UPDATE: Nova Scotia declared a state of emergency on Sunday, March 22, 2020.

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Introduction

This is a somewhat lengthy and, at times, technical assessment of the powers afforded the federal government by the Emergencies Act, known as the War Measures Act prior to 1988.

As of Sunday, March 22, 2020, all provinces and territories have either declared a state of emergency or a public health emergency.

Nova Scotia was the last, declaring their state of emergency on Sunday morning, March 22nd, 2020, which ordered the immediate closing of all parks and beaches, as well as declaring,

“Effective as of 6:00am on March 23, 2020, all persons entering the Province will be checked.”

At a press conference on Saturday morning, March 21, 2020, Health Minister Patty Hajdu threatened a crackdown on civil liberties if Canadians didn’t behave. (starting at 1:38 in the video)

“When people are playing loose and hard with the rules this, it does put our civil liberties in jeopardy. It makes governments have to look at more and more stringent measures to actually contain people in their own homes… because politicians and governments will be pushed to a place to put more and more stringent measures when people violate them and don’t take them seriously.”

Prime Minister Justin Trudeau said he is “considering” whether or not he will invoke the Emergencies Act. So far, he is reluctant to take this draconian act, but only time will tell if he remains so.

If he declares a national emergency, Justin Trudeau would invoke sweeping powers no other prime minister in history has used outside of wartime, with the exception of his father, Pierre Elliott Trudeau.

In short, the Emergencies Act allows the government to impose almost any restriction it wants on Canadians, including on many of our Charter-protected rights. The Act cites other documents, so a full understanding of the Emergencies Act means digging into all these other pieces of Canadian legislation and United Nations documentation.

First, I will examine the reasoning and purpose behind the Emergencies Act. It’s pretty straight-forward, but some interesting caveats and conditions exist you should know.

Second, I’ll delve into the four types of emergencies, in brief, and identify the main ramifications of each.

Third, I’ll give you my thoughts on which type of emergency Justin Trudeau is most likely to declare, as well as my thoughts on how these emergency powers could affect us.

Fourth, expanding on the four types of emergencies I cover briefly in Part 2, I’ll delve into each one in detail. If you want to know all the gory details then this section is for you.

Fifth and finally, I’ll explore the connected legislation to help you understand what the relevant portions of each Act means in the context of a declared national emergency.

If you’re concerned about what could happen in the event a national emergency is declared, it’s my sincere hope this report will help you understand what powers are at play, when the government can invoke them, and what all this could mean for ordinary citizens like you and me.

Caveat: I am not a lawyer, nor do I play one on the Internet. What follows are my thoughts, and mine alone, on what Canadians in general and gun owners in specific may expect if Justin Trudeau invokes the Emergencies Act to cope with the COVID-19 crisis.

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Part I: Purpose

The Emergencies Act gives the federal government powers to deal with unusual and extraordinary circumstances quickly and effectively.

In the language of the Act, this allows the government “to take special temporary measures that may not be appropriate in normal times.”

A national emergency is “an urgent and critical situation of a temporary nature that seriously endangers the lives, health or safety of Canadians” and “exceeds the capacity or authority of a provincial government to deal with it.”

The rationale is pretty simple, and most will agree this describes the current state of affairs in Canada.

The Emergency Act is not carte blanche to violate our Charter rights with impunity, however. There are restrictions.

The Act specifically states the federal government cannot make unilateral decisions. It must work with the provinces to develop and implement solutions.

The Act’s preamble states these “special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency.” [Emphasis mine]

The underlined clause is derived from Article 4 (1) of the United Nations’ International Covenant on Civil and Political Rights.

Article 4 allows governments to restrict or violate human rights “to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”

How Article 4 will be interpreted is up to the government of the day and its head, the Prime Minister of Canada.

It gets even more complicated because each type of emergency grants specific powers to the federal government. I cover each type briefly in the next section, along with an overview of the powers granted to government under each one.

Part II: Types of Emergencies in Brief

Governments are not monolithic entities as we often, mistakenly, believe. Governments are made up of people like you and me, with the same character virtues and failings found in all of us.

The maxim “Hope for the Best – Prepare for the Worst” is especially valid in the extraordinary times we find ourselves today.

When evaluating any piece of legislation, it’s critical to test for the worst-case scenario one can envision and see how the legislation stands up.

The powers afforded the federal government under the Emergencies Act are broad in scope and sweeping in nature. We would be foolish not to pay attention to those parts of the legislation the men and women in control of government can abuse for the worst of all possible reasons – good intentions.

Under the Emergencies Act, the government can declare one of four types of emergency:

1. Public Welfare Emergency
   The government may implement travel restrictions, evacuation orders, declarations of essential services, commandeer private property, regulate goods and create of emergency shelters.
   Notably, a Public Welfare Emergency declaration also allows the government to “assess and alleviate” damage to the environment – however they choose to interpret that clause.
2. Public Order Emergency
   The government may regulate and/or prohibit public assembly, impose travel restrictions, commandeer private property, assume control of, restore and maintain public utilities and services, declare essential services and essential personnel, and make emergency payments to individuals and businesses.
   In certain circumstances “public utilities” could extend well beyond heat, water and electricity to include media outlets, cell phone and internet service providers.
3. International Emergency
   The government may control and/or regulate specified industries and services, appropriate, control, use and dispose of property, force forfeiture of property, and impose the Defence Production Act to ensure corporate resources are redirected to provide goods and services deemed essential. It also allows for the removal of all non-Canadian citizens or permanent residents.
   Notably, in an International Emergency, the government revokes our right to be free of unreasonable search and seizure.
4. War Emergency
   A War Emergency essentially combines the first three types of emergencies into one, where the government may impose martial law due to an armed conflict or the threat of an armed conflict in Canada or any of its allies.

Each type of emergency allows the Governor in Council (the Prime Minister) to impose specific restrictions on the nation or parts of the nation.

The Prime Minister cannot act unilaterally, however.

Section 25 of the Act defines the consultation that must occur before any emergency is declared. This is why the Prime Minister’s messaging continuously refers to working with the provinces – it’s a legislated requirement.

If you would like more detail on these four types of emergency declarations, please see Section IV: Types of Emergencies, In Detail beginning on page 10 of this document.

Part III: Trudeau’s Most Likely Declaration

As of Sunday, March 22, 2020, all provinces and territories have either declared a state of emergency or a public health emergency.

Health and government officials across the nation say social distancing, our new normal, may be required for as little as a few weeks or for as long as three months or longer. Nobody really knows. It’s still a guessing game as to which measures designed to slow the spread of the virus are working, which aren’t, and how fast this crisis will pass.

The negative social impact of this uncertainty, combined with the shutdown of many core sectors of our economy, may leave Justin Trudeau no choice but to invoke the Emergencies Act. The only question left is which type of emergency the prime minister might declare.

Given the actions taken by Justin Trudeau’s government to date, the most likely scenario we face – if the Emergencies Act is implemented at all – is for Justin Trudeau to declare a Public Order Emergency.

Rationale

Justin Trudeau already imposed two of the three sub-clauses of Section 19 (1) (a) of the Public Order Emergency by placing severe restrictions on public assembly and travel.

On Friday, March 20, 2020, he closed the Canada/United States border to all but essential commercial traffic. He even closed the notorious illegal border crossing at Roxham Road in Quebec (while making it clear this closure was only temporary).

Parts (d) and (e) of a Public Order Emergency is designed to force companies to ramp up production of essential items. Doctors and hospitals are desperate for supplies ranging from gloves, masks and gowns to the respirators essential to keep the most seriously affected patients alive. The government said it is looking for ways to ramp up manufacture of these essential items.

Part (f) of a Public Order Emergency grants the government the power to make special payments to people or companies to keep them solvent. This is important given over 500,000 Canadians filed for employment insurance in the week ending March 20th alone. These people lost their jobs and are now struggling to pay April’s rent.

The question is can Trudeau’s solution be delivered fast enough to help those who need it most? Most pundits are not optimistic, saying emergency funding won’t reach Canadians for six weeks or more given the bureaucratic nature of Trudeau’s plan.

Economic Shutdown

Major sectors of the economy are close. Airlines are cancelling flights and the federal government closed all but four Canadian airports to international flights.

• Sporting events are cancelled.
• Music, art and cultural events are cancelled.
• Fitness centres, sports, leisure and community centres are closed.
• Restaurants and bars are, by government decree, shuttered in many provinces. In others, customer capacity is slashed by 50%.
• Casinos are closed in parts of the country.
• Television and film production is shut down in Toronto and Vancouver.

IATSE local 891, the largest union for BC-based film technicians, closed its offices indefinitely to public visitors.

IATSE local 891, in an email to members dated March 13, 2020, said:

• Approximately 25 BC-based productions already announced they will halt production.
• Some productions announced they will be down for two weeks, some for a month.

These shutdowns are purely speculation at this point.

Even the smallest production has about 100 people on set each day – double the 50-person limit for public gatherings imposed by the government.

If the COVID-19 crisis escalates, these productions could be shuttered for months, leaving tens of thousands more people out of work.

Cash Not Accepted

For those businesses still open, most no longer accept cash payments due to fear of transmitting the virus.

 

Download The Special Report Today

In Part IV of this Special Report, I explore each type of emergency declaration in the Emergencies Act and provide a detailed examination of what these powers mean for all Canadians, not just gun owners.

Depending upon how the Act is interpreted, we could see losses of our civil rights unimaginable just months ago.

 

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