Canada’s Emergencies Act
The Emergencies Act, which became law in 1988, is a federal law that can be used by the federal government in the event of a national emergency.
The Act contains a specific definition of “national emergency” that makes clear how serious a situation needs to be before the Act can be relied upon. A national emergency is an urgent, temporary and critical situation that seriously endangers the health and safety of Canadians or that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada. It must be a situation that cannot be effectively dealt with by the provinces and territories, or by any other law of Canada. There are four types of emergencies that can be declared under the Emergencies Act:
- A public welfare emergency
- A public order emergency
- An international emergency
- A war emergency
The Emergencies Act can be invoked to grant temporary additional and necessary powers to the federal government when provincial, territorial and federal tools are no longer sufficient to deal effectively with the serious issues being faced, such as the ability to make orders or regulations that are believed, on reasonable grounds, to be necessary to respond to the issues at hand. Such issues include public health and safety risks as well as economic issues.
For example, when necessary for dealing with a public order emergency, the federal government can issue or adopt temporary orders and regulations:
- Regulating and prohibiting public assemblies, including blockades, other than lawful advocacy, protest or dissent,
- Regulating the use of specified property, including goods to be used with respect to a blockade,
- Designating and securing places where blockades are to be prohibited (e.g. borders, approaches to borders, other critical infrastructure),
- Directing specified persons to render essential services to relieve impacts of blockades on Canada’s economy, with compensation,
- Authorizing or directing specified financial institutions to render essential services to relieve the impact of blockades, including by regulating and prohibiting the use of property to fund or support the blockades,
- Measures with respect to the authorizing of the Royal Canadian Mounted Police to enforce municipal and provincial laws by means of incorporation by reference,
- The imposition of fines or imprisonment for contravening on any of the measures declared under this public order emergency.
Democratic safeguards: parliamentary oversight, accountability, and respecting Canadians’ individual rights
The Emergencies Act has stringent, built-in protections which ensure democratic oversight and accountability with respect to the way in which the Government exercises its powers under the Act.
The Act also requires consultation with the provinces and territories before a Declaration is issued, unless the provinces and territories cannot be adequately consulted without unduly jeopardizing the effectiveness of the proposed action. Once a Declaration is issued, a report must be tabled in Parliament within seven sitting days explaining the consultations that have taken place.
Impact of the Emergencies Act on individual rights
When the Emergencies Act is invoked, the Canadian Charter of Rights and Freedoms (Charter) continues to protect individual rights as the Government of Canada takes the necessary steps to safeguard the safety and well-being of Canadians. In deciding on measures to take, the Government must respect constitutionally protected rights and freedoms, including the rights of citizens to enter Canada and the right to life, liberty and security of the person, as well as Canada’s obligations under international law. The Charter allows the Government to balance the rights of the individual with the interests of society where limits on guaranteed rights and freedoms can be justified in a free and democratic society.
Specifically, section 1 of the Charter allows the Government to put limits on rights and freedoms if those limits:
- are set out in law;
- pursue an important goal which can be justified in a free and democratic society; and
- pursue that goal in a reasonable and proportionate manner.
This means that during a public order emergency, as defined by the Emergencies Act, the Government must only take actions that are a reasonable and proportionate response to the risks to safety of Canadians.
Transparency and accountability
In view of its exceptional nature, there are additional, stringent safeguards built into the Act to ensure democratic oversight and accountability during an emergency. The following procedural steps act as checks and balances under the law:
- Declaration: The Government of Canada must formally declare an emergency, effective from the day it is made.
- Government tables motion in Parliament: The Government must table a motion in both the House of Commons and the Senate within seven sitting days that asks for confirmation of the Declaration and explains the reasons for it. The Government also gives Parliament a report on the consultations held with provinces before the Declaration was made.
- Parliament votes: Both the House of Commons and the Senate must vote on the motion. If either the House of Commons or the Senate does not vote in favour of the Declaration, then it is revoked that very day.
- The Senate or House of Commons are recalled, if necessary: If either the Senate or the House of Commons is not sitting at the time the Declaration is issued, it must be recalled to sit within seven days of the date of the Declaration.
- Government issues and tables orders and regulations: Any Government actions taken to respond to the emergency must be tabled in both the House of Commons and the Senate two days after the Government issues the orders or regulations. This ensures that the Government’s actions are transparent and that the Government will be accountable before Parliament for its actions.
- A parliamentary review committee is established: A special joint committee of both the House of Commons and the Senate must be established to review the Government’s actions under the Act on an ongoing basis.
- Parliament exercises powers: At any time, the Senate or the House of Commons can review and potentially revoke the Declaration and any orders or regulations made under the Act.
- Declaration expires or is extended: The Declaration expires after 30 days unless an extension is confirmed within specific timelines by both the House of Commons and the Senate.
- An inquiry held: After the emergency has ended, the Emergencies Act requires the Government to hold an inquiry, and table a report to each House of Parliament within three hundred and sixty days after expiration or revocation of the declaration of emergency.
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