The Extraordinary Case of the Emergencies Act: What is the Role of the Courts?
Ryan Howes, 3L, Volume 78 Senior Editor
In the wake of the COVID-19 pandemic, the Prime Minister of Canada has at daily briefings received repeated questions about when and whether the federal government will invoke the Emergencies Act, RSC 1985, c 22. While cautioning that “nothing is off the table,” the Prime Minister has consistently refrained from invoking what his Cabinet has called a “measure of last resort.” [1] The Emergencies Act grants extraordinary powers to the Governor in Council to make orders and regulations during a “national emergency.” It has never been invoked. Its predecessor, the War Measures Act, 5 George V, Ch 2, was invoked on three occasions: World War I, World War II, and the October Crisis of 1970. [2]
There is considerable uncertainty about the role of the judiciary in reviewing decisions made by the Governor in Council under the Emergencies Act, and the consequent ability of litigants to challenge such decisions in court. To illustrate this uncertainty, I consider two kinds of decisions in particular: declaring a national emergency and making orders or regulations while the declaration is in effect.
Powers of the Governor in Council
To declare a national emergency, the Governor in Council must believe on “reasonable grounds” that a national emergency “exists and necessitates the taking of special temporary measures for dealing with the emergency.” [3] There are four types of national emergencies under the Emergencies Act: a public order emergency, a public welfare emergency, an international emergency, and a war emergency. [4] While a declaration of national emergency is in effect, the Governor in Council can make special orders and regulations in respect of certain enumerated matters. [5] For example, during a public welfare emergency, the Governor in Council has powers to, inter alia, restrict travel, order evacuations, limit private property rights, establish necessary infrastructure, regulate the distribution and availability of essential goods, services and resources, and impose fines or imprisonment as punishment for contravening any such order or regulation. [6]
Parliamentary Oversight
Parliament exercises oversight over the Governor in Council’s decisions. Parliament reviews and can revoke a declaration of national emergency. [7] Parliament also reviews orders and regulations and can either revoke or amend them. [8] A Parliamentary Review Committee is established in both the House of Commons and the Senate to review the exercise of powers and performance of duties or functions during a national emergency. [9] Furthermore, within 60 days after the expiry of the declaration of national emergency, the Governor in Council must initiate an inquiry into the circumstances that led to a declaration of national emergency and actions taken during the national emergency and present a report to Parliament. [10]
This extensive Parliamentary oversight raises questions about the proper role of the judiciary in reviewing decisions made by the Governor in Council and, by extension, what recourse is available to persons and provinces that seek to challenge any such decision.
Declaring a national emergency
Is a declaration of national emergency justiciable? The Supreme Court of Canada has recognized a general doctrine of non-justiciability. The main question is whether the issue is one that is appropriate for a court to decide. [11] Justiciability is rooted in a commitment to the constitutional separation of powers. [12] Courts must refrain from unduly interfering with the legitimate and distinct institutional roles of the legislature and executive. [13]
In Stagg v Canada (Attorney General), 2019 FC 630 at para 50, the Federal Court recognized that questions of “high policy” are not justiciable. On its face, the declaration of a national emergency, like a declaration of war, appears to be the kind of “high policy” that is not justiciable. Parliament empowered the Governor in Council to declare a national emergency and the judiciary cannot substitute its opinion for that of the Governor in Council. [14] While orders and regulations made by the Governor in Council during a national emergency may engage Charter rights, the mere declaration of a national emergency likely does not.
However, other considerations suggest that a declaration of national emergency has “a sufficient legal component to warrant the intervention of the judicial branch.” [15] For instance, before declaring a national emergency, the Governor in Council must adequately consult with the provincial lieutenant governors in council. [16] Ordinarily, the courts adjudicate disputes between provinces and the federal government. [17] However, Parliament’s oversight of the Governor in Council’s decisions complicates the matter, for the reasons discussed below.
Making Orders and Regulations
Orders and regulations made by the Governor in Council during a national emergency are justiciable. The Emergencies Act is subject to the Charter of Rights and Freedoms. [18] The defense of human rights against intrusions by government is a crucial constitutional role of the judiciary. [19] There remains considerable uncertainty, however, about how courts would approach review of such orders and regulations: are they “legislative in nature” or administrative decisions? For Charter challenges, the Oakes test would apply if the order or regulation is “legislative in nature” and the Doré analysis would apply if it was an administrative decision. [20] The distinction is even more significant for non-Charter challenges.
If the order or regulation is “legislative in nature”, then the applicable approach is the one set out in Katz Group Canada Inc v Ontario (Health and Long-Term Care), 2013 SCC 64. To invalidate the order or regulation, the claimant must show it to be “‘irrelevant’, ‘extraneous’ or ‘completely unrelated’ to the statutory purpose to be found to be ultra vires on the basis of inconsistency with statutory purpose.” [21] In the context of the Emergencies Act, it would be difficult to challenge an order or regulation on this standard. The most plausible challenge would be to show that the order or regulation does not pertain to any of the enumerated matters in respect of which the Governor in Council can make orders or regulations, but these are broadly worded and numerous, making such a challenge difficult. [22] Furthermore, to successfully defend an order or regulation, it may be sufficient simply to show a connection between it and the national emergency.
Indeed, if an order or regulation is “legislative in nature,” the only viable means of challenging it may be on Charter grounds. While Parliament does not vote on every order or regulation, Parliament’s review of (and refusal to revoke or amend) the order or regulation may bring it under the principle of parliamentary supremacy, which prevents judicial interference with Acts of Parliament except on grounds of vires or Charter rights infringement. [23] The Emergencies Act grants the Governor in Council powers to make orders and regulations on matters that are under provincial jurisdiction, but this federal “intrusion” can be justified under the emergency branch of the peace, order, and good government (POGG) powers. [24] The Charter would be the only other means of challenging an order or regulation.
Alternatively, if the order or regulation is not “legislative in nature,” then it is an administrative decision and the courts can review the Governor in Council’s decision for reasonableness. [25] This standard of review is more amenable to successfully challenging an order or regulation.
The peculiar involvement of Parliament in the Governor in Council’s decisions makes it difficult to say whether orders and regulations are “legislative in nature.” They embody a rule of conduct, have the force of law and (may) apply to an indeterminate number of persons, and Parliament’s oversight shows a high degree of connection between the legislature and the order or regulation. All of these factors favour characterizing the orders and regulations as “legislative in nature.” [26] On the other hand, despite Parliament’s oversight, the language of the Emergencies Act specifically limits the discretion of the Governor in Council in making orders and regulations and could suggest Parliament intended them to be reviewable as administrative decisions. For example, section 8(3)(a) provides that during a public welfare emergency powers shall be “exercised or performed” in a manner that does not “unduly impair” the provinces and with the view of achieving “concerted action” with each province. [27] Reviewing an order or regulation for reasonableness may be the best way for courts to give effect to this language.
Conclusion
Parliamentary oversight over decisions made by the Governor in Council under the Emergencies Act raises interesting questions about the proper role of the judiciary in respect of these decisions, and of the consequent difficulties for litigants seeking to challenge them. While there exists considerable uncertainty about how a court would rule on these issues, I offer the following speculative conclusions. A declaration of national emergency is likely the kind of “high policy” that is non-justiciable, or at least a political question warranting deference to the executive. [28] Orders and regulations, on the other hand, are subject to judicial review because they can engage Charter rights and questions of vires. Orders and regulations under the Emergencies Act are likely “legislative in nature” and therefore presumptively valid unless the order or regulation is an unjustifiable infringement of a Charter right or is shown to be ultra vires on the basis of inconsistency with the statutory purpose of the Emergencies Act. [29] This is a relatively onerous standard for litigants to meet, making a successful challenge to an order or regulation made under the Act difficult. The Emergencies Act raises fundamental questions about Canadian political norms and the rule of law. Ultimately, the answer to those questions will remain uncertain until, if ever, the Emergencies Act is invoked and challenged in court.
Notes
[1] John Paul Tasker, “The ‘measure of last resort’: What is the Emergencies Act and what does it do?” CBC News (March 23, 2020).
[2] John Lindsay, “The power to react: Review and discussion of Canada’s emergency measures legislation” (2014) 18:2 J Intl H R 159.
[3] Emergencies Act, ss 6, 17, 28, 38.
[4] Emergencies Act, ss 6, 17, 28, 38.
[5] Emergencies Act, ss 8, 19, 30, 40.
[6] Emergencies Act, s 8.
[7] Emergencies Act, s 58-59.
[8] Emergencies Act, s 61.
[9] Emergencies Act, s 62.
[10] Emergencies Act, s 63.
[11] Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v Wall, 2018 SCC 26 at para 34
[12] Doucet-Boudreau v Nova Scotia (Department of Education), 2003 SCC 62 at para 34.
[13] Ontario v Criminal Lawyers’ Association of Ontario, 2013 SCC 43 at paras 29-30.
[14] Operation Dismantle Inc v The Queen, [1985] 1 SCR 441 at para 64.
[15] Reference re Canada Assistance Plan (Canada), [1991] 2 SCR 525 at 545.
[16] Emergencies Act, ss 14, 25, 35, 44.
[17] The Queen v Beauregard, [1986] 2 SCR 56 at para 27.
[18] Emergencies Act, Preamble.
[19] Beauregard at para 28.
[20] R v Oakes, [1986] 1 SCR 103; Doré v Barreau du Québec, 2012 SCC 12.
[21] Katz Group at para 28.
[22] Emergencies Act, ss 8, 19, 30, 40.
[23] Ontario (Attorney General) v Canada (Attorney General), [1912] AC 571 (Can PC); R v Big M Drug Mart Ltd, [1985] 1 SCR 295.
[24] Fort Frances Pulp and Paper Co v Manitoba Free Press Co, [1923] AC 695 (Ont PC).
[25] Habitations Îlot St-Jacques Inc c Canada (Procureur général), 2019 FC 315.
[26] Reference re Manitoba Language Rights, [1992] 1 SCR 212.
[27] Emergencies Act, s 8(3)(a).
[28] Operation Dismantle at paras 59, 65.
[29] Katz Group at para 28.