Page - 109 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

109The Federal Emergencies Act: A Hollow Promise in the Face of COVID-19? 3) Protecting  long-term  care  homes. Some provinces—particularly in Ontario and Quebec—appear to have failed to sufficiently test workers and residents in long-term care homes or to pro- vide workers with protective gear. We explore the potential for the federal government to invoke the Emergencies  Act to ensure Canada-wide standards. Scenario 1: Can the Federal Government Establish and Enforce a Lockdown? Although it is possible to implement lockdowns on a province-by-prov- ince basis, using provincial emergency measures laws, a key advan- tage of a national lockdown order is that it would avoid the confusion of conflicting messages from the municipal, provincial, and federal governments. Such benefits must be weighed against the costs of bold federal action—notably the intrusion into provincial jurisdiction—and the possibility a province-by-province approach may be more agile and responsive to local needs than a blanket national response. Having declared a public welfare emergency, the federal gov- ernment can issue one or more specific orders enumerated under the section 8 of the Emergencies  Act, which empowers it to issue orders with respect to “the regulation or prohibition of travel to, from or within any specified area, where necessary for the protection of the health or safety of individuals.” Prima facie, this would seem to enable a lockdown. The next step is to gauge whether such a lockdown order could survive application of the Act’s limitation clause: 4. Nothing in this Act shall be construed or applied so as to con- fer on the Governor in Council the power to make orders or regulations… (b) providing for the detention, imprisonment or internment of Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration  and  Refugee  Protection Act on the basis of race, national or ethnic origin, colour, religion, sex, age or mental or physical  disability  (emphasis added) This strict limitation clause reflects that the Emergencies  Act  replaced the War  Measures  Act—legislation that gained infamy when used to forcibly intern Japanese Canadians during the Second World War and again with Pierre Elliot Trudeau’s heavy-handed response to