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

This update is part of a continuing series. We are providing a brief overview of the current state of federal and provincial emergency legislation, how our governments are using (and could eventually use) their statutory powers to confront COVID-19, and what the effects of their efforts on Canadian businesses might be. We are also canvassing some of the constitutional constraints on government action.

In this update, we turn our attention to what could quickly become the linchpin of the federal government’s response to COVID-19: the Emergencies Act.

For our past updates, and for up-to-date information on COVID-19 and McCarthy Tétrault’s perspective on the legal issues it presents, please visit our dedicated hub here.

What you need to know

  • The Emergencies Act empowers the federal Cabinet to proclaim a “public welfare emergency” in response to the COVID-19 pandemic.
  • Cabinet can only proclaim a “public welfare emergency” if other federal laws and the provinces’ combined efforts are inadequate to respond effectively to the crisis.
  • If Cabinet proclaims a “public welfare emergency” in response to COVID-19, it would immediately enjoy sweeping powers under the Emergencies Act. Parliament would need to be recalled to confirm the proclamation.
  • Cabinet’s exercise of its extraordinary powers under the Emergencies Act would be subject to limited judicial oversight.

Understanding the Emergencies Act

Students of Canadian history – and many Canadians over the age of 60 – will recall the “October Crisis” of 1970. Members of a terrorist group, the Front de libération du Québec (or “FLQ”), kidnapped a British diplomat and then a provincial Cabinet minister. The federal government of Prime Minister Pierre Elliott Trudeau invoked the War Measures Act and proclaimed a state of “apprehended insurrection” in Québec. This empowered police to arrest and detain hundreds of individuals on the basis of their alleged ties to the FLQ.

Parliament enacted the War Measures Act in the early days of the First World War. It conferred nearly unlimited lawmaking powers on the federal Cabinet in times of war or insurrection. The Cabinet invoked the Act again during the Second World War, when (among other things) it used the Act’s authority to impose draconian restrictions on – and eventually to intern – Japanese Canadians. The Act was never again in force, other than during the October Crisis.

In 1988, Parliament repealed the War Measures Act. In its place, it enacted the Emergencies Act. This legislation is the Government of Canada’s most powerful tool in confronting a national emergency, such as a pandemic. To date, however, the Emergencies Act has never been invoked. It has not yet been invoked in response to COVID-19, but Prime Minister Justin Trudeau and senior Cabinet ministers have confirmed that its use is under consideration.

The threshold for declaring a “national emergency”

On the basis of the COVID-19 pandemic, the federal Cabinet could proclaim a “public welfare emergency” under s. 6(1) of the Emergencies Act. A “public welfare emergency” is a specific type of “national emergency”; it includes “an emergency that is caused by a real or imminent … disease in human beings” (s. 5(b)).

To declare a “public welfare emergency”, the federal Cabinet must determine that:

  • COVID-19 “may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources” (s. 5 (“public welfare emergency”)); and
  • COVID-19 “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”; and
    • “cannot be effectively dealt with under any other law of Canada” (s. 3(a) (“national emergency”)).

These criteria (and particularly the last two) may not be as simple to satisfy as it might appear. This is so for two reasons.

First, the Act contains a beyond-the-provinces threshold. It requires that the emergency “exceed the capacity or authority of a province to deal with it”.

One can read this requirement in two ways – as relating to an emergency’s scale, or as relating to an emergency’s severity.

With respect to scale, the threshold for proclaiming a “national emergency” could be that the emergency as a whole must be beyond the “capacity or authority” of any province to “deal with” on its own, such that no one province can individually “deal with” the situation.

With respect to severity, the threshold for proclaiming a “national emergency” could be that “deal[ing] with” the emergency must be beyond at least one province’s “capacity or authority”, such that the provinces cannot collectively “deal with” the situation.

The requirement may also be that both thresholds – of scale and of severity – must be established before the federal Cabinet can proclaim a “national emergency”. Because the Act has never been invoked, this has never been tested.

Still, it seems likely that, as a practical matter, the federal Cabinet would likely consider the adequacy of collective provincial action in determining whether the extra-provincial threshold for a “national emergency” had been met. In other words, the federal Cabinet would be unlikely to proclaim a “national emergency”, and exercise the extraordinary powers that are available to it under the Emergencies Act, if the provinces (plural) could “deal with” the crisis collectively. Now that individual provinces have begun to declare emergencies under their respective provincial legislation, this may make a federal proclamation less likely.

This view finds support in the statutory text. Under the Act, the federal Cabinet is required to “consult[]” the Cabinet “of each province in which the direct effects of the emergency occur” before issuing a declaration of a “public welfare emergency” (s. 14(1)). The Act also requires the federal Cabinet to exercise its powers: (i) “in a manner that will not unduly impair the ability of any province to take measures … for dealing with an emergency in the province”; and (ii) “with the view of achieving … concerted action with each province” (s. 8(3)(a)).

Second, the Act contains a beyond-other-laws threshold. It requires that it be impossible to “deal[] with” the emergency “under any other law of Canada”.

This is potentially a significant obstacle to proclaiming a “national emergency” such as a “public welfare emergency”. It means that the federal Cabinet can only use its extraordinary powers under the Emergencies Act if there is no basis in any existing law or regulation to take the steps that the Cabinet deems to be necessary to address the crisis “effectively”. Considering the breadth of federal powers that are available under other federal legislation – some of which we will discuss in subsequent updates – this threshold should only be met in circumstances that are truly unforeseen, if not unforeseeable.

Cabinet’s extraordinary powers under the Act

Once the federal Cabinet proclaims a “public welfare emergency”, s. 8(1) of the Emergencies Act empowers the Cabinet to “make such orders or regulations with respect to … [certain] matters as the [Cabinet] believes, on reasonable grounds, are necessary for dealing with the emergency”. It may do so for as long as the emergency proclamation is in effect, i.e., for 90 days, unless the declaration is revoked or extended sooner (s. 7(2)).

Specifically, the Cabinet can, among other things:

  • “regulat[e] or prohibit[] … travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals” (s. 8(1)(a));
  • “requisition, use or dispos[e] of property” (s. 8(1)(c));
  • “direct[] … any person … to render essential services of a type that that person … is competent to provide” (s. 8(1)(d));
  • “regulat[e] … the distribution and availability of essential goods, services and resources” (s. 8(1)(e));
  • “mak[e] … emergency payments” (s. 8(1)(f)); and
  • “establish[] … emergency shelters and hospitals (s. 8(1)(g)).

The Cabinet can also provide for fines of up to $5,000 and for terms of imprisonment of up to five years, or both, “for contravention of any order or regulation made under this section” (s. 8(1)(j)).

Notably, the Emergencies Act does not define the term “essential” in relation to goods, services, and resources. It would be up to the Cabinet, having proclaimed a “public welfare emergency”, to determine what is “essential” and what is not.

Parliamentary and judicial review

Ottawa’s powers under the Emergencies Act are not limitless. The Act itself imposes certain procedural requirements on the Cabinet’s exercise of its extraordinary authority. The Constitution also limits the scope of federal action.

Parliamentary review

Procedurally, the Cabinet must present its proclamation of an emergency to Parliament within seven sitting days (s. 58(1)). If Parliament stands adjourned – as the House of Commons and the Senate presently do – then both Houses must be summoned back into session within seven days (s. 58(2)). The House of Commons and the Senate must each debate and then vote to confirm the proclamation. If either the House of Commons or the Senate does not ratify the proclamation, then it is revoked effective that day (ss. 58(5)-(7)).

Not only is the Cabinet’s proclamation subject to prompt parliamentary review, but so is each order or regulation that the Cabinet makes in the exercise of its extraordinary powers under the Act. If the Cabinet makes such an order or regulation, then it must be laid before the House of Commons and the Senate within two sitting days after it is made (s. 61(1)). Any ten Senators or twenty Members of Parliament may then bring a motion to revoke or amend the order or regulation (s. 61(3)). If the motion is passed by both Houses, the order or regulation is revoked or amended accordingly (s. 61(8)).

Judicial review

Even after the proclamation and any orders or regulations have survived parliamentary scrutiny, they may be challenged in court. Broadly speaking, there would be two potential bases for judicial review of a proclamation, order, or regulation made under the Emergencies Act: (1) inconsistency with the Act, on administrative law grounds; and (2) inconsistency with the Constitution.

Administrative review

Courts have a constitutional duty to ensure that statutory decision makers act within the bounds of their delegated authority. By enacting the Emergencies Act, Parliament delegated considerable power to the Cabinet, to be exercised in exigent circumstances. Courts have a responsibility to oversee how Cabinet exercises that power. A judge would discharge this responsibility by applying the principles of administrative law in a judicial review proceeding.

In most judicial review proceedings, the question is whether the administrative decision maker (here, Cabinet) made a decision that exceeded the scope of its statutory grant of power (here, the Emergencies Act). Parliament limited Cabinet’s powers under the Act in two ways.

First, Parliament defined the sorts of exigent circumstances in which Cabinet can proclaim a “national emergency” – hence the thresholds discussed above (ss. 3(a) and 5 of the Act).

Second, Parliament limited Cabinet’s extraordinary power to make orders and regulations under s. 8 of the Act by:

  • prescribing the matters in respect of which the Cabinet may make orders, as outlined above; and
  • requiring the Cabinet to have “believe[d], on reasonable grounds” that the measures it implemented were “necessary for dealing with the emergency”.

An emergency proclamation, order, or regulation could be challenged on the basis of an alleged inconsistency with the Act on any of these grounds. The Federal Court could, in theory, quash an emergency proclamation, order, or regulation pursuant to s. 18.1(3)(b) of the Federal Courts Act because: (1) Cabinet erroneously concluded that a “public welfare emergency” was taking place; (2a) Cabinet made an order or regulation that does not fit into one of the “matters” specified in s. 8 of the Act; or (2b) Cabinet did not have “reasonable grounds” to believe that an order or regulation was “necessary for dealing with the emergency”.

In practice, a court would be highly unlikely to quash an emergency proclamation, order, or regulation on any of these grounds. This is because Parliament has clearly committed the question of whether a “national emergency” exists – and the determination of the “necessary” measures to respond to that emergency – to Cabinet, not to the courts.

For this reason, in exercising its powers under the Act, the federal Cabinet would enjoy a wide margin of deference. A judge would not second guess the government’s response to a bona fide emergency on the basis of an alleged inconsistency with the Act, unless it were established that the government’s interpretation of the legislation, its assessment of the situation, or its actions taken under it were so off the mark as to be “unreasonable” as a matter of administrative law. Only then would a court intervene.

Constitutional review

When the government of Prime Minister Pierre Elliott Trudeau invoked its powers under the War Measures Act in 1970, the Charter of Rights and Freedoms had yet to be part of the Constitution of Canada. It is now. The Emergencies Act recognizes as much; its preamble acknowledges the Cabinet’s actions under the Act are subject to the Charter and other domestic and international human rights instruments.

It follows that an order or regulation made under the Act in response to a “public welfare emergency” could be challenged as inconsistent with the Charter. For example:

  • an order that restricts individuals’ movements “to, from or within any specified area” under s. 8(1)(a) of the Act could limit the “freedom of peaceful assembly” under s. 2(c) of the Charter, or “the right … to move to and take up residence in any province” under s. 6(2)(a) of the Charter, or even “the right not to be arbitrarily detained or imprisoned” under s. 9 of the Charter;
  • an order that “direct[s]” a person “to render essential services of a type that that person, or a person of that class, is competent to provide” under s. 8(1)(d) of the Act could, depending on the level of danger involved, limit “the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice” under s. 7 of the Charter; and
  • an order that “regulate[s] … the distribution and availability of essential goods, services and resources” under s. 8(1)(e) of the Act could limit “the right to life, liberty and security of the person” (under s. 7 of the Charter) of individuals who are denied such goods, services, and resources.

If an order or regulation made under the Emergencies Act were challenged on constitutional grounds, and if the court concluded that the order or regulation limited a Charter right, then the government would have to satisfy the court that the limit on the Charter right effected by the order or regulation was (or is) “reasonable”, “prescribed by law”, and “demonstrably justified in a free and democratic society” under s. 1 of the Charter. Whether the government would succeed in this would depend on the facts, but Cabinet’s assessment of the costs and benefits of its emergency response would likely receive considerable deference.

The Act itself, or an order or regulation made under it, could also be challenged as exceeding Parliament’s constitutional jurisdiction. Section 92 of the Constitution Act, 1867 gives the provinces exclusive jurisdiction in respect of certain “heads of power”. It is not difficult to imagine how federal action under the Emergencies Act might encroach on these areas of provincial jurisdiction. For example:

  • an order for “the requisition, use or disposition of property” under s. 8(1)(c) of the Emergencies Act could be said to interfere with provincial jurisdiction over “The Management and Sale of the Public Lands belonging to the Province” under s. 92(5) of the Constitution Act, 1867;
  • an order for “the regulation of the distribution and availability of essential goods, services and resources” under s. 8(1)(e) of the Emergencies Act could be said to interfere with provincial jurisdiction over “Property and Civil Rights in the Province” under s. 92(13) of the Constitution Act, 1867; and
  • an order for “the establishment of emergency shelters and hospitals” under s. 8(1)(g) of the Emergencies Act could be said to interfere with provincial jurisdiction over “The Establishment, Maintenance, and Management of Hospitals … in and for the Province” under s. 92(7) of the Constitution Act, 1867.

Parliament, however, has the power “to make Laws for the Peace, Order, and good Government of Canada” under s. 91 of the Constitution Act, 1867. The courts have recognized an “emergency branch” of this “POGG” (“[p]eace, [o]rder, and good [g]overnment”) power. It provides that Parliament may temporarily legislate in areas of provincial jurisdiction so long as Parliament has a “rational basis” for regarding the intruding measure as “temporarily necessary to meet a situation of … crisis imperiling the well-being of the people of Canada as a whole and requiring Parliament’s stern intervention in the interests of the country as a whole” (Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373, at p. 425, per Laskin C.J.). This is a deferential standard; it reflects the courts’ desire to leave the determination of what constitutes an “emergency” to democratically accountable politicians.

Here, the government would doubtless defend the Emergencies Act and any orders or regulations made under it as a valid exercise of Parliament’s powers under the “emergency branch” of the POGG power. It would likely succeed in doing so. Just as, in a judicial review on administrative law grounds, a court would defer to Cabinet’s judgment that a “national emergency” was at hand, so would a court defer to that same judgment in upholding the Act or subordinate legislation on constitutional grounds.

Conclusion

To date, the federal government’s response to the COVID-19 pandemic has drawn on other federal legislation, and has relied on the efforts of the provinces to combat the spread of disease within their own boundaries. So long as this approach remains adequate to the task, the Cabinet cannot lawfully proclaim a “public welfare emergency” under the Emergencies Act.

Yet, once Cabinet concludes that other federal laws and the provinces’ combined efforts are inadequate to respond effectively to the crisis, an emergency proclamation under the Act becomes possible. If Cabinet proclaims a “public welfare emergency” in response to COVID-19, then it would immediately enjoy sweeping powers under the Emergencies Act. Its exercise of those powers would be subject to limited judicial oversight, as courts would defer to Cabinet’s interpretation of the Act, its assessment of the situation, and its determination of which particular measures are necessary to meet the moment.

As the global response to COVID-19 continues to evolve, Canada’s federal government may invoke the Emergencies Act and impose any of the potentially drastic measures it authorizes on short notice. Parliament must quickly confirm the proclamation of a “public welfare emergency”, but Cabinet can make the proclamation entirely on its own. Such extraordinary steps would have significant implications for businesses, organizations, and the broader public. The time to prepare is now.

For more information about the content of this update, or to discuss legal issues arising in your organization’s response to COVID-19, please contact Lara Nathans, Trevor Lawson, or one of the authors.

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