Nous Vaincrons!

A Historiography of the War Measures Act Debate

An Essay by Ainslie Avery 0330008 For History 469 F03 (Dr. D. Clement)

14 November 2006

The qualification of "justness" and of "morality" changes significantly over time. Actions which may have appeared justifiable at a specific juncture in time may become increasingly questionable as new moral and ethical standards emerge. The development of a contemporary morality is subject to repeated re-evaluations of social understandings of right versus wrong. One of the greatest moral debates in Canadian history questions whether the implementation of the War Measures Act (WMA) by the federal government in response to the 1970 FLQ crisis was just. It is highly debated whether or not the federal government was justified in passing the WMA, which suspended human rights in freedoms not only in Quebec but across the country in response to the terrorist threat posed by le Front de Liberation du Quebec. While this debate has notand likely will notbeen resolved with any degree of certainty, it is worthwhile to chart the development of the criteria against which the justifiability of the passing of the WMA is evaluated in relation to judgements of the federal governments actions themselves. The debate is primarily characterized by divisions between macro-level theorists, such as Gerard Pelletier and J.L. Granatstein, who argue that the preservation of the democratic political system should be considered as key in any evaluation of the WMA, and micro-level theorists, including Ron Haggart, Aubrey Golden and Denis Smith, who argue that concerns for individual civil and political rightsspecifically a concern for the preservation of human life and libertyshould take precedence in such analyses. It is interesting to note that, with the notable exception of Pelletier, those writing in the first decades following the October Crisis are critical of the federal governments actions, while those writing more recently are significantly are generally sympathetic and supportive of the implementation of the WMA. It is first necessary to briefly discuss the events of the 1970 October Crisis. Le Front de Liberation du Quebec, a radical separatist group founded in 1963, carried out a series of

escalating attacks throughout the 1960s. As Will Ferguson notes, the FLQ did not aim to terrorise the Quebecois people; however they were impatient for independence and were therefore dedicated to the violent overthrow of the government in order to forcibly remove Quebec from confederation1. Beginning in 1963, the FLQ targeted traditional symbols of English powersuch as the Canadian National Railway, army recruiting centres, McGill University and Eatonsfirst with graffiti, and then with bombs, using an arsenal that had been stolen from armouries and construction sites in Montreal. In 1970, the FLQ escalated once again; although their attacks had resulted in casualties, their targets had been physical and material symbols of English power. Early in 1970, however, the first FLQ kidnapping plot, which targeted an Israeli consul in Montreal, was uncovered. Individual members of the minority Anglophone elite and their affiliates were now the primary targets of the FLQ. The October Crisis began on 5 October 1970, when a group of armed men calling themselves the Liberation Cell kidnapped James Cross, the British Trade Commissioner. The Liberation Cell demanded the release of thirty political prisoners, as well as $500,000 in gold bullion and safe passage to Cuba, among others, but the government would not grant any of these demands. As Thomas Berger notes, the government, in fact, could not meet the demands of the FLQ, for any government that acquiesced in them would be renouncing its mandate to govern2. They did, however, allow the FLQ manifest to be read on television in both English and French. The reading of manifesto further polarized Quebec society, contributing to growing tensions and perceptions that an insurrection could be forming. On 10 October 1970 a second group of FLQ members, the Chenier Cell, kidnapped Pierre Laporte, the Quebec Minister of Labour and Immigration, an outspoken critic of the validity of the FLQ. Prime Minister Pierre
Will Ferguson, Bastards and Boneheads: Canadas Glorious Leaders Past and Present (Vancouver and Toronto: Douglas and McIntyre, 1999), 196. 2 Thomas Berger, Fragile Freedoms: Human Rights and Dissent in Canada (Toronto: Clarke-Irwin, 1981), 192.
1

Trudeau responded by calling the army into Ottawa to protect cabinet ministers, although his actions were widely interpreted as a show of force and a demonstration of national will3. Amid calls for decisive action against, as well as growing support for, the FLQ, Quebec Premier Robert Bourassa formally requested the intervention of the Canadian military under the National Defence Act. He also requested that the federal government grant Quebec emergency powers to combat the FLQ judicially. On 16 October, Prime Minister Trudeau announced the imposition of the WMA, which granted the police sweeping powers4 to arrest and detain citizens without trial or due process. Over 1000 police raids were carried out before noon of that day; however, the majority of the arrests made had little basis and charges were quickly dropped. It is important to note here that the FLQ was a highly decentralized organization which operated through largely independent cells, sharing little more than an ideology5. This point is critical to understanding the climactic events of the October Crisis, for it must be remembered that the actions of one cell did not necessarily represent the entire organization. On 17 October, in response to the passing of the WMA, the Chenier Cell publicly announced that Pierre Laporte had been executed; his body was found by police in the trunk of an abandoned car just outside of Montreal. The Liberation Cell, however, announced that they would suspend the death sentence against James Cross, although he would not be released until their demands were met. But the damage had been done: support for the WMA, already high throughout Quebec and the rest of Canada, skyrocketed, while support of the FLQ plummeted. On 30 October, police raided the Chenier Cell, and although only one member was arrested at the time, all would be prosecuted for the kidnapping and murder of Pierre Laporte. Police raided the Liberation Cell on 3 December, and negotiated the release of Cross.
3

Ferguson, Bastards and Boneheads, 200. Ibid., 200. 5 Gerard Pelletier, The October Crisis (Toronto: McClelland and Stewart, 1971), 51.
4

From the implementation of the WMA to its removal, just under 500 people were arrested; by February 1971, the vast majorityapproximately four out of fivehad been released without charges. However, before our analysis begins, one final note must be made regarding the WMA. Many historians have interpreted the implementation of the WMA as the imposition of martial law throughout Canada. At the time, two distinct legislative actions occurred: Bourassa requested, and the federal government passed, the National Defence Act in addition to the WMA. The National Defence Act authorized the deployment of military forces to Quebec, in support and under the direction of the provincial police. The WMA granted the police the authority to arrest and detain individuals who were suspected of being involved with the FLQ. Yet military personnel occupied mainly a supportive role, releasing the police from such duties as guarding members of the National Assembly so that they could carry out their own jobs, or to be more specific, so that they would be free to investigate and arrest FLQ members. Military forces were at all times answerable to the civilian-controlled police. Martial law was therefore not imposed during the October Crisis as the military had no police function and remained under civilian control. Gerard Pelletiers work, The October Crisis, is an appropriate place to begin our analysis. Pelletier was the Secretary of State during the October Crisis, and one of the key advocates of the WMA; his work defends the government for its imposition from a logical, political level. Three primary themes are evident throughout his work: first, that the existing state of apprehended insurrection required a firm stance by the government; second, that the government had very few legislative tools beyond the Criminal Code and Civil Law and, as neither of these proved to be effective, the government had no other options; and third, that it was necessary for the government to invoke such legislation as the WMA in order to ensure the preservation of

democracy in Quebec. These three criteria inform his perceptions of the WMA as justifiable, even in the face of criticisms advanced soon afterwards which drew on human rights and civil liberties to argue against the Act. There are two key assumptions which are evident in Pelletiers analysis. The first is that [when] certain groups go beyond the rules defined by the laws or the constitution to challenge...power, established power will defend itself6; and second, that every repressive measure, however justified in a period of crisis, inevitably engenders a certain number of injustices7. These assumptions, in combination with his three primary criteria, form the foundations for his assessment of the WMA as not only justified but necessary action on the part of the federal government. Pelletier first sets out to characterize the context in which the decision to invoke the WMA was undertaken. He argues that a state of apprehended insurrection was brewing in Quebec; however, this state was a combination of many social, historical and political factors, in which the FLQ played a relatively small role. The state of apprehended insurrection combined the atmosphere created by so-called armchair revolutionaries, those intellectuals who supported the ideas of Quebecois nationalism and nationhood, yet who did not participate directly in revolutionary activities, with social factors such as unemployment, economic disparities and general unrest. Added to this picture was the traditional exclusion of separatism from the realm of mainstream political ideology, creating a sense of bitterness among many who supported this school of thought. Finally, the escalating violence committed by the FLQ from 1963 until the 1970 October Crisis, as well as their ideological popularity among the intelligentsia, illustrated to the federal and provincial governments that the potential for an insurrection was rising. Pelletier is careful to qualify the term apprehended insurrection as

6 7

Ibid., 129, emphasis in original. Ibid., 141, emphasis in original.

distinct from popular insurrections; he argues that the majority of insurrections are not popular, and that an apprehended insurrection was therefore just as dangerous, if not more so, than a popular insurrection8. The idea that a state of apprehended insurrection existed is critiqued extensively by subsequent writers; although an interesting theoretical debate, the necessity of this question is rather tangential, for it is more important that the government perceived a state of apprehended insurrection than it is to know empirically if such a state ever existed. The second key point raised by Pelletier is that the government was placed in an extraordinary situation during the October Crisis, one that had very little precedent in a Western democratic setting, and thus they had few legislative tools at their disposal to deal with the threat posed by the FLQ. Domestic terrorism was simply not a political reality prior to 1970, and the federal government was charting new territory dealing with the FLQ. Prior to the imposition of the WMA, the federal and provincial governments had at their disposal the Criminal Code and the Quebec Civil Law; in terms of material resources, they directed provincial and local police forces in Quebec and Montreal, respectively. Pelletier argues that no democracy, even the most perfect, can be a sufficient barrier to terrorist action9that is, democracy cannot protect itself solely through democracy. Often times it must take a firmer stance. In light of his earlier discussion regarding the existence of a state of apprehended insurrection, it becomes increasingly clear that, of the options available to the federal government, the imposition of the WMA was the most logical. The federal government had two options, according to Pelletier: to negotiate, an option which he argues would only have postponed the inevitable eruption of tensions in Quebec rather than diffusing the crisis situation10; or to establish boundaries which, if violated, would trigger severe consequences. The symbolic purpose of the War Measures Act
8 9

Ibid., 77-83. Ibid., 47. 10 Ibid., 133.

was therefore equally as important as its functional role, as it was just as essential to eliminate violence as a potential course of action as it was to facilitate police action against the FLQ. Gerard Pelletiers final, and arguably most significant, criteria against which to evaluate the WMA is its role in the preservation of democracy in Quebec. This criteria, although largely ignored by his contemporaries, emerges clearly in more recent works, including those by J.L. Granatstein and Will Ferguson. Taking a macro-level approach, Pelletier argues that democracy plays an important role in the social structure of Quebec, establishing the rules and parameters of the political arena. The terrorism of the FLQ ran directly contrary to the ideals of democracy; despite their stated desire to improve democracy by creating a separate and truly representative Quebecois state, the FLQs tactics would result in the loss of freedom by the majority of citizens11. Inducing fear in people is never a legitimate political strategy, and Pelletier believes that it is absolutely necessary to keep political struggles within the rules of a democratic society. While his equation of the FLQ with Hitlers Nazi party is rather extreme despite the similarities he notes, his argument for the necessity of preserving a democratic political system and fending off challenges to the legitimate authority of the elected government capture the motivations behind the imposition of the WMA. As noted above, Pelletier acknowledges that repressive measures inevitably lead to certain injustices, but also that these injustices are worthwhile sacrifices to the preservation of political freedom in society. Pelletiers The October Crisis is somewhat of an exception to the rule, due in large part to his personal role in the implementation of the WMA; early writers on the October Crisis and the imposition of the WMA display overwhelming opposition to the federal governments actions. Their reaction is understandable, for in the immediate aftermath, the consequences were becoming clear while the long-term beneficial results were not yet apparent. These authors,
11

Ibid., 37-39.

including Ron Haggart and Aubrey E. Golden, Denis Smith, George Bain, Abraham Rotstein and Gad Horowitz, focus on the need to place priority on human life and liberty over the preservation of the state and the proportionality of the states reaction. With regards to the latter, most question whether or not sufficient evidence exists to even categorize the October Crisis as an insurrection, apprehended or otherwise. What is noticeably absent from many of their analyses is the fact that the WMA enjoyed considerable popularity at the time of its implementation; Denis Smith provides virtually the only commentary on this occurrence. He argues that public support for the WMA was monolithic evidence that the public trust had been abused12, accusing the federal government of defining public opinion before the public could make up its own mind. None dispute that support for the WMA only increased following the murder of Pierre Laporte. Their criteria for evaluation yields a great deal of animosity towards the federal government, Pierre Trudeau in particular, for its actions during the 1970 October Crisis. Ron Haggart and Aubrey E. Goldens work, Rumours of War, published in 1971, provides an in-depth look at discourses within both the federal and provincial governments, as well as that which coloured popular opinion in Quebec and across Canada. Haggart, a former Globe and Mail columnist, and Golden, a lawyer working in constitutional and administrative law, are closely aligned with not only individual but political opponents of the WMA; for instance, their introduction was written by Robert Stanfield, leader of the Conservative opposition party during the October Crisis. Rumours of War is characteristic of many written in the immediate aftermath of the October Crisis; their work illustrates the concern of their contemporaries for the effects of the invocation of the WMA on life throughout Quebec and Canada. Unlike Pelletiers argument in The October Crisis, theirs is not a macro-level analysis;
12

Denis Smith, Bleeding Hearts, Bleeding Country: Canada and the Quebec Crisis (Toronto: Hurtig, 1971), 147.

in fact, their argument directly counters such a perspective, which would argue that the WMA constituted justifiable means with which to preserve, democracy, order and stability. Rather Rumours of War articulates several themes which are apparent throughout the works of Denis Smith, George Bain, Abraham Rotstein and Gad Horowitz, and, to some extent, Thomas Berger. First, Haggart and Golden articulate the parameters of analysis, casting individuals as the subject of analysis and the WMA as the object. What becomes most important, from this perspective, is the impact of the WMA on individuals whose rights were violated because of it, elevating a concern for human rights to a level of primacy above all other criteria against which the WMA can be evaluated. Order and stability become secondary in relation to these concerns. What is unique about the argument advanced by Haggart and Golden is that, rather than criticising the WMA for its effects on rights and freedoms such as the freedom of expression, they argue against the WMA for its abrogation of individual legal rights. This argument leads into questions of the proportionality of the federal governments response to the events of the October Crisis. Haggart and Golden posit that the invocation of the WMA was not proportional to the threat posed by the FLQ, and that the government should have trusted the provincial criminal code and judicial system to dispose with the organization. The overriding of legal rights resulted in an excessive number of arbitrary arrests for very poor reasons, and as such the WMA was perceived to be a tool for both provincial and local police forces to detain anyone who did not support their beliefs or their claims to power. Haggart and Gold illustrate this point clearly, noting many cases in which citizens were arrested for subversive activities. As a counterpoint, they quote Pasquale Julien, an eighteen year old Quebec citizen whose mother was arrested, as he illustrates the problem with casting such a wide net: everybody these days is

making trouble for people they dont like13. Haggart and Golden further question the legitimacy of the federal governments claim that an apprehended insurrection every truly existed; this critique is a common theme throughout the literature of this period. Interestingly, however, Haggart and Golden argue that the federal government did not try to justify their actions for two key reasons: first, that they themselves had not declared that apprehended insurrection existedthat assertion had originated with the provincial and local authorities in Quebec, and therefore the burden of proof did not fall on the federal government; and second, because they did not have any justification. Haggart and Golden emphasize that the WMA was designed and intended to support a military action, not a police action. It was never intended as a tool to root out criminals, whether they be self-styled terrorists or just thugs14. There was little historical precedent for the abrogation of civil liberties in peacetime, not only in Canada but in similar Western democracies such as the United States of Great Britain. The actions of the federal government were justified in the eyes of the public after the fact, with the murder of Pierre Laporte. Haggart and Golden find further fault with the imposition of the WMA in its lack of functionality. While much has been made of its authorization of extended detentions and its loosening of traditional evidentiary rules, the WMA did not grant the police any additional powers. While other authors of this period pick up on this argument, Haggart and Golden express it best, noting that [neither] the War Measures Act regulations nor the Public Order Act would improve the investigative quality of the Montreal or the Quebec Police Forces. Neither act could put more men on the case and neither act could motivate the kidnappers to free their victims.15

Ron Haggart and Aubrey E. Golden, Rumours of War (Toronto: James Lorimer, 1971), 69-85, qf. 85. Ibid., 101. 15 Ibid., 267.
14

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Given that the WMA did not itself directly quell the FLQ, why was it implemented? The authors argue that the WMA was, on the whole, symbolic of the government taking a firm stance in opposition to the FLQ in order to restore public confidence. However, while more recent authors, including J.L. Granatstein, find this to be fully positive and necessary, Haggart and Golden argue that a reaction grounded in the Criminal Code and in Civil Law would have been just as effective. The WMA was therefore not only unnecessary but also unjustifiable as it directly countered the authors perception of an effective response. Haggart and Golden make one further point which should be noted here, with regards to the role of the Opposition. The authors are extremely sympathetic to Opposition parties, seeming to overlook or to seek alternative justifications for their support of the WMA. They emphasize the role of the Opposition, specifically Robert Stanfields Conservative Party, in trying to question the legitimacy of the federal governments invocation of the WMA. However, despite the desire of the Conservatives to preserve the delicate balance between security and freedom16, the House passed the WMA, as popular opinion overwhelmingly supported its invocation. Immediately following its imposition, Haggart and Golden argue that in this crisis, Parliament [became] largely irrelevant17, as the public simply did not want to hear criticism, regardless of the consequences of the imposition of the Act. Denis Smiths Bleeding Hearts, Bleeding Country intensifies the attack against the WMA begun by Haggart and Golden, and his discussion regards the propriety and prudence of suspending civil liberties during the October Crisis. Smith, a professor of political science and political economy throughout Ontario and Quebec, bases his analysis of the federal governments actions on three primary questions: was there any other way to diffuse the crisis

16 17

Ibid., 52. Ibid., 67.

situation in which the government found itself? Did the government conduct itself in a manner which gave priority to the protection of human life and human liberty18? And finally, were the actions of the federal government proportional to the threat it felt; or, was there truly a threat of insurrection to justify the extreme actions by the federal government? Smiths perceptions of the justifiability of the imposition of the WMA is coloured first by his desire to prove that, although alternative means for resolving the October Crisis existed, the federal government, by pursuing varying and relatively uncoordinated responses to the FLQ prior to the passing of the WMA, took the least favourable option. He argues that the federal governments attitude towards the FLQ hardened over the course of the crisis, making one of the primary considerations of the government the need to appear strong in the face of the threat posed by the FLQ. This contributed to an unwillingness to compromisean alternative which he, contrary to Pelletier, believes may have yielded not only favourable results in calming the crisis atmosphere but which may also have brought about the release of Pierre Laporte rather than his executionwhich effectively created a self-fulfilling prophecy in which the government perceived the WMA as necessary19. Thomas Berger picks up this theme in Fragile Freedoms: Human Rights and Dissent in Canada, noting that the October Crisis provides a case in which morbid excitement of a crisis can spread and lead to the abrogation of civil liberties20. The idea that the implementation of such extreme measures as the WMA must be considered a last resort echoes throughout much literature on this topic, proving to be central to the debate as it is argued by some, such as Denis Smith and Thomas Berger, that it was not a last resort, as opposed to others, including Gerard Pelletier and J.L. Granatstein, who argue that the federal government had no other options at the time.
Smith, Bleeding Hearts, Bleeding Country, 105. Ibid., 25-33. 20 Berger, Fragile Freedoms, 204.
19 18

What is further significant about Smiths account is that he looks at the WMA in relation to its potential for saving the lives of the two kidnap victims, James Cross and Pierre Laporte. His first chapter deals exclusively with the value of a human life in a political duel such as that which occurred in October 1970, concluding that the federal government was acting under the assumption that an individual life was a justifiable sacrifice in the face of a threat to an entire political system. This criteria is distinctly absent from later accounts, including both those by both Ferguson and Granatstein. Smiths case is therefore quite compelling in that the governments actions cannot be justified for the purpose of saving the lives of Cross and Laporte; as he illustrates later on in Bleeding Hearts, Bleeding Country, the governments tactics were not only disorganized but irrational, as both the Liberation and Chenier cells had demonstrated a willingness to compromise prior to the implementation of the WMA. The passing of the Act was therefore not a tool to be used in saving lives, but rather a tool with which to crush the FLQ organization. The lack of government concern for the lives of those involved calls into question whether or not it is possible to justify the WMA. The efficacy of the WMA with respect to saving lives must be of primary importance while evaluating the justness of the federal governments actions. The emphasis on the preservation of human life over the preservation of democracy emerged as key criteria in evaluating the invocation of the WMA immediately following the October Crisis. Throughout the early 1970s, it would remain at the forefront of the public conscience, as it is arguable that the imposition of the WMA directly contributed to the Chenier cells decision to execute Pierre Laporte. Smith makes the case that both cells repeatedly exhibited a willingness to compromise with the government; for instance, responding to very modest concessions from the government, such as the broadcasting of the FLQ manifesto on

television, the cells reduced their demands to a minimum that they believed would be acceptable to both sides21. Yet the government repeatedly rebuffed these gestures, choosing instead to delay, contributing to an increasingly tense situation in which lives hung precariously in the balance. George Bains chapter in Power Corrupted: The October Crisis and the Repression of Quebec echoes these comments, arguing that the federal government could be held directly accountable for the consequences of the WMA, as they were more concerned with standing up to the FLQ that with saving lives22. Bain and Smith further question whether or not there was evidence of an actual insurrection that would justify the imposition of the WMA. Bain, a Globe and Mail columnist and critic of Trudeaus Liberal government, notes that, although the WMA was implemented to counter the threat of apprehended insurrection posed by the FLQ, what this threat precisely consisted of was never fully explained by the government. The federal government argued that prior to their invocation of the WMA, the FLQ had given abundant public evidence of its fanaticism23, as well as public communiqus which had implied that its arsenal of both weaponry and manpower far exceeded those which could be controlled by regular police forces. However both Bain and Smith argue that, in reality, the FLQ consisted of only hundreds of members who were disorganized and, although in possession of a significant supply of bombmaking supplies, who in no way consisted of the parallel power described by the government. The governments perceptions of wider and more vicious plots by the FLQ were not substantiated, and therefore their rational for implementing the WMA was functionally incoherent as the government had at its disposal sufficient means for putting down an

21

Smith, Bleeding Hearts, Bleeding Country, 11, 25-33. George Bain, The Makings of a Crisis, in Power Corrupted: The October Crisis and the Repression of Quebec, ed. Abraham Rotstein (Toronto: New Press, 1971), 11-13. 23 Smith, Bleeding Hearts, Bleeding Country, 3.
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organization like the FLQ. Yet there is one major flaw in this evaluation which is that the government sincerely did not know what the true capabilities of the FLQ were, and the FLQ certainly was not going to provide any sort of realistic estimate. Therefore although this criteria would gain a fair amount of consideration among writers at the time, it assumes the omnipotence of the federal government and cannot be considered primary in relation to the variety of other criteria available. Abraham Rotstein and Gad Horowitzs Power Corrupted present a series of essays which critique the federal governments imposition of the WMA. The majority of authorsincluding George Bain, noted aboveattack the WMA as an overreaction to a perceived insurrection which did not actually exist as it was interpreted by the government. In their summation to this anthology, University of Toronto political scientists Rotstein and Horowitz continue this argument to two conclusions. First, they argue that, although the FLQ and the October Crisis constituted a manifestation of separatism, they were but one manifestation of the separatist movement. The issue of separatism had existed prior to the emergence of the FLQ. However, the federal and provincial governments responded to the October Crisis as it the FLQ represented the sole group concerned with separatism; this view, captured clearly by Thomas Berger, is that the FLQs terrorist activities in the name of separatism were imitative, isolated and without popular support24. Prior to the October Crisis, separatism was excluded from the political arena and was therefore largely contained to private, underground movements. But the issue itself had existed, and had been ignored in provincial and federal political institutions, contributing to the radicalization of separatist group such as the FLQ. Yet, as Rotstein and Horowitz argue,

24

Berger, Fragile Freedoms, 190.

the issue of parallel power [of the separatist movement] emerges full-blown as if it had never existed before the FLQ, and is dealt with through a national hysteria of political and military overkill.25 In contrast, Will Ferguson argues that in this respect, the federal governments invocation of the WMA was actually very effective, as it brought the issue of separatism into the realm of legitimate political discourse and in doing so, smoothed the edges of radicalism into the form of political dissent rather than terrorism. Second, Rotstein and Horowitz argue that the true purpose of the WMA was symbolic rather than functional. Echoing the argument of Haggart and Golden in Rumours of War, Rotstein and Horowitz note that the WMA did not directly bring about the breaking up of FLQ cells as it did not give the police any additional powersit merely extended those that they already possessed. Adapting Haggart and Goldens thesis, they describe the WMA as a demonstration of the governments will to rule, to defend their rights as the sovereign, elected and legitimate authorities in Quebec and across Canada. From this perspective, the WMA cannot be viewed as justifiable, as it was at best an excessive display of unnecessary force and at worst a gross overreaction to political dissent, albeit in the form of violent, illegal acts. Furthermore, Rotstein and Horowitz note that the federal governments actions during the October Crisis have set a dangerous precedent for the use of the WMA and emergency powers to quell dissenta precedent which can be repeated with greater ease the second time. Though coming a decade after the preceding studies, Thomas Bergers Fragile Freedom: Human Rights and Dissent in Canada largely coheres with the sentiments of early writers on the October Crisis, who were overwhelmingly against the imposition of the WMA, rather than more recent writers who advance arguments in favour of it. Berger, former British Columbia New Democratic Party Leader and British Columbia Supreme Court judge, argues against the
Abraham Rotstein and Gad Horowitz, Quebec and Canadian Nationalism: Two Views, in Power Corrupted: The October Crisis and the Repression of Quebec, ed. Abraham Rotstein (Toronto: New Press, 1971), 124.
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imposition of the WMA on the basis that its passage would only detract from the value of human rights in Canadian society. His argument centers on the notion that, despite the justifications provided by the federal governmentthat WMA was used to provide the federal government with the power to mobilize the nation against external enemies and to extinguish internal rebellion26the WMA constituted a gross assault on civil liberties in Canada. Its invocation not only called into question the legitimacy of the federal government as the protector of human rights, but also helped to establish the FLQ as the type of parallel power that the Act was intended to quell. According to Berger, the WMA constituted draconian measures, used not only to check what [the federal and provincial governments] said as an apprehended insurrection and, at the same time, to stifle dissent throughout Canada27. The argument of his chapter on the October Crisis is based primarily on the same criteria established by Haggart and Golden, Smith, Bain, Rotstein and Horowitzhuman rights and proportionalityhowever his book comes in the form of a critique of the effect of the federal governments actions on the government itself. Throughout the chapter, he advances the thesis that, by taking a firm stand on human rights and civil liberties, instead of trampling over them in favour of the protection of the state, the federal government could have called the crisis atmosphere that was growing in Quebec and thereby restored social stability. The federal government, it would appear, was lacking in the self-confidence to knowand to tell the publicthat it already possessed the resources and capabilities necessary for dealing with the FLQ without resorting to emergency powers. The invocation of the WMA flew directly against the spirit and the letter of the Canadian Bill of Rights28, which was unacceptable to Berger as his

27

Berger, Fragile Freedoms, 216. Ibid., 191. 28 Berger, however, also notes that the Bill of Rights contains a clause stipulating that it does not apply in any case where the War Measures Act has been invoked. Ibid., 202.

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thesis rested on the idea that firmness is better shown...in the defence of civil liberties29. The safety of the state and of the legitimacy of the government rests more on the conviction of the people governed by that state that the right to dissent is valued and contributes to the life and the health of the state, than on the willingness of the state to defend its own supremacy. With regards to proportionality, Bergers argument differs slightly from those advanced before. In addition to questioning whether or not a state of insurrection actually existed, he further questions both the means and the determination of the FLQ to bring about the overthrow of the state. He argues that the FLQs primary objective during the October Crisis was not to actually overthrow the entire government; rather he asserts that they were more concerned with ensuring the release of the political prisoners mentioned in their demands. It should be noted that demands for their release would appear to be considered fundamental to the FLQ, as this was the primary demand that remained as the FLQ repeatedly reduced their list in order to encourage co-operation by the government. Berger is clear that not only was this request primary, it was also reasonable for the FLQprisoner exchanges had occurred in other countries facing similar crises, and therefore the FLQ had reason to believe that the government would grant these demands. On the basis that the primary motive for the FLQs actions was to ensure the release of these political prisoners, Berger finds that the government over-reacted and did not abide by the necessity for proportionality when they implemented the WMA, thereby rendering their actions unnecessary and unjustifiable. The criteria against which earlier writers evaluated the federal governments imposition of the WMA differ greatly from those established by more recent authors, such as J.L. Granatstein and Will Ferguson. These writers largely return to the criteria established by Gerard Pelletier, and engage in similar macro-level analyses. Rather than grounding their arguments in
29

Ibid,, 210.

concerns for human rights and proportionality, they base their evaluations on the long term benefits of the governments actions: did it preserve democracy in Quebec? Did it prevent the overthrow of the provincial government? Did it restore order and stability? These criteria illustrate a distinct shift from micro-level concerns for individual human rights and morality in the face of challenges to authority, to macro-level concerns for the democratic political system of the province as a whole. Recent authors effectively remove the human dimension. That is not to say that these authors are not influenced by emotional reactions to the events of October 1970; nor is it to say that their analyses preclude any consideration of the impact of the invocation of the WMA on human rights and civil liberties. Rather, these authors focus primarily on the maintenance of the Canadian political system as democratic and "civilized"30 in which political dissent is carried out through discourse and debate rather than acts of terrorism. These authors take this position after having seen and been part of the long-term effects of the federal government's actions, such as the absence of terrorism since the 1970 October Crisis. From their perspective, the WMA was both necessary and justifiable as the government used what tools it had at its disposal to quall what was perceived to be a legitimate threat to both the democratically elected government of Quebec and the political system and a whole. Canadian military and political historian J.L. Granatstein presents an interesting discussion of one issue which has posed a challenge to historical analysis of the WMA, yet which is also often dismissed in favour of contemporary analysis of the period. His chapter, "Changing Positions: Reflections on Pierre Trudeau and the October Crisis, discusses how perceptions of the WMA have changed over time. Beginning with a discussion of his own opinions, which have also experienced a parallel shift, he argues that hindsight has turned the

30

Ferguson, Bastards and Boneheads, 304.

collective mind31 against the WMA; the collective mind has come to view those concerns about the WMA which Granatstein himself raised at the time as increasingly legitimate. Contemporary opinion, he argues, finds the WMA itself repugnant because of the damage it did to civil liberties at the time. The suspension of the rule of law across Canada and the subsequent arrests and detentions were excessive and unjust; to use the expression of the time, the federal government was using a mallet to kill a flea32. The federal governments actions at the time were not only a blatant violation of human rights, but provided ammunition for separatists to illustrate the federal governments dislike for the Quebecois. Granatsteins own perceptions of the WMA at the time of imposition followed similar lines, although without the benefit of hindsight he could not have known how many of his predictionsspecifically that the WMA gave the government free reign to target any possible source of opposition, including but not limited to Quebec nationalists, separatists, hippies or general critics of the governmentwould come to pass. Granatsteins chapter is significant because it not only illustrates that public opinion at the time was strongly in favour of the WMA at the time of its imposition, a factor which no thorough analysis can ignore, but also in that Granatstein, himself a dissenter who did not support the Act at the time, discusses why, in hindsight, the WMA was not only just but necessary. Granatsteins opinion regarding the federal governments actions during the October Crisis, contrary to public opinion, has over time shifted in favour of the WMA. He argues that the imposition of the Act was necessary because the government was facing a true challenge to order in stability in Quebec, and that the provincial government was facing potential collapse.

J.L. Granatstein, Changing Positions: Reflections on Pierre Trudeau and the October Crisis, in Trudeaus Shadow: The Life and Legacy of Pierre Elliot Trudeau, ed. Andrew Cohen and J.L. Granatstein (Toronto: Random House, 1998), 300. 32 Ibid., 297.

31

Furthermore, he notes that ordinary police measures had not sufficiently dealt with the Crisis, and would not likely be able to resolve it satisfactorily. Echoing Pelletier, his argument centers on the idea that, in the words of Trudeau, it is the duty of any democracy to protect itself against he forces of dissolution as soon as they raise their heads33, and that the WMA was the primary, if not only, mechanism available to the federal government to protect democracy in Quebec. His primary for evaluating the actions of the federal government therefore rest on his application of one key question to the October Crisis: did the imposition of the WMA preserve democracy in Quebec? When viewed from this perspective, the implementation of the WMA was prudent and necessary. The arrests and detentions which followed showed to the public that the government would not tolerate insurrection, and helped to quell the crisis atmosphere, therefore restoring a necessary degree of stability; as Granatstein articulates, the imposition of the War Measures Act, the awareness that the state would use its full powers, was precisely the boost that the forces of order and public confidence required34. For Granatstein, the primary criteria against which the WMA can be measured is the maintenance of order, stability and democracy in Quebec. With regards to human rights abuses, he posits that the temporary loss of liberty may be necessary in times of crisis, so long as the end goal is to restore these rights through the preservation of democracy. Granatstein makes one further observation regarding the October Crisis which seals his argument in favour of the WMA. He notes that although the October Crisis saw the first public manifestation of separatist tendencies in Quebec, the Crisis and the WMA together served an important political function which may have preserved both the province and the country in its

33 34

Ibid., 304-305. Ibid., 303.

present form. He argues that by reacting against the conspiracy-charged FLQ in such a manner, the federal government forced the issue of separatism out from the underground and into the public realm. Recasting separatism as a legitimate political issue forced those in favour of it to act through political rather than reactionary channels and to deal with the issue in a civilized fashion in public forums35. As Granatstein argues, advocating Quebec...separatism is a legitimate political activity in a Canadian democracy, but kidnapping and murder are not36. Contrary to authors like Denis Smith, Granatstein perceives that not only was the imposition of the WMA just, but that it served important political functions in preserving democracy and social stability in Quebec and in bringing separatism into the arena of legitimate political discourse. Will Fergusons chapter, The October Crisis: the Revolution Turns Noisy, in his book Bastards and Boneheads: Canada's Glorious Leaders Past and Present, takes a satirical approach to analysing the federal governments imposition of the WMA. While clearly not intended to provide critical insight into the events of October 1970, his chapter does provide an interesting perspective on those events. Ferguson, a prolific Canadian historical and cultural humourist, argues that the WMA, while an extremely blunt instrument, was effective, and therefore, in his estimation, justified. Fergusons analysis is somewhat similar to Granasteins in that the primary criteria for judging the federal governments actions is the preservation of democracy in Canada and the upholding of the legitimately elected government of Quebec. While Ferguson notes many of the critiques of the WMA, specifically of mistakes that were made under its jurisdiction, he clearly believes that the FLQ was not going to disappear on its

35 36

Ibid., 304. Ibid., 301.

own37 and that the government had to take a firm stance with regards to the organization. Moreover, he notesalbeit somewhat sarcasticallywidespread support for the WMA, both within Quebec and across Canada; for instance, he quotes historian Walter Stewart as recalling that [at] York University, in Toronto, students help a large, noisy protest in favour of the repression38. Like Granatstein, Ferguson acknowledges that such overwhelming support for any piece of legislation must be considered in analysing its historical context. Ferguson find one additional criteria against which to judge the implementation of the WMA. From the outset, he notes that the federal government was acting within its legal rights in passing the Act. Although some of the powers given to police as a result of its imposition may have appeared to operate outside the realm of traditional jurisprudence, the FLQ had created an extra-ordinary situation in which the government had to turn to what legislative tools that were available to it. Hindsight, he notes, is dangerous, because one can never truly recreate the conditions that influenced the governments decision; however, Ferguson concludes that they were legally justified in implementing the WMA for the sake of preventing the FLQ from bringing about a collapse of democracy in Quebec. In the case of the invocation of the WMA in 1970, there has been a distinct shift in historical opinion, as illustrated by the works noted above; with the exception of Gerard Pelletier, the majority of literature opposed the federal governments imposition of the WMA, while contemporary authors appear to be in favour of it. The debate is characterized by a division between those who argue that democratic stability must be primary in considerations of the WMA, and those who argue that concerns for human life and liberty are similarly fundamental. These shifts reflect changing discourses of morality and justness, which have

37 38

Ferguson, Bastards and Boneheads, 205. Ibid., 205.

evolved over time to value certain criteria over others. These shifts also represent the growing historical distance between the authors noted above and the events of October 1970. The federal governments implementation of the WMA during the 1970 October Crisis has been highly debated, and it is unlikely that a consensus regarding the appropriateness of their actions will ever be reached. Whether the WMA good for Canada, for the individual, or for both is an impossible question to answer, and one can rely only on what little empirical evidence is available in forming a reasonable assessmentCanadas nationhood has enjoyed a reprieve, and human rights have flourished under a tentative alliance between the forces of centralization and those who desire a new beginning for their nation.

Bibliography Bain, George. The Makings of a Crisis. In Power Corrupted: The October Crisis and the Repression of Quebec, edited by Abraham Rotstein. Berger, Thomas. Fragile Freedoms: Human Rights and Dissent in Canada. Toronto: ClarkeIrwin, 1981. Ferguson, Will. Bastards and Boneheads: Canada's Glorious Leaders Past and Present. Vancouver and Toronto: Douglas and McIntyre, 1999. Granatstein, J L. "Changing Positions: Reflections on Pierre Trudeau and the October Crisis." In Trudeau's Shadow: The Life and Legacy of Pierre Elliot Trudeau, edited by Andrew Cohen and J.L. Granatstein. Haggart, Ron and Aubrey E. Golden. Rumours of War. Toronto: James Lorimer, 1971. Pelletier, Gerard. The October Crisis. Toronto: McClelland and Stewart Limited, 191. Rotstein, Abraham, and Gad Horowitz. Quebec and Canadian Nationalism: Two Views. In Power Corrupted: The October Crisis and the Repression of Quebec, edited by Abraham Rotstein. Smith, Denis. Bleeding Hearts, Bleeding Country: Canada and the Quebec Crisis. Toronto: Hurtig, 1971.