Is there a Crown prerogative to ‘keep the peace’?

What happened to executive's authority to keep the King's peace? The Emergencies Act has probably locked it away.

What authority does the federal government have the power to protect public order? This is a question worth asking considering the Federal Court’s judgement on the use of the Emergencies Act to deal with the 2022 Convoy protest.

As Justice Mosley’s ruling in the Federal Court case highlights, the invocation of the Emergencies Act should be a measure of last resort. Other laws, be they federal or provincial, should be exhausted before the Emergencies Act is used. In the case of the Convoy, Mosley found that provincial laws could have dealt with the protest in Ottawa, which means that the Emergencies Act shouldn’t have been invoked. The fact that the Ontario government chose not to act didn’t justify the federal government’s recourse to the Emergencies Act.

After reading the judgement, it appears that the federal government isn’t well placed to deal with breakdowns of public order if provinces refuse to act. In fact, it seems like the federal government must wait for the provinces to do something if they have the legal authority to deal with a significant public order problem. Unless there is a violation of a federal law, such as the Criminal Code, Ottawa seems hamstrung.

That seems odd, doesn’t it? Unfortunately, the Emergencies Act has probably supplanted another legal authority that the federal government could have used to deal with breakdowns of public order: the Crown prerogative.

In the 1989 case, R v Secretary of State for the Home Department, ex parte Northumbria Police Authority, the Court of Appeal of England and Wales considered whether the British Home Secretary had the authority to supply crowd control equipment, including riot control gas, to police. The Northumbria Police challenged the Home Secretary’s authority to do so without their consent, arguing that this was beyond the Home Secretary’s powers over the police and the provisions of the Police Act 1964 and Local Government Act 1985. The court sided with the Home Secretary. While statute didn’t empower the Home Secretary to act, the Crown prerogative did.

As powers that the Crown has in its own right as recognized by common law, the prerogative provides the executive with various authorities, including the power to wage war and defend the realm, command and deployment of armed forces, negotiate and ratify treaties, and administer justice. Lord Justice Croom-Johnson held that “I have no doubt that the Crown does have a prerogative power to keep the peace, which is bound up with its undoubted right to see that crime is prevented and justice administered.” Lord Justice Nourse agreed. He noted that when looking at the war prerogative, “it is natural to suppose that it was founded, at least in part, on the wider prerogative of protection…the wider prerogative must have extended to unlawful acts within the realm as to the menaces of a foreign power.” Hence, “There is no historical or other basis for denying to the war prerogative a sister prerogative of keeping the peace within the realm.”

Given that the Canadian Crown inherited the war prerogative from the British Crown, there’s a strong case that Canada also inherited prerogative to keep the peace. Similarly, if the prerogative to keep the peace flows from the power to administer justice, then the Canadian Crown would have this power as well. The question is whether this prerogative belongs to the federal Crown or the provincial Crowns.

Since the prerogative in Canada is divided according to the legislative competencies outlined in sections 91 and 92, we need to find the hook for it there. If the hook is in section 91, then it belongs to the federal Crown, and if it’s in section 92, then the provincial Crown.  One could argue that, if the prerogative to keep the peace flows from the administration of justice, then it belongs with the provincial Crowns. If, however, the prerogative to keep the peace is connected with the war prerogative, then it belongs with the federal Crown. The fact that section 91 allows the federal Parliament to legislate for “Peace, Order, and Good Government” reinforces this interpretation, as does the fact that federal Parliament legislated for public order emergencies in the Emergencies Act.

The federal government, therefore, arguably had a power to keep the peace and protect public order under the Crown prerogative. This would have been a narrow authority, but one that would arguably have enabled the federal government to restore public order if a province was unwilling or unable. Using Lord Justice Nourse’s logic, denying this power to the federal government would have been akin to deny it the authority to deal with foreign threats to Canada.

The Emergencies Act, however, has probably put this prerogative in abeyance. The Act binds the Crown, provides for public order emergencies, and sets out strict criteria for how it can be exercised. This suggests that Parliament’s intent was that the Emergencies Act would be the federal government’s authority to deal with breakdowns of public order.

On the other hand, it’s notable that the Emergencies Act empowers the federal government to deal with war emergencies, yet there is no suggestion that it has displaced the war prerogative. The federal government can engage in armed conflict without invoking a war emergency under the Emergencies Act, which implies that the prerogative can still be used when the Act’s threshold hasn’t been met or its exceptional powers aren’t necessary. If that’s the case, then maybe the prerogative to keep the peace is still operative and could be used to deal with breakdowns of public order that don’t meet the criteria set out in the Emergencies Act.  

Would a federal government ever dare to rely on the Crown prerogative to address a public order crisis? Probably not. As Alberta’s intervention in the Federal Court case suggests, the provinces would strongly oppose a federal intervention into a public order problem that doesn’t amount to a national emergency. Unless there are violations of federal law, the provinces would argue that public order falls under their jurisdiction. If the federal government did act under the Crown prerogative, furthermore, it would quickly find itself before the courts, with critics arguing that there never was a prerogative to keep the peace in Canada, and if this prerogative did exist once, the Emergencies Act has supplanted it.

Suffice to say, this leaves us in a tough spot. The provinces are expected act when a public order crisis doesn’t meet the thresholds set out in the Emergencies Act. Yet, as the 2022 Convoy shows, the provinces can refuse to act. This doesn’t seem to be an acceptable situation and it suggests that the federal government is prevented from fulfilling a basic state function.

So, what’s the solution? We could do nothing and hope that provinces have learned that they must act. Alternatively, the federal Parliament could pass a public order act to address situations that don’t meet the requirements of the Emergencies Act. Interestingly, the United Kingdom passed a Public Order Act last year that we could mimic. Politically, though, a federal public order act would be controversial. There would be opposition from across the political spectrum and the federation. The federal government would need to be quite bold to table this kind of legislation. How likely is that?

I can’t help but conclude with a few thoughts about what all this tells us about the Crown prerogative. Flexibility and discretion are the key advantages of the prerogative. This power gives the executive the nimbleness to act in novel situation. The prerogative can also fill the gaps left by statute, allowing the executive to act in contexts that Parliament didn’t anticipate. These are the primary reasons why governments are loathe to abandon the prerogative as a source of authority.

The Emergencies Act, furthermore, highlights the risks associated with displacing the prerogative.  The high thresholds provided in the Act were meant to ensure that it would be a last resort. This made sense when the Act was passed, since provincial laws could handle local disturbances. In a pinch, the provinces could also rely on the aid of civil power provisions of the National Defence Act, which allows them to call out the Canadian Armed Forces to deal with riot or disturbance that they can’t handle. So, the Emergencies Act could have high thresholds because there were other tools the provinces could use.

What Parliament couldn’t anticipate was a provincial refusal to act. That’s the kind of unknown that the prerogative is good at addressing, but detailed statutes aren’t. This should give us pause the next time we legislate over the prerogative.