Federalism, Disaster Planning Standards and Canadian Charter Rights

Why are Legislative Standards Important?

Legislative standards in EM are important as they outline ways in which FPT and ultimately municipal governments will achieve the goal of reducing their local risk to becoming more disaster-resilient. Llosa and Zodrow (2011) describe how specific and binding legislation is necessary to implement effective DRR strategies. Failure to legislate desired outcomes and relying on suggested goals leads to a lack of implementation due to governments’ various budgetary and political goals. Raikes et al. (2021) describe a current underlying separation of economic, social and political policies that limit effective DRR strategies. Llosa and Zodrow’s (2011) United Nations research also proposes how effective EM legislation leads to the protection of life, property and the environment. Further, set standards would allow more transparency into what the shared responsibility of EM in Canada truly means for governments, businesses and private citizens. This clarity is important as vague legislation leads to questions regarding who is responsible for different parts of DRR and preparedness. Stacy (2018) notes many government EM plans are not publicly accessible, which “raises questions about the efficacy of these plans in addition to deeper questions about their legal and democratic authority,” (p. 868–869). They and the SFDRR (2015) further recommend legislative standards be applied from a vulnerable person’s perspective in order to legislate a focus on protecting all people in our nation. In general, standardized DRR legislation could limit the occurrence of future problems. Numerous recent Canadian examples of problematic DRR strategies are available. For instance, after the 2016 Fort McMurray wildfires and flooding in Alberta, Canada, residents living in known floodplains rebuilt in the same locations despite provincial recommendations (Bosomworth et al., 2017; Stacey, 2018). Moreover, after these events, no efforts were made to amend local or provincial building bylaws or codes to rebuild structures to be more resilient in the future.

Not only do most of the EM documents created by the federal government of Canada already suggest strengthening provincial legislation, so does the SFDRR (2015), of which Canada is a signatory nation. Raikes et al.’s (2021) study further shows the importance of governmental roles in pragmatic DRR legislation that addresses the needs and abilities of vulnerable peoples. Governments need to identify areas of need in EM to create stronger legislative backings that are formally tied to existing building, development, planning, occupational health and safety laws (Stacey, 2018). This would extend into the recovery phase of post-disaster rebuilding; potentially mandating the idea of building back better – which happens to be a current slogan of DRR. Legislating more in-depth DRR strategies is possible as the province of Québec already has a well thought out act that identifies strategies and suggests DRR occurs in EM planning (Civil Protection Act, 2001). While legislation cannot account for every eventuality, FPT governments may need to justify a lack of protective laws. This may become more apparent in legal arguments as they could be compared to other provinces/territories who have stronger DRR strategies – especially in cases where a loss of life is present. 

Achieving National Standards

Emergency management professionals often need to work with administrators, politicians, businesses and other stakeholders in order to achieve the goals of reducing the risk of hazards becoming disasters. Rolland (2022) considers long-term care facility standards across Canada an analogous jurisdictional topic recently brought to light by the Covid-19 pandemic. They posit two major routes for Canada, a federalist nation, to create nationwide standards: create an Inter-Governmental Agreement (IGA) or have the federal government engage in coercive funding where they essentially withhold funding to provinces unless the changes or spending habits they wish to see are made. Both of these strategies are routinely used to create national results, but the recent events of the Covid-19 pandemic have shed light on the differences between FPT governments’ responses to a national and international health disaster (Rolland, 2022).

Intergovernmental Agreements (IGAs)

IGAs, which hold little legal responsibility, are mutually agreed upon ideas by FPT governments for the betterment of all Canadians (Rolland, 2022). As these are simply agreed upon standards, there is no obligation for governments to comply with the rules. Essentially, FPT governments would need to all agree to reach a set of universal legislative standards and then implement them. To date, FPT governments have adopted the federal Emergency Management Framework in good faith (Public Safety Canada, 2017). This non-binding framework document outlines how all levels of government will utilize a holistic and four pillar approach to EM that aligns with the SFDRR. The framework does not mandate any set of standards, nor have any been agreed upon by any FPT governments. Therein lies the issue with IGAs – they can be remarkable and create strong standards nationwide, but they can also be very contentious and slow to be adopted; especially with varying political views and priorities across the nation.

Coercive Federalism

An alternative to IGAs is a method Rolland (2022) describes as coercive federalism. Schnabel and Dardanelli (2022) describe coercive federalism in Canada as a conditional funding policy that tends to be beneficial for constituents across the nation, promoting healthcare, educational standards or other policies. However, it is noted these federal strategies are not without controversy. Specifically, it was found coercive funding was viewed as an encroachment on provincial and territorial governments’ autonomy. Based on this, it is unsurprising the federal government chooses to limit its use of strings attached funding to what it deems to be most important. Unfortunately, EM has not been seen as one of these priorities. It is also possible it has not been used as currently the federal government lauds the good working relationship it has with provinces and territories, who work in earnest together toward the goals of EM (Public Safety Canada, 2017). While this could change, currently this form of funding has yet to be used to enforce any real set of standards. Viewing this from the other perspective, it may be beneficial for the federal government to avoid potentially relationship damaging jurisdictional issues that could be created through coercive funding. For these reasons, this article suggests one final alternative to promote the creation of standards: proactive prevention of liability.

Motivation for Legislation: Responsibility, Liability and the Charter

Public Safety Canada (2017) describes the duty of emergency management and understanding risk as the responsibility of all Canadian governments, businesses and people. However, this article seeks to encourage further research and discourse into the inadequacies of EM legislation by viewing governments’ role as an imperative based on the CCRF. The Charter states every person present in Canada holds the right to life, “…where the law or state action imposes death or an increased risk of death, either directly or indirectly” (Government of Canada, 2022, para. 12). Further, the Charter as interpreted by the Government of Canada (2022) suggests the “security of the person will be engaged where state action has the likely effect of seriously impairing a person’s physical or mental health” (para. 19). These criteria could be affected by a governments’ lack of preparedness for a disaster. The underlying factor is whether a government holds a legal duty of care to citizens in DRR planning. Governments hold a moral and ethical duty to protect their people, but does this equate to a legal duty of care for DRR decisions that could be viewed as politically driven?

Many people do not have the means to protect themselves from disasters that could cause irreparable damage to their livelihoods, property or life. Numerous studies show people with lower income, the elderly, racialized people, people living with disability, and others who experience lesser levels of institutional privilege tend to prioritize basic life necessities over disaster preparedness (Cox & Kim, 2018). Notably, Stacey (2018) includes Canada’s Indigenous communities in this group, who typically face a higher risk of disaster compared to similar Canadian communities. Bosomworth et al. (2017) note in their study interviewing emergency managers in Australia that individual communities are often left to fend for themselves in government recognized hazardous areas – such as susceptible lands which were approved for development – regardless if they have the means to do so or not. This phenomenon is not specific to Australia. This leaves a gap in our societal level of preparedness and understanding of risks. Further, it creates increased danger for people who are prepared. Responders whose resources are limited may ultimately need to risk their own safety to protect those who are ill-equipped to protect themselves. There is also the increased individual rebuilding and insurance costs associated with the lack of societal preparedness. Failing to account for and actively protect people while knowing their risk could be reduced is a governmental failure. Especially in situations where, as Stacey (2018) notes that governments are aware certain people are at a significantly higher risk in disasters than others.

 Most FPT governments include provisions in their EM legislation that absolves any minister or appointed actor for the government from liability for their actions, except in cases where they appear to be acting in bad faith. Raikes and McBean (2016) suggest EM legislation falls into the realm of policy, which makes it immune from liability. However, based on objective evidence from numerous sources including Public Safety Canada’s (2022) Emergency Management Strategy for Canada: Toward a Resilient 2030, we know the risk of disasters can be significantly decreased or mitigated through active DRR efforts. In this situation, legal duty of care may provide an opening for a government, based on the 2021 Canadian Supreme Court decision, Nelson v. Marchi, to be held liable for a lack of actions taken in EM (Rankin & Williams, 2021). Essentially, if the risk of disasters is evident and the risk to the public increases when insufficient DRR legislation exists, governments could be held liable for their inaction and lack of legislation. Rankin and Williams (2021), suggest this interpretation of a municipal government’s level of liability needs to meet certain criteria, most notably, the extent to which the decision (or in this case indecision or omission) is based on objective knowledge. It is clear that we know active DRR strategies reduce the risk of disasters, which inherently reduce the risk of negative outcomes for a person’s life and personal security as set out by the CCRF (1982).