Emergencies Act
The Emergencies Act is a statute passed by the Parliament of Canada in 1988 which authorizes the Government of Canada to take extraordinary temporary measures to respond to public welfare emergencies, public order emergencies, international emergencies and war emergencies. The law replaces the War Measures Act passed in 1914. It asserts that any government action continues to be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.
Under the Emergencies Act, the Cabinet of Canada can declare a national emergency in response to an urgent and critical situation that cannot be dealt with by any existing law, and either is beyond the capability of a province to deal with it or threatens the sovereignty of Canada. Before declaring a national emergency, the federal cabinet must consult with provincial cabinets. In the case of a public welfare or public order emergency where the effects of the emergency are confined to, or occur principally in, one province, the Emergencies Act cannot be used if the provincial cabinet does not indicate that the situation is beyond the capacity of the province to deal with it. Once an emergency is declared, it is subject to confirmation by the House of Commons and Senate.
The Emergencies Act has been invoked only once since it was enacted in 1988, in response to the Canada convoy protest in 2022. This invocation of the Emergencies Act was ruled unconstitutional, and this decision was upheld by the Federal Court of Canada upon the Government of Canada's appeal.
History
Impetus and reform proposals
The impetus for reform of the War Measures Act came in October 1970 when members of the Front de libération du Québec kidnapped Pierre Laporte and British diplomat James Cross. These events, called the October Crisis, resulted in Prime Minister Pierre Trudeau invoking the War Measures Act for the first time during peacetime. During the October Crisis, concerns were raised in Parliament about instances of possible abuse of civil rights, and ineffective flow of information from Cabinet to Parliament.Trudeau responded to the calls for reform during the October Crisis, stating on November 3, 1970, and January 11, 1971, that Parliament would consider creating new emergency legislation; however, new emergency legislation was not introduced while Trudeau was in office. Parliament considered forming a joint committee of the Senate and House of Commons to deliberate new emergency legislation in 1971 and 1977; however, both efforts were unsuccessful as agreement could not be reached on whether the mandate of such a committee would include an evaluation of the government's use of the War Measures Act in the October Crisis.
As new information came to light on the activities of the Royal Canadian Mounted Police's actions during the October Crisis, the Royal Commission of Inquiry into Certain Activities of the RCMP was formed in 1977. Among the McDonald Commission's recommendations in its 1981 final report were several changes to Canada's emergency powers. The McDonald Commission recommended the War Measures Act be amended to focus on powers necessary during times of war, invasion or insurrection, while other emergencies would be dealt with by ad hoc legislation. The commission also recommended that the role of Parliament be increased during emergencies, including the requirement that Parliament confirm the state of emergency, renew the state of emergency, and, if not sitting, that it be summoned within seven days to make such a declaration. The commission further called for the information used by the government to declare an emergency be presented to Parliament publicly, with sensitive or classified materials being provided to an appropriate committee or during an in camera session of Parliament. The McDonald Commission also called for: the power to create a new court to hear complaints from individuals whose rights had been infringed; the War Measures Act to state which elements of Canada's Bill of Rights would be notwithstanding during a declaration; and that Article 4 rights under the International Covenant on Civil and Political Rights never to be overridden.
Despite the McDonald Commission report being completed and released publicly in 1981, it was never tabled in Parliament or fully debated. The Task Force on Canadian Unity, established by the Government of Canada after the sovereigntist Parti Québécois was elected in Quebec in 1976 also called for reform of the War Measures Act, including a declaration of use providing the rationale, greater parliamentary oversight, safeguards for provincial powers, and safeguards for individual liberties.
Despite the calls and proposals for reform of the War Measures Act following the October Crisis, there was no change until the Emergencies Act was passed by Parliament in 1988. The Progressive Conservative Party under Brian Mulroney defeated the Liberal government under John Turner in the 1984 Canadian federal election, and in 1987 the Mulroney government released a white paper on reforming Canada's defence policy. It called for the creation of comprehensive emergency legislation, and the government commissioned a series of studies on emergency and defence topics. The studies considered four options for emergency legislation and recommended that a single comprehensive law be provided with four unique types of emergencies with unique powers, procedures and safeguards.
Legislative history
The Emergencies Act was introduced by Minister of National Defence Perrin Beatty in the second session of the 33rd Canadian Parliament as Bill C-77. Its first reading was on June 26, 1987, and second reading was on November 2, 1987. The bill received royal assent on July 21, 1988, replacing the War Measures Act. Parliament intended it to provide more civil rights protections and less likelihood for abuse of power than the War Measures Act.A number of amendments were made to Bill C-77 between the second and third readings. The definition of "national emergency" and the situations under which the bill could be invoked was defined more restrictively to limit broad use. The definition which passed second reading was removed, "an urgent and critical situation of a temporary nature that imperils the well-being of Canada as a whole or that is of such proportions or nature as to exceed the capacity or authority of a province to deal with it" and replaced with two possible conditions, one which "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" or a condition which threatens the sovereignty of Canada. The reasoning for the change was the understanding that many emergencies were "urgent", "critical" or "temporary", but not sufficient in gravity for use of the Emergencies Act. Another amendment made after second reading allowed government decisions under a declared emergency to be reviewed by the courts based on whether the actions taken were reasonable.
Provisions
Under the Emergencies Act, the Governor in Council may declare that an emergency exists. The emergency must be a "national emergency", which means an "urgent and critical situation of a temporary nature" that either " 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, or seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada and that cannot be effectively dealt with under any other law of Canada".The Emergencies Act contemplates four distinct types of emergencies: a public welfare emergency, a public order emergency, an international emergency, and a war emergency. It uses a "finely graded set of provisions" to respond to each type. The four categories of emergency are triggered in separate circumstances and a declaration of an emergency under each category gives the government a separate set of powers. Once Cabinet has declared an emergency, it can make orders in council or proclaim regulations pursuant to the declaration.
Under the Emergencies Act, a declaration of an emergency by the Cabinet must be reviewed by Parliament. Any temporary laws made under the act are subject to the Canadian Charter of Rights and Freedoms and the Bill of Rights, and must have regard to the International Covenant on Civil and Political Rights.
Once a national emergency is declared, a motion for confirmation of a declaration of emergency must be tabled in the Senate and House of Commons within seven days after a declaration of emergency is made by the Governor in Council. If either chamber is prorogued or in recess, its members must be recalled. If both chambers adopt the motion, the declared emergency remains in place for its original duration, subject to renewal. Either chamber may end the emergency declaration by voting against it. Additionally, a Parliamentary Review Committee with representation from each recognized party must be formed. Within 60 days of the expiration of the emergency, the law requires the government to convene a public inquiry and table a report in Parliament within 360 days following the emergency's expiration.
Public welfare emergency
Part I of the Emergencies Act describes "public welfare emergencies" which result, or may result, in danger to life or property, services or resources, so serious as to be a national emergency. Public welfare emergencies include natural hazards such as fire, flood, drought, storm, or earthquakes; biological hazards including disease affecting humans, animals or plants; and man-made hazards such as accidents or pollution.Section 7 of the act states a public welfare emergency declaration persists for 90 days, subject to being extended through another proclamation, or ended earlier.