Abstract
On Valentine’s Day, 2022, protestors in Canada were met with everything except love from the Canadian Government. Prime Minister (hereafter referred to as PM) Justin Trudeau announced that for the first time in its existence, the Emergencies Act would be invoked to address the Freedom Convey protests that had been occurring for several weeks. The Emergencies Act has high legal standards that the government must meet in order for it to be invoked. PM Trudeau’s government failed to reach those legal standards in this specific case. The government failed to show that a National Emergency existed, that there was a threat to the Security of Canada, and that there was no other law that could be used instead.
Background
For the past two years, Canada along with the rest of the world, has suffered through COVID-19 related mandates and lockdowns. These mandates have sparked international debate on how far governments can go in preventing the spread of a disease, while simultaneously respecting and preserving the natural rights of citizens. In January of 2022, a group of truckers launched the “Freedom Convoy” and made demands to the Canadian Government. Those demands were straightforward: end all COVID-19 related mandates. The protests led to several border crossings being shut down and several streets around Parliament Hill in Ottawa being occupied.
On February 14th, Prime Minister Justin Trudeau declared a Public Order Emergency pursuant to subsection 17 of the Emergencies Act. This was the first time that the Emergencies Act had been used. PM Trudeau’s government justified the usage of the act with five points:
- Blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada.
- The adverse effects on the Canadian economy…and threats to its economic security resulting from the impacts of blockades of critical infrastructure.
- The adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners…that are detrimental to the interests of Canada.
- The breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number.
- The potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians (Government, 2022).
Shortly after this proclamation, Trudeau’s government was sharply criticized by various civil rights groups, including the Canadian Civil Liberties Association and the Canadian Constitution Foundation. Canadian legal scholars such as Leah West and Ryan Alford, believe that the standards have not been met to invoke the act. On February 23rd, Trudeau revoked the emergency, citing that the powers had worked, and that the situation was under control (Al Jazeera Staff, Trudeau, 2022). This paper reviews the current relevant Canadian statues, including the Emergencies Act and evaluates whether PM Trudeau’s government has reached the high legal standards to invoke the powers contained in the Emergencies Act.
Canadian Law
Canadian citizen’s rights are protected by the Canadian Charter of Rights and Freedoms. This charter guarantees Canadians rights including “freedom of thought, belief, opinion and expression… freedom of peaceful assembly; and freedom of association” (Canadian Minister of Justice, Canadian, 2021). All Canadians naturally enjoy these rights. The Charter makes clear that the only way that Canadians cannot enjoy these rights is if “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (Canadian Minister of Justice, Canadian, 2021). Only in extraordinary circumstances can the government take emergency action, and even then such action must be consistent with Charter of Rights and Freedoms.
In Canada, the measures that the federal government can take in times of emergencies are governed by the Emergencies Act. This law gives the government more broad power to take actions that normally the government could not order or consider. The law itself makes clear when it is proper for the government to invoke it. When it comes to a public order emergency, which is the declaration that Trudeau made, the law defines a public order emergency as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency” (Canadian Minister of Justice, Emergencies, 2022). There are several phrases in that definition that are defined elsewhere in the Act. 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 (Canadian Minister of Justice, Emergencies, 2022).
There are two prongs to the national emergency definition. It is either “a” or “b” that the government must meet. However, the final clause, “cannot be effectively dealt with under any other law of Canada” applies in all situations.
The next part of the law is the phrase “threats to the security of Canada.” That phrase is defined by this act to have its definition in the Canadian Security Intelligence Service Act. That later act defines a threat to the security of Canada as one of the following:
(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 (Canadian Minister of Justice, Canadian, 2022).
The act further states that this definition “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)” (Canadian Minister of Justice, Canadian, 2022). This means that unless the government can prove that one of the four things are occurring in conjunction with protests, a protest is not equivalent to a security threat.
No National Emergency
Under the definition of National Emergency, the situation in Canada does not constitute a national emergency. The protests at the borders and in Ottawa have been peaceful. There have been no reports of massive unrest or violence. There is no serious danger to the lives, health, or safety of Canadians. Trudeau’s government could point to a plot regarding the bridge closure in Coutts as justification for there being violence, however police dealt with that situation before the Emergencies Act was invoked. It is a logical fallacy to argue that a small group of radicals means that the entirety of the group is radical. The demonstrations in Ottawa, while disruptive, are not violent. As Dr. Ryan Alford who is a proffesor of consitutional law at Lakehead University wrote, “There is not a single violent incident that could possibly support a legally sufficient argument that the protests have been in support of or connected with terrorism” (Alford, Trudeau’s, 2022). There are no grounds under section A of the National Emergency definition.
Section B of the definition provides for a national emergency if the situation threatens the sovereignty, security, or territorial integrity of Canada. Neither of these three terms include the economy of Canada. PM Trudeau has repeatedly indicated that the protests were a threat to the Canadian Economy. He did so in points two, three, and four of his declaration and in the House of Commons when defending the declaration, “The blockades and occupations are illegal. They are a threat to our economy and our relationship with trading partners” (CPAC, House, 2022). The economic issues are not a consideration under the national emergency definition. Simply because the government may lose money, does not mean that they can take emergency actions. This point was explained by the Executive Director of the Canadian Civil Liberties Association Noa Mendelsohn, “According to what the government is saying, they are doing it [Invoking the Emergencies Act] because of the Canadian economy, and that is not listed in the Emergencies Act.” (CP24, Did, 2022). No protest attacked the sovereignty, security, or territorial interests of Canada. The situation thus failed to meet the criteria of section B.
Security Threat to Canada
The government has not provided any evidence that the protests were a security threat to Canada. Outside of the one isolated incident that was handled without the Emergencies Act, the government has failed to satisfy any of the four prongs in the CSISA. There is no evidence of espionage. Section B of the CSISA deals with foreign activists, and there are plenty of non-Canadians that have taken interest in the protests. However, section B makes clear that those actions must be “clandestine or deceptive or involve a threat to any person” which is not what any foreign actor is doing. Tweeting out support or giving a donation is not a secret plot nor is it a threat to a person. There is no evidence of serious violence against anyone. Serious violence also means that there must be more than regular violence. For instance, honking your horn and violating noise laws may be illegal, but it is not serious violence. The acts of the protesters fail to constitute serious violence. Finally, there is no evidence to support any claims that this protest was an effort to overthrow the Government of Canada. Tamara Lich, one of the leaders of the protest, was talking about love and being respectful to police, reporters and even PM Trudeau, right before her arrest, “We don’t have to like what he [Trudeau] does, but I am going to ask you to pray for him” (Freedom, Update, 2022). This is not the rhetoric of a leader of an insurrection, but it is the rhetoric of someone who wants to see real change.
Some national security experts in Canada agree that there is no security threat. Leah West, an assistant professor of international affairs at Carleton University, said “that the government had yet to provide information publicly to show that the public order emergency threshold has been met” (Al Jazeera Staff, Canada’s, 2022). The government did not provide any evidence to their claims. David Schneiderman, who was a part of the process of writing the Emergencies Act, further underscored that the government had not met its burden, “While there is no question that myriad grievances were voiced in Ottawa, there is no evidence that “acts of serious violence” were perpetrated for the purpose of achieving the protesters’ objectives” (Schneiderman, Opinion, 2022). Just because the government does not like what the protestors are saying, does not mean that they are a security threat.
Any Other Law
The last part of the National Emergency definition requires that there be no other law for the government to turn to. Professor West underscores this by pointing to the State of Emergency that was declared by Ontario Premier Doug Ford. West said, “I don’t really know what the Emergencies Act is going to do that wasn’t available to the province of Ontario under its emergencies act or what couldn’t be done under other laws of Canada. That’s a problem because to be a national emergency…what is required is that the situation can not be dealt with under any other law of Canada” (CBC, Security, 2022). The law requires that the Federal Government have no other alternative to the Emergencies Act in order for it to be used. That is simply not the case. Premier Ford highlighted what the Provincial State of Emergency could do, “Penalties for blocking key routes, including bridges and highways, would include fines as high as $100,000 and up to a year in jail” (Cecco, Ontario, 2022). The state of emergency gave the government the power it needed without going to the Emergencies Act. In this situation, the government failed to prove that this was its only recourse to deal with the situation. The government cannot declare an emergency just because it has failed to enforce other laws.
What’s Next
On February 23, the public order emergency was lifted. However, this dangerous precedent has been set for future demonstrations that do not align with the government’s views. Despite the declaration being revoked, lawsuits against the government are moving forward and are headed to Canada’s highest court. Their ruling could give future leaders a clearer understanding on when to invoke the Act. As well, pursuant to the Emergencies Act, an inquiry must be launched within sixty days after the revocation and within 360 days a report must be given to Parliament. That inquiry should shed some light on why the government thought it should invoke the Emergencies Act.
Prime Minister Justin Trudeau’s use of the Emergencies Act in relation to the February protests was unconstitutional because the government failed to meet the criteria laid out in the Emergencies Act. The government failed to show that the protests seriously endangered Canadians, that they were a security threat to Canada, and that there was no other law that could have dealt with the matter. After failing to deal with the protests, Trudeau and other leaders tried to fix their mistakes by attacking the very rights and freedoms that the protestors were advocating for.
References
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Al Jazeera Staff. (2022, February). Canada’s Emergencies Act: What Power Does It Give Justin Trudeau?. Al Jazeera. https://www.aljazeera.com/news/2022/2/1 5/canada-emergencies-a ct-what-power-does-it-give-justin-trudeau
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CBC Radio-Canada. (2022, February). Security Experts Disagree on Use of Federal Emergencies Act [Video file]. https://www.cbc.ca/player/play/200287955 5581
Cecco, L. (2022, February). Ontario Declares State of Emergency, Threatening Fines and Jail Time to End Blockade. The Guardian https://www.theguardian.com/world/2022/feb/1 1/ontario-state-emergency-threatens-fines-jail-time-end-blockade
CPAC. (2022, February 17). House of Commons Begins Debate on Motion to Confirm Emergency Declaration – February 17, 2022 [Video file]. https://youtu.be/MWEj4_ASqJ U
CP24. (2022, February 15). Did We Need to Invoke the Emergencies Measures Act? [Video file]. https://www.cp24.com/video?clipId=2382262
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Schneiderman, D. (2022, February). Opinion: I Witnessed the Creation of the Emergencies Act. It Shouldn’t Have Been Invoked in Ottawa. The Globe and Mail https://www.theglob eandmail.com/opinion/article-i-witnessed-the-creation-of-th e-emergencies-act-it-shouldnt-have-been
