No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
The Emergency Power and Civil
Liberties in Canada
Herbert Marx*
“Emergency, emergency”, I cried, give us emergency. This shall be the
doctrine of our salvation.
F. R. Scott.**
Introduction.
I- The Resort to Martial Law
A. Martial Law in Britain.
B. Martial Law in the United States.
C. Martial Law in Canada.
II- The Emergency Doctrine in Canada
A. The Development of an Emergency Doctrine.
B. When is the Emergency Over?
C. The Defence Power.
D. The Emergency Power in Peacetime.
E. The Emergency Power and the Bill of Rights.
III- The Impact of Emergency on Civil Liberties
A. Freedom of Speech, of the Press and of Association.
B. Property Rights.
C. Suspension of the Writ of Habeas Corpus.
D. The Case of the Japanese Canadians.
Conclusion
* B.A. (Sir George Williams U.), M.A., LL.L. (.Montr6al), LL.M. (Harvard),
of the Faculty of Law, University of Montreal. Member of the Quebec Bar.
* F. R. Scott, Some Privy Counsel, (1950), 28 Can. Bar Rev., 780.
McGILL LAW JOURNAL
[Vol. 16
Introduction
Since the outbreak of the First World War, Canada has been
subject to “emergency” legislation for about forty percent of the
time.1 During both World Wars and for a period after, as well as
during the Korean War, legislation was in effect that at times
virtually allowed the Federal Government to rule by Order-in-Council.
Generally the emergency power has permitted the Federal Govern-
ment to override fields normally reserved to the provinces in the
British North America Act.2 Lord Atkin’s 3 watertight provincial
compartment is thus opened to a flood of federal legislation. As well,
the Federal Government has imposed restrictions on normal civil
liberties in war emergency periods. 4
Although it is beyond the purview of this paper, it is important
to recognize that emergency government tends to weaken the federal
principle –
a principle that requires that as between the regional
and the federal governments, each “should be limited to its own
sphere and, within that sphere, should be independent of the other”.5
Professor Wheare, for example, questions whether Australian feder-
alism would survive another grave crisis. 6 Consequently, in any future
Canadian constitutional revisions, the provinces may desire guarantees
for the restoration of breaches in the federal principle caused by
emergency legislation.
In early 1968, the Federal Government presented a policy paper
to the Constitutional Conference of Prime Ministers and Premiers
as a basis for discussion by all eleven governments concerning an
entrenched or constitutional Bill of Rights. The Federal Government
1 This figure is obtained by adding the years of World War I plus a brief
period afterwards to the World War II years and extending to 1954 at which
time the emergency powers legislation of the post war period was permitted
to expire. Had Prime Minister Bennett’s “New Deal” legislation been held
valid, this figure would be fifty percent or more.
230-31 Vict., 1867, c. 3, (U.K.), hereafter referred to as the B.N.A. Act.
This is also generally true for Australia, see, W.A. Wynes, Legislative, Executive
and Judicial Powers in Australia, (3rd ed. 1962), pp. 254-290. For the United
States, see the statement by E.S. Corwin in Total War and the Constitution
(1947), at p. 1-74.
3 Attorney-General for Canada v. Attorney-General for Ontario, [1937] A.C.
326, at p. 354 (P.C.).
4 This is not true in peace time. The Emergency Powers Act of 1951, 15
Geo. 6, c. 5 (Cam) prohibited the Governor-in-Council from interfering with
civil liberties. See s. 2(2), as well as the Preamble to the Act.
5 K.C. Wheare, Federal Government, (4th ed. Oxford paperback, 1863), at p. 14.
6 Ibid., at p. 239. See also at pp. 205 and 238.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
explicitly recognized that in formulating a Bill of Rights some
attention would necessarily have to be given to the limitation and
protection of those rights in time of crisis.7 Subsequently, the
government made more precise recommendations. 8
It is axiomatic that a sovereign government 9 must have effective
means at its disposal to deal with emergency situations. Federalism
presents special problems, because a federal system presupposes
diversity whereas an emergency, especially that of war, requires
7 “A discussion about implementation of rights calls of necessity for a dis-
cussion as well of their limitation in time of emergency. On the occasion of
war or other national crisis, western democracies have found it necessary to
interfere drastically with normal private rights. No matter what the consti-
tutional context, the courts have generally permitted this interference because
they recognize the necessities of state involved. Some consideration should
therefore be given at the outset to the extent to which the legislative authority
of Parliament should be restored in times of emergency, and the means by
which this may be accomplished.”
“One of three approaches might be employed: (i) some general exemption
in the nature of the amendment to the War Measures Act enacted ws part
of the 1060 Canadian Bill of Rights; (ii) a precise specification of the several
(in this way
rights which may be infringed and, perhaps, to what extent
the political and legal rights requiring abridgment could be dealt with while
egalitarian and linguistic rights could continue unimpaired); (iii) no mention
of any exemption, thus permitting the courts to determine what limitations
are made necessary in times of crisis (many of the guarantees in the United
States Bill of Rights are stated without qualification yet the American courts
have recognized that some of them may be limited in time of war).” P.E.
Trudeau, A Canadian Charter of Human Rights, (:M968), at p. 30.
8 In February 10B9, on the occasion of the second meeting of the Constitutional
Conference, the Federal Government submitted a “tentative” proposal as to
how the emergency power should be dealt with in relation to a Bill of Rights.
The suggestion was that:
“It should be provided that where Parliament has declared a state of war,
invasion, or insurrection, real or apprehended, to exist, legislation enacted by
Parliament which expressly provides therein that it shall operate notwithstanding
this Charter [Bill of Rights], and any acts authorized by that legislation,
shall not be invalid by reason only of conflict with the guarantees of rights
and freedoms expressed [in the present] Charter”.
P.E. Trudeau, The Constitution and the People of Canada, (19,69), at p. 60.
DIn an editorial on June 1, 1968, the New York Times stated that the Allies
had reserved emergency powers and they had agreed to relinquish these powers
when Bonn enacted an adequate law. Such an emergency law, the editorial
continued, was the minimum required to give West Germany sovereignty after
twenty years. New York Times, June 1, 198, at p. 26, col. 2. For a discussion
legislation see, Note, Recent Emergency
of the West German emergency
Legislation in West Germany, (1969), 82 Harv. L.R. 1’704.
McGILL LAW JOURNAL
[Vol. 16
unity and centralism. More specifically, war requires “totalitarian” 10
government, or, to use a less harsh term, “constitutional dictator-
ship”.”1
Five main types of crises requiring emergency powers have been
suggested 12 – war, economic depression, secession, insurrection and
subversion. Whatever be the method of dealing with emergency
situations –
be it 6tat de siege (state of siege), martial law 13 or
a delegation of legislative authority as in the Canadian War Measures
Act 14 –
it is common to all methods that in times of emergency,
power is abnormally concentrated in the executive branch of govern-
ment.
Etat de si~ge 15 was developed in France and it is the Continental
and South American method of dealing with crises situations. It is
to be distinguished ‘6 from martial law primarily because 6tat de
siege is a legal institution constitutionally foreseen (as in France)
and regulated by statute; whereas, martial law is a condition in
it “is no law at all”.1 7 Both
which law is temporarily abrogated –
doctrines, however, are but different sides to the same coin and are
almost indistinguishable in practice. On the issue of constitutionality
and statutory regulation there is some similarity between 6tat de
si~ge and a delegation of power as in the Canadian War Measures Act.
The inquiry suggested by the Canadian Government’s policy paper
(I) The Resort to Martial Law; (II) The
can be explored as to –
Emergency Doctrine in Canada; and, (II) The Impact of Emergency
on Civil Liberties.
10 Wheare, supra, n. 5, at p. 187.
11 C L. Rossiter, Constitutional Dictatorship, (1048, Princeton N.J.), at pp. 4-5.
12 G.J. Freidrich and A.E. Sutherland, “Study 13:
the
in Studies in Federalism, Bowie and Freidrich eds.,
the Defense of
Constitutional Order”
(Boston, 1054), p. 676.
13 The term “martial rule” is sometimes used by American commentators.
14 R.S.C. 1952, c- -88. Comparative legislation in the United Kingdom and
in Australia was respectively, the Emergency Powers (Defense) Act, 2 & 3
Geo. 6, 1039, c. 62 (U.K.) and the National Security Act, 1939-1043 (Australia).
15 For an excellent discussion on dtat do siage, see Rossiter, supra, n. 11,
at pp. 79 et s.
16 For comparisons between 6tat de siege and martial law, see, M. Radin,
Martial Law and the State of Siege, (1042), 30 Calif. L. Rev. 634; J.B. Kelly
and G.A. Pelletier, Theories of Emergency Government, (1966), 1A S.D.L. Rev.
42, at pp. 53-58; Friedrich and Sutherland, supra, n. 12, at pp. 678-680.
17 Tilonko v. A.G. Natal, [1907] A.C. 93 at p. 94 (P.C.), per Lord Halsbury.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
I -THE RESORT TO MARTIAL LAW
The term “martial law” as applied to Fngland has been described
as “the action of the military when, in order to deal with an
emergency amounting to a state of war, they impose restrictions
and regulations upon civilians in their own country”. 8 Within the
bounds of this criterion it can be said that a state of martial law
has not arisen in Britain since the seventeenth century civil war.19
That ordinary British citizens were subject to trial by courts –
martial in 191420 would not qualify as martial law. However, for
the purposes of the discussion that follows, martial law or partial
martial law would include the situation wherein the ordinary law
as applied by the ordinary courts is suspended in whole or in part and
civilians are tried by courts – martial. 21 Under this wider definition
the situation in the England of 1914 amounted to a state of martial
law or partial martial law. Whatever the description or definition,
martial law is to be sharply distinguished from military law or
from aid by the military to civilian authorities for the purpose of
quelling disorder.
Since Confederation there has not been actual practicaml experience
with martial law in Canada. Canadian legal roots on this matter,
as well as those of the United States, are to be found in the
IsE.C.S. Wade and G.G. Phillips, Constitutional Law, (5th ed., 1955), p. 422;
see also, E.S. Corwin, The President; Office and Powers, (3rd ed., 1948),
p. 1170; Rossiter, supra, n. la, at pp. 9 and 140; and Luther v. Borden, (1849)
7 How. 1, at p. 45, cited infra, at n. 47.
19 Wade and Phillips, supra, n. 18, at p. 423. Rossiter, supra, n. 1i, at p. 139,
footnote 10 states that –
“The last instances of martial law in England, none
of them particularly serious, Were in 1715, 1740, and 1780.” He cites as
authority for this statement C.M. Clode, Military Forces of the Crown, Vol. 2,
(1869), at pp. 169 et seq. The quelling of these disturbances is traditionally not
viewed as instances of martial law by writers on English constitutional law. Lord
Chief Justice Cockburn said that neither in 1715 nor in 17145 was martial law
and the .1780 episode was more in the nature of
attempted or exercised –
military aid to the civil authorities. Although the writ of habeas corpus was
suspended, there were no trials by courts – martial at any timie. See Clode,
cited above; also, H.M. Bowman, Martial Law and the English Constitution
(1916411,7), 15 Mich. L. Rev. 93, at pp. 19-121.
2
0 Defence of the Rialm Act (No. 2), 19114, 4 & 5 Geo. 5, c. 63 (U.K.).
21 The Honourable Brooke Claxton, then Minister of National Defense, defined
martial law as “the condition obtaining when the application of the ordinary
rules of law by the ordinary courts is suspended and such law as then remains
is enforced by military tribunals.” Canada-House of Commons-Special Committee
on Bill No. 1=3. An Act Respecting National Defense, Minutes of Proceedings and
Evidence, (1950),
(hereafter referred to as 1950 Commons Committee Pro-
ceedings), at p. 12.
McGILL LAW JOURNAL
[Vol. 16
common law and also in British experience. Consequently some
guidance relevant to Canadian law can be gained from an examination
of the British and American theory and practice.
A. Martial Law in Britain22
“Martial law arises from the State necessity, and is justified at
the common law by necessity, and by necessity alone.. .” 23 The
Petition of Right 2 4 was passed in order to prevent the Crown from
dealing with subjects by means other than that of the ordinary
courts –
to prevent the abuses of military trials of civilians that
had occurred in the past. Even courts-martial for military personnel
required parliamentary sanction so that parliament annually re-
enacted legislation to provide for discipline in the army.25
Martial law can be proclaimed under the authority of a statute
or by the executive as in the case of the South African Boer War.
When declared without statutory authority, it is not settled if this
power to use extraordinary measures resides in a Crown prerogative
or is merely the common law duty of both subject and ruler to
use whatever force is necessary to suppress disorder and restore the
rule of law. There is no practical difference in this distinction
as in either case the Crown or those acting under Crown authority
are limited by the necessities of the case.
The traditional British doctrine as laid down in Wolfe Tone’s
Case 26 was that persons not in the military could not be tried by
court-martial while the ordinary courts were open. During the
1837-1838 rebellion in Lower Canada this view was re-iterated by
the Law Officers of the Crown whose joint opinion stated that:
When the regular Courts are open, so that Criminals might be delivered over
to them to be dealt with according to law, there is not, as we conceive, any
right in the Crown to adopt any other course of proceeding. Such power can
only be conferred by the Legislature…27
This doctrine was soon to be reversed.
22 An excellent study of martial law in both England and the United States
is by C. Fairman, The Law of Martial Rule, (1930),
(a 2nd ed., 1943 is also
available; however, references here are made
to the 1930 edition) and a
supplement to this work is found in C. Fairman, The Law of Martial Rule
and the National Emergency, (1 41-42), 55 Har. L. Rev. 1253.
23 Cyril Dodd, The Case of Marais, (1002), 18 L.Q.R. 143, at p. 145.
243 Car. 1, c. 1, (U.K. 16217).
25Now re-enacted by the Army and Air Force (Annual) Acts.
26 (1798) 2 State Tr. 759.
27 2 Clode, supra, n. 19 at p. 500, (emphasis added). The Law Officers were
Sir John Campbell and Sir S.M. Rolfe.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
During the Boer War, martial law was declared by an executive
act, without statutory authority. In Ex parte D.F. Marais,28 their
Lordships reversed the traditional test, holding that even if the
courts were open for some purposes, this in itself did not foreclose
civilian trials by courts-martial. 29 And, when a state of war exists,
the civil courts will not interfere with the actions of the military.
Marais would not be binding on an English court.3 0 From some of
the cases that arose after the imposition of martial law in Ireland
during the 1920’s we can also note: 31 that, once their jurisdiction
has been invoked, the civil courts will decide whether a state of war
justifying martial law exists; 32 and, that a writ of prohibition
cannot issue against a military court set-up under martial law
because it is not really a court but only an advisory committee to
the military commander.33 Also, an Act of Indemnity 3
4 will retro-
spectively protect persons who have acted in good faith.
In 1914, for the first time in over 250 years a British subject
in England could be condemned to death without a jury trial. The
King’s courts were open, and if war was raging, it was not raging
on English soil. The original Defence of the Realm Act 35 (DORA)
provided in s.1 that His Majesty in Council could authorize by
regulation “the trial by courts-martial and punishment of persons…
in like manner as if such persons were subject to military law.”
This was generally applicable to those assisting the enemy or for
contravening regulations securing public transportation and public
28 [1902] A.C. 109 (P.C.). For a discussion on martial law inspired by Marais
see, Dodd supra, n. 23; W.S. Holdsworth, Martial Law Historically Considered,
i17; H.E. Richards, Martial Law, (1902), 18 L.Q.R. 133
(1.902), 18 L.Q.R.
and, F. Pollock, What is Martial Law?, (‘1902), 18 L.Q.R. 152.
29The attorneys for petitioner in Marais [1002] A.C. 109 at p. 11-,
the
statement by the Law Officers of the Crown, see supra, at n. 27, as well as
E rparte Milligan, 71 U.S. (4 Wall.) 2 (1866), to no avail. Marais was followed
in R. (Childers) V. Adjutant-General [1923] Ir. R. 5,
in which case the
courts were not open in a practical sense insofar as the judges needed military
protection in order to sit and the courthouse was in ruins.
30 Wade and Phillips, supra, n. 18, at p. 426. Consequently, even if a state
of war exists, the civil courts can call into question the actions of the military
–
i.e. a writ of habeas corpus would issue.
31For a discussion of the Irish cases, see C. Fairman, The Law of Martial
Rule (1-930), at pp. 127-137. Jurisdiction under martial law is examined
in
F.B. Wiener, Civilians Under Military Justice, (Chicago, 1967), at pp. 219-226.
32R. (Garde) v. Strickland, [1,921] 2 Ir. R. 317, at p. 329.
33 Re Clifford and O’Sullivan, [1921] 2 A.C. 570, at pp. 580-81 (H.L.) accord,
Ex parte Vallandigham 68 U.S. (1 WalL) 243 (1863); see infra, n. 61.
34 E.g., Indemnity Act, 1920, 10 & 11 Geo. 5, c. 48, s. 1(1) (U.K.), now repealed.
351914, 4-5 Gee. V. c. 29, (U.K.).
McGILL LAW JOURNAL
[Vol. 16
facilities. Almost three weeks later the Act was amended to cover
regulations “to prevent the spread of reports likely to cause dis-
affection or alarm.” 36 Subsequently, a further amendment provided
for the death penalty if convicted by a court-martial of “assisting
the enemy”. 7 However, a little over seven months after the original
DORA was passed, the right of a British subject to trial by jury
was restored, provided that –
“in the event of invasion or other
special military emergency,” trial of civilians by courts-martial
could be restored by Proclamation.8 3
The Emergency Powers Act 39 of 1920 authorized proclamations
of emergency by Order-in-Council for securing the essentials of life
to the community. It was legislation designed to be used in the event
of a crippling strike.40 However, s.2 (3) foresaw that the regulations
made under the Act could not “alter any existing procedure in
criminal cases, or confer any right to punish by fine or imprison-
ment without trial.”
In the Second World War, trial by courts-martial was expressly
forbidden in s.1 (5) of the Emergency Powers (Defence) Act, 41 for
persons who were not subject to ‘laws applicable to the armed services.
However, as concerned enemy aliens aiding the enemy, the Attorney-
General could proceed before a court-martial if it was so desired.4 2
When invasion was feared possible, legislation was passed to provide
for special war zone courts. These courts were to sit if the military
situation required “that criminal justice should be administered
more speedily than would be practicable by the ordinary courts.” 43
These were essentially civil courts of record; they were never required
to sit.
This brief discourse on martial law in Britain would indicate
that any future regime of mairtial law would most likely be established
36 Defence of the Realm Act (No. 2), 1914, 4 & 5 Geo. 5, c. 63, s. I(a) (U.K.).
37 Defence of the Realm Consolidation Act, 1014, 5 Geo. 5, c. 8, s. 1(4) (U.K.).
However, in the original Act, supra, n. 35,
the government had expressly
excluded the death penalty in order to gain support for passage of the bill.
Bowman, supra, n. 10, at rp. 96.
38 Defence of the Realm Amendment Act, 1015, 5 Geo. 5, c. 34, s. 1(7)
(U.K.).
There was probably no real necessity for court-martial of civilians, see,
Bowman, supra, n. 19, at p. 100.
39 ( 120), 10 & I Geo. 5, c. 55 (U.K.).
40 E.g., this Act was used in the 1021 Coal Strike, the London Tramways
and Omnibus Strike of 1924 as well as in the 1948 and 1049 Dock strikes.
41 (,1039), 2 & S Geo. 6, c. 6 (U.K.).
4 2 Treachery Act, 1940, 3 & 4 Geo. 6. c. 21, s. 2(1) (b)
43 Emergency Powers (Defence) (No. 2) Act, 1940, 3 & 4 Geo. 6, c. 45,
(U.K.).
s. 1i(i)
(U.K.).
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
under statutory authority. However, in an extreme case –
sudden
atomic destruction, for example –
in which Parliament was prevented
from acting, the common law doctrine of necessity would permit
the establishment of martial law by whatever power was in existence
(probably the military) so as to provide for the maintenance of order
and the return of rule by law.
B. Martial Law in the United States 44
Although the term “martial law” is not in the American Con-
stitution, this was an institution well known in Colonial America.45
The common law doctrine of necessity determinative of martial
law carried over as a state and federal power. There are a number
of provisions in the Constitution germane to the establishment of
martial law, 46 and it can be declared by an executive act or under
statutory authority. In Luther v. Borden,47 the Supreme Court held
that the judgment of the Government of Rhode Island to use its
military power to suppress an insurrection caamot be judicially
questioned. The Court defined martial law as the,
… exercise of the military power which resides in the Executive Branch
of Government to preserve order, and insure the public safety in domestic
territory in time of emergency, when civil government agencies are unable
to function or their function would itself threaten the public safety.4 8
Under national authority this “military power” rests with the
President as Commander-in-Chief. 49
The most important statement by the Supreme Court on martial
law was given in the Civil War case of Ex ipcrte Mifligan.5 0 Milligan,
44 Generally, see, the works by Fairman, supra, n. 22; R.S. Rankin, When
Civil Law Fails, (1039); F.B. Wiener, A Practical Manual of Martial Law,
Rich, The Presidents and Civil Disorder, (1941); and, R.S. Rankin
(1940); B.
and W.R. Dallmayr, Freedom and Enzergency Powers in the Cold War, (1964).
in Wiener,
4 5 An excellent study of martial law in Colonial America
is
supra, n. 311.
50 Ex parte Milligan, 71 U.S. (4 Wall.) 2, (1866).
46 U.S. Const. art. I, s. 9, cl. 2, the writ of habeas corpus can be suspended;
art. II, s. 2, ol. 1, the President is Commander-in-Chief of the armed forces;
s. 3, the President shall faithfully execute the laws of the United
art. II,
States; and art. IV, s. 4, the United States shaU guarantee a republican form
of government to every state.
4 7 Luther v. Borden, 48 U.S. (7 How.) 1, (1849).
48 Ibid., at p. 45.
49 When the Commander-in-Chief clause was wedded to that of the President’s
the well-known
duty “to take care that the laws are faithfully executed”
“War Powers” of the President emerged. See, The Prize Cases, 67 U.S. (2 Black)
(.1963) which affirmed President Lincoln’s power to order the blocade of
635
southern ports before Congress had recognized the existence of the Civil War.
–
McGILL LAW JOURNAL
[Vol. 16
a private citizen, was arrested in Indiana on the orders of the local
military commander. He was found guilty of treasonable offences
and of disloyalty by a military commission and sentenced to be hanged.
President Johnson had established this commission and had approved
the findings of the Court. Milligan petitioned the Circuit Court of
Indiana for a writ of habeas corpu, no civil indictment having
been returned against him. The Circuit Court certified questions
to the Supreme Court concerning the issuance of this writ. The
case turned on the question: whether a private citizen can be tried
by a military tribunal during a rebellion when he is not in an
insurrectionary part of the country and the civil courts are open.
There, of course, had been hundreds of arrests and trials in similar
circumstances throughout the war.
The Court was greatly influenced by the British Constitutional
practice, adhered to before Ex parte Marais.r’ It was maintained
that since the civil courts were open in Indiana to hear criminal
accusations as well as civil cases, no usage of war could sanction
the military trial of non-military persons and that Congress could
not grant this power.52 Neither, in the Court’s opinion, could martial
law arise from a threatened invasion, and the Court found it difficult
to see how the safety of the country required martial law in Indiana.63
To proclaim martial law the test is that:
The necessity must be actual and present; the invasion real, such as effec-
tually closes the courts and deposes the civil administration. 54
The decision rested on the lack of judicial power in a Military
Commission (art. III, s.1), the guarantees of the Fourth Amendment,
as well as the necessity for an indictment or presentment before
anyone can be held to answer for high crimes, “except in cases
arising in the land or naval forces, or in the Militia when in actual
service in time of War or public danger” (Fifth Amendment), and
the right to a jury trial (art. III, s.2.cl.3 and the Sixth Amendment) .55
51 Ibid., at p. 128. See also, C. Fairman, The Law of Martial Rule and the
National Emergency, (1041-42), 55 Harv. L. Rev. 1253, at p. 1254.
52 7′.1 U.S. (4 Wall.) 2 at pp. 121-22, (1866). Chief Justice Chase, for himself and
three Associate Justices, delivered the minority opinion concurring in the result,
but maintaining that Congress could have authorized military commissions in
Indiana. (Id. at p. 18’7).
53 71 U.S. (4 Wall.) 2 at p. 127, (1866).
54 Ibid.
55 The limitations on the executive in Milligan were modified in Moyer v.
Peabody, 212 U.S. 78 (1 08), so that where the military was used and arrests
made in good faith an action could not be maintained against the Governor
after he had left office. But see Sterling V. Constantin, infra n. 59.
No. 11
EM1iRGENCY POWER AND CIVIL LIBERTIES
The state governors possess emergency powers, analogous to that
of the President,5 6 that flow from the state constitution or from
legislation. Governors, unlike provincial heads of government in
Canada, can declare maartial law and employ the state militia to
stamp out civil disorder. Particularly before World Wax I, martial
law was often used as a strike-breaking device. Some rather bizarre
gubernatorial pretexts for martial law have occurred: the establish-
ment of martial law over the race track of the governor’s political
opponent so as to tap his strength,57 and in another instance, to
allow a governor to take charge of football ticket sales between the
state’s two institutions of higher learning. s In 1931, the Governor
of Texas declared martial law so as to restrict the production of
oil in certain counties. When the legality of this act was questioned,
the evidence -disclosed that there was no violence –
neither rioting
nor was any disorder even foreseeable.59 A
nor insurrection –
federal district court order restraining the enforcement of military
or executive orders restricting or regulating oil production was
affirmed by the Supreme Court. The measures taken by the gover-
nor amounted to a taking of property without due process.
In April 1918, ‘a bill sponsored by Senator Chamberlin was
introduced in the Senate which would have permitted the declaration
of martial law on a national scale. Its purpose was to subject
civilians to trial by courts-martial for spying. President Wilson
was against the measure and it was allowed to die in committee.
The trial by courts-maxtial of American civilians would surely have
run counter to the principles laid down in Milligan.60 On a number
of occasions the Supreme Court has struck down federal court-martial
enactments that were unconstitutional.6
56 Rankin and Dallmayr, supra, n. 44, at pp. 92-95.
7F7 airman, supra, n. 51, at p. 1276.
58 Kelly and Pelletier, supra, n. 16, at p. 54 n. 31.
G9 Sterling v. Constantin, 297 U.S. 378, at pp. 390-392, (,1032).
60 In the summer of 1042 eight German saboteurs were apprehended soon
after they landed
in the United States. One of them, (Haupt) was an
American citizen. It is difficult to reconcile his conviction by a court-martial
with the Constitutional guarantees and the holding in Milligan. (Ex Parte
Quirin, 317 U.S. 1 (.1942)).
01 Held unconstitutional:
the trial of dependents of servicemen by court-
martial for capital offences, Reid v. Covert, 354 U.S. 1 (1,956); as well as, the
court-martial trial of an ex-servicemen for offences committed while he was
in the military, Toth v. Quarles, 350 U.S. 1,1 (1.955). However, the Supreme
Court has no power to review the proceedings of a military commission, the
commission not being part of the judicial system, Ex parte Vallandigham,
68 U.S. (1 Wall.) 243 (1863).
McGILL LAW JOURNAL
[Vol. 16
During the Second World War, a few hours after the attack on
Pearl Harbour, the Governor of Hawaii proclaimed martial law
and turned over control to the Commander of the United States
Army in Hawaii. His action under s.67 of the Hawaiian Organic
Act 2 was subsequently approved by the President. Martial law
remained in force until October 24, 1944; however, the curfew and
blackout regulations were continued until July 11, 1945. The “justice”
meted out by military tribunals has been severely criticized.03
When the question as to the validity of martial law in Hawaii
was decided by the Supreme Court, the war was already over.
In Duncan V. Kahanamoku,64 the defendant was convicted and
sentenced by a military tribunal in early 1944, to imprisonment for
brawling with sentries at the Navy Yard. The civil courts had by
now been authorized by the military to exercise their normal juris-
diction, except that military tribunals had retained jurisdiction to
try criminal prosecutions for violation of military orders. The Court
held that the term “martial law” in the Organic Act carried no precise
meaning. In view of American philosophical and political traditions,
“martial law” in the Act did not mean trying civilians by military
tribunals unless the civil courts were actually closed due to invasion
or civil war.
The majority opinion held that congress had not authorized
civilian trials by military tribunals since the civil courts were open.
This holding, however, turned on the statutory construction of the
Organic Act ‘and the constitutional issue raised in Milligan was not
reached.65
Was martial law necessary in Hawaii? Undoubtedly the trial by
military tribunals of even the most petty offences was not justified.
And, it is not only wisdom of hindsight that justifies this conclusion.
623j, Stat. 141, at p. 153 at s. 67.
63 “Lawyers who appear before
these [military]
tribunals are frequently
treated with contempt and suspicion.” Many citizens appeared without counsel
and acquittals were rare. Sometimes the accused was held in custody for
the writ of habeas corpus had been
a few days even for a minor offence –
“Heavy fines and long prison sentences are meted out in
suspended. And –
many cases for comparatively trivial violations of military orders.” Letter
from the Attorney-General of Hawaii to the Governor, December 1, 1942. J.G.
Anthony, Hawaii Under Army Rule (1955) at p. 195. See also the Spurlock
case, id. at p. 18. The author of this book was the Attorney-General of Hawaii
and the writer of the above-cited letter.
64327 U.S. 304 (1.945). The companion case of White v. Steer was concerned
with embezzlement by a stockbroker.
6OIn a concurring opinion Mr. Justice Murphy stressed the “open court”
rule of Milligan OW U.S. at 826 et. seq.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
The Milligan doctrine, it has been argued, does not “meet the
and, the twentieth century version
conditions of modern wax” 66 –
of martial law in Hawaii is justified on the grounds of “invasion”
by bombs, not soldiers.67 However, in contrast, during the heavy
bombings of Malta, the civil courts remained open for the trial of
ordinary offences although the Island was under military govern-
law in besieged Britain. 68
ment. Nor was there recourse to martia
“The Hawaiian experience is a good illustration of the self-perpet-
uating tendency of martial rule and does not recommend itself for
future imitation.” 09
The civilian-military relationship in times of national disaster
was fully discussed, in and out of Congress, after the Civil Defence
exercise of Operation Alert in 1955.70 During the exercise martial
law was proclaimed nationally by the President, based on the effects
of atomic destruction and the resultant breakdown in civil authority.
It was deemed a necessary measure so as to give the military a
free hand in restoring order. Milligan would not have survived such
a catastrophe, even if the courts were open in many areas.
C. Martial Law in Canada
The situation as regards martial law in Canada was stated by a
former Minister of National Defence to be as follows:
Martial -law could only be lawfully proclaimed and enforced in Canada under
the authority of an Act of Parliament such as the War Measures Act, or
conceivably by some prerogative right, but it is a very extreme measure to
deal with highly unusual situations. I do not think martial law has ever
been proclaimed in Canada since the very early days and long before
Confederation.71
Although never proclaimed in Canada since Confederation, martial
law was authorized on one occasion by an Order-in-Council in 1918,
but it never came into force.
66 Fairman, supra, n. 51, at p. 1254.
67 Colonel E.L. Farrell, Civil Functions of the Military and Implications of
Martial Law, (1954), 22 U. Kan. City L. Rev. 157, at p. 164.
68For a discussion of the functioning of a judicial system in case of atomic
attack, see, D.F. Cavers, Legal Planning Against the Risk of Atomic War,
(1.955), 55 Colum. L. Rev. 127, at pp. 151-153.
69 PRankin and Dalmayr, supra, n. 44, at p. 48. See also, id. at p. 266;
Anthony, supra, n. 63, at pp. 58-59 (the army desired to maintain martial law
in Hawaii for as long as it could); and, J.P. Frank, Ex parte Milligan v. The
Five Companies: Martial Law in Hawaii, (1.944), 44 Colum. L. Rev. 639 (the
army unduly perpetuated martial law in order to exercise control over civilian
labour).
7o See, Rankin and Dallmayr, supra, n. 44, at pp. 55-72, for a full discussion
on the aftermath of Operation Alert.
71 Statement by Brooke Claxton, 1950 Commons Committee Proceedings at p. 12.
McGILL LAW JOURNAL
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Historically the doctrine of martial law was introduced to Canada
with British rule. After the British conquest, both civil and criminal
trials were held before military tribunals during the Military Regime
of 1760-1764.72 Allusion has already been made to the legality of
proclaiming martial law in pre-confederation Canada.73 On one rather
bizarre occasion the “Provisional Government” of Louis Riel in the
rebellious west tried a Mr. Scott by a, “Council of War” presided
over by “Adjutant-General” Ambroise Lpine and duly sentenced
him to death.7 4 Riel himself, of course, was subsequently tried by a
judge and jury, and sentenced to death for treason.
The strong anti-conscription sentiment in Quebec during the first
world war, culminated in the Quebec City riots of 1918.7r The riot
of March 29 was touched off by the Military Service Act of 1917 70
and it quickly escalated. A police station was burned down and
–
when the Dominion Police applied for military assistance, they were
referred to the civil authorities. The mayor attempted to get the
crowds to disperse but to no avail. He was hesitant to proclaim the
Riot Act 77 in force and reluctant to call for military assistance. 78
By the following evening the situation had worsened and the Federal
Government sent in troops. Order was re-established by the early
hours of April 2, after four civilians had been killed and a number
of civilians and soldiers were wounded.
7 2 See, Wiener, supra, n. 31, at pp. 37-63.
73 Supra, n. 27.
74 G.F.G. Stanley, The Birth of Western Canada, (1936), at p. 105. The
“d’avoir pris les armes contre le Gouvernement Provi-
accused was charged –
soire et frapp6 l’un des capitaines des gardes” –
ibid.
75 The historical material for this episode is taken from, E.H. Armstrong,
The Crisis of Quebec 1914-1918, (1097), at pp. 220-233, and Canada – House
of Commons Debates, 1916, at pp. 284-285 (hereafter referred to as Hansard).
76 7-8 Geo. 5, c. 19 (Can.).
77 The original Riot Act was in Geo. 1, Stat. 2, c. 5 (U.K. 1714). Its Canadian
counterpart is now in the Criminal Code, S.C. 1953-54, c. 51, ss. 65-70. For an
analysis of state riot laws see, G.D. Ducharme and E.H. Eickholt, State Riot
Laws: A Proposal, (19,.68) 45 U. Det. J. of Urban L. 7.13.
78 The mayor could have asked for militaxy aid under ss. 82-83 of the Militia
Act, R.S.C. 1006, c. 41. Now, however, a requisition for military assistance
from provincial authorities must come from the Attorney-General of the
see the National Defence Act, R.S.C. 1952, c. 1,4, s. 221. The
province –
province is responsible for all expenses incurred by the Federal Government
(s. S27). This Act also provides that in an emergency (here meaning, war,
invasion, riot or insurrection, real or apprehended) any officer of the Canadian
Armed Forces may as per regulations passed by the Governor-in-Council take,
remove and destroy property (s. 207). Compensation is provided for in s. 208.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
The press report of April 2 that stated –
“Lai loi martiule pro-
clam6e”79 was more anticipatory
than factual. Doubtlessly the
Federal Government felt that the “threat of a declaration of martial
law with its accompanying suspension of habeas corpus and trial
by -civil courts, might act as a distinct deterrent.” 80 The Govern-
ment wanted to avoid the possibility of further anti-conscription
rioting.
The Order-in-Council 81 of April 4, 1918, made under the War
Measures Act,82 legalized the action of the military in suppressing
the Quebec City riots and permitted the army to hold prisoners
then in custody, without recourse to a writ of habeas corpus. The
preamble to the Order-in-Council reads like a mini-treatise on martial
law in British theory and practice.
Essentially, the Order permitted a General Officer or Com-
manding Officer in a Military District to intervene to suppress a
riot, insurrection, or civil disturbance, whether or not requested
by the civil authorities, if he believed his military intervention
necessary. If such action was taken while the Military Service Act
was in effect, the Governor in Council could suspend the ordinary
courts and institute court-martial trials of civilians. However, if
civilians were tried by court-martial, the sentence imposed was to
be like that which might be imposed by a civil court; and it was
not to be executed until affirmed by the Governor-in-Council. The
writ of habeas corpus was to be suspen’ded as regards those in
military custody. Lastly, any male obstructing implementation of
the Military Service Act or demonstrating against the Act was
subject to immediate military induction.
As the above summary of the Order-in-Council
indicates, the
power given to the military was clearly -delineated. The military
was to be the instrument for coercion and for repressing civil
disturbances that could arise during the remainder of the war, but
full control of military action was retained by the Cabinet.
The normal Canadian response to internal disorder which is
beyond the control of the civil -authorities has been a resort to
military aid by the civil authorities. During the Winnipeg General
70 The Montreal La Presse, April 2, 1018, at p. 1, col. 1.
80 Armstrong, supra, n. 75, at p. 233.
81 Canada Gazette, vol. 51, no. 41, April 13, 1918, 3552. Also reproduced in
Hansard, 1918, pp. 378-380.
821914, 5 Geo. 5, c. 2, (Can.).
McGILL LAW JOURNAL
[Vol. 16
Strike 11 the city was at times virtually controlled by the strikers.
Approximately thirty thousand persons -left their jobs in a city with
a population of 200,000. Bread, milk and ice deliveries were stopped;
restaurants closed unless they had a permit from the Strike Com-
mittee. Public transportation was halted -and telephone services
were cut off. Even the police force had voted in favour of the
strike and the force was subsequently dismissed and replaced by
“special” police. During the strike –
the normal life of the city came to a standstill.
between May 15 and June 26 –
The Manitoba Appeal Court stated:
[The strike].., was a bold attempt to usurp the powers of the duly consti-
tuted authorities and to force the public into submission through financial
loss, starvation, want and by every possible means an autocratic junta
deemed advisable. 84
Some commentators have viewed the aims of the strikers as an
attempt to establish a soviet-type government which was to spread
that is, as an insurrection. However, perhaps the more balanced
–
view is that the strikers simply wanted improved working conditions,
better wages and bargaining rights.8 5
Governmental control was re-established by military intervention.
The mayor requested military aid. 88 However, there was at no time
83 The material for this brief description of the strike was taken from:
D.C. Musters, The Winnipeg General Strike (1050); K. McNaught, Prophet
in Politics (1.959), at pp. 99-1,2. There were also strikes in many other Canadian
cities but none reached the crisis proportions of the Winnipeg General Strike.
For a study of post world war strikes in the United States that required troops
to restore order, see Rich, supra, n. 44, at pp. 152176.
84R. v. Russell, (.1920), S3 Can. Crhn. Cas. Ann. 1, at p. 20, (C.A. Man.).
85 McNaught, supra, n. 83, at p. 100. The times when troops were used to
disperse the crowds is usually termed a riot. (See, Masters, supra, n. 83,
at p. 87).
Chief Judge Magruder distinguished riot from insurrection as follows:
“…to constitute an insurrection or rebellion…
there must have been a
movement accompanied by action specifically intended to overthrow the consti-
tuted government and to take possession of the inherent powers thereof”.
Horde Ins. Co. v. Davilla, 212 F. 2d. 731, at p. 736 (1st Cir. 1954).
The findings by the Appeal Court cited at n. 84 supra, seem to imply it
was an insurrection under this definition.
(1903), and, Sen. Doc. No. 263, 67th Congress, 2nd sess.
86 For the mayor’s power under the old Militia Act, see supra, n. 78. American
writings on military aid to civilian authorities are extensive. See generally,
F ederal Aid in Domestic Disturbances, Sen. Doc. No. 209, 57th Congress, 2nd
sess.
for
a report up to 1922; Rich, supra, n. 44; Note, Riot Control and the Use of
Federal Troops, (1068), 81 Harv. L. Rev. 638; In re Debs, 158 U.S. 564, at p.
582 (1894), holding that the Federal Government can keep open the channels
of interstate commerce by the use of the military.
(,1022)
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
a resort to martial law, and what prosecutions there were against
individual strikers were on the grounds of sedition in the civil courts.
Martial law and the consequential trial of civilians by courts-
martial will effectively remove every guarantee a citizen has as
concerns his civil liberties. There is really no analogy between the
proceedings of ordinary courts and a court-martial tribunal adminis-
tering justice under the supervision of a military officer. Frequently,
the presiding officer or officers will not have had any legal training
as was often the case during the regime of martial law in Hawaii.
–
In the words of Sir J.F. Stephen:
[Court-martial tribunals].., are merely committees formed for the purpose
of carrying into execution the discretionary power assumed by the Govern-
ment.87
It is rather difficult to justify the use of this ‘”discretionary power”
when the civil courts are open ,and able to function –
‘as the British
and Hawaiian experiences would indicate.
Martial law is a very extreme measure. It should not be employed
unless all other attempts to preserve civil authority have failed.
In the past the resort to military aid to the civil authorities has
proved sufficient as the extreme measure in ‘restoring civil control.
Besides the Winnipeg Strike, troops were used on other occasions
to quell ‘labour disturbances –
such as occurred in Quebec City in
1878 and in Cape Breton in 1923. Yet if deemed necessary, Parliament
or the government has the power to resort to martial law.
1. Martial law under a Crown prerogative or under the common
law. The power to declare martial law under a prerogative or under
the common law no doubt exists in Canada as it does in Britain.
However, Canadian courts are not bound by the holding in Ex parte
Marais. That civilians cannot be tried by courts-martial when the
courts are open would seem to be the Canadian rule –
as stated
in the opinion of the ‘Law Officers of the Crown, 8 which related
specifically to Canada. The courts could intervene by way of habeas
corpus to proclaim this rule. However, as in Britain, a writ of
prohibition would not issue against a military tribunal.
2. Martial law under statutory authority. Most probably a
proclamation of martial -law would be under statutory authority.
87 J.F. Stephen, History of tee Criminal Law of England (18S3), Vol. 1, at p.
216. A proclamation of martial law does not always mean
the automatic
suspension of civil liberties. See, the recent case of Wilson and Co. V. F9eeman,
1179 F. Supp. 520, at pp. 531-533
(D.C. Minn. 1059), where the proclamation
of martial law by the governor expressly stipulated that civil liberties were
not to be disturbed, except by direct command of the Commanding Officer as
would be made necessary by the requirements of the public welfare.
8sSee supra, n. 27.
McGILL LAW JOURNAL
[Vol. 16
There are, of course, no restraints on Paxliament to prevent it from
declaring martial law, even if the courts are open –
except that
body’s good sense. Also, at this time, the government could proclaim
martial law if the present War Measures Act is invoked –
as was
the case in 1918. It is significant that under the British and Australian
emergency legislation in World War II, those governments were
expressly denied the power to proclaim martial law by Order-in-
Council.89 This was not the case in Canada.
There does not seem to be any sound reason why martial law
should not be expressly excluded from those powers delegated to
the Governor in Council when the present War Measures Act is
proclaimed to be in force. It is, of course, whistling in the wind
to speculate if an entrenched Canadian Bill of Rights would lead
to judicial interpretation as in Ex parte Milligan, where even under
statutory authority martial
law cannot be proclaimed when the
courts -re open.
H- THE EMERGENCY DOCTRINE IN CANADA
The basis for federal emergency power legislation rests on the
opening words of s.91 of the British North America Act which
provide that: 00
It shall be lawful for the Queen, by and with the Advice and Consent of the
Senate and House of Commons, to make Laws for the Peace, Order and
good Government of Canada.
The validity of federal emergency legislation has always turned
on the question whether the legislation was a valid exercise of the
federal emergency power or whether it unnecessarily invaded a field
reserved to the provinces under s.92 of the B.N.A. Act.
In a rather bitter dissent concerning Regulations under the 1939
Australian National Security Act, Mr. Justice Starke remarked
that he “had abandoned the hope of deciding any case upon grounds
that are intelligible, satisfactory or convincing.” 91 In reviewing the
sg Emergency Powers (Defence) Act, 1939, 2 & 3 Geo. 6, c. 62, s. 1,(5)
(U.K.);
National Security Act, 1939-1040, s. 5(7b)
(Austl.).
“It
90 The same clause appears in the opening words of s. 51 of the Australian
Constitution. However –
is unlike the corresponding power conferred by
s. 91 of the Canadian Constitution Act of 1867, restricted by the words which
immediately follow it!’ Attorney-General for the Commonwealth of Australia
V. Colonial Sugar Refining Co. [,1014] A.C. 237, at p. 255 (P.C.).
91 DeMestre v. Chisholm, (1944), 69 Comniw. L.R. 51, at p. 62 (Austl.). See, G.
the Commonwealth in Time of Peace, (1052-54),
Sawer, Defence Power in
6 Res Judicatae 214.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
development of an emergency doctrine in Canada, one wonders if
the Privy Council did not make the same finding !92
After a review of the development of this doctrine, attention
will be given to the problem of judicially determining when the
emergency is over; to the defence power; to the peacetime emergency
power; as well as to the emergency power and the Bill of Rights.
A. The Development of an Emergency Doctrine
The seed for an emergency doctrine was first planted in Russell
v. The Queen.9 3 This was an appeal by a private person and no
argument from the provinces was heard. The Privy Council did not
have to forget it was a constitution they were expounding –
they
probably never even considered it. 4 In Russell, their Lordships
related the sale of intoxicating liquors in Canada to the peace, order
to allow for the application of a
and good government clause –
remedy by the central government “to an evil which is assumed
to exist throughout the Dominion.” 95 Federal temperance legislation
was permitted to come into operation by local option. Subsequently,
the Privy Council could only support Russell on the assumption that
Canada was a nation of drunkards at the time, and that “the
National Parliament was called on to intervene to protect the nation
from disaster.” 96 The situation forty years after Russell was seen
in retrospect as having been analogous to an epidemic of pestilence.
Sometimes the germ of the emergency clause is attributed to
in the Local Prohibition
the “dimensions doctrine” enunciated
Case.9 7 This doctrine justified federal intervention
in local and
provincial matters when that matter had attained “such dimensions
92For a trenchant criticism of the Privy Council’s interpretation of the
peace, order and good government clause, see B. Laskin, “Peace, Order and
Good Government” Re-Examined, (1047), 25 Can. Bar Rev. 1054.
93 Russel v. The Queen, (1892), 7 App. Cas. 829 (P.C.).
94McCulloch V. Maryland, 17 U.S.
(1819), at p. 406. See,
the comment on Adegbenro v. Akintola, [1063] 3 W.LR. 63, concerning the
Nigerian constitution, decided by the Privy Council, W.I. Jennings, The Removal
of a Premier, [1963] Camb. L.J. 1,69, at p. 171.
(4 Wheat.) 916,
95 7 App. Cas. 842.
96 Toronto Electric Commissioners v. Snider, [1025] A.C. 396, at p. 41
(P.C.).
This subsequent interpretation of Russell’s Case has always provided comic
relief in Canadian constitutional law. See, e.g., the remarks by Anglin C.J.
in The King v. Eastern Terminal Elevator Co., [1925] S.C.R. 434, at p. 488.
97 Attorney-Glen6ral for Ontario v. Attorney-General for Canada, [189]
A.C. 348 (P.C.). See, Laskin, supra, n. 92, at p. 1067, but see, F.P. Varcoe
The Constitution of Canada (1065), at p. 73.
McGILL LAW JOURNAL
[Val. 16
as to effect the body pcolitic of the Dominion” 98 – what was merely
local had become of national concern. Wherever the seed may be
found, a recognizable emergency doctrine was developed by Lord
Haldane in two post World War I cases.
In the Board of Commerce Case 9 their Lordships were con-
fronted by a 1919 Federal Act that purported to control trade
combinations as well as hoarding –
subjects that seriously inter-
ferred with “property and civil rights”, and which are reserved to
the provinces under s.92 head 13 of the B.N.A. Act. Basing himself
on Russell’s Case, Lord Haldane said that even in peacetime under
normal circumstances such
legislation would be constitutionally
possible, but only “under necessity in highly exceptional circum-
stances”, 100 such as could not be assumed at that time.
Undoubtedly, a post-war period requires re-adjustment to peace
and consequently the retention of some controls by the central
government. This was, of course, the holding in subsequent cases. 1 1
What troubled their Lordships was that the legislation had been
passed “after peace had been declared, and it [was] not confined to
any temporary purpose… ” 102 Had
the government presented
properly framed legislation, it would have probably been deemed
valid in the circumstances. When the temporality of the legislation
was evident, the emergency doctrine was born.10 3
The birth, however, was not painless. In the Fort Frances Case,
it seems that Lord Haldane himself 104 discovered the Hamilton v.
Kentucky Distilleries and Warehouse Co. Case ‘ 05 and borrowed the
theory of implied power. It has often been suggested that this
grafting of an implied power onto the peace, order and good govern-
ment clause was an unnatural union. 00
9s [‘189.6] A.C. 848 at p. 3861.
99In re The Board of Commerce Act, 1919, and the Combines and Fair Priecs
Act, 1919, [1022] 1 A.C. 191 (P.C.).
100 Id., at p. 107.
101 See, e.g., In the Matter of a Referende as to the Validity of the Wartime
Leasehold Regulations, [1950] S.C.R. 124.
102 [1922] 1 A.C. at p. 197.
103 Fort Frandes Pulp and Power [Paper] Co. V. Manitoba Free Press Co.,
[.192a A.C. 695 at p. 708, (P.C.); accord, Block v. Hirsh, 256 U.S. 1G5, at p.
157, (,1020). (The wartime regulation was “put and justified only as a temporary
measure.”); Victorian Chamber of Manufacturers v. The Commonwealth, (,1043),
67 Comnmw. LR. &16, at p. 427 (Austl.).
(The emergency defence measure
was justifiable “to meet an abnormal and temporary crisis.”).
104 See Fort Frances … [1923] A.C. 695, at p. 698.
105 2.51 U.S. 146 (MO10).
106 See, e.g., Varcoe, supra, n. 97, at p. 76; Laskin, supra, n. 92, at p. 1076.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
It has been remarked that English jurists were unfamiliar with
the United States Constitution. 107 If Lord Haldame was unfamiliar
with the American Constitution, he was at least well acquainted
with one of its most renown interpreters. After lunching with Lord
Haldane, Mr. Laski wrote to Mr. Justice Holmes on December 14,
1920 that:
Haldane spoke very charmingly of having received the book [from you];
and of his wish for a talk with you on some Canadian federal cases he’s
handling just now.108
It is not surprising then, that ‘Lord Haldane found the answer to
a Canadian problem in an American case.
What was said in the Hamilton Case that their Lordships found
so appealing? 0 9 This case dealt with the validity of the post World
War I War-Time Prohibition Act,” 0 which was passed after the
Armistice with Germany had been signed. The Act prohibited the
sale of liquor throughout the United States. It was to remain in force
“until the conclusion of the present war and thereafter until the
,a date to be determined and
termination of demobilization!’
proclaimed by the President. Congress deemed it a necessary measure
to conserve manpower and for increasing efficiency in production
during the critical post-war days.
–
In sustaining the legislation the Court said that:
[The implied power] …
is not limited to victories in the field and the
dispersion of the [insurgent] forces. It carries with it inherently the power
to guard against the immediate renewal of the conflict and to remedy
the evils which have arisen from its rise and progress.”‘
This war power is therefore not necessarily extinguished with the
cessation of hostilities. It continues so long as the emergency exists.
107″It was common knowedge… that the Constitution of the United States
was a subject entirely unfamiliar to English lawyers, while to Australian
publicists it was almost as familiar as the British Constitution.” Griffith, C.J.,
(1907), 4 Commw. L.R. 1087,
in Baxter v. Commissioners of Taxation, N.S.W.,
at p. ,l~il.
(Ausl.).
108 M.D. Howe, Holmes-Laski Letters (105a), Vol. 1, at p. 293.
100 “In saying what is almost obvious, their Lordships observe themselves to
be in accord with the view taken under analogous circumstances by the Supreme
Court of the United States, and expressed in such decisions as that in October,
1919, in Hamilton v. Kentucky Distilleries Co.” (Fort Frances … [1023] A.C. 695,
at p. 706). The other decisions he had in mind were probably those cases decided
just after the war, such as Block v. Hirsh, 256 US. 185 (1920) (sustaining post
war emergency rental legislation in the District of Columbia); Jacob Ruppert
Inc. v. Caffey, 251 UjS. 264 (1.920) (sustaining prohibition as in Hamilton).
110 c. 2Ai1, 40 Stat. .1045, 1046, (1918).
111251 U.S. at 161, quoting Stewart v. Kahn, 7,8 U.S. (11 Wall.) 493, at p.
507 (1870). The 1-870 case referred, of course, to insurgency in 1861-1865.
McGILL LAW JOURNAL
[‘Vol. 16
Based on the Necessary and Proper Clause (art. 1, s.8, cl. 18) the
implied power gives the Federal Government a war power of an
almost unlimited scope.1 2
The Fort Frances Case was that very rare occasion when the
Privy Council cited a United States Supreme Court decision in a
Canadian constitutional law opinion.” 3 If we now turn to ths case,
it becomes obvious how much their Lordships were indebted to the
Supreme Court.114
To cope with the problems raised by war, the Canadian Parliament
passed the War Measures Act, 1914,115 under the power granted to
the Federal Government by the opening of s.91 of the B.N.A. Act.
This Act was similar to DORA. It was also this legislation that
granted extraordinary powers to the government in the Second
World War,” 6 and it would serve the same purpose in another
emergency.
Under the 1914 Act, the government passed a number of Orders-
in-Council during the First World War to control the supply and
price of newsprint in Canada. After the ‘cessation of hostilities,
Parliament passed legislation providing for the continuation of these
controls until peace was proclaimed. The validity of the controls
was contested in the Fort Frances Case on the ground that these
orders trenched on provincial powers under s.92.
Their Lordships acknowledged that the Federal Government
jurisdiction over
could not normally interfere with provincial
property and civil rights. But they continued,
it does not follow that in a very different case, such as …
..
the outbreak
of a great war, the Parliament of the Dominion cannot act under other powers
112 See, e.g., Ludecke v. Watkins, 335 U.S. 160 (‘1948) (deportation of aliens);
(1948) (sustaining federal rental
Woods V. Cloyd W. Miller Co., 933 U.S. 138
legislation after World War II in “Defence-Rental” areas).
113 This was the first time that their Lordships cited an American case in a
Canadian constitutional law decision. The second and last time was in Attorney-
General for Ontario v. Reciprocal Insurers, [19,24] A.C. 328, at p. 3,8
(P.C.)
where Hammer V. Dagenhart, 247 U.S. 251 (1918) was cited. Perhaps signifi-
cantly, the judgment was delivered by Mr. Justice Duff (then Chief Justice) of
the Canadian Supreme Court who was temporarily sitting at the Privy Council.
Earlier the Supreme Court of Canada had frequently referred to American
Supreme ‘Court decisions. However, the Privy Council discouraged such refer-
ences as being irrelevant given the differences of the American and Canadian
constitutions. Bank of Toronto v. Lambe, (1887), 12 App. Cas. 575, at p. 587
(P.C.).
114 Also see infra, nn. 125 and 1,27.
115 5 Geo. 5, c. 2 (Can.).
116 R.S.C. 192r7, c. 206. This was a consolidation of the original Act slightly
modified. It is now found in R.S.C. 1,952, c. 288, discussed infra.
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EMFDIGtNCY iPOWER AND CIVIL LIBERTIES
which may well be implied in the constitution. The reasons given in the
Board of Commerce Case recognize exceptional cases where such a power
may be implied.11T
In a special emergency then, provincial powers can be overriden
for the peace, order and good government of Canada as a whole.
To justify the application of this new power, their Lordships
said that it was found in other countries with a written constitution;
and their example was the United States. Since the residual powers
in Canada are federal powers, they believed that this theory was
to be all the more applicable to Canada. The provincial powers
enumerated in s.92 of the B.N.A. Act do not disappear, but a “new
aspect of the business of Government is recognized as emerging” 11
–
an aspect not precluded by the general words in which powers
are given to the provinces. And, this is an aspect of business to be
dealt with by the Federal Government. This expanding war power
that the Central Government enjoys is “undefined and undefinable.” 119
The subsequent vicissitudes of the Privy Council interpretation
of the peace, order and good government clause are not pertinent to
this discussion. It
is sufficient to note that the implied power
“emergency doctrine” laid down in Fort Frances established an
implied federal emergency power –
and above all an implied war
power. There is really no analogy between this implied power and
that found in the American Constitution. In the B.N.A. Act this
implied power served to generally restrict federal powers other than
the emergency power; 120 it is a power that stands alone in the
introductory words of s.91 and is not applicable to the subsequent
clauses of that section. In the American Constitution the implied
power of the Necessary and Proper Clause served to widen federal
powers generally; 121 it is applicable to the preceeding clauses in s.8
of axt. 1. When Lord Haldane completed the transposition from the
American Constitution, the result, although unwarranted, was some-
thing uniquely Canadian. 122
117 [1923] A.C. 695, at p. 703. Emphasis added.
118 Id., at p. 705.
119 Woods v. Cloyd W. Miller Co., 33 US. 138, at p. 146 (1049); accord, Fort
Frances… [1M2_] A.C. 695, at p. 705; Andrews V. Howell, (.1945), 65 Commw.
L.R. 255, at p. 2,78 (Austl.).
120 See, Laskin, supra, n. 92, at p. 1076.
121 See, e.g., Jacob Ruppert Inc. v. Caffey, 251 U.S. 264, at pp. 300-301 (1920).
122 This apparently has not been readily seen. See Varcoe, supra, n. 97, at
p. 76; F.R. Scott, The Consequences of thle Privy Council Decisions, (1937),
15 Can. Bar Rev. 485, at p. 489.
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CVol. 16
B. When is the Emergency Over?
A war legally ends when the executive or the -legislature makes
a determination that it has ended.12 3 It is also clear that the war
power is not extinguished with the cessation of hostilities. However,
the effects of a war can “continue for centuries”, and if the federal
government could legislate on changes caused by a war, its juris-
diction would know no bounds. 24 The question then arises as to when
the Canadian judiciary would be justified in overturning emergency
legislation because the emergency had seemingly passed.
As to judicial intervention, Lord Haldane set down the following
propositions:
1. As to what interest is to be protected during an emergency, “the
Dominion Government must be deemed to be left with considerable
freedom to judge.” 125
2. “But very clear evidence that the crisis has wholly passed away
[or “has not arisen”] 126 would be required to justify the judici-
ary… in overruling the decision of the Government that excep-
tional measures were still requisite”. 127
Before considering how these criteria 12 have been applied in Canada,
it is instructive to see how the problem was dealt with in Australia
and the United States.
The Australian High Court had been influenced by the above
criteria as -laid down in Fort Frances and re-iterated in the Japanese
Canadians Case.12 The High Court, however, broke new ground in
123 Note, War and Peace: When Does One End and the Other Begin, (1059),
4 S.D.L. Rev. 185; Note, Emerdency Powers – The End of the War – Question
for the Executive, (1046-47), 20 Austl. L.J. 223.
124 R. v. Foster, (1949), 70 Commw. L.R. 43, at p. 83 (Austl.).
125 Fort Frances… [1923] A.C. 695, at rp. 705. The comparative phrase by
Brandeis, J. in the Hamilton Case was –
“… a wide latitude of discretion must
be accorded” to Congress in the exercise of the war power. (251 U.S., at p. 163).
126 Co-operative Committee on Japanese Canadians v. Attorney-General for
Canada, [1947] A.C. 87, at p. 102 (P.C.).
127 Fort Frances… [1023] A.C. 695, at p. 706. Mr. Justice Brandeis had said:
. t would require a clear case to justify a court in declaring that such an
act… had ceased to have force because the -power of Congress no longer
continued.” (251 U.S., at p. 103).
128 Lord Wright added to these criteria, “that it
is not pertinent to the
judiciary to consider the wisdom or the propriety of the particular policy which
is embodied in the emergency
legislation.” And, neither is the judiciary to
be concerned “whether the executive will in fact be able to carry into effective
operation the emergency ‘provisions.. .” Co-operative Committee on Japanese
Canadian… [19417] A.C. 87, at p. 102.
129 See, e.g., Miller v. The Commonwealth, (1946), 73 Commw. L.R. 197, at pp.
211-21 , (AustI.).
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EM1RqtNCY 1POWER AND 0IVIL LIBERTIEI
the Decontrol Cases 130 where a series of transitional regulations
were held ultra vires the Federal Government. A state of war still
existed (mid-April 1949) but hostilities were -long over. The regu-
lations in question dealt with women’s employment, housing for war
veterans, 131 and gasoline licensing and rationing –
subjects normally
under state jurisdiction. In a joint opinion of the Court it was held
that the legislation was no longer supportable under the defence
power.
What is of most significance for this discussion is that the Court
here ignored the Fort Frances criteria. It was acknowledged that
the end of hostilities did not require an immediate removal of all
controls. “But the Court must see with reasonable clearness how
it is incidental to the defence power to prolong the operation of a
war measure,” 132 dealing with a subject exclusively assigned to
the states by the Constitution. Unless the Court can make this
finding, the legislation would be held ultra vires. Consequently,
unlike the Fort Frances criteria, the legislation would not necessarily
be held valid because a party challenging it had failed to prove that
the emergency was over. Parliament’s “freedom to judge” what was
necessary was thus significantly narrowed.
In the United States, the validity of the post-World War I rental
controls applicable in the District of Columbia came before the
Supreme Court in Chastleton Corp. V. Sinclair.133 The original Act134
had been considered and held valid in the circumstances. 135 Sub-
sequently, Congress had continued in force the original Act, declaring
that the emergency still existed. 36
The Court said that great respect was to be given to a Congres-
sional declaration that the measures were necessary. 137 But it was
open to the Court “to inquire whether the exigency still existed
upon which the continued operation of the law depended.” 138 Conse-
quently, the case was remanded to the lower court for a determination
130 R. v. Foster, (1949), 797 Commw. L.R. 43 (Austl.). For a critical discussion
of this ease see, G. Sawer, The Transitional Defence Power of the Commonwealth,
(-1049-50), 23 Austl. L.J. 255.
13 1 The housing regulations had previously been upheld as a valid temporary
measure under the defence power. The Real Estate Institute of N.S.W. v. Blair,
(1046), 73 Commw. L.R. K1G (Austl.).
132 (194), 79 Commw. L.R. 43, at p. 84 (Austl.).
133P64 U.S. 543, (1,924).
1 3 4 c. 80, title 2, 41 Stat. 29.7, (1919).
135 Block v. Hirsch, 256 US. 165 (t1920).
13 6 Extended by c. 91, 42 Stat. 200 to May 22, 1-922, and by c. 107, 42 Stat.
543 to May 22, 11024.
137 264 U.S. 543, at p. 547.
13sId., at p. 548.
McGILL LAW JOURNAL
[Vol. 16
of housing conditions in Washington. Although the Court did not
rule that the emergency no ‘longer existed, it strongly suggested that
this was the case.
The transitional Housing and Rent Act’ 39 of 1947 was passed
after the cessation of hostilities, but before World War II had been
formally terminated. This Act limited the rent that could be charged
in certain “Defence-Rental Areas.” In Woods V. Cloyd W. Miller Co.,140
decisions given a generation earlier were cited and applied 141 in
holding this legislation constitutional. The Court stated that the
legislative history of the Act showed the housing shortage, which
was created in great part by the war, had not yet been eliminated. 142
It was acknowledged that if Congress could legislate to treat all
conditions affected by the war, its power would be boundless and it
would continue indefinitely; but this implication was not seen as
applying to the case at bar. 43 Unlike the position taken by the
Australian High Court, the fact that the war had not been formally
terminated seemed to weigh heavily on the Supreme Court.144
Rental regulations also served as the occasion for the Supreme
Court of Canada to decide as to the validity of emergency legislation.
A number of transitional acts 145 continued in force the leasehold
regulations that had originally been made under the War Measures
Act. In view of the previous Privy Council decisions, Parliament
undoubtedly had authority to continue rent controls as a post war
emergency decontrol measure –
even though this was normally a
provincial field. The case turned on whether an emergency did in
fact exist.
The Leasehold Reference had come to the Supreme Court as an
Advisory Opinion. Consequently, the Court had to give an opinion,
139 61 Stat. 193, 1,96.
140333 U.S. 108 (1948).
141 Primarily the Court applied Hamilton, and Jacob Rupert Inc. v. Caffey –
see supra.
142 3,33 U.S. 1,38, at p. 142.
143 Id., at pp. 143444. In a concurring opinion Jackson, J. stated –
“I cannot
accept the argument ‘that war powers last as long as the effects and consequences
of war, for if so, they are permanent –
as permanent as the war debts.” (Id.,
at p. 147). A similar statement was made in R. v. Foster, see, supra, n. 124.
144 The Court cites (S33 U.S. 141, n. 5) Commercial Trust Co. v. Miller, 262
U.S. 51, at p. 57 (1922) where it was stated that –
“A court cannot estimate the
effects of a great war and pronounce their termination at a particular moment
of time.. .”. Jackson, J. stated –
“We still are technically in a state of war”.
(3 U.S. 141, at p. 147). Also see, Ludecke v. Watkins, 335 U.S. 160, at pp.
168-410, L7/8 (,48).
’45 The National Emergency Transitional Powers Act, S.C. 1945, c. 25; The
Continuation of Transitional Measures Act, S.C. 1947, c. 16.
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EMERGENCY POWER AND CIVIL LIBERTIES
… on the material which appears in the Order of Reference and the Court
is clear that the Court may
is not expected to look to outside evidence. It
take into consideration any fact which is of common, or public, knowledge,
or of which it could ordinarily take judicial notice. Otherwise… the Court
is limited to the statements of fact contained in the Order of Reference. 146
Any statement of facts introduced had to be with the consent of
all the parties represented. Obviously, as Chief Justice Rinfret pointed
out, anyone attacking the legislation as colourable would not find
support in the Order of Reference –
and independent facts would
have to be introduced. 147
Put into this strait jacket, the Court had no alternative but
to make, for all practical purposes, a mockery of Lord Haldane’s
“very clear evidence” rule. Admittedly, the problem set out here
turns largely on the desirability of Advisory Opinions. 48 However,
it is the only major Canadian case since Fort Frances dealing with
the fundamental questions concerning transitional powers. 49
It is clear that the criteria set out above from Fort Frances are
controlling. 150 The challengers of emergency legislation will have
to clearly prove that the emergency no longer exists.’ 5′ It is doubtful
if the Court would be troubled by a technical state of war –
the
test is “emergency” and nothing more. However, the Canadian
Parliament will be given wide “freedom to judge” what measures
are necessary 15 2 – wider freedom than accorded the Australian
Parliament. 53
146In the Matter of a Refe’rence as to the Validity of the Wartime Leasehold
Regulations, [1950] S.C.R. 124, at p. 1,6.
147 Id., at p. 127.
148 The shortcomings in this case are of course made clear when it is compared
with Chastleton Corp., discussed supra.
149 The statutory construction of the National Emergency Transitional Powers
Act was considered in Attorney-General for Canada V. Hallet & Carey Ltd.,
[1052] A.C. 42/. The question was whether the power to appropriate property
was given by this Act. In giving an affirmative answer the Privy Council
reversed the judgment of the Supreme Court.
150 E.g., [1050] S.C.R. 184, at pp. 128 29, 134, 151.
151 Counsel for the Attorney-General of Quebec had suggested that the transi-
tion from war to peace should constitute a “new” emergency to be considered
apart from its cause, and that the Federal Government should prove the exist-
ence of such emergency. (Id., at pp. .143-144).
152 Recitals awe given very great weight by the Supreme Court of Canada.
See e.g., [1950] S.C.R. 129, at p. 146; References As to the Validity of the Regula-
tion in Relation to Chemicals, [1943] S.C.R. 1, at p. 8; Cf., e.g., Woods v. Cloyd
W. Miller Co., 333 U.S. 138, at p. 144 (1043).
153 The decision by the Australian High Court in R. v. Foster “amounted in
substance to a policy decision that the Commonwealth had been given sufficient
time for post-war reconstruction”. G. Sawer, Defence Power of the Common-
wealth in Time of Peace, (1952-54), 6 Res Judicate 214.
McGILL LAW JOURNAL
[Vol.
Id
C. The Defence Power
Whenever
the Federal Government’s emergency power was
deemed intra vires by the courts, it was with regard to war or war-
related legislation. In the light of the Australian experience, it would
be fair to state that all such legislation could have been sustained
under the defence power.154
The Canadian defence clause was only mentioned in two major
constitutional cases.15 On both occasions the reference was only in
passing, and it was not necessary for the disposition of the case.
No doubt this power covers normal defence legislation concerned
with the immediate objects of the military establishment and defence.
Otherwise the extent and limits of this federal power have not been
defined.
The Supreme Court of Canada is, of course, aware that s.91 (7)
of the B.N.A. Act can be employed to sustain federal war emergency
legislation.’55 It has been suggested, however, that one advantage in
identifying the wax power with the peace, order and good govern-
154The principle Australian and Canadian defence clauses that give the defence
power exclusively to these central governments are:
Australian Constitution s. 51 (vi) –
“The naval and military defence of the
ConunonWj alth and of ,the several States, and the control of the forces to execute
and maintain the laws of the Commonwealth.”
Canada, B.N.A. Act, s. 91(7)
–
“Militia, Military and Naval Service, and
Defence.”
155 L’Union St. Jacques de Montrdal v. B6lisle, (1874), L.R. 6, at pp. 31, 37,
(P.C.); (The Federal Government can expropriate land for purposes of defence);
In re tile Regulation and Control of Aeronautics in Canada, [‘1032] A.C. 54, at
p. 717 (P.C.).
(Aeronautics is in part given to the Federal Government by the
defence power.)
One lower court decision suggested that the federal transitional legislation
concerning the re-instatement of ex-servicemen into their previous employment
could be supported under the defence power. Fry v. W. H. Schwartz & Sons Ltd.,
[1951] 2 DIL.R. 108, at p. 200 (N.S.S.C.). However, in another case concerning
similar legislation, the legislation was sustaned under the peace, order and good
government clause. In re The Soldier Settlement Act, In re McManus, [,1939] 2
W.W.R. 1.99, at p. 202 (Sask. Dist. Ct.).
15 6 In In the Matter of a Reference as to the Validity of the Wartime Lease-
hold Regulations, P.C. 9029, [1,50] S.C.R. 1.24, at p. 153, Dawson v. The Com-
monw’ealth, (1946), 73 Conunw. L.R. 157, at p. 176 (AustI.), is cited by Kellock, J.
In this latter case, Latham, C.J. had said that the defence power in Australia
does not cease with the termination of hostilities or even with the end of the
war. Elsewhere in the Leasehold Reference, Mr. Justice Rand, after citing Fort
Frances, noted that Viscount Haldane had not considered whether the regulations
could be supported under the defence power, on which Australian legislation had
been upheld. ([1950] S.C.R. 114, at p. 145).
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EMERGENCY POWER AND CIVIL LIBERTIES
ment clause is to remind the courts “of the flexibility that the war
power must possess”. 157 The Australian Parliament has certainly
not lacked any war powers under the defence power. One recent
example will illustrate the flexibility of this power.
In 1951 both the Australian and Canadian Parliaments passed
legislation to deal with the international emergency caused by the
Korean Wax. Both governments suggested that economic matters
would require special -attention. The Canadian Parliament passed
an Act’ 58 that ostensibly would be intrt vires under its emergency
powers: the validity of this Act was never challenged. Similar
Australian legislation15 9 was passed under the defence power: and
this legislation was challenged in the courts.
Regulations were made under the Australian Act to regulate
capital issues; that is, restrictions were placed upon raising money
by the issue of share capital, debentures or other securities. Other
countries, as well as Australia, had so legislated during the Second
World War. The High Court in considering the operation of the
defence power acknowledged that “a distinction between a period
of actual hostilities and a period of apprehended danger short of
war can never be disregarded”. 60 The Regulations were sustained
as being auxiliary to the diversion of resources for defence purposes,
and such diversions can be made when war is threatened as well
as during -actual hostilities.’0 ‘
However, the Australian defence power will not support all
legislation. It is not a matter of “inflexibility”, but rather that the
157E.E. Murphy, The War Power of the Dominion, (1952), 30 Can. Bar
Rev. 791, at p. 708.
158 The Emergency Powers Act, 1951, 15 Geo. 6, c. 5 (Can.).
159Defence Preparation Act, 105’1, Australia Commonwealth Acts, Act 20.
160 Marcus Clark & Co. Ltd. v. The Commonwealth, (1952) 87 Commw. L.R.
IV, at p. 218 (Austl.).
101 In the United States the building of the Wilson Dam was upheld in part
on the Congressional war power; Ashwander v. Tenneeee Valley Authority, 297
U.S. 288, at p. 3,26 (1936). President Truman’s seizure of most steel mills at
the end of 1051 was held unconstitutional by the majority of the Court who
said that authority for the seizure was neither provided for specifically in the
Constitution, nor by an A;t of Congress. The dissenting justices felt that the
President had the constitutional authority to act in an emergency that was
admitted to exist at the tinme. Youngstown Sheet and Tube Co. v. Sawyer, 348
U.S 570 (105Z). See the appendix by Mr. Justice Frankfurter listing previous
Presidential seizures. (Id., following p. 614). For a discussion of Presidential
powers, see, Corwin, supra, n. 18.
McGILL LAW JOURNAL
[Vol. 16
government’s exercise of power must bear some relation to defence. 02
This test has been applied even during the height of war. In Ex
parte Drummond, the Australian Government attempted to control
university admission as a control over manpower during the war.
Education, however, is normally under the exclusive jurisdiction of
the states. In striking down the Regulation, it was said that this
exercise of the defence power “can only be valid if the court can
see that the Act or regulation impeached can conceivably be capable
even incidentally of aiding defence.” 103 No such finding could be
made in that case. 164
However, in Canada,
… there is virtually no limitation to the scope of legislative action which
Parliament, considering it necessary, may take for the defence of the
country.10 5
Parliament, or the government if delegated the authority, decides
what is “conceivably” a necessary measure during emergencies.
Consequently, the courts cannot apply any standards as to the validity
or invalidity of government emergency
If a war
emergency exists, there are no restraints on Parliament’s scope of
legislation.”0
162 The Australian legislation that purported to dissolve the Communist Party
could not be supported under the defence power in time of peace. Australian
Communist Party v. The Commonwealth, (1,50-51), 83 Commw. L.R. 1 (Austl.).
A substantial distinction between this case and Marcus Clark & Co. “may be
found in the pragmatic consideration that raising money is less important than
liberty of opinion”. (Sawer, supra, n. 15a, at p. 223.).
163 The King v. The University of Sydney; Ex parte Drummond, (1943), 67
Connw. L.R. 95, at p. 1i
(Austl.)
(emphasis added).
164 The Regulation purported to control admissions to the faculties of medecine
and dentistry. However, the defect in the Regulation was that those not
admitted were not diverted to the military or to defence work. They could even
enroll in another faculty. (Id., -at p. 108). A number of other defence measures
were also held invalid during the war: see, e.g., Victoria v. The Commonwealth,
(control over holidays and wages of
(1942), 66 Commw. L.R. 488 (Austl.),
State employees not connected with war-related employment); Wertheim V.
The Commonwealth, (1945), 69 Commw. L.R. 601 (Austl.),
(restrictions on
the manufacture of fly sprays).
165 Leasehold Reference, [1950] S.C.R. 125, at p. 145. There are some
limitations. E.g., s. 20 of the B.N.A. Act requires that there be a yearly session
of Parliament. This provision most probably could not have been suspended
in times of emergency. However, suspension of this section was provided for
in the amendment of s. 91(1) by the British North America (No. 2) Act, 1949,
10 Geo. 6, c. 91 (U.K.).
16G Legislation has never been invalidated in Canada on the grounds that
it had no relation to the emergency. The paucity of cases on emergency legislation
can be explained by the sheer hopelessness of such litigation succeeding –
see,
the Chemical Reference, [194,] S.C.R. 1 at p. 9.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
legislation. The emergency doctrine thus permits Parliament to
exercise greater powers than would be the case under the defence
power of s.91 (7) of the B.N.A. Act.
At the outset of this paper it was suggested that there are five
main types of crises that require emergency powers: war, insurrection
subversion, secession, and economic depression. Conceivably, all these
matters, except economic depression can be dealt with without re-
course to Lord Haldane’s “emergency doctrine”. 167 But as related to
an economic depression, this doctrine has proved ineffectual.
D. The Emergency Power in Peacetime
Essentially, the emergency to be confronted in peacetime is an
economic crisis. Yet, during the depression of the 1930’s, any meaning-
ful use of federal powers was ruled out.
President Roosevelt had said that the economic crisis of the
1930’s was “an emergency greater than war”. 68 However, before
the “Court Packing Plan”, Congressional social legislation had been
ruled unconstitutional. In the Steward Machine Co. Case 169 dealing
with unemployment insurance, the Court demonstrated a reversal of
unemployment was now viewed as a problem
its previous position –
that had “become national in area and dimensions.” 170 Emergency
was the premise under which the Court sustained such social legis-
lation.17 ‘ As to the temporality of the legislation, it was not referred
to by the Court in this case.
Prime Minister Bennett’s proposed “New Deal” legislation for
Canada was patterned after similar legislation passed in the United
States. In the Labour Conventions Case,172 the Federal Government
attempted to support the validity of labour legislation on the intro-
ductory words of s.91 of the British North America Act, “as being
167 Except for economic depression, all other crises can be dealt with under
the defence clause or the criminal law power –
both of which are exclusively
federal powers. See, supra, on martial law and military aid to civil authorities.
168 Corwin, op. cit., n. 18, -t p. 318.
169 Steward Machine Co. V. Davis, 301 U.S. 54
170 Ibid., at p. 586.
171 “[O]f the legislative accomplishment of the New Deal, ’emergency’ was
the very watchword, while of the decisions sustaining that legislation it was
speciously
the
disavowed.” E.S. Corwin, Total War and the Constitution, (1,947), at p. 177;
compare also, Steward Machine Co. v. Davis, supra, n. 169; with Home Building
& Loan Association v. Blaisdell, 290 U.S. 398 (1933).
recurrent premise,
172 Attorney-General for Canada v. Attorney-General for Ontario, [.1937] A.C.
326 (P.C.).
(191).
sometimes
frankly avowed,
sometimes
McGILL LAW JOURNAL
[Vol. 16
concerned with matters of such general importance as to have
attained ‘such dimensions ‘as -to affect the body politic’ … and to
have ‘become matter of national concern’.” 173 Their Lordships recalled
the phrases from previous cases under which the use of the general
federal power would be justified –
“abnormal circumstances” “ex-
ceptional conditions”, “standard of necessity”, “highly exceptional”,
or “some extraordinary peril to the national life of Canada”. 174
According to their Lordships, calling attention to these phrases shows
“how far the present case [on labour legislation during the depres-
sion] is from the conditions which may override the normal distri-
bution of powers in ss.91 and 92.” 175 Surely if the Federal Govern-
ment needed justification to override provincial powers, the de-
pression should have been the classic occasion.’70
In another case, the Privy Council dealt with unemployment
insurance –
legislation that recalls the Steward Machine Co. Case.
Their Lordships said that not only did the legislation not purport
to deal with an emergency, but that it could not be supported on
the theory of emergency in 1935. One serious defect that would
prevent it from being qualified as “emergency” legislation was that
it was intended to be permanent. 77 This was a re-iteration of the
criteria laid down in Lord Haldane’s emergency doctrine.
Even if “emergency” legislation is discounted, the Federal Govern-
ment has a number of enumerated powers that it can employ to
deal with an economic crisis. 7 8 Generally, serious cures for a de-
pression would require long term planning –
and some type of
permanent legislation. However, the provinces in general are not
173 Ibid., at p. 352.
174 Ibid., at p. 353.
175 Ibid.
176 Perhaps the Privy Council was influenced more by laissez-faire economic
policy, rather than by provincial autonomy. See, Scott, supra, n. 122, at p. 492.
One lower court decision was decided partly on the grounds that the bankruptcy
of the Grand Trunk Railway in 1919 constituted a national emergency that
justified an Order-in-Council vesting the shares of the company in the Federal
government, see, Lovibond v. G.T.R. and C.N.R., [1039], 2 D.L.R. 562, at pp.
577-78 (C.A., Ont.).
177Attorney-General for Canada v. Attorney-General for Ontario, [10S7]
A.C. 855, at -pp. 365-66 (P.C.); but see also, Attorney-General for Ontario V.
Canada, Temperance Federation, [1046] A.C. 193, at p. 207 (P.C.).
17sSee, for example, s. 91(5), banking; s. 91(20),
legal tender; s. 9 1(21),
bankruptcy and insolvency; unemployment insurance in s. 91,(2a) was added
by the British North America Act, 1.940, 3 & 4 Geo. VI, c. 36, U.K. See also,
B. Laskin, Canadian Constitutional Law, (Rev. Grd ed., 1969), on the reconsider-
ation of the general power, at pp. 245 et seq.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
prepared to see their powers eroded under the aegis of federal
emergency legislation. In fact, Quebec is now demanding the return
of social security fields pre-empted by the Federal Government.
The “emergency doctrine” would only be of limited usefulness
in combating a serious economic depression. It would perhaps support
some temporary measures. 7 9 However, for any long term legislation,
constitutional and political exigencies would indicate that federal/
provincial agreement would be necessary.
E. The Emergency Power and the Bill of Rights
The Canadian Bill of Rights 5 0 remains in force by grace of the
War Measures Act 18′ not having been proclaimed to be in force.
For when the War Measures Act is operative, the Bill of Rights is
suspended.
8 2
Under the War Measures Act, the issuance of a proclamation by
Her Majesty or the Governor-in-Council is conclusive evidence that
war, invasion or insurrection, real or apprehended exists
and
has existed for the period specified in the proclamation
until
terminated by a further proclamation (s.2). Section 3 authorizes
the Governor-in-Council to make such “orders and regulations, as
he may… deem necessary or advisable for the security, defence,
peace, order and welfare of Canada”. Included
in this blanket
censorship, arrests, detention, depor-
delegation of power’8
tation, and controls over transportation, trading, production, and
manufacture as well as the appropriation, control, forfeiture and
disposition of property. All orders and regulations made under this
section have the force of ‘law. Also, these orders and regulations
are to be enforced “in such manner and by such courts, officers
is –
–
–
179 Am example of “temporary” emergency legislation can be found in Home
Building & Loan Association v. Blaisdell, supra, n. 171, where the validity of
Minnesota’s Mortgage Moratorium
law was considered. In sustaining this
emergency legislation, the Court emphasized, at p. 447, that, “The legislation
is temporary in operation”.
180 S.C. 8 & 9 Eliz. II, c. 44.
181 RZS.C. 1952, c. 288; as ammended by 8 & 9 Eliz. II, c. 44, s. 6.
182 Of course, in the United States “even the war power does not remove
constitutional limitations of safeguarding essential liberties.” Home Building
and Loan Association V. Blaisdell, supra, n. 171, at p. 426. However, they
can be reduced to the “vanishing point”, see, infra, n. 274.
183 There is no question that Parliament can delegate its powers, see, the
Chemicals Refeilence, [1948] S.C.R. 1; accord, Lloyd V. Wallach, (1915), 20
Conumw. L.R. 299 (Austl.); Opp Cotton Mills Inc. v. Administrator, 31 U.S.
126 (104fl).
McGILL LAW JOURNAL
[Vol. 16
and authorities as the Governor-in-Council may provide”. The next
section permits the Governor-in-Council to prescribe penalties for
violations of orders and regulations made under the Act, that are
not to exceed a fine of five thousand dollars and/or imprisonment
for five years. Section five prohibits the release of an arrested alien
without the consent of the Minister of Justice.
Section six was repealed and a new section was substituted when
the Bill of Rights was enacted.”” This section provides that sections
three to six come into force only when war, invasion or insurrection,
real or apprehended, exist. When such a proclamation is made, it
is to be laid before Parliament; but if Parliament is not sitting,
then within fifteen days after the next sitting. Ten members of
Parliament can make a motion for the revocation of the proclamation,
in which case it is to be debated. If both Houses resolve that it
should be revoked, it ceases to have effect and sections three to
five are no longer in force until brought into force by another
proclamation. However, any official who acted in good faith while
the Act was in force is protected. The last paragraph of this section
effectively suspends the Bill of Rights when the Act is in force.
If the government proclaimed a false emergency and the procla-
mation was subsequently revoked by Parliament, the government
would doubtlessly be forced to resign. As well, under the Lord
Haldane criteria set out above, if the emergency never existed or
has passed away, the courts on “very clear evidence” could rule
that the continuation in force of the War Measures Act is invalid.
The final three sections of the Act provide for the fixing of
compensation for any property appropriated by the government;
the forfeiture of any ship or vessel used to transport goods contrary
to regulations made under the Act; and, procedure to be followed
in the courts under these last sections.
From the above description of the state of Canadian law, it
follows that when government interference with civil liberties is most
likely, protection of these liberties is least available.
III -THE
IMPACT OF EMERGENCY ON CIVIL LIBERTIES
In times of war the government cannot carry on according to
the Magna Carta. There must, of necessity, be some curtailment
184There was a great deal of criticism of this amendment. See, Canada,
House of Commons, Special Committee on Human Rights and Fundamental
Freedoms, Minutes of Proceedings & Evidence, 10,60, 24th Parliament
(3rd
Session),
(Ottawa: Queen’s Printer); for a summary of this criticism, see,
W.S. Tarnopolsky, The Canadian Bill of Rights, (Toronto: 1966), at pp. Z25-227.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
of liberty.8 5 But is does not follow that civil liberties must be
suspended completely. Although materially lessened, there is a place
for civil liberties during wartime. Perhaps the test as to the sus-
pension or dilution of liberties is that there should be some reasonable
relationship between the measures taken and the exigencies of the
moment. 8 6
During wartime, people will put up with a myriad of restrictions
that they would normally find unbearable. Most often, however, the
ordinary citizen does not feel any acute pinch on his civil liberties
and few will criticize a curtailment of rights in wartime. 8 7 The
–
tendency is also to generally press for harsher and severer punish-
ment of the wrong-doer.
The following discussion will centre primarily on the impact
of the Second World War on the freedom of speech, of the press
and of association; property rights; the suspension of the writ of
habeas corpus; and, the abortive plan to deport Japanese Canadians.
A. Freedom of Speech, of the Press and of Association
Under the War Measures Act a number of Regulations 188 were
brought into force in September 1939 in order to control freedom
of speech and of the press. There were hundreds of prosecutions
under these Regulations but only a few reported cases –
nearly all
during the first years of the war. 8 9 The Regulations and their
enforcement can be most seriously faulted for the prosecution of
chance remarks often made in “drunken brawls” that had an un-
necessary chilling effect on ordinary grumblings of “dissatisfaction
1s5 Ronnfeldt v. Phillips, 35 T.L.R. 46, at p. 47 (C.A., Scrutton, L.J.).
186 See, Woods v. Cloyd W. Miller Co., 333 U.S. 168, at pp. 146-147
(1948,
Jackson, J.); Adelaide Company of Jehovah’s Witnesses Inc. v. The Com-
monwealth, (1943), 67 Conmmw. L.R. 116, at p. 1,62 (Austil.) par Williams, J.;
P.R. Scott, Civil Liberties and Canadian Federalism, (Toronto: 1959), at p. 12.
187 See, Anthony, op. cit., n. 63 at p. 105 et. seq.
188 2 Canada Proclamations and Orders-in-Council, 1940, Regulation 39, at p. 9;
provided that no person shall spread reports or make statements “intended or
likely to cause disaffection to His Majesty or to interfere with His Majesty’s
forces” or “to prejudice recruiting” or “to be prejudicial to the safety of the
state or prosecution of the War”.
189 For a discussion of civil liberties in the early war years and an analysis
of the few reported cases, see, F.A. Brewin, Civil Liberties in Canada During
Wartime, (1941), 1 Bill of Rights Rev. J1A; Civil Liberties in Great Britain
and Canada During War, (1942), 55 Harv. L.R. 1006.
McGILL LAW JOURNAL
[Vol. 16
or discontent”. 90 Yet, it seems that this type of prosecution was
favoured by the government.191
Because of Canada’s proximity to the United States, it would
have been quite difficult to impose strict censorship. American
newspapers, books and periodicals were generally available in Canada,
and of course Canadians were free to listen to American broadcasts.
While Canada was at war for two years, the United States enjoyed a
“peace time” press, but even when the United States was at war,
press restrictions were rdtatively moderate. 192
However, some Canadian publications were repressed and a
number of books an’d periodicals were banned from entering the
country. As to judicial review of publications ordered suppressed
under the Defence of Canada Regulations, it was stated:
In time of peace the civil rights of the people, the liberty of the subject,
the rights of free speech, and the freedom of the press are entrusted to
the Courts. In war time this may be changed. Parliament may take from
the Courts their judicial discretion and substitute for it the autocracy of
bureaucrats. 193
9 0 See, Brewin, loc. cit., n. 189 at p. l.i7. During World War I persons making
3
pro-German remarks in bar rooms were prosecuted for sedition, see, R. v.
Trainor, [1,917], 1 W.W.R. 415, at p. 423 (C.A. Alta.); and other cases cited
by D.A. Schmeiser, Civil Liberties in Canada, (London: 1,964), at p. 206, n. 1.
1.91The Minister of Justice explained in the House that: “Some joyous friend
may inbibe a little too much liquor in a tavern and think it smart, for instance,
to say that the Germans are better soldiews than the British, or something
like that. Such a man should not be treated as a real enemy who is plotting
against the state. There the summary conviction [carrying a lighter maximum
sentence] applies. But when a case is serious, the prosecution should be by
way of indictment, and I believe that the choice should be left to the Minister
of Justice or the attorney general”. (Hansard, 1040, at p. 745).
192 See, Corwin, op. cit., n. 2 at pp. 106,107.
193 Yasny v. Lapointe, [1940], 3 D.L.R. 204, at p. 205 (C.A. Man.)
(no writ
of certiorari from Minister’s order suppressing publication of a Russian language
newspaper). Regulation 15(1), Defence of Canada Regulations
(1039), under
which such orders were made provided: “The Secretary of State for Canada may
make provision by order for preventing or restricting the publication in Canada
of matters as to which he is satisfied that the publication, or, as the case may
be, the unrestricted publication, thereof would or might be prejudicial to the
safety of the State or the efficient prosecution of the war, and an order under
this paragraph may contain such incidental and supplementary provisions as
may appear to the Secretary of State to be necessary or expedient for the
purposes of the order”.
It was held that the powers of the Governor-in-Council under s. 3 of the
War Measures Act, R.S.C. 1927, c. .206, as well as Regulations made pursuant
to these powers was to be liberally construed. See Attorney-General of Canada
V. Wheeler, [1.944], 1 D.L.R. 784, (S.C. Ont.).
Compare the above to the judicial function under the American Constitution
and Congressional powers. See, for example, Schenck v. United States, 249
U.S. 47 (19a10).
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
This “autocracy of bureaucrats” resulted in the banning of some
periodicals and newspapers that were freely circulating in beleaguered
Britain from relatively secure Canada. 9 4
Under Regulation 39C a great many organizations were declared
illegal, and any person continuing as a member or officer of such
an organization was guilty of an offence. 195 The Communist Party
as well as some fascist organizations were banned. The impact of
war on civil liberties in Canada can be profitably viewed from the
perspective of how the Jehovah Witnesses fared officially during
the war in Canada, in the United States and in Australia.
On July 4, 1940, by Order-in-Council P.C. 2943, the Canadian
Watch Tower Bible and Tract Society (Jehovah Witnesses) was
declared an illegal organization. Ostensibly, the propagation of their
pacifist beliefs would have affected the efficient prosecution of the
war.’9 The organization’s affairs were to be administered by the
Custodian of Enemy Alien Property1 97 As was the case with other
Orders and Regulations, this Order was subject only to government
discretion; it was not subject to judicial review.
In 1943 at the height of World War II the right of American
Jehovah Witnesses 198 to enjoy freedom of speech and freedom of
194 Civil Liberties in Great Britain and Canada During War, loc. cit., n. 189 at
p. 1012. As to suppression of publications in Britain, see, ibid., p. 10,1f; H. Laski,
Civil Liberties in Great Britain in Wartime, (142), 2 Bill of Rights Rev.
243, at pp. 246-247; P.B. Rava, Emergency Powers in Great Britain, (1941),
21 B.U.L. Rev. 403.
195See, for example, R. v. Sutton, [194-1], 2 W.W.R. 60, where the offence
was membership in an illegal organization, i.e., the Jehovah Witnesses.
199In World War I, conscientous objectors
(Dukhobors and Mennonites),
as well as persons born in enemy countries and naturalized after 1902 were
disenfranchised. This was a collosal disenfranchisement to help the government
win the election. See, The War-time Election Act, (1917) 7-8 Geo. V, c. 36,
s. 2; as to voting restrictions on Japanese Canadians in World War II, see,
La Violette, infra, n. 197, at pp. 189-190.
197In June 1942
the Ukranian Labour-Farmer Temple Association was
declared to be an illegal organization. One hundred and eight halls of the
organization were put under the care of the Custodian. When the ban was
removed in 1043, sixteen properties had already been sold. Pressure was exerted
on the government and these properties were later returned. (F.E. La Violette,
The Canadian Japanese and World War II, (Toronto, 1948), at p. 219, n. 27.)
198 The First Aanendment in the American Constitution and s. 116 of the
Australian Constitution formally restrain government interference as concerns
religion. See the comparison of these provisions made by Latham C.J., in
Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonwealth, supra,
n. 186, -at -pp. 1874M1. There is no comparable provision in the B.N.A. Act. For
an account of religious freedom in Canada, see, Schneiser, supra, n. 190, at pp.
54-118.
McGILL LAW JOURNAL
[Vol. 16
the press was affirmed. At issue was a Mississippi statute that
prohibited the dissemination of literature that would generally
promote disloyalty to the state and the nation. Some members of the
sect were charged with distributing literature that condemned the
war as well as the draft, and opposed saluting of the flag. The
Supreme Court affirmed their right to distribute this material since
it was not “claimed or shown to have been done with an evil or
sinister purpose, to have advocated or incited subversive action
against the nation or state” or to have threatened any clear and
present danger to American institutions or government. 91 The
Fourteenth Amendment guaranteed that the states could not restrain
these persons from communicating their beliefs.200
Similarly, as was the situation in Canada, the Australian Gover-
nor General could publish an Order under the National Security
(Subversive Associations) Regulations declaring that the existence
of an association was prejudicial to the defence of Australia or to
the prosecution of the war, and that association was dissolved by
the force of this declaration. Provisions were also made for the
forfeiture to the government of the property of any such dissolved
association. On January 17, 1941, the Jehovah Witnesses associations
in Australia were declared to be subversive and consequently they
were dissolved. Australia, like Canada, does not have an entrenched
Bill of Rights as is found in the American Constitution. However,
although there was a great deal of difference of opinion, the High
199 Taylor v. Mississippi, 319 U.S. 583, at pp. 589-590 (1943).
In Canada, a member of the Jehovah Witnesses was convicted under
Regulation 39 (making statements prejudicial to the safety of the state) for
complaining about the expulsion of his children from school for refusing to
salute the flag or sing the national anthem. His letter explained why his religion
forbade such practices. In quashing the conviction the Court of Appeal held
that what he wrote was neither intented nor likely to affect the prosecution
of the war, nor, it was emphasized, was it addressed to the public in general.
R. v. Clark, [1941], 4 D.L.R. 299
(C.A. Man.).
In at least one Canadian flag saluting incident “children of tender years
have been summoned to give evidence against their parents on charges that
the parents had made statements to the children ‘likely to cause disaffection
to His Majesty’.” (Brewin, supra, n. 189, at p. 118. Compare with the United
States, infra, n. 200.).
200 In West Virginia State Board of Education v. Barnette, 319 U.S. 624
(.1043), overruling Minersville School District V. Gobitis, X10 U.S. 586 (1940),
the Supreme Court held that a state could not require a pledge of allegiance
to the flag as part of its regulations of public education. Mr. Justice Jackson
for the majority played down the religious aspect, and emphasized that a
person should not be compelled to state a belief he does not hold. The right
to remain silent is an adjunct of the freedom of speech.
No. 1]
EM]RGENCY POWER AND CIVIL LIBERTIES
Court held the Order to be invalid. Mr. Justice Williams stated
that “such a law could not possibly be justified by the exigencies
and course of the war”.20 1
Did the exigencies of war require that the Jehovah Witnesses
be banned as an organization in Canada and often individually jailed
for their beliefs, while their brethren in allied countries were free
to exercise their beliefs ? The answer would seem to be no
.202
B. Property Rights
There is no question that the emergency caused by war requires
drastic economic controls with a consequent severe infringement on
property rights.2 0 3 The courts will, of course, be more sensitive to
a denial of personal liberty than to one that causes economic dis-
comfiture.2 4 But, there is a principle that what is done should be
necessary for the safety and defence of the country.2 0 5
During the war, Canada was governed by Order-in-Council. These
Orders and Regulations filled a number of volumes. Hoarding, foreign
exchange, restrictions on changing jobs and a hundred and one
other matters were subject to strict control. Possibly a study of the
maze of wartime controls would turn up minor regulations that
were ill-conceived and unnecessary. However, under the pressures
of war, this is inevitable and relatively unimportant. Here one govern-
ment measure will be reviewed –
the sale of property without or
against the owner’s consent.
2O Adelaide Company of Jehovah’s Witnesses Inc. v. The Commonw’ealth,
supra, n. 186, at -p. 165.
202 In Britain there was a “greater sensitiveness to the necessity of preserving
the procedures of democracy” than in Canada. (Brewin, supra, n. 189 at p. 114).
203 The Emergency Price Control Act in the United States provided for
the control of rentals and the Act only required that they be “generally fair
(1943), a
and equitable2 In Bowles V. Willingham, 801 U.S. 503, at p. 510
landlord complained that she was not allowed a “fair return” on her property.
In spite of Fifth Amendment guarantees, the Court was able to state: “A
nation which can demand the lives of its men and women in the waging of
that war is under no constitutional necessity of providing a system of price
control on the domestic front which will assure each landlord a ‘fair return’
on his property.”
204 See, for example, supra, n. 162.
2051n 1016 the Crown purporting to act under the Defence of the Realm
Regulations took possession of a hotel for the Royal Flying Corps and denied
compensation to the owner. Lord Dunedin said that under the Regulations “the
taking possession of De Keyer’s Hotel was warranted, but there was no
necessity for the public safety or the defence of the realm that payment should
not be made…” Attorney-General v. De Keyer’s Royal Hotel, [1,20] A.C.
508, at p. 529 (H.L.).
McGILL LAW JOURNAL
[Vol. 16
After the evacuation of Japanese Canadians from the West
Coast,20
their property was vested in a Custodian who had wide
discretionary powers to deal with this property in any manner he
thought proper.207 Often without the permission of the owners –
and
indeed over their protests 20 –
this property was sold by the Cus-
todian. In the Nakashima Case,2
9 the Court was invited to rule that
the sale of such property was not for war objects, that it had nothing
to do with the evacuation, and that it was not a war measure and
consequently beyond the competence of the Governor-in-Council.
1
Mr. Justice Thorson 210 reviewed the Orders providing for the
disposition of this property, and referred to the recitals as establish-
ing the purpose for these orders. He said that the Court could not
assert a contrary opinion to what the Governor-in-Council thought
advisable. 21 1 Parliament having left the decision to the Governor-in-
Council, the Court was powerless to intervene, and that corrective
power lay with Parliament.212 A subsequent challenge to similar
government action was based on the claim that the Custodian took
custody of the property as a trustee, and committed a breach of
2 06 The history of the Japanese Canadians in World War II
is in La Violette,
supra, n. 107.
in
207The Custodian’s powers were given
the Consolidated Regulations
Respecting Trading with the Enemy, (1039) as per Order-in-Council, P.C. 3959
of August 21, 10940 as amended by Order-in-Council P.C. 5353 of October 3,
1940. He was named by the Secretary of State (s. 3). All property is vested
in him by s. 21. Under s. 23 he could transfer the property to his own name.
In se;ctions 38 to 40 provision was made for him to liquidate or relinquish the
property at his discretion; and in disposing of property, he could sell
it
either publicly or privately as in his discretion he thought proper.
2 0 8s n July of 1943 Mr. & Mrs. E. Kitagawa wrote to the Custodian opposing
the sale of their home. They said that they were pleased that the house was
rented to a soldier’s family, that the property was in the hands of a good
agent, and that they could certainly use the rent. “We cannot understand”,
they complained, “the official claim that it is necessary to sell over our heads
the home from which we were forcibly rejected. We do not quarrel with
military measure[s] but this act can scarcely be in accordance with any war
measure”. The Custodian’s reply was that policy
in Ottawa.
(This exchange of correspondence is reproduced in Lu Violette, supra, n. 197,
at pp. 302-304.).
is formulated
209 [10 47] Ex. C.R. 486.
2 iOMr. Justice Thorson was the Minister of National War Services before
his appointment to the Exchequer Court in 1942.
investigate the claims of Japanese Canadians
2 1 iSupra, n. 209, at pp. 499-504.
212 By Order-in-Council 1810 of July 14, 1947, a Commissioner was appointed
to
that they had suffered
pecuniary loss. It was found that some properties had been sold below fair
market value and additional payments were recommended. These were eventually
paid by the government.
No. 1]
EMFERGENCY POWER AND CIVIL LIBERTIES
trust in selling the property without authorization. This claim was
rejected.213
The unauthorized sale of property did not affect only Japanese
Canadians. 214 However, as concerns Japanese Canadians, who were
neither charged nor convicted of any offence, the arbitrary sale of
their property by the Custodian bore no relationship to the security,
defence, peace, order or welfare of Canada; unless, however, the
order or welfare of Canada required that their property be sold so
that their roots in the West Coast be severed, and that they would
be discouraged from returning.215
C. Suspension of the Writ of Habeas Corpus
The English had made use of the suspension of the writ of
habeas corpus, not to legalize an arrest but to suspend a remedy.
A person could be held in custody without trial, until the emergency
was over. “The object of the suspension was to enable the Govern-
ment to take steps which, though politically expedient, were, or might
be, not strictly legal.” 216 In actual fact suspension of the writ does
not suspend it as such; the writ of habeas corpus issues as a matter
of course and the court decides if the person can proceed further.
In both World Wars, the writ of habeas corpus was never formally
suspended in England. However, DORA was said to be wide enough
to support an order for the internment of any person “of hostile origin
or associations”. 21 7 During the Second World War, Regulation 18B
permitted the detention of certain classes of persons. 218 A detainee
could appeal to -an Advisory Committee that recommended to the
Secretary whether the person should or should not be liberated.
Generally these recommendations were followed.
The American Constitution provides that: “The privilege of the
Writ of Habeas Corpus shall not be suspended, unless when in Cases
213 1wa.saki v. The Queen, [1969], 1 Ex. C.R. 281, where the Court followed
the decision in the Nakashima Case, supra, n. 209.
214 See, for example, supra, n. 197.
215 See, infra, n. 238, and n. 239.
216 Wade and Phillips, op. cit., n. 18, at p. 383.
217R. v. Halliday, [1017] A.C. 260 (H.L.).
218 The Secretary of !tate could detain any person who he had “reasonable
cause” to believe was a person of hostile origins or associations; or who had
recently been concerned in acts prejudicial to the public safety; or who was
or had been a member of an organization subject to foreign influence or control
or whose leaders were sympathetic with the system of government of an
enemy power. “Reasonable cause” was determined to mean, what the Secretary
thought was reasonable. Liversidge V. Anderson, [1942] A.C. 206 (H.L.).
MoGILL LAW JOURNAL
[Vol. 16
of Rebellion or Invasion the public Safety may require it’ (art. 1,
s.9, cl.2). During the Civil War, President Lincoln suspended the
writ of habeas corpus. Thousands of persons were detained and later
released. When the validity of the Order came up before Taney C.J.
on a petition of habeas corpus from a Baltimore resident named
Merryman, the Chief Justice ordered that the detainee be brought
before him. The army general to whom the writ was adressed refused
to produce the body of John Merryman, stating that he was authorized
by the President to suspend the writ of habeas corpus. In his judg-
ment, the Chief Justice said that the power to suspend the writ of
habeas corpus lay with Congress and not with the President. He
sent a copy of his decision to the President so that the latter could
determine what further civil action was to be taken.2 19 Lincoln’s
suspension of the writ of habeas corpus in April 1861 was ratified
by Congress in March 1863. Although it is not quite clear if Congress
or the President can suspend the writ of habeas corpus, it would
seem that during rebellion or invasion the President can act to
detain persons until Congress acts.
At least formally, the writ of habeas corpus has not been sus-
pended in the continental United States since the Civil War. However,
preventive detention has often been judicially tolerated –
in labour
disturbances 220 as well as in recent rioting. 221 In World War II,
thousands of Japanese Americans were detained
in relocation
centres. The Supreme Court ruled that Miss Endo, whose loyalty
was conceded by the War Relocation Authority, could not be detained
2 19E parte Merryman, 17 Fed. Gas. no. 9487 (C.C.D., Md., 1861).
In the Irish case of Egan V. Macready, [1021]
Ir. R. 265, the military
at first refused to obey the writ of habeas corpus-but they later did produce
the body.
The commanding general of the army in Hawaii defied an order of the
federal court, or at least avoided having it served; see, Antony, op. cit., n. 63 at
pp. 64 et. seq.
In Duncan V. Kahanamoku, 327 U.S. 304 (1946) the Court granted certiorari
on February 12, 1945 but the case was not decided until one year later.
Corwin, op. cit., n. 2 at pp. 104-105 suggests that perhaps the Court did not
want to put constitutional difficulties in the way of the military even at
this late date in the war.
220 See, Fairman, op. cit., n. 31 at pp. 167-177. In Mr. Justice Holmes’ often
quoted words: “When it comes to a decision by the head of the State upon a
matter involving its life, the ordinary rights of the individuals must yield
to what he deems the necessities of the moment’. Moyer V. Peabody, 212 U.S.
78, at p. 85
(detention of a labour leader during a bitter strike in
Colorado, see supra, n. 55).
(M2W09),
No. i]
EM
I NCY POWPA AND CIVIL LIBERIIS
it
is significant that her release was effected two and a half
–
years after her petition was first filed.222
Canadian Regulation 21 gave the Minister of Justice wider author-
ity to detain persons than was the case under Regulation 18B in
Britain. The British Regulation permitted the detention of certain
classes of persons. 223 However, the Canadian Regulation authorized
the detention of any person if the Minister of Justice was “satisfied”
that it was necessary to prevent that person “from acting in any
manner prejudicial to the public safety or the safety of the State.”
The Regulation also provided that a detainee “be deemed to be in
legal custody”. 224 Consequently, a writ of habeas corpus would not
have offered relief to a detainee. The Regulation permitted the
Minister to detain persons without being hampered by judicial
formalities. 225 Enemy aliens were interned under another Regu-
lation.226
In both Britain and Canada, Fascists and Fascist sympathizers
interned, but proportionately the number was greater in
were
221 During -the 1967 Detroit riots the delay in returning the writ of habeas
corpus for seven to ten days rendered this relief ineffective. See, Comment,
The Administration of Justice in the Wake of the Detroit Civil Disorder of
July 1967, (1068), 66 Mich. L.R. 1542, at pp. 1577 et seq.
222EX parte Endo, 323 U.S. 283
(1944). See infra for a discussion of the
case of the Japanese Americans.
223 See, supra, n. 218.
224 In Ex parte Sullivan, 78 Can. Grim. Cas. Ann. 400 (C.A. Ont. 1941),
the Court held that there was no release on the grounds that Regulation 21
gave a detainee the status of a prisoner of war, and Regulation 50 provided
that a prisoner of War could only be released with the approval of the Director
of Internment Operations. It would seem that this interpretation was unnecessary.
225 See, Rv Guralnick, 78 Can. Grim. Cas. Ann. 152 (K.B. Man. 1942). The
the
petitioner was convicted of being a member of an illegal organization –
and given a twelve month sentence. On appeal he was
Communist Party –
given a suspended sentence. The Minister of Justice then ordered that he be
interned.
226 Enemy aliens pose a special problem. Such a person can be someone who
has lived in Canada for decades but for one reason or another has not taken
the British
out Canadian citizenship. During the summer of 1940, when
government feared a fifth column, all enemy aliens over eighteen were interned.
Many of these people had fled persecution and were staunchly anti-fascist while
the country for decades. This
others were loyal citizens who had lived
the press and in Parliament. Matters
government ‘action was condemned in
were soon set right again, and in fact thousands of persons were released.
See, Laski, loc. cit., n. 194 at pp. 245-246.
in
McGILL LAW JOURNAL
(Vol. 16
Canada.227 Both governments thought this blanket power indispensible
for the war effort. However, it is more realistic to compare the
situation in Canada to that in the United States. Although the
American President wielded enormous power during the war, he
was never delegated the powers of a Regulation 21, which would,
no doubt, have been unconstitutional.
The best example of how extreme was the power delegated by
the Canadian Parliament to the government became evident during
the spy investigations of 1946. In December of 1945, Parliament
passed the National Emergency Transitional Powers Act 228 to allow
the government to cope with the immediate post war problems.
Substantial powers were delegated to the Governor-in-Council and
all existing Regulations under the War Measures Act could be
continued in force. Subsequently, it was discovered that a secret
Order-in-Counci 229 passed on October 6, 1945 was continued in force
under the authority of the National Emergency Transitional Powers
Act.
This Order-in-Council permitted the Minister of Justice to inter-
rogate and/or detain “in such place and under such conditions as
he may from time to time determine” any person who might in his
opinion be likely to communicate secret information to an agent of
a foreign power or to act in any manner prejudicial to the public
safety. Any person detained was to be deemed in legal custody.
Those detained under the Order were denied counsel, they were not
permitted to communicate with anyone, and they were not warned
about self-incrimination. 230 No charges were laid against these
persons. However, two judges of the Supreme Court of Canada were
appointed to a Royal Commission to inquire and report on the
227Civil Liberties in Great Britain and Canada During War, loc. cit., n. 199
at p. 1O-U7.
228 S.C. 9-10 Geo. VI, c. 25. The power conferred on the Executive by
Parliament was “without express reservation and in the amplest terms that
statutory language can employ,” Attorney-General for Canada v. Hallet &
Carey Ltd., [.1052] A.C. 427, at 450 (P.C.).
229 Order-in-Council, P.C. 6444. It was revoked by P.C. 1262 on April 1,
1946. By the Regulations Act, R.S.C. 1952, c. 205, s. 6(1), all orders, rules,
regulations, and proclamations must be published in the Canada Gazette within
thirty days.
23 In at least one case the evidence given by a suspect was used against
him in a criminal trial, Minutes of Proceedings of the Canadian Bar Association,
(1946), at p. 142.
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EMERGENCY POWER AND CIVIL LIBERTIES
activities of the detainees.2’ About half the persons detained were
acquitted during the spy trials that followed. Needless to say, this
government action was severely condemned. 2
D. The Case of the Japanese Canadians
Nothing has stirred the disquietude of Canadians on civil liberties
more than the -treatment of Japanese Canadians in World War II.
It is the skeleton in the closet that stalks out to haunt all our
discussions on civil liberties.233 As Mr. Diefenbaker said in 1960,
“one finds it difficult to forget the wrongs… committed in freedom’s
name but a few years ago.” 234 And more recently Prime Minister
Trudeau stated that “it was one of the great scandals of Canadian
history”. 235 I-ronically, the Japanese Canadians felt that they knew
the meaning of “British justice” and “British fair play”, so that a
Japanese Canadian newspaperman at the time could write, “this
squeezing us out isn’t British.” 236
In June 1941 there were 22,096 persons of Japanese origin in
British Columbia, 76.3% of whom had been born in Canada; and
of the remainder many had been naturlized.237 The evacuation of
Japanese Canadians from the West Coast was not as a result of
their conduct, but as a result of festering prejudice.238 Was this an
appeal by politicians for votes in a racially biased British Colum-
bia ?39 No Japanese Canadians were over charged with espionage
231 For a scathing criticism on the work of this Commission, see, M.H.
Fyfe, Some Legal Aspects of the Report of tite Royal Commission on Espionage,
(1946), 24 Can. Bar Rev. 777.
232 See, Minutes of Proceedings of the Canadian Bar Association, op. cit., n. 230
at pp. 1.41-15G; HansaTd, (1946), at pp. 82-94; 137140; 1.70-173; 260-262; and
286-287.
233 See, for example, Canada, Senate, Proceedings of the Special Committee
on Human Rights and Fundamental Freedoms, 1950, (Ottawa: King’s Printer),
at p. 85, (hereafter 1950 Senate Committee Proceedings), Statement by Dr.
E.A. Forsey, and that by the Co-ordinating Committee of Canadian Youth
Groups, at pp. .292-293; Scott, loc. cit., n. 186 at p. 37.
234 Hansard, (10.60), vol. 7, at p. 7544.
235 Globe and Mail, October 28, 1968, at p. 12.
236 La Violette, op. cit., n. 197 at p. 55.
237 Ibid., at p. 717.
238 Ibid., at p. 36; Hansard, (1960), vol. 7, at p. 7545, statement by Mr.
Diefenbaker; Hansard, (1944), at p. 5916, statement by Prime Minister King;
see Senate Committee Prodeedings, (1050), -at pp. 27.’7-279, for a list of anti-
Japanese legislation.
239 La Violette, op. cit., n. 1,7 at p. 27U, where it is suggested that this is
possible.
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rVol. 16
or disloyalty 240 –
in the United States. 2 41
and the same is true for the Japanese Americans
in numerous points and basically different
Similarities between the exclusion of Japanese Americans from
the West Coast and the comparative events in Canada are “some-
in
what superficial
others”. 242 However, there is no difference on two points: in both
countries Japanese citizens were deprived of their civil liberties,
and in the United States as in Canada “this policy was not a mili-
tary estimate of a military problem, but familiar west coast attitudes
of race prejudices”. 243 In a series of Presidential Executive Orders 244
culminating in April of 1942, provision was made for the exclusion
of Japanese persons from the western states. Out of 126,000 per-
sons of Japanese origin, about 112,000 lived in the west of whom
at least 70,000 were American citizens. The evacuees were removed
to relocation camps set up under the aegis of the War Relocation
Authority, a civilian agency.
For all practical purposes, the Bill of Rights may as well not
citizens and non-citizens
have existed for Japanese Americans –
240Hansard, (1944), at p. 5915, statement by Prime Minister Xing.
241E.V. Rostow, The Japanese American Cases –
A Disaster (1944-45), 54
Yale L.J. 489, at p. 523; where it is also stated that those arrested in Hawaii
as Japanese agents were all white men.
242 La Violette, op. cit, n. 1.97 at p. 313. More precisely –
“The methods of
evacuation, the amount of force, the plans for relocation, resettlement, the policy
with respect to property, and even methods of segregation and repatriation” were
For example in the United States the military had the major role in the
evacuations, whereas this was not true in Canada. In fact, after disturbances
at the Tule Lake Relocation Center in California the army took over and
declared “martial law”. Trouble makers were apparently not tried, but simply
arrested and placed in the stockade. Army rule lasted from November 4, 1943
to January 15, 1944 at which time the administration of the centre was returned
to the War Relocation Authority. See, D.S. Thomas and R.S. Nishimoto,
The Spoilage (1946), at pp. 147-183. There were no comparative incidents in
Canada.
243 Rostow, loc. cit., n. 241 at p. 496. Rostow makes the most documented
denunciation of the whole episode. See, also, H.A. Freeman, Genesis, Exodus and
Leviticus – Genealogy, Evacuation and Law, (1,943), 28 Cornell L.Q. 414; for a
defence of the government’s action, see, M. Alexandre, The Nisei – A Casualty of
World War II, (1943), 28 Cornell L.Q. 385.
244 Before the Presidential Orders were acted upon, Congress passed a statute
authorizing the exclusion of all persons from designated military areas. (c. 101,
56 Stat. 178). Apparently the army wanted Congressional authority before
acting.
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EMERGENCY POWER AND CIVIL LIBERTIES
alike.245 The Supreme Court upheld all the main features of the
Japanese exclusion orders.
In Hirabayashi, the Court dealt with the case of a natural born
Japanese American who had been convicted in a Federal District
Court of violating a curfew order and of failing to report to a
civilian control centre. The Court avoided the latter issue. The
essence of the decision was that the Court could not sit in judg-
ment of what was a necessary military measure in time of war. 246
Chief Justice Stone asserted that, given the attachment of many
Japanese to Japan and the dual citizenship of a great number
under Japanese law, the government could not ascertain quickly
the loyalty or disloyalty of individuals. 247 In his concurring opinion,
Mr. Justice Murphy felt constrained to state that this policy went
to “the brink of constitutional power” and that if not for the great
emergency caused by the war, it would violate the Fifth Amend-
ment.
2 4 8
When the constitutionality of the exclusion orders came before
the Court, Mr. Justice Murphy, dissenting, said it went over the
“brink” and “into the ugly abyss of racism”. 249 In Korematsu, the
Court found the exclusion orders valid when made, on the same
grounds stated in Hirabayashi.250 On the same day that Korematsu
was decided, the Court freed Miss Endo from internment at the
Tule Lake Relocation Center.25
1
If Canadians could rationalize the evacuation of Japanese Cana-
dians from the West Coast, they were shocked by the government’s
245 Of the 1,100,000 enemy aliens in the United States only a very small
number were interned. Aliens enjoy Fifth Amendment guarantees. However,
an arbitrary distinction was made between the hundreds of thousands of Germans
and Italians, as well as the smal number of Japanese who did not live on
and the internment of lt0,000 Japanese Who lived in the
the West Coast –
west.
240Hirabayashi v. United States, 320 U.S. 81, at pp. 93 & 106 (194s).
247 Ibid., p. 98; Rostow, loc. cit., n. 241 at pp. 507-508, states that this is not true.
Loyalty checks were made on thousands of Italian and German aliens in the
United States.
24 sSupra, n. 246, at p. .ll1.
24 0 Korematsu v. United States, 3,23 U.S. 214, at p. 233
250 Ibid., at p. 17.
251 EX parte Endo, supra, n. 222.
(1944).
McGILL LAW JOURNAL
[Vol. 16
proposal to actually deport these persons.252 Some pressures had
“Clear the Japanese out Canada”. 213
been put on the government to –
By a series of Orders-in-Council under the authority of the War
Measures Act, the government provided for the deportation of
Japanese from Canada –
of the non-citizen as well as the citizen.
These Orders-in-Council were made on December 15, 1945, long
after the cessation of hostilities and were continued in force in
virtue of s.4 of the National Emergency Transitional Powers Act.
The three Orders, P.C. 7355, 7356 and 7357 provided in substance
that: the Minister of Labour could make Orders for the deporta-
tion to Japan of the following persons sixteen years old or over,
who, being residents of Canada, had made a request for repatria-
tion –
(1) Japanese nationals, (2) naturalized and natural born
persons of the Japanese race, (3) -as well as “the wife and children
under sixteen years of age of any person for whom the Minister
makes an order for deportation to Japan may be included in such
order and deported with such person”. Naturalized citizens who were
deported were to lose their citizenship. Also, a Commission was to
make inquiry concerning the activities, loyalties and extent of co-
operation with the Government of Canada of Japanese nationals and
naturalized persons of the “Japanese race”, with the view of recom-
mending in the circumstances of any such case whether such per-
sons should be deported.
Requests for repatriation of Japanese nationals and naturalized
citizens could not have been revoked after September 1, 1945, and
requests by natural born persons could not be revoked after a
deportation order had been made. It is questionable to what extent
these requests were truly “voluntary”. 254
252 La Violette, op. cit., n. .197 at p. Z75.
The classic example of deportations was the expulsion of the Acadians in
1755. Three thousand persons were deported from Canada to various English
colonies in North America. Also, during the War of 181, British subjects over
eighteen years old were expelled from the eastern seaboard. (Lockington V. Smith,
15 Fed. Cas. 758 (Cir. Ct. Penna. 1817).
253 Editorial in the Montreal Star, May 117, 1944.
254 It has been alleged that natural born and naturalized Japanese Canadians
were encouraged by government agents to sign forms as an act of co-operation,
which were subsequently claimed by the goernment to be specific requests for
repatriation. Those who refused to sign were described as unco-operative, and
denied privileges accorded to those who did sign. (Brief of the National Japanese
Canadians Citizens Association, Senate Committee Proceedings (1950), at pp.
269-2177.
Of the approximately 10,000 persons who were to be repatriated only 3,964
left Canada after the reversal in the government’s policy. That is, sixty per
cent of those who originally signed repatriation forms never left. No person went
against his will. (La Violette, op. cit., n. 107 at p. 272).
No. 1″]
EMERGENCY POWER AND CIVIL LIBERTIES
The government
requested an Advisory Opinion from the
Supreme Court as to the validity of these Orders. It was argued
that the Orders were repugnant to British statutes that purport-
edly extended to Canada, that the Governor-in-Council had not
been delegated this power, and on the vagueness of the term “per-
son of the Japanese race”. In a split decision the Supreme Court
held that the Orders were intra vires except for the provision pro-
viding for the forced deportation of wives and children under
sixteen.25 5 The Japanese Co-operative Committee of Canada asked
the Prime Minister to withdraw the Orders or to consider a refer-
ence to the Privy Council. The latter course was chosen. All the
Orders were held intra vires the Governor-in-Council by the Privy
Council on the basis of the almost unlimited powers given to the
Governor-in-Council by the War Measures Act and on the construc-
tion of the Orders. 56
Meanwhile, criticism had been mounting against the govern-
ment’s policy towards Japanese Canadians. It was said at the time
that the government hoped that all the Orders would be held ,utra
vires by the Supreme Court.257 In other circumstances, perhaps, the
Court could have accommodated the government.
If
the powers delegated to the Governor-in-Council had been
based on the defence power, the Court could have held that de-
porting citizens in 1946 bore no relation to defence.258 Had there
been an entrenched Canadian Bill of Rights, perhaps the Court
would have said that: even if there were disloyal Japanese Cana-
dians, denaturalization was a cruel and unusual punishment and
consequently unconstitutional; 259 or, that citizenship is something
2U5 Reference as to the Validity of Orders-in-Council in Relation to Persons of
the Japanese Race, [1946] S.C.R. 248. As to the provision that was held invalid,
some justices said that in the absence of a treaty, forced deportation of citizens
would infringe on the sovereign rights of another state. (Id. at pp. 290, 305).
2 56 Co-operative Committee on Japanese Canadians v. Attorney General for
Canada, [1047] A.C. 87 (P.C.).
257 La Violette, op. cit., n. 197 at p. 271.
258 See the discussion on the defence power supra. The Australian High Court
ruled on a number of occasions that government measures bore no relation to
defence.
259 Trop v. Dulles, 356 U.S. 86 (1058). Denaturalization of an army deserter,
who was absent for less than one day, was held to be a cruel and unusual punish-
ment and therefore unconstitutional. However, see infra, n. 260.
McGILL LAW JOURNAL
[Vol. 16
“which a citizen keeps unless he voluntarily relinquishes
it”.210
And as to voluntariness, perhaps if the Supreme Court had dealt
with a concrete case, the facts would have revealed that the re-
quest for repatriation was very much involuntary and, thus, void.20 1
in
April 1947. The forced deportation of Japanese Canadians “didn’t
quite happen.., but the fact it could have been contemplated [and
legally carried out] is a frightening thing”.2 2
These Orders-in-Council were revoked by the government
CONCLUSION
The impression may have been given in this paper that during
World War II other countries may have at times been utopias as
concerns civil liberties, whereas Canada was a paragon of totali-
tarianism. This, of course, was not true. However, by focusing
comparative materials on the Canadian situation, it was hoped to
more clearly delineate Canadian shortcomings. Unquestionably there
is room for improvement, elsewhere as well as in Canada.
The first two suggestions, concerning an entrenched Bill of
Rights and Emergency Powers, made by the Federal Government 20 3
260Afroyim v. Rusk, 397 U.S. 253, at p. 262 (1067), overruling Perez V.
Brownell, 356 U.S. 44 (1958). This recent Supreme Court decision interprets the
Fourteenth Amendment as guaranteeing citizenship unless voluntarily relin-
quished –
“the people are sovereign and the Government cannot sever its
relationship to the people by taking away their citizenship”. (387 U.S. 253 at p.
257). Of course, naturalization that is unlawfully obtained can be set aside
(Id., at p. 267, n. 23).
261 In the Japanese Reference, [1.946] S.C.R. 248, at p. 320, Estey, J. said that
the government was acting on the request of the Japanese Canadians, so that
this was in no real sense deportation. Insofar as this was an advisory opinion,
without a factual record before the court, this was a tenuous assumption on the
voluntariness of the requests. See supra, n. 254.
On a factual record it was found that the renunciation of citizenship made
by Japanese Americans at the Tule Lake Relocation Centex was not on the basis
of a free intelligent choice, but rather because of fear, intimidation and coercion.
Some feared violence if they returned home, others were pressured into re-
nouncing their citizenship by fellow internees. The renunciations were thus held
invalid. Acheson V. Murakami, 176 F. 2d. 953, at p. 958 (9th Circuit, 1949).
The government did not apply for certiorari because it was believed that the
judgment would be upheld on the findings of fact, (1950), 35 Cornell L.Q. 605,
at p. 610, n. 41.
262 Globe and Mail, October 28, 1968, at p. 12. A comment by Prime Minister
Trudeau.
In December, 1945 it was reported that the Chinese conmunity was becoming
alarmed over the treatment of Japanese persons in Canada. They wondered if
it would soon be their turn to be evacuated or deported. La Violette, op. cit.,
n. 197 at p. 32, n. 5.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
are inadequate. To have a general exception in legislation such as
the War Measures Act that would suspend all or a great many civil
liberties, would again mean that when protection is required most,
it is available least. The second suggestion would make provision
for the suspension of certain liberties while others would continue
unimpaired –
that is, a hierarchy of liberties would be established.
To set up such a list of liberties that can be infringed during an
emergency would itself invite infringement. 264 It would be prefer-
able, as the Government document suggests lastly, that there be no
general exemptions as to what liberties can be set aside in times
of emergency.
Unwarranted sitd excessive government interference with civil
liberties during an emergency can generally be checked in three
ways: by a Bill of Rights, through parliamentary control, and by
judicial review.
1. An entrenched Bill of Rights. –
It, of course, would be
fallacious to assume that guarantees similar to those found in the
American Constitution would offer the same protections in a Cana-
dian Bill of Rights. 265 It was only after one hundred and seventy-
five years that the American Constitution yielded the guarantee
that citizenship is retained by an American until he voluntarily
relinquishes it.266 This result may never be obtained from a Cana-
dian Bill of Rights unless it is expressly provided for.
263 See, supra, n. 7. As to the Government’s “tentative” proposal (see, supra,
n. 8) it is a compromise between the Government’s first two original suggestions,
and it generally suffers from the same shortcomings. There is a certain safe-
guard in requiring an express statement by Parliament in its legislation when
rights in a Bill of Rights are to be abridged. However, in times of emergency
when “patriotic fervor” (see, infra, n. 272) is at its zenith, Parliament would
generally be reluctant to withold powers from a government when and if the
executive unequivocally states that it absolutely needs certain powers to over-
come a particular emergency –
and this would be even more true as concerns
a Parliament with a strong government majority in the House.
264An analogy can be made with Professor Sutherland’s observation that
“… the insertion of an express provision for emergency powers [in a constitu-
tion] is an invitation to use them”. A. E. Sutherland, “Study Six: Commerce,
Transportation and Customs”, in Studies in Federalism, Bowie and Freidrich,
eds. (Toronto, 1054), at p. 392. And governments are prone to accept the
invitation, see, for example, 0.1. Odumosu, The Nigerian Constitution: History
and Development, (London: 1963), c. 9. And the Western Nigerian crisis of
1962 could have been solved without a resort to emergency powers.
2605 Professor Freund has remarked that –
“Not only may like texts produce
unlike results; unlike texts may curiously give rise to identical devices and
expedients.” (P. A. Freund, A Supreme Court in a Federation: Some Lessons
from Legal History, (1-953), 53 Colum. L. Rev. 597, at p. 604.
266 See, supra, n. 260.
McGILL LAW JOURNAL
[Vol. 16
To attempt to list in detail all liberties in a Bill of Rights would
be almost impossible and unwise. However, recent Canadian expe-
riences would suggest that some liberties be carefully enunciated.
Among such a list should be included: a provision that trial by
court-martial of non-military persons -cannot be maintained when
the civil courts are open and functioning; that citizens cannot be
denaturalized without their consent; that citizens cannot be de-
ported; and, when, and perhaps with what safeguards the writ of
habeas corpus can be suspended. 2 7
2. Parliamentary control over the executive.
– Mr. Justice
Holmes admonished that –
“it must be remembered that legisla-
tures are ultimate guardians of the liberties and welfare of the
people in quite as great a degree as the courts”. 2 8 In the Canada
of World War II, individual members of Parliament were often
successful in curbing arbitrary government measures by seeking
liberalizations during ‘debate or by sharply questioning the Govern-
ment in the House as to the necessity of a particular measure. 200
Without waiting for an entrenched Bill of Rights, Parliament
can at this time curb unwarranted government interference with
civil liberties when the War Measures Act is proclaimed in force.
Firstly, the powers delegated to the Governor-in-Council can be
narrowed so as to apply to the necessities of defence or the sup-
pression of -an insurrection. As well, some powers can expressly
be withheld, such as the list suggested above for a Bill of Rights.
The War Measures Act in s. 6 (3) provides that when an emer-
gency is proclaimed, a motion can be made in either House by ten
members asking that the proclamation be revoked and that motion
is debated. For more efficient Parliamentary supervision over the
government, the proclamation of an emergency should itself operate
to automatically require a debate in the House and ratification of
the government’s action.
3. Judicial review. – When President Roosevelt warned Con-
gress that if they did not repeal a particular enactment he would
act himself, the Supreme Court must have gotten the message as
267 It was suggested that when the War Measures Act is proclaimed and the
writ of habeas corpus can be suspended, that no detention be for more than
sixty days at which time an appearance before a superior court judge would
be required, and that all detention orders be brought before Parliament within
fifteen days. Hansard, 1960, at p. 7543.
268 Missouri, Kansas and Texas Rly. Co. v. May, 104 US. 267, at p. 270 (1904).
269 See, Brewin, Zoc. cit., n. 169 at p. 1,14.
No. 1]
EMERGENCY POWER AND CIVIL LIBERTIES
well. 270 In summing up judicial review during the Second World
War, Professor Corwin stated that:
The restrictive clauses of the Constitution are not, as to the citizen at
least, automatically suspended, but the scope of the rights to which they
extend is capable of being reduced in face of the urgencies of war, sometimes
even to the vanishing point, depending on the demands of the war.
Theoretically these will be determined by the President and Congress, subject
to judicial review; actually the Court will not intrude its veto while war
is flagrant.27 1
The Court, too, is not immune to the “passions and pressures” of
the times.2 72
It was seen that during a crisis the Canadian courts were
helpless to aid in the maintenance of even minimal civil liberty
guarantees. 273 The main function of the courts today would be to
declare that an emergency has terminated or that it never actually
arose. Of course, the role of the courts in preserving liberties would
be effectively increased with an entrenched BilZ of Rights, or even
with a reduction in the powers delegated to the government in times
of emergency.
There is no panacea for the maintenance of civil liberties during
emergency. In the long run, the crucial factor in the preservation
of civil liberties “is the existence of a citizen body which is con-
scious that civil liberties matter, and is willing, if need be, to fight
for them”.2 7 4
27o In an address to Congress on September 7, 1942, President Roosevelt
demanded that Congress repeal the Price Control Act, of January 30, 1942. He
threatened “to act” himself if Congress did not comply. Congress finally gave
in to the threat. (See, Rossiter, op. cit., n. 1l1 at pp. 268-269).
271 Corwin, op. cit., n. 2 at p. 131.
272 In Woods v. Cloyd W. Miller Co., 333 U.S..13-8, at p. 146 (-948) Mr. Justice
Jackson stated: The war power “is usually invoked in haste and excitement when
calm legislative consideration of constitutional limitation is difficult. It is exe-
cuted in a time of patriotic fervor that makes moderation unpopular. And, worst
of all, it is interpreted by judges under the influence of the same passions and
pressures”. See also, Ex parte Milligan, 69 U.S. (4 Wall.) 2 at p. 109 (1866).
273The important cases in all jurisdictions invalidating war emergency restric-
tions were given after the emergency has passed. An exception should perhaps
be made for the Australian High Court, see supra.
274 Laski, loc. cit., n. 194 at p. 251.
