“For The Security of the Country”

Apologies for my long silence. I know I have ground to make up, what with the Supreme Court’s last Friday’s decisions. But let me start with something entirely different: a passage in Justice Taschereau’s dissent from the Supreme Court’s famous decision in Switzman v. Elbling, [1957] S.C.R. 285, which struck down Québec’s infamous “Padlock Law,” formally An Act to Protect the Province from Communistic Propaganda. which allowed provincial authorities to “close” any building used “to propagate communism or bolshevism.” In explaining why, in his view, the law was a valid exercise of the provincial power to prevent crime, Justice Taschereau insisted that the danger posed by communism was real:

Experience, of which we are permitted to take judicial notice, teaches us that Canadians, less than ten years ago, despite the oaths of allegiance which they had sworn, had not hesitated to violate in the name of communism official secrets, and even endanger the security of the state. The suppression of these subversive doctrines by means of civil sanctions is surely as important as the suppression of disorderly houses [which had previously been judged to be within the provincial power to prevent crime]. I remain convinced that the realm of criminal law, an exclusive federal competence, has not been invaded by the legislation at issue, and that it only involves civil sanctions for the prevention of crimes and the security of the country. (299; emphasis in the original; translation mine.)

Somehow, until last week, I had never thought about what that “experience” to which Justice Taschereau was referring to was. Perhaps you hadn’t either. But it’s actually an interesting story.

The experience that spooked Justice Taschereau about the dangers of communist subversion was the Gouzenko affair. Igor Gouzenko had been a cypher clerk in the Soviet embassy in Ottawa ― but his real employer was the GRU, the Soviet military intelligence, the KGB’s less well-known, but no less successful, competitor. In September 1945, Gouzenko walked out of the Soviet embassy, with a pile of top-secret documents detailing the GRU’s espionage activities in Canada, the United States, and elsewhere, and made his way to the RCMP. Although apparently it was at first reluctant to wade into this mess, the Canadian government granted Gouzenko asylum, and started investigating his allegations.

As Dominique Clément explains in his excellent telling of the affair, the method chosen by the government to investigate and punish those suspected of passing on information to the Soviets was shocking. A Royal Commission of Inquiry was set up, and suspects imprisoned in brutal conditions until they gave it evidence, without access to a lawyer. This evidence was then used against the people who gave it, who were charged under the Official Secrets Act and, in many cases, found guilty ― on the basis of a reversed burden of proof. It is a rather shocking, and poorly-known, I think, story of abuse.

But it is also true that Soviet espionage was a real threat to Canada’s interests and security. And Justice Taschereau was well positioned to know this ― as were some of his colleagues on the Switzman bench. For Justice Taschereau had, in fact, been one of the co-chairs of the Royal Commission which extracted evidence of the pro-Soviet espionage from the suspects implicated by Gouzenko’s documents. And the other co-chair? Why, that was Justice Kellock ― who in Switzman expressed agreement with his “brother Rand,” who famously wrote that “[l]iberty in [thought and its communication by language] is little less vital to man’s mind and spirit than breathing is to his physical existence.” (306) And that’s not all either. One of the Commission’s legal advisors was the future Justice Fauteux, who was also in the Switzman majority. And the man who prosecuted most of the spy cases using the evidence gathered by the Commission was none other than the future Justice Cartwright, of the future Switzman majority as well. (Prof. Clément’s list of the “key figures” of the Commission is here.)

I think this provides fascinating context for Justice Taschereau’s statement. The “experience” he was referring to was his own, and that of his colleagues. In this light, his words seem to be not so much overwrought fear-mongering as a reproach to his colleagues. Had they forgotten? Surely not, though one wonders whether they might have wanted to forget, by the time Switzman was decided, the excesses of McCarthyism being known by then, and the sensitivity to rights violations being generally greater. Of course, there is nothing inconsistent in believing that communists should be free to spread their evil ideas and that those who, in the name of these ideas decide to breach the oaths they swore ought to be punished.

I don’t think there’s any obvious moral to be drawn from all this ― though one hopes that at least the sorry spectacle of two sitting Supreme Court judges being involved in gross violations of rights and the Rule of Law itself will never be repeated. History is an uncertain guide to the present. But a fascinating one.

Operation Dismantle at the Olympics

Citizens concerned that the deployment of a weapons system in their place of residence will expose them to an increased risk of a devastating attack turn to the courts to try to block the deployment. They fail. To a Canadian constitutional law junkie, that’s the short story of Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441. But that is also the story, on which the BBC reports, of a group of London residents who tried to challenge the decision by the British defence ministry to install a missile system on the roof of their apartment building as part of the security deployment for the upcoming Olympics. The High Court rejected their claim yesterday in Harrow Community Support Ltd v The Secretary of State for Defence, [2012] EWHC 1921 (Admin). But although the two cases can, I think, be fairly summarized in much the same way, there are substantial differences in the courts’ reasoning.

Operation Dismantle was an attempt by a coalition of civil society groups to block the testing of American cruise missiles in Canada on the ground that it increased the likelihood of nuclear war and thereby contravened Canadians’ right to the security of the person, protected by section 7 of the Charter. The Supreme Court had “no doubt that the executive branch of the Canadian government is duty bound to act in accordance with the dictates of the Charter” (455) – and that the judiciary could verify compliance with this duty even of a cabinet decision having to do with foreign policy (459).

However, the Court held “that the causal link between the actions of the Canadian government [in allowing the missile test to go forward], and the alleged violation of appellants’ rights under the Charter is simply too uncertain, speculative and hypothetical to sustain a cause of action” (447). Chief Justice Dickson insisted that judicial “remedial action will not be justified where the link between the action and the future harm alleged is not capable of proof” (456). The problem for the appellants was that given the inherent uncertainty of international relations, “it is simply not possible for a court, even with the best available evidence, to do more than speculate upon” (454) the consequences of the decision to allow missile tests. And as subsequent decisions of the Supreme Court show, the same can be true of other governmental decisions in the realm of foreign policy. Thus the actual consequences of the Supreme Court’s holding that “disputes of a political or foreign policy nature may be properly cognizable by the courts” (459) are rather less far-reaching than they might first seem to be. A sweeping assertion of judicial power is combined with a very cautious approach to its exercise.

The decision of the High Court might seem to be, in a sense, the opposite. Justice Cave-Haddon professes extreme caution, asserting that “[m]ilitary operational deployments for reasons of national security are matters for which the Government is answerable to Parliament and not – absent bad faith or acting outside the limits of the discretion – the Courts” (par. 27). And yet he makes – on the strength of a fairly scanty record quickly put together for an application heard on an expedited basis – detailed findings of fact, including a finding regarding degree to which the installation of the missile system makes the claimants’ apartment block more likely to be a terrorist target. Unfortunately for claimants, this degree is, in the judge’s view, nil. The claimants lose, but – purportedly – on the merits, rather than because their claim is inherently incapable of prof.

The reason for my skepticism as to whether this really is a decision on the merits is that the judge appears to have accepted with no reservations the government’s testimony, and in particular that of the general responsible for the military’s Olympics security deployment. Now it is not clear whether, or how seriously, the claimants challenged that evidence. But what seems clear enough is that much of it was opinion (about the missiles’ necessity, safety, etc.), not fact capable of proof in court. And even if we treat such testimony as expert evidence, what chance would the claimants have had to challenge it even if they had tried? A high-ranked military officer is, after all, presumably the best expert on such questions, and a court would be naturally inclined to defer to him.

Perhaps it is better simply to admit, as our Supreme Court did in Operation Dismantle, that the allegations of claimants in such cases are not capable of proof. Or to hold, as both the English High Court and our Supreme Court ostensibly did not,  that such cases are, quite simply, not justiciable.