Revised on 23 February 2022, 8:40 a.m.
On 14 February 2022, in response to the ongoing blockades and protests taking place in Ottawa and at some border crossings, the Prime Minister announced that the Governor in Council had invoked the Emergencies Act, giving the federal government certain temporary powers.
The Emergencies Act sets out the procedure by which a national emergency can be declared and by which the declaration can be confirmed, continued, amended and revoked. It also provides for a supervisory role for Parliament.
This HillNote provides some background information about this Act and explains the role of Parliament during a national emergency.
In August 1914, the War Measures Act was enacted to protect national security and to prepare for the conditions of war. It was invoked three times: once each for the First and Second World Wars, and once in response to the October Crisis of 1970.
Under the War Measures Act, all existing laws could be superseded, the federal system could be overridden and Cabinet could govern through regulation rather than legislation. This Act was widely criticized for the broad powers it conferred on the government once invoked, especially since anything done under it was deemed not to be an infringement of any right or freedom recognized in the Canadian Bill of Rights.
In 1988, six years after the Canadian Charter of Rights and Freedoms (the Charter) was adopted, the War Measures Act was repealed and replaced by the Emergencies Act, which specifies that any special temporary measures are subject to the Charter.
A national emergency is defined in section 3 of the Emergencies Act as:
an urgent and critical situation of a temporary nature that:
(a) 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, or
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada
and that cannot be effectively dealt with under any other law of Canada.
The Emergencies Act identifies four types of national emergencies:
- public welfare emergencies;
- public order emergencies;
- international emergencies; and
- war emergencies.
The Act provides definitions for each type of emergency and specifies certain parliamentary powers in relation to the declaration of an emergency.
On 14 February 2022, an Order in Council was published in which the ongoing blockades were identified as a public order emergency.
Public Order Emergency
Section 16 of the Emergencies Act defines a public order emergency as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”
Within that definition, “threats to the security of Canada” is further defined as having the meaning assigned in section 2 of the Canadian Security Intelligence Service Act:
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).
Under section 19(1) of the Emergencies Act, during a public order emergency, the Governor in Council can, by order or by regulation:
- regulate or prohibit public assembly that may reasonably be expected to lead to a breach of the peace, and regulate or prohibit certain travel or use of property;
- designate and secure protected places;
- assume the control, restoration and maintenance of public utilities and services;
- authorize or direct the provision of essential services and the provision of reasonable compensation for these services; and
- impose upon summary conviction, a fine of no more than $500 or a term of imprisonment not exceeding six months, or both, or upon indictment, a fine of no more than $5,000 or a term of imprisonment not exceeding five years, or both, for any breach of an order or regulation.
Unless it is revoked or continued, a public order emergency declaration has a lifespan of 30 days.
Role of Parliament
Consideration of a Declaration of Emergency
In any national emergency, Parliament must be notified of the declaration of the emergency. The declaration is made by the Governor in Council by proclamation.
Pursuant to section 58 of the Emergencies Act, once the emergency is declared by the Governor in Council, a motion for confirmation of the declaration is to be laid before the Senate and House of Commons within seven sitting days after the declaration is issued.
The motion must be signed by a minister, and it must include detailed reasons for making the declaration and a report on any consultation with the provincial lieutenant governors in council.
After the motion is tabled, each house must consider the motion by debating it without interruption, and the Speaker must immediately put the motion to a vote. If the motion is defeated by the Senate or the House, the declaration is revoked.
Revocation, Continuation or Amendment of a Declaration of Emergency
Both the Senate and the House of Commons must be consulted if the declaration of emergency is to continue past its expiration or if it is to be amended.
A motion to continue or amend a declaration can be tabled within seven sitting days after the proclamation is issued. The motion must be debated on the next sitting day after it is tabled, and the Speaker must put the motion to a vote. If the motion is defeated, the proclamation is revoked.
At any time, a motion to revoke an emergency declaration, signed by at least 10 senators or 20 members of the House, can be tabled. The motion must be filed with the Speaker of the Senate or the Speaker of the House of Commons, as appropriate, debated within three sitting days and put to a vote by the Speaker after a maximum of 10 hours of debate. If the motion is carried, the emergency declaration ends.
Parliamentary Oversight of Orders and Regulations
Under section 61(1) of the Emergencies Act, each order or regulation made under that Act must be tabled in the Senate and in the House within two days of being designated or established.
Parliament is empowered under this Act to revoke or amend orders or regulations laid before it. A motion to revoke or amend orders or regulations must be signed by at least 10 senators or 20 members of the House for the relevant house to consider the motion and vote on it.
Orders or regulations that are exempt from publication in the Canada Gazette are referred to a Parliamentary Review Committee.
Parliamentary Review Committee
Under section 62(1) of the Emergencies Act, a Parliamentary Review Committee (the Committee) is to be established to review “the exercise of powers and the performance of duties and functions pursuant to a declaration of emergency.”
The Committee is to include at least one member of Parliament from each official party and at least one senator from each party in the Senate that is represented on the Committee by a member of Parliament.
Meetings of the Committee considering orders or regulations that are exempt from publication must take place in private. Each member and person employed to work for the Committee must take an oath of secrecy.
The Committee is empowered to revoke or amend any order or regulation within 30 days of its reference to the Committee.
The Committee must present a report to both houses of Parliament at least every 60 days while the declaration of emergency is in effect, and it must report within certain deadlines to revoke or continue a declaration of emergency.
The Emergencies Act also provides for the establishment of an inquiry to examine both the circumstances that led to the declaration and the measures taken for dealing with the emergency. The inquiry must be launched by the Governor in Council within 60 days after the expiration or revocation of a declaration of emergency.
The inquiry must produce a report to be submitted to both houses of Parliament within 360 days after the expiration or revocation of a declaration of emergency.
Department of Justice Canada, Canada’s Emergencies Act.
Niemczak, Peter and Philip Rosen. Emergencies Act. Library of Parliament, 10 October 2001.
Smith, Denis et al. “Emergencies Act.” The Canadian Encyclopedia, 18 March 2020.
By Stephanie Feldman, Library of Parliament
Categories: Government, Parliament and politics, Health and safety, Law, justice and rights