Why Ottawa doesn’t need to declare a state of emergency

OPINION: Trudeau may invoke the Emergencies Act. Or he may not. It doesn’t matter: the real work is being done by the provinces
By John Michael McGrath - Published on Mar 23, 2020
Prime Minister Justin Trudeau arrives for a press conference about COVID-19 in front of his residence at Rideau Cottage on March 22. (Justin Tang)

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I think it was during the fifth of Prime Minister Justin Trudeau’s daily press conferences that I finally snapped and started yelling at my phone, my desktop, and, eventually, my TV. Another reporter had just asked him, again, whether he would invoke the federal Emergencies Act.

The Emergencies Act is the federal counterpart of the kind of provincial emergency legislation that has been invoked in every province by now — Ontario did so last Tuesday. It’s also the successor to the War Measures Act, which Trudeau père invoked to deal with the October Crisis, in 1970, so it would be a notable historical detail if Trudeau fils were, in fact, to invoke emergency powers.

That’s just about all it would be, however: an amusing historical detail for reporters and historians to write maybe a paragraph about, and nothing more. Trudeau may yet choose to invoke the Emergencies Act — there may be some marginal cases in which he would, in fact, need that flexibility — but I’m skeptical that it would be necessary or even advisable to do so.

First of all, it’s not even clear what the federal government would need the Emergencies Act to do, at this point. Close the border? Done. Shut down air travel? The economic shockwaves of COVID-19 are doing that, and, in any event, the government has that power already. Nearly everything you could name, the federal government can do with other powers.

The far more important and obvious point is this: if you’re Canadian, you're already living somewhere that’s declared a state of emergency (there’s one in every single province and territory in this country — kudos to Craig Forcese for collecting all those notices). There are clear and compulsory limits on such things as public gatherings and the opening hours of businesses in every major city in Canada right now. These orders come with substantial fines and the threat of jail time for violations. On Monday, Premier Doug Ford announced new mandatory closures for any non-essential businesses; they’ll be enforced, if necessary, by Ontario and municipal police forces. The federal government can say whatever it wants, but it’s not going to become any more illegal to violate the states of emergency.

Yelling at the prime minister to “do something” when (a) it’s not clear that thing will actually do anything, and (b) the provinces are actually doing everything already is not only ridiculous; it’s also the worst way to get through this crisis. We need deliberate and speedy action, but we need reason and calm more than ever.

At the risk of repeating myself: the federal government will continue to have a role in this crisis. (A notable example: any new vaccines or testing technologies will need to meet federal approvals for safety before they can flow to provincial health-care systems.) Its spending power is substantial, and it can play an important role coordinating efforts across the country. But, aside from some very marginal — and, so far, hypothetical — cases, the Emergencies Act is a distraction, not a real tool.

Imagining that the feds are going to use the military to deploy medical resources on a massive scale reflects a total misunderstanding of the relative size of provincial medical budgets. Canada spends $22 billion on its entire national-defence budget; Ontario alone spent more than $60 billion through the Ministry of Health and Long-Term Care last year. If you think Trudeau should “call in the army” as a response to this crisis, you not only have the wrong branch of government — you’re also thinking too small.

The biggest tools Trudeau has right now are the microphone and TV camera set up outside his home in Ottawa, and he’s using them to deliver increasingly strident warnings to people to stay home and avoid social contacts with other people. This is good and important work, but all it does is build upon the orders provincial premiers have already given.

Trudeau could also end up playing the heavy if some or many of the provincial premiers are reluctant to enact harsher measures. But this hypothetical assumes too much: That Trudeau is receiving advice from his public-health bureaucrats that is substantially different from what the premiers are receiving. Or that Trudeau is willing to go further than premiers are on the same information. Given that it’s been the provinces leading on emergency measures so far, there’s no basis in fact for this.

And, if premiers are afraid of the political consequences and hoping for Ottawa to take the heat for increasing stringency, well, the same people who vote in provincial elections also vote federally, so it’s not clear why one level of government would act differently from another. If anything, his father’s history and the need to preserve Liberal seats in Quebec may make Trudeau more, not less, inclined to be hesitant.

Finally, the idea that the Emergencies Act represents some novel threat to our civil liberties in this country is a bit ridiculous given that, right now, there are widespread limits on public gatherings. (That’s Section 2 (c) of the Charter of Rights and Freedoms abridged, right there.) This has already had real impacts here in Ontario: the large protests teachers were holding outside MPPs offices and on the front lawn of Queen’s Park are now illegal, thanks to the state of emergency. Nobody should get conspiratorial here — other provinces have gone as far or further — but that’s a real limitation on a key Charter right.

Yes, this is an emergency. But, if you want to understand what’s going on right now, your understanding of Canadian politics needs to extend beyond Ottawa.

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