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‘A layer cake of constitutional violations’
A Q&A on the Emergencies Act with Canadian constitutional law expert and professor Ryan Alford
Many people in this country are reeling. Parliament has now approved the use of the Emergencies Act, keeping measures in place until mid-March.
This is an extraordinary development, and one that’s generated many questions from the public. What does it mean to live under the Emergencies Act? Who will it impact? What does it mean for protest movements going forward? And: What does it say about the state of our democracy?
To unpack these questions, I reached out to Ryan Alford. He’s a constitutional law expert, a professor at the Bora Laskin Faculty of Law at Lakehead University, and the author of Seven Absolute Rights: Recovering the Historical Foundations of Canada’s Rule of Law. Here, he offers some analysis of this historic moment in Canadian history.
For people still getting up to speed, what happened last night?
Parliament, as required by the Emergencies Act, met within seven days of the invocation of the act by the government, to confirm that the act should remain in force for a period of up to 30 days. What that means is that one chamber of Parliament has approved the continuing operation on the Emergencies Act; the Senate will need to debate this and vote on this as well. With that approval, the cabinet can continue to issue regulations that have the force of law, without any oversight from Parliament, for 30 days beginning with the proclamation of the Emergencies Act last week.
You were a signatory of an open letter from Canadian lawyers urging Parliament to reject the use of the Emergencies Act. Walk me through your objections.
The federal government has no jurisdictional basis for any of this. Which is to say that we’re in a huge crisis of the rule of law. It has done something that it has no constitutional power to do. What the Emergencies Act does is empower the federal government to take over powers, assigned under the Constitution, to the provinces. And it can only do that if very stringent conditions are met. This is not just a matter of statute, but the interpretation of the Constitution given to it by the Supreme Court of Canada. The best way into that, if anyone is interested, is to read Justice [Jean] Beetz’s dissent in a case called the Anti-Inflation Act reference.
In essence, what the government has done is falsely asserted that conditions exist that allow it to declare a state of emergency. And in making that false declaration, it has assumed powers to itself that it doesn’t have under the Constitution of Canada. And it has used that power to promulgate regulations that, because there’s no jurisdictional basis, are of no force in effect. And has used those regulations to infringe the Charter rights of Canadians. It’s essentially a layer cake of constitutional violations.
The Prime Minister maintains that the government is not infringing on Charter rights.
The argument from certain people has been that because the Emergencies Act states that the government has to observe the Constitution, therefore the regulations do not infringe the Charter. Well, I hate to tell you this, but the government always has the obligation not to infringe the Charter. The reason we have courts is because they do so routinely, and people have to go to court, as the Canadian Civil Liberties Association is doing now, to vindicate those rights. It happens every day.
What is the government’s rationale for using the Emergencies Act now that protests are cleared?
That they [the protests] could continue. Or be revived. So, now it’s speculative. Not only is it a matter of the protest not rising to the threshold required by the Emergencies Act, it is imagining events that might occur, and acting out of this abundance of caution — that’s a rationale that we’ve seen abused quite terribly in the past two years — to warrant something that requires proof of something actually occurring. It’s purely speculative.
But what we do see that they want to continue doing is financially sanctioning protestors. What is actually going to continue, during this 30-day period — or longer, if it is renewed, as various ministers have contemplated — is the de-banking of individuals. That people who are associated with a protest movement are going to be labeled as anti-government extremists, who have links to ideologically motivated, violent extremists, on the say-so of the government — just the RCMP forwarding their names to financial institutions. But they are going to be locked out of the financial sector. Which is, their freedom to transact is going to be destroyed; they are not going to be able to buy or sell anything. That is an incredibly frightening thing to think about.
Right now, people are asking me: Can I contribute to legal defence funds? Can I contribute to bail funds? Can I contribute to the constitutional challenges being brought by the Canadian Civil Liberties Association without fear of having my accounts frozen? Now, that is probably outside of the scope of what’s contemplated by the government. But the fact that people are asking me that indicates how far we’ve gone, and how problematic this is. This is really shocking.
You have a situation where one of the convoy organizers is released on bail and he states that he’s locked out of his bank accounts. This is amazing stuff. If this was going on in China or Russia, I have no doubt that we would be condemning this.
I want to ask you more about the de-banking in a moment. But first, you had warned on Twitter about this “irreparable damage to the constitutional order” that would come if Parliament approved the use of the Emergencies Act. Outline what that damage is.
On the base level — and, again, there’s many layers to this — is the idea that this is going to get normalized. That if we see this incredibly low level of activity characterized by the government as a national emergency that warrants these incredibly broad powers, you’re going to see this invoked again and again. We fail to learn the lesson of history. The October Crisis was an example of the misuse of the War Measures Act. The Emergencies Act was amended in response to that, to prevent exactly what is occurring now from occurring.
We modified the Emergencies Act, took away some problematic provisions from the War Measures Act, but said, “We can keep this in place, just in case the government needs it.” They have proven themselves willing to smash the glass and grab this axe, on a pretext, and to use it to just smash the constitutional order. That’s really frightening, because once that glass is broken and the taboo is gone — and we’ve seen this also with respect to the notwithstanding clause right now, which is also very disturbing — it’s going to be used again and again and again. Will this be used for anti-pipeline protesters? Will this be used for environmental protesters? Will this be used for Black Lives Matter? I don’t know. Certainly on the government’s case that it made, with respect to the Freedom Convoy, it could be deployed on this basis.
But there’s something else that’s even more disturbing. It’s the prospect that we get used to governmental lawlessness. Because the rule of law, which is being invoked by the government, has as one of its integral elements the idea that everyone has to obey the law. The moral basis for that demand is that the government itself observes the law. So just as we are subject to the criminal code, the government is subject to the Constitution. The Constitution doesn’t govern citizens, it is the law that governs those that govern us. If the government violates the Constitution, and in such an egregious way as it is with the Emergencies Act, what is the basis for them saying that the citizenry should obey the law? The problem is people understand that.
It’s an extremely corrosive message, because it destroys the legitimacy not merely of the constitutional order, but the legal order, which protects all of us.
Legally speaking, who exactly is considered to be involved in these protests?
This is where you see the danger of this sort of invocation of emergency law. It’s a dragnet so broad that potentially a designated person subject to de-banking could be the clerk at the quickie mart that sells propane to a demonstrator. That hypothetical is not mine; I don’t want to claim credit for this. Professor Paul Daly, who is the chair of administrative law and governance at the University of Ottawa Faculty of Law, formerly of Cambridge, has put this forward.
There’s this ambiguity, this incredible vagueness, of the provisions allowing people to be considered designated persons. You have to ask yourself: Why was it written that way?
Lastly, the incentive is given to the banks and the financial institutions to apply this very broadly. Another provision which deserves to be mentioned, is the provision for indemnification of the financial institutions. Which is to say, if you are wrongly de-banked, and that causes you to suffer incredible economic devastation — let’s say you lose your house — are you able to sue the banks for this? Because they misinterpreted these provisions that labelled you a designated person for donating 50 dollars to a protest movement? You cannot. Because the emergency regulations give the banks protection from liability. Why was it written that way, if not to inspire fear among anyone the government considers an anti-government extremist?
That language, by the way, is in the official rationale required by the statutes. The Emergencies Act requires the government to produce an explanation of why there’s a national emergency. And that incredibly problematic language — “anti-government extremism” — is invoked multiple times. And you see the Prime Minister of Canada using that sort of language to talk about Members of Parliament who are voting against the Emergencies Act because it has no jurisdictional basis. This is banana republic dictator behaviour.
As you mentioned earlier, the government has already signalled that it may seek to extend these emergency powers beyond 30 days. What are your biggest concerns going forward?
Referring back to the constitutional basis for the transfer of jurisdiction to the federal government, it has to be the nature of the emergency is its temporary status — the mere fact that a real emergency is always transitory. Because eventually over time, you gain the capacity to deal with any emergency situation, however dire, with normal legal means. So, the justices in discussing this, said the temporariness of the emergency is one of the hallmarks of it being a true emergency.
So when we’re seeing ministers talking about the extension of the Emergencies Act, we should be immediately thinking: Doesn’t this demonstrate that this really isn’t an emergency at all?
An emergency is something that occurs completely unexpectedly, in such a way that the government can’t use its normal powers to deal with the situation. Do we really think that this protest movement is so powerful that injunctions, and the criminal code, and the use of force by the police — all of which occurred and needed no invocation of the Emergencies Act to be mobilized — [aren’t enough]? What powers is the government using, other than those that it already had? And the answer, of course, is de-banking.
I know you grew up in Ottawa. What has it been like for you watching all of this happen in your city?
What I look at is a city which is very divided. And this is what people don’t understand — that Ottawa is not Centretown. If you walk out of Centretown, and you walk far enough, you walk to Vanier, or you drive to Vankleek Hill, it’s not the same city. It’s not populated by civil servants who have been in their pyjamas on Zoom for the past two years. Ottawa has plenty of people who have had to sacrifice greatly during this pandemic, and have been expected to bear that burden. And among those people, there are a lot of people who had a lot of sympathy for the truckers and the Freedom Convoy.
That was very much an indication of this divide in the pandemic, which is the basis of a legitimate difference of opinion that should be dealt with with normal political means.
For people now to say, “We’re so happy that the occupation is over,” when hundreds of barriers have been created, with fencing, throughout Centretown, and you need to show your papers to police officers and indicate that you have an exceptional reason to be in there, or be arrested, that’s shocking to me, that people don’t see that as an occupation.
Seeing the police block off Centretown in that way, block off Parliament Hill — a place where I was at many protests, which would be characterized as left-wing protests, when I was younger — just fills me with sadness.
This interview has been edited and condensed.