03/11/2015 05:22 EDT | Updated 05/11/2015 05:59 EDT

In Election Year, Bill C-51 Is Best Opposed by Supreme Court

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Unless you've been under a rock as of late, you've likely heard about the Conservative-proposed Bill C-51. The one that aims to transform our secret service, CSIS, into a de-facto policing entity. If you have, you've either expected your opposition leaders to fiercely oppose it, or you've been enthused, if slightly concerned, by the drastic powers given to the intelligence agencies under proposed legislation.

One thing should be clear, in an election year rife with the pervasive, if elusive, threat of another ISIS-orchestrated attack like the Ottawa shootings, you should expect the supreme court to be the only effective opposition to the proposed changes to CSIS, the criminal code, and CSEC, in a majority Harper government. That is a good thing.

In the past twelve months, onlookers to the federal political scene have had no fewer than six major legislative events during which controversial, unconstitutional and unilateral bills proposed by the Harper Conservatives were quashed by the Supreme Court; on charter or constitutional grounds. Be it when it came the Conservative attempt to reform the Senate in order to do away with the Duffy scandal's inexpediency, in the Prime Minister's attempts to overwhelm constitutional rules pertaining to the selection of Supreme Court judges from Quebec (see Nadon), or in the CPC's attempt to enact "tough on crime" regulation that would see convicted citizens lose the right to early parole.

These judicial decisions highlight the fact that Bill C-51, lumped in with last week's Conservative announcement of legislation that would see certain criminals lose the right to appeal altogether, will simply not stand. Not without a slew of setbacks in court from the moment it becomes law, if implemented before the upcoming federal elections as is planned. They point to the fact that Mr Harper is playing politics with legislation he knows to be faulty but unquestionably popular, ahead of an election year that many perceive will be an uphill battle for the incumbent.

Given the parliamentary majority that the Harper government currently enjoys, official effective opposition to its typically extreme legislative proposal lies squarely in the hands of the Supreme Court. Thomas Mulcair and Justin Trudeau's respective decisions to stand aside the bill as it makes its way in the House of Commons, preferring instead to pitch oversight-related amendments as part of their prospective federal electoral platforms, reinforces this reality.

It simply does not make sense on the part of the opposition parties, whose business it is to popularly win control of Parliament, to take a principled stance that is both unpopular and fated to be useless at this point in time. Arguably, Justin Trudeau can be seen as ahead of the curve for being the first to choose to let the Supreme Court block the Bill's most unconstitutional implications, with more than 82 per cent of Canadians reportedly in favour of the proposed legislation.

Even Thomas Mulcair, official head of the opposition, backtracked after first actively opposing the bill publicly, as a result of the tricky political calculus involved. That's just it; in an election year, principled political debate on one of the most fundamental updates to our understanding of privacy and security is reduced to a strategic footnote in a Harper majority government. Leaving courts to impartially sort out the weed from the chaff, in terms of civil liberties in the age of terror.

Not that increased parliamentary oversight, curbing of CSIS powers as initially proposed, and an overall concrete definition of what a terrorist offence is would make national security decision-making transparent in the fight against ISIS. Pr. Philipe Lagasse, of the University of Ottawa's Centre for International Policy studies makes it clear that arguing for more parliamentary oversight of national security and intelligence activities is more likely to result in "a select group of MPs knowing more about Canada's national security affairs, but the public knowing, and perhaps caring, less."

Constitutionally speaking, responsibility for CSIS, CSEC, Department of Defense and Judicial decisions dealing with national security fall under particular ministerial offices, we therefore know where the buck stops when policy goes off the rails. In an open society made transparent by social media and 24/7 news, outlets geared to bringing the public's pressure to bear, this must count for something. The rights and freedoms infringed upon by Harper's undigested piece of judicial reactionism are most effectively protected in the judiciary, not in his rubber-stamping House of Commons.


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