Must We Trade Rights for Security? The Choice between Smart, Harsh or Proportionate Security Strategies in Canada and Britain

Abstract

This paper critically examines the claim that rights can and must be exchanged for security, Drawing on Canadian and British examples, the author argues that smart security strategies can help prevent terrorism and minimize its harms without infringing rights. Examples include administrative regulation of sites and substances vulnerable to terrorism, emergency preparedness and effective review of national security activities. Next the author outlines harsh security strategies such as overbroad definitions of terrorism, the prohibition of speech associated with terrorism and profiling practices that infringe rights without advancing security. Finally the author suggests that cases of genuine conflict between rights and security, such as issues affecting national security confidentiality, alien terrorists who cannot be reported and preventive restraints on liberty, should be resolved by applications of principles of proportionality. The paper concludes with a detailed case study of the 1985 terrorist bombings of Air India that killed 331 people and suggests that they could have been prevented more readily by smart security strategies such as increased aviation security.