Questions regarding how the Liberal government decided to use the Emergencies Act deserve answers, says a Canadian law professor, who hopes that legal action and public pressure will bring disclosure.
In an interview with The Epoch Times, Ryan Alford, a law professor at Lakehead University in Thunder Bay, Ont., said the requests for judicial review currently in the works are attempts worth making on such a serious issue.
“When people are challenging the Emergencies Act, they’re asking whether or not the government did the most cynical and unconstitutional thing imaginable, namely, to expand their own powers unconstitutionally on a pretext,” Alford said.
“It’s on everyone’s mind: Did the federal government unconstitutionally expand its powers pursuant to the Emergencies Act, such that not only did they take actions that were bad policy or repressive or even infringing of the charter, but unconstitutional on their face as an expansion of their own powers?”
The act, invoked on Feb. 14, authorized the seizure of bank accounts of those involved in the trucker convoy protest in Ottawa. On Feb. 22, Isabelle Jacques, assistant deputy minister of finance, told a House of Commons committee that up to 206 bank accounts holding about $7.8 million were frozen under the provisions of the act.
Alberta Premier Jason Kenney, the Canadian Constitution Foundation, and the Justice Centre for Constitutional Freedoms launched legal challenges over the invocation of the act. The litigants are seeking a judicial review on its use and an unsealing of documents regarding cabinet deliberations prior to the invoking of the act, such as transcripts of cabinet conversations and documents presented to cabinet.
Alford says the public record thus far is inadequate.
“The Emergencies Act says you shall table in Parliament your explanation as a cabinet for the proclamation of the Emergencies Act. Now, let me tell you, this was quite remarkable. When I finally saw it I wasn’t convinced that it was anything other than a forgery. I saw this document not on letterhead, with no signature. It had really poor legal reasoning in it,” he said.
“The specific allegation of why there was a public order emergency significant enough to affect the national security or territorial integrity of Canada was that there were people trying to execute political change in Canada and they were doing it by means of terrorism.
“It talked about the hacked material from GiveSendGo, which of course has no chain of custody. And the other main thing cited in this official explanation—and I am not making this up—was CBC news reports. CBC news reports were cited in the official explanation tabled in Parliament for a factual basis for the jurisdictional application of the Emergencies Act.”
Testimony to House of Commons committees gave little indication of a serious threat. Barry MacKillop of the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) testified on Feb. 10 that there was no spike in suspicious transactions, despite millions of dollars given through crowdfunding to the convoy. On March 7, RCMP Director of Financial Crime Dennis Beaudoin said he had not seen any evidence of terrorist activity in the funding of the protests and blockades. And on March 24, Ottawa Police interim chief Steve Bell said there were no loaded firearms found at the protest, contradicting some media reports.
Alford says it is “an uphill battle” to have the confidences waived because no judge who requests it can legally compel the government to do so. He hopes that public pressure will make it impossible for the Liberal government to refuse.
“There’s a special parliamentary committee … to review this very question of whether or not they had a basis to proclaim the Emergencies Act. How can that parliamentary committee do its job without a waiver of the cabinet confidences?” he says.
“If they’re going to then hide behind cabinet secrecy, I don’t think anyone’s going to be convinced. And that would be incredibly corrosive of public confidence in government—as if any further corrosion is possible.”
The Epoch Times contacted the federal government for comment on the issue, but didn’t hear back by publication time.
Alford says a judicial review could find the government guilty even without the evidence, and if so there will be redress for those impacted by the order.
“What that would mean is, every action taken, every fine given, every punishment handed out under those regulations, was ultra vires—beyond the powers of the government—and therefore of no force and effect. So what they did under that has to be undone to some degree. … Anyone who lost a mortgage would have to be made whole by the government here.”
Politics and Law
Not all litigants against the Emergencies Act are seeking a judicial review. Alex Nanoff, spokesperson for the Canadian Civil Liberties Association, told The Epoch Times: “We did not structure our case in a way that requested the government disclose documents that might be subject to cabinet confidences, [but] we have been closely following the discussions between the other parties.”
Ottawa criminal lawyer David Anber has clients who were arrested at the protest site or had bank accounts seized. He said in an email that public pressure could “potentially” unseal cabinet discussions, “but this specific issue is a political, not a legal one.” Although he agrees there was inadequate justification for the Emergencies Act to be invoked, he did not apply for a judicial review.
“This is a fool’s errand. Even assuming we get that [judicial review]—which will itself be an exhausting and likely fruitless effort—no charges to my knowledge were ever laid under the EA. Every case I have involves charges under the Criminal Code or other previously existing legislation. … [T]hey had the tools to do what they wanted without needing to engage the EA.”
Finance Minister Chrystia Freeland said on Feb. 14 the power to suspend people’s bank accounts was inadequate prior to the Emergencies Act, and announced that that aspect of its powers should be made permanent.
“We … used all the tools that we had prior to invocation of the Emergencies Act, and we determined that we needed some additional tools. We will be putting forward measures to put those tools permanently in place,” she said.
“The authorities of FINTRAC, I believe, do need to be expanded to cover crowdsourcing platforms and their payment providers. So that is something that we need to do, and we will do, and that needs to be in place permanently.”
Some opposition MPs remain deeply concerned about the net effect of the act’s implementation, given that some people who were only marginally involved in what was ultimately a peaceful protest were nevertheless shut out of the financial system.
On a campaign stop in Moose Jaw, Sask., on April 4, Conservative MP and leadership candidate Leslyn Lewis said the prime minister had “ruined the lives” of truckers and others through using the act, including a single mother in her constituency of Haldimand-Norfolk, Ontario.
“She bought her daughter a trucker T-shirt and her bank account was frozen. She had no food and she couldn’t pay her rent. And she was in tears that a government can encroach on your personal freedom without any due process, without going to the court, and freeze your bank account. Can you imagine when we have digital currency how easy that will be? So it is scary.”