- What ever happened to the emergencies act?
John Lorinc
National Post
With the Liberal government pushing hard to pass a sweeping
anti-terrorism act that will dramatically change Canadian policing
and
intelligence activity for the foreseeable future, no one in Ottawa
seems to
remember that 13 years ago, the House of Commons enacted a law
allowing the federal government to invoke tough, but temporary,
measures to deal with precisely the sort of emergency situation
that has
confronted the country since Sept. 11.
The new American anti-terrorism bill, signed swiftly into law
yesterday by
U.S. president George W. Bush after receiving near unanimous
Congressional approval, contains so-called sunset provisions on
stepped-up surveillance and detention powers. The law requires
Congress
to renew the legislation before it expires on Dec. 31, 2005.
All this high-pressure lawmaking stands in stark contrast to what
transpired in 1987, when Perrin Beatty, Canada's former defense
minister,
introduced a bill in the House of Commons to replace the War Measures
Act. He wanted the debate over the new Emergencies Act to be held
in an
atmosphere in which level heads prevailed.
The NDP's defence critic, Derek Blackburn, wholeheartedly agreed.
He
recounted how the draconian War Measures Act, under which civil
rights
were severely curtailed across the country during the 1970 October
Crisis
in Quebec, had been hastily enacted in the opening months of the
First
World War.
"Let us not repeat this fatal error again," Mr. Blackburn
said. "We should
debate in an air of calm and reason. There is no emergency this
time. We
have time to consider what we are setting in place for future
generations."
What Parliament came up with was a piece of legislation intended
to allow
the federal government to use special -- but time- limited --
measures to
deal with disasters ranging from earthquakes to acts of war.
That debate took place just three years after the Air India disaster,
and
merely months after a tornado had ripped through downtown Edmonton,
killing 26 people. Politicians at the time were also considering
reparations
for Japanese Canadians wrongly interned for security reasons during
the
Second World War.
Reflecting this political context, the Emergencies Act requires
the federal
government to consult with the provinces before declaring an emergency,
and it provides formulas for compensating anyone who suffers losses
as a
result.
If invoked to deal with such crises as natural disasters, war
or clandestine
activities by a foreign power, the Emergencies Act permits the
federal
government to take a wide range of steps, from regulating public
meetings
and restricting travel to taking command of essential utilities
and
industries. The law also gives the government extra search and
seizure
powers, and, in the case of wars, provides it with broad discretion
to
authorize "such orders or regulations as the Governor in
Council believes,
on reasonable grounds, are necessary or advisable for dealing
with the
emergency." That's legal language permitting the temporary
authorization
of special policing powers.
But the act also contains the ultimate safeguard against tyranny:
The
Cabinet is only permitted to invoke the special powers for up
to 120 days.
An indefinite number of extensions are permitted, but the government
has
to renew its special measures every four months.
The curious thing is that the current Liberal government --facing,
since
Sept. 11, precisely the scenario envisioned in that law -- has
chosen to
ignore completely the Emergencies Act, opting instead to ram through
omnibus anti-terrorism legislation known as Bill C-36.
The added irony is that the government's current omnibus bill
echoes the
over-broad powers contained in the dreaded War Measures Act. So
far,
the government has resisted imposing time limits, or "sunset
clauses," on
the special policing and investigation powers being granted to
law
enforcement officials in the name of fighting terrorism. Instead,
the bill only
states that these sweeping new rules will be reviewed after three
years
by a parliamentary committee, which must issue a report within
a year. But
there's nothing in the proposed legislation stipulating how the
government should respond after the committee has come forward
with
recommendations.
In an interview this week, Mr. Beatty, who now heads the Alliance
of
Canadian Manufacturers and Exporters, said that although he considers
the passage of the Emergencies Act to have been the high point
of his
political career, he is prepared to give the Liberal government
the benefit
of the doubt with its chosen approach. "My guess is that
we're dealing
with something that is longer term than what was anticipated when
the
Emergencies Act was brought down."
Still, he added, the time limits in that legislation were the
key to defending
civil liberties, and "should be incorporated into the anti-terrorism
bill to
ensure there are checks and balances."
Alan Borovoy, head of the Canadian Civil Liberties Association,
agrees.
"Only if the bill automatically lapses will these measures
enjoy the public
confidence that's important here." Otherwise, he warns, bureaucratic
inertia will prevent the government from taking steps to scale
back these
new policing and investigation powers. "This is being enacted
as though it
was a permanent amendment to the Criminal Code, although it's
being
justified as a response to a particular crisis."
For historian Jack Granatstein, the government is behaving as
it has
always done: "Whenever we fought wars in the past, we gave
the central
government sweeping powers." But he regards the concept of
a sunset
clause as making "eminently good sense ... It doesn't bother
me that
they're putting constraints on civil liberties. It bothers me
that they won't
say when they'll give those liberties back."
During the past week, both Anne McLellan, the Minister of Justice,
and
Jean Chrétien, the Prime Minister, have waffled on the
topic of time limits
for the anti-terrorism law. The reasons may have something to
do with the
political background of the Emergencies Act itself, and the government's
own record on fighting international terrorism.
Former prime minister Brian Mulroney first promised to repeal
the War
Measures Act in 1985. During the 1987 debate, the Liberal opposition
was
headed by John Turner, who had been the minister of justice during
the
October Crisis.
Liberal MPs contributed little to the debate, relegating themselves
to the
task of defending Pierre Trudeau's historic decision to send in
the army
and suspend civil liberties.
Since the mid-1990s, there has been a curious gap between political
claims about Canada's role in fighting global terrorism and stern
warnings
from the Canadian Security Intelligence Service (CSIS) about the
growing
presence of terrorist groups operating within Canada.
During March, 1998, the government appointed a Special Senate
Committee on Security and Intelligence to examine Canada's ability
to deal
with 1990s-style terrorism. Headed by Conservative Senator William
Kelly,
it was the third such parliamentary investigation in a decade.
In January, 1999, the committee came back with dozens of
recommendations, including improved federal-provincial security
co-
ordination, changes to the immigration and CSIS acts, expanded
resources
for refugee tracking and changes to the Criminal Code so investigators
could track "cyber attacks" by gaining legal access
to encryption codes.
The report also noted security and intelligence spending in Canada
had
dropped by more than 40% in constant dollars during the 1990s.
The committee's key recommendation, however, was that the government
should be "re-thinking" the current definition of "terrorist."
The committee
said that in the past, terrorist acts had been treated simply
as violent
crimes;the law contained no specific reference to political, religious
or
ideological motives. It urged the government to define terrorism
as a crime
unto itself.
Finally, Mr. Kelly proposed that Parliament establish a standing
committee
on security and intelligence issues.
In his response to the report, Lawrence MacAulay, the Solicitor-General,
said the government would review the immigration and refugee programs,
boost security training and spend $15-million to deploy RCMP officers
at
airports. But that was all.
What is revealing about the government's current anti- terrorism
measures is that they seem to go well beyond what the Kelly committee
recommended. The anti-terrorist bill now before the House provides
for
changes to the Income Tax Act to shut down terrorist fundraising
schemes
-- something the Prime Minister first promised as far back as
five years
ago. And the bill does attempt to define terrorism, as the committee
urged.
But C-36 goes much further, proposing dramatic changes to allow
"preventative" arrests, sweeping wiretap surveillance
powers and
heightened restrictions on the disclosure of government records,
in both
the courts and through the federal access to information process.
There
will also be new rules permitting the government to shut down
Internet
sites carrying hate propaganda. None of these measures figured
in the
Kelly committee's recommendations.
There's little doubt the Canadian public is willing to approve
tough
measures to contain the threat of terrorism. The larger question,
however,
is whether the government -- by ignoring the Emergencies Act and
thus
the lessons of the October Crisis -- is doomed to repeat the mistakes
of
recent Canadian history by hastily pushing through laws that reflect
the
tension of the moment, but leave law-enforcement agencies with
far more
power than they may need once this crisis has passed.
Mr. Granatstein says such conclusions may be overly simplistic.
In his view,
the special powers in Perrin Beatty's Emergencies Act were unrealistically
limited by the checks and balances created to prevent a repeat
of 1970.
"So there's a double historical lesson," he says.
"One is that you overreact in times of war, and the other
is that you
under-react in times of peace."