What Does Invoking the Emergencies Act Mean?

On Monday, Prime Minister Justin Trudeau invoked the Emergencies Act for the first time in Canada's history, granting the federal government additional powers to break up the ongoing occupation of Ottawa by protesters opposed to public health restrictions and vaccination rules.

• As we noted in yesterday’s newsletter, Trudeau said the powers will be geographically targeted to deal with protests in specific areas – namely, downtown Ottawa.

But what specific powers does the Act give the federal government, and what has the response to the measure been so far?

• As explained by the Toronto Star Monday, the Act enables police to “create no-go zones around critical infrastructure such as border crossings and downtown Ottawa, halt public assemblies that “breach the peace” in those red zones, commandeer tow trucks in order to remove big rigs blocking streets, and freeze or suspend protesters’ bank accounts and vehicle insurance coverage.” Under the measures, the RCMP can act as local and provincial police.

The government will also require crowd-funding platforms, through which the occupation's far-right organizers raised millions of dollars, to report “large and suspicious transactions” to the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC). Trudeau said the emergency declaration does not mean the government is calling in the military to deal with the occupation.

• Anyone found violating emergency orders can be fined up to $5,000, face up to five years in jail, or both.

The Act, which replaced the War Measures Act in 1988, can only be invoked in the event of a “national emergency,” which is defined as:

“An urgent, temporary and critical situation that seriously endangers the health and safety of Canadians or that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.”

• The four types of emergency that can be declared under the Act relate to public welfare, public order, international emergencies and war.

The Act also stipulates “democratic safeguards,” which are designed to “ensure democratic oversight and accountability with respect to the way in which the Government exercises its powers under the Act.” In particular, when the Act is invoked, “the Canadian Charter of Rights and Freedoms (Charter) continues to protect individual rights.”

• The Charter allows the government to balance individual rights with the interests of society.

In addition to Parliament voting on the use of the Act, a parliamentary committee must review the government’s emergency actions on an ongoing basis. Parliament can also revoke the emergency declaration and any regulations made under the Act.

• After the emergency declaration is ended, the government must hold an inquiry into its use of the Act within 60 days.

Trudeau declared a “public order emergency.” The Act defines this as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.” Special measures employed for a "public order emergency" remain in place for 30 days unless the government revokes them or Parliament votes to extend them.

• “Threats to the security of Canada” are defined under section two of the Canadian Security Intelligence Service Act as relating to espionage, foreign-influenced activities that are “detrimental to the interests of Canada,” acts or threats involving serious violence against people or property for political or religious objectives, or activities intended to overthrow the government.

The so-called “freedom” occupation and supportive actions at international blockades have caused significant economic disruption. Public Safety Minister Marco Mendicino said Monday that government intelligence agencies believe a “significant percentage” of funds donated to the occupation come from foreign contributors.

• On Monday, CBC News reported that more than half of the individual donations listed in a recent leak from the website “GiveSendGo” came from the U.S., but Canadians gave more money overall to the occupation.

On Tuesday, Mendicino said that under the Emergencies Act, the police will establish "no-go" zones in Ottawa's downtown core.

• He said, however, the occupation will be difficult to clear.

The response

In terms of political responses, Trudeau faced pushback for invoking the Act from federal Conservatives, the Bloc Quebecois and conservative premiers. He received support from the federal NDP and Ontario Premier Doug Ford.

• On Twitter, the Canadian Civil Liberties Association said Monday the federal government had not met the necessary threshold for invoking the Emergencies Act.

“Governments regularly deal with difficult situations, and do so using powers granted to them by democratically elected representatives,” the group stated. “Emergency legislation should not be normalized. It threatens our democracy and our civil liberties.”

• Leah West, an assistant professor at Carleton University’s international affairs department, also questioned the government’s use of the Act.

West told the Star Monday it is not clear whether the Act’s definition of a “national emergency” is met by the occupation and recent blockades: “Does the government know something the rest of us don’t know? And if that’s the case, I want to see that with the declaration as to why this amounts to a national emergency.”

• Critics noted the government did not implement the Act over the nearly two-year course of the COVID-19 pandemic, which has killed more than 35,000 Canadians. In April 2020, during the first wave, Canadian premiers told the feds not to invoke the Act.

In Passage, Nora Loreto argued: “Use of the Emergencies Act isn’t necessary to deal with the convoys — city tow trucks and bylaw enforcement are enough. Even moving the camps off of major arteries and isolating them into adjacent parks or parking lots could have been an option.”

• Loreto further wrote that using the Act could set a precedent for impeding everyone’s right to assemble, even for those who strongly oppose the occupation. Last weekend, counter protesters against the occupation said they received hostile responses from police.

Others, however, pointed out that the federal and provincial governments already employ draconian force against Indigenous land defenders even without the special powers enabled by the Act.

• Writer Q. Anthony Omene, meanwhile, expressed concerns about Finance Minister Chrystia Freeland’s announcement of measures going after the bank accounts of occupation supporters.

Omene tweeted Tuesday: “As far as I know, this degree of pre-emptive surveillance and punishment not even based on crimes, but the mere suspicion of *assisting* with protest action the government deems illegal or offside, is unprecedented.”

• He added: “I worked in the financial industry for a decade and I've seen innocent people get jammed up on a much higher threshold for red-flagging their accounts than this.”