Trudeau says Emergencies Act won’t override fundamental rights — but experts aren’t so sure

Click to play video: 'The Political Implications of Invoking the Emergencies Act'
The Political Implications of Invoking the Emergencies Act
WATCH: The political implications of invoking the Emergencies Act – Feb 15, 2022

As Prime Minister Justin Trudeau stood at the podium and announced plans to invoke never-before-used emergency powers in response to the so-called “Freedom convoy,” he assured Canadians he won’t override their fundamental rights.

But with broad powers that go beyond what governments can normally do, some experts are warning the act could leave an indefinite scar on the face of the nation.

“The government is giving itself enormous power to do things outside of the ordinary democratic process,” said Noa Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association.

“The long-term implication (of this), in part, is the normalization of the use of emergency powers — and that’s very concerning.”

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The Emergencies Act was enshrined into Canadian law in 1988, replacing the War Measures Act, which Trudeau’s father, Pierre Elliott Trudeau, invoked during the FLQ crisis in 1970. The Emergencies Act was intended as a more restrained piece of emergency legislation — one that sets out strict criteria for the circumstances when its powers can be used.

The criteria are strict: to qualify as a public order emergency, a situation must meet the definition of “threats to the security of Canada” as outlined in the Canadian Security Intelligence Service Act — the act that regulates the powers of the country’s intelligence agency.

Click to play video: 'Some trucks move, others stay after Ottawa mayor’s deadline for protesters'
Some trucks move, others stay after Ottawa mayor’s deadline for protesters

But Mendelsohn Aviv warned that the convoy blockades might not meet the criteria set out in the act.

“The question really is: how have they demonstrated and justified the use of this act? And everything that they have written, and everything they have said, doesn’t seem to justify it on the terms of the act itself,” she said.

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There are four possible scenarios that meet the definition of “threats to the security of Canada” under the Act. “Lawful” protests don’t qualify. Instead, the threat must involve any of the following:

  • Espionage or sabotage against Canada or detrimental to the country’s interests
  • Foreign influenced activities, in or related to Canada, that are detrimental to the country’s interest, are clandestine or deceptive, or threaten people
  • Activities in or related to Canada that threaten, direct or use acts of serious violence against people or property to achieve a political, ideological or religious objective in Canada or a foreign state
  • Activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.

The government formally laid out its rationale for invoking the Emergencies Act in an executive order on Tuesday. The government argued the blockades are an emergency, and those involved have vowed to push back at efforts to clear them, which officials believe involved plans to use “serious violence” for “a political or ideological objective.”

“They’re saying this is a terrorist threat,” said Stephanie Carvin, a former national security analyst and professor at Carleton University’s Norman Paterson School of International Affairs.

While the order doesn’t use the term terrorism, it suggests the blockades are “in support of violent extremism,” Carvin explained. It also lays out the adverse impacts on the economy, she said, which the government argues are “serious enough to actually meet that threshold” that justifies the invocation of the Emergencies Act.

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“It’s talking about the adverse effects on the economy, our relations with the United States, and the breakdown in supply chains,” Carvin said.

For Mendelsohn Aviv, though, questions remain about how quickly the federal government ramped up its response. She points out that the public was still asking questions about what the Ottawa police were doing when the government took the plunge and invoked the Emergencies Act.

“That’s a huge leap,” she said.

Click to play video: 'Protests, counter-protests persist in Ottawa'
Protests, counter-protests persist in Ottawa

She’s not alone in questioning the rationale. Nomi Claire Lazar is a professor at the University of Ottawa who studies apocalyptic politics and states of emergency. She told Global News in a Monday statement — before all the details on the Emergencies Act’s justification were released — that questions remain about whether all of the powers available under provincial emergency laws have been used.

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“As long as the police are actually enforcing his orders, (Ontario Premier Doug) Ford has the power under the current state of emergency to get the job done,” Lazar said.

Either way, one thing is clear, according to Carvin — in invoking the Emergencies Act for the first time, Canada has “crossed the Rubicon.”

“It’ll be much easier to invoke this in the future,” Carvin said.

“So while I’m sympathetic to its use, thinking about the long-term effects of invoking this act now does still leave me with certain reservations.”

Click to play video: 'Disruptive Ottawa protest tests security limits of Canada’s capital'
Disruptive Ottawa protest tests security limits of Canada’s capital

Carvin pointed out that there were Indigenous-led rail line blockades from 2020, and at the time, people made similar arguments about the disruption of the supply chain and critical infrastructure.

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“There could be knock-on effects in the future.”

Mendelsohn Aviv shared this concern.

“Our charter allows for reasonable limits to be imposed on protest. Our charter doesn’t say that you can block highways forever. Of course not,” she said.

“But we also don’t want governments pulling out emergency powers every time there is a protest that becomes disruptive, because that’s how people stand up for their rights.”

Trudeau, meanwhile, is insistent that his government will be restrained in how it deploys the controversial act.

“We’re not using the Emergencies Act to call in the military. We’re not suspending fundamental rights or overriding the Charter of Rights and Freedoms. We are not limiting people’s freedom of speech. We are not limiting freedom of peaceful assembly. We are not preventing people from exercising their right to protest legally,” he told reporters on Monday.

“We are reinforcing the principles, values and institutions that keep all Canadians free.”

— with files from Global News’ Amanda Connolly 

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