Eroding civil rights for political gain
Eroding civil rights for political gain
One of the fundamental principles of democracy is that of open courts, where citizens have the right to face their accusers and all the evidence against them. Now, that principle is under threat from legislation being steamrolled through Parliament.
In anti-terrorism legislation and a bill on victims’ rights, courts will be able to take secret testimony and evidence from anonymous accusers and sources. In some cases, the accused won’t know who’s accusing him. There could be national-security cases when even the judge won’t know all the details.
So how are people to defend themselves if they don’t know who is accusing them? How are citizens to enjoy the most basic civil right of freedom from unjust prosecution, if they don’t know fully the state’s case against them?
In Bill C-32, the proposed new law on victims’ rights, a judge can decide to accept testimony from anonymous witnesses. In some cases, the witness can ask to conceal his or her identity.
A judge “may, on application of the prosecutor in respect of a witness, or on application of a witness, make an order directing that any information that could identify the witness not be disclosed.”
A hearing can be held on such an application, “and the hearing may be in private.”
Ottawa lawyer Michael Spratt, a prominent expert on criminal law, warns that this undermines the citizen’s right to a fair trial.
“Think about it, a private hearing that could result in anonymous witnesses and secret evidence,” he wrote on his blog. “So much for the ability of an accused to respond to serious allegations.”
Secret evidence and anonymous witnesses could deprive accused persons of crucial information needed for their defence. Spratt points out that non-disclosure of critical evidence “has been a central feature in almost every wrongful conviction.”
Now, common sense suggests that it would be a rare judge indeed who would allow such evidence to be introduced in a trial. But this isn’t common sense; it’s politics.
The federal Conservatives define themselves as the tough-on-crime party; that’s why they’re building more prisons and establishing mandatory minimum sentences. Now they’re eroding the basic right to a fair trial.
The victims’ rights bill isn’t the only new law that will undermine that right. Bill C-44, which affirms the powers of the national security apparatus, contains similar provisions for secret witnesses and secret evidence.
In fact, C-44 goes so far as to create a “class privilege” for all human sources developed by the Canadian Security Intelligence Agency. In other words, a CSIS source is a secret source, unless otherwise ordered.
“No person shall, in a proceeding before a court … disclose the identity of a human source or any information from which the identity of a human source could be inferred,” the bill reads. Even the judge could be kept in the dark.
A judge might rule that disclosure of information about a source is required for a fair trial. And there could be disclosure if the “human source” asks for it, or if the director of CSIS does. But the new legislation stacks the deck in favour of the prosecution.
Legal experts doubt whether such laws are even constitutional, although Public Security Minister Steven Blaney made the extraordinary claim that C-44 is “the most constitutional piece of legislation that we have ever brought in.”
That makes a person wonder about their other bills. But in some ways, constitutionality doesn’t matter. This is politics in an election year, with a governing party unworried about the Charter of Rights and Freedoms.
And it will soon become law, apparently with little further fuss. On both bills, the Conservatives limited debate, refused to hear critical witnesses and rushed ahead with the approval process.
In democratic, constitutional and legal terms, this is bad law, which might well be struck down when challenged in court. But it might work politically, and that’s all that really matters.