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The Hill: Bill C-51 challenge has silver linings for Conservative election prospects

The Conservative government is heading back to court, where it usually loses, as it faces yet another constitutional challenge over one of its laws.

Earlier this year, thousands of people marched in the streets of 14 Canadian cities against a new law that limits the right to free speech and privacy amid growing fears of terrorism.

Last week, two organizations launched a challenge of Bill C-51 under the Charter of Rights and Freedoms. The two groups, the Canadian Civil Liberties Association and Canadian Journalists for Free Expression, have filed a case in the Ontario Superior Court challenging five sections of the new law.

They say they’re willing to take their case all the way to the Supreme Court of Canada if they have to. And well they might.

One of the lawyers representing the two groups, Paul Cavalluzzo, says “terrorism is a problem” but he argues that doesn’t mean the fight against terrorism should put the rights of ordinary people who aren’t terrorists at risk.

“It is important to challenge a government that has overstepped its authority,” says Cavalluzzo.

The groups say in their court application that the law gives the Canadian Security Intelligence Service powers that are “too broad, with wording which is too vague, and oversteps the Charter of Rights.”

It’s particularly harsh in its application of a national no-fly list and on refugees seeking asylum in Canada. The journalists say the wording of the law is so vague that those who publish any statements or positions taken by terrorists could go to jail for five years.

Prime Minister Stephen Harper has repeatedly told Parliament the new law is necessary should Canada face more terrorist attacks.

NDP Leader Thomas Mulcair replied that the government must fight terrorism but not at the expense of civil liberties. His party voted against a law that passed with the Liberals voting in favour of it along with the Conservatives because Liberal Leader Justin Trudeau liked some, but not all, parts of the legislation.

A major electoral factor was at play. If the Liberals had voted against the legislation, it would have given the Conservatives an opening during the general election campaign to say that Trudeau was on the side of terrorists, which is what the Conservatives are saying right now about Mulcair and his New Democrats.

Mulcair promises that if elected to a majority government, he’ll repeal the new law and CSIS and the police will have to continue working under the current anti-terrorism laws that seem to have served Canada so well.

Trudeau promises, if elected to a majority government, to repeal some, but not all, parts of the law.

The Harper government says it will change nothing. The law, as it is, will be to fight terrorism, although in the House of Commons, the government was unable to cite a single case of terrorism in Canada that the legislation would have prevented had it been in place during the past three decades.

Forcing the adoption of his anti-terrorism law through Parliament just prior to an election wasn’t a dumb move by Harper.

First of all, there are a great many Canadians who don’t care a fig about the Charter of Rights, individual freedoms, privacy, and those sorts of things. What they want are tough police and a Canadian spy service with more power to do what it likes.

And most of the people who care about values of freedom and liberty aren’t looking to Harper to stand up for them.

Going to the courts to face a challenge to a new law isn’t a big deal for the Harper government. It has often gone to court and, whether it wins or loses, it’s still the taxpayers who pay the cost. There are plenty of government lawyers to go around.

Conservative MP Costas Menegakis said last week: “Let’s take it to court and get some kind of opinion on it.” The New Democrats fired back that it would have been better and less costly for the government just to ask for the legal opinion of a government lawyer instead of going to court. There won’t be a judgment, of course, before the election, something that suits the Conservatives just fine.

The case will give the Conservatives an opening to accuse the NDP of being on the side of terrorists during the election campaign.

It will also give the Conservative party a golden opportunity to keep addressing the issue of how well it’s fighting terrorism in comparison with what the Liberals and NDP would do.

Making Bill C-51 a big election issue is a lot better for the Harper government than spending its time on the hustings defending former Conservative senator Mike Duffy, former parliamentary secretary Dean Del Mastro, and the remaining cases of corruption and fraud in Conservative ranks.

The NDP has already begun to run slimy, negative TV ads about alleged corruption in Conservative ranks.

For the governing party, it’s much better to talk about whether CSIS spies aren’t going far enough in the fight against terrorists than spending their days defending Harper against the various corruption allegations.

That’s how politics and the courts serve each other in Ottawa these days.   

Richard Cleroux is a freelance reporter and columnist on Parliament Hill. His e-mail address is

  • Chris Wiseman
    Terrible column. Amazing how little this so-called law reporter cares for the facts, or for the substance of the most profound legal question in this country in a generation. This piece adds nothing to the debate about C-51.

    Alleged? More like proven in court.
  • Mike Haran
    Law Society works in the interest of lawyers who are interested in legislation creating a demand for legal services .They also like legislation that will male the job of the defence easier.
  • Clay McCann
    Great article. My complaints include your description of "slimy" when you single out NDP anti-Conservative ads, and the perhaps not putative enough "alleged corruption in Conservative ranks", the latter being merely responsible journalism, the former seemingly evidence of the journalist's (or journal's) bias.

    It will, indeed, be interesting to see how influential C-51's passage will be with voters, especially given the long run of this election. From the Liberals and NDP expect harsh criticism of Harper's government over the Canadian economy and terror hysteria. Look for smear tactics from all parties as broad and brutal as the Nexen oil spill ( in the coming weeks.
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