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Wednesday 14 January 1998
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FEATURES NEWS |
How do we draw the line in war-measures powers? ROD MACDONELL and JAMES MENNIE
Although Ottawa agreed yesterday to deputize the more than 9,000 Canadian soldiers in Quebec and make them peace officers charged with helping Quebec police combat looters of the abandoned homes of ice-storm refugees, the soldiers will not be empowered to assist in force-evacuating residents from their homes.
Major Marc Rouleau could not explain last night why the soldiers will not participate in the evacuations, simply stating that the senior commanding officer, Maj.-Gen. Alain Forand, "deemed that it was not a role that he wanted his soldiers to be engaged in."
William Schabas, head of law at the Universite du Quebec a Montreal, claimed that the legal footing for forced evacuations is dubious at best.
He accused Montreal Urban Community Police chief Jacques Duchesneau of creating a "disturbing" precedent by granting the police exceptional powers to deal with unco-operative citizens or other suspicious characters.
The precedent could well haunt society for years, claimed Schabas.
Premier Lucien Bouchard reluctantly acknowledged in a press conference last night that the police are on shaky ground when they force people out of their homes, and although two court decisions support the police action, no formal law does.
"It's first of all about convincing people, explaining, convincing and treating them in a human way" when asking people to leave their homes, Bouchard said.
Duchesneau said this week that the unprecedented circumstances of the crisis confer on police "exceptional" powers allowing them to demand to see identification, ask citizens to justify their being in a particular place and compel them to leave their homes.
But Schabas countered that "laws give emergency powers to the police, police don't just invent them."
Duchesneau said the powers will be used to ensure the public's safety and should not be viewed with alarm.
Oddly, Schabas is not concerned that Duchesneau's police force will commit too many civil-rights abuses and the lawyer even likes the idea that the police presence in his neighbourhood may have deterred thieves from breaking into the house he abandoned last week.
But what worries Schabas is "that two years from now if there is some more overtly political crisis and Duchesneau then says 'Sure I have these powers. Remember I used them two years ago and nobody said boo, so of course I can use those powers whenever I feel like it.' "
Schabas said that "elected officials (and not the police) should decide when there is an emergency and when the police should have more powers."
Duchesneau claimed that door-to-door visits enabled police to save 70 lives.
To force people form their homes, the police are relying on a Canadian court decision rendered 20 years ago, which they say allows them to:
- Compel someone to leave their home if their presence represents a danger to themselves or others;
- Require a citizen to identify himself and explain the reasons for being in a particular place;
- Require a citizen who has no apparent reason to be in a particular neighbourhood to leave that area.
Duchesneau said officers would only compel someone to leave their home as a last resort, and officers would not "be breaking down doors" to check residences and would use a locksmith.
The chief contended that the object of ensuring public safety could be invoked by officers seeking to determine if a person in a blacked-out area of the city had any particular business there.
Refusal to produce proof of local residency or to leave an area when instructed to do so could result in a charge of obstructing a police officer and possible arrest, Duchesneau said.
The success of Duchesneau's operation made it appealing to authorities to use it in Monteregie, since officials are concerned that some residents people will freeze to death while remaining in their homes to protect them against robbers rather than abandoning them for a warm shelter.
Rouleau said last night that the army will be working in the Monteregie and South Shore, assisting the Surete du Quebec in combating criminal acts such as looting.
The soldiers will not be armed.
The last time the Canadian army was deployed in the streets of Quebec, in 1970, nationalists shrilly denounced the federal government for invoking the War Measures Act and suspending civil liberties in Quebec. This time, it's the nationalists who called in the troops for help, and asked that they be granted special power to be peace officers.
When the army or police are granted such extraordinary powers, civil libertarians worry about excesses, repressive tactics, arbitrary arrest and a slippery slope that could lead ultimately to a police state.
According to constitutional lawyer Julius Grey, the criteria to determine if excessive powers have been granted is to determine whether "the powers are proportionate to the goal (pursued)." The test is based on "common sense."
He said the ice storm "is merely a human catastrophe and not a political emergency," and the powers of the soldiers need to be "tailored," or narrowly defined, and not "wide open."
(It was not possible to discuss with Grey the specific powers conferred on the soldiers, because neither officials in Ottawa or Quebec would provide The Gazette with the paperwork spelling out the terms of reference that will guide the soldiers.)
Grey cautioned that "the difficulty with open-ended war-measures powers is that they are usually very sweeping, and not tailored, and that's why they could be challenged" in court.
"If they are tailored, then everyone would agree they are reasonable; after all, there are certain things you can do in an emergency that are absolutely rational.
"I would be particularly loath to see (soldiers) granted any powers to hold people (in custody), because there is no reason to do that," he said, again repeating that "this is not a political emergency."
Grey said that it is not disturbing for the soldiers to be granted the power to arrest looters, because all citizens have that power already with citizen's arrest.
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