When I agreed to write about the Emergencies Act, I had no idea that I would end up doing so at a time when the federal government was actually considering resorting to this never-before-used legislation. But with the arrival and spread of COVID-19 in Canada, this Act is an option the government has considered. While its use seems unlikely at time of writing, by the time you read these words the Act may well be in effect in some or all of Canada. Coming events will determine this.
The War Measures Act
The Emergencies Act was enacted in 1988 as a replacement for the War Measures Act (WMA). The latter was passed in 1914 shortly after the beginning of the First World War. The WMA gave the federal government the ability to quickly respond to international developments as it saw fit. The Act was short – only three pages – but dramatic in its scope and impact. Upon the government declaring there was a “war, invasion or insurrection, real or apprehended”, the Act gave it sweeping powers without the need to consult with or submit to the supervision of Parliament. Invocation of the WMA gave the federal government the power to:
- impose censorship on all publications and writings;
- arrest, detain, exclude and deport persons without the need for charges or trials;
- take over control of harbours and ports and all means of transportation;
- intervene in all trading of any sort.
Breaching a government order could result in imprisonment for up to 5 years.
The federal government has not yet used the Emergencies Act since it became law in 1988.Probably the most controversial aspect of the use of the WMA during each world war was the government’s internment of large groups of persons based solely upon their ethnicity and racial backgrounds. Thousands of persons were imprisoned in camps hundreds of miles from home, suffering not only the loss of their liberty but also properties, income and other aspects of their usual, peacetime lives. Fear of spies and saboteurs among these ethnic communities usually lay behind the government’s actions. But the vast majority of those imprisoned bore no allegiance to any foreign power. Almost all were loyal Canadian citizens who had committed no crime though none were permitted to appear in court to contest the government’s orders before being interned.
The “final straw” which ultimately led to the repeal and replacement of the War Measures Act was the only time it was invoked during peacetime: in October 1970 during the so-called “FLQ Crisis”. After years of bombings in Quebec, the violent Front de Liberation du Quebec (FLQ) kidnapped the British Commissioner for Trade and the Quebec Minister of Labour. The FLQ then threatened more violent actions if its demands were not met. (James Cross, the Commissioner, was ultimately released while Pierre Laporte, the Quebec Minister, was murdered.) After appeals for assistance from the mayor of Montreal and the premier of Quebec, Prime Minster Pierre Trudeau and his cabinet invoked the War Measures Act, effective at 4 a.m. on October 16, 1970. Within Quebec, the police quickly arrested hundreds of persons, including known nationalist and independence supporters (whether or not they supported the FLQ and its violent methods) as well as politicians and others whose views were considered to be “too far” towards the left of the political spectrum. Even outside of Quebec, police arrested persons who distributed the manifesto of the FLQ or literature explaining its aims and goals. Newspapers (usually student publications on university campuses across the country) which sought to cover the crisis or publish the manifesto were threatened with being shut down, and published editions were confiscated.
At the time, most Canadians supported the government’s response to the FLQ’s actions – including its use of the WMA. Over the years that followed and as more and more information came out, views changed. Ultimately, a consensus formed which tended to agree that use of this legislation was a significant overreaction to the criminal actions of a very few, isolated radicals and not the “apprehended insurrection” the government believed to be the case. Around the same time – also thanks to Pierre Trudeau – in 1982 Canadians adopted the Charter of Rights and Freedoms. The Charter placed more value on concepts such as democratic oversight and involvement of all forms of government action.
The Emergencies Act
NDP leader Tommy Douglas (one of the few who opposed use of the legislation) said the War Measures Act was “a sledgehammer [used to] crack a peanut”. By contrast, the Emergencies Act is a far more cautious attempt to clothe the government with exceptional powers in certain carefully described situations. These powers are more consistent with the democratic values and practices Canadians value in the 21st century.
The Act describes four different emergency situations and carefully outlines the powers the federal government may exercise in each case. It is intended as a “last resort”. The federal government may only invoke it when there is an urgent, critical “national emergency” which threatens the lives, health or safety of Canadians which is beyond the ability of a province to address, or which seriously threatens the ability of the Government of Canada to preserve our sovereignty, security and territory. There must be no other legal option to effectively deal with the crisis.
Public Welfare Emergency
A Public Welfare Emergency could apply in response to the COVID-19 pandemic. It is defined as:
- the result of real or imminent fire, flood, drought or other natural occurrence;
- disease in humans, animals or plants; or
- an accident or pollution.
Declaration of a Public Welfare Emergency expires after 90 days, unless it is revoked earlier or continued as needed. Under the declaration, the government has significant powers, including:
- regulating or prohibiting travel to, from or within a particular area;
- evacuating persons and property;
- controlling distribution and use of property and essential services; and
- establishing emergency shelters and hospitals.
A Public Welfare Emergency could apply in response to the COVID-19 pandemic. The powers of the government are limited to the area affected by the emergency and can only be exercised to supplement (not to impair) the ability of the province(s) involved to deal with the emergency. Public Welfare Emergencies are one of the two situations in which, prior to invoking the Act, the federal government is required to consult the affected province(s). If the situation only impacts one province, the Act may not be invoked unless that province confirms it is not able to deal with the situation alone.
Public Order Emergency
During a Public Order Emergency, similar provincial input is required. The Act describes this situation as one arising from:
- a threat to Canada’s security, including acts of espionage and sabotage;
- “foreign influenced” activities which are detrimental to Canadian interests;
- terrorist activities; and
- efforts to covertly or by violence overthrow the constitutional structure of the country (though lawful advocacy, protests, demonstrations and similar activities are not included).
The declaration expires in 30 days but can also be revoked earlier or extended for longer. The federal government has powers to, among other things:
- regulate or prohibit public assemblies (where they are reasonably expected to lead to a breach of the peace);
- regulate travel to, from or within specified areas;
- secure and protect designated areas and places; and
- assume control of, and restore and maintain, public utilities and services.
Where the emergency is limited to a specified area, the powers of the government are only in effect in that zone. The federal government must seek provincial input before the emergency is declared. If more than one province is involved, the government may proceed without consultation if to do so would jeopardize the effectiveness of the actions it intends to take in response to the situation.
An International Emergency involves Canada and one or more other countries and “acts of intimidation or coercion and the real or imminent use of serious force or violence.” This declaration lasts 60 days, subject to earlier termination or its continuation as necessary. The powers of The Act describes four different emergency situations and carefully outlines the powers the federal government may exercise in each case.the government are similar to those in the other situations but also include specific powers relating to:
- defence contracts and supplies;
- regulating or prohibiting of travel outside of Canada by citizens or permanent residents;
- removing from Canada persons who are not citizens, permanent residents or certain other “protected persons”;
- controlling international aspects of some financial activities within Canada; and
- authorizing the use of public funds for dealing with the situation even where Parliament has not given its approval.
However, the Act requires that none of the government’s exceptional powers be used to censor, suppress or control “the publication or communication of any information regardless of its form or characteristics.” In an International Emergency, provincial consultation is to take place as far as “it is appropriate and practical” to do so, but provincial agreement is not required. This is because in our federal system, the national government has sole responsibility for international and foreign affairs.
This is the most serious type of emergency addressed by the Act. A War Emergency involves “war or other armed conflict, real or imminent, which involves Canada or any of its allies…” This form of declaration expires after 120 days but can be revoked before that time or extended and renewed. The special powers of the government under such a declaration are almost without limit: it may “make such orders or regulations as … [it] believes, on reasonable grounds, are necessary or advisable for dealing with the emergency.” The only exception in the Act is that conscription may not be enacted by way of a regulation made under the authority of the declaration. As with the situation of an International Emergency, provincial consultation would only be required to the extent it is “appropriate and practicable in the circumstances.”
Limitations & Oversight
During all four situations, the Canadian Charter of Rights and Freedoms continues to apply as a limit on sweeping emergency powers of the federal government. Canadians’ rights and freedoms continue in force unless limited by other legislation or by court orders.
The other major change from the War Measures Act is that the Emergencies Act ensures a role for Parliament in overseeing and controlling the actions of the government. Regardless of the type of emergency being declared, the government must bring a motion before both the House of Commons and Senate for confirmation of the declaration within seven days. Both houses of Parliament must confirm the declaration of emergency. Failure by either to do so means the declaration is revoked immediately. Similar procedures and requirements apply when the government seeks to renew a declaration.
The Emergencies Act was enacted in 1988 as a replacement for the War Measures Act (WMA).When it comes to revoking a declaration, ten senators or twenty Members of Parliament may sign a motion for revocation, in whole or in part. A vote for revocation ends the declaration on the day specified in the motion (which cannot be earlier than the day of the vote itself).
Any orders or regulations made by the government pursuant to its powers under the Act must go before each house of Parliament within two sitting days of its enactment. Such orders and regulations are subject to amendment or revocation by Parliament. The Emergencies Act provides for two final forms of Parliamentary oversight:
- All powers exercised pursuant to a declaration under the legislation are subject to review by a committee composed of members of both houses (including at least one member from each party which holds at least twelve seats in the House of Commons).
- Within 60 days of the end of the emergency, the government must initiate an inquiry into the circumstances leading to the declaration and the measures taken to deal with the emergency.
Both the parliamentary committee and inquiry must file reports with the House of Commons and the Senate as to their findings and conclusions.
The federal government has not yet used the Emergencies Act since it became law in 1988. In late March 2020, Prime Minister Trudeau and the premiers discussed its use in responding to the COVID-19 pandemic. As reviewed above, the pandemic likely qualifies as a Public Welfare Emergency. The outcome of the discussion apparently was that the provincial and territorial leaders felt they did not need the federal government to intervene. Given the significance of declaring an emergency, it is undoubtedly a good thing that we may get through the present crisis without the need to invoke this particular federal “superpower”.
Author’s Note: Sources consulted in preparing this article include the entries for the War Measures Act in both the online version of the Canadian Encyclopaedia and Wikipedia, as well as Clement, “The October Crisis of 1970: Human Rights Abuses under the War Measures Act” in Journal of Canadian Studies, Spring 2008, Vol. 42, No 2. (online version).