Canada's Charter of Rights and Freedoms more critical than ever
“Six years of deprivation of freedom,” Adil Charkaoui said as he snipped his electronic house arrest bracelet upon his release from a Security Certificate three years ago. "Two years in jail, four years with this bracelet and draconian conditions.”
Today, the Canadian Charter of Rights and Freedoms turns a venerable 30 years old – its “Pearl Anniversary,” if you will, making it nearly as old as Charkaoui himself. The occasion should not simply be celebrated as an important step towards democracy in this country – but as a reminder of the risks of unbridled government power, even (and especially) here in the “True North Strong and Free.”
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Let us not be under any illusion that this vital document will protect us from our government; it merely offers a belated remedy to its own violation.
When I met the now 38-year old Charkaoui just after his release, in Toronto, the loss of years of his freedom – nay, theft of his life, his family, his reputation – was a stirring reminder that the Charter only goes so far, and only serves those abused by the state too late.
Citizenship and Immigration minister Jason Kenney defended locking Charkaoui and other Muslim-Canadian men away for so long.
“I read the protected confidential dossiers on such individuals, and I can tell you that, without commenting on any one individual, some of this intelligence makes the hair stand up on the back of your neck,” he said. “I just think people should be patient and thoughtful and give the government and its agencies the benefit of the doubt.”
Need I be clearer: the state should never deserve the “benefit of the doubt” when it comes to fundamental freedoms. The Charter of Rights and Freedoms may be imperfect, and imperfectly enforced, but a country without it would be a frightening one, indeed.
Amidst media's rightful pontification and celebration and reflection marking the rights document's 30th anniversary, let us not let this important occasion whitewash a document that remains controversial, unequally enforced, and too-easily evaded by an over-zealous government.
I rarely concur with National Post columnist Andrew Coyne, but on the constitution we tend to find agreement: Canada's Charter is both flawed and crucial, notwithstanding its "exceptions and escape hatches, most notoriously the notwithstanding clause," Coyne argues.
Therein lies what many see as the fatal flaw of "democratic" constitutions: after hard-fought battles for civilian rule, the rulers always saw fit to allow a way out, a manual override, a self-destruct button of sorts. Canada's allows the state to temporarily suspend our most cherished of laws if deemed necessary.
Italian theorist Giorgio Agamben calls it the "State of Exception," and observes that governments' emergency-power clauses create "a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible." The consequences of a permanent perception of war are obvious.
Charkaoui was just one of the victims of post-911 paranoia. The Moroccan-born Canadian citizen was arrested in May 2003, accused of training with militants in Afghanistan. But our government refused to cough up its evidence to the public, instead invoking a new clause allowing them to indefinitely detain terrorism suspects without releasing their reasons for doing so. He moved from years of solitary confinement to draconian house arrest – with aforementioned constant electronic monitoring – to freedom only because the Supreme Court of Canada upheld his Charter rights and declared Canada's security certificates unconstitutional in 2009. He's now suing Canada for $24.5 million for the violation of his rights.
When I met the long-time Montreal resident, he surprisingly did not speak out of sadness or rage or betrayal. It was at a No One Is Illegal-Toronto event in Toronto, on March 20, 2010. Charkaoui spoke in the most matter-of-fact fashion about his years of detention, isolation and undocumented accusations; of course, he was outraged at the injustice done to him. But what struck me was how he could be any person I encountered during my day, or in my reporting: unassuming, calm, articulate, and humble. He could be any of us – though, as a Muslim-Canadian, he has an experience of discrimination that I will never experience.
But the outrage of his detention remains – along with the three other Security Certificate detainees still in Canada: Mahmoud Jaballah, Mohammad Mahjoub, and Mohamed Harkat – who are held under token changes to the regime as a result of Charkaoui's Charter challenge. Despite Canada's failing on human rights in their cases, it is precisely the 1981 Charter of Rights and Freedoms that prevents an even more widescale abuse of rights.
As we reflect, let's not pat ourselves on the back.
With remembering and celebration must also come criticism of the way our government has systematically chipped away at cherished freedoms. Whether it's warrantless internet spying proposed under public safety minister Vic Toews Bill C-30, or Kenney's omnibus refugee law, Bill-31 - which mandates automatic and indefinite detention for refugees deemed "irregular" by Kenney himself - the Charter must become a more central feature of our civic life, and one with real punitive consequences when it is breached.
Only three months after I met the unassuming and soft-spoken Charkaoui, a friend of mine was amongst 1,100 demonstrators and bystanders arrested in the largest mass detention in Canadian history (barring, of course, Japanese internment and the vast overrepresentation of Indigenous people in our jails – those could easily be classified as “mass detention”).
As a member of the Queer Resistance Network, an ad hoc group of activists protesting the meetings of the G20 and G8 in Ontario, she helped organize a 60s-style mass kiss-in and spoke of the impact of global economic policies on poor people of colour, migrants, and sexual minorities.
After dark on June 26, 2010, she and her partner were rounded up with hundreds of others outside a makeshift prison improvised by police in a disused film studio, ironically while attending a vigil against previous arrests.
The day before had seen property damage from a faction that broke away from a massive labour and rights-group demonstration, but police chose to target protesters who had nothing to do with the vandalism, beating them senselessly and even trampling them with horses. The crackdown - often carried out by officers who intentionally hid their badge numbers - continued the next day.
My acquaintances were arrested even after following police orders to move away from the area, and when they followed those orders to the letter, they was thrown in jail regardless. But not jail like you'd see on Prison Break or Alcatraz – these were makeshift mesh cages, only metres wide, with an open-door port-a-potty and dozens of prisoners crammed together, many for days, sleeping on the mesh floor. The meals: white Wonder bread and processed cheese, literally thrown onto the floor so that those incarcerated could scramble for them. No lawyers, no phone calls, no privacy.
Amongst the 1,100 detained in such horrid conditions were accredited journalists, uninvolved bystanders, and even hotel workers who happened to have been on strike outside a hotel where G20 dignitaries were staying. But most disturbing of my friend's experiences is the moment she realized that, like her, all the other prisoners in their particular cage were gay, lesbian, bisexual, transgender or queer (LGBTQ).
Surely this could not happen in Canada?
It happens in Canada. It has never been redressed under the Charter of Rights and Freedoms. No one has gone to jail for this egregious abuse of citizens' rights or countless others that weekend. One could ask: Why celebrate a Charter that doesn't prevent abuse, and is so unjustly ignored when it comes to marginalized people?
Today, the various police forces and governments behind the G20 fiasco are facing at least 10 lawsuits from almost 2,000 individuals, all of them in varying ways invoking the Charter of Rights and Freedoms to claim the systematic and egregious violations of their human rights.
If successful, they will cost the state $162 million collectively.
As we celebrate and honour the 30 years since Pierre Trudeau signed the Charter of Rights and Freedoms, let us not sit by idly proclaiming our country's greatness. We need to act, to pay attention, to demand justice – and to work so that there are no more Charkaouis, no more demonstrators, and no more “irregular” refugees locked away without due process, simply because the Conservatives plead for the “benefit of the doubt.”
Happy anniversary, Charter! We salute you - not idly, but actively and fiercely. The stakes are simply too high to celebrate any other way.