By Sean Maraj

As the Coronavirus pandemic progresses, there have been increasing calls from the media, and even musing from Prime Minister Justin Trudeau, to invoke the Emergencies Act (EA).The Emergencies Act is a move of last resort that brings significant implications both from a civil liberties and operations standpoint. 

            Passed by Parliament in 1988, partly out of good luck and the reluctance of successive governments, the EA has never been used nor tested. To understand why, it’s important to take a closer look at the history leading up to the creation of the EA itself. Previous to 1988, the biggest tool in the federal government’s emergency management toolbox was the War Measures Act 1918 (WMA). The WMA, among other things, gave the federal government extraordinary powers in areas normally reserved for the provinces as well as the ability to encroach upon accepted civil liberties. It was used three times – during the two World Wars and in response to the 1970 FLQ crisis. The FLQ Crisis is the most relevant to this discussion as it is the only use of the WMA in response to a purely domestic emergency. Using the WMA, the Canadian Forces patrolled city streets in Montreal, curfews were imposed and one of the greatest mass arrests in Canadian history occurred – in short it was a civil liberties nightmare. It could be argued that the creation of the Canadian Charter of Rights in 1982 was in direct response to the events of the FLQ crisis. Yet in the immediate years after 1982, the WMA remained untouched and could be still be used to circumvent the Charter. 

            The Emergencies Act was supposed to be the answer to the events of the FLQ Crisis. It was designed to be a more nuanced tool. Whereas the WMA was a “one size fits all” type of tool, the EA with its four categories of emergencies (public welfare, public order, international and war) reflected a greater understanding of the dynamic nature of modern emergency management. Still, during its passage several civil liberty scholars like Herbert Marx and J.P Frank were not completely convinced that the EA fully addressed the issues which occurred during the FLQ crisis. Since 1988, and until now, the federal government has faced at least two situations which taken into historical context could be considered reasons to use the Act. The Oka Crisis in 1991 and the 9/11 attacks. In both cases the federal government for better or worse relied on different tools – showing a reluctance to be seen as grabbing power from provinces or revisiting the same troubles which occurred during the FLQ Crisis.

            From an operational perspective, the health portfolio and thus managing the pandemic falls under the power of the provinces. Provincial health authorities are the experts within their jurisdictions and still remain best suited to containing the pandemic. Using the EA would put Ottawa in the driver’s seat where the expertise may not exist to address the specific needs of every region of the country. Instead of taking away the operational control of the pandemic away from the provinces, Ottawa should continue to use such tools as the Quarantine Act to control our border as well as act as a coordinator in providing resources to the provinces.  Should provinces require assistance in terms of enforcing social distancing measures, they can call for military assistance under Section 275 under the National Defence Act which supports “aid to the civil power.” In that circumstance military forces would fall under the authority of the provincial Attorney General. 

            While it’s indisputable at this stage that the current pandemic represents a national emergency, both for historical and operational reasons the Emergencies Act is unsuited to be used in the current situation and could be a catalyst that makes the cure worse than the disease.

One thought on “Think twice about the Emergencies Act

  1. [* Shield plugin marked this comment as “0”. Reason: Human SPAM filter found “[..” in “comment_content” *]
    Sean, a nice article. However, regarding ‘Aid of the Civil Power’, it is not likely it can be used to enforce social distancing as you have suggested.

    Part VI of the National Defence Act (NDA) specifies ‘Aid of the Civil Power’ can be provided in:

    “[…] any case in which a riot or disturbance of the peace, beyond the powers of the civil authorities to suppress, prevent or deal with and requiring that service, occurs or is, in the opinion of an attorney general, considered as likely to occur”.

    The Criminal Code further defines a ‘riot’ as “an unlawful assembly that has begun to disturb the peace tumultuously” (Section 64).

    Not abiding by social distancing recommendations cannot be characterized as a ‘riot’ or a ‘disturbance of the peace’. As such, ‘Aid of the Civil Power’ would not apply.

    Something else to note, when called upon, the military would not fall under the authority of an attorney general. The NDA states that service members must “act only as a military body and are individually liable to obey the orders of their superior officers” (Section 282). Per Queen’s Regulations and Orders, this means that:

    “[…] officers and non-commissioned members, while acting in aid of the civil power, have and may exercise all of the powers and duties of constables but are not to be considered constables in the service of the civil authorities. They continue to be part of the armed forces and to be governed as such by the ordinary norms of service discipline and […] liable to obey the orders of their superior officers”.

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