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.

Green Party and civil liberties groups criticize Harper's anti-terror bill

While leaders of the two main Canadian opposition parties the New Democratic Party's Thomas Mulcair, and Liberal, Justin Trudeau, have been muted in criticism of Harper's new anti-terrorism legislation, Green Party leader Elizabeth May is quite critical.

Both Trudeau and Mulcair have asked for more oversight of the Canadian Security Intelligence Service (CSIS), given that they are given considerable more powers under the new legislation than they previously had. However, Liberal leader, Justin Trudeau, said that his party would vote for the legislation even if the Conservative government of Stephen Harper did not accept changes suggested by his party. The NDP is building a case against the bill and Mulcair, the leader, is likely to announce his opposition to the bill when parliament meets later in the month. However, while the NDP caucus build its case, Mulcair asks questions about oversight and seems wary of being targeted as soft on terrorism.


 A major Canadian newspaper the Globe and Mail published a quite critical editorial on the Bill-C51 the new anti-terror legislation. May said on her website: “I completely agree with the editorial in the Globe and Mail today that Parliament must reject this bill. In the House of Commons today, I urged all MPs to read the editorial and not allow the Conservatives to turn CSIS into a secret police force.The words found under the definition of ‘activities,’ which affect the ‘security of Canadians,’ are so broad that the definition can apply to almost any activity, including nonviolent civil disobedience. This bill could now treat peaceful protesters as potential terrorists. Is Stephen Harper using the imagined fear of widespread security threats to score political points before the next election?”

The Globe and Mail article notes, as do commentators on May's site, that the Harper legislation can be used against many other groups than terrorists associated with Islamic radicalism. Harper has long been suggesting that radical environmentalists out to block projects favored by the Harper government and the oil industry are "public enemies", as far back as 2012. In 2014 an RCMP report joined the chorus suggesting that radical environmentalists were a larger threat to Canadian energy development than religious extremism: “Environmental ideologically motivated individuals including some who are aligned with a radical, criminal extremist ideology pose a clear and present criminal threat to Canada’s energy sector. The Canadian law enforcement and security intelligence community have noted a growing radicalized faction of environmentalists who advocate the use of criminal activity to promote the protection of the natural environment.” No doubt aboriginal activists may also expect to come under increased scrutiny by CSIS under this new legislation.

 Even US whistleblower, Edward Snowden, warned Toronto high school students about the new legislation. Along with journalist Glenn Greenwald, Snowden delivered a keynote speech at Upper Canada College's annual World Affairs Conference. Snowden spoke through a Google Hangout connection from somewhere in Russia. Snowden claimed that the new bill "fundamentally changes the balance of power between the citizen and the state." Responding to some remarks about his violating his commitments not to divulge secrets and the view of some that he is a traitor, Snowden said: “Regardless of how bad a guy I am, ultimately the revelation of warrantless wiretapping, mass surveillance on a global scale is something that we the people deserve to know. And if the government will not tell us, it falls to journalists ... to find and publish the information that informs our voting habits.”Snowden was critical of the mass media who tried to change the narrative as to whether he was a hero or traitor instead of focusing on the substance of what he had revealed.

 The Globe and Mail editorial notes that CSIS will now have powers to actively stop any activity that "undermines the sovereignty, security or territorial integrity of Canada. Activities listed include 'interference with critical infrastucture" or "interference with the capability of the Government in relation to..the economic or financial stability of Canada." The Globe points out that an environmentalist who blew up part of a pipeline would be covered under the law as being a terrorist. A Quebec separatist party could be regarded as terrorist since it would "undermine the sovereignty and territorial integrity of Canada." Aboriginal activists who block a train line could be terrorists. No doubt union activity that interfered with production could become terrorist action.

 Sukanya Pillay, executive director of the Canadian Civil Liberties Assocaition (CCLA) claimed that no explanation had been given as to why our existing laws were not adequate to deal with terrorism. She complained that "advocacy of terrorism" was undefined and that criminalizing such an undefined action could have a chilling effect on what academics and journalists might feel that they could say or write. That probably is the whole idea of leaving the phrase undefined. The British Columbia Civil Liberties Association said that the bill would produce "an unprecedented expansion of powers that will harm innocent Canadians and not increase public safety." Unfortunately, the many forceful critiques of Bill-C51 are unlikely to cause the Harper government to change the legislation substantially.