The Problem of Threshold in the Emergencies Act – A Triple Incapacity Model

Abstract

This paper argues that the framing of the threshold for declaring a national emergency in section 3 of Canada’s Emergencies Act reproduces an unhelpful anxiety that is commonplace among theorists and practitioners of emergency powers — namely: the concern that unexpected catastrophic events require exceptional, ungovernable powers to handle them. Section 3 defines the thresholds for a national emergency within a triple-incapacity framework: incapacity on a provincial level (or) incapacity on a federal level (and) legal incapacity. On the face of it, this framework creates a very high threshold for the declaration of emergencies, but it also reproduces a language of exception that orients officials and the public towards the very extreme case in which competence is lost. This is an incongruous framing – it is responsible for ambiguity and endless quarrels about whether there is “no other law” and “no other capacity”, evading the purpose of emergency government which should be focused on capacities: the ability to construct and reconstruct — regularized, coordinated, multifaceted, multijurisdictional emergency management capabilities.