What the Emergencies Act is not

My take on the Public Order Emergency Commission

With the close of hearings at the Public Order Emergency Commission (POEC) it may be a good time to speak to some of the misrepresentations of the Emergencies Act (EA). It has been frequently referred to as the “nuclear option”, as executive “overreach” or, by even less reasonable commentators as “something close to martial law” or as a major breach of rights.

Of course, despite the War Measures Act serving as its predecessor legislation, the Emergencies Act does not permit anything close to the use of martial law. Indeed, it does not purport to allow the government to do anything contrary to the Constitution, including the Charter of Rights and Freedoms. The preamble to the EA explicitly notes that government actions under it are subject to the Charter, and even if it didn’t, the Constitution would demand it.

The EA is not some higher law or even quasi-constitutional statute that permits governments to abandon the Constitution, rights, or rule of law. It does permit government to take actions that would otherwise be unavailable to deal with exigent circumstances - be they public welfare, public order, or international emergencies. These include compelling evacuations, removing people from designated areas of concern, allowing the seizure or use of property, and police searches that might not otherwise be permissible in ordinary situations. But even in those circumstances the actions taken must not unreasonably infringe rights.

Of course it is understandable that journalists, lawyers, civil liberty organizations and others would hold the invocation of the EA to the highest degree of scrutiny - the EA itself requires a public inquiry following its use, and the POEC is the result. We will find out in February what the Commissioner, Justice Rouleau, thinks about the circumstances of its use and the measures employed to deal with the convoy.

A more specific legal question is whether the EA was lawfully invoked. For the record, I am more than satisfied that it was. Security experts will dissect carefully the definition of threat to the security of Canada under section 2(c) of the CSIS Act as referred to in the EA (“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”). Some believe this requires an exceedingly high bar, a threat of violence much more grave than the convoy represented. By contrast, I believe there is more than enough evidence that the threat of serious violence was real, both in terms of what was uncovered about the various sites of activity during the convoy and the stated aims of those involved, including its leadership. That some people were merely engaged in peaceful protest does not erase the insurrectionist aims of convoy organizers, the presence of weapons with alleged plans to use against the police, the ongoing and severe threat to public safety in downtown Ottawa, and the advice the government was receiving that attempts to clear the occupation would result in serious violence.

The EA can only be invoked if there is a “national emergency” seriously endangering the lives, health or safety of Canadians, exceeding the capacity of a province to deal with it, “and that cannot be effectively dealt with under any other law of Canada.” This latter point is not a mere theoretical question. The POEC demonstrated what was already clear to those of us who followed the convoy protests themselves: the police were either unable or unwilling to act. It doesn’t matter, frankly, what existing laws might or should have been able to deal with: they did not, and therefore could not handle the occupation of the country’s capital. Nor does it matter much that the Ambassador Bridge blockade was cleared before the EA took effect: the entire crisis requires a holistic appraisal, including, as the Prime Minister correctly stated yesterday in his testimony, the threat of new blockades or occupations cropping up.

Moreover, none of these requirements are assessed with respect to legal ‘certainty’. As Andrew Coyne correctly points out in his latest column, the EA only requires that the government have reasonable grounds to believe that a public order emergency exists, as section 17(1) of the EA states: “When the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency.”

Perhaps the most overt example of the legal confusion that may reign over this question is the fact that the head of CSIS simultaneously didn’t believe the convoy constituted a threat to national security as defined in the CSIS Act but nonetheless advised the government to invoke the EA. I think it becomes hard for experts to claim, at the end of the day, that the government did not have reasonable grounds to believe a public order emergency existed and that the EA was necessary to deal with the convoy (even if you think the CSIS head’s legal opinion was ‘correct’ and the advice to the prime minister was wrong). It becomes all the more difficult to claim the government lacked such reasonable grounds once you factor in the actual events and how they played out.

I’m also struck by how limited the measures actually employed were - it becomes difficult to characterize this particular use of the EA as dramatic “overreach” when it is viewed through sober eyes. The real risk is that if it is determined that the EA was triggered too casually then it may encourage future governments to use it in even less appropriate circumstances - I’m hopeful the inquiry process itself, and watching the PM get grilled for a day as part of it, will help mitigate such a risk.

The POEC featured a lot of inter-police and politician ass-covering too. No one came out of this looking good, expect perhaps the federal government itself, an outcome far from obvious going into the hearings. The Ottawa Police, its former chief, the OPP, the provincial government (I’ve already noted Doug Ford’s cowardice in dodging a call to testify), etc. all had their own lawyers involved in proceedings and each worked doggedly to defend their clients’ reputation. Indeed, there were times that it seemed they were less like lawyers so much as PR reps. But none could claim they had it handled; the dysfunction at the core of the matter should give us all pause.

A key thing to note, especially for the purposes of this particular Substack, is that the question of the EA’s invocation is not a constitutional question. What I mean by this is: even if the EA had been improperly invoked, that does not mean the government automatically violated the constitution or Charter rights. Imposing tow trucks or temporarily freezing bank accounts are measures that must be assessed on their own terms, in the full context of both their objectives and their impacts on any relevant rights. The inverse is also true: perhaps the EA was properly invoked but some future court will find the government violated the Charter by using certain measures. Civil liberties groups are inherently right to be interested in these questions, but they are distinct.

There are also now reasons to consider amendments to the EA to clarify the sort of threats governments may face in the context of contemporary far-right populist insurrectionism. A more considerable challenge may be to ensure provincial authorities actually act if such events happen again in the future. This raises an obvious question: why is Doug Ford getting away with hiding during the convoy protests and permitting the indefinite occupation of Ottawa? (For that matter, why isn’t there an ongoing public inquiry into the massive governance failures we’ve witnessed - still ongoing - in dealing with the pandemic and protecting the hospital system?) In this light, the POEC is, perhaps ironically, a welcome splash of transparency and accountability in a country with far too little of it.