Public Order Emergency: A guide to thinking through the legal thresholds and its justification
Late on Wednesday, February 16th, 2022, the Governor-In-Council (effectively cabinet) tabled a series of documents as part of a motion for confirmation of its declaration of an emergency in the House of Commons. These documents were table in support of its declaration of a public order emergency under the Emergencies Act. This is required and consistent with s. 58(1) of the Act which stipulates:
Subject to subsection (4), a motion for confirmation of a declaration of emergency, signed by a minister of the Crown, together with an explanation of the reasons for issuing the declaration and a report on any consultation with the lieutenant governors in council of the provinces with respect to the declaration, shall be laid before each House of Parliament within seven sitting days after the declaration is issued.
The Act states that the next day (today, Thursday, February 17th) the House must take up and consider the motion (s. 58(5)) and debate that motion without interruption until the House is ready to vote on “every question necessary for the disposition of the motion” (s. 58.1(6)). The motion for consideration must pass both the House of Commons and the Senate. If it does not pass, the declaration of a national emergency is immediately revoked.
In order to help Intrepid readers understand what Parliament is voting on, I’ve prepared the following chart (see link or image below). It identifies the legal threshold required to find that a public order emergency exists, and the justification offered by Cabinet in support of that declaration in the documents laid before the House.
First, per s. 16 of the Emergencies Act, the definition of a public order emergency is “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”
Threat to the security of Canada is a defined term and means the same thing in the Emergencies Act as it does in section 2 of the CSIS Act. Cabinet has identified that the threat to the security of Canada at issue here is: c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state.
“National emergency” is also a defined term in s. 3 of the Emergencies Act which stipulates:
For the purposes of this Act, a national emergency is an urgent and critical situation of a temporary nature that
(a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or
(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada
and that cannot be effectively dealt with under any other law of Canada.
Thus, for a public order emergency to exist the following criteria must be satisfied:
An urgent and critical situation of a temporary nature exists which:
seriously endangers the lives, health or safety of Canadians; AND
is of such proportions or nature as to exceed the capacity or authority of a province to deal with it; AND
cannot be effectively dealt with under any other law of Canada; AND
that situation arises from activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state.
OR
An urgent and critical situation of a temporary nature exists which
seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada; AND
cannot be effectively dealt with under any other law of Canada; AND
that situation arises from activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state.
Arguably, both sets of criteria could be supported by the facts arising from a single urgent and critical situation. This is, however, not a requirement to satisfy the Act.
Second, to declare a public order emergency Cabinet need only establish that there is sufficient support to “believe, on reasonable grounds” that a public order emergency exists. This is a lower standard than “beyond reasonable doubt” or a “balance of probabilities.” Reasonable belief is an evidence-based belief that something is probable (Hunter v Southam Inc, [1984] 2 SCR 145 at 167). Courts have described it as a bona fide belief of serious possibility, based on credible evidence (Chiau v Canada, [2001] 2 FC 297 [FCA] at para 60).
This author takes no position on whether or not the criteria is met. This blog is not intended to suggest one way or another whether the House should vote in favour of the Emergency. It is merely a best effort to map the justifications offered onto the legal criteria to assist others in considering this question. It is to an extent subjective; based on my reading and understanding of the documents. This author also expects that additional information could be proffered during debate by the Government in support of the declaration. Where that occurs, I will do my best to update this chart accordingly.
Finally, the House must also consider whether the proposed orders and regulations issued pursuant to the declaration of the public order emergency and whether those special and temporary measures are necessary for dealing with the emergency. This too is assessed on a standard of reasonable grounds to believe. I do not specifically address the necessity of the proposed measures in this chart, although the articulation of the criteria and the offered justification may assist in one’s consideration of this question.
All page references in the chart refer to the “Section 58 explanation” document tabled by Cabinet.
