Bill C-51 is barely a month old and is already facing its first Charter challenge.
The Canadian Civil Liberties Association and the organization Canadian Journalists for Free Expression* filed an application in Ontario’s Superior Court today—July 21—to challenge the constitutionality of the legislation, officially called the Antiterrorism Act of 2015.
You can read it here.
“It’s not hyperbolic to call this the secret police bill,” says Tom Henheffer, who is one of the named plaintiffs and the CJFE’s executive director. “We’re filing this case basically as soon as we could.”
“It’s an omnibus bill that will massively change security and rights in Canada. It will severely and unjustifiably restrict our Charter rights, basically throwing due process, respect for free expression, freedom of mobility and a number of other rights right out the window.”
Or, does it upgrade Canada’s legal artifices for dealing with the everevolving terror threat? The court will, hopefully, decide.
Although Henheffer says the whole act is problematic and any of its articles could be challenged, the two organization’s legal teams are hanging their case on five points:
1. That CSIS’s new warrant process, which “occurs in camera, on an ex parte basis, with no adversarial challenge, with no prospect of appeal, and with no requirement that the actions taken by CSIS be disclosed after the passage of time to the target,” violates section 7 of the Charter and the preamble of the constitution.
2. That amendments to the Immigration and Refugee Protection Act permitting the Minister to withhold information from the advocate appointed to protect the interests of individuals undergoing security certificate proceedings violate section 7 of the Charter.
3. That changes to the process by which a person gets added to the nofly list violates section 6 and 7 of the Charter.
4. That, by adding the crime “terrorism offences in general” to the Criminal Code, the law “does not provide fair notice to citizens of the consequence of their speech or conduct,” criminalizes speech, and violates sections 2 and 7 of the Charter.
5. And finally, that new information-sharing provisions in the Act enabling any government entity to share information with any party for any reason, as long as it pertains to the security of Canada, violates section 2, 7 and 8 of the Charter.
The last two points are the ones that most impact journalism and speech rights, Henheffer says.
“It’s one thing to criminalize terrorist propaganda. That has its own problems. But it’s a whole other thing to criminalize people reporting on terrorism in the public interest,” he says. “The act could easily be used to prosecute journalists… It’s ripe for abuse and for the targetting of political enemies of the government.”
Henheffer says this is a “slam dunk” of a Charter challenge, but winning the case isn’t the best thing that could happen.
“In the best case scenario, it will never actually have to go to trial because there will be an election and the next government will repeal the law.”
*DISCLOSURE: Canadian Journalists for Free Expression is a frequent sponsor of CANADALAND and host Jesse Brown volunteers with the organization.