Mr. Bud Bradley (Parliamentary Secretary to Minister of National Defence):
Mr. Speaker, last June, the Minister of National Defence (Mr. Beatty), the Minister responsible for emergency preparedness, tabled Bill C-77, the Emergencies Act, which will replace the War Measures Act legislation.
Since 1970, all Parties of the House have been on record as favouring new legislation to replace that archaic and abhorrent act. Nearly 18 years have elapsed since Canadians were promised a more enlightened approach for dealing with safety and security during national emergencies, and I am very gratified indeed to see how close we are now to fulfilling that promise.
It is time to ensure that the abuses of civil liberties committed against Japanese Canadians in World War II, and against Quebecers during the 1970 October crisis, will never happen again. Bill C-77 does this, and more.
April 25, 1988
I consider the October crisis a blot on our national conscience. As a political device the War Measures Act was tremendously effective. As an instrument for dispensing justice, it was not effective at all. We saw the disgraceful state of affairs where more than 450 Canadians were arrested and detained without charges being laid, and without being allowed to consult a lawyer. Of those people who were taken into custody, 439 were later released without being charged. To quote Ron Haggart and Aubrey Golden from their book Rumours of War:
They had been placed at the worst possible legal disadvantage, denied
information on what was alleged against them, denied counsel, interrogated
and then "tried" in someone's office in their absence.
Going back further in our history, the War Measures Act was legitimately invoked in 1939 to permit Canada to play its proper role during the Second World War. There is no doubt that during those six difficult years from 1939 to 1945, the men and women who served in Canada's Armed Forces, and the Canadians at home whose efforts supported them, brought honour to Canada and contributed in no small way to Canada's emergence as an independent nation deserving our pride and allegiance.
We must also look back with sadness and regret at one aspect of the use of the War Measures Act in that period. I refer, of course, to the displacement and internment of Canadian citizens of Japanese descent and the confiscation of their property. Without wishing to make judgments about the exigencies and pressures that faced the decision-makers at that time and which led to these measures, Canadians today can only look back on those events with a good deal of national shame. The Minister was determined to ensure that the legislation which replaced the War Measures Act would be abundantly clear on at least this point, that this sort of abuse of executive power could not recur.
The Minister was very aware last summer, when he presented the replacement to the War Measures Act in this House, that because of the past events to which I have just referred the legislation would be seen as much as a civil rights issue as a means for allowing the Government to act swiftly and effectively in national emergencies. We thought we had a well considered piece of legislation, but we also knew that this time we had to be absolutely sure to get it right. After 17 years it was simply too important to the country to do otherwise.
For this reason the Minister invited all Canadians to comment on the draft legislation. The Minister and I have been impressed enormously in the past month with the care and amount of time which individuals and organizations have devoted to examining this important piece of legislation. There is something special about a country whose citizens care so passionately for individual freedom that they will devote hours of thoughtful reflection to a proposed law which may never have to be invoked.
When the Minister spoke during second reading debate, he indicated that the Government had an open mind on the detailed provisions of the Bill and would welcome constructive suggestions aimed at ensuring that when finally passed it would be the best that we could produce by working together.
At this time I would like to express the Government's sincere appreciation and gratitude to the many witnesses who appeared before the legislative committee and presented briefs which were obviously the product of a good deal of intense thought, research, and study. I would also like to compliment my colleagues in this House of all Party persuasions who worked on the Bill and gave the committee the benefit of their thoughtfully considered views.
The Bill which is the product of the committee's deliberations, and which we are now proposing for third reading and passage by this House, is similar in appearance to the original Bill and is consistent with the principle of the Bill which we approved at second reading. However, I can assure you, Mr. Speaker, that it is very different in detail. It is a much improved Bill. The amendments which the committee developed and approved and which are incorporated in the Bill we now have before us are numerous. I would hesitate to try to count the number of individual changes. They cover some three dozen distinct areas.
A point of note is that my hon. friend, the Member for Brant (Mr. Blackburn), introduced 61 amendments. Forty-eight were either adopted or incorporated in a government amendment. I would like to thank him personally for the work that he has done on this piece of legislation.
All the amendments contributed to better meeting the objective which I stated earlier in debate, that we should produce a Bill which adequately equips the Government of Canada to meet its constitutional responsibilities to provide for the safety and security of Canadians during national emergencies but does so with the minimum encroachment on the rights and freedoms of individual Canadians. The Government must be given the authorities it needs to minimize human suffering during emergencies but the legislation giving these authorities must be carefully crafted to ensure that ordinary governmental powers are exceeded only to the extent that is absolutely necessary in the circumstances. I am impressed by the manner in which the legislative committee was able to adhere to these objectives and produce a vastly improved Bill.
The changes that have been made to the Bill fall into three general categories. First, there are those which add precision to the legal formulation of what the Government is empowered to do and in what circumstances it would be given these additional powers. In this category I would include changes to the definition of "national emergency" and the definitions of the four specific types of national emergency, as well as changes to many of the specific powers granted in each of the four main parts of the Act.
Second are the changes which tighten up and enhance the supervision of the Government's exercise of the special
April 25, 1988
authorities granted by the Act, supervisions which would be carried out both by the courts and by Parliament.
Finally, there are several changes which enhance the regime for providing redress to those individuals who, in the confusion and upheaval which inevitably would accompany a national emergency, might have suffered loss or injury as a result of measures taken by the Government in dealing with the emergency.
Without in any way intending to minimize the contributions made by any of the witnesses who appeared before the committee, I would like to single out three important Canadian organizations which gave very serious thought to this Bill and submitted briefs which were clearly the result of pooling the insight and experience of many individuals, people who are genuinely concerned about the impact that this important Bill would have on the future of Canada.
These three organizations are the Canadian Civil Liberties Association, the Canadian Bar Association, and the National Association of Japanese Canadians. A comparison of the recommendations in their briefs with the specific amendments incorporated into the Bill gives clear evidence of the contribution which these three organizations have made.
I would like to review in a little more detail some of the key amendments in each of the three categories to which I referred a moment ago. I referred earlier to the legacy of shame which we share because of the regrettable action taken against Japanese Canadians during World War II. Our legal advisors assured us that with the safeguards we had built into Bill C-77, coupled with the Canadian Charter of Rights and Freedoms and the complex legal structure which has been put in place to implement the Charter, we could be 99.9 per cent sure that no conceivable situation could arise in which Bill C-77 could be used to empower a future Government to do anything resembling what was done to the Japanese Canadians.
However, I am sure that all Members of this House will agree with me that 99.9 per cent is not good enough. We want to be 100 per cent sure on this point. Hence the Government proposed, and the committee adopted, an amendment which states clearly and unequivocally that Bill C-77 does not empower the Government to make orders or regulations providing for detention, imprisonment, or internment of Canadian citizens or landed immigrants on the basis of race, nationality or ethnic origin, colour, religion, sex, age, or mental or physical disability. When Bill C-77 is passed, Mr. Speaker, we will have removed the last vestige of the legal underpinnings to that regrettable episode of Canadian history.
As correctly pointed out by many of the witnesses who appeared before the committee and by others who have commented on this Bill, the question of definitions is crucial. These have been gone over very carefully and I am confident that the definitions now in the Bill state as accurately and as clearly as can be done the intended scope of the Act in each of its four parts.
The definition of "national emergency" as now formulated captures the four elements common to all the proposals put to the committee. It represents the distilled consensus of the collective wisdom of the highly qualified people whose advice we were fortunate to receive. The four elements incorporated in a new definition of national emergency are; first, the notion of urgency; second, the temporary character of the abnormal situation; third, the inadequacy of the normal legal framework; and finally, the presence of a serious threat, either to the security of the country as a whole, or to public safety in circumstances which exceed provincial capabilities.
To qualify as a national emergency, all four elements must be present. In addition, the situation must meet the more detailed characteristics of one of the four particular types of national emergency as defined in each of Parts I through IV, and only those powers relevant to that class of emergency will be available to the Government. All of the definitions of the four types of emergencies have been tightened up by amendments.
With regard to the particular powers, permit me to enumerate some of the more important changes that have been made to limit more precisely the scope of the powers: Travel restrictions in Part I are now confined to those necessary for the protection of the health and safety of individuals. Use of Part I to terminate a labour dispute is now specifically excluded. Part II powers over public assembly are now confined to assemblies that may be reasonably expected to lead to a breach of the peace. Part III, search and seizure powers, are now confined only to the narrow requirements related to enforcing laws dealing with the defence contracts in order to prevent abuses, such as profiteering. Censorship is now explicitly excluded in Part III powers. All powers of Part I through III are to be exercised in a way that will not unduly impair the ability of a province to deal with a provincial emergency; and the powers of all parts are to be exercised with a view to obtaining the maximum possible concerted action with the provinces.
Let me now turn to a second general category of amendments. Several important changes have been made to enhance the manner in which the Government's use of the Act will be overseen by the courts and by Parliament. Perhaps the most important of these is the change in wording in about 20 subsections to ensure that judgments made about the necessity for exceptional measures must now be based on "reasonable grounds" rather than the unqualified "opinion" of the Governor in Council. This change means that all important decisions by the Governor in Council relating to the invocation and use of the emergency power will be challengeable in the courts.
I cannot emphasize too strongly how important this new approach is to the assurance of full protection of fundamental rights and freedoms. The continued application of the Charter,
April 25, 1988
which is also assured by the Bill, coupled with the accountability of the Governor in Council inherent in this new wording, ensures that the fundamental freedoms of Canadians will be preserved as long as the nation, its institutions and its constitution are preserved.
In addition to this very basic change, a number of further amendments have been made to strengthen the parliamentary supervision, including the following: The sunset periods after which the powers will expire, unless renewed by Parliament, have been substantially reduced. All orders and regulations to be continued past the normal sunset period will have to be explicitly reconfirmed by Parliament. One House alone will be able to revoke a declaration of emergency at any time. Parliament will have a longer time to consider whether orders and regulations passed by the Governor in Council should be revoked, and will be able to reconsider any order or regulation at any time.
The all-Party Parliamentary Review Committee, which will be established whenever the Act is invoked, will keep the Government's use of its extraordinary powers under continuous review and will report to Parliament at least every 60 days. Whenever a declaration expires or is revoked, that is, when the emergency is over, a formal inquiry will be conducted. The number of MPs and Senators required to initiate a motion to revoke either a declaration or a particular order or regulation has been substantially reduced, and the time limits on debate of the motion have been removed. Orders and regulations passed by the Government will have to be tabled with much less delay.
Finally, let me comment briefly on the third category of amendment where the many changes made to the regime for compensation will add significantly to its effectiveness. Amendments include the following: The establishment of the right to reasonable compensation for commandeered services. The provision of reasonable compensation under Part V is now mandatory rather than discretionary. The appeal process in the compensation provisions is now mandatory and will allow the appeal judge to exceed the maximum compensation when to do otherwise would be unreasonable and unfair.
I think it is quite evident from this review of a selection of the amendments made by the legislative committee that it has most effectively and conscientiously acquitted its responsibilities and that Bill C-77 is much the better for its endeavours.
I said earlier that from the beginning we knew that the protection of basic rights in a national emergency would undoubtedly become the focus for public discussion of this Bill. Public discussion has, however, unfortunately led to some misunderstandings about the constitutional and legal protection of fundamental rights and freedoms in our country, both as it applies to normal times and as the protection is further strengthened in time of national emergency by provisions in Bill C-77.
The bulwark is the Canadian Charter of Rights and Freedoms, and Bill C-77 goes to considerable length to ensure
that the normal mechanisms for applying Charter protections will be upheld. The suggestion made by one of the witnesses that the Government could invoke the "notwithstanding" clause of Section 33 of the Charter, using an Order in Council pursuant to this Act, is completely without foundation. The Charter unequivocably states that to use the notwithstanding clause to override certain Charter rights, Parliament must declare the override expressly in an Act of Parliament. Bill C-77 contains no such provision. There is no doubt whatsoever that any attempt to use Section 33 through an Order in Council, should any future government be so ill advised as to try it, would be struck down by the courts.
Any limitation to charter rights a government might consider necessary in a national emergency would be challengeable on two counts. First, under Bill C-77 as I indicated earlier, the Governor in Council could be challenged in court to demonstrate that there are reasonable grounds for the necessity of the measure. Second, under Section 1 of the Charter, the Government could be challenged to demonstrate that the limitations were "reasonable and demonstrably justifiable in a free and democratic society." It is difficult to imagine, Mr. Speaker, a Government going ahead with measures if there were any doubts about its ability to justify its actions in court.
There are additional protections in the system which have been put in place to ensure that all orders and regulations are consistent with the Charter, whether they are passed in normal times or in an emergency. The Statutory Instruments Act, the Canadian Bill of Rights and the Department of Justice Act have been amended, and I might point out that these amendments were made by the current Parliament to place special responsibilities on the Minister of Justice to examine every regulation and every Bill in order to ascertain whether there are any inconsistencies with the Charter and to report such inconsistency to the House of Commons at the earliest opportunity. These responsibilities of the Minister of Justice are, in a sense, separate from his role as a member of Cabinet and confer on him a quasi-judicial role for which he is responsible directly to Parliament.
To carry out this responsibility the Minister, of course, relies on the highly qualified support of the law officers of the Crown. To suggest that a Government might attempt, for some obscure motives of expediency, to pass regulations which were knowingly inconsistent with the Charter, is to impugn the integrity not only of a Minister of the Crown but also of a major and extremely important branch of the Public Service. The emergence of such an eventuality is beyond belief, Mr. Speaker.
Much has been made of mention in this Bill of the possibility of secret orders or regulations. No one has questioned that in very rare and unusual circumstances there may possibly be a need for secrecy to protect the purpose of the action being taken. However, Bill C-77 is not the source of the authority to make secret orders or regulations. This authority stems from
April 25, 1988
the Statutory Instruments Act and is also available in normal times.
There is nothing in Bill C-77 which extends or alters in any way the restrictions on the use of secret orders inherent in the Statutory Instruments Act and its associated regulations. Quite the contrary. What Bill C-77 does do, Mr. Speaker, is to introduce a means of opening up such matters to scrutiny by Parliament, not only by requiring that all secret orders be referred to a parliamentary committee, but also by empowering that committee to revoke or amend such orders. Thus, Bill C-77 provides additional protection, not less, against abuse of secret orders in a national emergency.
Finally, Mr. Speaker, I should like to say a word about the confusion that has arisen concerning the requirement for warrants for search and seizure.
Protection against unreasonable search or seizure is a Charter right, and this has been interpreted by the Supreme Court to imply that a warrant is always required except in administrative inspections or in certain exigent circumstances where there is a physical impossibility of obtaining a warrant in time and where not to act would unreasonably thwart the administration of justice.
Any Act of Parliament that provided for a warrantless search or seizure would thus be inconsistent with the Charter, and of course Bill C-77 does not include any such provision.
The way in which the members of the legislative committee, those who made representations before it, and individual Canadians in general have responded to this legislation in terms of suggestions for amendment and fine tuning, has been most impressive. We have tried to accommodate all points of view as best we could.
Some things are above politics, Mr. Speaker. I think Bill C-77 falls into that category. All Canadians, wherever they live, whatever their political affiliation, whatever their occupation, have a vested interest in suitable emergency powers legislation, legislation that can meet, swiftly and effectively, any national emergency that may confront us.
We have seen some old wounds reopened in recent weeks. The publication of Mr. Jamieson's diary, with its allegations of political expediency, along with the public representations of the National Association of Japanese Canadians remind us of the horrors of the events of October 1970 and the early 1940s.
Those events are now behind us. Let us not waste more time by engaging in unfruitful accusations. The important thing now is to get on with it, and to see that such events cannot recur.
The Bill the Minister is recommending today for third reading represents the culmination of a considerable effort on the part of Canadian men and women to try to accommodate, first and foremost, the rights of their fellow citizens, while
giving Government the tools it needs to ensure the safety and security of our citizenry in a national crisis.
I trust, Mr. Speaker, that the other place will view Bill C-77 as an honest attempt on the part of those of us who have the privilege of serving Canadians in Parliament to achieve that end and thus worthy of both their careful consideration and expeditious treatment.
Topic: GOVERNMENT ORDERS
Subtopic: EMERGENCIES ACT