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Emergencies Act
Loi sur les mesures d'urgence
Parliament of Canada
  • An Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies and to amend other Acts in consequence thereof
CitationRSC 1985, c 22 (4th Supp)
Enacted byParliament of Canada
Royal assentJuly 21, 1988
Legislative history
Bill citationC-77, 33rd Parliament, 2nd session
Introduced byPerrin Beatty, Minister of National Defence
First readingJune 26, 1987
Second readingNovember 2, 1987
Repeals
War Measures Act
Status: Current legislation

The Emergencies Act (French: Loi sur les mesures d'urgence) is a law passed by the Parliament of Canada in 1988 which authorizes the federal government to take extraordinary temporary measures to respond to public welfare emergencies, public order emergencies, international emergencies and war emergencies. The law repeals the War Measures Act passed in 1914. It asserts that any government action continues to be subject to the Canadian Charter of Rights and Freedoms and the Bill of Rights.

Under the Emergencies Act, the federal Cabinet may declare a national emergency in response to an urgent and critical situation that cannot be dealt with by any existing law, and either is beyond the capability of a province to deal with it or threatens the sovereignty of Canada. Before declaring a national emergency, the federal Cabinet must consult with provincial cabinets. In the case of a public welfare or public order emergency where the effects of the emergency are confined to, or occur principally in, one province, the Emergencies Act cannot be used if the provincial cabinet does not indicate that the situation is beyond the capacity of the province to deal with it.[1] Once an emergency is declared, it is subject to confirmation by the House of Commons and Senate.

The Emergencies Act has been invoked only once since it was enacted in 1988, in response to the Canadian convoy protests in 2022.[2][3]

History

Impetus

The impetus for reform of the War Measures Act came in October 1970 when members of the Front de libération du Québec (FLQ) kidnapped the provincial Deputy Premier Pierre Laporte and British diplomat James Cross. These events, called the October Crisis, resulted in Prime Minister Pierre Trudeau invoking the War Measures Act for the first time in Canadian history during peacetime. During the October Crisis, concerns were raised in Parliament about instances of possible abuse of civil rights, and ineffective flow of information from Cabinet to Parliament.[4][5] Trudeau responded to the calls for reform during the October Crisis, stating on November 3, 1970, and January 11, 1971, that Parliament would consider the creation of new emergency legislation, however introduction of new emergency legislation would not occur while Trudeau was in office.[6] Parliament considered forming Joint Committee of the Senate and House of Commons to deliberate new emergency legislation in 1971 and 1977, however both efforts were unsuccessful as agreement could not be reached on whether the mandate of such a committee would include an evaluation of the government's use of the War Measures Act in the October Crisis.[7] As new information came to light on the activities of the Royal Canadian Mounted Police's (RCMP) actions during the October Crisis, the Royal Commission of Inquiry into Certain Activities of the RCMP (McDonald Commission) was formed in 1977, and amongst the McDonald Commission's recommendations in its 1981 final report, was a number of changes to Canada's emergency powers.[8] The McDonald Commission recommended the War Measures Act be amended to focus on powers necessary during times of war, invasion or insurrection, while other emergencies be dealt with by ad hoc legislation.[8] The McDonald Commission also recommended that the role of Parliament be increased during emergencies, including the requirement that Parliament confirm the state of emergency, renew the state of emergency, and if not sitting, Parliament be summoned within seven days for such a declaration.[5] The commission further called for the information used by the government to declare an emergency be presented to Parliament publicly, with sensitive or classified materials being provided to an appropriate committee or during an in-camera session of Parliament.[5] The McDonald Commission also called for the power to create a new court to hear complaints from individuals whose rights had been infringed upon, the War Measures Act to state which elements of Canada's Bill of Rights would be notwithstanding during a declaration, and that the Article 4 rights enshrined under the International Covenant on Civil and Political Rights never be overridden.[9] Despite the McDonald Commission report being completed and released publicly in 1981, it was never tabled in Parliament or fully debated.[10] The Task Force on Canadian Unity, established by the government of Canada after the sovereigntist Parti Québécois was elected in Quebec in 1976 also called for reform of the War Measures Act, including a declaration of use providing the rationale, greater parliamentary oversight, safeguards for provincial powers, and safeguards for individual liberties.[11]

Despite the calls and proposals for reform of the War Measures Act following the October Crisis, there was no changes until the Emergencies Act was passed by Parliament in 1988.[12] The Progressive Conservative Party under Brian Mulroney defeated the reigning Liberal government under John Turner in the 1984 Canadian federal election, and in 1987 the Mulroney government released a white paper on reforming Canada's defence policy.[12] The white paper called for the creation of comprehensive emergency legislation, and the government commissioned a series of studies on emergency and defence topics.[13] The studies considered four options for emergency legislation and recommended that a single comprehensive law be provided with four unique types of emergencies with unique powers, procedures and safeguards.[14]

Legislative history

The Emergencies Act was introduced by Minister of National Defence Perrin Beatty[15] in the second session of the 33rd Canadian Parliament as Bill C-77.[16][17] It's first reading was on June 26, 1987, and second reading was on November 2, 1987.[18] The bill received royal assent on July 21, 1988, replacing the War Measures Act.[19] Parliament intended it to provide more human rights protections and less likelihood for abuse of power than the War Measures Act.[20]

A number of amendments were made to Bill C-77 between the second and third readings. The definition of "national emergency", the situations under which the law could be invoked was defined more restrictively to limit broad use of the Act.[21] The definition which passed second reading was removed, "an urgent and critical situation of a temporary nature that imperils the well-being of Canada as a whole or that is of such proportions or nature as to exceed the capacity or authority of a province to deal with it" and replaced with two possible conditions, one which "seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it" or a condition which threatens the sovereignty of Canada.[21] The impetus for the change was the understanding that many emergencies were "urgent", "critical" or "temporary", but not sufficient in gravity for use of the Emergencies Act.[22] Another amendment made after second reading opened the decisions made by the government under the Act up for judicial review based on whether the actions taken were reasonable.[23]

Provisions

Under the Emergencies Act, the Governor in Council (i.e., the federal Cabinet) may declare that an emergency exists.[24] The emergency must be a "national emergency" which means an "urgent and critical situation of a temporary nature" that either "(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada and that cannot be effectively dealt with under any other law of Canada".[25][26]

The Emergencies Act contemplates four distinct types of emergencies: a public welfare emergency, a public order emergency, an international emergency, and a war emergency.[27] It uses a "finely graded set of provisions" to respond to each type.[28][29][30] The four categories of emergency are triggered in separate circumstances and a declaration of an emergency under each category gives the government a separate set of powers.[31] Once the Cabinet has declared an emergency, it can make orders in council or proclaim regulations pursuant to the declaration.[32]

Under the Emergencies Act, a declaration of an emergency by the Cabinet must be reviewed by Parliament.[33] Any temporary laws made under the act are subject to the Canadian Charter of Rights and Freedoms and the Bill of Rights, and must have regard to the International Covenant on Civil and Political Rights.[34][35]

Once a national emergency is declared, a motion for confirmation of a declaration of emergency must be tabled in the Senate and House of Commons within seven days after a declaration of emergency is made by the Governor in Council.[36] If either chamber is prorogued or in recess, its members must be recalled. If both chambers adopt the motion, the declared emergency remains in place for 30 days, unless renewed again by Parliament. Either chamber may end the emergency declaration by voting against it.[36] Additionally, a Parliamentary Review Committee with representation from each recognized party must be formed. Within 60 days of the expiration of the emergency, the law requires the government to convene an inquiry, and table a report in Parliament within 360 days following its expiration.[37]

Public welfare emergency

The Emergencies Act lists several "public welfare emergencies" which result, or may result, in danger to life or property, services or resources, so serious as to be a national emergency. Public welfare emergencies include natural hazards such as fire, flood, drought, storm, or earthquakes; biological hazards including disease affecting humans, animals or plants; and man-made hazards such as accidents or pollution.[27][38]

Public order emergency

The Emergencies Act provides that a "public order emergency" results from serious threats to the security of Canada. When defining "threats to the security of Canada" the act references the definition provided in the Canadian Security Intelligence Service Act, which includes espionage, sabotage, detrimental foreign influences, activities which support the threat or use of violence for a political, religious or ideological objective; or those activities which threaten to undermine or otherwise destroy, or overthrow the Government of Canada.[39][40] The Canadian Security Intelligence Service Act specifically notes that "lawful advocacy, protest or dissent" do not constitute "threats to the security of Canada".[41]

International emergency

The Emergencies Act provides that an "international emergency" results from acts of intimidation, coercion, or the real or imminent use of force from one or more other countries against Canada.[42] An international emergency would fall short of an armed conflict which would permit a "war emergency", instead the international emergency was proposed for times of "heightened international tensions" and "rapid deterioration of relations among nations".[42][43] Peter Rosenthal likened the purpose of an international emergency to events similar to the Cuban Missile Crisis.[44] Under an international emergency, additional powers are provided to the government as it relates to supplies for national defence, including search and seizure as it relates to scarce commodities, hoarding, black market operations and fraud.[44]

War emergency

The Emergencies Act provides that a "war emergency" results from war or armed conflict involving Canada or an allied nation.[44] While a "war emergency" provides the government with significant authority to make orders or regulation beyond the categorical limits of other emergencies,[44] however, a war emergency does not provide the authority to implement conscription under the act.

Analysis

According to the legal scholars Craig Forcese and Leah West, the Emergencies Act provides for "the stiffest government emergency powers of any emergency law in Canada".[45]

The Emergencies Act does not delineate what role the courts may play during an emergency.[46] The legal scholars Craig Forcese and Aaron Freeman suggest that this leaves intact courts' ordinary powers of judicial review in Canadian administrative law and constitutional review under the Charter.[46]

Irvin Studin traces the federal government's power under the Emergencies Act to the peace, order, and good government clause in the Constitution Act, 1867.[47]

Uses

See also: States of emergency in Canada

The Emergencies Act has been used once, in response to the Freedom Convoy 2022. The War Measures Act, which this act replaced, was used on three occasions: during both the First and Second World Wars, and during the 1970 October Crisis.[34]

Proposed use in response to the COVID-19 pandemic

Further information: COVID-19 pandemic in Canada

On April 9, 2020, Prime Minister Justin Trudeau sent a letter to the provincial and territorial premiers to consult about invoking the Emergencies Act due to the COVID-19 pandemic in Canada.[48] While consultation with the provinces is a required step before a national emergency can be declared, the Prime Minister's Office said there was no present plan to invoke it and that doing so remained a last resort.[49][50] On a conference call between Trudeau and the premiers later that day, the premiers communicated their unanimous opposition to invoking the act.[51][52]

Canada convoy protest

Main article: Canada convoy protest

In the weekend before the invocation of the Emergencies Act, Chrystia Freeland, Deputy Prime Minister and Minister of Finance, met with the CEOs of the largest Canadian banks to discuss how they could help resolve the situation. On February 14, during the Canada convoy protest, the Emergencies Act was invoked by Prime Minister Justin Trudeau for the first time in Canadian history.[2] Invocation of the act must be ratified by Parliament within one week. Under the act, the federal government can compel tow companies to tow trucks away from blockades.[53] The act allows the federal government to levy fines and jail time on people who people who break the law, and gives the Royal Canadian Mounted Police permission to enforce provincial laws and bylaws in Ottawa.[54]

File:YOUNG GLOBAL LEADERS.png
Young Globalist Leaders Serving Foreign Interests

Crowdfunding platforms and their payment processors need to register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), and report large and suspicious transactions.[55] Cryptocurrencies are also included in the expanded financial regulations.[55] Banks can temporarily freeze the personal and corporate bank accounts without a court order, if these accounts are suspected of being used to support blockades, are protected from civil litigation if they chose to do so, and are allowed to more freely share information with law enforcement and government agencies.[56] Insurance coverage for trucks being used in blockades will be suspended.[57]

The announcement had varied reactions. Several provincial premiers expressed concerns, including the premiers of Alberta, Saskatchewan, Manitoba, and Quebec. Doug Ford, the premier of Ontario near the center of the protest, expressed support for the measure.[3] NDP leader Jagmeet Singh supported the measure, but said that its invocation was "proof of failure of leadership".[58] The Canadian Civil Liberties Association criticized the invocation of the Act, saying that the "high and clear" threshold for invocation – that the situation cannot be resolved through the regular application of existing laws – had not been met, and that normalization of emergency legislation would erode democracy and civil liberties.[59]

References

  1. ^ Rosenthal 1991.
  2. ^ a b Aiello, Rachel (February 14, 2022). "Trudeau makes history, invokes Emergencies Act to deal with trucker protests". CTV News. Archived from the original on February 15, 2022. Retrieved February 14, 2022.
  3. ^ a b Tunney, Catharine (February 14, 2022). "Federal government invokes Emergencies Act for first time ever in response to protests". CBC News. Archived from the original on February 14, 2022.
  4. ^ Holthuis 1991, pp. 66–67.
  5. ^ a b c Holthuis 1991, p. 71.
  6. ^ Holthuis 1991, p. 68.
  7. ^ Holthuis 1991, pp. 68–69.
  8. ^ a b Holthuis 1991, p. 70.
  9. ^ Holthuis 1991, p. 73.
  10. ^ Holthuis 1991, p. 74.
  11. ^ Holthuis 1991, pp. 74–75.
  12. ^ a b Holthuis 1991, p. 76.
  13. ^ Holthuis 1991, pp. 76–77.
  14. ^ Holthuis 1991, p. 77.
  15. ^ Rosenthal 1991, p. 563.
  16. ^ Holthuis 1993, p. 220 and note 103.
  17. ^ Rosenthal 1991, p. 565.
  18. ^ Rosenthal 1991, p. 565 and note 2.
  19. ^ Rosenthal 1991, p. 563, note 11.
  20. ^ Holthuis 1993, p. 219.
  21. ^ a b Rosenthal 1991, p. 573.
  22. ^ Rosenthal 1991, p. 574.
  23. ^ Rosenthal 1991, pp. 574–575.
  24. ^ Rosenthal 1991, pp. 563, 573.
  25. ^ Rosenthal 1991, p. 573.
  26. ^ Emergencies Act, RSC 1985, c 22 (4th Supp), s 3 Archived April 14, 2021, at the Wayback Machine
  27. ^ a b Rosenthal 1991, p. 565.
  28. ^ Lustgarten, Laurence; Leigh, Ian (1994). In from the Cold: National Security and Parliamentary Democracy. Oxford University Press. p. 19. ISBN 0-19-825234-X. OCLC 30069995.
  29. ^ Atkey 1991, pp. 46–47.
  30. ^ Holthuis 1993, p. 221.
  31. ^ Stacey 2018, p. 873.
  32. ^ Weinrib 2001, p. 102.
  33. ^ Forcese & West 2021, chapter 8, PDF pp. 21–22.
  34. ^ a b Smith, Denis; Foot, Richard; Yarhi, Eli; McIntosh, Andrew (March 18, 2020). "Emergencies Act". The Canadian Encyclopedia. Archived from the original on April 11, 2020. Retrieved April 9, 2020.
  35. ^ Freeman, Mark; Van Ert, Gib (2004). International Human Rights Law. Irwin Law. pp. 326–327. ISBN 1-55221-094-4. OCLC 55744460.
  36. ^ a b Forcese & Freeman 2005, p. 591.
  37. ^ O'Malley, Kady (February 14, 2022). "So the PM is going to invoke the Emergencies Act. What's next for Parliament?". iPolitics. Archived from the original on February 15, 2022. Retrieved February 15, 2022.
  38. ^ Forcese & Freeman 2005, p. 587.
  39. ^ Rosenthal 1991, p. 567.
  40. ^ "Canada trucker protest: What powers will Emergencies Act give Trudeau?". BBC News. February 14, 2022. Archived from the original on February 15, 2022. Retrieved February 15, 2022.
  41. ^ Rosenthal 1991, p. 568.
  42. ^ a b Rosenthal 1991, p. 571.
  43. ^ Emergency Preparedness Canada. 1987, p. 19.
  44. ^ a b c d Rosenthal 1991, p. 572.
  45. ^ Forcese & West 2021, chapter 8, PDF p. 16.
  46. ^ a b Forcese & Freeman 2005, p. 592.
  47. ^ Studin 2014, p. 60: "As established, it derives from the federal government’s rather sweeping emergency powers under the emergency branch of the POGG power in the 1867 Act.".
  48. ^ Tunney, Catharine; Hall, Chris (April 9, 2020). "As supply concerns grow, Ottawa lays the groundwork for never-used Emergencies Act". CBC News. Archived from the original on August 17, 2020. Retrieved April 9, 2020.
  49. ^ Lynn, Josh (April 9, 2020). "In wake of letter sent by feds, Sask. premier doesn't 'see the need' to invoke Canada's Emergencies Act". CTV News. Archived from the original on August 22, 2020. Retrieved April 9, 2020.
  50. ^ Taylor, Stephanie (April 9, 2020). "Saskatchewan premier doesn't see need for Emergencies Act in COVID-19 fight". National Post. Archived from the original on September 24, 2020. Retrieved April 9, 2020.
  51. ^ Tunney, Catharine; Cullen, Catherine; Cochrane, David (April 10, 2020). "Need for Emergencies Act rejected by premiers on call with PM". CBC News. Archived from the original on July 15, 2020. Retrieved April 10, 2020.
  52. ^ Lilley, Brian (April 10, 2020). "Premiers say no to Trudeau on Emergencies Act". Toronto Sun. Archived from the original on April 24, 2020. Retrieved April 11, 2020.
  53. ^ Dan Bilefsky; Ian Austen (February 15, 2022). "What responses will the Canadian government take after invoking the Emergencies Act?". The New York Times. Archived from the original on February 15, 2022. Retrieved February 15, 2022.
  54. ^ Aiello, Rachel (February 14, 2022). "The Emergencies Act has been enacted. Here's what that means". CTVNews. Archived from the original on February 15, 2022. Retrieved February 15, 2022.
  55. ^ a b Walsh, Marieke; Fife, Robert; Dickson, Janice (February 14, 2022). "Prime Minister Justin Trudeau invokes Emergencies Act to try to bring an end to the blockades". The Globe and Mail. Archived from the original on February 14, 2022. Retrieved February 15, 2022.
  56. ^ Bradshaw, James; Curry, Bill (February 14, 2022). "Emergencies Act will expand powers of Canadian banks to freeze accounts, halt funds". The Globe and Mail. Archived from the original on February 15, 2022. Retrieved February 15, 2022.
  57. ^ Bradshaw, James; Curry, Bill (February 14, 2022). "Emergencies Act will expand powers of Canadian banks to freeze accounts, halt funds". The Globe and Mail. Archived from the original on February 15, 2022. Retrieved February 15, 2022.
  58. ^ "Use of Emergencies Act 'proof of failure of leadership,' says NDP leader". CBC News. February 14, 2022. Archived from the original on February 14, 2022. Retrieved February 15, 2022.
  59. ^ "CCLA warns normalizing emergency legislation threatens democracy, civil liberties". Canadian Press. February 15, 2022. Archived from the original on February 15, 2022. Retrieved February 15, 2022.

Works cited

Further reading

External links

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