Harper's anti-terror legislation facing legal challenge in Ontario court

The Canadian Civil Liberties Association(CCLA) and the Canadian Journalists for Free Expression(CJFE) are challenging the constitutionality of Bill C-51, the Conservative's new anti-terror legislation in Ontario's Superior Court of Justice.

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The CCLA is the leading group in Canada working for defence of civil liberties and constitutional rights. The CCLA works on law reform, constitutional litigation, and presenting briefs on civil liberty issues before public officials and elected bodies. It receives no government support but is funded by members and the general public. The group has taken on unpopular cases on principle including the defense of the neo-Nazi Ernst Zundel, and Jim Keegstra, the anti-Semite against censorship. CJFE is an NGO supported by Canadian journalists. The purpose of the group is to defend the rights of journalists and promote press freedom around the globe. It also promotes freedom of expression in general for everyone.

The Conservative anti-terror legislation , Bill C-51, which just recently came into effect, allows the Canadian Security Intelligence Services(CSIS) much greater power to thwart suspected terrorist plots than its traditional role of collecting information. The CCLA and the CJFE claim key elements of the legislation conflict with the Canadian Charter of Rights and Freedoms and are thus unconstitutional, since they do this "in a manner that is not justified in a free and democratic society."

Public Safety Minister Steven Blaney disagreed with this assessment, saying:"This bill is crafted with very reasonable measures, I leave it to the court to make their own view and analysis of the bill. We're pretty confident that this bill is there for the right reason, to protect Canadians, and that it will stand any challenge that it could face."

In contrast, Tom Henheffer, executive director of the CJFE claims:“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."

Should a proposed process to disrupt a possible terrorist attack violate the Charter of Rights or break other Canadian laws, the CSIS would require a court warrant. The court challenge notes that this turns the role of the judiciary upside down. Instead of protecting rights and encouraging obedience to the law, the judiciary are to authorize violating people's rights and breaking of the law.

The legal challenge also objects to authorities being given the power to add someone to the no-fly list "on mere suspicion" that the person might commit an act that threatens an airplane. The court filing claims: "Once placed on the no-fly list, it is very difficult for the individual to remove their name from the list.There is no due process, no fundamental justice, and no natural justice under the scheme."

The application to the court also criticizes the vagueness of the language used in the law. The phrase "undermines the security of Canada" is unclear. Finally, the new crime of promoting terrorist offences is also vague but will also have a very chilling effect on free expression. Henheffer noted: "If you publish any information coming from a terrorist group, that is illegal under this law. 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. We believe that the current constitutional standard of freedom of expression should be maintained across all our laws.” Reporters might refrain from interviewing suspected terrorists or making critical comments about actions of security forces at events that might be classified as terrorist. Under the new law reporters in these situations could be charged with the crime of promoting terrorism if authorities judged that their reports did so. This would have a very chilling effect on reporting of such events.