No Canadian should celebrate the invocation of the Canadian Emergencies Act. This development is not trivial given the context. However, the statement may be warranted due to the international dimension of the COVID crisis.
This pandemic has profoundly affected rights and freedoms in Canada, the functioning of parliaments and courts, the role of the media as well as the economy. The effectiveness of COVID-related restrictive measures through successive federal, provincial and territorial executive orders has become increasingly questionable. Without an exit strategy and effective public communication, it was clear that citizens’ patience would run out. This step in the management of the pandemic is therefore not surprising.
The Emergencies Act is a source of concern for Canadians, especially those old enough to remember the War Measures Act in October 1970. This was shortly after Canada established diplomatic relations with China. This Act had encouraged the use of strong methods to deal with certain extremists and with many Canadians expressing their democratic opinions without any violence.
The 1988 Act temporarily grants necessary additional powers to the federal government when provincial, territorial and federal tools are no longer sufficient to deal with an emergency. In contrast, the declaration of emergency is subject to strong democratic safeguards, parliamentary oversight, accountability, and respect for the individual rights of Canadians. These powers complement those of the provinces and territories to adopt legitimate, reasonable and proportionate measures in response to threats to the security of Canada.
How to react to this new development? It all depends on the assessment of the threats and risks, their origin and the response deemed reasonable and proportionate. A motion in Parliament must explain the basis for this declaration of emergency. At this stage, the only perceptible urgency is to immediately restore the normal functioning of democratic institutions throughout the territory, to restore the fundamental rights and freedoms recognized by charters and conventions and, finally, to restore the functioning of governments on a path of transparency and accountability.
Provincial and territorial governments often seeking more power are encouraged to share the driver’s seat. Indeed, the 1988 Act requires consultation with the provinces and territories before the publication of a declaration of emergency and, subsequently, the tabling in Parliament within seven sitting days of a report explaining the consultations that took place location.
The responsibility of governments and elected officials is essential given their role in managing the pandemic. The strict application of successive decrees compromising the transparency of executive decisions has reflected, over the months, an authoritarian drift that has spread to the entire Canadian territory. The Convoy of Freedom is the striking proof of this if one were needed.
The role of the courts
Every emergency brings its share of mistakes and shortcomings. This new chapter could aggravate tensions. If this is the case, it is essential to resolve them in court. Their role as arbiters helps strengthen the evidence and legitimately challenge the actions of governments and law enforcement. The importance of evidence can only help elected members of the legislature, the media and the public to play their role more effectively as checks and balances, without which authoritarian drift is inevitable.
If governments fail to address public health challenges with respect for rights and freedoms, and if hate speech is not properly characterized, regardless of vaccination status or ideology, the risk is not only losing fundamental freedoms, but above all a common Canadian sovereignty. Canadians probably don’t need more polarization and division, as we regularly see among our neighbors to the south.
It takes political courage for a minority government to initiate such a shift. This can be beneficial if the new democratic protections and transparency measures conferred by the Act make it possible to put an end to an authoritarian drift.
Canada, the United States and the provinces and territories have the opportunity to demonstrate how to peacefully manage the interdependence between nations while respecting the rule of law and sovereignties. If we cannot do this at home, our moral authority to preach to the world is greatly diminished.