In response to the COVID-19 pandemic, all Canadian provinces, including Manitoba, have now declared public health emergencies. To date, the federal government has not yet followed suit. While this may surprise some readers given the increasingly rapid spread of COVID-19 throughout the country, there are at least two principal reasons described below why the federal cabinet has not yet declared a state of emergency as permitted by the Emergencies Act.
The Emergencies Act replaced the War Measures Act in 1988 and to date, the Emergencies Act has never been invoked. The last time the War Measures Act was invoked occurred in October 1970 during the October Crisis in the Province of Quebec by Prime Minister Pierre Elliott Trudeau.
Under section 6(1) of the Emergencies Act, a federal public welfare emergency can be declared if, on reasonable grounds, the cabinet believes there exists an emergency that is caused by a real or imminent disease that results or may result in danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency.
The first limitation on the federal government’s ability to declare a nation-wide state of emergency is that the emergency must be of such proportions or nature as to exceed the capacity or authority of provincial governments to deal with it. Given the breadth of powers available to provincial governments under their own emergency legislation, such as, the authority to: acquire or use any real or personal property considered necessary to combat or alleviate the effects of an emergency; regulate the distribution and availability of essential goods, services and resources; control, limit or prohibit travel to or from any area or on any road, street or highway; and order evacuations of buildings or areas, it may be unnecessary for the federal government to declare a national state of emergency unless unforeseen circumstances arise. In addition, prior to declaring a federal public welfare emergency, the federal cabinet is required to consult with provincial cabinets in affected provinces. The Emergencies Act does not provide specific details as to the scope of this duty to consult.
The second limitation is that the public health emergency must be of such severity that it cannot otherwise be effectively dealt with under any other laws of Canada, including but not limited to the Quarantine Act and the Aeronautics Act. To date, the minister of transport has already exercised his authority under the Aeronautics Act to deny boarding of travelers who display symptoms of COVID-19.
While a federal public welfare emergency is in effect, the federal cabinet may make such orders or regulations with respect to the:
Failure to comply with any such orders may result in a fine of up to $5,000 and for terms of imprisonment of up to five years, or both.
Under the Emergencies Act, the House of Commons and Senate must be allowed to debate and vote on a state of emergency proclamation within 7 sitting days of an emergency declaration by the federal cabinet and if Parliament is adjourned, both houses must be called back into session within 7 days. If the state of emergency is not ratified by the House of Commons and Senate, the state of emergency is immediately revoked. In addition to the authority of Parliament to debate and ratify a federal state of emergency, a declaration by the federal cabinet is subject to judicial review by court challenge on the basis that the federal cabinet has not complied with the legislation as written or that certain actions taken by the Government of Canada under the Emergencies Act violate or are inconsistent with the Constitution.
To date, none of Canada’s provincial governments have publicly called on the federal government to declare a federal public welfare emergency. Rather, provincial governments are relying on their own efforts to limit the spread of COVID-19 within their borders, as provided for under provincial legislation. Assuming these efforts prove sufficient in slowing and reducing the spread of COVID-19, it is not lawful for the federal cabinet to declare a national public welfare emergency. In the event that it is ultimately deemed necessary to declare a federal public welfare emergency, Parliament will be called on to ratify the government’s decision. However, once declared, the federal cabinet will have significant discretion to exercise far-reaching authority under the Emergencies Act.
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