ANALYSIS: Expect Ottawa to declare national COVID-19 emergency only when premiers want one

Time and again over the last week, at his now-daily press conferences, Prime Minister Justin Trudeau has been asked when he will declare a national emergency and, in so doing, give the federal government powers it does not presently have to respond to the novel coronavirus crisis.

His answer, every time, has been the same: nothing is off the table. Ottawa is considering all options. The federal cabinet will take any step it deems necessary to respond to the crisis.

But, in fact, those clamouring for the federal Emergencies Act to be proclaimed may be missing the point that, with Nova Scotia declaring an emergency on Sunday, every single province has now proclaimed its own version of the Emergencies Act and, in doing so, every province now has arguably more sweeping powers than Ottawa does to respond to the crisis.

“We are a federal system of government, and Canada is one of the most decentralized federations in the world, which means that the provinces have powers that are almost the powers held by sovereign countries in very practical terms,” said former Quebec premier Jean Charest in a podcast published Friday by the law firm McCarthy Tetrault, where he is a senior adviser.

“You will see different approaches in different provinces, but it will depend on what the needs are and what the situation is, which is fine.”

Indeed, many are.

Over the weekend, for example, Ontario Premier Doug Ford’s cabinet signed off on an order, exercised under Ontario’s Emergency Management Act, suspending the collective agreements of nurses and other health-care workers. That allows hospital administrators and health authorities to hire or reassign staff, cancel vacations and so on without regard to, for example, waiting periods prescribed in a collective agreement.

Quebec’s Premier François Legault invoked powers under his province’s version of a similar act to order that all shopping malls in the province be closed.

And if those or any other province believe that harsher measures must be taken to control the spread of COVID-19, they are free to literally do anything they legally want, so long as it can be reasonably justified as part of the crisis response.

By contrast, there is no such “blank cheque” clause in the federal Emergencies Act. Instead, the federal government, should it proclaim a national emergency, is confined to nine specific, though important, kinds of actions it can take. (They are all listed in Section 8 of the act. ) And all of those actions overlap or duplicate powers that have already been invoked by every province.

In other words, there is no power in the federal Emergencies Act that provinces do not already have. Ottawa is not “holding back” any authority that premiers do not already possess.

In fact, it cannot be stressed enough how important the provinces are to this crisis response.

Provinces have the legal authority to compel individuals and businesses to do just about anything. And, it should be noted, provinces have police officers to enforce their orders. The federal government does not because the federal Emergencies Act prohibits Ottawa from assuming control over any municipal or provincial police force, including the RCMP, where it provides policing services for a province or municipality.

The key role of the federal government is to lead when it comes to co-ordination. Indeed, that is one of the top items on the agenda for a conference call Trudeau is having with the premiers on Monday evening.

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