1. Opening Remarks
Opening Remarks for the Deputy Minister of Justice Special Joint Committee on the Declaration of Emergency
Opening Remarks for the Deputy Minister
Honourable Joint Chairs and Committee Members, thank you for the invitation to speak to you.
I want to cover 3 points in my opening remarks:
- First, I will review the test under the Emergencies Act to declare a public order emergency;
- Second, I will review the temporary measure that were enacted following the declaration of public order emergency; and
- Third, I will speak to the compliance of the measures with the Charter of Rights and Freedoms.
The Test under the Emergencies Act
I refer you to sections 3, 16 and 17 of the Act.
They provide that when the Governor in Council believes, on reasonable grounds, that there is an emergency arising from threats to the security of Canada that is so serious it is a national emergency necessitating special temporary measures, it may declare a state of public order emergency under the Emergencies Act.
This incorporates two defined terms:
- “threat to the security of Canada” under s.2 of the CSIS Act, which includes the threat or use of acts of serious violence against persons or property for the purpose of achieving a political or ideological objective; and
- “national emergency” under s. 3 of the Emergencies Act, which is an urgent, temporary and critical situation that seriously endangers the health and safety of Canadians, that cannot be effectively dealt with by the provinces or territories, and cannot be effectively dealt with under any other law of Canada.
On February 14, the Governor in Council was of the view that our country was in such a situation. The reasons for issuing the declaration of a public order emergency were set in in great detail in the public document as required by section 58 of the Emergencies Act. I believe you all have copies of that document.
Through the consultations undertaken with the provinces and territories and in considering the security threats and their economic impacts that were then known to exist in multiple locations across the country, the Governor in Council determined that the situation had exceeded the capacity and authority of the provinces and territories to respond effectively: more tools were needed to protect the safety and security of Canada and Canadians. The test is not whether other laws existed (like the Highway Traffic Act) – the test is whether they were effective at dealing with the emergency. Nor is the test whether they could have been effective; the test is whether they were effective.
In order to respond to the emergency, time-limited measures were enacted for law enforcement and financial service providers to use at their discretion to deal with this public order emergency.
The Temporary Measures: Measures Regulations (EMRs) and the Emergency Economic Measures Order (EEMO)
The Emergency Measures Regulations prohibited some targeted conduct and conferred authorities on peace officers for the preservation and maintenance of the public peace.
The Emergency Measures Regulations created five prohibitions. I refer you specifically to subsections 2(1) and 2(2), as well as sections 3, 4 and 5. Each targeted conduct observed during the unlawful blockades in and around our ports of entry and in Ottawa.
A key prohibition is the one at subsection 2(1). It supplements authorities that police have at common law to keep the peace by prohibiting a very specific and targeted kind of public assembly:
- One that is reasonably expected to lead to a breach of the peace by:
- the serious disruption of the movement of person and goods or the serious interference of trade;
- the interference with the functioning of critical infrastructure; or
- the support of the threats or use of serious violence against persons or property.
The measures also prohibited bringing children into these unlawful assemblies – conduct we all observed in Ottawa; they prohibited entry into Canada of foreign nationals with the intent to participate in the unlawful assemblies; and they prohibited the provision of property or funding to support the unlawful assemblies.
The companion Emergency Economic Measures Order set out the temporary financial measures that allowed law enforcement agencies to work more closely with Canadian financial institutions, and provided additional measures to monitor and disrupt financial activity associated with the illegal blockades. This included obligations on financial institutions to freeze the accounts of persons participating in those activities. The measures were targeted and time-limited because the duty to freeze accounts no longer applied if the ‘designated person’ was no longer participating in the unlawful activities.
All of these measures responded to what Canadians were seeing in Coutts, Alberta, in Emerson, Manitoba, in Windsor, and in Ottawa.
Their objectives were clear:
- to deter the attendance at unlawful assemblies;
- to bring an end to the unlawful blockades; and
- to prevent the formation of new unlawful blockades and protests.
As the Minister of Justice said at his appearance on April 26, these measures were consistent with the Charter and the declaration of emergency did not suspend the Charter. The Charter continued to protect rights and freedoms as the government took the necessary, lawful and proportionate measures to address the illegal protests and blockades.
I want to explain what we do at the Department of Justice when we review new laws, like these measures, for Charter compliance.
We are not the police deciding whether or how to use existing or new authorities. Nor are we acting as prosecutors deciding whether to pursue a prosecution.
We review the law – in this case the new measures – to understand their objectives and identify whether they engage Charter rights. If Charter rights are engaged, we assess whether any infringement is justified in a free and democratic society, relying on the decisions of the courts, and in particular the Supreme Court of Canada.
While we cannot share legal opinions we may have prepared for the executive branch of government, we can explain the position of the government. And as the Minister has already said, his position is that the measures were targeted, proportional, time-limited and Charter compliant.
The Minister of Justice has tabled before you a statement that sets out the Charter considerations related to these temporary measures. We hope that it is helpful to your understanding and deliberations.
In conclusion, we saw that collectively, the Emergency Measures and the Economic Order deterred illegal protests and allowed police to bring the situation under control. Occupiers left rather than have their accounts frozen; people stopped bringing children to the illegal protests allowing police enforcement to happen in Ottawa; and they discouraged others from joining the blockades. Indeed, those were the objectives of the new measures enacted under the Emergencies Act.
I am prepared and happy to provide more detail in response to any of your questions.
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