The Canadian prime minister’s emergency act

The news media are variously reporting that Justin Trudeau has “declared a state of emergency”, “invoked the Emergencies Act”, “enacted autocratic emergency powers”, “declared martial law”, “suspended civil liberties”, along with other colourful descriptions of the Canadian prime minister’s recent announcement of the federal government’s latest response to the so-called Freedom Convoy protests occurring in Ottawa and elsewhere across the country.

What he has actually done is to declare a “public order emergency” under Canada’s Emergencies Act.[1] This has never been done before, although former PM Pierre Trudeau used the predecessor to the Emergencies Act – the War Measures Act – in dealing with the Front de liberation du Quebec during the so-called October Crisis in 1970. Like father, like son.

So what does the younger Trudeau’s declaration mean?

The Emergencies Act is for national emergencies

The preamble to the Emergencies Act states that its purpose is to ensure that the government can fulfil its duty to ensure the safety and security of the individual, protect the values of the body politic, and preserve the sovereignty, security and territorial integrity of the state during times of national emergency, by taking measures that may not be appropriate in normal times. For purposes of the Act, “national emergency” is defined as:

an urgent and critical situation of a temporary nature that

(a)  seriously endangers the lives, health, or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(b)  seriously threatens the ability of the Government of Canada to preserve the sovereignty, security, and territorial integrity of Canada

and that cannot be effectively dealt with under any other law of Canada.[2]

While this definition has not yet been analysed by the courts, there have been cases dealing with other legislation enacted by the federal government to deal with perceived national emergencies. These have been in the context of the federal Parliament’s powers to legislate beyond its specific spheres of jurisdiction set out in the Constitution Act, 1867[3], under its plenary power to pass laws for the “peace, order, and good government” of Canada.[4] (Contrast this with the U.S. Constitution, in which legislative power not specifically delegated to the federal government is reserved to the states, or to the people)[5]. The definition above is generally consistent with the definition of a national emergency adopted in these court decisions.

The Emergencies Act provides for four types of emergency declaration:

1. 1. Public welfare emergency
   2. Public order emergency
   3. International emergency
   4. War emergency

Protests declared a public order emergency

In this case, the government has declared a public order emergency. The declaration expires after 30 days unless it is extended.[6]

Public order emergency is defined in the Emergencies Act as follows:[7]

an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.

“Threats to the security of Canada” is defined as:[8]

(a)  espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,

(b)  foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,

(c)   activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious, or ideological objective within Canada or a foreign state, and

(d)  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,

but does not include lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to in paragraphs (a) to (d).

A portion of the actual text of the Order in Council declaring a public order emergency and defining that emergency is reproduced below. While the declaration tries to track some of the language in the definition above, it is highly questionable that the actual situation fits the definition. While it is true that lawful advocacy, protest or dissent does not include blockading public highways (see, for example, Alberta’s Critical Infrastructure Defence Act[9]), the simple fact that a protest may be unlawful does not make it rise to the level of a national emergency as defined in the Emergencies Act, which is a condition precedent to a public order emergency existing. It seems a serious stretch to suggest that the situation transcends the authority of any province, or that there is no other law in Canada that can effectively deal with the situation – see again, Alberta’s legislation as an example.

Partial text of the Order in Council

PC 2022-0106, February 14, 2022

Whereas the Governor in Council believes, on reasonable grounds, that a public order emergency exists and necessitates the taking of special temporary measures for dealing with the emergency;

And whereas the Governor in Council has, before declaring a public order emergency and in accordance with subsection 25‍(1) of the Emergencies Act, consulted the Lieutenant Governor in Council of each province, the Commissioners of Yukon and the Northwest Territories, acting with consent of their respective Executive Councils, and the Commissioner of Nunavut;

Therefore, Her Excellency the Governor General in Council, on the recommendation of the Minister of Public Safety and Emergency Preparedness, pursuant to subsection 17‍(1) of the Emergencies Act, directs that a proclamation be issued

(a)  declaring that a public order emergency exists throughout Canada and necessitates the taking of special temporary measures for dealing with the emergency;

(b)  specifying the emergency as constituted of

(i) the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada,

(ii) the adverse effects on the Canadian economy — recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID-19) — and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings,

(iii) the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States, that are detrimental to the interests of Canada,

(iv) the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number, and

(v) the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians;

Sweeping powers without due process

The declaration of a public order emergency bestows the Governor in Council (referring to the Governor General in Council, effectively meaning the cabinet, and thus effectively meaning the prime minister) with sweeping powers exercisable as the government sees fit in furtherance of dealing with the declared emergency. These include regulating public assembly, restricting travel, assuming control of public utilities, directing persons or companies to render services (with compensation), and imposing fines or imprisonment for contravening such orders.[10]

The Emergencies Act says nothing about the use of the Canadian Armed Forces in assisting with enforcement of orders issued under it. That said, the military is already under the control of the federal government. Trudeau says there are no plans to bring them in at this point.

Perhaps the most concerning of these powers is the government’s power to prohibit the use of specified property.[11] This would be the provision allowing the government to freeze protesters’ bank accounts, as the prime minister has threatened. This power appears to be virtually unlimited, as long as the government believes, on reasonable grounds, that such an action is necessary for dealing with the emergency.

The prime minister has stated that Canadians’ Charter rights will be respected through all of this. The preamble of the Emergencies Act also states that when invoking temporary emergency measures, the government “would be subject to the Canadian Charter of Rights and Freedoms”. While the preamble on its own provides no remedy, it is part of the law and is intended to assist in explaining the law’s purpose and object, and generally interpreting the law. However, beyond this, the Charter does not contain specific protections for property rights, so the promise to respect Charter rights is arguably an empty one when it comes to freezing funds and commandeering property. (Contrast again with the 5th Amendment to the U.S. Constitution, which states that no person shall be deprived of life, liberty, or property without due process of law.)

Limited remedies

The Emergencies Act does not contain specific provisions for any sort of judicial review of emergency declarations or orders made under it. That is not to say that challenging an emergency declaration would not be possible, but since the government can act without prior court authorization, the damage may be done before any such challenge would get off the ground.

While the Emergencies Act requires that a declaration of emergency be laid before both houses of Parliament for consideration, this happens after the fact.[12] Furthermore, the current parliamentary makeup renders it effectively impossible that the current declaration of emergency would be overturned.

The Emergencies Act does provide for reasonable compensation for those who suffer loss, injury or damage as a result of actions taken under its authority. But, such persons must apply to be compensated. Also, assuming the compensation paid is in fact reasonable (the amount is determined by the government), it will not be paid unless the person being compensated signs a release of any right of action against the Crown that the person might otherwise have as a result of the action taken. If a person is dissatisfied with the compensation awarded, there is a right of appeal to an assessor, who is to be appointed from among the judges of the Federal Court of Canada. The assessor’s decision is final and not subject to appeal.[13]

Necessity or government overreach?

In the end, it is questionable whether the current situation meets the definition of a public order emergency or a national emergency. It is certainly questionable whether the use of the Emergencies Act is at all necessary to deal with the current situation. It is not exactly martial law, but it highlights the power that the prime minister’s office wields in Canada, and the seeming comfort level the current occupant of that office has with dispensing with the niceties of parliamentary debate when it comes to such important matters. It is hard not to think that there may have been options to deal with the situation that could have been explored prior to invoking what Trudeau himself has called a “last resort”. Readers are left to their own conclusions. Those conclusions may well have significant political ramifications for the prime minister.

[1] R.S.C. 1985, c. 22 (4th Supp.)

[2] Emergencies Act, s. 3

[3] 30 & 31 Victoria, c. 3 (U.K.)

[4] Constitution Act, 1867, s. 91

[5] U.S. Const. Amend. X

[6] Emergencies Act, s. 18(2)

[7] Emergencies Act, s. 16

[8] Emergencies Act, s. 16, incorporating  s. 2 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23

[9] SA 2020, c. C-32.7

[10] Emergencies Act, s. 19(1)

[11] Emergencies Act, s. 19(1)(a)(iii)

[12] Emergencies Act, Part VI

[13] Emergencies Act, Part V