3. Charter Backgrounder

Charter Backgrounder: Regulations and Order Made under the Emergencies Act in February 2022

The Special Joint Committee on the Declaration of Emergency is studying the exercise of powers and the performance of duties and functions pursuant to the Declaration of Emergency that was in effect from Monday, February 14, 2022, to Wednesday, February 23, 2022. Members of the Special Joint Committee have asked questions about how the measures taken by the government pursuant to the Emergencies Act were consistent with the Canadian Charter of Rights and Freedoms (Charter). Specifically, these questions concern the Emergency Measures Regulations (EMR) and the Emergency Economic Measures Order (EEMO).

The EMR and the EEMO were reviewed for consistency with the Charter, pursuant to section 3 of the Statutory Instruments Act.

Given the importance of the study being performed by the Special Joint Committee and the questions that members have posed, the Minister of Justice has prepared the following Charter backgrounder. The backgrounder sets out potential effects that the EMR and EEMO may have had on rights and freedoms guaranteed by the Charter. It also explains considerations that supported the constitutionality of the measures.

This backgrounder is intended to provide legal information to the public and Parliament. It is not intended to be a comprehensive overview of all conceivable Charter considerations. The backgrounder is not a legal opinion.

Overview

A written explanation of the reasons for issuing the February 14, 2022 Declaration of Public Order Emergency was tabled in both houses of Parliament, pursuant to section 58(1) of the Emergencies Act.Footnote 1 That document provides the factual context for the considerations set out in this backgrounder.

1. Prohibition on participating in certain public assemblies and related measures (EMR)

Section 2(1) of the EMR provided that a person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by the serious disruption of the movement of persons or goods or the serious interference with trade, the interference with the functioning of critical infrastructure, or the support of the threat or use of acts of serious violence against persons or property.

To the extent that the defined activities constitute violence, threats of violence, or assembly that is not peaceful, they are not protected by the Charter. Section 2(b) of the Charter protects freedom of expression, which courts have found does not extend to violence or threats of violence. Section 2(c) of the Charter protects freedom of peaceful assembly, which by definition does not protect assemblies that are not peaceful.

To the extent that the provision restricted non-violent expression or peaceful assembly, it placed limits on the freedoms set out in sections 2(b) and 2(c) of the Charter. Section 1 of the Charter permits these limits if they are prescribed by law and can be demonstrably justified in a free and democratic society. The following considerations support the justification.

The objective of section 2(1) of the EMR was to deter attendance at and to bring an end to the existing blockades and to prevent the formation of new unlawful blockades. The provision targeted those and only those public assemblies that were likely to lead to three specific harms, namely (a) the serious disruption of the movement of persons or goods or the serious interference with trade, (b) the interference with the functioning of critical infrastructure, or (c) the support of the threat or use of acts of serious violence against persons or property. The provision did not prohibit other public assemblies or other means of expressing the same or any other message. The prohibition was time limited; it applied only while the EMR was in effect, during which time blockades were underway or the risk of new blockades was elevated.

Supporting provisions in the EMR included restrictions on causing a person under the age of eighteen years to participate in or travel to or within 500 m of a prohibited assembly (sections 2(2), 4(2)), on foreign nationals entering Canada with the intent to participate in or facilitate a prohibited assembly (section 3(1)), on travelling to or within an area where a prohibited assembly was taking place (section 4(1)), and on using, collecting, providing, or inviting a person to provide property to facilitate or participate in a prohibited assembly or for the purpose of benefiting any person who was facilitating or participating in such an activity (section 5).

The supporting provisions contributed to the objective of section 2(1) of deterring attendance at and bringing an end to the existing blockades and preventing the formation of new unlawful blockades. In particular, sections 2(2), 3(1), 4(1) and 4(2) were intended to prevent additional attendance at or near prohibited assemblies and included exceptions where appropriate to allow travel that did not increase attendance at prohibited assemblies. Section 5 was intended to disrupt the provision of property to, as well as the funding of, prohibited assemblies with a view to ending existing blockades and preventing the formation of new ones. In restricting acts of material support for expressive activity, section 5 had the potential to limit freedom of expression. Any such limit was justified by its objective of supporting section 2(1) and its narrow scope of application only to the facilitation of or participation in a prohibited assembly.

2. Offences for contravening prohibitions (EMR)

Contravention of the EMR was an offence punishable by imprisonment. As such, the EMR potentially engaged the right to liberty under section 7 of the Charter, which 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 relevant provisions are consistent with the principles of fundamental justice. These include the principles against arbitrariness, overbreadth and gross disproportionality. An arbitrary law is one that impacts section 7 rights in a way that is not rationally connected to the law’s purpose. An overbroad law is one that impacts section 7 rights in a way that, while generally rational, goes too far by capturing some conduct that bears no relation to the law’s purpose. A grossly disproportionate law is one whose effects on section 7 rights are so severe as to be “completely out of sync” with the law’s purpose.

As described above, the prohibitions and corresponding offence were tailored to the objectives of ending the blockades and preventing the formation of new unlawful blockades. The prohibition in s. 5 of the EMR on using or making property available to facilitate or participate in an unlawful assembly was similarly intended to disrupt the support and funding behind the illegal assemblies with a view to ending them and preventing the formation of new ones. Upon conviction, a judge will have discretion to impose a fit and appropriate sentence.

3. Duty to cease dealings and related measures (EEMO sections 2-3)

The EEMO set out the temporary, emergency financial measures associated with the declaration of a public order emergency under the Emergencies Act. Section 2 of the EEMO required Canadian financial service providers to cease dealing with property of, and to cease providing services to, persons who were engaged in the activities prohibited by sections 2 through 5 of the EMR (“designated persons”). Under section 3 of the EEMO, Canadian financial service providers were required to determine, on a continuing basis, whether they were in possession or control of property that belonged to designated persons. 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.

Section 8 of the Charter protects against unreasonable searches and seizures. The purpose of section 8 is to protect individuals from an unreasonable intrusion into a reasonable expectation of privacy by the state. A search or seizure will be reasonable if it is authorized by law, the law itself is reasonable (in the sense of striking an appropriate balance between privacy interests and the state interest being advanced), and the search is carried out in a reasonable manner.

The provisions of the EEMO did not amount to a seizure within the meaning of section 8 of the Charter. Section 8 has not been interpreted as protecting property rights in and of themselves. The taking or restraint of property by government will be a “seizure” in the meaning of s. 8 only where that taking interferes with the privacy rights of an individual. For example, 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. The obligation to cease dealings applied only while people were participating in the prohibited activities.

The duty to cease dealings does not engage the right to security of the person under section 7 of the Charter, which does not generally protect economic or property rights. The duty to cease dealings was temporary, applicable only as long as the person was participating in the prohibited activities. The measures under the EEMO did not give rise to a complete or effective deprivation of livelihood. Consistent with the purpose of ending the prohibited assemblies and preventing the formation of new ones, individuals were able to regain access to their property by ceasing their participation in the prohibited activities.

4. Information-sharing (EEMO sections 4-6)

Sections 4 to 6 of the EEMO set out authorities for the collection and sharing of information to support the temporary, emergency financial measures. Section 4 extended certain reporting requirements under the Proceeds of Crime, Money Laundering and Terrorist Financing Act (PCMLTFA) to crowdfunding platforms and related payment service providers where they were in possession or control of property belonging to designated persons. Specifically, it required that these entities register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) and report suspicious and large value transactions to FINTRAC when the applicable legal thresholds set out in the EEMO, PCMLTFA and its Regulations were met. Under the PCMLTFA, FINTRAC must disclose designated information it receives to agencies listed in that Act, including law enforcement, on a reasonable suspicion threshold. This disclosure is limited to information designated in the PCMLTFA.

Section 5 created an obligation on Canadian financial service providers to disclose certain information to the Commissioner of the Royal Canadian Mounted Police or to the Director of the Canadian Security Intelligence Service. In particular, they were required to disclose the existence of any property in their possession or control that belonged to a person who was involved in the blockades, or any transactions relating to such property.

Section 6 authorized the disclosure of information by a federal, provincial or territorial government institution to Canadian financial service providers. The disclosing institution had to be satisfied that the disclosure would contribute to the application of the EEMO. This allowed law enforcement agencies to share information that could help the financial service providers identify potential designated persons, in order to support them in carrying out their obligations under section 2. The EEMO did not displace Canadian financial service providers’ existing statutory obligations in relation to the protection of personal privacy.

The collection and sharing of information about individuals participating in the prohibited assemblies, including their financial transactions and property, potentially engages section 8 of the Charter because it involves information that individuals may expect to be kept private.

The provisions allowing for the collection and sharing of information are consistent with section 8. The collection and information authorities contained in the EEMO were a time-limited and proportionate response to the extraordinary circumstances that gave rise to the declaration of a public order emergency under the Emergencies Act. The registration and reporting requirements under section 4 applied to entities that might be vulnerable to money laundering or terrorist financing related activities. These obligations were consistent with the standards and thresholds under the PCMLTFA. The obligation to disclose information about property or transactions under section 5 of the EEMO was limited in terms of the entities to which it applied and was only triggered where there was reason to believe that property in the entity’s possession or control belonged to designated persons. The authority to disclose information to financial service providers under section 6 of the EEMO was only available in circumstances where the disclosing institution was satisfied that the disclosure would contribute to the application of the EEMO. The discretion under section 6 had to be exercised in accordance with the Charter.