Gavin Howe
Martial law is the temporary imposition of direct military control of normal civil functions or the suspension of civil law by a government, especially in response to a temporary emergency where civil forces are overwhelmed, or in an occupied territory. While some countries have provisions explicitly permitting the use of martial law, many do not. Canada falls into the latter category. The War Measures Act was a Canadian statute that allowed the government to assume emergency powers, but stopped short of allowing martial law. The act was invoked three times: during World War I, World War II, and the October Crisis of 1970. In 1988, the War Measures Act was replaced by the Emergencies Act, which saw its first invocation in February 2022 amidst the Freedom Convoy protests.
| Characteristics | Values |
|---|---|
| Martial law in Canada | Has never been imposed since Canada's inception in 1867 |
| The Emergencies Act | Has been invoked only once, in 2022, in response to the Canada convoy protest |
| War Measures Act | Was invoked three times: during World War I, World War II, and the October Crisis of 1970 |
| The legal basis for martial law | Common law doctrine of necessity or a variation of it |
| The role of the military in martial law | Suspension of civil law and replacement with military authority |
| The protection of individual rights | The Charter of Rights and Freedoms continues to protect individual rights during emergencies |
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What You'll Learn
Martial law has never been declared in Canada
In 1988, the War Measures Act was replaced by the Emergencies Act, which grants the Canadian government broad emergency powers. The Emergencies Act has been invoked only once, in February 2022, in response to the Freedom Convoy protests. Despite this, civil liberties were not suspended, and the Act does not contain any text that enables the suspension of civilian law.
Martial law is the temporary imposition of direct military control and the suspension of civil law by a government, especially in response to a temporary emergency where civil forces are overwhelmed or in occupied territory. While some countries have provisions explicitly permitting the use of martial law, many do not. In countries where it is not explicitly permitted but has been declared, the legal justification is often the common law doctrine of necessity.
During the colonial era, martial law was proclaimed and applied in the territory of the Province of Quebec during the American Revolutionary War in 1775-1776. It was also applied twice in the Province of Lower Canada during the 1837-1838 insurrections.
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![The National Emergencies Act (Public Law 94-412) : source book : legislative history, texts, and other documents / Committee on Government Operations and the Special Committee on Natio [Leather Bound]](https://m.media-amazon.com/images/I/81nNKsF6dYL._AC_UY218_.jpg)
The Emergencies Act was invoked in 2022
Canada does not have martial law. However, the Emergencies Act, which was passed by Parliament in 1988, was invoked in February 2022 amidst the Freedom Convoy protests.
The Emergencies Act provides the government with "the stiffest emergency powers of any emergency law in Canada". It does not outline the role of the courts during an emergency, which means that the courts retain their ordinary powers of judicial review in Canadian administrative law and constitutional review under the Charter. The Act states that the government must only take actions that are reasonable and proportionate to the risks posed to public safety and the well-being of Canadians.
The Act contemplates four distinct types of emergencies: public welfare, public order, international, and war. Each type has a unique set of provisions and grants the government a separate set of powers. For example, in the case of a public welfare emergency, the Act describes situations that result or may result in danger to life, property, services, or resources, so serious as to be a national emergency. This includes natural hazards, biological hazards, and man-made hazards. On the other hand, a public order emergency results from serious threats to the security of Canada.
In the case of the 2022 invocation, the federal government declared a public order emergency, which granted them the authority to regulate and prohibit public assemblies, including blockades, and to regulate the use of specified property. The Royal Canadian Mounted Police were also authorized to enforce municipal and provincial laws.
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The Emergencies Act does not suspend civil liberties
Canada has never had martial law, but it has had similar emergency measures in place. The War Measures Act, a statute that allowed the government to assume emergency powers, was invoked during World War I, World War II, and the October Crisis of 1970. In 1988, the Emergencies Act replaced the War Measures Act. The Emergencies Act has been invoked only once, in response to the Canada convoy protest in 2022.
The Emergencies Act does not explicitly suspend civil liberties. However, it gives the federal government new powers that can interfere with civil liberties. For example, the government can cancel people's vehicle insurance, instruct banks to share customer information with security and intelligence agencies, and ask banks to freeze or suspend accounts without a court order. Legal analysts and civil liberties groups have expressed concern that the Emergencies Act could be used to violate civil liberties.
The Emergencies Act provides for "the stiffest government emergency powers of any emergency law in Canada," according to legal scholars Craig Forcese and Leah West. However, the Act also includes checks and balances to protect civil liberties, such as parliamentary oversight and a requirement to respect the Charter of Rights and Freedoms. The Charter of Rights and Freedoms outlines the rights and freedoms of Canadians, including civil liberties such as freedom of expression, freedom of religion, and the right to life, liberty, and security of the person.
The Canadian government has said that the use of the Emergencies Act was a last resort to deal with the protests and that it is committed to respecting Canadians' rights and freedoms. Prime Minister Justin Trudeau stated that the government did it "to protect families and small businesses, to protect jobs and the economy." However, civil liberties groups have filed court actions against the government, arguing that the use of the Emergencies Act is unconstitutional and violates Canadians' rights and freedoms.
While the Emergencies Act does not explicitly suspend civil liberties, it gives the government powers that can interfere with civil liberties. The Canadian government has faced legal and public criticism for its use of the Act, with some arguing that it was unnecessary and a violation of Canadians' rights. The Act has also been praised for its ability to respond to national emergencies effectively. The debate over the Emergencies Act highlights the complex balance between public safety and individual rights in a democratic society.
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The War Measures Act allowed the government to assume emergency powers
The War Measures Act was a federal law passed by the Canadian Parliament on August 22, 1914, after World War I had begun. It granted the Canadian government extensive powers to preserve security and order during "war, invasion, or insurrection." The Act was in force from August 4, 1914, to January 10, 1920, the official end of the war with Germany.
The War Measures Act was invoked three times: during World War I, World War II, and the October Crisis of 1970. The Act allowed the government to assume sweeping emergency powers, stopping just short of martial law, meaning the military did not administer justice, which remained in the hands of the courts. During World War I, the Act was used to suspend the civil liberties of people in Canada who were considered "enemy aliens," leading to mass arrests and detentions without charges or trials. The regulations were also used to intern Japanese Canadians on a large scale, as well as some German and Italian Canadians deemed enemy aliens.
The War Measures Act was invoked again during the October Crisis in Quebec in 1970. Over the course of the crisis, police conducted more than 3,000 searches and detained 497 people; 435 were later released without charges, and 62 were charged. The suspension of civil liberties in Quebec was politically controversial.
In 1988, the War Measures Act was repealed and replaced by the Emergencies Act, which provided for more limited and specific powers for the government to address security emergencies. The Emergencies Act has been invoked once, in response to the Canada convoy protest in 2022. Under the Emergencies Act, the Cabinet of Canada can declare a national emergency in response to an urgent and critical situation that cannot be addressed by any existing law and threatens Canada's sovereignty. The Act requires that the emergency be a "national emergency," an "urgent and critical situation of a temporary nature" that seriously endangers the lives, health, or safety of Canadians or threatens the government's ability to preserve sovereignty, security, and territorial integrity.
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The Emergencies Act outlines four types of emergencies
Canada does not have martial law. However, the country has the Emergencies Act, which outlines four types of emergencies: a public welfare emergency, a public order emergency, an international emergency, and a war emergency.
The Emergencies Act is a statute passed by the Parliament of Canada in 1988, which replaced the War Measures Act passed in 1914. It authorises the Government of Canada to take temporary measures to respond to the four types of emergencies. The Act has stringent, built-in protections that ensure democratic oversight and accountability regarding the government's exercise of its powers.
A public welfare emergency results or may result in danger to life, property, services, or resources, so serious as to be a national emergency. This includes natural hazards such as fire, flood, drought, storms, or earthquakes; biological hazards, including diseases affecting humans, animals, or plants; and man-made hazards such as accidents or pollution.
A public order emergency results from serious threats to the security of Canada. During a public order emergency, the government must only take actions that are a reasonable and proportionate response to the risks posed to public safety and the well-being of Canadians.
An international emergency and a war emergency are the other two types of emergencies outlined in the Emergencies Act. The Act does not delineate what role the courts may play during an emergency, and it has been used only once, in response to the Canada convoy protest in 2022.
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Frequently asked questions
Yes, martial law was declared in the territory of the Province of Quebec during the invasion of Canada by the Continental Army during the American Revolutionary War in 1775–1776. It was also applied twice in the Province of Lower Canada during the 1837–1838 insurrections.
Martial law is the temporary imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to a temporary emergency where civil forces are overwhelmed, or in an occupied territory.
No, Canada does not currently have martial law. The Emergencies Act, which came into force in 1988, has been invoked only once since it was enacted—in response to the Canada convoy protest in 2022. This act does not enable the suspension of civilian law.
