A year ago this week, the federal government introduced Bill C-51, the Anti-Terrorism Act, 2015. On that day, public opinion was overwhelmingly in favour of the bill, coming on the heels of the 2014 attacks in Quebec and on Parliament Hill.
Quickly, however, hundreds of thousands of Canadians across the country — from former political leaders to legal experts to ordinary concerned citizens — came to realize what C-51 truly is: an alarmingly disproportionate attack on rights, freedoms, and justice that actually makes it harder, not easier, to protect Canada.
We at the Canadian Civil Liberties Association (CCLA) spoke out immediately about our concerns with Bill C-51. We argued that privacy rights would be threatened by an exponential increase in personal information sharing across government agencies and foreign actors, without safeguards or accountability mechanisms.
We questioned CSIS’s extraordinary new powers to take covert action, and, incredibly, to seek judicial warrants pre-authorizing its agents to violate the Charter of Rights and Freedoms.
We warned that the new criminal offences of promoting and advocating terror would chill legitimate dissent; that lower thresholds on already exceptionally broad powers, such as preventive arrest, would further undermine due process rights; and that the procedural flaws in the new Secure Air Travel Act would unfairly restrict Canadians’ mobility rights.
In our view, all of this amounted to overbroad, unnecessary, dangerous, and unconstitutional legislation. Although we asked the government repeatedly, not once did we receive specifics on how any part of C-51 could have prevented the attacks of 2014, or on why pre-existing legislation was insufficient to protect us. Furthermore, several of the bill’s provisions directly contravened the recommendations of the Arar and Air India Commissions of Inquiry. For these reasons, we filed a Charter challenge to Bill C-51 in July 2015.
But even as the new government moves to implement its promise to amend the law in the face of an ongoing public backlash, we can’t help but wonder: how did it even get this far?
How is it that so many laws with clear constitutional vulnerabilities, such as C-51 and others — for example, the Fair Elections Act, the omnibus mandatory minimums crime bill, and the bill severely restricting protections for refugee claimants, among others — can be proposed and passed by Parliament without any meaningful checks and balances? After all, our government and parliamentarians have a sworn duty to uphold our constitution, and the Charter therein.
Clearly there are critical accountability and transparency gaps in our law-making process, which enable the advancement of arguably unconstitutional laws, such as Bill C-51. Indeed, at no point in the process are parliamentarians required to publicly defend the constitutionality of the laws they pass.
That job seems to have been left to our already overburdened courts, and to affected individuals and public interest organizations, such as CCLA, who, in recent years, have been compelled in some cases to launch Charter challenges as the only viable recourse. This is unfortunate given that these particular challenges — which come at a significant cost not only to the applicants, but also the public — could likely have been avoided had Parliament done its duty. And of even greater concern, as these lengthy court battles play out, the laws challenged remain on the books, restricting the fundamental rights and freedoms of Canadians, and risk becoming normalized.
Furthermore, the limited safeguards we do have are simply not working. Typically, the Department of Justice (DOJ) provides legal opinions to the justice minister regarding the constitutionality or legal vulnerabilities of government-proposed legislation. However, the government has refused to make these opinions public, stating that they are subject to solicitor-client privilege. The minister is also required to report Charter inconsistencies to Parliament, but the DOJ has suggested that the minister need only report when there is no credible argument in favour of a bill passing the Charter test. This standard is simply too low and, in practice, has meant that not a single report relaying concerns about Charter compliance has ever been made to Parliament.
Proactive accountability and transparency measures are sorely needed to help compel our government and parliamentarians — both present and future — to honour their fundamental duty to uphold the Charter throughout the law-making process. This is why CCLA has launched a new campaign called Charter First, which calls for the reform of our legislative process such that Charter rights are prioritized and Canadians are informed about the constitutionality of proposed bills.
While we will continue to seek the repeal of Bill C-51, and will not hesitate to bring other Charter challenges if necessary in the future, the time has come for Canadians to consider new ways in which we can better ensure our laws are Charter compliant from the moment they receive Royal Assent. Indeed, it’s time we got it right from the start.
– Cara Zwibel is Director of the Fundamental Freedoms Program at the Canadian Civil Liberties Association. To learn more about CCLA’s Charter First campaign, visit ccla.org/charterfirst