Sweeping Emergency Measures ‘A Recipe for Abuses of Power,’ Says Legal Expert

June 16, 2020 Updated: June 16, 2020

A controversial bill that has been shelved by the New Brunswick government was cause for legitimate concern due to the excessive state power it would facilitate, according to constitutional experts.

“Bill 49 furnished cabinet with legislating power to change, repeal, or make new laws and to do so without the necessary oversight that the legislature provides,” James Kitchen, a lawyer at the Justice Centre for Constitutional Freedoms, said in an interview.

“The cabinet’s law-making ability is only limited by how long the cabinet decides to renew a declared state of emergency.”

New Brunswick Premier Blaine Higgs announced on June 15 that he would scrap Bill 49, a piece of legislation proposed last week that sparked controversy over its intent to expand the powers of the police and provincial cabinet during an emergency.

The legislation would have allowed cabinet to suspend laws without an immediate vote in the legislature and give police the authority to stop citizens without a reason.

Higgs cited the recent deaths of two Indigenous people at the hands of police as the reason why Bill 49 was shelved. Responding to the initial outcry over the bill, he maintained the point of the legislation was to clarify the powers that cabinet and law enforcement could use.

In Kitchen’s analysis of the bill, however, he believes it would have been a dire violation of the division of powers that uphold the democratic system.

“At the core of New Brunswick’s democratic system of governance, like all free and democratic societies, is the division of powers between the three branches of legislative, executive, and judicial,” he says.

“There is a very important reason that the legislature—and not cabinet, as the executive—exclusively possess legislative power,” he explains.

“It took hundreds of years of blood, sweat, and tears to figure out that such division of powers is required to achieve it. Centralizing the power of the legislature with cabinet disregards that hard-learned lesson and is a recipe for abuses of power.”

The controversy over the legislation ties into the broader debate about the use of emergency powers by governments during a time of crisis.

In the early days of the COVID-19 crisis, the federal government came under fire for proposed new spending powers that would have enabled it to spend, borrow, and tax Canadians unilaterally for 21 months without parliamentary approval. The Liberals dropped the proposal after the Opposition denounced it as an attempt to “give themselves unprecedented new powers,” as Conservative Leader Andrew Scheer put it.

A revised version of the legislation was passed on March 25, which will be in effect until September.

The government’s suspension of regular sittings has also come in for criticism due to its effect of limiting parliamentary debate and oversight on measures implemented since the pandemic.

In a new study for the Macdonald-Laurier Institute, political scientist Christian Leuprecht says that although the government consulted the House of Commons in its attempt to legitimize a virtual substitute, its actions have served to stifle Parliament and “prioritizes governance over representation.”

“Canada’s democracy thrives on a continuous parliamentary audit of the judgment of both the executive and the bureaucracy,” he writes. “Canadians have the democratic and constitutional right to scrutinize the Canadian government’s handling of the COVID-19 pandemic.”

To constitutionalists, proposals like Bill 49 and moves that limit parliamentary debate can, if left unrestrained, uproot aspects of the constitutional order and the democratic process.

“Whether emergency orders pass constitutional muster depends on things like their duration and whether they are properly tailored so that they go no farther than necessary,” Kerri Froc, a law professor at the University of New Brunswick, tells the Epoch Times.

“We’ve had experience in Canada with legislation suspending rights and ordinary operation of laws, as was the case with the War Measures Act and the FLQ crisis. … The bottom line is that the constitution is what ensures that the state does not operate unrestrained.”

Kitchen contends that the expansion of police powers that would have been enabled by Bill 49 could lead to something resembling a police state, while undermining the rule of law and Charter rights.

“Bill 49 also would have given powers to law enforcement to stop and investigate individuals, including to require documentation, to determine if they are adhering to the law—all without any reason or evidence of breaking the law,” he says.

“The possession of such powers by the police, which are ripe for abuse, are alien to a free society and reminiscent of communist-ruled nations. The exercise of such powers by police will result in violations of constitutionally protected privacy rights, and likely several other rights protected by the Canadian Charter of Rights and Freedoms.”