Canada, Senate Debates, “Emergencies Bill”, 33rd Parl, 2nd Sess (31 May 1988)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 33rd Parl, 2nd Sess, 1988 at 3526-3543.
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EMERGENCIES BILL CONSIDERATION IN COMMITTEE OF THE WHOLE ADJOURNED
Pursuant to order adopted by the Senate on Thursday, May 26, 1988, the Senate was 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 Senator Molgat in the Chair.
The Chairman: Honourable senators, the Senate is now in Committee of the Whole to consider 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.
Senator Doody: Honourable senators, I ask leave to invite the Honourable Perrin Beatty, Minister of National Defence, and Messrs. Snarr and Molot, his advisors, to participate in the deliberations.
Senator MacEachen: Honourable senators, before we ask the minister to come in I should like to make a suggestion regarding a method we have employed in the past which would facilitate the work of the Committee of the Whole on this particular bill.
Would it be agreeable if we asked our whips to establish a steering committee that could do some of the work required to plan for the meetings? For example, do we need other witnesses? If that is agreeable, we could have a smaller committee than we had for the Meech Lake hearings. In this case, five and three might be an appropriate number.
Senator Phillips: May I ask the Leader of the Opposition if he envisages the Committee of the Whole continuing for some time, or are we going to have one session only?
Senator MacEachen: Honourable senators, I have no way of knowing. It is not my intention to have a long set of hearings. However, I do think it might be worthwhile to have a steering committee consider whether or not we need additional witnesses and to plan the work of the committee. It proved useful in the case of Meech Lake and it might be useful in this case.
Senator Hicks: Honourable senators, perhaps I can add something that may be useful in coming to a decision on the suggestion of the Leader of the Opposition in the Senate.
On the assumption that the bill might have been referred to the Special Committee on National Defence, as was Bill C-76, the national office of the Red Cross organization have written to me and submitted a brief. I have not known how to reply to them. I now propose that I shall write and tell them that the bill is being dealt with in Committee of the Whole of the Senate and that I have handed their correspondence over to the chairman of that committee. It may well be that we will have to hear these people, who, I think, are anxious to come before a committee.
Senator Doody: Honourable senators, that is a slightly different vision of the activities of this committee than I had believed was the intention of the Senate when I discussed this matter with my counterpart. I thought the minister would be the witness for this committee and that there would not be a parade of witnesses. That may very well still be the case, and perhaps a smaller committee would be necessary to talk to the Red Cross and others. Toward that end, I see nothing wrong with having the whips and chairman meet to discuss the forming of a subcommittee or a steering committee, or any other committee.
At this point I can say that I did not envisage a parade of witnesses through the Committee of the Whole on this particular piece of legislation.
Senator MacEachen: I do not personally envisage a parade either. There may be a number of witnesses. For that reason it occurred to me that the task of discussing the question of witnesses could be delegated to a steering committee. Consequently, I was suggesting that the whips be empowered to select the members from each side under the chairmanship of the chairman of the committee.
Senator Doody: Agreed.
The Chairman: Is there any further discussion? Is that a motion you are making, Senator MacEachen?
Senator MacEachen: I would make it a motion.
The Chairman: It is moved by Senator MacEachen that a steering committee be established, being five and three, and that the whips be empowered to select the members. Is there any further discussion? There being no further discussion, are you ready for the question?
Some Hon. Senators: Question!
The Chairman: Will those honourable senators in favour of the motion please say “yea”?
Some Hon. Senators: Yea.
The Chairman: Will those honourable senators who are against the motion please say “nay”?
Some Hon. Senators: Nay.
The Chairman: In my opinion, the “nays” have it. Would you like to have a standing vote?
Senator Bosa: Why don’t you call the vote again?
The Chairman: I am not empowered to call it again unless that is the wish of the committee.
Senator Barootes: Mr. Chairman, I have a suggestion to make. Why don’t we entertain the minister, receive his thoughts and then make the decision that the honourable senator wishes following that? If we have satisfaction from this level, we may not need a vote. If we do not have satisfaction, perhaps, then, that would be the appropriate time to say we will form a steering committee or subcommittee.
Senator Doody: Honourable senators, that is what I had in mind. We may be heading into a procedural wrangle or a vote that may not be necessary. I am not suggesting it will not be necessary. It may well be that we will have other meetings and other witnesses in this forum or another forum, but perhaps we could forestall the vote, or the confrontation or whatever, until after we hear the minister. Then we could decide what course of action the committee should take.
Senator MacEachen: Mr. Chairman, that is agreeable to me. I understood that the deputy leader had agreed previously to the notion of a steering committee. It was a surprise to me that a number of “nays” were uttered from the other side.
Senator Doody: I had, honourable senators, and then I heard that the numbers were back to five and three and the steering committee was to be the same sort of committee that would be preordained and preorganized. As I say, it may not be necessary to take a vote on the numbers and on the times and so on, but if it is the wish of the committee to do that, then that is what we will do. However, we would be better served by asking the minister to come before us now and then deal with the procedural aspects later.
Senator MacEachen: It is the government that wishes this bill. Therefore, it might begin to show some cooperation in accommodating the committee rather than taking this attitude.
Senator Doody: I do not think the government is taking an attitude. The government is trying to accommodate the committee.
We have tried to accede to the requests of the Senate in asking the minister to attend before us at the earliest possible opportunity. That he has done. He is now waiting outside the chamber. He wants to answer any questions that senators may have. Whatever the Senate wishes to do, obviously history and tradition point in the direction the Senate should take.
The government is not trying to be uncooperative. I thought we were trying to be most accommodating. I cannot quite understand what the problem is. If it will facilitate the movement of this bill through the Senate, then it will be three and five or eight and three or whatever. I just do not think it is necessary to get into that phase of it right now.
The Chairman: Is it your wish, honourable senators, to defer the matter for now and return to it later?
Some Hon. Senators: Agreed.
Pursuant to rule 18 of the Rules of the Senate, the Honourable Perrin Beatty, P.C., Minister of National Defence, Mr. W. Snarr, Executive Director, Emergency Preparedness Canada and Mr. H.J.L. Molot, General Counsel, Advisory and Administrative Law Section, Department of Justice were escorted to seats in the chamber.
Senator Doody: Honourable senators, I would like to welcome the Minister of National Defence to our chamber this evening, the Honourable Perrin Beatty, and his officials, Mr. Snarr and Mr. Molot.
In the event that honourable senators wish to ask questions directly of the officials, it will be necessary to have leave of the Senate to do so. If so, then I request that leave at this point. Certainly the minister is prepared to answer any or all questions honourable senators might have.
The Chairman: Thank you very much, Senator Doody.
Mr. Beatty, I want to add my words of welcome on behalf of the committee. I believe it is your first visit to the Senate. Following our normal procedure, we will hear your opening statement, if you have one, and then proceed to questions, if that is agreeable.
Hon. Perrin Beatty, Minister of National Defence: I thank you very much.
The Chairman: You have the floor.
Mr. Beatty: Thank you very much, honourable senators. It is indeed my first opportunity to appear in Committee of the Whole in the Senate. Those of us who sit in the House of Commons often eye covetously seats in the Senate. This one is a temporary gift from the Senate which I will be glad to surrender back to you later this evening, but I am honoured to have the opportunity to be here.
It is a tremendous pleasure for me to be able to be before you today on Bill C-77, the Emergencies Bill that is designed to replace the War Measures Act with comprehensive and properly safeguarded emergencies legislation.
I was saddened to learn that the Canadian people, and, more especially, the Canadian Forces, lost a good friend last Friday. Senator Paul Lafond had served his country with great distinction both in the RCAF during World War II, when he won the Distinguished Flying Cross, and in the Senate of Canada.
Never forgetting his military service and the need to improve Canada’s defence capabilities, he chaired the Special Committee of the Senate on National Defence and guided the committee through four studies, with one yet to be completed on Canada’s Land Forces, leaving his mark on Canadian history.
The recommendations of his distinguished committee are very familiar to me and as Minister of National Defence, I was guided by their wise proposals in preparing the White Paper. My wife, the Department of National Defence and the Canadian Forces join me in offering Mrs. Lafond and the members of his family our most sincere condolences.
Honourable senators, I read with considerable interest the record of the debate which took place in this chamber on second reading of the bill. Honourable senators have raised a number of points which merit careful consideration, and I will do my best to respond to these concerns during this evening’s deliberations.
Permit me to summarize briefly what I consider to be the major features of the bill.
The Emergencies Act will enable the federal government to fulfil its constitutional responsibility to provide for the safety and security of Canadians during “national” emergencies. This responsibility stems from the “peace, order and good government” clause of the Constitution and the so-called “emergency doctrine,” which has been elaborated by both British and Canadian courts since Confederation.
The bill will provide the government with appropriately safeguarded authorities to deal with four types of national emergencies: public welfare emergencies; public order emergencies; international emergencies and war emergencies. It will enable the government to act quickly to minimize injury and suffering in a national emergency and, at the same time, ensure that the exceptional powers acquired are no greater than those absolutely necessary to deal with the situation. In other words, there will be proportionality between the severity of the emergency and the response of the government.
The bill will enable the government to mount a national response when a major disaster or situation involving public disorder either extends beyond the boundaries of the single province or exceeds the capacity of the province to deal with it effectively.
It will enable the government to react to a serious international emergency by instituting, in concert with our allies, appropriate and gradual pre-emptive and preparative measures designed to stabilize the situation and prevent further deterioration. Under current legislation, the only option open to the government would be the much more provocative step of invoking the War Measures Act.
The Emergencies Bill will remove the need to deal with national emergencies by hastily introducing ad hoc legislation during the confusion and disruption, which is characteristic of the early stages of a national emergency.
Finally, it will help to improve the national standard of emergency preparedness by stimulating emergency planning within the federal government and in cooperation and consultation with the provinces.
I would like to take a moment to review in more detail some of the federal-provincial aspects of this bill. In a federal state where jurisdiction is divided between two levels of government, each vested with its own area of jurisdiction and exclusive responsibilities, the cardinal principle in normal times must be that neither shall infringe upon the rights of the other; that is, that each shall respect the boundaries of its own jurisdiction.
The emergency doctrine affirms that in times of national crisis the federal government may, on behalf of the country as a whole, act in areas which are normally within the legislative competence and jurisdiction of the provinces. The problem, then, is how best to centralize control while achieving the close degree of federal-provincial cooperation necessary to integrate responsibilities and coordinate efforts to provide for the safety and security of Canadians.
The absence of any legal requirement to consult with the provinces before exercising federal powers under the emergency doctrine has been the subject of some comment by several groups which have examined the issue in the broader context of constitutional reform. Studies such as the Task Force on Canadian Unity, the 1976 “beige paper” of the Quebec Liberal Party, the report of the Canadian Bar Association Committee on the Constitution, and a report of the Standing Committee of the Senate, the Goldenberg report, reached a common conclusion, namely, that federal-provincial cooperation and consultation is a vital factor in designing any new approach for dealing with national emergencies in Canada.
Bill C-77 has been carefully drafted in close consultation with the provinces. It represents a consensus of the views of the territorial, provincial and federal governments. The bill that has flowed from that consensus will, I believe, protect and respect legitimate provincial interests, while allowing the fed-
eral government to fulfil its responsibility to deal effectively with national emergencies.
Under Bill C-77, the provinces must be consulted before a national emergency is declared. Subsequently, the federal government must exercise its emergency powers with a view to achieving concerted action with the provinces. In the case of a public welfare or public order emergency in which the effects of the emergency are confined to a single province, the federal government may declare an emergency only after the province concerned has indicated that its capacity to cope has been exceeded.
In response to a point raised by Senator Hicks, let me reassure honourable senators that the consultation provisions will not impede the federal government in responding in a timely manner to emergencies requiring a national response. For international or war emergencies, areas which are of clear federal jurisdiction, the bill calls for consultation only “to the extent that is appropriate and practicable to do so in the circumstances.” Even for peacetime emergencies there is nothing resembling a provincial veto, except where the emergency is confined to a single province and where the sole ground for federal intervention is the inability of the province to cope with the situation. In these circumstances, the act defers to the judgment of the province as to its capabilities. Even here, however, if the effects of the emergency have national implications, the federal government could intervene in spite of provincial objections.
Perhaps even more important than the federal-provincial dimension of emergencies legislation is the question of the balance between adequate authorities, on the one hand and the preservation of fundamental rights and freedoms, on the other.
A large portion of Bill C-77 is devoted to provisions that construct a comprehensive regime of both judicial and parliamentary safeguards against the misapplication or abuse of emergency powers. The act will be subject to both the Canadian Charter of Rights and the Bill of Rights and must have regard to the International Covenant on Civil and Political Rights. The balance between authorities and safeguards which has been struck in Bill C-77 represents the product of extensive public consultation and thoughtful recommendations from public interest organizations. In particular, I might mention the contribution made by the Canadian Bar Association, the Canadian Civil Liberties Association, the National Association of Japanese Canadians and the Ukrainian-Canadian Committee.
Several of the organizations which presented briefs expressed their satisfaction with the process that permitted their views to be heard and, in very many cases, to be acted upon favourably.
The mainstay of the protection of fundamental rights and freedoms is the Charter, and under C-77 the normal mechanisms for applying Charter protections will be upheld.
Section 33, the notwithstanding clause of the charter, has not been used in the bill and cannot be invoked by Order-in-Council. The added protection of the Bill of Rights is of particular significance since some provisions of the bill are not duplicated by the Charter, for example the protection of the right to the enjoyment of property and the provision for a fair hearing for the determination of rights and obligations.
Bill C-77 is subject to both judicial and parliamentary sanctions. Any limitation of Charter rights which a government might consider necessary in a national emergency would be subject to at least two channels of judicial review. In the first place, the Governor in Council could be challenged in court to demonstrate that there were reasonable grounds for declaring an emergency, as well as reasonable grounds for each of the orders or regulations made pursuant to the declaration.
Second, under section 1 of the Charter, the government could be challenged to demonstrate that Charter limitations imposed were “reasonable and demonstrably justifiable in a free and democratic society”. It is difficult to imagine a government going ahead with measures if there were any doubts about its ability to justify its actions in court.
There are many features of this emergencies legislation that will ensure that the government will be accountable to Parliament and, through Parliament, to the people of Canada for its use of emergency powers. The list is long, but if you will bear with me I would like to summarize the key ones ad seriatem:
-application is confined to “national emergencies” which are precisely defined in the bill;
-specific powers are set out for four types of national emergency, each of which is also precisely defined;
-following invocation of the legislation, the government must come before Parliament without delay, with an explanation of the basis for its action and with a report of its consultations with the provinces, and seek Parliament’s confirmation of the declaration of emergency;
-if Parliament is not in session, it must be recalled, and, if dissolved, must be called at the earliest opportunity to consider the government’s emergency actions;
-both houses must approve the declaration;
I might just depart from my text here, honourable senators, to say that it was a matter of some contention when this bill was before the House of Commons committee as to whether or not we should include a veto on the invocation of the legislation for the Senate. One can easily see circumstances where a majority in the House of Commons would be in favour of proceeding and the Senate might not. We took the decision that we were protecting civil liberties of Canadians; that this double veto was defensible and necessary and that the refusal by either house-either the Senate or the House of Commons- to approve the declaration would result in its being struck down. It is a double parliamentary protection for the rights of Canadians.
To continue the list:
-all orders and regulations must be promptly tabled in Parliament;
-a review committee of both houses, with all-party representation, must be struck to continuously monitor the government’s use of the legislation;
– either house can initiate a motion to revoke or amend the declaration, or any order or regulation;
Again, honourable senators, let me depart here from my text. Let us visualize a situation where both houses of Parliament have approved the invocation and then, after that, it has been tested in the courts and the courts have found that what was being done by the government was legal and proper and that the government was capable of justifying the fact that an emergency existed and was able to demonstrate that in all cases what it was doing was consistent with what was acceptable in a free and democratic society. Let us go one step further and say that, even if there had been an attempt, for example, to have it struck down in the House of Commons and the House had voted to leave the measures in the legislation in force, the Senate would be capable of putting down a motion to revoke or amend the declaration or any order or regulation- again, giving that double scrutiny.
-the government must have the continued support of both houses for its actions, since a revocation or amendment motion is effective if passed by either house;
-the declaration automatically expires after a set period unless renewed by Parliament;
-on continuation of a declaration, all active orders and regulations must be confirmed by Parliament;
-the review committee must report regularly to Parliament, and in any case must report whenever a motion to revoke or continue a declaration is tabled;
-there is no automatic closure on debate of motions of confirmation, revocation or continuation of a declaration;
-if there is a need for secret orders or regulations, they will be subject to review and possible revocation or amendment by the review committee meeting in camera.
Honourable senators, this might apply in cases where action had to be taken about specific installations that were essential in wartime, for example, where it would not be possible to indicate publicly where those installations were.
-a comprehensive inquiry must be conducted following the termination of an emergency, and reported on within one year.
Honourable senators, if, in spite of this exhaustive system of constraints and safeguards, anyone suffers loss or damage as a result of the government’s use of its special powers, that person will be able to obtain compensation. The legislation provides for a compensation process which the government is obliged to put in place and which includes an appeal process overseen by a federal judge acting as an “assessor.” If someone is not satisfied with the compensation provided by this administrative process, then he or she is free to seek redress through the more formal, judicial route under the Crown Liability Act.
During second reading debate, several honourable senators raised questions about the powers which Bill C-77 grants to the government during a war emergency and, in particular, how these powers differ from those of the War Measures Act.
I can understand these concerns, since a simple comparison of the bare statements of the powers in the two pieces of legislation- clause 40 in Bill C-77 and clause 3 in the War Measures Act-suggests that there is not much difference. Let me assure you that the difference between the two pieces of legislation is very great indeed, and in fact represents much of the reason why Bill C-77 is a longer, more complex piece of legislation. The War Measures Act incorporates almost no safeguards. Bill C-77 includes a structure of safeguard upon safeguard which taken together render misuse of the legislation virtually impossible. Let me review some of these.
First, with regard to the definition of a war emergency, C-77 removes application to “insurrection”, and by incorporation of the general definition of national emergency, confines application to situations which seriously threaten the ability of the government to preserve the sovereignty, security and territorial integrity of Canada. In addition, the latter definition adds the important provision that the situation must be such that it cannot be effectively dealt with under any other law of Canada.
Thus the field of application of Part IV of C-77 is narrower than that of the War Measures Act. Under the War Measures Act, the declaration is conclusive evidence that the invocation is necessary; under C-77 the government must justify invocation to Parliament, and furthermore, its action is challengeable in the courts since there must be “reasonable grounds” for invocation. Under the War Measures Act, the only constraint on specific measures is the Charter.
Under C-77, there must be “reasonable grounds” for the necessity of all measures taken, and they are put under continuous scrutiny by Parliament with specific procedures for amendment or revocation of the orders or regulations on which the measures are based.
The War Measures Act has no time limit. C-77 limits the duration of war powers to 120 days, and they can only be renewed if Parliament is pursuaded that renewal is necessary. Both the War Measures Act and C-77 are subject to the Charter, but only C-77 is subject to the additional protection of the Bill of Rights.
Under the War Measures Act, one could conceive of the government claiming in a particular case that the discriminatory internment was “reasonable and demonstrably justifiable in a free and democratic society,” arguing that the terms of section I of the Charter were met. But Bill C-77 rules out this loophole unequivocably.
Honourable senators, I stress that point in particular. Never again in Canada will we have the travesty where Canadian
citizens are incarcerated in internment camps based upon their country of origin or their racial and ethnic heritage. It is specifically forbidden under the terms of this legislation, unlike the case with the War Measures Act where the rights of hundreds of Canadians have been abrogated in the past.
The War Measures Act makes no provision for compensation for losses suffered by individuals as a result of the application of the act. Bill C-77 includes a compensation regime. Thus, while the bare engine under the hood of Bill C-77 may look a lot like the War Measures Act, the vehicle has vastly improved steering, brakes and speed controls and operates at all times under the watchful eyes of parliamentary and judicial traffic cops.
Let me respond briefly at this time to a few specific points raised during debate by Senator Stewart, although I suspect that honourable senators may want to explore these important matters in more detail later. The senator raised three questions, all in relation to measures taken by order in council during a war emergency. These were: conscription, internment and the imposition of new taxes. First, with regard to conscription, our advice is that this would be legally possible by order in council under Part IV of Bill C-77, but whether it would also be politically feasible is a question that can only be answered at the time. In addition to the various constraints on such action which I have already touched upon, there is additional Charter protection which forbids forcing Canadian citizens to leave the country. Thus, to send conscripted troops overseas, the test of section 1 of the Charter would have to be met. Internment by order in council would be possible in a war emergency under Bill C-77, but, again, only if reasonable grounds for its necessity were present and the Charter conditions were met. Habeas Corpus would continue to apply and continued detention would be challengeable under section 1 of the Charter. As I mentioned earlier, discriminatory internment would not be possible under Bill C-77 under any circumstances, since clause 4 specifically rules out the use of Bill C-77 for internment on the basis of race, national origin and so on.
Finally, with regard to taxation, I am pleased to say that I can give a short, unequivocal answer. Taxes cannot be imposed by order in council. The Constitution sets out quite specific procedures for levying taxes and a bill is always required. I think, honourable senators, that that is all I need say about the detail of Bill C-77. I am sure that you will want to explore more deeply specific areas of the act’s purview.
I conclude, before inviting any questions or comments from honourable senators, by offering one other personal note. The last time the War Measures Act was invoked, October 1970, it was a case of considerable concern for members of Parliament on ail sides of the house. It was an instance, as well, where there was great agonizing among all Canadians. Each one of the political parties represented in Parliament gave a good-faith commitment to Canadians that they wanted to see that odious act, the War Measures Act, scrapped for all time, and to ensure that in future, while the government would have the powers to respond in an effective way in times of emergency, the basic civil rights of Canadians could never again be abrogated in the way they were taken away in the past under the War Measures Act. That was October 1970. It is now 1988, some 18 years later. I believe that all political parties, all parliamentarians have an obligation to deliver on that commitment and to do so in good faith and with expedition. I think Canadians have a right to expect that we will pass this legislation and a right to expect that we will put in place a regime which will give the government the powers it needs to protect the integrity of Canada, our survival in times of crisis and individual safety in cases where individuals might be put in jeopardy and ensure that we will have at ail times adequate protection of the civil liberties of every Canadian. If we can pass this legislation, and do so before more time elapses, then we will have done credit to Parliament and we will have honoured the commitment made in good faith by each of the political parties so many years ago.
Thank you, Mr. Chairman. If honourable senators have any questions, I would be pleased to receive them.
Senator Stewart (Antigonish-Guysborough): Mr. Chairman, I am sure we appreciate the minister’s exposition of the bill and his emphasis on safeguards. First, I would like to ask: Is it not true that the Canadian Charter of Rights, the Canadian Bill of Rights and the International Covenant apply now in the case of the War Measures Act?
Mr. Beatty: Mr. Chairman, it is not true. The Canadian Charter of Rights applies in the case of the War Measures Act, but the Bill of Rights does not apply. However, the Bill of Rights will apply in the case of Bill C-77 .
Senator Stewart (Antigonish-Guysborough): Where is that provided outside the preamble?
Mr. Beatty: Subsection 6(5) of the War Measures Act excludes the Canadian Bill of Rights.
Senator Stewart (Antigonish-Guysborough): And you are contending that without explicit provision in the operative clauses of this bill the Bill of Rights will prevail?
Mr. Beatty: Yes. I am sure that the honourable senator is aware that there is in the preamble specific reference to the Bill of Rights, which specifically ensures that it will apply. However, without specific exclusion the Bill of Rights would apply in a statute such as this.
Senator Stewart (Antigonish-Guysborough): You have emphasized at considerable length and in detail the safeguards in this bill, and you have talked about wiping out the odious War Measures Act. In what particulars do the powers delegated to the Governor in Council under this legislation differ from the powers of the Governor in Council under the War Measures Act when a declaration has been made in the situation contemplated under clause 38 of this bill, other than those protections afforded under the Charter of Rights, the Bill of Rights and the International Covenant?
Mr. Beatty: Mr. Chairman, Senator Stewart is referring to the declaration of a war emergency. I mentioned some cases where there are substantial differences between Bill C-77 and
the War Measures Act. For example, under the War Measures Act, it was legally possible to incarcerate Japanese Canadians based on their racial origin.
Senator Stewart (Antigonish-Guysborough): I have already set that aside. I accept that point; indeed, I mentioned it in my speech on the motion for second reading.
Mr. Beatty: That is specifically excluded in this bill.
Senator Stewart (Antigonish-Guysborough): What I am asking is: Aside from those exclusions, bow do the powers differ?
Mr. Beatty: It would differ as well because of the application of the Bill of Rights, which does not apply in the case of the War Measures Act.
Senator Stewart (Antigonish-Guysborough): In other words, what you are saying is that simply by enacting that the Bill of Rights and the Covenant would apply as limitations on the War Measures Act you could have achieved virtually the same result.
Mr. Beatty: Not at all. The most disgraceful application ever of the War Measures Act was the incarceration of, for example, Japanese Canadians. Simply applying the Charter of Rights and-
Senator Stewart (Antigonish-Guysborough): The Covenant. Mr. Beatty: -the Bill of Rights-
Senator Stewart (Antigonish-Guysborough): And the Covenant.
Mr. Beatty: -and the Covenant would not necessarily guarantee that that sort of incarceration based on ethnic heritage could flot take place.
Senator Stewart (Antigonish-Guysborough): But you can incarcerate Canadian citizens on any ground other than those specified in clause 4(b).
Mr. Beatty: Could you repeat the question?
Senator Stewart (Antigonish-Guysborough): Incarceration on grounds other than those specifically excluded in clause 4(b) would be permissible under the proposed legislation, is that correct?
Mr. Beatty: Yes.
Senator Stewart (Antigonish-Guysborough): Does that include internment?
Mr. Beatty: Yes, for example, internment of prisoners of war.
Senator Stewart (Antigonish-Guysborough): What about Canadians suspected by the Governor in Council or, perhaps, the Minister of Justice-as during the Second World War-of being security risks?
Mr. Beatty: It would depend, obviously, on how it was defined. In the case of the Second World War, the security risk was based on the individual’s ethnic heritage.
Senator Stewart (Antigonish-Guysborough): I am not talking about that. I am talking about Canadian citizens who are not Japanese but ordinary Canadian citizens born in this country, such as the Mayor of Montreal. Could the Mayor of Montreal have been interned under this proposed legislation?
Mr. Beatty: You would have to, Mr. Chairman, establish reasonable cause and it would be testable as well under the Charter in the courts.
Senator Stewart (Antigonish-Guysborough): You are saying seriously that, under this provision, all those persons interned, incarcerated or detained-whatever term one wishes-could bring their cases to trial in court on the facts of their particular cases.
Mr. Beatty: Absolutely, and that is the least they have the right to expect.
Senator Stewart (Antigonish-Guysborough): I am not arguing the point, I am just trying to contemplate the situation in the courts.
Mr. Beatty: When you look on the deprivation of an individual’s liberty as incarceration in an internment camp, we, as parliamentarians, must bend over backwards to ensure that the rights of the subject are protected.
Senator Stewart (Antigonish-Guysborough): I do not think you are confronting my question directly. As I see what would happen, there would be the declaration of an emergency and then an order in council would be made authorizing defence of- Canada regulations, or whatever the term would be, and under those regulations, in turn, there would be other regulations. One of those other subordinate regulations might say that the Minister of Justice or his deputy could utter an order authorizing the internment of a particular person on security grounds. The interned person then would have a right to a writ of Habeas Corpus. He would get that writ and go into court.
At that point the agent of the Minister of Justice would appear and display the order. the question is: Will the person who is challenging his own detention be able to require the government to disclose the facts on the basis of which the detention order against him had been made?
Mr. Beatty: To the court, yes. What is more, if you had a sweeping regulation of some sort that purported to allow classes of individuals to be swept up, as opposed to one individual, that very regulation itself could be tested before the courts.
Senator Stewart (Antigonish-Guysborough): I should like to ask the minister if he has asked his officials specifically about the kind of situation to which I am now referring, or is be just answering out of what seems to be common sense?
Mr. Beatty: In the preparation of the bill, we have gone over every single clause of the bill. I have pursued the question of how we can build in protections for individual Canadians throughout, and what we have in the legislation before the Senate today is the most comprehensive set of protections for civil liberties that has ever existed in this sort of legislation.
Senator Stewart (Antigonish-Guysborough): You can say that, but I am trying to find out just what the protections really are.
Mr. Beatty: Absolutely, and that is why, senator, I went to considerable pains in my opening remarks to respond to some of the misapprehensions you have.
Senator Stewart (Antigonish-Guysborough): Perhaps we are getting too defensive. You have told us that conscription could be introduced without a decision by the Parliament of Canada, but you question whether conscripted persons could be sent outside Canada. Is that correct?
Mr. Beatty: That is right. Of course, a decision based an any regulation which the Governor in Council makes under the bill is testable on a number of grounds before the courts and also in both houses of Parliament. If there were an attempt to use this legislation to avoid putting in an ordinary bill dealing with conscription, members of either house, the House of Commons or the Senate, could put a motion to nullify the order.
Senator Stewart (Antigonish-Guysborough): But the presumption is reversed. In the situation your bill will create, the Governor in Council will bring in conscription. Later, perhaps many weeks later if Parliament is dissolved, Parliament will have a chance to review what the government has already done, but by then the boys and girls will already be in uniform in camps. It is going to be difficult to unscramble that situation.
Mr. Beatty: As a former joint chairman of the Standing Joint Cammittee on Regulations and Other Statutory Instruments, I have some considerable sensitivity to the abuse by government of delegated legislation. Having had a goad deal of experience over the years, I can tell the honourable senatar that I am not aware of a single instance which came before the committee while I was joint chairman in which the protections were as sweeping as they are here, and, indeed, if one looks at the powers we have today under the War Measures Act, the powers that are here are considerably mare circumscribed or restrained. In the case of the War Measures Act, one might ask oneself why governments would not have used the old War Measures Act for conscription.
Senator Stewart (Antigonish-Guysborough): We are not here to defend the War Measures Act; rather, we are trying to do what was not done in the case of the War Measures Act in 1914 or in 1939.
Mr. Beatty: Absolutely.
Senator Stewart (Antigonish-Guyshorough): That is why I suggest we should not be defensive. Would you repeat the grounds on which you asserted that military personnel could not be sent overseas.
Mr. Beatty: It is because of the provisions of the Charter.
Senator Stewart (Antigonish-Guysborough): Specifically what section?
Mr. Beatty: Section 6(1).
Senator Stewart (Antigonish-Guysborough): What does that state?
Mr. Beatty: It states:
Every citizen of Canada has the right to enter, remain in and leave Canada.
The emphasis, as is pointed out to me, would be on the word remain.”
Senator Stewart (Antigonish-Guysborough): You have legal advice that section 6(1) does not mean, simply, that ordinary Canadians-these who are not in the special status of members of the armed forces-have the right to remain in Canada?
Does section 6(1) refer to members of the Canadian Armed Forces?
Mr. Beatty: It is absolutely inclusive. That is the advice I have received.
Senator Stewart (Antigonish-Guyshorough): You say that new taxes could not be imposed, but, of course, the government has a continuing right to tax, not to impose new taxes, so new money will be going annually into the Consolidated Revenue Fund. That would not be the case in the United Kingdom where they have to re-enact their finance bill each year.
Let us turn to appropriations. Under what situations could the Governor in Council authorize appropriation from the Consolidated Revenue Fund, without prior resort to Parliament, if this bill were to become law?
Mr. Beatty: That would occur in reasonable circumstances which would have been provided for by Parliament.
Senator Stewart (Antigonish-Guysborough): When you say “reasonable circumstances,” do you mean there has to be a prima facie case.
Mr. Beatty: Yes. The government has the power now to reallocate funds within the funds provided for by Parliament.
Senator Stewart (Antigonish-Guysborough): Yes, I understand that.
Mr. Beatty: But you could not simply divert the funds from one particular vote of Parliament to something that was totally unrelated to it without violating the law.
Senator Stewart (Antigonish-Guyshorough): We know that; but what you seem to be saying now is that under this proposed act there could be major new appropriations without specific parliamentary authorization and quite aside from the provisions of the Financial Administration Act.
Mr. Beatty: Let us take a look at what in fact we are saying. Senator, you suggested that we would be able to impose the right to tax by order in council. That is wrong.
Senator Stewart (Antigonish-Guysborough): I am not asserting that.
Mr. Beatty: You did previously.
Senator Stewart (Antigonish-Guysborough): No, I did not; I asked that question.
Mr. Beatty: You asked it rhetorically, and the answer is that you cannot do that.
Secondly, with delegated legislation, yes, you do have the ability-with all sorts of delegated legislation-to create new organisms or to create bodies which need to be funded. That exists in statute after statute in our law. There is nothing novel about that at all. To suggest that there is something somehow peculiar in the case of Bill C-77 is simply wrong.
Senator Stewart (Antigonish-Guysborough): You are saying that with this new act on the statute books Appropriation Acts of the kind that are now required would be necessary in every circumstance?
Mr. Beatty: The same rules would apply in the future that apply now.
Senator Stewart (Antigonish-Guysborough): Are you saying that there is no change in the-
Mr. Beatty: Pardon?
Senator Stewart (Antigonish-Guysborough): I want to make sure I am not interrupting, because I want you to get the best information that is available to you from your officials.
I want to know what difference this measure would make with regard to the appropriation of funds by the Governor in Council. We know there are certain circumstances, such as with Governor General’s Warrants, under which this can be done. What new abilities will the Governor in Council have to appropriate funds if this bill becomes law?
Mr. Beatty: None that is novel in any way.
Senator Stewart (Antigonish-Guysborough): Then why is it provided in the bill that in the case of an international emergency there can be appropriation?
Mr. Beatty: What clause are you referring to? Are you referring to clause 36?
Senator Stewart (Antigonish-Guysborough): Would you look at clause 30 (1)(j), which states:
the authorization of expenditures for dealing with an international emergency in excess of any limit set by an Act of Parliament and the setting of a limit on such expenditures;
Mr. Beatty: That is simply the ability to top up things like revolving funds and so forth.
Senator Stewart (Antigonish-Guyshorough): Oh come! It states:
the authorization of expenditures for dealing with an international emergency in excess of any limit set by an Act of Parliament–
That is a little more than topping up.
Mr. Beatty: I am advised that the only case where such limits are placed is in acts dealing with revolving funds, for example. It does not say “appropriation,” incidentally, in that clause.
Senator Stewart (Antigonish-Guysborough): I would be interested in hearing the distinction.
Mr. Beatty: An example, senator, would be that the Export Development Act or the Defence Production Act may have limits in terms of the amounts of money that can be spent under those acts, quite apart from any amounts of money that might have been voted and appropriated by Parliament. This would allow one to waive the limit, but would be consistent with the appropriation powers of Parliament. Parliament would have appropriated the funds for that purpose.
Senator Stewart (Antigonish-Guysborough): Clause 40(1) 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.
Would appropriation be possible by order or regulation under that clause?
Mr. Beatty: No, because there is a constitutional requirement that there be a bill to appropriate funds. The Constitution supersedes the provisions of the bill.
Senator Stewart (Antigonish-Guysborough): I understand that, but surely a government not a government in which you were a member, of course-would argue that an order made under this clause would be adequate.
Mr. Beatty: That is a novel construction, senator; you are right that I would not argue that. I would be very surprised if anyone else did.
Senator Stewart (Antîgonish-Guysborough): A similar argument was made during the First World War, not with regard to the appropriation of money but in relation to putting aside the provisions of a statute.
Mr. Beatty: I missed World War I, and my memory may be faulty there, but, as a parliamentarian, one thing I know is that the development of parliamentary democracy stemmed in large part over the issue of control of the purse. Precedents are well established in jurisprudence, and the long struggle for the development of parliamentary democracy would forbid precisely that.
Senator Stewart (Antigonish-Guysborough): I want your word on the record, and that of reliable authorities, that, in fact, we are not setting aside the great tradition to which you referred.
Mr. Beatty: Absolutely not, senator.
Senator Stewart (Antigonish-Guyshorough): All right.
When I say “All right,” I am thanking you for what you have said; I do not mean I necessarily agree.
I was pleased when you were explaining the measure that you said candidly that in many of the situations contemplated
it would be necessary to rely upon the peace, order and good government clause. As we know, this is a clause which has been used to take over matters which normally are under the exclusive legislative jurisdiction of the provincial legislatures. Would it be possible under clause 40(1) to forbid provincial borrowing in foreign money markets?
Mr. Beatty: The advice I receive is that it may be.
Senator Stewart (Antigonish-Guysborough): Can we get a definitive answer? I ask that question because that was an important constitutional question in the fall of 1939.
Mr. Beatty: I suppose if one were to look at hard cases, and if a province wanted to borrow money from a country with which Canada was at war-
Senator Stewart (Antigonish-Guysborough): Something of worry to the Government of Canada would be the matter of foreign exchange controls. It might want to intervene to prevent Nova Scotia, for example, from disrupting its emergency planning with regard to the control of foreign exchange. I am asking if the Governor in Council could intervene under this provision to say that a provincial government could not borrow U.S. dollars or British pounds.
Mr. Beatty: I will seek legal counsel on that, senator. Senator Stewart (Antigonish-Guysborough): I think it would be helpful if we had an answer to that question. Let me ask you this-
Mr. Beatty: I can convey that advice to you rapidly. The advice I have received is that it would be possible.
Senator Stewart (Antigonish-Guysborough): Thank you for that answer.
You say that you have examined all of the possibilities. You assert that you believe that this bill would be adequate to permit the Government of Canada to do what would be necessary in the case of an international emergency or a war emergency. You have extolled planning. Does the government have an emergencies book? Have you starting drafting orders in council under this bill?
Mr. Beatty: Work in this area, senator, has been in place for the last 20 or 25 years.
Senator Stewart (Antigonish-Guysborough): So, in a sense, you do have a war book or an international emergencies book?
Mr. Beatty: Yes, senator, we do have the elements of it, I gather.
Senator Stewart (Antigonish-Guysborough): That is why you are convinced that this bill provides you with an adequate foundation for any order or regulation that you might need.
Mr. Beatty: I am convinced, because my advisers from the Department of National Defence and Emergency Preparedness Canada have looked at what the needs would be in a time of crisis and have satisfied themselves that powers that would be essential to them to carry out their responsibilities would be there.
Senator Stewart (Antigonish-Guysborough): When he was speaking to us on April 28, Senator Kelly made reference to what he called “the 1970 incident,” and 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.
You have just told us that you tried to anticipate every requirement. Do you have draft orders or regulations for the kind of situations to which Senator Kelly referred?
Mr. Beatty: You are referring to a situation analogous to the October 1970 crisis?
Senator Stewart (Antigonish-Guysborough): I am referring to whatever the situation was about which Senator Kelly spoke when he moved second reading.
Mr. Beatty: One would like to be privy to all of the information that the Government of Canada then had at hand. On the strength of what I have seen, senator, it was the usual criminal processes that were used that were helpful in terms of dealing with the killers of Pierre Laporte and the kidnappers of James Cross. I think the invocation of the War Measures Act in that instance was unjustifiable. I agree with the late Don Jamieson that, on the strength of anything that I have seen, the justification for the invocation was not there. I believe that in a similar circumstance the ordinary provisions under the Criminal Code and ordinary police procedures would have been adequate to deal with such a crisis.
Senator Stewart (Antigonish-Guysborough): You are saying, therefore, that this bill really would not apply in a case of insurrection, real or apprehended. Do you think that this bill would not apply to a genuine case of insurrection, real or apprehended?
Mr. Beatty: I am saying that, if there were a public order emergency, the bill specifically applies such that essential services could be restored or restrictions could be placed upon freedom of assembly. We could provide protection for vital points in cases where there was civil disorder. The question you asked previously related to the October 1970 crisis. I cannot comment on what information was available to the government at the time. Mr. Turner then said he hoped that one day all Canadians would know the basis on which the government took the decision it did. I do, too, but, on the strength of what I have seen to date, I could not have justified to cabinet or to the Canadian people the invocation of the War Measures Act.
Senator Stewart (Antigonish-Guysborough): We talked earlier about the delegation in an emergency to the Governor in Council of matters that normally fall under the jurisdiction of provincial legislatures. Have you consulted with the government of the province of Quebec, for example, on the matter of censorship or control of provincial borrowing?
Mr. Beatty: Throughout the whole of the writing of the bill, which literally extended over a period of years, there was close consultation with all of the provinces. Indeed, we received
representations from the Province of Quebec that I believe were made public before the House of Commons committee. Senator Stewart (Antigonish-Guysborough): You are telling us that the government of the province of Quebec is completely satisfied with the provisions of this bill relating to situations in which the Governor in Council would be exercising powers that are normally under provincial jurisdiction.
Mr. Beatty: Yes. what I am saying, senator, is that we invited from each of the provinces an expression of any concerns it bad. A number of concerns were expressed by a number of different provinces, the vast bulk of which concerns were dealt with through modifications to the initial draft of the bill. My understanding is that the Government of Quebec is satisfied with this bill, as are the other provincial governments.
Senator Stewart (Antigonish-Guysborough): Is the government of the province of Quebec satisfied with the specific provisions for dealing with what was thought of in 1970 as insurrection, real or apprehended? Does the Premier of Quebec think that this wili give you an adequate legal regime for dealing with that kind of situation?
Mr. Beatty: I personally met with the minister responsible from Quebec. A succession of meetings have been held at the officials level. We have received official correspondence from the Government of Quebec, and it was not the Premier of Quebec who responded to the letter but the appropriate minister. He was speaking on behalf of the Province of Quebec, indicating the satisfaction of the Government of Quebec with the sort of changes we were looking at.
Senator Stewart (Antigonish-Guysborough): I am sure, Mr. Chairman, that other senators want to ask questions. May I ask one more?
The Chairman: Ail right.
Senator Stewart (Antigonish-Guysborough): I wanted to ask a question concerning the Parliamentary Review Committee. Subclause 62(1) makes a provision for a committee of both houses. Then, subclause 62(2) states:
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.
Reading those two subclauses together suggests that the participation of one senator would be adequate to constitute a joint committee. there is no rule, either here or elsewhere, with regard to the proportion of members on joint committees. This matter was debated when the joint committee on Meecb Lake was being set up. We thougbt that the present government was very unreasonable in the stand it took with regard to the number of senators wbo would be members of that coinmittee. One member from. the Senate would suffice to make a committee qualify as a joint committee. In the prescrnt Parliament, that could be a Conservative senator. Perhaps in another Parliament, a Liberal senator-or even, possibly, an NDP senator, if the NDP had a majority in the House of Commons. I do not want to distract you with that-
Mr. Beatty: It tantalizes me, senator, wben you mention an NDP senator.
Senator Stewart (Antigonish-Guysborougii): Let us think of the problin without having particular parties in mind. It seems to me that something migbt be done to this part of the bill to ensure that both sides of the Senate would bc represented on that comrittee.
Mr. Beatty: Senator, in designing this particular provision of the bill, we did not attempt to fix what wouid be the absolute number of members from the House of Commons, for that matter. We did try to provide that there would be representation from each of the political parties in the House of Commons. It would also be possible, presumabiy, that representation of the Senate migbt involve independent senators. One would hope that reasonableness would apply in any case where the two houses are calied together to meet with one another.
Wben you say, senator, that you feit that the government of the day was unreasonable in terms of the number of senators included in the Meecb Lake committee, I could say that members of the NDP probably feit that the government was unreasonable, too, in terms of the number of senators included, but for different reasons.
Senator Stewart (Antigonish-Guysborough): You make my point, namely, that reasonableness is a highly subjective test. It seems to me that to plead reasonableness is almost as unreliable as pleading goodwill as a basis for procedure.
Mr. Beatty: Senator, as long as you are here, I am sure there wiil be goodwili and there will be no difficulty with that.
Senator Stewart (Antigonish-Guysborough): Come now!
Mr. Beatty: In many elements of parliamentary and constitutional procedure in the past we have resisted setting up very rigid structures which are not capable of being adapted to particular circumstances. I do not think it is unreasonable to expect there would be goodwill in a national crisis or that reasonableness would apply.
In the provisions of this bill-nany of which I mentioned to you earlier-we bave buiit a panopiy of protections for civil iiberties, a structure which ensures involvement by members of the House of Commons and senators that is unprecedented. I cannot think of a single piece of legislation that has come before Parhiament in my 16 years as a member of Parliament which has built in so many checks and balances to protect civil liberties, using both the courts and Parliament.
Senator Stewart (Antigonish-Guysborough): You are pleading that the provisions for parliamentary surveillance bere are sweeping and, indeed, highly detailed. You do not rely upon reasonableness when you come to other major provisions in that saine clause. The bill says, “within three sitting days” and “within seven sitting days.” There the bill is very specific. However, in subclauses 62(1) and (2), you rely on reasonableness.
Mr. Beatty: Senator, we could write all sorts of additional rules for the committee and constrain the committee much more than we have done. We have tried to stick to the essentials here. I believe we have struck a formula which ensures proper parliamentary scrutiny and involvement, but also gives sufficient flexibility to deal with the specific circumstances of the day.
Senator Stewart (Antigonish-Guysborough): Our differences have been adequately recorded. Therefore, Mr. Chairman, I will not pursue this point.
The Chairman: The next senator on my list is Senator Marsden, followed by Senator Neiman.
Senator Marsden: I would like to deal with the public welfare emergency sections. I do not bring to the question the kind of knowledge or parliamentary experience that Senator Stewart does. However, I am interested in how this might apply to a number of situations. As I am sure you know, one has to imagine what might occur in order to understand how this will apply.
In responding to Senator Stewart about the internment situation, you referred specifically to subclause 4(b) and the basis on which people can no longer be interned-race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. I believe those items cover all grounds in the Charter.
There are a number of grounds that are not covered in the Charter. How do you think this bill would apply in a situation which is currently facing the country in relation to disease in human beings, and that is the current ferment on the subject of AIDS? There are people who take very extreme positions about what ought to be the situation of those who are HIV positive or, in fact, have the disease. Would it be a correct interpretation of this section to suggest that, should a government accept that kind of argument, people might be interned, and, given that AIDS affects all kinds of people from all classes, but is heavily concentrated at the moment in homosexual people-and sexual orientation is not a protected ground under the Charter, nor is it in this bill-that such people might be detained or interned? Paragraph 8(1)(g), for example, would allow the government to establish emergency shelters and hospitals. We are not necessarily talking about internment camps. Would detainment in that case be possible as a public welfare emergency?
Mr. Beatty: Senator, you are referring to the public welfare provisions. There is no power of internment whatsoever, and that sort of situation would not apply. You would indeed have the ability to establish emergency shelters or hospitals. In a case where a natural disaster destroyed the housing of hundreds of thousands of people-because of an earthquake, for example-you would be required to set up immediately provisions to provide for shelter, for hospitals and so on for the people who are affected. That is what this provision is designed to deal with.
Senator Marsden: Does not paragraph 8(1)(a) say that the Governor in Council might regulate or prohibit travel to or from a specified area where necessary for the protection of the health or safety of individuals? As I said, we are not talking about internment camps, but this would allow the government, I assume, to confine people to these hospitals or emergency shelters when it considered the situation to be a public welfare emergency, or am I misinterpreting that? In other words, could the unprotected grounds in the Charter be the basis for this kind of action on the part of the government?
Mr. Beatty: Paragraph 8(1)(a) is designed to deal with a situation where, for example, a natural disaster took place, where public safety would be jeopardized by people moving into the area which was struck by the event, and we would be able to proscribe travel into that area.
Senator Marsden: I understand that. The whole point of this discussion is to think of situations to which it might apply. Clause 5 clearly says that a public welfare emergency means an emergency that is caused by a real or imminent disease in human beings, animals or plants. AIDS could be an imminent disease in human beings.
One examines the failure of other nations to protect the civil liberties of people who are affected, and, in fact, to cause them a great deal of harm. One wants to be sure that nothing of that nature would be possible in this country.
Mr. Beatty: Indeed, and I fully share your concern. The courts would find that such a stretching of those provisions would go well beyond the intent of Parliament. Even if you attempted to claim that you were setting up a quarantine of some sort for people smitten by disease, if you were able to get around the provisions that specifically proscribe internment based on mental or physical disability, you would still collide with the provisions of the Charter-section 1 of the Charter and the mobility provisions in the Charter.
Senator Marsden: Are you telling me that sexual orientation, for example, is protected under the Charter?
Mr. Beatty: I did not think the argument you were making was that a government would attempt to claim that sexual orientation is ipsofacto a threat to public health in some way. If you were claiming that you were trying to maintain a quarantine of some sort and trying to stretch the provisions of a law to provide for that, it would be more likely you would be trying to apply it in cases where somebody had been demonstrated to be infected. Even in that case I do not believe that would be permitted.
Senator Marsden: In fact, the argument you say I was not making is the one I was making. If someone was clearly infected and a danger to the public, that is covered under existing law, provincially and federally.
Who would have thought that Canadians would intern other Canadian citizens of Japanese origin? I am trying to think of a situation we would not anticipate. Suppose a government decided that there was an imminent problem because of the spread of a terrible disease, and it decided that certain categories of people should be detained. Then let us suppose that those categories were so classified on grounds that you have
not mentioned in subsection 4(b). What would follow from that, in your view?
Mr. Beatty: The advice that I received is that we would be going through such a legal gyration and stretching of the legislation in an attempt to avoid the provisions of the Charter that it would be thrown out by the courts. That is the best advice that I have received. If I can offer my non-lawyer’s legal opinion-it is worth what you pay for it-the patent absurdity of an attempt by a government to use such provisions in that way would be turned back by the courts very quickly.
Senator Marsden: Let’s hope so.
Can you tell us briefly where, in the last few years in Canada, you think a public welfare emergency might have been declared and where, therefore, this clause of the bill would have been useful?
Mr. Beatty: Yes, I certainly can give an example. You will recall the Mississauga derailment, where there was a potential for a chemical spill which could have seriously damaged the health and threatened the lives of individual Canadians. Say that that had taken place in Prince Edward Island and the resources of the province were stretched so thin that it was impossible for them to respond. It might be necessary for us to use the federal authority to bring in resources from other provinces. That would be an example of a situation where this legislation would be put in place.
Another example would be if there were a serious earthquake in the lower mainland of British Columbia devastating that area, and the consequences were such that it was too acute for the Government of British Columbia alone to be able to deal with. The federal government could intervene and bring in resources from other provinces as a result.
Virtually every other developed country has emergencies legislation to deal with natural disasters and other emergencies like this. Canada, for some reason, simply has a lacuna in the law. If that sort of devastating disaster were to take place in Canada today, our choice would be either not to respond and allow the suffering and loss of lives, or to act illegally and attempt retroactively to validate illegal actions.
Senator Marsden: So that the discussions which your colleague, the Minister of Agriculture, has been having about the possible removal of animals suffering because of the drought could presumably be a situation where the federal government would step in, if necessary?
Mr. Beatty: You would have to look at the definition of “national emergency.” First, you would have to demonstrate that it was a national emergency. It would have to meet that test.
Second, you would have to look at the definition of “public welfare emergency.” Certainly “drought” applies there; “disease, accident or pollution” is mentioned there also. It states: -and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency.
You are asking me to give you an opinion in a hypothetical case. I would be surprised if it were to apply in a case like that. The sort of case where it would be far more likely to apply would be in the case of an incident, similar to the one in Bhopal, taking place in, say, the province of New Brunswick, where you desperately need to bring resources in quickly; the lives of people are in jeopardy; and the immediate effects of a disaster may be confined to one province, but that province may not itself have the ability to respond with the resources within the province itself. In that case, the federal power would have to be used on an emergency basis without wasting time, and you would be able to commandeer resources in other parts of the country and bring them in as necessary to restore conditions and protect people.
The Chairman: Next is Senator Neiman.
Senator Neiman: Mr. Minister, you have reassured me with regard to many of the questions I had respecting Bill C-77, but I have a couple more on which I would like to hear your comments.
In your list of the most important features within the bill, you mentioned that, if Parliament is not in session at the time the emergency is declared, it will be recalled at the earliest possible opportunity.
I have been looking through the bill and I do not see a time specified with respect to recall. Have I missed it?
Mr. Beatty: Let me just find the appropriate section, and I would be pleased to respond.
I believe what you are referring to is clause 58(2), which states:
If a declaration of emergency is issued during a prorogation of Parliament or when either House of Parliament stands adjourned, Parliament or that House, as the case may be, shall be summoned forthwith to sit within seven days after the declaration is issued.
Senator Neiman: In the definition of “public order emergency” it specifies that it arises from “threats to the security of Canada”, and that, in turn, is being given the meaning assigned by section 2 of the Canadian Security Intelligence Service Act.
I do not have a copy of that act before me, but I wonder, on the one hand, how broad that definition may be or, on the other hand, how secretive it may be. There are criteria that deal with such matters as subversion or foreign influenced activities, but how specific can we consider this particular definition?
Mr. Beatty: We are searching now for a copy of the CSIS Act, because it was incorporated by reference. If I can find it, I would be pleased to put it on the record.
As a former Solicitor General, I have had a good deal of experience with the CSIS Act. One of the things that was specifically provided for there, for example, is the right to
legitimate dissent, and that is specifically protected by Parliament.
We incorporated by reference this definition because it represented the most recent time that Parliament had been engaged with the issue of what in fact represents a threat to the security of Canada. The CSIS Act was the product of extensive deliberations both in committee and in both houses. There is also a provision within the CSIS Act which sunsets the act and brings it back for reconsideration by Parliament next year. Any changes which are made by Parliament to the definition of threats to the security of Canada and the CSIS Act-whatever Parliament deems at that time to be appropriate in dealing with the whole issue of counter-terrorist and counter-subversion, and so on-would be automatically incorporated by reference in this legislation as well. We did not want to attempt to refight the battles of the CSIS Act with emergencies legislation, but say that whatever is decided by Parliament with regard to the statute which is most designed to deal with this whole issue would be incorporated by reference.
Let me put the definition on the record. It states: “threats to the security of Canada” means
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).
One of the distinctions I would stress here is that while the CSIS Act may give to CSIS the responsibility, if you look at subversive activities or if you are dealing with the issue of foreign directed activities within Canada, the scope is relatively broad as it relates to the generation of intelligence by CSIS.
Where it would differ in this bill is that you must demonstrate the fact that a situation is so grave as to constitute a national emergency. It may well be that, in instances where there is foreign-directed activity in Canada, it is appropriate for the government to keep an eye on it to make sure they know what is happening. However, one would have a very hard time indeed, in many instances, in demonstrating that such activity constituted a national emergency, which is defined in clause 3 as being:
… an urgent and critical situation of a temporary nature that
(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada
and that cannot be effectively dealt with under any other law of Canada.
So, senator, that definition of “national emergency” again tempers and constrains the definition under the CSIS Act.
Senator Neiman: Mr. Minister, you mentioned that the provisions of the Canadian Charter of Rights and Freedoms and of the International Covenant on Civil and Political Rights and of other federal statutes, such as the Bill of Rights, will override and safeguard the various provisions of this bill. However, the bill, as it is presently drawn, leaves the reference to the Charter and to the Covenant and the other statutes solely in the preambular clauses of the bill. I know that the Canadian Bar Association, which is one body to which you referred, and I think perhaps the Attorney General of Alberta, recommended very strongly that you put those references into the body of the statute. This has been done with respect to other statutes; for instance, the Freedom of Information Act and the Young Offenders Act.
It would seem to me that this particular bill is of more importance and significance than those other statutes, and I wondered why it had been decided not to incorporate reference to those protective, overriding rights in the body of the bill itself.
Mr. Beatty: Senator, owing to the fact that, as Solicitor General, I amended the Young Offenders Act, I am searching my memory as to whether there was a provision therein that specifically incorporated the provisions of the Charter of Rights. I accept your word that there was, although I do not recall it at this time.
Senator Neiman: That was my advice, and I stand to be corrected on that also, Mr. Minister.
Mr. Beatty: The advice that we had in drafting the bill was that it was not necessary to do that; that the provisions of those protections to which you referred would apply to this bill without further reference to them anywhere in the bill. In the case of the War Measures Act, provisions of other statutes were excluded from applying in that case.
The Charter of Rights, for example, would apply and take precedence over other legislation unless precluded from doing so. The same would apply in the case of the Bill of Rights.
Senator Neiman: Mr. Minister, even under section 1 of the Charter itself exceptions can be made, and it is my under-
standing that the Charter provisions in any case, if they are included in the preamble to a bill, simply serve as a guidepost, whereas, if they are incorporated into the bill itself as part of a definition-for instance, of “national emergency” or whatever the case may be-they then become an essential ingredient of the definition.
Mr. Beatty: Senator, in the case of the Charter of Rights, it specifically states within the Charter itself that it applies to other statutes. The power of the Charter of Rights to apply to this particular bill stems from the provisions in the Charter itself. You say that there are provisions under which one could suspend, if you like, the powers of the Charter. I understand that it would make no difference whether or not we made specific reference to the Charter in a separate clause of the bill. The ability to suspend the powers of the Charter, or to circumscribe the powers of the Charter, is provided for in the Charter itself.
The same applies here. The best legal advice that I can get from the Department of Justice-and I, as a non-lawyer, transmit it to you-is that it would have been, at best, redundant to include those provisions and in any event totally unnecessary. The provisions apply unless it is specifically stated that they do not apply.
Senator Neiman: Very well. That, in itself, is reassuring, Mr. Minister. If I may conclude by perhaps supporting an observation of Senator Stewart’s with respect to clause 62 regarding the composition of the parliamentary review committee, I would certainly much prefer to see that clause stipulate that all parties-and even independent members, as you yourself suggested-be represented from both houses, because, on the one hand, I see that you have said that in the House of Commons the membership will be drawn from a party having at least 12 members, whereas you made the comment yourself that within the Senate you might choose an independent member. I have no problem with that whatsoever, but I do think that, in both houses, whatever parties there are-or independent members as the case may be-should be represented on such a committee.
Mr. Beatty: Senator, in the past you and I have served on joint committees together and certainly the experience has been an edifying one for me. As a member of the House of Commons, I felt that it was a useful experience to serve on a joint committee. Certainly, the reason that, over opposition from some quarters in the House of Commons, I wanted to build in the double veto, for example, to give the Senate the power to nullify a decision of the House of Commons to allow us to invoke this legislation was that I am convinced that the integrity of this place should be maintained and that it has an important role in terms of protecting the civil liberties of Canadians.
The real issue here, I suppose, is whether it is necessary to write down in minute detail all of the structures of the committee or whether we should expect that, as Senator Stewart was saying, good will and common sense should apply.
During my years in Parliament I suppose there have been instances when I may have questioned whether or not good will and common sense applied in all cases. However, for the most part, I think the two houses have worked well and in close collaboration, and I would expect that any other member of the House of Commons who assumed my responsibility at a different time as Minister responsible for Emergency Preparedness would also feel that the Senate had something to offer on this committee and would draw on the resources available to it.
Senator, the legitimacy of the process-the fact that we are asking Canadians to entrust us with extraordinary powers which affect their civil liberties-requires that we demonstrate to them that we are operating in a way that is open, aboveboard and proper. Therefore, a procedure which was clearly designed to circumvent the spirit of the legislation itself, which was designed to ensure a joint parliamentary committee, would, by its very nature, damage public support for anything the government was doing. I think it would be self-defeating if the government attempted to do that.
By the same token, however, it would be possible for the Senate, acting irresponsibly, to strike down the will of the majority of the elected representatives in the House of Commons. The best protection against that would have been to exclude the Senate, and that was argued to me by members of the NDP. I do not believe that senators will act irresponsibly. I believe that we have a responsibility to show goodwill to one another, and I am confident that, if such a committee were set up, both houses would consult with one another and would set up a committee that was fully representative of both bodies. Certainly, I am quite prepared to leave on the parliamentary record that that was my intention at the time the bill was passed.
Senator Neiman: Thank you, Mr. Chairman.
The Chairman: At the moment there are no other questionnerson my list, but Senator Stewart has indicated that on the second round he would have a question.
Senator Stewart (Antigonish-Guysborough): Mr. Chairman, it develops now that I have one question more than I anticipated. But first I wonder if I could have the assurance from the minister that he would check the blues and correct what I am sure he did not intend to say, that I was advocating that it was sufficient to rely on reasonableness and goodwill when delegating these enormous powers. I think he said exactly the opposite of what he intended to say. I am sure he will want to correct that remark.
I would like clarification on two points. First, when talking earlier about conscription the minister told us that it would be legally possible under this act to introduce conscription by order in council. As I understood the minister, he said that it would not be possible under an order made under this act to send conscripted persons outside Canada to Norway or Alaska, for example, because of section 6(1) of the Charter, which
says, “Every citizen of Canada has the right to enter, remain in and leave Canada.” Did I understand that point correctly?
Mr. Beatty: Section 6, yes.
Senator Stewart (Antigonish-Guysborough): Does that mean that Parliament itself by statute cannot authorize that conscripted persons or persons in the armed forces be sent outside Canada?
Mr. Beatty: Parliament would have to demonstrate that the conditions of section 1 of the Charter were being met. Senator Stewart (Antigonish-Guysborough): Then why couldn’t the same demonstration be made in the case of persons being sent outside Canada by order in council under this statute?
Mr. Beatty: One would have to demonstrate that the conditions were being met. If one could demonstrate that the conditions were-
Senator Stewart (Antigonish-Guysborough): Then you are saying that by law there would be no difference, that provided the demonstration was made in each case, an order under this statute would have the same effect as a statute explicitly and directly authorizing the government to send armed forces personnel overseas.
Mr. Beatty: You would be required in either case to meet the provisions of section 1 of the Charter. I believe that during World War I we used the powers of the War Measures Act in order to conscript. Of course, the provisions of the Charter did not exist at that time, but, if it had applied, you would have had to meet the provisions of section 1. Under Bill C-77, there is the additional requirement of reasonable grounds.
Senator Stewart (Antigonish-Guysborough): So what you are saying is that, when this bill becomes law, the power of the Governor in Council will be the same as the power of Parliament with regard to sending persons outside Canada. In other words, the test is the same in both cases.
Mr. Beatty: If the provisions of the Charter are met, yes.
Senator Stewart (Antigonish-Guysborough): So we are giving to the Governor in Council all the power that the Parliament of Canada itself has, both with regard to conscription and to sending persons outside Canada?
Mr. Beatty: Provided that reasonable grounds can be demonstrated by the Governor in Council for doing so. Senator Stewart (Antigonish-Guysborough): The answer is that the powers are the same because the limitation is the same in both instances.
Mr. Beatty: Except that there is the additional constraint under the provisions of Bill C-77 of demonstrating the necessity. That constraint on Parliament would not exist if it were passing a conscription bill.
Senator Stewart (Antigonish-Guysborough): You say “demonstrate the necessity.” Where is that explicitly required in this bill?
Mr. Beatty: It is required under subclause 40(1), where it says, “… believes, on reasonable grounds, are necessary or advisable for dealing with the emergency.”
Senator Stewart (Antigonish-Guysborough): In other words, that subclause applies if there is a prima facie case, but that is quite a different thing from what you are talking about. It does not mean that a court must find that it is necessary. It means simply that if the minister of the day believes that he has reasonable grounds-
Mr. Beatty: There must be an objective test with the very invocation of the statute in the first place. The invocation of Bill C-77 itself is contestable in the courts.
Senator Stewart (Antigonish-Guysborough): Mr. Chairman, we can go on digging this well for a long time, but I do not know that we will get much more water. I want to turn to another question. It is one that I raised when I spoke on second reading of the bill. Bill C-77 provides that an order in council made under it could not be used to change the terms of Bill C-77. We know that it was decided by the Supreme Court of Canada during World War I that an order in council made under the War Measures Act could be used to set aside the provisions of statutes, not just orders or regulations but statutes made by Parliament itself. According to subclause 4(a), an order or regulation may not be used to set aside part of this statute. However, that subclause implies that an order or regulation could be made to set aside the provisions of other statutes. Is that a correct deduction?
Mr. Beatty: I am told that it might be possible in instances where it was directly relevant and necessary to deal with the emergency provided for under this statute.
Senator Stewart (Antigonish-Guysborough): So your answer is yes, by an order in council or a regulation made under this act, statutes enacted by Parliament could be set aside. You are asking for that power?
Mr. Beatty: The advice I have received is that there was during World War I an instance in which the courts found it appropriate under the War Measures Act to extend powers and to alter the provisions of the statute law using an order under that act. Under this proposed statute, anything done would have to be directly relevant to the purposes of the statute, would be contestable in terms of the various checks and balances provided in the statute, and would be subject to scrutiny by Parliament and could be nullified by Parliament at any time. I am advised that it is far from certain that even under those circumstances the courts would, today, with the provisions of the Charter and the other provisions that have been put in place since World War 1, find that such an action would be possible.
Senator Stewart (Antigonish-Guysborough): I do not think anyone would argue that what was done during World War I with regard to military exemptions was not relevant. Your answer seems to imply that you would be content to accept, for greater certainty, an amendment to clause 4(a) so that it
would read: “. . . altering the provisions of this or any other act.” You would be happy to accept that?
Mr. Beatty: I would not be prepared to see amendments made which would delay the progress of this bill.
Senator Stewart (Antigonish-Guysborough): So, delay would be the only ground on which you would object to that amendment?
Mr. Beatty: There may be specific instances where it is necessary for the Governor in Council to use such powers, properly safeguarded by Parliament and by courts as provided for in the statute. But, at this point, reopening the bill and going in, as you say, for greater certainty, if that is the concern, would, I think, do a disservice to Canadians. The bill has been before Parliament now for almost a year. The time has come for Parliament to deliver on the commitment it made some 18 years ago to repeal the War Measures Act and to put modern legislation in its place.
Senator Stewart (Antigonish-Guysborough): You seem to imply that if we take, say, half the time that you took in the other place it will be reasonable, and I would be prepared to accept that.
Mr. Beatty: I do not know, Mr. Chairman, whether Senator Stewart was simply throwing that comment out facetiously or whether he intended to have a serious reply from me.
I think the members of the House of Commons took their responsibility very seriously as, indeed, did the government. The government tabled the bill at the end of June. I announced my intention to have such a bill on June 5 in the defence white paper. I tabled it before the summer recess. I left it out for public scrutiny and invited public commentary. We had extensive hearings in the parliamentary committee. A large volume of amendments were made to it. The elected representatives of the people, I think, did their job exceptionally well.
The real question comes down to whether we, as members of Parliament, both houses, are prepared to honour a commitment that was made in good faith and to act, or whether we are prepared to delay the progress of this bill and to have opened up the possibility that Canadians could either be forced to deal with a crisis for which there is no appropriate authority on the part of the government to deal with, or that the civil liberties of Canadians could once again be abrogated in the way they have been abrogated in the past by using this odious War Measures Act which is on the books today.
Senator Stewart (Antigonish-Guysborough): I do not want any misunderstanding. You say that the government introduced the bill in June of 1987. It was passed by the House of Commons on April 27, 1988. It is now just a little over the month later; yet you seem to be suggesting that we are already delaying the bill.
Mr. Beatty: No, I was not suggesting that, senator. Certainly, I would not try to put words in your mouth and I know you would not try to put them in mine. I am not suggesting you are trying to delay the bill. I am suggesting that you should not delay the bill.
Senator Stewart (Antigonish-Guysborough): That seems to be not war, invasion or insurrection apprehended, but delay apprehended. I suggest that it is unreasonable to apprehend.
Mr. Beatty: Any delay, senator, would be unreasonable. We should proceed.
The Chairman: Since there are no other questioners, Mr. Minister, it is left for me to thank you very much on behalf of my colleagues for the time you have spent with us, which is now almost two hours. We very much appreciate that you made yourself available to appear along with your officials. I hope that you have found your first venture into the Senate a pleasant one and we look forward to having you with us again on some other occasion.
Mr. Beatty: Thank you very much, Mr. Chairman.
Hon. Senators: Hear, hear!
The Chairman: Honourable senators, we should now clear up the matter that was before us and put into suspended animation prior to the minister’s entering the chamber. There had been a discussion regarding the establishment of a steering committee. We became involved in the beginning of a vote and then it was my understanding that there was no need for a vote and that the matter could be settled by agreement.
Senator Doody: I gather from speaking with Senator Stewart that there is a desire to have at least one more and perhaps other witnesses appear before the committee. To that end, I think the suggestion of Senator MacEachen is a sensible one and we should ask the two whips to set up a steering committee. The numbers involved in the committee and so on will be the same as they have always been in this place. I see little point in pursuing the cause of justice and equity. I will let it go at that.
The Chairman: I suppose that depends on how one defines “justice and equity.”
Senator Doody: We had a discussion a moment ago about fairness and reasonableness and I do not want to plough all that up again.
Senator Petten: Mr. Chairman, the numbers are five and three.
The Chairman: The suggestion is five and three.
Senator Stewart (Antigonish-Guysborough): Mr. Chairman, I think we have had an example of how dangerous it is to use figures in this place. Senator Doody has implied that I indicated that there would be at least one more witness. Technically, he is correct, but the implication is that one, perhaps two more witnesses will be heard. I did not wish to convey that impression.
What I have in mind, honourable senators, with regard to this bill is that, since the government is asking for such extreme powers, such great powers, we ought to know precisely what powers we would be giving the government if the bill passes. We can satisfy ourselves on that by hearing a reasonable number of witnesses. I do not want to say “at least one,”
because that seems to imply that later this week the minister’s impatience will be satisfied.
Senator Doody: I did not mean to imply that “at least one” meant one, nor did I try to, define the word “reasonable.”
The Chairman: Is it agreed, honourable senators, that we will ask the two whips to establish a steering committee, to put forward the names of the members and that the numbers will be five and three?
Hon. Senators: Agreed.
Senator Doody: Mr. Chairman, I move that the cammittee adjourn, report progress, and ask for leave to sit again.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Hon. the Acting Speaker: Honourable senators, the sitting of the Senate is resu med.
REPORT OF THE 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 Acting Speaker: Is leave granted, honourable senators?
Hon. Senators: Agreed.
The Hon. the Acting Speaker: Honourable senators, when shall this cammittee have leave to sit again?
Hon. C. William Doody (Deputy Leader of the Government) moved that the Committee of the Whole be given autharity to sit again at the next sîtting of the Senate.
Motion agreed to.
The Senate adjourned until tomorrow at 2 p.m.
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