March 21, 2020.  Briefing by Prime Minister Trudeau, responding to a question:

PM: “We have not removed from the table any options. We are looking at a broad array of measures that we can move forward with. At this time we do not see the federal Emergencies Act as an essential tool today, but we are continuing to look at the situation and will make decisions based on the best recommendations of science.”

Question: “What do you need to see before declaring a federal emergency?”

PM: “I think the key issue is are there things that we need to be able to do as a government that we cannot do with the very strong existing regulations that are in place and that our government has as tools.”

Background

You would have to be a hermit living in a cave not to have heard of the COVID-19 pandemic.  Governments all over the world have introduced special laws to deal with the emergency.  As the rates of infections, hospitalizations and deaths have increased, so has the severity of government responses.

But the existing legal powers of government may soon become insufficient.  Prime Minister Justin Trudeau has recalled Parliament to enact legislation permitting special financial measures to support Canadians impacted by the closing of schools, workplaces, restaurants and bars.  That is his first Parliamentary step, but probably not his last.

There are two Canadian laws that have never been used before, but may have to be if conditions worsen.  These are the Emergencies Act and the Quarantine Act.  I had not been familiar with either of these laws until this pandemic arose, but now have read them both.  Fortunately, because these laws have not been used before there is no large body of case law to wade through to understand how they have been interpreted.  Because they have never been interpreted, my interpretation is as good as, or as bad as, anyone else’s.

As between the two laws, I would expect the federal government to use the Emergencies Act first, and if it later becomes necessary, to use the Quarantine Act.  Both of these laws give the government extraordinary powers of a somewhat dictatorial nature.  Because giving a government dictatorial powers is always dangerous, these laws provide some soft safeguards which, one can only hope, will prove to be adequate.

In this blog post I will only discuss the Emergencies Act because it currently appears unlikely that use of the Quarantine Act will be necessary.

The Emergencies Act replaced the War Measures Act, the history of which should not be forgotten.

Lessons from the War Measures Act

Enacted in 1988, the Emergencies Act replaced the former law, the War Measures Act.  That Act had not been used since former Prime Minister Pierre Trudeau invoked it during the FLQ crisis of October 1970.  Although that was a different time and a different law, there are some lessons to be learned from its history.

The War Measures Act was used by the police to round up dissidents, activists and others they didn’t like.  This was revealed in a highly acclaimed book, Rumours of War [ The Book ]. First published in 1971 and reissued in 1979, Rumours of War provided a critical analysis of the police response to the October Crisis. Hundreds of innocent citizens were arrested and held without trial, a dark part of our national history.  The authors of this book conclude that the government overreacted, making a mockery of our system of civil liberties in the process. We must avoid doing that again.

When the Emergencies Act Can Be Used

The Act defines a national emergency as an urgent and critical situation of a temporary nature that

(i) seriously endangers the lives, health or safety of Canadians,

(ii) exceeds the capacity or authority of a province to deal with it, and

(iii) that cannot be effectively dealt with under any other law of Canada.

Although the Act covers different kinds of national emergencies, including wars, the relevant one is a “public welfare emergency” endangering public health. When the federal Cabinet declares a public welfare emergency the Act comes into effect on the same day.  It automatically expires after ninety days (unless previously revoked or extended).  Before making such a declaration the federal Cabinet must consult with the cabinets of every province, but there is no requirement that any or all provinces must agree with the federal Cabinet. The federal Cabinet can do what it wants.

The Cabinet Can Make Any Orders or Regulations It Believes Are Necessary

While a declaration of a public welfare emergency is in effect the Cabinet may make such orders or regulations as it believes are necessary, about following matters:

(a) the regulation or prohibition of travel to, from or within any specified area….;

(b) 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;

(c) the requisition, use or disposition of property;

(d) the authorization of or direction to any person ….. to render essential services of a type that that person …. is competent to provide and the provision of reasonable compensation in respect of services so rendered;

(e) the regulation of the distribution and availability of essential goods, services and resources; …..

………

(j) the imposition

(i) on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or

(ii) on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,

for contravention of any order or regulation made under this section.

Some Examples of Possible Orders

• Under (c), order you to vacate your office or home so that it can be used as a clinic for infected persons if the hospitals are full, and pay you whatever the Cabinet considers reasonable for use of your property

• Under (d), order retired nurses and doctors to go back to work at designated locations to treat seriously ill patients, even though such retired healthcare workers are probably in the age group most vulnerable to the virus, and pay them whatever the Cabinet considers reasonable for someone already receiving pension income

• Under (e), regulate or ration who gets ventilators, the scarce new vaccine when available, gasoline, pharmaceuticals and perhaps even food if food becomes scarce

• Under (j), prosecute anyone who has failed to comply with any of the above orders or regulations, with risk of significant fines and jail time.

The Five Safeguards in the Emergencies Act

The Emergencies Act has included five soft protections for civil liberties.

1.  The Canadian Charter of Rights and Freedoms

The Preamble to the Act (which is  not legally enforceable) mentions the following:

“AND WHEREAS the Governor in Council [Cabinet], in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms …….”

But these words are not found in the body of the Act, so they are not legally binding. The Act does not say that Cabinet shall make no order or regulation inconsistent with the Charter. This part of the Preamble is not an effective safeguard.

If someone wanted to bring a Charter case against the government during the state of emergency there would be serious practical and legal problems.  If all the lawyers and judges are staying at home under the emergency legislation how effectively could the courts operate?    The Charter, in section 1, provides a strong defence to governments, because the rights and freedoms in the Charter are not absolute.  They are subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”  The government would argue that its infringement of someone’s rights and freedoms are reasonable in a free and democratic society in an emergency. In support of its argument the government could look to similar infringements in other democratic countries.

What are these reasonable limits under the Emergencies Act?  Nobody knows.

2.   The Requirement for Compensation

The Act provides for compensation for someone suing the government under the Crown Liability Act. As the government can mount a spare-no-expense defence, it can tie someone up for years and potentially hundreds of thousands of dollars in legal costs.  That is a huge deterrent to bringing such cases. This provision is unlikely to be an effective safeguard to prevent harm to individuals because it only provides a potential and costly remedy after the harm has been done.

3.   The Requirement for Reasonable Grounds

The Act contains a requirement that the Cabinet must make its decisions on reasonable grounds.  Reasonable in whose opinion?   The Cabinet is the sole judge of what are reasonable grounds.

After the emergency is over, if someone goes to court, the court will be reluctant to decide that with the limited information available to the Cabinet, in rapidly changing circumstances, its grounds for action were unreasonable.

4.   The Parliamentary Committee

The Act provides for oversight by an all-party Parliamentary committee of MPs and Senators.  This committee will have limited authority to exercise control over decisions made under the Act.  However, there is no upper limit to the number of members of this committee.  After appointing the number of members of the opposition parties the Act requires, the government can appoint many more members of its own party, to control every vote of this committee.  You may recall that during the sessions of the House of Commons Justice Committee dealing with the SNC-Lavalin scandal the government majority on that committee vetoed recalling witnesses proposed by the other political parties.  It would be surprising if any government didn’t pack this Parliamentary committee with its party members.

Every member of this committee must swear an oath of secrecy, and all of its meetings will be held in secret.

This committee will be required to submit a final report to Parliament.  It is unlikely to be a unanimous report, as the government and the opposition parties will each try to gain political advantage through this report. Again, this committee is limited in its effectiveness as a safeguard against dictatorial excesses.

5.   The Inquiry

The final safeguard is the requirement for a post-emergency inquiry, to report within a year.  The Act does not require a formal, judicial inquiry under the federal Inquiries Act, so a government can appoint any friend of the government it wishes, to conduct the inquiry.  Likewise, the Act permits the government to set any terms of reference it wishes for the inquiry.  Narrow terms of reference, carefully selected to include things the government did well and exclude things it did badly will tend to produce a rather favourable report.  Nevertheless, one can hope that the appointee will be impartial, fully qualified and given broad terms of reference.

Conclusion

Emergency legislation is a necessary evil we can all hope will never need to be used.  If it is, the emergency powers granted are inherently extreme and somewhat arbitrary.  Any safeguards in the law cannot impede the effective use of these emergency powers, and therefore, will largely depend upon after-the-fact political review.  The courts will have only have a minor role during the emergency, and only a compensatory role afterwards.

Despite these weak legislative safeguards, the ultimate safeguard is effective media scrutiny.  Governments do not wish for an emergency like this because it will be both a public health catastrophe and an economic catastrophe.  Governments are likely to be sharply criticized regardless of what they do to cope with it.  We have already seen such criticism of the Prime Minister on the grounds that he has acted too slowly and that he has acted too hastily.  It is hard for a government to decide, in the middle of a pandemic, on the right warmth of baby bear’s emergency porridge – not too hot and not too cold, but just right.

I wish the Cabinet the wisdom it will need to deal with this crisis, and hope that as many of us as possible can stay healthy.