BY JOHN BARBER
Sweeping anti-terror legislation passed by Canada’s Conservative government earlier this year will be challenged by a lawsuit that argues that the law breaches the country’s constitution.
The Canadian Civil Liberties Association and the Canadian Journalists for Free Expression are arguing that Bill C-51, which became law last month, includes numerous violations of the country’s Charter of Rights and Freedoms, a bill of rights embedded in the Canadian constitution.
Supported by prominent legal scholars and a nascent crowd-funding campaign, the suit is the first and potentially most powerful of the so-called Charter challenges the law is expected to face.
“This law is so dangerous, so incredibly over-broad and such a clear violation of that Charter, I don’t think there is any way a judge will be able to turn down our challenge,” said Tom Henheffer, CJFE executive director.
For the journalists, the new law’s most controversial clause is one that criminalizes the promotion of “terrorism offences in general”, potentially subjecting reporters to prosecution for covering or quoting alleged terrorists and their activities.
“If you publish any information coming from a terrorist group, that is illegal under this law,” Henheffer said. “That is astoundingly troubling.”
CCLA lawyer Anil Kapooor said that the provision is a direct assault on free speech as protected by the Charter, and as such has ramifications for all Canadians. “It narrows the scope of permissible expression,” he said. “We believe that the current constitutional standard of freedom of expression should be maintained across all our laws.”
Another major focus of the challenge is a provision that allows agents of the Canadian security and intelligence service (CSIS) to apply directly to judges for warrants to permit actions against suspected terrorists that they know to be unconstitutional.
“A government agent can go to the courts and request that it pre-authorize a Charter violation, which is the exact opposite of what courts are supposed to do,” Henheffer said. “They are supposed to protect the Charter, not allow its violation.”
“And the whole process is completely secretive,” he added. “The person whose rights are being violated never knows why, their lawyers can’t be present, there’s no reporters allowed, and the records are sealed. It’s completely off the record, which is a massive problem.”
The secrecy is such that it is impossible to say whether the Conservative government is already taking advantage of the sweeping new powers it created, according to law professor Kent Roach of the University of Toronto, a leading critic of Bill C-51.
In that, he said, the Canadian law is markedly different from the new USA Freedom Act, which includes provisions to make court decisions on spy warrants as public as possible.
“It isn’t so much that Bill C-51 precluded this,” he said. “It is simply silent on it.”
The advocates hope their legal campaign will keep outrage against the new law on the boil as Canada heads into a fall election, and help persuade a new government to repeal it. Some attribute the recent rise of the leftwing New Democratic party under leader Tom Mulcair to its vow to do that – and the coincidental fall in the polls of the Liberal leader, Justin Trudeau, to his prevarication.
Concerned not to appear soft on terrorism, the Liberals supported the Conservative bill in the House of Commons while vowing to trim its excesses once in power.
For his part, Roach thinks that the Liberal approach is probably more realistic. “Even a new government may find it difficult to simply repeal C-51, given that it is actually operative now and the security agencies feel its powers are quite necessary,” he said.
“I wouldn’t be surprised to see this litigation go on for years,” Roach said.
To sustain their challenge for a potentially long haul, the advocates are appealing to the public to help finance their campaign through a GoFundMe site.