War Measures' Act
Department of History,
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.
law contains 9 articles of which the following are the most important:
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.
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:
to censure, suppress or control publications;
to arrest, detain, exclude or expel individuals;
to control ports and the movement of ships;
to control all forms of transportation;
to control trade, exports, imports, production, and fabrication;
to take over, control, confiscate or dispose thereof or use
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.
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.
6 (3). If 10 members or more express the desire to see the Proclamation
revoked, the Parliament must consider the issue.
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;
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.
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 1970s, 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
governments use of its extraordinary powers.
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.
worse instances of arbitrary use of its emergency powers by the
Canadian government were:
- In the First World
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 the Second World
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.
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.
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.
the Chronology on the October
Crisis, as well as the Documents on the October Crisis.
2004 Claude Bélanger, Marianopolis College