The Liberals should have moved to invoke the Emergencies Act by now in order to better respond to the coronavirus emergency, the Green party House parliamentary leader Elizabeth May told The Tyee.
But a leading civil liberties advocate and lawyer said it’s at the provincial level that emergency powers, decided and wielded, have the greatest effect on people, including how police can act. Michael Bryant, executive director of and general counsel for the Canadian Civil Liberties Association, cautioned that granting sweeping powers to law enforcement can lead to injustices against those most “marginalized,” including those homeless or imprisoned.
Bryant also accused the federal government of being too secret about the measures it is considering and implementing.
‘We’re going to need coherence’: May
The late-night negotiations to get the federal government’s COVID-19 relief bill passed by Parliament and receiving royal assent on Wednesday could have been avoided had the Liberals invoked the Emergencies Act, argued May.
“It was written by MPs at a time when they weren’t in an emergency themselves, so they were thinking clearly about what you need in an emergency,” she said from her home in Sidney, B.C., where she is in self-imposed isolation. “It’s not a question of whether we need new powers. We’re probably going to need coherence — that’s for sure — and the Emergencies Act looks at what the federal government can do and how we can respond to this emergency.”
“It’s not the War Measures Act of old. It doesn’t suspend civil liberties. It does allow for emergency payments and for taking steps to making sure that provisions are available, that priorities are co-ordinated.”
Those provisions would occur under Section 8 of the law under Part 1, which deals with a public-welfare emergency and facilitates:
- “the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals;”
- “the evacuation of persons and the removal of personal property from any specified area and the making of arrangements for the adequate care and protection of the persons and property;”
- “the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered;”
- “the regulation of the distribution and availability of essential goods, services and resources;” and
- “the authorization and making of emergency payments.”
Anyone found in violation of these and the other orders and regulations in this section could, on summary conviction, face a maximum fine of $500, six months in prison, or both — or on indictment, face a maximum $5,000 fine, five years in prison, or both.
Section 8 also states that “while a declaration of a public welfare emergency is in effect, the Governor in Council [Prime Minister Justin Trudeau and his cabinet] may make such orders or regulations with respect to the following matters as [they believe], on reasonable grounds, are necessary for dealing with the emergency.”
According to May, “that framing is so important — and there is parliamentary oversight.”
She added that Parliament could have considered a declaration of a national emergency this week, since the legislation requires that it convenes within seven days after such an order is issued.
‘It could be a fossil-fuel bailout act’
May argues that Part 8 of Bill C-13, the COVID-19 Emergency Response Act, which amended the Financial Administration Act, allows Finance Minister Bill Morneau between now and Sept. 30 to “write big cheques to big oil and big banks for up to six months and not have to tie it back to [what] we have to do it because of COVID-19 and because we’re in an emergency.”
May, a lawyer by training, pointed out that one of the provisions in Part 8 empowers Morneau to make a payment “after consultation with a province or territory, to an entity — for the purposes of responding to a situation of significant and systemic economic and financial distress.”
“It could be the fossil-fuel bailout act,” she said. “There is nothing that says the movements the finance minister makes have to have any relationship to COVID-19.”
“I much prefer the Emergencies Act because it limits what the government can do to those things that they believe on reasonable grounds are necessary for dealing with the emergency,” said May, the MP for the B.C. riding of Saanich-Gulf Islands. Alex Wellstead, a press secretary to the prime minister, told The Tyee that “no options are off the table and he has discussed the Emergencies Act with premiers and cabinet.”
Granted royal assent in 1988, the law replaced the War Measures Act, which was adopted in 1914, when Canada was brought into the First World War, and used only two other times: during the Second World War and the October Crisis, when Trudeau’s prime ministerial father, Pierre, invoked the law in 1970 to broaden police powers to arrest and detain in response to the threat posed by the Front de libération du Québec, whose members kidnapped British diplomat James Cross and Quebec Liberal cabinet minister Pierre Laporte, the latter of whom they murdered.
Under the Emergencies Act, provinces and municipalities also maintain control of their police forces.
Provinces wield more power: CCLA’s Bryant
Michael Bryant of the Canadian Civil Liberties Association said the focus on the federal government’s emergency power is “misled because the level of government having the biggest impact on our lives is provincial, not federal.”
He said the federal Quarantine Act only affects people entering Canada and who now face a mandatory 14-day period of self-isolation after Health Minister Patty Hajdu implemented an emergency order under the law on Wednesday.
“All the other quarantine powers are provincial, and the enforcement of the Emergencies Act is done by the provinces,” explained Bryant, who served as attorney general in Ontario Liberal Premier Dalton McGuinty’s government.
“A federal declaration of an emergency is mostly about money and is not as significant a deal as it is when the provinces declare it,” he explained, noting that the Emergencies Act also addresses a foreign threat identified in the law as an “international emergency” involving “acts of intimidation or coercion or the real or imminent use of serious force or violence.”
Bryant said that following the SARS-coronavirus outbreak 17 years ago, which infected 375 people in Toronto and left 44 people dead, the provinces updated their emergency-management legislation to give them the powers they have and are now using, from closing schools to limiting group sizes.
“The major civil-liberties issues in Canada are with respect to how social distancing is being enforced by the police; what’s happening in the prisons; and the inadvertent impact of the provincial emergency measures on the homeless,” said Bryant.
“When you close down buildings and gatherings of people, you shut off the food supply to the homeless.”
He said that Nova Scotia, which has limited social gatherings to five people, has banned anyone from entering a park or beach. “Where else are the homeless supposed to go?” wonders Bryant.
“Drop-in centres in Toronto are mainly closed, and fast-food joints where people would panhandle are closed. And there’s nowhere to go to the bathroom — nowhere. People are having to defecate on the streets.”
“The forgotten people in all of this are the most marginalized in society, which includes people behind bars and on the streets.”
He said that during the COVID-19 crisis, all levels of government should consider ramping up the availability of homeless shelters that is “consistent with public health.”
On prisoners, Bryant has written to federal Attorney General David Lametti calling on the federal government, as he described to The Tyee, “release the releasable within their jurisdiction, and work with the provinces to do the same,” which Ontario has done in eliminating the need for those with intermittent sentences to return to prison on weekends.
‘Tantamount to administrative secrecy’: Bryant
On Thursday, he also sent Lametti a letter “about the failure of Canada to disclose its Governor in Council orders regarding COVID-19 these past weeks.”
“Failure to disclose federal orders in advance of their taking effect, or at least at the time in which a minister makes public that the order has been made, is tantamount to administrative secrecy,” he wrote in the letter that was also sent to Gov. Gen. Julie Payette. “The delay of several days between cabinet signing the order and public release on the Order in Council website is not sustainable.”
Bryant highlighted the government’s “unprecedented mandatory quarantine orders, pursuant to a cabinet order that nobody but you can see. Yet it impacts all of us. Federal quarantine laws are subjecting Canadians to house arrest, without a hearing. Such a serious order deserves serious transparency.”
“If anyone sought to judicially review the order, or to bring a habeas corpus application, one would currently have to wait several days before being able to just read it. If the government can make the time to prepare a communications plan, it can make the time to release the order.”
Failure to comply with the federal quarantine order could result in a maximum fine of $750,000 and/or imprisonment for six months. If someone is found to have caused “a risk of imminent death or serious bodily harm to another person while willfully or recklessly contravening” the Quarantine Act or its regulations, that person could be liable for a fine of up to $1 million or to imprisonment of up to three years, or both.
People who “feel that they’ve been wrongly arrested or detained because of a COVID rule” are encouraged to contact the CCLA, Bryant told The Tyee. “Science and public health should guide government decisions, and not fear and bravado, and justify everything legally in reference to the best expert opinions they get.”
Past War Measures Act ‘ran roughshod’: former minister
Perrin Beatty, who as national defence minister in Brian Mulroney’s Progressive Conservative government, oversaw the enacting of the Emergencies Act. He echoes Elizabeth May’s urging that it be employed in the current circumstances.
“The War Measures Act was a very blunt and crude instrument,” said Beatty. “The War Measures Act was designed to deal with war or civil insurrection that would threaten the ability of the government to continue.”
It also ran roughshod over civil liberties each time it was activated, resulting in the internment of Ukrainian Canadians and Japanese Canadians during the first and second world wars respectively, and extending beyond its focus to quell the terrorist activities of the FLQ in Quebec.
Tom Campbell, the-then mayor of Vancouver, wanted to use the war-measures legislation to “clear the hippies out of Gastown” and the RCMP raided the student newspaper office at the University of Guelph because the Ontarion’s editors had printed the FLQ manifesto — “a stupid thing that young people can do, but it didn’t represent a threat in Guelph, Ont. when the situation was concentrated in Quebec,” recalled Beatty, currently the president and CEO of the Canadian Chamber of Commerce in Ottawa.
“The War Measures Act gave the power to suspend habeus corpus and deny people the right to see a lawyer. Ultimately, the kidnappers of Cross and killers of Laporte were found through ordinary police methods, and nobody was ultimately convicted under the War Measures Act. It turned out to be a very powerful political tool in that it smashed the FLQ. But for many of us, it represented the single greatest abridgment of civil liberties in modern history in Canada.”
In replacing that law in the Charter of Rights and Freedoms era, the Mulroney government sought to create “more nuanced” legislation, said Beatty. “Instead of having a nuclear weapon, you would have a scalpel you could use wherever there were problems.”
“We felt the time to consider legislation giving the government extraordinary powers that affects civil liberties was during a time of calm when you can have a much more rational discussion about what the checks and balances should be as opposed to during a time of crisis, when people react strongly to do anything they can to respond to it,” he explained, echoing May’s comments.
Beatty said that federal-provincial-territorial consensus is now required to establish a national standard to address the COVID crisis, rather than the patchwork of emergency measures in place across the country that consist of “different standards for what are considered essential services and the size of groups permitted across the country in dealing with a common disease that moves across provincial borders.”
Emergency Act fits pandemic moment: Beatty
“It’s important that there be coherence, clarity and boldness by having standards that are national, and to be respectful of civil rights and the role of Parliament,” he explained, suggesting that the Emergencies Act could potentially serve that purpose.
The public-welfare emergency section of the law addresses the “real or imminent” threat caused by disease, such as COVID-19; “accident or pollution;” and a natural disaster “that results 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.”
Said Beatty: “If there were an earthquake in the Lower Mainland of British Columbia, it might be necessary for government to restrict the movement of people or to use private property to house people or be able to do relief work. But that would be confined to one area of the country. You wouldn’t exercise the same powers everywhere else.”
He added that “a series of checks and balances” were included in the legislation, such as a time limit for the emergency powers and a requirement that a public inquiry be held to review the use of those powers following the emergency.
“The goal was to have an instrument that was supple and provided much better protection for civil liberties,” said Beatty, who also served as federal health minister.