The Institutional Framework in Times of Emergency

• Author: Craig Forcese
• Profession: Faculty of Law, Common Law. University of Ottawa
• Pages: 114-137

CHAPTER 4

THE INSTITUTIONAL

FR A MEWORK IN TIMES

OF EMERGENCY

National security t hreats should not be confused with states of emer-

gency. In Canada, very few thre ats reach the magnitude of an emer-

gency, and as a consequence national security law is generally the

regular law of the land and not a special corpus of rules applicable only

in extraordi nary circumstances. The 2001 Anti-terrorism Act1 is a case

in point: legislat ion promulgated precipitously after the events of 9/11,

but enacted pursuant to the regular powers and procedures of Parlia-

ment and intended to be mostly permanent.2

There will, however, be threats so far in exce ss of the normal state

of affai rs and so immediate th at the state w ill treat them as emergen-

cies. Such a st ate of emergency may change the institutional structure

within which national security law operates. As noted in prior chapters,

democracies are built on a system of checks and balances that constrain

the exercise of power. Yet, emergencies often, if not usually, require the

exe rcis e of power. Moreover, this power must be implemented sw iftly

and with resolution. While law applicable in normal situations diffuses

power, emergencies concentrate it.

In the 1970 October Crisis, for example, the federal Cabinet debated

whether to rely on executive powers under the War Measures Act3 to au-

1 S.C. 2001, c. 41.

2 For a discuss ion on this point, see Application u nder s. 83.28 of the Criminal Code

(Re), [2004] 2 S.C.R. 248 at para. 39, Iacobucci & A rbour JJ.

3 R.S.C. 1970, c. 288 (now repealed).

114

The Institution al Framework in Times of Emergency 115

thorize the detention of suspects in Quebec or to enact special legisla-

tion.4 Then Justice Minister John Turner urged recourse to Parliament,

but noted that with letters from the politica l and police authorities in

Quebec, the government could proclaim the War Measures Act, render-

ing unusual police raids and detentions legal. The government could

then go to Parliament asking it to approve further, more speciali zed

legislat ion.5 In other words, the executive branch could exercise pow-

ers im mediately, leaving the potential del ays as sociated with the par-

liamentary process to another day.6 In the end, Cabinet chose to rely on

the War Measures Act, authorizing extraordin ary police powers.

Canada learned from the October Crisis that during politica l emer-

gencies, the executive branch is typically strengt hened at the expense

of the legi slative and judici al branches. Urgency tends to trump sober

second thought, and the rule of law may be su spended for a perceived

greater good. “Society,” argued Prime Minister Pierre Trudeau three

days before the War Measures Act was invoked, “must take every means

at its disposal to defend itself against the emergence of a parallel power

which def‌ies the elected power in this country.”7

This chapter takes up the issue of emergencies and their impact

on the democratic institutional structure and regular law of Canada.

It examines, f‌irst, the concept of emergencies and the challenges they

present to t he rule of law and conventional democratic order. Second,

it looks at emergencies as a const raint on democracy a nd civil and hu-

man rights in international law. It then examines the extent to which

Canadian const itutional and statutory law permit similar abrogations.

4 “The FLQ Situation,” RG2, Priv y Council Off‌ice, Series A-5-a, vol. 6359 (15

October 1970; afternoon se ssion) at 5.

5 See discu ssion ibid. at 6. For an historical r eview of emergency law in Can ada

and its use, se e Martin Robert, “Notes on Eme rgency Powers in Canada” (2005)

54 U.N.B.L.J. 161.

6 In fact, thes e fears of delays in part ex plain the government’s ulti mate decision

to invoke the War Measures Act. See “The F LQ Situation,”ibid. at 6 for Prime

Minister Trude au explaining that t here was no way legislation could b e put

through all it s stages to authorize action b efore the next morning.

7 Pierre Elliot t Trudeau, inter view by CBC-TV reporter Tim Ral fe, 13 October

1970, reprinted in J.R. Colombo, Famous La sting Words (Vancouver: Douglas &

McIntyre, 20 00) at 376.