Law Times - Newsmakers

12 December 2015 THE FEDERAL LIBERALS may have a long to-do list now that they're in power, but many lawyers hope tackling the former govern- ment's anti-terrorism bill will be their first priority after a year of controversy over the legislation. Bill C-51 dominated the headlines for much of the year as the government sought to respond to the 2014 terror attack on Parliament. Despite some support for the bill at the outset, opposition to it quickly gathered steam as critics, including several prominent lawyers, started denouncing it. And while Prime Minister Justin Trudeau voted in favour of it, the Canadian Civil Liberties Association hopes he'll follow through on repealing the more problematic pieces of the leg- islation, including the Canadian Security Intelligence Service's special warrant system. The CCLA has written to the new government twice on the issue and its executive director and general counsel, Sukanya Pillay, says addressing that component of C-51 should be a priority for the Liberals. "I think it's a good start for the government and an easy win for them. We've laid it out clearly. The first thing we would want to see done is that the provision that permits the CSIS warrants should be repealed. It's unconstitutional, and we've never seen anything like that before." In July, the CCLA and Canadian Journalists for Free Expres- sion filed an application challenging the constitutionality of Bill C-51 in the Ontario Superior Court of Justice. It specifically addressed five components of the bill: three sets of amendments to existing laws — the Canadian Security Intelligence Service Act, the Immigration and Refugee Protection Act, and the Criminal Code — and two new pieces of legislation — the Secure Air Travel Act and the Security of Canada Information Sharing Act. The notice of application filed by the two organizations argues that the component of Bill C-51 that amends the Canadian Security Intelligence Service Act "constitutes an extraordinary inversion of the traditional role of the judiciary and the principles of fundamental justice by asking the judiciary, and not Parliament, to authorize limits on Charter rights as opposed to protecting such rights and preventing their violation." Some commentators have said the judicially approved exemp- tions for breaches of the Charter of Rights and Freedoms for CSIS operatives would be an "easy and obvious fix." "Some of the terror tools that were pre-existing that were beefed up, such as the investigative hearings and preventa- tive arrests, those could easily be rolled back to their previous iterations without too much impact on the tools themselves given they were rarely, if ever, used. Certainly, putting those on a three-year sunset clause would be a good idea, if not the entire thing," says Eric Gottardi, past chairman of the Canadian Bar Association's criminal justice section and a partner at Peck and Co. in Vancouver. Gottardi says he'd like to see the government move CSIS back to being "just an intelligence-gathering body" but suggests that if that's not going to happen, the government should create an oversight committee. "There needs to be some real-time over- sight if they will continue to allow CSIS to have these disruption powers," he says. Pillay says that if the government doesn't scrap Bill C-51 entirely, it should keep its promise to address the problematic elements. "I would love it if they would repeal it completely," says Pillay. "I think the bill was completely unnecessary and over- broad. The reality is that it's already in force and aspects of it may already be at play. But this is a way to remove those very clearly unconstitutional and egregious provisions of Bill C-51." top stories Bill C-51 opposition gathers steam in legal community Trudeau facing choice to scrap legislation or tackle its most offensive parts BY JENNIFER BROWN CONNECT WITH IN-HOUSE COUNSEL COLLEAGUES AT LEXPERT.CA/CCCA Check out in-house counsel's best networking tool! The 2015/16 Lexpert CCCA/ACCJE Directory & Yearbook online edition is a user-friendly, outstanding key resource for all in-house counsel. Access more than 4,000 listees, more than 1,900 organizations, find fresh editorial content, and information on deals and links to important resources. ANYWHERE. ANYTIME. ANY DEVICE. ntitled-3 1 2015-10-29 1:06 PM

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