. 7 has bee n interpreted as restr icting the state’s
ability to depr ive people of these.”

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