The federal government will have to defend its use of the Emergencies Act in court after two civil-liberties groups asserted in legal challenges that invoking the act against anti-mandate protesters was unlawful. Alberta Premier Jason Kenney announced on Wednesday that his government will file its own court challenge.
In separate court actions, the Canadian Constitution Foundation and the Canadian Civil Liberties Association (CCLA) are asking for a hearing in Federal Court. Both say they will continue their challenges despite Prime Minister Justin Trudeau’s announcement on Wednesday that the government is ending its declaration of an emergency.
“It is vitally important that the courts address the legal issues raised by this public-order emergency prior to the next time the Emergencies Act is used,” said Sujit Choudhry, co-counsel with Janani Shanmuganathan, representing the Calgary-based foundation, a non-partisan group.
The groups contend there was no emergency as defined in the 1988 law – no “threat to the security of Canada.” They say the law was designed as a last resort, and that existing laws were sufficient to address the border blockades in several provinces and the Ottawa protests that filled downtown streets for nearly three weeks with exhaust-spewing, horn-blowing diesel trucks. They also say the measures violated constitutional rights such as freedom of assembly.
The legal actions would not challenge the constitutionality of the act; they are applications for a court review of cabinet’s decision to invoke it. To justify its decision, the government will need to provide, for the first time, a publicly accessible record of the evidence it used – unless it claims privilege because of cabinet secrecy or for national-security reasons. Such a claim could bog the case down in procedural issues.
A spokesperson for Justice Minister David Lametti did not respond to a question from The Globe and Mail on Wednesday about whether the government would attempt to declare certain information privileged. Mr. Trudeau said invoking the act was the “responsible and necessary thing to do” and was compliant with Charter rights, but that existing laws are now sufficient to keep people safe.
Mr. Kenney called the use of the act unjustified and disproportionate, and said it will not pass “the test of our courts or of history.”
In interviews, the civil-liberties groups said use of the emergency law sets a dangerous precedent.
“The right to protest is extremely important for … people who want to oppose government on all sorts of issues, including racial injustice and climate change,” Indigenous land rights, and workers’ rights, said Noa Mendelsohn Aviv, the Toronto-based CCLA’s executive director and general counsel.
The government declared a public-order emergency on Feb. 15, citing continuing blockades, threats to use force to maintain the blockades, harm to the economy, harm to relationships with the United States and other trading partners, breakdowns in supply chains for essential goods and services, and potential for an increase in unrest and violence.
The Emergencies Act replaced the 1914 War Measures Act, which provided the federal government nearly limitless powers. Cabinet could proclaim war, invasion or insurrection, and establish any rules it believed necessary to maintain security, peace and order. When the Canadian Bill of Rights was adopted in 1960, the War Measures Act was amended to provide that anything done under the act would not violate the new rights bill.
The act was used during a 1970 crisis involving terrorism by Quebec separatists. It was used to intern thousands of Japanese-Canadians during the Second World War, and to deport thousands after the war. It was also used to declare membership in the Communist Party illegal.
“In direct response to this history, the Emergencies Act sets out a carefully crafted and demanding set of legally binding conditions that must be satisfied before it may be triggered, to ensure that it is used only as an absolute last resort, and for not a moment longer than necessary,” the foundation said in its court filing late Tuesday.
The Emergencies Act provides that Charter rights still apply during an emergency. It also provides for greater transparency, including Parliamentary review and an obligation to consult with the provinces before imposing it.
But its powers are still broad, authorizing cabinet to establish new crimes and punishments without a vote in Parliament. And the Liberal cabinet did just that, creating a new offence of participating in a public assembly that may lead to a breach of the peace, or travelling to such an assembly. The maximum punishment is five years in jail or a fine of $5,000. It also required financial institutions to freeze accounts of persons engaging in activity prohibited under the declaration, and to report account-holders to the RCMP and Canadian Security Intelligence Service. And it allowed towing companies to be ordered to remove trucks from protest sites.
With no requirement that a judge authorize the reporting of account-holders to police, the process violates the Charter right to be free from an unreasonable search, the civil-liberties groups say in their legal challenges. And the prohibitions on protest violate freedom of expression, association and assembly, the groups say.
The Emergencies Act spells out that its use is limited to circumstances that “cannot be effectively dealt with under any other law of Canada.”
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