Canada, Senate Debates, “Emergencies Bill”, 33rd Parl, 2nd Sess (18 May 1988)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 33rd Parl, 2nd Sess, 1988 at 3425-3430.
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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 Stewart (Antigonish-Guysborough)).
Hon. John B. Stewart: Honourable senators, this is one of the most important bills introduced by the government in the present Parliament. It is a bill which demands close examination by the Senate. I turned up the pages of the House of Commons Debates for 1914, when the War Measures Act was enacted, and I found that the second reading is recorded in nine Hansard lines. Then, at the committee and third reading stage, it took exactly 31 Hansard lines. Honourable senators, I think we must find time and space to give this bill a more thorough consideration.
As Senator Hicks stated in his most helpful address yesterday, and as Senator Kelly had stated earlier, the bill seeks to anticipate four different kinds of emergency situations; four situations in which the normal processes of parliamentary government would be set aside. The first of these is a public welfare emergency such as a drought; the second is a public order emergency; the third is an international emergency; and the fourth category is a war emergency.
The bill is extraordinary in at least three ways: First, it delegates to the Governor in Council legislative powers that are normally retained jealously by Parliament itself. Second, it authorizes the Governor in Council to legislate on matters that normally come within the exclusive legislative jurisdiction of the provincial legislatures. Third, it authorizes massive interventions in Canadian society-interventions touching and even controlling people’s lives and liberties, people’s property and the operation of the economy. Talk about government intervention in the market! This bill authorizes intervention in the market of a kind that we have not seen in any other piece of legislation since at least 1945. This is massive intervention in society and in the market.
I have reviewed Senator Kelly’s address given on April 28, 1988. In that address he commended the massive delegation of power to the Governor in Council which would be effected by this bill. I could not help thinking back to the days when the Right Honourable John George Diefenbaker used to denounce government by order in council. In those days that was one of the great Liberal vices. However, now it seems that delegation of legislative power has become a good thing.
It is true that the bill makes elaborate provision for supervision by Parliament of the use of the powers delegated to the Governor in Council. However, so great is the shift of actual power-as distinct from supervisory power-from Parliament to the executive government in the case of international emergencies or war emergencies that we must ask ourselves what need there would be for Parliament itself to meet and to act-that is, what need aside from the performance of its supervisory role.
I do not argue at this time that the bill should not be enacted in its present form. That is not the case I wish to make. My submission is much more modest. It is that we need to know far more than we have been told so far about the meaning of the bill and about the implications of the bill. Just what are the powers that the government is asking Parliament to delegate? For each of the four types of emergency the Governor in Council would be able to arm itself with emergency powers by a declaration of emergency. In the case of a war emergency, the bill states-and I quote from clause 38(1):
When the Governor in Council believes, on reasonable grounds, that a war emergency exists 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 44, may, by proclamation, so declare.
The provision for a declaration in each of the other three types of emergency is exactly the same, except for minor variations concerning consultation with provincial governments. Notice, honourable senators, that in all four instances the essential requirement is strictly subjective. That requirement is the belief of the Governor in Council, the belief of the ministers. There must be prima facie grounds for that belief, but it is on the Governor in Council-not on any court-that Parliament is being asked to confer the power to declare an emergency.
Similarly, when we turn to the orders or regulations that would be possible under the proposed statute, we are told that the Governor in Council may make such orders or regulations as the Governor in Council believes are necessary or advisable. In the case of a public welfare emergency such as a great drought, those orders or regulations may deal with ten matters, including the requisition, use or disposition of property, and the direction of persons to perform essential services. Honourable senators, since this is really a new provision not paralleled in the War Measures Act, we must ask just what kind of emergency is contemplated that would go beyond the capacity or the authority of a provincial government. I am not suggesting that one cannot envision such circumstances, but I think that before Parliament delegates authority to deal with a situation, the kind of situation that the government has in mind ought to be described.
What situations have arisen in the past that show that this extensive delegation of power is desirable or advisable? What does the government have in mind? In what instances in the past has the government found itself legally incompetent to do what ought to have been done?
In the case of a public order emergency, the Governor in Council is to be empowered to make extraordinary new laws dealing with five matters. Those matters include the prohibition of any public assembly that may reasonably be expected to lead to a breach of the peace, travel to any specified area or the use of specified property. Honourable senators, why are such extraordinary powers needed in Canada? We are not now talking about a welfare emergency; we are talking about a public order emergency. What kind of threat to peace, order and good government-or to law and order, to use a more conventional expression-is anticipated here? What does the government have in mind? What situations have arisen in the past that would suggest that this kind of power is required for the future?
An international emergency is defined as:
-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 is so serious as to be a national emergency.
The orders or regulations to be made by the ministers in such a situation may deal with 12 matters, including the appropriation and control of property, the control of any industry or
service, the control of travel, and the appropriation of money without normal parliamentary authority. This is an extraordinary request by the government for parliamentary power.
Honourable senators will have noticed that in the case of the three aforementioned types of emergency the Governor in Council would be limited to specific matters, matters such as property, travel, performance of essential services, and the like. However, in the case of war emergencies, there is no specification. In other words, there is no limitation. The bill simply and starkly provides for a wholesale delegation. Clause 40(1) reads:
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.
A war emergency is defined as:
-war or other armed conflict, real or imminent, involving Canada or any of its allies that is so serious as to be a national emergency.
The War Measures Act, which is the act supplanted by this far more comprehensive bill, provides for war or insurrection. This bill makes provision for three other lower level types of emergency. The government is asking for delegated power for three new types of emergency. It is asking for emergency powers over Canadians in three new types of situations. We need a full explanation of the need for these new powers. Now I would like to focus the attention of honourable senators on the provisions for war emergencies. Here the government contends that it is replacing the bad, old War Measures Act with a fine new statute. I ask: In what way would the power of the Governor in Council to make orders and regulations under this proposed statute be less, or more moderate, than the powers under the War Measures Act? The War Measures Act states:
The Governor in Council may do and authorize such acts and things, and make such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace, order and welfare of Canada, and for greater certainty, but not so as to restrict the generality of the foregoing terms, it is hereby declared that the powers of the Governor General in Council extend to ail matters coming within the classes of subjects hereinafter enumerated,-
And the act goes on to set out a list of enumerated heads. In contrast, this bill is wonderfully succinct. I have already quoted its operative provision with regard to war emergencies. It says that “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.” It is very economical in its language. There seems to be no difference whatsoever in the scope or plenitude of delegation when it is believed by the government that war is real or to be expected. Senator Flynn was absolutely right in his remarks on this point yesterday.
We must know what powers it is that the government is seeking from Parliament. I would like to put forward some questions concerning specific powers. I do not propose that this is an exhaustive list; certainly it is not. I have picked out a few questions, most of which deal with important powers. Perhaps one of my questions would be dismissed in the other place as trivial.
The first question is: Could the provisions of other acts of Parliament be altered by orders in council made under this bill? Clause 4 of the bill states in part: Nothing in this Act shall be construed or applied so as to confer on the Governor in Council the power to make orders or regulations.
(a) altering the provisions of this Act; or-
What about orders or regulations altering the provisions of other acts?
We must remind ourselves that there is jurisprudence relative to the alteration of the provisions of acts of Parliament by order in council. In 1918 the Supreme Court of Canada, in a famous case, found that exemptions from military service established by Parliament itself in the Military Service Act, 1917 had been legally altered by order in council. Exemptions had been reduced by an order in council made under the War Measures Act. It was argued in that case that the enumeration of the several specific heads on which orders might be made had the effect of limiting the power delegated by Parliament to the Governor in Council by the general words; however, that contention was dismissed. The Chief Justice of Canada said in the ruling:
It was also urged, at the argument, that the powers conferred by section 6 were not intended to authorize the Governor in Council to legislate inconsistently with any existing statute, and particularly not so as to take away a right (the right of exemption) acquired under a statute. Here, again, Mr. Newcombe’s answer appears to be conclusive. There is no difference between statute law and common law, and consequently if effect is given to that point the government would be denied any power to amend the law as a war measure, no matter how urgent or necessary that might be for public safety. Such an interpretation seems absurd and impossible. It seems to me obvious that Parliament intended, as the language used implies, to clothe the executive with the widest powers in time of danger. Taken literally, the language of the section contains unlimited powers.
He was speaking there of the War Measures Act.
The question I am asking is: How do the powers that would be delegated in clause 40 differ from the powers given to the Governor in Council under the War Measures Act? There seems to be no difference, except that here the delegation is accomplished in more economical language.
Then I ask another question: Could orders or regulations under the Emergencies Act now proposed be used to introduce conscription and to send conscripted personnel overseas? This could be done under the comparable provisions of the War Measures Act. I remind honourable senators that in 1940 the Mackenzie King government had Parliament enact the National Resources Mobilization Act which prohibited sending conscripted persons overseas. Then in the spring of 1942, after a plebiscite, the government of the day undertook to remove that prohibition in what came to be called, rather awkwardly, the “National Resources Mobilization Act Amendment Act.” One of the members of the King government, Mr. Cardin, from the province of Quebec, resigned from that government because he did not accept this as good public policy. In a letter to Mr. Cardin the Prime Minister stated:
As you are aware, the government might have proceeded in this matter by order in council under the War Measures Act. Having regard, however, to its responsibility to parliament, the government has felt that such action as is necessary to bring existing legislation into conformity with the will of the people expressed in the vote on the plebiscite should be taken, not by order in council under the War Measures Act, but by act of parliament.
In other words, Mr. King was saying we could have gone the order-in-council route-we could have used the delegated power-but we preferred not to. Mr. King liked to pat himself on the back for being a great lover of Parliament.
Honourable senators, in a speech delivered later Mr. King made a very important interpretation of the War Measures Act and, therefore, by implication, to the extent that this bill parallels the War Measures Act, of the present bill itself. He said:
Up to the present, I have said nothing of the powers which, under the War Measures Act, the governor in council already possesses. Under that act, as interpreted by judicial decision and by the legal advisers of the government, the governor in council has authority, notwithstanding section 3, to send men enlisted under the National Resources Mobilization Act to points outside the boundaries of Canada and the territorial waters thereof.
In other words, if, to-day, in the opinion of the government, the war situation demanded the dispatch overseas of men already called up under compulsion for military service, the government has the necessary legal power to order their dispatch.
In other words, Mr. King is reporting that according to the advice that had been given to the government of that day by the law officers of the Crown, under the War Measures Act, they could have conscripted men and they could have sent them overseas even though there might have been on the statute books a prohibition. Indeed, the War Measures Act was used in November 1944 for the latter purpose.
My question is: How different would the legal situation be if the bill now before us were law? That is a question I think we must have answered. It is not good enough to say that it is a question that is not relevant at this time If we pass this bill, will we be delegating to the Governor in Council the capacity to conscript people into the armed forces and to send them outside Canada?
Third, what provision does the bill make for dealing with insurrection, real or imminent? When Senator Kelly moved second reading on April 28, he referred to the 1970 incident. He said:
… I think the best that can be said of the events in 1970 is that when the government went to the cupboard, the only thing available was the War Measures Act, a very blunt instrument designed, as its name suggests, for wartime use.
The implication of Senator Kelly’s comment is that this bill will put something additional, something better, something more suitable in the cupboard. Well, where is that something? One immediately looks at the provisions with regard to a public order emergency; yet they seem to be inadequate for the kind of situation to which Senator Kelly is referring. Perhaps there is something in the bill-but if there is, I have not been able to find it-which would be appropriate to the kind of situation to which he referred.
Fourth, could an order be made ordering the internment of Canadian citizens during an emergency? The relevant provision in the bill, clause 4(b), states:
Nothing in this Act shall be construed or applied so as to confer on the Governor in Council the power to make orders or regulations …
(b) providing for the detention, imprisonment or internment of Canadian citizens or permanent residents as defined in the Immigration Act, 1976 on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
What about other grounds? Camilien Houde would not have been protected by any of those prohibitions when he was detained during World War II.
Senator Flynn: It is the same as we have in the Charter.
Why do they repeat it?
Senator Stewart: I am sorry, I do not understand the point.
Senator Frith: He is asking the same question as you, which is: Why do they repeat the language?
Senator Stewart: There is a point that we should notice here. Under the Canadian Bill of Rights, a person detained would have access to the remedy of habeas corpus. That was used during the Second World War, or at least its use was anticipated by Mr. St. Laurent who was the Minister of Justice. What would have happened if there had been access to a writ of habeas corpus in the case of the Russian spies who were held incommunicado in 1946? I am referring to the Gouzenko incident. Mr. St. Laurent said that a writ of habeas corpus would not have helped those who were detained. They would have obtained their writ, but the government would have displayed an order for their detention and that would have satisfied the court that they were legally detained. So the
writ of habeas corpus does not mean a detained person is going to get a trial on the merits.
Fifth, what, if any, legal obstacle would there be in the law of Canada, constitutional or otherwise, to the imposition of new taxes by order in council during a war emergency? This possibility was canvassed in 1939. There seems to have been a view that that could be done under the War Measures Act. If the powers in the Emergencies Bill are comparable, if they are parallel to those in the War Measures Act insofar as war emergencies are concerned, I ask the question: Could the executive government proceed to levy new taxes on Canadian corporations, for example, without parliamentary action? Those are some of the major questions that I think we have to raise here. They were not raised in the other place.
An Hon. Senator: Shame!
Senator Stewart: I have another question which is peculiarly a Senate question. Provision is made in clause 61(1) for the tabling of orders and regulations made pursuant to the act. However, clause 61(2) makes provision for the review of secret orders or regulations. In other words, what is anticipated is that most orders and regulations would be tabled and made public in Parliament; however, some orders and regulations might be held back. That, incidentally, was done in the case of the order in council that permitted the holding of the spies incommunicado in 1946. There is a cautionary provision, however; there is to be a Parliamentary Review Panel. That panel is to be “a committee of both Houses of Parliament.” Then we are told, in clause 62(2):
The Parliamentary Review Committee shall include at least one member from each party that has a recognized membership of twelve or more persons in the House of Commons.
My question is: Does this mean that if emergency orders were made by the present Progressive Conservative government, the presence of one Progressive Conservative senator would be sufficient to constitute a joint committee? Or if on some future date orders in council were made by a Liberal government or an NDP government that the presence of one Liberal senator, or, if it happened to be an NDP government, one NDP senator-if one can imagine that-would be sufficient? There appears to be no provision for participation of senators from both sides of this house on the Parliamentary Review Committee. I think that is probably an oversight, which could be corrected easily with unanimous support in this house.
Honourable senators, I am not arguing that this bill should not be passed in its present form insofar as its major components are concerned; what I am saying is that we have to do better than they did in 1914. There are very important questions concerning taxation, conscription, the expenditure of public money and other matters to which we have to have clear and unequivocal answers from persons in positions to give clear and unequivocal answers. This is a measure that we have to take seriously. The country will applaud us if senators on both sides of the chamber do thorough work on this proposed measure.
Hon. Senators: Hear, hear!
Hon. William M. Kelly: Honourable senators-
The Hon. the Speaker: Honourable senators, I wish to inform the Senate that if the Honourable Senator Kelly speaks now his speech will have the effect of closing the debate on the motion for second reading of this bill.
Senator Kelly: First of all, I want to thank Senator Hicks, Senator Flynn and, of course, Senator Stewart for their interventions. This is indeed an important bill. I cannot help but agree totally with many of the comments Senator Stewart has made. There are serious questions that need answers. I am tempted to try to offer my own comments on the questions, but I think they would fall short of what is needed here. I think it is important to see that this bill moves to committee as soon as possible, where the minister, representatives of the Department of Justice and other appropriate witnesses can respond to these very sensitive and important questions.
Motion agreed to and bill read second time.
MOTION FOR REFERRAL TO COMMITTEE-DEBATE ADJOURNED
The Hon. the Speaker: Honourable senators, when shall this bill be read the third time?
Hon. William M. Kelly: Honourable senators, I move that Bill C-77 be referred to the Special Committee of the Senate on National Defence.
The Hon. the Speaker: It is moved by the Honourable Senator Kelly, seconded by the Honourable Senator Nurgitz, that the bill be referred to the Special Committee of the Senate on National Defence.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Royce Frith (Deputy Leader of the Opposition): Honourable senators, having listened to Senator Stewart, I think we should consider the appropriateness of having this bill referred to a Committee of the Whole. Therefore, I move the adjournment of the motion of reference so that I may have an opportunity to discuss this with my colleagues and also with the leadership on the other side.
The Hon. the Speaker: It is moved by the Honourable Senator Frith, seconded by the Honourable Senator Cottreau, that further debate be adjourned until the next sitting of the Senate.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Jacques Flynn: Honourable senators, I believe Senator Frith moved the adjournment of the debate on the motion to refer the bill to the Special Committee of the Senate on National Defence.
Senator Hicks: Yes. That is all Senator Frith did.
Senator Frith: What motion was put?
Senator Flynn: I do not know.
Senator Frith: The motion I moved, Your Honour, was that the debate on Senator Kelly’s motion to refer the bill to the Special Committee of the Senate on National Defence be adjourned.
Senator Hicks: Yes, and that does not interfere with the motion for second reading.
Senator Frith: The motion for second reading has been adopted.
The Hon. the Speaker: Is it agreed, honourable senators?
Hon. Senators: Agreed.
On motion of Senator Frith, debate adjourned.