The police have therefore been given certain extraordinary powers necessary for the effective detection and elimination of conspiratorial organizations which advocate the use of violence. These organizations, and membership in them, have been declared illegal… These are strong powers and I find them as distasteful as I am sure do you.
Prime Minister Pierre Elliot Trudeau’s speech to the nation declaring the invoking of the War Measures Act, 16 October 1970
In times of national crisis or emergency, significant authority can be granted by an executive branch of government to do things that might not otherwise be permitted.
In Canada, there were instances following Confederation in which the federal government invoked the emergency power to mobilize troops against perceived domestic threats, but it wasn’t until 1914 and the passage of the War Measures Act that legislation was passed outlining how emergency powers could be enacted. In the latter half of the twentieth century, the War Measures Act was subject to increasing controversy, and as a result it was replaced in 1988 with the Emergencies Act, (although the legitimacy of the emergency powers remains an important subject of debate).
Background
The War Measures Act was passed as a response to Canada’s entry into the First World War in 1914, just eighteen days after Britain declared war on Germany, bringing Canada into the war. In addition to allowing Cabinet to bypass Parliament and to govern by decree, the Act granted the federal government unprecedented powers including:
- seizing property;
- controlling the flow, manufacturing and transport of goods;
- restricting certain mobility rights, and freedom of association;
- censoring and suppressing communications;
- expanded arresting, detention, and deportation powers;
- increased control over the trade, manufacturing, and transport of goods.
Additionally, it transferred authority in areas otherwise reserved for provincial jurisdiction to the federal government. These powers were to be applied “during war, invasion, or insurrection, real or apprehended”. When the War Measures Act was first introduced, it received wide support, as it was seen as a necessary intervention to advance the war effort. Notably, the Act was used to take thousands of civilians into internment camps, with 8,700 Ukrainian Canadians sent to internment camps and 80,000 forced to register as enemy aliens.
As World War II approached, the War Measures Act was invoked a second time (on 25 August 1939). The Act was once again used to justify interning Canadians who were believed to be enemy aliens. This included the internment of nearly 22,000 Japanese Canadians, in the aftermath of Pearl Harbour. The restrictions of rights and detainment in both wars affected Canadian citizens who were politically opposed to the government of the day. For example, in WWI the Act allowed the interment of citizens with left-leaning beliefs and, during WWII membership in the Communist Party of Canada was forbidden.
In October of 1970, the War Measures Act was invoked a third time, by Pierre Elliott Trudeau in relation to the “October Crisis”, at the behest of the Government of Quebec. Eleven days prior to invoking the Act, members of the Front de Libération du Québec (FLQ) had kidnapped British trade commissioner James Richard Cross, and demanded that nearly two dozen FLQ members be released in exchange for his release. Members of the Canadian Armed Forces were sent to Quebec to address the situation.
The head of the Sûreté du Québec, was given the power to order police to search or detain any individual without warrant, and hundreds of people were arrested and detained for up to 21 days without charge, while a curfew was enforced. This was the last time the War Measures Act was used.
From the War Measures Act to the Emergencies Act
The use of the War Measures Act in peacetime highlighted the need for revisions and clarity on their future use in these circumstances. Following Brandon University Professor John Lindsay, Pierre Trudeau “recognized the need for legislation that would be more suitable for domestic situations.” It took more than a decades, but on July 21, 1988, the Emergencies Act received Royal Assent, with the Act aiming to address some of the most significant issues that had emerged under the War Measures Act. The new legislation permitted “special temporary measures” be imposed in case of a national emergency. Fundamental to the Emergencies Act is that “a declaration of an emergency is reviewable by Parliament, and any temporary measures enacted under it are reviewable under the Charter.” Because the Emergencies Act is reviewable under the Charter, the Government of Canada can no longer detain Canadians based on (in the language of the Act) “race, national or ethnic origin, colour, religion, sex, age, and mental or physical disability”. Furthermore, situations where the Act applied were made clearer, including “national emergencies, public welfare emergencies, public order emergencies, international emergencies, and war emergencies.”
In some ways, the continuation of emergency powers under the Emergencies Act because it provides direction for intervention in situations that “cannot be effectively dealt with under any other law of Canada.” Further, the Emergencies Act is seemingly less authoritarian than its predecessor, given the increased accountability that comes with Parliamentary oversight and the Act being subject to the Charter. While the executive continues to hold significant authority under the Emergencies Act, the changes from the War Measures Act allow for some measure of government accountability in times of emergencies.
Critics of the Emergencies Act, however have suggested that despite the limits on government power described in the preamble of the act, such limits do not exist in the text of the Act itself. For example, the Act broadly defines “threats to the security of Canada” in a manner that grants Parliament extraordinary powers to deal with events that might not be extraordinary at all, such as civil disorder and dissent. Further, critics have noted that the safeguards introduced to prevent abuse of power are relatively minimal, leaving the Supreme Court to be the arbiter of reasonable limits on the infringement of civil liberties particularly if the Act is invoked in conjunction with s. 33 of the Charter (i.e., the notwithstanding clause).
Discussion about the use of the Emergencies Act emerged in the context of the COVID-19 pandemic, particularly in its earliest days, with Prime Minister Justin Trudeau discussing the potential use of the Emergencies Act in April 2020, but the idea was “quickly shut down”.
Additional Resources:
- A quick PDF overview of the War Measures Act.
- The Canadian Encyclopedia article about the Emergency Powers Act.
- CBC Archives video of Prime Minister Pierre Elliott Trudeau during a confrontation with a reporter during the October Crisis.
Contributors: Aisha Khalifa Alatrch, Carly Ashe, Christina Christian, Ryan Colpitts, Patrick Heffernan, Nicolas Milosevic, Matthew Macmillan, Nathanael Moore, Shady Adel Roufail, Timothy Solomon, Amanda Smith, Louis-Charles Vaillancourt, Kordell Walsh.