The constant diet of ‘temporary measures’ the public has been fed is enough to make the toughest stomach grumble. Those with functioning long-term memory will recall when temporary meant two weeks to flatten the curve, and since that distant time the concept has been stretched to such an extent that one has to wonder if there is any meaning left for those who still use the term unironically.

The circumstances make necessary the exploration of two neglected questions about the concept of emergencies and their relationship to violations of civil rights.

Question 1: Why Do Emergencies Justify Rights Violations While Permanent Problems Do Not?

It is not immediately apparent why a new and unexpected social ill ought to elicit rights suspensions when a permanent social ill does not. Consider a pandemic that causes 60,000 deaths a year: why does it justify the suspension of rights while a permanent problem causing 90,000 deaths a year does not? Those who express concern about the use of emergency powers do not dispute that unexpected problems can pose significant risks to populations. They question, however, the triggering thresholds used to justify emergency powers, such as the number of deaths relative to existing health and safety problems. This is a serious criticism considering deaths from cardiovascular disease in Canada vastly outpace Covid-19 deaths, and did so even at the height of the pandemic, and there have been periods and places in Canada where opioid overdoses have exceeded Covid-19 deaths.

One might answer that emergencies can be solved through temporary measures while permanent problems cannot, but it is not at all clear that this is true. It seems reasonable that permanent problems could be significantly mitigated through temporary measures. For example, a year of violations of search and seizure rights might result in the destruction of drug distribution networks. Government intrusion into private lives and the economy could significantly influence voluntary choices around diet and exercise that over time reduce risk of heart disease. Perhaps those not living healthy lifestyles should have certain ‘privileges’ revoked until they comply? It seems reasonable to think that such policies, even if temporary, could have a significant and permanent impact on the endemic problem of heart disease.

A potential rebuttal for why rights suspensions are justified during an emergency and not otherwise is that the real numbers of fatalities do not matter as much as the ability of different systems to respond to separate problems. In other words, permanent social problems already have the resources to address them while resources to address emergencies are not yet in place.

There are problems here, too, not least of which is the interconnectedness of these systems. It is nonsensical to speak of heart disease hospitals and COVID hospitals as though they are separate entities. Reducing opioid overdose hospitalizations would clear space for COVID patients as much as the reverse. And even if one does accept the argument that governments can violate rights in the short term in order to build system capacity, this must include a clear explanation of what these capacities are and why, in a direct and specific sense, the rights violations are necessary to build them.

If one recalls, this was the initial justification for the Covid-19 lockdowns. The government argued, with near universal support from citizens, that the health care system needed time to increase capabilities. There have been efforts in Canada to improve hospital capability, but this contract between citizens and government must be time-bound. If it appears that the government over time simply cannot build hospital capacity to keep up with new cases, it should be questioned whether we are experiencing an emergency or a permanent post-2019 problem. This leads to a quintessential question about emergency measures.

Question 2: Can Emergencies Be Permanent or Does the Concept Demand Time Constraints?

While most would intuitively answer that emergencies must be temporary, it is not easy to objectively state the point at which an emergency ends, or by what standard such a thing ought to be judged. Emergency legislation generally contains, explicitly or implicitly, the notion that emergencies ought to be temporary, but there is often no hard deadline for how long an emergency can last. British Columbia’s legislation, for example, allows a state of emergency to be extended over and over again.

The implication here is that an emergency ends not when a predetermined amount of time has expired but when the harmful events have been resolved. While this makes some sense (if a house is burning down, the emergency is over when the fire is out, not when the firemen’s shift ends), it becomes concerning when a long-lasting emergency is combined with the violation of civil rights.

When it comes to the current pandemic, it is very difficult to know when Covid-19 ought to be considered a fact of life, similar to a common illness like the flu. There are different answers to this issue drifting in the media-o’sphere, one of the more common being that the disease must be completely eliminated—or in the least reduced to a manageable inconvenience—before the emergency is over. The justification for this standard is usually that hospitalizations from Covid-19 are still high or that populations are not sufficiently vaccinated, but neither of these problems are time-bound. Covid-19 will likely continue to incur a significant toll on societies for the foreseeable future and there is no guarantee vaccination rates will reach 100%, particularly if booster shots become required.

If emergencies are not temporary—and specifically so—it becomes necessary to question the extent to which labeling measure after measure ‘temporary’ is appropriate. Indeed, it is very difficult to state clearly what makes an emergency with no time constraint meaningfully different from other harmful problems that are difficult to solve.

Canada is two years into a pandemic and health mandates in many parts of the country are stricter than ever. There may well come a point where Canadians must decide that emergency measures that violate civil rights must end, regardless of whether Covid-19 is still with us. If we do not come together to make this decision, politicians are unlikely to make it for us.