Page - 117 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

117Resisting the Siren’s Call: Emergency Powers, Federalism, and Public Policy new social programs at a cost of hundreds of billions of dollars.1 And yet, unlike the provinces, the federal government has not declared a national emergency. Nor has it triggered the federal Emergencies  Act.2 To some, including Colleen M. Flood and Bryan Thomas in Chapter A-6 of this volume, that suggests fundamental flaws in the Emergencies  Act.3 Others have called out the government for shirking its duty.4 There are demands for it to do more. In this chapter, I take a somewhat different approach, focusing on the specific ability to enact laws under the emergency branch of the “peace, order, and good government” power (POGG).5 Examining three policy areas, I examine the benefits and drawbacks of possible emergency legislation. While such laws might provide a measure of assistance, they come with certain risks—risks that are heightened during a health pandemic requiring extensive inter-governmental cooperation.6 The POGG Emergency Power The Constitution  Act,  1867  enumerates federal and provincial powers. Traditionally, provinces have jealously guarded their powers against federal encroachment. Early cases circumscribed federal authority, under s. 91, to “make laws for the peace, order and good government of Canada.”7 For years, national emergencies were thought to be the 1. Government of Canada, Canada’s  Economic  Response  to  COVID-19  (Ottawa: Government of Canada, 2020), online:  Government  of  Canada <https://www.can- ada.ca/en/department-finance/economic-response-plan.html>. 2. Emergencies  Act, RSC, 1985, c 22 (4th Supp). 3. See Colleen M Flood & Bryan Thomas, this volume, Chapter A-6; and “Liberty v. Security in a Pandemic”, TVO  The  Agenda  (2 April 2020), online: <https:// www.tvo.org/video/liberty-vs-security-in-a-pandemic?utm_source=TVO&utm_ campaign=2031b263c3-EMAIL_CAMPAIGN_1_17_2019_10_56_COPY_ 01&utm_medium=email&utm_term=0_eadf6a4c78-2031b263c3- 24183137>. 4. Christopher Guly, “Is it Time to Invoke the Federal Emergencies Act?”, The Tyee (27 March 2020), online: <https://thetyee.ca/News/2020/03/27/Time-For- Emergencies-Act/>. 5. Constitution  Act,  1867  (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5 [Constitution  Act,  1867]. The POGG power has three “branches”: new matters, national concern, and emergencies. While both national concern and emergency involve incursions into provincial jurisdiction, the emergency branch has the greatest relevance to a global health pandemic. 6. See David Robitaille, this volume, Chapter A-4. 7. Constitution  Act,  1867, supra note 5.