Emergency Powers and Transparency

There has been lots of talk and some agitation around whether and when the federal government will declare an emergency. Will we be ruled by “martial law”? Will due process rights cease to exist? Will there be a massive grab for power by the federal government?

For civil libertarians, invoking emergency legislation is usually considered no-no. As a civil rights watchdog for civil rights and freedoms, the Canadian Civil Liberties Association has been tracking developments closely. We recognize the need for extraordinary measures, but also want to ensure that our governments are transparent and accountable. The powers of the provinces under emergency legislation are substantial, and we need to ensure their exercise is authorized by law, justified and that actions taken in an emergency don’t simply become our “new normal”.

No one should be faulted for recognizing that we are facing an emergency and questioning why the federal government won’t – explicitly and emphatically – declare this to be the case under the law intended for that very purpose. But we may be both over-estimating the power of our emergency laws and under-estimating what can be done without invoking them.

Case in point: the government recalled Parliament (or a smaller version of it) to pass the package of benefits promised to Canadians by the Prime Minister during his COVID-19 briefings. According to numerous sources, included in the advance version of the Bill provided to MPs were provisions purporting to allow the government to tax, spend and borrow funds, without parliamentary approval or oversight, until the end of 2021. Fortunately, it appears our democratic institutions worked as they should, and MPs pushed back resulting in negotiations and the passage of a more moderate bill. Unfortunately, there was no publicly accessible version of the Bill for hours after it passed the House of Commons, and Canadians haven’t (and may never) see the initial package of proposals to which oppositions MPs so strongly objected. Even more concerning, if we weren’t in a minority government at the moment, what appears to have been a significant power grab may well have gone unchecked.

It is odd to be in the position of saying that it may not matter much whether the federal government invokes the Emergencies Act. That Act was passed in 1988 and differs significantly from the War Measures Act that preceded it, and that is infamous for authorizing the internment of Japanese Canadians during the Second World War and widespread violations of civil liberties during the October Crisis in 1970. Those who argue that the federal government should be exercising its powers under the legislation may not realize that despite the significant breadth of those powers, they are also subject to significant limitations. The Emergencies Act states explicitly that temporary measures taken under it are subject to the Charter of Rights and Freedoms and that regard must also be had to the International Covenant on Civil and Political Rights. It is unlikely, for example, that the Emergencies Act could be invoked to prohibit interprovincial travel absent a compelling justification that can be demonstrably (i.e. based on evidence) justified – citizens and permanent residents have mobility rights under s. 6 of the Charter. The Emergencies Act also requires Parliamentary approval of the declaration of an emergency and directives or actions authorized under that declaration. Normal democratic checks and balances remain significantly intact. If the federal government’s initial proposal for unchecked tax and spend powers had passed, it would have given them more power than the Emergencies Act does.

The Prime Minister repeatedly talks about what a significant step it would be to invoke the emergency law. This is true in one sense: invoking an emergency at the federal level would or could remove substantial power from the provinces and territories. In another sense, however, declaring a public welfare emergency at the federal level would be borderline mundane at this point. For most Canadians, conditions on the ground would be unlikely to change. All the provinces and territories have declared states of emergency or public health emergencies, as have many Canadian municipalities. The powers contained in provincial laws are arguably much broader than those outlined for public welfare emergencies in the federal law. Canadians are being urged to stay at home, many services and businesses are shuttered, and social distancing recommendations are being backed up by legal prohibitions on large (and sometimes small) social gatherings. Life has changed dramatically in the last week. A federal declaration of emergency is unlikely to do much more.

Some suggest the federal power could help establish consistency across the country. But is it reasonable to impose the same standards across the country given our very different geographies and cultures? Does it make sense to apply all the same rules to a remote Northern community as to a densely populated city? Ultimately, the question of a federal emergency is one that, according to the law, is to be decided in consultation with the provinces. From a political perspective, it arguably requires their consent and, in this case, consensus. The Premier of New Brunswick has said that he would like the federal government to take this step, but it appears other Premiers don’t agree.

We have a lot to worry about these days. We need to stay healthy and look out for one another. We need to protect our rights while recognizing our collective responsibilities. We need to help our kids manage the uncertainty and the anxiety that comes with a public health crisis. But worrying about the federal government invoking the Emergencies Act is one thing we can cross off the list. Their ability to abuse power exists regardless and so must our vigilance.

Cara Zwibel is the Director, Fundamental Freedoms Program at the Canadian Civil Liberties Association.  As counsel, she  has appeared before, and clerked at, the Supreme Court of Canada.