Canada, Senate Debates, “Emergencies Bill”, 33rd Parl, 2nd Sess (17 May 1988)

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Date: 1988-05-17
By: Canada (Parliament)
Citation: Canada, Senate Debates, 33rd Parl, 2nd Sess, 1988 at 3403-3405.
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On the Order:

Resuming the debate on the motion of the Honourable Senator Kelly, seconded by the Honourable Senator Bielish, for the second reading of the 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.-(Honourable Senator Hicks).

Hon. Henry D. Hicks: Honourable senators, I apologize to Senator Kelly for having been unavoidably absent from this chamber on other Senate business when he moved his motion for second reading of this bill and spoke to it on April 28 and again on May 5 of this year. Senator Kelly gave a very full description of the bill and laid its rationale before this chamber in an excellent and expert manner.

I have read Senator Kelly’s speeches carefully. I have also read the bill carefully, both in the form in which it was passed in the other place and in the form of the bill when it was introduced in the other place on June 26, 1987. The first observation that one would make, of course, is that the some 50 amendments the other place accepted to the original bill have considerably improved it and made it, in my view, a much more acceptable piece of legislation than it would have been had it come to us unamended or as it was introduced into the other chamber in June 1987.

For example, amendments were made to subclause 12(2)- and similar amendments were made to other similar clauses which had the effect of changing the wording of the discretion of the Governor in Council. “If in the opinion of the Governor in Council” was changed throughout the bill, but first in clause 12(2) to “if the Governor in Council believes, on reasonable grounds”. That amendment puts the Governor in Council’s discretion on a sounder basis, and makes it easier for me, at least, to accept the wording.

Also, I can accept the amendments with regard to the penalties imposed throughout the bill. As honourable senators know, the bill deals with four kinds of emergency. The first four parts of the bill deal with these four emergencies almost as a separate and self-sustaining piece of legislation. For example, let us look at paragraph 8(1)(j), which has to do with emergencies relating to public welfare. The other emergencies are public order, penultimately, international emergencies and, finally, war emergencies. Originally the penalty was set at a maximum of $5,000 with regard to these emergencies. The pertinent clauses have been changed to $500 for a summary conviction and $5,000 on indictment. I think these amendments improve the bill.

Part V of the bill deals with compensation. The compensation provided for in this bill is much better than, if it existed at all, that under the previous War Measures Act, and it has been further improved by the amendments to the bill. Finally, Part VI of the bill deals with parliamentary supervision. The bill as it was in its original form has been substantially improved in this area. Even so, they have not dealt with the situation which might arise if any of these categories of emergency were declared when Parliament was not sitting or if Parliament happened to be dissolved at the critical moment when an emergency was declared. This is something that the committee of this house to which the bill, I presume, will be referred should inquire into as witnesses and the minister appear before it.

Nevertheless, I have to say in general terms that I wonder whether such absolute delegation of the authority of Parliament to the Governor in Council is necessary. It seems to me that the extent of the delegation is very great and virtually unlimited under Part IV, though perhaps one can make a better case for war emergencies than one could do for some of the other categories of emergencies I have just enumerated.

Also, I am sure that some honourable senators will have observed that the delegation to the Governor in Council comes awfully close to enabling the authorities to effect changes in the legislative power of the provinces. I suppose the attempt to justify this provision will be supported by the emergency clause and the “peace, order and good government” section of our Constitution. I think that this provision needs to be looked at a little more carefully as well. I wonder whether the so-called parliamentary supervision is really sufficient.

It also appears to me that paragraph 30(2)(b), which deals with censorship, is rather peculiar. This paragraph enunciates a certain restriction on censorship in the case of international emergencies only. There is no mention of any restriction on the power of the Governor in Council in relation to censorship in the other parts of the bill which deal with public welfare emergencies, public order emergencies and war emergencies. I can see why, perhaps, we should not interfere at all with the discretion of the Governor in Council in relation to war emergencies, but why mention a restriction in relation to international emergencies, and make no mention of a restriction in relation to public welfare and public order emergencies? Again, perhaps the committee to which the bill is referred might give some attention to this point.

Also, had I been in the chamber when Senator Kelly made his speech I would have asked him for an explanation of the rather different periods of time after which a declaration of emergency expires. In the case of public welfare emergencies, subclause 7(2) fixes the period at 90 days, which remained unchanged from the original version of the bill. In respect to public order emergencies, which is dealt with in subclause 18(2), the limit on the duration of the emergency in the original legislation was 60 days. Mind you, there are provisions in the act which allow for these periods to be extended by going through the appropriate formalities. In the original bill, public order emergencies could last for 60 days, unless extended, but it was reduced to 30 days in the bill that was given final reading in the other place. The original period of time with regard to international emergencies, dealt with in subclause 29(2), was 120 days, but it was reduced to 60 days in


this bill. Finally, with regard to war emergency declarations, the emergency can last for 120 days, as stipulated in subclause 39(2), and remained unchanged. I would like to hear Senator Kelly, in closing the debate, give us some explanation of the rationale behind those different periods of time. It seems to me that they make the legislation unnecessarily complicated, and that perhaps it might not have been necessary to combine what almost amounts to four different pieces of legislation in one bill if we could have dealt with these and some other matters on bases that were more or less similar.

The next point I would like to make observations about is the question of consultation with the provinces. Indeed, it may be that I have dealt in too much detail with matters that could be better taken up when the bill goes to committee, but on the general point of the consultation with provincial authorities required by several clauses of the bill in relation to each category of emergency, it seems to me to be very cumbersome. I acknowledge that Senator Kelly made reference to this point and indicated his reservations about it in the speech he made on the occasion of second reading, but I guess I am even more concerned than he is. It seems to me that the kind of consultation with the provinces required under this bill might render the declaration of an emergency so cumbersome as to delay it beyond the time when emergency action might really be required. This is particularly so with respect to the war emergency provisions, where consultation with all provincial authorities has to take place. I do not think that the federal government ought to give up its powers in this respect to the provinces. Granted, the federal authorities can declare war, but unless every province agrees, after consultation, the question of bringing the war emergency powers into action would, in my view, be doubtful or could easily be the subject of litigation and controversy.

There are other portions of this bill that also need to be carefully examined. On the whole, however, I acknowledge that it is an improvement on the War Measures Act and that, when taken in conjunction with Bill C-76, which we have already passed and which has received Royal Assent, it will improve the situation somewhat in relation to war emergencies. I wish the bill could have been a little more simple and straightforward, but perhaps it could not be. I, for one, will be most interested to hear what the Minister of National Defence has to say when he comes before a committee of this chamber- which, I understand, he is willing to do-and speaks about this bill.

With these remarks, I commend the bill to the attention of honourable senators on the clear understanding, of course, that we shall examine it in relation to the points I have raised, and I am sure some others which honourable senators will want to raise, in the committee to which the bill may be referred.

Hon. Senators: Hear, hear!


Hon. Jacques Flynn: Honourable senators, I shall not take up too much of your time. There is just one point I should like to discuss right now although I agree with Senator Hicks that this bill raises a number of questions.

I speak from my experience during the second world war, as a lawyer for the Prices and Trade Commission, when I was responsible for enforcing numerous regulations issued under the War Measures Act. The scope of these regulations was very broad indeed.

Senator Hicks referred to censorship. As soon as war had been declared, censorship was introduced. Speeches could not be broadcast on radio without prior censorship. I remember one experience I had during the provincial election campaign in 1939. We had used a small transmitter in a remote riding to broadcast speeches within a radius of several miles. The RCMP intervened, but finally dropped the charges.

We remember the internment camps. We have talked about the Japanese, but we also had Camilien Houde who was interned and spent three and half years in prison. I remember the rationing of sugar, meat, liquor and gasoline. If you bought gasoline without coupons, you were liable to a fine which, under this legislation, would be a maximum of five years’ imprisonment or a maximum fine of $5,000.

I remember the terms of the Order in Council under which the government and administrators delegated by the government issued orders of all kinds on every possible subject.

I wonder whether under clause 40, the Governor in Council could adopt exactly the same regulations and impose the same restrictions we had during the second world war. It reads as follows:

40. (1) While a declaration of a war emergency is in effect, the Governor in Council may make such orders or regulations as the Governor in Council believes, on reasonable grounds, are necessary or advisable for dealing with the emergency.

These terms are very general indeed. I don’t see any restrictions here, except that the Governor in Council must believe there are reasonable grounds and that the decision is necessary or advisable for dealing with the emergency.

Subsection 2 deals with the penalties I mentioned earlier.

(a) on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(b) on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment

I wonder to what extent these powers, which to me seem absolutely unrestricted and are the same as those conferred under the War Measures Act, are limited, first of all, by the existence of the Canadian Charter of Rights and Freedoms and, second, by the provisions we find in the preamble to the bill, especially where it mentions “special temporary measures that may not be appropriate in normal times”.


Is it suggested that the Charter does or does not apply in any case? It says that it does, but why the reference to “measures that may not be appropriate in normal times”?

The preamble goes on to say:

AND WHEREAS 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;

So to what extent do this preamble and the existence of the Charter restrict the powers conferred under clause 40? I am not referring to other instances for the time being because they tend to be more specific.

In the case of the existing War Measures Act, I had the same questions, and I would appreciate it if Senator Kelly could get a response to my queries.

Section 1 of the Constitution Act, 1982, might apply when interpreting the radical measures provided under clause 40 of the bill. Section 1 of the Constitution Act, 1982, says:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Does the meaning of these words change in wartime? Does this section no longer apply to the same extent, once the Governor in Council has declared a state of war?

I think this is a very interesting question. Considering the experience we had during the last world war I wonder whether the government would really have the same powers under this legislation as it did before, or whether those powers would be restricted by the provisions I have just mentioned.

On motion of Senator Cottreau, for Senator Stewart (Antigonish- Guysborough), debate adjourned.

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