Page - 118 - in VULNERABLE - The Law, Policy and Ethics of COVID-19

VULNERABLE118 only circumstance in which POGG could be used.8 Even as that posi- tion softened, the judicial approach remained cautious.9 The emergency power is legislative. Parliament, not the Prime Minister or Cabinet, decides whether an emergency exists and what the response should be. Obviously, legislation requires more time than executive action. The government must negotiate with differ- ent parties (especially when it is in a minority), and ensure passage through the Commons and the Senate.10 A number of COVID-related laws have passed extraordinary swiftly,11 but alacrity is hardly a given. The emergency branch shelters laws that cannot be subsumed within other federal subjects. Because it subverts the ordinary divi- sion of powers, courts have long insisted that emergency branch use must be temporary.12 While such laws can be maintained for a time following the crisis, they must have an endpoint. Ideally, Parliament should invoke the power expressly. At the very least, there should be evidence that Parliament apprehended an emergency when it passed the law.13 Emergency legislation is not shielded from judicial review.14 Courts may be asked whether Parliament apprehended a particular situation as an emergency and whether the legislation was intended 8. AGAC  (Ont)  v  AG  (Can)  (Local Prohibition) [1896] 348; 5 Cart BNA 295 (PC). 9. Fort Frances Pulp & Power Co Ltd v Manitoba Free Press Co Ltd, [1923] 3 DLR 629, [1923] AC 695. 10. For a discussion of the Senate of Canada’s role during the pandemic, see Vanessa MacDonnell, this volume, Chapter B-1. 11. COVID-19  Emergency  Response  Act,  No  2,  SC 2020, c 6 (introduced and assented to 11 April 2020); Canada  Emergency  Student  Benefit  Act,  SC 2020, c 7 (first read- ing 29 April 2020, assented to 1 May 2020). 12. R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401 at 431–432, 1 DLR (4th) 161; Re: Anti-Inflation  Act, [1976] 2 SCR 373 at 378, 68 DLR (3d) 452 [Re  Anti-Inflation]. 13. While there have been occasional exceptions to the demand for express articula- tion, at the very least a reviewing court requires some evidence that Parliament apprehended an emergency at the time that it passed the relevant legislation: Re  Anti-Inflation, ibid; Christopher Nardi, “Why Would He Pick a Fight with Us? COVID-19 Raises Tensions Between Trudeau Government and Quebec”, National Post (8 May 2020), online: <https://nationalpost.com/news/politics/ why-would-he-pick-a-fight-with-us-covid-19-raises-tensions-between-trudeau- government-and-quebec>. 14. For a provincial example, see Sprague  v  Her  Majesty  the  Queen  in  right  of  Ontario, 2020 ONSC 2335. See, from New Zealand, Christiansen  v  DG  (Health), [2020] NZHC 887, online (pdf): Courts of New Zealand <https://courtsofnz.govt.nz/assets/ cases/Christiansen-v-The-Director-General-of-Health-Reasons-NZHC-887.pdf>.