Spring 2020 update on the federal Emergencies Act

We are now living amongst the terror and sadness of a global pandemic – Covid-19. Yesterday, after a phone call between the PM and the Premiers, the federal government officially decided, on pressure from the provinces, not to use the federal Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.)). That leaves it as still having never been used since it was passed in 1988, replacing the War Measures Act. 

The War Measures Act was used three times – to intern Canadians in WWI, WWII, and during the October Crisis in 1970. The last use, by Trudeau senior, gave it a bad rap (the first two did as well), and after the Charter was passed it no longer seemed to fit the Canadian legal ecosystem, so it was repealed and the Emergencies Act passed, which is supposed to accord with the Charter.

Regardless – it is clear that its potential use is not popular with the provinces, as it is fairly likely to intrude on provincial jurisdiction. BC Premier John Horgan said yesterday that it was a “distraction” and a waste of time. It was also clear that the Emergencies Act is considered a stop-gap measure, to fill in the blanks when there is a failure of national co-operation, or provinces fail or are unable to do their part, Trudeau said in a briefing afterwards;

“We are seeing that the collaboration, the partnership among provinces and territories and the way we’re moving forward on this means that we might not ever have to use the Emergencies Act and that would be our preference.”

This post, by Adrienne Smith, lays out some of the powers the federal government can access under the Emergencies Act;

… Cabinet has the power to evacuate, remove, requisition, direct and dispose of person and things. It can force the establishment of hospitals and shelters – for 90 days. People can be directed to render essential services. This declaration allows for the payment of benefits and support to people who are affected – through Employment Insurance, the CERB and as transfers to the provinces. Various enforcement tools are created, including fines and imprisonment.

Those are extensive, and if the federal government were to use the Emergencies Act regarding climate change they would have considerable powers to deal with it. This post builds on one from last year – Can governments declare a “Climate Emergency”? – the powers under the Act are listed in s. 8 of the Act, and discussed in last year’s post in more detail.

The Act itself mentions “accident or pollution” (s. 5(c)), under “Public Welfare Emergency,” as one of the bases on which to declare an emergency.  Certainly climate change qualifies as pollution. 

In order to really get the answer regarding the question of whether the federal government will ever use the Emergencies Act regarding climate change we can look at two things; 1) the provincial resistance to it, as an encroachment on their spheres of ppower, 2) it would have to be in a situation of complete provincial failure to deal with the problem (which is arguably the case for most provinces), and 3) look at the resistance to the carbon tax, which is also predicated on a failure of the provinces (in order for it to be applied there (to be discussed in a coming post)).

The result? It will have to be very dire circumstances for the federal government to ever consider invoking the Emergencies Act in relation to climate change, including a complete failure of one or more provinces to deal appropriately with those very dire circumstances. It is unlikely to happen any time soon.

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