Opinion: Canadian lawyers urge rejection of Emergencies Act

Published by the Toronto Sun, February 21, 2022

To All Members of Parliament and Senators:

We, the undersigned, are Canadian lawyers.

We write to you to express our deep concern at the federal government’s use of the Emergencies Act in response to nationwide protests and blockades occurring in recent weeks.

Our concerns relate both to the rule of law and the potential for infringement upon civil liberties.

Firstly, the Emergencies Act contains very strict criteria which must be met in order for the federal government to declare a Public Order Emergency.

A Public Order Emergency is defined as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”

“(T)hreats to the security of Canada” include such activities as espionage; foreign-influenced activities detrimental to Canada’s interests that are deceptive or involve threats; terrorist activities; and activities intended to effect the destruction, or violent overthrow, of the government.

Even assuming for the sake of argument that this criterion is met, the Act states that a “national emergency” is an urgent and critical situation of a temporary nature that:

(a) 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

(b) seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada and that cannot be effectively dealt with under any other law of Canada.

With respect, we do not believe that these criteria have been met, as provinces continued to have the capacity to address unlawful activity, and our pre-emergency laws already effectively address such unlawful activity.

In fact, prior to the Emergency Declaration, Ontario had already invoked a State of Emergency. Some infrastructure blockades had already been cleared under existing laws, which included enforcement of court injunctions. There are also already a wide variety of charges available to law enforcement officials
under federal, provincial, and municipal laws to address activities such as impeding critical infrastructure or property destruction.

Secondly, the federal government’s orders issued under the Emergency Declaration present significant and unprecedented challenges to Canadians’ civil liberties.

As but one example, the federal government has issued orders which require financial institutions to report to police assets that might be held by individuals supporting or participating in certain protests.

Financial assets can be frozen without judicial authorization and without evidence of civil or criminal liability, removing an important independent safeguard protecting Canadians’ financial well-being.

Anyone breaching the government’s orders can be subject to fines and up to five years’ imprisonment on conviction.

The Emergencies Act is designed for use in rare circumstances. We do not believe that the current circumstances warrant its unprecedented invocation.

The rule of law is a fundamental principle of our constitutional order and requires that the government be bound by the law. It appears that the government has enacted an Emergency Declaration where it has not met the strict criteria permitting it to do so.

Our Charter of Rights and Freedoms protects Canadians’ freedom to peacefully assemble, free expression, and the right to due process before and under the law. While these are subject to “reasonable limits,” we have concerns about the discretion that law enforcement officials can and may exercise to infringe upon these rights and freedoms, and that the mere invocation of an emergency may be used to justify breaches of these rights and freedoms.

We are also concerned that future federal governments will use the current emergency to justify emergency measures against Canadians’ peaceful political and ideological activities, and against those who might simply oppose the government of the day.

For these reasons, we call upon you to reject the Emergency Declaration when it comes to a vote in Parliament.

We note that the Emergencies Act provides for a mandatory public inquiry into its use. We encourage you to ensure that this public inquiry is robust, has representation from across all parties, and includes the participation of independent, non-partisan experts, including lawyers.

Parliamentarians control parliament — not the government. We encourage you to exercise your authority, consider the issues we have identified, and view your vote on the Emergency Declaration not through a partisan lens, but one which considers how to best safeguard the rule of law and civil liberties — not only for today, but more importantly, for the future.

Yours very truly,

Ryan P. O’Connor, Toronto, of the Ontario Bar
Sweta Tejpal, Mississauga, ON, of the Ontario Bar
Sayeh Hassan, Toronto, of the Ontario Bar
Jean S(C)bastien Lebrun, Carignan, QC, of the Quebec Bar
Christine Van Geyn, Toronto, of the Ontario Bar
Jennette Vopicka, Kelowna, BC, of the BC and Alberta Bars
Aaron L. Wudrick, Ottawa, of the Ontario Bar
Eva Chipiuk, Edmonton, of the Alberta Bar
Ryan Alford, Thunder Bay, ON, of the Ontario Bar
Katya Permiakova, Ottawa, of the Ontario Bar
Chelsea Dobrindt, Richmond Hill, ON, of the Ontario Bar
Natalie L.A. Johnson, Edmonton, of the Alberta Bar
Brian Heck, Qualicum Beach, B.C., of the Alberta Bar (retired)
Yaakov Roth, Washington, of the District of Columbia Bar
Tabitha Ewert, Ottawa, of the Ontario Bar
Daniel Freiheit, Toronto, of the Ontario Bar
W. Christopher Nunn, Norfolk County, ON, of the Ontario Bar
Stephen Penney, Cambridge, ON, of the Ontario Bar
Jorge Pineda, Toronto, of the Ontario Bar
Bruce Day, Collingwood, ON, of the Ontario Bar
Barry W. Bussey, Trent Hills, ON, of the Ontario and Newfoundland and Labrador Bars
Bruce Pardy, London, ON, of the Ontario Bar
Yaroslav Obouhov, Brooklin, ON, of the Ontario Bar
Rob Kittredge, Toronto, of the Ontario Bar
Lisa Bildy, London, ON, of the Ontario Bar
Anthony Gabriele, Vaughan, ON, of the Ontario Bar
Gordon Fitzgerald, Burlington, ON, of the Ontario Bar
Penny-Lynn Marie Rintoul, Mississauga, ON, of the Ontario Bar
Hans Kalina, Toronto, of the Ontario Bar
Kirk Rintoul, Vaughan, ON, of the Ontario Bar
Kathryn Marshall, Toronto, of the Ontario Bar
Alexander D. Wilkes, Vaughan, ON, of the Ontario Bar
James S.M. Kitchen, Airdrie, AB, of the Alberta Bar
Jennifer Lynn Richards, Windsor, ON, of the Ontario Bar