Interview with Irwin Cotler

National: You’re not running again in the upcoming federal election. How do you feel about this chapter of your life coming to a close?

Irwin Cotler: At this point I’m one of the oldest members in the House of Commons, if not the eldest, and I sort of felt the time had come, to use that cliché, for the torch to be passed to a younger generation. I will continue to be active on all the issues that I have been engaged in, including defence of political prisoners; I just will be doing it from outside the parliamentary arena rather than within.

N: As Minister of Justice you had to address concerns with anti-terrorism legislation introduced by the Liberals under Bill C-36. Now with Bill C-51, the CBA has raised a number of concerns similar to those raised during your tenure.  How does the debate today compare to what happened in 2004?  

IC: The government introduced Bill C-36, the anti-terrorism legislation, on October 15th, 2001, in the wake of 9/11. I got up October 16th and said I had 10 civil libertarian concerns about the government’s legislation. Anne McLellan, who was the Minister of Justice at the time but who had been a law professor before, said, “Look Irwin, let’s sit down and see if we can work out some sort of shared understanding.” In any case, after sustained talks, we agreed to address seven of those concerns, whereupon she said to me, “I know we didn't address all 10, we addressed seven. I think that’s pretty good.” She said, “Support the legislation. When you’re Minister of Justice, someday maybe you can take care of the other three.”  

Well, that’s exactly what happened. When I was the Minister of Justice, we had sustained hearings. I also met with the president of the Canadian Bar Association, on a regular basis. We had hearings that went over the better part of a year in both the House and the Senate. And the legislation was changed […] from what was originally proposed as a result of those hearings.  In fact, as I [recently reminded] a member of the parliamentary committee at the time, who is the [current] Minister of Justice Peter MacKay, “When you were a member of the parliamentary committee, you recommended to me, when I was the Minister of Justice, there should be an oversight mechanism.” And I said, “You’re right, there should an oversight mechanism.” And we tabled legislation for that oversight mechanism in the fall of 2005. We were then defeated and it was never put in place. It’s even more needed now with the expanded powers with regard to C-51.

N: Do the circumstances today warrant extraordinary measures as they did following 9/11?  

IC: 9/11 was a kind of transformative event, which changed the whole appreciation of the global terrorist threat. There was a clear change in the global terrorist environment. Today we’re seeing some of that as well. The globalization of terrorism represented by ISIS and all the companion and sometimes competing groups has generated a new terrorist threat, the destabilization in the Middle East and the kinds of situations where the terrorist threat has now entered into North Africa, East Africa. And there are the dramatic changes in transportation and communications, technology and the like. With 9/11 we passed a strategic watershed.  I think we’re witnessing another kind of strategic watershed now for some of the reasons I mentioned, which do require enhanced powers and information-sharing by government agencies. But all this must be commensurate with enhanced oversight and enhanced ac­countability. You can’t have one without the other.  

N: The other important piece of legislation your government presided over was lawful access. Do you have any lingering concerns on that front, particularly in the wake of the Snowden revelations?

IC: Oh, yes. I have concerns. I had concerns then. I have concerns now. I stated before the committee hearings at the time that I regarded the right to privacy — as Justice Brandeis put it, the most comprehensive of rights and the right most valued by civilized men, civilized men and women today. The Privacy Commissioner Daniel Therrien also raised privacy concerns.  And what is of concern is that Mr. Therrien was not even invited to be a witness before the Public Safety Committee.  

N: How do you react to renewed charges from commentators against the Supreme Court of judicial activism?

IC: Well, I think that we sometimes ignore that we’re no longer just in a parliamentary democracy, with the courts having an interpretive function with regard to the vicissitudes of legal federalism. We’ve had, as Chief Justice Antonio Lamer said on the occasion of the 10th anniversary of the Charter — some may have said his rhetoric was somewhat enthusiastic at times — a legal revolution in this country comparable to the revolution of [Louis] Pasteur in science. We’ve moved from the sovereignty of Parliament to the sovereignty of the Constitution, and invested in the courts the authority to declare legislation that violates the Charter of Rights and Freedoms unconstitutional. That was not there before. That is something that I believe, regrettably, the present government [has never] accepted.  

N: Do you think the Canadian public has accepted that? 

IC: I think the Canadian public has. All of the surveys have shown that if there’s one iconic instrument in this country it’s the Charter of Rights and Freedoms. And I remember when I was minister and I would go around and I’d ask the public in this country, whether it be women or minorities, “are you better off now under the Charter than you were before,” the answer would invariably be yes. In that sense the Charter has had a transformative impact not only on our laws, but on our lives. 

This interview was edited and condensed for publication.