Opinion: Whether or not the Emergency Measures Act is the solution, lockdowns are a growing problem

Truck drivers and others protest restrictions related to the COVID-19 pandemic in Ottawa on February 12, 2022. The Trudeau government invoked the Emergencies Act in response to the Ottawa protest and the blockages associated with various border points.Ted Shaffrey/Associated Press

The Trudeau government’s decision to invoke the Emergencies Act to relieve the siege of Ottawa and associated blockades at various border points is, according to the Toronto Star, “a shocking admission of failure.” It certainly is. It doesn’t hurt.

It should never have come to this, but it did. The police should have stopped the blockades from taking hold, but they did not. There will be plenty of time to debate why the stable door wasn’t locked, but for now the job is to get the horse back into the barn. The question is whether the Emergencies Act is the right way to go.

Let’s be clear, first, about what the Act does not do. It does not empower the government to call in the military or suspend charter rights. The declaration of emergency (giving effect to its powers) must be confirmed by a vote of Parliament and only applies for 30 days. Whatever actions the government takes under the law are subject to oversight by a parliamentary committee and review by the courts. The onus will be on the government throughout to justify its use of the Act.

Explanation: What is Canada’s Federal Emergency Measures Act? A summary of the powers and uses of the law

The first hurdle will be to show that the declaration of a “public order emergency” satisfies the test contained in the Act itself: “threats to the security of Canada” that are “so serious as to constitute a national emergency – defined more precisely as an “urgent and critical situation” that “seriously endangers” the “life, health or safety of Canadians” to an extent that exceeds “the capacity or authority of the provinces” or “threatens seriously” the “sovereignty, security and territorial integrity” of Canada, and which “cannot be dealt with effectively under any other law of Canada”.

It is far from clear that the government can cross this bar. He can probably argue that there is a danger to public safety, and the testimony of the Ontario government is probably sufficient for the courts to find a lack of provincial capacity. Alternatively, he could reasonably argue that the repeated blockages of border crossings pose a threat to our sovereignty and territorial integrity. But “threats to the security of Canada” has a specific meaning, set out in the Canadian Security Intelligence Service Act, so strict that it’s hard to imagine the courts would find it applicable.

Suppose they did. That doesn’t necessarily make it a good idea. Critics raise two main objections to the use of the law in this case: first, that it is unnecessary – the police already have the powers they need, if only they used them – and second, that it is disproportionate : the powers it gives to the police are too vast in relation to the problem they are trying to solve. Much will depend on the precise measures the government proposes, but when looking at the kinds of powers the law contemplates, it’s also not clear which critics hold, particularly in the particular circumstances of the moment: the use of large trucks to obstruct critical infrastructure.

A practical problem facing the police, for example, is the reluctance of towing companies to remove the offending trucks, for fear of the consequences for their business. Thus, the power to order “any person…to perform essential services of a kind which that person…is competent to provide” would seem both necessary and proportionate. The power to prohibit a public assembly “which may reasonably be expected to lead to a breach of the peace” or to regulate “travel to, from or within a specified area ‘, though extraordinary, would seem appropriate in places where law and order has entirely broken down.

Finally, the financial powers sought by the government – freezing the bank accounts of the trucking companies involved, suspending their insurance, and subjecting crowdfunding sites such as GoFundMe to existing anti-money laundering laws – look, on the face of it, like useful additions to the law enforcement toolbox: again, given the circumstances. Like any police power, however, they harbor the potential for abuse, and like all the measures proposed by the government, they will have to be rigorously justified, before Parliament, the courts and the nation.

It should be clear, however, that we have a serious problem on our hands. Twice in the space of two years, this country has come close to being brought to its knees by protesters using blockades to advance a political cause. It seems equally clear that these pose unique challenges to law enforcement, beyond the failings of any particular police force. What we need in the long term may not be the sweeping brush of the Emergencies Act, but legislation more precisely tailored to a problem that is likely to haunt us for some time.

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