Scrutinizing the emergency response
It will be for the inquiry to evaluate whether emergency powers were warranted.
No country can guarantee a future free from crisis. We need to have legislation duly passed by Parliament to address future emergencies. Canada’s first invocation of powers under the federal Emergencies Act provides its own built-in review process, and the opportunity for post-operational scrutiny to enhance a government’s response to future emergencies.
By definition, an emergency is an exceptional situation for which a government may need to take exceptional measures. But these measures must be temporary in nature. Whether in Canada or elsewhere, the invocation of emergency powers will involve the suspension of certain rights, and rights suspensions should always be temporary.
If the temporary suspension of our rights lasts for only a week, then so be it. Criticism of the short duration for the use of emergency powers creates a perverse incentive for longer rights suspensions in the future. The overarching goal in any emergency must surely be the restoration, as soon as possible, of a state of normalcy to once again enjoy the full protection of our rights.
International human rights law has long addressed the use of emergency powers.
Indeed, the very first case before the first international human rights court concerned an Irish suspension of rights to address an outbreak of violent acts in 1956 and 1957. In the aptly named case of Lawless, decided in 1961, Ireland was permitted by the European Court of Human Rights to take special measures to address the extra-constitutional use of violence.
Non-state armed groups operating in Ireland were damaging railway lines and committing sporadic attacks against the police. Legislation enacted by Parliament 17 years earlier was brought into force, and publicly proclaimed, to provide for special powers of arrest and detention. The Irish Prime Minister also announced that the government would release any person who gave an undertaking “to respect the Constitution and the laws of Ireland.”
In Ottawa, Coutts and Windsor, a similar message was given: leave now and you won’t be charged. And while Ireland is not Canada, our protests also involved extremist elements, the demand for the overthrow of the government, an alleged conspiracy to murder police, the seizure of weapons, and the blockade of a vital, economic, international trade link.
Contrary to initial reports by U.S. media, the preamble to Canada’s Emergencies Act makes clear that emergency measures remain subject to the Canadian Charter of Rights and Freedoms. The preamble also directs the federal cabinet to have regard for a leading international human rights treaty, the International Covenant on Civil and Political Rights (ICCPR).
Article 4 of the ICCPR accepts that governments may take measures derogating from their human rights obligations “to the extent strictly required by the exigencies of the situation.” The treaty’s monitoring body describes the provision as one “of paramount importance for the system of protection for human rights.” Governments have a positive obligation to take steps to secure the enjoyment of life and liberty for all their people, not least during a crisis.
The Lawless case, and cases since involving situations of public emergency in Turkey, the United Kingdom, and more recently, Ukraine, provide international judicial confirmation that many, but not all, of our fundamental human rights can be temporarily suspended during an exceptional situation of crisis or emergency.
And while an emergency must be actual or imminent, the European Court of Human Rights has long accepted that a crisis which concerns only a particular region within a state can amount to the European requirement for “a public emergency threatening the life of the nation.”
The trend in national emergency cases before international courts shows a high degree of deference to national risk assessment. After all, national authorities have “direct and continuous contact with the pressing needs of the moment” and not international judges.
But for those keen to litigate in Canada, that too may be the case before domestic courts. On the question of whether there was a national emergency, judges may well defer to a federal cabinet informed by operational imperatives and police intelligence reports, without relinquishing their role in scrutinizing how the emergency response was carried out.
There is also the statutory requirement in the Emergencies Act for an inquiry to be held within 60 days after the revocation of the declaration of emergency. The Act requires the scope of this inquiry to include both “the circumstances that led to the declaration being issued” and “the measures taken for dealing with the emergency.”
It will be for the inquiry to determine whether the measures taken were strictly necessary to meet the exigencies of the situation. It should examine the question of whether a resort to ordinary laws would have been sufficient, whether the measures used were a genuine, and in hindsight, appropriate response to the crisis, and whether the safeguards put in place to prevent the misuse or abuse of emergency measures were sufficient and appropriate.
Constitutional challenges may have garnered media attention, but this built-in process for post-operational scrutiny appears to meet the need for both substantive review and efficiency.
