Comment: War Measures Act less onerous than Bill C-51?

Originally published in the Times Colonist, March 8 2015

In January, Prime Minister Stephen Harper told the audience at the campaign-style announcement of Bill C-51, the Anti-terrorism Act, that “the international jihadist movement has declared war on Canada.”

As the broad definitions of “terrorism,” unclear purposes, lack of oversight and the other many disturbing aspects of C-51 came to light, we thought it might be worth taking a look into how much worse it would be if the prime minster actually declared war on ISIL.

Funny (or maybe not so funny) thing — in a number of respects, the civil liberties of Canadians seem to have better protection under the latest version of the War Measures Act, now rolled into the Emergencies Act.

First of all, under the Emergencies Act, before proclaiming that a “war emergency” exists, the government must believe, “on reasonable grounds, that a war emergency exists and necessitates the taking of special temporary measures for dealing with the emergency.”

The declaration must also “specify the state of affairs constituting the emergency” without jeopardizing any special temporary measures proposed to be taken for dealing with the emergency.”

These declarations last only 120 days, but can be renewed. And yet C-51’s provisions don’t have any kind of time limit or sunset clause.

Of course the Emergencies Act gives almost unlimited power for a wartime government to make orders and regulations, but unlike C-51, those must be believed by cabinet to be “on reasonable grounds, necessary or advisable for dealing with the emergency.”

The government also has to seek parliamentary confirmation of a declaration of emergency under the Emergencies Act. It must put a motion before both the Commons and the Senate, “together with an explanation of the reasons for issuing the declaration and a report on any consultation with the lieutenant governors in council of the provinces” seven sitting days after the declaration is issued.

If either house votes against the motion to approve the declaration, it dies.

Not only that, but this part of the Emergencies Act includes a parliamentary review committee that examines the “exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.”

That’s right, a parliamentary review committee would operate in the middle of an actual war. This committee would have members from all parties in both Commons and Senate. Those members would be sworn to secrecy and its meeting would be private, but the review committee would report to Parliament on how the government is exercising its powers and functions every 60 days for as long as the declaration of war is in effect.

The review committee also has the power to revoke or amend government regulations referred to it.

Once the war emergency is over, the Emergencies Act requires the government hold an inquiry within 60 days “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.” Nothing like this exists in C-51.

Finally, Canadians are also eligible to receive compensation for damages they suffer as a result of the declaration of war. No similar provision exists in C-51 for the damages people will suffer as a result of actions taken under its very broad provisions. In fact, Section 9 of the bill actually provides immunity from civil liability in a number of instances.

If all this can be done during an actual war, why does the Harper government oppose this type of oversight in our current situation?

Vincent Gogolek is the executive director of the B.C. Freedom of Information and Privacy Association.

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Second online spying bill goes to committee

Image shared under CC license by Ministerio TIC Colombia

Our online privacy rights are coming under intense scrutiny this month, as two bills threaten to expand the ability of law enforcement agencies (and others!) to access our personal information without a warrant. The highly unpopular C-13 is currently making its way through the Senate, and facing fierce opposition. Meanwhile Bill S-4, the Digital Privacy Act which amends the federal private sector privacy law (PIPEDA), was referred to committee before its second reading, opening it to much more extensive amendments than is normally the case.

This is important because as it currently stands, there are some serious questions about the constitutionality of this bill. Its referral to the House of Commons Standing Committee on Industry, Science, and Technology provides a unique opportunity to fix these problems.

The question of whether S-4 is unconstitutional stems from a landmark Supreme Court of Canada ruling in R. v. Spencer in June of this year. Currently, section 7(3)(c.1)(ii) of PIPEDA allows Internet Service Providers to voluntarily disclose metadata to a government institution if it has “made the request for the purpose of law enforcement and has stated its “lawful authority” for the request.” So the question considered in the SCC case, and which makes S-4 of questionable constitutionality, is what constitutes “lawful authority” to obtain metadata?

The court ruled that, contrary to the statements by a number of government officials and lawyers, the collection of IP address information and other metadata does constitute a “search,” and a person does have a reasonable expectation of privacy online. This means that a “simple request” from law enforcement is not enough; a warrant is required in order to allow ISPs to give that information to the authorities.

And this is where Bill S-4 runs into trouble, because it includes a provision that “allows organizations to disclose personal information without consent (and without a court order) to any organization that is investigating a contractual breach or possible violation of any law” (emphasis added). This includes law enforcement and other state agencies, but it also allows non-government organizations (or even individuals) to take advantage of warrantless access. This flies in the face of the SCC ruling.

Professor Michael Geist has highlighted the huge range of uses this new exception might have; from copyright conflicts to defamation claims, commercial battles, and consumer disputes. Protections that have been developed by the courts to create oversight and approval procedures would be replaced by the provisions of S-4 , which give immunity to ISPs that hand over our personal information without being shown a warrant, and without us ever knowing what they did.

There are several good things about S-4 (particularly the breach notification requirements) but the expansion of private organizations’ ability to disclose our personal information is not one of them. We want to see the Committee take advantage of its expanded scope to amend the bill and make it into a real improvement to PIPEDA.

Concerned about online spying? Join the call for sober second thought

Write a letter to the editor about C-13Online Spying Bill C-13 has already passed the House of Commons and will soon face a final vote in the Senate. But the Supreme Court of Canada has ruled that large parts of C-13 are unconstitutional. If passed, the Bill will face legal challenges and waste millions of taxpayer dollars. The Senate claims to be the place where new laws can receive “sober second thought” – and if ever a bill needed a sober rethink, it’s this one.

Opposition to Bill C-13 is huge and growing; it’s faced criticism from across the board, including from the government’s own supporters. We need to let the government and the Senators know just what we think of this resurrection of Vic Toews’ aborted Bill C-30, so our partners at have launched a simple Letter to the Editor tool to help you get your thoughts on Bill C-13 published in your local newspaper.

Read more of what FIPA has to say about this draconian bill here and here.

Don’t delay: let Canada’s senators know you expect a critical review of this bill.

Work with us to shape a pro-privacy action plan that addresses government’s stark privacy deficit

Privacy Plan

FIPA has teamed up with OpenMedia and other members of the Protect Our Privacy Coalition to launch a pro-privacy crowdsourcing initiative.

This week the highly controversial online spying Bill C-13 passed the House of Commons, despite concerns that the Supreme Court of Canada Spencer ruling likely makes the legislation unconstitutional. This also follows a year of worrying revelations about the activities of Canada’s spy agency CSEC.

We’ve seen in the past that the best way to combat these overzealous and draconian surveillance efforts is to develop our own solutions that address privacy concerns. C-13 is hugely unpopular, and has received criticism from a range of political standpoints. This crowdsourcing effort will give you the opportunity to have your say as well.

The crowdsourcing tool will allow users to give input on their top privacy concerns, and the policies they would like to see developed. This input will then be analyzed and used to create a set of key recommendations for policy-makers in the new year.

Groups supporting the launch of the tool include: Canadian Journalists for Free Expression, Free Dominion, the International Civil Liberties Monitoring Group, and the Privacy and Access Council of Canada. You can take part by using the crowdsourcing tool at