Making Canada Safe for Torture

Notice of Algernon Sidney's high treason conviction

More than once The Spectacled Avenger has had occasion to sharply rebuke Canada’s Prime Minister, Stephen Harper. It was never my intent for this to become a partisan political blog, and I promise it won’t. For one thing, I will limit myself to venting my rage about Mr. Harper only when he occasionally does something particularly egregious. Unfortunately, his record in this regard means that I will be venting on a semi-regular basis. Also, since I don’t have an allegiance to any political party, technically speaking, my rants are non-partisan.

In any case, readers from Canada and abroad may find somewhat of interest in my observations on the progress of Mr. Harper’s reign, because it offers one of those rare historical opportunities to observe, step by painful step, how a true despot, in the oldest traditions of the term, assumes total control of a society that was previously social democratic in political orientation. In that spirit, I offer the latest move by the government of Canada — or should I say, the Harper Government™ — in that direction.

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Mr. Harper’s Conservative Party will be holding its convention beginning June 9, at which they will discuss and vote on party policies. One of the items up for discussion is an overhaul of Canada’s treason laws. As usual, the Conservatives have identified yet another group that they want to “get tough” on. And in this instance they have chosen a group whom only the foolhardy would attempt to defend.

Now, although followers of Mr. Harper tend to be among the least inquisitive of mortals, the rest of us might wonder why treason law reform is necessary. Does Canada’s Criminal Code contain a dangerous legal gap surrounding treason? No. Has there been a recent rise in treasonous activities for which the existing laws have proven inadequate? No. Have the Canadian people been clamoring for treason law reform? Well, again, no.

Then what, pray, is the motivation behind this new initiative? Unfortunately, as with so many of this government’s activities, in the absence of plausible reasons, we are left to speculate, and too often these speculations sound vaguely like conspiracy theories. Unfortunately, as is again so often the case with this government, even when they bother to offer reasons, conspiracy theories tend to sound much more plausible.

Treason Law in Canada

We should first take a quick look at the treason law that is already on the books, before considering the effects of proposed changes to it. Section 46 of the Criminal Code distinguishes between treason and high treason. Here is the relevant text:

"High treason
(1) Every one commits high treason who, in Canada,
   (a) kills or attempts to kill Her Majesty, or does her any bodily harm tending to death or destruction, maims or wounds her, or imprisons or restrains her;
   (b) levies war against Canada or does any act preparatory thereto; or
   (c) assists an enemy at war with Canada, or any armed forces against whom Canadian Forces are engaged in hostilities, whether or not a state of war exists between Canada and the country whose forces they are.

Treason
(2) Every one commits treason who, in Canada,
   (a) uses force or violence for the purpose of overthrowing the government of Canada or a province;
   (b) without lawful authority, communicates or makes available to an agent of a state other than Canada, military or scientific information or any sketch, plan, model, article, note or document of a military or scientific character that he knows or ought to know may be used by that state for a purpose prejudicial to the safety or defence of Canada;
   (c) conspires with any person to commit high treason or to do anything mentioned in paragraph (a);
   (d) forms an intention to do anything that is high treason or that is mentioned in paragraph (a) and manifests that intention by an overt act; or
   (e) conspires with any person to do anything mentioned in paragraph (b) or forms an intention to do anything mentioned in paragraph (b) and manifests that intention by an overt act."

As for penalties, section 47 says that high treason will get you a minimum sentence of life imprisonment. Mere treason under 46(2)(a),(c) or (d) gets you maximum life imprisonment. Treason under 46(2)(b) or (e) gets you maximum life imprisonment if committed in wartime, or maximum 14 years if committed in peacetime. The Code has other provisions that needn’t detain us here (e.g. the alleged treason must be witnessed by more than one person, and the suspect must be brought to trial within three years of committing the alleged act).

Getting Tough on Traitors

Although it’s rather lacking in fine detail, the Conservatives are proposing to try treasonous activity under 46(2)(a) as “high” treason under 46(1), thereby making this class of offenders subject to minimum life imprisonment, thereby expanding the class of offenders deemed “high” traitors. Put another way, as it currently stands, anyone caught levying war against Canada — by, for example raising troops and supplying them with arms — is guilty of high treason, while anyone who uses force against Canada in said war is guilty of treason only. The proposed change would collapse the latter category into the former: the rank and file in such a war would also be guilty of high treason, along with their leaders and organizers.

This in itself would probably not be very worrying from a human rights standpoint. But it doesn’t stop there. High treason would be expanded to include those fighting against Canada or its allies. It is not entirely clear what will constitute “ally” for their purposes (but you can bet this would include Israel). Canada is, and has been historically, allied to some pretty dubious regimes (again, Israel comes to mind). Anyone who makes a moral stand and decides to take up armed struggle against one of these regimes could be branded a high traitor under Canadian law. So you’d better be careful before you go off to fight in something like a modern-day Spanish Civil War. Also, if I get in trouble with the police at a G8 summit meeting in another country, by say throwing a rock or resisting arrest, will I have left myself open to a charge of high treason under Canadian law? For that matter, what happens if I do it here in Canada?

This change would effectively narrow my scope for moral action in the world. It seems designed to curb dissent. It allows the Government of Canada to decide who my international friends will be, where and how I can take a moral stand, while punishing me to the utmost possible extent of the law if I don’t unquestioningly adhere to the government’s alliances, even where such alliances are likely to be based on the government’s amoral (or immoral) judgments of political expediency.

Making Canada Safe for Torture

But even that is not the worst of the proposed changes. Having greatly extended the ambit of the high treason offense, the Conservatives are also proposing to strip high treason offenders of their Canadian citizenship. Not being a constitutional scholar myself, I’m not even sure that this is constitutionally possible: Can a Canadian citizen be stripped of her citizenship? I know that naturalized Canadians can be, if for example they have obtained citizenship under false pretenses. But can a native-born Canadian citizen lose her citizenship? I confess ignorance here, so if any readers can enlighten me, please feel free to do so. It is an especially worrying question for someone in my situation. I am a native-born Canadian citizen. I do not hold any other citizenship, nor ever have. This means that if I am ever convicted of the new and expanded crime of high treason and have my citizenship taken away as a result, I would be rendered stateless.

Bad things tend to happen to stateless people. They fall into legal black holes — and sometimes quite literal ones too. A Bush administration official once candidly described the detention camp at Guantanamo Bay as “the legal equivalent of outer space”. He meant that prisoners at Guantanamo were beyond the reach of the protections afforded in the US Constitution, beyond the reach of habeas corpus, beyond the reach even of international law. Omar Khadr is one of the unfortunates locked away there. Khadr was a fifteen-year-old Canadian citizen when he was captured by US troops fighting with the Taliban in Afghanistan. Despite repeated rulings by the Canadian Supreme Court requiring the Canadian government to request his extradition back to Canada, the government has stubbornly refused to do so, which is a good indicator of where this government stands on the issue of human rights and the rule of law.

As a matter of fact, the changes to the treason laws contemplated by the government seem to have been designed with Khadr specifically in mind. He was caught fighting not against Canada, but against one of its allies. Being a minor, he should not have been subject to the usual rigors of the law. Being a Canadian citizen, Canadian officials had a duty to protect him (although they instead chose to shirk this duty). Under the proposed changes, once convicted by a Canadian court, he could be stripped of his citizenship and made to simply disappear, to have God-knows-what done to him. The Canadian government might be enabled to set up its own versions of Guantanamo.

Here is where the conspiracy theory comes in. Suppose someone is convicted of high treason under current laws. As it stands, he will spend the rest of his life in jail. As far as sentencing goes, that is the highest penalty one can receive for any crime under Canadian law (we do not have the death penalty). Such an offender can never again pose a threat to Canada. So what would be gained by adding the further penalty of stripping him of his citizenship? There seems to be only one plausible answer: the aim is to remove obstacles that currently stand in the way of the prisoner’s being abused and tortured. The purpose of the measure is to create a deep dark memory hole down which people who aggressively express dissent against the government, its policies, or its putative “allies” can be made to disappear.

If you think I’m being paranoid, then please feel free to offer me a better explanation for why the Conservatives would introduce such a measure. In the absence of such an explanation, all I have to go on, besides logic, is this government’s past conduct in relation to human rights. To refresh your memory, such conduct includes: refusing to repatriate one of its own citizens being held and probably tortured in a foreign concentration camp (Omar Khadr), refusing to follow up on the “extraordinary rendition” and torture of one of its citizens (Maher Arar), refusing to release documents showing Canadian complicity with prisoner torture in Afghanistan, and the mass arrest of over a thousand innocent citizens — many of them savagely beaten by police — at last year’s G20 summit in Toronto. Past actions seem to warrant present paranoia.

Manus haec inimica tyrannis.