2. Qs & As

Emergencies Act Parliamentary Review Committee

A) General Questions: Emergencies Act Background and Declaration of a Public Order Emergency

B) Emergency Measures Regulations

C) Emergency Economic Measures Order

D) Revocation of the Public Order Emergency Declaration

E) Charter, Bill of Rights, and International Obligations

F) Cabinet Confidences

G) Legal Advice

A) General Questions: Emergencies Act Background and Declaration of a Public Order Emergency

1. What is the purpose of the Emergencies Act?

The purpose of the Emergencies Act is to authorize the federal government to take special temporary measures to protect the safety of Canadians during a national emergency. In particular, it is used to respond to a national emergency that cannot be effectively dealt with under any other law of Canada.

2. When was the declaration of a public order emergency in effect?

The Government of Canada declared a public order emergency under the Emergencies Act on February 14, 2022. The Emergency Measures Regulations (EMR) and the Emergency Economic Measures Order (EEMO) came into force on February 15, 2022. These provided law enforcement with additional tools to resolve illegal blockades and the occupation of Ottawa. On February 23, 2022, the declaration of emergency was revoked, and all measures and orders also ceased to be in effect.

3. What is a public order emergency?

A public order emergency, within the meaning of section 16 of the Emergencies Act, is an emergency that arises from threats to the security of Canada (as defined in the Canadian Security Intelligence Service Act) and that is so serious as to be a national emergency.

4. What kind of threat to the security of Canada, as defined under s. 2 of the CSIS Act, justified the declaration of a public order emergency?

The Emergencies Act incorporates by reference the definition of “threats to the security of Canada” from s. 2 of the CSIS Act. Section 2 of the CSIS Act defines a number of different activities that constitute threats to the security of Canada. The Governor in Council had reasonable grounds to believe that there were threats under s. 2(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 […]”.

The threat activities are set out in the s. 58 report to Parliament.

5. Does the incorporation by reference of s. 2 of the CSIS Act mean it is up to CSIS to determine whether the threshold is met for invoking the Emergencies Act?

It is not up to CSIS to determine whether the threshold for declaring a public order emergency is met. Rather, the Governor in Council may make that decision when it believes, based on reasonable grounds, that a public order emergency exists and it necessitates the taking of special temporary measures to deal with it. Similarly, the Governor in Council decides, on reasonable grounds, whether threats to the security of Canada exist that meet the requirements of the Act. The Governor in Council makes that determination based on all the information available to it.

6. What is a national emergency?

Under s. 3 of the Emergencies Act, a national emergency is an urgent and critical situation of a temporary nature that:

  1. 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
  2. seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada; and
  3. cannot be effectively dealt with under any other law of Canada.

7. What branch of the “national emergency” threshold was met under s. 3 of the Emergencies Act?

The emergency was a “national emergency” under s. 3(a) of the Emergencies Act. It was an urgent and critical situation of a temporary nature that seriously endangered the lives, health or safety of Canadians and was of such proportions as to exceed the capacity or authority of a province to deal with. It could not be effectively dealt with under any other law of Canada.

The Proclamation Declaring a Public Order Emergency specified that the public order emergency was constituted of:

  1. the continuing blockades by both persons and motor vehicles that is occurring at various locations throughout Canada and the continuing threats to oppose measures to remove the blockades, including by force, which blockades are being carried on in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada;
  2. the adverse effects on the Canadian economy – recovering from the impact of the pandemic known as the coronavirus disease 2019 (COVID-19) – and threats to its economic security resulting from the impacts of blockades of critical infrastructure, including trade corridors and international border crossings;
  3. the adverse effects resulting from the impacts of the blockades on Canada’s relationship with its trading partners, including the United States (U.S.), that are detrimental to the interests of Canada;
  4. the breakdown in the distribution chain and availability of essential goods, services and resources caused by the existing blockades and the risk that this breakdown will continue as blockades continue and increase in number; and
  5. the potential for an increase in the level of unrest and violence that would further threaten the safety and security of Canadians.

Responsive if pressed on legal advice:

Legal advice provided by the Attorney General and Department of Justice is protected by solicitor-client privilege and is not normally disclosed outside of the executive branch of government. However, I am able to convey the legal position, which is that the threshold for the declaration of a public order emergency was met.

8. Why did the emergency “exceeds the capacity of a province or territory to deal with it”?

The “Freedom Convoy 2022” was the first manifestation of the growing movement centered on anti-government sentiments related to the public health response to the COVID-19 pandemic. Trucker convoys began their journey from various points in the country, and the movement arrived in Ottawa on Friday, January 28, 2022. Since then, the movement has only continued to gain momentum across the country, with significant increase in numbers in Ottawa as well as protests and blockades spreading in different locations, including strategic ports of entry (e.g., Ambassador Bridge, Ontario; Coutts, Alberta; and Emerson, Manitoba).

The situation across the country was concerning, volatile and unpredictable. The decision to issue the declaration was informed by an assessment of the overall, national situation and extended beyond the scope of any one province. The federal government has been in contact with its provincial counterparts throughout this situation. Some requests for federal support to deal with the blockades were from:

Details on the consultations are set out in the Report to the Houses of Parliament: Emergencies Act Consultations.

9. Did all provinces and territories need to consent before the emergency declaration was made?

In the case of an emergency that applies to more than one province, the federal government and some provincial governments may disagree on the need to declare a national emergency. The Emergencies Act requires that all provinces in which the effects of the emergency occur are consulted, either before the emergency is declared or within seven days thereafter if such consultation would jeopardize the effectiveness of the emergency measures. In this case, all provinces were consulted before the emergency was declared, and consultation remained on-going before it was revoked. A full report on the consultations was filed in Parliament on February 16, 2022.

10. Why didn’t the government limit the declaration of emergency to Ontario

The situation across the country was concerning, volatile and unpredictable. The decision to issue the declaration was informed by an assessment of the overall, national situation. The convoy activities and their impact constituting the reasons for the emergency is set out in the Proclamation Declaring a Public Order Emergency and further detailed in the s. 58 Report to Parliament.

11. What is the relationship between the Emergencies Act measures and existing Provincial/Territorial authorities?

The Emergencies Act (s. 19(3)) provides that any measures taken by the federal government cannot unduly impair the ability of any province to take measures under provincial legislation for dealing with an emergency in the province. The Act also requires that, to the extent possible, there be concerted action with the Provinces and Territories.

In addition, the Emergencies Act (s. 20(1)) does not grant to the Government of Canada an authority to control or direct any provincial or municipal police force.

12. Why couldn’t the emergency be effectively dealt with under any other law of Canada?

The Act requires the Governor in Council to make a real world, qualitative assessment of whether the existing legal tools are effective in dealing with the emergency. The Governor in Council concluded that existing laws could not effectively deal with the emergency.

[Specifics are set out below in the Qs & As on Emergency Measures Regulations and Emergency Economic Measures Order.]

13. Did the government consider other, lesser means to deal with the emergency, such as a court injunction or existing Criminal Code powers?

The Government of Canada considered all possible measures to resolve the situation. In addition, the government consulted with First Ministers on February 14 when existing authorities where discussed. The situation was escalating and it became clear that the situation had exceeded the capacity and authority of the provinces to deal with it and that more tools were temporarily needed to protect the safety and security of Canadians.

14. To what extent was a court injunction available to assist resolving the situation?

Generally, injunctions are a private civil law remedy. In some circumstances, the AGC can seek an injunction as the guardian of the public interest when it is tied to underlying litigation or to a specific location. Here there was no underlying litigation and a growing number of locations across the country. In Ottawa, where the blockades were largely on municipal streets, the situation was further complicated by the different jurisdictional layers – federal, provincial and municipal. In addition, participants in the illegal blockades were known to be disregarding injunctions granted to the private citizen in Ottawa and the City of Windsor on the Ambassador Bridge.

15. Why didn’t the government commence legal proceedings/seek an injunction against the blockades?

We were monitoring the situation across the country carefully. Before the declaration of a public order emergency, the situation was largely a municipal and provincial matter. I cannot share any confidential legal advice, but I can assure the Committee that the government considered all available options to protect Canadians. We did intervene in the City of Ottawa’s injunction application. Ultimately, however, injunctions were proving ineffective in clearing the blockades. Following an assessment of the national situation, the government declared a public order emergency to add to the tools available to law enforcement. These measures were successful in addressing the situation.

16. What limits, safeguards and accountability mechanisms are built into the Emergencies Act?

In light of its exceptional nature, there are stringent safeguards built into the Act to ensure that the Government of Canada continues to work in the best interests of democracy during a national emergency. These include:

B) Emergency Measures Regulations

17. What issues were addressed by the Emergency Measures Regulations (EMR)?

The Emergency Measures Regulations were national in scope but applied specifically to addressing non-peaceful protests and illegal blockades. All law enforcement agencies, including the RCMP, were given additional tools to do their jobs and address non-peaceful protests and illegal blockades that may breach the peace, like the ones observed in Ottawa, Windsor, Emerson, and Coutts. For example:

Importantly, the EMR were also intended as a deterrent. For example, the prohibition on causing a minor to participate in a prohibited assembly was intended to change people’s behaviour so that protesters didn’t continue to put children in dangerous situations and use them to make enforcement action more difficult.

18. What were the prohibitions under the EMR?

The EMR created five prohibitions:

  1. participating in a public assembly that may reasonably be expected to lead to a breach of the peace by disruption of movement of persons or goods, serious interference with trade or the functioning of critical infrastructure, or supporting threats of violence or acts of violence against persons or property;
  2. causing a minor to participate in such an assembly;
  3. entering Canada with the intent to participate in or facilitate such an assembly (applies only to foreign nationals where no other exemption applies);
  4. travelling to or within such an assembly or a place where an assembly is reasonably expected to take place; and
  5. directly or indirectly using, collecting, providing, making available, or inviting a person to provide property to or for the purpose of benefiting persons participating in or facilitating such an assembly.

19. What new enforcement authorities were provided by the Emergency Measures Regulations (EMR)?

The EMR created specificity around what would be considered an illegal assembly as well as new authorities. Where the EMR created this specificity or new authorities, the police power to detain, arrest, and use other ancillary powers accompanied that expansion.

Existing Authorities Expanded:

New Authorities:

20. What are the penalties for contravention of the EMR?

Contravention of the EMR or of a lawful order by a peace officer made thereunder may be prosecuted as a summary conviction or indictable offence, with the following penalties:

The normal provisions of the Criminal Code regarding arrest and bringing of charges apply.

21. How did the EMR affect provincial jurisdiction in respect of their police services?

The intent of these measures was to temporarily supplement federal, provincial and municipal authorities to address illegal blockades and to restore public order and the rule of law in the face of an emergency. While these measures applied nationally, they did not derogate from provincial governments’ control and direction of their police forces. In fact, subsection 20(1) of the Emergencies Act provides that nothing in a declaration of a public order emergency or in regulations made pursuant thereto derogates from a provincial or municipal government’s control or direction over local police forces. Police of local jurisdiction remained in command of police operations and used the measures under the Emergencies Act based on their operational requirements.

22. Who could enforce the EMR?

The EMR were enforceable by the police of jurisdiction, including municipal and provincial police services and the RCMP, both in its capacity as Canada’s federal police force and where the RCMP is the police of jurisdiction.

The EMR state that, “any peace officer may take the necessary measures to ensure compliance”. “Peace officer” in the EMR is not limited to RCMP members or other federal peace officers.

However, the EMR’s definition included only those peace officers who are employed for the preservation and maintenance of the public peace. Therefore, not all peace officers under the Criminal Code or provincial statutes could enforce the EMR.

C) Emergency Economic Measures Order

23. What was the purpose of the Emergency Economic Measures Order (EEMO)?

The EEMO was an order made under the Emergencies Act that dealt specifically with finance and banking measures to disrupt financial support of the prohibited activities that contributed to the public order emergency. Collectively, the EEMO and the EMRs were intended to limit funding of illegal blockades and non-peaceful protests and restore public order.

24. What authority is there in the Emergencies Act for the measures in the Emergency Economic Measures Order (EEMO)?

The measures in the EEMO regulate property (i.e. funds held in bank accounts) and enlist the assistance of financial institutions in providing essential services that they are competent to provide. Where a public order emergency has been declared, section 19 of the Emergencies Act authorizes the Governor-in-Council to make such orders or regulations as it believes, on reasonable grounds, are necessary for dealing with the emergency in relation to among other things:

  1. The regulation or prohibition of the use of specified property (subparagraph 19(1)(a)(iii)); and
  2. the authorization of or direction to any person, or any person of a class of persons, to render essential services of a type that that person, or a person of that class, is competent to provide and the provision of reasonable compensation (para 19(1)(d)).

The EEMO regulated the use of specified property (bank accounts and financial products such as insurance policies) belonging to designated persons for the purpose of preventing its use in the funding of the illegal blockades.

25. What new authorities did the EEMO grant?

In order to disrupt financial support for the prohibited activities, the EEMO obliged Canadian financial service providers to continually determine whether they had in their possession or control property that belonged to a person participating in those activities and, where found, to cease dealing with such property until the person stopped their participation.

To facilitate the identification of persons who were participating in the prohibited activities the EEMO granted certain government institutions the discretion to disclose information to any Canadian financial service provider when they were satisfied that the disclosure would contribute to the application of the EEMO. This allowed law enforcement agencies to share the identity of persons participating in the prohibited assemblies with financial service providers, who in turn would then cease dealings with those designated persons.

The EEMO also required insurance companies to cancel or suspend the insurance policy for any vehicle taking part in a prohibited assembly.

Lastly, the EEMO subjected crowdfunding platforms and payment service providers to the registration and reporting requirements under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act.

26. How did the EEMO assist in addressing the illegal protests?

The measures contained in the EEMO assisted law enforcement by disrupting the funding behind the illegal blockades and weakening the ability to re-form them, broadening the range of entities reporting financial transactions to FINTRAC.

27. What did the EEMO require from banks and other financial service providers?

The EEMO required all entities such as banks, credit unions, trust and loan companies, cryptocurrency exchanges and anyone providing financial services to take immediate steps to temporarily restrict access to funds to (or for the benefit of) those involved in the blockades.

It required banks and other financial service providers to cease to provide services to (or for the benefit of) any person or entity involved in the blockades, not to facilitate any transaction relating to funds or virtual currency, and not offer any financial service and providing any funding, including virtual currencies, to anyone involved in the blockades.

It also required banks and other financial services providers (e.g. credit unions including les caisses populaires, insurance companies, securities dealers) to continually monitor whether they were in possession or control of property (e.g. a bank account) that is owned by an individual or entity involved in the blockades. If the institution did have property, such as a bank account, that belongs to someone involved in the blockades, they were required to freeze the account ("cease dealing" with the property).

The order also captured crowdfunding (and related payment service providers) associated with the blockades. It extended anti-money laundering and anti-terrorist financing requirements to crowdfunding platforms and the payment service providers. Specifically, the regulation required that these entities register with FINTRAC and report suspicious and large value transactions to FINTRAC.

28. What types of information sharing did the EEMO permit between government institutions and financial service providers?

The EEMO required banks and other listed financial service providers to disclose certain information to the Commissioner of the RCMP or the Director of CSIS. In particular, they must disclose the existence of any property in their possession or control that belongs to a person/entity who is involved in the blockades, or any transactions, including proposed transactions, relating to such property.

The obligation to disclose was limited in terms of what entities it applied to and was only triggered where there was reason to believe certain property belonged to people who were engaged in the illegal activities set out in the EMR.

The EEMO also authorizes the disclosure of information by a government (federal, provincial or territorial) institution to entities that are subject to the obligation to freeze accounts (cease dealings). The disclosing institution must be satisfied that the disclosure will contribute to the application of the EEMO. The discretion to disclose must be carried out in accordance with the requirements of the Charter.

29. Were these authorities new measures?

Some of the new temporary measures in the EEMO built on Canada’s AML/ATF framework. Prior to the EEMO, crowdfunding platforms and some payment service providers were not subject to obligations under the PCMLTFA. By extending certain PCMLTFA requirements to include crowdfunding platforms and the payment service providers, the Government was able to mitigate the risks that these platforms could be used for illicit purposes. It also allowed for FINTRAC to receive increased financial transaction information, and makes more information available to support investigations by law enforcement.

Other authorities were intended to address gaps highlighted by the illegal blockade actions. In particular, existing federal laws and regulations governing financial institutions do not include an authority to require financial service providers to review their business relationships and cease dealing with persons conducting illegal activities. The laws and regulations covering other financial service providers, such as securities dealers or funding platforms, vary by province. There is no overall authority to restrict the funds that go to support illegal assemblies. As such, the EEMO provided crucial authorities in these areas to further bolster the Government’s ability to disrupt the financing of these illegal actions.

30. Did the EEMO result in a seizure of assets?

Under the EEMO, neither the government nor any other entity seized or took possession of any assets. Instead, Canadian financial service providers were required under section 2 of the EEMO to temporarily cease dealings – in effect, to "freeze" the property already in their possession that belonged to persons who were participating in prohibited activities.

The EEMO did not cause the person to lose or forfeit their ownership or other interest in the property. The freezing of the property under the EEMO was specifically designed to be temporary in effect, lasting only until the person stopped their participation in the prohibited activities. The EEMO was much different in effect than orders sought under section 490.8 of the Criminal Code, such as by the Attorney General for Ontario, or Mareva injunctions, such as by the proposed class action plaintiffs in Ottawa.

31. Was the EEMO consistent with the protection against unreasonable search and seizure under section 8 of the Charter?

Section 8 of the Charter protects against unreasonable search and seizure. Although it may not be intuitive, section 8 has not been interpreted as protecting property rights in and of themselves. The word “seizure”, as it is used in section 8, has been interpreted in a way that reflects the purpose of s. 8, which is to protect privacy.

The taking or restraint of property by government will be a “seizure” within the meaning of section 8 only where that taking interferes with privacy rights, as would be the case where the government takes or restrains property in the context of an administrative or criminal investigation. The provisions of the EEMO were not of that nature. The obligation to cease dealings under section 2 was imposed for the purpose of encouraging people to stop their participation in the unlawful activities, not in the furtherance of an administrative or criminal investigation or prosecution.

Response if pressed on whether the EEMO resulted in a seizure for Charter purposes or on the SCC decision in Laroche

A freezing or restraint order can constitute a seizure for s. 8 Charter purposes in certain circumstances. In Laroche, the Supreme Court of Canada held that the restraint order in that case constituted a seizure for Charter purposes because it put property under the control of the justice system for purposes related to the investigation and prosecution of a criminal offence. However, the Court also made it clear that an interpretation of s. 8 of the Charter that made it possible to challenge “mere restrictions on the exercise of property rights” would overshoot the purpose of the right. The freezing of property under the EEMO was not analogous with the situation that was before the Court in Laroche. While the freezing of property under the EEMO may have resulted in a time-limited interference with property rights, it was not carried out in furtherance of an administrative or criminal investigation and did not constitute a seizure within the meaning of s. 8.

Response if pressed on the breadth of the duty to cease dealings:

In terms of concerns that have been expressed about the breadth of the duty to cease dealings under section 2 of the EEMO, it is important to note that the duty applied only to people who were engaging in activities prohibited by sections 2 to 5 of the Emergency Measures Regulations. The use of the present tense – “is engaged” – in the definition of a “designated person” (section 1) limited the duty to cease dealings to people who were continuing to participate in the illegal activities. Financial service providers were required to determine “on a continuing basis” whether a person was participating in the activities. Once a person stopped engaging in an activity prohibited by the EMR, they were no longer a designated person and the duty to cease dealings no longer applied. This was consistent with the objective of disrupting the funding behind the illegal blockades and weakening the ability to re-form them.

D) Revocation of the Public Order Emergency Declaration

32. What was the basis for the revocation of the declaration of emergency on February 23, 2022?

The declaration was revoked by the Governor in Council on February 23, 2022, on the basis that the exceptional measures taken on a temporary basis under the state of emergency declaration were effective in responding to the circumstances that existed across Canada on February 14, 2022, as well as the continuing threats evidenced by circumstances at various border crossings. The police worked around the clock to bring peace to the streets of Ottawa. Under these circumstances, the declaration of an emergency was no longer necessary, and police forces have stated that their existing powers are now sufficient to prevent a recurrence of the emergency that existed on February 14.

33. What was the effect of the revocation of the declaration of emergency?

Once the declaration of emergency was revoked, the two regulations made under the declaration were also deemed to have been revoked automatically, at the same moment as the revocation of the declaration itself, in accordance with subsection 26(2) of Emergencies Act. All powers granted by those regulations also disappeared at the time that the declaration and regulations were revoked.

34. Can an investigation continue and the prosecution and conviction take place for offences under the EMR after the EMR are no longer in effect?

Yes. As long as the offence occurred while the measures were in force, charges may be laid and investigations and prosecutions can continue after the measures are revoked, repealed or expire, subject to police discretion and to prosecution decisions as to whether there is a reasonable prospect of conviction and whether it is in the public interest to proceed.

35. What happens to any property seized under the EMR after it is no longer in effect?

If property seized under the EMR is required as evidence in an investigation or for a prosecution, it may be retained by police in accordance with the usual Criminal Code provisions. Property seized but not required as evidence may be returned. The normal provisions of the Criminal Code regarding the return of such property apply.

It should be noted that the Economic Emergency Measures Order did not authorize seizure of assets. Instead, it allowed for temporary freezing of bank accounts. The freezes were discontinued once the individual ceased their participation in the illegal activity.

E) Charter, Bill of Rights, and International Obligations

36. Does the Canadian Charter of Rights and Freedoms continue to apply while an emergency declaration is in effect?

Yes. The Charter of Rights and Freedoms continued to apply as it did before to protect freedoms including freedom of peaceful assembly and freedom of expression. The measures taken also remained subject to the Canadian Bill of Rights, and the government had regard to Canada’s obligations under international law, including under the International Covenant on Civil and Political Rights.

37. Did the emergency measures comply with the Charter?

Yes, the measures complied with the Charter.

The measures were narrow, time-limited restrictions to address the illegal protests and blockades we were seeing, including the occupation of Ottawa. Throughout the pandemic, Canadians exercised their freedom of expression and right to assemble peacefully, whether to support or to oppose the public health measures that were introduced to combat Covid-19, and they continue to have that freedom. We will always respect, protect and defend the rights of Canadians to peaceful assembly and to express their views freely, but the protests and blockades that we witnessed were illegal, intimidating, harassing and a threat to the security of Canada. What began as a protest against the vaccine mandate for truck drivers crossing the Canada-U.S. border, quickly transformed into a greater movement against all public health measures, and were carried on in conjunction with activities that were directed towards or in support of the threat or use of acts of serious violence against persons or property, including critical infrastructure, for the purpose of achieving a political or ideological objective within Canada. Under the Charter, protests can be subject to reasonable restrictions to prevent them from causing serious harm to others.

In addition to ensuring the measures introduced respected the rights and freedoms protected by the Charter, the measures taken were also consistent with the Canadian Bill of Rights. This compliance is a crucial condition of the Emergencies Act, along with other significant limits, checks and safeguards built into the Act. It should also be noted that the measures taken under the Emergencies Act were consistent with Canada’s obligations under international law, including the International Covenant on Civil and Political Rights.

We only used the powers that were necessary, reasonable and measured to resolve the crisis in a safe and timely manner. The scope of the measures that were taken were time limited, geographically targeted as well as reasonable and proportionate to the threats they were meant to address.

Responsive if pressed on legal advice

Legal advice provided by the Attorney General and the Department of Justice is protected by solicitor-client privilege and is not normally disclosed outside of the executive branch of government. However, I am able to convey the legal position, which is that the measures taken under the Emergencies Act were consistent with the Charter.

Responsive if pressed on particular cases:

I will confine my comment to the validity of the EMR and EEMO. I cannot answer factual questions about how the EMR and EEMO were construed and applied in particular instances.

38. Were the EMR and Order examined for inconsistency with the Charter?

The Emergencies Act itself recognizes that any special temporary measures taken under it are subject to the Canadian Charter of Rights and Freedoms.

The examination requirements in s. 4.1 of the Department of Justice Act do not apply where an examination has taken place pursuant to the Statutory Instruments Act, which was the procedure that was followed in the case of the measures taken under the Emergencies Act.

The Emergency Measures Regulations and the Emergency Economic Measures Order were examined for any inconsistency with the Charter in accordance with the obligation under s. 3 of the Statutory Instruments Act.

The Government’s position is that the measures taken were consistent with the Charter. The measures taken reflected serious consideration of constitutionally protected rights and freedoms, including the right to freedom of expression (section 2(b)), the right to peaceful assembly (section 2(c)), the right of citizens to enter Canada (section 6), the right to life, liberty and security of person (section 7) and the protection against unreasonable search and seizure (section 8).

39. Why wasn’t a Charter Statement Prepared for these measures?

The obligation to table Charter Statements under the Department of Justice Act applies to Government Bills. It does not apply to Regulations or Orders in Council.

Of course, there are other ways to be transparent about the Charter implications of government action, and to seek to inform parliamentary and public debate on these important questions. Through remarks in the House of Commons and in public speeches, the Prime Minister and other government ministers have often spoken to the Charter impacts of the measures taken by the government, and responded to questions or concerns in this regard. We continue to do so.

40. Was the invocation of the Emergencies Act consistent with Canada’s obligations under international law?

The preamble to the Emergencies Act specifically recognizes the importance of Canada’s obligations under the International Covenant on Civil and Political Rights, or ICCPR. The government always takes these legal obligations seriously.

The Government’s position is that the measures taken under the Emergencies Act were consistent with Canada’s obligations under international law, including the ICCPR. There is a substantial degree of overlap between the Charter and the ICCPR, in many ways.

Some of the relevant obligations under the ICCPR are:

Similar to the Canadian Charter of Rights and Freedoms, some of the ICCPR rights contain internal limits, for example by protecting “peaceful” assemblies rather than all assemblies. The ICCPR also permits governments to impose lawful restrictions on certain rights, to the extent the restrictions are necessary for listed purposes. These purposes tend to include the protection of national security or of public order.

Responsive: Did Canada invoke its right of derogation under the ICCPR? If not, why not?

41. Was the EEMO consistent with the fundamental freedoms of expression and peaceful assembly under sections 2(b) and 2(c) of the Charter?

Section 2 of the Emergency Economic Measures Order requires listed entities to cease dealings involving property owned by or held for the benefit of a person who “is participating” in activities prohibited by ss. 2-5 of the Regulations.

The freezing of assets under the EEMO may engage the fundamental freedoms of expression and peaceful assembly, which are protected under sections 2(b) and 2(c) of the Charter.

The measures were tailored to limit any impact on Charter rights no more than reasonably necessary to end the unlawful assemblies. The obligation to freeze accounts applied only to people who were participating in the specific illegal activities described in sections 2-5 of the Emergency Measures Regulation. People were able to regain access to their assets by stopping their participation in those unlawful activities.

42. Was the EEMO consistent with the right to security of the person under s. 7 of the Charter?

Section 7 of the Charter protects against the deprivation of an individual’s life, liberty and security of the person unless done in accordance with the principles of fundamental justice.

The freezing of assets does not impact section 7 rights, including the security of the person.

Although the Supreme Court of Canada has left open the possibility that section 7 may protect economic rights that are fundamental to human survival, the provisions of the EEMO were not of that nature. The measures were temporary in nature and applied only as long as an individual was participating in the illegal activities. People were able to regain access to their assets by stopping their participation in the activities prohibited under the Emergency Measures Regulation.

43. Was the EEMO consistent with the protection against unreasonable search and seizure under section 8 of the Charter?

Section 8 of the Charter protects against unreasonable search and seizure.

Although it may not be intuitive, section 8 has not been interpreted as protecting property rights in and of themselves. The word “seizure”, as it is used in section 8, has been interpreted in a way that reflects the purpose of s. 8, which is to protect privacy.

The “taking” of property by government will be a “seizure” within the meaning of s. 8, only where that taking interferes with privacy rights, as would be the case where the government takes or seizes property in the context of an administrative or criminal investigation.

The provisions of the EEMO were not of that nature. The obligation to cease dealings under s. 2 was imposed for the sole purpose of encouraging people to stop their participation in the unlawful activities, not in the furtherance of an administrative or criminal investigation.

Section 8 of the Charter may be engaged, however, by the information sharing provisions included in the EEMO. Under section 8 of the Charter, government activities that interfere with a reasonable expectation of privacy – such as the collection or disclosure of private information – must be authorized by a reasonable law. A reasonable law is one that strikes an appropriate balance between privacy and the state objective. The Government’s position is that the information sharing provisions included in the EEMO constitute reasonable lawful authority in the meaning of section 8 of the Charter. The illegal blockades we witnessed were well-funded and constituted a serious threat to national security. The measures contained in the Emergency Economic Measures Order were time-limited, targeted, reasonable and proportional to the threat posed.

Responsive: In what ways is the EEMO reasonable lawful authority under section 8 of the Charter?

Section 4 (Registration and Reporting to FINTRAC)

Section 4 of the EMMO extended certain reporting requirements under the Proceeds of Crime, Money Laundering and Terrorist Financing Act to crowdfunding platforms and related payment service providers who were not previously subject to the Act. Specifically, it required that these entities register with FINTRAC and report any suspicious and large value transactions to FINTRAC. Information disclosed by FINTRAC to investigative agencies, including law enforcement, is limited to specified information set out in the PCMLTFA and is subject to a reasonable suspicion threshold.

Section 5 (Disclosure to RCMP and CSIS)

Section 5 created an obligation on listed entities to disclose certain information to the Commissioner of the RCMP or the Director of CSIS. In particular, they must disclose the existence of any property in their possession or control that belongs to a person who is involved in the blockades, or any transactions relating to such property.

The obligation to disclose information about property or transactions was limited in terms of the entities it applied to and triggered only where there was reason to believe that property in the entity’s possession or control belongs to people who were engaged in the illegal activities set out in the Regulations. The obligation was a time-limited and proportionate response to the extraordinary circumstances that gave rise to the declaration of a public order emergency.

Section 6 (Disclosure of Information)

Section 6 authorized the disclosure of information by a government (federal, provincial or territorial) institution to the entities that were subject to the obligation to freeze accounts (cease dealings). The disclosing institution must have been satisfied that the disclosure contributed to the application of the order.

The discretion to disclose information under section 6 must have been carried out in accordance with the requirements of the Charter.

Responsive if pressed on freezing of assets:

In terms of concerns that have been expressed about the breadth of the duty to cease dealings under s. 2 of the EEMO, it is important to note that the duty applied only to people who were engaging in activities prohibited by sections 2 to 5 of the Emergency Measures Regulations. The use of the present tense – “is engaged” – in the definition of a “designated person” (s. 1) limited the duty to cease dealings to people who were continuing to participate in the illegal activities. This was consistent with the objective of disrupting the funding behind the illegal blockades and weakening the ability to re-form them.

Any further questions about how the duty to cease dealings under s. 2 of the EEMO was operationalized would be best addressed by officials from the Department of Finance.

44. Did the EMR infringe the right to protest?

Freedom of expression and peaceful assembly are fundamental freedoms protected by the Charter of Rights and Freedoms.

These freedoms are not absolute. Freedom of expression does not protect violence or threats of violence. Freedom of peaceful assembly does not protect assemblies that are not peaceful. Some of the activity at the blockades was outside the boundaries of these freedoms.

In addition, the EMR placed limits on expression and peaceful assembly when these activities were likely to lead to a harmful and entrenched blockade.

These limits on freedom of expression and peaceful assembly were reasonable and justified under s. 1 of the Charter. For a very short time period, it was necessary to reduce further flows into the blockades and to prevent the formation of new ones. The EMR did not prohibit peaceful assemblies that were not reasonably expected to lead to a breach of the peace. The EMR did not prohibit people from expressing their opinions in other ways.

45. Was the EMR prohibition of entry to Canada consistent with section 6 of the Charter?

Section 3 of the Emergency Measures Regulations prohibited foreign nationals from entering Canada with the intent to participate in or facilitate an unlawful assembly, as defined by section 2 of the EMR.

This prohibition applied only to certain foreign nationals. It should be noted that foreign nationals have no Charter right to enter or remain in Canada.

Under section 6 of the Charter, Canadian citizens have a right to enter Canada. This right was not impacted by the EMR. The prohibition in section 3 of the EMR did not apply to either citizens or permanent residents of Canada. Their legal rights to enter the country were unaffected by the invocation of the Emergencies Act.

46. Does the Canadian Bill of Rights protect a right to protest?

The Canadian Bill of Rights protects freedom of speech and freedom of assembly. Like the freedoms in the Charter, these freedoms are subject to limits.

The Bill of Rights codifies rights and freedoms as they existed in 1960 and they are subject to limits that would have been recognized in 1960.

The EMR restricted a time-limited and narrow category of speech and assembly that would have been considered outside the protections of fundamental rights and freedoms in Canadian law in 1960.

47. Does the Canadian Bill of Rights prevent the interference of enjoyment of property?

The Canadian Bill of Rights protects the right of the individual to enjoyment of property, and the right not to be deprived thereof except by due process of law.

The Bill of Rights requires that every law shall be so construed and applied as not to infringe or to authorize the infringement of its rights or freedoms.

The EMR and EEMO did not preclude any process that may have been due to an individual under the Bill of Rights.

If there are questions about specific asset freeze cases:

I will limit my comments to the validity of the EMR and EEMO. I cannot answer factual questions about how the EMR and EEMO have been interpreted and applied in specific cases.

F) Cabinet Confidence

48. What constitutes a Cabinet confidence?

Essentially, the matters considered at Cabinet, the deliberations of Ministers on these matters and the documents supporting those deliberations constitute Cabinet confidences. As defined in the statutory regime governing Cabinet confidences (i.e, the Access to Information Act and the Canada Evidence Act), this includes information contained in:

  1. memoranda the purpose of which is to present proposals or recommendations to Council;
  2. discussion papers the purpose of which is to present background explanations, analyses of problems or policy options to Council for consideration by Council in making decisions; except where the decision to which the discussion paper relates has been made public;
  3. agenda of Council or records recording deliberations or decisions of Council;
  4. records used for or reflecting communications or discussions between ministers of the Crown on matters relating to the making of government decisions or the formulation of government policy;
  5. records the purpose of which is to brief ministers of the Crown in relation to matters that are before, or are proposed to be brought before, Council or that are the subject of communications or discussions referred to in paragraph (d);
  6. draft legislation.

49. Why doesn’t the government disclose Cabinet confidences to Parliamentarians?

The confidentiality of the Cabinet decision-making process is fundamental to our Westminster-style parliamentary democracy because it allows ministers to express their views and opinions in private on matters for which they are collectively accountable to the House of Commons. The Supreme Court of Canada has long recognized that each branch of the state plays a fundamentally distinct role and must be able to fulfill its role without undue interference by the others. Several doctrines work to prevent undue interference, including the secrecy afforded to judicial deliberations, the powers and immunities enjoyed by the Houses of Parliament and the constitutional convention of Cabinet confidentiality.

Decisions of the Governor in Council, including the decision to declare a public order emergency, attract Cabinet confidentiality. However, the Government has been fully transparent about the reasons for declaring an emergency, which are set out in the detailed explanation that was tabled in the Houses of Parliament pursuant to s. 58 of the Emergencies Act.

50. Why does the Clerk invoke section 39 of the Canada Evidence Act in litigation?

Confidences of the Queen’s Privy Council are subject to public interest immunity from production in legal proceedings under the common law and section 39 of the Canada Evidence Act because the constitutional convention of Cabinet confidentiality is essential to good government.

As the most senior official of a neutral public service and the custodian of Cabinet confidences, the Clerk of the Privy Council generally performs the functions under section 39 for all manner of litigation involving federal Cabinet confidences.

When the Clerk invokes section 39 to protect confidences of the Queen’s Privy Council for Canada, she does so in the interest of the broader public, not in the interest of a given litigant, including the Attorney General of Canada. Section 39 is an exclusionary rule, imposed on parties in certain circumstances, even where it is to their disadvantage in the litigation.

Once invoked, section 39 precludes the production and examination of the information at issue by any court or party.

[Note: Section 39 can be invoked before any court, person or body with the jurisdiction to compel the production of information.]

51. How does the Clerk determine whether the public interest favors disclosure or confidentiality under section 39 of the Canada Evidence Act?

In exercising the authority under section 39, the Clerk must follow the guidance provided by the Supreme Court of Canada, which made it clear that the task is not pro forma or perfunctory. The Clerk personally and carefully weighs the competing public interests for a specific document and in the context of a particular proceeding. This level of rigor is necessary given the competing public interests and the significant consequences on all affected parties if they are withheld and on the executive branch of government, if they are disclosed:

As a result, when the Clerk invokes section 39 to protect confidences of the Queen’s Privy Council for Canada, she does so in the interest of the broader public, not in the interest of a given litigant, including the Attorney General of Canada.

52. Can the Prime Minister or a Minister “waive” Cabinet confidentiality in litigation?

The Supreme Court has confirmed that the concept of waiver does not apply to confidences of the Queen’s Privy Council for Canada since they are subject to public interest immunity rather than Crown privilege. Disclosure of Cabinet confidences can only be authorized when, upon considering the factors set out in the relevant case law, the public interest in disclosure outweighs the public interest in confidentiality (this disclosure would still be subject to other privileges and immunities).

Where the Clerk has certified information under s. 39 of the Canada Evidence Act, the information gains the protection of the statute and its confidentiality must be maintained in the broader public interest.

G) Legal Advice

Responsive if pressed on disclosing legal advice

53. What legal advice did you or the Department of Justice give about whether the threshold for a declaration of a public order emergency was met?

Legal advice provided by the Attorney General and Department of Justice is protected by solicitor-client privilege and is not normally disclosed outside of the executive branch of government. However, I am able to convey the legal position, which is that the threshold for the declaration of a public order emergency was met.

54. What legal advice did you or the Department of Justice give about whether the measures were consistent with the Charter?

Legal advice provided by the Attorney General and the Department of Justice is protected by solicitor-client privilege and is not normally disclosed outside of the executive branch of government. However, I am able to convey the legal position, which is that the measures taken under the Emergencies Act were consistent with the Charter.