The Evolution of the War Measures Act.

• Author: Parcasio, Marjun
• Position: Special Report: Emergencies and the Law

"We are living in extraordinary times," opined Anglin J in Re Gray (1918) 57 SCR 150, "which necessitate the taking of extraordinary measures." It was 1918, the final year of the First World War, and the extraordinary measures at issue were powers exercised by the government pursuant to the federal War Measures Act, 1914 (5 George V, c. 2) cancelling Mr. Gray's exemption from military service and resulting in his arrest for refusing to report for duty. The War Measures Act set out Canada's initial legislative framework on emergencies, and Mr. Gray found himself unsuccessful challenging the government's exercise of the sweeping powers granted under the Act. Despite its generally limited use, the War Measures Act's invocation over the years has been highly controversial and reflects some of the darker episodes in Canadian history.

The War Measures Act

By virtue of Canada's status as a dominion in the British Empire, Great Britain's entry into the war on August 4, 1914 also resulted in a state of war existing between Canada and Germany. Within weeks, the War Measures Act passed quickly through Parliament with widespread support and was adopted on August 22, 1914. The Act applied "during war, invasion, or insurrection, real or apprehended" and the powers it conferred on the government (via the authority of the Governor in Council) were incredibly wide in scope. Section 6 of the Act gave the government the power to:

"[...] do and authorize such acts and things, and to make from time to time such orders and regulations, as he may by reason of the existence of real or apprehended war, invasion or insurrection deem necessary or advisable for the security, defence, peace order and welfare of Canada." This included, but was not limited to:

* censorship of publications;

* arrest, detention and deportation of individuals; and

* appropriation of property.

In just a couple of short paragraphs, the Act delegated powers normally exercised by the federal Parliament, with all its inbuilt means of scrutiny and review, to the executive, or cabinet. It also affected the constitutional division of powers between the federal and provincial branches of government: certain enumerated powers (such property and civil rights) within the purview of the provinces were effectively transferred to the federal government. This concentration of power resulted in what some term a "constitutional dictatorship" for the period during which the state of emergency continued to...