By Jack L. Rozdilsky and Maharshi Jani
The Emergencies Act is the Canadian federal government’s last resort. The general concept is if all existing measures to manage an emergency fail, there exists a rarely-used federal Act to authorize the taking of special temporary measures to ensure safety and security during national emergencies. Taking special temporary measures means the federal government will assume extraordinary powers which are not appropriate for use during normal times.
In early 2022, a trucker-based protest against COVID-19 vaccine mandates expanded in scope into a disruptive protest movement known as the so-called Freedom Convoy (Alden, 2022). The tumultuous period of lawlessness, blockades, and occupations led to the first-ever invocation of the Emergencies Act.
This article provides background on the Act, discusses its precursor the War Measures Act, comments on how the Act was used, and concludes with wider implications for the emergency management community to consider. The Emergencies Act is no longer an untested Act — it is a tool that was used to manage an emergency and now has an implementation track record.
Image: Police protecting the West Block of Ottawa’s Parliamentary Precinct during Canada Day Freedom Convoy protests on July 1, 2022. In February 2022, the Emergencies Act declared the Parliamentary Precinct as a protected place. © Jack L. Rozdilsky, reproduced with permission.
The Emergencies Act
The Emergencies Act (Government of Canada, 1988) was assented to and came into force in 1988, succeeding the War Measures Act. It sat idle on the books for 34 years until its first use in 2022. The February 14, 2022, invocation of the Act followed a very specific protocol specified in subsection 25(1) of the Emergencies Act, with a proclamation declaring a Public Order Emergency (Government of Canada, 2022b). The specific emergency measures regulations allowing for the federal government to exert extraordinary powers were then specified in a Statutory Orders and Regulations statement, SOR 2022/22 (Government of Canada, 2022a).
Any time the federal government assumes extraordinary powers, there is a real risk to undermining democratic principles. However, a key point is that the Act’s implementation in 2022 was not a power grab action moving toward dictatorship as claimed by conservative lawmakers (Quay, 2022). It was a fully legal procedure to deal with an emergency implemented under a very strict and specific enabling process enshrined in Canadian law.
One year later, on February 17, 2023, the mandated inquiry completed by the Public Order Emergency Commission released its findings and concluded that reasonable grounds existed for the federal government’s invocation of the Emergencies Act (Public Order Emergency Commission, 2023).
The War Measures Act
The precursor to the Emergencies Act was the War Measures Act, dating back to 1914. It was intended to give the Canadian government extra powers during times of war, invasion and insurrection (Parcasio, 2019). Used three times in total, including during both World Wars, the last time the War Measures Act was invoked occurred during the 1970 October Crisis. In a controversial move, Prime Minister Pierre Elliott Trudeau brought in the military after a series of kidnappings and bombings were perpetrated by Quebec separatists (Lewson, 2020).
When the Emergencies Act succeeded the War Measures Act in 1988, it introduced changes regarding how the federal government can use extraordinary powers in times of crisis. Those changes include compensating people affected by government actions during emergencies and provisions of the Act being subject to the Canadian Charter of Rights and Freedoms (Smith et al., 2020).
Extraordinary emergency measures
To quell the disruptions of the 2022 so-called Freedom Convoy, the extraordinary emergency measures enacted under the auspices of the Emergencies Act included the regulation or prohibition of public assembly, facilitating actions to designate and secure protected places, empowering police to compel companies to provide service, and regulating or prohibiting the use of property to fund or support blockades, among others (Smith, 2022).
One application of the Act was to quickly facilitate direction to heavy lift tow trucks to remove the transport trucks occupying downtown Ottawa’s Parliamentary Precinct. When Ottawa was under siege in February 2022, one of the largest response challenges was removing approximately 500 heavy transport trucks blockading Ottawa (Rozdilsky, 2022). Many tow truck companies were reluctant to provide services to dismantle the convoy blockade, because tow truck companies helping the authorities started receiving threats (Tunney, 2022b).
Image: A heavy lift tow truck on standby to remove blockades during Freedom Convoy protests in downtown Ottawa on July 1, 2022. During February 2022, the Emergencies Act indemnified tow trucks acting on behest of authorities. © Dr. Jack L. Rozdilsky, reproduced with permission.
According to testimony provided during the Public Order Emergency Commission’s inquiry, the Ontario Provincial Police Commissioner told the commission that the Emergencies Act was used to compensate and indemnify tow truck operators (Tunney, 2022a). The Act was not used to compel tow truck companies to provide services, even though it could have been legally used in that way. Indeed, the devil is in the details.
The Act enabled indemnification, which provides tow truck companies to be compensated for any cost or damages or future legal issues encountered. What has been termed as “broad and high-risk indemnification from the province for loss and damage” would have taken a long time to provide with existing legislation (Dickson and McLeod, 2022). However, under the provision of the Emergencies Act it was processed quickly and smoothly, essentially removing bureaucratic red tape.
Implications for emergency management
It is not a question of if, but when a complex emergency will strike Canada again. It is rare in the day-to-day work of most emergency management practitioners that one would need to consider such a last resort circumstance. It is too soon to say if future federal leaders will act in ways to normalize the use of the Emergencies Act or if provincial leaders will be able to handle emergencies before they rise to the level of requiring federal intervention.
The circumstances of February 2022 provided us with a real-life example of how the threshold was crossed to the last resort. A situation of protests, blockades, and occupations by disgruntled citizens was met with numerous shortcomings in response activities. The commission’s inquiry highlighted the lackluster Ontario provincial response to the Ottawa blockades, resulting in a political and policing breakdown that ultimately required the invocation of the Emergencies Act (Levitz, 2023).
The emergency management community should take pause in realizing that it is possible our local and provincial response actions or inactions can fail upwards, resulting in the highest levels of national political, social, and legal turmoil when the last resort of the Federal Emergencies Act becomes necessary to manage the crisis.
Biographies
Dr. Jack L. Rozdilsky, Ph.D., is an Associate Professor of Disaster and Emergency Management at York University, Toronto. For the past year, he has studied from both the on-the-ground and policy perspectives the so-called Freedom Convoy’s blockades and subsequent use of the Emergencies Act to respond to the socially induced crisis. He can be contacted at rozdilsk@yorku.ca
Maharshi Jani is a graduate student in the field of Disaster and Emergency Management at York University, Toronto. His undergraduate degree was in the field of Health Policy. His graduate studies are focused in the areas of Public Policy and Emergency Management. He can be contacted at maharshi.jani95@gmail.com
References
Alden, E. 2022. Canada’s trucker protests: What to know about the ‘Freedom Convoy’ [Online]. Council on Foreign Relations, February 11. https://www.cfr.org/in-brief/canadas-trucker-protests-what-know-about-freedom-convoy [Accessed March 10, 2023].
Dickson, J. & Mcleod, M. 2022. More than 100 tow truck companies refused to help RCMP clear Coutts blockade, document says [Online]. The Globe and Mail. November 9. https://www.theglobeandmail.com/politics/article-tow-trucks-coutts-blockade-rcmp/ [Accessed Feburary 26, 2023].
Government of Canada. 1988. Emergencies Act. R.S.C., 1985, c. 22 (4th Supp.) [Online]. Ottawa: Justice Laws Website, Consolidated Acts. https://laws-lois.justice.gc.ca/eng/acts/e-4.5/page-1.html
Government of Canada. 2022a. Emergency Measures Regulations. SOR/2022-21. Emergencies Act. Ottawa: Justice Laws Website, Statutory Orders and Regulations. Available: https://laws-lois.justice.gc.ca/eng/regulations/SOR-2022-21/page-1.html
Government of Canada. 2022b. Proclamation Declaring a Public Order Emergency. SOR/2022-20 Emergencies Act. Ottawa: Justice Laws Website, Statutory Orders and Regulations. https://laws-lois.justice.gc.ca/eng/regulations/SOR-2022-20/page-1.html
Levitz, S. 2023. Doug Ford ‘abandoned’ Ontario’s second-largest city, Emergencies Act report finds. Toronto Star. February 17. Available: https://www.thestar.com/politics/federal/2023/02/17/doug-ford-abandoned-ottawas-residents-emergencies-act-report-finds.html [Accessed February 18, 2023].
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Parcasio, M. 2019. The evolution of the War Measures Act. Edmonton, Alberta: Centre for Public Legal Education. https://www.lawnow.org/the-evolution-of-the-war-measures-act/ [Accessed March 1, 2023].
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Quay, G. 2022. Canada’s Conservative lawmakers call Trudeau ‘dictator’ as he defends his emergency declaration in Parliament. Washington D.C.: The Week. Available: https://theweek.com/protests/1010276/canadas-conservative-lawmakers-call-trudeau-dictator-as-he-defends-his-emergency [Accessed February 16 2023].
Rozdilsky, J. L. 2022. The occupation of Ottawa by the ‘freedom convoy’ has the potential for an urban siege. The Conversation. February 11. Available: https://theconversation.com/the-occupation-of-ottawa-by-the-freedom-convoy-has-the-potential-for-an-urban-siege-176681 [Accessed March 2, 2023].
Smith, D., Foot, R., Yarhi, E. & Mcintosh, A. 2020. Encyclopedia Entry: The Emergencies Act. The Canadian Encyclopedia. https://www.thecanadianencyclopedia.ca/en/article/emergencies-act [Accessed March 5, 2023].
Smith, M. D. 2022. What is the Emergencies Act, and what special powers did Ottawa invoke last winter? [Online]. City News – Ottawa. October 31. https://ottawa.citynews.ca/local-news/what-is-the-emergencies-act-and-what-special-powers-did-ottawa-invoke-last-winter-6033719 [Accessed February 28, 2023].
Tunney, C. 2022a. Head of OPP says Emergencies Act needed to compensate tow trucks, but not to compel their services. CBC News. October 27. https://www.cbc.ca/news/politics/carrique-tow-trucks-emergencies-act-1.6631222# [Accessed February 26, 2023].
Tunney, C. 2022b. Police needed Emergencies Act after deal to secure tow trucks fell through, federal lawyer says. CBC News. October 6. https://www.cbc.ca/news/politics/emergencies-act-bernier-ops-1.6630000 [Accessed February 26, 2023].
