The power to react: review and discussion of Canada's emergency measures legislation

Abstract

Almost a century ago Canada implemented the War Measures Act to give the federal government extraordinary powers to deal with the domestic implications of the First World War. The government further expanded and institutionalised these powers through the Second World War, the Korean crisis and the cold war period. Now these war emergency powers are entrenched in both federal and provincial emergency measures legislation and exercised for peacetime disasters. This paper reviews the historical progression of these powers to better understand the original context for their development and to connect past abuses of civil rights under the War Measures Act to the protections and limits incorporated in the current legislation. Then, based on this understanding of where the powers originated, the paper takes a comprehensive look at the powers available across the Canadian jurisdictions. It identifies common groups of powers and discusses regional variations. It concludes with a short discussion on the imbalance between extraordinary powers for response and the lack of a corresponding emphasis on reducing the risks that may generate the need for them.

Keywords:

• emergency
• powers
• legislation
• Canada
• history

Notes on contributor

John Lindsay is Associate Professor in the Department of Applied Disaster and Emergency Studies at Brandon University and a candidate for the PhD in Emergency Management at Massey University's Joint Centre for Disaster Research in New Zealand. He integrates 20 years of experience as an emergency management professional into his research focus on urban planning, hazard mitigation and emergency management policy.

Notes

1. S.C. 1988, c. 29.

2. Public Safety Canada, ‘Canadian Disaster Database’, http://www.publicsafety.gc.ca/cnt/rsrcs/cndn-dsstr-dtbs/index-eng.aspx (accessed October 29, 2013).

3. Donald Geis, ‘By Design: The Disaster Resistant and Quality-of-life Community’, Natural Hazards Review 1, no. 3 (2000): 151.

4. The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

5. Herbert Marx, ‘Emergency Power and Civil Liberties in Canada’, McGill Law Journal 16 (1970): 39, 56.

6. W.P.M. Kennedy, ‘The Interpretation of the British North America Act’, Cambridge Law Journal 8, no. 2 (1943): 146, 147.

7. The Constitution Act, 1982 did not amend the Constitution Act 1867 in this respect. Schedule item 1.

8. 5 George V Ch 2 1914.

9. Canada Gazette xlviii (28 October 1914): 1304.

10. Canada Gazette xlviii (30 October 1914): 1382.

11. Registration of Alien Enemies 28 October 1914 s 9, Canada Gazette, xlviii : 1304 (emphasis added).

12. Bohdan Kordan, Enemy Aliens, Prisoners of War: Internment in Canada during the Great War (Montreal: McGill-Queen's University Press, 2002).

13. Elliot Tenofsky, ‘The War Measures and Emergencies Acts: Implications for Canadian Civil Rights and Liberties’, American Review of Canadian Studies 19, no. 3 (1989): 293.

14. Lester Phillips, ‘Canada's Internal Security’, Canadian Journal of Economics and Political Science 12, no. 1 (1946): 18.

15. David McConnell, Plan for Tomorrow…TODAY! The Story of Emergency Preparedness Canada 1948–1998 (Ottawa: Heritage Research Associates, 1998).

16. Phillips, ‘Canada's Internal Security’.

17. Prime Minister St-Laurent, Hansard, February 20, 1951: 498.

18. http://www.collectionscanada.gc.ca/primeministers/h4-4065-e.html (accessed December 21, 2013).

19. McConnell, Plan for Tomorrow…TODAY!.

20. R.S.C., 1988, c. 22.

21. R.S.C., 1985, c. 6. The Emergency Preparedness Act established Emergency Preparedness Canada and set out the requirements for emergency planning, whereas the Emergencies Act only provides powers and processes related to declaring a State of National Emergency.

22. Bill C-65 (an act to reorganise and dissolve certain federal agencies) received Royal Assent on 13 July 1995 and resulted in Emergency Preparedness Canada being returned to the Department of National Defence.

23. S.C. 2007, c 15.

24. S.C. 2004, c 15.

25. R.S.C., 1985, c. F-27.

26. Hansard, July 11, 1988, as quoted in ‘Historic Day for Canada – War Measures Act Repealed’, Emergency Preparedness Digest, July–Sept. (1988): 34.

27. Peter Rosenthal, ‘The New Emergencies Act: Four Times the War Measures Act’, Manitoba Law Journal, 20 (1991): 563.

28. Emergency Measures Act S.M. 1951 c.18; and Civil Defence Act S.M. 1952 (1st Sess.), c. 8, s. 1.

29. Emergency Measures Act 1987 s 18(1).

30. Defence of Canada Regulations 1939 s 48.

31. Emergency Program Act RSBC 1996 c 111 s 0(1)(j).

32. Emergency Measures Amendment Act 2013 CCSM c.12.

33. Emergency Management and Civil Protection Act RSO 1990 c E.9 s 7.0.2(4)(11).

34. Civil Emergency Measures Act RSY 2002 c 34.

35. Emergency Planning Act SS 1989–90 c E-8.1 s 18(1)(m).

36. Emergency Measures Act RSPEI 1988, c E-6.1 s 11(k).

37. Wildfires Act CCSM c W128 s 7(12).

38. United Nations' International Covenant on Civil and Political Rights, Article 8 s 3(a).

39. Ibid.,, Article 8 s 3(c).

40. Emergency Program Act RSBC 1996 c 111 s10(1)(i).

41. This power, created in s17(2) of the Emergency Measures Amendment Act 2013 CCSM c12, is aimed at preventing people from interfering with emergency measures, such as the operation of flood control works.

42. Daniel Henstra, ‘The Dynamics of Policy Change: A Longitudinal Analysis of Emergency Management in Ontario, 1950–2010’, Journal of Policy History 23, no. 3 (2011): 399.

43. Geis, ‘By Design’, 151, 153.

44. There is some support from the European Court of Human Rights: López Ostra v. Spain, App no 16798/90, Series A no. 303-C (1994); McCann v UK, App. no.18984/91, Ser A vol.324 (1995); Budayeva and Others v. Russia, App nos. 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02, 20 March 2008; Murillo Saldias and Others v. Spain, App no. 76973/01, 28 November 2006; and Kolyadenko and others v. Russia, App nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, 28 February 2012.