State Security and Public Order

• Author: Robert Martin
• Profession: Faculty of Law The University of Western Ontario
• Pages: 55-76

Limitations on freedom of expression may be imposed by the state to

achieve some purpose peculiar to the state. These limitations include

emergency powers and the control of sensitive information.

A. Emergency Powers

Emergency powers are an anomalous phenomenon in any constitu-

tional democracy. As we have seen, the basic principle of constitution-

al democracy is that the state is bound by the constitution. That is the

rule of law principle. Just as each individual has no choice but to obey

the law, so the state is obliged to act within the constitution. We have

long since abandoned the idea that the state can do whatever it likes

simply because it is the state. The very notion of emergency powers is

anomalous because it posits that in times of national crisis or national

emergency the state may step outside the constitution. The state may

do things in a time of national emergency which it would not be per-

mitted to do in normal times. The justification is that in extreme cir-

cumstances the state can take extreme measures to ensure its own

existence. There is a useful analogy between the notion of emergency

powers as far as the state is concerned and the defence of self-defence

in criminal law. The ordinary rule of the criminal law is “Thou shall not

kill.” However, self-defence has always recognized an important excep-

55

State Security and

Public Order

chapter 2

tion to the rule that one person may not take another’s life. That excep-

tion arises when one individual is directly threatening to kill another.

To preserve her own life, that individual may lawfully kill the person

who was threatening her life. Under extreme circumstances, then, an

individual may lawfully do something that is prohibited under normal

circumstances. The justification is, once again, found in the extreme

circumstances.

What do states most commonly seek to do during states of emer-

gency? First, they give themselves the power to arbitrarily arrest and

detain people, to arrest people without charges and hold them without

trial. Second, they impose censorship.

1) The War Measures Act

In Canada, emergency powers were found for a long time in a federal

statute called the War Measures Act.1The statute was first enacted in

August 1914 to give the national government the powers it believed to

be necessary to prosecute the war. The War Measures Act, although sub-

stantially amended after the First World War, remained part of Canadi-

an law from 1914 to 1988. The important thing to remember about it,

however, was that, unlike most statutes, the War Measures Act was not

normally in operation. It was law throughout those years, but remained

dormant in ordinary times. It came into operation only when it was

invoked by a proclamation issued by the Governor General. The Act

was invoked on three separate occasions: immediately after its passage

in 1914; in 1939 on the outbreak of the Second World War; and once

in peacetime by the government of Pierre Trudeau in October 1970.

What actually happened with the War Measures Act? The mecha-

nism was a simple one. Once the Act had been proclaimed, plenary

law-making authority was transferred from Parliament to the Governor

in Council — that is, to the federal cabinet. Under the Act Canada was

transformed from a parliamentary democracy into an executive dicta-

torship. The Cabinet was given a power, which was practically limit-

less, to make regulations having the force of law. The operative part of

the Act was section 3 which, when stripped of its extra words, said:

“The Governor in Council may do … such … things … as he may …

deem necessary.” The legal authority to do such things as are deemed

necessary is an authority pretty much without limit. During both world

wars Canada was largely ruled by orders in council made under the

War Measures Act. There were literally thousands of them, dealing with

56 Media Law

1 S.C. 1915, c. 2.