At today’s Federal Government briefing on the coronavirus pandemic, the Deputy Prime Minister made some comments about the Emergencies Act. I recalled the introduction of the War Measures Act in the 70’s when civil liberties were suspended in response to the FLQ crisis in Quebec. So I thought it would be useful to see how emergency powers legislation has been updated since that time, and in light of the 1982 Charter of Rights and Freedoms.
The Emergencies Act was adopted in 1988. Its preamble reads:
WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;
AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;
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;
Key points to note from this preamble: “national emergency” must “seriously threaten” the fundamental obligation by government to protect the safety and security of the individual; measures must be special and temporary and not appropriate in normal times; measures are subject to the Charter and International law and that there are rights not to be limited or abridged even in a national emergency. The latter would include the right to vote and the right to be protected from unlawful arrest, for example.
“National emergency” is defined in the Act itself, as something that not only endangers the lives, health, safety and security of Canadians, but it must be of such proportions and nature as to be beyond the capacity or authority of a province to deal with it.
The Federal Government has authority to declare and address four types of emergencies: Public Welfare Emergency, Public Order Emergency, International Emergency and War Emergency.
These declarations have to be approved by Parliament and there must be consultation with the provinces, or the affected province, prior to issuing the declaration of emergency. Within 7 “sitting days” of issuing the declaration, there must be a motion of confirmation before Parliament and each of the provincial legislatures. The consultation process is set out in s. 58 of the Act. Section 14 of the Act specifically requires prior consultation with the provinces or the affected province regarding a Public Welfare Emergency. That’s why the Deputy Prime Minister said that Parliament was being reconvened. Presumably all the provinces will do the same.
The powers available to the Federal Government on a declaration of a Public Welfare Emergency are broad and they are set out in s. 8(1) of the Act as follows:
(a) the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;
(b) the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;
(c) the requisition, use or disposition of property;
(d) the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;
(e) the regulation of the distribution and availability of essential goods, services and resources;
(f) the authorization and making of emergency payments;
(g) the establishment of emergency shelters and hospitals;
(h) the assessment of damage to any works or undertakings and the repair, replacement or restoration thereof;
(i) the assessment of damage to the environment and the elimination or alleviation of the damage; and
(j) the imposition
(i) on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or
(ii) on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,
for contravention of any order or regulation made under this section.
Section 3 of the Act specifies that the emergency powers must be exercised with a view to achieving to the extent possible concerted action with the provinces and which doesn’t unduly interfere with provincial responses to the emergency.
Of interest to the labour movement is section 3(b) which clearly states that these powers:
b) shall not be exercised or performed for the purpose of terminating a strike or lock-out or imposing a settlement in a labour dispute.
In the meantime, as we await the declaration of a national Public Welfare Emergency we should all heed the recommendations of public health officers: wash your hands, stay home, don’t hoard, check in with your neighbours (by phone or email of course), self-isolate and work from home. And don’t forget to thank front line health care providers and all other working people who are delivering mail, working in grocery and drug stores, delivering take out or still looking after guests in hotels and making our municipal services run. Elected leaders like Adrian Dix, our provincial Minister of Health who has been advocating for more stringent border measures to keep British Columbians safe should also get a nod.
There must be immediate financial assistance for workers facing layoffs. In the coming days unions will be called upon to ensure that their members are protected not only in terms of their health and safety, but also with respect with sick benefits, layoff protection under the Labour Code and benefit and pay continuance, to name a few. Union should also be watching for provincial and federal initiatives that may be of help.
As usual, this post contains information of a general nature. It is not intended as legal advice. For more information and specific advice feel free to contact our office.