Hell or High Water

by Paul Martin

  In April 2004, not long after I became prime minister, the bishop of Calgary, Fred Henry, issued a pastoral letter in which he claimed that it was “morally incoherent” to be a Catholic and hold the views I did on same-sex marriage. A priest in my riding announced that if I showed up for mass at his church, he would refuse me communion. But the church in my riding that I attended most frequently was St. John Brébeuf, and the pastor, Father John Walsh, who is my idea of a great parish priest and whose pastoral work makes the Church stronger, was interviewed by Maclean’s. He said that while he would not perform a same-sex marriage because it was contrary to the directives of the church, he wondered why it was that some elements of the church had so much trouble recognizing the need to love all its members. Indeed.

  When the courts ruled that the legal acceptance of same-sex marriage was demanded by the Charter of Rights and Freedoms, there was no doubt in my mind that it was the government’s responsibility to uphold and implement those judgments. This was a classic test of the duty to protect minority rights. When Jean Chrétien was prime minister, the government was confronted with the issue of whether to change the definition of marriage to conform with the rulings of a number of provincial courts of appeal. Before acting, he referred several questions to the Supreme Court, including whether it was lawful for religious ministers to decline to marry same-sex couples. When I became prime minister, I added another, which explicitly asked the court whether it was unconstitutional to exclude same-sex unions from the definition of marriage. I think it was unfortunate that the Supreme Court chose not to answer the question I added, since it would have made it absolutely clear from the highest court in the land that same-sex marriage was a constitutional right, and would have barred the door to those in the Conservative Party who may still hope some day to take that right away. Once the court rendered its decision, we put forward legislation to change the definition of marriage to be the union of two people to the exclusion of others.

  The legislation went to great lengths to ensure that priests, ministers, rabbis, and other clerics would not be required to perform same-sex marriages. I felt very strongly about this. This was about civil, not religious, marriage. It was also about ensuring rights, not imposing obligations on the unwilling. There were many among my caucus who opposed the legislation. I had made it a free vote and spent a great deal of time with individual members who had doubts about what we were doing. I understood how difficult it was for them, but I felt strongly that what we were doing was right. Of course, despite the numerous court rulings on the issue, the Conservatives did everything they could to delay the legislation, in the hopes of preventing it from going through. Eventually, however, Tony Valeri, certainly one of the most gifted House leaders of recent times, managed to do the seemingly impossible. He convinced the Bloc and the NDP to support a motion cutting off debate — something opposition parties are loathe to do — and ended the Tories’ delaying tactics. The law passed, and we made an important contribution to the history of human rights in this country.

  This was not the first time Tony had managed to do the impossible. We were a minority government, perpetually on the brink of an election, and yet in the two years we were in office, our legislative record compared favourably with that of any previous government in a similar period going back more than thirty years — all of this thanks to Tony Valeri.

  My views on the Charter of Rights and Freedoms have evolved over the years. When it was first introduced, I was a supporter of the “notwithstanding clause” in the Constitution that allows Parliament or provincial legislatures to override some features of the charter as interpreted by the courts. That seemed like a reasonable compromise to me between entrenched constitutional rights and the supremacy of Parliament. When you are outside government, it is hard to imagine that the men and women in positions of responsibility would act out of bias.

  Once you are on the inside, however, you quickly realize that governments — which are made up of human beings, after all — are subject to the same prejudices or ignorance that afflict us all, and may act in accordance with what they think are the rules or the established practices of government, without thinking through their effects on society as a whole. We are a land of minorities — linguistic, racial, religious, sexual, and so on. Some of these minorities may band together to form an oppressive majority on selective issues from time to time, and so each of us may become susceptible to the arbitrary power of the state at some point in our lives. That is why I came round to the view that the charter and its protection of minority rights and freedoms, especially in the face of a hostile majority, was crucial, that it had become one of the defining characteristics of our nation and that it should not be overridden by Parliament. That is why I believe the “notwithstanding clause” is incompatible with the Charter of Rights and Freedoms and should be abolished.

  The issue took on a new form, for me, when the airplanes slammed into the World Trade Center on September 11, 2001. I was keenly aware of the new reality that those attacks created for us in North America. As finance minister, I brought in a “security budget” with nearly $8 billion dedicated to the issue and I supported our government’s numerous new security measures, including antiterrorism legislation, which proved to be controversial with many, but most particularly with the Arab and Muslim communities.

  In the weeks following the Liberal leadership convention, as my transition team and I discussed the design and shape of my first cabinet, we decided to bring many of the disparate pieces of public safety, security, and emergency preparedness together in one place. Our goal was to create a strong new department that would include the Solicitor General’s department as well as the Canadian Security Intelligence Service (CSIS), the RCMP, Corrections, the newly created Canadian Border Security Agency (CBSA), and a new emergency preparedness agency that would replace an organization previously lodged with DND. The aim of the new department was to provide greater coordination and effectiveness among these various agencies.

  In my mind, it was important to have a senior minister in charge of this new portfolio. It is never easy to create new departments from the pieces of others. Often there are fears and resentments on the part of public servants, and this new department would have to function, from the very beginning, under the bright glare of media and public interest. We were well aware of the kind of attention that the creation of the Department of Homeland Security had generated in the United States and we anticipated comparisons, both good and bad. I asked Anne McLellan, a former justice minister and one of the most able people in the government, whom I had also asked to become deputy prime minister, to take over this new portfolio. I wanted to send a message, both inside and outside government, that Canadians’ safety and security would be high on my government’s priorities, and so would our freedoms.

  I firmly believed that as we worked to better prepare our country against the threat of global terrorism we also had a duty to be firm in protecting Canadian rights. We only needed to look south of the border, to some of the experiences of our American neighbour, to see how hard it is to get the balance right.

  The most vivid example of what I am talking about was presented to me as soon as I became prime minister in December 2003: the case of Maher Arar. The facts are well known to Canadians now. On his way back from a family vacation in Tunisia, Arar — who holds dual Canadian and Syrian citizenship — was detained at a stopover in New York. The American authorities believed him to be a terrorist suspect, in part due to erroneous information provided by the RCMP. After being detained and questioned by U.S. authorities, Arar was whisked off (via Jordan) to Syria, where he was held in prison from October 2002 until his return to Canada on October 6, 2003.

  Throughout the rest of that fall, we all learned more of his harrowing story of arbitrary detention and torture. At the time, I suppose that I was like most other Canadians, including many officials, both elected and unelected: I had no idea whether Arar was guilty of something, or whether he was inn
ocent, as he claimed. After I became prime minister, however, I quickly discovered that I still could not get a clear answer or explanation to my questions from either the RCMP or CSIS. No one would tell me precisely what had happened with Arar, or why. “If you have evidence that the man was engaged in dangerous activities, then show it to me,” I said. Instead I got contradictory information about the role our security services had played in Arar’s arrest and detention. It was muddy, very muddy.

  Nor was I impressed when someone leaked negative information about Arar to Juliet O’Neill, a reporter with the Ottawa Citizen. As later determined by Mr. Justice O’Connor, these leaks came from high-level sources, in an orchestrated campaign to smear Arar. There were also a number of other leaks through the fall. The clerk, Alex Himelfarb, and my national security adviser, Rob Wright, ordered an investigation, but as often happens in these cases, the culprits could not be identified.

  Through the months of December and January the calls for a public inquiry grew louder, especially from Arar, his wife, and various civil liberties organizations. The last straw for me was when, in the name of investigating the December leak, the RCMP sought and received a search warrant for the home of Juliet O’Neill. I was in Davos at the time, attending the World Economic Forum, and I remember being caught off guard by a question from a reporter about the RCMP raid on O’Neill’s home. I was asked whether I thought that she was a criminal, and I gave a candid response, saying “no.” I was later criticized for offering my opinion on a matter better left to the courts, but my response was genuine and it reflected my growing frustration with my inability to get answers from anyone, not only about what happened to Mr. Arar but about the leaks. I found the search of O’Neill’s personal effects shocking, and I suppose my response in Davos reflected that sense of shock.

  I wanted to put the system on notice that no one could play fast and loose with the lives of Canadians. This whole series of events only reinforced my views that in times of crisis you must fight the enemy; but you must also be vigilant to ensure that individual rights continue to be protected, or the enemy wins.

  In late January I concluded that a public inquiry was the only way to uncover the facts on these events and reassure Canadians. Anne McLellan told me that the best person for the job was Mr. Justice Dennis O’Connor of the Ontario Court of Appeal, who had just concluded an inquiry into the tainted water situation in Walkerton, Ontario. He was appointed to head the inquiry on January 28, 2004. I continue to be grateful to Mr. Justice O’Connor for taking up this task, and for reminding us all that the “ends” do not always justify the “means.”

  There was real confusion around what role, if any, the RCMP, CSIS, or others may have played in the U.S. decision to remove Mr. Arar to Syria. While that question was a key part of the terms of reference for the O’Connor inquiry, I decided that we needed to work with the U.S. administration to ensure that there were no more Arars. Bill Graham, then foreign minister, and his officials, had already begun discussions with their U.S. counterparts, including Secretary of State Colin Powell. These discussions ultimately led to the Monterrey Protocol, signed by President Bush and me at a meeting in Mexico on January 13, 2004. The protocol’s main purpose was to protect Canadians detained in the United States who were being “rendered” to a third country. Under the agreement, the United States would advise a designated senior contact in our foreign ministry in such a case, and there would be consultations before any action was taken. The goal obviously was to make it difficult, if not impossible, for the United States to remove any Canadian citizen to a third country unilaterally. Both Bill Graham and I felt that the arrangement to consult could prove crucial in saving some Canadian citizen from meeting Arar’s fate in the future.

  Mr. Justice O’Connor’s Reports on the Arar Affair were issued after I left office in February 2006. His factual inquiry has helped all of us better understand that in the aftermath of tragic events such as 9/11, government agencies might very well overreact or ignore their own operational guidelines, to the detriment of Canadians. Justice O’Connor exonerated Arar and implicated our security officials in providing erroneous information about Arar to the Americans. Meanwhile, the courts ruled that the raid on O’Neill had violated her charter rights, including freedom of the press and freedom of expression.

  I am under no illusion as to the dangers that terrorism poses, and I share the view that we must fight terrorists with every legitimate weapon at our disposal. That being said, I also believe that the courts are an important compass, especially when events threaten to make a democratic society lose its bearings with regard to human rights. In the United States, the courts have proved to be the only check on the misconceived policy of detentions at Guantanamo Bay and elsewhere.

  And speaking of Guantanamo, with the benefit of hindsight, given the revelations about events there, I must say that I now regret that my government did not intervene in the case of Omar Khadr to bring him back to face Canadian justice.

  Of course, the adoption of the charter in 1982 brought with it new responsibilities and new power to the courts. The fact that judges are appointed by the prime minister created an appearance of unaccountability, which allowed the enemies of the charter in the Reform, Canadian Alliance, and Conservative parties to focus their attack on “unelected judges.” The truth is that all the prime ministers in the charter era have, without exception, exercised their powers of appointment, particularly with regard to the Supreme Court, with great circumspection, and that court has been peopled with exceptional jurists. Yet the process was not as transparent as it needed to be to give the public complete confidence in their judiciary. As part of my package of democratic parliamentary reforms geared to enhancing the role of Members of Parliament, I wanted to give the parliamentary justice committee the opportunity to review all judicial appointments, including those to the Supreme Court. I did not expect that they would take it on themselves to review every single nomination to the lower courts, but I was confident they would want to hear from Supreme Court nominees.

  At the same time, I was not prepared to go the extra step to give Parliament a power of veto over appointments, fearing the kind of politicization of the process that we have seen in the United States. Ironically, however, the moderate reform I advocated, balancing parliamentary and judicial concerns, fell afoul of parliamentary opinion. Many of the MPs in my own caucus as well as in the NDP and Bloc Québécois opposed the appearance of Supreme Court nominees before the parliamentary committee because they were fearful that the Conservatives, in particular, would embark on a witch hunt and thus bring the judiciary into disrepute. There was also opposition from the chief justice, Beverley McLachlin, and the bar associations. What support my proposals had came mainly from leading legal academics such as Patrick Monahan at Osgoode Hall. But I could hardly force on MPs a reform they rejected in the name of empowering Parliament.

  As it happened, I had two vacancies to fill in my time as prime minister, as a result of the resignations of Justices Louise Arbour and Frank Iacobucci. The justice minister, Irwin Cotler, conducted careful consultations before we nominated Rosalie Abella and Louise Charron, both distinguished jurists from Ontario. For many reasons, it was proud moment.

  Irwin Cotler is one of the world’s leading human rights lawyers. It was Irwin who came up with a proposal to resolve the impasse over how to present the nominations to Parliament. He, rather than the nominees themselves, would appear before the Commons justice committee to explain the appointments and answer questions. We both agreed that this was an interim measure, but one that advanced the cause of greater parliamentary involvement. Stephen Harper struck a different compromise, one that was also reasonable in the circumstances — an ad hoc panel chaired by a non-parliamentarian — when it was his turn to make his first nomination, but clearly we have not yet found a procedure that will fully satisfy the demand of democratic accountability and judicial independence.

  There is one other appointment a prime ministe
r has to make, which may be less important in terms of substance than choosing members of the Supreme Court, but may be even more important in the way we see ourselves as Canadians. Shortly after the 2004 election, I began to consider a replacement for Adrienne Clarkson as Governor General. I did not have anyone in particular in mind for the post, nor did I have any hard and fast criteria. A number of those around me suggested various names. Véronique de Passillé and Hélène Scherrer (who had replaced Francis Fox as my principal secretary after the 2004 election) raised the possibility of Michaëlle Jean. I did not know Madame Jean, but was immediately drawn to the idea. I had seen her on television in both French and English and had been impressed by her charm, intelligence, and poise. I knew very little of her moving personal story: her family had fled the Haitian regime of Papa Doc Duvalier in the 1960s to find refuge here. For a nation of immigrants who had forged a common identity based on the traditions of many peoples from all corners of the earth, I thought she would be a fitting symbol to ourselves and the world. I asked Hélène and Lucienne Robillard to make some informal contact and report back to me. Both were favourably impressed, and so I invited Madame Jean and her husband, Jean-Daniel Lafond, to bring their daughter, Marie-Éden, down to the farm for a visit.

  I had it in mind to chat for about an hour. I wanted to hear about Madame Jean’s background in Haiti, her experiences as a Montrealer and a Quebecer, and, of course, her feelings about the country. I was immediately taken with her and her love of Canada. Before we knew it, four or five hours had passed. I was completely satisfied by the end of the day of her unequivocal commitment to Canada and her belief that Quebec’s future was only within Canada. I also had a chance to speak at length with her husband, and came to understand that his outlook as an accomplished filmmaker was profoundly apolitical. He had come from his birthplace in France to Quebec, in whose culture he had become very much immersed. He had no separatist leanings. After thoroughly exploring the issue with both of them, I was completely satisfied.