State of Emergency Imposed in Canada to End Truckers' Blockade in Protest of Covid Vaccine Mandate Restrictions

Canada’s Parliament Votes in Favour of a Motion for Confirmation of the Declaration of (Public Order) State of Emergency in a Bid to end Weeks-long Disruptions, Blockades and the Occupation of the City of Ottawa Staged by Truckers in Protest of Covid Vaccine Mandate Restrictions

On Monday February 21, 2022, Canadian parliamentarians voted by 185 to 151 in favour of the imposition of special temporary measures that may not be appropriate in normal times, thus confirming the declaration of a public order emergency proclaimed on February 14, 2022 by the Honourable David Lametti, Minister of Justice and Attorney General of Canada. The declaration will be effective for up to 30 days, that is, up to March 17, 2022, with the possibility of an extension confirmed by Parliament if deemed necessary by government.

This motion was voted in pursuance of Section 58 of the Emergencies Act of July 21, 1988, a statute which authorizes the taking of special temporary measures to ensure safety and security during national emergencies. Section 58 of the Emergencies Act relates to tabling motions in parliament in consideration of declaration of emergency.

As a matter of law, the making of this declaration of a public order emergency under the Emergencies Act empowers the Canadian government to make orders and regulations that it believes are necessary for dealing with the emergency, on reasonable and proportional grounds. Also, measures taken by the Government under the Emergencies Act are mandatorily required to be consistent with the Canadian Charter of Rights and Freedoms (which is part and parcel of the Canadian Constitution), and are to be reasonable and proportional to the risks to the public health and safety of Canadians.

The public order emergency specifically grants the Government the authority to apply the following temporary measures:

-?????????Regulating and prohibiting public assemblies, including blockades, other than lawful advocacy, protest or dissent;

-?????????Regulating the use of specified property, including goods to be used with respect to a blockade;

-?????????Designating and securing places where blockades are to be prohibited (e.g. borders, approaches to borders, other critical infrastructure);

-?????????Directing specified persons to render essential services to relieve impacts of blockades on Canada’s economy;

-?????????Authorizing or directing specified financial institutions to render essential services to relieve the impact of blockades, including by regulating and prohibiting the use of property to fund or support the blockades;

-?????????Measures with respect to authorizing the Royal Canadian Mounted Police to enforce municipal and provincial laws by means of incorporation by reference;

-?????????The imposition of fines or imprisonment for contravening on any of the measures declared under this public order emergency;

Section 16 (Part II) of the Emergencies Act, which has never been resorted to since its adoption in 1988, defines a public order emergency or state of emergency as “an emergency that arises from threats to the security of Canada and that is so serious as to be a national emergency.”

The Act also defines a national emergency as, “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.”

Moreover, Sections 17 ff of the Emergencies Act which lays down the framework for the Declaration of (Public Order) State of Emergency require that the declaration specify the state of affairs constituting the emergency; the special temporary measures anticipated as may be necessary for dealing with the emergency; and finally, if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.

Although measures instituted derogate from the powers exercised by the government in times of peace, it is however required that such measures respect constitutionally protected rights and freedoms, including the right of citizens to enter Canada and the right to life, liberty and security of person, as well as Canada’s obligations under international law.

It should be noted that on February 15, 2022, the government instituted Emergency Measures Regulations: SOR/2022-21, made pursuant to subsection 17(1) of the Emergencies Act, limiting certain rights, including: public assembly, prohibition of entry into Canada by foreign nationals, prohibition of provision property to facilitate or participate in any assembly, designating protected places that may be secured, directing persons requisitioned to render essential goods and services, and forced compliance with regulations in case of contravention.

The Emergency Economic Measures Order, also enacted on February 15, 2022 pursuant to the declaration of emergency. It imposes a duty on certain entities to cease dealings with designated persons involved in the protest or facilitating transactions relating to protesters, certain entities to report suspicious financial transactions, etc. In this vein, crowdfunding platforms and their payment processors were required to register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC), and report large and suspicious transactions. Cryptocurrencies were equally included in the expanded financial regulations. Banks were ordered to freeze personal and corporate bank accounts suspected of being used by protesters violating the regulations.

Edward Snowden tweeted saying that, “Governments claiming the authority to freeze people's bank accounts because they want to crush a protest movement is tyrannical and obscene. If you would oppose China or Russia doing it, you must oppose Canada doing it.”

The Canadian Civil Liberties Association (CCLA) announced that it will pursue litigation to challenge the federal government’s use of the Emergencies Act, on grounds that it believes that the Canadian government did not meet the high burden necessary to invoke the Emergencies Act.

The CCLA has argued that the emergency orders that the government has tabled are neither targeted nor 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. And they place unprecedented restrictions on every single Canadian’s constitutional rights.

The CCLA has added that the current emergency orders place significant limits on peaceful assembly across the entire country. They require financial institutions to turn over personal financial information to CSIS and the RCMP, and to freeze the bank accounts and cut off financial services provided to anyone who has attended, or who has provided assistance to those participating in, a prohibited assembly – all without judicial oversight. It considers all these as violations of civil liberties that justify the CCLA taking the government to court.

Access Canada’s Emergencies Act here: https://laws-lois.justice.gc.ca/eng/acts/e-4.5/FullText.html

Access voting details of the state of emergency motion by the Canadian Parliament here: https://www.ourcommons.ca/members/en/votes/44/1/32

Access the Emergency Measures Regulations here: https://canadagazette.gc.ca/rp-pr/p2/2022/2022-02-15-x1/html/sor-dors21-eng.html

Access the Emergency Economic Measures Order here: https://www.gazette.gc.ca/rp-pr/p2/2022/2022-02-15-x1/html/sor-dors22-eng.html