Canada, Senate Debates, “Emergencies Bill”, 33rd Parl, 2nd Sess (21 June 1988)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 33rd Parl, 2nd Sess, 1988 at 3716-3747.
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CONSIDERATION IN COMMITTEE OF THE WHOLE CONTINUED
On the Order:
The Senate again in Committee of the Whole on 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.
The Senate was accordingly adjourned during pleasure and put into a Committee of the Whole on Bill C-77, to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof, the Honourable Gildas L. Molgat in the Chair.
The Chairman: Honourable senators, the Senate is now in Committee of the Whole to consider Bill C-77. This afternoon we have a witness who wishes to appear before the committee.
I understand that the witness is available; so we shall await her entry into the chamber.
Pursuant to the Order adopted by the Senate on June 8, 1988, Ms. Ann Sunahara, Legal Counsel, National Association of Japanese Canadians, was escorted to a seat in the chamber.
The Chairman: Our witness this afternoon, honourable senators, is Ann Sunahara, barrister and solicitor, appearing on behalf of the National Association of Japanese Canadians. A copy of a letter from Ms. Sunahara has been distributed to all members of the committee.
I welcome you to our committee, Ms. Sunahara. Our normal practice is to have an introductory statement by the witness of some 15 minutes and then to proceed with questioning by honourable senators. If that is agreeable, we are ready to proceed.
Ms. M. Ann Sunahara, Legal Counsel, National Association of Japanese Canadians: Thank you, sir. I thank the Senate for giving the National Association of Japanese Canadians an opportunity to offer comments on Bill C-77.
The National Association of Japanese Canadians, as you probably know, is the democratically elected representative of Canada’s 56,000 Japanese Canadians. Japanese Canadians have a very special concern about emergency measures legislation, being among the best-documented victims of the War Measures Act. The National Association of Japanese Canadians regards Bill C-77 as part of an attempt to redress what happened during the Second World War. Reform of the War Measures Act is something that the National Association has been seeking since 1945.
The National Association of Japanese Canadians is determined that any reform of the War Measures Act must prevent a recurrence of what happened to Japanese Canadians. As you know, 20,881 men, women and children were uprooted from their homes in February of 1942, processed through detention camps in British Columbia and the sugar beet fields of Alberta and Manitoba, and forced to choose between moving east of the Rocky Mountains or being deported to Japan. Their property was sold and the proceeds were used to pay for their incarceration. They were not permitted to return to their homes on the Pacific coast, or to enter British Columbia, until 1949. Even those Japanese Canadians who were finally able to get into the armed forces were not permitted to return to B.C. before 1949.
Consequently, I was asked by the National Association of Japanese Canadians to prepare an analysis of the Emergencies Act. We presented a 61-page brief to the legislative committee on Bill C-77, a copy of which will be made available to any senator who wishes it.
Many of our concerns in that brief were met by the other House in its amendments. Our principal concerns were with the definitions of the types of emergencies and with Parliament’s ability to control the executive when exercising emergency powers and to revoke inappropriate orders in council.
Two of our concerns were not met. Our first concern is with secret orders, which we feel are both unnecessary and unwise and are already provided for in the CSIS Act. Our second concern-and what brings me here today-is with the Charter override which we see within this act.
You have received through the material I submitted my legal opinion of the minister’s reasons as to why there is no Charter override. In brief, using the War Measures Act cases, our argument is that Parliament has the power to delegate to a subordinate body anything within its powers. It did so in the War Measures Act, delegating what has been termed by the courts to be “plenary powers of legislation”. In other words, the cabinet, by order in council, could legislate as if it were Parliament, using any of the federal government’s powers to legislate.
Since the Second World War, of course, and since October 1970, when the War Measures Act was last used, Parliament has gained one more power, the power to pass orders or laws that override certain Charter rights, the fundamental freedoms, equality and legal rights. That means that Parliament, of course, can now pass laws that take away the right to trial,
that take away the right against unreasonable search and seizure, that take away the presumption of innocence until proven guilty, that take away the right of assembly, the right of free speech and freedom of the press. These are serious and necessary rights in our society.
It is our submission that the powers delegated to the executive under the proposed Emergencies Act are as broad as they were under the War Measures Act. Since Parliament is not precluded from delegating its powers under section 33 of the Charter, it is our position that, by that broad delegation of powers in the proposed Emergencies Act, Parliament has delegated to the cabinet, or will if the bill is passed, the power to pass orders in council having the effect of statutes that can override Charter rights. The mechanism is to put the correct phrasing within the order in council in order to make it specific enough, define which rights, and so forth, as required by section 33. But, in the absence of an express provision withdrawing that right from the executive under the proposed Emergencies Act, the executive can pass orders in council overriding Charter rights.
The law in the matter is set out, in my opinion, with case references and in a way I hope is not too legalistic. It is because of this danger that the National Association of Japanese Canadians is requesting this house to amend clause 4 of the act to include a subparagraph (c) which would specifically withdraw from the executive the power to invoke section 33 of the Canadian Charter of Rights and Freedoms in any order in council it makes under the proposed act.
The best solution, of course, would be a Charter amendment, but since that is not immediately available we ask that this house protect the rights of Canadians and define the limits of the powers of the executive under the proposed Emergencies Act to restrict them from using a Charter override.
Those are my submissions.
The Chairman: Thank you, Ms. Sunahara. The first name I have on my list is that of Senator Stewart (Antigonish-Guysborough).
Senator Stewart (Antigonish-Guysborough): Thank you, Mr. Chairman.
You mentioned that the bill now provides for a good deal of parliamentary control over the activities of the Governor in Council. Evidently you are familiar with the experience of Japanese Canadians during the 1939 to 1945 period. Do you think that the provision of similar controls in the War Measures Act would have been helpful to Japanese Canadians at that time? I am not, of course, talking about the provision of clause 4(b); I am talking about what we may call parliamentary surveillance.
Do you believe that in the political mood of those times that kind of parliamentary surveillance would have been of any use at all in the protection of Japanese Canadians?
Ms. Sunahara: I think the best answer to that is found in the attempt to deport Japanese Canadians in 1945. In October of 1945 Parliament refused ta allow the right to deport Canadians to be included in the National Emergency Transitional Powers Act of 1945. The government withdrew the clause in that bill that would have given them that power, saying that Parliament would be consulted if there were to be any move to deport anyone from Canada. In a House depleted by the Christmas recess three weeks later, the government tabled an order in council, under the War Measures Act, deporting 10,000 Japanese Canadians, because at that point Parliament had no control over any order in council. That order in council was automatically continued by the National Emergency Transitional Powers Act of 1945. I think that is the best example. The Canadian Parliament had spoken and had told the government not to deport Canadians, and the executive turned around and tried to do exactly that.
I may add that there was a happy ending to that; two years later, after massive public objection, the deportation of Japanese Canadians was halted and the order withdrawn.
Another example was the order in council selling Japanese Canadian property. That was put before the House of Commons on the advice that it was to enable the custodian of seized property to dispose of certain depreciating properties, and, the implication was, with the consent of the owners.
Everything was ordered to be sold two months later. Everything was ordered sold: real property, personal property, everything!
The House of Commons and the Senate could do nothing about it.
Senator Stewart (Antigonish-Guysborough): What was the date of that transaction?
Ms. Sunahara: The order in council was placed before the House in April of 1943, and it was at the end of May that the brochures were printed and distributed to sell off all Japanese Canadian property.
Senator Stewart (Antigonish-Guysborough) I ask you that question because much has been made of the parliamentary controls in this bill, and I do not want to attempt to diminish the importance of those controls, but my reading of the Second World War experience is that in the political environment of 1940, 1941 and 1942 parliamentary control would have meant virtually nothing, that the government of the day was being harassed constantly to do more to provide greater national security rather than protect the civil liberties of Canadians and others.
Ms. Sunahara: We are aware that public opinion, as reflected in the political sphere, is not the most thorough way to protect Canadian civil liberties. The National Association of Japanese Canadians has greater confidence in Parliament as a whole than it has in an executive, which may have certain political objectives it wishes to accomplish on its own. Again, their own experience has been that a large number of members of the House of Commons and the Senate fought on behalf of Japanese Canadians. I believe Senator Croll, in fact, took part in much of the opposition to what was done to Japanese Canadians. Having a public forum in which the subject could at least be discussed is also vital. We all know
that the cabinet operates in secrecy and that what it does remains secret for 20 years, which is the other problem. Senator Stewart (Antigonish-Guysborough): I am intrigued by the fact that you raised an objection to secret orders, but evidently you do not want to take time on that today. You are satisfied that the matter of secret orders has been reasonably well covered?
Ms. Sunahara: We still stand on our position that the power for secret orders is unnecessary since any provision for secret orders has already been made by Parliament in the CSIS Act.
Our concern today, and our primary concern with this bill, is the potential Charter override. Because there are secret orders, we feel that is potentially draconian.
Senator Stewart (Antigonish-Guysborough): Let us talk about what has been called Charter override. What the Charter says is that Parliament or the legislature of a province may expressly declare in an act of Parliament, or of the legislature as the case may be, that the act, or a provision thereof, shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter.
You are fearful that the words in clause 40(1) of Bill C-77 may constitute a delegation to the Governor in Council of Parliament’s authority to say that a right in the Charter shall be set aside by an order in council or a regulation. Is that your argument?
Ms. Sunahara: The version of the bill I have-if you are referring to the clause which gives the Governor in Council the power to make orders and regulations in a war emergency has been renumbered since I wrote my brief.
Our concern is that that clause is essentially the same as the section of the War Measures Act which has been held in law to confer plenary powers of legislation upon the cabinet.
Senator Frith: Can you give us that citation so it is on the record? Do you mind, Senator Stewart?
Senator Stewart (Antigonish-Guysborough): It would be helpful to have the citation.
Ms. Sunahara: The reference is the Chemicals Reference, a 1943 case of the Supreme Court of Canada. It is (1943), Supreme Court Reports 1, and the statement will be found at page 17 of Chief Justice Duff’s judgment.
Senator Frith: And it never went further?
Ms. Sunahara: No, it did not.
Senator Frith: At that time there were appeals to the Privy Council.
Ms. Sunahara: There were appeals to the Privy Council, but-
Senator Frith: But it was not done.
Ms. Sunahara: -it was not proceeded with so this is the binding law in Canada.
Senator Stewart (Antigonish-Guysborough): When you say it is plenary power, you mean that Parliament is delegating 100 per cent of its own legal competence.
Ms. Sunahara: But keeping back-as they established in the Re Gray case during the First World War-the power to revoke the delegation; otherwise it becomes an abdication.
I might add that, while the courts found in the War Measures Act that power to revoke the delegation, it was not a practical power in that the only way it could be done was by bringing down the government.
Senator Stewart (Antigonish-Guysborough): But we are talking about the law. You are saying that you believe that the War Measures Act and this bill, if enacted, both delegate plenary power to the Governor in Council. By that you mean that, aside from Parliament’s ability to repeal or amend the act in question itself, the Governor in Council could do anything that Parliament itself could do.
Ms. Sunahara: Yes.
Senator Stewart (Antigonish-Guysborough): Except for the specified exceptions which appeared in clause 4.
Ms. Sunahara: Yes. The full quotation from the Chemicals Reference is “. . . plenary powers of legislation as large as and of the same nature as those of Parliament itself.”
Senator Stewart (Antigonish-Guysborough): I will use a specific example which may be helpful. Under your interpretation, could the Governor in Council have used the War Measures Act to introduce taxation? New taxes?
Ms. Sunahara: Yes, or they could have amended any existing tax act by order in council.
Senator Stewart (Antigonish-Guysborough): How do you get around the provision in the Charter that says that the Parliament may use the “notwithstanding” clause only by an express declaration?
Ms. Sunahara: That can be done through the wording of the order in council. If you wanted, for instance, to pass an order in council which said that the Royal Canadian Mounted Police could arrest anyone deemed to be a threat to the national security of Canada and could hold them without trial, the order in council would have to be phrased as saying, basically, “Notwithstanding the right to trial extended in paragraph 11.(b) of the Canadian Charter of Rights and Freedoms, the Minister of Justice may deem persons to be a threat”, et cetera.
Senator Stewart (Antigonish-Guyshorough): That was not quite my question. I am questioning your view that this is as plenary a delegation as that made by the War Measures Act. I am questioning it because of the provisions of section 33 of the Charter. That section gives Parliament the “notwithstanding” power, but it can exercise the “notwithstanding” power only by express declaration of Parliament.
Parliament has not made an express declaration in Bill C-77. Therefore, I would be inclined to argue that Parliament
has not delegated to the Governor in Council the “notwithstanding” power.
Ms. Sunahara: If Parliament has delegated plenary powers of legislation to the executive, then Parliament is basically saying to the executive, “Act in our place and stead to do whatever we can do.” Therefore, when an order in council is equivalent to an act of Parliament, the executive, acting in Parliament’s place and stead, is passing an act which would include the “notwithstanding” clause.
Senator Stewart (Antigonish-Guysborough): Yes, I understand your argument. My difficulty with it is this: The Charter has intervened since the time of the enactment of the War Measures Act. I question your assumption that the delegation in Bill C-77 is as extensive as was the delegation in the War Measures Act. It seems to me that Parliament can exercise the “notwithstanding” provision only by parliamentary express declaration.
Ms. Sunahara: The whole question in law is whether, if Parliament delegates powers to a body and that body, acting in Parliament’s place, wishes to make an express declaration, it can do so. That point is not yet settled in law. Our first request to the minister was to refer this question to the Supreme Court of Canada. Let us get this matter settled.
I have an opinion-which is concurred in, I might add, by the Dean of the Law School of the University of Alberta that, when granting plenary powers, they include all of Parliament’s powers. These powers may have been defined in 1942 in terms of sections 91, 94 and 95 of the British North America Act, but today they are defined in sections 91, 92 and 94, and the intervening Constitution Acts, and the Charter of Rights and Freedoms. Therefore, when plenary powers are delegated now, the delegation is of powers greater than it was possible to delegate in 1939.
Senator Stewart (Antigonish-Guysborough): Mr. Chairman, I think I have exhausted this line of questioning. I am sure that other senators will want to put questions to this witness.
The Chairman: Thank you, Senator Stewart. Next on my list is Senator Marsden, followed by Senator Frith.
Senator Marsden: I should first like to say to the witness how much we appreciate her coming and how valuable it is to have before us someone so familiar with this piece of legislation.
I wonder if she would be prepared to go beyond the clauses with which she is particularly concerned to tell us whether she has looked at this piece of legislation from one or two other points of view. If she has not, I quite understand her not wanting to respond.
Have you, Ms. Sunahara, looked at what is required under the various types of emergencies from the point of view of privacy and the privacy legislation we now have in this country?
Ms. Sunahara: I looked at the original bill from an historical point of view. I am an historian as well as a lawyer, having written a history of Japanese Canadians. I looked at it from the practical point of view; in other words, I considered what was done to Japanese Canadians at the time of the Second World War and asked whether we could do it again.
Historically, the only powers governments have ever needed in times of emergency-powers that have been properly used-were economic ones, the powers, basically, to ration, to get war production moving, to control goods and services, et cetera. The powers to infringe upon civil liberties have been more abused than used-and the Ukrainians will endorse my statement to that effect.
With regard to privacy, if we can allow search and seizure without reasonable grounds, we open the door completely to wire taps. Wire taps eliminate privacy-they introduce Nineteen Eighty-Four. In that regard, the other problem, the reverse side of the Privacy Act, is the new Freedom of Information Act, which freezes all documents referred to by cabinet in a time of emergency for 20 years, regardless of their significance. A judge cannot even look at them to determine whether there is a national security element to them. Quite frankly, when I went into the archives in the course of my research, I found that some of the “secret” information on Japanese Canadians was little better than laundry lists, which I would have thought should have been made public years ago.
Senator Marsden: You seem to be focusing heavily upon what happens in time of war, but could I ask you to look at some of the less dramatic events in this regard? The public welfare emergency is one that preoccupies me, and, if I am correct, search and seizure is not really an element of it. Property can be confiscated and disposed of; people can be evacuated and detained, and their travel can be regulated or prohibited, but that is not quite the same sweep as that to which you refer.
Ms. Sunahara: No, but my primary objection to the public welfare emergency is that it tramples upon provincial rights. Of course, being an Albertan, I am quite sensitive to provincial rights. Provincial agencies are in place to handle natural disasters. There has been no evidence in Canada that people have ever refused to give their services. True, no formal arrangement has been made to compensate them for their services, but, as a lawyer, I would reply that there is always a suit in quantum meruit.
It seems to me to be a lot of power to deal with something that is so extremely rare. When I was analyzing all of this I was trying to think of an example of public welfare emergency. Short of the hypothetical tidal wave hitting Vancouver-
Senator Marsden: Let me propose one which concerns me at the moment. As you are aware, this legislation covers diseases in human beings, animals and plants. One of the potential threats to civil liberties in this country is any law that may be made concerning people who have tested HIV positive, or people who have AIDS, where privacy is already a matter that has been raised in certain provincial jurisdictions. It is specifically with that example in mind that I ask you about privacy in relation to public welfare emergencies.
Ms. Sunahara: Both British Columbia and Alberta now have in place acts that require persons who have been diag-
nosed to be AIDS patients to be reported and that permit a medical officer to go to a court and obtain an order to confine them. This is another example of something that, technically, I suppose, is interprovincial, in that we have the freedom to move from province to province in Canada. I might add that any attempt to restrict that movement would be contrary to section 6 of the Charter, which cannot be withstood.
Quite frankly, to put a federal veneer on top of all this is, in my view, a redundancy. Public health is a provincial matter; the provinces all have public health departments. If we added another layer of bureaucracy to this, not only would it be more expensive but someone could conceivably be cleared by a provincial public health officer only to find himself in trouble with a federal public health officer. If anything is going to bring justice into disrepute, that will do it.
Senator Marsden: So your major argument on this section is that it is redundant and therefore unnecessary?
Ms. Sunahara: It is a replication of provincial powers. I would think it could be accomplished at much less cost by agreements and cooperation between the provinces. In my original draft I suggested that the federal government could perhaps serve well to set up some sort of data bank of experts for flying in medical doctors who specialize in trauma, if a tidal wave does hit Vancouver. To create an entire bureaucracy over and above the provincial bureaucracy seems unnecessary.
Senator Frith: I want to ensure that you focused on section 53 of the Constitution Act when you quickly said that you felt the delegation to the executive could include the power to tax.
That section reads:
Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.
Whereas the other powers that Parliament has are powers of Parliament. In section 91, for example, it says that Parliament may make laws in certain classes of subjects.
I am not arguing with your conclusion. You answered it rather quickly, and I thought that Senator Stewart’s question meant to focus your attention on the power to tax as a bit different from general legislative power.
Ms. Sunahara: If Senator Stewart was making a reference to section 53, I did not catch that. As I understand it, that provision in section 53 is to ensure that money bills originate in the elected House. Since the executive is composed almost entirely of persons from the elected House, the tabling of an order in council in that House, I would say off the top of my head, would satisfy section 53.
Parliament, under this Emergencies Act, does have the power to revoke orders in council. As another senator has pointed out, that is not necessarily a reliable way to protect civil liberties.
The National Association of Japanese Canadians would like to see this act make it possible for a government to exercise the powers it needs to, but difficult for it to misuse them. That is basically the fine line that we have been trying to draw in our submission.
Senator Frith: I think that is a very important line. Mr. Chairman, I should like to have a few more items put on the record so that someone wanting to get Ms. Sunahara’s point of view can get at least the essence of it all in one place. Let us deal with section 33 and ensure we understand what section 33 can override. It is substantial, but it may be worthwhile getting that on the record. Your position is that because of section 33 and the Chemicals Reference case, Parliament can delegate to the executive the powers it has to override the Charter, as found in subsection 33(1).
Those powers relate to the following sections of the Charter. Section 2 deals with fundamental freedoms: freedom of conscience and religion, freedom of thought, freedom of peaceful assembly, and freedom of association. All of those, you say, on your interpretation, could be overridden by the executive; is that correct?
Ms. Sunahara: Yes.
Senator Frith: Then let us deal with sections 7 to 15 of the Charter. Section 7 deals with life and liberty. Section 8 deals with search and seizure. Section 9 deals with detention or imprisonment. Section 10 says that everyone has the right on arrest or detention to certain information. Section 11 deals with proceedings in criminal and penal matters. That section contains subsections from (a) through to (i), inclusive. Section 12 says that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. Section 13 deals with witnesses’ rights against self-incrimination. Section 14 deals with the right to have an interpreter. Section 15 deals with equality rights before and under the law, and equal protection of benefits of the law.
You say that each of those could be overridden by the cabinet or an order in council by reason of the delegation in this act-Bill C-77–of Parliament’s power under section 33; is that right?
Ms. Sunahara: That is right. The other authority is the case of Re Gray in 1919, a case of the Supreme Court of Canada that held that Parliament did have the ability to delegate its law-making powers to a subordinate agency and had done so in the War Measures Act, notwithstanding the fact that the delegation was very broad.
Senator Frith: I understand that this opinion is supported by the Dean of the Law School in Alberta.
Ms. Sunahara: Yes, Timothy J. Christian.
Senator Frith: The opinion is that those cases stating that the delegation granted plenary parliamentary powers would apply today as well as they did then, although at that time there were no limits on legislative power, except the limits within the distribution of powers.
Just to dramatize the question a little more, prior to the Charter we were all taught in law school that Parliament was supreme. The classic example was that, so long as it was
within its powers under section 91, it could make a man a woman or a woman a man. You probably remember hearing that.
Ms. Sunahara: Or a person of both.
Senator Frith: You say that, notwithstanding those unfettered powers which were in existence at the time of both the Gray case and the Chemicals Reference case, there is nothing in the reasoning to change their application to present day, when Parliament’s rights are circumscribed by the Charter.
Ms. Sunahara: When they met in the kitchen to draft section 33, they did not think about limiting the delegating powers. Since the power to delegate Charter powers has not been put in there, there is nothing to prevent Parliament from delegating that power, unless some argument in law can be made. In fact, it would be stimulating to attempt it. Until the Supreme Court of Canada makes a ruling, there is absolutely nothing to stop the delegation of section 33 powers. Then the other question is: Has it been sufficient here?
The bottom line is that it is an unsettled point of law. Until it is settled, we do not know the limits of the powers that are being given under this act.
Senator Frith: Or any limitations by reason of the existence of the Charter.
Ms. Sunahara: Precisely.
Senator Frith: In effect, you are saying that the argument could be made that the legislative context is different, but you yourself think that the dicta in the Chemicals Reference and Gray cases should apply now just as strongly as they did then in terms of the grant of plenary power.
Ms. Sunahara: Basically, yes. Let me put it this way: If I had to argue that the Charter must be construed differently from the rest of the Constitution, which is basically what you have to argue, and that it must be construed as no delegation, where the rest of the Constitution allows delegation, I would expect to lose that argument, although there are some jurisprudential arguments that can be made. The matter remains unsettled, and we are asking, in view of the fact that it is so unsettled, that this house amend the act to make the minister’s intention clear, that there is no intention to give a Charter override in this act.
Senator Frith: That brings me to my last point. Your suggestion for an amendment, on page 2 of the memorandum that you distributed, means that an additional subclause should be added to clause 4 so that it would read:
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 …
(c) invoking section 33 of the Canadian Charter of Rights and Freedoms and the powers thereunder to declare …
The minister, according to a letter that is to be attached to your document, said, “there is very little basis for concern.” I take it he did not say that there is no basis for concern.
Ms. Sunahara: The position of the National Association of Japanese Canadians is that “very little basis” is too much.
Senator Frith: I hear you.
If he simply says, “There is very little basis for concern,” I take it he is saying that he does not think that section 33 can be invoked by the Governor in Council. Did he say that?
Ms. Sunahara: The best way is to look at the last sentence, where he states:
However, there is not the faintest suggestion in either that Parliament’s power under section 33 of the Charter may be exercised by the Governor in Council.
In essence, what he is saying is that in their view section 33 cannot be exercised in this way. That is just a legal opinion.
Senator Frith: I understand. I wanted to get his legal position. You do not need to argue it for the moment. His position is that he does not think the Governor in Council can invoke section 33.
If that is so, all you do is make clear his opinion with paragraph (c).
Ms. Sunahara: Yes.
Senator Frith: His opinion is that it cannot be invoked, and your paragraph (c), in effect, agrees.
Ms. Sunahara: Yes.
Senator Frith: In effect, you are making clear that what he says is already the case.
Ms. Sunahara: Yes.
Senator Frith: Did you put your actual wording of paragraph (c) to him in that context and say, “Well, if the Governor in Council cannot invoke section 33, then why not say so?”
Ms. Sunahara: That is basically our position.
Senator Frith: Did you put this exact amendment to him?
Ms. Sunahara: We put the concept to him, thinking that he would prefer to draft it in his own words. I did put a suggestion to the legislative committee of a simpler version than this, but I drafted this one because I thought of a few other things-for example, that we do not want an order in council that amends the Criminal Code to allow search and seizure without reasonable grounds. My original draft, which I put to the minister, has been modified in this version put before this house.
Senator Frith: Are you prepared to say that on the basis of your experience up to now, if we amended this bill by adding your suggested paragraph (c) to clause 4, we would simply be making clear what the minister already says is so?
Ms. Sunahara: Yes.
Senator Frith: Thank you, Mr. Chairman.
The Chairman: Thank you, Senator Frith. I do not have any other hands up at the moment on the first round. Senator
Stewart, if you wish, you may begin to question on the second round.
Senator Stewart (Antigonish-Guysborough): Thank you very much, Mr. Chairman.
The bill makes frequent use of the expression “on reasonable grounds”. For example, in clause 38.(1) it states: When the Governor in Council believes, on reasonable grounds, that a war emergency exists … the Governor in Council … may … so declare.
In the clause that we have been discussing chiefly, clause 40, subclause (1), it states:
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.
What is the functional effect of the words “on reasonable grounds”? What difference does their inclusion in those two examples make?
Ms. Sunahara: It is my understanding that that amendment was done to permit the courts to review the grounds upon which the order is made. There is still some question, however, as to whether someone challenging must prove that the grounds were unreasonable or whether the onus is on the government to prove that they were reasonable. That distinction is important. For example, in the Japanese-Canadians case we did not get the documents to prove the unreasonableness of what was done to Japanese Canadians until 1976-30 years after the event.
The evidence that would be needed to prove reasonableness or unreasonableness can only come from the government. This is another reason why we wanted this amendment put in about the Charter override. You can imagine the disability of someone who has been subjected to an order removing bis legal rights having to turn around and prove that the basis for subjecting him to that order was itself unreasonable. I can think of a number of examples off the top of my bead.
Senator Stewart (Antigonish-Guysborough): You are concentrating on the question of the reasonableness or unreasonableness of the grounds; I wanted to focus on the verb “believes”.
Ms. Sunahara: Yes; okay.
Senator Stewart (Antigonish-Guyshorough): Does this mean that the court has to share the belief of the Governor in Council, or does it mean simply that the court will find that there are, or are not, grounds to believe, and that the Governor in Council can form its own belief, although the court might not share that belief?
Ms. Sunahara: the latter is the case. In law, “believes”‘ is usually construed as meaning “believes in good faith.”‘ In order to rebut a belief you would have to establish that the Governor in Council was not acting in good faith, which we ail know would be absolutely impossible to do.
The courts also do not question, and traditionally have not questioned, the beliefs of the government. It is not the case that the court has to come to the same conclusion. In fact, there are several cases like the ones referred to. I go into this in my submission to the legislative committee. The courts simply do not question the grounds on which a government forms its opinion; they take the view that they have the best evidence and that they are reasonable men. Therefore, unless bad faith is shown, the Governor in Council must have believed it in order to have passed the order in council.
Senator Stewart (Antigonish-Guysborough): So what you are saying is that the inclusion of the words “on reasonable grounds” throughout the clauses of this bill really does not mean very much. You could get into court and the Governor in Council would send someone to appear there and say that the Governor in Council did, indeed, believe.
Ms. Sunahara: It would also enable you perhaps to buy time in order to publicize the situation by arguing that, in your particular case, the grounds were not reasonable. For instance, if the order were to outlaw a particular group, it would give you the opportunity to argue that you were not a member of the group and therefore, as it applied to you, it was not a reasonable order. that is the kind of argument to which I refer.
Senator Stewart (Antigonish-Guysborough): Thank you, Mr. Chairman.
The Chairman: As there are no other senators who wish to question you, I should like to thank you very much, Ms. Sunahara, for giving us the benefit of your study of and knowledge in this particular field. It has been very helpful to us.
Ms. Sunahara: thank you, sir.
The Chairman: Honourable senators, during the course of the questioning there was reference to a fact sheet prepared by Emergency Preparedness Canada on the specific questions regarding the recommendations of the Japanese-Canadians. Is it your wish that that fact sheet be distributed to honourable senators at this time?
Senator Doody: Perhaps we could append it to the committee proceedings.
The Chairman: If that is your wish, honourable senators.
Senator Frith: Provided that we are appending the evidence of Ms. Sunahara, we can append the fact sheet as well.
Senator Doody: What Ms. Sunahara said will appear in Hansard.
Senator Frith: Yes, but she did not read through all of her written submission.
Senator Doody: I see.
Senator Frith: Therefore, I do not see why we should not append both submissions.
The Chairinan: Honourable senators, is it agreed that we append both the letter, which was distributed to honourable senators from Ms. Sunahara, and the fact sheet from Emergency Preparedness Canada?
Hon. Senators: Agreed.
The Chairman: Honourable senators, is it your wish to proceed further or is it your wish to rise and report progress?
Senator Frith: Is there no one here to speak in support of the memorandum from the department?
The Chairman: No. It was delivered to the back door of the Senate and the request was made that it be distributed.
Senator Frith: Is it signed by someone?
The Chairman: No, but it is written on departmental letterhead.
Senator Frith: Which department are you referring to, Mr. Chairman?
The Chairman: It is on the letterhead of Emergency Preparedness Canada.
Senator Frith: We might want to have a look at it and call someone from the department. However, in the meantime, we will append it.
(For text of documents, see appendix, p. 3724.)
Senator Doody: In the meantime, perhaps the committee could rise and report progress.
Senator Frith: Mr. Chairman, I move that the committee adjourn, report progress, and ask for leave to sit again.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Honourable senators, the sitting of the Senate is resumed.
REPORT OF COMMITTEE OF THE WHOLE
Hon. Gildas L. Molgat: Honourable senators, the Committee of the Whole, to which was referred Bill C-77, to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other acts in consequence thereof, reports progress and asks for leave to sit again.
The Hon. the Speaker pro tempore: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Speaker pro tempore: Honourable senators, when shall this committee have leave to sit again?
Hon. Royce Frith (Deputy Leader of the Opposition) moved that the Committee of the Whole be given authority to sit again at the next sitting of the Senate.
Motion agreed to.
(See p. 3723)
COMMITTEE OF THE WHOLE – APPENDED DOCUMENTS
LETTER OF JUNE 2, 1988 WRITTEN BY
M. ANN SUNAHARA
M. ANN SUNAHARA
Barrister & Solicitor
9809 91 Avenue,
T6E 2T5 (403) 433 – 8104
June 2, 1988,
Re: The Emergencies Act and Charter Override
I am a legal counsel to the National Association of Japanese Canadians with respect to their submission to the Legislative Committee or’ Bill. C-77 and their ongoing concerns with the new Emergencies Act.
As you may be aware, part of our submission was concerned with the possibility that that Act might empower the Governor in Council to use Parliament’s powers to override Charter rights. In response to our concerns the Minister responsible, Perrin Beatty, assured us that he had a legal opinion ta the contrary on which he was relyinq.
The Minister has now provided us with a summary of that opinion. We are forced to conclude that it is seriously flawed and that there remains the distinct possibility that fundamental freedoms and legal rights could be overridden by Order in Council in time of emergency.
The National Association of Japanese Canadians finds this possibility unacceptable and has requested the Minister to refer this matter to the Supreme Court of Canada for a definitive ruling.
The better solution, of course, is to amend Bill C-77 to expressly remove ail possibility that a future executive could make Orders in Council that override Charter Rights. Th.at objective can be accomplished by amending section 4 to read (amendment underlined):
“4. 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,
(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 or mental or physical disability; or,
(c) invoking section 33 of the Canadlian Charter of Rights and Freedoms and the powers thereunder to declare in any order or regulation that the order or regulation, or any other order or regulation or Act of Parliament, or any provision thereof, shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of the Charter.”
The Minister responsible has stated that no Charter override is intended. It is in the interest of all Canadians that that intention be set out in the Act so that it binds future governments and the courts. Only with an amendment like that above will Canadians know for certain the extent of the legislative powers of the executive in time of national emergency.
Accordingly, the National Association of Japanese Canadians seeks your support for its requests that the
Senate amend Bill C-77 to expressly exclude any possibility of the exercise of Parliament’s Charter override powers by the executive.
For your information please find enclosed copies of:
(a) pages 32 through 35 of our submission to the Legislative Committee on Bill C-77 which outline our concerns;
(b) the initial request of the President of the NAJC for a reference of this matter to the Supreme Court of Canada;
(c) a letter from the Minister Responsible for Emergency Preparedness outlining his reasons for believing that there is very little basis for concern” about a Charter override in the Emergencies Act;
(d) the response of the President of the National Association of Japanese Canadians; and,
(e) a copy of my opinion referred to in the President’ s response.
The Minister’s reasons appear to rest on the argument that Parliament cannot delegate its constitutional powers.
This argument is directly contrary to the rulings in cases dealing with Orders in Council made under the War Measures Act, cases which determined that Parliament could delegate legislative powers to the executive and that, in the War Measures Act, Parliament had in fact delegated “plenary powers of legislation as large as and of the same nature as those of Parliament”: Chemicals Reference, (1943] S-.C.R. 1 at 17.
The National Association of Japanese Canadians is of the view that any possibility of a Charter override is too great a threat to Canadian civil and human rights to be left unresolved. The NAJC is very concerned that the government is looking to a flawed legal opinion for its belief that the Emergencies Act has not given the Governor in Council the power to exercise Parliament’s override powers under s.33 of the Charter. The possibility that this power could be used in secret Orders in Council is particularly worrying.
We ask for your support for an amendment like. to Bill C-77 that set out above. If you have any questions or comments, please do not hesitate to contact me.
M. Ann Sunahara.
cc. Art Miki, President, NAJC,
ENCLOSURE (A) TO LETTER DATED JUNE 2, 1988
Can the Cabinet Override Charter Rights?
This question arises because of the legal force and effect given to the the War Measures Act. In a case contesting the War Measures Act the courts held that Parliament not only could delegate its constitutional powers to the executive government, but also that Parliament, in fact, delegated unlimited powers to the Cabinet, including the power “supersede the existing law whether resting on statute or otherwise”: Re Gray (1919) 57 S.C.R. 150, per Fitzpatrick, C.J. at 157 – 158 and per Duff J. (as he then was) at 168. The English courts reached a similar
conclusion with respect to the British Act on which the War Measures Act was based: R v. Halliday  A.C. 260. Under the War Measures Act, the Governor in Council (effectively the Cabinet) “is vested with plenary powers of legislation as large as and of the same nature as those of Parliament”: Reference Re Regulations Relating to Chemicals [1943) S.C.R. 1 per Rinfret J. at 17-18. An order properly passed under that Act, therefore, “may have the effect of an Act of Parliament”: Ibid, per Duff C.J. at 9.
Under the general emergency powers in the War Measures Act, therefore, Parliament could not only delegate its constitutional powers without limit, but the orders and regulations passed by the Cabinet are equivalent to Acts of Parliament. Section 33 of the Charter permits Parliament ta declare in an Act of Parliament that the Act shall operate notwithstanding the fundamental freedoms set out in Section 2 and the legal and equality rights set out in Sections 7 through 15 of the Charter. If Parliament can delegate this power ta the Cabinet, and if wording of section 38 of the Emergencies Act transfers unlimited powers to the Cabinet in a war emergency, then the Cabinet would have the power ta override important Charter rights when making emergency orders.
The counterarguments are that Parliament cannot delegate its Charter powers or that its must do so expressly. Both these arguments were rejected in Re Gray, supra, in Canada, and in R v. Halliday, supra, in England. Indeed, in Re Gray the Chief Justice put the onus on Parliament to expressly limit the powers it confers on the executive if that is its intention: at 160.
There is nothing in the Charter that prevents Parliament from delegating its powers to the executive. Legal precedent suggests that it can delegate its constitutional powers and has done so in the past both in the War Measures Act and in the various Acts dealing with the government of the North West Territories: See S.C. 1871, c. 16. Indeed in the latter case, Parliament had to revise its original delegation of powers to expressly forbid the Lieutenant-Governor in Council to pass laws inconsistant with those of Parliament:See S.C. 1873, c. 34.
We doubt that the intention of the drafters of the Charter was that the federal Cabinet should have an uncensored right to pass laws that override Charter rights. As Justice Mayrand noted in Alliance des Professeurs de Moritreal et al. v. Attornev-General of Ouebec (1985) 21
D.L.R. (4th) 354 (Que. C.A.), the Charter requires that a law overriding its provisions should specify precisely what provisions will be overridden in order ta encourage “an enlightened and serious examination of the proposed legislation.”: at 356. When Parliament overrides the Charter, it does so in the glare of publicity and public debate. If the Cabinet is able to override the Charter under war emergency powers, it will do so in the privacy and secrecy of Cabinet. Indeed, given the provisions for secret orders in the proposed Emergencies Act, it need not even tell Parliament or the Canadian people about the order overriding the Charter.
The use of such orders would be limited only by the imagination of the Cabinet. Property could be secretly confiscated. Special prisons could be set up. People could be incarcerated or executed without trial. Government money could be diverted for the private use of Cabinet members.
Not only could ail these abuses occur in secrecy but, even if public, the judiciary can do nothing to protect the Charter rights. Where the clauses overriding the Charter are properly drafted, the courts cannot even require the government to prove the law overriding the Charter right was
justifiable: Alliance de Professeurs de Montreal et al v. Attorney-General of Quebec (1985) 21 D.L.R. (4th) 354 (Que. C.A.) per Mayrand J.A. at 356.
The wording of Section 38 of the Emergencies Act is very broad and may well give unlimited powers to the Cabinet. Because there is doubt about the delegation of the Charter override, we feel that this Committee should take to advice of the Chief Justice in Re Gray and expressly exclude the override power from Section 38.
ENCLOSURE (B) TO LETTER DATED JUNE 2, 1988
National Association of Japariese Canadians
National Executive Office
735 Ash Street,
April 20, 1988,
The Honourable Perrin Beatty,
Minister of National Defence,
House of Commons,
The National Association of Japanese Canadians applauds the constructive changes to Bill C-77, the Emergencies Act, which have recently been proposed by your department and by the Legislative Committee on Bill C-77.
Unfortunately, we are of the view that they are not sufficient.
In our submission of March 15, 1988, we raised serious concerns about the possibility that the proposed Act might unwittingly give the Governor-in-Council the power to override the Charter. We are aware that this is contrary to your intention.
We are also informed that you have an opinion from the Department of Justice stating that the proposed Act does not include a Charter override. Since we have not seen that opinion, we cannot judge either how complete it is or the strength of its ultimate conclusion. Our own legal counsel are of the view that the question remains moot, given the law arising from the use of the War Measures Act.
We are of the view that this question is too important to all Canadians to be left to the opinion of lawyers, who may not be correct. Accordingly, we urge you to immediately make a reference of this important issue to the Supreme Court of Canada for a definitive ruling. Further, we urge that, should the Supreme Court find that override powers have been given to the Governor-in-Council, that the appropriate amendment be made to ensure that only Parliament can override Charter rights in time of emergency.
The National Association of Japanese Canadians
per: Art Miki,
ENCLOSURE (C) TO LETTER DATED JUNE 2, 1988
Minister Responsible for Emergency Preparedness
Ministre responsable pour la Protection civile
May 5, 1988
Mr. Art Miki
National Association of Japanese Canadians
National Executive Office
735 Ash Street
Dear Mr. Miki:
Thank you very much for your letter of April 20, 1988 concerning the changes which have been made to Bill C-77, the Emergencies Act. I am gratified that you find the changes constructive and that they merit the applause of your organization.
I appreciate your wish to be reassured that Bill C-77 does not permit the Governor in Council to override the Charter of Rights and Freedoms. However, I am advised that there is very little basis for concern on this point, for the following reasons:
1. While it is true that the Supreme Court of Canada in the Chemicals Reference, (1943] S.C.R. 1 at 17, stated that the Governor in Council under the War Measures Act
“…is vested with plenary powers of legislation as large and of the same nature as those of Parliament itself”,
the Court also made clear that the Governor in Council only has that authority “when acting within
those limits” , that is when acting “within the ambit of the Act by which his authority is measured”. It follows therefore that the powers of the Governor in Council under the War Measures Act are not to be treated as coequal with those of Parliament under the Constitution Act 1867.
2. As broad as the executive authority of the Governor in Council under the War Measures Act may be, and even though Re Gray, 57 S.C.R. 150, held there that an order in council under the War Measures Act could amend an Act of Parliament, the Supreme Court of Canada is clear that this was only possible so long as the order in question is “min conformity with the conditions prescribed by … the provisions of the War Measures Act” (Chemicals Reference at page 9). Therefore, while one Act of Parliament may be read as authorizing the Governor in Council to amend or repeal another Act of Parliament, it is very different to suggest that Parliament could authorize someone else to exercise its constitutional powers.
3. S. 33 is part of the Constitution Act 1867-1981 and hence cannot be treated like an ordinary Act of Parliament that is potentially subject to War Measures Act jurisprudence. For example, the reference to Parliament in s. 33 is the same as the reference to Parliament’s lawmaking function under s. 91 of the Constitution Act, and yet it has never been suggested that the Governor in Council could be delegated the latter authority. In fact, the Chemicals Reference makes it clear that the Governor in Council was exercising authority on the basis of the War Measures Act rather than on Parliament’s constitutional legislative authority under s. 91 of the Constitutional Act.
4. The argument in question ignores the fact that the Charter clearly distinguishes between “Parliament” and “the government of Canada” (see ss. 32(1)(a), 36(1)) and “Parliament” and “the executive government of Canada” (S. 44). The necessary implication of this is that the powers or authority of the one were never intended to be exchanged with or delegated to the other.
5. Governor in Council powers under the War Measures Act or its successor must be exercised in conformity therewith. However, there is not the faintest suggestion in either that Parliament’s power under s. 33 of the Charter may be exercised by the Governor in Council.
The thoughtful study of Bill C-77 undertaken by your Association and the helpful suggestions which resulted were influential in making C-77 a much improved Bill. The positive contribution of the National Association of Japanese Canadians to this work has been very much appreciated by the Government, and I would like to convey my personal thanks to you and to your associates.
ENCLOSURE (D) TO LETTER DATED JUNE 2, 1988
National Association of Japanese Canadians
Nationa1 Executive Office
735 Ash Street,
May 25, 1988,
The Honourable Perrin Beatty,
Minister of National Defence,
House of Commons,
Thank you for your reply of May 5, 1988 to our concerns about a possible Charter override in the Emergencies Act.
We note your comment that, in your view, “there is very little basis for concern” and your reasons for holding that view.
However, having read those reasons, our legal counsel is of the view that they are seriously flawed in law. Please find attached a copy of her reasons.
Further, even if our legal counsel is wrong, we are o.f the view that any possibility that the Act would permit the Governor-in-Council to override Charter rights by Order-in-Council is too great a risk to the civil and human rights of Canadians to be left undecided and unknown. The Canadian people have a right to know the extent of the powers of the executive in time of emergency, and to know the boundaries of those powers with certainty.
Again we reiterate that this question is too important to ail Canadians to be left to the opinion of lawyers. Accordingly, we urge you to immediately make a reference of this important issue to the Supreme Court of Canada for a definitive ruling. Further, we urge that, should the Supreme Court find that override powers have been given to the Governor-in-Council, that the appropriate amendment be made to ensure that only Parliament can override Charter rights in time of emergency.
The National Association of Japanese Canadians
per: Art Miki,
(E) TO LETTER DATED JUNE 2, 1988
M. ANN SUNAHARA
Barrister & Solicitor
9890 91 Avenue
(403) 433 – 8104
Mr. Art Miki,
National Association of Japanese Canadians,
National Executive Office,
735 Ash Street,
Dear Mr. Miki,
Re: Charter Override and the Reasons of the Minister Responsible for Emergency Preparedness
1.0 The following legal opinion comments upon the reasons cited by the Minister Responsible for Emergency Preparedness in his letter of May 5, 1988, for his belief that “there is very little basis for concern”‘ about a Charter override in the Emergencies Act.
1.1. While my analysis is hindered by the summary nature of the Minister’s reasons, I am forced to conclude that the Minister’s legal counsel appear to have made the following errors:
(a) they have confused the concepts of subdelegation and intradelegation;
(b) they have f ailed ta appreciate the legal basis for the Emergencies Act itself; and,
(c) they have misconstrued the Chemicals Reference  S.C.R. 1 and the other War Measures Act cases.
(a) DELEGATION OF POWERS:
2.0 The Minister’s reasons are predicated upon the assertion in reasons 2, 4 and 5 that Parliament cannot delegate its powers under s. 91 of the Constitution Act, 1867 to the Governor in Council. This assertion is patently wrong in law. There is nothing express in the Constitution Acts, 1867-1981, which includes the Charter, about delegation of powers: Bora Laskin, Canadian Constitutional Law, 4th Ed., 1975, at 2. It has long been accepted that
Parliament, as our sovereign body, can enact any law it chooses within the sphere of its powers, and therefore can enact a law delegating legislative powers to any subordinate body whether that body is the Governor in Council, a Minister of the Crown, or any other official or body: Peter Hogg, Constitutional Law of Canada, 1977, at 214; 217-218.
2.1 This delegation of powers to a subordinate is called subdelegation. Because the Governor in Council (in fact, the Cabinet or executive) is inferior to Parliament, and holds its powers from Parliament (with the exception of those powers it holds in common law or by royal prerogative), Parliament can delegate to the Governor in Council/Cabinet/executive whichever of its powers it wishes and with whatever restrictions it wishes.
2.2 The only bodies Parliament cannot delegate to are the Provinces. This is because Parliament and the provincial Legislatures are separate but equal entities under the Constitution Act, 1867 and subordinacy is necessary for subdelegation. Intradelegation between Parliament and the Provinces, therefore, is not possible, but subdelegation from Parliament to the executive is.
2.3 Therefore, contrary to the statements of the Minister, Parliainent can constitutionally confer legislative powers upon the executive: Ibid at 216 and Laskin, supra, at 2 and Hodge v. The Queen (1883) 9 A.C. 117.
2.4 Indeed, Parliament has done so on several occasions in the past. The most notable examples of such subdelegation are the Northwest Territories Act R.S.C. 1970, c. N-22, ss. 8, 13; the Yukon Act R.S.C. 1970, c. Y-2, ss. 9, 16, as am; and the War Measures Act R.S.C. 1970, c. W-2.
2.5 The validity of the first two mentioned delegations of legislative power has never been challenged.
The third has. In Re Gray (1919) 57 S.C.R. 150 the Supreme Court of Canada found that Parliament had the ability to delegate law-making powers, and that it had done so validly in the War Measures Act notwithstanding that that delegation was very broad. Since Parliament retained the power to restrict or withdraw the grant of power to its delegate, the Governor in Council, the delegation of legislative power to the executive in the War Measures Act was constitutional: See ibid at 215 – 216 and Re. Gray at 171.
2.6 In the War Measures Act, as the Minister’s reasons acknowledge, Parliament delegated to the Governor in Council “plenary powers of legislation as large as and of the same nature as those of Parliament itself .”: Chemicals Reference  S.C.R. 1 at 17. At that time Parliament’s powers were defined in ss. 91, 94 and 95 of the then British North America Act, now the Constitution Act, 1867. Those powers included the powers in the preamble to s. 91 to make laws for the “Peace, Order, and good Government of Canada” (P.O.G.G.). On three occasions the courts have upheld legislative Orders-in-Council under the War Measures Act which, but for the delegation of P.O.G.G. powers, would otherwise have been unconstitutional as infringing on matters assigned exclusively to the Provinces in s.-92: See Fort Frances Pulp and Power Co. v. Manitoba Free Press  A.C. 695 at 705; Wartime Leasehold Reference–(1950)  S.C.R. 124; and Co-operative Committee on Japanese Canadians v. Attorney-General of Canada et al  A.C. 87.
2.7 This does not mean that the powers of the executive under the War Measures Act are equal to those of Parliament. They cannot be. Parliament must always retain the power to withdraw its grant of power from the executive. Otherwise the delegation of powers would amount to an abdication and hence would be illegal: Sec Re Gray, supra, at 171.
2.8 What it does mean is that under the War Measures Act the executive could make Orders-in-Council having the force and effect of statutes on behalf of and as if the executive were Parliament. Such Orders were valid in law so long as the executive was acting in good faith within the limits of the War Measures Act; that is,
(a) where a state of war or apprehended insurrection existed;
(b) where, in the opinion of the Governor in Council, the Order was necessary; and,
(c) where the Order “‘could be enacted by Parliament, in the execution of its emergency powers, or otherwise; and, further more, that Parliament is not precluded by the British North America Act or by any other lawful enactment concerning legislative powers, from committing the subject matter of it to the Executive Government for legislative action.”: Chemicals Reference, supra, per Duff C.J. at 10 – 11.
2.9 In summary, therefore, not only does Parliament have the power to delegate legislative power, but in the past it has delegated to the executive powers that were so broad that the executive was thereby authorized to make any order that Parliament, “in the execution of its emergency powers, or otherwise,” was capable of making (Emphasis added).
(b) THE LEGAL BASIS OF THE EMERGENCIES ACT
3.0 The Emergencies Act has the same legal basis as the War Measures Act, which it replaces. Its stated purpose is to, enable the government of Canada to, respond quickly to emergencies without the cumbersome procedure of Parliament. As in the War Measures Act, Parliament in the Emergencies Act empowers the Governor in Council to make orders and regulations in its stead.
3.1 The question is: How broad are the powers given the executive in the Emergencies Act? On the plain reading of the Act they appear very bread indeed. In time of war emergency the Act expressly grants the executive the power to make:
“such orders or regulations as the Governor in Council believes on reasonable grounds are necessary or advisable for dealing with the emergency.”: s. 38 (1)
As with the War Measures Act, the only restrictions are that there be an emergency; that the Governor in Council believes on reasonable grounds that the orders are necessary; and
that Parliament be constitutionally capable of passing the order and is not barred from delegating the particular matter to the executive.
3.2 In the other three types of emergencies, the exercise of the powers is limited only by the subject matter of the orders and not by the breadth of powers exercised in the orders: See ss. 6(1), 17(1) and 28(1). In each case the Governor in Council is empowered to make:
“such orders or regulations with respect to the following matters, as the Governor in Council, believes on reasonable grounds are necessary for dealing with the emergency”: 6(1), 17(1), 28(1)
3.3 Even in the least encompassing emergency, the public welfare emergency, the enumerated subject matters on which the executive may make orders and regulations make it clear that the executive is exercising s. 91 powers, including the “Peace, Order and good Government” (P.O.G.G.) powers. The enumerated subject matters include matters exclusively within the s. 92 powers of the Provinces, such as “the requisition, use or disposition of property”: s. 6(1)(c). Such intrusions into provincial powers by the executive can only be legal where the powers delegated by Parliament to the Governor in Council include its P.O.G.G. powers.
3.4 The listed subject matters also evidence an intention to delegate other s. 91 powers. The ability to prescribe a sentence not exceeding five years imprisonment (s. 6(1)(j)) requires s. 91(27) criminal law powers. The “regulation of the distribution and availability of essential goods, services and resources” (s.6(1)(e)) requires s. 91(2) trade and commerce powers.
3.5 Finally, some of the enumerated subject matters require infringement of Charter rights. Section 17(1)(a) contemplates prohibiting the right to public assembly in section 2 of the Charter. Section 28(1)(g) permits prohibiting Canadians from, leaving Canada, contrary to section 6 of the Charter. Section 28(1)(d) permits search and seizure without a warrant contrary to section 8 of the Charter.
3.6 Finally, there are the comments of the Minister himself. The Minister stated on February 23, 1988, to the
Legislative Committee on Bill. C-77 [the Emergencies Act] that “We will not be suspending the right to habeus corpus“. The right to have the validity of detention determined by way of habeus corpus and to be released if the detention is not lawful, is a protected Charter right: s. 10(c). To imply that it can be suspended under the Emergencies Act is to imply that the executive under the Emergencies Act could infringe or override a Charter right.
3.7 The powers given in the Emergencies Act are very broad indeed, and, I submit, may be as broad as those of the War Measures Act. In short the Emergencies Act also appears to vest the executive 11with plenary powers of legislation as large as and of the same nature as those of Parliament itself”: Chemicals Reference, supra, at 17. The limitations placed on those powers are essentially the same:
(a) that a state of national emergency exist;
(b) that, the Governor in Councl believes on reasonable grounds that the Order is necessary; and,
(c) that the Order “could be enacted by Parliament, in the execution of its emergency powers, or otherwise; and, further more, that Parliament is not precluded by the British North America Act or by any other lawful enactment concerning legislative powers, from committing the subject matter of it to the Executive Government for legislative action.”: Chemicals Reference, supra, per Duff C.J. at 10.
In other than a war emergency the executive’s powers are further limited by the requirement that the order deal with a subject matter enumerated under section 6(1), 17(1) or 28(1) respectively.
(c) MISCONSTRUCTION OF WAR MEASURES ACT CASES
4.0 The Minister’s counsel have misconstrued the War Measures Act cases, and in particular the Chemicals Reference case and the distinctions within it between the exercise of powers under the War Measures Act by the executive and the exercise of s. 91 powers by Parliament.
Counsel have f ailed to appreciate that the War Measures Act empowers the executive to make laws in Parliament’s place and based on Parliament’s constitutional powers. The Chemicals Reference stands for the principle that where Parliament
(i) has the constitutional ability to enact the order the executive has made; and,
(ii) has not been precluded from committing the subject matter of that order to the executive,
then the order of the executive is legal and of the same force and effect as if it had been enacted by Parliament itself: per Duff C.J. at 10.
4.1 The application of these principles to the issue of whether Parliament can or has delegated its powers under s. 33 of the Charter to the executive in the Emergencies Act produces the following analysis:
1. Parliament has the constitutional power to pass orders that override sections 2, and 7 – 15 of the Charter: s. 33.
2. Parliament has the ability to delegate its constitutional powers to subordinate body: Re Gray, supra at 171.
3. Parliament in the past has delegated “plenary powers of legislation” to the Governor in Council in the War Measures Act: Chemicals Reference, supra at 17.
4. The powers delegated under the Emergencies Act are as broad as those under the War Measures Act: paragraphs 3.1 to 3.6.
5. Parliament is not precluded by any lawful enactment from committing a Charter override to the executive: Laskin, supra at 2.
6. Therefore, Parliament is able to and, under the Emergencies Act, has empowered the executive to make Orders in Council which override Charter rights.
With respect, the Minister’s reasons are without substance in Law. Indeed, if he were correct and Parliament were not capable of delegating legislative power, then the Emergencies Act would be illegal in its entirety and without force and effect.
Since Parliament can delegate legislative powers to subordinate bodies, and since the executive is such a subordinate body, then where that delegation is broad enough to grant the executive plenary powers of legislation, and where Parliament is not precluded from delegating the matter to the executive, Parliament can delegate any of its constitutional powers, including its power to override Charter rights. Contrary to the statements of the Minister, there exists a very strong basis for concern that the Emergencies Act empowers the executive ta make Orders that override Charter rights.
EMERGENCY PREPAREDNESS CANADA
BILL C-77 INCORPORATES NATIONAL ASSOCIATION OF JAPANESE CANADIANS RECOMMENDATIONS
Bill C-77, the Emergencies Act, was passed unanimously by the House of Commons on April 27, 1988. In its current form it incorporates almost ail of the changes proposed by the National Association of Japanese Canadians (NAJC) when it appeared before the legislative committee. Key NAJC proposals and the corresponding provisions of Bill C-77 appear below:
Parliament, at all times, must be able to revoke or modify any declaration of an emergency; and,
Corresponding Provisions of Bill C-77
S. 59 in its amended form incorporates this proposal.
Parliament must at all times be able to amend or revoke any order or regulation made by the Cabinet.
All orders and regulations made under emergency powers must be directly related to alleviating the particular emergency.
Whether emergency orders and regulations are, in face, directly related to the emergency must be reviewable at all times in a court of law, and the burden of proving the direct relationship shall rest with the government.
“National emergency” should be defined.
Any delegation of emergency powers by Parliament to the Cabinet must be predicated upon a threat to the continued existence of Canada itself.
Corresponding Provisions of Bill C-77
S.61 provides for this.
All orders and regulations must be “necessary for dealing with the emergency .”
Government must have “reasonable grounds” for issuing ail orders and regulations. This would be reviewable by courts, upon application by any individual or organization which had standing.
Defined in S.3
National emerqencies must “seriously threaten the ability of the government of Canada to preserve the sovereignty, security and territorial integrity of Canada”. S.3(b)
Orders and regulations for war must be limited to measures strictly necessary and directly related to the emergency question; and,
The burden of proving that the orders are strictly necessary and directly related to the emergency must rest with the Government.
No order or regulation should take effect before it is approved by Parliament.
The operation of all orders and regulations must be subject to the review of a Special Parliamentary Committee.
Debate upon a motion to amend or revoke an order or regulation shall be without closure.
Corresponding Provisions of Bill C-77
Orders and regulations for war would be limited to measures which on “reasonable grounds” are “necessary or advisable” for dealing with the emergency.
This would be the case. The onus would be on government to divulge its “reasonable grounds” to court.
S. 61 and 62 include provisions requiring approval, but to delay immediate action when necessary in an emergency could cost lives.
S. 62 provides for just such review.
Such debate must be “without interruption” and closure is not provided for.
In any review of the use of emergency powers, or in any trial of an accused charged under an emergency order, the nous of proving that the emergency exists and the order is reasonable must rest with the Cabinet.
Any emergency legislation must expressly deny the power to override rights guaranteed in the Charter of Rights and Freedoms.
Corresponding Provisions of Bill C-77
Government must have “reasonable grounds” for invocation and would be required to demonstrate this before the courts.
The Charter itself prohibits this.
June 21, 1988