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Assessing the Bill C-51 challenge

Lawyers see some prospects for success in case launched last week
|Written By Tali Folkins

The strongest element of a constitutional challenge launched last week against Bill C-51 is its argument against the Canadian Security Intelligence Service’s new special warrant system, says the chairman of the Ontario Bar Association’s constitutional law section.

‘I think the bill will create a chilling effect on radical, aggressive speech, but I think the judicial answer will be to read the provisions narrowly based on the particular facts of any charge,’ says Ranjan Agarwal. Photo: Robin Kuniski

By requiring CSIS to get the approval of a court whenever its proposed activities violate the Charter of Rights and Freedoms or Canadian law, the bill “proposes a radically new way of dealing with judicial authorization,” says Ranjan Agarwal.

The Supreme Court of Canada, where Agarwal believes the case filed last week will probably end up, is likely to oppose that amendment as it seems bound to burden the courts with Charter-limiting responsibilities traditionally held by Parliament, he suggests.

“Our constitutional system allows Parliament to debate and decide to limit Charter rights, with the courts acting as umpire in judging whether those limits are reasonable,” he says. “Here, the courts are being asked to pitch and bat rather than call balls and strikes. I think the McLachlin court, which has been very protective of its role and legitimacy in Canada’s constitutional system, will balk at these new powers.”

The challenge, brought before the Ontario Superior Court of Justice by the Canadian Civil Liberties Association and Canadian Journalists for Free Expression, specifically addresses five components of Bill C-51: three sets of amendments to existing laws — the Canadian Security Intelligence Service Act, the Immigration and Refugee Protection Act, and the Criminal Code — and two new pieces of legislation — the Secure Air Travel Act and the Security of Canada Information Sharing Act.

The notice of application filed by the two organizations argues that the component of Bill C-51 that amends the CSIS Act “constitutes an extraordinary inversion of the traditional role of the judiciary and the principles of fundamental justice by asking the judiciary, and not Parliament, to authorize limits on Charter rights as opposed to protecting such rights and preventing their violation.”

Although the provisions of Bill C-51 that deal with free speech seem to have attracted the most attention, challenging them will likely prove more difficult given previous rulings in similar matters, Agarwal suggests.

“The Supreme Court of Canada did not have much time for the constitutional challenge on free speech grounds to the Anti-terrorism Act in [R. v.] Khawaja. I think a constitutional challenge here is difficult as the object of the bill seems to be to capture threats of violence, which are not constitutionally protected.”

In 2012, the top court dismissed appeals by Mohammad Momin Khawaja and two other men accused of terrorist activity who had argued that sections of the Criminal Code defining terrorist activity were too broad and threatened freedom of expression.

The notice of application contends that Bill C-51’s amendments to the Criminal Code will “have a chilling effect on freedom of expression and association, even if no prosecution is ever brought. Persons will prefer to remain silent rather than risk the perils of prosecution, especially since the offence can reach even those who do not have a terrorist purpose and there is no statutory defence.”

Part 3 of the new Ant-terrorism Act includes an amendment to the Criminal Code that states that anyone is guilty of an offence who, “by communicating statements, knowingly advocates or promotes the commission of terrorism offences in general . . . while knowing that any of those offences will be committed or being reckless as to whether any of those offences may be committed.” The phrase “terrorism offences in general,” the notice of application states, is “unconstitutionally vague and imprecise.

. . . As such, the prohibited speech and conduct are neither fixed nor knowable by citizens in advance.”

Judges, however, may not accept that argument, says Agarwal. “I think the bill will create a chilling effect on radical, aggressive speech but I think the judicial answer will be to read the provisions narrowly based on the particular facts of any charge,” he says.

Elliott Willschick, a criminal lawyer with a background in constitutional law, disagrees. That section of the legislation, he says, could potentially criminalize statements such as those made by some people after the Sept. 11, 2001, terrorist attacks that terrorism is a tool of the poor because they don’t have organized armies to carry out what a state could undertake. Courts will find the wording “far too vague,” he says.

“I think that’s where the courts are highly likely to overturn that part of the legislation or ask the government to make it more specific,” says Willschick.

Faisal Bhabha, a professor of constitutional law at Osgoode Hall Law School, says one strong point made in the challenge is its argument against amendments to the Immigration and Refugee Protection Act. Part 5 of the new Anti-terrorism Act amends the immigration law to allow the minister of public safety and emergency preparedness to deny non-Canadian citizens detained on immigration grounds access to information about the government’s case against them.

“The Supreme Court of Canada has already ruled and has already made it pretty clear that this sort of system does not pass constitutional muster and ordered the government to go redesign the system. And now through this law, they’ve reintroduced essentially the same system that was previously declared to be unconstitutional. So there’s a no-brainer,” says Bhabha.

“That doesn’t mean it’s going to be an easy case,” he adds.

“Courts tend to be reluctant to strike down legislation. But at the same time, we have a powerful Charter of Rights and Freedoms in this country. . . . My prediction always is that courts will do what they can to find some sort of balance.” Especially in politically controversial cases, the current Supreme Court has “done everything it can to split the difference or try to reach some sort of accommodation between government interests and concerns around potential Charter breaches,” according to Bhabha.

When it comes to Supreme Court of Canada findings that legislation is unconstitutional, “what they’ve typically done is throw it back to the government as a remedy to fix it,” he says.

While a long and drawn-out case is certainly possible, predictions about it are difficult since the law’s fate hinges to a great extent on the results of the upcoming fall election, Bhabha notes.

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