Canada’s Emergencies Act – A Primer

This article was last updated on April 16, 2022

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Back in 1988, Canada's War Measures Act, the legislation used by former Prime Minister Pierre Trudeau during the October 1970 FLQ crisis in Quebec, was replaced by the Emergencies Act.  The Emergencies Act empowers the federal cabinet to proclaim a "public welfare emergency" in response to a situation which is beyond the abilities of federal and provincial laws to adequately respond to a crisis making it the most powerful tool in the Government of Canada's legal toolkit.  Until today, it has never been invoked, however, the Trudeau government has told Canadians that it is the only way to protect Canada and Canadians from further anti-mandate protests which it abhors.

Here is the preamble to the Act with my bold:

WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;

AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;

AND WHEREAS the Governor in Council, in taking such 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; 

Note that to invoke the Emergencies Act, the emergency must seriously threaten Canada's ability to provide safety and security to individuals, its ability to protect the values of the nation and protect the sovereignty, security and territorial integrity of Canada.  It also does not give the government the power to suppress the rights of individuals under the Canadian Charter of Rights and Freedoms which, in Canada's current state, is almost laughable given the reaction of the Trudeau government to the pandemic over the past two years.

Under the Emergencies Act, Canada's federal Cabinet could use the Act to proclaim a "public welfare emergency" or a "public order emergency".

Let's look at both situations:

1.) Public Welfare Emergency – A public welfare emergency is defined as an emergency that meets one or more of the following situations:

(a) fire, flood, drought, storm, earthquake or other natural phenomenon,

(b) disease in human beings, animals or plants, or

(c) accident or pollution

and that results or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency.

To declare a Public Welfare Emergency, the following steps must be taken:

1.) When the Governor in Council believes, on reasonable grounds, that a public welfare emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 14, may, by proclamation, so declare.

2.) A declaration of a public welfare emergency shall specify

(a) concisely the state of affairs constituting the emergency;

(b) the special temporary measures that the Governor in Council anticipates may be necessary for dealing with the emergency; and

(c) if the direct effects of the emergency do not extend to the whole of Canada, the area of Canada to which the direct effects of the emergency extend.

The declaration of a public welfare emergency is effective on the date on which it is declared and expires at the end of ninety days unless it is previously revoked or continued which essentially means that a public welfare emergency could well have no expiry date whatsoever.

Under a public welfare emergency scenario, the government gives itself very wide sweeping and rights crushing abilities to make orders or regulations which it believes are necessary for dealing with the emergency including the following:

(a) the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;

(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, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, 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;

(f) the authorization and making of emergency payments;

(g) the establishment of emergency shelters and hospitals;

(h) the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;

(i) the assessment of damage to the environment and the elimination or alleviation of the damage; and

(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.

2.) Public Order Emergency – a public order emergency means an emergency that arises from threats to the security of Canada that is so serious as to be a national emergency.

To declare a Public Order Emergency, the following steps must be taken:

1.) When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.

2.) A declaration of a public order emergency shall specify:

(a) concisely the state of affairs constituting the emergency;

(b) the special temporary measures that the Governor in Council anticipates may be necessary for dealing with the emergency; and

(c) if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.

A public order emergency is effective on the day on which it is issued and expires at the end of thirty days unless the declaration is previously revoked or continued which, once again, means that the public order emergency could well have no expiration date whatsoever.

In both cases, the Emergencies Act contains a beyond-the-provinces threshold, that is, the situation exceeds the capacity (because of the scale of the situation) or authority (because of the severity of the situation) of a provincial government to deal with it.  Under the Act, the federal Cabinet is required to consult the Cabinet of each province in which the direct impacts of the emergency is occurring before issuing a public welfare emergency.  Perhaps more importantly, the Emergencies Act also requires that the federal government cannot deal with the emergency under any other law of Canada.

Basically, Canada's fate is now in the hands of the Trudeau Cabinet, a group of individuals who seem to regularly prove that they are part of the kakistocracy (1) that rules Canada.  Rather than actually meeting with the demonstrators in an attempt to resolve the issues that are of such importance to them and a significant percentage of Canadians, Justin Trudeau has taken the man-child approach by digging in his heels and refusing to meet with people who don't share his very limited, globalist, ruling class, rich kid view of the world.  In his world, individual rights take a back seat to whatever issues (i.e. Black Lives Matter) he happens to favour.  The sweaty masses are completely irrelevant in his world.

(1) Kakistocracy – government by the least suitable or competent citizens of a state.

References:

COVID-19: Can they do that?  Part II: The Emergencies Act

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