3 Legal Issues to Watch For in this Election
Last year’s attack on Parliament Hill brought this issue home to many Canadians. With the rise of ISIS in the Middle East and terror attacks around the world, the threat of terrorism is high. So how do the three major parties propose we fight it?
Conservatives – The Harper Government enacted the extremely controversial Bill C-51, also known as the Anti-Terrorism Act, 2015.
The law gives the Canadian Security Intelligence Service (CSIS) significant new powers of surveillance that are extremely broad in character. It outlaws any “promotion of terrorism” and gives the Minister of Public Safety and Emergency Preparedness greater power to put people on “no-fly” lists. The threshold for carrying out arrests has also been reduced to allow preventative detention of potential terrorist suspects.
Furthermore, the law allows CSIS to carry out operations that may be contrary to Canadian domestic law or the Charter, provided they get a warrant from a Federal judge. The implication of this power: it would ask a judge to authorize potentially unconstitutional actions from the spy agency.
Liberals – The Liberals supported Bill C-51 in Parliament and voted for its passage. They have, however, criticized some aspects of it and have promised to amend it if elected.
Specifically, they want to introduce a sunset clause that would add a specified automatic expiry date to the law, unless it is explicitly renewed by Parliament. They would also provide greater safeguards for protests and acts of public disobedience, which critics believed was under threat by the “promotion of terrorism” provision of the Bill.
NDP – The NDP have promised to repeal the law outright if elected. They initially supported some aspects of the Bill, but have since concluded that it is beyond amendment.
The NDP argues for an approach that does not compromise civil liberties in the name of national security. To that end, they promise better accountability by establishing a Parliamentary Committee that will review secret documents. It will be comparable to committees with similar mandates established in the United States and the United Kingdom.
Citizenship Law Reform
Closely related to the issue of terrorism, the government has also pushed for reforming citizenship law, the centrepiece of which is revoking citizenship.
Conservatives – Bill C-24, also known as the Strengthening Canadian Citizenship Act, has controversially provided the government with the power to revoke the citizenship of dual citizens who have been convicted of terrorism.
Critics argue that the revocation power is too broad. A recent example is the case of Saad Gaya, a convicted terrorist who was born and raised in Canada. The government is hoping to establish he is a dual Pakistani citizen by virtue of his parent’s original nationality, allowing them to strip him of his citizenship. But Gaya has never held Pakistani citizenship and has never lived there.
The government has also introduced “residency contracts” to the citizenship oath, where new citizens agree to reside in Canada after gaining citizenship. Critics argue that the residency requirement for new citizens violates their freedom of mobility guaranteed by the Charter.
Liberals – The Liberals have promised to repeal Bill C-24 if they are elected. They endorse the criticism that the law effectively creates two classes of citizenship: one for natural born Canadians and one for naturalized Canadians.
The Liberals have framed their criticism of the Bill as an attack on immigrants in general. Justin Trudeau criticized the declining number of family reunification applications, as well as the increase in citizenship application fees to $530 per person and stricter language and testing requirements mandated by Bill C-24.
NDP – The NDP have also promised to repeal the Bill if they are elected. Their criticism mostly focused on the lack of procedural protection that the law provides.
Under the new law, citizenship can be revoked by an order of the Minister or his agents, without the approval of a Federal Court judge. The NDP’s Philip Toone called the legal process associated with the Bill a “violation of natural justice”.
- Reforming the Supreme Court
This is an issue that has not received much media attention, but it is nonetheless on the radar for all three parties.
Conservatives – Stephen Harper has famously clashed with Chief Justice McLachlin over the past few years. He has even taken the unprecedented step of openly criticizing the Chief Justice.
Since coming into office, the Conservatives have sought to reform the procedure of appointing Supreme Court judges to make it more transparent. An appointment committee of the Supreme Court and a parliamentary committee create a short-list of candidates that is then recommended to the Prime Minister and the Minister of Justice. However, critics say the federal appointees have the majority vote in the committees and the decision ultimately rests with the Prime Minister.
Challenges of Bill C-51 and Bill C-24 are both expected to be heard by the Supreme Court in the coming years. Furthermore, the Chief Justice is due to retire in or before 2018. It will be interesting to see how a potentially re-elected Harper Government will respond to these developments.
Liberals – The Liberals committed to reforming the selection procedure for Supreme Court judges if they are elected. The party did not provide details, but they do promise to consult the provinces, the provincial law societies, and the Chief Justice in the ultimate appointment.
The Liberals also promise that all new appointees will be “functionally bilingual”. This commitment seems to be a halfway position between the Conservatives (who reject bilingualism as a requirement for judges) and the NDP (who want all judges to be fully bilingual).
If the Liberals are elected, they will also face a Supreme Court where seven of the nine judges are Harper appointees. Will the tensions between the court and the Prime Minister continue?
NDP – The NDP is also committed to creating a more transparent and accountable appointment system for Supreme Court judges. But like the Liberals, it is silent on further details.
The NDP pledged to make fluency in both official languages an “essential criterion” for Supreme Court justices. Critics argue that this requirement will lower the quality of judicial appointees by disqualifying many able candidates.
The NDP also stated that Quebec judicial appointments will be made only through a short-list provided by the government of that province. This may raise concerns with other provinces, which may want similar arrangements.
Adnan Subzwari (2L) is the News Editor for Juris Diction