REACTION: A Governance Lens on the Emergencies Act

When the Emergencies Act was invoked on February 14^th, this was the first-ever invocation of that legislation since its enactment in 1988.

The Emergencies Act is the modernized offspring of the much sterner War Measures Act (WMA), which saw Canada through two world wars and the 1970 October Crisis. When we compare the two acts, we find that many of the differences reflect evolving standards for core principles of democratic governance, particularly those relating to accountability and the conditions for the legitimate exercise of state power.

Both acts were grounded it in the authority of the federal government to legislate for the peace, order, and good government of Canada.

“…no amount of process will legitimize what citizens regard as a bogus “emergency”.”

During its time, the WMA served some useful purposes, including management of a modern wartime economy in the 1940s. It also made possible some of the ugliest incidents in Canadian history, including the dispossession and internment of Canadians during both world wars on the sole basis of their ethnicity, and the arrest of hundreds of innocent citizens in 1970.

In the aftermath of the October Crisis, which included a Royal Commission into activities of the RCMP, it became clear just how out of step the WMA was with contemporary standards of public governance – particularly in the absence of controls to ensure that the exercise of extraordinary powers was legitimately necessary as well as mechanisms to provide oversight and accountability.

The Emergencies Act was intended to address these concerns, while expanding the range of emergencies beyond war to international emergencies, public welfare emergencies, and public order emergencies.

Legitimate state action in a democratic society has both procedural and substantive elements. Following accepted processes is critical, but since emergency legislation essentially legalizes what is normally illegal and overrides jurisdictional boundaries, no amount of process will legitimize what citizens regard as a bogus “emergency”. The first test for legitimate use of the Emergencies Act is that it be rare.

On the critical question of whether an emergency actually exists, the contrast between the original WMA and the Emergencies Act is stark. Section 2 of the original act, under the heading “Evidence of War”, stated that a proclamation by the King or the Governor in Council (i.e., the Cabinet) “shall be conclusive evidence that war, invasion, or insurrection, real or apprehended, exists.”

 In other words, the only test for the existence of a crisis was the government’s say so.

By contrast, the Emergencies Act authorizes the declaration of an emergency where the government believes “on reasonable grounds” that an emergency as defined under the act exists and provides a statement of what constitutes the emergency and what measures are expected to be necessary to address it. The measures must be temporary, with a default 30-day sunset (120 days in the case of war), and the requirement of reasonable grounds applies to any extension.

As for process requirements, at their heart these relate to the rule of law, which in Canada is no longer simply a matter of Parliamentary enactment. The first emergency powers listed in 1914 were “censorship and the control and suppression of publications…” and “arrest, detention, exclusion, and deportation”. Arguably, our political culture at the time was more attuned to public order than to an expansive understanding of individual rights. All that has changed with the Charter of Rights and Freedoms.

The preamble to the Emergencies Act states explicitly that the temporary measures enacted under its authority 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”. The legal import of this preamble might be debated but the political and moral expectations are clear.

Another, increasingly critical aspect of legitimacy is what we call voice – the expectation that power shouldn’t be exercised without giving stakeholders a meaningful say.  It is a matter of voice as much as the rule of law that Parliament must approve the government’s declaration within seven days.

There is also the requirement that the provinces be consulted.

In formal terms a right to be consulted is not a right of veto, but we have learned from Charter jurisprudence that it can entail important procedural requirements, and in the context of Canadian federalism it is a powerful moral, or at least political, force.

The Emergencies Act is also marked by significantly heightened standards of oversight and accountability.

The requirements for parliamentary supervision and debate are particularly critical.

The renewal requirements – which include reviewing each of the orders made under the declaration for continued necessity as well as going back to Parliament – create a significant break on possible abuses, especially in a minority House. Even where the government has a majority, the renewal requirements create opportunities for parliamentary scrutiny, and possibly judicial review.  

The requirement that the responsible minister pay reasonable compensation to anyone who suffers loss, injury, or damage as a result of actions conducted under the declaration may also be regarded as a significant accountability measure that will almost inevitably be brought into play.

Perhaps the most significant oversight mechanism is the provision for establishing an all-party Parliamentary Review Committee to scrutinize the exercise of authorities under a declaration.

While such a committee would conduct business in camera, it would report to Parliament every 60 days through the course of the emergency. There is also the requirement, admittedly without specified parameters, that within 60 days of the end of the emergency the government cause an inquiry to be held “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency”. Such an inquiry would report to Parliament within a year of the emergency’s end.

Since this is the first time a government has invoked the Emergencies Act, it remains to be seen just how effectively most of the safeguards described here will work and how robust a role parliamentarians and the courts will play.

The very fact of their inclusion in the legislation is a testament to a positive evolution in Canadian governance over the course of the 20^th century.