More than two decades ago, Canadian Supreme Court Justice Ian Binnie described the conflict between human rights and national security as “truly a clash of the titans.”
asserted
Binnie → describe → titans
Twenty-five years after 9/11, Canada is still wrestling with that clash.
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Canada → wrestle → clash
Within three months of the attacks that killed nearly 3,000 innocent people, Canada had fundamentally rewritten its national-security laws.
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Canada → kill → laws
It created new terrorism offences and investigative powers and measures targeting terrorist financing and charities.
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It → create → financing
Expanded intelligence sharing and, eventually, a no-fly list followed.
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list → expand → sharing
National security increasingly reached into immigration, travel, banking and other areas of ordinary life.
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security → reach → life
Canada faced genuine threats and governments had an obligation to protect the public.
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governments → face → public
But emergencies have a way of shifting the boundaries of government power.
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emergencies → have → power
The harder question comes later: Which of those changes do we give back?
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we → come → changes
I had a front-row seat to that debate.
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I → have → debate
As a Toronto lawyer and counsel to Muslim civil-liberties organizations, I worked on challenges to Canada’s post-9/11 national-security regime.
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I → work → regime
I was counsel to organizations involved in the Maher Arar Inquiry and security-certificate cases before the Supreme Court.
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I → involve → Court
I worked on anti-terrorism issues and, in 2007, prepared a submission challenging Canada’s proposed no-fly list on behalf of more than two dozen organizations.
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I → work → organizations
A Canadian citizen returning home was detained by American authorities and rendered to Syria, where he was imprisoned and tortured.
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he → return → Syria
The inquiry exposed how inaccurate information supplied by the RCMP contributed to his ordeal.
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information → expose → ordeal
Intelligence had crossed a border much more easily than accountability.
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Intelligence → cross → accountability
Security certificates raised another problem: How do you defend yourself when the government can rely on secret evidence you cannot see?
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you → raise → evidence
Twenty-five years later, it’s important to remember that rights are not simply obstacles to security.
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rights → ’ → security
The rule of law is part of what we are supposed to be protecting.
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we → suppose → what
Otherwise, we risk protecting our own security by giving up someone else’s freedom.
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we → risk → freedom
Perhaps I was particularly sensitive to this because my encounter with emergency powers began long before 9/11.
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encounter → begin → 9/11
I was 6 when Indira Gandhi declared a state of emergency in India in 1975.
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Gandhi → declare → 1975
My father, a former editor of an opposition magazine, was wanted for his writings.
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father → want → writings
We moved from place to place before eventually sneaking out of the country and settling in Canada.
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We → move → Canada
At that time, I didn’t know the language of constitutional rights or due process, but I came to it through my law career.
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I → know → career
In Canada, limits were imposed.
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limits → impose → Canada
Courts pushed back.
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Courts → push → ?
Laws were amended and safeguards added.
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safeguards → amend → ?
And Canada did not go as far as the United States in important respects.
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Canada → go → respects
Those distinctions matter.
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distinctions → matter → ?
But much of the architecture survived.
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much → survive → architecture
Canada’s Passenger Protect Program (no-fly list) still exists.
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Program → exist → ?
Intelligence sharing remains deeply integrated across borders.
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sharing → integrate → borders
Immigration and national security remain intertwined.
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Immigration → remain → ?
The post-9/11 focus on terrorist financing also brought Muslim charities under heightened scrutiny.
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focus → bring → scrutiny
Loss of liberty
The question is whether measures introduced in an emergency should become permanent without having to show that the loss of liberty actually buys us greater security.
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loss → introduce → security
I was asking that question when Canada’s no-fly list was introduced.
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list → ask → question
How could someone be considered too dangerous to board an airplane but not dangerous enough to charge?
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someone → consider → airplane
Powers developed in response to one feared group rarely remain confined to that group.
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Powers → develop → group
Governments change.
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Governments → change → ?
…and 9 more, not listed.
The Aporia
