I spent a considerable amount of time reviewing both the Emergencies Act and the new powers contained within the motion presented to Parliament. My argument opposing the invoking of the Act has more to do with the legalities, rather than a political argument.
When reviewing the motion, we as Parliamentarians had two consider two items: the first was did it meet the legal justifications to invoke the Act and then we had to consider the individual new powers contained in the regulations.
On the first point, for the Act to be invoked to deal the protests and across the country, three criteria must be satisfied.
The first criteria is there must be an urgent, critical and temporary situation where there is serious violence or the threat of serious violence against people or property for the purpose of achieving an ideological or political objective.
The second criterion that must be met is that either the situation endangers the lives, health and safety of Canadians, and is of such proportion or nature as to exceed the capacity or authority of a province to deal with it, or the situation seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.
The third criterion that must be satisfied is that the situation “cannot be effectively dealt with under any other law of Canada”. As was mentioned in the House, it is important to note that the Act uses the word “effectively” rather than “ideally”.
I must stress that all three of these criteria must be legally met in order for the Act to be invoked. While the government could make a solid argument for the first two criteria, I could not vote in favour of the motion as I do not believe they met the third criteria.
The government made an announcement about the public order emergency on the afternoon of February 14, but the promulgation of the three orders in council effecting the powers took several days. The blockades ended in Windsor on February 13, in Surrey on February 14, in Coutts on February 15 and in Emerson on February 16. It is clear that the border blockades were effectively dealt with under the existing laws of Canada and not under Emergencies Act powers.
Here in Ottawa, while Emergencies Act powers were used, they were not needed. Chris Lewis, the former Ontario Provincial Police Commissioner stated that publicly, as have others. Mr. Lewis said that there was a lack of law enforcement and a lack of police officers, but not a lack of laws to enforce. He also said that making arrests, seizing trucks, towing, cordoning off the city, putting up checkpoints and getting thousands of additional officers to assist the Ottawa police could all have been done under the existing laws.
I was also reading the most up to date information and since the Emergencies Act was invoked, not a single person has been charged under the new offences provided in the regulations. While on the face of it some people might look at that as a good thing, from a legal perspective, the government’s lawyers will have difficulty justifying why invoking the Act was needed.
We also saw how other police forces in the country such as Quebec City, Vancouver, and Toronto were able to turn back vehicles from those protests, while also clearing out any trucks or vehicles, without using the Emergencies Act.
In respect to the freezing of the bank accounts, it could have been done under existing law. The Ontario Attorney General did exactly that earlier in February, when he obtained a court order under section 490.8 of the Criminal Code to freeze access to millions of dollars donated through the platform GiveSendGo. By using the Emergencies Act, they didn’t need a court order to do so, which is why I believe they are in contravention of Section 8 of the Charter.
I am not convinced all three criteria to invoke the Act were met. As I mentioned in my speech during the debate on invoking the Act, one doesn’t have to condone the protests in order to be opposed to using the Emergencies Act.
I am also going to be following the legal challenges quite closely, as this will be the first time the Act will be tested in court. The government will have to prove that the existing laws were not sufficient in order to meet the third criteria, while also defending the Constitutionality of the new powers.
Now after saying all of that, with news that the Act is no longer required, it is my sincere hope that we do an extensive review of how it was used. It would also be wise for the court challenge to go forward, in order to test its justification for being invoked in the first place. That will help determine the future use of the Act, which hopefully will go back into hibernation for another three decades.