Emergencies

• Author: Craig Forcese/Leah West
• Pages: 344-382

344

CHA PTER 8

EMERGENCIES

National security “th reats” are dierent from states of emergency. In

Canada, very few th reats reach the magnitude of an emergency. National

security law is, therefore, usually regular law, and not a special body of

rules applicable only in extraordinary circum stances. The Anti- terrorism

Act, 20011 is a case in point: it was legislation promulgated precipitously

after 9/11 but enacted according to the regular powers and procedure s

of Parliament and intended to be mostly perm anent.2

There will, however, be threats so far beyond the norm al state of

aairs and so im mediate that the state will treat them as emergencies.

Emergencies as often produced by extreme natural occurrences or

accidents, and a broader review of threats would focus on the poten-

tial har ms to national securit y posed by such events. However, the

predominant focus of this book is manufactured threats to national

security — that is, threat s intentionally caused by human beings. Still,

the impact, and consequently, the response to human-made disasters

may be commensurate wit h natural disasters. As Chapter 7 suggests,

technology capable of converting acts of violence into natura l or public

health disasters now exists. Radioactive fa llout from nuclear weapons

or the spread of diseas e via bioweapons are two obvious examples. Even

absent these vectors, political v iolence — in the form of an in surrection

1 SC 2001, c 41.

2 For a discuss ion on this point, see Application u nder s 83.28 of the Criminal Code

(Re), [2004] 2 SCR 248 at para 39, Iacobucci & A rbour JJ.

Emergencies 345

or insurgency — could rise to a level exceed ing the responsive capacity

of the civil authorities and t he regular law.

Emergencies this extreme may change the institutional st ructure

within which nat ional securit y law operates. As noted in prior chapters,

democracies depend on a system of checks and bal ances that constrain

the exercise of power. Yet, emergencies usually require the swift and

resolute exercise of power. While law applicable in normal situations

diuses power, emergencies concentrate it.

The most famous Canadian ex ample of this phenomenon is the

1970 October Crisis. After a sustained ca mpaign of terrorist acts, the

Front de libération du Québec (FLQ) kidnapped, f‌irst, Br itish diplo-

mat James Cross and then Québec Cabinet Minister Pier re Laporte

(later murdered). In response, the federal Cabinet debated whether to

rely immediately on executive powers under the War Measures Act3 to

authorize the detention of suspects in Québec or instead enact special

legislat ion.4 Then-Justice Minister John Turner urged recourse to Par-

liament but noted that, with letters from the political and police author-

ities in Québec, the government could proclaim the War Measures Act,

rendering unusual police raid s and detentions legal. The government

could then go to Parliament asking it to approve further, more special-

ized legislation.5 In other words, the executive branch could exercise

powers immediately, leaving the potential delays associated wit h the

parliamentar y process to another day.6 In the end, Cabinet chose to

rely on the War Measures Act, authorizing extraordina ry police powers.

Canada lear ned from the October Crisis th at emergencies

strengthen the executive branch at the expense of the legislative and

judicial branches. Urgency tends to tr ump sober second thought, and

the government may suspend the reg ular rule of law for a perceived

greater good. “Society,” argued Prime Minister Pierre Trudeau th ree

days before invoking the War Measures Act, “must take every means at

3 RSC 1970, c W-2 (now repealed).

4 “The FLQ Situation,” RG2, Priv y Council Oce, Series A-5-a, vol 6359 (15Octo-

ber 1970; afternoon sess ion) at 5.

5 See discus sion ibid at 6. For an historical rev iew of emergency law in Canada

and its use, see M artin Robert, “Notes on Eme rgency Powers in Canada” (2005)

54 University of New Brun swick Law Journal 161.

6 In fact, these fears of de lays in part explai n the government’s ultimate deci sion

to invoke the War Measures Act. See “The FL Q Situation,” above note 4 at 6 for

Prime Min ister Trudeau explaini ng that there was no way legi slation could be

put through all it s stages to authorize action be fore the next morning.

NATIONAL SECUR ITY LAW346

its disposal to defend itself against the emergence of a parallel power

which def‌ies the elected power in this country.”7

Any emergency presents, therefore, three questions, the answer to

which determines the emergency’s impact on democracy and the rule of

law. First, how does one determine when and where an emergency exists?

Second, how should the state respond to the emergency? Third, when

does the emergency end? Answering t hese questions may not always be

straightforward. On one end of the spectrum are “clear” emergencies.

These are usually natural disasters, such as the Manitoba f‌lood of 1997

or the Central Canad ian ice storm of 1998. Other clear emergencies may

be unexpected, but non-catast rophic systems failures, such as the black-

out of 2003 in Central Canada and t he Eastern United States. The 2020

COVID-19 pandemic also constituted a “clear” emergency.

The course of action in responding to natural or accidental disaster

emergencies is usually uncomplicated. If a region f‌loods, f‌lood interdic-

tion, search and rescue, and f‌inancial, medical, and material assistance

are the order of the day. If a disaster disr upts power supplies, restoring

electricity and ensuring essentia l services pending the return of power

are the priorities. If an epidemic d isease spreads from person to person,

physical distancing is required. Further, with these sorts of crises, t he

duration of the emergency is reasonably cert ain: f‌loodwaters recede,

electrical supplies retur n, epidemics fade. Emergencies like these may

require the military to marshal its equipment and personnel, or the

deployment of extra policing resources to deter civ il unrest. Neverthe-

less, although a truly cat astrophic natural or artif‌icial disaster could

undermine Canad ian democracy, calamities have not so far disrupted

democratic practices or institutions. Whether this pattern will remain

true in the face of infectious diseases and t he global threat of climate

change remained unk nowable at this writing. Dur ing the COVID-19

pandemic, for instance, Parliament reces sed and struggled to f‌ind a

way to continue its role of scrutinizi ng the government.

Historically, political emergencies are more problematic for democ-

racies. Answeri ng “when,” “where,” “how,” and “for how long” is more

challenging in a st ate of war, an insurrection, or after a terrori st threat

or strike. Citizen s can turn on their televisions or even glance out their

windows to have a clear sense of the gravity and immediacy of a f‌lood

or ice storm. The scope of political emergencies is more dicult to

assess. In this respect, political crises are less “empirica l” than nat-

ural or artif‌icial disasters. As Prime Minister Pierre Trudeau obser ved

7 Pierre Ell iott Trudeau, inter view by CBC-TV reporter Tim Ral fe, 13 October

1970, reprinted in JR Colombo, Famous La sting Words (Vancouver: Douglas &

McIntyre, 20 00) at 376.