Page - 115 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

CHAPTER A-7 Resisting the Siren’s Call: Emergency Powers, Federalism, and Public Policy Carissima Mathen* Abstract Virtually everyone in Canada would describe the COVID-19 pan- demic as an emergency. The federal government’s decisions—to close borders and order Canadians into quarantine—suggest that it shares this view. Yet it has neither declared an emergency nor triggered the federal Emergencies  Act. The lack of such action has been criticized. At the same time, there has been less focus on the emergency pow- ers available to Parliament under the “peace, order and good gov- ernment” clause in s. 91 of the Constitution  Act  1867. In this chapter, I explore three demands that would require emergency branch legis- lation: regulating long-term care; providing relief to persons under residential and commercial tenancies; and instituting nation-wide testing. Examining the emergency branch’s benefits and drawbacks, I argue that emergency powers must be approached with continual caution, with due appreciation for the operational and political com- plexities inherent in a federal state. While a national, “top-down” approach may be effective in some situations, in others it is preferable to encourage regional responses and inter-governmental cooperation. * Professor, Faculty of Law, University of Ottawa.