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What is Canadas Emergencies Act?
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Post author By Charlie February 15, 2022
What is Canada’s Emergencies Act?
theweeklyrambler.com/what-is-canadas-emergencies-act/
Featured Photo: Image by Ana Krach from Pixabay
Sources are at the bottom of the post.
Canada’s Prime Minister Justin Trudeau has invoked the Emergencies Act in a bid to
dismantle ongoing trucker protests in the country that have notably caused stasis and
distress in the centre of Ottawa and have also managed to shut down a number of
important links between the US and Canada, such as one on the Ambassador Bridge that
has recently been cleared by police.
These trucker protests are against vaccine-or-quarantine mandates for cross-border
truckers, having been borne out of truckers not willing to abide by a mandate and have
since that time turned into a protest of general discontent against ongoing COVID
restrictions, mandates, and also against Justin Trudeau himself. The protests are
controversial due to its anti-vax and anti-COVID restriction stance as well as the
disruption they have caused to business and trade in areas they have setup in, and due
complaints from residents in these areas, specifically Ottawa, of harassment and noise.
Other controversy comes from the protests being supported by elements of the US right
and pro-Trump individuals, including donations from such individuals in the US, with half
of all donations apparently coming from the US.
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The GoFundMe platform froze donations to the trucker protests, which had them instead
turning to another platform called GiveSendGo – this platform was ordered by a Canadian
court to freeze donations to the protests but it has refused to comply with this. The
protests have also been turning towards donations through cryptocurrency as well, due to
fiat currencies being limited via legal actions and company decisions, as well as the threat
of frozen accounts from banks and financial providers. Cryptocurrency is much more
difficult to block or seize as to the reason for it becoming an effective alternative.
Hackers have also apparently targeted GiveSendGo and released the details of those
who have donated to the protests – again, this would be another big reason to use
cryptocurrency alternatives instead as it is far more secure.
Many have argued that since the protests are largely supported by foreign US elements,
the protests are therefore delegitimized as a majority in Canada are not in favour of the
stances that the trucker protests are taking, as well as the vast majority of truckers having
abided by vaccine mandates anyway.
A number of actions by authorities have mostly failed to put an end to the disruptions and
protests, and thus it seems that Justin Trudeau has decided to go for the nuclear option in
invoking the Emergencies Act in a bid to end the disruption and distress caused by the
protests. Time will tell if this is either a major blunder or a success. Others fear that use of
such powers is one of those slippery slope scenarios against civil liberties, and something
that should not be used so lightly in a democratic country.
But what does the Emergencies Act actually do and how does it work? Let’s take a
look.
The Emergencies Act has existed as an extreme option for the federal government of
Canada since 1988 when it was passed by Canada’s federal Parliament, this specific
option has not yet been used, until now. Such powers that the act gives are meant to be
for extraordinary circumstances and can only be temporary (powers will be limited to 30-
days). It also can only be used if the emergency cannot be addressed by any existing
federal law and if it exceeds the capacity of the provinces to handle it effectively.
Such extraordinary circumstances can be within the areas of public welfare emergency,
public order emergency, international emergency and war emergency.
It can be argued that its current usage comes under public order emergency.
Police in Alberta did make some arrests and seized weapons and ammunition from a
group near the Coutts border blockade who, it is alleged, were willing to use violence
against the police to defend the trucker protests. So, this could be one of the factors used
to justify usage of the Emergencies Act. But this alone probably would not be enough,
especially since it has been dealt with anyway by regular means.
It must be stressed that lawful protests do not qualify usage of the Emergencies Act and
so Trudeau will need to find a way to justify his usage. When the Emergencies Act is
enacted under the Public Order Emergency criteria it must meet a certain scenario to be
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lawful, by proving that these trucker protests are a threat to Canada’s security.
These criteria are outlined by the Canadian Security Intelligence Service Act. The first is
that Canada’s security is being impacted by espionage and sabotage – this one seems
like a long-shot to pin on to the trucker protests, unless there is perhaps some kind of
foreign influence using the protests for reasons of espionage or sabotage in Canada. It
could possibly be argued that if most donations or most of the protests significant support
is coming from elements in the US, then it could be said that these elements are doing
this for reasons of espionage or sabotage in Canada. But this would be hard to prove
definitively and if you’re going with the reasoning of outside influence then there is a
different criterion that can be used instead.
The next criteria are that the protests might be threatening Canada’s security as Foreign-
influenced activities. This one seems like it could be the option that sticks best, again due
to the support from Conservatives in the US, but is it enough?
The third criteria are that the trucker protests present threats or are using acts of serious
violence for political, religious, or ideological objectives. The gun seizures and alleged
threat of violence in Alberta could be used to justify invoking the powers under this
criterion, but again it is tough to say if it would be enough or if more examples would be
needed given the greater scope of the trucker protests.
The fourth criteria are that covert, unlawful acts that intend to undermine or overthrow the
constitutionally established government exist as a basis for the trucker protests. This one
will likely be a tough one to stick as well as I do not think most in the protest have this as
a primary aim, or at least it will be hard to prove it as one.
I do not see it being used under the first or fourth criteria but perhaps either the second or
third one. Can we really say these protests are a big enough threat to Canada’s security
to justify usage of these extraordinary powers? The Canadian Civil Liberties Association
has argued that there is no justification to use such extreme measures.
But others have argued that authorities in the affected provinces have not done enough to
contain the protests and prevent disruption, and have also failed to enforce bans brought
down by courts such as against bringing in fuel and prevention of harassment and
intimidation to residents. And police in Ottawa have said they do not have enough officers
for effective enforcement.
Affected provinces will also need to be consulted on usage of such powers, the Premier
of Ontario (where Ottawa is) has said that they are willing to support the federal
government and any proposals that bring law and order back, but other provinces such as
Alberta, Manitoba, Saskatchewan and Quebec are less supportive.
The Federal Parliament of Canada will also need to vote to confirm the Emergency
Powers as well within 7-days, which could potentially be a challenge as Trudeau leads a
minority government, although support in the lower house for Trudeau is likely high
enough with the likely support of the New Democratic Party. But the Senate, upper house,
will be a unique challenge as its composition is by appointment and members can serve
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until they reach the retirement age of 75 and so it cannot be any kind of guarantee for it to
vote in step with the largest governing party. The Senate is meant to act as a checks and
balance, and so when it comes to this, they may want to take some time to seriously
consider such options, as implications are high and such powers are extraordinary and
have not been invoked before.
If the Federal Parliament fails to approve the powers within the 7-day timeframe then the
emergency powers are automatically revoked. And even after any approval the
Parliament has the power to vote to revoke the emergency powers at any time.
But ignoring all of these arguments and requirements of whether it is lawful or not
to actually use these emergency powers – what do the emergency powers
provide?
The emergency powers grant the federal government with temporary additional and
necessary powers, including the ability to make orders or regulations that are believed to
be on reasonable grounds to respond to the outlined issues.
Such powers, when it comes to a Public Order Emergency, include the ability to block
travel to and from defined areas, the ability to order evacuations of people and personal
property, and compel people and companies by law to provide essential services.
Pretty much all of these powers can be used to put an end to the protests causing
blockades. Blocking travel to and from areas would help to contain the protests, ending
the blockage of important routes and essential areas; evacuations could also be used to
remove protests from certain areas; and compelling essential services could be for things
such as making tow-truck companies remove protesters trucks from certain areas – as it
stands tow-truck companies have refused to render their services to authorities for
removal of trucks, for reasons of not wanting to be caught in the cross-fire and also facing
threats.
I found an article from Canada’s Justice Department that seems to outline some of the
areas the usage of the powers will focus on and is mostly geared towards the removal of
blockades (but not peaceful protests themselves). This includes…
The ability to regulate and prohibit public assemblies and blockades – but not lawful
advocacy, protest or dissent. Designating and securing places where blockades are to be
prohibited – which can include borders, approaches to borders, and critical infrastructure
among other things. Authorizing or directing specified financial institutions to render
essential services to relieve the impact of blockades, such as by regulating or prohibiting
the use of property to fund or support blockades. Imposition of fines or imprisonment for
contravening any measures declared under the Public Order Emergency.
So clearly, the federal government wants to remove the disruptive blockades but has
made sure to indicate that protests and dissent will still be allowed.
Military intervention is also an option but this would be a last resort, with Trudeau
reluctant to use it.
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Banks and financial institutions will also temporarily be able to freeze the accounts of
those suspected of supporting blockades (with the aim of cutting off funding activity
towards these protests), and for this most significantly, a court order would not be
required. Insurance on vehicles within these protests can also be suspended as well.
Crowdfunding platforms and payment providers will also be brought under terror-finance
oversight, and are compelled to report any suspicious activities to Canada’s anti-money
laundering agency. This is in a bid for the Government to crackdown on funding of what it
calls illegal activities, such as the blockades and things that damage the economy.
Federal authorities will also be taking steps to reinforce provincial and local law
enforcement.
Trudeau has said that such measures will only be used in geographically specific areas
and only targeted to where they are needed, and that all measures will be time limited. He
also justified such measures by saying that the blockades were harming the economy
and endangering public safety, and that such illegal and dangerous activities cannot
continue.
All temporary laws made under such powers are also still subject to be challenged in
court and are subject to rights and freedoms of the Charter of Rights and Canada’s
Constitution. And it also must take into account obligations under international law.
The Charter of Rights balances the rights of the individual with the interests of society,
and so limits on guaranteed rights and freedoms can be justified in a free and democratic
society. It does sound odd but that’s only if you think about it on the surface level. Most
constitutions of the world include emergency provisions that allow limiting of certain rights
and freedoms under certain extreme circumstances.
Section 1 of the Charter of Rights does allow the Government to put limits on rights and
freedoms, but only if those limits are set out by law; pursue an important goal which can
be justified in a free and democratic society; and pursue that goal in a reasonable and
proportionate manner.
Stringent safeguards are also built into the Emergencies Act in order to enable
democratic oversight and accountability during an emergency. There are a number of
procedural steps that are taken…
The Government must declare the emergency formally, effective from the day that it
is made – this part has already been done.
The Government then tables the Motion in Parliament within 7-days, in both the
House of Commons and the Senate. This asks for confirmation of the already-made
declaration and also explains the reasons for the declaration. This process also
involves the Government giving Parliament a report on consultations held in the
relevant provinces before the making of the declaration.
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After this both Houses of Parliament will be set to vote on the Motion – both of them
need to pass it, and if either one of them rejects the motion, then the declaration is
revoked that same day.
For the above processes, if either House is not currently sitting, they are recalled.
For reasons of transparency and accountability, after the declaration has been
approved, the Government must table all orders and regulations it performs during
the Emergency, they are tabled before both Houses at least two days after such
orders and regulations have been issued.
A review committee is also established in Parliament, it is a special joint-committee
between both Houses. It reviews Government actions during the Emergency.
The Parliament has the power at any time to revoke any actions, orders or
regulations taken by the Government during the Emergency or even revoke the
declaration of emergency powers outright.
Emergency powers expire after 30-days by default, but it is possible to extend this
period through confirmation of both Houses.
When the Emergency powers have come to an end an inquiry is held into the
actions, orders and regulations taken by the Government during the emergency.
The Government has 360-days to table a report after the expiration of Emergency
powers before both Houses of Parliament.
So, as can be seen there are a lot of checks and balances included. But the ultimate
question is – is this the right move to make? Is it too far to do this for protests that are
relatively peaceful? Could this have been resolved without needing to use Emergency
powers? Was the Government truly justified in this? And… did it even work at all?
These are the kind of questions that will likely be answered after all is said and done.
Until then debate will continue on over whether this is justified.
Sources – (1) (2) (3) (4) (5) (6)
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