Legal Brief for April, 2020

The Emergencies Act

With the urgent measures required to try to halt or contain the spread of the coronavirus, Covid 19, we are hearing frequent mention of a federal government law known as the Emergencies Act.  The Act is being spoken of in terms of it possibly being activated in order to provide the federal government with the authority to put in place strict legally binding measures on all Canadians in regards to their conduct while the pandemic exists.  It is often noted in passing in these news reports that the Act used to be known as the War Measures Act.  Unless you were around during the early 1970s it is unlikely however that you will be familiar with the only peacetime use of the War Measures Act in Canada.

The War Measures Act was enacted by the Parliament of Canada on August 22, 1914 in order to provide the government of the day with the requisite authority for Canada to enter World War I and to deal with potential security issues during the War.  The Act provided the government with sweeping powers to deal with any matters which might arise "by reason of the existence of real or apprehended war, invasion or insurrection".

These powers included the right to arrest people without having the usual "reasonable and probable grounds" and to detain them in custody for extended periods of time without having recourse to such fundamental rights such as habeas corpus (the right of an arrested person to be brought before a judge to determine if the accused should remain in custody or not).

The Act was not limited to just the period of World War I.  It remained on the statute books so to speak of the federal government, and it was again activated during World War II in order to again provide the government with powers to meet the threats to security arising from the events of that War.

The 1960's were turbulent times in the Province of Quebec.  A variety of nationalist groups began advocating for greater French language protection rights, and some groups began to advocate the separation of Quebec from Canada.  An ongoing series of small scale violent activities erupted into open criminal activity in October 1970 when the separatist Front de Liberation du Quebec (FLQ) kidnapped British dipomat James Cross and the Quebec Cabinet minister, Pierre Laporte.  As the crisis escalated pressure grew on the federal government from the Premier of Quebec and the Mayor of Montreal to do something to try to resolve the situation.  When the Prime Minister of the day, Pierre Trudeau was asked on October 13th, 1970 if he was going to invoke the War Measures Act he famously replied, "Just watch me."  And three days later he invoked the Act.  The Act was used by the Surete du Quebec police force to arbitrarily arrest 465 FLQ suspects and hold them without charge.

The crises was eventually resolved in December 1970 with the release of James Cross by the FLQ gang, but not before the unfortunate murder by the FLQ of Minister Laporte earlier.  The War Measures Act was "deactivated" by the federal government in January 1971.

The Act remained in place as a Canadian law under that name until 1988 when it was replaced by what is now known as the Emergencies Act.  The Emergencies Act contains most of the powers of the old War Measures Act, but in keeping with legal changes since 1970 the new Emergencies Act provides that a declaration of emergency by the government must be reviewed by the House of Commons, and any temporary laws enacted by the government by virtue of the Act are subject to the Charter of Rights and Freedoms, which came into force in 1982.

We all hope that the pandemic will not worsen to the extent that the federal government believes it has to implement the Emergencies Act.  If that does come to pass we will know that we are living in truly historic times.