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Did Trudeau Just Break The Law?
Even before the Freedom Convoy truckers protesting in Ottawa respond, however, there is a very real issue that must be addressed: is his use of the Emergencies Act legal? Did Trudeau break the law to strike back at the “illegal” protests?
The Emergencies Act
Canada's Emergencies Act gives the government broad emergency powers, subject to certain defined limits.
WHEREAS the safety and security of the individual, the protection of the values of the body politic and the preservation of the sovereignty, security and territorial integrity of the state are fundamental obligations of government;
AND WHEREAS the fulfilment of those obligations in Canada may be seriously threatened by a national emergency and, in order to ensure safety and security during such an emergency, the Governor in Council should be authorized, subject to the supervision of Parliament, to take special temporary measures that may not be appropriate in normal times;
AND WHEREAS the Governor in Council, in taking such special temporary measures, would be subject to the Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights and must have regard to the International Covenant on Civil and Political Rights, particularly with respect to those fundamental rights that are not to be limited or abridged even in a national emergency;
The reference to the Canadian Charter of Rights and Freedoms is noteworthy. The preamble of the Emergencies Act is explicit that the invocation of the Act does not invalidate the Charter, which would seem to preclude any diminution of the rights explicitly guaranteed under Article 2 of the Charter:
Everyone has the following fundamental freedoms:
freedom of conscience and religion;
freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
freedom of peaceful assembly; and
freedom of association.
The preclusion is especially important as Article 1 of the Charter allows for the mitigation of rights by “reasonable” laws.
The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
The preamble of the Emergencies Act would thus appear to negate its use to void Canadians’ fundamental rights.
The Emergencies Act also places clear limitations on government authority under an emergency declaration. In addition to the general limitations of the preamble, there are specific limitations and requirements based on the type of emergency that exists, of which the Emergencies Act recognizes four such types: a Public Welfare Emergency, a Public Order Emergency, an International Emergency, and a War Emergency.
A quick scan of the criteria given for each type of emergency indicates that Trudeau's invocation of the Act falls under the sections for a Public Order Emergency.
declaration of a public order emergency means a proclamation issued pursuant to subsection 17(1); (déclaration d’état d’urgence)
public order emergency means an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency; (état d’urgence)
threats to the security of Canada has the meaning assigned by section 2 of the Canadian Security Intelligence Service Act. (menaces envers la sécurité du Canada)
This part of the Emergencies Act also describes the mechanism for invocation.
Declaration of a public order emergency
17 (1) When 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, the Governor in Council, after such consultation as is required by section 25, may, by proclamation, so declare.
(2) A declaration of a public order emergency shall specify
(a) concisely the state of affairs constituting the emergency;
(b) the special temporary measures that the Governor in Council anticipates may be necessary for dealing with the emergency; and
(c) if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.
Did Trudeau Issue The Proper Declaration?
I am hardly an expert on Canadian law, so I will refrain from stating what is an acceptable format for the described declaration. However, the Act clearly specifies precise requirements for the declaration, which would seem to imply the formal issuance of the declaration, presumably in a manner akin to a Presidential or gubernatorial executive order here in the United States.
If this is the case, the question must be asked “did Justin Trudeau issue the required proclamation?” As of this writing, no public notice of proclamation has been published in the Canada Gazette, nor is there any equivalent statement on the Prime Minister's web site. Note that I am assuming Prime Ministerial proclamations would be published on line in a manner akin to Presidential executive orders, which are available at whitehouse.gov.
It may very well be that Trudeau's press announcement is legally sufficient, and no further proclamation is legally necessary. If it is not legally sufficient, Trudeau arguably has already violated the Emergencies Act by failing to issue the required proclamation.
Does The Emergencies Act Even Apply?
Technical compliance issues aside, there is also the broader question of whether the Emergencies Act even applies to the Freedom Convoy protests. Certainly the Canadian Civil Liberties Association has said on Twitter that it does not:
Does the Freedom Convoy constitute a threat as defined by Canadian Security Intelligence Service Act? Trudeau obviously thinks it does, but as a basic exercise in the rule of law, Prime Ministerial opinion alone cannot be legally sufficient to invoke emergency powers.
The Canadian Security Intelligence Service Act is explicit in its definition of a threat to Canada:
threats to the security of Canada means
(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). (menaces envers la sécurité du Canada)
Given that the Freedom Convoy is following the broad model of a “color revolution” and has confined itself to nonviolent methods, it is difficult if not impossible to see how the Freedom Convoy fits any part of the legal definition of a threat to Canada, especially when the Canadian Security Intelligence Service Act precludes defining “lawful advocacy, protest, or dissent” as threats.
If the Emergencies Act does not apply, then Trudeau's invocation of emergency powers under the Act is by definition unlawful. In a moment of ultimate irony, Trudeau appears to have joined the RCMP in violating the law, while the Freedom Convoy and the border blockades might not actually be unlawful, as it appears to be the police barricades that are actually stopping the flow of traffic at the border crossings.
The Law Is Meant To Be Litigated
Ultimately, legal questions are just that—questions. Apart from matters of clear factual compliance or noncompliance with the technical provisions of a particular statute, a recitation of the available facts cannot in and of itself be the final word on what is lawful. Questions of legality are meant to be litigated, either formally in a court of law or informally in the court of public opinion.
When the matter is of the utmost importance, which the Freedom Convoy unquestionably is, the formality of the courtroom is almost an imperative. To date, a full formal adjudication of the Freedom Convoy protests has not even been attempted by the Trudeau government. If anything, the government at every level has shown a marked reluctance to involve courts, if their hesitancy in making arrests is any guide.
From the beginning of the Freedom Convoy, Justin Trudeau has sought to demonize, delegitimize, silence and suppress its obvious message of political dissent. He has, through word and deed, sought to deprive the Freedom Convoy of the public litigation of their grievances which is their explicit right under Canadian law.
By illegally and improperly invoking the Emergencies Act, Justin Trudeau has once again shown that his government are the lawless ones, not the Freedom Convoy.