Across Canada, in the days leading up to the declaration of a public emergency, the situation on the ground was concerning, volatile and unpredictable. There were threats to oppose police attempts to remove the blockades, including by force.
The Government of Canada considered all possible measures to resolve the situation. The situation was escalating and it became clear that the situation had exceeded the capacity and authority of the provinces to deal with it and that more tools were temporarily needed to protect the safety and security of Canadians.
Test to Invoke the Emergencies Act
The GIC believed on reasonable grounds, that there was a public order emergency arising from threats to the security of Canada that was so serious that it was a national emergency necessitating special temporary measures.
The GIC believed on reasonable grounds that:
There was a “threat to the security of Canada” based on the threat or use of acts of serious violence against persons or property for the purpose of achieving a political or ideological objective (CSISA 2(c)); and
There was an urgent, temporary and critical situation that seriously endangered the health and safety of Canadians that cannot be effectively dealt with by the provinces or territories, or by any other law of Canada (EA 3(a)).
Measures
The temporary emergency measures introduced pursuant to the Emergencies Act effectively deterred illegal protests – occupiers left rather than have their financial accounts frozen, people took their children away from the protests allowing police enforcement to happen in Ottawa, and individuals were discouraged from joining the blockades – allowing the police to shrink the blockade footprints and bring the situation under control.
Because of the volatile situation, even though the situation at some border crossings may have appeared to be possibly clearing up, threats of further blockades remained on February 14.
Significance of Ottawa
Ottawa, as the nation’s capital and the seat of the federal government, was a rallying point for blockades and occupations across Canada. Resolving the situation in Ottawa was essential to resolving and deterring future blockades at ports of entry and cities across Canada.
The protests and blockades seen in Ottawa were illegal, intimidating, harassing and a threat to the security of Canada. Additional tools were needed to resolve the situation and deter further illegal activity.
Responsibility of Jurisdictions
The federal government supported local authorities with assistance where requested, respected their authority to deal with the situation, and only declared a public order emergency when it became apparent that the existing tools were not sufficient to deal with the situation.
The measures temporarily supplemented federal, provincial and municipal authorities and did not derogate from provincial governments’ control and direction of their police forces.
Existing Laws and Measures Not Effective
Many of those participating in blockades were not respecting law enforcement direction and were ignoring Court orders granted in Ottawa, Windsor and Edmonton. Ontario’s provincial declaration of emergency did not deter unlawful protestors.
Some requests for federal support to deal with the blockades were from:
the City of Ottawa for policing services;
the Province of Ontario with respect to the Ambassador Bridge in Windsor, Ontario; and
the Province of Alberta with respect to tow truck capacity at the Coutts port of entry.
Charter
The temporary measures taken were consistent with the Charter and the declaration of the public order emergency did not, at any time, suspend Charter rights.
The emergency measures were necessary, reasonable, and proportionate to resolve the crisis in a safe and timely manner. The measures taken were time-limited and targeted to the threats they were meant to address.
The Emergency Measures Regulations and the Emergency Economic Measures Order were examined for any inconsistency with the Charter in accordance with the obligation under s. 3 of the Statutory Instruments Act.
Freedom of peaceful assembly does not protect assemblies that are not peaceful. Freedom of expression does not protect violence or threats of violence.
In addition, it is important to note that the rights and freedoms guaranteed by the Charter can be limited by law so long as those limits can be shown to be reasonable and justified in a free and democratic society. This is set out in section 1 of the Charter.
Consultations
Consultations with provincial and municipal authorities took place throughout. The Act requires consultation with the provinces but not their agreement – ultimately it was the federal government’s responsibility to assess the national situation and to protect the safety and security of Canadians.
The federal government was in contact with its provincial counterparts throughout the duration of the emergency. Some requests for federal support to deal with the blockades were from:
the City of Ottawa for policing services;
the Province of Ontario with respect to the Ambassador Bridge in Windsor, Ontario; and
the Province of Alberta with respect to tow truck capacity at the Coutts port of entry.
Information Available to the Committee and the Public
The Government has been open and transparent about the reasons for declaring a public order emergency. The report tabled in Parliament pursuant to section 58 of the Emergencies Act sets out those reasons in detail and it was expanded on in debates before the House.
The confidentiality of the Cabinet decision-making process is fundamental to our parliamentary democracy because it allows ministers to express their views and opinions in private on matters for which they are collectively accountable to the House of Commons.
Legal advice provided by the Attorney General and the Department of Justice is protected by solicitor-client privilege and is not normally disclosed outside of the executive branch of government. Protection of privilege is essential to the functioning of our justice system.
Revocation
The declaration was revoked on February 23, 2022 when, after nine days, the situation was brought under control and other federal, provincial and municipal legal authorities were sufficient to prevent new, illegal blockades.
Details of Measures
Emergency Measures Regulations (EMRs)
The EMRs created five prohibitions:
Participating in a public assembly that may reasonably be expected to lead to a breach of the peace;
Causing a minor to participate in or travel near such an assembly;
Entering Canada with the intent to participate in or facilitate such an assembly;
Travelling to or within such an assembly; and
Using, collecting, providing, making available, or inviting a person to make available, directly or indirectly, property to facilitate or participate in such an assembly.
The EMRs also created three additional authorities for peace officers to use to enforce the above prohibitions:
Authority for the Commissioner of the RCMP and Minister of Public Safety & Emergency Preparedness or a person acting on their behalf to direct persons to render essential goods and services to remove, tow and store vehicles and other items that are part of a blockade, with compensation;
Designation of specific places as “protected” and which therefore “may be secured”, specifically, critical infrastructure, Parliament Hill and precinct, official residences, government and defence buildings, property that primarily serves as a monument, and any other place designated by the Minister of Public Safety and Emergency Preparedness; and
In the case of a failure to comply with the EMRs, taking any “necessary measures to ensure compliance with [the EMRs] and with any provincial or municipal laws”.
Emergency Economic Measures Order (EEMO)
The EEMO set out the temporary, emergency financial measures, that among other things, included obligations on financial institutions to freeze the accounts of a person participating in those activities until their participation stopped.
In particular:
obliged Canadian financial service providers to continually determine whether they had in their possession or control property that belonged to a person participating in those activities and, where found, to cease dealing with such property until the person stopped their participation;
authorized government institutions to disclose information to any Canadian financial service provider when they were satisfied that the disclosure would contribute to the application of the EEMO;
required insurance companies to cancel or suspend the insurance policy for any vehicle taking part in a prohibited assembly; and
subjected crowdfunding platforms and payment service providers to the registration and reporting requirements under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. In view of their significance for the detection and prevention of money laundering and terrorist financing, these requirements have since been made permanent through regulations that came into force on April 5th, 2022.
