six months after the fatefulevents of September 11, long enough to begin to assess their toll on civil liberties, defence lawyers aren't necessarily itching for a constitutional challenge.The days when defence lawyers could confidently charge Charter violations and take their cases to the Supreme Court of Canada are history. The nine justices who now sit in the red chairs in Ottawa, advocates for the accused say, have one eye on the constitution and the other on public opinion -- quite unlike earlier eras, when judges were more willing to act independently. What chance is there today of the court taking the side of the accused over the security needs of the government?
Not much, conclude many of those in attendance at the recent meeting of the Law Union, an organization of mostly left-wing lawyers that got its start in the late 60s. Going to the Supreme Court might even result in restricting more rights, some believe. "The risk is that if the government wins, it just legitimizes what they've done,' warns Ziyaad Mia, a member of the Muslim Lawyers Association invited to talk about the issue.
Mia is particularly concerned about a section of the law that makes it an offence to "facilitate' terrorism. People can be found guilty whether or not they know their money is being used for violent purposes, even though a bedrock principle of our system is that no one can be convicted of a crime unless criminal intent has been shown.
"The real threat there is to people who are innocently giving to charity,' Mia says. "For example, Israel obviously doesn't have much respect for the Red Crescent (the Muslim version of the Red Cross). Some people see them as terrorist because they assist people who fight. So if I gave money to the Red Crescent I could be facilitating a terrorist organization, because the evidence comes from Israel to CSIS (the Canadian intelligence service), and they go after people here. There's a real chill on political activity.'
The law is such an affront to civil rights, says panelist Don Stuart, a law professor at Queen's University in Kingston, that it reminds him of statutes from apartheid-era South Africa, where he was born. "I would never have believed that a legal system I've grown to admire so much would stoop so low," he tells the meeting.
It's hard to imagine that a law this outrageous might withstand the scrutiny of the Supreme Court -- but many suspect it will. It wasn't always so. In fact, the justices who sat on the courts under Chief Justice Brian Dickson in the late 80s and then under his successor, Antonio Lamer, courageously upheld the constitutional rights of accused drug dealers and murderers and struck down laws the court felt infringed their constitutional rights.
It was almost as if the justices felt they had to prove that the then new Charter (20 years old next month) was indeed the ultimate law of the land.
Nothing captures the sea change at court more than the judgments of Claire L'Heureux-Dubé, a defence lawyer's worst nightmare. On the Lamer court she was regularly the odd judge out, standing up for the authorities while her colleagues protected the accused. The volumes of Supreme Court judgments from those days are filled with her one-woman dissents.
Now, though, she rarely finds herself by her lonesome. Look what happened in the infamous (and unanimous) judgment the court handed down earlier this year in the case of Manickavasagam Suresh, a refugee found to have been a member of the terrorist Tamil Tigers, a group fighting for an independent homeland in Sri Lanka.
Yes, the court agreed, any Tamil sent back to Sri Lanka will probably be subject to torture. And, yes, Canada is a signatory to international declarations such as the Convention Against Torture. And the Charter, too, guarantees fundamental freedoms including the right to life, liberty and security of the person. But does the Charter prevent the minister of Immigration from deporting someone to a country where he or she faces the risk of torture? No.
The court's deference to the government is a pattern that Jamie Cameron, a professor at Osgoode Hall Law School who acted for the Federation of Associations of Canadian Tamils in the Suresh case, has seen in other cases.
"It's a conservative court in that it's politically astute and very determined to avoid unpopular decisions that draw attention to the court and to the authority it exercises,' Cameron says in an interview.
But there are about to be major personnel changes at the court. And Stuart says these may have implications for any future challenge to the anti-terrorism law. L'Heureux-Dubé and Justice Charles Gonthier are about to retire. Says Stuart, "It's hard to imagine anyone more pro-state than those two. By the time a challenge (to the anti-terrorism bill) gets there, the balance might have changed.'
Let us hope that the newcomers' vision extends further than the political interests of the government that appoints them.