It is worth familiarizing ourselves with the federal Emergencies Act, successor to the War Measures Act, since the federal government may engage its provisions due to COVID-19.

Find the Act here, plus debate from when it was enacted: https://primarydocuments.ca/collection-emergencies-act-1988/.

Invoking the Emergencies Act allows the federal government to drastically curtail our civil liberties. Parliament would have a crucial oversight job, but the nature of COVID-19 makes Parliament meeting to perform this role more difficult, but very necessary.

Parliament met earlier this week, for a very short time, with a “skeleton crew” of just over 30 MPs out of 338, and a smaller number of senators. Proper Parliamentary review and oversight of the government’s actions is exceptionally difficult in this type of situation.

Some points about the Emergencies Act:

1. The federal cabinet (the Governor in Council) has the power to declare one of four types of emergency under the Act. For COVID-19, under s.5(b) “disease in human beings…”, this would be a Public Welfare Emergency (Part I). Cabinet does not need to pass new legislation to make this declaration, or to begin making orders and regulations under the powers given to it by the Act once that declaration has been made.

2. The House of Commons and the Senate both have to concur in the emergency declaration, by way of a confirming motion that the government must table in both Houses. The Commons and the Senate both oversee & can terminate all of: the declaration, any orders & regulations made pursuant to the declaration, or any extensions or amendments to the declaration.

3. Declaration of an emergency under the Act while Parliament is adjourned requires its summons within 7 days. The confirming motion must be tabled on the first day back, under s.58, and debated.

4. A vote against the confirming motion, in either the House or the Senate, revokes the declaration and makes any orders or regulations made pursuant to it null and void, under s.58(7).

5. All orders & regulations made pursuant to the Act must be tabled in Parliament, either in each House or at a joint review committee that must be created if the Act is invoked.

6. Cabinet can extend or amend the declaration under similar rules, with accompanying motions put to both Houses. Either of the Commons or the Senate can deny an extension or amendment, or revoke individual orders or regulations contained therein.

7. Importantly, section 4(a) of the Act prevents the Cabinet from changing the Act itself through orders or regulations made pursuant to it. So they can’t avoid these parliamentary oversight and approval provisions simply by their own fiat, after they invoke the Act.

8. The Emergencies Act was enacted to provide better Parliamentary oversight and protections for the rights of Canadians. It replaced the War Measures Act, dating from the beginning of the First World War, which was used, among other things, to allow the cabinet to run the war largely free from Parliamentary intervention, round up and confine a number of groups of Canadians of certain ethnic and national origins in camps during both the First and Second World Wars, and to suspend civil liberties during the 1970 FLQ crisis.