The following is a guest post by Michael Chalupovitsch, a foreign law specialist at the Law Library of Congress covering Canada and Caribbean jurisdictions.
A recently published Law Library of Congress report, entitled Canada: the Emergencies Act, examines the history and operation of emergency legislation at the federal level in Canada.
The genesis of the Emergencies Act was the need to reform the previous War Measures Act, which was in force during the two world wars, and the October Crisis of 1970. Critics of the War Measures Act alleged that it trampled on human rights, such as due process, freedom of speech, and freedom of assembly. It was used, for example, to intern Japanese-Canadians during World War II and to detain many sympathizers of the Quebec separatist movement in 1970. With the introduction of the Canadian Charter of Rights and Freedoms in 1982, a new law was needed to address those concerns.
The Emergencies Act, enacted in 1988, grants the government sweeping powers in the event of a public order, public health, international, or war emergency, but the exercise of these powers must be compliant with the constitutional rights guaranteed in the Charter, or, if they run afoul of the Charter, must be “reasonably justified in a free and democratic society” using a proportionality test.
To date, the federal government has only invoked the Emergencies Act once, in 2022, during the occupation of downtown Ottawa and blockade of border crossings by opponents of COVID-19 mitigation measures. The declaration of a public order emergency enabled the federal government to promulgate regulations restricting gatherings, implementing the removal of blockades through force, and freezing the bank accounts of organizers of the blockades.
The declaration also set in motion a variety of accountability mechanisms including parliamentary debate and concurrence in the declaration, a multi-partisan parliamentary committee, and a formal commission of inquiry. The commission is currently hearing from witnesses, including organizers of the blockades, police officials, municipal politicians, and federal politicians including the prime minister. The commission’s report on the circumstances leading up to the declaration and the justification of the declaration is due to be released in February 2023.
The report is part of the Legal Reports (Publications of the Law Library of Congress) collection which contains to date more than 3,000 current and historical reports, authored by Law Library of Congress specialists and analysts on a variety of legal topics.
Law Library of Congress Resources
Block, Eric S. & Goldenberg, Adam, Emergency law in Canada: commentary and legislation, Toronto, Ontario: LexisNexis Canada Inc., 2021, https://lccn.loc.gov/2020445459.
Legaré, Anne, La crise d’octobre, le monde et nous, Montreal, Quebec, Les Presses de l’Université de Montréal, 2021, https://lccn.loc.gov/2021392806.
Stranger-Ross, Jordan, ed., Landscapes of injustice: a new perspective on the internment and dispossession of Japanese Canadians, Montreal, Quebec, McGill-Queen’s University Press, 2020, https://lccn.loc.gov/2020446431.
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