Prior to August 4th, 1914, the date when Canada entered that fateful “war to end all wars”, a vigilant Parliament, a diverse array of unwritten civil rights, and an independent judiciary promised to shield the new Dominion from the horrible excesses of authoritarian rule1 (Smith, 1969). Within 15 days Minister of Justice C.J. Doherty would lament Canada’s entrapment in a situation where “laws, made for the general welfare in times of peace,” failed to “give clear legal authority for […] the measures of the very first necessity (Carruthers, 1978: 57).2” Although the basis for the federal emergency power sprung from the BNAA’s “peace, order, and good Government clause” (Marx, 1970: 56), many of Canada’s initial steps in response to Imperial Parliament’s declaration of war nonetheless possessed an ambiguous legal status.3 Canada’s 5 August 1914 declaration of war and the formation of the Canadian Expeditionary Force, for example, stood as “extra-legal” actions in need of legal sanction.

 

The infamous War Measures Act (hereafter, WMA), drafted in a mere ten days, received Royal Assent three days after it was introduced to the House of Commons on 19 August 1914 where it was greeted with the overwhelming support of both parties4 (Smith, 1969; Carruthers, 1978; Peppin, 1993). By endowing the executive with a broad license to virtually unlimited discretionary authority to respond to the war, the WMA not only sealed the legal abyss generated by the explosive events of 4 August 1914. In time, it shattered the facade of Canada’s parliamentary system of government exposing the skeletal structure of constitutional democracy and its secret pact with authoritarianism.

 

The WMA empowered the sovereign (i.e., the monarch or Governor in Council) to conclusively proclaim the existence of a “war, invasion, or insurrection”, “real or apprehended”, a state of emergency which was said to exist until the sovereign declared otherwise (section 4). Following this proclamation, the Governor in Council was invested with broad discretionary power to do almost anything he believed would be necessary or prudent to help terminate the emergency (Preamble and Section 6). In order to safeguard “the security, defence, peace, order and welfare of Canada”, the Governor in Council was empowered to rule through decree via orders in council which were to “have the force of law” (Section 3) for the duration of the emergency (Section 6) and to determine the penalties for any violations of such decrees made under the WMA (Section 10). Under the WMA, the Governor in Council could share these broad powers with agents of the state (i.e., courts, officers, and authorities) (Section 3). These agents were similarly licensed to arbitrarily enact and/or enforce the Governor in Council’s exceptional powers. The WMA also legalized the expansion of these arbitrary powers which came to encompass a wide range of jurisdictional areas normally possessed by the provincial and/or central governments5 (Preamble and Section 6). Consequently, the Governor in Council and his delegates acquired absolute authority and ruled by decree over  “communication and the means of communication” (6[a]); arrest, detention or deportation (6[b]); ports (6[c]) and transportation (6 [d]); various aspects of commerce (6 [e]); and property rights (6[f]). Furthermore, where an individual was held for deportation or arrested and/or detained as an alien enemy (actual or suspected), the WMA empowered the Minister of Justice with the task of deciding whether they would be released or tried (Section 11). The WMA also sanctioned the arbitrary seizure and appropriation of “any property” (Section 7) such as ships, goods, wares or merchandise (Section 8).  Where such property was seized or appropriated the appropriate compensation due, if any, was to be determined by a delegate of the court of the province where the claim arose (Section 7). Finally, the WMA stipulated that “war has continuously existed” since 4 August 1914 (Section 5), retroactively legalized the extra-legal actions taken following Britain’s proclamation of war (Section 2) and thereby authorized rule by decree. By temporarily elevating the executive branch of government above Parliament, the WMA quite literally revolutionized Canada’s existing constitutional order as a result (Smith, 1969; Scheppele, 2006).

 
In order to justify the WMA, intentionally drafted to be of a “blanket character6” so as to facilitate the greatest possible extension of executive powers during the war, C.J. Doherty asked Canadians to trust that “this open-ended devolution of legislative power to the executive” (Greenwood, 1998: 292) “would depart as little as possible from the rule of law” governing Canada in “normal conditions”  (Smith, 1969: 430; Carruthers, 1978). One could speculate that Canada’s lack of precedent for emergency powers; the complete silence of the media, the official opposition, and the courts; or the general hysteria of war (Smith, 1969; Peppin, 1993) explains the wholesale failure of genuine critique. Its troubling how few acknowledged the authoritarian scope of the WMA, the way in which it empowered the unelected Governor in Council “to amend well-established principles of law” and the “elastic language” it used to this end (Greenwood, 1998: 292). By allowing Parliament to “temporarily” delegate its legislative powers to the Cabinet, the WMA facilitated the temporary suspension of the existing constitutional order and desecrated the once sacrosanct principles of liberal democracy: representative democracy, the separation of powers, the rule of law, and the rights of the individual. The Supreme Court would later confirm the scope of these exceptional powers in relation to these principles. Insofar as they were directed towards the termination of the state of emergency, and enacted with good faith within the gambit of the executive’s substantive jurisdiction, the Governor in Council could lay claim to the power to make, unmake, or alter common or statute law for the public safety7. In short, the result of the WMA’s delegation of Parliament’s emergency powers to the executive was the suspension of all existing laws, the indefinite surrender of legislative power to the executive, and negation of the normal operation of Canada’s democratic and parliamentary institutions (Carruthers, 1978; Peppin, 1993; Smith, 1969). Any orders or regulations issued by the Governor in General under the WMA–a practice which was normalized during the war– possessed the force of law but were neither subject to debate nor scrutiny (Lindsay, 2014). Because no provision was made for an independent authority to declare an end to the crisis–which existed indefinitely–this autocratic principle, taken to its logical conclusion, permitted the Governor in Council to alter the WMA itself so as to guarantee that no order would ever be beyond its jurisdictional purview in a time or war or a time of peace  (Peppin, 1993: 149). In this way the Act indeed “contained within itself the potential for despotism, unchecked by any legitimate or effective means of control” (Peppin, 1993: 131-132). It enabled the executive to permanently authorize actions which would have been beyond the realm of possibility prior to August 4th, 1914 (Creighton, 1944).  The uncritical acceptance of this unprecedented expropriation of power evidenced by the in/action of both the legislative and judicial branches–the ease with which they surrendered the throne of their own prerogatives– reveals the autocratic character of Canada’s shadow constitution, the yang to the Dominion’s “normal” constitutional order (Creighton, 1944: 439). No where is this clearer than the domain of civil rights where the exceptional powers brought about the most violence.

 
The similarity between the United Kingdom’s uncodified constitution and the Dominion’s codified constitution–which like any written constitution is inevitably comprised of many unwritten elements–meant that the Dominion inherited not only a democratic system of parliamentary government, “the precepts of English common law, the rule of law, and the supremacy of parliament” but the English civil liberties statutes–the Magna Carta8, the Petition of Right9, the Bill of Rights (1689) and the Habeas Corpus Act–as well as the case law arising from them (MacLennan, 2003: 3). Moreover, the BNAA also admitted to the existence of certain unspecified “property and civil rights” and provided for their administration within the provinces (Lafferty, 2006). In short when the state of emergency was enacted under the WMA, the individual could reasonably expect to possess the rights arising from this firmly-established tradition of rights including the right to due process, habeas corpus, freedom of speech, association and assembly.
As early as October, 1914 the government’s early policy of non-interference with any employed alien enemy10, gave way to a competing desire to protect the state from acts undertaken in support of the enemy (Peppin, 1993; Smith, 1969). Among the first Orders in Council issued required alien enemies (Germans, Austro-Hungarians, Ukrainians) to register with their local Registrar of Enemy Aliens11 (Lindsay, 2014). At all times the fate of the alien enemy hung in the balance. On the one hand, registering subjected him or her to internment. The registrar of each registration center, acting as the sovereign, was tasked with deciding whether “it was consistent with the public safety” to intern the alien enemy or for him  “to remain at large […] subject only to monthly reporting”1213. Failure to answer any questions of the Registrar satisfactorily also exposed the alien enemy to internment (Peppin, 1993). Moreover, an alien determined to lack the “means to remain in Canada comfortably” had two options available: internment or emigration to another country, typically the United States, where employment was possible14 (Smith, 1969). This requirement of possessing the means to remain in Canada comfortably placed a heavy burden on the alien enemy. The ability of alien enemies to acquire and/or maintain employment was often handicapped. Many employers were unwilling to hire ‘alien enemies’ because of public resentment and fear (Peppin, 1993: 141-3). Especially in a climate that was increasingly hostile to the perceived enemy, the ban placed on trading with the enemy which was implemented to reduce the likelihood of “for espionage or […] aiding the enemies of Canada” was a genuine obstacle to self-employment (Canada Gazette xlvii 30 October 1914: 1382). Because alien enemies required the permission of the Registrar to leave Canada, but were often prohibited from doing so based on the belief that they would “assist the enemy forces”, leaving the Dominion to find work presented its own set of difficulties (Carruthers, 1978). On the other hand, the alien enemy’s failure to register was punishable by internment.

 
These Orders in Council essentially transformed some individuals, on the basis of nationality, into civilian POWs (Lindsay, 2014). By the end of the war, 7,762 were interned across at least camps15 and 100,000 had registered as alien enemy (Carruthers, 1978; Tenofsky, 1989; Farney and Kordan, 2005). Approximately 75% of internees were ethnic Ukrainian immigrants from territories in the Austro-Hungarian Empire, and were predominately held “in wilderness work camps under military supervision”–in some cases until 1920 after the ratification of the formal peace treaty–where they were “subjected to a military prison regime” (Farney and Kordan, 2005: 75). Amongst the Ukrainians, moreover, there was a riot a Kapuskasing camp, a hunger strike in Sydney, escape attempts, suicides and 197 deaths (Luciuk, 1998: 8).