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Civil Liberties and Media Advocates Have Filed A Legal Challenge to Canada’s Anti-Terrorism Law

The organizations are asking that the court declare five sections of the bill as overly broad, vague, and inherently incompatible with Canada’s Charter of Rights and Freedoms.

by Justin Ling
Jul 21 2015, 11:50am

Photo via Flickr user Jonathan MacIntosh

Canada's new anti-terrorism law was adopted "in violation of the Canadian constitution," according to two organizations seeking to have most of the legislation struck down.

The Canadian Civil Liberties Association (CCLA) and Canadian Journalists for Free Expression (CJFE) filed a legal application in an Ontario Superior Court this morning, signalling the opening shot in what could be a long legal battle over one of Canada's most wide-reaching pieces of security legislation ever introduced.

The organizations are asking that the court declare five sections of the bill as overly broad, vague, and inherently incompatible with Canada's Charter of Rights and Freedoms. They're asking the court declare the teeth of the law to be null and void.

Constitutional lawyers warned the Conservative government that the legislation was unconstitutional before it became law this year, but were ultimately ignored.  

"We only bring a constitutional challenge for the most serious cases, and this is one of those," Sukanya Pillay, executive director and general counsel at CCLA, told VICE News. "We felt that this was getting straight to the marrow of the issue,"

The Anti-Terrorism Act 2015, also known as Bill C-51, was passed into law last month. The legislation was a response to a pair of homegrown terrorism attacks that rattled the country, and spurred the government of Prime Minister Stephen Harper to rewrite most of the legal authorities governing Canada's main spy agencies. What resulted was a bill that was decried across the political spectrum, and which has become quickly unpopular nation-wide.

Critics warn that it stands to offer a dangerous amount of power to Canada's main spy agency, the Canadian Security Intelligence Service (CSIS); its federal police service, the Royal Canadian Mounted Police (RCMP); and its signals intelligence agency, the Communication Security Establishment (CSE).

"It gives the government a tool to abuse," says Tom Henheffer, executive director at CJFE, told Daily VICE. "There's no accountability associated with this. It's not a question of whether these laws will be abused, it's a question of when and how much."

The legislation makes dozens of changes, but the two organizations are specifically attacking five parts of the law: changes to make it easier to put individuals on the no-fly list, a loosening of the rules on how government lawyers can deport alleged security risks, information-sharing powers that empower bureaucrats to share Canadians' data with spy agencies, criminal prohibitions on advocating terrorism offences "in general," and new abilities for CSIS to 'disrupt' threats.

The court application argues that many of the powers included in the law are either inherently unconstitutional, could lead to an infringement of Canadians' civil liberties, or are so vague and overbroad that they could allow for various unintended consequences.

Normally, the courts require that the law be demonstrably unconstitutional, as opposed to just hypothetically so. This case, however, might be particularly unique.

For certain powers, like adding individuals to the no-fly list or deporting security risks, government lawyers must go before a secret court, where not even the accused's lawyers are present. For others, like information-sharing, agencies need not apply to a court at all.

"Many of the powers that are in this new legislation would be wielded in secret," says Pillay. "The people who are affected might never know that these powers, that we argue are unconstitutional, were used against them, but they might have to deal with the consequences. And these consequences may be very serious."

The most controversial part of the bill, which allows CSIS to 'disrupt' threats to the security of Canada, doesn't require a judge's approval, unless "those measures will contravene a right or freedom guaranteed by the Canadian Charter of Rights and Freedom." In which case, a court can give a secret order authorizing the action, whatever it may be. The only exemptions within C-51 read that CSIS may not intentionally injure or murder someone, pervert the course of justice, or commit rape.

Steven Blaney, Canada's Minister of Public Safety, told VICE that the whole bill is constitutional. His arguments offer some insight into how the Conservatives will defend the law in court.

"Every time that they would conduct an activity that would infringe on the rights of Canadians, they would have to seek a warrant, so this makes the whole operation legal. This is the way we currently do it for police officers," Blaney said. "There's nothing new under the sun. We are fully designing the law so that they will operate under the law."

The organizations expect to hear a response from the provincial court in the coming weeks, but are expecting the court battle to drag on over the coming months.

The question, in the end, may be moot on account of an upcoming federal election, on October 19, in which C-51 is expected to feature prominently for voters.

The left-wing New Democratic Party, currently leading in the polls, has promised to scrap the legislation while the third-place Liberal Party has promised to take out the most controversial pieces of the bill. Only the governing Conservatives have defended the law.

Follow Justin Ling on Twitter: @justin_ling