Trudeau Invokes Emergencies Act in Response to Blockades

Prime Minister Justin Trudeau invoked the Emergencies Act, saying the “blockades are illegal and if you are still participating, the time to go home is now.” The Cabinet will issue specific regulations which will come into force immediately and include:

• Regulating public assembly in specific places like international border crossings and in Ottawa
• Powers that can be used to require tow truck operators to remove (with compensation( illegally parked vehicles occupying critical infrastructure
• Ordering financial institutions to freeze personal and corporate bank accounts and halt vehicle insurance for those participating in blockades
• The expansion of anti-money laundering laws to include cryptocurrency transactions and crowdfunding platforms, together with registration with FINTRAC to report large and suspicious transactions, and
• Enabling federal RCMP officers to enforce provincial and municipal laws

Trudeau added that “the measure of success is if we can get our supply chains back. Is our border open? Can the people of Ottawa get back to their lives?” With the backing of at least two Premiers and, according to surveys, the majority of Canadians, this unprecedented action hopefully paves the way for a science-informed relaxation of border and lockdown measures in the days ahead.

What is the Emergencies Act?

The Emergencies Act is the successor to the War Measures Act, which itself was only invoked once, by Prime Minister Pierre Trudeau, during the FLQ Crisis of 1970. The Emergencies Act contains provisions for dealing with a “public order emergency” and gives the federal government time-limited powers.

The Act does not override the Charter of Rights and Freedoms or suspend fundamental rights including freedom of speech, peaceful assembly, or exercising the right to protest legally.

The Act covers four types of emergencies – public welfare, public order, international emergencies, and war emergencies (it is a public order emergency that was declared today)

Under the Act, Cabinet can make a regulation prohibiting any public assembly that may reasonably be expected to lead to a breach of peace, travel within specified areas, or use specified property.  The government can impose fines and up to six months in prison to those who ignore orders.

What is required to invoke the Emergencies Act?

The Cabinet must believe 1) the emergency constitutes a threat to the security of Canada, 2) that there are gaps in the ability of provinces to respond, and 3) there is no other law in place adequate to respond.

“Threats to security of Canada” are defined in the Canadian Security Intelligence Service (CSIS) Act as:

(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

(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,

Notably, “threats” do not include “lawful advocacy, protest or dissent, unless carried on in conjunction with any of the activities referred to” in the four categories above.

The Ministers stated the current protests no longer constitute a lawful protest and now threaten the livelihoods of Canadians. Minister Freeland said that the barricades are doing harm to Canada’s economy and our reputation as a trading partner. The Ambassador Bridge blockade cost Canada approximately $400 million in trade each day. The Coutts, Alberta blockade is stopping $48 million/day in trade. The Emerson, Manitoba action is blocking $73 million in trade daily. She also said “The costs are real and threaten businesses great and small as we try to recover from COVID.”

The Prime Minister said the CBSA is turning back non-Canadians trying to enter Canada to participate in blockades. The government has also invoked considerable new powers to require anti-terrorism and anti-money laundering reporting by crowd funding platforms.

Where will these powers be in force?

The Act requires the Prime Minister to consult with the Premiers (but does not require their approval) before invoking the Act, which Trudeau did earlier today.  Notably, Premiers Jason Kenney of Alberta, Scott Moe of Saskatchewan, Heather Stefanson of Manitoba, Francois Legault of Quebec, and Blaine Higgs of New Brunswick have all publicly stated that they do not support the enactment of the Emergencies Act in their provinces, while Ontario’s Doug Ford and Newfoundland’s Andrew Furey are reportedly in favour.

Asked about where these powers will apply given some Premiers are opposed, the Prime Minister noted that when a national emergency crosses more than one province, the Act comes into power across the country. However, the measures necessary will only apply where they are needed. They will be geographically limited to ensure the Ambassador Bridge remains clear for traffic, for example. If local law enforcement does not need the tools that are available, they may not be employed.

Trudeau seemed to indicate that the federal powers would be used to support and augment local law enforcement. He specifically noted that finding tow trucks to remove the “big rigs” is a challenge and that the Windsor clearance was undertaken using cooperating American tow trucks. Now that they have the powers to compel tow trucks to undertake these contracts, these operators must clear highways across the country.  Local law enforcement will decide if the power under the Act is required.

Parliamentary Approval

The Act also requires the government to table a motion for “confirmation of a declaration of emergency” before both Houses of Parliament within seven sitting days of the emergency being signed.  The timing of this could be challenging given that the House of Commons is sitting this week, but not next, while the Senate is not sitting this week but is sitting next week.

Once the motion has been tabled, both Houses must debate and vote on the motion one day after it has been tabled.  The declaration lasts for 30 days, at which time Parliament would once again need to vote to renew the emergency.  The federal Cabinet also has the authority to revoke the declaration prior to the 30-day timeframe.

In addition, there is opportunity for continuous Parliamentary oversight, as a Parliamentary Review Committee is required to be established after a declaration of an emergency.

It is important to note that the Act does NOT give the federal government authority to control provincial or municipal police forces.  Prime Minister Trudeau said the military are not a police force and, currently there appears to be little appetite for the federal government to use Canadian Forces.

Notably, Minister Freeland stated that the government would also introduce legislation to make permanent the new powers to require FINTRAC reporting by crowdsourcing and cryptocurrency platforms. This appears to be the only permanent new legislation announced today.

The NDP has said they support the use of the Emergencies Act, which would give a Parliamentary majority and the support required to pass the Motion, regardless of concerns from the Bloc Quebecois and Conservatives.

Inside the Decision

Canadian governance is often about the federal government working in close coordination with the provinces and territories, today’s announcement by the Prime Minister is no exception.  Protests and blockades at the Canada-US border at Surrey, Coutts, Emerson, Sarnia, Windsor, and the ongoing protests in downtown Ottawa mean that there is no one-size fits all approach to trying to return to “business as usual”.  In addition, pressure from the Biden Administration in the United States to re-open the Ambassador Bridge crossing in Windsor, based on the impacts to the auto industry on both sides of the Canada-US border, added an international dimension to the resolution of this issue.

Today’s announcement will no doubt embolden many of the protestors, but the challenges of local law enforcement to adequately address the protests is clear. Revelations that the Ambassador Bridge was only cleared due to the assistance of American tow truck operators, or that the CBSA has been halting non-Canadians attempting to join the occupations only underline the seriousness of the federal decision.

During the earliest days of the COVID-19 pandemic, the federal government purposely avoided using the Emergencies Act to centralize and create a national response to COVID, despite some calls for its use. Even though all provinces are not supportive of the decision, there was effort made to create provincial support for using the Emergencies Act, including Premier Ford’s declaration of a state of emergency in Ontario over the weekend. With some provinces onside, the federal government now appears confident it can invoke these additional powers with sufficient authority to earn the backing of most Canadians.