Page - 108 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE108 employ under a national lockdown, even if they have not used them uniformly.9 Skeptics also note that any rules set by the federal govern- ment may require provincial cooperation for their implementation.10 Whether such cooperation would be forthcoming is an open question. Also, of course, it is not clear that the federal government would do a better job than any particular province. Invoking the Emergencies  Act  would constitute an exercise of executive power (an order of the Governor in Council), and as such the legislation contains several important checks and balances, including the requirement of consultation with affected provinces and a review by Parliament with seven sitting days.11 Reflecting the importance of division of powers in the Canadian federation, the Act empowers the federal government to respond to urgent and critical yet temporary situations that endanger Canadians at a scale and scope that exceeds the capacity or authority of the provinces to deal with, and that cannot be dealt with under any other law of Canada.12 We contemplate three situations that arguably fall within these parameters: 1) A Canada-wide lockdown. Following the example of over 100 other jurisdictions, such as Italy, the U.K., and New Zealand, the federal government may wish to enforce lockdown orders for all of Canada (or for a province or provinces that have not been able to sufficiently control the outbreak), mandating that people stay in their homes except for essential travel (grocer- ies, hospital visits, essential work). 2) Increased  testing  and  tracing. Most commentators agree that a massive expansion of testing and contact tracing is needed before physical distancing restrictions can be lifted. We explore whether the federal government could declare a national emergency to attend to this problem.13 9. John Paul Tasker, “The ‘Measure of Last Resort’: What Is the Emergencies  Act  and What Does it Do?”, CBC News (23 March 2020), online: <https://www.cbc.ca/ news/politics/trudeau-emergencies-act-premier-1.5507205>. 10. Hanna Jackson, “Coronavirus: Should Canada Restrict Travel Between Provinces, Territories?”,  Global  News (March 23, 2020), online: <https://global- news.ca/news/6717323/coroanvirus-travel-between-provinces/>. 11. Emergencies  Act, supra note 6 at s 58(1). 12. Emergencies  Act,  supra note 6 at s 3. 13. World Health Organization, “WHO Director-General’s Opening Remarks at the Media Briefing on COVID-19”, World  Health  Organization (16 March 2020), online: <https://www.who.int/dg/speeches/detail/who-director-general-s-opening- remarks-at-the-media-briefing-on-covid-19---16-march-2020>.