So far, so good.
The most important things about the use of an emergency power are that it be infrequent, narrowly focused, and short-lived. As the IOG recently noted, the Emergencies Act includes significant accountability and oversight safeguards to help ensure that this is so – safeguards that were absent from its parent legislation, the War Measures Act.
First among these safeguards is the need for “reasonable grounds” for declaring an emergency. Both national emergency and each specific type of emergency are defined in the Act, which gives content to this provision. It dovetails with a requirement that the government specify what the emergency is and what measures it expects to need to address it.
These requirements were duly fulfilled when the proclamation was set out in the Canada Gazette on February 15. In delineating the emergency, the government citied the blockades and threats of serious violence for political objectives, adverse effects on the economy and relations with trading partners, breakdowns in the distribution chain, and the general potential for increased levels of unrest and violence.
The anticipated temporary measures included measures to regulate or prohibit public assembly under specified circumstances, measures to authorize and potentially commandeer essential services (the infamous tow truck initiative), authorization of the RCMP to enforce municipal and provincial laws, authorities for fine and imprisonment, and, inevitably, “other temporary measures…that are not yet known”.
As also required, the government consulted with provinces on its intention to invoke the Act.
This is not the same as giving the provinces a veto, as the government made apparent, but it did steer clear of emergency initiatives in provinces that didn’t want them.
In keeping with a further critical safeguard, the declaration was put before Parliament for debate and a vote within seven days. This was no formality in a minority House, as we may infer from the decision to make the vote a matter of confidence. As already noted, the emergency didn’t last long enough to permit a vote in the Senate.
Since Parliament can revoke the declaration before the 30-day default period, Jagmeet Singh’s promise to keep the government’s feet to the fire regarding the ongoing need for the declaration was presumably not idle, and in fairness the government did keep Canadians reasonably informed of how it was using its powers.
Does the reasonable grounds requirement provide a basis for judicial review?
Both the Canadian Civil Liberties Association and the Government of Alberta evidently believe so, although it remains to be seen what becomes of the legal proceedings that they launched. Would the courts enter into a substantive assessment of whether an emergency existed within the meaning of the legislation? Or would their focus be procedural, deferring to the political process on assessing the situation on the ground? Again, we’ll have to wait and see what if anything happens in the courts.
That said, since the Charter and other rights documents are not meant to be suspended by the declaration, it’s clear that alleged violations would be a matter for the courts. So presumably would any claims for compensation for loss as provided in the Act.
The short duration of this emergency did not enable the operation of the renewal provisions or of an ongoing all-party Parliamentary Review Committee to scrutinize and report on actions undertaken in the name of emergency.
However, within 60 days of the end of the emergency the government will be required to hold an inquiry “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency”. The Act doesn’t give parameters for this inquiry, but it is to be hoped that it will be public and impartial. This inquiry would have a year from the emergency’s end to report, so we may not get to the bottom of matters until then, if ever.
We can at least say the formalities were respected and that there was energetic scrutiny in Parliament and more broadly. On the core question of whether a declaration was necessary or overreach, it is hard to imagine such a mix of operational and values considerations being settled any other way than politically.
Leaders who invoke emergency powers should follow the example of Cincinnatus, the Roman leader who, given the status of dictator to defend his country in a military crisis, set it aside immediately following a speedy victory and returned to his humble farm.
Whether Canada’s contemporary leaders merit comparison with this ancient precedent is still too early to tell.
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