Terrorism And Exceptional Circumstances: Is There A Public Interest In the Right To Counsel?

The recent tragedy in Boston and the terrorist related charges in Toronto and Montreal have left North Americans reeling: the concept of domestic terrorism and our society’s ability to, not only respond but to also intercept such events has become an issue. In the case of Boston, the investigators have invoked the public interest exception to the giving of Miranda rights or, in Canadian terms, the right to remain silent and the right to counsel under the Charter. Coincidently (or not), Harper’s government introduced the reinstitution of the extraordinary powers in the Anti-terrorism Act on the day the Canadian terrorist plot was uncovered. These powers were subject to a “sunset clause” whereby their viability is to be reviewed and re-enacted every three years. Not surprisingly, the powers were re-enacted by Parliament within days of the Toronto/Montreal terrorism arrests.

There is no question these powers are extraordinary, permitting “investigative detention” on the basis of suspicion alone, not just for the brief period approved by our Supreme Court of Canada but also for an extended period of time, up to three days. This power is, on the surface, completely contrary to the long list of legal rights an individual has when suspected of a criminal offence as found in sections 7 to 14 of the Charter. In order to understand how this piece of legislation can survive a Charter challenge, we must look to the concept of “public interest.”

As early as 1985, in the earliest days of Charter jurisprudence, the Supreme Court of Canada, even while creating a Charter vision, was also envisioning a world without a Charter. In the Re B.C. Motor Vehicle Act case, Mr. Justice Lamer, speaking for the majority, tackled the still troubling issue of the need for criminal intention for a criminal offence as opposed to the no-fault concept found in absolute liability offences. In the Courts opinion, section 7 of the Charter through the “principles of fundamental justice” required mens rea or criminal intention for crimes. However, the same principles did not require full criminal intention for a public welfare or regulatory offence. For those quasi-criminal offences, where jail was a possible sanction, the SCC found the minimum intention required was a less fulsome type of intention akin to negligence. However, if a public welfare offence, where jail was a possible sanction, required no fault element as in an absolute liability offence, this violated s. 7 of the Charter and was deemed unconstitutional. No fault was only available for regulatory offences where jail was not a penalty. Justice Lamer, in coming to this conclusion, made two very interesting, and now very relevant, remarks on the “public interest” dimension found in Charter analysis and on the possibility of the inapplicability of the Charter in certain circumstances.

One of the arguments in support of absolute liability or no-fault offences urged that the “public interest” necessitated such offences in certain public welfare situations where the public good was at issue and the risk of public harm was engaged. Justice Lamer agreed but underlined the limited application the “public interest” aspect would have in Charter analysis. In his view, the public interest was not relevant to whether or not absolute liability violated the principles of fundamental justice under s.7 as a loss of liberty where no intention was required would always be contrary to s. 7. However, it was relevant to the s.1 analysis, section 1 permitting the reasonable limitation of a Charter right, which the government could establish was “demonstrably justified in a free and democratic society.” Thus, the government in establishing this justification could refer to and rely upon the “public interest” as a justification.

Another argument supports no-fault offences on the basis they are easier to prove and therefore more efficient or the “administrative expediency” argument. In the case of regulatory breaches, such efficiency would permit timely responses to scenarios of possible public harm. Justice Lamer soundly rejected the sacrifice of Charter values to administrative efficiency but with an important caveat: such a s.1 justification could only work “in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like.” 

It is this seemingly innocuous throwaway line (or obiter dicta), which I suggest will become the permission to suppress Charter rights in the name of terrorism.  In this way, an individual’s rights are not giving way to societal rights, in the sense that societal concerns trump individual protection. Instead, an individual rights actually become imbued with a “public interest” dimension. Thus, no longer can we speak of categories of rights created to protect the individual as the lines between rights become blurred. Indeed, we must now recognize that the individual is subsumed into the collective through the ever-present spectre of the “public interest.” Continuing on this line of reasoning, it is easy to see how even the jealously guarded right to counsel becomes expendable when “exceptional conditions,” like terrorism, rears its ugly head. Time may also show that this dimension will be carried further and become part of the right itself, not just a tool for justification by the state under s.1 but I will leave that analysis for a future posting!