Civil Liberties Group to Challenge Constitutionality of Ottawa’s Use of Emergencies Act in Upcoming Hearing

A civil liberties group says the fact that the federal government has yet to prove that the legal threshold to invoke the Emergencies Act earlier this year to address the Freedom Convoy protests was met will be the group’s focus in an upcoming public hearing.

The Public Order Emergency Commission is scheduled to begin on Oct. 13 to examine the events that led to the declaration of the public emergency on Feb. 14. The hearing in Ottawa will run until Nov. 25, the commission said in a news release issued on Oct. 11. A final report is to be published in February 2023.

Cara Zwibel, director of the fundamental freedoms program at the Canadian Civil Liberties Association (CCLA), said her group will participate in the hearing “with an open mind,” but noted that the commission needs to scrutinize the constitutionality of Ottawa’s decision to invoke the Act.

“The protests needed to be addressed but the government also had an obligation to comply with the law and use emergency powers as a truly last resort. That was not the case, and it is our opinion that their actions were unlawful and unconstitutional,” Zwibel said at a press conference on Oct. 12.

“In our view, the government has yet to prove that the legal threshold to invoke the act was met, and the burden is on them, not the other way around.”

Apart from the question of meeting the legal threshold to invoke the Act, Zwibel also listed several questions that she said the inquiry should address, including whether there were genuine concerns about threats to national security, what was the evidence supporting the government’s belief that there was a threat to security or a serious threat to the lives, health, or safety of Canadians, and whether the government considered any alternatives to tackle the situation.

“How did the protests and blockades impact the rights and freedoms of people in Canada? And perhaps more significantly, how did the emergency orders that were put in place impact the rights and freedoms of people in Canada?” she said.

The CCLA and the Canadian Constitution Foundation launched legal challenges against the federal government later in the week after the declaration of the emergency orders.

Accountability

The Freedom Convoy protest began in late January to protest the federal government’s COVID-19 restrictions and the mandatory vaccination mandate. While refusing to meet with the protesters, Prime Minister Justin Trudeau’s government invoked the Emergencies Act on Feb. 14, for the first time since the act replaced the War Measures Act in 1988, which had been invoked three times: during the two World Wars and the 1970 FLQ crisis in Quebec.

The Act gave the police additional powers to remove demonstrators from downtown Ottawa, as well as at several Canada-U.S. border crossings where protesters had set up blockades to show solidarity with those at the national capital. Most of the blockades had cleared by the time the act was invoked. Over the weekend of Feb. 18, thousands of law enforcement officers conducted operations to clear trucks and protesters, while hundreds of financial accounts belonging to convoy supporters were frozen without a court warrant under the act’s financial measures.

“When the Emergencies Act was first proposed as a bill, the Canadian Civil Liberties Association advocated for meaningful oversight and accountability mechanisms to ensure that the gross violations of civil liberties that had taken place under the War Measures Act would not be repeated,” Zwibel said.

Alain Bartleman, the CCLA’s special adviser on indigenous issues, noted that the act is meant to address issues of greater significance than a civil protest.

“This law has to be implemented by the federal government to face different emergency situations that are of such proportion or nature as to exceed the capacity of a democratic process to resort to its power, necessitate a reasonable base so that we can settle any matter threatening the safety in Canada, and such that it is a national emergency,” Bartleman said at the Oct. 12 press conference.

“It has to be demonstrated that the lives and safety of Canadians have been seriously endangered and that provinces did not have the measures to face this kind of measures.”

On Oct. 11, the Commission released a list of 65 witnesses to appear for the hearing, including Trudeau, Deputy Prime Minister Chrystia Freeland, Attorney General David Lametti, along with convoy organizers Tamara Lich, Benjamin Dichter, and Chris Barber.