Canada, House of Commons Debates, “Emergency Measures—Limits of Crown Prerogative (B) Avenues of Redress”, 32nd Parl, 1st Sess (27 April 1982)
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 32nd Parl, 1st Sess, 1982 at 16687-16688.
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Mr. Benno Friesen (Surrey-White Rock-North Delta): […] Crown Prerogative simply means that it is the power by which the Prime Minister can do what he thinks necessary in what is deemed to be an emergency. I realize that the customs and statutes have somewhat limited those particular powers of the Crown prerogative, but it is a very loose and easily misunderstood term. That is why 1 rose in my place in the House on March 31 to, ask the Prime Minister, as reported in Hansard on page 16005:
-what the [imits of Crown prerogatives are in this context. Does he have a legal opinion regarding the limita of this power under the new constitution?
The Prime Minister said, among other things:
Certainly I arn on sound ground in saying that any prerogative, royal or otherwise, can bc limited by statute. That would be thec position I would take. He said, “can be iimited by statute”. At the outset, it is ominous for him to say, “can be Iimited by statute”. 1 have to ask why he did flot say, “will be, should be” or even “may be”.
The letter from the President of the Privy Council is much more specific. That letter, dated March 19, reads as follows:
If Parliament were dissolved, or if the pace of the prices at hand did not allow the time ta assemble Parliament, the government would be forced ta act in reliance on the Crown prerogative ta the extent that it provided a legal basis for authority ta act.
What is the legal basis for the power to act? 1 was concerned about that particular provision and, therefore, went to the government research branch of the Library of Pariament to ask them to conduct a study of that provision. 1 would like to read a short segment of that study. Page four of the study indicates:
By far the majority of crises in British history were met by parliamentary action; with strong cabinet and a majority government, necessary legisîstion ta delegate powers can bc quickly passed without resort ta arbitrary action without the authority of Parliament. However, the possibility of independent executive action always exists. As noted, such actions may be found ta bc legal as an exercise of the royal prerogative or by virtue of a common law duty ta protect the realm. The courts would determine the legality of such actions.
In ather circumstances, there may bc no legal baais for exeutive action, and yet the courts may be prevented from considering the issue. Under the British constitutional system in which Parliament is supremne, executive acta can be rendered legal ex posi facto. by passage of an indemnity act. Such a statute protects officiaIs from prosecution or civil proceedinga, and this precludes judicial determination of the legality of the actions.
It then refers to invocation of the law of necessity. 1 know that this Prime Minister (Mr. Trudeau) loves to, invoke the iaw of necessity; but the point is that in such circumstances the courts may be prevented from considering the issue.
That led me to the suppiementary question 1 asked the Prime Mînister at that time. He has repeatediy said that the new charter would aiways contain provision for resort to the courts. However, the Parliamentary Secretary to the President of the Privy Councîl (Mr. Smith) has indicated in this House that the procedure in relation to this emergency planning order
eliminates due process in the court, because the government has already worked out a five-step process which does not include court procedure. That bothers me.
Then I find that, according to the tradition or the convention of the Royal prerogative, it is possible to provide retroactive legality to hitherto illegal action, and that by invocation of the law of necessity the courts can be prevented from looking into a matter which would otherwise be considered illegal. This is what worries me about the Crown prerogative. I think the people of Canada deserve a clear indication as to what the limits of the Crown prerogative would be if the government invoked these emergency planning measures.
Mr. David Smith (Parliamentary Secretary to President of the Privy Council): First of all, Mr. Speaker, I would point out to the hon. member that in his opening statement he again misstated the facts, although unintentionally, I am sure. He said that Planning Order 1981-1305 empowered the government to establish civilian internment camps. That is not correct. If the government has this authority, and it would only use it in wartime, it is certainly not because of this planning order. It may be as a result of the War Measures Act which would come into play in a wartime situation.
However, what this planning order does is to allocate to various ministers the responsibility for drawing up plans. It does not give the government any authority it does not already possess. It could well be that after drawing up those plans the ministers may come to the conclusion that legislation is required and would have to be passed. However, the government is not given any authority by this order in council it did not have before.
The hon. member noted that the emergency planning order was made pursuant to the Crown prerogative. He asked the Prime Minister (Mr. Trudeau) what the limits of the Crown prerogative are in this context. The Prime Minister replied that he would have to examine the order to determine the prerogative which is involved.
We have reviewed this matter and I can inform hon. members that the prerogative authority for the emergency planning order is that which is commonly known as the prime ministerial prerogative. It is a settled convention of government that the Prime Minister may from time to time allocate, amend or clarify working responsibilities of ministers of the Crown by virtue of this prerogative. This same principle underlies the Public Service Rearrangement and Transfer of Duties Act, the act on whose authority the previous civil emergency measures Planning Order PC-1965-1041 was revoked.
I might also say that I requested the research branch of the Library of Parliament to compile a paper on the validity of the emergency planning order. I would be happy to show my friend a copy if he has not already seen it. It quite clearly confirmed that this was a legitimate order within that prerogative.
The hon. member went on to ask the Prime Minister about the recourse to the courts of those who may be interned in wartime. He noted that the anticipated internal safeguards and procedures I outlined in my statement to this House on December 17 did not make explicit reference to the right to appeal to the courts. I did not include this right because it goes, almost without saying, that an individual in such circumstances may make representations to the appropriate judicial tribunal. Since I spoke on that occasion, the Canadian Charter of Rights and Freedoms has been approved to give constitutional expression to this right.
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