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People protest against Bill C-51, the government's anti-terror legislation, in Ottawa. (Justin Tang/The Canadian Press)
People protest against Bill C-51, the government's anti-terror legislation, in Ottawa. (Justin Tang/The Canadian Press)

Two rights groups launch Charter challenge of Bill C-51 Add to ...

Canada’s new terrorism law is being challenged in court by a journalists’ group and a civil rights organization that call it an attack on constitutional freedoms and an “extraordinary inversion” of the role of judges.

The Anti-Terrorism Act, which took effect last month, makes it a crime to promote or advocate terrorism. It also gives Canada’s civilian spy agency, the Canadian Security Intelligence Service, new powers to disrupt attacks. Until now, CSIS could only collect and analyze information. It will now be able to ask a judge in a secret hearing for a warrant to violate constitutional rights.

The Conservative government passed the law, known as Bill C-51, after two deadly attacks in Canada last October, including one in which a gunman was killed in a shootout with guards on Parliament Hill.

The law is expected to be a factor in the upcoming election campaign, with the Conservatives expected to argue that they alone can be trusted to protect Canadians. The New Democrats opposed the law and the Liberals supported it but promised to change it if they become the government.

The terrorism-promotion provisions, and the new powers for CSIS, are among several parts of the law called unconstitutional in a wide-ranging challenge by Canadian Journalists for Free Expression and the Canadian Civil Liberties Association.

“The Charter of Rights is the supreme law of the land, and nobody, not the judge, not the prime minister, not anybody, can authorize the violation of the Charter of Rights,” Toronto lawyer Paul Cavalluzzo, counsel to the two groups, said in an interview. “The only way the Charter can be disregarded is with the notwithstanding clause,” which lets a government override a court ruling that a law is unconstitutional.

“I’m unaware of any law in any liberal democracy that attempts to authorize a judge to permit an agency of government to violate the constitution,” Mr. Cavalluzzo said.

The groups’ court filing called the law an inversion of the judiciary’s role as a protector of constitutional rights, and a violation of judges’ independence from government. The groups are seeking a declaration from the Ontario Superior Court of Justice that the law threatens the right to liberty, free speech, privacy, freedom from unreasonable search and seizure and the right to move between provinces, and must be struck down. Mr. Cavalluzzo said he does not expect the court to hear the challenge before the October election.

Mr. Cavalluzzo was counsel to a 21/2-year inquiry begun in 2004 into Canada’s role in the U.S. deportation of Maher Arar to Syria, where he was tortured.

Jeremy Laurin, a spokesman for Public Safety Minister Steven Blaney, said in an e-mail that the terrorism law contains “reasonable measures similar to those used by our close allies to protect their own citizens. Canada will do no less. It is clear that the threat posed by the international jihadist movement is real. That is why our Government passed the Anti-terrorism Act, 2015, which enhances the ability of our police officers to detain suspected terrorists before they can harm Canadians. We will continue to ensure that our police forces have the tools they need to protect Canadians against this evolving threat of terrorism‎.”

Apart from banning terrorism promotion and expanding CSIS’s powers, the law would also make it easier to put individuals on a “no-fly list,” create an expanded peace-bond system to monitor suspected threats in the community and make it easier for government agencies to share with each other information on individuals relevant to national security.

The two groups filing the challenge said each provision denies due process to anyone whose rights are put at risk. (For example, the government does not need to tell people why they are on the no-fly list.) They said Bill C-51’s ban on promotion or advocacy of “terrorism in general,” which is not defined, will create a chill among journalists and the public because it is unclear what can be published. The offence is punishable by up to five years in prison.

“C-51 is the biggest threat to constitutional rights in Canada today,” Tom Henheffer, the CJFE’s executive director, said in an interview. “It will lead to a massive chill on free expression.”

Mr. Cavalluzzo added that the government “has politicized this issue, and there’s nothing worse than politicizing this very delicate balance between protecting national security and preserving our civil liberties.”

Two constitutional specialists told The Globe and Mail they expect the challenge to succeed. “While judges tend to be deferential to Parliament’s view of what is necessary to protect national security, the novel and alarming incursions on civil liberties authorized by Bill C-51 will trouble them and give this constitutional challenge a good chance of success,” Osgoode Hall law professor Bruce Ryder said.

Kathleen Mahoney, a law professor at the University of Calgary, said she believes most sections of the law are “dead in the water.”

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