Canada invokes Emergencies Act to quell ‘Freedom Convoy’ protests

Canadian Prime Minister Justin Trudeau invoked the Emergencies Act on Monday to give the federal government additional powers to quell the “Freedom Convoy” protests that has now entered the third week with no end in sight, but Trudeau explicitly ruled out a military response.

The Emergencies Act (“the Act”) can be invoked to grant “temporary additional and necessary powers to the federal government when provincial, territorial and federal tools are no longer sufficient to deal effectively with the serious issues being faced, such as…public health and safety risks as well as economic issues.”

The Act defines “national emergency” 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.”

There are four types of emergencies that can be declared under the Act: public welfare emergency, public order emergency, international emergency, and war emergency. In this case, the government declared, through an official proclamation, that a “public order emergency” exists necessitating “the taking of special temporary measures for dealing with the emergency.”

When an emergency is declared, the Canadian Charter of Rights and Freedoms (“the Charter”) permits the government to “balance the rights of the individual with the interests of society.” Specifically, § 1 of the Charter allows the government to place limits on rights and freedoms if they are authorized by law, pursue an important goal that can be justified in a free and democratic society, and pursue that goal in a reasonable and proportionate manner.

Trudeau said that he is taking this extraordinary step after consultation with the premiers of all provinces and territories and after speaking to opposition leaders, noting that the scope of the measures “will be time-limited, geographically targeted, as well as reasonable and proportionate to the threats they are meant to address.”

Trudeau further explained that the Act will enable the police to restore order in places where public assemblies constitute “illegal and dangerous activities, such as blockades and occupations as seen in Ottawa, the Ambassador Bridge, and elsewhere” through imposition of fines and imprisonment. Trudeau hoped that the Act will enable the government to “designate, secure and protect” critical infrastructure such as border crossings and airports.

Trudeau added:

This is about keeping Canadians safe, protecting people’s jobs and restoring confidence in our institutions…We cannot and will not allow illegal and dangerous activities to continue. The Emergencies Act will also allow the government to make sure essential services are rendered, for example, in order to tow vehicles blocking roads…

Let me be equally clear about what it does not do: We are not using the Emergencies Act to call in the military. We’re not suspending fundamental rights or overriding the Charter of Rights and Freedoms. We are not limiting people’s freedom of speech. We are not limiting freedom of peaceful assembly. We are not preventing people from exercising their right to protest legally. We are reinforcing the principles, values, and institutions that keep all Canadians free.

This is the first time in Canadian history the Emergencies Act has been invoked, although its predecessor—the War Measures Act—has been invoked multiple times before during the world wars and the 1970 October Crisis in Quebec. Coincidentally, the last time it was used during the Quebec crisis, it was invoked by then Prime Minister Pierre Trudeau—i.e. Justin Trudeau’s father. That invocation, much like the current one, was also viewed as controversial albeit under very different circumstances.

Reaction to the invocation of the Act has been mixed with opposition leaders such as Jagmeet Singh citing it as “proof of a failure of leadership” and others welcoming the invocation and noting they wished it came sooner.

The Canadian Civil Liberties Association criticized Trudeau’s decision to invoke the Act stating that the “law creates a high and clear standard for good reason: the Act allows government to bypass ordinary democratic processes. This standard has not been met…Emergency legislation should not be normalized. It threatens our democracy and our civil liberties.”