Tom Jarmyn

Division of Powers and Lawyers

I am doing a lot of work with respect to the creation of the position of Special Advocate pursuant to Bill C-3 An Act to Amend the Immigration and Refugee Protection Act.  This Bill responded to the Supreme Court of Canada's decision in Charkaoui et al striking down the security certificate process on the grounds that it violated the subject person's rights under section 7 because it did not allow them to make adequate response to the allegations against them.

The essence of the Bill is that it creates the position of Special Advocate who will be able to see the secret material but once secret material has been received will not be able to communicate with the person except with leave of the judge hearing the proceeding.  The Bill then goes on to say that nothing in the Bill will create a solicitor-client relationship with the named person.

This strikes me as odd as whether a solicitor-client relationship arises is a matter of provincial jurisdiction and not within the federal power.  Whether something is the practice of law and the terms under which law is practiced are determined in accordance with the Law Society Act of the province in which the event occurs.

Terrorism and Law

Philip Bobbitt's most recent book Terror and Consent is an interesting discussion of how we have to develop a new conception of the relationship between law and strategy that reflects our changing political environment.  I am not convinced that everything needs to change but he does compellingly make the point that the activities we characterize as 'terrorism' are fundamentally different from the activities we called terrorism in the '70's and '80's.  Al Qaeda is not the same type of organization as the Red Brigades or even the IRA. 

Bobbitt's thesis is that there has been an evolution in the nature of the state from the nation state, aimed at protecting and providing for the welfare of citizens, to the market state, aimed at providing opportunities and choices for citizens.  He argues that terrorism is now aimed at eliminating the state of consent that is fundamental to the market state.

Interestingly he also notes that this state of consent can also be eliminated by the inability or unwillingness of governments to address natural disasters or the predatory acts of other governments towards their citizens (Darfur).  He advocates the establishment of a robust legal regime that establishes a principled basis to resist terrorism and to intervene in other countries when it is apparent they are preying upon their citizens.

One area that Bobbitt goes to far in is the evolution of war.  He seems to be suggesting that terrorism is fundamentally altering the nature of war from state on state aggression to state on sub-state actor.  I can agree that we need a legal regime that conceives of the state on sub-state relationship but I do not think that we can conflate that with state on state aggression.

State on state aggression remains a fact of life (Russia - Georgia, India - Pakistan for example) and any doctrine which envisages intervention against states acting against their citizens will only make it more so.  The possibility of state on state aggression will also colour relationships with Iran and China over the next 20 years.

But Bobbitt does raise the interesting question:  How does a state react to an organization like Al Qaeda which has 1) declared war on the West; 2) has its own sources of funding through commercial dealings and charitable contributions; 3) has its own body of law (Sharia law); 4) millions if not hundreds of millions of followers; and, 5) its own military?

The Guantanamo Decision

Yesterday's decision of the US Supreme Court regarding the Guantanamo Bay detainees is a useful step forward in the process of applying law to the war on terror.  Even as pragmatic and realistic a judge as Justice Posner (in Not a Suicide Pact: The Constitution in a time of National Emergency) has agreed that detainees have a right to have the legality of their detention determined under the US Constitution.

This does not mean that the detainees will be released or that their detention has been ruled unlawful.  It simply means that they have the right to have a US Court review the legality of the decision as to whether they are combatants.  If they are combatants (however that term is used) then the detention is legal.

Justice Scalia's dissent on the point is written in his typical hyperbolic fashion and, as David Kaye notes in the LA Times, will only contribute to the difficulty in coming up with a method of determining the relationship between the law, the courts and the conduct of the war on terror.  War is not conducted in a realm of lawlessness and we must be accountable to ourselves for our decisions with respect to our actions in this war - Justice Scalia would deny this.