Democratic Governance in Times of Emergency

• Author: Craig Forcese/Aaron Freeman
• Pages: 576-600

Democratic Governance

in

Times

of

Emergency

Emergencies present enormous

difficulties

for

democracies.

As

this book

has

suggested, democracies

are

built

on a

system

of

checks

and

balances,

conventions

and

mores, which constrain

the

exercise

of

power. Yet, emer-

gencies

often,

if not

usually, require

the

exercise

of

power.

Moreover,

this

power

must

be

implemented

swiftly

and

with resolution. While democra-

cy

aims

to

diffuse

power, emergencies concentrate

it.

In

the

1970

October Crisis,

the

federal

Cabinet debated whether

to

rely

on

executive powers under

the

War

Measures

Act to

authorize

the

detention

of

suspects

in

Quebec

or to

enact special

legislation.1

Then-Justice

Minister

John

Turner urged recourse

to

Parliament,

but

noted that with letters

from

the

political

and

police authorities

in

Quebec

the

government could pro-

claim

the War

Measures

Act, rendering police raids

and

detentions legal.

The

government could

then

go to

Parliament asking

it to

approve

further,

more specialized

legislation.2

In

other words,

the

executive branch could

exercise powers immediately, leaving

the

potential delays associated with

1

"The

FLQ

Situation,"

RG2,

Privy

Council

Office,

Series

A-5-a,

vol. 6359

(15

Oct.

1970;

afternoon

session)

at 5.

2

See

discussion

ibid,

at 6.

576

10

Democratic

Governance

in

Times

of

Emergency

577

the

parliamentary process

to

another

day.3

In the

end, Cabinet chose

to

rely

on the War

Measures

Act, authorizing extraordinary police powers.

What Canada learned

from

the

October Crisis

is

that during political

emergencies,

the

executive branch

is

typically strengthened

at the

expense

of

the

legislative

and

judicial branches. Urgency tends

to

trump sober sec-

ond

thought,

and the

rule

of law may be

suspended

for a

perceived greater

good.

"Society," argued Prime Minister Pierre Trudeau three days before

the War

Measures

Act was

invoked, "must take

every

means

at its

disposal

to

defend itself against

the

emergence

of a

parallel power which

defies

the

elected power

in

this

country."4

Any

emergency presents three questions,

the

answer

to

which deter-

mines

its

impact

on

democracy. First,

how

does

one

determine when

an

emergency exists? Second,

how

should

the

state

respond

to the

emergency?

Third, when does

the

emergency end? Answering these questions

is not

straightforward.

On one end of the

spectrum

are

"clear" emergencies.

In

recent history, these

are

usually natural disasters, such

as the

Manitoba

flood

of

1997

or the

Central Canadian

ice

storm

of

1998.

Other such clear

emergencies

are

unexpected,

but

noncatastrophic systems failures, like

the

blackout

of

2003

in

Central Canada

and the

Eastern United States.

The

course

of

action

to be

followed

in

responding

to

natural

or

acciden-

tal

disaster emergencies

is

usually straightforward.

If a

sizeable portion

of

a

region

is flooded, flood

interdiction, search

and

rescue,

and

financial,

medical

and

material assistance

are the

order

of the

day.

If

power supplies

are

disrupted, restoring electricity

and

accommodating essential services

pending

the

return

of

power

are the

priorities. Further, with

these

sorts

of

crises,

the

duration

of the

emergency

is

reasonably certain:

floodwaters

recede, electrical supplies return. Emergencies like these

may

require

the

assistance

of the

military

or

that extra policing resources deter civil unrest.

Nevertheless,

although

a

truly catastrophic natural

or

artificial

disaster

could undermine Canadian democracy, calamities like these historically

have

not

disrupted democratic practices

or

institutions. Whether this pat-

tern will remain true

in the

face

of

global threats

of

climate change

or

infec-

tious diseases

is a

question this book cannot answer.

In

fact,

these

fears

of

delays

in

part explain

the

government's ultimate decision

to

invoke

the War

Measures

Act.

Ibid,

at 6 for

Prime Minister Trudeau explaining that

there

was no way

legislation could

be put

through

all its

stages

to

authorize action

before

the

next

morning.

Pierre

Elliott

Trudeau, interview

by

CBC-TV

reporter

Tim

Ralfe,

13

Oct.

1970,

reprint-

ed in

J.R.

Colombo,

Famous

Lasting

Words

(Vancouver:

Douglas

&

Mclntyre,

2000)

at

376.

3

4