The Canadian “War Measures Act,” passed in 1914, is a sovereign order that decides the necessity of a state of emergency to authorize the government to suspend all civil liberties and by-pass parliamentary debate. The order, which defines sovereignty as well as “the enemy,” creates a no-man’s land or a state of exception where all laws, as well as constitutional formations are dissolved. The sovereign, unconstrained by law, is thereby able to implement military actions against the designated “enemy” and when decided, will act to reestablish order, civility, and “the norm”: “The sovereign must decide both that a situation is exceptional and what to do about the exception in order to be able to create or recover a judicial order when the existing one is threatened by chaos” (Schmitt xx).
The Act was implemented three times in Canadian History: during World War I with the represented threat of Germans and Communists (for instance, Leon Trotsky was arrested in Halifax), during World War II with the detention in Interment Camps of those “identified” as Japanese or others marked as spies, and in 1970 during the Quebec October Crisis which was sanctioned as “a state of apprehended insurrection” (a euphemism that only Trudeau could come up with).
In 1988, through the process of liberal democracy, the Act was repealed and replaced with “The Emergency Act. ” The change in the Act differs from the original in that it is now subject to the Canadian Charter of Rights and Freedoms and that a declaration of a state of emergency must be reviewed by Parliament.
With this said, it is crucial to understand what exactly sovereignty is and how it is defined by identifying “the enemy,” by declaring a state of emergency, and more significantly its ability to make exceptions.
Carl Schmitt, a German legal and political thinker, who, although let’s face it has a rather unsavoury past, remains instructive when deconstructing the concrete meaning of sovereignty. Schmitt defines sovereignty as “he who decides the exception” (5). The sovereign has the absolute, dictatorial and unlimited quality of the decision. Yet, the paradox of sovereignty is that the law is the judicial norm and without it the exception to it could not exist and thus nor could sovereignty. Therefore, the sovereign exists both inside and outside of the law. Schmitt’s political and theological touchstone is Thomas Hobbes and is reflected in Schmitt’s assertion that “the one who has authority can demand obedience – and it is not always the legitimate sovereign who possesses the authority” (xxxix). The caveat is significant.
In an analysis of sovereignty Schmitt’s critique of liberal democracy is also salient, particularly in a study of sovereignty’s many guises. For example, a core tenet of liberal democracy is that power is to be checked by power. This is made evident, for instance, in the change in the War Measures Act and the move to demonstrate and “show” its citizens that the government is accountable to and for the public’s safety. However, with the sovereign’s exception in mind, how then does the Canadian Emergency Act, as law, really function and how is it implemented and against whom? It is indeed difficult to believe that an Act that determines a sovereign’s force has only been declared three times? How then does the Act manifest in Canada and what are its latent enforcements?
But first consider examples of legislated States of Emergency in a comparison between Article 48 of the Weimar Constitution (which Schmitt had a hand in producing) and the Canadian “Declaration of a Public Order Emergency”:
If, in the German Reich, public security and order are considered disturbed or endangered, the Reichspräsident may undertake necessary measure to restore public security and order, and if necessary my intervene with the aid of armed forces. For this purpose he may suspend, temporarily, in part or entirely, the basic rights as provided in articles 114, 115, 117, 118, 123, 124, and 153. (Schmitt xivi)
and the Canadian “Emergency Act”:
(1) When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.
2) A declaration of a public order emergency shall specify
(a) concisely the state of affairs constituting the emergency;
(b) the special temporary measures that the Governor in Council anticipates may be necessary for dealing with the emergency; and (c) if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.
(1) Nothing in a declaration of a public order emergency or in any order or regulation made pursuant thereto shall be construed or applied so as to derogate from, or to authorize the derogation from, the control or direction of the government of a province or a municipality over any police force over which it normally has control or direction.
(2) Where the Royal Canadian Mounted Police is used or employed in a province or municipality pursuant to an arrangement under section 20 of the Royal Canadian Mounted Police Act, subsection (1) applies in respect of the Royal Canadian Mounted Police, subject to the terms and conditions of the arrangement.
Present in both Acts is the word “necessary” which ultimately is deemed by the sovereign alone. The move from legitimate to dictatorial is indeed slippery.
Interestingly, in 1914 the Canadian sovereign State ‘s “War Measures Act,” similar to Germany’s Article 48 “State of Emergency Act,” was used against Germans in Canada.
The police action against protestors in Montreal poses an interesting contemporary example, among a league of others including continuing resistances by Aboriginal nations against the federal government, and post 9/11 surveillance, detentions and torture. Does the sovereign state make exceptions to the rule of law by circumventing the legislated “State of Emergency” when it decides what action is necessary to maintain public “safety”? What nuanced tactics does it use to maintain order when dealing “with an emergency,” and to demand obedience? Does the act of giving the police force additional power without parliamentary review, or being subject to the Charter of Rights and Freedoms, form an exception that by-passes the messy implementation of the Emergency Act and most certainly public scrutiny? What is the norm? Is the enemy always already a subject who counters not only the laws of civil conduct but also anyone who resists the sovereign’s order of obedience? Schmitt would say yes and so would Hobbes. It is therefore important to understand the prerogative of the sovereign’s political authority; its Machiavellian exponents, as well as its ongoing power to make exceptions to laws; and more crucially to be aware of the liberal democratic guises that shroud the beast of sovereignty.
 Canada. Department of Justice. “Declaration of a Public Order Emergency.” See Act in its entirety at http://laws-lois.justice.gc.ca/eng/acts/E-4.5/page-5.html#docCont
Schmitt, Carl. Political Theology: Four Chapters on the Concept of Sovereignty. Trans. George Schwab. Chicago: University of Chicago Press, 2005.