Feds ponder whether Emergencies Act powers needed to deal with COVID-19 crisis

OTTAWA — The federal government is pondering whether it needs to invoke the Emergencies Act to give itself additional powers to grapple with the rapid spread of the COVID-19 virus.

Deputy Prime Minister Chrystia Freeland stressed Tuesday that invoking the act would be a “last resort.”

But at least one civil liberties advocate is already warning against its use.

“We strongly urge the federal government to use the utmost restraint in considering the Emergencies Act, which grants exceptional powers including the regulation of mobility and forced removal of personal property that could violate the civil liberties of individuals and classes of people,” Harsha Walia, executive director of the British Columbia Civil Liberties Association, said in a statement.

“We urge the federal government to implement measures under other federal and provincial legislation to appropriately and urgently respond to COVID-19 without creating unintended consequences for civil liberties and human rights.”

Walia reminded the government that the War Measures Act, the law that preceded the current Emergencies Act, “was a travesty” for civil liberties during the First and Second World Wars and the 1970 October Crisis.

However, the current law gives the federal government much more limited and specific powers than its more draconian predecessor.

Under the War Measures Act, adopted after the start of the First World War in 1914, the government was empowered during war times to censor or ban newspapers and magazines, ban political, religious or cultural organizations, impose wage and price controls, seize the property of so-called “enemy aliens” and deport or intern them without charge.

Trudeau’s late father, former prime minister Pierre Trudeau, invoked the War Measures Act during the October Crisis, when the Front de liberation du Quebec had been setting off bombs and had kidnapped a British diplomat and murdered a Quebec cabinet minister. That resulted in the military patrolling the streets of Quebec and Ottawa and hundreds of Quebecers being tossed in jail without charge.

As a result of outrage over the violations of civil liberties, the War Measures Act was replaced in 1988 by the Emergencies Act, which prevents the cabinet from unilaterally imposing emergency measures and allows a more limited range of options.

The act empowers Ottawa to declare a public welfare emergency, during which it could, among other things:

— Regulate or prohibit travel to, from or within any specified area

— Set up emergency shelters and hospitals

— Regulate the distribution of essential goods, services and resources

— Order any person to provide essential services they are competent to provide

— Order evacuations of specific areas and the removal of personal property and make arrangements for the care and protection of affected persons and property

— Impose penalties of up to $5,000 or five years in prison for anyone who violates the emergency regulations

It also requires that any measures must respect the Charter of Rights and Freedoms, which allows the government to impose only “reasonable” limits on civil liberties that are “demonstrably justified” in a free and democratic society.

And it requires the government to provide “reasonable compensation” to anyone who suffers “loss, injury or damage” as a result of emergency measures.

Under the current act, the federal government must consult with every affected province and territory before declaring a public welfare emergency, which would expire after 90 days unless revoked or extended.

An emergency declaration (and any extension of it) would go into effect immediately. But within seven sitting days, the government would have to put a motion seeking parliamentary approval before both the House of Commons and the Senate, along with an explanation of the reasons for declaring the emergency and a report on consultations undertaken with the provincial governments.

The motion would be debated for no more than 10 hours before being put to a vote. If either house of Parliament rejected the motion, the emergency declaration would be immediately nullified.

Every order or regulation made under the declaration would have to be presented to Parliament for its approval within two days of being made.

The government would also be required to set up a joint Commons-Senate, multi-party committee to review all measures imposed under the emergency declaration. That committee would be empowered to pass motions requiring the government to amend or revoke any measures. It would also be required to report to Parliament at least once every 60 days during the emergency.

Once an emergency is declared over, the government would have to initiate within 60 days an inquiry into the circumstances that led to the emergency declaration and the measures taken to deal with it.

This report by The Canadian Press was first published March 17, 2020.

Joan Bryden, The Canadian Press