Emergencies Act Review and Inquiry: A chance to dig into federalism’s human rights shortcomings

The Emergencies Act in the spotlight

Two bodies, one judicial and one parliamentary, are looking at the federal government’s unprecedented invocation of the Emergencies Act for ten days in February, in response to the Ottawa Occupation and other blockades and protests organized as part of the “Freedom Convoy” movement. In the course of their work, it is vital that they give close scrutiny to the glaringly deficient coordination among federal, provincial and municipal governments in responding to the challenges associated with  what quickly became a human rights crisis. It is not, however, entirely clear that they will.

Both processes are legislated requirements of the Emergencies Act itself.  A joint parliamentary committee, with members from the House of Commons and the Senate, has been established pursuant to section 62 of the Act, to review the “exercise of powers and the performance of duties and functions pursuant to [the] declaration of emergency.” This Parliamentary Review Committee, comprised of seven Members of Parliament and four Senators, began its work on March 14.  

On April 25, Prime Minister Trudeau announced that Justice Paul Rouleau has been tasked with carrying out the inquiry “into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency”, that is required by section 63 of the Act. As part of his work, the Order-in-Council specifies that Justice Rouleau is to consider:

(A)          the evolution and goals of the convoy and blockades, their leadership, organization and participants,

(B)          the impact of domestic and foreign funding, including crowdsourcing platforms,

(C)          the impact, role and sources of misinformation and disinformation, including the use of social media,

(D)          the impact of the blockades, including their economic impact, and

(E)           the efforts of police and other responders prior to and after the declaration.

All of that, and more, should clearly be examined, with an eye to assessing whether it was in fact appropriate and necessary to invoke the Act.

At every stage, though, the imperative that there be efficient and effective coordination and cooperation across the three levels of government and the many ways that proved not to be the case, must be examined closely. That is particularly important because constraints and dysfunction in intergovernmental cooperation lie at the heart of so many human rights shortcomings in Canada. Justice Rouleau’s Inquiry and the deliberations of the Parliamentary Review Committee offer a concrete opportunity to dig into that morass and, hopefully, propose some improvements.

The very essence of a successful model of federalism should be coordination and cooperation. Far too often though what comes to mind when thinking of federal states is bickering, jealousy and turf battles. Unfortunately, that is frequently the case when it comes to federalism in Canada.

Federalism and human rights in Canada

Human rights are an area in which coordination and cooperation among federal, provincial and territorial governments are absolutely essential for three obvious reasons. 

First, when it comes to something as fundamental as protecting and upholding human rights, there can be no room for inconsistencies across the country. The right to health or freedom of expression does not and cannot mean something different in the Yukon, a Manitoba farming community, downtown Montreal or a Newfoundland fishing outport.

Second, given the division of powers in the Canadian constitution, the jurisdiction for upholding human rights in the country is very often shared between the two levels of government and cannot therefore be properly fulfilled unilaterally. Sometime the overlap is clear, other times it is blurred. Either way, there is no space for finger-pointing and buck-passing. 

And third, Canada has important international human rights obligations and international law makes it clear that it is the entire nation, not just one level or order of government, that is responsible for upholding them. Canada needs to show the world that the entire country embraces those obligations and is working together to implement them.

We aren’t there yet. For many decades the mechanism for bringing federal, provincial and territorial governments together in a shared effort to implement Canada’s international human rights obligations was shrouded in secrecy and had no means of taking accountable, effective decisions. That mid-level Continuing Committee of Officials on Human Rights was joined by a Senior Officials Committee Responsible for Human Rights, created in 2017, and a Forum of Ministers on Human Rights, established in 2020. But still, accountability, transparency, collective decision-making and, most crucially, effective implementation are lacking.

And while the Canadian Constitution may only explicitly deal with the powers of the two levels of government, First Nations, Métis, and Inuit, as well as municipal governments, all have significant powers and responsibilities when it comes to protecting human rights. They have no designated role in any of the current federal/provincial/territorial human rights mechanisms.

National emergency or failure of federalism?

Which brings us back to the Freedom Convoy and the Emergencies Act.  It was all about human rights. The right to effective health care measures in the face of a pandemic. The right to peaceful protest, even if aggressive and confrontational, including against those health care measures. The right to be free from racism, misogyny and hate. The right to freedom of movement and the right to pursue a livelihood. The right not to be subjected to conduct, such as high-decibel blaring of truck horns, that causes physical or mental harm. No matter which way you look at what the convoy was about and the tactics that were used, human rights were in the spotlight.

And once again, the governments who were on the hook seemed surprised that they were going to have to come up with a joint response, and had no appetite for doing so effectively. For instance, the federal government convened “trilateral talks” to bring together the federal, Ontario provincial and Ottawa municipal governments in responding to the protests, but Doug Ford’s provincial government declined at least three invitations to join those meetings.

By the time the Emergencies Act was invoked, three weeks into the crisis in downtown Ottawa, there was a cynical sense that it had been resorted to not so much because it was a situation that outstripped existing laws and resources, bur rather because efforts to line up the three levels of government in common purpose were falling short. 

Making federalism work for human rights

Surely uncoordinated federalism is not what legislative drafters had in mind when they defined a national emergency as “an urgent and critical situation of a temporary nature that 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 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.”

It cannot take the Emergencies Act to kickstart federalism when we need quick action to uphold human rights.  It is time to make sure that federalism works well, all the time, to to implement the country’s international human rights obligations consistently, effectively, transparently and accountably. That is what should have carried the day in responding to the Freedom Convoy occupation, blockades and protests. The inquiry and parliamentary committee offer an opportunity to lay out a road map for getting there.