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Today, the Prime Minister indicated that the Government is considering whether or not to use the Emergency Measures Act. So here is a partial primer on how that could occur and what that could mean.

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The Emergency Measures Act is the more modern replacement of the War Measures Act, which was so (in)famously invoked by the current prime minister’s father. The current Act is, hopefully, a kinder, better balance between protecting public safety and individual liberty.

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The emergency that could be declared in response to #COVIDー19 would be a “public welfare emergency”, which includes “an emergency that is caused by a real or imminent...disease in human beings, animals or plants...

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The emergency must also result “or may result in a danger to life or property, social disruption or a breakdown in the flow of essential goods, services or resources, so serious as to be a national emergency.”

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I believe most people would agree that Covid–19 is a disease in human beings that results or may result in a danger to life and/or social disruption.

The only question is whether or not it is so serious as to be a national emergency.

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To be a “national emergency”, it must be “an urgent and critical situation of a temporary nature that...seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it...

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AND Covid–19 must be such that it cannot be effectively dealt with under any other law of Canada.”

In this context, law of Canada likely means federal legislation as provincial legislation is captured under “capacity or authority of a province”.

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Provinces already have exceptional powers to declare states of emergencies and Ontario has already done so in response to Covid–19. So, for a national emergency to arise, the situation must require action beyond what a province can do.

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This implies that the resources of the province are stretched beyond capacity such that direct federal involvement (instead of merely supporting a provincially led response) is needed. Or it could mean that things only the federal government can do are needed.

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To declare a public welfare emergency, the a Governor in Council (Federal Cabinet, GiC for short) must first consult the lieutenant governor in council (provincial Cabinet, LGiC for short) of each province in which the direct effects of the emergency occur.

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A public welfare emergency does not have to cover the entire country. The declaration can state a more limited area over which it occurs. However, if the direct effects of the emergency are confined to, or occur principally in one province, that province’s LGiC has to agree.

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Aside from the consultation requirement, the GiC need only believe on reasonable grounds that a public welfare emergency exists and necessitate the taking of special temporary measures for dealing with the emergency.

This is quite broad discretion.

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However, there is a major check on the GiC’s power. Both the House of Commons and the Senate must take up and consider the declaration. If either House votes against the declaration, it is immediately revoked.

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When, like right now, the House of Commons is adjourned, a declaration of public welfare emergency means the House must be “summoned forthwith to sit within seven days after the declaration is issued.”

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This means that within 8 days of the declaration being issued, both Houses must take up debate on the motion. The debate is without interruption and as soon as the House is debate is done, the House votes on the motion.

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A public welfare emergency automatically expires in 90 days. However, the GiC can also revoke it at any time earlier than that.

In addition, the GiC can also continue the emergency for successive 90–day periods. Each continuance requires consultation with affected LGiCs.

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Each continuation of the public welfare emergency must also be considered by both Houses of Parliament in the same way as the original declaration was.

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The Houses can also revoke the declaration at any time. If enough members of either House petition the Speaker, that House will consider the motion within 3 days of the filing of the petition in the same manner as the original declaration.

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Notionally, the decision of the GiC to declare a public welfare emergency would also be subject to judicial review. However, I suspect it is unlikely this would ever happen. First, it would take months to hear the application, by which time the emergency has likely ended.

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Second, the courts would most probably be very deferential to the discretion of the GiC; unless there was some obvious abuse of authority, I doubt they would intervene. This is particularly so because the Houses would already have reviewed and debated it.

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So, even if the courts agreed the decision was justiceable and that it should not be dismissed out of mootness, it is basically inconceivable to imagine justices overruling what a majority of MPs and Senators had already concluded.

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The above is the main procedural aspect for *declaring* or *continuing* a public welfare emergency. I will do a separate thread on the more substantive aspects of what can happen during the public welfare emergency (spoiler: almost anything).

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Addendum:

Two important procedural-related points I forgot to include: ongoing review by a Parliamentary Review Committee and a post hoc Inquiry.

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A Parliamentary Review Committee is formed with MPs and Senators from each party with standing. The Committee meets in private and everyone involved takes an oath of secrecy. The Committee, inter alia, makes periodic reports to Parliament.

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In particular, the Committee reviews the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency or any related order or regulation. This would include reviewing how officials acted/conducted themselves.

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Also, once the public welfare emergency ends, the GiC must “cause an inquiry to be held into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.”

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The Inquiry must start within 60 days and be completed within 360 days of the end of the emergency (although presumably additional reviews and inquiries can also be held if people find the mandated Inquiry was insufficient).

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Final note: this only deals with the federal Emergencies Act. Provinces have their own Acts which provide for emergency powers when invoked, and I am not commenting on any of those Acts or similar measures.

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