As the FLQ crisis wound down at the end of 1970, members of Parliament were sure of one thing – they had to get rid of the War Measures Act. A valuable tool in two world wars, the venerable WMA had proved to be a too-blunt, too-powerful measure for peacetime use – even for use against the terrorists of the separatist Front de Libération du Québec. It was, as NDP leader Tommy Douglas put it in one of the finest speeches of his principled career, “using a sledgehammer to crack a peanut, overkill on a gargantuan scale…. Today the prime minister holds more power in his hands than any prime minister in the peacetime history of Canada.”
But what to replace the WMA with? It had to be a law that could be rolled out quickly and deployed effectively in time of crisis, a measure that would allow the federal government to assume exceptional authority in the event of war, and that would enable it to augment its political and policing powers in times of national or regional crisis, but that would not allow it take one iota more emergency power than strictly necessary in a specific crisis. And the new law had to have safeguards to ensure that no human rights would be infringed during the exercise of emergency authority.
It was a tall order, but the MPs set off down what proved to be a long road. They listened to the public, received briefs, consulted constitutional scholars and law enforcement experts, pored over opinion polls, and debated and worried among themselves. How could they protect the country from a future prime minister, unscrupulous or power mad, who might try to use emergency powers to make him/herself a dictator? That would never do.
Years passed, governments changed, replacing the WMA lost priority, and for long stretches nothing happened. Ten years down the road, constitutional reform intruded. Britain dusted off the 1867 BNA act and shipped it to Ottawa, where, after tortuous federal-provincial negotiations, the Charter of Rights and Freedoms was adopted, and the two documents were packaged in the old-new Constitution of Canada 1982.
The road to a new emergencies law took an abrupt turn, or two turns. The constitutional negotiations had taught provincial governments that, if they raised their game, they could exert real power at the national level, beat back federal intrusions into their provincial jurisdictions, and be treated as partner governments instead of subordinate ones. For better or worse, their bold new clout got them the notwithstanding clause, which the feds still hate.
Second turn: the entrenchment of individual rights in the Charter gave those rights the force of constitutional law; governments could no longer issue cabinet orders or amend statutes to override or circumvent important rights. Suddenly, protection of rights became hugely important in the still-aborning replacement law; its focus shifted from extinguishing evil forces and apprehending dangerous perpetrators to preventing police and political leaders from infringing on citizens’ rights.
The road to WMA reform finally came to an end in July 1988 when Bill C-77, the Emergencies Act, became law.
It is a useless law.
Useless, meaning it does not do anything to help government or law enforcement to deal with the four categories of emergency cited in the act – including “public order emergencies,” like the occupation of Ottawa and the blockade of the Ambassador Bridge. It is actually worse than useless because it imposes layers of conditions and federal-provincial consultation that must be surmounted before the authorities can deal with mass demonstrations in which thugs, anarchists, racists, western separatists and other foul-mouthed freedom fighters demand that our duly elected government be hurled from office, forthwith.
We’ll examine these obstacles and the real problem – policing – in a future column.
Cambridge resident Geoffrey Stevens is a former Ottawa columnist and managing editor of the Globe and Mail. He is the co-author of Flora! A Woman in a Man’s World. He welcomes comments at geoffstevens40@gmail.com