RSS FeedAre there inalienable rights in Canada?
We in Canada like to think of ourselves as free. We also like to think we have rights. The police can’t throw us in jail for our political views. And if they do throw us in jail for any reason, the police must let us call a lawyer. A part of Canada’s constitution, the Canadian Charter of Rights and Freedoms guarantees our rights and freedoms. But the constitutional rights and freedoms such as freedom of expression, a right against arbitrary detention or imprisonment, and even our right to life, liberty and security, are not absolute. The Charter leaves loopholes for the federal Parliament, provincial legislatures, or even judges to limit or take away any rights or freedoms. There are no inalienable rights in Canada.
A legal right is a claim to a benefit. The law sets legal rights, and the courts will enforce them if no one else will. When you sign a contract to lease an apartment in exchange for rent, your tenant has a right to use the apartment, and you have a right to some of the tenant’s money. Your right is always someone else’s duty, which is either to give up the benefit you claim or to let you claim the benefit freely. You can also have rights against the government. For example, habeas corpus is a right to see a judge if the police arrest you. Freedoms are like rights but they are more about enjoying benefits you already have, such as speech or movement. Still, the flip side of every freedom is someone’s duty to respect it. For example, if you have a freedom of religion, the government may not ban your faith.
But rights and freedoms in our relations with the government are tricky because the government is a sovereign. It means that within its geographic borders the government writes the law. What good is a right if the government can scrap it? That’s where a constitution comes into play. It’s a superlaw that tells the government what laws it can and cannot write. And it’s very difficult for the government to change the constitution. The Canadian Charter is the part of our constitution that orders the government to respect certain human rights. If a provincial or the federal legislature passes a law infringing on our Charter right, the courts can strike that law from the books. It will have no force and effect. That way the Charter protects us from the government.
Even democracies need this protection to stop majorities from oppressing minorities. For example, our legal tradition has very good reasons for protecting some rights of the criminally accused. Only a minority of the total population will ever need these rights. Whether justified or baseless, a fear of crime can bring a party that wants to do away with these rights to power. In theory, our Charter will always stop the Parliament from touching the rights of the criminally accused. Before the Charter, the Parliament could throw out the presumption of innocence or the law against self-incrimination. A constitution can also protect racial, gender, or other minorities from discrimination. We can be sure of our human rights only when they are safe from the majority and the government it elects.
The Charter promises us this safety, but it doesn’t really deliver. There are several loopholes in the Charter that let the federal parliament, provincial legislatures, or the courts take away rights. First, the notwithstanding clause in s. 33 empowers legislatures to suspend fundamental freedoms (s. 2) and legal (ss. 7-14) and equality (s. 15) rights. Perhaps for fear of the ballot box, legislatures tried it for real only very few times. But if the government can suspend the rights, they are not inalienable.
Second, the most obvious limitation on all rights and freedoms in the Charter is in s. 1. It basically says that sometimes the Charter will not protect our rights. Suppose the Parliament passes a law that bans newspapers in a certain language. If the government can justify this law as reasonable “in a free and democratic society,” it can get away with it under s. 1. Who decides what’s reasonable and what’s free and democratic? Ultimately, it’s the nine people on the Supreme Court of Canada. Sometimes a s. 1 justification is a very hard task, but a right or freedom is guaranteed only if it’s legally certain, not if it’s probable or very likely. So the government can strip anyone of any Charter right with the consent of the Supreme Court.
Third, the courts decide what each right and freedom in Canada actually means. For example, s. 7 allows the government to deprive anyone of “the right to life, liberty, and security of the person” only in accordance with “the principles of fundamental justice.” The Supreme Court decides what these principles are. Next, the Charter often defines rights using the principle of “reasonableness,” which is really a code word for letting the courts fill in the details. See, for example, the right against “unreasonable search” (s. 8), the right to be tried within a “reasonable time” (s. 11(b)), etc. When the police breach our Charter rights to obtain evidence against us in a criminal investigation, we have a right to have it excluded from our trial—but only if “the admission of it in the proceedings would bring the administration of justice into disrepute” (s. 24(2)). Again, the courts decide what that means by applying factors laid down by the Supreme Court.
Finally, if the government breaches your Charter rights, the courts decide what compensation you get if any. It is little comfort to you and little deterrent to the government if the courts merely declare government action unconstitutional. Denied or insufficient remedies gut Charter rights and freedoms. As the recent case of Omar Khadr has shown, the Supreme Court can deny a meaningful remedy even for breaches of the most basic rights such as a right to fundamental justice in s. 7. Most Canadians don’t seem to like Omar Khadr or his family, so the majority is clearly not on his side. The Supreme Court didn’t say that it let the government off the legal hook because of the views of the majority of Canadians. But these views possibly encouraged the government when it violated Khadr’s Charter rights or denied him the requested remedy. What is the value of rights that depend on politics?
One can argue that these cases are extreme and that limits on our Charter rights are fine because we trust our government. After all we elect it. But consider this. First, majorities elect the government, and how certain are you what the majority will be like 20 years from now? Are you going to be in that majority? Do you want to entrust your most basic human rights to a majority? Second, even election rights in the Charter are not inalienable. Mix a national emergency with the right people on the Supreme Court (appointed by the Prime Minister; no Parliament’s consent required), and the words “reasonable,” “free,” and “democratic” in section 1 of the Canadian Charter can have a very different meaning.
The word “inalienable” expresses the idea of rights that the law can never let anyone take. An inalienable right is yours by the fact of your membership in the human species. No government or person gave you this right, so they can never take it away. It is yours by birth. It recognizes your inherent value as a human being regardless of who you are, what you did, or what you think. Very few rights can be inalienable but those that can are truly fundamental: a right to a fair trial, freedom of speech, habeas corpus. The US Declaration of Independence speaks of “Life, Liberty, and the pursuit of Happiness” as inalienable rights. The Universal Declaration of Human Rights recognizes “the inherent dignity and of the equal and inalienable rights of all members of the human family.”
Our Charter does not have the word “inalienable,” neither in letter nor in spirit. It uses other words. But social conditions change, and what’s not “reasonable,” “free,” or “democratic” today can become such in the future. There is a fully legal path to breaches of any rights in Canada. It doesn’t necessarily mean it’s possible politically, socially, or economically, but legally our rights are uncertain. A constitution that fails to protect minorities from the majority’s changing moods does not guarantee rights. The loopholes in the Charter show that we have rights and freedoms only as long as the government and the Supreme Court let us. Rights and freedoms in Canada do not inherently belong to us as human beings but are revocable gifts from the government and the courts. And if we can’t change our Charter, we must at least hold our government to account especially strictly when it comes to human rights.
Transparency sought in Afghan inquiry
Subpoenas issued to federal officials in Afghan prisoner inquiry
A legal fight is looming over the federal government’s refusal to release information about alleged war crimes committed by the Canadian military.
Murray Brewster writes for the Canadian Press:
In its attempt to derail the commission inquiry, the federal government has argued that the handling of prisoners is “not subject” to oversight by the military police complaints process, and that the National Defence Act only gives the agency the power to investigate complaints against military police.
Habeas corpus
Province pays $2,000 each to nine denied prompt bail hearings
The raid was meticulously planned and involved some 1,200 officers, but organizers overlooked one salient factor – ensuring Toronto’s bail courts were prepared for the crush of detainees.
Passwords are the new guns
Your password is a gun. It can’t shoot but at least the government treats it like a gun. In the UK, they made it a crime to refuse to give up your password to the government. The US long considered encryption an armament. It means encryption has military uses like weapons, infra-red goggles, plutonium, and armoured cars. When the government forces you to give up your password, it can read your data. Then you can’t hide anything from the government. It can get what it wants by demanding your password. In the UK, you can go to prison for years if you say no. In this information age, there is a real public interest in giving the government electronic investigation powers. But the UK is doing it the wrong way. They breach your right not only to privacy but also to due process. If gun rights didn’t sound so silly today, I would call the encryption rights the new gun rights.
The UK government recently disclosed that two people had been convicted for refusing to give up their encryption keys. There is no word on the sentence, but the prison term for this offence can stretch to five years. The UK government has had a power to take passwords by force since October 2007. This is how it works. If the government believes it needs your password for national security, crime prevention, or for economic well-being of the UK, it can give you a section 49 notice, named after the authorizing section of the Regulation of Investigatory Powers Act. A permission of the court is not necessary for this notice. You have only “reasonable” time to comply. After that, prosecutors can charge you with a criminal offence if you “knowingly” fail to give up the password.
Don’t say you have nothing to hide because you didn’t do anything wrong. There is a good reason to hide anything you want and still be a good citizen. Governments consist of people, even democratic governments. No matter how much you feel your government represents you, there are two ways in which a government can go rogue. First, you stop being in the majority. Second, a government official figures the majority won’t notice or will forgive him for abusing only you. That’s why many modern democratic countries enshrine human rights in their constitutional law: the US, Canada, and the EU, for example. Our Charter of Rights and Freedoms lets you ask the courts for protection from rogue government officials no matter what the majority thinks. The Canadian Constitution is a curb on both the government and the will of the majority. It presumes that both of them can do bad things. No one is a saint.
There are two ways to protect yourself from the government’s or the majority’s abuse. One is the constitutional law. The other one is physical. Many, many years ago gun ownership was such a physical barrier to government abuse. In the 18th century, it was reasonable to think that if men had guns, the government would not abuse them for fear of an armed response. Today it doesn’t make sense, of course, because no armed band of neighbourhood dads will be a match for the modern state’s professional military machine. But things we want to protect with physical barriers from governments gone astray are different today. It’s not land, or crops, or not even our physical liberty or security (courts do a good job protecting those two from abuse, and if a day comes when they can’t, a higher being will be our only hope).
What we more and more often want to protect today is computer data. Our lives are online or on the hard drive. Emails, records of every website we go to, diaries, mad or creepy thoughts we share with the computer screen, political manifestos, ideas, inventions, art: it’s really anything that can change the world in a perfectly legal way but an official may want to censor, delete or use in some other way to harass you, charge you, or declare that you don’t look like your passport picture when you go abroad. Do we live in a dictatorship? Of course not. Does our government do things like that routinely? No, no, and no. Does it looks like it wants to? Not really. But like the Charter presumes that the government has the capacity for evil, every citizen must have a right to presume the same thing and to build impenetrable walls around his private life. Gun lovers in a certain country south of the border got a wrong target in their sights. They cling to the wrong tools. Guns are outdated, good-for-nothing protection of human rights. Passwords are the new guns.
The UK law wants to take your passwords from you. And like many things in the computer age, passwords are tricky. You can’t rip them from the owner’s arms and break them into pieces. You can’t even know for sure who has them or who the owner of the data they protect is. That’s a huge problem with the UK law. To overcome this problem, the law must make presumptions. First, it must presume that whoever has the hardware, owns the data on it. Unfair. Plug your computer and lots of stuff will land on your hard drive in the first five minutes without your knowledge. Second, the law must assume that whoever has the encrypted data, knows the password. Don’t ever forget passwords that the government wants. It’s may be a criminal offence in the UK. Finally and most scarily, the law must presume that every chunk of random data is encrypted. Without a password, there is no way to tell an encrypted Word document from a piece of an image file. Encryption works by making ordered data appear random. Sadly, much legitimate, unencrypted data on your hard drive looks exactly like that. Experts can even encrypt text by turning it into a jpeg of a cat.
There is a very thin line between enforcing the UK password law and letting cops wade through arbitrary computers under the cover of the today’s hottest flavour of the public interest. There are just too many legal fictions in this criminal offence. For this reason, I think Canadian courts would not let it stand if our Parliament passed a similar law. It’s just not necessary to force people to give up passwords to defend the absolutely legitimate public interest of safety or national security. The government can do its job without breaching human rights this much. Forcing people to surrender passwords will not minimally impair their Charter rights. The offence in the UK law is also too vague because any file with random data is potentially encrypted and subject to investigation. Giving up passwords may also be self-incriminating. No one should be punished for refusing to testify against themselves.
Let’s not kid ourselves. More and more criminals will encrypt the data used to commit crimes. But the way computer networks work makes it easy for that data to end up on an ordinary citizen’s computer. The government shouldn’t have powers to force us to give up passwords to any random heap of data that it believes to be connected to criminal activity. Passwords to our email or computer accounts will not be safe from such investigations either. Spammers bombard our computers with billions of attachments every year. There is a good chance spammers’ networks or computers are implicated in crime. That’s a real connection to our pretty Macs or drab PCs humming in our living rooms or bedrooms. And little can stop the police from suspecting that you know the password. This scenario doesn’t have to be common to cause alarm. It should cause alarm because of its potential for abuse. Making it an offence to refuse to give passwords justifies police involvement that can go beyond reasonable limits. That’s too much for our civil liberties, even in the name of fighting crime.
The UK password law is harsh and unreasonable. It can make too many law-abiding citizens targets of police interest. It will make them potential criminals when they refuse to take down barriers between their private space and the government. Someone said we increasingly lived online. If we take our affairs to the electronic realms, let’s make sure we take our civil liberties there too, even if we have nothing to hide.
What country has the strongest civil liberties?
There is a lively discussion on Slashdot about which countries are best for civil liberties and privacy. It all started when someone from the UK said s/he was unhappy with growing restrictions and wanted to emigrate.
It struck me how little Canada came up in the discussion. Why? We have the Charter; reasonable, independent, strong courts; decent privacy laws; evidence of the judiciary keeping the government on its toes. I guess the world just doesn’t know Canada that well.
Do you have other ideas why Canada is not mentioned? Any other countries you think are better?
