The extraordinary powers of the Emergencies Act continue into a second week

On Feb. 21, Canada’s House of Commons took historic action on voting to confirm the motion of declaring a national emergency. The Emergencies Act remains in effect for the coming days, if not weeks. Extraordinary powers can continue to be used for dealing with the crises of blockades, occupations and continued threats to social order due to anti-vaccine and anti-mandate protesters for the time being.

The motion — “That, pursuant to section 58 of the Emergencies Act, this House confirm the declaration of a public order emergency proclaimed on February 14, 2022” — was approved by a vote of 185 to 151. The vote was split down party lines, with Prime Minster Trudeau’s Liberal Party, and New Democratic Party Members of Parliament supporting the motion, while Conservative and Bloc Québécois members opposed it.

Democracy is as much a process as a goal. Understanding how the Emergencies Act works indicates what can happen next. The Emergencies Act remains in effect by the means of a transparent, albeit obscure, set of procedural steps. With the House of Commons vote confirming the motion, Canada remains in its highest possible state of national emergency.

A time of its choosing

At present, the federal government can take extraordinary enforcement powers to maintain public order. These include, but are not limited to: allowing police officers to set up boundaries and checkpoints to ban assembly in the so-called “no-go” zones; ordering banks stop providing services to accounts that are suspected of being used to further the “freedom convoy” protests (some of these have since been unfrozen) and compelling tow truck drivers to haul vehicles out of protest areas.

The big question is: When will these emergency powers end?

Several factors such as the behaviours of the protesters and the actions of politicians will provide the answer. A key factor is if and when those persons engaged in creating social disorder decide to cease and desist. If the government determines that the risks that threaten Canada’s stability have subsided, then it can make the choice to end the use of extraordinary powers at a time of its choosing.

When this will happen is vague. Trudeau has indicated that the federal government does not intend to keep the Emergencies Act in effect a single day longer than needed. At the same time, he expressed real concerns about protesters and trucks potentially returning to Ottawa.

Thirty days?

From the strict perspective of the Emergencies Act procedures, there are several ways it can end. The approval of both the House of Commons and the Senate is needed; should the Senate vote it down, the act will no longer be in force. As the Senate debate continues, the government’s case for keeping its extra powers has become more shaky as police have already ended the occupation of downtown Ottawa.

Actions can be taken by the House of Commons to attempt to overturn the act. However, given the vote on February 21, unless something changes politically, opposition parties will not be able to muster enough votes to repeal the act.

So far, it appears the prime minister has no intention to withdraw the act, and the House of Commons voted in favour. Given pending Senate confirmation, the Emergencies Act remains in place for 30 days. Then the act will automatically expire.

After 30 days, if the federal government deems it necessary, the Emergencies Act can be extended, pending another round of Parliamentary approval.

Devil in the details

For the Emergencies Act to come into power, it requires several government documents and mechanisms.

The starting point was the Proclamation Declaring a Public Order Emergency. Another key document comes from the Privy Council Office with the Order-In-Council, which is a legal tool used in emergencies when an order needs to be enacted quickly. In this case, PC Number: 2022-0106 is the Order-in-Council for the Emergencies Act.

The description of special emergency measures and extraordinary powers that are in effect can be found in Statutory Orders and Regulations statements. Specifically, the Emergency Measures Regulations SOR/2022-21 and the Emergency Economic Measures Order SOR/2022-22 define the terms of reference for and list all of the extraordinary powers granted under the Emergencies Act.

What the Emergencies Act does is function as existing framework on which temporary emergency powers can be based. When invoked, its provisions can be written as general or as specific as deemed necessary in order to deal with the situation.

The roll call from the House of Commons vote indicates the position taken by elected Members of Parliament on this consequential issue.

Expiration date

Use of the Emergencies Act can end when and if: authorities decide that the threat of social unrest is gone and they ask the prime minister to make the decision to give up the extra powers; or if opposition politicians can assemble a majority vote against it in the upper or lower house.

If none of that happens, the Emergencies Act has an automatic expiration date of 30 days.

Potentially, Canada could remain in its national state of emergency until mid-March. At this juncture, prudence is urged on all sides to lower the temperature of this boiling crisis.

When a government is in the position to exert extraordinary powers, the consequences can be grave. For example, the use of the War Measures Act in peacetime to manage the 1970 FLQ October Crisis was problematic due to abuses of civil liberties.

While it remains to be seen how history will view this tumultuous period of crisis, we can draw one conclusion at present. The initiation and first week of Canada’s Emergencies Act worked according to procedural steps, with checks and balances under the law.