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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