In the past five years, there have been a number of occasions when we have all had to stop and reflect on the manner in which our democratic institutions are discharging their obligations to keep the citizenry safe and secure. The most recent cause for reflection is the report by the Honourable Frank Iacobucci regarding the detention and mistreatment of three Canadian citizens in Syria and Egypt.
We may be tempted to conclude that there is at the very least a tension between national security and democratic freedom. Some might even say that they are opposing forces. You can have unconstrained freedom or you can have unconstrained security, but you can’t have both at the same time. And yet, to paraphrase a famous quotation, it is said that those who would sacrifice liberty for security deserve neither.
I would like to suggest a different way of looking at national security and its relationship with democratic values. I prefer to think of national security as an integral part of democratic freedom. Those who say you have to choose one or the other are presenting you with a false dichotomy.
What do we mean by national security? The term is deceptively simple. We use it often, almost without thinking. And we rarely pause to think what we mean by these words. Not everyone agrees on the definition. Many people focus on only the protective aspects of security. What may be less obvious is that it also encompasses protection of our key values and institutions: those enshrined in our Charter of Rights and Freedoms, respect for the rule of law, and of course, democratic institutions such as Parliament, the judiciary and the executive branch of government.
It’s not enough for us to be physically secure. All states, whether democratic or totalitarian, do what is necessary to preserve their physical and economic security. As a democracy, we also want to preserve our way of life. Viewed through this lens, it becomes clear that national security is not in conflict with democratic freedom; national security is in fact integral to democratic freedom, and vice-versa.
Rules of engagement
With this in mind, I would like to consider some recent challenges democratic states have faced when dealing with threats to their national security. First, however, we need to give some thought to how the threats to national security have changed over the past quarter century, especially since 9/11.
Let’s begin with the overly simplistic definition of national security I mentioned earlier. We expect the army to defend us against military attack. We look to our security intelligence service to identify threats to the security of Canada, and we look to the police for any law enforcement that might be required.
While there are no doubt exceptions, military operations tend to be overt. There are reasonably clear rules of engagement, recourse may be had through the Geneva Conventions, and tribunals may be established to consider allegations of war crimes and crimes against humanity. The police, too, are governed by clear sets of rules and the courts exist to enforce them.
What then of security and intelligence agencies? Prior to the terrorist attacks of September 11, 2001, security and intelligence agencies in democratic countries received little in the way of public attention. Their role was to investigate and report to government in secret; only rarely did they provide information to the police to enable them to pursue enforcement, at least in a way that attracted public scrutiny.
Traditionally, the work of security and intelligence agencies has been confined to the shadows. Their methodologies, sources and relationships have all been shrouded in secrecy. This may have been sufficient in the age of espionage but much has changed since then. The most obvious change is the shift in emphasis from counter-intelligence to counter-terrorism.
The other remarkable change is the involvement of several new players in the security and intelligence arena, and the expectation for them to cooperate with one another. Currently, the federal national security structure comprises, at a minimum: CSIS, the RCMP, National Defence and the Canadian Forces, the Communications Security Establishment, the Canadian Border Services Agency and Foreign Affairs and International Trade. If one accepts that our national security structure exists to protect Canadian values and culture, then we also need to acknowledge the myriad other government departments and agencies that help to foster our values.
The need to exchange information with unpalatable regimes is a significant and troubling aspect of the new reality. Threats to the security of Canada often originate in or have significant connections with countries where the commitment to democratic values and the rule of law is tenuous or has never really existed in the first place. Of course, diplomatic contacts with states that do not share our commitment to democratic freedom are nothing new. The United Nations exists in part to facilitate cooperation between countries regardless of their political cultures. In the context of information sharing, however, we must be vigilant to ensure we do not become implicated in human rights abuses abroad. At the same time, shutting our doors to regimes we do not like is not an option. Professor Wesley Wark neatly captured the dilemma in an editorial he wrote regarding Mr. Iacobucci’s inquiry: “It’s hard to read Mr. Iacobucci and not worry that the degrees of sanitation and bubble wrapping of shared intelligence that he sees as desirous could ultimately lead to little or no intelligence sharing at all… Judicially inspired degrees of caution about the sharing of intelligence might save some Canadians from harm; it might also expose many Canadians to harm.”
So there are no easy answers. Conflict is no longer state-to-state, or between democratic and totalitarian regimes. Today we are faced with non-state actors such as freelance terrorist groups that seek to attack not only the physical security of states but also the fundamental values upon which these states are based.
Casualty of war?
In the post-9/11 environment, there have been a number of commissions of inquiry and court decisions that have examined nations’ security operations, not just in Canada but also in the United Kingdom, the United States and elsewhere. A distressing number have identified shortcomings in the conduct of national security investigations and the activities of government departments and agencies. In Canada, we can take some comfort from the fact that Canadian officials have generally been found to be acting conscientiously and without malice, and that the shortcomings have typically resulted from a rapidly changing environment and the new challenges of fighting international terrorism.
Some commentators have nevertheless been quick to declare that the first casualty of the war on terror has been the very democratic values that our government is expected to uphold. But is this true?
Certainly, the courts and review bodies have taken a lively interest in the activities of our national security structure. It is interesting, and ultimately revealing, to examine what kinds of issues have attracted their attention and why. A non-exhaustive list of national security issues that have come before the courts and review bodies would include: the definition of terrorism offences; the procedures relating to security certificates under the Immigration and Refugee Protection Act; deportations or extraditions from Canada; information-sharing with countries that have poor human rights records; information retention policies; the extraterritorial application of the Charter; the disclosure of documents for use in foreign proceedings; the refusal to issue a passport on national security grounds; and the use of intelligence as evidence in criminal prosecutions.
Does the increased involvement of courts and other review bodies signal that security intelligence agencies and other government entities involved in national security have lost touch with democratic values? Or does it mean that the conduct of national security investigations today, given the new focus on counter-terrorism, necessarily touches on constitutional and other legal rights that were previously not affected, at least not to the same degree?
Law enforcement is a virtually closed system with finite limits: protection, commission, apprehension, adjudication. Security intelligence operations, on the other hand, are much more open-ended. The emphasis is on investigation, analysis, and the formulation of intelligence. A primary mandate for the new security intelligence agency back in 1984 was intended to be the provision of confidential intelligence to government decision-makers. This model remained workable so long as the objective was limited to the penetration and prevention of espionage and other long-term threats to the security of Canada.
Contrast this affinity for secrecy with the judicial system. The courts are traditionally grounded on principles of openness, transparency and public accountability. Fairness requires full disclosure of the case be met, and public hearings before an independent, unbiased adjudicator. The rule of law, constitutionalism, and the primacy of the rights of the individual are all salient features.
To a great extent, the courts have been cautious not to impose overly restrictive rules on national security operations. From the very beginning of Charter jurisprudence, in Hunter v. Southam, former Chief Justice Dickson was careful to say that the principles of reasonableness for searches may be different for national security. As former Justice Iacobucci said in a case arising in the context of the Air India prosecution, we don’t want to win the antiterrorism battle but lose the war by abandoning our democratic principles. At the same time, the constitution is not a suicide pact.
The current Chief Justice’s opening statement in Charkaoui provides a succinct summary of the court’s perspective: “One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.”
We should not overlook the fact that the first prosecutions under Canada’s Anti-terrorism Act resulted in findings of guilt and the legislation has stood up well to constitutional challenges.
And of course the courts are not the only actors. The executive and Parliament play equally important roles in this 21st century drama. Chief Justice Beverley McLachlin, in her recent Symons Lecture, provided an excellent account of the critical contributions the three branches of government make to combating international terrorism, and offered profound observations on the importance to our polity of our system of checks and balances, which she described as the “genius of democracy.”
The challenge for democracy in the battle against terrorism is not whether to respond but how to do so. The courts provide essential balance and safeguards in this battle. Other democratic states have also struggled to find the appropriate balance. Legislatures in the U.K. and the U.S. have enacted omnibus laws to address the new threat environment, and the courts in those countries have also wrought dramatic changes to their domestic jurisprudence.
While accountability and transparency may appear to be antithetical to protecting national security, they are in fact reflections of the same fundamental values – a safe, secure and open state governed by the rule of law. These are basic democratic principles. We must not resent these developments but we should instead recognize that they are a normal application of democratic principles and strengthening of our Canadian values. Preserving Canadian values is an integral part, indeed the very purpose, of national security.
John Sims is Deputy Minister of Justice and Deputy Attorney General of Canada. This article is adapted from the John Tait Memorial Lecture, delivered to the Canadian Association for Security and Intelligence Studies conference in October.