A Test of Liberty: Canada’s Response to the Ottawa Protests and the Shadow of the Emergencies Act

On February 14, 2022, Trudeau announced his plan to invoke the Emergencies Act as a final response to the “illegal” protests that had been going on in Ottawa for three weeks. During that time, thousands of protesters occupied Ottawa’s streets to pressure the government to reverse its stance on numerous COVID-19 mandates, including notably one for truckers crossing the Canada-U.S. border. Trucks had come from across the country to participate in these protests via “freedom convoys,” which ultimately resulted in the core of Ottawa being effectively shut down for its duration. As a result, the country faced wider supply chain issues and serious economic ramifications, which are neither being downplayed nor discussed in depth here. The government, defending its decision, argued that the unprecedented scale and impact of the protests left them with no viable alternative but to invoke the Emergencies Act, emphasizing the importance of restoring order and ensuring public safety. However, the proportionality of this response has been a legal debate ever since.

What is the Emergencies Act?

The Emergencies Act (1985) was created to reel back and replace the War Measures Act during Canada’s golden era of civil liberties reforms. The powers granted by the new Act remained extraordinary, as were the requirements for invoking it. Effectively, it enables a federal government to use the cabinet to pass temporary legislation in a crisis, and until 2022, the Act had never previously been invoked. Like the War Measures Act before it, the substantial authority granted by the Emergencies Act remains the federal government’s last resort, and this power must be wielded proportionately.

Government Response and Legal Actions

After arguing that the protests threatened the country’s national security, the federal government used the Emergencies Act to freeze the funds of protesters which had been raised on online platforms including GoFundMe and GiveSendGo. These crowdfunding platforms were targeted by the Financial Transactions and Reports Analysis Center of Canada (FINTRAC), which then required registration and the reportage of suspiciously large transactions. Moreover, the personal and corporate banking accounts of protesters were targeted, and institutions were ordered to cease their provisions of service. According to the CBC’s reportage at the time, “more than 200 bank accounts holding almost $8 million were frozen.” The Act also compelled towing companies to cooperate with Ottawa’s police to remove blockading vehicles and prevent the return of protesters to those areas.

Although this decision faced extensive public and academic backlash at the time along with legal action from civil liberties groups, a Commission of Public Inquiry in 2023 led by Justice Paul Rouleau found the government to have met the threshold for invocation of the Act.

Flash forward to January 23, 2024, however, and Federal Justice Mosley has disagreed. In a case argued by the Canadian Civil Liberties Association, the Canadian Constitution Foundation and two victims of the financial freeze, Justice Mosley has ruled that the government’s invocation of the act was unreasonable.

There were two major reasons for this: firstly, section three of the Act requires that situations cannot be resolved with any other law in Canada. Secondly, the Act requires there to be reasonable grounds to believe that the country faced “threats” to its “security,” which are defined by section 2(c) of the Canadian Security Intelligence Service (CSIS) Act. This definition includes coup attempts, espionage attempts and — most seriously — terrorism. Crucially, Mosely said that the “economic disruption that resulted from the border crossing blockades” did not meet this threshold.

While civil liberties defenders have since been celebrating the precedent set here, there may still be cause for some concern about the decision’s lasting impact — and not just because the government plans to appeal the decision.

Historical Patterns of Canadian Security Legislation

Importantly, the invocation of the Act is linked to an ever-increasing history of reactionary national security lawmaking in Canada. Indeed, since 9/11 federal administrations have been caught on numerous occasions creating erroneous and highly reactionary legislation in the response to terror events.

This began with the nation’s legislative response to 9/11, which was composed of the Anti-Terrorist Act of 2001 (ATA 2001), the Immigration and Refugee Protection Act (IRPA) and the amended National Defense Act (NDA). Importantly, as prominent legal scholars have argued, each contained structural faults of varying levels of significance.[i] For instance, among other issues, ATA 2001 contained an imprecise definition of terrorism which was successfully challenged in a lower court against section 2(b) of the Charter. Furthermore, IRPA provided the Canadian Border Services Agency with a powerful deportation tool — the security certificate — whose use was subject to a disproportionately low ‘belief’ standard of proof typically reserved for civil litigation. While the NDA wasn’t nearly as flawed, its system of ministerial authorizations for the collection of Canadian private communications still served as an arguably unconstitutional oversight process.[ii]

These legislative problems were the direct result of Canada’s quick response to the 9/11 crisis, and similar issues arose immediately in the legislation proposed to respond to the Parliament Hill attacks in October, 2014. Following these attacks, two major statutes and a variety of sub-acts were introduced in parliament over the next couple of years. The first of these was the country’s second Anti-Terrorism Act (ATA 2015), which was described by leading national security law Professors Craig Forcese and Kent Roach as a “radical” empowerment of CSIS that required a significant amount of prescription to be rendered legitimate.[iii]

The issues with this legislative response were worse than the previous, and briefly summarized, go as follows: CSIS’s warrant authorization process was unconstitutional and their physical powers were underprescribed by ATA 2015; the National Security Act (NSA) of 2017 did not specifically demonstrate the necessity for granting the agency physical authority and failed to fix the unconstitutionality of the previous warrant authorization process; the Communications Security Establishment (CSE) Act failed to fix the core problems with their investigative authorization system, and it failed to take seriously the privacy implications of metadata collection.[iv]

Reflections & The Future of Federal Crisis Responses in Canada

Without going further in-depth on this criticism as plenty of ink has already been spilt on this subject by voices far more authoritative than my own, the important part is that the government has established a pattern of hastily enacting sloppy and overreaching legislation in reaction to national security crises over the past two decades. While this isn’t necessarily a major issue if these reactionary powers are never abused and are eventually corrected, there are numerous examples of such abuse. The cases of Maher Arar, Adil Charkaoui, and Hassan Almrei demonstrate this in a grim reality. In each of these cases, Canadian border and intelligence agencies abused their powers of investigation and deportation or neglected internal processes to put innocents in harm’s way.

While the Ottawa blockade was neither a terror event nor — according to Mosley — a national security crisis, the government responded in the same heavy-handed manner as if it was. Rather than creating new legislation on a reactionary basis to emergencies, governments should aim to be more proactive, while also ensuring that their executive powers are used proportionately. If not, they risk contributing to the same executive power creep that has been taking place in this country over the last two decades, which is bad news for Charter-loving Canadians.

Notes:

[i] Oren Gross, Cutting Down Trees: Law-Making Under the Shadow of Great Calamities, in The Security of Freedom: Essays on Canada’s Anti-Terrorism Bill, University of Toronto Press, 2001. 39, 44. (Henceforth The Security of Freedom). Audrey Macklin, Borderline Security, in The Security of Freedom, 393, 383.

[ii] Craig Forcese. Fixing the Deficiencies in Parliamentary Review of Anti-Terrorism Law: Lessons Learned from the United Kingdom and Australia. IRPP, 2008. 6, 12; Kevin Walby and Seantel Anais, “Communications Security Establishment Canada (CSEC), Structures of Secrecy, and Ministerial Authorization after September 11. Canadian Journal of Law and Society 27, no. 3 (2012): 363–80. 376.

[iii] Roach and Forcese, False Security: The Radicalization of Canadian AntiTerrorism. Toronto: Irwin Law, 2015. 309, 495.

[iv] Roach, Forcese, “Bill C-51 Backgrounder #2: The Canadian Security Intelligence Service’s Proposed Power to “Reduce” Security Threats through Conduct that May Violate the Law and Charter” (2015), 4; Michael Nesbitt. “Bill C-59 and CSIS’s ‘New’ Powers to Disrupt Terrorists Threats: Holding the Charter-Limiting Regime to (Constitutional) Account.” Alberta Law Review, 2019. 242, 255; Stephanie Williams. “The Powers of the CSE After C-59: Are Privacy Rights at Risk?” National Journal of Constitutional Law 40, no. 2 (2020): 131–51. 136.