The Emergencies Act has been at the forefront of Canadian's minds since it was historically invoked by Justin Trudeau to navigate the 'Freedom Convoy' protests in Ottawa, earlier this month. It was applied for the first time since its enactment in 1988. Many were fearful the act was misapplied, and people worry about its efficacy and the legal restraints under which it is bound. This article explores the historical foundations of the Emergencies Act, as well as the normative preconditions necessary for its application, as well as the legal constraints which protect against usurpation and the tyrannical accumulation of power. 

The Emergencies Act, 1988, is the successor to a similar act, The War Measures Act of 1914. The War Measures Act was adopted at the beginning of WWI to better protect national security and to prepare for war in times of emergency. Essentially, the War Measures Act, 

Allowed the Governor in Council to proclaim the existence of war, invasion or insurrection, real or apprehended; provided that the issuance of such a proclamation was conclusive evidence that such a state of conditions was actually in existence; and permitted the Governor in Council to make whatever orders and regulations were necessary to maintain security, defense, peace, order and welfare in Canada. 

After several amendments (notably in 1960 and 1970), the War Measures Act was ultimately abandoned, as it was criticized for the virtually unbridled power it conferred on the Federal Government. It was replaced by the Emergencies Act which became law in 1988, and which sought to establish a new framework through which the Government of Canada could respond to crisis or emergency situations, at home, and abroad. 

The Emergencies Act broadens the power of the federal government in times of crisis, that is, in times when the normal tools afforded to the federal government are not adequate enough to respond to a particular circumstance. According to the Government of Canada’s website: 

The Act contains a specific definition of “national emergency” that makes clear how serious a situation needs to be before the Act can be relied upon… It must be a situation that cannot be effectively dealt with by the provinces and territories, or by any other law of Canada. There are four types of emergencies that can be declared under the Emergencies Act: A public welfare emergency; a public order emergency; an international emergency [or] a war emergency.

Evidently, the Emergencies Act does broaden the power of the Canadian Government, but only when absolutely necessary, and only when circumstances demand expedient and sweeping remediation and/or rectification. 

Many fear that the Emergencies Act affords the federal government unbridled, and therefore undemocratic levels of power, however, it is imperative to understand that the Emergencies Act act is stringently subject to institutional safeguards, which ensure that it is not used for nefarious purposes, or without due cause. In order for an emergency declaration, to come into effect, Parliament must sign off on its application. Important to note:

Pursuant to section 58 of the Emergencies Act, once the emergency is declared by the Governor in Council, a motion for confirmation of the declaration is to be laid before the Senate and House of Commons within seven sitting days after the declaration is issued. The motion must be signed by a minister, and it must include detailed reasons for making the declaration and a report on any consultation with the provincial lieutenant governors in council. After the motion is tabled, each house must consider the motion by debating it without interruption, and the Speaker must immediately put the motion to a vote. If the motion is defeated by the Senate or the House, the declaration is revoked.

As such, the application of the Emergencies Act and the temporary expansion of the Canadian Federal Government’s power, cannot be done on a whim and is subject to parliamentary authorization and supervision for the total extent to which it stands. 

Additionally, the Emergencies Act does not supersede or subvert the Canadian Charter of Rights and Freedoms, and cannot legitimately violate the rights of Canadian citizens. As stated within the Emergencies Act: 

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.

This safeguard ensures that no democratically elected Canadian leader can mechanize the Emergencies Act to accumulate or usurp power, and therefore undermine the fundamental tenets of democracy. It also protects the rights of citizens and ensures that the Emergencies Act, cannot, under any circumstances undermine the individual rights afforded to all Canadian citizens in the Charter. 

In summation, invoking the Emergencies Act is not done on a whim, and the Federal Government is required to explain why it is necessary to enact it in relation to a given set of circumstances. The Emergencies Act is an important tool in times of crisis, which allows governments to respond expediently and fairly to circumstances which threaten the viability of Canada, and the welfare and wellbeing of its citizens. Parliamentary authorization and supervision are required for the act to be invoked, and therefore the power of the government is subject to an established institutional constraint. As of the time of writing, a joint committee is being established to review Trudeau’s historic use of the Emergencies Act.