Q&A with Professor Nomi Claire Lazar: Alberta's Emergency Management Act

In this Q&A session, CCS Summer Student Juliana Quan talked to Professor Nomi Claire Lazar (University of Ottawa, Graduate School of Public and International Affairs) about Alberta’s Emergency Management Act, which was recently used to help the government deal with rampant wildfires across the province. Professor Lazar makes the case that this Act should be revised to better balance the values of flexibility and governmental constraint during public emergencies.


Q: What specific elements of Alberta’s Emergency Management Act (EMA) concern you the most in terms of their potential for abuse, and why?


A: Emergency powers are a dangerous but necessary tool to protect people, property, and modes of life when jurisdictions face urgent threats. Necessary, because addressing those threats may require powers and rights limits we wouldn’t want available to government day to day. Dangerous, because we can’t know in advance what powers will be needed, or which novel situation may constitute an emergency.

Over the years, trial and error — a lot of error — in diverse jurisdictions has yielded institutional innovations that safeguard citizens from emergency powers’ abuse, while minimally limiting the necessary flexibility to safeguard citizens from the emergency itself. And here’s where the issue arises: Alberta’s emergency legislation, like that of most Canadian jurisdictions, has not kept up. The EMA contains few safeguards:

These are very minor constraints on what is effectively vast power. How vast? Well, section 18(1) grants government power to declare an emergency whenever they hold the subjective opinion — no reasons or justification required — that a situation even might be emergent.

Once an emergency is declared, section 19(1) allows government to carry out any actions or take any measures which in their opinion — again no reasons or justification required — are necessary. Such measures can include conscription of labour, seizure or destruction of property, restrictions on movement, forced evacuation, etc. These are normal types of emergency powers, but here they are unlimited by any objective standard with no requirement to give account. Penalties for refusing to comply include jail time. Not only is there no prescribed recourse, but the Act actually indemnifies, in Part 3, anyone taking or enforcing emergency measures so long as they acted in good faith.

Why should Alberta’s EMA still grant War Measures Act type powers when there are sensible institutional alternatives at hand?


Q: In public commentary, you have mentioned historical examples where emergency powers have been used to justify grave abuses. Can you share the lessons learned from these instances of abuse and how this can guide reform to Alberta’s EMA?


A: There are distinct types of emergency powers abuse, historically, which share the same remedies: reason giving, objective standards, oversight, and accountability.

Here are some examples of abuse. Temporary emergency power has been used to permanently consolidate power, by wiggling around constitutional safeguards while the emergency is in force. Leaders like Julius Caesar used this technique. More recently, Hungary’s Victor Orban has done the same.

In addition, emergency powers can, even in a real emergency, be used to excess or for additional nefarious purposes. We know about the internment of Japanese Canadians under the old War Measures Act. Then there is the case of Indira Gandhi’s 1975-77 India emergency during which her son Sanjay seized the moment of concentrated power and little oversight to institute a program of mass forced sterilization with millions of victims.

Emergency powers have also been used to circumvent legislative gridlock in crisis cascades. Interestingly, scholars and activists have recently called for emergency powers to be used this way to address the climate situation. But history suggests caution. In the Weimar period, Germany’s President repeatedly used Article 48 emergency powers this way to address the economic and political chaos of the 1920’s and 30’s. This ultimately undermined respect for the democratic process, and paved the way to authoritarian rule: in 1933, when parliament was dissolved and power concentrated in Hitler’s hands, overuse of Article 48 as a workaround meant such actions had come to seem normal.

Most of these abuses took place through emergency institutions that, like the EMA, lacked institutional safeguards. Safeguards can include objective, reviewable standards, such as a requirement that an emergency declaration be “reasonable.” Correlatively, government can be required to publicly give reasons why the declaration and any measures taken are necessary, with options in place in the event secrecy is required. In the Canadian context, reason giving around the necessity of specific measures may fruitfully employ an Oakes-informed framework. And with these elements of objectivity and account-giving in place, emergency law can facilitate or even require a combination of judicial and legislative oversight and accountability, as well as public accountability in the court of opinion.

Some might argue, and with good reason, that in some of these cases emergency abuse was just the death rattle of political systems already corrupted. And that is surely true. But sound emergency institutions can help preserve democratic political systems, and in the event that our democracy some day faces such threats, why leave the tools of their demise on the table?

Some might also argue that there is no need for such safeguards, because there is no historical track record of provincial premiers abuse of emergency power. Even were this true, though, why wait until it’s too late, should some future leader take up the invitation? Put the safeguards in place now.


Q: You argue for the EMA to be subject to the objective standard of reasonableness. How would this change the current operation of the Act and the consequences it might have?


A: Oversight and accountability are difficult without an element of objectivity. If the standard for declaring an emergency or issuing orders and measures is the Governor in Council’s subjective opinion, as it is in the EMA, what can be done about abuses of power? Including a reference to reasonable grounds to believe in necessity is a simple way to make emergency decisions — both declarations and measures taken — reviewable in court. This is not just for the courts, it is also much easier for the public to hold leaders to political account if government is required to present clear justifications, the reasonableness of which citizens can debate for themselves. Moreover, because leaders know their decisions will be reviewable, evidence suggests they self-police in advance, and take more care that their reasons for acting are good ones. In this sense, the threat of accountability is nearly as important as the accountability itself.

Some might argue that reviewability would make leaders hesitate. After all, it may be extremely difficult for people to inhabit, after the fact, the leader’s epistemic position at the time the decision is taken. Usually, we learn a lot in the meantime that, if known at the outset of an emergency, might have changed a leader’s calculus. It’s important for oversight bodies to avoid letting that post facto knowledge impact their judgment of whether the action was reasonable at the time. But in a real crisis, a leader will act in part because citizens will demand it. And given what’s at stake, the risk that we may later unfairly judge a leader seems less worrisome than the risk of allowing the Lt-Governor in Council to take vast unaccountable power whenever, in their opinion, they think they should.


Q: You have suggested that the Act should require near-immediate multi-party oversight of emergency measures. What are some possible ways to implement this?


A: In normal times, all parties in the legislature debate first. Then they decide, and the executive executes. But emergencies mean decisions are made rapidly, by the executive, not the legislature. For that reason, historically, emergency powers often eschewed debate. But the legislature can play an active role in emergency governance without impacting urgency. For example, emergency powers can invert decision and debate. The executive can act rapidly, but legislation can require their decisions to come up almost as rapidly for legislative debate, with the possibility that those decisions may be revoked. Knowing this oversight is coming means that leaders may make decisions more responsibly in the first place.

The federal Emergencies Act provides a good model here. Part IV of the Emergencies Act describes all the ways the legislative branch (Parliament) can revoke a declaration or measure. Emergency declarations and measures must be tabled with Parliament on the first sitting day, and debated the next day, and Parliament must sit within seven days if the House is adjourned or prorogued. The legislative branch can continually scrutinize and even revoke emergency measures and may at any time force a vote on a continued state of emergency. Furthermore, opposition parties are given an outsized role in this scrutiny to reduce the chances that the legislative checks function as a rubber stamp.

By inverting decision and debate — first decision, followed by near immediately debate — emergency powers can remain flexible and fast, while also ensuring continuous oversight.

Some might worry this will tie emergency action up or make it partisan when, for example, emergency measures are necessary for straightforward matters, like forest fires. But in such a case, a vote could be called quickly with the consent of the opposition, whereas in more complex situations, the oversight is there if it’s needed.

The problem is that right now, Alberta’s EMA provides no robust role for the legislative branch, no real check on the executive, no substantive form of oversight at all.


Q: Given the potential severity of future crises due to climate change and other factors, how do you see the role of the EMA evolving, and what additional reforms might be necessary to keep pace with these changes?


A: This is a tough question, because I don’t think we really know — yet — what we’re up against, how quickly things will change, and in which ways. Will the past be a guide to the future? Probably not in every respect. One thing we know for sure is that the provinces will be the locus of most climate disaster reaction. This is because most of the immediate impact of climate change — more frequent, more intense fires, floods, storms, tornadoes, heat waves, outages etc. — will fall under provincial jurisdiction. Alberta’s EMA, like every province and territory’s emergency laws, will almost certainly see a lot more use.

The other challenges that climate change might bring are more probabilistic at this point. But they may include:

To address these and other possibilities, we may need to get creative — and fast! Now is the time to turn our minds to how to safeguard the rule of law and democracy in challenging emergency circumstances like these. Here I mean every jurisdiction, provinces and territories and the federal government too. But in the meantime there is no excuse for leaving the dangerously sloppy Emergency Management Act unamended. It would require just a few tweaks to incorporate the best remedies we currently have — a standard of reasonableness, a requirement for reason giving, then multiple lines of accountability and oversight — so that the courts, the legislature (ensuring a real voice for the opposition), and the public can assess the government’s reasons.

After the Convoy: Freedom of Assembly and Section 2(c) of the Charter w/ Jamie Cameron

After the Convoy: The Concept of Necessity in Canada's Emergencies Act w/ Nomi Claire Lazar

Debrief: The Convoy, the Commission, and the Charter (with Cara Zwibel)

Q&A With Professor Leah West: The Emergencies Act and the "Freedom Convoy"

CCS Summer Student Tina Tai sat down with Professor Leah West (Assistant Professor of International Affairs, Carleton University) to discuss the various legal issues surrounding the Trudeau government’s use of the federal Emergencies Act in response to the “freedom convoy” protests in early 2022.

Q: Generally speaking, what is the Emergencies Act, and how does it work?

A: The Emergencies Act is significant in that it’s the only real federal emergency legislation that we have in Canada. It gives the federal government the power to create new rules in an emergency without having to go to Parliament to pass a new law.

Invoking the Emergencies Act allows the executive (branch of government) to create new rules and new offenses — and to use powers it normally wouldn’t have — without having to go to Parliament to pass legislation.

The federal Emergencies Act is unique because there are these four types of emergencies — public welfare, public order, international, and war emergencies — and it gives the federal government specific powers that are necessary for dealing with the emergency. A really good example is a public welfare emergency, like COVID. A pandemic is a public welfare emergency: it’s caused by a disease or outbreak, and for that you need different powers than you would for, say, the outbreak of a war.

Q: What reasons did the government give for invoking the Emergencies Act for the first time in Canadian history, and what type of emergency did it declare?

A: The government declared a public order emergency. An important thing to think about here is the way the Emergencies Act is structured. You can’t just have a public order emergency; you have to have a public order emergency that rises to the level of a national emergency. So, there are actually two separate thresholds.

For it to be a national emergency, you have to have an urgent and critical situation. That situation has to be of a temporary nature, and it has to do one of two things. It either seriously endangers the lives, health, or safety of Canadians — so here, you’re looking at something that provincial power just can’t handle, where you need the power of the federal government or of multiple provinces to deal with it — or it’s an urgent critical condition that seriously threatens the ability of the government to preserve the sovereignty, security, and territorial integrity of Canada. A third threshold is that it cannot be effectively dealt with under any other law of Canada.

In this case, the government said they were declaring a public order emergency on both criteria. The difficulty, though, is that “threats to the security of Canada” is not defined in the Emergencies Act. It’s defined in the Canadian Security Intelligence Service Act, and there are four different things that are captured there: espionage, foreign influenced activities, terrorism, and subversion.

In this case, the language used by the government, in their justification laid before Parliament, basically said that what gave rise to a national emergency was terrorism, or violent extremism. But did the emergency arise from that? Or did the emergency create an opportunity for that? The Act says the emergency has to arise from it, not just be something that can be leveraged by those who seek to hurt people or use violence for political ends. The really sticky legal question is, can we say that terrorism really gave rise to that public order emergency? Or was it a by-product of it?

Reflecting on this question, it might be that the Act needs to be transformed at some point down the road to reflect what really happened, because maybe we should create the opportunities for governmental action when peaceful protests are co-opted for violent ends. In such cases, the government should be able to take swift and decisive actions to reduce the security threat.

Q: How did the government use the powers that it unlocked through the Act? In other words, what specific measures did it take to address the disruption caused by the Freedom Convoy?

A: One of the key ones they used was the creation of a “no-go zone,” so they were able to create designate areas that people couldn’t go into — for example, around Parliament Hill. They also quickly deputized police officers from different jurisdictions so they could enforce provincial and municipal bylaws in Ottawa.

Another thing that was repeated was the need for tow-truck drivers. Under the Emergencies Act, for a public order emergency, you can compel people to perform services that they’re capable of performing. So, we saw tow-truck drivers working in Ottawa to clear trucks.

The other thing that doesn’t exist anywhere under provincial emergency legislation was the financial restrictions. They made it an offence to provide financial assistance to those supporting the protest. They also created new reporting obligations on financial institutions around cryptocurrency, and they were able to freeze the assets of certain individuals who were involved in the protests.

Q: The Act states that it can only be used if no other laws can be used to deal with the alleged emergency. In your opinion, are there other laws that could have been used to effectively deal with the Freedom Convoy and its associated activities?

A: Basic Criminal Code and bylaw. At every level of government, there were things that could have been done.

The province had the capacity to create no-go zones and we already had bylaw that made it an offence to park in the middle of the street. The Criminal Code could have been used. Other things like measures under the National Defense Act could potentially have been used but I think the idea of military in the streets lining up against protestors is not something anybody wanted to see.

So all kinds of stuff could have been done. At the end of the day though, it wasn’t. So, one has to wonder whether the interpretation of the Act includes not just asking whether there are laws that could be used, but what if they’re not being used? What if other levels of government refuse to use the authorities that they have? Then should the federal government have the power to step in?

The Act doesn’t seem to provide for that. The Act doesn’t seem to create opportunities when there are other laws that exist but aren’t being used effectively. And again, that might be something we want to look at going forward.

Q: Did the Freedom Convoy meet the threshold of a situation that “seriously endangers the lives, health or safety of Canadians” or that “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada”?

A: The first one is easier to meet. I certainly believe that the life, health, and safety of individuals in Ottawa and at the borders were threatened. The government talked about borders being closed and not being able to get medications into Canada, so I think you can make the argument that that was met. The other one is harder.

Can we really say the sovereignty and territorial integrity of Canada was threatened by the convoy and these blockages? I don’t think we ever saw the government lose a grip on its sovereignty.

Just because members of the convoy had desires to topple the government doesn’t mean their actions necessarily actually threatened the sovereignty of Canada.  I think the way the government framed it is that the economic impact and the impact on trade relationships were so damaged that it threatened Canada’s security and sovereignty, and that seems to be a bit of a stretch to me.

Q: Even though this is the first time the Act has been invoked, is there any jurisprudence that can tell us whether this invocation was legally valid?

A: No. The first question for a court would be whether or not even adjudicating is necessary now, given that we have both a preliminary review committee and an independent commission of inquiry looking at these issues. The court would be tasked with reviewing the reasonableness of the Governor-in-Council’s decision, and the reasonableness of their reasonable belief that the criteria for invocation of the Act were met (the standard for both would be pretty deferential).

The bigger issue, in terms of government accountability, is whether or not what Canadians were told about the need for the invocation of the Act really did line up with the facts, and whether or not the government really believed the legal threshold was met, or whether inventive legal reasoning was used to get the government to a point where it could invoke the Act.

It could be that, because the Act was written 30 years ago, it’s no longer fit for purpose, and the government had to get inventive to use the tool that it wanted to use. But that is problematic from the rule of law perspective.

Q: Contrary to common misconceptions, the Charter of Rights still applies when the Emergencies Act has been invoked. In your opinion, did the measures adopted by the government infringe any Charter rights? And, more importantly, how might these infringements be justified?

A: Certainly, there were limits on Charter rights, but whether or not they were justified is definitely the more important question. You’re talking about restricting people’s freedom of movement and freezing their bank accounts — that certainly goes to their security and liberty rights. We also prevented people from protesting and gathering with one another to advance their political beliefs — these are all infringements on freedom of expression.

As for whether or not the limits were reasonable: I think if we truly had a national emergency, where people’s lives were threatened, and Canada’s security was threatened, then the limits imposed seem pretty reasonable. They seem minimally impairing (to use the language of the Oakes test).

If we take the government’s word for it, then, the limits seem reasonable, but so much of this is fact dependant. The facts have been filtered through anecdotal incidents from people on the ground or news reporting.

I don’t know what the security risks were. There are lots of security risks that, in the moment, aren’t revealed. I don’t think the government has given us enough facts yet, and I’m waiting for an independent actor who has access to those facts to make that determination.

Basically, the Emergencies Act is like a “do not break glass unless in an emergency,” and now that the glass is broken I’m worried about people reaching in too easily to use it. Applying the Act has shown us where the Act itself is weak, so we now really need to revisit it and see if it’s still fit for purpose.

Emergencies Act

What is the Emergencies Act?

The Emergencies Act is a piece of legislation that gives Canada’s federal government power to take “special temporary measures to ensure safety and security during national emergencies.”[1] The key requirement to invoke this Act is a national emergency — the “special temporary measures”[2] can only be taken when there is a transient emergency that “seriously endangers the health, lives or safety of Canadians” or seriously threatens the government’s “ability … to preserve the sovereignty” of Canada.[3]

The History of the Act

The Emergencies Act replaced its predecessor, the War Measures Act, in 1988. The War Measures Act was created during World War I to give Parliament broad powers to ensure national security in war times.[4] It allowed the government to severely restrict civil liberties, including by censoring communications, and by arresting, detaining, and deporting people without trial.[5] During the Second World War, for example, over 20,000 Japanese Canadians were interned and stripped of their property under the authority of the War Measures Act (many of these people were also deported).[6]

The War Measures Act was then invoked again during the October Crisis, when the Front de Libération du Québec (FLQ) kidnapped the British trade commissioner James Cross and Quebec’s labour minister, Pierre Laporte.[7] Invoking the Act allowed the government to criminalize membership in the FLQ, and allowed police to detain people without charge.[8]

Although many Canadians agreed with this invocation of the Act, some believed the suspension of civil liberties was excessive.[9] As a result of these concerns, the War Measures Act was repealed in 1988 and the Emergencies Act was passed as a replacement.[10] Crucially, under the Emergencies Act, the Cabinet could no longer make decisions on its own, but would need to have its orders reviewed by Parliament.[11] Furthermore, government actions taken under the Act must still comply with the Charter of Rights and Freedoms and the Canadian Bill of Rights.[12]

What Triggers the Emergencies Act?

According to the Emergencies Act, there are four types of emergency that can constitute a “national emergency” sufficient to invoke the Act.[13] They are:

  1. A public welfare emergency
  2. A public order emergency
  3. An international emergency
  4. A war emergency

Under the Act, a “national emergency” is defined as follows:

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.[14]

Section 3 of the Emergencies Act makes it clear that a national emergency can only be declared when regular, existing laws are insufficient for addressing the crisis at hand.[15]

Types of Emergency

Type 1: Public Welfare Emergencies

Public welfare emergencies can be caused by natural disasters, such as floods, drought, and earthquakes.[16] They can also be caused by diseases — whether in humans, animals, or plants[17] — and by accidents or pollution.[18] To constitute such an emergency, the situation must pose a danger to life or property, or cause “social disruption or a breakdown in the flow of essential goods, services or resources.”[19]

A public welfare emergency declaration ends after 90 days.[20] However, the declaration can be revoked before the end of this time limit, or it can be extended if the government “believes, on reasonable grounds, that the emergency will continue to exist” beyond the 90-day limit.[21] These rules on revocation and extension also apply to the other types of emergency listed under the Act.

During a public welfare emergency, the government can make orders and regulations related to travel, evacuation, removal of personal property, the use of property, distribution of goods and essential services, and more.[22]

Type 2: Public Order Emergencies

A public order emergency is defined as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”[23] The Emergencies Act points to the definition of “threats to the security of Canada” found in the Canadian Security Intelligence Service Act. In this Act, these threats include espionage; activities with foreign influence that involve threats to people; activities involving the threat or use of violence to achieve a political, religious, or ideological goal within Canada or a foreign state; and illegal activity intended to overthrow Canada’s government.[24]

A declaration of public order emergency automatically ends after 30 days unless it is revoked early or extended (see above).[25] During a public order emergency, the government can regulate or prohibit 1) public assemblies that can be expected to “breach the peace,” 2) travel within any specified area, and 3) the use of specified property.[26] It can also assume control of public utilities and services, and can impose fines or prison sentences for breaching any order or regulation made under the powers granted by the Act.[27]

Type 3: International Emergencies

The Emergencies Act defines an “international emergency” as “an emergency involving Canada and one or more other countries that arises from acts of intimidation or coercion or the real or imminent use of serious force or violence and that is so serious as to be a national emergency.”[28]

By default, a declaration of an international emergency expires after 60 days (unless revoked early or extended).[29] An international emergency gives the government broad authority to make orders and regulations. These can involve the regulation of industries, control of property and services, authorization of searches and seizures, and the direction of people to provide essential services.[30] The government can also order the deportation of people who are not Canadian citizens, permanent residents, or protected persons under subsection 95(2) of the Immigration and Refugee Protection Act.[31]

Type 4: War Emergencies

A war emergency, finally, is defined by the Emergencies Act as a situation in which a “war or armed conflict, real or imminent, involving Canada or any of its allies … is so serious as to be a national emergency.”[32] A war emergency lasts the longest out of the four types of national emergency, ending in 120 days (although the declaration can once again be revoked early or extended).[33] A war emergency gives the government power to make any orders and regulations that are necessary for dealing with the emergency.[34] An exception is that the government cannot make an order conscripting people to serve in the Canadian Armed Forces.[35]


[1] Emergencies Act, RSC 1985, c 22, (4th Supp) [Emergencies Act].

[2] Ibid at s 6.

[3] Ibid at s 3.

[4] Denis Smith, War Measures Act (July 25, 2013), online: Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/war-measures-act>.

[5] Ibid.

[6] Ibid.

[7] Ibid.

[8] Andrew McIntosh & Celine Cooper, October Crisis (August 13, 2013), online: Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/october-crisis>.

[9] Ibid.

[10] Denis Smith, Richard Foot, Eli Yarhi & Andrew McIntosh, Emergencies Act (March 18, 2020), online: Canadian Encyclopedia <https://www.thecanadianencyclopedia.ca/en/article/emergencies-act>.

[11] Ibid.

[12] Ibid.

[13] Emergencies Act, supra note 1.

[14] Ibid, s 3.

[15] Ibid, s 3.

[16] Ibid, s 5(a).

[17] Ibid, s 5(b).

[18] Ibid, s 5(c).

[19] Ibid, s 5.

[20] Ibid, s 7(2).

[21] Ibid, ss 10-12.

[22] Ibid, s 8(1).

[23] Ibid, s 16.

[24] Canadian Security Intelligence Service Act, RSC 1985 c C-23, s 2.

[25] Emergencies Act, supra note 1, s 18(2).

[26] Ibid, s 19(1)(a).

[27] Ibid, ss 19(1)(b)-(e).

[28] Ibid, s 27.

[29] Ibid, s 29(2).

[30] Ibid, ss 30(1)(a), 30(1)(b), 30(1)(e).

[31] Ibid, ss 30(1)(d), 30(1)(g), 30(1)(h).

[32] Ibid, s 37.

[33] Ibid, s 39(2).

[34] Ibid, s 40(1).

[35] Ibid, s 40(2).