War Measures' Act

Claude Bélanger,
Department of History,
Marianopolis College

The War Measures’ Act was adopted in August of 1914 in view of transferring many powers from Parliament to the federal cabinet, thus allowing Canada to meet the emergency that the First World War constituted. The law was patterned after the Defence of the Realm Act of the Parliament of Great Britain with one essential difference: while the British law was abrogated by the British Parliament in 1918, the Canadian law remained on the Statute books and thus could be easily reactivated in 1939 and in 1970.

The law contains 9 articles of which the following are the most important:

Art. 2 permits the Governor-general in Council [i.e. the government] to issue a Proclamation stating that a state of war, invasion or insurrection, real or apprehended exists. That state of war will continue to subsist until such time as a similar Proclamation is issued to declare that the state of war has ceased to exist. The government does not have to demonstrate that a state of war is present to invoke the War Measures’ Act; in any case, you might merely “apprehend” the existence of such a state. The Proclamation itself is sufficient proof that a state of war, invasion or insurrection really exists. Thus, there is no possibility to challenge the War Measures’ Act on the ground that an emergency does not really exist.

Art. 3 gives the Governor-general in Council the power to make such regulations as the government thinks fit for the "security, defence, peace, order and well-being of Canada" and in particular:

a) to censure, suppress or control publications;

b) to arrest, detain, exclude or expel individuals;

c) to control ports and the movement of ships;

d) to control all forms of transportation;

e) to control trade, exports, imports, production, and fabrication;

f) to take over, control, confiscate or dispose thereof or use any property.

Art. 4 allows the Governor-general in Council to impose penalties of five years of imprisonment and/or fines of up to $5 000 if its regulations are not obeyed.

Art. 6 (2). The Proclamation must be submitted to the assent of Parliament within fifteen days that it is issued; until such time as the Proclamation has been issued to Parliament, the government thus enjoys absolute, unlimited powers.

Art. 6 (3). If 10 members or more express the desire to see the Proclamation revoked, the Parliament must consider the issue.

Art. 6 (4). If both Houses of Parliament adopt a resolution squashing the Proclamation, it ceases automatically to apply; however, the government may re-enact a new Proclamation. If a new Proclamation is issued, the process restarts as outlined above;

Art. 6 (5). The protection and guarantees extended to Canadians by the Canadian Bill of Rights, and other Charters of Rights in operation provincially in Canada, are waved aside while the Proclamation is in effect.

The issuing of the War Measures’ Act has the effect of not only waving aside the usual guarantees for civil liberties in Canada but also, automatically, to alter the distribution of powers between the two levels of government since several of the provisions of the Act infringe upon the "property and civil rights" power of the provinces. Courts have deemed that this "emergency" federalism is necessarily temporary in nature and applies only while the emergency lasts. The length of time that the Courts will allow the federal government to exercise its emergency powers, as they affect the nature of Canadian federalism, is dictated by the nature of the emergency. When the federal government attempted to use its emergency powers some years after the First World War, the Judicial Committee of the Privy Council struck down the implicated law. In the 1970’s, the Supreme Court of Canada sustained the right of the federal government to issue a Wage and Price control programme, in contravention to the powers held by the provinces over wages and prices, as it felt that “galloping inflation” was a sufficient emergency to warrant the federal government’s use of its extraordinary powers.

Although strong, the provisions of the War Measures’ Act are necessary to meet a crisis such as war. Evidently, a democratic state must be able to take all necessary steps to protect itself and to act quickly under crisis situations. Such was the argument made by Pierre Trudeau during the October Crisis of 1970. However, the Act allows for invocation of these strong measures even in times of peace, in particular when there would be an "apprehended" insurrection. In this instance, there is clearly a need for reform as the invocation of such measures can easily lead to clear violations of our most basic freedoms and rights as was shown in several instances in Canadian history.

The worse instances of arbitrary use of its emergency powers by the Canadian government were:

In the First World War:
The incarceration in concentration camps of thousands of Canadians of Ukrainian origin whose only crime was to have been born in the Austro-Hungarian Empire; the outlawing of Jehovah's Witnesses as a peaceful organisation; the banning of all foreign language press [those of “enemy tongues”] toward the end of the war; the imposition of prohibition as a war measure in 1918.
In the Second World War:
The outlawing of various organisations such as Jehovah's Witnesses and the Communist Party of Canada; the incarceration of the Mayor of Montreal, Camilien Houde; the registration, the displacement towards concentration camps, the confiscation of property, the stripping of citizenship and the eventual deportation from Canada of thousands of Canadians of Japanese descent.
During the October Crisis of 1970:
The incarceration of hundreds of individuals, nearly all of whom were not charged with any crime. Their arrest must thus be considered as abusive.

The Canadian Charter of Rights and Freedoms issued in 1982 would seem to offer some avenue for greater protection of human rights in times of war than has been the case historically before its issuance. However, article one of the Charter allows that rights and freedoms be subjected to such limits as are established by law as long as these limits can be demonstrably justified in a free and democratic society. Article 4 (2) further permits the House of Commons, or a provincial legislature, to be extended beyond the limit of five years ‘in time of real or apprehended war, invasion or insurrection’. It is clear, under these articles, that the Charter may not provide much recourse against abuse if a proclamation of war was again to be issued.

The ability of the government to issue immediately another Proclamation when the House of Commons has just voted down such a measure [see art. 6.4 above] is also very questionable and evidently would require effective safeguards in the future.

Consult the Chronology on the October Crisis, as well as the Documents on the October Crisis.