Is COVID-19 an emergency that ‘cannot be effectively dealt with under any other law of Canada’?
With cases of COVID-19 continuing to rise, politicians and legal scholars alike have looked toward a never-before-used 1988 law, the Emergencies Act, to see if it offers any solutions.
As of Mar. 23, unnamed sources told the CBC that “some premiers were eager for a co-ordinated, national response while others were concerned about what invoking the act would mean for local decision making,” after Deputy Prime Minister Chrystia Freeland called the Emergencies Act a "measure of last resort.”
But Colleen Flood and Teresa Scassa, legal scholars at the University of Ottawa, argued in a separate CBC piece that provinces may be unable to handle the level of testing and establishment of emergency shelters on their own. Flood and Scassa also argued that the Emergencies Act would allow the government to “use the power to require, use or dispose of ‘property’ in order to access data held by telecommunications companies.”
Leah West, lecturer of International Affairs at the Norman Paterson School of International Affairs at Carleton University, says she’s not sure that the federal act does allow for data collection the way some provincial laws do. The law would, however, help the government do something like coordinate private industry players in pumping out medical supplies, or manage cross-provincial food supply issues, says West.
West, along with Craig Forcese is the author of a forthcoming chapter of National Security Law, which notes that “In Canada, very few threats reach the magnitude of an emergency. National security law is, therefore, usually regular law, and not a special body of rules applicable only in extraordinary circumstances.”
The way the act defines an emergency is a key consideration in why the act has not been invoked since 1988, says West, as the law specifically focuses on situations that “cannot be effectively dealt with under any other law of Canada.” Indeed, West says, some of the provincial emergency acts include much harsher fines than the national act.
“They can’t invoke it to tell us the same things the provinces have already told us,” she says.
The federal government also has laws like the Emergency Management Act, Public Safety Act, Quarantine Act, and the National Defence Act at its disposal, while the Emergencies Act has “the threshold for an emergency declaration, albeit in broad terms likely to attract only the most deferential of judicial review,” West and Forcese write.
The definition under the act that would best fit the COVID-19 pandemic is “a public welfare emergency,” which would be invoked by cabinet and comes with its own “basket” of powers, says West. Cabinet would also need to issue regulations to use those powers, often with timeframes attached. The process has a series of checks and balances in place — such as a requirement to consult provinces. The law itself also says that it should not be interpreted to allow “the detention, imprisonment or internment of Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability,” and that special temporary measures “would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.” The act cannot be used purpose of terminating a strike or lock-out or imposing a settlement in a labour dispute.
Nonetheless, in a podcast, West, and Stephanie Carvin note that emergency law can be “dangerous” and “corrosive” to civil liberties, and the proper use of legislation must be necessary and proportional. As their book says, “democracies depend on a system of checks and balances that constrain the exercise of power. Yet, emergencies usually require the swift and resolute exercise of power. While law applicable in normal situations diffuses power, emergencies concentrate it.”
The Emergencies Act, if violated, does allow the imposition a fine not exceeding five hundred dollars or imprisonment not exceeding six months (or both, on summary conviction), or a fine not exceeding five thousand dollars or imprisonment not exceeding five years (or both, upon indictment.) It also allows for travel restrictions, evacuations and allows the government to demand use of property or distribution of goods.
“Invoking this, there is serious power to restrict our liberties that should only be used for a temporary mandate with a prescribed ending,” she says. “Because the powers under this act are such that the government can do things it could not otherwise do. You want to make this a tool of last resort.”