Accountability for Use of the Emergencies Act rests with Parliament not the Courts

Two months after the end of the declaration that allowed the use of powers under the Emergencies Act, the federal government has set up the formal Inquiry that is required under the Act to consider “the circumstances that led to the declaration [of emergency] being issued and measures taken for dealing with the emergency.”   Immediately the opposition, some civil liberties organizations, and the press are suggesting that the “Emergencies Act Inquiry may not hold officials to account: critics”, Globe and Mail, April 26, 2022.  Even before the Inquiry was announced, individuals, the same civil liberties organizations, and at least one provincial government, brought an application before the courts to have the courts determine whether the declaration was reasonable (the standard often used in judicial review of government decisions).

The reaction to both the Inquiry, and the legal action demonstrates a complete disregard for the Act and the central role that Parliament, has played, and will continues to play in any consideration of the government’s use of the Act.   There are three specific times when Parliament plays a pivotal role in determining the initiation and continuation of, and the accountability for, the use of powers under the Act.  And throughout the entire time that the declaration of emergency is in effect, the government remains fully accountable to the House of Commons, and to a lesser extent the Senate.

Within seven days of proclaiming an emergency, a minister must put a motion to confirm the declaration before both Houses of Parliament.  This motion must be accompanied by an explanation for why the declaration was made.   The motion and any orders and regulations made must be debated continuously and without interruption until a vote on the motion to confirm the declaration, and any orders or regulations made, is taken.  This gives the emergency priority and focusses the issues within Parliament.  If the motion to confirm is defeated in either House the declaration of emergency is revoked.  Similarly, the defeat, revocation, or amendment of any order or regulation takes immediately.   The Act also provides, at any time while the declaration is in effect, a process whereby, with a minimum number of members supporting a motion to revoke or amend the declaration, a new uninterrupted debate and vote must be held with the potential that Parliament can compel the revocation or amendment of the declaration.

Throughout the period of emergency the government may make various orders and regulations to manage the emergency and to give effect to the declaration.  Unlike other orders and regulations made pursuant to a statute that must only be gazetted to take effect and are only subject to parliamentary review if a House chooses to take up the matter, orders and regulations made under the Emergencies Act must be referred to a Parliamentary Review Committee within two days of being gazetted. That Committee can vote to revoke or amend any order or regulation within thirty days of it being referred to the Committee.  In any event, the Committee must report to each House at least once every sixty days on its proceedings.

Now that the emergency has ended, there is a further important role for Parliament to play.  The Act requires that the cabinet establish a committee to examine into the circumstances that led to the declaration being issued and the measures taken for dealing with the emergency.  The government has now established the inquiry, to be presided over by a Court of Appeal Justice. Importantly, the report is to be tabled in Parliament, not provided to the government, as is the case with inquiries made under the Inquiries Act. This is a significant difference.  Since the report is to Parliament, each House has the opportunity and the responsibility, to consider it.  This can involve further committee hearings on the report, and an occasion for Parliament to hold ministers and government officials to account for what has occurred.  It will also give each House the ability to measure and weigh the information found in the inquiry against the information that was provided to it when making decisions to endorse the declaration and the emergency measures taken.  If the government and its responses are found wanting the House of Commons can always vote non-confidence in the government and cause an election to be called, with the voters making the ultimate decision on the actions of the government. Even if there is not a vote of confidence, the actions and reasons given by the government will be considered at the next election.  In a democratic country, no greater form of accountability exists.

It is important that we continue to recognize that the Act, in my opinion correctly, focusses the accountability function and mechanisms within Parliament.  This then limits the role of the courts.  The processes set out in the Act not only ensure government accountability to each House, but they also ensure continued democratic involvement in the management of the emergency.   This involvement suggests that the decisions taken do not fall within the usual administrative law accountability framework.  The Act is clear that the reasonableness or appropriateness of declaring an emergency is to be reviewed in the two Houses not the courts.  Although the decisions made by government and approved by Parliament are not purely legislative, they lie somewhere on the public law spectrum that is closer to parliamentary process and decision-making than to pure governmental or executive decision-making.  Any potential review by the courts must acknowledge that they are not only considering a decision of the government but a decision, or series of decisions, of each of the Houses of Parliament.

For those who wonder how the accountability processes works, the answer is parliament as our democratic institution, and ultimately the electorate– not the courts.   In a democracy the question of whether an emergency exists that affects society, or a portion of it, is a question for society to answer, as is the appropriateness of the response.  By placing the responsibility for oversight with members of the two House of Parliament, the Act ensures that those who are responsible to society are at the centre of both the decision-making and the accountability for it.  This is as it should be.

For those who are of the view that such weighty questions are not properly addressed by parliamentarians, or that they will merely protect themselves, or follow party lines, or are unfit for this purpose, the answer lies in the ballot box not the courts.  For democracy to work we must have faith in those we elect to do their jobs in being the embodiment of the public—or to use older but still appropriate language, the body politic.  There are times when they must step up and address serious matters and potential threats to society, and also protect society against those who may be manufacturing such threats.  That is their constitutional responsibility. It is also their responsibility under the Emergencies Act.  If we fail to recognize this then we abdicate our democratic responsibility to the courts.

For those who may have been directly affected, and whose rights might have been infringed in the process of responding to the emergency, these specific rights claims remain available to them.  And these individual claims can be adjudicated in the courts, where individual rights are properly dealt with.  But the question of the existence of the emergency rests and must remain with a Parliament whose members, including the government members and ministers, are accountable in turn to the public, whose general safety and welfare may have been at stake.

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