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!

The SCC’s Whatcott Decision Explores The Meaning Of “Hatred’ While Continuing The Subjective/Objective Debate

As discussed in previous blog postings, the Supreme Court of Canada appears to be moving towards the objective standard in criminal law – a standard in antithesis to the subjective standard which requires the trier of fact to determine the accused’s perception of the facts in deciding upon guilt or innocence. The objective standard found in objective mens rea offences and used as a standard of assessment in many defences, relies upon the seemingly objective perception of the reasonable person – a legal construct endowed with the standard of a standard citizen from a standard community.

Now, with the release of Whatcott, this objective/subjective debate has moved into the human rights arena. In this case, the Court struggles with the meaning of the emotion – hatred – and whether or not the concept or emotion of hatred can properly form the basis of a rule of law. Interestingly, the Court has had less difficulty with other emotive and therefore subjective words used in the Charter context, such as “life” and “liberty” in section 7. Even the term “freedom,” which is found throughout the Charter and is the defining word, perhaps even the objective (of course with the due limitations) of the legislation, is applied with ease by the Court.

No doubt, these terms are reflective of our society’s fundamental values. By describing them as value-based terms, we are already suggesting the subjective and emotional nature of these terms. It is these words, with such a depth of personal meaning, which are difficult to articulate and describe. An individual’s understanding of the term becomes personal and the use of the word is imbued with this personal meaning when utilized in any concrete context.

For example, I know what liberty means – it means the ability to be free from restraint and constraints imposed by others. However, “liberty” also has a visual meaning to me taken from my knowledge and world experience, which creates a more robust version of the words I have just written down. Therefore, “liberty” is the Statue of, “liberty” is also the poem by Tupac entitled “Liberty Needs Glasses,” as well as the Delacroix painting “Liberty Leading The People” hanging in the Louvre. “Liberty” is the panoply of past, present, and future human struggles, which we have studied and to which we are still bearing witness. Finally, “liberty” has the legal meaning as circumscribed by case law as not “mere freedom from physical restraint” but

In a free and democratic society, the individual must be left room for personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance.

So too in Whatcott the Court imbues the word “hatred” with the legislative objective of the Saskatchewan Human Rights Code. Thus, an emotion becomes a standard to be applied by the tribunal. “Hatred,” therefore, is to mean something beyond dislike and must reflect a standard of behaviour beyond the norm or, as Justice Rothstein explains, be an “expression of an unusual and extreme nature.” The standard of assessment, in order to minimize the emotive perception of “hatred” must be based on an objective standard evoking the perception of the reasonable person. The question to be asked by the tribunal becomes a seemingly simple and standardized approach: “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred”.

Even so, Justice Rothstein seems to be crafting a definition of “hatred” that is very personal: “hatred” is not “calumny” but includes “contempt” and may dehumanize an individual or a group of individuals. This concept of “dehumanization” is consistent with universal human rights principles, which evolved out of the atrocities of World War II and is related to the Nazi Germany objective, as evidenced by their laws and actions, to strip Jews, Gypsies, Homosexuals, and other minority groups of their humanity. The converse of this is the well-entrenched Charter value of “human dignity.” This definition of hatred, according to Justice Rothstein, taken from case law principles, provides an objective, clear, and identifiable standard to be imposed, which “excludes merely offensive or hurtful expression” but includes “extreme and egregious examples of delegitimizing expression as hate speech.”

In the end, the SCC by carving out a definition of hate speech consistent with the approved authorities and by excising meanings which were not consistent with the standard of hatred, created an “emotionless” template for tribunals and courts. As discussed in my previous blog on the SCC’s recent decision on duress, which approved of the objectification of the test for duress despite cogent arguments by legal theorist George Fletcher to embrace individualization, this “shoe-horning” of value-laden terms into the objective category may not be a true reflection of society’s values and may, in the end, diminish the deeply personal meaning of such values in favour of the rule of law.

A Balancing Act: The Supreme Court of Canada and Testifying Behind The Veil

In two concurring reasons and one dissenting reason, the Supreme Court of Canada, in the N.S. decision, has continued the Charter discourse surrounding conflicting rights. Unsurprisingly, the majority message, written by Chief Justice McLachlin, is one of balance and accommodation on a case-by-case determination. The Trial judge must weigh the conflicting rights in the context of the case with due deference to Charter values. The values, however, are flexible, adaptable, and tolerant of each other. In the Charter arena, there is no room for immoveable values, which are fixed and unbending.

This approach does, on the face, appear to be consistent with the Charter itself, which guarantees rights and freedoms but not absolutely: they are subject to the reasonable limits of a free and democratic society. This, however, is a liberal concept, a concept born in the revolutionary times of the 18^th century when religion was given a tempered view in favour of scientific and provable reasoning. As a result, the question remains whether the balancing act proposed by the SCC will provide enough protection to freedom of religion/belief in an age where having a belief system is not required in a free and democratic society.

On the other hand, the traditional concept of criminal law based on the presumption of innocence and fair trial, as values to be balanced, may very well be eroded by this balancing act as well. Critics of the SCC approach might properly ask: how can the very essential core concepts of criminal law ever be subject to accommodation? Some values, those critics would argue, should never give way or they will fail to stand on their own. Interestingly, these concerns form the basis of the concurring judgment of Justices Lebel and Rothstein.

Justice Abella’s dissent is not based on religious rights as a concept to be jealously guarded, but is based on Charter values flowing from earlier Charter cases on protecting the vulnerable members of our society such as children and women. Her dissent focuses on the very real issues of access to justice and the marginalization of those less powerful sectors of our society. This viewpoint becomes even more important in light of the recent release of Wally Oppal’s Report on missing women and the trend toward dismissing the rights, or even the existence of, prostitutes, the homeless, and Aboriginal women.

In the N.S. decision, we see a microcosm of Canadian society: differing viewpoints arising out of the same context, which reflect strongly held values, but which also reflect the true legacy of the Charter as a document that encompasses, and tolerates, all.