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Date: 1980-10-07
By: Fred Jordan
Citation: Memorandum from Fred Jordan, Briefing Note – Effect of Charter on Application of War Measures Act (7 October 1980)
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October 7, 1980

BRIEFING NOTE – EFFECT OF CHARTER ON APPLICATION OF WAR MEASURES ACT

Q: What would be the effect of the proposed constitutional Charter of Rights on the power to use the War Measures Act?

A: While the Charter would not preclude the invocation of the War Measures Act in a state of serious emergency, individuals would be able to challenge in the courts any action taken under the Act. For example, the courts would Judge whether the suspension of certain freedoms or rights under the Act, are consistent in the circumstances with “reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government”. If they judge them not to be consistent, these actions or measures could be struck down.

Section 6(5) of the War Measures Act (stating that anything done under the Act shall be deemed not to abrogate, abridge or infringe any right or freedom recognized by the Canadian Bill of Rights) would no longer be applicable. The rights and freedoms under the Charter would be entrenched and not subject to being made inapplicable to any federal or provincial law.

The War Measures Act provides that a proclamation by the Governor in Council that a state of real or apprehended war or insurrection exists is conclusive of that fact. Under the Charter of Rights, such a provision would be rendered inoperative. Also, with an entrenched Charter the courts should be more willing to examine whether the facts justify a proclamation under the Act.

Even where the War Measures Act is not invoked, where there is a state of serious emergency, Parliament would still, even with section 1 of the Charter, be able to enact such laws restricting rights and freedoms as are considered necessary to deal with the crisis . However, as noted earlier, each of these restrictions would be contestable in the courts to determine their reasonableness.

BY HAND

Date                October 8, 1980.

TO:                  MINISTER

FROM:            SENIOR COUNSEL

(PUBLIC LAW)

SUBJECT:      CHARTER OF RIGHTS AND WAR MEASURES ACT

Attached for your use is a briefing note on the effect of the Charter of Rights on the application of the War Measures Act. This briefing note is also being given to the Prime Minister. Attached to it is another note providing somewhat more detail on what is set forth in the brief response.

F.J.E. Jordan

Atts.

cc w/atts.         Deputy Minister

Mr. E. Goldenberg

Mr. S.G. MacKinnon

CONFIDENTIAL

October 7, 1980

BRIEFING NOTE – EFFECT OF CHARTER ON APPLICATION OF WAR MEASURES ACT

Q: What would be the effect of the proposed constitutional Charter of Rights on the power to use the War Measures Act?

A: While the Charter would not preclude the invocation of the War Measures Act in a state of serious emergency, individuals would be able to challenge in the courts any action taken under the Act. For example, the courts would Judge whether the suspension of certain freedoms or rights under the Act, are consistent in the circumstances with “reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government”. If they judge them not to be consistent, these actions or measures could be struck down.

Section 6(5) of the War Measures Act (stating that anything done under the Act shall be deemed not to abrogate, abridge or infringe any right or freedom recognized by the Canadian Bill of Rights) would no longer be applicable. The rights and freedoms under the Charter would be entrenched and not subject to being made inapplicable to any federal or provincial law.

The War Measures Act provides that a proclamation by the Governor in Council that a state of real or apprehended war or insurrection exists is conclusive of that fact. Under the Charter of Rights, such a provision would be rendered inoperative. Also, with an entrenched Charter the courts should be more willing to examine whether the facts justify a proclamation under the Act rather than relying solely on the judgement of the Government.

Even where the War Measures Act is not invoked, where there is a state of serious emergency, Parliament would still, even with section 1 of the Charter, be able to enact such laws restricting rights and freedoms as are considered necessary to deal with the crisis . However, as noted earlier, each of these restrictions would be contestable in the courts to determine their reasonableness.

NOTE ON CHARTER OF RIGHTS AND WAR MEASURES ACT

There are three key elements in the War Measures Act are likely to be affected by adoption of the Charter of Rights. (No question is raised, however, about Parliament’s ability to enact contingency legislation providing for exceptional powers in emergency situations such as war, invasion or insurrection. The real question is the extent to which the application of those powers in a particular emergency may be found to be reasonable in the circumstances of the case.)

The first element concerns section 2 of the War Measures Act which provides that a proclamation by the Governor in Council that a state of real or apprehended war, invasion or insurrection exists and the duration of its continuance is conclusive evidence of that state of affairs.

The courts have indicated in the past that they do have the power to review such a proclamation to determine if the facts indeed support the issue of the proclamation. However, the courts have been at the same time very reluctant to second-guess the judgement exercised by the government.

Under the Charter of Rights, however, the rights guaranteed by the Charter (including those such as fundamental freedoms and legal rights most likely to be affected by a proclamation of emergency) are expressly made, by section 1, subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government.

With this guarantee entrenched in the constitution it is certainly more likely that the courts would indeed be prepared to review the facts of a particular emergency to determine if the proclamations was justified to limit guaranteed rights and freedoms.

Consequently, it is likely that section 2 to the extent that it purports to make a proclamation of emergency conclusive of the fact would not be valid to prevent the courts from inquiring into the justification for the proclamation.

The second element involves section 3 of the Act which gives the Governor in Council sweeping powers to make such regulations or orders as the government deems necessary or advisable for the security , defence, peace, order and welfare of Canada. Particular powers given

– censorship of expression and communication,

– arrest , detention, exclusion and deportation.

Each of these powers may be justified by the circumstances of the case, and section l of the Charter would permit the exercise of them if they were reasonable in the circumstances. A determination of that would , under the Charter, have to be measured in each case by looking at the particular provisions of the Charter and the limits authorized by section 1.