War Measures Act
One of the most notorious examples of state excess during a period of emergency was the War Measures Act enacted in 1914 at the onset of the First World War. The statute, barely two pages long, gave the federal government the power to suspend all rights. It transferred power from Parliament to Cabinet, which effectively ruled the entire country by decree for four years. The range of orders that flowed from the legislation was stunning. The government suspended habeas corpus, imposed widespread censorship, declared numerous associations to be unlawful, broke strikes and banned newspapers from reporting on their actions (and later banned striking), limited due process to facilitate prosecutions, interned thousands of enemy aliens, and created agencies to regulate prices and control the production or distribution of goods. Parliament imposed conscription, which led to the jailing of thousands of men for desertion, and the government threatened to conscript anyone who incited or participated in labour unrest. Citizens were encouraged to spy on their neighbours to discourage hoarding or waste in the midst of food shortages. Any individual expressing “objectionable speech”—including unfavourable comments about the government or the war—was liable for a fine of $5,000 and imprisonment for five years. Government officials were authorized to seize and destroy any materials they judged prejudicial to the war effort. The onus of proof was reversed for prosecutions: rather than being innocent until proven guilty, the accused were required to prove they were not guilty. The government also gave itself the power to deem any organization to be unlawful, seize its property, break into and search any premises without a warrant, and prosecute any member or individual affiliated with the group. Any utterance might be construed as supporting an unlawful organization, which the order-in-council defined as (among other things) any comment that was profane, scurrilous, or abusive towards the government. People who rented or provided space to the unlawful organization were equally guilty. The accused were presumed guilty, and guilt was retroactive: if they had supported the organization in any way at the beginning of the war they were guilty even if there was no proof of affiliation for years.
These were only the most blatant examples of restrictions on civil liberties during the war. Such power inevitably led to abuses, such as an absurd order-in-council that criminalized loafers and a policy that banned dog shows. Following a conscription riot in Quebec City in 1918, the government passed an order-in-council allowing the military to prosecute individuals by court martial, a policy that was disturbingly reminiscent of the post-rebellion Lawless Aggression Act . Another order-in-council made it a crime for women with a venereal disease to have sexual intercourse (or to solicit) with any member of the armed forces. Any woman who violated this order could be forcibly detained for at minimum one week for a medical examination. And the government’s penchant for excessive measures did not end with the war. Even for a nation traumatized by war, the federal government’s decision to expand the regulations governing internment— months after the war was over—was clearly unwarranted. The policy allowed any county or district court to intern an individual for no better reason than “a feeling of public apprehension entertained by the community.” The accused was barred from having legal counsel and did not even need to be at the hearing to be convicted. At least thirty-three men would be interned following the Winnipeg General Strike in 1919, and the internment camps remained open until 1920.
It turns out that the use of emergency powers between 1914 and 1919 was only a dress rehearsal. The state’s true capacity for repression was fully realized during the Second World War. The federal government reimposed the War Measures Act in 1939 and, under its authority, passed the Defence of Canada Regulations. These powers were quickly put to use. The government censored 325 newspapers and periodicals (compared to 184 during the First World War), banned more than thirty religious, social, ethnic, and political organizations, interned 2,423 Canadians (compared to 1,800 in England), arrested and summarily tried hundreds of people for speaking out against the war or distributing literature on behalf of banned organizations, and granted police the authority to arrest and detain individuals without charge or trial. Although the RCMP failed to secure approval for the power to arrest British citizens “likely” to incite unrest, the cabinet did pass an order authorizing RCMP officers to issue search warrants against illegal organizations.19 This was a remarkable departure from due process: RCMP officers could simply write their own warrants without seeking judicial approval.
Meanwhile, hundreds of German Canadians were arrested and detained on the grounds that they were probably Nazi sympathizers. Jehovah’s Witnesses were declared an illegal organization. Municipal and provincial governments “purged” suspected subversives by removing politicians from office or firing civil servants. The mayor of Montreal, Camille Houde, was interned without trial for four years because he refused to cooperate with a national manpower registry and criticized the government (the censors initially prohibited newspapers from publishing his statements, but the Montreal Gazette evaded the censors by having an MP read Houde’s speech into the minutes of the House of Commons). The Cabinet repeatedly passed orders-in-council banning any appeal to the courts. Police intimidation was also common: authorities could threaten people with warrantless searches or charge them under the regulations. Everyone was vulnerable: in one case, a doctor was interned because one of his patients was a Communist. War hysteria severely restricted free speech: universities discouraged criticism of the war effort, and even legislators feared they would be arrested if they criticized war policies. There were several cases involving imprisonment for public comments—for example, one man was sentenced to three months in jail for uttering “Chamberlain is as bad as Hitler” while drinking in a tavern. Another man, Samuel Levine, was jailed and then interned for renting a room to a man in possession of Communist literature. There was also a wide range of blatantly discriminatory practices. Jewish refugees were largely banned from entering the country. Only white men were allowed to join the air force until 1943 and the navy until 1944, and even after some racial minorities were permitted to enlist in the armed forces, all Chinese and Japanese men were banned from serving in the air force and navy.
Bouthillier, Guy, and Édouard Cloutier, eds. Trudeau’s Darkest Hour: War Measures in Time of Peace, October 1970. Montreal: Baraka Books, 2010.
Clément, Dominique. “The October Crisis of 1970: Human Rights Abuses under the War Measures Act.” Journal of Canadian Studies 42, no. 2 (2008): 160-86.
Greenwood, F. Murray. “The Drafting and Passage of the War Measures Act in 1914 and 1927: Object Lessons in the Need for Vigilance.” In Canadian Perspectives on Law & Society: Issues in Legal History, edited by W. Wesley Pue and Barry Wright, 291-327. Ottawa: Carleton University Press, 1988.
Holthuis, Annemieke E. “The Emergencies Act, the Canadian Charter of Rights and Freedoms, and International Law: The Protection of Human Rights in States of Emergency.” LLM, McGill University, 1991.
Lindsay, John. “The Power to React: Review and Discussion of Canada’s Emergency Measures Legislation.” The International Journal of Human Rights 18, no. 2 (2014): 159-77.
Macdonald, David, and Hugh Segal, eds. Strong and Free: A Response to the War Measures Act. Toronto: New Press, 1970.
MacLennan, Christopher. Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929-1960. Montreal: McGill-Queen’s University Press, 2003.
Scott, Charles. “The War Measures Act, S.6(5) and the Candian Bill of Rights.” Criminal Law Quarterly 13 (1970-1): 342-.
Whitaker, Reg. “Keeping up with the Neighbours? Canadian Responses to 9/11 in Historical and Comparative Context.” Osgoode Hall Law Journal 41, no. 2&3 (2003): 241-65.