Dilemmas in National Security Law

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 14-51

CHA PTER 2

DILEMMAS

IN NATIONAL

SECURITY LAW

Canada’s 2004 national security policy notes that there is “no greater

role , no mo re im port ant ob liga tion f or a gov ern ment, tha n the p rotec tion

and safety of its citizens.”1 It urges that a “clear and effective approach

to security is not just the foundation of our prosperity — it is the best

assurance that future generations will 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 t hese assertions. At core, national se-

curity creates the envi ronment in which other values f‌lourish. In a re-

cent national security case before the Supreme Court, the government’s

lawyer reportedly argued that protecting national security “i s not just

an option or a policy choice, such as the amount to be invested in health

care. It is the sine qua non to the very existence of the rule of law and

our democratic system of government.”3 Without adequate security, the

rights found in instr uments such as the Canadian Char ter of Rights and

Freedom4 would be unattainable.

1 Canada, Sec uring an Open Society: Canad a’s Nation al Security Policy (Ottawa:

Privy Cou ncil Off‌ice, 2004) at vii [Securing an Ope n Society]. See also Charkaoui

v. Canada, 2007 SCC 9 at para. 1 [Chark aoui].

2 Securing an Ope n Society, ibid. at 1.

3 Bernard L aprade as cited by Jim Brown, “Can adian Security, Liber ty Debated”

Canadian Press, (14 June 2006). The case was decid ed as Charkaoui, above note

1, and is discu ssed in several places i n this book.

4 Part I of the Constit ution Act, 1982, being Schedule B to the Can ada Act 1982

(U.K.) 1982, c. 11.

14

Dilemma s in National Security L aw 15

To extr apolate from this, however, that national security should ne-

cessarily trump these other democratic values i s to overstate the case.

In response to the government’s Supreme Court argument, Justice Fish

reportedly shot back that, absent rights and the r ule of law, “we’ll be

living in North Korea.”5 In other words, lending too much primacy to

national security at the expense of rights and liberties creates a state

probably not worth securing.

The challenge lies, therefore, in defending national security in a

manner that aff‌irms rather than undermines these other values. This

diff‌iculty runs through both national security law and this book. This

chapter draws out several key themes implicated by the balancing of na-

tional security with individual rights and liberties. It begins with a broad

di scus sion o f the relat ions hip b etwe en ri ghts and se cur ity a nd th en hig h-

lights a number of specif‌ic rights/security d ilemmas. In so doing, it also

provides an overview of several recurring, core legal doctr ines.

PART I: THE RELATIONSHIP BETWEEN

NATIONAL SECURITY A ND R IGHTS

A. SECURIT Y AS T HE FOUNDATION

FOR RIGHTS

The seventeenth-century philosopher Thomas Hobbes famously de-

scribed the lives of humans in t he ana rchic “state of nature” as “soli-

tary, poor, nasty, brutish, and short.”6 Where no states exist, only those

individuals individually powerful enough to subdue th reats enjoy l ib-

erties and f reedoms, or indeed survive. In contra st, a successful state

marshals power and resources, collectivi zing responses to haz ards and

creating a climate of security for its inhabita nts. Indeed, Hobbes urged

that it is exactly the human need for security that prompts people to

form states in the f‌irst place.

Hobbes saw little room in his model for inherent rights: to wrest

humanity from fat al an archy, the state must be absolute, and all civ il

5 Brown, “Canadian Security, Liberty Debated,” above note 3. In Charkaoui, above

note 1 at para. 1, the Court held: “One of the most fundamental responsibilitie s of

a government is to en sure the security of it s citizens. This may r equire it to act on

information t hat it cannot disclose a nd to detain people who threaten n ational se-

curity. Yet in a constitutional democrac y, governments must act accountably and

in conformity w ith the Constitution and t he rights and libert ies it guarantees.”

6 Thomas Hobbes, The Le viathan (1651) (Oxford: B. Blackwel l, 1957), c. 13.

NATIONAL SECUR ITY LAW16

rights possessed by individuals are subject to the overarching impera-

tive of preserving security. Western states no longer embrace this model

of absolutism. However, even those warmly predisposed to rights agree

with t he emphasis on security. For instance, former Canadia n justice

minister Irwin Cotler rejects a stark dichotomy between national se-

curity and civil liberties. Referring specif‌ically to anti-terrorism, Cotler

has a rgued t hat “anti-terrorism l aw and policy is human right s legis-

lation in that we’re dealing with the protection of a democracy and

the fundamental human rights of its inhabitant s.”7 Cotler and the gov-

ernment’s 2004 national s ecurity policy8 both see national secur ity as

underpinning the right to life, liberty and security of the person, a

concept enshrined in section 7 of the Charter. These views demand at-

tention. While from a strictly legal perspective, section 7 has generally

been interpreted as a constraint on state power, not a justif‌ication for its

exertion,9 the political point is indisputable: creating an environment

of security is a prerequisite to universal rights.

There would be dangers, however, in treading too far in env isaging

national security as foundational to rights. Most obviously, this is a

perspective that may be abused by governments to forestall, limit or

eliminate individual rights and liberties in overreaction to a national

security crisis. Substantial international and domestic law exists at-

tempting to guard against the abuse of rights in the na me of n ational

security emergencies.

More subtly, security primacy may create human rights winners

and losers. In the name (putatively) of securing the life, liberty and se-

curity of the person of the majority, the national security policies of the

state may sacrif‌ice the rights of a minority, a point explored later in this

chapter. Alternatively, there m ay be a geography of rights observance:

rights are violated abroad in the name of preserving them at home.

States may accept collateral injuries to foreigners to a much gre ater ex-

tent and in much greater number than they will allow equivalent har m

to their own n ationals. The record of law in g uarding against these

patterns is mi xed.

7 Irwin Cot ler, “Terrori sm, Security & Right s in the Post-September 11th Uni-

verse” (2002) 21 Windsor Y.B. Acce ss Just. 519; Irwin Cotler, “Terrorism, Sec ur-

ity and Right s: The Dilemma of Democracies” (2002– 03) 14 N.J.C.L. 13 at 15.

8 Securing an Ope n Society, above note 1 at 1.

9 In Gosselin v. Quebec (Attorne y General), [2002] 4 S.C.R. 429 at para. 81, the Su-

preme Court noted th at “[n]othing in the jur isprudence thus far sug gests that s.

7 places a posit ive obligation on the state to ensure t hat each person enjoys life,

liberty or se curity of the person. R ather, s. 7 has been interpreted a s restricting

the state’s abilit y to deprive people of these.”