The Aftermath of 11 September 2001: Liberty vs. Security before the Supreme Court of Canada

Abstract

The terrorist acts of 11 September 2001 and the war on terrorism that followed have induced a pervasive sense of insecurity in Canada, as elsewhere, and brought about a shift of public policy towards a confinement of security risks in a global era. In the polity, as in the legal sphere, there has been an obvious shift of paradigm, from liberty to security. In December 2001, Canada passed an Anti-Terrorism Act. As far as human rights and freedoms are concerned, the Anti-Terrorism Act is a far cry from the draconian measures of the American Patriot Act, with its military tribunals, incommunicado confinement, preventive detention without charge, and potentially expeditious application of the death penalty. Nevertheless, the Canadian Anti-Terrorism Act remains, in nature, an emergency legislation. In particular, as will be seen here, there has been a clear change of mind, within the Supreme Court of Canada, regarding the authority of international human rights law, at least where highly sensitive security matters are involved, such as deportation of political refugees suspected of being linked with terrorist organisations. To emphasize this shift in attitude, an analytical framework, allowing us to distinguish between various types of constitutional reasoning, is needed. This heuristic device must also be sophisticated enough to single out the emergency situation from the normal state of affairs. This may not be apparent in day-to-day life, but, since 11 September, the concept of emergency, and the notion that an exceptional state of affair exists, have been a major influence on our political world.