The British North America Act (1867): Emergency Power and Implied Rights

The British North America Act (1867): Emergency Power and Implied Rights

A meaningful discussion of the use of emergency power to suspend citizen-rights during the Implied Rights era cannot take place without first considering the impact of the document that created the Dominion of Canada. The 1867 British North America Act (B.N.A. Act) both provided the framework for individual rights, and opened the door for the gradual legalization and expansion of emergency power1 through its preambular statement, the powers it delegated to the executive branch of government, and its “peace, order and good Government” clause (POGG clause).

The 1867 B.N.A. Act established the Dominion of Canada as a constitutional monarchy–wherein a sovereign is designated as head of state and acts within the parameters of a constitution–administered by a federal parliamentary system of responsible government (Cairns, 2005; McMenemy, 2001). In Canada, a sovereign–Queen Elizabeth II–represented by the Governor General acts as head of state and an elected Prime Minister acts as head of government (ibid.). The B.N.A. Act distributes powers between the federal and provincial governments2 (sections 91-95) and divides power between, and specifies the governing responsibilities of, the Legislative3, Judicial4 and Executive5 branches of government (Dunn, 1995). The objective of separating powers between the three branches of government and between federal and provincial governments is to prevent the concentration of power, a situation that can only obtain if each branch and level of government is confined to the exercise of its own functions and does usurp the powers of the other branches or levels of government (Hogg, 2006).

Unwritten Individual Rights under the B.N.A. Act

The B.N.A Act was drafted at a time when the legal-positivist approach to rights protection, was becoming an increasingly popular alternative to natural rights theory6 whose metaphysical conception of universal and inalienable rights had been the victim of vigorous critiques from both the Left and the Right(MacLennan, 2003; Arendt, 1968). Rather than explicitly guaranteeing a wide range of individual rights,7 the B.N.A. Act was designed to be “similar in Principle to that of the United Kingdom” as per its preambular statement (Lafferty, 2006; MacLennan, 2003). Between 1867 and 1959, the B.N.A. Act’s  this statement provided the government with a framework to protect citizen-rights. It transferred “the landmarks of English civil liberty” (i.e., the Magna Carta, the Petition of Right, the Habeas Corpus Act, and the 1689 Bill of Rights) and the case law flowing from them to the new Dominion thereby providing British subjects in Canada with a well-established tradition of rights to draw from (MacLennan, 2003: 8). Moreover, because the preambular statement (in conjunction with other aspects of the B.N.A. Act) authorized a parliamentary form of government, it also provided an implicit guarantee of the political rights required by parliamentary democracy (McLachlin, 2008; Gibson, 1996; Hogg, 2003). Consequently, any attempts to infringe the political liberties required to maintain a democracy (i.e., the right of freedom of speech, religion, association or assembly) could be construed as unconstitutional.8 That the denial of these fundamental freedoms is entirely incompatible with Canada’s democratic system of parliamentary government have lead many to argue that the B.N.A. Act implicitly guarantees them as unwritten rights (Cline and Finley, 1980; McLachlin, 2008).

Although the B.N.A. Act  lacks an explicit bill of rights,  entrenched constitutional rights can be found in tit (Russell et al., 1990; MacLennan, 2003; Lafferty, 2006).  That section 92(13) of the B.N.A. Act provides the provinces with exclusive legislative jurisdiction over “property and civil rights in the province” implies that its framers recognized the existence of such rights (Lafferty, 2006). Additionally, section 939 of the constitution, secures minority education rights for the Roman Catholics (Ontario) and Protestants (Quebec) (MacLennan, 2003; Lafferty, 2006) and section 13310 guarantees the right to use either English or French in Parliament (or the Quebec’s Legislative Assembly) as well as in their respective courts. Finally, Lafferty points out, the B.N.A Act also “implicitly guarantees the right to a fair trial by maintaining that judiciary remains independent under sections 9911 and 10012” (2006: 28).

Between 1867 and 1959 the courts relied on various strategies to affirm and protect the rights contained within “hidden bill of rights13” (Gibson, 1966). The preambular statement facilitated the protection of rights by transferring “the precepts of English common law14, the rule of law15, and the supremacy of Parliament16” to the Dominion (MacLennan, 2003: 8).The judiciary also relied on at least two techniques to protect individual rights: “interpretative avoidance” and the “power allocation technique”. “Interpretative avoidance,17” a technique derived from the division of powers between legislative and judicial branches enabled the courts to interpret ambiguous legislation in a manner which protected traditional rights and freedoms.Power allocation,18” a technique derived from the tradition of legal federalism enabled the court’s to protect traditional rights and freedoms by striking down legislation as ultra vires (MacLennan, 2003; Tarnopolsky, 1971; Gibson, 1966). “Together, then, with the rule of law and the English civil liberties statutes, these approaches formed part of the bedrock of human rights protection in Canada” (MacLennan, 2003: 8).

Emergency Powers under the B.N.A. Act

Because emergency powers have been deduced from various written and unwritten elements of the B.N.A. Act, emergency powers have constitutional footing even though they are not explicitly provided for in Canada’s founding document19(Tarnopolsky, 1971; Lindsay, 2014). The key source of emergency power in the B.N.A. Act is its preambular statement which stipulated that the Dominion’s constitution is “similar in Principle to that of the United Kingdom” and thus enabled Canada to inherit “parliamentary sovereignty20” and some of the prerogative powers of the Crown  (i.e., “royal prerogatives”) (Tarnopolsky, 1971; Hogg, 2006). Both these inheritances have functioned to authorize the use of emergency power.

Parliamentary sovereignty is a principle holding that parliament has absolute supremacy over any other branch of government (i.e., judicial or executive) (Tsuji, 2013).  When Canada was not subject to emergency legislation (i.e., the War Measures Act was not invoked), it gave the legislative branch (Federal or Provincial) the exclusive power to make law 21. This point is crucial insofar as the War Measures Act, an expression of the absolute law-making authority of Parliament, temporarily transferred the power that was the exclusive domain of the legislature to the executive branch of government so that it could deal with the exigencies of war.

Famously characterized as the “residues of monarchical rule” (A.V. Dicey), the prerogative powers of the Crown refer to the arbitrary and discretionary “powers and privileges accorded by the common law to the Crown” which belong to the executive branch and are exercisable by the Governor General on the advice of the prime minister and the cabinet and other members of the Privy Council (such as the Prime Minister and various departmental ministers of the Crown) (Hogg, 2006; Black v. Canada, 2001) The prerogative powers of the crown “originated  in the unlimited authority of the totalitarian monarchy” (Gibson, 1998: 160), “22and grew along with the feudal rights and duties of England’s medieval monarchs” (Lagasse, 2012: 160).  Since they were subject to restraint only if the court determined that a particular prerogative did not exist or that its exercise was beyond the powers of the executive, these powers were assumed to be “the unfettered terrain of the monarch and outside the province of the courts23” during the pre-Charter eras  (Sossin, 2002; Tsuji, 2013). Moreover, because their extent and scope are “determined by the executive, subject to the occasional confirmation or denial by the judiciary24”, these powers cannot be easily or definitively catalogued (Lagasse, 2012: 161). This does not mean, however, that the royal prerogatives are wholly ephemeral since they are resemble those of the British Crown (Olson and Lordon, 1991). In Canada the Crown prerogatives include the appointment prerogative25, the mercy prerogative26, honors prerogative27, they also enable the government to administer and dispose of public lands, declare holidays, hold prosecutorial discretion, collect tolls, establish royal commissions of inquiry (Lagasse, 2012). They also “vest the executive with substantial discretionary authority over key matters of the state” (Lagasse, 2012: 162). For example, the foreign affairs prerogative28, gives the executive the almost entirely unchallengeable discretionary authority over any decision or action that is international in character (Olson and Lordon, 1991; Lagasee, 2012). The war prerogative enables the executive branch–traditionally, the governor-in-council–to declare and terminate armed conflict (i.e., to make war and peace29) and licenses the executive to confiscate and/or destroy private property in response to a military attack in Canada30 (Lagasse, 2012; Tarnopolsky, 1971).The defense of the realm prerogative also empowers the executive with “several under-appreciated national security” powers. They enable the cabinet “to command, control and organize the armed forces, as well as protect military establishes in peacetime31” (Lagasse, 2012: 162). They also empower the the executive to impose conscription 32 and  deploy and use the Canadian Forces anywhere in the world (Tarnopolsky, 1971; Lagasse, 2012). The national security prerogatives enable the executive institute defense intelligence agencies and t to protect information deemed vital to Canada’s national security interests (Studin, 2010; Jones, 2010). Finally, the public order prerogative authorizes the executive “to enforce adherence to the law” (Lagasse, 2012), to quash any breaches of the peace (e.g., rebellions, riots, or violent resistance to the law) (Dicey, 1889: 266), establish and maintain the authority of the RCMP (Edwards, 1980), deploy the military to assist law enforcement or to deliver essential services in states of emergency (Forcese, 2007) and to respond with broad license to any extreme situations as necessity dictates (Lagasse, 2012).

The power to declare martial law33 (“a condition in which law is temporarily abrogated34”  “in whole or in part and civilians are tried by courts-martial”) is an example of an emergency power which flows from the Crown prerogatives and British common law (Marx, 1970: 43). Although between 1867 and 1959 martial law was never proclaimed, it was authorized by Order in Council (P.C. 834) on April 4th to quell Quebec City’s Easter Riots, a violent reaction to the  enactment of the Military Service Act35 (1917) (Marx, 1970). Under P.C. 834 the military was authorized to suppress the Easter Riots and “to hold prisoners […] without recourse to a writ of habeas corpus” (Marx, 1970: 53).

Although the so-called “war powers” are not explicitly enumerated, the B.N.A Act supports the argument that the executive and legislative branches share jurisdiction over various aspects of them. Section 15 of the B.N.A. Act states that: “The Command-in-Chief of the Land and Naval Militia and of all Naval and Military Force of and in Canada, is hereby declared to be vested in the Queen” (Tarnopolsky, 1971: 208). Through the “evolution of sovereignty”, these powers over the armed forces have passed from “The Command-in-Chief” (i.e. the monarch) to the governor general who acts as Command-in-Chief on the advice of the queen’s privy council of Canada (i.e., the federal cabinet) (Tarnopolsky, 1971: 208).  By empowering Parliament with jurisdiction over the day-to-day operations of armed forces, the B.N.A. Act also provided constitutional footing for Canadian military law (Scheppele, 2006: 216). In addition to vesting Parliament with power over military roads, amouries, drill sheds, military clothing and munitions36, section 91 authorized parliamentary jurisdiction over defense. Section 91(7), for example, confers legislative power over “Militia, Military and Naval Service, and Defence” onto Parliament (Gilbert, 1980). Section 91(25) also authorizes Parliament to pass legislation regarding and “naturalization and aliens”.

The final and arguably one of the most significant sources of emergency power in the B.N.A Act alongside the prerogative powers is section 91’s “peace, order and good Government” clause (hereafter, POGG clause). Because it empowers the “Queen, by and with the Advice and Consent of the Senate and the House of Commons, to make Laws for the Peace, Order and good Government of Canada” it has thus been viewed as conferring residual legislative authority onto parliament over areas outside the purview of sections 91 and 92 (Valverde; Tarnopolosky, 1971). Lord Haldane, one of the most influential members of the JCPC between 1910-30,  spearhead the emergency branch doctrine which presupposes that the POGG powers function “solely as national emergency powers” (Valverde, 80). They confer extraordinary powers onto Parliament allowing them to encroach into provincial jurisdiction in “rare emergency situations” and situations of  “national concern” (Tarnopolsky, 1971: 208). The seeds for this doctrine were sown in Russell v. the Queen37 (1882). In Russell,  the JCPC held that Federal Parliament could pass legislation promoting temperance in the dominion–under “ordinary circumstances” the provinces have jurisdiction over the regulation of alcohol (at pp. 12)– since it was acting in order to secure order in Canada as authorized under the POGG clause:
Laws of this nature  designed for the promotion of public order, safety, or morals, and which subject those who contravene them to criminal procedure and punishment, belong to the subject of public wrongs rather than to that of civil rights. They are of a nature which fall within the general authority of Parliament to make laws for the order and good government of Canada (at pp. 10).

With the passage of time, (as you will see) the interpretation of POGG powers evolved to encompass  “(a) extraordinary measures to deal with emergencies, such as ‘apprehended insurrection’; and (b) areas of regulatory activity not specifically allocated to the provinces” (Valverde, 79). In precisely this way, the POGG clause has facilitated the transference of the Crown’s emergency powers to Ottawa (Valverde, 80).

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