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'Bypassing the democratic process'
A Q&A on the Emergencies Act with Noa Mendelsohn Aviv of the Canadian Civil Liberties Association
It’s a moment unlike any I’ve experienced in my 20-year journalism career, or, indeed, my lifetime. In response to the ongoing trucker protests, Prime Minister Justin Trudeau has invoked the Emergencies Act, which became law in 1988 and has never been used.
As the government prepares to take this to the House of Commons and Senate for a vote, a number of questions are being raised: Has the government met the legal standard for invoking this act? What does this move mean for our democracy? What does it mean for rights and freedoms? And: What precedent does this set?
To explore these questions — and this remarkable time in Canadian history — I reached out to the new executive director of the Canadian Civil Liberties Association, Noa Mendelsohn Aviv.
For readers who may not be aware, what is the Emergencies Act, and what powers does it give the government?
The Emergencies Act is a piece of legislation replacing an earlier, similar law called the War Measures Act. It allows the government to make decisions and take action — essentially bypassing the democratic process — where there is an urgent and critical need to do so in the case of a national emergency. Imagine a war, or flooding, or an ice storm that wipes out infrastructure. It’s not possible to get a legislature together and do things in an ordinary, transparent, and accountable democratic way. But things have to be taken care of; people have to be evacuated. That’s what the Emergencies Act is about, and that’s more or less how it describes itself on its terms.
The Canadian Civil Liberties Association has taken the position that the federal government has not met the threshold necessary to invoke the act. Why do you believe that that standard has not been met?
The standard that’s in the act is a very high one, for the reasons that we just discussed. It is not intended for governments to deal with difficult, or challenging, or even dangerous situations. We have policing laws. We have a large number of powers that are available to governments to use for all sorts of situations. Part of our concern here is that because we’ve been living through two years of the pandemic — and we did have a situation that affected everybody in Canada, and globally, and governments didn’t quite know what it was, and didn’t quite know if they could be in the same building, and didn’t quite know what to do, and pulled out emergency powers — people don’t think of it as abnormal, as much they used to. But we should. We should not be normalizing the use of emergency acts to deal with localized, specific challenges that can be addressed through law.
The Order in Council makes the argument that this is an emergency, in part, because of economic harms: impacts on the economy, on critical infrastructure, on the relationship with trading partners, and on supply chains. What do you make of that argument?
That’s the part that I find the most incomprehensible. Because the act sets out different criteria for defining a national emergency: seriously endangers the lives, health, or safety of Canadians, and is of such proportions or nature as to exceed the capacity or authority of the province to deal with it. Or seriously threatens the sovereignty, security and territorial integrity of Canada, and cannot be dealt effectively with under any other law of Canada. Then if you go further and look for a public order emergency, which they are saying that this is, it talks about threats to the security of Canada, and defines them as things like espionage, or clandestine foreign-influenced activities involving a threat to any person, and so on. I don’t see anywhere in those definitions: “It’s bad for the economy.”
How significant is it that the Ambassador Bridge has already been cleared?
I think it’s harder and harder for the government to say that there is an urgent and critical situation that cannot be addressed by any law in Canada, and that cannot be addressed by the provinces. I think what we also saw with those clearances in Alberta and at the Ambassador Bridge, was we saw some people who were part of the protest saying, “We have an issue that we wanted to protest about, that is true. But that doesn’t mean that all of us are dangerous, or carrying weapons, or part of a radical element that poses some kind of significant threat.”
We need to be sophisticated enough to understand the difference between peaceful protest that might still be disruptive, like environmental protest can be sometimes, like Indigenous land defence can be sometimes, like Black Lives Matter can be sometimes. That doesn’t make it non-peaceful. That doesn’t make it, in and of itself, violent. The fact that there may be unlawful activity by some of the people who are participating in this particular protest doesn’t make the entire protest a violent one.
We saw not only that the bridge was cleared, but also that some of the protestors said, “That part of it, that’s not us. We’re going to leave quietly and peacefully.” I don’t see how that can be defined as an urgent and critical situation. It’s already been resolved.
The Canadian Civil Liberties Association takes the position that this action threatens democracy and civil liberties. Walk me through the thinking on that.
Democracies require that decisions be made by democratically-elected representatives, in an open, transparent, and accountable process that the public has access to, and can influence. And can know about, and potentially change during that process, if they wish to respond to it and if their representatives wish to respond to it.
The Emergencies Act says there is something so big and so unwieldy and so urgent that we cannot get the democratically-elected representatives together to address it. We have to address it right now, without the democratic process. What this government is telling us is: not only are we going to bypass the democratic process and just make these decisions ourselves, but also we’re going to impose certain orders — according to their press conference — that say they can do certain things without a court order, like freezing people’s bank accounts. So, no democratic oversight, no legislative oversight, no judicial oversight.
As for violating civil liberties, first of all, we don’t even know the precise details of what they are going to be doing. But freezing people’s bank accounts without any kind oversight on who is participating in the protest — and is there a justification? — it sounds very much like government overreach. Turning over people’s private information to the security services engages the privacy rights that we have under the Canadian Charter of Rights and Freedoms in a way that seems excessive, where there is no accountability. We don’t know who is going to get caught up.
I know you’ve done work in the past on freedom of expression. Are you concerned about the state of freedom of expression in this country?
I think there’s a big answer and there’s a small answer. We’re concerned about all sorts of rights and freedoms. Because if this government can use this Emergencies Act for this blockade, who knows what a future government might use the Emergencies Act for that it doesn’t like, or that it doesn’t agree with, or that it considers to be an interference. Just the use of the emergencies order should make us really concerned.
The normalizing of emergency orders, and emergency powers, in itself is a concern for all rights and freedoms because we shouldn’t get used to those being used. We should say: The Pandemic happened, it was unprecedented, governments were scared, people were scared, but that is not how business is done in the political life of this country, of a democracy.
Speaking specifically about freedom of expression, we think that the right to protest is critically important for people who want to stand up for their rights. As I mentioned, whether it’s Indigenous land defenders, environmental activists, people who have issues with vaccine mandates, people who want reproductive justice, Black Lives Matter. There are many reasons why people need to get out there and have their messages heard. And sometimes those protests are going to be disruptive.
The right to freedom of expression, the right to peaceful assembly, is not an absolute right. Our charter does say that there are reasonable limits. Blockading roads for hours at a time might be understandable; blockading roads for months is likely going too far. What is a reasonable limit? The answer lies somewhere in between. But it cannot, and should not, be that a government is going to use an emergency order to freeze people’s bank accounts because this is a protest that they want to stop. That is a concern for freedom of expression, absolutely.
This interview has been edited and condensed.