What is the Emergencies Act in Canada? PM invokes 'sweeping powers' to take hold of unrest across the nation

Prime Minister Justin Trudeau made a historic move by invoking Emergencies Act on Monday, in light of various anti-vaccine mandate protests that continue to take place across the country. It is an unprecedented move that would give the federal government all jurisdiction to deal with the scope of the problem in its entirety.

Greg Flynn is an assistant professor in the Department of Political Science at McMaster University. He says in recent weeks, there’s been talk about how policing isn’t in the federal jurisdiction, meaning the federal government can’t dictate what is done. A declaration of an emergency would allow the federal government to step into areas and take them over as if the province didn’t exist.

Deployment of armed forces to help with emergencies isn’t unheard of.

When armed forces were deployed in Ontario to help control the spread of COVID-19 as it was running rampant in nursing and care homes, for example, that was at the request of the provincial government.

The Emergencies Act allows federal government to bypass that step and do it themselves. They could use all provincial powers with respect to policing as they wanted, whether that means directing the police themselves or using the armed forces. Trudeau, however has said he isn't interested in deploying the military.

History of the Emergencies Act

The Emergencies Act was introduced in 1988 in response to the federal government’s invocation of the War Measures Act. The latter was used during the October Crisis, in which there were widespread abuses as the RCMP made sweeping arrests. It was also used during the FLQ crisis in Quebec, which allowed the federal government to declare martial law and suspend all civil liberties in the country, though they only did so in the province of Quebec.

As a response to that system of emergency governing, which many felt was too heavy handed, the Emergencies Act was introduced to create a tiered system of emergency response, which depended on the severity of the situation.

“Emergency powers are always dangerous, they’re always playing with fire, but they are sometimes necessary,” says Nomi Claire Lazar, a professor of politics at the Graduate School of Public and International Affairs at the University of Ottawa.and author of States of Emergency in Liberal Democracies. “What we want is a set of powers that are as constrained as possible while still allowing for a situation or crisis to be resolved.”

While there have been many emergencies throughout Canada over time, they are generally municipal or provincial states of emergency. When an emergency happens, municipalities regulate within their borders, and ask for help from the province if needed, while the same goes for provincial jurisdictions, which will ask for help from the federal government when necessary. The Emergencies Act would do away with that, meaning that everything would be considered under the federal jurisdiction.

Citizens need to be 'engaged' during Emergencies Act

Lazar says it’s not as though leaders can use these powers and not have oversight, as there will be parliamentary review. These orders expire after 30 days, unless parliament revokes it first. If the government wants to prolong a state of emergency, they have to stand before a committee of Senate and parliament members during and after the issue is ordered.

“There are safeguards within the act that go beyond just informal,” says Lazar. “But in order for those safeguards to work, they require citizens to be engaged. We have to have our eyes on parliament to make sure they are scrutinizing which powers are being used.”

Flynn says that the most extreme thing that could happen during the Emergencies Act is calling in the armed forces to deal with protestors, though he doesn’t believe this will be a likely route. Instead he suspects the use of the armed forces to secure the borders.  

“These kinds of measures will attract criticism that rights like freedom of expression, freedom of association and freedom of assembly are being violated and infringed upon,” he says. “Invoking the Emergencies Act would make it easier for the federal government to justify violation of rights in a court of law.”

He says there’s games being played between the premiers and the federal government since no one wants to be the one calling in the armed forces to suppress legal descent.

“No one wants to be seen as the one wielding the heavy stick,” says Flynn. “So the premiers keep hoping the prime minister will do it and the prime minister keeps saying the provinces have the ability to do this, so why don’t they get it done? There’s serious politics going on there.”