TELECOM Digest OnLine - Sorted: Re: Public Wants Court to Okay Wiretaps

Re: Public Wants Court to Okay Wiretaps

Mark Crispin (mrc@CAC.Washington.EDU)
Sat, 14 Jan 2006 17:01:02 -0800

On Fri, 13 Jan 2006, wrote:

> The Charter of rights of Freedoms applies to both citizens and
> foreign nationals alike. It just contains the certain rights (like
> the right to vote) which are limited to citizens.

Except that the "everyone" clauses of the Canadian Charter do not mean
the same thing for non-Canadians. If an American attempts to exercise
certain of those "everyone" rights in Canada to the extent that a
Canadian citizen may, the RCMP will promptly kick his ass south of the
49th parallel.

What's more, certain clauses of the Charter have exceptions that are
NOT in the Charter. For example, an Act of Parliament states that the
provisions against warrantless searches and compulsion to testify
against oneself do NOT apply to a substantial number of law-abiding
Canadians. It went to the Supreme Court, which found that it violated
the Constitution and the Charter, but they decided not to overturn it
because Parliament wanted it.

> The US government lawyers on the other hand have stated that _the
> whole_ of the US Constitution (including the right to a lawyer if
> arrested) doesn't apply to foreign nationals. And they didn't seem
> to be offering up what, in its place, _does_ give them any rights.

All governments, throughout the world, claim that power.

>> The Charter also uses "reasonable" as a discriminate quite a bit
>> more than than the US Constitution; and guess who definites
>> "reasonable". The Supreme Court. Personally, I have no problem
>> with that.

The Canadian Supreme Court lacks both power and much independence from
Parliament. Remember, Canada's Constitution gives the federal (or any
provincial government) the power to overrule a decision by the Supreme
Court that declares a law unconstitutional.

>> The US is generally quite a bit more liberal about giving out
>> privileges to foreigners than most other countries, including Canada
>> (although Canada is relatively liberal).

> I don't call the withholding of the right of access to a lawyer (for
> one thing) particularly "liberal".

Prisoners of war are not entitled to lawyers.

If they were military combatants, then the Geneva Convention would
apply. However, Geneva only provides protection to uniformed
combatants; even if Geneva did apply, they still could be held until
the cessation of hostilities without access to lawyers.

The terrorists in question are lucky they weren't shot immediately
upon capture. That *is* the normal fate throughout history of
captured non-uniformed combatants; a category which includes
partisans, spies, saboteurs, and terrorists.

>> The Canadian Supreme Court has ruled that because the notwithstanding
>> clause exists, an Act of Parliament can not be seen as violating the
>> Charter.

> Only if they invoke the notwithstanding clause (with the issues
> related to that which I mentioned on my last post).

Not always.

> Day-to-day Acts of Parliament can (and do) get overturned by the
> Supreme Court on account of the fact that they violate the Charter.

That's only if Parliament says that they aren't Really Important Laws;
since otherwise the Supreme Court won't overturn it even if it does
violate the Charter (and yes, without using the "notwithstanding"
clauses). What's more, even if the Supreme Court overturns it, the
federal and provincial governments can overturn the overturning.

>> Parliamentary systems are pure democracies; they have nothing like the
>> US checks and balances.

> You mean the checks and balances that are protecting the non-citizens
> who apparently have no rights?

The checks and balances in the US do a better job of protecting the
rights of non-citizens in the US than Canada's Charter does of
protecting the rights of Canadian citizens.

The Canadian Charter talks about "[everyone has | citizen have] the
right to such-and-such" ... all granted by government and thus subject
to government's "reasonable" control. The US Constitution talks about
"Congress shall make no law", "the right of such-and-such shall not be
infringed", "no such-and-such shall be done"...all prohibiting acts of
government ("reasonable" or otherwise).

That's a big difference.

> I'm a regular listener to CBC Radio One, for example.

It would be helpful for you to use more diverse sources of
information. CBC is not an unbiased (or particularly independent)
source. I've caught them presenting unfounded speculation, or even
outright falsehood, as proven fact. They're not particularly good on
broadcasting corrections or retractions either; they just stop talking
about the matter when they are proven wrong.

That isn't to say that the US media is much better. Hence the
requirement for *diverse* sources of information.

> But one doesn't need to be a legal expert to believe that the
> withholding of basic rights from non-citizens is wrong.

That depends upon the definition of "basic rights".

-- Mark --
Democracy is two wolves and a sheep deciding what to eat for lunch.
Liberty is a well-armed sheep contesting the vote.

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