Canada, House of Commons Debates, “Emergencies Act”, 33rd Parl, 2nd Sess (16 November 1987)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 33rd Parl, 2nd Sess, 1987 at 10806-10821, 10833-10855.
Other formats: Click here to view the original document (PDF).
MEASURE TO ENACT
Hon. Perrin Beatty (Minister of National Defence) moved that Bill C-77, an Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, be read the second time and referred to a legislative committee.
He said: Mr. Speaker, for each of us there is a handful of public events that take place in our lifetime which leave an impression on us for the rest of our lives. The end of the Second World War, the death of President Kennedy or the footsteps of the first man on the moon are all examples of that. However, for Canadians in October, 1970, there was another event which took place that I think all of us who were alive during that period will never forget. It happened in response to a crisis in the Province of Quebec. The Government invoked the War Measures Act in a time of peace and suspended the civil liberties of Canadians from one coast of this country to the other. I was a student at that time at the University of Western Ontario. I remember very well the address that was given in a national broadcast by Prime Minister Trudeau who commenced his remarks by saying: I am speaking to you at a moment of grave crisis, when violent and fanatical men are attempting to destroy the unity and freedom of Canada. Mr. Trudeau then continued by explaining the Government’s decision to invoke the War Measures Act, and he outlined some of the circumstances which led to the Government taking such an action. He explained as well that he was taking such measures, which he recognized were exceptionally extreme and would have a profound effect on civil liberties across the country, because it was essential he do so. In Mr. Trudeau’s words:
The War Measures Act gives sweeping powers to the Government. It also suspends the operation of the Canadian Bill of Rights. I can assure you that the Government is most reluctant to seek such powers, and did so only when it became crystal clear that the situation could not be controlled unless some extraordinary assistance was made available on an urgent basis.
Mr. Trudeau continued:
These are strong powers and I find them as distasteful as I am sure you do. They are necessary, however, to permit the police to deal with persons who advocate or promote the violent overthrow of our democratic system. In short, I assure you that the Government recognizes its grave responsibilities in interfering in certain cases with civil liberties, and that it remains answerable to the people of Canada for its actions.
The Prime Minister of the day, Mr. Trudeau, concluded:
It is my firm intention to discuss then with the leaders of the Opposition parties the desirability of introducing legislation of a less comprehensive nature.
In this respect I earnestly solicit from the leaders and from all Hon. Members constructive suggestions for the amendment of the regulations. Such suggestions will be given careful consideration for possible inclusion in any new statute.
The justice Minister of that day is today the Right Hon. Leader of the Opposition (Mr. Turner). He will, of course, remember very well the circumstances which led to the decision to invoke the War Measures Act for the first and only time in a period of peace in Canada. He will remember as well, as will many Members of this House, the commitments made by all three political Parties to see legislation brought in, during a period of calm, to protect the civil liberties of Canadians better, while at the same time ensuring that the Government has the powers necessary to protect the needs and the safety of Canadians in cases of grave crisis.
What we are doing today is to act on that commitment made some 17 years ago. The time surely has come now where we in this House must keep faith with the people of Canada.
On June 26, I tabled in this House two Bills, Bill C-76 and Bill C-77, and announced that the federal Government was repealing the War Measures Act, withdrawing the emergency planning order of 1981 and introducing new federal emergencies legislation to replace them. The Bill I am presenting today complements Bill C-76, the Emergency Preparedness Act, which was given second reading on November 2 and referred to a legislative committee. Although the Bills are in a sense complementary, they are being considered separately. Bill C-77, the Emergencies Act, will replace the old War Measures Act. It includes safeguarded and appropriately limited powers to deal with four types of national emergencies. It ensures that the exceptional powers granted by Parliament will be no more than are needed for the specific emergency at hand. It will ensure a graduated response, not an overwhelming one. In addition, the Emergencies Act will provide for compensation in the event of personal loss, injury or damage.
The Bill’s preamble defines a national emergency as:
—an urgent and critical situation of a temporary nature that imperils the well-being of Canada as a whole or that is of such proportions or nature as to exceed the capacity or authority of a province to deal with it and thus can be effectively dealt with only by Parliament in the exercise of the powers conferred on it by the Constitution.
With passage of the Emergencies Act the Government will be able to act quickly during national emergencies to limit suffering through the use of means that, while extraordinary, will be limited to what is strictly required. The Emergencies Act will clearly constitute a vast improvement over the legislation which it replaces. It will provide a unified and coherent set of measures to respond to emergencies while incorporating maximum safeguards of fundamental rights and freedoms.
The Act will provide for parliamentary review of the use of emergency powers. It will require the executive to answer to Parliament for the use of its powers. The period during which the Act may apply will be limited and the nature of the emergency measures will be restricted to what is appropriate in the circumstances. In addition, the Government will have to return to Parliament for any continuation, amendment, renewal, or declaration of emergency.
Under the Act the provinces are to be consulted before the federal Government can declare a national emergency. In the event of a peacetime public welfare or public order emergency primarily affecting a single province, the province experiencing the direct effects of the emergency will have a veto over the Act’s invocation. Under Parts III and IV, which cover areas of federal jurisdiction, there will still be consultation to the extent that it is appropriate and practical to do so.
The Act was designed so that each part may be invoked separately. In extreme situations, however, two or more parts of the Act may be invoked simultaneously.
Part IV of the Act is concerned with a war emergency. This part grants to the executive powers similar to those of the War Measures Act. However, they can be invoked only in time of war or of other real or imminent armed conflict and are subject to similar safeguards as are other parts of the Act. There is no reference to “insurrection” or “apprehended insurrection” in Part IV.
Some critics have tried to combine the old and the new laws in an attempt to make people believe that Part IV of the Emergencies Act is practically identical to the War Measures Act. They have also stated that there is not really any difference between the two legislative texts since the Charter applies to the War Measures Act. They go as far as to say that temptation to resort to the Emergencies Act will be stronger because, they claim, this legislation creates the impression that it offers more guarantees than the War Measures Act and that it will be easier to invoke it.
Such statements are completely unfounded.
Part IV of the Emergencies Act concerns “a war or other armed conflict, real or imminent”. The War Measures Act applies to war, invasion or real or apprehended insurrection. According to the new Bill, the declaration of an emergency must be justified and may be challenged. Under the present legislation, the declaration of a state of emergency is based on “conclusive evidence that war, invasion or insurrection, real or apprehended, exists”.
In the proposed legislation, all orders and regulations will be subject to scrutiny by Parliament, which may decide to
reconsider and revoke a declaration of a war emergency. No such provision exists at the present time.
The Emergencies Act will be subject to the Canadian Charter of Rights and Freedoms. The War Measures Act is not. The new legislation provides for expiration at the end of 360 days. The present legislation contains no such time limitation.
Provisions for compensating persons having suffered damage or injury as a result of the application of the Emergencies Act will be included in this legislation. The present legislation does not include such provisions. Finally, before the new legislation takes effect, the provinces will be consulted and their views reported to Parliament, which is also an innovative step.
When the Government invoked the War Measures Act in October 1970, it did so reluctantly, believing it had no other choice. This situation led Prime Minister Trudeau to say in the House on October 16, 1970 that “the absence of both adequate time to take other steps or alternative legislative authority dictated the use of the War Measures Act”.
The War Measures Act is too broad and too sweeping. It makes no provision for dealing either moderately with peacetime disasters or for a measured and prudent response to international tension. For 17 years Canadians and politicians of all Parties have been advocating abolition of the War Measures Act saying that it was outmoded, dangerous, and too blunt an instrument for anything short of war.
The present Right Hon. Leader of the Opposition, as Minister of Justice during the October Crisis, stated in the House on November 4, 1970:
The government recognized and, from the beginning, expressed the opinion that the War Measures Act was “too blunt an instrument” —We recognized the need for a more definite but flexible statutory instrument— Similarly on April 28 of this year the Member for Thunder Bay—Nipigon (Mr. Epp) moved that the Government should consider the advisability of repealing the War Measures Act which, to quote him, “authorizes unlimited and arbitrary exercise of power by the Government of Canada during periods of war or apprehended insurrection without providing any review mechanism for such actions nor any basis for redress of the victims of unjust actions” and then went on to say that he thought there were many Canadians who would support Parliament expressing itself in this particular longstanding piece of legislation. He said that he thought that this Draconian Measure, the War Measures Act, should be removed from the books, that what we needed were review mechanisms to ensure protection of individual rights and freedoms.
The same day, in response to motions by the New Democratic Party to abolish the War Measures Act, the Hon. Member for Saint-Denis (Mr. Prud’homme), in recalling the last time the Act was invoked, exclaimed: “I regret only one thing and that is that we do not have more time to discuss a page in Canada’s history which is certainly not one of the most glorious in the history of human rights in Quebec and Canada”.
The Hon. Member went on to say: “Many of us who were young parliamentarians at the time were agonizing about this issue . . . There was a tough debate in the New Democratic Party at that time as to what to do. I agree many New Democrats voted against the Act, but they had a tough debate. I remember it only too well. My price for voting for the War Measures Act was that I be included as one of the speakers . . . I will say in English and in French that 1 will always regret having voted for the War Measures Act. I felt it was my duty as a Canadian with the kind of information that we had that I had to do so. 1 had no other choice”, admitted the Hon. Member for Saint-Denis with admirable frankness.
One effort to examine the problem of legislation to deal with emergencies came from the Task Force on Canadian Unity. It recommended that the Government had the right to seek parliamentary approval within a specified time for any extraordinary powers. It also recommended that the Government state the reasons for its action and the duration of the emergency powers in its proclamation. The task force further recommended that provincial powers and individual rights be safeguarded to various degrees depending on whether the nation was at war or at peace.
I have read the recommendations of the Pépin-Robarts task force carefully and I can assure Members of the House that Bill C-77 adequately meets them. The legislation for second reading which I am proposing today will provide the necessary flexibility to respond to national crises without invoking the War Measures Act. It applies only to national emergencies and distinguishes between four types.
In broad terms they are these: First, situations affecting public welfare and caused by an accident such as a massive chemical spill or by natural disasters such as earthquakes, floods or tornadoes that are of such magnitude as to exceed the capacity of the affected province to respond and to require special powers for an effective federal response; second, public order disturbances that threaten the security of Canada and which are so serious as to be national emergencies; third, international emergencies requiring Canada to take special preparatory measures in concert with our allies; fourth, and finally, war itself.
Passage of this legislation will enable the federal Government to fulfil its constitutional responsibility to provide for the safety and security of Canadians during national emergencies. The Emergencies Act will enable the Government to discharge its responsibility for public order emergencies that become national emergencies, without having to resort to the War Measures Act, an archaic and dangerous piece of legislation completely out of tune with democratic Canadian life.
The Emergencies Act will be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. It will be consistent with the 1967 United Nations International Covenant on Civil and Political Rights. The proposed legislation includes fully safeguarded and appropriately limited exceptional powers to deal with four types of national emergency. It ensures that the exceptional powers granted by Parliament will be no more than what is needed for a specific emergency. It provides for Parliament to review and, if necessary, revoke emergency powers introduced under the Act.
In addition, it contains provisions to ensure that individuals who suffer loss or injury as a result of application of the Act will be fairly compensated. It has been drafted in consultation with the provinces and contains appropriate recognition of provincial interests.
Several provinces have written to say that they are in general agreement with the Emergencies Act. Several have written expressing their approval and the view that the new legislation will bring Canada into line with other modern states which have had similar legislation for years.
The Minister Responsible for Alberta Public Safety Services, who recently experienced firsthand what can happen out of the blue to a community, had some suggestions for changes to the Act but went on to say:
Nevertheless, one must feel that it is the most important legislation introduced on this activity in recent years and your Government’s efforts are to be strongly commended in this regard. We also feel strongly that every effort must be made to ensure the best legislation possible and therefore hope that you will give every consideration to the suggestions we have made. After the tabling, the Premier of Saskatchewan wrote me:
I am encouraged by this initiative. The proposed pieces of legislation will more accurately reflect the way in which the federal and provincial Governments actually carry out their roles and responsibilities in this area … I wish you a successful and speedy passage of the legislation you have tabled, and 1 look forward to the continued co-operation of our respective governments in the area of emergency preparedness—
The previous New Brunswick Minister of Municipal Affairs said he was gratified to learn that I had tabled the Emergencies Bill and companion Emergencies Preparedness Bill. He said:
The Bills address a long-standing need to contemporize emergency legislation in Canada and New Brunswick supports this new legislation without reservation.
The Minister responsible for the Manitoba Emergency Measures Organization wrote to me. My friend, the Hon. Member for Brant (Mr. Blackburn), will be particularly interested in his view. He said:
The Bills are indeed timely and a significant improvement over the existing Act. In particular, the protection of civil liberties is a critical component of your proposed new statute. I welcome the continuing opportunity, as provided in the new Acts, for consultation on matters of national emergency preparedness and response policy. Y ou may be assured of our co-operation and support in this vital area.
He went on to say that:
—certainly some of the existing programs established by Emergency Preparedness Canada are tangible evidence of federal-provincial co-operation and it is my hope that these will be enhanced by the new legislation. If there were as close collaboration in all areas of government as there is in emergency preparedness, there would be few stresses and strains in our federal system.
When I tabled Bill C-77 on June 26, 1 deliberately did so before the summer recess to give Members of the House and Canadians at large adequate time to review its contents and to make suggestions if there were areas where they felt it could be improved. It is because I believe that the legislation has important implications for national security and because the civil liberties of Canadians should be considered in a period of calm that I felt that sufficient time should elapse before the Bill was moved at second reading.
I also indicated that I would listen seriously to suggestions for improvements to ensure that at the end of the day the best possible legislation would be passed.
After the initial tabling, I received many letters from private citizens and politicians congratulating me on finally moving to do away with the War Measures Act. A few people, among them some federal politicians, expressed concerns. In some instances these criticisms were reasonable and constructive. In others the negative comment stemmed perhaps from a superficial reading and misunderstanding of the legislation. As I indicated earlier, some felt that Part IV of the Emergencies Act is virtually identical to the War Measures Act. They say that since the Canadian Charter of Rights and Freedoms now applies to the War Measures Act, there is really no difference at all, except that there could be a greater temptation to use the Emergencies Act because it gives the illusion of being better safeguarded than the War Measures Act and could be more easily invoked. My earlier comments demonstrated that this is simply not true, and a careful reading will confirm this.
Others have said that the McDonald Commission did not think that the Government needed any additional emergency powers in peace time. I can assure Members of the House that Bill C-77 incorporates virtually all of the relevant recommendations of the 1979 McDonald Commission. From the outset we have been concerned that these recommendations should be respected as far as possible. There is one notable exception. The McDonald Commission did not recommend repealing the War Measures Act and replacing it with new emergencies legislation. Unlike members of the McDonald Commission, we believe, as all Parties in the House have stated in the past, that the War Measures Act is so inadequate and poses such a severe threat to the fundamental rights and freedoms of Canadians that we do not wish to live with this monster any longer.
As I have said, I have read through the recommendations relating to the emergencies legislation of the McDonald Commission and I note with pleasure that the vast majority of those recommendations have been incorporated in Bill C-77 in
one form or other, particularly in regard to procedures for parliamentary oversight of emergency powers. Part 1 of the Emergencies Act deals with public welfare emergencies and is designed to enable the federal Government to mobilize the resources of the nation in response to a public welfare emergency that is so serious as to be a national emergency. Provisions of the act enable the federal Government to organize the response to a provincial or territorial request for assistance. The act will ensure that the burden of responding to and recovering from such a national emergency is shared by the nation as a whole.
All provincial governments have enacted standing emergencies legislation to deal with public welfare emergencies. By and large, they have developed sufficient competence, resources and experience to cope with most public welfare emergencies either with or without the assistance of contiguous provinces or of the federal Government. However, in a national emergency the combined resources of the entire nation may have to be mobilized to deal with the emergency. A vast, co-ordinated and timely response of the sort which could be required could only be provided using the federal emergency power.
While provincial governments have the authority, through their various emergency acts, to requisition resources within the province for emergency use within the province, they do not, and constitutionally cannot have the authority to requisition resources in the province for use outside the province. Only the federal Government can do this.
In the interest of federalism, as well as the efficient mobilization of the nation’s resources, we recognize that the provinces should have a role in the process leading to the declaration of a public welfare emergency. The Emergencies Act embodies this principle.
Although the federal Government would always consult with the provinces before declaring a national emergency, the recent trend toward improved federal-provincial consultation as well as several studies of constitutional reform, all lead to the conclusion that the provinces ought to have a stronger voice and a more formal role in the process leading to the declaration of an emergency. Part I of the Emergencies Act therefore includes appropriate procedures regarding provincial consultation.
It is the intention of the federal Government to work continuously with provincial governments through Emergency Preparedness Canada to develop detailed plans and procedures to facilitate effective consultation if the need to consider invocation of the act arose.
The Emergencies Act stipulates that Part I may not be invoked unless the province in which the direct effects of the emergency principally occur indicates that it cannot cope without federal authorities and assistance. In large emergencies affecting several provinces, all provinces affected must be consulted before a declaration can be made under the act. In addition, the act states that provincial jurisdiction over the police forces, including the RCMP—over which the province normally has jurisdiction—will not be altered.
With these safeguards, then, it will not be possible for the federal Government to use the legislation to intervene unilaterally in provincial or territorial emergencies that are within the capacities or authorities of the provinces or territories to cope with.
Some people have expressed doubts about the provision of Bill C-77 dealing with public welfare emergencies having serious implications for the right to strike. It is a point that certainly should be clarified. However, I would remind the House that I have stated publicly on previous occasions, that this act is not intended to be used to settle a legitimate dispute between an employer and employees.
I have already said that if there is uncertainty in the language of the Bill in this regard, it will be dealt with in committee to ensure that the original intent is respected. Indeed, we have seen very recently an instance where Parliament has been prepared to introduce special legislation which is well tuned to the specific exigencies of the circumstance, and that is the appropriate way to deal with it. If the federal Government believes it is necessary to intervene in the case of a strike, we will make it abundantly clear that this legislation is not intended to and could not be used to interfere in that way.
I personally have little difficulty with this point. 1 believe that the constraints of the definition of a national emergency in the preamble, when added to the further constraints of the definition of a public welfare emergency in Clause 3, effectively ensure that this Bill could never be used to terminate a strike and impose the settlement of a legitimate dispute between an employer and employees.
Likewise, it has been said that probably the most contentious clause in this Bill is the one that deals with public order emergencies. This is the type of situation which gave rise to the use of the War Measures Act in 1970. This clause takes its definition of threat from the Canadian Security and Intelligence Service Act. This fact alone should make us very cautious because of the difficulties already encountered with CSIS in determining what is subversion and what is legitimate dissent. That was one view of the legislation.
I would remind Members of this House that the definition of “threats to the security of Canada” received exhaustive scrutiny by Parliament in 1983 during deliberations on the CSIS Act. The language in this definition has, therefore, already received Parliament’s blessing.
I would also remind the House that the definitions at the head of each of the four major parts of this Bill, including the definition of “threats to the security of Canada” do not stand alone. They must be read in conjuction with the definition of a national emergency in the preamble of the Bill and in conjuction with other restricting provisions. In other words, before
the Government can declare a public order emergency under Part II, the emergency situation must correspond to the definition of a national emergency as stated in the preamble. I am told that this double test, as it is called, will be used by the courts to assess the Government’s compliance with the deliberate constraints and safeguards that have been built into the definitions of this Bill. For greater clarity, let me read again the definition of a a national emergency which appears in the preamble of the Bill. Since it seems to have been overlooked by some people, it bears repetition. A “national emergency” is defined as follows:
—an urgent and critical situation of a temporary nature that imperils the well-being of Canada as a whole or that is of such proportions or nature as to exceed the capacity or authority of a province to deal with it and thus can be effectively dealt with only by Parliament in the exercise of the powers conferred on it by the Constitution.
I am sure all Members of this House will appreciate that the standard established in this definition is very stringent, indeed. Before the Government can declare an national emergency under this act, the emergency in question must affect the whole of Canada or be so great as to exceed the capacity of the provinces to cope with the emergency. When this definition is read against the definition of “threats to the security of Canada” in Clause 14, and in conjunction with provisions that the emergency must necessitate the taking of special temporary measures for dealing with it, and that the special measures must be reasonable, it is apparent that the benign and benevolent activities such as ministerial contacts with the African National Congress, would never amount to a national emergency, as someone suggested, requiring invocation of the Emergencies Act.
To the challenge that a public order emergency also gives Cabinet the right to prohibit public assembly, and that a Canadian could have difficulty in availing himself or herself of the right to protest peacefully the declaration of emergency powers, I would reply that there are absolutely no restrictions on the freedom of expression, thought, conscience or religion under this part of Bill C-77. Unlike the War Measures Act, Part II of Bill C-77 confers no new powers relating to search, seizure, arrest or detention. The provisions of the Criminal Code in these areas are considered adequate to ensure law and order. Restricting public assembly would be authorized only to protect lives and property during a serious national emergency. Let me dwell on this for a moment because I think it is a very important point which the House should recognize. One of the grave threats to civil liberties that is contained in the War Measures Act, as it stands today, was shown very markedly in the regulations under the War Measures Act when it was invoked in October 1970. We found civil liberties across the country suspended in order to deal with the situation which was relatively isolated in terms of its implication. Even though the FLQ problems that existed were taking place in the Province of Quebec, people as far away as Vancouver, British Columbia, or Guelph in Wellington County in my area, found their civil liberties were suspended as well. This is a much more finely tuned piece of legislation.
In the Province of Quebec people found that there suddenly was a retroactive crime being created. This will not be possible under Bill C-77. This section of the Bill gives no new powers of arrest. We will not have under the powers of this Bill in Part II, the knock on the door in the middle of the night because of a crime being created retroactively. We will not have the situation that someone who once attended a meeting of an organization would have the burden of proof shifted onto him to prove he is not a member of that organization. How could any of us be expected to prove we do not belong to an organization?
It may be easily possible to prove we do belong to some organization such as a church, political party or any other organization, but how can we prove conclusively that we do not belong to an organization if attendance at a meeting is deemed to be adequate proof that we do.
That is the problem today with the War Measures Act. That is how civil liberties were affected in October of 1970. That is the sort of abuse we are determined to correct. It is essential that we have legislation in a period of time that better protects civil liberties.
As for the notion that a legitimate protest against the emergency declaration could be suppressed and no one would find out, or that the Government could censor the media or simply forbid travel to the troubled area, and that it would be difficult for anyone to find out if the declaration of an emergency was justified if no one was allowed in or out of the area, I reply that there is no mention at all of censorship in this part of the Bill. In fact, censorship would be possible only during a war emergency under Part IV. Restrictions on travel would be limited to the area of the emergency and only reasonable restrictions on travel would be permitted, that is, restrictions which would prevent further loss of life by creating an evacuation zone, for instance.
Some have concerns about the clause dealing with international emergencies. They suggest that the definition of an international emergency is extremely broad and that the Bill speaks of a threat to any country in which the political, economic or security interests of Canada, or any of its allies, are involved. As in the case of the definitions in each of the other parts, this definition should be looked at within the context of the definition of a national emergency as stated in the preamble. There is no way that an incident such as an attack on the Stark, for example, would amount to a national emergency in Canada.
I would suggest that Members of this House read carefully through the definition of an national emergency in the preamble and to read it opposite the definition of an “international emergency” in Clause 25. It is clear that an international emergency must first be so serious as to constitute a national emergency in Canada before the Government can declare the emergency. In my view, only a global crisis of major proportions could ever meet the high double test established here.
I welcome the opportunity to deal with this issue in committee, and if wording can be found that will clarify the definition of “international emergency” without destroying our ability to
act in appropriate cases, I would certainly consider incorporating it in the Bill.
I should like to address any concerns about the provisions in the Bill authorizing extraordinary powers of search and seizure during an international emergency. In light of representations I have received from civil liberties groups since the tabling of this legislation at the beginning of last summer, I would be prepared to look carefully at the wording of this power and the possibility of clarifying its intent. I should explain that its purpose is, for example, to enforce and monitor defence contracts, to prevent hoarding and overcharging for scarce commodities and to prevent black marketing in an international emergency. However, we shall certainly be looking very closely at this section and I would welcome input from Members of Parliament in that regard.
Some criticism has been leveled at Part IV of Bill C-77, that it is difficult to see any difference between this part and the current War Measures Act. Let me remind the House that there are indeed great differences, and permit me to summarize what I said earlier on this point in French.
The Emergencies Act, Part IV, is applicable to “war or other armed conflict, real or imminent”, whereas the War Measures Act is applicable to “war, invasion or insurrection, real or apprehended”.
Invocation of the Emergencies Act must be justified and can be contested, whereas a declaration of the War Measures Act is conclusive evidence of the existence of an emergency which cuts off all recourse to the courts.
Orders and regulations made under the Emergencies Act are subject to parliamentary review whereas under the War Measures Act there is no such provision.
Under the Emergencies Act, Parliament can initiate a motion to revoke a declaration. Under the War Measures Act there is no such provision.
The Canadian Bill of Rights applies to the Emergencies Act. It does not apply to the War Measures Act.
The Emergencies Act cannot be in effect for more than 360 days and any extension requires parliamentary approval. There is no time limit at all under the War Measures Act.
As a past Co-Chairman of the Standing Joint Committee on Regulations and Other Statutory Instruments, I have joined with others in this House and in the Senate in pressing to have Governments include parliamentary scrutiny and control over delegated legislation. This Bill gives Parliament a virtually unprecedented degree of control over the use of the powers contained in it. One can only wish that there had been such parliamentary power when the War Measures Act was invoked in October of 1970.
We have bent over backwards in drafting this legislation to ensure the preservation of civil rights and liberties. By limiting the Emergencies Act to four carefully circumscribed categories of national emergency, Canadians will have assurances that the Act will not be used in a frivolous matter to deal with localized or relatively minor emergencies.
The Emergencies Act will enable the Government of Canada to respond to a major international crisis by gradually adopting appropriate preventive and preparatory measures, in concert with our allies, without having to take the provocative step of invoking the War Measures Act. It will eliminate the need to deal with national emergencies by hurriedly introducing excessive or flawed ad hoc legislation during the heated and confused situation that usually develops after a major emergency has occurred. It will help to stimulate, in cooperation and consultation with the provinces, an enhanced national standard of emergency preparedness. Passage of this Bill will ensure an appropriate response to emergencies while assuring that the fundamental rights of Canadians are fully protected in emergencies.
If this Act had been in place in World War II, Canadian citizens could not have been so cavalierly interned and their property confiscated. Likewise, in 1970, Part II of this legislation would have been used instead of the War Measures Act, and the abuses we saw under that Act would not have been possible—Quebecers would not have been arbitrarily arrested and detained simply because they were associated with a particular group.
I think it is important to re-emphasize that, unlike the War Measures Act, Part II of Bill C-77, confers no new powers relating to search, seizure, arrest or detention. The provisions of the Criminal Code in these areas are considered to be entirely adequate to deal with the instigators of public disorder, even under unusual and exceptional circumstances.
As I have said before, the need for this kind of legislation has been long recognized by all parties in Parliament. It is important that we have the mechanisms in place to deal with national disasters. But it is equally important that we are able to respond effectively to the more day-to-day occurrences. By putting in place adequate emergencies legislation, the federal Government will not only be in a better position to respond to the needs of Canadians in an increasingly complex environment, but Canada will be brought into line with other modern democratic states which have had comparable legislation for years.
This legislative package consisting of Bill C-77 and Bill C- 76 fulfils the Government’s election commitments in the field of emergency preparedness and does so with proper regard for the civil rights of individuals and for the federal nature of Canada.
To paraphrase the Hon. Member for Saint-Denis (Mr. Prud’homme), speaking in the House last April, if Members have suggestions to make … I would be delighted to hear them, because we could have legislation which is better, more in line with the spirit of the Charter of Rights and Freedoms and more compatible with what we want to defend.
Revision of the emergencies legislation was part of this Government’s election platform in 1984. In February of 1985, at a press conference, the Prime Minister (Mr. Mulroney) publicly committed the Government to an early review of the War Measures Act, when in answer to a journalist’s question about when his Government was going to do away with the Act he said, “I don’t think you are going to be able to ask me the question much longer. It is under review and we hope to have something for you at an early moment. We hope to bring something forward that will be more appropriate than what we have had in the past”. We have kept our promise. I hope that we can move quickly through second reading of Bill C-77 with a view toward starting detailed review in a legislative committee as soon as possible.
Consideration of this legislation provides Parliament with its first opportunity for a full review and debate of emergency preparedness matters. It also provides an opportunity for the general public to become informed of and engaged in the issues involved.
Finally, passage of this Bill will provide effective machinery to deal with unforeseen and potentially disastrous events while fully safeguarding the rights of Canadians.
I am fully in accord with my friend, the Hon. Member for Brant, who said in the House:
We should deliberate in an air of calm and reason . . . We have time to consider what we are setting in place for future generations. There is no war. There is no apprehended insurrection, no violence, no upheaval. Now is the time to give it straightforward, serious, cautious and deliberate consideration. I am heartened that my hon. friend should say this. I agree with him entirely that, in his words, “now is the time for the parliamentary process to shine”. I also totally agree that we will need testimony from both expert witnesses and ordinary Canadians to get this legislation right, for I know full well that it is an issue that touches the very lives and liberties of every Canadian. I urge the House to send the Bill to committee with the least possible delay so that the committee can get on with its work of inviting the public to be heard. I am confident that all Members of the House recognize the importance of this legislation. I believe that together we can work out, in a nonpartisan way, the best legislation possible.
Some Hon. Members: Hear, hear!
Mr. Speaker: I think there is some understanding in the House that perhaps the Hon. Minister of State could be heard.
* * *
MEASURE TO ENACT
The House resumed consideration of the motion of Mr. Beatty that Bill C-77, an Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, be read the second time and referred to a legislative committee.
Mr. Len Hopkins (Renfrew—Nipissing—Pembroke): Mr. Speaker, I am glad that the Minister of National Defence (Mr. Beatty) started off this debate today with a lengthy explanation of the Bill as he sees it and as he intends it. This Bill before the House today is not to be taken lightly. Such measures are of extreme importance to any nation. This Bill deals with the basic theories and practices of the democratic process itself and fundamental rights and responsibilities of the people of the country.
Bill C-77 before us today, called the “Emergencies Act”, replaces the War Measures Act, while Bill C-76, which is entitled the “Emergency Preparedness Act”, is to replace the emergency measures organization which did not have a clear basis in legislation. That piece of legislation is important particularly to provincial and municipal governments because there seemingly was a lack of direction for the municipalities.
They were sometimes confused and frustrated with that legislation.
Bill C-77 is a major piece of legislation. Let us make no bones about that. At a glance it makes one realize that it too is a very strong measure, taking nothing away from the War Measures Act. I will be looking at the court system for compensation later on in my speech, as I think that is an inadequate part of this legislation.
We must remember that the War Measures Act was initially passed by the Conservative Government of Sir Robert Borden. It was passed through this Parliament with limited
debate and no dissent on August 21, 1914, only 15 days after the outbreak of the First World War. We must remember that Parliaments of the day had witnessed a long period of peace in the world. From 1815 to 1914, there were 99 years of virtual world peace, except for a few minor fracas such as the Crimean War from 1853 to 1856, the Boer War from 1899 to 1902, and the Russo-Japanese War from 1904 to 1905. Therefore, we must remember when we are considering this legislation that Canadian parliamentarians had relatively little or no experience with such emergency measures legislation. Canada itself had virtually none, because it had never been a major player in international controversies.
I wish to refer back approximately 127 years to the 1860s and a statement by Abraham Lincoln. Under emergency powers, the political rationale underlying resort to emergency powers was summed up by him in the following manner:
Every man thinks he has a right to live and every government thinks it has a right to live. Every man when driven to the wall by a murderous assailant will override all laws to protect himself and this is called the great right of selfdefence. So every government when driven to the wall by a rebellion will trample down a constitution before it will allow itself to be destroyed. This may not be constitutional law but it is a fact.
This underlying rationale of self-defence, resting on the concept of necessity, is often expressed in the maxim of “the safety of the people is the highest law”.
Emergencies, which may require extraordinary powers to overcome them, are of many types. A United Nations study of 36 constitutions in the early 1960s lists a wide range of threats to the well-being of the polity which those constitutions recognized as permitting the taking of emergency measures. That list includes international conflict, war, invasion, defence or security of the state or part thereof; civil war, rebellion, insurrection, subversion, or the harmful activities of counterrevolutionary elements; disturbance of the peace, public order or safety; danger to the constitutional authorities; natural or public calamity or disaster; danger to the economic life of the country or parts thereof; and the maintenance of essential supplies and services for the community.
On this basis, in terms of the United Kingdom, leaving aside armed conflict between states, one might identify as potential candidates for the use of emergency powers, at least in some circumstances, certainly, the activities of domestic nationalist terrorist groups, particularly of Republican and Loyalist paramilitaries.
In starting off this debate today we must remember when we go back 127 years that the feeling about such legislation was quite different than it is today. I would also submit that when the War Measures Act went through this Parliament, in August of 1914, the thinking in Canada was quite different than it is today when it comes to the subject of civil liberties and law and order.
The Minister has stated that this Bill must be looked at in the calm of the present state of peace in this country and in the world. That is very important. We must remember that the War Measures Act was passed when this country—in fact the world—was in a state of war. There was not time to do some serious thinking about such measures.
The War Measures Act was modelled after the English Defence of the Realm Act which was passed by the British Parliament on August 8, 1914, a few days before the War Measures Act became law in Canada. This would again indicate that the Government of the day, or the Parliament of Canada, lacked experience in those things, because it was basing this legislation on an Act of the British Parliament that had been passed only one week before the War Measures Act itself.
The one big difference between the two Acts was that the British Act was intended to operate only for the duration of the war; the Canadian Act was drafted in such a manner that it remained on the statute books to be invoked when deemed necessary to the executive, meaning the Cabinet.
The War Measures Act as passed in 1914 granted the Governor in Council extremely broad powers to pass regulations in time of war, invasion, or insurrection, real or apprehended. The simple issuance of a proclamation by the Cabinet represented conclusive evidence that war, invasion, or insurrection, real or apprehended, did in fact exist.
Once the proclamation was issued, the Cabinet was allowed to make orders and regulations deemed necessary or advisable for the security, defence, peace, and welfare of Canada. Section 6 of the 1914 War Measures Act specifically included censorship of all means of communication, arrest and detention, control of harbours, territorial waters, and vessels, transportation of any type, trading, production, and manufacture, and appropriation and control of property. Besides all of this, the termination of the emergency situations in which the War Measures Act was to be proclaimed was also to be by executive or Cabinet proclamation.
This famous Act of 1914 amended the Royal Northwest Mounted Police Act by authorizing an increase in the size of the force. At the same time it amended the Immigration Act by preventing those who left Canada to help the enemy from landing, remaining in Canada except with the Minister’s consent. It also gave retroactive statutory sanction to all measures that had been taken from August 4 until the Bill became law, including the declaration of war itself on August 4, 1914. All this took place in the crisis atmosphere of this Parliament in August of 1914. Is it not sensible and realistic to believe that another crisis in this Parliament could produce similar legislation?
Let us not forget that as we stand here debating this new legislation today—if I may use a pun—in the serenity of this Parliament, that it is incumbent upon us to produce sound legislation with a view to protecting, as far as possible, the rights and privileges of every Canadian, after we have taken into consideration the responsibilities of every citizen in times of crisis, and indeed the responsibility of the Government.
Let us look at some sections of the Emergencies Act before us today. Under Part IV of the War Emergency Part of Bill C- 77, Clause 38 has an elastic clause. It states:
38. (1) While a declaration of a war emergency is in effect, the Governor in Council may make such orders or regulations as, in the opinion of the Governor in Council, are reasonably necessary or advisable for dealing with the emergency.
This gives the Government very broad powers indeed. Let us look at the orders and regulations under Part III of the Bill dealing with an international emergency. Under orders and regulations Clause 28 states:
28. (1) While a declaration of an international emergency is in effect, the Governor in Council may make such orders or regulations with respect to the following matters as, in the opinion of the Governor in Council, are reasonably necessary for dealing with the emergency:
(a) the control or regulation of any specified industry or service, including the use of equipment, facilities and inventory;
This is practically confiscating the services at hand.
Subclause (b) reads:
the appropriation, control, forfeiture, use and disposition of property or services;
The right to property is abrogated in this clause.
The next subclause is a very good comparison with the War Measures Act itself. Subclause (c) reads:
the authorization of the entry and search of any dwelling-house, premises, conveyance or place, and the search of any person found therein, for any thing that may be evidence of a contravention or suspected contravention of any order or regulation made pursuant to this section, and the seizure and detention of any such thing;
Subclause (d) reads:
the authorization and conduct of inquiries in relation to the administration or enforcement of orders or regulations made pursuant to this section, including the conferral of powers under the Inquiries Act on any person authorized to conduct such an inquiry;
There is no difference here from the War Measures Act which this Act really replaces. Subclause (e) reads:
the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide;
Their services are seconded. Subclause (f) reads:
the designation and securing of protected places;
That is common sense. Subclause (g) reads:
the regulation or prohibition of travel outside Canada by Canadian citizens or permanent residents as defined in the Immigration Act, 1976 and of admission into Canada by other persons;
Subclause (h) reads:
the removal from Canada of persons, other than Canadian citizens or permanent residents as defined in the Immigration Act, 1976\
Subclause (i) reads:
the control or regulation of the international aspects of specified financial activities within Canada;
In the present trade discussions a lot is being discussed about the United States having the right to invest in the Canadian financial and commercial communities. What will be the relationship between that situation, if it ever comes about, and the fact that during wartime or during a crisis international aspects of specified financial activities within Canada will be regulated by the Government of Canada in a stronger manner?
Subclause (j) reads:
the authorization of expenditures for dealing with an international emergency in excess of any limit set by an Act of Parliament and the setting of a limit on such expenditures;
Here we have the Government setting expenditures and setting compensation costs for Canadian citizens that will come up later.
If one does not abide by all these provisions in Bill C-77, replacing the War Measures Act, here is the penalty:
the imposition, on summary conviction or indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment for contravention of any order or regulation made under this section.
Section 4 of the War Measures Act also provides for a penalty which shall not exceed $5,000 or imprisonment for five years or both. It is exactly the same pattern.
The War Measures Act was amended in 1960 by the Canadian Bill of Rights. The 1960 amendment provided that anything done under the War Measures Act was to be deemed not to be an infringement, abrogation, or abridgment of any right or freedom recognized in the Canadian Bill of Rights. This really means that the Diefenbaker Government passed its Bill of Rights in 1960, got a lot of publicity for having passed it, and then immediately thereafter said that the Bill of Rights did not apply to the War Measures Act. Through those years, right up until the Charter of Rights and Freedoms was finally passed in Parliament in 1982, there were no controls on the War Measures Act. While the Diefenbaker Government took a lot of credit for bringing in the Bill of Rights, it did not apply it to the War Measures Act. It also provided for the laying of a War Measures Act proclamation before Parliament after its issue and for the consideration of its abrogation by both the Senate and House of Commons.
Bill C-77 respecting the Emergencies Act has incorporated the practice of laying proclamations before Parliament within seven days of a declaration. That amendment also took place with the War Measures Act itself.
The essence of the War Measures Act is its perception as a last resort piece of legislation, to be used only in limited circumstances, and this limitation should be placed on any emergency legislation. As a consequence, the War Measures Act has been invoked only three times since its adoption in 1914—during and after World War I, during and after World War II, and during and after the October 1970 crisis.
One must not be led to believe that any one package of emergencies legislation is the be-all and end-all in the handling of a crisis. This is why it is very important that this piece of legislation be sent to a legislative committee. I gather from the
speech delivered by the Minister this morning that he is probably in the mood to look at some constructive amendments to the Bill at that stage. I think this is a piece of legislation that must be looked at seriously and very constructively by all political Parties in the House.
The new emergencies legislation can be resorted to in many different situation, both in peacetime and otherwise. It can be invoked where there has been a natural disaster and where there has been a breakdown in the flow of essential goods, services, or resources—for example, a strike. The Minister mentioned that this morning by way of clarification. It is probably one section at which we will be looking for an amendment to include that clarification in the legislation. It can also be invoked where there have been serious threats from within the country to the security of Canada. That is an important point that I do not think anyone can disagree with. Also it can be invoked in cases of real or apprehended acts of violence from another country toward Canada, or even in cases of apprehended acts of violence from another country toward an ally of Canada, and, finally, after a proclamation of a state of war itself.
I think it should be said at this point that legislation of this nature is not easy to come by. When we look at the War Measures Act and at World War 1 and World War II, we must be cognizant of the fact that those were very crucial years, not only for the people who passed the legislation but for those who administered it. As well, it was a very crucial period for every citizen of Canada and for every citizen of the free world.
For this reason we must appreciate the fact that, even though the War Measures Act was inadequate in some ways, it was the vehicle that brought the free world through two world wars and afterwards was dispensed with and life went on. In each of the above cases the new emergencies legislation would authorize Cabinet to suspend certain civil liberties. The legislation will allow for the regulation or outright prohibition of travel within Canada and of public assembly. It will authorize the appropriation of property including public utilities and services and the rendering of essential service. These are particularly strong measures.
It would also allow for search and seizure without warrant, as I have mentioned; the removal of any non-Canadians from Canada; and the regulation of international financial activities in Canada. If, as some assert, the War Measures Act is overkill, then clearly the new emergencies legislation has a quality of that in many sections of it as well.
The procedures for citizens to receive compensation for losses under the War Measures Act and the new Emergencies Act is an interesting comparison. Section 7 of the War Measures Act of 1914 reads as follows:
Whenever any property or the use thereof has been appropriated by Her Majesty under this Act, or any order in council, order or regulation made thereunder, and compensation is to be made therefor and has not been agreed upon, the claim shall be referred by the Minister of Justice to the Exchequer Court of Canada, or to a superior or county court of the province within which the claim arises, or to a judge of any such court.
The regulations in Clause 22.1 of Bill C-77, the Emergencies Act, on page 32, give the Governor in Council the right to prescribe the form and manner of making applications for compensation. I want to repeat that. The clause gives the Governor in Council the right to prescribe the form and manner of making applications for compensation. If one has been wronged, the Government decides whether or not he or she has a right to apply for compensation.
The clause gives the Cabinet the right to do the following. The Governor in Council may make regulations prescribing the form and manner of making applications for compensation under Section 22, the information and evidence to be submitted in connection therewith and the procedure to be followed in the consideration of applications for compensation. The Government is deciding to be its own court and master. Second, the Governor in Council may make regulations prescribing the period within which applications for compensation must be made and prescribing the criteria to be used in determining the eligibility of any person for compensation. The Government is setting up its own court of law here.
The Governor in Council may also make regulations prescribing the methods and criteria to be used in assessing any deprivation of property for which compensation may be paid.
The legislation goes on to say in subclause (e) that the Cabinet has the right to prescribe the maximum amount of compensation that may be paid to any person either generally or with respect to any particular deprivation of property. If one has lost a great deal of property or has been wronged to a great extent financially, there is a limit to what one can get and the rest is simply lost.
The Cabinet also has the right to prescribe the terms and conditions for the payment of compensation. The Cabinet provides for the payment of compensation in lump sum or in periodic payments. The way claimants are to be paid is also laid on. That is not quite the way the business world works today. One does not draw up one’s own conditions of payment. The Government will provide for payments of compensation on a term basis, establishing priorities among persons applying for compensation on the basis of classes of persons or classes of deprivation of property or otherwise. When talking about classes of persons and who will qualify and who will not, one gets into a very dicey area. This becomes a very crucial piece of legislation. It has some very damaging effects on the individual who is trying to recoup losses.
Part 1, the Public Welfare Emergency Part, deals with fire, flood, drought, storm, earthquake or other natural phenomenon, disease in human beings, animals or plants, accident or pollution, the breakdown in the flow of essential goods, services or resources that results or may result in a danger to
life or property or social disruption so serious as to be a national emergency. The declaration of emergency shall be laid before the House of Parliament within seven sitting days after the declaration is issued. The declaration of a public welfare emergency expires at the end of 90 days unless the declaration is previously revoked or continued in accordance with the Bill itself, but the Public Welfare Emergency part under Orders and Regulations lists a number of items in Clause 6, some of which have already been mentioned. I think that the requisition, use or disposition of property in paragraph (c) affects property once again. The clause deals with the regulation of the distribution and availability of essential goods, services and resources and the authorization and making of emergency payments, the establishment of emergency shelters and hospitals, the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof. It deals with a number of constructive things but still many things are to be seconded from people and industry for the purpose of dealing with an emergency.
Parliament may revoke a declaration of public welfare emergency in accordance with Clause 56 or Clause 57 of the Bill. There is a procedure for this outlined in the legislation. Clause 10(2) is important to the extension of such declarations under the public welfare section because it outlines further conditions for how these things can be handled.
Provincial jurisdiction and federal-provincial relations are given paramount consideration in the Bill. In cases of emergency, the Government may have to act before consulting a province and there is provision to do that. One wonders if in serious cases it will always be possible to consult the provinces ahead of time and get their feelings on these things, because some serious decision will have to be made in a hurry. That is what the legislation is there to do.
The Public Order Emergency Part of this legislation is a very key part of this Bill. A public order emergency means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency. A public emergency order expires at the end of 60 days and it too can be revoked before that time or it can be continued thereafter. A motion for confirmation of the public order emergency must be laid before Parliament and if Parliament happens to be prorogued, it will have to be recalled.
What does a public order emergency declaration contain? That is set out in Clause 15 on page 8 and is a very crucial part of the legislation. Clause 15 contains a list of items and reads as follows:
(1) When the Governor in Council is of the opinion that a public order emergency exists in Canada and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 23, may, by proclamation, so declare.
(2) A declaration of a public order emergency shall specify
(a) concisely the state of affairs constituting the emergency;
(b) the special temporary measures that the Governor in Council anticipates may be necessary for dealing with the emergency; and
(c) if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend. The proclamation may be continued—
The Acting Speaker (Mrs. Champagne): Order, please. At this time I must interrupt the hon. Member.
It being 12.30 o’clock, pursuant to order made Wednesday, November 4, 1987, the house will revert to presenting reports from committees for the purpose of enabling the Chairman of the Standing Committee on Finance and Economic Affairs to present the committee’s report on tax reform.
MEASURE TO ENACT
The House resumed consideration of the motion of Mr. Beatty that Bill C-77, an Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence
thereof, be read the second time and referred to a legislative committee.
Mr. Len Hopkins (Renfrew—Nipissing—Pembroke): Madam Speaker, under the Public Order Emergency Part, which is Part II of Bill C-77, there are some very strong measures introduced to be put into practice. It is important that we are not conned into thinking that Part II, Public Order Emergency, is a light piece of legislation. It is very strong in its statements. It certainly infringes on civil liberties to a great extent. If we go on to the International Emergency Part, we find that the declaration outlines the state of affairs. It is very strong. Part III, Clause 25, reads:
“international emergency” means an emergency involving Canada and one or more other countries that arises from acts of intimidation or coercion or the real or imminent use of serious force or violence and that directly threatens the sovereignty, security or territorial integrity of Canada or any of its allies or any other country in which the political, economic or security interests of Canada or any of its allies are involved.
While we have an alliance to which we belong, the legislative committee will have to look very carefully at this clause under “International Emergency” which can drag Canada into a conflict as a result of another country’s activities or problems. You will know that when the War Measures Act was invoked in 1970, Madam Speaker, it expressly overrode the Bill of Rights. Furthermore, we had no Charter at that time. We now have a Charter. Let me point out that if the Diefenbaker Government in 1960 had not specifically stated that the Bill of Rights did not override the War Measures Act we would have had those measures controlling the War Measures Act in 1970. It is, therefore, understandable that my Leader lamented having to use the Act, precisely because there was no check on the exercise of its powers. That situation no longer exists today and it will not exist under this legislation. I want to quote a statement which the Leader of the Opposition (Mr. Turner) made in the House on October 16, 1970. During the debate on the war measures legislation at that time he said:
The rule of law is the essential condition not only for the existence of the state but for the existence of individual liberty within the state. Freedom is the precondition of liberty, and restraint is the beginning of freedom. The rule of law is the source and condition of that restraint, and through it the freedom and the liberty of the individual in society are maintained.
Insurrection and violence are not only a total denial of the constituted authority of the state but are a denial of the liberty of the individual himself who depends upon the controlled organization of the state. This type of violence defies not only the total integrity of society as a people but the individual integrity of every person in that society.
An important part of this legislation is that Part II, Public Order Emergency, if strictly enforced, gives a cruel Government, a huge Government or a Government emotionally motivated rather than rationally motivated, maybe trying to get political points by a show of force, the basis for that Government to act. This particular section of the Bill is one that we will have to look at very carefully while scrutinizing the legislation in a legislative committee.
I want to say to the Minister of National Defence (Mr. Beatty)—and this is no reflection on him as a person in any way whatever, but from comments I have been getting, the populace would feel a little more relieved if the administration of Bill C-77 when it becomes legislation were under a Minister of the Government other than the Minister of National Defence. As I say, there is nothing personal read into that, but just an uneasiness that some people feel.
The fairness that must be built into this legislation is extremely important. While the War Measures Act was important to the free world during the crises of World War I and World War II, let us keep in mind those people we recently remembered at the cenotaphs across the country who fought and died by the tens of thousands to leave behind a Canada on which the rest of us could build. It is extremely important today that we remember them and the Canada which they wanted for the future.
We must consider what must be done in this Bill to accommodate the civil liberties, the property rights and the freedom of Canadians, whether it be during wartime or peacetime, so that under the part dealing with compensation those people be given the right to get compensation on an equal basis before the courts of Canada.
One writer discussing this Bill has stated:
Those whose liberties—or property—were harmed would be given the right to compensation.
The only worry here is that a section of the Bill provides a long list of regulations under which the Cabinet could define the ambit of compensation. A mean-spirited Government, or one intent on post facto justifications for its actions, could make compensation unnecessarily limited by restrictive regulations. Fortunately, a Federal Court judge would hear appeals from ministerial decisions, though he could not unilaterally increase the monetary compensation offered by the Government. Even with the Federal Court appeal, the Government has set itself up too much as judge and jury over compensation awards.
That was written by Jeffrey Simpson in The Globe and Mail. These are important things to consider at this time. We should also be thinking very seriously of how we will maintain a fair balance between what is needed in times of war as emergency legislation and what is needed in peacetime. We certainly do not want this law to be put into full force during times of peace. I refer to Clause 1, as an example, which relates to property. That should only be implemented under very extreme conditions.
No legislation of this type is perfect and this Bill certainly is not. Part II bothers me a great deal. Clause 1 contains some very strong regulations and orders. Let us get this Bill into a legislative committee where it can be studied clause by clause and where the long-term results of it can be considered. Another important point is that people must be allowed to appeal to the Federal Court, at which level assessors assess the terms of compensation for citizens who have been wronged. Citizens should have the right to appeal to the Supreme Court of Canada as they do from any other court in Canada. Even
the War Measures Act contains the right to begin at the county court level and continue through to the Supreme Court. This Bill should offer no less. If it does, it will appear to be stronger in some sections than the War Measures Act itself.
Mr. Derek Blackburn (Brant): Madam Speaker, this is the second time I have had the pleasure of standing up at second reading of Bill C-77 to present arguments and a speech. By way of clarification, on the afternoon of November 2 Bill C-76 went through the House like a white tornado and Bill C-77 immediately followed. At that time I was the only one in the House prepared to speak on Bill C-77. No one from the Liberal Party was available and the Minister, who obviously did not think the Bill would come forward on November 2, was out of town on government business I believe. Therefore, with all-Party agreement we have introduced the Bill all over again. I am, therefore, today presenting largely the same speech I presented on November 2, which speech I did not have a chance to complete at that time.
I, along with the Liberal spokesperson, was surprised when I learned that the Minister of National Defence (Mr. Beatty) would be introducing this Bill. My criticism is not in any way personal. It does not in any way reflect on the integrity, honour, or intelligence of our Minister of National Defence It is only that I believe, as I am sure my Party does, that a Bill of this importance and magnitude dealing to a great extent with civil liberties should come under the control of the Minister of Justice (Mr. Hnatyshyn). The implementation of it should be under the Solicitor General (Mr. Kelleher). In other words, it should be primarily a civilian matter, although not exclusively. The Government has put the defence Minister up front with all other Ministers being secondary to him.
I would like to thank the Minister who, in his remarks this morning, responded to some of the remarks I made on November 2 in the abortive introduction of this Bill at second reading. He said that he is willing to consider amendments which would somehow protect the right to strike, on a national basis in particular, but also on a provincial basis. He is also willing to consider amendments which would sharpen the very vague definition of an international emergency in this Bill. Upon reading the Bill one wonders to what extent Canada would be involved in international problems of another country in addition to those of Canada. The Minister also mentioned that he would be prepared to reconsider curbing the limits of search and seizure.
These are important concessions on the Minister’s part. However, I wish to state at the outset that there are many other parts of Bill C-77, the so-called Emergencies Act which replaces the War Measures Act, which we think are flawed and deserve a lot of intensive scrutiny at the committee level. The Minister said this morning that he believes as well that this Bill should be given very intensive and critical scrutiny at committee stage.
I hope that all Parties will offer their general views on Bill C-77 at second reading and that we will be in no hurry at committee stage but will be free to listen at all reasonable length to listen to the very best authorities in the country, as well as ordinary Canadians who were entrapped by the War Measures Act in October, 1970, and all other interested persons and organizations, in order that when we finish with Bill C-77 this House will have passed an Act of which we can all be proud and that we will have no reasonable fear can be misinterpreted or misapplied.
Let me say at the outset that New Democrats are determined that the War Measures Act should never be used again. That is why we are pleased that the Minister has brought forward a proposal to replace the War Measures Act. It has been a long time coming and I congratulate him for finally bringing this debate to the floor of the House of Commons. His Bill is not perfect by any stretch of the imagination, as far as we in the New Democratic Party are concerned. I will use this opportunity to explain in detail my very deep concerns relating to Bill C-77.
First, I want to say that I hope the parliamentary process, particularly in committee, will be allowed to work. We have heard many nice words from the Government about the spirit of parliamentary reform. In truth, we have made some progress in this Parliament, thanks to the work of the committee led by the former Member for St. John’s East, the present Lieutenant Governor of Newfoundland.
Now it is time for the parliamentary process to shine. We will need many hearings and a great deal of testimony from both expert witnesses and ordinary Canadians, as I mentioned a few moments ago. This is an issue which touches the very lives and liberties of every Canadian. It involves an issue that cuts to the very heart of the Canadian consciousness. Is there anyone in this House who was not in some way touched by the events of October, 1970?
I recall, Madam Speaker, that I entered a by-election campaign only a few months after the October crisis. There was still a lot of very deep concern in my part of the country in the spring of 1971 with regard to the invocation of the dreaded War Measures Act by the Trudeau government.
Who could not be affected by the profoundly un-Canadian sight of Canadian troops in the streets to suppress the domestic troubles of their fellow citizens? That is why I am concerned with the paramountcy of the Minister of National Defence as opposed to the Minister of Justice and the Solicitor General. Certainly not all, but most conceivable uses for this Act, when passed, would be of a civilian nature. Heaven help us if we ever go to war again. It would very possibly be the last war mankind would ever fight. Although I hope it never happens, we may at some time in the future have to deal with civilian unrest in the country during which our laws and the order of government would be severely tested. I still maintain that the Criminal Code, the police forces, the courts, the Crown prosecutors, defence lawyers, Minister of Justice and the Solicitor General should all be primarily involved in Clauses 1
and 2 of the Bill. Clauses 3 and 4 inevitably would lead to the involvement of the Department of National Defence.
I do not want to reopen old wounds. Instead, I hope this Bill as amended will complete the healing process. Together with the evolution of our Canadian Constitution, I hope that the replacement of the War Measures Act will close one chapter in our history and usher in a new era where the rights and freedoms of all Canadians are honoured and respected at all times and in all circumstances.
The roots of the War Measures Act are deep. It goes back much further than 1970. The original Act was born in August, 1914, when the First World War broke out. The government of the day found that it had virtually no laws to deal with the situation, so it rushed through the War Measures Act. It was modelled on foreign legislation and received little debate. It had virtually no consideration. In those days, what England did we more or less automatically followed. In effect, it gave the government a blank cheque. Parliament and the people of Canada surrendered all their rights.
The War Measures Act allowed censorship, arbitrary arrest, travel restrictions and government control of trade and property. There were no rights untouched. In effect, it provided for an authoritarian government to replace a democratic government. Perhaps we should not be surprised by the problems this caused later on. It was a recipe for disaster from the outset. The process was so poor, and there was so little thought, that a bad law was perhaps unavoidable. Let us not repeat this fatal error. We need full debate and we must hear many views. We should deliberate in an air of calm reason. There is no emergency at this time. We have lots of time to consider what we are setting in place for future generations. It is the future about which we must be concerned, for if the War Measures Act shows us one thing it is that people suffer for past mistakes.
Following the Russian Revolution suspected dissidents were interned in Canada because of the extraordinary powers in the War Measures Act. The Communist Party was outlawed. Even Jehovah’s Witnesses were suspect. The political and religious freedoms that we are bound to uphold in this place were denied to Canadians.
It is very serious when a democracy resorts to authoritarian methods in order to fight an authoritarian enemy or potential enemy. I know all Parties would agree that we cannot destroy our own democratic way of life or in any way diminish the democracy we have established in this country in our fight against subversion, insurrection or any other kind of threat to the national order. It is not easy to define law and regulations within those parameters, but it is something this Bill must do before it becomes law. It is the responsibility of the committee and the Minister to ensure that we achieve that balance between order and freedom and democracy.
During the Second World War, thousands of Canadians of Japanese origin were interned. Racism raised its ugly head. The bitter legacy of this tragic episode still haunts the government today, and Japanese Canadians are still waiting for redress and justice.
As I have already mentioned, many were arrested without warrants and held without bail in the October crisis of 1970. The Right Hon. Leader of the Opposition (Mr. Turner) will remember that well because I believe he was Minister of Justice at the time. Many other Members will recall that sorry episode.
I know that New Democrats remember it well. We have our own reasons. The public approved of the measure and Parliament favoured the proclamation by a vote of 190 to 16. The 16 were ridiculed at the time, but they stood firm and history has vindicated them. That is one reason that the memory of Tommy Douglas is held in such high esteem throughout the country.
Later, of course, successive Liberal governments recognized their error and tried to reform the War Measures Act. However, nothing ever came of this in the House. That is why it is galling to listen to Liberal Members criticize this Bill. They were in government for 14 years after 1970 and did nothing to correct this problem.
One effort to at least examine the problem came from the Task Force on Canadian Unity. It recommended that the government should have to seek parliamentary approval within a specified time for extraordinary powers. It also recommended that the government state the reasons for its actions and the duration of the emergency powers in its proclamation. The task force further recommended that provincial powers and individual rights be safeguarded to various degrees, depending on whether the nation was at war or peace, happy to see the bones of some of those recommendations in the Minister’s proposals. We will try to improve upon them in our committee deliberations.
Of course, we will have help. I do not pretend to have all the answers in this debate. I do not think anyone has all the answers. I hope that experts from such groups as the Canadian Bar Association, Canadian Civil Liberties Association and others will give us their suggestions. I would strongly advise that some of those Canadians who suffered from the excesses of the War Measures Act come before our committee as well. I want to know if they would feel any safer with this proposed law on the books. If this Bill would not prevent such disastrous mistakes from happening again, then it is not worth considering. We should also look forward to hearing from the Minister in committee. It will be interesting to know what thinking went into this Bill. For instance, the McDonald Commission did not believe that the Government needed any additional emergency powers in peace time. What has changed since then? The Mississauga train derailment required mass evacuation, but that was carried out without resorting to the War Measures
Act. Why does the Government need such powers now? Obviously these are questions that will require a great deal of intensive examination of both the Minister and his officials as well as other interested witnesses.
I have other specific concerns about this Bill which I want to put on the record now. The part of the Bill dealing with public welfare emergencies speaks of an emergency as “a breakdown in the flow of essential goods, services or resources”. This seems to have very serious implications for the right to strike.
A recent Supreme Court decision stated that the right to strike is not protected by the Charter of Rights and Freedoms. Therefore, the Minister’s assurance about this Bill, being subject to the Charter, is of no comfort to the working people. However, this morning the Minister alluded to an undertaking he would make to look into this specific issue once again at the committee stage.
Another recent example shows that this power may not be necessary, and it is the recent rail strike. While it was an unfortunate incident, it illustrates the point that I am making this morning. During that strike the Government brought forward legislation that returned the rail workers to their jobs. The Government was not prevented from acting quickly and it did not use the War Measures Act. Why, then, does it seek new special powers in peace time?
In response to the Government’s back-to-work legislation, there were protests on Parliament Hill and elsewhere. Peaceful protest is the right of those affected. They had the right to register their displeasure, but under this Bill such a process could have been forbidden. Does the Government need such powers? Should it have them?
I do not want to argue the point, but I believe we could add the three or four minutes taken by the Hon. Member for Mississauga (Mr. Blenkarn) when he presented his report. However, if you want to call it one o’clock, that is fine with me.
The Acting Speaker (Mrs. Champagne): I am sure the Hon. Member would want to continue, as he has quite some time left, once we resume debate this afternoon.
It being one o’clock I do now leave the chair until two o’clock this day.
At 1 p.m. the House took recess.
MEASURE TO ENACT
The House resumed consideration of the motion of Mr. Beatty that Bill C-77, an Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, be read the second time and referred to a legislative committee.
Mr. Speaker: When the House rose at 1 p.m. the Hon.
Member for Brant (Mr. Blackburn) had the floor.
Mr. Derek Blackburn (Brant): Mr. Speaker, just before we adjourned for lunch I was dealing with that part of Bill C-77 which I suggest to you may have some adverse impact on the right to strike, particularly strikes of a national nature or even of a provincial-wide nature. However, the Minister of National Defence in his remarks this morning said that he was, and I am paraphrasing him now, prepared to take a look at that part of the proposed legislation to see if it could be further clarified so that there would be no question that national strikes, peaceful strikes or legal strikes would in any way come under the constraints of this proposed legislation.
Probably the most contentious part of this Bill is that which deals with public order emergencies. This is the type of situation that gave rise to the use of the War Measures Act in October of 1970. This part takes its definition of a threat from the Canadian Security Intelligence Services Act. This fact alone should make us very cautious, because of the difficulties already encountered with CSIS in determining what is subversion and what is legitimate dissent. This was one thing, of course, that perpetually bothered or confused the RCM Police when it was in charge of intelligence or counterintelligence, the internal security of this country, over many years.
I suggest to you, Mr. Speaker, that there is a very clear and definitive difference between subversion, which is clearly an illegal act, and legitimate dissent, which should not only be tolerated in a democracy but, indeed, should be encouraged. Again, the Minister assured us that the definitions of subversion and legitimate dissent would be clarified or at least explained more fully in committee. However, that does not obviate the necessity to call expert witnesses to help all
members of the committee, indeed the ministerial officials as well, in clarifying those two terms.
It has been very difficult over the years to come to a clear and understandable interpretation of what is subversion and what is legitimate dissent in a democracy. For example, the CSIS Act cites activities, and I quote, “in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state”.
I would remind the Minister that the Prime Minister (Mr. Mulroney) and the Secretary of State for External Affairs (Mr. Clark) recently met with Oliver Tambo of the African National Congress. The ANC has not renounced violence in its fight against apartheid. I hope the Prime Minister and the Secretary of State did not promise to support the ANC, otherwise they might have to have themselves arrested. I said that in my speech of two or three weeks ago during the socalled abortive attempt to get Bill C-77 introduced at second reading. I did not do so in a frivolous way. If one looks at this proposed legislation, it is possible for lawyers, or people with legal training, to interpret the proposed Bill in that way. That is, of course, obviously ridiculous.
Others on the government benches have had contact with the Reagan administration which supports the efforts of the Contras in Nicaragua where they have used violence. President Reagan spoke of their cause in this very Chamber. Should that be illegal in Canada? Again, that is not a frivolous statement because within the parameters of this proposed legislation it is quite possible that someone could argue that point.
A public order emergency also gives Cabinet the right to prohibit public assembly. But how could a Canadian avail himself of the right to peacefully protest the declaration of the emergency powers? His right to disagree with Government policy would be severely limited. Again, that would be inhibiting or diminishing a person’s right to dissent, in a country such as ours which is a democracy and which prides itself in being a liberal democracy.
Similarly, a legitimate process against the emergency declaration could be suppressed and no one would find out. The Government could censor the media or simply forbid travel to the troubled area. How could anyone find out if the declaration of an emergency was justified, if no one was allowed in or out of the area? How could parliamentarians rally public support against an unjust proclamation if the public were being kept in the dark? I suggest that those are all legitimate questions and concerns that all of us on both sides of the House should have at this time in the proceedings with respect to Bill C-77.
I also have concerns about the clause dealing with international emergencies. The definition of an international emergency is extremely broad. The Bill speaks of a threat to “any other country in which the political, economic or security interests of Canada or any of its allies are involved”. That pretty well covers the global waterfront.
Our allies include the United States and western Europe, which have very extensive trade interests around the world. In fact, it is difficult to think of any country on earth where Canada, the United States, or western Europe does not have some type of political or economic interest.
At the present time there is a perfect example in the Persian Gulf. The United States is escorting tankers through one of the most militarily dangerous stretches of water in the world. Other European nations are also involved because they have an economic interest in oil from that region. What would happen if another Stark incident blew up into a major confrontation? Canada could become involved under the terms of this legislation.
There would probably be a great debate as to whether Canada’s vital interests were involved, but the Government would have the clear right to mobilize first and answer those questions later. I would not want to wake up one morning to read that the Government had declared an international emergency and have to wait for the matter to come before Parliament at some future date.
One of the reasons I would not be comfortable in that situation is because of the other extraordinary powers that the Government could assume during a perceived international emergency. For example, Cabinet could authorize search and seizure without reference to the courts. Why does it need to bypass the justice system? Are the courts not to be trusted in an emergency? Have judges in this country ever shown themselves to be less than vigilant in their devotion to national security? It is their job to balance the interests and rights of the state and those of the individuals. Yet the Government wants the right to enter into any home without reference to the courts at any level.
Finally, Parliament must consider the total discretion granted to Cabinet under the terms of the Emergencies Act. It is difficult to see any difference between this clause and the current War Measures Act. I wonder why some powers could not be set out in the Bill. Canada has been in two world wars. Does the Government not have any idea of the powers it needs to mobilize the Armed Forces? Could they not be added to the powers listed in the other clauses of the Bill?
The clause on parliamentary supervision also needs to be debated. This is the real heart of the Bill where all the restraints on Cabinet authority will be tested. It is good that the Government must refer the matter to Parliament, set out the powers that it has assumed, and justify its actions by stating the nature of the emergency.
As I look across the House and see the huge government majority, I have to ask myself whether any majority government would see its powers checked by its own members. Somehow I doubt it. It did not happen when the Liberals were in power in October of 1970. We have just seen a Bill on refugees passed by the Conservative majority which many
Canadians feel may violate their rights. Yet the Bill passed overwhelmingly. One has to wonder if such governments are to be trusted with the absolute powers set out in the Bill we are presently debating.
Senate reform is also an issue in this Bill. The Conservative Government likes to rant and rave about the irresponsible Liberal Senators holding up a Bill to grant a monopoly to multinational drug companies. The Prime Minister blusters about abolishing the Senate, while he appoints his friends to that place. Here is the very same Conservative Government conferring new powers on that other place, the Senate. This Bill proposes that a government declaration would have to be supported by both Houses. A body that is responsible to no one could block the actions of an elected Government. Similarly and more importantly, the Senate would have to concur in any motion of this House to revoke powers of the Government. I look forward to hearing constitutional advice on this matter. I also look forward to hearing the Government argue the case for giving more power to its political enemies in the most irresponsible chamber in existence today in the democratic world. In fact, I cannot conceive of any other democracy, as we practice democracy in the world today, that would tolerate an institution such as the Senate here in Canada. It is not elected and virtually is not responsible directly to any constituency in the country. Senators are appointed for life or until age 75.
I also have some difficulty with the provisions of the Bill that govern the parliamentary review committee. This body would be sworn to secrecy and review secret orders and regulations from the Cabinet. If getting the powers of a majority Government revoked in open Parliament is difficult, then getting them rolled back in a closed committee would be next to impossible. How could any parliamentarian raise public outcry against an unjust regulation if he or she were gagged by an oath of secrecy? That provision will have to be examined very closely.
If the provisions for scrutiny are doubtful, then the suggestions for compensation are virtually impossible. The Minister is setting himself up as judge and jury. He would set up all the rules governing compensation for damages. He could limit the Government’s liability because he would have the right to put an absolute ceiling on all claims. He would not have to answer to anyone. The Bill does not even guarantee the right to appeal. It only states that the Minister may appoint an assessor. Even if the assessor were to overturn the decision of the Minister, he or she could not exceed the limits set by Cabinet. The person seeking damages would have no recourse to the courts if he or she were unsatisfied. This obviously must change.
We only have to look at the dispute between the Government and the Japanese Canadian community to see where trouble could arise and no doubt would arise unless this clause of the Bill were deleted or rewritten. We owe the Japanese Canadians something. I am talking not only about an apology or compensation; we owe them more than that. We must show those Canadians who have suffered that we have learned from the abuses of the past. We must show them our determination that such abuses will never happen again in this country. We must restore their faith in this country and its democratic, political, and judicial processes.
We can show Canadians that this country has grown and developed into a more fair, just, and honest society, and they can take heart in that growth. I would urge all Canadians to help us construct a new and better law to replace the War Measures Act. I would urge all Members of this Elouse to listen to Canadians, hear their concerns, and put their ideas into this Bill.
My fear is that Bill C-77 if unamended or unchanged will simply and perhaps irrevocably enshrine already existing Orders in Council processes in statute law. I suggest that somehow the Government feels that that transition would cleanse it or make it respectable. When a Government takes arbitrary or indeed authoritarian measures, regardless of what the issue may be, that Government must be extremely careful that it does not do substantive or irreparable damage to the democratic processes in that country. Of course, we are here today discussing our own country, Canada.
As I stated this morning before the luncheon adjournment, we in this country have a tremendous responsibility that, in the struggle against obvious legal subversion, we do not in fact subvert the democratic processes along the way. That is a very delicate and difficult balance. Therefore, this Bill must be amended to make certain that we do not in any way impinge upon those basic freedoms that we cherish so dearly in this country, and which all Parties support.
I feel that it will take more discussion, and more intensive investigation and questioning of witnesses before this proposed legislation comes up to those minimum standards of maintaining the democratic processes in Canada during times of stress, during times of emergency, and even during times of war, although I concede that in an outright war, even in a democracy such as ours, there may from time to time have to be certain measures taken to reduce, diminish, or at least bring into focus and control some of those democratic processes. However, certainly in peacetime in regard to internal unrest or internal problems, I do not see any reason that any Government of any political stripe should have to lessen or diminish the democratic rights of Canadians.
In conclusion, once again I want to list the basic concerns which my fellow New Democrats and I have in respect of the Bill. I want to make very clear that we intend to put up many speakers at second reading so that we will have an opportunity to put across various points of view, all of which are related to the Bill.
My personal concerns are the following ones. Does public welfare emergency infringe on the right to strike? This
morning the Minister said that he would look into that more thoroughly at committee stage.
In terms of public welfare emergency and of CSIS’s definition of a threat, there is a difficulty in discerning subversion from dissent. For example, raising funds for the ANC or the Contras could be illegal.
How could people protest public order proclamations if the right to assembly were denied or suspended?
How could the press report on abuses if it were restricted by travel constraints in the Bill and/or its news items were censored, which is provided for in Bill C-77?
The international emergency definition is very broad. Where do allies like the United States not have interests? Where do our European allies not have interests? Where do we not have interests? We virtually have economic and, at times, political interests world-wide.
International emergency removes search and seizure authority from the courts. I think this is extremely important. Why do we not establish faith in our judicial system which is separate from the political or independent of the political? I cannot think of a more objective and non-political route to go than to allow the right of search and seizure to remain with the courts or to entrench that right with the courts, with the judicial system. I have much more faith in the judicial system than I have in perhaps some future Minister of National Defence, Prime Minister, or Minister of Justice of whatever political stripe who may wish to abuse his rights, privileges, and powers. I have far more faith in the judicial system than I have in individual cabinet Ministers if they were tempted in any way to usurp power beyond the powers already provided for in the Bill.
War emergency, for example, is another problem because it gives total discretion to Cabinet. It is only after the fact that Parliament itself, the legislative branch of the House, would be apprised of the details.
I am worried about the new powers being conferred on the Senate. These days we talk about Senate reform, but we do not know which way Senate reform will go. In fact—and I am speaking personally here, not on behalf of my Party—I abhor even the thought, or I shudder at the thought of an elected Senate. I honestly do.
People tell me every day in my own constituency—and no doubt Hon. Members hear it in their constituencies—that we are already over governed. We have municipal Governments, regional Governments, provincial Governments, and a federal Government. Now we have First Ministers’ Conferences with tremendous clout and influence to bring to bear regional concerns on the Government in Ottawa, and we want an elected Senate. Obviously, if we have an elected Senate, it will demand a lot of powers that we have in this Chamber. The Government may complain today that it takes so long to pass Bills, for example, the pharmaceuticals Bill. Does anyone in the Chamber have any idea how long it would take to get a Bill like that passed if we had an elected Senate?
All one has to do is cast one’s eyes to the South, to the United States. They envy our system up here, particularly the administration in Washington, because relatively speaking we get things accomplished much faster in our system than they do in the United States. However, we have people talking about an elected Senate. If there were a choice, obviously I would advocate the abolition of the other place. Quite frankly, I do not think it does any good on balance. If we must have a Senate, for Heaven’s sake leave it the way it is.
Mr. Crofton: I thought we were talking about Bill C-77.
Mr. Blackburn (Brant): I am talking about Bill C-77. Bill C-77 gives the Senate equal powers with the House of Commons, and it is not directly accountable to any constituency in the country. That is what is so deplorable about it.
Maybe this is sort of a backhanded way of pushing us toward an elected Senate. That is the point I was getting at. If that is the intent, then Heaven help us if we have one more elected branch of our legislative process.
Finally, how could Members of Parliament protest orders if they were gagged by secrecy oaths taken upon entering or accepting a position on the committee?
That is all I have to say for the time being at second reading. There will be many other speakers from the New Democratic Party who will enter the debate at this stage. We look forward to pushing forth some substantive changes at the committee hearings. I hope the committee hearings will not be rushed. 1 hope we will proceed with them slowly, in a reasonable way, and over a lengthy period of time so that everyone who wishes has a right to be heard.
Mr. Hopkins: Madam Speaker, I rise on a point of order.
The Hon. Member for Brant (Mr. Blackburn) made a statement at the beginning of his speech which was inaccurate. I am sure he would not want to leave it on the record as such. He said that on November 2 there was no Liberal in the House of Commons to speak on this Bill when it came up on that date. If that were the case, then why did the Hon. Member for Vanier (Mr. Gauthier) appear as the first speaker on Bill C-77?
The Hon. Member for Brant knows full well that the procedures on that day were such that they were erased from the record. He knows that bad procedure was used on the particular day.
The reason for this is that debate on the previous finance Bill which was before the House dropped because NDP Members who were intending to debate it all day failed to put up a speaker. All of a sudden we were faced with the next order of business in the House, Bill C-76. The Hon. Member for Brant could not have been here then because his name does not appear. Nobody’s name appears for Bill C-76 because no one was expecting it to come up.
However, by common courtesy in the House, it is normal that official critics or spokesmen for political Parties are given some warning so that they can get into the House from other duties to speak.
In all fairness, the proceedings with regard to Bill C-77 on that day were erased from the record. In fact, on November 4, the following appeared in Votes and Proceedings:
By unanimous consent, it was ordered,—That, notwithstanding any Standing Order of this House, the proceedings on Bill C-77 an Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, which took place in the House on Monday, November 2, 1987, be nullified, and that, the entry on the Order Paper and Notices under “Government Bills (Commons)’’ be changed to indicate that the motion for second reading and reference to a legislative committee of the Bill had not been duly moved, seconded and proposed.
As a result Bill C-77 was listed again as an order of business on the Order Paper for November 5.
Finally, I was in my place in the House when the Hon. Member rose to speak that day. The only reason he was recognized ahead of me was that the Hon. Member for Vanier had spoken first. He knows that. I am sure he would not want to leave that inaccuracy on the record, saying that there was no one in the House or that he was the only one in the House when the Bill was introduced that day.
Mr. Blackburn (Brant): Madam Speaker, I thank my friend for raising this point of order. I apologize to him. I did not see him in his place, but I want to clarify one point, if I may. It relates to the same point of order.
The Hon. Member refers to the Hon. Member for Ottawa— Vanier (Mr. Gauthier) as having made an intervention with respect to Bill C-77. We all know what happened. The Hon. Member stood up and asked a question. He said, “What’s the Bill about?” If that is an intervention, an intelligent intervention on a Bill, then I would like to know what a real intervention is in debate. That is why the Hon. Member who just spoke did not have a chance to get up. His Whip pre-empted him by asking, “What’s it all about?” Had he not got up, then the Hon. Member would have been recognized and he could have spoken. That is the explanation.
The Acting Speaker (Mrs. Champagne): Resuming debate.
Mr. Hopkins: Madam Speaker, on the same point of order. The Acting Speaker (Mrs. Champagne): The Hon. Member will understand that that is not really a point of order. The Hon. Member has had a chance to give his version of the events that day. The Hon. Member for Brant (Mr. Blackburn) gave his version. Now that the Bill is before the House to be debated today, we should proceed with the debate. Resuming debate, the Hon. Member for Lévis (Mr. Fontaine).
Mr. Gabriel Fontaine (Lévis): Madam Speaker, I am pleased today to speak on this emergency measure legislation which is to replace the War Measures Act. With this Bill Parliament will have the authority to phase in preventive and preparatory measures to deal with potential national disasters. The War Weasures Act is considered too sweeping and too drastic a legislation for peace time crisis or emergency situations. Quite extensive powers were thereby granted to the governor in council which could proclaim the existence of an emergency situation, then make such orders or regulations which it deemed necessary or advisable for the security, defence, peace, order, as well as welfare of Canada. The purpose of the new bill which the Government has introduced is to eliminate the need to react to national emergencies by adopting hastily drawn special legislation which are excessive or improperly drafted because of the commotion and confusion surrounding any crisis.
The Emergency Act will apply only to national emergencies. A national emergency is defined as an urgent and critical situation of a temporary nature that imperils the well-being of Canada as a whole or that is of such proportions or nature as to exceed the capacity or authority of a province to deal with it and thus can be effectively dealt with only by Parliament in the exercise of the powers conferred on it by the Constitution. Madam Speaker, what are the major areas of application of this legislation? I will mention four. First, public welfare emergencies, including natural catastrophies and serious accidents which affect the welfare of the people, which exceed the capacity or authority of the provinces to deal with them. Public order emergencies: those are emergencies which arise from threats to the security of Canada and that are so serious as to be national emergencies which exceed the capacity or authority of any province to deal with them. International emergencies: they are emergencies involving Canada which arise from acts of intimidation or coercion or the real or imminent use of serious force or violence and that directly threaten the sovereignty, security or territorial integrity of Canada or any of its allies. War emergencies: they are armed conflicts, real or imminent, involving Canada or any of its allies.
The legislation contains several safeguards which make it an obligation for the Government to answer to Parliament for its use of these emergency powers. Parliament shall be convened within seven sitting days after a declaration of emergency is issued. It shall be given a concise explanation of the reasons for issuing the declaration; and opportunity to debate the question and to adopt or reject a motion for confirmation of a declaration of emergency; further details on specific measures the Government intends to take to deal with the situation; and a opportunity to revoke the declaration of emergency, with its orders and regulations.
Where the emergency situation applies to only one province, the federal Government may not declare a state of emergency
until the province concerned has indicated it is unable to cope with the situation. The Government has an obligation to consult the province before declaring a state of emergency. Madam Speaker, we have heard representations by the Liberal Opposition and socialist Members. Members of the Liberal Opposition should make it clear to Canadians that our Bill is quite different from the 1970 legislation which the Liberals used to give themselves the authority to enter our homes without an invitation.
The House will recall that the legislation was particularly hard on Quebecers. This legislation opened people’s purses and broke into their homes and private lives. This legislation was abused by the very same people who today are against changes, by the people who were there in 1970, some of whom are still here today which is, unfortunate for this country. Our Liberal colleagues are opposed to replacing the War Measures Act they themselves used with unfortunate results, creating divisions between Canadians. Madam Speaker, that seems to be a specialty of Hon. Members opposite. Liberals seem to specialize in trying to split Canada in two. We saw what they did in 1970. We saw what they did in 1982, in Victoria, and today, we see this shameful association with the socialists, again to divide this country, and 1 am thinking of the free trade issue which is so important to Canadians. One wonders whether they really want a country, a Canada from sea to sea, or prefer a country that is split in two.
The Liberals wonder whether, despite the unprecedented guarantees offered in this new legislation, it might not be subject to abuse. Where were their scruples when, for instance, they were about to apply the War Measures Act in 1970? The Liberals are trying to amalgamate the existing legislation with the new Bill. They would have us believe that Part IV of the Emergencies Act is practically identical to the War Measures Act. They have also said that since the Charter applies to the War Measures Act, there is really no difference between the two texts. They even believe that the temptation to resort to the Emergencies Act will be greater since according to them, this legislation gives the impression of providing more guarantees than the War Measures Act and would be easier to invoke.
Such statements are totally unfounded. Emergencies Act Part IV has to do with, and I quote:
“War or other armed conflict, real or imminent”.
The War Measures Act has to do with, and I quote:
“War, invasion or insurrection, real or apprehended”.
Pursuant to the new measure, enforcement of the law may require justification and may be contested. Under the existing legislation the declaration of a state of emergency is contingent upon, and I quote:
“Conclusive evidence that war, invasion or insurrection, real or apprehended, exists”.
According to the Government proposal, decrees and regulations will be subject to parliamentary scrutiny, and Parliament will be free to reconsider and cancel a declaration of a state of war. There is no such provision in the existing legislation.
The Emergencies Act will be subject to the Canadian Charter of Rights and Freedoms; not so for the War Measures Act. The provisions of the new legislation will be limited to 360 days; there is no such time limit on the implementation of the existing law.
The new measure includes provisions concerning compensation for victims of damage or injury resulting from the implementation of the Emergencies Act. There is no such provision in the existing legislation. Finally, before the new act is implemented, the provinces will be consulted and their views will have to be endorsed by Parliament, which is also a first. As to the remarks made by the socialists—so very few of them are in the House today to debate this legislation—they seem to have been inspired by the presence of the Moscow Circus in our region. Madam Speaker, it is probably a matter of affinity between socialism and Moscow’s system. Indeed who can ask why they support everything likely to weaken Canada and criticize what strengthens our country?
They have the same attitude about disarmament. They are for it on the condition that it be carried out unilaterally by the Western countries. You rarely hear, for instance, the Hon. Member for Brant (Mr. Blackburn) speak about what he thinks of the Warsaw Pact. However, you hear him speak about NATO, which is equivalent to speaking against the international credibility of Canada. On the other hand, strangely enough, their former External Affairs critic, who has been replaced, the Hon. Member for New Westminster— Coquitlam (Ms. Jewett), is for arming certain countries, not Canada of course, when such countries want to interfere in the affairs of other countries in a war like and aggressive fashion, and I am thinking about south Africa. Indeed, this is why the leader of the socialist Party replaced his former critic for External Affairs by someone a little less bellicose.
The NDP is agressive when it suits the purposes of the socialist system. They quite approve of having the pacifists in the West and the rockets in the East. This is also the position of the Hon. Member for Brant, Madam Speaker. This reminds me of the very ironic words of a famous socialist, the President of the French Republic. And what does the NDP say about the testing of our own defence system, about the Cruise missiles, for instance?
Having said all this, it is normal for them to oppose legislation which will provide better protection for the Canadian population in case of a serious national emergency? They should honestly recognize, as should our colleagues of the Official Opposition, that there is no cause for concern about the Emergencies Bill, quite the opposite!
This Bill provides a maximum of safeguards. In addition to being subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and to being in compliance with the International Covenant on Civil and Political Rights,
the Emergencies Act will be governed by other mechanisms to prevent abuses. All that we want, Madam Speaker, is that the arbitrary detentions which we witnessed in October 1970, especially in Quebec, a province about which the socialists know very little, a province which they have never understood and where they do not have and will never have any roots, will never happen again, and that is why this Bill should unite us instead of dividing us. The abrogation of the War Measures Act and the adoption of the Emergencies Act should mark a time of peace, in French, Le temps d’une paix, to use the words of an author from Charlevoix.
Madam Speaker, I hope that the members of the Opposition, including the socialists, will help us and stop trying to postpone passage of this Bill.
Mr. Orlikow: Madam Speaker, no one would question the right and necessity of a government in a democratic country to have the power, when there is a real threat to the welfare of the people and the democratic system, to deal with the problem through legislation.
I want to remind the Hon. Member that in October, 1970, the then Liberal Government invoked the War Measures Act and used its power under the provisions of that Act to put 250 Quebecers in jail because there was, supposedly, a threat to the Government of Quebec. They were held incommunicado. They were not permitted to consult with their lawyers. Eventually, after days or weeks, they were released. Not a single one of those individuals was ever charged, tried, or found guilty. It is obvious that the Government over-reacted at that time.
I am not an expert on Quebec, but I am told and have read that many of the people who were locked up at that time were nationalists but had not been supporters of independence for Quebec. Yet, to a large extent as a result of that very sad experience, they later became very active, some of them becoming leaders, in the independence movement in Quebec.
Is the Hon. Member saying that if this Bill, which changes the War Measures Act which we have had since World War I, is enacted the actions which the Liberal Government took in 1970 would not be permitted, that the rights of the citizens in Quebec or in any other province in a similar situation would be protected, that they would have the right which all Canadians should have of being in contact, almost immediately, with their lawyers, et cetera? Is that what the Member is saying? That is not the way we read this Bill and that is not what the Canadian Civil Liberties Association has said.
Mr. Fontaine: Madam Speaker, I am grateful to the socialist Member for Winnipeg-North (Mr. Orlikow) for this opportunity to illustrate once again the difference between this legislation and the one that was enacted by the Liberals in 1970, which made it possible for atrocities to be committed in270 cases, which made it possible for the police under instructions from the Liberals here to enter the homes of Canadians, with no charges being laid later under that Act, as mentioned by the Hon. Member for Winnipeg-North . .. No one was convicted, but it gave the Liberals an opportunity to enter the homes of Quebecers. The same Liberals who in 1982 ignored six million Canadians in Victoria when they had an agreement signed to which Quebec was not a party. They were the same people. I am very grateful to the Hon. Member for Winnipeg- North for this opportunity to remind Canadians of the atrocities with which those Liberals were involved in the 1970’s under a Liberal administration, the former Prime Minister’s Government.
Our legislation is designed to prevent the repetition of such atrocities, and I would be very much surprised if the NDP Members were against our legislative process getting more democratic.
Mr. Orlikow: Madam Speaker, I would like the Hon. Member to answer the question which I put to him a few moments ago. In his view would the passage of this Bill prohibit, or at least limit, the type of activities which took place in Quebec in 1970 or which took place with respect to Japanese Canadians in the 1940s?
The Member has mentioned again, as have many, the comments supposedly made by my colleague, the Member for New Westminster—Coquitlam (Ms. Jewett), about South Africa. South Africa does not have a democratic system of society such as we and many other countries have. The great majority of people living in South Africa who are black do not have the right to vote and have very little right to carry on legitimate opposition to the apartheid laws administered there.
I am not saying for a moment that I advocate violence or armed insurrection. If there are not the changes that I hope all Members of the House would like to see, what other ways are there besides violence and armed conflict, which is one of the ways some of the groups opposing the present system in South Africa are using? It is easy to say that we are opposed to the use of violence and force, but what other methods exist except those if the kind of change we all believe should take place in South Africa is to be achieved?
Mr. Fontaine: Madam Speaker, I will then try to answer the two questions asked by the Hon. Member for Winnipeg-North (Mr. Orlikow). His first question dealt with the purpose of this legislation. Indeed, the purpose of this legislation is to limit and prevent the abuse that led to the atrocities that were committed under the previous Liberal Government’s legislation in 1970. And when the Hon. Member for Winnipeg-North talks about South Africa, he certainly has in mind the position
taken by his colleague formaly responsible for External Affairs, the Hon. Member for New Westminster—Coquitlam (Ms. Jewett), who had proposed aggressive, armed intervention in South Africa, and in this respect credit must be given to the Socialists that their leader found such an attitude would not be supported by the electorate. He decided to muzzle his Member. 1 hope this will answer his question.
Mr. Blackburn (Brant): Madam Speaker, I want to make one comment with respect to violence and oppression. 1 want to remind the Hon. Member and others who question the Hon. Member for New Westminster—Coquitlam (Ms. Jewett), our former external affairs critic, that at the outset of World War II, when the Nazi hordes overran Holland, Belgium, France, Denmark, Norway and other countries, they took away liberty, freedom and democracy in countries where democracy flourished and the rule of law had been strong and vibrant.
During that occupation formerly law-abiding citizens who were Members of Parliament and members of trade unions went underground. In their fight and struggle to restore democracy and gain liberty they had to resort to violence. That is what we are talking about. Sometimes there is no other way. That is the situation facing blacks in South Africa today. As they see it, there is virtually no other way to gain freedom, equality and liberty. Let us not cast the first stone. Our European brothers and sisters did the same damn thing in World War II and I applaud them for it.
Mr. Fontaine: Madam Speaker, I would like to make a very brief comment. When I hear the Hon. Member for Brant, (Mr. Blackburn) comment my own interventions in this House, I feel like asking him whether he is a Member of Parliament in Canada or in South Africa, Europe or Guatemala. Does he represent Canadians in this House or did he receive his mandate from a socialist regime or from some other country?
As Members of Parliament, we should represent the interests of Canadians. What are the socialists doing? They refer to all sorts of countries. I understand that these countries have problems, but we have departments that take care of such matters, we have international organizations and we have an excellent reputation as defenders of world peace. What are the NDP Members think they are doing in this House when they speak for various socialist countries?
Hon. Bob Kaplan (York Centre): Madam Speaker, I want to begin by calling on Members to assert some discipline in the debate. It is difficult enough to decide when the rights and liberties of our fellow Canadians should be taken away, which is the subject of this Bill, and when the Government should be given such extraordinary powers. In my opinion, to discuss events in other countries and to discuss history is a lack of respect for the subject before us, if I may say so.
The use of the War Measures Act in 1970 has been ? challenged. I was a member of the Party that introduced it, and subsequently a member of the Government that defended it. I defend it today.
However, I do not want to be distracted. I believe there is a lot to learn from history. We ought to be attempting to improve the Bill and provide a proper piece of legislation in this field. However, I regret very much the debate being used to rehash the use of the War Measures Act in 1970.
I want to make a point about that. Members of the Government and members of the New Democratic Party have taken the occasion to criticize the former Government for not repairing the defective War Measures Act during the time we were in office. What we have just witnessed shows at least one of the serious difficulties that the Government had in considering and scheduling a replacement for the War Measures Act.
Time after time, past Parliaments used occasions like this to hammer the Government for something that happened in 1970, rather than to address any attempt which the Government might have made to have a modern, contemporary new War Measures Act or replacement for it. I believe that one thing the change of government has permitted is an Opposition which is cooler about emergencies and wants to look at this legislation being brought forward in cold blood, which is the way I propose to view it and the way our critic, the Hon. Member for Renfrew—Nipissing—Pembroke (Mr. Hopkins), has looked at it.
This debate should not be used as a vehicle for attacking the 2 Government, attacking the Opposition or rewriting history. I am fed up with that type of debate. It is one of the features of past Parliaments that prevented the Government from dealing with the issue.
Our criticisms of the Bill are considerable and profound. In fact, I suggest that we would prefer the War Measures Act to this piece of legislation if it is not amended, as I will explain in a moment. However, we are not accusing the Government, as the Opposition was constantly accusing us when we were government, of wanting some special or emergency power to declare an emergency and suspend the rights and freedoms of Canadians at that moment. That was the atmosphere of past Parliaments when emergencies were discussed.
I recall being hammered day after day in the House to reveal to Members of Parliament where I, as Solicitor General, was building my civilian concentration camps and what budget allocation was being made to them. The absurd suggestions made by the Opposition in the past coloured every effort that could have been made by the Government to replace the War Measures Act. Now that we are about to see a replacement, I hope we will replace it without using this debate to try to hammer Mr. Trudeau, who does not deserve it, for bringing in the War Measures Act when some Members of Parliament feel it was not necessary.
I would like to say that I welcome an effort to introduce a properly nuanced War Measures Act replacement. I approve of the idea that there should be a set of circumstances defined in the law of graduated seriousness and dangerousness, each of which permits the Government to call upon a corresponding set of powers that are needed and will be used and can be used to counter the emergency situation.
What I would like to say about the Bill which has been introduced is that the descriptions of the series of circumstances are so vague and the powers that are correspondingly awarded to the Government are so large that the War Measures Act is better. At least, with the War Measures Act—and I do not mean to approve of it—the Government knows it is taking a very serious step when it invokes those powers.
The way emergencies are described in this Bill under all four categories—and I am not accusing the Government of anything—one could presently find a trigger for invoking the powers the Bill would give. I remember that when the Bill was introduced there was a postal strike. I am not accusing the Government of bringing in the Bill in order to declare an emergency in relation to the postal strike. But it could have done so because it fit right within the definition of the public welfare emergency, the lowest category of emergency definitions. Surely a draftsman can do better. Surely in committee we will do better.
On the other extreme, with respect to the war emergency, in the week the Government brought forward the Bill, the tiny country of Kuwait had asked our closest ally, the United States, to protect its vessels in an area of danger in the Persian Gulf where its vessels were being shot at. That fits the definition of the most serious emergency for which the largest powers, exactly equal to the powers under the War Measures Act, could have been arrogated by the Government to itself.
I do not stand here suggesting, as I know members of the Opposition in the old days would do, that this is our secret reason for bringing the legislation forward, that we want to declare an emergency. I am not suggesting that. What I am suggesting is that the Government could declare an emergency out of these serious events. Yes, a postal strike is serious. The shooting of a vessel carrying energy to North America is serious and prejudicial to us. However, surely the Government can do better.
I would like to suggest some particular ways in which the Government can do better and I would like to say that unless it does do better, I will vote for the War Measures Act. I want to take a moment to commend the Civil Liberties Association for the first rate brief it submitted to the Government. That organization should be our first witness when the committee is formed. I hope that association will come and flesh out and even add to the suggestions it made for amendment. I think it is worth quoting from the brief, and I read the following from page 2:
—Bill C-77 contains vague definitions, overbroad powers, and inadequate safeguards. There is too little effort to link the powers it would create with the perils for which they are designed. There is too little effort to achieve proportionality between available powers and anticipated perils.
In a nutshell, that is what is wrong with this Bill. That is why the War Measures Act is better.
When I hear the Hon. Member for Lévis (Mr. Fontaine) defend not only the initiative of the Government in going forward with this Bill, but also the position of the Government by saying that they are satisfied and happy with this Bill in its present form, in spite of the questions raised by the Opposition, it gives me serious cause for concern. I hope that we will get a better reaction from the Minister and that the Government will eventually consider and accept suggestions not only to clarify the various emergencies, but also to define the powers of the Government in each case.
The Charter of Rights and Freedoms applies to this legislation. That is very welcome because when a former Conservative Government introduced the Bill of Rights under the leadership of John Diefenbaker, in those days it specifically decided that the War Measures Act would take priority over the Bill of Rights. Those were different times and one always has to welcome a change of heart in a political Party. The fact that the Conservatives recognize now that the Charter of Rights and Freedoms should apply and prevail over this new legislation is a welcome step. One has to add, though, that when the Charter of Rights and Freedoms was brought forward by the same Mr. Trudeau who was so criticized a moment ago by members of the Government, the Charter was specifically made to prevail over the War Measures Act. Therefore, already, in the bringing of the Charter and the patriation of the Constitution, we clearly did put an important safeguard on the War Measures Act.
When I say I prefer the War Measures Act to this Bill, I am taking account of the fact that the War Measures Act does not give the Government the unrestricted, unlimited power it once had under that very piece of legislation, but that it is constrained and limited and to be interpreted in the light of our Charter of Rights and Freedoms. I welcome the continuation of that safeguard by the Government.
I want to ask a big question that has not been addressed by the Minister in his statements about the Bill and of which I do not believe the Bill takes adequate account. We need to know in a very clear way what powers are available to deal with each of the emergencies that are already defined in this Bill. Under existing law—and I do not mean under existing emergency law, but under existing normal law—why should the Government ask us for special powers to do things in emergencies when, in many cases, those powers are there under ordinary existing law? If in committee when we study the Bill we discover that there is a perfectly good power in the existing law to achieve the necessary result, I think we ought to go for the
existing power and hope that the Government, when an emergency arises, will not need to declare the legislation. Let me give an example one way and an example the other way. I remember worrying during the Mississauga crisis that we might need the War Measures Act because there was a spill of dangerous and explosive chemicals and gases in a highly populated area in Toronto. If there had been an explosion, which, thank God, there was not, with the kind of legislation we have to protect the rights of Canadians at present, we might have needed to declare an emergency in order to give the Government special power to deal with the situation. There was no disaster, but if there had been an explosion and hundreds of people needed to be taken to the hospital and buildings needed to be conscripted to be used for that purpose, the Government under the present law could not just walk into someone’s building and declare that that building is now a hospital. It would need to have a special emergency power to do so, unless the owner of the building here willing to go along. However, if the owner insisted upon his rights, and what we are talking about here are rights and the rule of law, that right would have to be respected and the Government would have to declare some kind of emergency power. In a case like that, the Government would have needed some special power.
Looking through the Bill, however, at a sample of things for which the Government is asking for special powers, I have to ask myself, why does it need a special power to do this? For example, in Clause 17(1 )(a)(i) of the Bill the Government has asked for the power in a certain emergency situation to suspend the right of assembly. If Parliament is being asked to take away from our fellow Canadians the right of assembly, it needs a pretty good reason. I would like to hear from the Government why, in the kinds of circumstances it has described, it wants to suspend or otherwise constrain the right of assembly. But I want it to do it in a very special context, that is to say, what is wrong with the present police powers that exist for dealing with assemblies? The police have quite a lot of power to deal with an assembly when it gets dangerous, when it gets violent, if participants in it threaten to go out to cause property damage or injury to individuals, or if someone begins to plan at the assembly the commission of a serious crime.
Whatever happened to the riot Act? We have a riot Act in this country. There are all kinds of ways in which the Government can deal with assemblies. I would like to hear from the Minister when the time comes why the right to suspend an assembly in any circumstance, given the existing powers that the police have, should be awarded to the state in such circumstances.
Another provision under another kind of emergency is contained in Clause 28(1 )(d). Under this clause the Government would have have the right to establish special inquiry procedures for conducting inquiries. As it happens I know a little, as do some other Members here, about the powers that the Government has under the Inquiries Act which are not triggered by an emergency. They are just plain, ordinary powers existing now under a regular statute of this Parliament in which the Government can set up an inquiry. What is wrong with that provision? What is wrong with the type of inquiry that the present law permits in circumstances in which the Government decides that it wants an inquiry? I would like the answer to that question.
One of the things that worries me is that in the present Inquiries Act if a finding is to be made against an individual then that individual has to be given a hearing. That is contained in Section 13 of the Inquiries Act. Does the Government want to suspend that very fundamental right in some circumstances, and in what circumstances? What other reasons and what other limitations does the Government want to place on the kinds of inquiries that can be held?
I use these two examples with respect to the inquiry and the assembly to illustrate that Parliament has already given a great deal of power to the police, to Ministers, government Departments and individuals under existing law. If one is going to have a proper discussion about this legislation, then we will need to know why extra powers are needed. We will have to know why the ones we have now are not good enough, as well as why the emergencies to which they apply are alleged to justify them. So the Government has a great deal of explaining to do. I think it also has a great deal of amending to do as well as tightening up of some of the definitions.
I want to turn to a couple of other definitions. By the way, emergency itself is not defined. It should be because it is a key concept in the legislation. It has been left undefined. What is limiting in the Bill on the present characterization of an emergency is that all one needs is that “in the opinion of the Governor in Council this emergency exists”. I am a member of the Standing Committee on Regulations and Other Statutory Instruments. I am the Chairman of it, and the Minister of National Defence (Mr. Beatty), who has brought this legislation forward, is a former Chairman of that committee. He knows that when a statute contains the expression “of the opinion that” or “in the opinion of’ it is a very hard decision to review. I think that something as key and critical as whether the emergency exists ought to be reviewed. It ought to be judiciously reviewed.
We have statutes, for example, that state, “when, in the opinion of the Minister, the carrot crop is ready for harvesting …” Our committee now, as well as at the time when the present Minister of National Defence was Chairman of it, has always taken the position that “in the opinion of” should be removed from a statute such as that because either the carrots are ready for harvest and are being harvested or they are not. If the Minister wants to take the power to determine that in his own opinion, it makes one wonder whether it will be applied when the carrots are ready for harvest—
Mr. Frith: Or when tuna is ready to go out in cans.
Mr. Kaplan: Or will it be used as a way of giving power to the Government when the actual circumstances do not justify them, when a court would find that the actual circumstances do not justify them? 1 think that the words “in the opinion of’ or “of the opinion that” should be removed. I hope that the Government will be amenable to a suggestion that they be removed.
In the moment I have left I also want to turn to the compensation provision. There is a page or two on compensation, but compensation is not required. Compensation is allowed to be provided. I want to urge the Government to make the right to compensation a right and not simply something that the Government can allow and set up if it chooses to do so.
The Acting Speaker (Mrs. Champagne): Are there questions or comments?
Mr. Orlikow: I would like to ask the Hon. Member a question, Madam Speaker. He knows, as I know, that on the use of the War Measures Act by the Liberal Government in 1970 there were very sharp divisions of opinion which cut across Party lines to a large extent. It is no secret that Frank Scott, a giant in the legal community in Canada in the last 50 years, one of the most prominent defenders of civil liberties, one of the strongest opponents of Premier Duplessis of Quebec and his authoritarian regime, supported the Liberal Government in its imposition of the War Measures Act. I ask the Member this. This Bill, at least in part, is an amendment of the War Measures Act which has been in place since World War I. The provisions of it were used to evacuate forcibly thousands of Japanese from British Columbia. It was used again in 1970 and, as I indicated a few moments ago, led to the incarceration for several days or several weeks of over 250 people who were not permitted to consult with their lawyers. I understand it is a provision in the present Charter of Rights that every Canadian has the right to consult with his or her lawyer. The incarcerated were then released. Not one of them was ever charged, prosecuted, tried or found guilty of any violation. A former Minister in the Liberal Government, Mr. Marchand, talked at the time of thousands and thousands of supporters of the FLQ, about which we learned later there were never thousands—in fact there were probably never hundreds.
Given the fact that the Government used the War Measures Act at that time in ways in which I think most people now realize was a mistake, surely we have to discuss the history and how the War Measures Act was used on other occasions if we are going to discuss in a realistic way what should be in a Bill which, in at least part, replaces the War Measures Act.
Does the Hon. Member really think that we can discuss this Bill seriously and adequately in some kind of vacuum as if we had no history of ways and times in which the rights of many Canadians to express their views in speech or in writing were in fact violated?
Mr. Kaplan: No, of course I do not. It is only a question of what is made of history. It is important to make use of history to be sure that past shortcomings of the legislation are covered in the drafts that are before us. Where the law was found to be defective, where rights were compromised, they might not have been with more careful, more detailed legislation, and that we learn from that. Certainly, that is true.
What I found in the exchange that took place between two members of the former Opposition, one in the NDP and one in the Conservative Party, was that Mr. Trudeau was hammered and an attempt was made to identify the Liberal Party as the bad guys who are against civil liberties, against the rights of Quebec, and for the atrocities of signing and patriating the Constitution without Quebec being a participant. I felt it was unconstructive to make those allegations, and some Liberal Members of the House may feel obliged to stand up and rehash the record about rights and wrongs. That is what I regretted about the exchange.
I agree that it is important for us to look at the victims of inadequate legislation in the past, and try to make certain that for our time we improve the legislation. My very great fear is that the legislation before us is not an improvement, but that it could give way to a situation in which we can always be found, by a Government that wishes to do so, to be in an emergency situation. Therefore, a package of powers not available in normal times can be arrogated by the Government to itself to do the job.
I made the point that the compensation provisions which did not exist in the prior War Measures Act give the impression of providing compensation, but there is no assurance that compensation will be available. If the Government chooses to do so, it gives the Government the machinery for establishing compensation.
One of the appalling features of the provision, apart from its total voluntary nature on the part of the Government, is the provision that the Government has the unfettered discretion under the Bill to describe classes of people who will not receive compensation at all. I cannot understand that. I cannot see why the Government would want so much power, and what the justification is, especially considering that the whole provision for compensation is only window-dressing if it is not a guaranteed right of people to receive it.
Mr. Frith: I wish to ask the Hon. Member a question relating to his last comments concerning the issue of compensation. I agree with the Hon. Member that there is an exclusion in the Bill of certain groups seeking compensation. It is my understanding that it is only at the whim of the Government whether or not to allow a compensation case to arise. If that does proceed, it proceeds under the jurisdiction of the Federal Court of Canada.
The Hon. Member has had expertise in previous government positions in years past, and I wish to ask what recommendations he would make to augment or strengthen those clauses of the Bill to allow victims the right to have their case heard? There will be victims whether they are victims of the War Measures Act or of this new Bill C-77 before us. I am sure that at some point in the future, there will be some misalignment as a result of those emergencies. What would the Hon. Member recommend?
Mr. Kaplan: There are many models for us to take to be certain that the rights of compensation are provided. One of the shortcomings in that area is that in the essential services suspension agenda where there is the lowest grade of emergency taking place, the Government has the authority to order people to provide the service. To take the example of the postal workers, the Government could declare the emergency and order the postal workers to start delivering the mail for free, if it wished. There is nothing in the Bill that states that the postal workers have to be paid anything for doing that work. They can be compelled to do it by the police. This is in the lowest grade of emergency provided in the legislation.
Surely, in a situation like that, we are entitled to know and have it entrenched in the legislation that people who are ordered to provide their services will not have to provide those services for free, and that they will be entitled to compensation. The Canadian Civil Liberties Association states that the legislation should provide for a labour adjudicator to come in and give some fair compensation, or continue the wages that they were formerly receiving.
1 wish to illustrate how very arrogant this legislation is in its present form from the point of view of the Government. It is important that for the people who are victimized first of all by the emergency and then by the legislation, because the legislation can take away more from them than the emergency, we do everything that we can to try to put them in a fair position and ensure that they will be given fair treatment. That is the function of Parliament. We do not want the Government, in situations where the rule of law is inadequate, to deal with the problem. That is true. That is why we have emergency legislation. Therefore, even in an emergency there is a rule of law and people have rights.
We are not serving our nation if we bring forward legislation that turns the rule of law into a licence for the Government to do whatever it wants, whether or not it is necessary, with no thought at all for the consequences for ordinary Canadians.
That is the purpose that the Liberals will have in this debate. As the legislation goes to committee we will be seeking to achieve a rule of law that is more than a tissue of legitimacy for the exercise of arbitrary power by the Government, that is a real study and a balance of rights that are needed in fairness to the citizens who are affected by losing their rights in order to permit the emergency to be dealt with.
MEASURE TO ENACT
The House resumed consideration of the motion of Mr. Beatty that Bill C-77, an Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, be read the second time and referred to a legislative committee.
Mr. Ernie Epp (Thunder Bay—Nipigon): Madam Speaker, I appreciate the opportunity to join in this very important debate. We can use the word “historic” too easily, but I feel that perhaps it is not an abuse of the term to talk about an historic debate on Bill C-77 this afternoon. I am pleased that a couple of weeks ago the Leaders of the various Parties in the House decided to begin it afresh and to do it properly on this day. I particularly appreciate the opportunity to speak at this early point in the debate.
In speaking to the Bill this morning, the Minister was kind enough to refer to the debate which I precipitated in Private Members’ Hour last spring when I put forward a motion for the repeal of the War Measures Act. He quoted at some length from my comments at the time, and then noted what had been stated by some other people in that same debate.
I used that occasion to focus particularly on the shortcomings of the War Measures Act legislation that allowed arbitrary and dangerous action, dangerous to the rights of Canadian citizens. I used that occasion last spring primarily to focus on that. For that reason, in part, I will not say very much in retrospect about the War Measures Act of 1914 and the manner in which it has been used over the years, because I have already had my say on that matter.
This afternoon I wish to focus more particularly on the merits and the dangers of Bill C-77 which the Government brought forward for second reading debate this morning, afternoon, and I am sure for some time following that.
When I proposed the Private Member’s Motion for debate last spring, I focused my attention exclusively on the shortcomings of the legislation and called for a repeal of that particular Act, recognizing the abuses that had occurred, which, in my opinion, could be debated. The Hon. Member for York Centre (Mr. Kaplan) did debate the motion that day.
This afternoon I wish to respect the spirit of debate that he has called for, and which he largely exemplified in his own comments in speaking to the shortcomings of Bill C-77. At that time I called simply for repeal. Part of his unhappiness with my observations that day—they reflected on earlier Liberal Governments—related to the fact that the Hon. Member thought that I should be making suggestions for the type of legislation that might replace the War Measures Act, if I wished it repealed.
I think it is a perfectly respectable position for a Private Member to have in that one simply wants to get rid of abominable legislation. One hesitates to make suggestions for a replacement recognizing the very great dangers that exist in whatever is put forward. Bill C-77 exemplifies some of those dangers. It certainly justifies that kind of concern. What in England is known as the Defence of the Realm Act can be very, very dangerous legislation no matter when it is passed.
The most important thing that the Minister said this morning, in speaking to the Bill, in putting it forward for debate, and in calling on us to give it second reading so that it could go to committee for detailed consideration, was his statement that he was open to proposals for amendments of this particular Bill. I suppose he was prepared in principle, without shouting the point from the roof-top, to admit that there might be shortcomings in the Bill which we would want to have improved. He recognizes and respects the committee system which is basic to that kind of detailed consideration.
We have already had from various speakers—certainly from friend, the Hon. Member for Brant (Mr. Blackburn)—a number of criticisms. The Hon. Member for York Centre who has just spoken pointed to some of the weaknesses in the Bill which call for action. Similarly, I want to devote my comments almost exclusively to the Bill we have before us and to the dangers which could flow from the way it has been drafted.
I also want to urge the Minister to remain faithful to the position he took this morning that there will be opportunity to deal with the Bill critically and carefully to ensure that the particular Bill, when it finally comes back to the House for third reading, has achieved the kind of shape it should have achieved and to ensure that Canadians are not worried that their liberties are in danger from the abuse by Government if there is poorly drafted law, or the abuse by Government if it has been given in statute the kinds of unlimited powers which are sought in some of these areas.
I want to note at an early point—and I will make some further reference to it—that the Canadian Civil Liberties Association, which has an honourable standing in these matters that I think all Hon. Members of the House would respect, has provided something in the way of a detailed critique. I have some reason to think that the Minister of National Defence (Mr. Beatty) has received that brief. I would urge him to look very carefully at it.
I note from the brief an extensive discussion of the question of what might precipitate the invoking of this Act once it has been passed, or what would allow the Government to take action in one situation or another that it regards as an emergency.
If I may look back for just a moment to October 1970, an apprehended insurrection was declared by Government. The War Measures Act was invoked and a large number of regulations were published, some of them with a retroactivity feature which has already been commented upon. However, let me just note as a reality that the Canadian Civil Liberties Association, in addressing this particular problem, pointed out—and I think it is one of its most important observations— that there should be a definition of an emergency. We should not be dependent on the preamble which, as the Minister noted, says something about a national emergency. I should like to quote the following from the second paragraph of the preamble:
—that is to say, an urgent and critical situation of a temporary nature that imperils the well-being of Canada as a whole or that is of such proportions or nature as to exceed the capacity or authority of a province to deal with it— The suggestion that something imperils the well-being of Canada as a whole would appear, from the preamble, to be the basis for regarding something as an emergency.
I take against that a suggestion from the Canadian Civil Liberties Association in its 1979 brief to the McDonald Commission considering wrongdoing by members of the Royal Canadian Mounted Police. It suggested that the Government should have the power to invoke the emergency power “at the point where it could reasonably anticipate the outbreak of illegal violence so intense, so widespread, and so continuous that the Government itself would be overthrown or it would be powerless to govern”. In the politics of 1970, that was the assertion of the Government to justify an action.
Leaving aside public welfare and the international and war emergency possibilities for a moment, we have a definition of emergency in the Bill. It is a definition, not simply a description in the preamble of what might be regarded as an emergency.
In any case, it is much broader and it must be something that threatens the well-being of the country. However, it does not raise the possibility, which would be obvious to all except perhaps those somehow involved in perpetrating the matter, that Government itself might be destroyed or rendered powerless. Such a definition of emergency in this case is a very strong one. Surely it would be a useful addition to the Bill at
an early point to discourage Governments from looking to this in cases where matters could be dealt with otherwise and where the infringement upon the liberties of Canadians should not become a football in the political arena to be used against the political enemies of the Government. Surely there was some of that taking place 17 years ago. This is one of the vital points to be considered.
I note incidentally on this matter that we have quite a substantial Bill. It is a great improvement on the War Measures Act of 1914, which was so brief but so sweeping in its assertion of the powers given to the Government. I notice in a way that drafters will do—and it strikes one as a little odd— that subclause 2(2) reads as follows:
For greater certainty, nothing in this Act derogates from the authority of the Government of Canada to deal with emergencies on any property, territory or area in respect of which the Parliament of Canada has jurisdiction.
It is odd that there should be this residual dealing with emergencies power when we are told that we must have this in the public welfare area, as well as in international and war emergencies areas, in order to have the Government properly empowered. Of course this suggests to me that the Bill has been drafted over whatever period of time by people who were in the patent attorney business. One puts in an application which might just about cover anything that vaguely resembles the invention that someone has put forward. Then the patent office begins considering it very carefully to refine it down to what the person has actually come up with, so that when the patent is finally put on it, it is really that development and not all sorts of other things. Of course this arouses one’s concern.
When the Bill began to lay out the various kinds of emergencies which might face us, a much more careful attempt was made to relate the regulations that might be published to the kinds of emergencies that could exist. Some of that has already been recognized.
The nuances include various lengths of time that a declaration would regularly take effect. In the case of a public welfare emergency we are looking at 90 days’ effectiveness. In the case of a public order one, it is actually 60 days that it would be in effect. The international emergency would be expected to be 120 days. Of course when we have a war emergency, the first declaration would have a regular effectiveness for 360 days.
It is interesting to have these numbers which smack of the old Babylonian system rather than the Arabic one in some of the units that have been given to us as numbers. I trust that we do not have any of the spirit of the old Babylonian laws which the Old Testament at one or two points carries over. It is just to avoid that kind of danger of broad and sweeping power that we want to confine this matter.
In noting some of the particulars, I note, for example, Clause 17 which deals with a public order emergency and the kinds of regulations that might be published there. It has already been noted that not only does the Government have the right to regulate public assembly but the Bill includes “or prohibit” public assembly. There is an obvious case of a change that the committee might consider. The committee should propose the deletion of those two words so that there is not in this Bill any possibility of the Government having that kind of blanket authority to prevent all public assemblies in an area where there are dangers. Let an assembly that gets out of hand be controlled. Let us have provisions to control it. That is what “regulate” means.
At one time we saw freedom-loving Canadians, presumably, the mayor of Vancouver and others, thinking that here was an opportunity as soon as the War Measures Act had been invoked to clamp down on undesirable elements in society. I would have thought that in 1970 there was some appreciation of freedom after an era that had been tarnished by neoconservatism in one western country after another. But what if in 1970 we had had that kind of reaction by the authorities if they had that simple right to prohibit public assemblies? In the area of international emergency, dealt with in Clause 28, I noticed that the Minister this morning suggested that there is no danger of censorship in this Bill. It is up to us all to read carefully—and I do not mean to reflect on the Minister when I say that—but in Clause 28 we find:
The control or regulation of any specified industry or service, including the use of equipment, facilities and inventory.
I am not a lawyer. I have not had the obligation of applying law in Government, but it does not take much imagination to realize that the media, be it the newspapers or the electronic media, would be regarded immediately as an industry or a service. If the Government had the power to control or regulate there would be every possibility under that provision to put controls on the press. It seems to me that the Minister and government members of the committee will need to be sensitive to these points.
Then we come to the war emergency section which, you will pardon my saying, Madam Speaker, I take a particular interest in given my desire to have the War Measures Act repealed. I found that it took a little while to read the provisions of the 1914 Act to my history class, but it does not take very long to read Clause 38. Let me do so now. It reads:
While a declaration of a war emergency is in effect, the Governor in Council may make such orders or regulations as, in the opinion of the Governor in Council, are reasonably necessary or advisable for dealing with the emergency.
In one paragraph it says you have carte blanche to do anything. When emergencies have not been defined and when there are apparent residual powers to deal with emergencies, this is pretty frightening when you consider what might be done under this legislation. What kind of balance do we have for it? A provision for review by a parliamentary committee is one of the safeguards, but what does this review involve? The members must swear an oath of secrecy. A schedule attached to the Bill includes that oath. I will not read it, but all of the review committee’s meetings are to be held in secret. How can a parliamentary review committee, the members of which have sworn not to release anything they have said without authority, carry out its review if it is hemmed in that way and has to do
all its work in secret? That is an infamous section. That is no review.
What about the possibility of debate? We could have 15 Members of Parliament convinced of the advisability of reconsidering the decision, but what are we given? We shall have debate without interruption and, at the end of the third sitting day, the question shall be put. Debate without interruption, I take it, means throughout the night, not bound by the usual sitting hours. I asked my good friend, the Hon. Member for Humboldt—Lake Centre (Mr. Althouse), how he would interpret that. Does it mean without interruption all the way through? His observation was, “It is fast”, an appropriate observation to make. Sure, it is fast but what kind of a climate does one have in the House if the House is sitting around the clock for two and a half days and then the question is put? That is not the way to deal with these matters. Why limit it to the third sitting day if there is to be serious consideration? These are not safeguards.
There is a possibility under the Bill now for the Government to open the door to compensation, but that probably has always been in existence. It would not have been impossible to have a regulation in 1970 under the declaration to allow people to apply for, and so on. This provision, with no real opportunity for appeal from the actions of the assessors or judges of the Federal Court of Canada will simply not do.
It was clear from government Private Members speaking last spring that we would work to repeal the War Measures Act and we would have something that would have farreaching powers given to Government. In fact, in various nuances of this Bill there are even more threats to the liberties of Canadians.
The committee has an enormously important job to do, assuming that government Members will carry this at second reading and send the Bill to committee. I call on the Minister, here in spirit I know, to stand true to what he said. He wants to give us legislation in which Conservatives in opposition one of these years, sooner than they like to think, will not find the basis for attacks on a Government of another colour. The Government wants to be very certain that when this Bill comes back for third reading it has been cleaned up the way it should be. After all, the war emergency Bill of 1914 still exists 73 years later. Let us make sure that what we do in 1987-1988 is a Bill that we can live with indefinitely.
The Acting Speaker (Mrs. Champagne): Questions or comments? Resuming debate. The Hon. Member for Scarborough West (Mr. Stackhouse).
Mr. Reginald Stackhouse (Scarborough West): Madam Speaker, I rise this afternoon to speak in support of Bill C-77 and draw the attention of the House to the title of the Bill, an Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies, first, temporary; second, safety and security; and third, emergencies. They are the key words. I would like to group my remarks around those key words.
First, I will speak about temporary emergencies. The intent of this legislation is to prescribe special measures and powers for Government when there is an emergency on a temporary basis. All democracies must provide, on the one hand, for the rights of their individual citizens but, on the other, for the safety and integrity of the state during a time of emergency when the state is threatened. That has been true since ancient times. We have found in our own century more than once the need for this kind of special legislation. The Government should be able to take firm and speedy action that will be adequate to meet the needs of the hour, but to the extent that the special powers infringe upon the normal rights and freedoms of its people, it is important that the exercise and the enjoyment of these special powers be temporary.
This Bill is before us in order that particular emphasis can be given to the temporary nature of the legislation. This Bill provides, for example, that in the instance of a public welfare emergency there will be an endurance of only 90 days of the special powers that the Government will enjoy, in the instance of a public order emergency, 60 days; of a national emergency, 120 days; and of a war emergency, 320 days. There is no way by which the Government could use this legislation to do what an opposition speaker suggested today, namely, take over the direction of the country under this legislation and run it by fiat.
Not only is the authority of the Government limited by the periods which 1 have reported, the Bill also provides that Parliament itself will have a direct voice in the implementation of the special temporary measures, their review, and, if necessary, their termination, for the Bill provides that if Parliament is not sitting when an emergency takes place and the Government wishes to invoke the emergency legislation, Parliament is to sit within seven days and address itself immediately to the emergency at hand.
Second, this Bill provides for the initiation by Parliament of the revocation of the special emergency authority of the Government. Third, there will be a review process through which Members of the House of Commons and the Senate can participate actively in assessing whether the continuation of these measures is required.
It should be evident to us all that any Government, regardless of Party, facing the type of crisis which can confront this country and has confronted it within this century, will need authority of this kind on a temporary basis. In 1914, the Hon. C. J. Doherty, then Minister of Justice, within the very first month of World War I introduced the War Measures Act, to which frequent reference has been made today. The reason he gave for introducing it was that the law provided the Government with no clear legal authority to undertake the steps and measures that were required by the emergency at the time.
If we move ahead a generation we find that in 1939 the Liberal Mackenzie King Government announced that it would invoke the War Measures Act and that if it did not possess
such legislation it would move to introduce it in the House of Commons because when a country is at war it must give priority to the salvation of the state and take those measures that are required to protect the security and integrity of the nation.
Frequent reference has been made today to the FLQ-inspired October crisis of 1970. I recall that at that time the invocation of the War Measures Act, with the support of the majority of Members of Parliament, was justified by the Prime Minister of the day, Mr. Trudeau, by pointing to the fact that public officials had been kidnapped and killed, that large supplies of dynamite had been reported as taken by agents of the FLQ, and that the Governments of Quebec and Montreal were seriously concerned about a possible insurrection in that province.
I do not think it was difficult for fair-minded and reasonable citizens, on the basis of the information given them by the Government of the day, to believe that such temporary measures had to be invoked. We are concerned that there now exists legislation which specifically constricts the exercise of such measures to a limited period of time and ensures that the exercise of those special powers be under the direction and with the approval of Parliament.
The first thing in favour of this legislation is that it authorizes the Government to take the necessary special measures and authority on a temporary basis only. There is not the slightest hazard of this Government or any of its successors abusing and misusing this authority to supersede Parliament and normal democratic processes.
Let us now turn to the second part of the title of the Bill, “An Act to authorize the taking of special temporary measures to ensure safety and security”. The War Measures Act was passed in 1914 and exercised throughout World Wars I and II to authorize the Government to impose censorship, arrest, detention, exclusion, and deportation, and to control harbours, territorial waters, transportation, trading, and expropriation. When he introduced the Bill of Rights in 1960, the Right Hon. John Diefenbaker said—in my judgment quite rightly—that the Bill of Rights which he was introducing that day would protect and defend the rights of Canadian citizens except as they might have to be pre-empted in a time of war.
As Mr. Diefenbaker reminded the House of Commons, when the state is threatened by conflict it is necessary for all of us to put the nation and the state ahead of any right or interest of the individual. There can be no reasonable challenge to that. Whatever flights of rhetoric enable us to soar, the reality in a time of war, in a time when the state is threatened as many of us in this Chamber have seen it threatened, will demand that the Government of the day be prepared to take those measures needed to protect it.
That is why there is a provision in the Bill before us that in a war emergency the Government will be authorized to take whatever measures are reasonably required to deal with the emergency. In a time of war, in a time of invasion, there is a need for action that will defend the state, that will defend the interests of the Canadian people as a whole, action that the Canadian people would expect their Government to take and which it would be judged for not taking.
Let us put this Bill into the context of Canada in 1987, not 1914, in the context which the preamble to Bill C-77 recognizes, namely, that since 1982 we have had not only a Bill of Rights which has the authority of any other Act of Parliament, but as well a Constitution which includes within it the Charter of Rights and Freedoms as well as the Canadian Bill of Rights. This Charter and this Bill have the standing, authority, and integrity of the Constitution.
It is said specifically in the preamble of this Bill that the Governor in Council in taking such special temporary measures would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the international covenant on civil and political rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.
We are recognizing in this Bill, therefore, that imperative as is action to defend the state in a time of war, a time of conflict, possible invasion, threatened defeat, the rights guaranteed by the Constitution will not be pre-empted. Consequently, we must recognize the sweeping powers which this Bill apparently gives to the Government in a time of a war crisis. Nonetheless, those powers must be related to the limitations imposed on the Government by our Constitution.
We have here special powers given to the Government in a time of emergency to enable it to deal with the emergency at hand. In dealing with Bill C-77, I would ask all Members of the House to review the powers that are given and recognize that in the four instances, the powers are appropriate to the kind of emergency with which the Government must deal in that time. They do not exceed the demands of the emergency.
For example, the powers with respect to the special kind of public welfare emergency are explicit. They are appropriate to the kind of emergency being dealt with. In a public welfare emergency, the Government would have the authority to regulate or prohibit travel to, from or within any specified area. While that may interfere with the rights of Canadians to travel from one part of the country to another when there is no emergency, it is surely a reasonable authority for a Government to exercise in a time of real emergency and real threat to the safety of people in that area. This is normal in any civilization.
I was in a country that was attacked by a hurricane. When one is threatened by a hurricane, one is quite pleased that the Government has the authority to take action to ensure the safety of people in that region. In the particular place where I was, we first received the advice of the Government to move. I must say that I did not need to be advised again, but within
two hours that advice was translated into an order. The police came to every residence and required people to move. They had the authority to seize vehicles and to take any kind of measure they required to deal with that emergency.
Bill C-77 deals with the kind of authority which would be given to the Government in a public welfare emergency that is appropriate to deal with that kind of crisis, as with the other types of emergencies that are included in the Bill.
1 suggest that we look upon this Bill as appropriating to the Government authority that does not go beyond the demands of the emergencies that are under consideration.
There are other limitations which this Bill imposes on the Government. With respect to expropriation, there is provision in the Bill for the Governor in Council to provide for compensation of any person whose property, equipment or other assets are seized by the Government. The citizen in question may apply for that compensation and, if not satisfied with what is offered by the Government, can appeal to an assessor who has been appointed by the Governor in Council and who is from the federal court.
The cost for that appeal may be awarded to the Crown or against the Crown. Therefore, there is serious respect paid to the right of the individual who has lost assets or the value of assets to have due compensation. I submit that it is great progress to protect individuals in a time of emergency against their property being seized with no just compensation to them. The rights of individuals are not ignored even though the preeminence of the state is respected in a time of emergency.
The four kinds of national emergencies described in this Bill are public welfare, public order, international emergency and war. Public welfare emergencies are those dealing with natural disasters or with other disruptions to the normal, civilized, necessary, routine direction of life within this country. Public order emergencies are threats to the security of Canada that are so serious as to be a national emergency. In both the instances of public welfare crises and public order crises, it has to be established that not only is there a disturbance or disruption, but that it is so serious as to be a national emergency.
The Hon. Jean Marchand, speaking in this House about the FLQ crisis of 1970, said that proclaiming the War Measures Act was like bringing up a canon to kill a fly. That is how he described it 11 years later. If this legislation becomes law, it will be necessary in the future that the Government, in each instance, be able to establish that the disruption is so serious as to be a national emergency threatening the nation as a whole. Under these conditions, I hope the House is prepared to accept the principle of this Bill, for that is what we are debating at second reading.
The Minister has already indicated that he is prepared to consider seriously reasonable and constructive amendments to the Bill dealing with particular flaws or inadequacies, for no document is ever perfect. Every draft of legislation invites amendment, and that is the purpose of the committee process.
The Minister has quite reasonably and properly recognized that.
However, in this debate we are primarily concerned with the principle and the intent of the legislation. I believe it meets two needs that cannot be ignored by any responsible Government or Parliament. One is to provide the Government with sufficient authority to deal with a crisis that cannot be foreseen, for which there cannot be planning to prevent, and which must be dealt with immediately. The second is to recognize the pre-eminence of the Constitution which protects the rights of people. This Bill brings these two needs together in a way that I hope will be found acceptable to the House as I am confident it is acceptable to the people of Canada.
Mr. Orlikow: I would like to direct a couple of questions to the Hon. Member. I do not think there is a single Member of this Parliament who would not agree that the War Measures Act, which has been statute on the laws of Canada since World War I, has outlived its usefulness and goes far too far in the power and authority it gives to the Government. In a brief, the Canadian Civil Liberties Association said in part that it:
—appreciates the initiative which the Government has taken to replace the War Measures Act. No conceivable emergency, including bloody war, could justify such unfettered powers and inadequate safeguards. However, it continues:
Unfortunately, Bill C-77 contains vague definitions, overbroad powers and inadequate safeguards. There is too little effort to link the powers it would create with the perils for which they are designed. It goes on to make 23 recommendations as to how the Bill could and should be improved. I would like to read a couple of those recommendations into the record and ask the Hon. Member if he agrees with these suggestions. First, the CCLA recommends:
A definition for the word “emergency” which, in all the circumstances contemplated by the Bill, would require imminent and serious perils to the lives, limbs and health of widespread numbers of people. The CCLA would like that spelled out. Second, it recommends:
A requirement that emergency proclamations explain why, in the circumstances, it was necessary to avoid the enactment of a special statute.
It further suggests:
A re-definition of public order emergencies so as to eliminate the reference to the CSIS Act and to require that the Government reasonably anticipate the outbreak of illegal violence, so intense, so widespread, and so continuous that the Government itself would be overthrown or it would be powerless to govern.
The elimination of the power to prohibit and regulate public assemblies during public order emergencies.
I wonder if the Hon. Member would be prepared to comment on just a few of the recommendations made by the Canadian Civil Liberties Association?
Mr. Stackhouse: Mr. Speaker, in response to the Hon. Member’s inquiry and invitation, I would like, first, to remark that no Member of this House would want to see the War
Measures Act continued, although I have heard one member of the Liberal Party say that he thinks the War Measures Act is much better than this legislation and, ipso facto, he would want it to continue. I do not believe that the move to rid ourselves of the War Measures Act has yet universal approval, although it may gain that before long.
With regard to the recommendations of the Canadian Civil Liberties Association, I would say, first, that the committee is the proper place to review each of those recommendations. I hope the committee will give them serious consideration and implement such recommendations for amendment as it deems advisable after that review. However, I would point out that the definition of public welfare emergency contained in the legislation is one that surely commends itself to the House of Commons even though it may well be improved in committee. The definition of public welfare emergency in Part I, Clause 3 of the Bill reads:
“Public welfare emergency” means an emergency that is caused by a real or imminent
(a) fire, flood, drought, storm, earthquake or other natural phenomenon,— There is nothing vague or misleading there. It goes on:
(b) disease in human beings, animals or plants,
(c) accident or pollution, or
(d) breakdown in the flow of essential goods, services or resources and that results or may result in a danger to life or property, or social disruption, so serious as to be a national emergency.
A possible flaw in this has already been pointed out in debate today, and the Minister has indicated he is prepared to review and consider an amendment which would improve the clause. However, it seems to me that a very impressive beginning, at least, on a definition of a public welfare emergency has been made. It is a great improvement in the interests of the people of Canada to have this kind of legislation available to become the law of the land and to authorize this Government and succeeding Governments to deal with such emergencies.
With regard to public order emergencies, I take it there is some objection to the reference of declaring an emergency against an action that might overthrow the Government. I am sure that no one has in mind the democratic process, which is a way of replacing one Government with another. Basic to civilization is the right ordering of Government and a changing of Government by due process of law and not by violence or rebellion, and any duly elected and constituted Government must have the authority to deal with any violent threat against its integrity and its ability to carry on the Government which has been entrusted to it by the law of the land.
Mr. Frith: Madam Speaker, 1 would like to ask the Hon. Member opposite a question, and I do so because I respect his opinion. I have sat on committees with him and it disturbs me to take from his response to the Hon. Member for Winnipeg North (Mr. Orlikow) that, in his opinion, “emergency” is properly defined. He went on to list under Part I, public welfare emergency, the definitions for emergency. I think anyone who has been in Parliament for any number of years respects the viewpoint of the Canadian Civil Liberties Association, and that association indicates that the greatest weakness of the Bill, in its opinion, is its failure to define “emergency”. It went on to state that the provision that allows for the declaration of an emergency, when it is considered to exist “in the opinion of’ the Governor in Council, is what it determines to be one of the major flaws in the legislation.
I want to indicate to the Hon. Member opposite that that ought to be one of the first things the legislative committee asks of the Canadian Civil Liberties Association. It should give its ideas on what ought to be a definition of “emergency”. None of us on this side of the House are arguing that to some extent this Bill does not improve the War Measures Act. The Hon. Member took, I believe, the wrong idea from the justice critic of the Liberal Party when he said that he believed the War Measures Act is a better law than the one being proposed.
What he was indicating was that without amendments, it might be better for Parliament to leave the existing legislation in place until the amendments are dealt with, and I will allude to this in my speech later on. I just caution the Hon. Member opposite that he ought to take into consideration these kinds of concerns by such eminently qualified people and groups as the Canadian Civil Liberties Association.
Mr. Stackhouse: Madam Speaker, I thought I had done that by saying that the recommendations of that association should be studied carefully by the committee which will review this legislation, and where that committee believes the Bill can be improved, its recommendations should be adopted. I believe my remarks would have to indicate that I would want the representations to be considered very seriously. However, I am sure that the Hon. Member is not arguing just on the basis of an appeal to an authority. We are dealing with the legislation itself.
I hope that the Hon. Member would recognize, as I have already mentioned, that a very impressive beginning, at least the beginning of the definition of what a public welfare emergency is has been made in this legislation. It has been spelled out explicitly and with particularization. If that can be improved in committee, then that should be something that all Members of this House, myself included, would welcome.
Hon. Douglas C. Frith (Sudbury): Madam Speaker, let me preface my remarks this afternoon by indicating to the House that I believe that the Canadian Civil Liberties Association should be commended for the brief it has developed for the House of Commons. In the past, I have had the greatest of respect for its opinion and that is why, in my question to the Hon. Member opposite, I attached such import to the issues raised by the Canadian Civil Liberties Association. Clearly, the repeal of the War Measures Act is a response to an abuse of the law that threatened the civil liberties of Canadians when it was applied during wartime and during peacetime. For that reason, if we are going to replace the War Measures Act, we ought to ensure that the viewpoint of the association that best
represents the civil rights of Canadians should be of paramount importance when we deliberate on this particular Bill in the legislative committee.
I think the words of the justice critic of the Liberal Party of Canada ought to be well received in committee because he is a former Minister of the Crown. He dealt with the particular aspect of the Bill and is aware of the harshness of the existing War Measures Act and the fact that it is a very Draconian piece of legislation. When one has that type of legislation available, it is very important that the Minister of the Crown who chooses to exercise that particular right, do so with full awareness of what he is about to do. Because most people recognize the fact that the War Measures Act is a very Draconian, harsh use of the legislative body, Governments in the past have been reticent to use it. It has been pointed out here this afternoon in debate that the War Measures Act has only been applied once in peacetime and three or four times in other periods in which we have had a threat to national security.
The reason that it has been only used in such limited times in the past is the fact that it is a harsh and very Draconian type of legislation. Any Government would be very wary and would only use the legislation if it believed that an insurrection existed. However, the point that the justice critic was making is the following. When we bring forward legislation in the House the very first question we have to ask ourselves is why the legislation we are about to enact is being tabled in the House of Commons and what it will change. When one asks oneself what it is we are changing about the War Measures Act, then that is when we have to take into account all of the views of the various groups in our society about changing from an existing law to another.
I think that there are areas about which there is common agreement in this country, whether among Liberals, New Democrats, Conservative Members of the House, or members of various associations across the country. The Bill is welcomed in the sense that it does replace the War Measures Act.
I think most of us agree that that Act is an antiquated Act that gives too much power to the Government. Because it does give too much power to the Government, when we change it we must ask ourselves if it will be used in a different way and to what extent we will safeguard civil liberties as a result of changing it.
Let me just give some of the points of view that I think we all agree upon. I think we agree that this legislation is an improvement, that the Charter of Rights takes precedence over the measures that are being applied in Bill C-77. By and large, it has been generally well received. It contains safeguards in terms of the type of emergency. I will come back to that in a moment because there are four definitions of the type of emergency, as you have heard from previous speakers, Mr. Speaker. But there are still flaws in the definition of emergency within the type of emergency that is being contemplated by the Government’s Bill.
Over-all, there is a welcome acceptance of the fact that it does contain safeguards on the type of emergency. It then goes on to define the length of time that the emergency can exist. It gives Parliament the right of review. I think that is an improvement that is generally acknowledged. It also allows and defines geographic boundaries. So all of those items indicate to me that, yes, there is an acceptance of the need for a change from the War Measures Act, which has existed since 1914, to this new Bill, Bill C-77. But unless all of the issues that are of great concern to a number of individuals and associations in this country are addressed, it may become a more dangerous Bill as a result of too loose a definition within the framework of the law of Bill C-77.
Let me explain that. I think that the Hon. Member for Winnipeg North (Mr. Orlikow) was dead on in his assessment of where the Canadian Civil Liberties Association feels the major weaknesses or flaws in the legislation exist. It bothers me when such an eminently qualified association states that in its opinion the powers are too broad, the triggering circumstances are too vague, and the safeguards are too weak. I think that when that type of association, along with the Canadian Bar Association, signals that that is a major flaw in the legislation, then all Members of the House should take that into account when the Bill goes before the legislative committee which will deal with it.
In addition, the Canadian Civil Liberties Association stated that during a public order emergency the Government would acquire power to regulate or prohibit public assemblies. It went on to say that this is a particularly dangerous power. In so many ways the right of peaceable assembly serves as a prerequisite to the existence of other freedoms. I think that is an area of the legislation which should preoccupy the committee when it deals with this matter.
As I said earlier, this Bill is an improvement. I think most Canadians recognize that the War Measures Act had such wide, harsh, Draconian powers that it would be better to have legislation come forward with a better definition. That has been accomplished to some extent in dividing the types of emergencies into four categories. I am not going to go into those again since they have been alluded to by previous speakers.
As I pointed out to the Hon. Member from Scarborough, the greatest weakness in the Bill is its failure to define emergency, not the type of emergency. I think we all agree on that. Frankly, one ought to realize that when we are debating this Bill it is not that we do not have other Acts of Parliament to deal with other types of emergencies. We just had a catastrophic occurrence of a tornado this past year in Edmonton. Lives were lost. I think that the work of the City of Edmonton and the fact that the Mayor and his emergency team did such a tremendous job in such a short period of time in dealing with that type of emergency shows the Canadian
public that the existing laws that allow that kind of power to be given to the civil authority is in place today. It is not as if no laws pertaining to emergencies, civil, provincial or municipal, existed. In fact, they do exist. They have been used in the past to deal successfully with emergencies such as I mentioned in Edmonton, or with the train derailment in Mississauga and in other areas over the last 73 years. So it is not that we are without legislative powers to deal with emergencies.
Therefore, let us not proceed hastily on the basis that we have no laws to deal with emergencies. In fact, we do have such laws. However, when the Government brings forward a Bill that fails to define emergency and, in particular, brings forward a provision that allows the declaration of an emergency when it is considered to exist in the opinion of the Governor in Council, then that is a dangerous flaw. I would argue, as I believe various Members of the House from all three political Parties who have served on the standing committee which deals with regulations have argued, that “in the opinion of’ is a phrase in law that connotes tremendous power. I would urge that when this matter goes to legislative committee that particular section be dealt with in depth.
In the area that deals with power under the war emergency the Bill states that it is an emergency in Canada when an ally is threatened. Even in the legislation it does not go on to define what is an ally. Under that war emergency it states that “the Government is allowed to acquire the power to do what in its opinion …” Again, that is a very loose legalistic phrase that allows the Government the use of wide measures. I say that that can be an infringement of liberty when a Government allows the Governor in Council to use that kind of phrase to justify all kinds of acts. That to me is very dangerous. In the legislation under war emergency it states that the Government has the right to do what in its opinion would be reasonably necessary. Let me ask you this, Mr. Speaker, and you are a lawyer, I believe. In a court of law that would allow a lawyer total sanction to do as he wished. It goes on to state that that can be done with no judicial review. I think that it is a very dangerous precedent to establish in Canada, and it is another area that I would hope the legislative committee would look at in some detail.
With my colleague from Brant, I wish to ensure that when it goes to the legislative committee it is given the proper review by those parliamentarians. In the last three years too often we have witnessed the use or abuse of the majority of members in those committees not to listen carefully to the viewpoints put forward. This afternoon I am not advocating that we filibuster the Bill. But with all sincerity and conviction I caution my fellow colleagues from the Conservative Party that when this Bill is referred to the legislative committee the first witness that they ask to come before that committee ought to be a representative of the Canadian Civil Liberties Association. I think that they should listen with care to whatever recommendations that association makes to improve the Bill.
The justice critic for the Liberal Party has indicated that he has concerns with those areas of definition of emergency. I share those concerns. He has indicated that he has concerns in the area of compensation, the fact that classes of people are excluded from the right to appeal to a higher court to receive compensation for the abuse of powers given to a Government under this proposed new legislation.
I hope that the legislative committee will deal with this Bill in depth. I believe that my colleague from Brant has spoken on this issue before the Standing Committee on National Defence where he said that the committee should not give only a brief or cursory examination to this legislation as it is such an important Bill. Good heavens, Mr. Speaker, we have had the War Measures Act in place since 1914 and it has taken 73 years to put forward a draft Bill. I think all Members of the House are aware of the difficulties of previous Governments in the use of the War Measures Act, and the problems that were created by the imposition of the War Measures Act in 1970. Because the law was so Draconian and harsh, and the Governments of the day were very wary of enacting a War Measures Act, it is still no reason for us to deal quickly with Bill C-77, even though we agree that the War Measures Act is in need of repeal.
Certainly, the committee has to tighten up the definitions and install a stronger review and check on the powers of the Government in that legislation. There should be a more cognizant view of the need for the judiciary in this country to review government decisions, particularly where they relate to civil liberties. When there is such loose phraseology and definitions in the law, it is open to abuse by Government. Surely, above all, all of us as parliamentarians seek to ensure that in all Acts that we pass through the House of Commons the liberties and freedoms of individual Canadians are ensured. When dealing with the law that deals with civil liberties in this country, we should take the time that is necessary to ensure that all of the considerations of our citizens are complied with, listened to, and dealt with by amendments.
That is why I hope that the majority of the members of the committee, which will be on the government side, take into consideration some very well though out and constructive criticism not only from members of the Opposition, but from members of the Canadian Bar Association and the Canadian Civil Liberties Association who, in the past, have dealt in a very effective and constructive way with all issues relating to civil liberties in this country.
Mrs. Suzanne Duplessis (Parliamentary Secretary to Minister of State (Science and Technology)): Mr. Speaker, I am pleased today to deal with Bill C-77 and, like all my honourable colleagues in this House, I am here to serve the Canadian people better. As a Quebecer, I feel it is our common duty to repeal the War Measures Act, a legislation whose damaging effects are still vivid in the memory of a great many Quebec men and women. The old legislation which was
much too sweeping and drastic in scope provided the Government with overwhelming powers without protecting the rights of the individual. We here are in a good position to know whether the implementation of that law is unfair, particularly the Right Hon. the Leader of the Opposition (Mr. Turner) who was Minister of Justice in the Liberal Government and who decided to invoke the War Measures Act in Quebec in October 1970.
I should like to repeat some of the comments made earlier this morning by the Minister. Some critics have tried to combine the old act and the new act in an attempt to make people believe that Part IV of the Emergencies Act is practically identical to the War Measures Act. They have also stated that since the Charter applies to the War Measures Act there is really no difference between the two legislative texts. They go as far as to say that temptation to resort to the Emergencies Act will be stronger because, they say, it gives the impression that it offers more guarantees than the War Measures Act and that it will be easier to invoke it.
Such statements are totally unfounded. Emergencies Act Part IV has to do with war or other armed conflict, real or imminent. War Measures Act provisions deal with war, invasion or insurrection, real or apprehended. The War Measures Act was adopted for the first time in August 1914 when Canada declared war. The federal government then needed legislation to pass all regulations required to prepare the country for war and take measures against the enemy. Lacking time to decide what specific powers might be needed, Prime Minister Borden chose to introduce in Parliament a piece of legislation giving unlimited powers to Cabinet which would define the powers to be used as the need for them became apparent with the passage of time.
Parliament readily endorsed the measure, but the fact remains that it gave Cabinet full powers in this country. Even the British Government did not have all the powers the Canadian Cabinet obtained as a result of this legislation. Furthermore, the British legislation limited the time during which it could be in effect, while the Canadian legislation did not, so that the Government was able to keep those powers as long as it felt was necessary, and subsequently leave the legislation on the books, although its application was suspended. The War Measures Act was proclaimed again in 1939. The Government could have adopted new legislation that would give it sweeping powers. However, it preferred to use the legislation that was used during World War I and was still on the books. It is these sweeping powers that, unfortunately, were used to justify the internment of Japanese-born Canadians after Japan entered the war at the end of 1941.
At the end of the war in 1945, the War Measures Act was suspended but never revoked, and thus remained on the books. In 1960 it was amended in case it was used again. The last time the legislation was applied, as Quebecers especially will remember, was in 1970 during the October crisis.
The War Measures Act was proclaimed at 4 a.m. on October 16. Under the Act, regulations concerning public order were announced, giving the police special powers to search and make arrests without a warrant. According to the regulations, the FLQ was declared an unlawful organization, members of that organization could be arrested, and furthermore, and this is very serious, people suspected of being members or supporting the organization’s cause could also be arrested. The police then proceeded to arrest more than 500 people, many of whom had no connection at all with the organization. Some were arrested simply because they were nationalists.
That morning on October 16, 1970, a motion asking the House to approve the proclamation of the War Measures Act was passed, although the Minister of Justice at the time admitted there was a great deal of uncertainty about the magnitude of the threat.
Canadians have often told us, and they did so again quite recently, that they are concerned about the impact of the civil rights legislation. Both Claude Ryan, former Leader of the Liberal Party, when he was editor of the newspaper Le Devoir, and the late René Lévesque, former Leader of the Parti Québécois, who was then a reporter, expressed their concern about how the Government was dealing with this problem, and opposed the application of this legislation.
After the situation had relaxed, the public, the press and Members of Parliament questioned the statements that had been made about the seriousness of the problem and the fear of an insurrection. However, the damage had already been done and many innocent people had been arrested.
In this very House, representatives of all political parties expressed the same wish. To refresh our memories, I can quote the words of a Liberal Minister, the Hon. Mitchell Sharp, who said on October 29, 1975 that the Government intended to present legislation to replace the War Measures Act.
The intentions were good, but this legislation did not materialize. As for our Prime Minister (Mr. Mulroney), he promised during the election campaign to abolish the War Measures Act and to provide adequate emergencies legislation for Canada.
The difference is that our Prime Minister is keeping his word and will assume his constitutional responsibilities by guaranteeing the safety of Canadians.
Abrogation of the existing Act and its replacement by an appropriate piece of legislation meet the wishes expressed by Canadians as a whole. Indeed, it is a paradox for Canada, which has an enviable worldwild reputation as concerns human rights, to be the only democratic country not to have legislation to deal with national emergencies.
The War Measures Act still scares people seventeen years after it was last applied. It haunts the dreams of too many Quebecers. It still has the power to harm, and this power will disappear only once this Act is abrogated.
There are cases where the search for the common good and our national interests require that we go beyond party politics. Abolition of the War Measures Act is such a case.
I am not naive to the extent of believing that the bills we are debating today will be unanimously endorsed, but I am sure they will elicit favourable comments and constructive criticism from the Opposition benches. This is how we will succeed in putting the finishing touches to the Emergencies Act which is already far ahead of the War Measures Act.
Undeniably, whenever circumstances so dictates, Emergencies Act provisions will sometimes be as biting as a scalpel. Unfortunately interventions do become necessary, so better use a surgeon’s knife rather than a chain saw, as the War Measures Act would have us do.
More specifically, Madam Speaker, the Emergencies Act will enable the Government to take action in times of national crises, with exceptional means which are nonetheless limited with respect to space, time and field of application. The War Measures Act did not have any such safety catches.
The various guarantees featured in the Emergencies Act are likely to reassure the most skeptical and most difficult people to convince when it comes to respect for human rights, and I count myself among them.
My statement is borne out by the fact that the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights will take precedence over the new legislation, and that the provisions of the Emergencies Act will be in keeping with the International Covenant on Civil and Political Rights. Parliament—all of us here—will have a say on the use of emergency powers. The Government will be accountable to Parliament for the use it will make of those powers. Such guarantees do not exist in the present legislation.
The other Bill, the Emergency Preparedness Act, has had an initial beneficial impact since it has led to the revocation of the Emergency Planning Order of 1981, almost as heavily criticized as the War Measures Act because of its legal basis and ambiguous wording—a highly controversial document. Once passed, the Emergency Preparedness Act, as mentioned by the Minister responsible and some of my colleagues, will enhance the Government’s capacity to prepare for coping with emergencies. It will clarify the respective responsibilities of the federal Government and the provincial governments with a view to achieving closer co-operation, and will improve the coordination of emergency measures and emergency preparations by departments and federal agencies. It will not require new resources.
Madam Speaker, this Bill, like the Emergencies Bill, is a credit to this Government and to all Hon. Members, and I therefore hope that all Members of this House will vote in favour of the Bill.
Mr. Orlikow: Madam Speaker, I should like to direct a question to the Hon. Member. She knows that this Bill is part of a package of Bills to replace the War Measures Act which was first enacted by Parliament in 1914. In other words, it is a Bill which has been in existence for over 60 years, and we now realize that it is a Bill which has been misused at times of perceived emergency.
I should like to refer to just two examples. The first would be the evacuation or forcible removal of thousands of Japanese from the West Coast of British Columbia during World War II despite the fact that we now know there was not a single Japanese spy in British Columbia. The other example would be the one to which the Hon. Member referred, namely, the use of the War Measures Act in Quebec in 1970 which led to the apprehension and incarceration for some days and weeks of more than 200 Quebecers, some of whom may have been nationalists, some of whom may indeed have been separatists, but none of whom was in fact a terrorist, since not a single one of them was ever charged, tried, or convicted.
I am sure every Member of Parliament would agree with the Hon. Member’s statement that we ought to get rid of the War Measures Act. However, does the Hon. Member really believe that the Bill we are being asked to endorse in principle will do away with the legitimate concerns of many people about the way in which the present War Measures Act could be used? Would she give some consideration to just a few of the more than 20 recommendations for amendments and improvements made by the Canadian Civil Liberties Association?
I will put on record just a few of them. First, the inclusion of limits on the nature and duration of the duties that can be ordered pursuant to emergency powers. In other words, no Government should be permitted to invoke the new Bill and to use its provisions for an indefinite period of time. Second, the inclusion of danger to life, limb, or health as a defence to the refusal or failure to perform duties that have been ordered pursuant to emergency powers. Third, a requirement to indemnify those who inflict injury on others as a consequence of performing duties that have been ordered pursuant to emergency powers.
I go back to the War Measures Act. Surely the Hon. Member knows that the Japanese people living on the West Coast of British Columbia were not only evacuated. Their property, including homes, cars, businesses, was confiscated and sold off with no attempt to ensure that the owners who had been forcibly removed would get the actual value or anything near the value of the property which had been taken away.
What about the elimination of the provision enabling the Government to create entry and search powers during international emergencies? We know now the kind of search
powers that the Government has. Just last week—and I will not discuss this in detail now—we learned that the RCMP, and I presume its successor, the Canadian Security Intelligence Service, has monitored the activities of a citizen of Winnipeg, Nick Ternette, for 14 years. Those of us who live in Winnipeg know Nick Ternette very well. We know he has views that are not supported by many people. He is a member of my Party but most of his ideas are rejected by members of our Party. Surely, though, he has a right to his opinions. There is not the slightest bit of evidence that anything he has done could be termed subversive. Yet here is one case of a person kept under surveillance for 14 years. I hate to think of the time, the effort and the cost of that surveillance which, as far as anybody can tell, was completely useless and unnecessary.
I say to the Member that it is not enough to say that we are getting rid of the War Measures Act and bringing in something else. We want to make sure its replacement will achieve the objectives which we think need to be achieved.
Mrs. Duplessis: Madam Speaker, I am delighted to see that the Hon. Member of Winnipeg North (Mr. Orlikow) is also very sensitive to the problems experienced by the Japanese during the last war and more recently by the people of Quebec during the October crisis. I want to give the Hon. Member the assurance, once again, that the Bill before the House today will be subject to the Canadian Charter of Rights and Freedoms, the Canadian Bill of Rights and the International Convention on Civil and Political Rights. This guarantee, as the Minister assured us this morning, is included in the Bill, which the Hon. Member should find reassuring.
As for the particular case to which he was referring, Madam Speaker, I am not in a position to reply.
The Acting Speaker (Mrs. Champagne): Any further questions or comments? Resuming debate. The Hon. Member for Winnipeg North (Mr. Orlikow).
Mr. David Orlikow (Winnipeg North): Madam Speaker, I want to begin by giving the Government credit for attempting an action which the former Liberal Government promised on many occasions after the difficulties we experienced in 1970, namely, to bring in legislation which would remove the War Measures Act, which was first enacted in 1914, from the statutes of Canada and replace it with an Act or Acts more able to protect the people of Canada in times of emergency without giving any Government which might be in office the kind of blanket authority to do almost anything that Governments have been able to do under the present War Measures Act.
Having said that, I have to agree with the Canadian Civil Liberties Association which, in its submission in dealing with this Bill, first commended the Government for bringing forward a Bill but then went on to list in some considerable detail the deficiencies in the Bill. The association finally made over 20 recommendations to improve the Bill.
I believe, as the Canadian Civil Liberties Association does, that Bill C-77 still contains far too many arbitrary powers which a Government could use for a country such as Canada, a democratic country. After all, we cannot, as the Hon. Member for York Centre (Mr. Kaplan), the former Solicitor General in the Liberal Government, tried, to deal with this Bill in a vacuum and in a very theoretical way. We are debating a Bill to remove the War Measures Act and replace it with another Act because our history and experience tell us that the War Measures Act has been misused, and if it continues to be on the statute books of Canada it may again be misused.
Given an emergency or a perceived emergency, any Government may make a decision which infringes on the democratic rights of the people in ways which are much more restrictive than need to be because it is difficult for any Government, regardless of which political Party forms a Government, to deal with the situation in an emergency. The time to give approval and dispassionate, rational thought to what a Bill should contain is when there is no emergency.
I remind Members that the former Prime Minister of Canada, Mr. Trudeau, before he was a Member of Parliament was one of the strongest, most powerful critics for all the right reasons of the very authoritarian, dictatorial Government of Quebec headed by Premier Duplessis. He was the same strong defender of civil liberties, the same opponent of the oppressive regime of Premier Duplessis, who when he was the Prime Minister, when he perceived there was a threat and a danger to democratic society in Quebec, used the War Measures Act.
I do not want today to redebate whether that was a necessary or an unnecessary action to take, I simply use that as an illustration of my belief that now when there is no emergency is the time to discuss a Bill which is to replace the War Measures Act.
The War Measures Act was passed in 1914, 15 days after World War 1 began. It was modeled on an Act passed by the British Parliament, also in 1914, called the Defence of the Realm Act.
The Acting Speaker (Mrs. Champagne): It is with regret that I must interrupt the Hon. Member.