Representatives from the Canadian Civil Liberties Association announced legal challenge over use of Emergencies Act – February 17, 2022
This week, the federal government invoked the Emergencies Act, an extreme law that has never been used, and two emergency orders all these where passed outside of ordinary Democratic processes.
Representatives from the Canadian Civil Liberties Association held a news conference Friday morning to announce a legal challenge of the federal government’s use of the Emergencies Act. The government invoked the measure on February 14 as part of an effort to resolve ongoing blockades and protests in several parts of the country. Speaking with reporters are Noa Mendelsohn Aviv, executive director and general counsel; Abby Deshman, director of the criminal justice program; and Ewa Krajewska of Henein Hutchison LLP, who is acting as counsel for the CCLA in the challenge made the following statements;
“This week, the federal government invoked the Emergencies Act, an extreme law that has never been used, and it announced two emergency orders that will have sweeping consequences on individuals, orders that had passed outside of ordinary Democratic processes. The Canadian Civil Liberties Association has spoken out loudly against this declaration, and today we have our own announcement. We are taking the government of Canada to court. We are here today because of the government's response to the protests and blockades. The government's emergency declaration is unprecedented and seriously infringes the charter rights of Canadians. The government has brought in an extreme measure that should be reserved for national emergencies, a legal standard that has not been met. Emergency powers cannot and must not be normalized for all the peaceful and disruptive protests in Canada's history, some involving unlawful acts and protected standoffs with police. Never before has the government declared a national emergency under the Emergencies Act and with that, given itself the enormous powers to bypass the ordinary, accountable Democratic process. Our commitment to equality and other rights is the reason that we strongly support the charter right to peaceful assembly. This is how marginalized people can stand up for their rights. Protest is how people in a democracy express and share their political messages of all kinds, whether they be environmental activists, students taking to the streets, Indigenous land defenders, workers on strike, people who know that Black Lives matter, and others who oppose government measures of all kinds. Our society needs peaceful assembly, a critical Democratic tool. And even though not every person may agree with the content of every movement, many protests are disruptive. It is possible for a gathering to be both disruptive and peaceful and nonviolent. Disruptive protest, while often unlawful, like shutting down pipelines or camping out in a public space, can be the most effective way of raising awareness. And at protests, many different kinds of people might end up in the same space, joined by a common cause.
The Canadian Civil Liberties Association has retained counsel to launch a judicial review challenging the government's invocation of the Federal Emergency Act. The act gives the executive branch of the government extraordinary powers, and the legal threshold to use these extraordinary powers is intentionally high. Ensuring this threshold is met is a critical protection for the Democratic process, the rule of law, and the civil liberties of individuals that may be impacted by these emergency orders. In our view, the threshold set out in the Emergencies Act, the legal requirements put in place to safeguard our Democratic processes have not been met. Section three of the Emergencies Act requires that there be a national emergency a temporary, urgent, and critical situation that seriously endangers the lives, health, or safety of Canadians and is of such proportions or nature that it exceeds the capacity or authority of a province to deal with it. It also encompasses situations that seriously threaten the ability of the government of Canada to preserve the sovereignty, security, and territorial integrity of the country. In either case, the emergency must be such that it cannot be effectively dealt with under any other Canadian law. We do not want to minimize the impact that the protests are having on people across the country. But while some of the blockades have been immensely disruptive, it is unclear that the ongoing protests endanger the lives, health, or safety of Canadians so seriously that they constitute a national emergency. It is also far from clear that our existing laws and police powers are ineffective in confronting this challenge. Police deal with extremely complex, difficult law enforcement situations every day. Local police across this country have cleared several highly disruptive border blockades and are successfully managing numerous other protests in communities across the country, all without emergency powers. There are some localized situations that have proven much more difficult to police, but the emergency orders that the government has passed are not targeted. They are not limited to specific protests or specific geographic locations. They are expanse of emergency orders that apply equally across the entire country, and they place unprecedented restrictions on every single Canadian's constitutional rights. In other words, they apply to everyone you, me, everyone. These emergency orders currently enforced place severe limits on peaceful protest. Police have now been given the authority across the country to shut down a wide range of peaceful protests if they're snarling traffic or blocking sidewalks. Protests that take place close to bus stations, hospitals, or Covid 19 vaccination sites are specifically restricted, even if they aren't disrupting traffic. The order also requires financial institutions to turn over the personal financial details to Cesis and the RCMP, and to freeze the bank accounts and cut off all financial services of people who have attended or have provided assistance to those participating in a prohibited assembly. Again, these orders are not limited to Ottawa. They don't apply only at the border. They are not specifically targeting trucker convoys. These orders limit the rights of every single Canadian, with a particular focus on people who participate in, travel to or assist with the protest, no matter where it takes place, no matter the issue. There are thousands of protests in Canada every year, protests about climate change, Indigenous land claims, anti black racism, and, yes, protests in support of and against public health measures. The vast majority of these protests are entirely peaceful. These orders potentially apply to them all. We believe that the federal government's invocation of these emergency powers is unlawful and unconstitutional. The Prime Minister has repeatedly said that the charter of rights and freedoms continues to apply. We agree, and we believe that these measures are clearly unconstitutional. We will be asking the courts to step in to defend the rule of law and the constitutional rights of all people across the country.”
”If you wanted to stretch the Emergencies Act and make it a normal power that governments could bypass Democratic processes, something that we strongly oppose, then you could argue that any kind of protest at any time, anywhere and many other activities constitute a national emergency every time police have to deal with organized crime or a difficult law enforcement situation, that too threatens the lives and safety of Canadians. But the Emergencies Act is clear. It has to be a very serious danger to the life, health and safety of Canadians. That is completely overwhelming to the provinces, or it has to be a serious threat to the territorial integrity, security, or sovereignty of Canada that Canada does not already have laws to address. That is what we mean by the rule of law. We want Democratic laws to address difficult situations, not emergency powers that should not be normalized for situations that can be dealt under democratically created laws.”
”There are lots of protests that have similarly been incredibly disruptive, unlawful and violent. Think of the protests that happened in Quebec where there were thousands and thousands of students flooding the streets of that province for months on end, including property damage, including confrontations with the police. We can think of the G 20 protest in Toronto where police cars were burned downtown. It is not unprecedented for protests to also include very concerning acts of property damage and violence that sometimes happens during a protest. That in and of itself does not mean that the Emergency's Act is the appropriate response. In fact, to date, throughout the past 30 years, Canadian police have successfully dealt with a very wide range of protests without resort to emergency legislation.”