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April 3, 2020

A Word or Two on the Emergencies Act

There has been an awful lot of discussion concerning the Emergencies Act lately.  And a lot of it appears to be misguided.

This past week-end, Andrew Leslie, a retired Lieutenant-General, former Commander of the Canadian Army, and a former Member of Parliament and Whip in the Liberal caucus led by Mr. Trudeau, emphatically called upon the Prime Minister to invoke the Emergencies Act.

Much of the discussion revolves around various reporters asking Prime Minister Trudeau when or if he intends to invoke the Emergencies Act.

But that’s the wrong question.  And when you ask the wrong question, the answer you receive – answers like that proposed by Andrew Leslie – will be of dubious merit.

The ‘right’ question to ask is this: During this crisis, what powers and functions are required of the federal executive, which they cannot now exercise under the current legislative regime, which they could exercise if an emergency is declared under the Emergencies Act?

There are valid reasons why, since it was first enacted in 1988, the Emergencies Act has never been invoked.  The predecessor legislation – the War Measures Act – was only invoked three times: (i) World War I (or The Great War); (ii) World War II; and, (iii) the October Crisis of 1970.  The reliance on the War Measures Act in 1970 was controversial and, arguably, that controversy was one of the factors that led to the enactment of the Emergencies Act – or, perhaps more accurately, influenced the content of the Emergencies Act.

The question I pose above, has four key factors:

  1. It focuses on the federal level of government;
  2. It focuses on the executive;
  3. It asks what powers or functions the federal executive cannot or does not exercise under the present existing legislative landscape; and
  4. It asks whether these functions or powers would be available under the Emergencies Act.

All of these factors are important.

Canada is a constitutional federal parliamentary democracy.  The nature of our democracy dictates those relevant elements.


The Emergencies Act is Federal Legislation

Before we rush to urge the Prime Minister to invoke the Emergencies Act, we must remember that much of the response to the COVID-19 pandemic lies with the provincial governments.  This does not mean that the federal government does not have an important role in this crisis.  However, we have to remember that the Constitution Act, 1867 divides powers between the federal and provincial spheres, with any residual powers and the responsibility for ‘Peace, Order, and Good Government’ vested in the federal government.  However, hospitals and health care services, the administration of justice and the courts, the regulation of business, lies within the provincial sphere.

Provinces, such as Ontario, have invoked emergency legislation (in Ontario, this is manifested in the Emergency Management and Civil Protection Act).  In Ontario, for example, the provincial executive has already relied upon this legislation to address various adjustments to our everyday lives.  This is not surprising in light of the prevalence of regulation under provincial legislation.

So, before we rush to insist that the Emergencies Act be invoked, we must first determine what aspects of governance, which fall within the federal sphere, require action.


The Federal Executive has Significant Powers

The second aspect of the question that must be addressed is whether there is a gap in the powers and functions of the federal executive.  Even if we can define sectors where it falls to the federal government to act in response to the COVID-19 pandemic, recourse to the Emergencies Act may be required only if the federal executive lacks the power to respond.  The Governor in Council (the federal cabinet) is already empowered in a variety of statutes to exercise daily governance at the federal level.

The Emergencies Act exists principally to grant extraordinary powers to the federal executive in time of emergency.  The Act identifies four types of emergency in Parts I through IV: (i) public welfare; (ii) public order; (iii) international; and, (iv) war.  While the COVID-19 pandemic is certainly an ‘international emergency’, if the Emergencies Act were invoked, it is likely that the federal executive would characterize it as a public welfare emergency.

However, the federal executive should invoke the Emergencies Act only if it cannot govern effectively during this crisis under its existing powers and functions.  Moreover, the executive would have to identify the necessary powers or functions that it would obtain through reliance on the Emergencies Act.  Under Part I of the Act, which pertains to ‘public welfare emergencies’, section 8 lists various extraordinary powers and functions, including:

  1. The regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;
  2. the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;
  3. the requisition, use or disposition of property;
  4. the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;
  5. the regulation of the distribution and availability of essential goods, services and resources;
  6. the authorization and making of emergency payments; etc.

And these powers and functions may be enforced under criminal sanction.  This can be contrasted with the powers granted to provinces under their emergency legislation, which is enforced through regulatory prosecution.


But Remember: Canada is a Parliamentary Democracy

But we must remember that, under Canada’s constitution – a constitution that is “… similar in Principle to that of the United Kingdom …” – Parliament is sovereign.  Whether we are concerned with Parliament at the federal level, or legislatures at the provincial level, it is the legislative branch of government that is sovereign.  It is the legislative branch that enacts statutes.  Part VI of the Emergencies Act recognizes the importance of the sovereignty of Parliament by requiring any ‘declaration of emergency’ to be laid before the Houses of Parliament within seven sitting days and, if the Houses stand adjourned, to Summon Parliament within seven days.

While the Act recognizes the supervision of Parliament, this supervisory role also suggests another element of the ‘question’ that I pose: in light of the supremacy of Parliament (at the federal level), the federal executive should also consider whether a declaration of an emergency, in order to invoke the Emergencies Act, is preferable to, or necessary in lieu of, Parliament acting in its legislative role.

There may – or may not – be reasons why Parliament cannot sit during this crisis.  I do not purport to provide a definitive answer on the ability or advisability of Parliament to sit in sufficient numbers to satisfy both the legal requirement for quorum and the political exigencies that arise in a ‘minority government’.  Nor must I answer such questions in order to address the question that I pose.  What I will state is that, if Parliament is in a position to act, and the action that must be taken at the federal level is action that is typically taken by the legislature, then reliance upon the Emergencies Act may not be the ideal response.

In Canada, as in any parliamentary democracy, the executive must command the confidence of Parliament, particularly the House of Commons.  Typically, while the executive governs, Parliament legislates.  The extent to which the executive governs is defined by, and constrained by, the powers granted to it by Parliament, under myriad statutes.  While the executive must govern – particularly in times of crisis – it must not usurp the sovereignty of Parliament.



Thus, for those people who repeatedly ask if the Prime Minister will invoke the Emergencies Act, and for those people who boldly declare that the Prime Minister must invoke the Act, I ask the following:

What powers and functions have you identified that:

  1. Must be exercised at the federal level;
  2. Must be exercised by the executive at the federal level;
  3. Are not now within the scope of authority of the federal executive; and
  4. Would be permitted under the Emergencies Act?

For those people who are urging reliance on the Emergencies Act, but cannot answer these questions, perhaps you should just put your N95 mask back on.


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