Emergencies Act (Canada)

The Emergencies Act is a law that allows the Canadian government to temporarily take extraordinary measures to address certain types of crises. These crises include public welfare, public order, international, and war emergencies. Enacted in 1988, the Emergencies Act replaced the 1914 War Measures Act. Despite giving the Canadian government relatively broad powers in the event of an emergency, the Act does make clear that any actions taken are still subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights. The Emergencies Act became the subject of significant public debate when Prime Minister Justin Trudeau invoked it for the first time in history in response to the so-called “Freedom Convoy” protests that led to disruptive blockades in Ottawa and several other Canadian cities in early 2022. While Trudeau eventually revoked his use of the Act when the protest dissipated, some concerns remained about the extent of authority it gives the government and whether its use was justified in relation to the blockades.

Background

The Emergencies Act was created as a replacement for its direct historical antecedent, the War Measures Act. Adopted shortly after the beginning of World War I in 1914, the War Measures Act was a law that afforded the Canadian government broad powers to take whatever steps it deemed necessary to maintain order and security during periods of “war, invasion, or insurrection.” Once passed, the War Measures Act went into force and remained in force until World War I officially ended on January 10, 1920. It allowed the Cabinet to sidestep Parliament and govern by decree in wartime. As used during World War I, the War Measures Act authorized the government to engage in censorship and suppress communication; detain and deport people without trial; control transportation, trade, and manufacturing; and seize private property. Over the course of the war, the Act was used to ban various publications, outlaw membership in leftist and pacifist organizations, and justify the internment of civilians labeled as enemy aliens.

The War Measures Act was invoked for a second time during World War II. Immediately before Canada joined the war, the Act was used to create the Wartime Prices and Trade Board and implement the Defense of Canada Regulations. The Wartime Prices and Trade Board was tasked with making sure that the high inflation and social unrest that roiled Canada during World War I did not happen again. To that end, the Canadian government used the board to seize direct control of the Canadian economy through the establishment of wage and price controls and limits on housing costs and the costs of critical goods. The Defense of Canada Regulations allowed the government to once again censor publications, ban certain organizations, and detain individuals without due process.

The War Measures Act was invoked for a third and final time by Prime Minister Pierre Trudeau during the October Crisis of 1970. During this crisis, a group of militaristic separatists known as the Front de liberation du Québec (FLQ) staged the kidnapping of a British diplomat and a Quebecois politician. Trudeau used the Act to suspend civil liberties so he could send Canada’s armed forces to resolve the situation.

Overview

The Emergencies Act officially replaced the War Measures Act in 1988. As compared to the original law, the new Act gave the Canadian government more limited and specific powers to address serious security crises. Unlike its predecessor, the Act required any orders or regulations issued by the Cabinet to be reviewed by Parliament before they could go into force. It also outlines how those affected by government actions during a crisis should be compensated and clarifies that such government actions are subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights.

Importantly, the Emergencies Act stipulates that it can only be invoked in the event of a national emergency. The Act specifically defines a national emergency as “an urgent and critical situation of a temporary nature” that “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.” The Act further states that it can only be invoked if the emergency at hand “cannot be effectively dealt with under any other law of Canada.” To prevent its potential misuse, the Act specifically identifies four different types of national emergencies during which it can be invoked. These include a public welfare emergency, a public order emergency, an international emergency, and a war emergency.

When invoked for the purpose of dealing with a public order emergency, the Emergencies Act gives the Canadian government a number of specific additional powers. Among other things, this includes the power to regulate or prohibit any public assembly likely to result in a breach of the public peace, travel into, out of, or within a specified area, or use of specific property. It was this particular application of the Act that was at the heart of its usage during the 2022 convoy protest crisis. The crisis started in January 2022 in the form of a cross-country trucker convoy designed to protest the enactment of COVID-19 vaccine mandates. When the convoy eventually reached the federal capital in Ottawa, Ontario, it morphed into a weeks-long protest encampment and blockade. Prime Minister Trudeau ultimately invoked the Act to end the protest and reestablish public order. During the short time it was invoked, the government used the Act to allow police to take steps to ban assembly in specific no-go zones, order banks to freeze accounts allegedly being used to help fund the protest, and compel tow truck drivers to move vehicles out of the protest zone. The Act was revoked when the most significant threats posed by the protest were dealt with and order could be fully restored through normal laws. Still, some critics argued that the fact that the Act was invoked at all represented a violation of Canadians’ constitutional rights and set a dangerous precedent moving forward. Two years after the Act was invoked, a federal judge ruled that the government's use of emergency powers was unreasonable and unjustified. While the Canadian government appealed the ruling, many argued that changes needed to be made to the Act so it would not have such sweeping powers.

Bibliography

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