Emergency Management Act and Emergencies Act
Date: January 25, 2021
Classification: Unclassified
Branch/Agency: Legal
Proposed Response:
- The Emergencies Act is a measure of last resort, having regard to other federal, provincial or territorial’s authorities.
- Before measures can be taken under the Emergencies Act, three conditions must be met:
- There must be an urgent and critical situation, temporary in nature, that endangers the lives, health or safety of Canadians;
- The capacity or authority of provinces to deal with the situation must be deemed insufficient or lacking; and
- We must conclude that the situation cannot be dealt with effectively under the authorities of other Canadian laws.
- Further, the government of Canada must hold consultations with the affected provinces and territories. Under the Emergency Management Act, I am responsible for establishing arrangements for such consultations.
- The Emergency Management Act, a separate statute, sets out my responsibilities for exercising emergency management leadership in Canada. This includes coordinating emergency management activities among government institutions, in cooperation with other entities.
- I exercise this leadership in close cooperation with my provincial and territorial counterparts through the Federal-Provincial-Territorial Table of Ministers Responsible for Emergency Management, which is in turn supported by Senior Officials Responsible for Emergency Management.
- The Emergency Management Act also allows me to recommend to the Governor in Council certain measures that may be required as we respond to COVID-19. These measures include:
- Declaring a provincial emergency to be of concern to the Federal Government;
- Establishing orders and regulations regarding the use of federal civil resources in response to an emergency; and
- Providing financial assistance to a province or territory for a provincial or territorial emergency.
Background:
In an interview with Global News journalist Mercedes Stephenson on Sunday, April 18, 2021, the Minister of Public Services and Procurement, Anita Anand, was asked if the federal government would be considering the Emergencies Act. Minister Anand replied that: “It is a good question. I am a member of the COVID committee and we will be meeting this weekend and I’m sure over the next—early next week, to consider all options”.
1) Emergencies Act
There are four types of emergencies that can be declared under the Emergencies Act: a public welfare emergency; a public order emergency; an international emergency; and a war emergency. The COVID-19 outbreak would be considered a public welfare emergency, in so far as the virus is putting the lives of Canadians in danger.
The Emergencies Act is meant to be used for matters that have reached the level of a national emergency, to which three conditions apply: 1) being in the presence of an urgent and critical situation, temporary in nature, that endangers the lives, health or safety of Canadians; 2) the capacity or authority of provinces to deal with the situation is deemed insufficient or lacking; and 3) the situation cannot be dealt with effectively under the authorities of other Canadian laws.
First, a declaration of emergency is made. Before issuing a declaration, affected provinces are to be consulted. The Act clearly states that any action the federal government takes subsequent to the declaration cannot unduly impair the ability of the province to act. It is assumed the province will continue to take its own measures to deal with the emergency and any federal action taken, is to be done with the view of working collaboratively with each province.
Back in spring 2020, (on April 8, 2020)the Prime Minister sent letters to provincial and territorial Premiers launching this first step and requested responses by April 15, 2020. On April 14, 2020, Scott Moe, the chair of the Council of the Federation answered on behalf of the Premiers that they “share the opinion that it is neither necessary nor advisable to invoke the Act at this time”. Letters from Premiers providing more details on their respective positions were provided in the following days. Consultations may continue until the Prime Minister decides to make a declaration or not, and beyond since the situation may evolve. No decision has yet been made.
Once consultations have occurred and a decision to invoke the Act made, a declaration of public welfare emergency must be confirmed before the Houses of Parliament within seven days of the declaration, although it is in effect upon being made. This confirmation is sought by tabling a motion, signed by a minister of the Crown, together with an explanation of the reasons for issuing the declaration and a report on the consultations. This declaration expires at the end of ninety days unless it is revoked or continued in accordance with the Act.
Subsequent to the confirmation process, is that the Governor in Council may issue orders or enact regulations in order to implement emergency measures.
Under the Emergencies Act, orders may be issued and regulations enacted as regard to the following specific areas:
- the regulation or prohibition of travel from or within any specified area, where necessary for the protection of the health or safety of individuals;
- the evacuation of persons and removal of personal property from any specified area and making arrangements for the care and protection of the persons and property;
- the requisition, use or disposition of property;
- the authority of or direction to any person, or class of persons, to render essential services and to provide reasonable compensation for services rendered;
- the regulation of the distribution and availability of essential goods, services and resources;
- the authorization and making of emergency payments;
- the establishment of emergency shelters and hospitals;
- the assessment of damage to any works or undertakings and their repair replacement or restoration; the assessment of the damage to the environment and the elimination or alleviation of the damage.
The Emergencies Act provides authority to enact regulations imposing penalties for contravention of the orders or regulations. The penalties cannot exceed five hundred dollars and/or six month of imprisonment for a summary conviction, or five thousand dollars and/or five years of imprisonment for an indictment.
Any measures taken would have to be assessed carefully to ensure that they cannot be achieved by other means. Of note, the Act is explicit that it cannot be used to terminate strikes or impose a settlement in a labour dispute.
Measures taken would be subject to the Charter,the Bill of Rights and the International Covenant on Civil and Political Rights, particularly with respect to fundamental rights that are not to be limited or abridged even in a national emergency.
If the Act were to be invoked and measures taken, the Emergencies Act requires holding a public inquiry within 60 days after the emergency has ended, with the obligation to report to the Houses of Parliament within one year.
Parliamentary Supervision
Making a declaration of emergency would, as previously stated, require that Parliament be summoned to sit within seven days of the declaration, in order to consider it.
2) Emergency Management Act
The purpose of the Emergency Management Act (EMA) is to establish a statutory framework for emergency management and to make the Minister of Public Safety “responsible for exercising leadership relating to emergency management in Canada by coordinating, among government institutions and in cooperation with the provinces and other entities, emergency management activities”.
The EMA makes the department a quasi-central agency in matters of federal emergency management plan (the Minister’s powers under the Emergency Management Act are comparable to the policy making powers of the Clerk of the Privy Council or the powers of the President of the Treasury Board).
The EMA also provides a ground to develop new national policies and programs respecting emergency management. It allows departmental officials to work with stakeholders to develop a common approach, including the adoption of standards and best practices, or promote public awareness of matters related to emergency management.
The EMA also allows the department to monitor potential, imminent and actual emergencies and advises other ministers accordingly, and to assist you in coordinating the Government of Canada’s response to an emergency with those of the provinces.
With respect to assistance to a Province in matters of emergency management, the EMA allows the Minister to:
- establish arrangements with each province whereby any consultation with its lieutenant-governor in council with respect to a declaration of an emergency under an Act of Parliament may be carried out effectively;
- coordinate the provision of assistance to a province in respect of a provincial emergency, other than the provision of financial assistance and the calling out of the Canadian Forces for service in aid of the civil power;
- provide assistance other than financial assistance to a requesting province; and
- provide financial assistance to a province the following three conditions are met:
- the Governor in Council has declared the provincial emergency in the province to be of concern to the federal government;
- the Governor in Council authorises the Minister to provide the assistance, and the province has requested the assistance; and,
- the Province has requested the financial assistance.
With respect to the United States, the EMA authorises the Minister of Public Safety, in consultation with the Minister of Foreign Affairs, to develop joint emergency management plans with the relevant US authorities and, in accordance with those plans, coordinate Canada’s response and provide assistance to emergencies in the United States
Finally, the EMA allows the Minister to recommend that the Governor in Council orders or regulations:
- declaring a provincial emergency to be of concern to the federal government;
- authorizing the Minister to provide financial assistance to a province;
- the preparation, maintenance, testing and implementation of emergency management plans;
- and respecting the use of federal civil resources in response to civil emergencies;
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