Canada, Senate Debates, “Emergencies Bill”, 33rd Parl, 2nd Sess (8 June 1988)
By: Canada (Parliament)
Citation: Canada, Senate Debates, 33rd Parl, 2nd Sess, 1988 at 3623-3631.
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CONSIDERATION IN COMMITTEE OF THE WHOLE CONTINUED
On the Order:
The Senate again in Committee of the Whole on the Bill C-77, An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof.
The Senate was accordingly adjourned during pleasure and put into a Committee of the Whole on Bill C-77, to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other acts in consequence thereof, the Honourable Eymard G. Corbin in the Chair.
The Chairman: Honourable senators, the Senate is now in Committee of the Whole.
Pursuant to Order adopted earlier this day, 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 Senate chamber.
Senator Doody: Honourable senators, with us now are Mr. Snarr and Mr. Molot who, I am sure you will remember, attended with the minister at the previous meeting of the Committee of the Whole. I am sure they will be pleased to answer any questions honourable senators may have.
The Chairman: On behalf of the Committee of the Whole, I should like to welcome back Mr. Snarr and Mr. Molot and invite them, if they so wish, to make a preliminary statement.
If not, the Chair is prepared to recognize honourable senators who wish to speak.
Since I gather there is no opening statement, I call on Senator Stewart, followed by Senator Frith.
Senator Stewart (Antigonish-Guysborough): There are several points on which I think these two gentlemen can be most helpful. I have a list of those points, but it may be that other senators will want to intervene; if so, I would be more than happy to give way.
My first question relates to the matter of overseas service by conscripted personnel. On May 31, at page 3531 of Debates of the Senate, the minister said:
… with regard to conscription, our advice is that this would be legally possible by order in council under Part IV of Bill C-77 …
He then turned to the question of sending conscripted Canadians overseas. In this regard, hie stated that the Charter provides an obstacle in that it forbids forcing Canadian citizens to leave the country. He quoted section 6(1) of the Charter of Rights and Freedoms, which states:
Every citizen of Canada has the right to enter, remain in and leave Canada.
However, he also drew attention to section 1 of the Charter, which states that the Charter guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. He told the committee that to send conscripted troops overseas the test of section 1 of the Charter would have to be met.
My question is this: Is it not true that section 1 of the Charter would be no more of an obstacle or restraint on the government in the case of conscripted personnel than it would be in the case of volunteered personnel?
Mr. W. Snarr, Executive Director, Emergency Preparedness Canada: Section 1 of the Charter is a limitation on any action to limit the rights individuals have under the Charter. If a person were asked to leave the country in service of the country and had no objections, obviously there would be no impediment either way. Section 1 would arise if an individual who was being forced to leave took exception to that action and contested the government’s authority to do it, in which case hie would have recourse to the courts. In those circumstances, the government would have to demonstrate that its action in sending him overseas was reasonable and demonstrably justifiable in a free and democratic society.
Senator Stewart (Antigonish-Guysborough): In other words, you are asserting that the status of conscripted personnel would not be materially different from that of volunteered personnel; is that correct?
Mr. Snarr: The difference only arises-subject to advice from Mr. Molot–on the legal fine points. It seems to me that the difference would only arise in terms of the individual’s desire to have access to, or to exercise, his rights under the Charter.
Senator Stewart (Antigonish-Guysborough): The question is-whether or not he wished to exercise his rights-would there be a difference in their status?
Mr. Snarr: I do not think so.
Senator Stewart (Antigonish-Guysborough): That is fine. I want to turn to quite a different point. At page 3534 of Debates of the Senate the minister stated-and I had better have his words before me-that:
-there is a constitutional requirement that there be-
Senator Frith: Could Senator Stewart tell us where that passage is to be found on that page.
Senator Stewart (Antigonish-Guysborough): I will find it. I simply wrote down the passage and the page number.
Senator Frith: That is fine.
Senator Stewart (Antigonish-Guysborough): It is on page 3534; however, I cannot put my finger on the line. He stated:
-there is a constitutional requirement that there be a bill to appropriate funds.
The preliminary question is: How immediate to the appropriation does the bill have to be?
We were referring to clause 30(l)(j). I should like to ask now what specific requirements does the government have in mind when it asks for the authority to make orders of the kind that would be authorized under that particular subclause?
Mr. Snarr: Mr. Chairman, clause 30(l)(j) authorizes the government to make orders or regulations concerning expenditures.
The presumption is that these would be expenditures of funds which had already been appropriated or voted by Parliament.
There are a number of acts of Parliament-the Defence Production Act and some of the legislation dealing with the procurement of supplies-that authorize the government to make these expenditures through revolving funds, but in several cases there are limits put on the expenditure of the funds, regardless of or independent of the total amount of money that had been appropriated through legislation.
The purpose of clause 30(1)(j) is to permit those limits to be altered, presumably in the positive direction, to enable the government to rapidly expand its procurement program to meet the needs of an emergency, particularly an emergency looking toward possible hostilities and the government needing to acquire materiel for the mobilization of the armed forces.
Senator Stewart (Antigonish-Guysborough): The government is not asking for that specific authorization in the case of a war emergency. Why is no such specific authorization sought in the case of Part IV or war emergency?
Mr. Snarr: The general approach taken to Part IV was that, because of the extreme gravity of a war emergency, where the future existence of the country is at stake, and the complete unpredictability of the way in which the situation might unfold and what demands may be put on the country to meet such an
emergency, the widest possible scope should be given to the government to take action necessary to meet the contingencies. So, in that respect, clause 40(1) gives very general authority to the government to take whatever action the Governor in Council believes, on reasonable grounds, is necessary or advisable for dealing with the emergency. This is quite similar to the bare bones power that was included in the War Measures Act.
Senator Stewart (Antigonish-Guysborough): If the government were to declare an international or war emergency when Parliament was adjourned, would it be possible to appropriate money from the Consolidated Revenue Fund for purposes not covered by any other appropriation?
Mr. Snarr: I think there is provision under the system of Governor General’s Warrants by which appropriations can be made when Parliament is not in session.
Perhaps I can ask Mr. Molot if he is familiar with the finer points of the limitations of the government with regard to appropriating funds through Governor General’s Warrants.
Mr. H.J.L. Molot, General Counsel, Advisory and Administrative Law Section, Department of Justice: I am not that familiar with the finer points. There is a system in place under the Financial Administration Act, but the requirements under that particular act would have to be met in order for the warrants to be available. They are only used in extraordinary circumstances.
Senator Stewart (Antigonish-Guysborough): Resort to the use of Governor General’s Warrants is not all that rare. The circumstances you have described may be extraordinary, but the use of warrants is not all that unusual.
I asked specifically about the situation when Parliament was adjourned. I know about Governor General’s warrants.
Mr. Molot: Do you mean, apart from Governor General’s warrants, what other method of appropriation is there?
Senator Stewart (Antigonish-Guysborough): What I am asking is: Is it contemplated-we were told that the government had looked ahead and tried to anticipate any eventuality- that if the government had to declare an international or war emergency when Parliament was adjourned, the government would use Governor General’s warrants for its new financial requirements? Is that what you have in mind?
Mr. Molot: No, we do not have that in mind. That is, I suppose, a possibility, but I think the straightforward approach would be that if Parliament were adjourned at the time that the money was needed then Parliament would be recalled. There are other provisions in the bill in which Parliament’s role is essential, as you are aware, and so Parliament’s presence is necessary in order to-
Senator Stewart (Antigonish-Guysborough): Let me put before you a more difficult situation. In the event that Parliament were dissolved, would it be the intention of the government to use Governor General’s warrants?
Mr. Snarr: Mr. Chairman, it would be the intention of the government to take whatever action was necessary, in the interests of the survival of the nation, within the bounds of what is constitutionally and legally possible. Certainly, if Parliament were dissolved and the only recourse to the funds that were required was through Governor General’s warrants, that would be the intention.
Senator Stewart (Antigonish-Guysborough): So, if that circumstance ever arose, the intention would be to make use of Governor General’s warrants. Is that your response?
Mr. Snarr: I think this would be the avenue of last resort, yes.
Senator Stewart (Antigonish-Guysborough): You implied that there are other avenues. What we are trying to discover is what we are delegating, and when you say “this would be the avenue of last resort”, what other avenues are you implying? Do you have any in mind? Frankly, I do not know of any. You seem to suggest that there are others.
Mr. Snarr: The other avenue would be to go through Parliament and appropriate funds in the normal fashion.
Senator Stewart (Antigonish-Guysborough): So, assuming that Parliament had been dissolved, the government would be left only with Governor General’s warrants. That is understandable.
My third point relates to taxation. At page 3531 of Debates of the Senate, the minister dealt with a question that I had raised concerning taxation. He said:
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.
It is elementary that new taxes must have a statutory basis, but the bill now before us prompts two questions. The first is: Can Parliament delegate the power to impose a tax? The second is: If so, is the government, by this bill, asking Parliament to delegate the power to impose taxation? Those are the two questions I would like to have answered.
Mr. Snarr: In answer to the first question, the advice we have been given is that Parliament cannot delegate the power to levy new taxes. In the light of that information, I think the second question is irrelevant.
Senator Stewart (Antigonish-Guysborough): Yes. When you say “we have been given”, you are not now speaking as a minister; so are you implying that you have outside counsel on this point?
Mr. Snarr: Perhaps I should have said that the answer I have been given by the Department of Justice is as I stated.
Senator Stewart (Antigonish-Guysborough): In other words, that is Mr. Molot’s answer?
Mr. Snarr: I assume that Mr. Molot has the full resources of the department at his disposal and that, where necessary, he consults his colleagues.
Senator Stewart (Antigonish-Guysborough): All right. You have said that it is the position of the government that the power to impose new taxes cannot be delegated by Parliament.
Is that provision to be found in the Constitution Act, 1867, and, if so, where?
Mr. Snarr: That is my understanding, senator. Perhaps Mr. Molot can speak to this point.
Mr. Molot: I did not bring that act with me, but I believe this matter is covered in section 53 or section 54.
Senator Stewart (Antigonish-Guysborough): I have a copy of the act here. Perhaps I could put it in your hands so that you can read the relevant section.
Mr. Molot: Section 53 states:
Bills for appropriating any Part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.
Then there is a procedure attached to that, in section 54, whereby that bill must be preceded by a recommendation of the Governor General. That has been taken to mean that all taxing measures must originate with a bill and that the bill must originate from the House of Commons.
Senator Stewart (Antigonish-Guysborough): Upon a recommendation, in the case of both appropriation and taxation?
Mr. Molot: Yes.
Senator Stewart (Antigonish-Guysborough): Is there jurisprudence on this point? Has it been decided by a court of relevant jurisdiction that Parliament cannot delegate the power to tax?
Mr. Molot: In theory, if there were an express provision in a bill delegating to the Governor in Council, for example, the power to impose tax or to set the rate of tax, that might lead to an arguable case that section 53 is being complied with.
Senator Frith: Yes, as long as the bill originated in the House of Commons.
Mr. Molot: That is right, and as long as the delegated power is expressed. But there is no power of this sort expressed in Bill C-77. I would assume that a court, not finding it there, would say that section 53 of the Constitution Act has not been complied with.
Senator Stewart (Antigonish-Guysborough): You say you would “assume”.
Mr. Molot: Since I am not aware of a case, senator, I can only give my legal view that I do not think a court would agree that Bill C-77 has authorized delegated legislation to impose tax.
Senator Stewart (Antigonish-Guysborough): Do you know of any case, tried by a court of relevant jurisdiction, that has said that express words are necessary?
Mr. Molot: There may be one, but I am not aware of it.
Senator Stewart (Antigonish-Guysborough): So, the government takes the position that, since there are no express words in this bill delegating the power to tax, that power is not being delegated?
Mr. Molot: Yes.
Senator Stewart (Antigonish-Guysborough): Are there any other powers of Parliament that it cannot delegate except by express words? We were told just now that the delegation, in the case of a war emergency, is of “the widest possible scope”. I think those were the words used. Are there any other powers that are held back because they are not delegated in this bill by express words?
Mr. Snarr: One power came up several times during the discussion of the human rights implications of Bill C-77, and that was in relation to section 33 of the Charter of Rights and Freedoms, the so-called “notwithstanding clause”. It was contended by one of the witnesses who appeared before the legislative committee in the House of Commons that the Governor in Council could, by order, invoke the provision of the “notwithstanding clause” and thereby set aside some of the basic rights that we all enjoy under the Charter.
Again, on the advice of legal counsel, the government is convinced, it is virtually certain, that any court would rule that such action was ultra vires, that no government would be so disrespectful of the laws of the country even to attempt such an action.
Senator Stewart (Antigonish-Guysborough): I know the point to which you refer. Perhaps it would be useful to the committee if you were to put on our record the words of subsection 33(1).
Mr. Snarr: Subsection 33(1) of the Charter reads: Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
The operative words, of course, are “in an Act of Parliament or of the legislature”.
Senator Stewart (Antigonish-Guysborough): You are saying, it is the government’s position that, even by express words, Parliament could not delegate to the Governor in Council the right to exercise the “notwithstanding” power.
Mr. Snarr: That is correct.
Senator Stewart (Antigonish-Guysborough): Unfortunately, you used the words “the government is convinced” and “virtually certain”, instead of “absolutely certain”.
Mr. Snarr: One can only be absolutely certain in these matters when the situation has occurred and has been contested and ruled upon by the highest court of the land.
Senator Stewart (Antigonish-Guysborough): So you would be prepared to advise, for absolute certainty, that an amendment be made, provided, of course, that it did not take a great deal of time?
Mr. Snarr: I would certainly not recommend that there be an amendment for absolute certainty. The certainty is so great that an amendment is, in my view, completely unnecessary.
Not only that, it would seem to me that whenever one introduces clauses in legislation, albeit for the meritorious objective of greater certainty, one is undermining, in effect, the related legislation or the related legal foundations on which the whole of our system is based. It brings into question that if one does not put in the “for greater certainty” clause in other legislation, it opens up a greater degree of uncertainty.
Senator Stewart (Antigonish-Guysborough): My next line of questioning deals with the matter of setting aside the provisions of other statutes. Under this bill it will not be possible for the Governor in Council to put aside the provisions of this statute. That opens up the question of putting aside the provisions of other statutes. On May 31, 1988, Mr. Beatty appeared before us. At page 3541 of Debates of the Senate, Mr. Beatty said:
1 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.
I then comment:
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?
Are there any statutes, other than the one that would eventuate from Bill C-77, if it passes, that are exempt from the power that the government is seeking in the bill-the power to set aside provisions of acts of Parliament by orders in council?
Mr. Snarr: As far as I know, there is no legislation that could not be temporarily overridden, if it were necessary to do so, to meet the purposes of this legislation.
Senator Stewart (Antigonish-Guysborough): So this is really a super statute. There is the Constitution, then there is this statute and then there are ail the other statutes, which are subordinate.
Mr. Snarr: The qualification that the order or regulation makes, insofar as it overrides other legislation, must be very narrowly confined to matters which are intended toward the purpose of the act, that is, dealing with the emergency. There is a considerable body of legislation which constrains the procedure under which this is done. I have in mind the Statutory Instruments Act, for example, which gives quite a degree of confinement as to what the government can do by order or regulation.
In my view, it would not be possible for the government, on the basis of Bill C-77, to enact a regulation which, in effect, undid the restrictions that were in the Statutory Instruments Act.
Senator Stewart (Antigonish-Guysborough): Are you saying that that would be legally impossible?
Mr. Snarr: That is my view, yes.
Senator Stewart (Antigonish-Guysborough): Is that the view of the government?
Mr. Molot: I think that is true, senator. That is given added support by the very fact that reference is made in the body of the bill to the Statutory Instruments Act. Therefore, it becomes a basic or fundamental part of the structure of Bill C-77. The same could be said for the Canadian Bill of Rights. Presumably that could not be “notwithstood” by order.
Senator Stewart (Antigonish-Guysborough): You say “presumably”.
Mr. Molot: Again, we have the preamble.
Senator Stewart (Antigonish-Guyshorough): Nevertheless, this is really a super statute.
I come now to the question of grounds for internment.
Although the minister made a great effort to be helpful on this subject, I am not sure that I, for one, understand exactly what would happen. There would be regulations such as the Defence of Canada Regulations. Under those regulations, let us say that an appropriate official makes an order for internment of a specified person. We are well down the genealogical tree from the emergency act itself.
What would happen in a court? The habeas corpus writ would be obtained. There would be counsel. Clearly, there would not be a trial on a charge, because there would be no charge. The person has been taken into custody, not because of something he or she has actually done that was contrary to the law but in anticipation that he or she might do something which would be damaging to the peace, order and good government of Canada. Therefore. there cannot be a trial on a charge.
The government of the day would be saying that they believe, they guess that it would be better if this person were put away for a while. The minister said that all facts would be disclosed. I wondered at the time if he had thought that through. At page 3532 of Debates of the Senate of May 31, 1988, I asked him:
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?
The minister replied:
To the court, yes.
What facts would be disclosed?
Mr. Snarr: Subject to further refinement from Mr. Molot, the situation would be that the principle of habeas corpus would be invoked and the government would be required to show cause why the individual should continue to be kept in custody. In order to do that, the government would have to demonstrate that keeping the individual in custody was consistent with the law. With all the protections that are available through the Charter and through the explicit protections in Bill C-77, the government would have to disclose enough information to the court to convince the judge that what he or she was doing was legal, that the Crown had reasonable
grounds on which to take this action, and that the individual was not being detained on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Senator Stewart (Antigonish-Guysborough): We all understand that it would have to be shown that the detention was consistent with the law. However, the law may well say that, if the minister believes someone is likely to commit an offence, that person may be detained. In that case the requirement that the detention be consistent with such a law would not mean very much.
I do not intend to ask my next question as a rhetorical question. It is not the judgment of the court as to whether the facts that the minister has available to him are adequate for the court to form a belief. It is simply that there are facts and that a reasonable person might, on the basis of those facts, form the belief that, in the particular case, the minister happened to form. Is that not the situation?
Mr. Snarr: Senator, that is precisely the situation. The only way a judge could determine the answer to the question you pose is to have those facts given to him so that hie could decide whether a reasonable person would form the belief that it was necessary to incarcerate the individual.
Senator Stewart (Antigonish-Guysborough): I asked if the facts would be disclosed, not to the judge or the court but to the person.
Let me come at it this way. I am asking the witness if he is aware of situations which arose during the Second World War,- where, for security reasons, it was impossible to tell persons interned why they were being interned. In other words, to inform them of the causes of their internment would be to violate state security. Are you aware of that problem? You have stated that, notwithstanding that, we will give these persons, who we believe are a threat to the security of Canada, information which may well be damaging to the security of Canada. Is that what your bill is doing?
Mr. Snarr: Certainly not; the bill is not doing that at ail. At the risk of repeating myself, the bill states that, if the matter is contested, the goverfiment must put that information in the hands of the judge.
Senator Stewart (Antigonish-Guysborough): So the minister was not quite responsive when he replied with a “yes” to my question, when I asked: “Will the person who is challenging bis own detention be able to require the government to disclose the facts on the basis of which the detention against him had been made?”‘
Mr. Snarr: I think the minister was being quite specific and forthcoming in his reply that, yes, the government would be obliged to disclose the facts.
The disclosure must be sufficient, and sufficiently in accordance with accepted procedure to justify within our judicial system the individual’s incarceration.
There is an additional Charter protection, as far as the individual is concerned, that states that everyone has the right on arrest or detention to be informed promptly of the reasons therefor. If the government wished to deny that information to the individual being held on security grounds, they would have the additional obligation to explain to the judge why it was reasonable and demonstrably justifiable, in a free and democratic society, that this information be withheld.
Senator Stewart (Antigonish-Guysborough): But you are conjuring up in my mind the image of a minister going to a judge and saying, “I believe he or she is a dangerous person and the reasons I happen to think this are such and such. I cannot say them in an open court, but these are the reasons.”‘
Mr. Snarr: I can visualize situations in which that kind of process would be entirely justified.
Senator Stewart (Antigonish-Guysborough): That is the answer that I was expecting. I had hoped that I would get it by a less circuitous route.
Mr. Snarr: It would be under extreme situations, and very unusual, and ones that one would expect to occur only in rare instances, even in the depths of a disastrous war.
Senator Frith: Mr. Chairman and Senator Stewart, would Senator Stewart allow me to pursue that point?
Senator Stewart (Antigonish-Guysborough): Please do.
Senator Frith: I wish to clarify something.
Listening to the exchange, the first question was that, assuming a person who is detained asks for a writ of habeas corpus, and on return of the writ before the judge the person asks for the facts, that immediately raises the question of ministerial discretion, and the Crown is right-not this minister, but any person who exercises the executive’s right-to claim executive privilege for reasons of national security or otherwise. I think Duncan and Cammeli-Laird is one of the leading older cases on this question.
1 thought that what Senator Stewart was pursuing was: Is there anything in this bill that would change the right of the executive to claim privilege against disclosure? I then heard you say that the bill would require it. That is what triggered my curiosity. Is there something in this bill that deals with the question of executive discretion in those circumstances, other than the general law that enables the executive to claim this discretion and protection, and then limiting how far the court can go behind it?
Mr. Snarr: What is different in this bill from a lot of other legislation that gives the executive certain powers is the repetition throughout the bill, in every place where the Governor in Council is authorized to take exceptional actions, that the action must be reasonable and he must believe on reasonable grounds that it is necessary. So there is an objective test for everything that the executive does. That is tied up with the words “the Governor in Council believes on reasonable grounds-”
This is an important change that was made to the bill between first reading and eventual passage. In the original
drafting of the legislation, in all those places where you see those words “believes on reasonable grounds”, it said, “Where in the opinion of the Governor in Council it was necessary.”
Senator Frith: Yes.
Mr. Snarr: This would be completely unchallengable; there would be no test whatsoever.
Senator Frith: That is an answer. Thank you.
Senator Stewart (Antigonish-Guysborough): I have one other question, which is a different kind. We know that the powers that will be exercised by the government under this bill, if it becomes a statute and its provisions are invoked, could well reach into areas which normally come under the exclusive legislative jurisdiction of the provincial legislatures.
On the basis of the minister’s answer, I assume that careful anticipation has been made; that a war book has been prepared; and that you have analyzed what areas of provincial legislation would come under the Governor in Council, although those areas would not come under the Parliament of Canada. What would some of the leading areas be? What would the principal areas be which would be taken over and cease to fall under our normal federal structure?
Mr. Snarr: It is difficult to generalize on that point. I might preface my response by saying that, depending on the situation, there is almost no area of provincial jurisdiction that might not need to be intervened in because of the exigencies of emergency.
The easiest way to describe the sort of things that might be necessary is to state that to meet the needs of a national emergency there could be a need to marshal the resources of the country as a whole towards that emergency, where resources and capabilities that exist in one province might have to be applied in another province or put together to be applied outside of the country in the case of war.
Looking at a domestic peacetime emergency, where the provinces may be perfectly willing-in fact, even desirous-to help out their fellow citizens in other provinces, there is not the legal or constitutional authority for them to requisition resources within their own province and apply them in other provinces. Federal authority would be the only one available.
One could give other examples, particularly in a war-time context. For example, matters having to do with the local management of the economy, which are generally left to the provinces-and here I am referring to things such as the distribution of the necessities of life. In times of war when these became scarce, in order to be fair throughout the country, it might be necessary to introduce federal measures which would impose or supersede the authority of the provinces in those areas.
Senator Stewart (Antigonish-Guysborough): Would it be possible, by order in council, to declare works to be of national importance? I have forgotten the exact subsection in section 92 of the Constitution Act, 1867 that permits Parliament to make works federal. Would it be possible to do that by order in council in a sufficiently great emergency?
Mr. Snarr: It would seem to me that it might be possible, but it would, in a sense, be superfluous. If the action of taking over some activity which was normally within provincial jurisdiction were necessary in order to meet the exigencies of a situation, then the federal government would only need to pass an order to that effect; it would not have to use the constitutional basis of declaring a federal work.
Senator Stewart (Antigonish-Guysborough): There is a normal constitutional process. What I am asking you is if that normal process could be avoided by use of an order in council under the powers of this statute?
Mr. Snarr: Mr. Chairman, the advice I am given-and I must qualify it to be of the “off-the-top-of-the-head” variety, if Mr. Molot will permit me-is that to invoke the provision of the Charter that permits the federal government to declare certain undertakings or works as federal works and thereby bring them within the federal jurisdiction-
Senator Frith: Excuse me, it is not in the Charter; it is in the Constitution.
Mr. Snarr: I am sorry, it is in the Constitution-that it would require an act of Parliament to use that specific power.
However, I would still maintain that, if the needs of the emergency were such that that was necessary, the federal government could still have the same effect through an order in council, pursuant to the Emergencies Act, without having to make reference to the constitutional provision.
Senator Stewart (Antigonish-Guysborough): We were told by Mr. Beatty that extensive consultation had taken place with the government of each of the provinces, I believe. Was there, in fact, discovery on this point? In other words, did you notify Prince Edward Island, Quebec and British Columbia that, by order in council, it would be possible to take over works within provinces which would normally be under provincial jurisdiction? Was that question explored with them?
Mr. Snarr: I can assure honourable senators that, without any doubt whatsoever, the provinces were fully aware of the implications of Bill C-77 with regard to intervention into matters normally within their jurisdiction. That, in fact, was their primary concern in almost all of the discussions that took place, both at the level of officials and at the level of ministers. The provinces repeatedly wanted to be reassured about the limitations that would be put on the government through this bill so that such intervention into provincial affairs would only be done where it was absolutely necessary.
In fact, I may say that at some of the earlier discussions several of the provinces took exception to this and contested whether, in this day and age, such intervention was constitutionally possible. However, it only took a very few minutes of consultation with their own legal authorities to inform them that it certainly was possible and was, in fact, the basis of the emergency doctrine of the Constitution.
Senator Stewart (Antigonish-Guysborough): I have one remaining question. Is there legislation in the United Kingdom that is comparable to Part IV of this bill?
Mr. Snarr: No, there is not. The Defence of the Realm Act, which was passed by the United Kingdom on separate occasions, you might say, in relation to the two world wars, was subsequently repealed after each of the wars. However, they do have other legislation in place to deal with peacetime emergencies which is much briefer than Bill C-77. In some respects, it is not as comprehensive, since, being a unitary state, they do not have to be concerned with the federal-provincial implications, as we do. Also, I might say that in many instances they have not paid the same attention to detail with respect to the safeguards of individual rights and to detail with respect to the supervision of Parliament.
Senator Stewart (Antigonish-Guysborough): So you are saying that in the United Kingdom there is no parallel to Part IV of this bill and, in fact, no parallel to Part III. Is that right?
Mr. Snarr: As I say, there is certainly no parallel to Part IV. However, I am not sure, just on the basis of memory, of the extent to which their emergency legislation would permit them to take preparatory action in a national crisis, which is the intent of Part III.
Senator Stewart (Antigonish-Guysborough): Thank you, Mr. Chairman.
The Chairman: Next on my list I have Senator Frith and he will be followed by Senator Marsden.
Senator Frith: Mr. Chairman, the questions I had have been canvassed by Senator Stewart and by the witness. I will therefore yield to Senator Marsden.
Senator Marsden: Mr. Chairman, I am wondering if it is fair to assume that the witnesses read the transcripts of our exchange with the minister and therefore have read the questions which I put to Mr. Beatty, when he came before us the other day, concerning the public welfare emergency section. Is that a fair assumption?
Mr. Snarr: If you recall, senator, we were present.
Senator Marsden: My apologies. I would like to go back to that question, if I may, Mr. Chairman, and I would like to refer specifically to the question of internment. I may just be missing something here, but, under the orders and regulations section of the bill, clause 8(1) states that in a public welfare emergency the Governor in Council may make such orders or regulations with respect to the establishment of emergency shelters and hospitals; evacuate people; regulate or prohibit their travel; take away or dispose of their property, et cetera. What is the difference between that and internment, which the minister said was not possible under a public welfare emergency?
Mr. Snarr: Once an individual has been interned, we generally envisage a situation in which he has been put in a very restrictive and confined environment and is not allowed to stray therefrom for any purpose whatsoever. The kind of provisions that are envisaged in clause 8 for a public welfare emergency are designed to provide for the safety of individuals and are therefore more what one might call the “inverse of internment”. There are areas from which people would be excluded, but, aside from that, they could roam wherever they pleased.
Senator Marsden: May I then ask if the witness is saying that that is what clause 8(1)(a) means when it says:
(a) the regulation or prohibition of travel to, from or within any specified area where necessary …
It sounds to me as though such people might be quite confined. Perhaps another way of asking the question is this: Is “internment” defined somewhere in this bill or in some other act where I might look?
Mr. Snarr: Senator, to answer your second question first, the word “internment” is not defined in this legislation and, to my knowledge, I do not think it is defined elsewhere. I can see your concern, particularly with regard to the word “from” in the phrase “the regulation or prohibition of travel … from … any specified area where necessary for the protection of the health or safety of individuals.” One ought to keep in mind in considering the implications of that clause that we are talking, first, about a natural disaster or major accident. It is simply a temporary situation and the power to invoke measures pursuant to clause 8 are restricted to a relatively short timeframe.
The measures must be very strictly confined to those that are necessary in order to meet the purposes of the act, which, in this particular clause, is “for the protection of the health or safety of individuals.” The example that comes immediately to mind with regard to the prohibition on travel from a specified area is one where there is the necessity to quarantine certain individuals who are suffering from a highly contagious disease, both for their safety and for the safety of others. It may be necessary to confine them while they are in the condition where the disease is communicable. This, however, is not the least bit exceptional. I would not be surprised if there is sufficient authority within legislation with regard to the Department of National Health and Welfare or at the provincial level to take the kind of measures necessary to meet that situation, and therefore this legislation would not even need to be invoked for that purpose.
Senator Marsden: In the example that is offered, no doubt you are quite correct. Of course, the provision requires that the internment can be no longer than seven sitting days before it has to be reviewed. As you know, one has to try to think of extreme circumstances to determine how much protection the bill will provide. I come back to the question of why the minister would have replied that there is no power of internment, when, for at least seven days and perhaps longer, people may be confined to an emergency shelter, which, I suppose, could be called an internment camp under certain circumstances, and may not move “to, from or within” an area. What is the difference? I do not see the difference between that phrase and internment.
Mr. Snarr: The difference relates to the purpose for which the restrictions are being applied and, indeed, with regard to the specific nature of the restrictions. I do not have a dictionary with me so I do not know what the generally accepted dictionary definition of “internment” is. It conjures up in my mind, as I am sure it does in the minds of many people, rather arbitrary confinement in a prison-like environment, where the concern is not so much with the safety of the individual as it is with what that individual might wilfully do to other people or what damage the individual might wilfully do to the rest of the country. It conjures up in my mind something very similar to imprisonment, detainment and 50 on.
Coming back to the example I used, when we talk about quarantine, we do not use the word “internment”.
Senator Marsden: Recently I have had occasion to look at provincial legislation on this matter and it varies considerably from province to province. One can easily imagine where the federal government might wish to step into a situation involving disease. Many provinces have the power to deal with such incidents and some have power which may or may not be adequate, so this provision may have to apply in some future case.
The witness has described what this provision conjures up in his mind. It conjures up in my mind something entirely different. I can think of conditions in modern life where people might be declared insane or, for example, where some post- World War II condition might apply, and one can sec the possibility of confinement for seven days. What kind of protection would those people or their relatives have if the people so confined could not move within the specified area, could not have contact with one another and they could not travel in or out? What kind of protection does this act provide within that seven-day period, before the House of Commons comes to their rescue?
Mr. Snarr: On your first point, the emphasis in paragraph 8(1)(a) ought to be placed on prohibition of travel. In other words, the power is not given to detain or to intern but to prohibit travelling, which has a slightly different connotation. I can see that you could interpret it in such a way as to mean travel within, for example, a 30-square-foot area, but I think the word “travel” connotes something more than that, and that therefore what you have described would not likely be permitted under paragraph 8(1)(a).
On your second question, there is, of course, the Charter rights which prevent people from being arbitrarily detained. Everyone has the right upon detention to be informed, and there are the legal rights which apply to everyone. If the order were worded in such a way as to confine travel significantly enough, then it would not take much imagination to conclude that that means detainment, and therefore the Charter of Rights and Freedoms would be triggered.
Senator Marsden: Thank you.
The Chairman: Honourable senators, I have no other names on my list at this time. Therefore, on behalf of the committee, I thank the witnesses for coming here today.
Senator Doody: Mr. Chairman, I move that the committee adjourn, report progress and ask for leave to sit again.
The Chairman: Is it agreed, honourable senators?
Hon. Senators: Agreed.
The Hon. the Acting Speaker: Honourable senators, the sitting of the Senate is resumed.
REPORT OF COMMITTEE OF THE WHOLE
Hon. Eymard G. Corbin: 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 ]eave 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 committee have leave to sit again?
Hon. C. William Doody (Deputy Leader of the Government) moved that the Committee of the Whole be given authority to sit again at the next sitting of the Senate.
Motion agreed to.