BORN AGAIN

In a first-year Canadian History course, I was made to debate the invocation of the War Measures Act and the internment of "enemy aliens" during the Second World War. I was asked to be the sole defender of internment camps. Despite all of our readings and the seemingly unanimous public and political sentiment here in the 21st century that Canada royally fucked up, dehumanizing our friends and neighbours in a moment of panic, it was shockingly easy to win over many of my classmates. It took nothing more than simple appeals to proportionality and the raising of silly hypotheticals.

I started by offering that we can all agree on the barbarism of war, and that therein people are always forced to make choices no one would ever wish to make in any other situation. I talked about infantrymen and prime ministers alike easily falling into circumstances in which they are presented with only a list of egregious horrors to enact and, so often, an accompanying urgency to act before the same is visited upon them.

I argued that knowing this (at the very least, and even if Allied troops only acted with benevolence on the battlefield), due to the immensity of the war, its modern tools, and unknown but likely protracted timeline, it would not be long before Western armies or friendly civilians were hit with atrocities and the details splashed across local newspapers. I reminded my classmates that the horror of war would have been fresh on everyone's minds, with many being able to personally remember the previous world war, one which was so staggeringly brutal and costly.

From there I argued how it was perfectly understandable that anyone with a son or brother or father fighting overseas, which was nearly everyone, would not be in the clearest frame of mind. I proposed that we cast our minds to a situation, perhaps five or twenty-five years down the road, where the bodies have piled up and countless hardships (maybe starvation, a pandemic, a refugee crisis, maybe all of the above and more) continue to be endured. And I proposed that, though not excusable in any way, if there was anything we could be sure of during such a time of grief and struggle it would be our all-too-common irrational behaviour. Particularly worrisome would be those of us unrestrainedly propelled by deadly combinations of negative emotion, testosterone, and alcohol. And I reasoned that relying upon an endless supply of countervailing sober reflection, neighbourly goodwill, and generosity across 100% of the population was likely too tall an ask.

I questioned whether, as a result, a thoughtful populace had to wait for their German dentist, Japanese lawyer, or Italian father-in-law to have his house or business burned to the ground? Whether their wives or children must be injured or accidentally killed? Whether the inevitable retaliatory attacks had to be endured or if there were measured preemptive actions to take? And, I wondered aloud, if it would be any better for these ineluctable acts to be directed at those with a heritage linked to an overseas aggressor or from those individuals toward Canadian society? Surely neither was acceptable, I offered. So what was the alternative?

And then I put it to my audience that the job of any government was to protect its citizenry. I also noted that all men of fighting age were being sent to Europe. How then, I asked, would local law enforcement or emergency services manage an angry mob or deal with an escalating series of reprisal attacks here at home during this most strenuous and diminished of times? I also paired this with asking folks to imagine the results of a single spy in the wrong office or department or just one highly skilled and motivated saboteur inside an essential factory or key piece of infrastructure? And what would happen if there were a whole spectrum of such attacks going off simultaneously? Given that Canada supplied the raw materials, manufactured goods, and foodstuffs so significant to the war effort, I asked if they could imagine a series of travesties, or even just one, amplifying into a turning point of the war – and that then resulting in the fall of Britain and the defeat of the Allies, or even the floundering of democracy and rise of Fascism around the world?! *Pounds fist on lectern*

I argued that the number of Germans, Italians, and Japanese in Canada, merely tens of thousands, a hundred thousand at most, was slight compared to the entire population of 12 million at the time. And with the above realities and potentialities in mind then, was it not far better and easier to simply move a very small number of people – for their own and everyone's safety? I argued that the tepid and temporary inconvenience, or even some incidental injury, God forbid, to that minuscule minority was, in effect, nothing compared to the very probable and grievous harm from just one ill-intending actor of any background or persuasion and inflicted in any direction.

(I somehow left out of my arguments that proportionality was always a favoured rationale for rounding people up in 1930s Germany. As the country was rumoured to be swarming with foreign agents and provocateurs, Russians and Jews, and everywhere there was said to be a plot to destabilize the country, any measures to ward off such threats were deemed justified. Want to unjustly remove innocent Jews from their jobs, businesses, or homes? Just argue that their numbers in that field or neighbourhood are disproportionate to their population count and that their removal would restore the commonsense justice of equity. When more is needed, start talking about how such discriminations, however difficult they may be on any individual, are ultimately for the good of the economy and broader society – just as Elisabeth Gebensleben spelled out so clearly in a letter to her daughter in April of 1933.)

As the debate raged on, a disturbing number of people came over to my side of the argument. "Just consider how irrational and angry your neighbours can be" was a most compelling argument. "For everyone's safety, theirs and your own" was even more so. Of course, hindsight being 20/20, no one admitted to supporting internment camps; and yet all agreed that there was a rational argument that could be compelling to the unsophisticated majority (never you or your friends) and particularly in a scenario including such significant threats, known and unknown, both within and all around. But only in the distant past, of course, as we're too savvy today.

AN ACT OF EMERGENCY

This debate experience is one of many reasons the whole Emergencies Act thing is so interesting to me. Of course, I've also watched an endless stream of endorsements of and forgiveness for a chronic lack of historical awareness and lessons learned over the last several decades. Over and over, and over and over again, I've watched and read the same national- and global-scale errors of judgement that have provided so much context and so many plot-lines for so many of our favourite period dramas, podcasts, and PhD dissertations. It’s just so wacky to once again be standing here watching the same missteps being taken in real-time. With all the tools at our disposal, it’s hard to understand how we are living in and through history in such an irritatingly tarnished (that is to say: dull, deteriorated, and non-reflective) manner. I mean, where are the damn historians and sociologists in our daily lives? With that thought, I went back to remind myself of the precedents to the Emergencies Act and previous invocations. What was really shocking was noticing how little has changed within the legislation and broader society. More shocking still was the realization that, in light of all of the errors of the 20th century, the Act itself was not curtailed or embedded with safeguards but completely unleashed.

FIRST WORLD WAR

When the War Measures Act was first invoked in 1914, it gave the federal government authority to do nearly anything it deemed necessary “for the security, defence, peace, order and welfare of Canada.” With such a mandate, the measures allowed for total censorship, including control over all writings, images, and communications of any kind. The Act also put total control over all movement of all peoples, vehicles, and goods in the hands of the executive, so much so that they were free to break into, search, and confiscate any property and detain or deport anyone at any time for any reason at all. Even uttering a negative word about the government or the war effort could land you a $5,000 fine and five years in prison. And the legal system was flipped: there was no such thing as unlawful detention and the presumption of guilt was fundamental, with the onus on the accused to demonstrate their innocence. The prime minister, in effect, became king under the War Measures Act. Even the Chief Justice of Canada, Charles Fitzpatrick at the time said of the Act that “It seems to me obvious that parliament intended, as the language used implies, to clothe the executive with the widest powers in time of danger. Taken literally, the language of the section contains unlimited powers.”

And what did the king do with his new powers? Well, what better to do than build dozens of rural and remote concentration camps to house “enemy aliens.” And, not wanting a perfectly good prison camp to go to waste, he quickly filled those camps. The largest group of ensnared alien enemies, so called, were approximately 6,000 people with ties to the Austro-Hungarian Empire (Ukrainians, Czechs, Croats, and Slovaks.) Several thousand other Eastern Europeans were also interned, most of them Germans, Turks, and Bulgarians, but also Hungarians, Austrians, Russians, and Jews. The emergency measures lasted five years, extending beyond the timeline of the war and included forcing 80,000 people with Eastern European heritage to carry papers identifying them as enemy aliens. The designation prevented those with it from travelling and required regular reporting to local police stations or else being interned in a concentration camp. They were also forbidden from writing or even reading anything not in English or French. Beyond that, the official reason given for interning thousands of these folks was not that they were clear threats to the security of Canada or the safety of its citizens, nor was it even because they were shown to sympathize with the enemy; instead, these people had committed the crime of being poor or unemployed.

The War Measures Act was also used at this time to quell popular protests in Québec. There, folks had not been keen to be conscripted to fight overseas on behalf of either the British or French Empires. Of the 404,385 French Canadians called up by conscription, 385,510 (or 95%) sought exemption. Of course, conscription was a formal federal demand and refusers were looked down upon as disloyal, lazy, and weak. Protests eventually became widespread. When things got serious, martial law was declared and 6,000 troops deployed. 1,200 troops were sent to Québec City to put down an anti-conscription riot there. When the English-speaking cavalry arrived and charged into the crowd, rocks were thrown. After reading a dispersal order, in English, the soldiers were ordered to fire on the crowd. Though the civilian casualty numbers are heavily debated, a memorial in Québec City cites 70 wounded and five killed, including a child aged 15.

SECOND WORLD WAR

At the very next opportunity, in 1939, the War Measures Act was once again invoked. The Defence of Canada Regulations were implemented under the Act and again included eliminating the rule of law and civil rights, even the right to a trial, freedom of speech, membership in political and religious groups, and any rights to property. Immediately, 325 newspapers and periodicals were banned along with dozens of social, political, ethnic, and religious organizations.

The same perceived “enemy alien” threat was also addressed. Of particular concern was anyone "who, not being a British subject, possesses the nationality of a State at war with His Majesty.” At the start of the war, the law specifically noted enemies as “all persons of German or Italian racial origin who have become naturalized British subjects since September 1, 1922.” Beginning in 1940, people with German and Italian ancestry were quickly targeted and rounded up. As in the previous war, here too "aliens" were prevented from travelling and forced to report to the RCMP each month. Authorities also eagerly rounded up any avowed Socialists, Communists, and Fascists. Pacifist Mennonites and opponents of conscription were deemed dangerous and worthy of internment, too. Hundreds of Jewish refugees from the holocaust were also interned in New Brunswick at the request of Winston Churchill, who suspected there could be spies among the group. There are even stories of healthcare providers being jailed for months for having a patient who was Communist or landlords being interned for renting to someone in possession of banned literature. It is thought that 30,000 Canadians were impacted.

Japan entered the war with its bombing of Pearl Harbour in December of 1941. Canada responded by forcing anyone of Japanese descent to register with the RCMP. By the end of February 1942, Japanese Canadians were restricted from owning land or even growing any crops and soon after from being in possession of an automobile, radio, camera, or firearm. On March 4th 1942, the notorious Order 1665 was enacted. Some 22,000 "Japanese" (21,000 of whom lived in British Columbia and 14,000 of whom were British citizens) were given 24 hours to pack their bags before having all their property confiscated (including houses and boats) and being sent to camps. This was done, of course, without any charges or even reasonable suspicion of sabotage or espionage or anything of the sort, or any crime at all.

Even at the time, many fought back by way of written appeals. Tatsuo Onotera offered, "I have been brought up as any one of your other citizens believing this is a fair and Democratic country, but the way we are being treated I have my doubts." Others appealed to reason, noting their being born in Canada or their years of loyal military service. Some writers even dared to compare the injustice they were experiencing to the forced displacements in Europe. Tsurukichi Takemoto argued boldly:

Isn't the method you're using like the Nazis? Do you think it is democratic? No! I certainly think you’re just like the Fascists confiscating people’s property, chasing them out of their homes, sending them to a kind of concentration camp, special registration cards, permits for travelling. Don’t you think this is the method used in dictatorship countries. Democracy means no racial discrimination, or is it the very opposite?

Takemoto, homeowner at 42 Gorge Road, also pleaded with her government by spelling out that:

An undeserved liquidation of my property ... will not only jeopardize our present status but far worse our future welfare as well. This property is our home, the reward for long years of toil and anticipation, a source of recreation, a stake in the future of Victoria, and an insurance for our later welfare.

But, of course, no one was listening. And, even though the war had been over for years and internees freed, it remained illegal for Japanese Canadians to return to Vancouver until 1949. Though it took a whole generation, the formal apology and $300 million compensation package that eventually arrived (as little as that was) offers some indication that nearly everyone has finally come to see these events not as a regrettable though justified action during a time of global war, but instead as one of the darker moments in Canadian history.

FLQ, WTF

The last use of similar emergency powers by Cabinet, prior to February of 2022, was the invocation of the War Measures Act in response to the terrorist activities of the Front de libération du Québec (FLQ) that culminated the October Crisis of 1970. Over seven years, 300 politically-motivated bombings and robberies in Québec had left dozens injured and dead and also landed dozens of FLQ members in jail. In October of 1970 the terrorist group decided to switch tactics, from bombing to kidnapping. The FLQ snatched a British trade commissioner. That caught some attention. They also nabbed Québec’s Minister of Immigration and Labour, who they eventually killed.

As you might expect, at the height of the crisis the terrorist cell delivered a list of wild demands including: the release of their “political prisoners”; the radio, television, and newsprint dissemination of their manifesto; $500,000 worth of gold bullion; and safe passage for them and their families to either Algeria or Cuba. Even with all of the bombs going off and the loss of life, thousands of sympathetic students attended rallies in support of the FLQ and called upon their governments to meet the demands of these terrorists. (Ah, the ‘70s.) At first authorities balked. And then at the height of the crisis Radio-Canada read out the FLQ’s manifesto on air. Naturally, the manifesto framed their whole operation as a Marxist worker’s struggle. The FLQ appealed for the suffering working class to finally see themselves as “terrorized slaves,” victims of a class of “voracious sharks” who prey upon Québecers for cheap labour. They argued that theirs was not a struggle of aggression but merely a response to the daily aggressions of the British and the capitalists. They appealed to the population of Québec to liberate itself from domination by anglophone capitalism and to do so through armed struggle. Like every militant before and since, they asserted their aim was merely justice and liberty but that, also, “decolonization is always a violent phenomenon.”

With that, the FLQ was sure the government would capitulate, the population would rally, and their cause would be the future of Québec. As rumours of armed militants taking over the streets and of planned assassinations grew, and then public officials going into hiding or travelling with armed guards, so too did the loud gatherings of separatists. In a rally in support of the radical Marxist revolutionaries, trade union leader Michel Chartrand yelled to a cheering crowd of thousands, “We are going to win because there are more boys ready to shoot members of Parliament than there are policemen.” Still, despite their optimism and the public support, things went exactly the opposite direction to what the FLQ envisioned: the government brought out the big guns, the wider population was repulsed, and the jig was up for the FLQ.

What happened was that the Cabinet's Security Committee met on the issue. There they were briefed by security services. Though the intelligence assessment was that there was no popular insurrection in Québec, one attendee, Minister Marchand, vigorously disagreed. He presented to Cabinet unverified information that the FLQ was both heavily armed and a very significant force embedded within the province. He argued that to fail to invoke the War Measures Act was to risk losing Québec to what amounted to a hostile state within a state. In the end, the Cabinet was won over by Marchand’s perspective and Prime Minister Trudeau came to believe invoking the Act was the appropriate response.

Still, despite all of this and the abundance of violence, NDP leader Tommy Douglas, Conservative leader Robert Stanfield, and John Diefenbaker, the former prime minister, stood in opposition to the invocation of the War Measures Act. They considered invocation an overreaction and an abuse of power, particularly given that criminal and seditious activity had been going on unchecked for years and there were all kinds of tools on the table.

When it was invoked, and for the first time not during a war, the War Measures Act saw the curtailing of everyone's civil rights and the marching of 10,000 combat troops into the streets of Montreal, Québec City, and Ottawa. Troublingly, the Act provided ambiguous instructions to law enforcement which led to warrantless surveillance, break-ins, searches, and thefts. The Act also removed due process and allowed for the arbitrary arrest and jailing of people for a period of 90 days before being charged or put before a judge. Hundreds of people were caught up in this – an error for which the government of Québec has had to pay considerable compensation.

Though it is true that plenty of people still today support the decision to call in of the troops at that moment, it is widely accepted that local, provincial, and federal governments should have relied upon expert analysis and intelligence, not rumours, and used all of the existing legal and law enforcement tools available to them, not called in the army and arrested folks without all the normal justifications and oversights. With decades of reflection and new information coming to light with the release of confidential documents, we have come to understand that Trudeau, Marchand, and Cabinet made a mistake. Their response was an overreaction in a moment of crisis. Just as the intelligence suggested, there was no widespread or heavily armed insurrection apprehended within Québec.

THE REWRITING

With so many glaring errors made, the War Measures Act was eventually metamorphosed into our modern Emergencies Act. But, to many, even decades ago, changes to the Act were more of a rebranding than a meaningful attempt to prevent future abuses of power or protection of civil liberties. Worse, and long before the invocation of 2022, legal scholars suggested the Emergencies Act only amplified the many problems inherent in its predecessor, broadening the government’s powers and the definitions used to restrict civil liberties and quash dissent.

In 1991, Peter Rosenthal (PhD mathematician, professor, lawyer, and Law Society Medal recipient) wrote a paper titled The New Emergencies Act: Four Times the War Measures Act. On the Public Order Emergency section of the Act, the part used for invocation in 2022, Rosenthal spelled out how the language was far too broad. More than that, he noticed how “Many of the phrases used to define ‘threats to the security of Canada’ seem to have been taken from the United States during the McCarthy era...” He explained:

The phrase, "but does not include lawful - advocacy, protest or dissent" appears reassuring, until it is read in the context of the "unless" at the end of the definition. Read carefully, it clearly implies that lawful advocacy, protest or dissent is a "threat to the security of Canada" if it is carried on in conjunction with one of the activities listed in paragraphs (a) through (d). Thus, for example, collecting funds to support the armed struggle of the African National Congress against apartheid in South Africa would be "activities ... directed ... in the support of the ... use of acts of serious violence against persons or property for the purpose of achieving a political objective within ... a foreign state," and would thus be a "threat to the security of Canada" within this definition.

On the apparent ambiguities and permissiveness of the new legislation, Rosenthal quoted the Working Paper on the Emergencies Act, which states that:

…the dividing line between a serious public order emergency that threatens the security of Canada and an apprehended insurrection can be a fine one, and it seems clear as a result of the events of October 1970 that the War Measures Act will not again be invoked during peacetime unless there is ample evidence of an urgent threat of a serious insurrection akin to a coup d'etat.

Rosenthal warned that, though this sounds good and may speak to the intentions of the new Act, the wording does not raise but actually lowers the threshold for declaring a national emergency and ceding power to the federal executive. He saw this so clearly from back in the dreamy naivete of the ‘90s. And, of course, we’ve now watched this happen. We know the Trucker Convoy was, in fact, no closer to a coup d’etat than an NDP convention (plotting to undermine the sitting government) or an Indigenous sovereignty movement (seeking to seize power from existing authorities.)

He anticipated even more of what has become so very obvious throughout the Emergencies Act Commission of 2022. As Rosenthal spelled out 30 years ago:

The Criminal Code contains offenses such as treason (which includes "using force or violence for the purposes of overthrowing the government of Canada or a province,") sabotage, sedition, and riot and unlawful assembly, as well as kidnappings and murder. Of course, it is also a crime to attempt to commit any of these offenses.

So why then pull the pin on the Act except for truly extraordinary events exceeding the purview of the Criminal Code and capacity for enforcement to deal with it? Well, there is no need to do such. And we have those receipts from this latest invocation. No local, provincial, or national law enforcement sought additional powers at any time. All of law enforcement testified to that under oath and submitted ample evidence to substantiate this. When Ottawa's police service eventually sought additional bodies, both the OPP and RCMP required from them a more fulsome plan of execution before granting those resources. More tow trucks were said to be needed as well. Those were found and brought in long before invocation. None of that had anything at all to do with a national emergency or the invocation of the Act, as firmly insisted upon by members of all levels of government prior to the Commission. It was shown that at no time before or after invocation of the Act did anyone in Ottawa receive a charge of unlawful assembly; the threshold for which is: "to cause persons in the neighbourhood of the assembly to fear, on reasonable grounds, that they will disturb the peace tumultuously." (A "riot" being an unlawful assembly that transitions from potential to actual tumultuousness.) It seems worth asking how a national emergency threatening the survival of the government and sovereignty of the country existed without any part of that assembly, even once over an entire month, achieving the status of a mere unlawful assembly? (Folks attempt to dismiss this by saying that the situation was so dangerous that, though they wanted to, police couldn't act. To suggest this requires rewriting history. They have to leave out all the arrests they themselves gleefully celebrated in the news and retweeted for the world to see. And they have to ignore the pointless and maximally dangerous night raids police conducted, which were deemed reckless by all policing experts brought before the Commission.)

Rosenthal cited the then-Defence Minister who noted the problem with the War Measures Act being that it was extremely effective as a political tool but useless on the criminal front, as kidnappers and killers were apprehended not by special measures but through the conventional tools and methods of policing. Rosenthal rightly worried about just what we have seen over the last seven weeks, that the amended Emergencies Act offered no improvement in this regard. Almost every lawyer present at the 2022 Commission noted that, in one way or another, the Act was implemented not only without meeting the built-in grievous threat prerequisite but also without even exhausting or so much as attempting to use, seemingly, any of the tools available to all of law enforcement in every jurisdiction at all times. And I can tell you that the more internal emails and text messages you read (between all levels of law enforcement, intelligence, government, and their international counterparts and now in the public record) the more it looks like the invocation was entirely politically motivated.

Rosenthal went on to caution that a future government could easily use the Emergencies Act to crush a political movement. He cited a Member of Parliament who spelled out how, say, a peaceful anti-nuclear protest at the port of Vancouver could be derailed by invoking the Act on the grounds that it is halting trade or just slowing things for too long. Rosenthal offered that the Act opens the door for using declarations of emergencies to suppress demonstrations of all kinds. And that is what we saw. In perfect resonance, during the Emergencies Act Commission the Canadian Civil Liberties Association walked us through how, if the government was justified in invoking the Act on economic grounds in the manner asserted, any lawful strike or peaceful protest that could be framed as hampering trade was not protected even by the Charter. The recent invocation of the Emergencies Act, it seemed, exposed that any dispute with authority – and thereby effectively all of civil society – relies solely upon the benevolence of those at the highest levels of the federal government. That was quite the revelation. The climax of the Commission being, in effect, we can't spell out our justification for invocation, you'll just have to trust us, really drove it all home.

At the end of the day, the previous War Measures Act was called upon during times of global war and to put an end to years of seditious terrorism by murderous kidnappers. In retrospect, all of these instances were still deemed too heavy-handed. And it's with all of the above insights that calling upon what some legal experts consider a far more dangerous version of the War Measures Act, not during a time of war and to dismantle a weeks-long peaceful protest against a whole series of measures seen as egregious government overreach, is declared a light touch and more than justified. I guess we will learn the state of our democracy when protesters return in larger numbers, with more resources behind them, and having learned some of the lessons of the Emergencies Act Commission.