On Valentine’s Day 2022, Canada’s federal government declared a “public order emergency” under the federal Emergencies Act. As I explained in a recent op-ed, that legislation, which has never been used since it was crafted in 1988, constitutes a frontal assault on Canadians’ right to protest. That is precisely why leftists must oppose it.
Since the Trudeau government invoked the Emergencies Act, I have watched with dismay as some progressives have expressed support for the latest governmental assault on our civil liberties.
Most disturbingly, the social democratic NDP has declared that it will support a Parliamentary motion in favour of the government’s Emergencies Act declaration — unless and until “it becomes clear that there is an abuse of power.”
Much of the public commentary about the Emergencies Act suggests a limited understanding of what this legislation actually empowers the government to do. We cannot appreciate what is at stake in this controversy without taking a deeper look at this never-before-used legislation.
Overview of the Emergencies Act
Under the Act, the federal government may declare four different types of emergency declaration: a “public welfare emergency”, a “public order emergency”, an “international emergency” and a “war emergency”. The powers that the statute confers upon the government vary from one type of emergency declaration to another.
If the federal government declares, for example, a “public welfare emergency”, section 8 of the Act empowers the government to, among other things, establish emergency hospitals and shelters, regulate the distribution and availability of essential goods, services and resources, authorize and make emergency payments, and authorize or direct any person or class of persons to render essential services.
During the pandemic, Canada’s hospitals and shelters repeatedly came under strain while Canadian authorities struggled, at least initially, to procure adequate supplies of personal protective equipment. Despite these challenges and the suffering that they caused, the Trudeau government never declared a “public welfare emergency”, which would have enhanced its capacity to overcome the challenges. Rather, it invoked the Act two years into the pandemic, and did so not to overcome pandemic-related challenges, but to suppress a largely non-violent protest against government health-related mandates.
What the Trudeau government has now declared is not a “public welfare emergency” at all, but rather, a “public order emergency.”
Under s. 17 of the Emergencies Act, the Government may declare such an emergency when it believes, on reasonable grounds, that “a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency.”
Section 16 of the Act defines a “public order emergency” as a an emergency that arises from “threats to the security of Canada” and that is so serious as to be a “national emergency.”
Section 16 of the Emergencies Act assigns to the phrase “threats to the security of Canada” the meaning assigned to that phrase by s. 2 of the Canadian Security Intelligence Service Act (CSIS Act). Under s. 2 of the CSIS Act, “threats to the security of Canada” are defined as:
(a) espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
(b) foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
(c) activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
(d) activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada,
but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).
The CSIS Act’s definition of “threats to the security of Canada” is both broad and ambiguous, and raises serious issues about government overreach (but that is a subject for another day).
Under s. 3 of the Emergencies Act, a “national emergency” is defined as “an urgent and critical situation of a temporary nature that (a) seriously endangers the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or (b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada, and that cannot be effectively dealt with under any other law of Canada.”
The combined effect of all of these provisions is that, in order for the government to declare a “public order emergency”, all of the following requirements must be satisfied:
- there must a “national emergency”, as that phrase is defined in s. 3 of the Emergencies Act;
- there must be one or more “threats to the security of Canada”, as that phrase is defined by s. 2 of the CSIS Act; and
- special temporary measures must be necessary for dealing with the emergency.
In my opinion, the government cannot satisfy, in the current circumstances, any of these requirements, let alone all of them. For the sake of brevity, I will focus in this analysis on the “national emergency” requirement.
As explained above, the “national emergency” requirement has two branches.
Under the first branch, there must be an urgent and critical situation that seriously endangers the lives, health or safety of Canadians and “is of such proportions or nature as to exceed the capacity or authority of a province to deal with it.” To my knowledge, there have been no serious acts of violence committed by protesters in the Ottawa convoy. On the contrary, numerous of the convoy organizers have repeatedly urged protesters to remain peaceful and have renounced the use of violence.
In the current protests against health-related mandates, the most serious endangerment of Canadian lives appears to have occurred at the Canada / U.S. border in Alberta. On February 14 – the day on which the Trudeau government declared a public order emergency – Alberta RCMP announced that, in the prior 24 hours, they had arrested 13 people involved in a border protest at Coutts, Alberta. In connection with the arrests, the RCMP seized more than a dozen long guns, hand guns, ammunition and body armour. According to a RCMP news release, “the group was said to have a willingness to use force against the police if any attempts were made to disrupt the blockade.” To my knowledge, the RCMP has not published any evidence to support its allegation of a willingness to use force against police. Subsequently, however, the RCMP charged four of the arrested persons with conspiracy to commit murder, and alleged that the targets of the conspiracy were RCMP officers.
Assuming that the accused persons are in fact guilty of the crimes alleged, their crimes would constitute ‘serious endangerment of the lives, health or safety of Canadians’. However, the timing of these arrests strongly suggests that they were accomplished without resort to any of the emergency powers available to the government under the Emergencies Act. There is no evidence that the crimes alleged are “of such proportions or nature as to exceed the capacity or authority of a province to deal with it.”
The second branch of the national emergency criterion requires that the urgent situation “seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada” and that it cannot be effectively dealt with under any other law of Canada. Even if we assume that the crimes alleged by the Alberta RCMP or the presence of the “freedom convoy” in Ottawa “seriously” threaten the government’s ability “to preserve the sovereignty, security and territorial integrity of Canada”, there is no evidence that those matters cannot be effectively dealt with under laws other than the Emergencies Act (for example, the Criminal Code of Canada).
The Vast Powers Conferred by the Emergencies Act
Section 19 of the Emergencies Act states:
“While a declaration of a public order emergency is in effect, the Governor in Council may make such orders or regulations with respect to the following matters as the Governor in Council believes, on reasonable grounds, are necessary for dealing with the emergency:
(a) the regulation or prohibition of
(i) any public assembly that may reasonably be expected to lead to a breach of the peace,
(ii) travel to, from or within any specified area, or
(iii) the use of specified property;
(b) the designation and securing of protected places;
(c) the assumption of the control, and the restoration and maintenance, of public utilities and services;
(d) the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation in respect of services so rendered; and
(e) the imposition
(i) on summary conviction, of a fine not exceeding five hundred dollars or imprisonment not exceeding six months or both that fine and imprisonment, or
(ii) on indictment, of a fine not exceeding five thousand dollars or imprisonment not exceeding five years or both that fine and imprisonment,
for contravention of any order or regulation made under this section.”
The breadth of these provisions is vast — and alarming.
Under s. 19, the federal government has virtually unlimited authority to prohibit public assembly, to restrict travel anywhere within Canada’s borders and to bar or restrict the use of any property.
Under s. 19, the only statutory limitation upon the government’s authority to prohibit public assembly, restrict travel or restrict the use of property is that it must have “reasonable grounds” to believe that a prohibition or restriction is “necessary for dealing with the emergency”. In the case of a prohibition or restriction on public assembly, the government must also have a reasonable expectation that the assembly will lead to “a breach of the peace.”
It is important to understand, however, that reasonableness is not the same thing as correctness: under a reasonableness standard, the government does not have to be right. Rather, the government can be wrong, as long as it can offer — if and when its emergency measure is challenged in a court of law — some plausible justification for what it has done.
Using the vast powers conferred upon it by s. 19 of the Emergencies Act, the Trudeau government has adopted thus far two emergency regulations.
The Emergency Measures Regulation
The first of these regulations was adopted on February 14 – the same day on which the Trudeau government first declared a public order emergency. That regulation is entitled the “Emergency Measures Regulation” (EMR).
The fact that this regulation was issued so quickly following the declaration of a public order emergency suggests that the Trudeau government began to consider use of the Emergencies Act before the arrests in Coutts, Alberta.
Section 2(1) of the EMR decrees that persons “must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by: (a) the serious disruption of the movement of persons or goods or the serious interference with trade; (b) the interference with the functioning of critical infrastructure; or (c) the support of the threat or use of acts of serious violence against persons or property.”
Critically, nothing in s. 2(1) limits the ban on public assemblies to protests against the government’s health-related mandates. In effect, the government has temporarily banned all public assemblies that meet the requirements of s. 2(1) of the EMR.
Section 4(1) of the EMR prohibits persons from travelling to or within an area where a prohibited public assembly is taking place. Under s. 4(3) of the EMR, the s. 4(1) prohibition on travel does not apply to persons who reside, work or are moving through “the assembly area” (whatever that means) for reasons other than to participate in or facilitate the assembly, nor does it apply to persons who are permitted by a peace officer to travel in or through the assembly area.
In addition, s. 5 of the EMR decrees that “a person must not, directly or indirectly, use, collect, provide make available or invite a person to provide property to facilitate or participate in any assembly referred to in subsection 2(1) or for the purpose of benefiting any person who is facilitating or participating in such an activity.”
Finally, under s. 10(2) of the EMR, failures to comply with the provisions thereof are made punishable, on indictment, by a fine not exceeding five thousand dollars or to imprisonment for a term not exceeding five years or to both.
Let us consider the implications of the EMR.
In late 2019, Extinction Rebellion Canada mounted blockades of bridges across Canada in order to protest the government’s abject failure to respond effectively to an existential climate emergency. A few months later, at around the time that the pandemic began, Indigenous protesters and activists across Canada mounted railway blockades in solidarity with Wet’suwet’en land defenders whose rights were (and are) being trampled (with government support) by an extractive corporation. Under the EMR, these and similar protests almost certainly would be barred and would be punishable by up to five years in prison.
Economic disruption is, however, a vital tool in the activist’s toolbox. Time and again, experience has shown that protests that cause no significant economic disruption are far more likely to be ignored by the authorities than those that are economically disruptive. The invocation of the Emergencies Act may well establish a precedent that will be used against climate, Indigenous rights and other activists in future, thus depriving them of an important tactic in the struggle for justice and the fight to save our planet.
The Emergency Economic Measures Order
On February 15, 2022, the Government issued a second regulation pursuant to its declaration of a public emergency order. That regulation is entitled the “Emergency Economic Measures Order” (EEM).
The EEM covers “designated persons”, a term that is defined by s. 1 of the EEM to encompass individuals or entities who are engaged, directly or indirectly, in an activity prohibited by sections 2 to 5 of the EEM.
Section 2 of the EEM obliges all financial institutions (including cryptocurrency platforms) to cease (a) dealing in any property that is owned, held or controlled, directly or indirectly, by a designated person, (b) facilitating any transaction related to a dealing referred to in paragraph (a); (c) making available any property to or for the benefit of a designated person; or (d) providing any financial or related services to or for the benefit of any designated person.
Section 5 of the EEM requires financial institutions to report to the RCMP or CSIS, “without delay”, (a) the existence of property in their possession or control that they have reason to believe is owned, held or controlled by or on behalf of a designated person; and (b) any information about a transaction or proposed transaction in respect of property referred to in paragraph (a).
Finally, under s. 7 of the EEM, financial institutions are immunized from civil legal proceedings arising from their compliance with the EEM.
Again, nothing in the EEM limits its application to those who are protesting against government health-related mandates. In essence, all persons engaged in a public assembly that is prohibited by the EMR are at risk of having their bank accounts frozen and their financial activity reported to the RCMP or CSIS.
Even worse, under s. 7 of the EMR, any person whose bank accounts are wrongfully frozen by a financial institution would have no civil legal recourse against that institution. In effect, the Trudeau government has conferred upon financial institutions vast power to freeze the bank accounts of persons who may be engaged in prohibited public assemblies, including those public assemblies that have nothing to do with government health-related mandates.
Parliament Must Reject This Anti-Democratic Power Grab
The regulations promulgated under the Emergencies Act demonstrate why this legislation should be invoked only in the rarest of cases, if ever.
In the present circumstances, we are far from the type of crisis that would warrant so draconian an assumption of power by the federal government and by financial institutions acting at the government’s behest. Indeed, the Canadian Civil Liberties Association has announced that it will challenge in Court the Trudeau government’s invocation of the Emergencies Act.
Accordingly, I call upon all members of Parliament to vote against the Trudeau government’s unjustified use of this anti-democratic legislation.