ANALYSIS: Expect Ottawa to declare national COVID-19 emergency only when premiers want one

Time and again over the last week, at his now-daily press conferences, Prime Minister Justin Trudeau has been asked when he will declare a national emergency and, in so doing, give the federal government powers it does not presently have to respond to the novel coronavirus crisis.

His answer, every time, has been the same: nothing is off the table. Ottawa is considering all options. The federal cabinet will take any step it deems necessary to respond to the crisis.

But, in fact, those clamouring for the federal Emergencies Act to be proclaimed may be missing the point that, with Nova Scotia declaring an emergency on Sunday, every single province has now proclaimed its own version of the Emergencies Act and, in doing so, every province now has arguably more sweeping powers than Ottawa does to respond to the crisis.

“We are a federal system of government, and Canada is one of the most decentralized federations in the world, which means that the provinces have powers that are almost the powers held by sovereign countries in very practical terms,” said former Quebec premier Jean Charest in a podcast published Friday by the law firm McCarthy Tetrault, where he is a senior adviser.

“You will see different approaches in different provinces, but it will depend on what the needs are and what the situation is, which is fine.”

Indeed, many are.

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Over the weekend, for example, Ontario Premier Doug Ford’s cabinet signed off on an order, exercised under Ontario’s Emergency Management Act, suspending the collective agreements of nurses and other health-care workers. That allows hospital administrators and health authorities to hire or reassign staff, cancel vacations and so on without regard to, for example, waiting periods prescribed in a collective agreement.

Quebec’s Premier François Legault invoked powers under his province’s version of a similar act to order that all shopping malls in the province be closed.

And if those or any other province believe that harsher measures must be taken to control the spread of COVID-19, they are free to literally do anything they legally want, so long as it can be reasonably justified as part of the crisis response.

By contrast, there is no such “blank cheque” clause in the federal Emergencies Act. Instead, the federal government, should it proclaim a national emergency, is confined to nine specific, though important, kinds of actions it can take. (They are all listed in Section 8 of the act. ) And all of those actions overlap or duplicate powers that have already been invoked by every province.

In other words, there is no power in the federal Emergencies Act that provinces do not already have. Ottawa is not “holding back” any authority that premiers do not already possess.

In fact, it cannot be stressed enough how important the provinces are to this crisis response.

Provinces have the legal authority to compel individuals and businesses to do just about anything. And, it should be noted, provinces have police officers to enforce their orders. The federal government does not because the federal Emergencies Act prohibits Ottawa from assuming control over any municipal or provincial police force, including the RCMP, where it provides policing services for a province or municipality.

The key role of the federal government is to lead when it comes to co-ordination. Indeed, that is one of the top items on the agenda for a conference call Trudeau is having with the premiers on Monday evening.

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“That’s why we’ve been working closely and co-ordinating, watching closely as provinces have invoked their emergencies acts, which has been an important step in fighting the spread of this virus,” Trudeau said Monday at his daily press conference.

“It’s also why we will certainly be talking about the federal Emergencies Act at the premiers meeting this evening to make sure that we all understand what tools each different order of government has and where we might need to do more.”

Wayne Wouters, a former clerk of the Privy Council, said in the same McCarthy Tetrault podcast in which Charest participated that the constant communication between the prime minister and premiers is crucial.

“I would be advocating a daily call with premiers or every second day because what it does, if one province maybe is a little bit of an outlier, it forces that province in a dialogue with all his or her colleagues and the prime minister as to why he or she is not taking the same measures as elsewhere,” Wouters said.

“Because by not taking those measures, they are putting the whole country at risk.”

At such meetings, premiers and the prime minister will almost certainly have been briefed on the “blank cheque” clauses in provincial legislation that give each province so much latitude. Here’s a sample of them (emphasis mine):

With premiers and their cabinets having such broad authority to regulate almost all aspects of our lives and the activities of businesses within their borders, the other key role for the federal government is to provide support — mostly financial — and to deal with international issues, such as repatriating travellers or negotiating border agreements with the United States.

And, of course, that’s just what the federal government is doing right now, along with the appropriate debate as to whether the government’s financial support is enough.

And if provinces, for example, need to call in the Canadian Forces, they just phone up federal Public Safety Minister Bill Blair. Indeed, that sort of thing happens all the time when provinces have to deal with floods, fires and other kinds of emergencies. No request for military help will be refused.

There is also nothing in federal or provincial law that would allow for anything like the kind of martial law that exists in many other countries around the world. But again, every province already has the power, for example, to enforce a curfew or lock down a specific city or region.

Some have looked to what Israel did last week, passing a cabinet order that gives the state the ability to track its citizens and enforce quarantines using mobile phone data.

Experts, though, say that while the federal government and the provinces have broad powers under both proclaimed emergency acts as well as under other existing legislation to collect data on its citizens, the Charter of Rights and Freedoms would prohibit any province or the federal government using “emergency powers” to justify broad-based surveillance of the population by any means, such as tapping smartphone geolocation data eavesdropping on email or web use or listening in on phone calls.

“What we would normally see would be more limited, individualized kind of responses to Canadians,” Carleton University scholar Leah West said on The West Block on Sunday. “And when we start to think about surveillance and monitoring … that mass-level surveillance is just not something I would see being imposed here.”

It’s also important to remember that there actually has to be a national emergency with which provinces are unable to cope.

Wouters noted that declaring a national emergency cannot be a matter of political choice. The federal government can only do so when the conditions for a national emergency, as defined by the Emergencies Act, actually exist.

In his own podcast, University of Ottawa law professor Craig Forcese comes to the same conclusion.

“So it’s not ‘go federal’ right away. It’s got to exceed the capacity, authority of a province to deal with it.”

That said, Forcese said he believes responding to this public health crisis will, in fact, exceed the capacity of some or several provinces, making it likely that the Emergencies Act will have to invoked for the first time since it became law in 1988. (It was created, incidentally, during the premiership of Brian Mulroney, and Charest would have been in Mulroney’s cabinet as it was written.)

But still, there will be processes to be followed, the first of which is consultation with the provinces. That, presumably, is also part of the purpose of the prime minister’s call with the premiers on Monday evening.

Second, as soon as a prime minister proclaims a national emergency, the prime minister must also set in motion a recall of the House of Commons, which must vote to either affirm the state of emergency or revoke the state of emergency.

That introduces a political consideration, then, to Trudeau’s calculus so far as invoking the federal Emergencies Act: can he win a vote in Parliament on his decision?

I suspect he would, but one would think you could make the case that a vote on a government’s decision to invoke the Emergencies Act for the first time ever could be construed as a confidence vote, and that adds some additional risk.

Finally, there is a sunset provision on the federal Emergencies Act. It automatically expires in 90 days. The declaration of emergency can be renewed continuously every 90 days by the federal cabinet, but every single renewal requires a new vote in the House of Commons, and again, with a minority government, the government would, one assumes, run increasing risks of losing such a vote.

All the more reason, then, for a federal government to be very cautious and very slow to invoke emergency powers — so long as every province is exercising all of its considerable powers to contain the spread of the virus.

— David Akin is the chief political correspondent for Global News.