War Measures Act v Canada

Abstract

This paper was originally written for Dr. Clare McGovern’s Political Science 421W course Rights, Equality, and the Charter of Rights and Freedoms. The assignment asked students to write either a legal analysis of case-law or social science research on the political effects of the Charter. With approval from the professor, I submitted a counterfactual analysis. The paper uses APA citation style.

On October 16, 1970, Pierre Trudeau invoked the War Measures Act in response to the October Crisis, granting special powers to the government and garnering nationwide criticism over human rights abuses. Twelve years later, he ushered in a new era of the Canadian Charter of Rights and Freedoms, followed by the introduction of the Emergencies Act in 1988, replacing the War Measures Act. It remained untouched until 2022 when it was invoked for the first time by Justin Trudeau during the Freedom Convoy. Following in his father’s footsteps, his invocation garnered criticism over such an extreme measure, and the Federal Court of Canada found that the special temporary powers unreasonably and unjustifiably violated Charter rights. The irony in Canada’s emergency legislation history raises curiosity about the protection of rights during times of national crisis. In this paper, I explore Charter rights protection in times of crisis by determining how the Supreme Court of Canada would rule on the use of the War Measures Act during the October Crisis if the Charter had been in force at the time. I argue that the actions under the War Measures Act would be found to infringe on sections 2(b), 2(d), 7, 8, 9, 10(c), and 11(e) of the Charter and cannot be justified under section 1.