Terrorism's Challenge to the Constitutional Order

Abstract

The government has assured us that it can justify any infringement of fundamental rights effected by Bill C-36 on the basis that the Bill's important purposes would trigger judicial deference. This paper questions that unsupported assertion. Our Charter's mode of rights protection was specifically designed to prevent repetition of past excesses by the executive in the exercise of plenary emergency powers in times of danger and uncertainty. In anticipation of stringent judicial review, the government should re-draft Bill C-36 to meet the judicial tests of prescription by law and proportionality. It should also include in Bill C-36 the political safeguards set down in the Emergencies Act, which are modeled upon the derogation power in the international human rights instruments. The transparency and accountability ensured by these safeguards legitimate the creation and exercise of exceptional powers in free and democratic societies.