What is the Emergencies Act and what Ottawa can—and can’t—do with it

Shannon Proudfoot talks to author and expert Nomi Claire Lazar about the unprecedented powers of the Emergencies Act and the risks of using them

Trudeau leaves a news conference after announcing the Emergencies Act will be invoked, on Feb. 14, 2022 (Adrian Wyld/CP)

Trudeau leaves a news conference after announcing the Emergencies Act will be invoked, on Feb. 14, 2022 (Adrian Wyld/CP)

On Monday, Prime Minister Justin Trudeau announced he was invoking the federal Emergencies Act to try to end the protest blockades that have entrapped downtown Ottawa and disrupted international border crossings across the country for weeks.

This is the first time the Act has ever been used, so Maclean’s spoke to Nomi Claire Lazar, a professor in the Graduate School of Public and International Affairs at the University of Ottawa and author of the book States of Emergency in Liberal Democracies about what this allows the government to do, why the law exists and what are the limitations on its power. This conversation has been lightly edited for length and clarity.

Q. When and why was the Emergencies Act created?

A. The Emergencies Act came into force in 1988. It took a lot of debate to design this piece of legislation because it was intended to fix problems in the previous emergency legislation, the War Measures Act, which had been prone to quite a lot of abuse over the years. The War Measures Act came into force in 1914 during the First World War, and it’s infamous for being used during the Second World War to intern Japanese-Canadians. So that abuse was very much in the background, alongside the abuses that took place after the first Prime Minister [Pierre] Trudeau invoked the War Measures Act during the October Crisis. At that time, the RCMP made mass arrests, confiscating property. There was an inquiry and it was generally felt that this legislation was too broad and not in line with the principles in the Charter of Rights and Freedoms.

So the purpose of the Emergencies Act was to have a piece of emergency legislation that was careful, that had more checks and balances and that could sit alongside the Charter of Rights and Freedoms.

Q. What types of situations does the Act set out as being appropriate for its use?

A. There are four different kinds of emergencies in the Emergencies Act. This is one of the things that makes it such a good piece of legislation, because often emergency powers are sort of a blanket thing: you declare an emergency and then you can do lots of stuff. But our emergency legislation ties the available powers to the seriousness and character of the situation.

So the four different types of emergencies are a public welfare emergency that usually pertains to things like natural disaster; then there’s a public order emergency, which is the one we’re under right now, and that pertains to threats to national security; then there’s an international emergency, which might have to do with the threat of invasion; and then finally a war emergency, if we’re in a condition of war. For each one, there are increasing powers that the Governor in Council can use, that are tiered to the situation.

Q. So is it a case that the Emergencies Act provides a broad framework of powers that are available to the federal government, and they then have to tailor or state which ones they’re invoking in a specific case?

A. That’s also a requirement under international law. Canada is a signatory to the International Covenant on Civil and Political Rights (ICCPR), and right in the Act itself, it states that not only should this act sit alongside the Charter, but it should also sit alongside Canada’s obligations under the ICCPR. That means that there are two ways the government has to report which specific powers it’s using. One is to Parliament and the other ultimately will be to the relevant committee of the United Nations. So when a country declares a state of emergency and derogates (deviates from) its duties under the ICCPR, it has to basically confess and state exactly which rights it derogated, and why.

Q. What are the consequences or the enforcement mechanism there?

A. Well, the UN being the UN, there’s not much of an enforcement mechanism. It’s more like a public shaming. And in my research, I’ve found that those kinds of informal mechanisms can be very effective as long as a country’s not already too corrupt, basically.

This act is full of provisions, as well as some formal constraints. For example, the Act does not mention judicial review, and in its silence, it’s probably the case that there can be judicial review of any orders made under the Emergencies Act. But because we’ve never used it, some of this stuff we just don’t know [yet].

Q. What does the Act not do? This became a live issue yesterday when The New York Times reported that Canada was revoking civil liberties, which is not the case.

A. A state party to the ICCPR can never derogate the right to life, freedom from torture, or freedom of thought for instance. And, importantly for our current circumstance, a state can’t make retroactive laws in an emergency either. That means anyone who donated to the convoy before the emergency order would not be subject to having their assets frozen.

In addition, these powers have to be used in a manner which sits alongside the Charter of Rights and Freedoms, so that means that rights are going to be limited, but they have to be limited in accordance with Section 1 of the Charter, which states that those limitations have to be reasonable in a democratic society.

Q. In this situation with the blockades, what were some of the key powers the federal government said it was invoking?

A. They’re going to use the prohibition of public assembly, they’re going to use the power to limit travel to and from a specified area, they might be designating protected places—so for example the border crossing. They also are empowering the RCMP to enforce bylaws, so instead of having to deputize the RCMP as sort of honourary Ottawa police officers, for example, they can just go ahead and enforce things right on the ground.

And then there are these interesting financial provisions. The idea is that from this point forward, anyone who makes a donation in support of illegal activities like the convoy could have their assets frozen. That would be true on a corporate level [too] for anyone who allows their trucks to participate, and there could be insurance implications as well.

Q. There was also compelling services like tow trucks as well, right?

A. Yes, and that sort of captures some of the absurdity of the situation, that you would invoke the Emergencies Act to get a tow truck to tow trucks. So there are powers in the Emergencies Act to compel people to do work or to use their property for certain ends to resolve the emergency, with due compensation.

Q. In your estimation, what was not possible to do before invoking this Act? Were there capabilities still on the table that weren’t being fully exercised?

A. It’s my view—I might change my mind as more evidence presents itself—that the vast majority of these powers were already available under the provincial state of emergency, and that the problem there was political will to make those orders. And then I think none of us really understand what went wrong with enforcement.

The big thing that is different here are those financial measures and it seems to me that this is suggestive both of a strategy and of the possibility that there’s information that we as the public don’t have access to just yet.  From the strategic perspective, we all know that the protesters are there for a variety of reasons and we know that some of them are violent extremists. So to the extent that you can get as many people as possible to go home—provide non-violent incentives to encourage them to go home before some kind of really serious enforcement is required or violence breaks out—the better. Those financial measures may be quite important along those lines.

Q. We saw the Prime Minister consulting the provinces yesterday in a first ministers meeting before invoking this. Do the provinces have to agree before invoking the Emergencies Act?

A. This is one of the slightly fuzzier areas of the law. My reading is that if the emergency is concentrated in one province, then that province needs to ask for federal help before there’s a national declaration. But because this was not confined to one province, it is a good thing for the Prime Minister to consult, but he does not need the permission of all of the premiers in order to invoke the act.

Q. What are some of the concerns here or critiques about invoking the Act, the slippery slope worries we often see when it comes to civil liberties?

A. The first big issue is does this situation meet the threshold for invocation of this law. I have not formed an opinion about this yet, in part because I do suspect this isn’t just about sweeping up the streets of Ottawa. There might be more going on here in terms of national security, though I don’t have information along those lines, that’s just speculation. So that’s the first concern: does this actually meet the threshold?

The second concern is that emergency powers are always dangerous. Emergencies are dangerous things, not just because of the inherent danger of whatever’s happening but also because they do tend to prompt responses that are sometimes disproportionate because people feel scared and they  want the government to step in strongly. There’s also the risk that certain powers become normalized. This legislation makes that unlikely in many ways, but that has to be on our minds.

Ultimately, in my reading about states of emergency across different countries and different time periods, what comes out is that what makes the big, big difference is citizens holding government to account. So this informal constraint on power, this keeping eyes on the government—make sure that we remember that our civil liberties are precious.