What's 'Necessary' Under the Emergencies Act?

Abstract

In most jurisdictions, any claim to emergency power must be necessary. But necessity is an ambiguous concept which has historically facilitated abuse. Indeed in the Canadian context, though necessity is a key threshold requirement in the Emergencies Act, it remains a black box, constituting a worrying gap in that Act’s robust framework for accountability and oversight. This paper develops a set of heuristic tools to clarify and rigorously assess claims of necessity, providing a structure for a government’s reason-giving around emergency declarations and measures. Because such reason-giving is critical to the rule of law in a state of emergency I conclude by advocating, in the Canadian context, an amendment to section 61 of the Act: When Government tables measures with Parliament or the Parliamentary Review Committee, they should explicitly state why an order or measure is necessary.