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David Schneiderman is a professor of law at the University of Toronto. He was research director of the Canadian Civil Liberties Association from 1986-89.

I was present during the negotiations around the federal Emergencies Act in 1987. As one of two full-time lawyers at the Canadian Civil Liberties Association at the time, I witnessed firsthand how Alan Borovoy, the CCLA’s then-general counsel, managed to shape the contours of this scheme. And I saw how the end product was a carefully calibrated piece of legislation with checks at every turn.

It’s why I believe the Emergencies Act was not a legally suitable instrument for removing unwelcome occupiers on Ottawa’s streets.

The objective of Brian Mulroney’s government in 1987 was to bring Quebec back into Canada’s constitutional fold by drawing sharp contrasts with that of his predecessor as prime minister, Pierre Trudeau. There would be two limbs to this strategy: first, having first ministers agree to a new constitutional settlement, represented by the Meech Lake Accord – a colossal failure, it turns out. The second prong was the repeal of the discredited War Measures Act and replacing it with an instrument better tuned to addressing emergencies such as the October Crisis of 1970. This turns out to have been the less troublesome prong.

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It was in furtherance of replacing the War Measures Act that then-defence minister Perrin Beatty reached out to the CCLA to seek its input into draft replacement legislation. The CCLA’s principal aim was to curb what Mr. Borovoy called the “power-hoarding fallacy,” understanding that historically, Canadian governments have preferred to seize far more power than is reasonably needed in a crisis. The main thing was to avoid the blank cheque afforded to government under the War Measures Act. So in negotiations for a replacement act, the CCLA worked to restrict the government’s ability to manoeuvre in emergency situations to only what was absolutely necessary and to create safeguards to prevent the abuse of those fenced-in powers.

In order to achieve its desired rapprochement with the Quebec electorate, the government gave a lot of ground to CCLA submissions. It helps explain why the legislation identifies four different types of emergencies, each carefully defined, all of which remain subject to the Charter of Rights and Freedoms. In furtherance of Mr. Borovoy’s faith in democratic deliberation over judicial discretion – as judges, historically, are not reliable defenders of civil liberties in times of emergency – the CCLA insisted upon an enhanced parliamentary role: In addition to mandatory provincial consultation, there would be a continual need to return to Parliament, along with mandatory parliamentary review, and an inquiry 60 days after the emergency ends.

Critical to limiting easy access to emergency powers would be the narrow definition of a “national emergency.” An urgent and critical situation rises to such a level where the “lives, health or safety” of Canadians are seriously endangered. This threshold is satisfied only where the situation “exceeds the capacity or authority of a province to deal with it.” Underscoring the need to use all available legal tools, the statute also requires that the situation “cannot be effectively dealt with under any other law of Canada.”

Justin Trudeau’s government has not provided compelling evidence that the convoy protest in Ottawa could not have been adequately dealt with under provincial authority, with or without federal help, as occurred at the Ambassador Bridge and at the border crossing at Coutts, Alta. Nor has it been convincingly shown that existing provincial or federal laws were not adequate to the task – enabling the co-ordination of police forces, the seizure of funds or the removal of occupiers, for example. It may be that the Ontario emergency law did not empower the province to “require” tow truck drivers to provide assistance, but that surely is a flimsy basis for declaring a national emergency.

In the case of a “public order emergency,” which was approved by a vote in Parliament on Feb. 21, there is the added requirement that the emergency must amount to a “threat to the security of Canada” as defined in the CSIS Act. The statutory definition of a “threat to the security of Canada” encompasses “acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada.” While there is no question that myriad grievances were voiced in Ottawa, there is no evidence that “acts of serious violence” were perpetrated for the purpose of achieving the protesters’ objectives.

Taken together, these two definitions impose a heavy onus on government to justify the invocation of public order emergency powers – a burden that has not been convincingly met in the case of the Ottawa protests. It seems that, despite its creators’ best intentions, the carefully crafted Emergencies Act remains vulnerable to the urges of power hoarders.

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