02.02.2015 02:17 PM

In Tuesday’s Sun: what will the Supremes say about the anti-terror law?

What politicians think about the new anti-terrorism law, in an election year, is almost completely irrelevant. Because, put simply, it is an election year.

Stephen Harper and his Conservatives are competitive, again, because their approach to the security file is closely aligned with what the electorate want. Polls taken in the past week suggest that up to 70 per cent of Canadians support the international coalition fighting ISIS/ISIL.

Thomas Mulcair and his New Democrats oppose military action, much in the way the NDP have opposed many other past decisions to deploy Canadian troops. It is consistent with their values, and it is arguably popular with their core vote. Mulcair is no fool, however, and he is lately talking a lot about the Conservatives’ poor treatment of veterans, lest he sound too critical of our men and women in uniform.

Justin Trudeau and his Liberals, meanwhile, initially adopted the NDP position – opposing any combat role against ISIS/ISIL. Having seen how unpopular that is with Canadians, Trudeau and his caucus are now fully in quiet retreat. They even started indicating support for the Conservatives’ anti-terrorism bill before it was tabled in Parliament.

What does it all signify? Mostly, nothing. It’s an election year. Our politicians are more preoccupied with the coming electoral battle in Canada than they are with the military battle currently underway in the Middle East.

Political rhetoric is situational: nothing new there. But what of the Supreme Court, who almost certainly will be called upon to determine the constitutionality of the new anti-terror legislative measures? Will they side with the Conservatives, or with civil libertarians?

A scan of some past high court rulings provides us with some hints about which way the Supremes might go.

Last year, the court surprised many when it declared constitutional Canada’s revamped security certificates laws, as well as the government’s reliance on secret evidence to deport foreign-born terrorism suspects. That decision, in the case of alleged al-Qaeda operative Mohamed Harkat, was unanimous – 8-0. The ruling stunned the likes of Amnesty International, the Canadian Council for Refugrees and civil libertarians.

Despite the Harper government’s clear legal victory, Chief Justice Beverly McLachlin cautioned courts to be “vigilant and skeptical with respect to [exaggerated] claims of national security,” because “the integrity of the judicial system” could be placed at risk.

In an earlier security-related case, from 2002, the Supreme Court again unanimously ruled that individuals could indeed be deported if they pose a serious risk to Canadian security. The appellant, an alleged Tamil Tiger terrorist, had argued that the word “terror” was too vague to be used in his case, because terror had many possible definitions.

The high court disagreed, accepting international definitions of terrorism that it is “acts intended to cause death or serious bodily injury to a civilian [and] to intimidate a population…” In that case, the Supreme Court ruled the alleged Tamil Tiger terrorist wasn’t even owed an oral hearing or judicial process.

The biases of Supreme Court justices are not found in legal decisions alone. In 2009, Canada’s Chief Justice gave an under-reported speech to the Ottawa Women’s Canadian Club in which she said this:

“Terrorism demands an ongoing, broad and sustained response that is consistent with our fundamental values and the rule of law,” McLachlin said, before curtly nodding in the direction of civil liberties. She then went on, and was very clear, sounding rather like Stephen Harper in recent weeks.

“Terrorism must be fought. Terrorists seek to achieve their ends by violence. They care nothing for individual liberties or democracy. If we prize our liberties and the history that enshrines them, we cannot let those who seek to destroy these very things prevail.”

Forget what the politicians say about the new anti-terror laws. What matters most is the view of the Supreme Court.

And, based on past evidence, the Supreme Court of Canada is almost certainly going to find those laws constitutional.


  1. Ronald O'Dowd says:


    It depends on the gang at Justice. Did they actually take something from the high court’s rejection of the prostitution bill?

    I don’t expect a free pass — carte blanche. The SCC may have some concerns at the margins. We’ll all find out soon enough.

  2. Michael says:

    Everyone forgets section 1 of the Charter. Rights under the Charter are not absolute, but subject to reasonable limits. Many things, like RIDE spot checks, have been found to contravene the Charter, but allowed to stand because they were a reasonable limit. Not hard to imagine that the government can make the case that fighting terrorism requires a reasonable curbing of our civil liberties, and that the Court to agree.

  3. Al in Cranbrook says:

    Correct me where I am wrong, but there is nothing necessarily nefarious about this legislation. I would surmise the process as follows, roughly speaking…

    It’s starts with the political will to improve the legal/justice system in order to enhance safety and protect lives and property.
    Bureaucracy, including all kinds of legal beagles, begins consultations with police and security providers at every level and in every jurisdiction to find out precisely where impediments lie to fulfilling their mandates, not only to fight terrorism, but also child exploitation, human smuggling, drugs/weapons trafficking that often is connected, money laundering, etc.
    The feedback is then compiled, and legal experts by the truckload sort it all out, define the current laws involved, and then plan amendments and/or new laws accordingly.
    And then the legal experts go over, and over, and over again every single word, all the punctuation, weigh it against precedent, and then go over it all again.
    All with a mind to ultimately pass muster with the Supreme Court, should a challenge to a conviction end up there.
    Which then ends up in a bill before parliament, and it is again examined from a political point of view, three times, with the senate thrown in for good measure.

    And for all of the thousands of painstaking hours involved to get it all right, there still is no guarantee that the SCC won’t find some reason to squash part of or the entirety of the new laws.

    The only thing that makes any of this different from one government to the next is will to go where others may have, or given a choice, would prefer avoided, if not for ideological reasons, then for political ones.

    Nothing in the least bit conspiratorial about any of it.

  4. smelter rat says:

    Perhaps most Canadians will support the law, or at least feel neutral about it. However, MANY Canadians are very uncomfortable giving the current government carte blanche to use it, given their proclivity for mean spirited targeting of any and all opposition. Stringent oversight is absolutely necessary to alleviate these concerns, but so far Harper et al refuse to consider it. And no, SIRC is not effective oversight.

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