‘A sledgehammer to crack a peanut’

Canadian Civil Liberties Association Announces Legal Challenge over Trudeau’s Invocation of the Emergencies Act, a Q&A with Staff Lawyer Laura Berger

When the War Measures Act was invoked by Pierre Elliot Trudeau back in October of 1970—a time now referred to as the October Crisis—the overwhelming majority of MPs supported him. The feeling was something extraordinary needed to be done to put a stop to the horrifying chain of events that began when members of the Front de libération du Québec kidnapped the provincial Deputy Premier Pierre Laporte and British diplomat James Cross from his Montreal residence.

But despite the obvious severity of the situation, NDP leader Tommy Douglas and most of his caucus were opposed. When Trudeau invoked the law, Douglas called it a “black Friday for civil liberties in Canada.” Although Douglas said he was “appalled and disgusted” by the abductions, he believed that the government had enough powers to deal with the crisis without invoking the draconian legislation. He said, “The government, I submit, is using a sledgehammer to crack a peanut.” He was vilified by his colleagues at the time.

“Freedom Convoy” converges on downtown Ottawa, January 28, 2022. Wiki commons.

This past Monday, the governing Liberals, this time headed by Pierre’s son, Justin Trudeau, invoked the Emergencies Act, a law that was passed in 1988 which gives the federal government extraordinary “temporary” powers to respond to a “national emergency.” It has never been used before in Canada’s history. In this case it was invoked in response to a blockade that began on January 28 when a “Freedom Convoy,” that included a number of big rigs, converged on Ottawa’s downtown core in opposition to the federal government’s requirement that Canadian truck drivers crossing the US border be fully vaccinated to avoid testing and quarantine requirements. The protests have since expanded to include border blockades at the Ambassador Bridge between Windsor and Detroit, as well as at Coutts, Alberta and at Emerson, Manitoba. As well, demonstrations have erupted spontaneously across the country where protesters have expressed frustration and anger about ongoing public health measures, including lock-downs, mandatory masking, school closures, and provincial vaccine policies that prohibit the unvaccinated from accessing non-essential services.

The Canadian Civil Liberties Association (CCLA) is an independent, non-governmental organization based in Toronto. It announced yesterday that it’s taking the Canadian government to court to challenge the invocation of the Emergencies Act.

The Emergencies Act defines a “national emergency” in the following way:

A national emergency is an urgent, temporary and critical situation that seriously endangers the health and safety of Canadians or that seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada. It must be a situation that cannot be effectively dealt with by the provinces and territories, or by any other law of Canada.

The Act outlines four types of emergencies that can be declared under the Act: “A public welfare emergency, a public order emergency, an international emergency, a war emergency.”

In order to find out more about the CCLA court challenge, I reached out to Laura Berger. She’s a lawyer and interim program director with the CCLA. Since joining the CCLA in 2013, Berger has worked on issues ranging from LGBTQ rights to solitary confinement in Canadian prisons. Her work currently focuses on policing and criminal justice policy. 

[I reached Berger by telephone. This interview has been edited for length and clarity.]

Linda Pannozzo (LP): What is the basis of the court challenge and why do you see the declaration of the Act an overreach on the part of the Canadian government?

Laura Berger (LB): So, the challenge that we've launched is an application for a judicial review in the Federal court and that application alleges that the government has invoked the Emergencies Act, even though the situation that we're facing in Canada doesn't meet the extremely high threshold in the Act. So, the CCLA really takes the position that declaring a national emergency is an extreme measure. It grants the government extraordinary powers, and the use of those emergency powers cannot be normalized. We're coming off of two years in a pandemic where the term “emergency” has been used a great deal and where governments have used emergency measures to try and respond to the situation. But we have to remember that that's not normal; that's meant to be an exceptional situation in our democracy and that typically governments and police forces can and do respond to difficult situations using the normal laws and democratic tools that they have in their arsenal. So, the CCLA’s challenge is to add that level of court scrutiny from a rule of law perspective to challenge the government and to hold them to account in their indication of the Emergencies Act. We are challenging the decision in particular because invoking the Emergencies Act has allowed the government to adopt orders that are extremely broad and that could have an extremely broad impact on Canadians Charter rights, including the right to participate in peaceful assembly and the protection of privacy under Section 8 of the Charter. So, the stakes are high, which is why we've launched this challenge.

CCLA Executive Director Noa Mendelsohn Aviv at press conference announcing legal challenge over government’s invocation of the Emergencies Act.

LP: I was just watching the news before our conversation and saw that parliament was shut down today for security reasons, because of the police action that was planned to remove the Trucker blockade. Movement of people in Ottawa is already being controlled and the use of “financial tools”—like freezing accounts and cancelling insurance—is already underway. But I’m wondering how is that even possible given there has yet to be a full debate or a vote? It’s my understanding that both the House of Commons and the Senate have to vote in favour of the declaration, which includes the setting up of a special joint committee that reviews the Government’s actions. Has any of that happened, and if not, how is the implementation we’re seeing even possible?

LB: So that's a great question. The way the Act is conceived, parliamentary oversight is important, but it can operate after the fact. The Act requires that within seven days, the government table an explanation before parliament, which provides the opportunity for the House of Commons and the Senate to debate the issue, and they can effectively cancel the orders or change the orders that have been issued. But Parliamentary approval is not needed before those powers take place, and that's one reason, in our democracy, that this is such an extreme measure meant to respond to incredibly urgent situations that threaten the security of Canada as a whole. You can see how, in an extreme situation, it would be necessary—time is of the essence—so it empowers the executive to act first and seek approval in parliament afterwards.

LP: It seems that many Canadians support the Emergencies Act being invoked because they don’t like the Trucker Convoy and what they believe it stands for. Is the right to protest—the freedom of assembly—an important principle to protect, regardless of what one thinks about any individual protest? 

LB: That’s certainly the position that the CCLA takes. We’re an organization that has defended the right to protest rigorously throughout the history of our organization, which is more than 50 years, and we take the position that it doesn't matter what the content of the protests is, as a society, as a democracy, we have to recognize that freedom of expression and the ability to protest is a key part of democratic life in a vibrant democracy. And often, as my colleague Noa Mendelsohn Aviv—our executive director—often says, “Protest and taking to the streets and using public space has historically been how people who are marginalized, who don't have access to the corridors of power, make their voices heard.”

So, in our opinion there’s a vital protection of freedom of expression, and freedom of peaceful assembly in our constitution, in our Charter, and that exists to protect a wide range of perspectives and viewpoints. So, when we think about the actions being taken and the invocation of the Emergencies Act, we're not just thinking about the truck convoys, we're thinking about environmental blockades of pipelines or railways; we're thinking of actions taken by Indigenous land defenders; we're thinking about Black Lives Matter; we're thinking about the Occupy movement; we're now marking 10 years since Maple Spring, where we had thousands of students in the streets here in Montreal on a daily basis for weeks on end, which did cause quite a bit of disruption to day to day life in downtown Montreal.

These are all important movements where different groups with a wide range of opinion have used public space to make their voices heard. The CCLA takes the position that our constitutional order has to foster that kind of expression and has to permit people to use protest in ways to try and affect the national conversation. We have to make sure that we're protecting those rights because they're important for all of us, no matter what we think about the content of a particular protest. So, for us, it's not a left-wing or a right-wing issue. It's not about whether people agree with the trucker convoy. It's about responding to protests and responding to the disruptions that are sometimes caused by protests in a nuanced, targeted rights-respecting way because the precedent that’s set today is important for how protest movements in the future will be handled in our democracy.

Protesters supporting “Freedom Convoy” in downtown Halifax, February 12, 2022. Photo: Linda Pannozzo.

LP: The Act outlines four types of emergencies that can be declared under the Act and one is a public order emergency, which I assume is the one the government is using to justify the declaration now.

LB: Yes, that’s correct.

LP: So, a ‘public order emergency’ is one that arises from threats to the security of Canada and that is so serious as to be a national emergency. How do Canadians know there are reasonable grounds here, and that there is a real security threat to Canada, and not just a manufactured one?

LB: That's a great question. So as part of the democratic oversight process the government has tabled in the House an explanation of why they think that requirement is met… But part of the reason the CCLA has launched this litigation is because our goal is to hold the government to account and to have them justify in an impartial forum before a judge why, what grounds they're relying on in making this proclamation so that, in our view, the courts provide another layer of scrutiny and another democratic safeguard alongside the debates that are happening in the House.

LP: In a nutshell, can you tell me what those justifications are?

LB: So the proclamation that the government issued and the explanation that they tabled in parliament provides five components or justifications. Number one, the continuing blockades by both persons and motor vehicles in conjunction with activities that are directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political or ideological objectives within Canada. Number two, they cite the adverse effects on the Canadian economy and threats to Canada's economic security resulting from the blockades, particularly at the border. Number three, they cite adverse effects resulting from the blockades on Canada's relationship with our trading partners, including the US. Number four, they cite the breakdown in the distribution chain and availability of essential goods, services and resources, and number five, they cite the potential for an increase in the level of unrest and violence.

If you look at some of the statements that were made in the House of Commons yesterday, they mentioned the economic cost. So it's estimated that the blockade at the Ambassador Bridge in Windsor affected nearly $400 million a day in trade with the US. They also had a dollar figure for the blockade in Coutts Alberta and the blockade in Emerson, Manitoba. They cited both economic reasons and they cited security concerns—the fact that some individuals in Coutts, Alberta were arrested, that a cache of weapons was discovered, the fact that it's been extremely difficult for the Ottawa police to manage the situation on the ground in Ottawa…So that seems to be the justification that the government is relying on.

The government is referring to different factors, including factors that are worrisome, but I think it's absolutely open to Canadians to take a look and to ask themselves, does this rise to the level of a national emergency? Because one of the requirements under the Emergencies Act is that it must be a situation that cannot be dealt with under the existing laws of Canada. At CCLA, we query whether that's the case especially given that across Canada, local municipal and provincial police forces have in fact been dealing with the disruptions caused by this movement in many cases in really effective ways without violence, even before the Emergencies Act was proclaimed. So, if they can be dealt with using existing powers and laws, why do we need to invoke the Emergencies Act and open the door to broader powers that are quite extraordinary in nature?

Protesters gathered at the Peace and Friendship Park, Halifax, January 23, 2022. Photo: Linda Pannozzo.

LP: A number of provinces (including Alberta, Saskatchewan, Quebec, and Nova Scotia) have said they don’t need the Emergencies Act invoked in their province. Are they able to do that? Does their refusal mean that these unprecedented restrictions on every single Canadian’s constitutional rights don’t apply to the residents of those provinces?

LB: I think that's a really great point. The language of the proclamation on the order that the government has adopted are not limited, for instance, to downtown Ottawa or at border crossings. There is nothing in the language that provides any geographic limitation. So legally, they apply right across the country. So, for instance, the prohibition on participating in an assembly that impedes the movement of people or goods— that would apply to a protest in downtown Vancouver that blocked sidewalks or blocked major streets at rush hour. That’s our read at the CCLA and that’s a concern that we have, and the reason we think the orders are extremely broad and sweeping because they do apply geographically across Canada.

As a question of practicality, is the federal government going to take action in provinces where the provinces and police forces in those province say, “We've got things under control, we don't need assistance. We're going to operate using the powers that we already have.” As a matter of practicality, that remains to be seen, but it's certainly possible, and the government has said on numerous occasions, “We only intend to use these powers in a targeted, time limited, geographically limited way.” At the CCLA one of our concerns is that the government had stated those intentions, but legally the language of the orders is extremely broad. It's not targeted. So even if the government only intends to use those powers in a limited way, on paper, the powers are extremely broad.

LP: From your perspective, what is the most worrying part of the government’s use of the Emergencies Act?

LB: One of the most worrying parts is the normalization of using emergency powers to deal with a difficult situation. Again, we've lived through two years of pandemic, where we use the word emergency a great deal. We're really concerned about the idea that a difficult or even dangerous situation means the government has to have recourse to emergency power because those powers by definition are meant to be exceptional and are only meant to be triggered in a nationwide emergency that meets the extremely high threshold in the Act. So our concern is that as a matter of legal precedent and as a model of what Canadians are comfortable with, we start to normalize the idea that the response to disruptive protests is a really heavy-handed invocation of extreme powers.

At the CCLA we always take the position that protecting democracy is vitally important, and sometimes it's impolite, it's rude, it causes disruption. We see protests that have an economic  impact, but often that's the goal of a protest. For instance, a trade union strike or an environmental protest, often the goal is to disrupt economic activity. So, we're concerned about the precedent of saying that disruptive protests, including protests that have economic impact, merit very extreme emergency power. That’s a big piece of our concern moving forward.

A group of “Freedom Convoy” counter-protesters gathered in Halifax, February 12, 2022. Photo: Linda Pannozzo.

LP: You touched on this earlier. According to the Act, it expires after 30 days, but can be extended. Here in Nova Scotia we’ve been in a State of Emergency for nearly two years – it too was meant to be temporary – it was supposed to expire after two weeks – but it continues to be extended with no end in sight or with any explicit metrics that would indicate when it will be lifted. Are there any guarantees that the invocation of the Emergencies Act is actually temporary? I mean, what if another blockade sets up elsewhere in the country in the next 30 days, can that be used to justify extending it?

LB: That's a great question. Our hope would be that that's where parliamentary scrutiny of this invocation of the Emergencies Act would kick in. And as you've said, the public order emergency lasts for 30 days, it can be renewed or cancelled earlier. The government has declared their intention to cancel it earlier, as soon as possible. But I think you're right that once you trigger an emergency situation, it becomes easier to extend, extend, extend and it is difficult to know when that situation ends and when the threat ends, especially if the threats have been defined in a vague way. So that is absolutely a concern. We would hope that parliamentarians who will be providing oversight will take a look and will push the government to suspend and to end the declaration of emergency as soon as possible and appropriate, and I think politically we're in a minority government situation so that in some ways does add an extra safeguard because we know that opposition parties have that incentive to really hold the government to account.

LP: Can you walk us through the court process ahead, and what you hope the outcome will be?

LB: One thing that courts can do in an application for judicial review is issue a declaration that a government action or piece of legislation is invalid, and they can do that on administrative law grounds, and they can also do it on constitutional law grounds. So administrative law grounds would be the argument that the actions and orders that the government has issued are not in the scope and don't meet the threshold of the Emergencies Act. The constitutional argument is that the consequence of that unjustifiably affects individuals’ Charter rights. So, courts can issue a declaration, they can quash an order, or they can issue a decision that states that a government decision was invalid for various reasons. So, it remains to be seen how quickly we may be able to get a court hearing. It remains to be seen, what the government's defence will look like, so it's still very early days. But yes, the CCLA litigation is really about the principle and trying to get a decision on the books that reflects our view of the law and that really clarifies that precedent in a clear and forceful way.