THE THIN WHITE LINE: the history of a future avian influenza pandemic

Chapter 3: Pandemic

Government claims sweeping powers, deploys Army in cities

    The Great Panic provided provincial governments the political will to take additional steps to promote social distancing, including scheduled shutdowns of sports clubs and gyms, houses of worship, restaurants, bars and retail stores.
    A historical precedent existed for these measures in Canada. Provincial governments, for example, took very strong measures during the Spanish Flu pandemic of 1918-19. In Alberta, all schools, churches and theaters closed down. The government banned public meetings, required people to wear masks in public, quarantined entire towns.
    These steps contributed to a reduction in the number of peak cases across the country, but did little, this late in the epidemic, to restore public confidence, while presenting a trade-off in additional dislocation and disruption.
    While government had to use strong powers of persuasion to get some businesses to shut down, it also had to persuade other businesses to continue operating. RHAs struck deals with Chambers of Commerce to ensure that essential retail operations——such as pharmacies, grocery stores and gas stations——stayed open. These businesses really had no choice, however. If they didn’t stay open, it is likely that government would have seized and begun operating their assets.
    As provinces became overwhelmed during the Great Panic, the scale of the disaster required a strong federal response——including use of the Canadian Forces to aid the civil power.

    In 2012, the Canadian Forces included 75,000 regulars and 36,500 reservists, with approximately 3,000 Canadian troops stationed in missions abroad——2,300 in Afghanistan and small forces attached to missions in other countries.(59)
    Under the National Defense Act, the attorney general of a province can request aid from the Canadian Forces in response to a riot or disturbance of the peace, either occurring or considered likely to occur. In response to the request, the Chief of the Defense Staff can call out a part of the Canadian Forces considered sufficient to address the threat. Officers and non-commissioned members of the Forces are immediately granted the powers and duties of constables.
    The provinces, however, were slow to request federal troops during the violence of the Great Panic.
    At the time, they had less interest in using soldiers as police and more as an efficient infrastructure that could be used to ensure continuous distribution of essential supplies and services in an atmosphere of social disruption. They wanted troops to protect warehouses, hospitals, supermarkets, pharmacies and supply shipments, and they wanted these forces firmly under civilian control. In some cases, they wanted soldiers to help shut down businesses scheduled to close. For the federal government to use the Canadian Forces this way, the Defense Act would not be sufficient.
    Opposition to using the Canadian Forces in response to a domestic emergency, however, goes back to the Fathers of the Confederation, who created a restrictive separation of emergency powers between federal and provincial governments. The Constitution gives the federal government control of the Canadian Forces and, as a counter to this federal power, provincial governments responsibility for maintaining public safety. This means that during a disaster, civilian authorities responsible for maintaining public safety during a crisis cannot easily call upon the Canadian Forces for support. It also means the use of the military is always a last resort.(60)
    Federal policy for emergencies basically states that if there is an emergency, it is the individual’s responsibility to deal with it. If the individual doesn’t have the resources or knowledge to do so, then it becomes the local government’s responsibility, then the provincial or territorial government’s, then the federal government’s. During the Pandemic, emergency response started at the municipal government level and the provincial health unit level. Local governments were quickly overwhelmed, however, and required support from the province, which in turn required support from the federal government.
    The federal government would need to invoke the Emergencies Act. The Act, which gained Royal Assent and repealed the War Measures Act in 1988, sets procedures by which public welfare, public order, international and war emergencies are proclaimed, which then grant the federal government strong powers it can use to respond. The War Measures Act, which Parliament adopted in 1914 shortly after World War I started, allowed the Governor in Council to make whatever orders necessary to maintain security, order and welfare in Canada. It was last invoked by Prime Minister Pierre Trudeau in 1970 in response to the FLQ terrorist campaign in Quebec; the Canadian Forces were used to protect public figures and broadly arrested 500 suspects in two prominent kidnappings. The Emergencies Act replaced the War Powers Act to provide strong but limited powers with a new legal framework, including parliamentary review.
    On November 10, the Governor in Council declared a Public Welfare Emergency——detection of a threat, such as disease, which presents a danger to life, property, social disruption and the flow of essential goods and services——and invoked sweeping powers granted by the Emergencies Act, including:
    Travel regulations and bans, evacuation of people and private property, requisition and use of private property, provision of essential services, distribution of essential goods, creating emergency shelters and hospitals, and making compensation for the use of requisitioned property, goods and services.
    The Governor in Council consists of the Cabinet acting in a legal capacity——formally, the Governor General acting on the advice of the Cabinet. The same day, it declared an International Emergency——an emergency involving Canada and other countries facing the real or imminent use of force or violence so threatening as to be considered a national emergency—and invoked additional powers:
    Control and regulation of specified industries or services and financial activities in the country, responses to black market practices (including search and entry without warrant), designating and securing protected places, and authorizing spending in excess of Parliamentary limits.
    In an emergency address to Parliament, Prime Minister Kirk Goodall cited specific major threats to the nation justifying a declaration of emergency. He said the provincial Lieutenant Governors in Council had been consulted and that some of the provinces had requested special assistance, including deployment of federal troops. He added the Privy Council had issued an order-in-council creating a mandatory call-up of the Militia (Land Forces Reserves). Reservists have military training and serve part-time but are otherwise part- or full-time workers, business people, academics, civil servants and students.
    Usually such call-ups are voluntary; a full mandatory call-up had not occurred in Canada since 1939. The seriousness of this was not lost on Parliament.
    The same day, both houses of Parliament tabled a motion of confirmation of the emergency declarations, which passed. The Public Welfare Emergency powers would expire in 90 days, while the International Emergency powers would expire in 60 days, unless continued by additional parliamentary authorization.
    Within just a few days, however, 23 members of one opposition party in the House of Commons, fearing the federal government being given too much power and regarding the grounds for the International Emergency declaration dubious, signed a motion to revoke the declarations of emergency, which required another round of debate and voting within six days. The provincial Public Health Acts were bad enough, they said, giving governments the power to conscript people and force them to work dangerous jobs, close down businesses and seize private property for public use. Did they really want the military or Royal Canadian Mounted Police breaking into homes looking for black marketers? Did they really want the federal government taking over power plants and controlling prices? Did they really want Reservists squaring off with C8 assault rifles against mobs of unarmed citizens? Did they really want tanks patrolling Canadian streets?
    Despite these concerns, Parliament voted again to confirm the declarations.

By the end of the epidemic, the National Defense Act turned soldiers into policemen and the Emergencies Act and Public Health Acts enabled government to seize private property, enter private property without a warrant, conscript workers, ban public gatherings, shut down businesses and deny other rights Canadians take for granted for the duration of the epidemic. Many Canadians accepted this at the time, while some, like the author of this graffiti on a wall in Toronto, did not. Government’s acquisition of sweeping powers, abuses of power that later came to light and its perceived powerlessness to halt the epidemic would ultimately lead to an anti-government backlash as the epidemic came to an end.(61)

    But the legislative process wasn’t finished. As the federal government began acting on its powers, it created orders and regulations to do so, which also had to be approved by Parliament. Here, Goodall’s party, which headed a minority government, worried it would receive even more opposition that could derail implementation of the government’s new powers. Goodall gambled and attached a confidence vote to the confirmation vote. If the House of Commons had returned a vote of no confidence, the minority government would have fallen, the Commons dissolved by the Governor General, and new elections scheduled. It was a legislative showdown with the country’s stability at stake.
    Parliament voted to confirm all orders and regulations.
    By November 13, the federal government began deploying the Land Forces in Canadian cities.