Calls for Trudeau to invoke Emergencies Act get louder
Extraordinary powers are needed to deal with the pandemic, Eugene Lang writes
More than a year into the pandemic. About 1.16 million Canadians infected. At least 23,800 people killed — more than half the number of Canadians who died fighting in the Second World War.
The “third wave” is here and out of control, with projections of a possible 10,000 new cases a day in Ontario alone by the end of June. Every province, city, town and village in the country is affected in one way or another. This is the only national emergency to hit this country in 75 years. Canada is now in worse shape than the United States, not to mention the United Kingdom, where Prime Minister Boris Johnson declared the pandemic to be his country's “deepest postwar crisis.”
Yet the federal government cannot bring itself to seek Parliament's approval to invoke the Emergencies Act, the statute that gives it extraordinary powers to deal with extraordinary situations. What gives? If not now, when? The Emergencies Act was passed in 1988 to replace the War Measures Act, a controversial law owing to its override of civil liberties and lack of parliamentary oversight. By contrast, almost nothing can be done under the Emergencies Act without Parliament's approval and scrutiny, including the passing of orders and regulations. In a minority Parliament, as we have today, the ability of the government to infringe on civil liberties beyond what is reasonable in a national emergency is therefore constrained.
Pandemics were not seen as a major threat to developed countries when the legislation was passed, so you will not find the word pandemic in the statute. However, the Emergencies Act allows for its invocation to deal with “public welfare” emergencies — including disease outbreaks — that are judged by the federal government and Parliament to go beyond the capacity of provinces to handle on their own, and that require powers outside of existing federal authorities.
The Act confers specific powers relevant to fighting a pandemic. These include, among other things; the regulation and prohibition of travel; the authority to make emergency payments; the ability to establish emergency shelters and hospitals; the authority to impose fines not exceeding $5,000 or imprisonment not exceeding six months for contravention of any order or regulation made under the Act.
Prime Minister Justin Trudeau and his ministers have been asked repeatedly over the past year by the news media whether they intend to invoke the Emergencies Act. The government's reply has been variations of “we're not there yet” or the implication that the federal government cannot resort to this act without provinces calling for it. The statute is clear on this: the federal government must consult provinces, but there is no requirement for provincial consent unless the act is to apply in only one province.
Other reasons have also been rumoured for the federal government's refusal to invoke the act. One is an apparent fear among the Trudeau Liberals that doing so would conjure images of Pierre Trudeau's controversial use of the War Measures
Act 50 years ago to deal with the FLQ Crisis, and that this would damage the Liberals' electoral fortunes in Quebec. If that is a reason for the government's hesitancy, it is time to get over it.
It might also be that the government wants the provinces to make all the tough calls on restrictions to personal and business liberties, while the federal government sticks to the more popular role of paymaster-general and vaccine-buyer-in-chief.
Nevertheless, regional variations in the spread of the disease aside, it seems clear at this point that the pandemic has gotten well beyond the capacity and capability of several provinces. NDP Leader Jagmeet Singh has written to the prime minister asking for the act to be invoked to deal with the crisis in Ontario, for example.
Furthermore, some national-level standards on acceptable behaviour and tolerable risks, which apply to everyone and every business across the country, seem sensible at this juncture. It is hard to see why “essential services,” for example, should vary from province to province. Perhaps essential services should be determined by the federal government through Emergencies Act regulations (currently the federal government provides guidance to the provinces on essential services).
It is also worth noting that one public opinion survey conducted earlier this year by Ekos Research concluded that 70 per cent of Canadians want tougher actions from governments, including the invocation of the Emergencies Act, to help deal with a situation that was increasingly seen by the public — even before the third wave hit — to be out of control.
The threshold for declaring a state of national emergency and resorting to the Emergencies
Act is and should be high. But if the COVID-19 pandemic doesn't meet that threshold, nothing does.
It seems clear at this point that the pandemic has gotten well beyond the capacity and capability of several provinces.