Prime Minister Justin Trudeau has invoked never-before-used emergency powers to support provinces in ending the blockades and public disorder that have gripped Ottawa for 18 days at the hands of participants in the so-called “Freedom Convoy.”
In a press conference on Monday, Trudeau announced that he is triggering the Emergencies Act following discussions with the federal cabinet, the Liberal national caucus, premiers, and opposition leaders. He said the measures do not include calling in the military, or overriding civil rights.
“We cannot and will not allow illegal and dangerous activities to continue,” said Trudeau, adding it will allow the federal government to order the provision of services like towing trucks.
He added it will “enable the RCMP to enforce municipal bylaws and provincial offences.”
“This is not a peaceful protest,” Trudeau said.
Trudeau also vowed to introduced within the coming days business support measures for the local Ottawa companies that have been forced to shut down due to the blockades, many of the participants of which have repeatedly refused to respect public health measures like masking indoors.
What exactly are the powers coming into play? Let’s take a look.
How does the Emergencies Act work?
First, a quick history recap: the Emergencies Act is not the War Measures Act.
The War Measures Act was the controversial piece of legislation that Trudeau’s father, Pierre Elliott Trudeau, used back in 1970 during the October Crisis, which saw a series of terrorist attacks by a Quebec separatist group.
The law allowed the federal government to suspend civil liberties, and it was in response to questions over how far Trudeau senior would go in suspending these liberties that he offered the infamous phrase: “Just watch me.”
That law, however, was repealed and replaced in 1988.
The replacement law is called the Emergencies Act, and this legislation has been in the spotlight as a potential federal response to crisis situations including early in the days of the COVID-19 pandemic as well as currently amid the convoy blockades.
The Emergencies Act lays out four different kinds of emergencies in which provinces might be effectively out of their depth to respond: public welfare emergencies; public order emergencies; international emergencies; and war emergencies.
A public order emergency in particular grants five kinds of powers to the federal cabinet:
- the ability to “regulate or prohibit public assembly that may reasonably be expected to lead to a breach of the peace, travel, or the use of property”
- the ability to “designate and secure protected places”
- the ability to “assume the control, restoration and maintenance of public utilities and services”
- the ability to “authorize or direct the provision of essential services and the provision of reasonable compensation”
- the ability to “impose on summary conviction a fine not exceeding $500 or imprisonment not exceeding six months or both, or on indictment, a fine not exceeding $5,000 or imprisonment not exceeding five years, or both, for any breach of an order or regulation”
In order to declare a public order emergency, the federal government has to consult with the provincial cabinet first and issue a proclamation in order to bring the powers into effect.
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 — or the act that regulates the powers of the country’s intelligence agency.
That legislation is clear in its definition of “threats to the security of Canada” that “lawful” protests do not qualify, and outlines four possible scenarios:
- “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”
- “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”
- “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”
- “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 Emergencies Act has never been invoked.
Once invoked, the public order emergency provisions expire after 30 days.
And while the provisions are effective as soon as such an emergency is declared, a motion confirming the emergency has to be put before Parliament within seven days — and if it does not survive votes in the House of Commons and the Senate, any defeat marks a revocation of the proclamation.
What difference would the Emergencies Act make?
Because the Emergencies Act has never been invoked, there are questions about exactly which measures the federal government could be eyeing or how they might be used.
Nomi Claire Lazar is a professor at the University of Ottawa and the author of a book called States of Emergency in Liberal Democracies that examined some of the potential powers at play.
Lazar studies apocalyptic politics and states of emergency, and told Global News that there remain questions about whether all of the powers available under provincial emergency laws have been used.
She noted that if Ford needs the military the help with the response, he also has the power to request them under the National Defence Act (more on that below).
“However, in the event Ford did ask for it, a national declaration of a public order emergency could serve as a signal,” Lazar continued.
“A declaration of emergency can communicate that all levels of government are taking the situation seriously. And that’s important too because people are fed up and losing faith in state capacity to protect us and our system of government.”
Leah West, an assistant professor at Carleton University, specializes in national security law. She said it isn’t clear at this point that the challenges facing the country by the blockades are ones that require additional powers or laws.
“You have the authorities. You have the laws in place. Law enforcement hasn’t been enforcing them,” West said, pointing to municipal bylaws, Criminal Code provisions and the provincial state of emergency.
“You still have an issue of having to enforce these orders and regulations. And if you don’t have law enforcement willing to do that, it doesn’t really get you anywhere.”
West noted that the Emergencies Act also specifically prohibits the federal government from deputizing the RCMP to take over from the Ottawa Police Service, which is the force of jurisdiction in Ottawa.
She also cautioned that the fact the Act would be invoked for the first time means the decision to do so sets a precedent, and needs to be carefully weighed.
“I do think that it is significant, and I do think it is especially significant if there are questions about whether the thresholds are being met,” she said.
“That to me, is problematic for setting future precedents for how you use Canada’s heaviest hammer to quash dissent that’s unfavorable to the sitting government.”
During a conference call on Monday morning between Trudeau and the premiers, Alberta Premier Jason Kenney and Saskatchewan Premier Scott Moe told Trudeau they were concerned that invoking the Act could make things worse, according to aides of some premiers who participated in the meeting.
How does calling in the military work?
Calling in the military would be a rare and extraordinary decision, and is one that Trudeau has said must be a last resort. There remains no indication at this time that a military deployment is in the cards.
A military legal official told Global News this would typically happen via the National Defence Act: specifically, two sections in the law, one of which was used during the 1990 Oka crisis.
That deployment of the military came at the request of the Quebec premier at the time under Part VI of the National Defence Act, which states the military can be called in to support police as an “aid to civil power.”
Under that section, the attorney general of any province can call on the Canadian Forces “for service in aid of the civil power in any case in which a riot or disturbance of the peace, beyond the powers of the civil authorities to suppress, prevent or deal with and requiring that service” is either happening or likely to happen.
There is also Section 273.6, which outlines the powers of the executive branch of government to deploy the military. Under that section, the federal cabinet or the defence minister alone can “authorize the Canadian Forces to perform any duty involving public service.”
In that case, the cabinet or the minister can “issue directions authorizing the Canadian Forces to provide assistance in respect of any law enforcement matter” in the following two circumstances: if “the assistance is in the national interest,” and if “the matter cannot be effectively dealt with except with the assistance of the Canadian Forces.”
— with files from Global’s Mercedes Stephenson, David Akin, and Alex Boutilier.
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