The prime minister and the federal government are, arguably, acting unlawfully by invoking the Emergencies Act in the absence of a national emergency, St. Albert-Edmonton MP Michael Cooper said Friday.
“The prime minister is making a mockery of the rule of law,” said Cooper in an interview with The Gazette.
On Feb. 14, for the first time since it became law in 1988, Prime Minister Justin Trudeau invoked the Emergencies Act to give the federal government special powers to end disruptions, border blockades, and the occupation of Ottawa’s downtown core.
The act came into force immediately and will be in effect for 30 days unless it is voted down in the House of Commons or the Senate.
Cooper said this is exceptional legislation was intended to be invoked in only the most extreme circumstances, as it gives the federal government sweeping powers to infringe on the freedoms and civil liberties of Canadians.
Eric Adams, a professor of law at the University of Alberta, said when the Emergencies Act is triggered, it gives rise to jurisdictional powers the federal government does not normally possess. The Constitution lays out a division between federal authority and provincial authority.
The act blurs those lines and enables the federal government to pass orders in relation to issues that normally fall within provincial authority.
“Say [there is] an order that cleared a highway, or ordered people to leave an area, or ordered assets frozen, those may fall within provincial jurisdiction. And the Emergencies Act says, as a result of this emergency, the federal government is going to have jurisdiction where normally it wouldn’t,” said Adams.
The act gives law enforcement more authority to remove and prosecute people who are taking part in anti-COVID mandate protests that have blocked borders and occupied downtown Ottawa.
The act also delegates the power to create orders to deal with the emergency, as opposed to laws that are debated in the normal parliamentary process, said Adams.
Under the temporary measures of the act, financial institutions can control and freeze access to bank accounts associated with funding or supporting the blockades. The federal government can also direct and render essential services to relieve the impacts of blockades on Canada’s economy.
“There have been reports of Canadians who have had their bank accounts frozen because they donated to the GoFundMe campaign of a convoy … This is a government under Justin Trudeau that is literally subjecting everyday Canadians to financial ruin,” Cooper said.
The act is only to be invoked in the event of a national emergency and it must be a situation that cannot be effectively dealt with by any other law.
“That threshold has not been met. It hasn't come close to being met,” said Cooper.
The Canadian Civil Liberties Association agrees the federal government has not met the threshold necessary to invoke the Emergencies Act. On Thursday the association announced it would be pursuing litigation to challenge that use.
“The emergency orders that the government has tabled are not targeted. They are not limited to specific protests, or specific geographic locations. They are expansive emergency orders that have already come into effect and apply equally across the entire country.
“They place unprecedented restrictions on every single Canadian’s Constitutional rights,” said Abby Deshman, director of criminal justice for the association in a press release.
There are four types of emergencies that can be declared under the act, which include public welfare, public order, international, or war emergencies.
“The very emergency that the government specifies in its order in council to justify the invocation of the act doesn't exist,” said Cooper.
The focus of the order in council, Cooper explained, related to blockades of critical infrastructure, including Windsor, Coutts, and Surrey.
“All of those blockades were dispersed under existing tools, prior to the invocation of the emergencies act,” said Cooper
When asked if he meant the Coutts border was cleared on Monday, Cooper said no, it had been cleared that weekend.
“No, it was before that. It was done on the weekend and my colleagues, [Foothills MP] John Barlow, [Lethbridge MP] Rachael [Thomas], and [Medicine Hat-Cardston-Warner MP] Glen Motz, went down to the border and talked to the truckers and the situation was de-escalated,” he said.
Fraser Logan, with RCMP communications, said there was a lot of movement by people at the Coutts border on the weekend, as people would come down and go back to work, but the border crossing did not open until between Monday, Feb. 14 and Tuesday, Feb. 15.
The RCMP became aware of a small, organized group within the Coutts protest that had a cache of firearms and a large quantity of ammunition. It was said the group was willing to use force against the RCMP, if necessary.
On Feb. 14, as a result of investigations, the RCMP executed a search warrant and seized 13 long guns, handguns, body armour, a machete, ammunition, and high-capacity magazines being stored in three trailers at the Coutts border blockade. There were 13 people arrested and detained in relation to the Coutts blockade.
The blockade dispersed in the days following the arrests.
Adams said there will be those who are unconvinced the Emergencies Act was a necessary step, but he thinks the quick ending of various blockades might be a signal that it worked and worked quickly.
“When it was invoked, the border blockade at Coutts was, in fact continuing. I think the government may well point to the ending of that blockade shortly after the emergencies Act was invoked as a sign of the approval,” said Adams.
Adams thinks the strongest factor in the federal government's arguments will be the duration of the crisis.
“It certainly would have not been inappropriate in the first days and maybe even in the first week of these events. But we're entering into our third weekend and longer of a crippling series of blockades … they will have some compelling grounds that this was indeed an emergency,” he said.
Cooper said Canada has had significant crises involving blocked infrastructure, including the rail blockades in 2020, but the act was never invoked.
“The prime minister has abused the authority entrusted in him and it's completely unacceptable and the solution to this crisis lies with him. It's time that he finally, for once, provided leadership that would work to resolve the crisis,” said Cooper.
When asked why Cooper sees this situation as different than the blockades of 2020, Cooper said Trudeau is playing politics and demonizing Canadians who disagree with him.
Back in February of 2020, Cooper called the rail blockades a national crisis.
He told The Gazette, at the time, “freedom of expression and the right to peacefully protest do not give any Canadian voice licence to break the law, to block vital transportation routes, and to hold the Canadian economy hostage.”
He then said leadership by Trudeau was lacking.
“He has failed to respond to the national crisis by clearly denouncing the actions of the blockaders who are breaking the law. And he’s failed to come up with any action plan that would put an end to the illegal blockages and get our economy back on track,” Cooper told The Gazette in the 2020 interview.
Adams said the big differences he sees in the rail blockades of 2020 and the blockades of today are the scale, the duration, the scale of the economic impact, and that the 2020 blockades ended.
“The only thing I've heard from convoy organizers and leadership is that they have no intention of ending [it]. That's a pretty clear difference,” he said.
Adams said he thinks there has been confusion about how the act operates adding any order passed under the Emergencies Act must comply with the Canadian Charter of Rights and Freedoms.
He said it is important Canadians remain vigilant as to government uses of emergency power.
“There's no question that serious abuses of human rights and civil liberties can happen in states of emergency,” Adams said.
There are, however, compelling arguments that the act was necessary, and authorities were having difficulties finding an exit strategy.
“It's simply not the case that Canada has to endure the indefinite seizure of border crossings because a handful of people disagree with a particular government policy,” said Adams.
Adams said people are entitled to disagree, and we have a democratic process that allows them to vote on policy and express dissent.
“But expressing that dissent can't rise to the shutting down of a national or regional economy because you don't like what a particular government is doing.
“If those are the rules, then what's going to stop the next group who feels exactly the opposite from doing the same. We will go around in a neverending circle of protest democracy. We simply can't function in that way,” said Adams.
When asked if he has wavered in his support of the Ottawa anti-mandate protests, Cooper said, "No."
“It has been a largely peaceful protest. What we have now is civil disobedience, and I think the message has been made,” he said.
On Thursday, Feb. 17, the House of Commons adopted a motion to confirm the declaration of emergency during the sittings of Feb. 17, 18, 19, 20, and 21. A vote on the Emergencies Act is set to take place on Monday.
Speaker of the House MP Anthony Rota announced on Friday the sitting for the day had been cancelled due to police operations in the area.
