Op Ed: The Right to a Fair Trial is a Fundamental Human Right

When I came to law school three years ago, I had no idea what a security certificate was. I first learned about this regime in my immigration and refugee law class. I remember thinking that I must be missing something because it couldn’t be possible that this existed in Canada – the right to a fair trial is a fundamental human right. On Wednesday, the Supreme Court upheld the security certificate regime as constitutional.

Security certificates allow the government to deport or detain persons indefinitely that are deemed to be a risk to the security of Canada. The named person need not be charged with a crime. In a criminal trial, the accused must be proven guilty beyond a reasonable doubt. Under the security certificate regime, there must be reasonable grounds to believe that the person is a risk to the security of Canada. It is also easier for the government to use secret evidence in a security certificate proceeding than a criminal trial (see paras 65 – 66 of the Harkat decision).  The security certificate regime is not a criminal trial, but the consequences of each are the same: a deprivation of liberty, and, in the case of named persons subject to security certificates, the possibility of deportation to a country where there is a risk of torture or death. Like a criminal trial, the security certificate regime involves the same fundamental human right – the right to a fair trial.

What I find most striking is the contrast to the Supreme Court’s discussion of the right to a fair trial in Harkat compared to criminal law cases I have read in law school. For example, in R v NS, when considering the right to a fair trial for an accused in a criminal proceeding, Chief Justice McLachlin wrote:

The right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.  No less is at stake than an individual’s liberty — his right to live in freedom unless the state proves beyond a reasonable doubt that he committed a crime meriting imprisonment.  This is of critical importance not only to the individual on trial, but to public confidence in the justice system (para 38).

In contrast to NS, the Harkat decision is missing any meaningful discussion of the right at stake for named persons – the deprivation of liberty – and of the fundamental importance of guaranteeing the right to a fair trial for the rule of law in Canada. The Court mentions no international legal obligations. In fact, the Supreme Court stated that Mr. Harkat has “benefited from a fair process” (para 111). Mr. Harkat’s “fair process” included the use of summaries of destroyed intercepted phone conversations that were only ever disclosed to Mr. Harkat in an abridged form (paras 94 – 99) and that were destroyed as a result of “unacceptable negligence” by the Minister (para 94).

The Supreme Court ruled that the security certificate system is not perfect, but it is fair (para 110). However, making a process fairer, with the introduction of special advocates, does not necessarily make it fair. On the Supreme Court’s focus on the judge’s discretion to ensure that named persons are given a fair process, Amnesty International said, “when it comes to protecting fundamental rights, including something as essential as fair trial rights, discretion is simply never good enough.”

Most Canadians may not be personally affected by security certificates, but this is an issue all Canadians should care about. The Charter of Rights and Freedoms can only be meaningful if the rights guaranteed by it are meaningful for all. This includes suspected terrorists. The Criminal Code contains terrorist offences, which these men could be charged with.

Recently, I went to the premiere of Secret Trial 5 at the Hot Docs film festival. The documentary was a powerful reminder that there are real people subject to and affected by the security certificates. The constitutionality of the security certificate regime is not about whether the named persons are guilty or innocent. It is about a fundamental human right. In the words of Justice McLachlin herself, “the right to a fair trial is a fundamental pillar without which the edifice of the rule of law would crumble.”

More information about the Secret Trial 5 documentary can be found at http://secrettrial5.com.


Voices-Voix: Silencing Dissent in Canada

Voices-Voix is a national, non-partisan coalition of Canadians and organizations in Canada committed to advocating for rights to dissent and democratic space across the country. The organization was founded on April 21, 2010 when over 100 representatives from some of the country’s most reputable organizations gathered in Ottawa to discuss increasing attacks by the federal government. Decisions of the coalition are made by consensus, and today, more than 219 organizations are members of the coalition. That number continues to grow.

Recently, the organization launched a web video series — “Silencing Dissent in Canada” — which features three Canadian leaders:

Cindy Blackstock, Executive Director of the First Nations Child & Family Caring Society of Canada

John Bennett, Executive Director of the Sierra Club Canada

Katie Gibbs, Executive Director of Evidence for Democracy

As of April 2013, 81 cases of silencing dissent by the Government of Canada have been documented, including: Environment – 8.6%, Immigrants and Refugees – 7.4%, Military and Veterans – 8.6%, International Development – 8.6%, Watchdogs – 19.8%, Aboriginal Peoples – 9.9%, Women – 12.3%, and Other Targets at 24.7%.

32 years of the Canadian Charter of Rights and Freedoms

Today, April 17th, marks the 32nd anniversary of the establishment of the Canadian Charter of Rights and Freedoms as part of Canada’s Constitution Act. Liberal MP Irwin Cotler and former Minister of Justice and Attorney General of Canada, now Professor Emeritus at McGill University, has written a thoughtful and reflective opinion editorial in The Globe and Mail:

“On this Charter anniversary, let us reflect upon all that Canada has gained from the Charter in its short existence, and appreciate the contributions the document has made alongside the role of women and minorities in its crafting. All Canadians should be proud of this monumental constitutional moment, and look forward to having an inspiring reason to celebrate April 17 in years to come.”

Mr. Cotler also reflects on the Charter‘s role in fostering a sense of justice, equality, and fairness for all:

“Simply put, the Charter of Rights and Freedoms is promotive and protective of what the pursuit of justice is all about. It is promotive and protective not only of the inherent dignity and worth of every human being, but the equal dignity and worth of all human beings – where one can aspire to a society which celebrates both equality and human dignity – a society which not only speaks to us in terms of who we are – that recognizes the dignity of difference – but also in terms of what we as Canadians, both collectively and individually, can aspire to be.”

Edward Snowden: “technology represents the most significant new threat to civil liberties in modern times.”

Speaking from Moscow to the Council of Europe in Strasbourg, France, whistleblower Edward Snowden provided live testimony, declaring:

“Technology represents the most significant new threat to civil liberties in modern times” (8 April 2014).

"Edward Snowden speaks via video link with members of the Council of Europe, in Strasbourg" (The Guardian).

Prominent human rights organizations such as Amnesty International and Human Rights Watch were alarmed to learn that the National Security Agency (NSA) in both the United States and the United Kingdom have intercepted telephone and information exchanges from high-level human rights staff. Snowden stated:

“The NSA has specifically targeted either leaders or staff members in a number of civil and non-governmental organisations…including domestically within the borders of the United States.”

Asked if the NSA had intercepted “highly sensitive and confidential communications,” Snowden replied: “The answer is, without question, yes. Absolutely.”

Snowden emphasized the wide-scale implications of these practices on reputable human rights organizations, and the safety of their human rights workers and staff, and how data-mining practices violate European Union privacy laws, including XKeyscore. He mentioned the NSA operated a “de facto policy of guilt by association.” The Guardian stated:

“XKeyscore allows analysts to search with no prior authorisation through vast databases containing emails, online chats, and the browsing histories of millions of individuals.”

In response to those who criticize his [Snowden's] outspoken account of the inner-workings of the NSA as a former analyst:

“I would like to clarify I have no intention to harm the US government or strain [its] bilateral ties.”

The Council of Europe defended the organization’s choice to invite Snowden’s testimony:

“Edward Snowden has triggered a massive public debate on privacy in the internet age. We hope to ask him what his revelations mean for ordinary users and how they should protect their privacy and what kind of restrictions Europe should impose on state surveillance.”

Amnesty International UK issued a press release following stark revelations. Michael Bochenek, Amnesty International Senior Director of International Law and Policy, stated:

“These allegations, if substantiated, would confirm our long-held fears that state intelligence agencies like the NSA and GCHQ have been subjecting human rights organisations to mass surveillance all along.

This raises the very real possibility that our communications with confidential sources have been intercepted. Sharing this information with other governments could put human rights defenders the world over in imminent danger.

When these concerns were raised before the US Supreme Court, they were dismissed as being ‘speculative’. Snowden’s latest revelation shows that these concerns are far from theoretical – they are a very real possibility.

We now need a full and frank disclosure of the extent of these surveillance programmes as well as water-tight legal guarantees against such indiscriminate surveillance in the future.”

NB: this opinion editorial was written in a personal capacity and does not represent the views of any of the organizations noted above.

Marc Nadon Denied Appointment to SCC

In a long-awaited decision from the Supreme Court of Canada, six justices of the top court have confirmed Justice Marc Nadon’s ineligibility to sit as the ninth justice of the SCC, concluding that Prime Minister Harper’s appointment was unconstitutional (paras 1 to 107). Three of the six justices were appointed by Harper themselves.

Justice Michael Moldaver dissented (paras 108 to 154). Justice Marshall Rothstein recused himself from the decision (speculation is that he identified a conflict of interest.)

The full judgment of Reference Re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 can be read here.

An article from the CBC stated:

“The court ruled that its composition is constitutionally protected, and Parliament’s attempt to change the Supreme Court Act through a budget bill is unconstitutional,” and “Changes to the court’s makeup require a constitutional amendment with the unanimous consent of the provinces, the court says.”

Québec judges require the knowledge of the civil law code, different from the common law administered in other Canadian jurisdictions.

Rocco Galati, a Toronto-based lawyer, challenged the Prime Minister’s appointment because Justice Nadon came from the Federal Court of Appeal, rather than a court of Québec, and therefore was unqualified to fill one of three seats from the province of Québec.

[4] In our view, the answer to this question is no: a current judge of the Federal Court of Appeal is not eligible for appointment under s. 6 as a person who may be appointed “from among the advocates of that Province”. This language requires that, at the time of appointment, the appointee be a current member of the Québec bar with at least 10 years standing.

An interview with University of Ottawa Faculty of Law professor Adam Dodek featured interesting discussion, including:

Q. Can you elaborate on what part of the language struck you as especially firm?

A. In many ways this is a declaration of independence by the Supreme Court of Canada. So by going beyond the first question of the statutory language of whether a Federal Court judge qualifies for appointment and into the second question on the constitutional issues, for the court to say that it is constitutionally entrenched through a number of provisions, went beyond what was minimally necessary for the case.

Q. So this is a landmark ruling about where the court fits in the structure of our government.

A. Very much. It is an instant landmark ruling, a classic ruling. And remember, we expect the Senate reference later this year. Together with the Senate reference, these two decisions will be the most important decisions since the [court's 1998] secession reference.

Q. Is there anything in the Nadon ruling that foreshadows what we should expect the court to say about the government’s desire to press ahead with Senate reform, instituting a sort of election of senators and imposing a limit on how long future senators serve?

A. I think the judges were very, very careful not to say anything that would relate or tip their hand on what they will ultimately decide on the Senate.

Q. Some will look for a sort of hidden partisan political struggle between the Supreme Court and Prime Minister Stephen Harper. But I notice that of the six judges who ruled against the Prime Minister on Nadon, three were appointed by him to the top court.

A. I think in many ways the decision shows the independence of the Supreme Court and the independence of individual judges on the court. You know, I think Justice Moldaver’s dissent shows his independence of thought and has nothing to do with the fact that he’s a Harper appointee.

Q. Is it possible that Justice Nadon, having been rejected because he’s not a current member of the Quebec bar, could join it and be reappointed?

A. I don’t know Justice Nadon at all. I think the government has done him a great disservice through this whole process. I don’t know if he would want to continue to go through that.

The unprecedented decision will have widespread implications for the SCC’s ongoing Senate Reference deliberations.

SCC Unanimously Upholds Sexual Assault Conviction

A decision rendered March 7, 2014 from the Supreme Court of Canada unanimously upheld a sexual assault conviction of a Nova Scotia man, Craig Hutchinson.

The man attempted to trick his then-girlfriend into pregnancy by poking holes in the condoms they used during intercourse. In 2006, the accused poked holes in condoms using a pin, resulting in his girlfriend’s pregnancy and subsequent abortion. The woman was later treated with antibiotics having suffered a uterus infection.

Per R v Hutchinson, 2009 NSSC 51, the Nova Scotia Supreme Court originally found Hutchinson not guilty of aggravated sexual assault.

The Crown had to prove the “sexual activity in question” was not consented to, specifically unprotected intercourse, per Section 273.1(1) of the Criminal Code.

September 28, 2011, Hutchinson was found guilty by the Supreme Court of Nova Scotia and convicted of sexual assault. He was sentenced to 18 months on December 2, 2011 per R v Hutchinson, 2011 NSSC 462. Coughlan J of Halifax (para 25) writes:

Considering the case law and legislation, the circumstances of the offender and the offence, I sentence Mr. Hutchinson to incarceration for a period of eighteen months.

In a subsequent hearing at the Nova Scotia Court of Appeal the appellant appealed both the conviction and eighteen month sentence. In R v Hutchinson, 2013 NSCA 1, MacDonald, CJ, writing for the majority, concluded:

The judge was correct to conclude that the “sexual activity in question” [as envisaged in s. 273.1(1) of the Criminal Code] was unprotected sex which the complainant did not consent to. With all other elements of the offence made out, the appeal against conviction should therefore be dismissed.The sentence was not demonstrably unfit, nor did it reflect an error in principle. Therefore, the appeal against sentence should also be dismissed.

However, Farrar J provided a dissenting opinion which gave grounds for the appellant’s appeal to the SCC:

The trial judge erred in finding there was no consent under s.273.1(1) of the Criminal Code. The proper approach would have been to determine whether consent was vitiated under s. 265(3)(c) by fraud. The appeal should be allowed and a new trial ordered.

In a unanimous 7-0 ruling, the SCC concluded in R v Hutchinson, 2014 SCC 19 that Mr. Hutchinson’s actions of poking holes in condoms vitiated his girlfriend’s consent. The Canadian HIV/AIDS Legal Network and HIV & AIDS Legal Clinic Ontario were interveners.

McLachlin, CJ & Cromwell, J (para 71) write:

We conclude that where a complainant has chosen not to become pregnant, deceptions that deprive her of the benefit of that choice by making her pregnant, or exposing her to an increased risk of becoming pregnant by removing effective birth control, may constitute a sufficiently serious deprivation for the purposes of fraud vitiating consent under s. 265(3)(c).

Paragraph 70 of the judgment discusses a woman’s right not to become pregnant:

The concept of “harm” does not encompass only bodily harm in the traditional sense of that term; it includes at least the sorts of profound changes in a woman’s body — changes that may be welcomed or changes that a woman may choose not to accept — resulting from pregnancy. Depriving a woman of the choice whether to become pregnant or increasing the risk of pregnancy is equally serious as a “significant risk of serious bodily harm” within the meaning of Cuerrier, and therefore suffices to establish fraud vitiating consent under s. 265(3)(c).

Key Timelines and Jurisprudence

R v Hutchinson, 2009 NSSC 51

R v Hutchinson, 2011 NSSC 462

R v Hutchinson, 2013 NSCA 1

R v Hutchinson, 2014 SCC 19

Related Cases

R v Mabior, 2012 SCC 47, [2012] 2 SCR 584

R v Cuerrier, [1998] 2 SCR 371

Québec’s Gun Registry Appeal to the SCC

There is no shortage of tension between the federal Conservative government and the province of Québec.

Matters include: the Supreme Court of Canada Senate Reference; the intention to appoint Justice Marc Nadon to the Supreme Court of Canada as a representative from Québec; ongoing debate surrounding Bill 52 (Euthanasia); and of course, Québec’s gun registry appeal to the SCC, one of the most controversial law enforcement changes in Canadian history.

In its lifetime, the federal long-gun registry database has cost Canadians over $1 billion.

It’s important to place the long-gun registry and its purpose within an historical context. In 1993, the federal Liberal Party of Canada created the long-gun registry, in part because of the tragic events of December 6, 1989, the massacre of 14 women at École Polytechnique in Montréal, who were discriminated against because of their gender.

Fast-forward almost twenty years later. The Conservative government announces their intention to destroy federal long-gun registry data through Bill C-19: Ending the Long-Gun Registry Act. Québec vehemently opposes the motion. February 15, 2012, Bill C-19 passed third reading in a 159 to 130 vote in the House of Commons. The gun-registry database would soon be dismantled, including information on 5.6 million rifles and shotguns, and 1.6 million rifles registered by Québec residents. The Conservatives even had a count-down clock on their website prior to the vote. Québec remained outraged and expressed its intention to create its own registry.

Parti Québecois leader Pauline Marois expressed her discontent toward abolishment. Following the Conservative Party’s announcement of a cocktail party to celebrate the federal Bill’s passing, she commented that the dismantling of the registry was “indecent and unacceptable.” She also read the names of the 14 women killed in Montréal’s 1989 massacre.

Bob Rae, Interim Liberal Leader, expressed concerns about the cocktail celebration:

“All of us should be sensitive to the feelings of Canadians across the country,” Rae told reporters. “The more they celebrate, the more they distance themselves” from Canadians who don’t always agree with government policies.

Québec Conservative MP Maxine Bernier was of a different view and towed the party line:

“[...] my colleagues [the Conservatives] will have a reception this evening to underline the fact that we have realized another of our election promises,” Bernier said. “Certain colleagues want to meet with the people who have worked for many years to abolish the registry.”

After passing the House of Commons, the federal bill to scrap the long-gun registry passed the Senate on third reading on April 4, 2012, in a vote of 50 to 27.

On February 19, 2013, Bill-20: Firearms Registration Act was presented in Québec’s National Assembly by the Provincial Minister of Public Security Stephané Bergeron.

June 27, 2013, the Québec Court of Appeal overruled a Québec Superior Court ruling and sided with the federal government, rejecting Québec’s claims to preserve long-gun registry data. The decision stated:

“Québec has no property right to the data in the  [Canadian Firearms Registry],” the appeal court decision reads. “The data does not belong to Québec, and the provinces have no control over it.”

The decision also discussed the complex area of federalism:

“It quoted a recent Supreme Court ruling that said that as popular as ‘flexible federalism’ might be, it ‘cannot sweep designated powers out to sea, nor erode the constitutional balance inherent in the Canadian federal state.’”

Québec’s Justice Minister, Bertrand St-Arnaud, responded within the 15-day appeal period with the intention to appeal the decision to the Supreme Court of Canada. Mr. St-Arnaud stated:

“All political parties represented in the national assembly defend this position and strongly oppose the federal government’s decision to abolish the firearms registry.”

November 21, 2013, the Supreme Court of Canada agreed to hear Québec’s opposition to the Court of Appeal decision. No reasons were given for the decision to hear the case, which is the norm. The case has certainly received widespread public interest:

“The decision of the court reaffirms the fact that there is public interest in studying Québec’s request for an appeal on the decision to destroy the records on 1.6 million rifles and shotguns registered in Québec,” [Coalition for Gun Control] president Wendy Cukier said in a release.”

Gun-registry data has now been destroyed from all provinces and territories except Québec. The province remains the birthplace of the long-gun registry, and may be the final resting place of an ongoing federal-provincial battle that will extend to 2014 — maybe beyond.

Surveillance & the Rule of Law: the Road Paved with Good Intentions

A month ago, Ron Deibert, director of the Citizen Lab at the University of Toronto, visited Green College at the University of British Columbia to speak about Cyber Swarming: Distributed Counter Intelligence and Surveillance as Global Civil Security . Deibert called his pitch a “model for a countermovement” against the troubling story of ever-increasing privacy rights violations by state actors.

(Side note: In contrast to my discussion of privacy in the abstract as a weak concept, Deibert’s sketch of the unfolding government surveillance saga looks at what is happening in the real world, now. Just wanted to state for the record that my objections to privacy as a rights-bearing tool are not intended to comment on current state actions.)

What struck me most in the talk was its legal subtext: written all over his narrative was the deterioration and subversion of the rule of law – and how such failures were ushered in the very idealism that birthed the internet. The irony is that it’s the same old “those who forget history are doomed to repeat it” story we never seem to fully grasp. I want to take a moment to scrutinize Deibert’s history from a legal perspective, in the spirit of thumbing my nose at this stupid pattern. I think this is something we need to do more often, so that we learn to recognize the signposts of going down the same treacherous roads before we embark on them.

The Background: the promise of a legal vacuum / a space devoid of legal constraint

So let’s get into the history. Before the swollen constellation we know as the interwebs looked like it does today, Al Gore was a figure instrumental in pushing us in towards this model. He advocated for the consolidation of various unconnected networks by spearheading the High Performance Computing and Communications Act. While he used government to help build the apparatus, he also, according to Deibert, deserves credit for the initial push to extricate government forces from its administration.

As a result, thanks at least in part to Gore, the internet flourished in a space largely devoid of law. The ideology behind this approach was utopian: we wanted the internet to be a free space because we thought that its exemption from law was a safe social experiment. It was new and not terribly important to our daily lives at the time, so why not futz around? It could be a place for unrestricted innovation, collaboration and sharing.

We couldn’t really conceive then that practices taking place in a virtual world might infiltrate the real world irreversibly, and that partly as a result, internet-based practices could be powerful and dangerous. In this context, it gradually accumulated our dependency.

The evolutionary morphing of “security threats”

Deibert identifies 9/11 as the game changer when it came to how state intelligence agencies thought about information and surveillance. Before, says Deibert, it was a “spy versus spy” sort of world – governments against governments. 9/11 saw the coming of age of The Terrorist Threat. As a dispersed and slippery malice, it caused spy agencies to turn away from states and towards their citizens. This movement was exacerbated by the fact that 9/11 was widely characterized as an intelligence failure. It changed the conversation: since there were hints that weren’t picked up on, adequate surveillance technology was clearly available. In hindsight, we thought properly executed violations of privacy seemed like a small price to pay for the now-extinguished lives of thousands of Americans.   

So we’ve got roughly 2.5 conditions here necessary for the perfect storm of government surveillance active today:

  • the growing relocation of commercial and interpersonal communication from other communicative technologies onto the web (and the means to track it) and
  • the primary focus of a threat to national security now located at the situs of the individual rather than the state

It’s easy to see now how what looked at first like a legal haven could have been better described as a vacuum: through the tragedy of the commons, the lowest common denominator of government and private action rushed in. Eventually.

In 2002, American John Poindexter (of Reagan-era scandal fame) championed a bill to launch the Total Information Awareness program, which failed in Congress partly as a result of his connection with it. The program aimed to develop capacities to

“turn everything in cyberspace about everybody …  into a humongous, multi-googolplexibyte database that electronic robots will mine for patterns of information suggestive of terrorist activity,”

as an article from the New Yorker in 2002 by Hendrik Hertzberg describes. But, Deibert points out, the bill’s failure in congress didn’t stop the program from moving forward. It got atomized into different projects and black-budgeted.

Regardless of how commonplace a practice like this might be, I would like to pause here and marvel at just how repulsive this is to a democratically-minded palate: if Congress tells you to bugger off and take your horror-house program with you, you bugger off. I thought that that’s what following democratic procedure means. You don’t add food dye to your rotten meat, repackage it and send it back to the marketplace.

The private sector and state intervention: a waltz

With the public hand of government extracted from the internet, it is now (and has always been) run by private companies.

What do you do if you are a private company and there are no rules?

Deibert offered a couple of case studies, I’ll only mention one here. He pointed to the oft-downplayed Green Revolution or Twitter Revolution in Iran, which happened in 2009, awhile before the Arab Spring is said to have kicked off. When it became clear that Twitter was an indispensable vehicle for the protests, the Iranian government sought and obtained “lawful intercept capability” from Nokia to figure out who was associated with which incendiary tweets. Then came arrests, and the movement was quashed pretty quickly.

It’s easy for us chastise Nokia for complying with Iran’s ask. But think about it: what was this company supposed to do? You’re in an internet with no rules! As Nokia, you have the authority figures of a government knocking at your door, and no playbook to go by except maybe some ethical queasiness. But up against that is the potential threat of getting your business shut out of an entire country.

This is exactly the scenario that government intervention, in the form of legislation, is designed to prevent (presuming, of course, that the legislation we would like to see should have come from Nokia’s home turf). Since we never designed corporations to have moral compasses, it is the job of legislation to let them know where the limits are. Without limits, the worst request is going to get complied with.

A fairly short interval gets us from this point to the government surveillance nightmare we are currently staring down. Thanks to the Snowden saga, Deibert says, countries around the world are taking this government surveillance style and running with it. An activist from Bahrain is arrested, tortured, and presented by his government captors with transcripts of his Skype conversations. The Ethiopian government has used spyware against an opposition party prior to an election. Using the Chinese version of Skype, if you try to type in phrases like “Tiananmen Square” you just can’t.

Garret Hardin wrote “The Tragedy of the Commons” in 1968. I appreciate the difference between the idea of using up a resource and governments abusing power in a space without legal constraints, but I think there is sufficient similarity to merit the comparison. We put in legal frameworks because we want to set a floor for standards of behaviour, government or civilian. Undoubtedly internet culture wouldn’t look the way it does if we had done this from the get-go. What is more important?

All I am saying is, I think it’s fair to demand that when we are presented with a new resource, we don’t approach it with the kind of naïve idealism that leads us to unleash it with insufficient restrictions on behaviour when we have seen this pattern before.

UK News: Court rules Journalist’s Detention was Legal under Terrorism Law

Last August, former Guardian journalist Glenn Greenwald’s parter David Miranda was detained and interrogated for nine hours at Heathrow Airport under the Terrorism Act of 2000 during which time Miranda’s lawyers argue his mobile phone, laptop, DVDs and other items were seized. Today, the Divisional Court of the UK High Court of Justice admitted that Miranda’s detention was “an indirect interference with press freedom,” but held that it was justified and legitimate due to “very pressing” issues of national security.

At the time of his detention, Brazilian national Miranda was transporting secret documents leaked by NSA whistleblower Edward Snowden between two journalists: Laura Poitras in Berlin and Glenn Greenwald in Rio de Janeiro. At the time Greenwald worked for The Guardian, but now both are journalists for newly-launched The Intercept.

Reaction to this morning’s ruling by civil liberties and press freedom groups has been widespread and critical.

Antoine Héry of campaign group Reporters Without Borders said:

“Once again, press freedom in the UK suffers from a confusion between journalism and terrorism by the authorities.”

Vincent Peyrègne of the World Association of Newspaper and News Publishers said:

“The future of serious public interest journalism in the UK has been dealt a serious blow by the court’s refusal to recognise that journalists also have a vital role in defending democracy.”

Leading civil liberties group Liberty stated in a press release:

“If such a barefaced abuse of power is lawful then the law must change. Miranda’s treatment showed Schedule 7 for what it is: a chillingly over-broad power, routinely misused. People are held and interrogated for hours, their property confiscated while they’re swabbed for saliva – all without any suspicion that they’ve done anything wrong.”

The Guardian newspaper was also critical and said:

“The judgment takes a narrow view of what ‘journalism’ is in the 21st century and a very wide view of the definition of ‘terrorism’. We find that disturbing.”

Members of the UK government, past and present, have also weighed in.

Former Tory shadow home secretary David Davis MP expressed strong criticism:

“This case is yet another example of heavy-handed overuse of terrorism powers that parliament entrusted the agencies with, notably stop and search, retention of DNA and the increasing mass storage of our metadata.  We have to question whether these actions of government agencies are actually increasing the security of the British people more than they are undermining our traditional liberties.”

Julian Huppert, a Liberal Democrat member of the home affairs select committee, suggests the real issues lies with the legislation itself:

“We have already made some changes to the law which are about to take effect, but I think there is still more to do.”

The Metropolitan Police who were responsible for Miranda’s detention, however, have welcomed the decision. Deputy Assistant Commissioner Helen Ball said:

“This was a very important case that has attracted considerable public attention. Schedule 7 of the Terrorism Act 2000 is vital in helping to keep the public safe. We are pleased that the court’s judgment states that “the stop was lawful; it was also on the evidence, a pressing imperative in the interests of national security’.”

Miranda is expected to appeal, but it is not yet known whether his appeal will be allowed. In statement released by The Intercept, Miranda said:

“I will appeal this ruling, and keep appealing until the end, not because I care about what the British government calls me, but because the values of press freedom that are at stake are too important to do anything but fight until the end.”

Beyond the ruling on the legality of Miranda’s detention, the judgement also reveals important insight into the level of surveillance experienced by journalist. Paragraph 9 and 11 of the judgement suggest that the GCHQ (UK version of the NSA) has been actively monitoring communications between Journalists Glenn Greenwald, David Miranda, Eward Snowden, and Laura Poitras.

Miranda’s case is an important test of the UK’s attitude towards journalism in an era of mass surveillance and expansive anti-terrorism legislation.  In my view, it strongly undermines freedom of the press protections by allowing journalists who expose whistleblowers’ secrets to be branded as criminals, or even terrorists, themselves. In the balance between National Security and Freedom of the Press, we must never underestimate the importance of information.  We must value the profession of journalism and afford them the protections necessary to safely and confidentially carry out their jobs, because a true democracy is an informed democracy.

Québec’s Secular Charter: Former Supreme Court Justices Speak Out

It is a topic seldom discussed in Canadian politics: the lives, and influences, of former Supreme Court of Canada justices.

The power SCC justices can possess while retired from the bench is being displayed in full-force with the clashing views of former Supreme Court justices Claire L’Heureux-Dubé (1987-2002) and Louise Arbour (1999-2004).

The comments stem from Québec’s controversial proposal of Bill-60: “Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests” introduced during the 1st session of the 40th legislature of Québec’s National Assembly.

Louise Arbour published an Opinion Piece in La Presse, entitled “Choisissons la générosité” (“choose the generosity”). Ms. Arbour stated:

“Let us remember how easy it is to restrict the freedom of others, especially when this initiative comes at no cost to those who advocate it.”

But Claire L’Heureux-Dubé, called to the bar in 1952, has a different view:

“In my opinion, religion is foremost an internal commitment,” she said. “Religious signs are part of the displaying of religious beliefs, and not part of the practice of religion. All state employees are subject to standards of loyalty and restrictions on their freedom of political speech, which was upheld by the courts. Why would the freedom of religious expression be different?”

Full commentary from The Globe and Mail‘s article can be viewed here. What do you think of the Parti Québécois’ Bill-60?

Welcome to the rights and freedoms monitoring blog!

Bienvenue au blog de la veille sur les droits et libertés!

...a joint project of CCLA and Pro Bono Students Canada... un projet de l’association canadienne des libertés civiles et Pro Bono Students Canada...
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Recent Comments

  • avatar Jul 17, 12:08 AM
    France: Face-Veil Ruling Undermines Rights
  • avatar Jul 08, 11:25 PM
    On Substantive Liberty: Challenging Prolonged Administrative Segregation
  • avatar May 21, 1:03 PM
    Craig Burley
    Nova Scotia Union Files Court Challenge Over New Home-care Labour Law
  • avatar May 03, 10:56 PM
    Edward Snowden: "technology represents the most significant new threat to civil liberties in modern times."
  • avatar May 03, 10:55 PM
    Edward Snowden: "technology represents the most significant new threat to civil liberties in modern times."