Image Courtesy of Chris Kato
Elizabeth Clarke, Queen’s University
Edited by Ran Cheng
On February 14, 2022, the federal Cabinet took the exceptional step of declaring a “public order emergency” to invoke the Emergencies Act. This law gives extraordinary short-term powers to the federal government to reestablish order, and effectively address unlawful activities during a serious crisis that has reached the threshold of a “national emergency”. This action followed several weeks of transportation blockades in the downtown core of our national capital, Ottawa, and at several critical border crossings with the United States – Canada’s largest trading partner – by the self-titled “Freedom Convoy”. It was the first use of the Emergencies Act since it was passed in 1988 as a replacement for the long-standing War Measures Act (1914), which had also been very rarely invoked – only for each of the World Wars and, most controversially, by the first PM Trudeau during the 1970 October Crisis in Quebec.
Such a unique first use of this powerful piece of federal legislation deserves some real-time analysis of the justification for, and the scope or limits of, these extraordinary powers in a democratic society like the one in Canada.
The purpose of the Emergencies Act is set forth in the preamble to the legislation, where Parliament recites that the fundamental obligations of Canada’s government are to protect the safety and security of its citizens, the values of its society, and the security of the country. The Act then stipulates that to address a national emergency, it may become necessary for the government to have the ability to take “special temporary measures,” which might not otherwise be appropriate in normal times, to address threats to the broader interests of Canadian society. Four types of emergencies may be declared under the Act: public welfare, public order, international threats, and war. The Act enables the government to grant itself additional legal, regulatory, and policing powers in a national emergency – provided these powers are not already available under existing federal or provincial laws, for a temporary period not exceeding 30 days (unless extended by Parliament). Any declaration of an emergency has to specify the precise state of affairs constituting it, the specific additional temporary measures anticipated to be necessary, be geographically limited to the area of Canada to which the emergency applies, and be preceded by consultation with all provinces and territories.
Here, the emergency was deemed to be a “public order emergency” arising from an urgent, temporary, and critical situation threatening Canada’s security. The blockades interrupted distribution chains for delivery of essential goods, services and materials, causing loss of jobs and revenue in Canada. Ottawa’s local economy was also impacted as blockades prevented the use of Ottawa’s downtown core and some crucial border crossings.
In a public order emergency, as was declared on February 14, the federal government may have additional powers to regulate or prohibit public assembly. This includes the ability to regulate: blockades of transportation infrastructure (but not lawful protest), to remove any property used as a blockade and to direct others to effect that removal, to prohibit any form of blockades at specified areas including border crossings and other critical infrastructure, to direct financial institutions to prohibit the transfers of funds to participants in unlawful blockades, to impose fines and penalties for non-compliance, as well as to give the RCMP expanded authority within provincial and municipal jurisdictions. Essentially all of these additional temporary powers were specified in the Order in Council declaring the public order emergency on February 14.
The Act provides, however, that even the temporary use of such additional sweeping powers granted to the government are subject to the Canadian Charter of Rights and Freedoms, so that individual rights are to be restricted only to the extent necessary to reasonably and proportionately address the emergency. There are also stringent safeguards built into the Act to provide transparency and accountability of the government using these exceptional powers, insofar as these powers are subject to Parliamentary supervision. A report on the use of the Act must be tabled in Parliament within 7 sitting days, any new orders and regulations must be tabled within 2 days of issuance, confirmation of the Declaration must be granted quickly by Parliament or it is immediately revoked, and the use of the Emergencies Act is subject to a full post-event inquiry.
By the weekend of February 12 & 13, the federal government and several provinces (Ontario and Alberta in particular) had been subject to the Freedom Convoy protest for more than 3 weeks. The downtown core of Ottawa had been blocked since January 28th, and the fully-blockaded Ambassador Bridge between Windsor and Detroit disrupted the interchange of roughly 25% of Canada-US trade daily, forcing auto plants to halt production. Border crossings were also blocked at Emerson, Manitoba and Coutts, Alberta. The protest which began in response to Canada’s requirement for truckers crossing the Canada-U.S. border to be fully vaccinated (as also required by U.S. authorities), had evolved into a general protest against all public health measures aimed at fighting the Covid-19 pandemic. It was now well-financed for a lengthy continuation and allegedly joined by non-peaceful protestors (promoting flagrant hate speech and symbolism). Ontario authorities were able to obtain a court injunction under existing laws before February 14th to demand the removal of the blockade at the Ambassador Bridge, but they experienced difficulty actually removing the huge trucks.
The Declaration was deemed reasonable and necessary by the federal Cabinet to address this national economic and public security emergency, and fell within the meaning of the Act. To remove the illegal blockades in Ottawa, which had inhibited the running of local business, and to prevent the recurrence of disruption at international border crossings, towing companies were required by law to provide essential services. Financial institutions were also directed to cease the transfer of funds to support the illegal blockades, the insurance on the vehicles used in illegal blockades was canceled, and the RCMP were authorized to enforce provincial and municipal laws where required. The federal government emphasized that these measures were temporary, were geographically limited to Ottawa and specific locations of border disruption, and were proportional to the threats that authorities confronted. Individual rights to peaceful assembly and freedom of expression (as opposed to illegal physical blockades) were still assured under the Charter.
What is your opinion on the justifications for invoking the Emergencies Act in these circumstances? Were the additional powers assumed by the federal government reasonable and proportionate to the threats needing to be addressed?
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Kato, C. (2022). Freedom Convoy protesters at Parliament Hill on February 1, 2022. Photograph. https://commons.wikimedia.org/wiki/File:Parliament_Hill_Protest_Feb_1.png