Bill C-51: A Threat to the Rule of Law?

This article demonstrates that the Anti-Terrorism Act of 2015 (formerly Bill C-51, ‘‘the Act”) is unconstitutional, in violation of Canada’s international obligations, and incompatible with the minimum norms of the rule of law. The amendments to the CSIS Act allow the Canadian Securities Intelligence Service to apply for warrants authorizing the violation of non-derogable rights, including the right not to be subjected to indefinite arbitrary detention.

The Act grants the government emergency detention powers that are considerably broader than those it possesses pursuant to the Emergencies Act (or that it possessed under the War Measures Act). The United Nations Human Rights Committee (the ‘‘UNHRC”) has already opined on the tension between the Act and Canada’s obligations under the International Convention on Civil and Political Rights (the ‘‘ICCPR”) which establishes that certain rights are nonderogable even during public emergencies. The Act does not recognize this category of peremptory norms, and would allow for their violation in a manner inconsistent with the ICCPR and the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights (the ‘‘Siracusa Principles”).

The Act fails to acknowledge the existence of a set of rights that the government cannot violate. Even if these detention warrants issued under the Act are compatible with the Canadian Charter of Rights and Freedoms, they could violate fundamental rights implicitly recognized by the Preamble to the Constitution Act, 1867, namely the right to counsel and to petition the courts, which may not be abridged even if habeas corpus is suspended. No attempt by the government to seek emergency detention powers that would allow them to hold detainees incommunicado can be justified by reference to a balancing test. The Act’s approach to these rights ignores Canada’s international obligations and the non-derogable rights guaranteed by the Constitution. The article will also demonstrate that such powers would take Canada out of compliance with the norms of a rule of law state.