I found the War Measures Act by going to the University of British Columbia Law Library and asking the librarian for help. I asked if he could help me find the act, and he proceeded to lead me to the stacks where it was located. In this report, I will examine the contents of the act- specifically the balance of power between the Governor in Council and Parliament, as well as the historiographical context surrounding its creation.
The War Measures Act is based in World War One. World War One started surrounding the various alliances present in Europe at the time. Serbia, which was ruled by Austria-Hungary, was thrown into chaos by the assassination of Archduke Franz Ferdinand, and Russia, an ally of Serbia came to it’s defence. France was allied to Russia, thus the French came to Russia’s defence. Great Britain was also allied to Russia and France, in addition to promising to defend Belgium’s neutrality. “When Germany invaded Belgium, Britain declared war.” (1.) Now, Canada, which was still ruled politically by Great Britain, was automatically committed to the defense of Great Britain.
In preparation for the war, Parliament convened and unanimously passed the War Measures Act, which was a statute declaring that the Prime Minister’s Cabinet had the right to ‘suspend the civil liberties of anyone suspected of collaborating with the enemy and to regulate any area of society deemed essential for the conduct of the war.’ (2.) Once the act had gone through Parliament, it gave the federal cabinet an incredible amount of power. Upon close examination, however, Parliament did retain the ability to impose itself upon these powers, as will be explored.
The War Measures Act begins with a clause specifying the conditions of war. It opens with the phrase: ‘The issue of a proclamation by Her Majesty or under the authority of the Governor in Council shall be conclusive evidence that war, invasion or insurrection, real or apprehend, exists…or…[continues] until by the issue of a further proclamation [it has ended]’. (3.)
It is interesting to note that it is not by declaration of the Canadian Parliament that war is declared to have begun or ended, but by the Queen or the Governor in Council. Once the act had gone through Parliament, it gave the federal cabinet an incredible amount of power. This is important because at the time the act was passed, the Governor in Council was the Queen’s representative in Canada. This political institution linked Great Britain with Canada, which is subsequently the political reason that Canada was committed to the defense of Great Britain and her allies. (4.)
It is in this brief section that wide discretionary powers were granted, and when one reviews the powers in conjunction with the last statement of the subsection, the extent to which the federal cabinet were given control becomes clear. It is not clearly stated what the stipulations are which would specify whether war, invasion or insurrection exists, merely that the Governor in Council has the authority by proclamation to declare it so. Once this proclamation has been issued, only a further proclamation by the Governor in Council can declare the war, invasion or insurrection as being over.
The powers of the Governor in Council (Governor General) explicitly specify that it had the authority to make enactments necessary for the ‘security, defence, peace, order and welfare of Canada’, The special powers of the Governor in Council ‘extend to all matters coming within the classes of subjects hereinafter inumerated.’ These include: censorship and control of communications; arrest, detention, exclusion and deportation; control of the waters and movement of vessels; transportation by land, air or water as well as persons or things; trading, exportation, importation, production and manufacture; and control over property and its use. (5.)
The act then puts ‘all orders and regulations made under this section [as having] the force of law’. The Governor in Council is given the authority to enforce them, ‘as [it] may prescribe’ as well as the powers to ‘vary, extend or revoke’. (6.) Now, any law which is put into effect must have some sort of punishment accrued to it, and yet again, the Governor in Council is given complete discretion in this matter. ‘The Governor in Council may prescribe the punishment that may be imposed for contraventions of orders and regulations made under this Act,’. (7.)
Under section 6 of the War Measures Act, Parliament retained the right to check the federal government. In 6.3 it states that where there has been a proclamation pursuant to subsection 2, that the proclamation shall be debated, and ‘if both Houses of Parliament resolve that the proclamation be revoked, it ceases to be in effect.’ (8.) Furthermore, sections 3, 4, 5 – the force of law, imposition of punishment and no release of aliens – ‘cease to be in force until they are brought into force by a further proclamation.’ (9.) This may seem redundant, although it is not, because for the first time in the act, there are stipulations which are put on the Governor in Council. Another proclamation must be made ‘without prejudice to the previous operation of those sections; anything done or suffered under them; or any offence committed or punishment incurred.’ (10.) This is to say that the previous effects of the proclamation must not be used as evidence that a further proclamation should be announced. Further to these stipulations, the act must not in any way ‘abrogate, abridge or infringe’ upon the Canadian Bill of Rights. (11.)
In conclusion, it is important to make mention of the historiographical context in which this act was written. At the start of World War One, the world was changing dramatically. The Industrial Revolution had altered the position of Great Britain in international relations. With the advent of the industrialization of countries which were previously agricultural, Great Britain began to meet competition on the world economic market. (12.) A wave of protectionism arose in which Great Britain was not allowed to participate in free trade with most other European Countries. This had the effect of stimulating interest in Great Britain’s Commonwealth as regions which could supply raw materials for domestic industries. (13.) Thus, at the start of the war, Great Britain, and subsequently Canada, were forced to draw upon their collective resources to fund the war effort. The exigencies under which the War Measures Act was written could therefore be viewed as a response to the international climate which Canada, as part of the British Commonwealth, were faced with.
The Powers of the Governor in Council- which are the substance of the act, could be interpreted as an exertion of control over the Canadian domestic realm. Censorship and control of communications, as well as the measures of deportation, were a response to the increased modes of communication made possible by advances in technology. Similarly, the control of points of entry and transport of persons and things were measures to ensure Great Britain’s control over its dominion. The political leaders of Canada at this time, both French (led by Henri Bourassa) and English (led by Wilfred Laurier) were in support of this. Henri Bourassa ‘initially supported Canadian participation, seeing the survival of France and Britain as vital to Canada.’ (14.) English Canadians were naturally in support of Great Britain, and again, they were bound to Britain by virtue of their political ties.