Front Burner - Overreach at centre of Emergencies Act lawsuit

Episode Date: February 21, 2022

As police clashed with protesters near Parliament this weekend, a different fight was playing out inside the House of Commons: a debate over the federal government’s use of the Emergencies Act. The federal Liberals invoked the act last Monday, granting temporary powers to the government to handle ongoing blockades and protests against pandemic restrictions, including clearing protesters and freezing associated bank accounts. The Liberals say it was a necessary move to end illegal protests; some opponents, meanwhile, argue it was an overreach that sets a dangerous precedent for cracking down on future protests. The House of Commons is set for a vote that could strike down the emergency powers tonight. But the Canadian Civil Liberties Association is one of multiple groups taking the federal government to court over the act’s use. Today, executive director and general counsel Noa Mendelsohn Aviv on what the CCLA fears the normalization of emergency powers could mean for Canadian democracy.

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Jamie Poisson. It's a crime! Everybody is a crime! Hundreds of police from across the country converged on downtown Ottawa this weekend, clearing block after block of the protests that surrounded parliament for weeks.

But at the same time a second confrontation has been happening inside parliament. But the answer to lawlessness can't be more lawlessness. The government is asking us to suspend certain laws to deal with those breaking others. And yet governments and the police refuse to take this situation seriously until the last minute. It should have never gotten to this point. Through the weekend, MPs have been debating the federal government's use of the Emergencies Act. The Liberals invoked the act for the first time ever last Monday, granting temporary powers to clear the protests and freeze bank accounts. And tonight at 8 p.m., the House of Commons is scheduled to vote on the act,

where the powers could be amended or they could be struck down altogether. I've reached the opinion the federal government is taking the right, measured, careful action in invoking this law. They've exhausted all other options and have had to act and are doing so intelligently and judiciously invoking this law. They've exhausted all other options and have had to act and are doing so intelligently and judiciously invoking this act. The convoy's protest near the hill is now over. Police have arrested nearly 200 protesters, charged over 100, and there's a fence surrounding Parliament. But regardless of how Parliament votes tonight, the fight over how the Liberals handled the protests is just beginning. The Canadian Civil Liberties Association is one of the groups taking the federal government to court over its use of the Emergencies Act.

To explain why, I'm joined by Noah Mendelson-Aviv. She's the Executive Director and General Counsel of the CCLA. Hi, Noah. Thank you so much for being here. Thank you for having me. So before we jump in, I want to ask, when you see what we've been seeing this weekend in Ottawa, images of police moving in on protesters, people being stopped at checkpoints, what do you make of these scenes? The whole situation in Ottawa has been very, very disturbing, not just this past weekend, but the last number of weeks. We've seen a combination of peaceful protesters, of non-violent, but very, very disruptive actions, some of which did get to the

point that needed to be limited and needed to be shut down. And we've also had reports of some pretty serious intimidation and harassment, physical and verbal, of racialized and marginalized communities, all of which is criminal and should not be taking place. And CCLA opposes that. which is criminal and should not be taking place. And CCLA opposes that. Our action is not about stopping criminal activities. It is not about giving protest rights a free-for-all. Our action is about the way in which the federal government gave itself powers under the Emergencies Act,

even though the Emergencies Act says the governments cannot do that absent a national emergency as defined in that law. And it's that kind of power grab that with all of the good intentions that may have been deeply concerns us because we are thinking of the long game. Okay. I just want to ask you if you could give me sort of a broad definition of what the Emergencies Act does, like a big picture explanation. Sure. The Emergencies Act was created in order for governments to be able to act swiftly and essentially suspend democracy, essentially to bypass ordinary democratic

processes in the event of a catastrophe so serious that they can't use existing laws and they need to act quickly. Situations affecting public welfare and caused by an accident such as a massive chemical spill or by natural disasters such as earthquakes, floods or tornadoes that are of such magnitude as to exceed the capacity of the affected province to respond and to require special powers for an effective federal response. Second, public order disturbances that threaten the security of Canada and which are so serious as to be national emergencies. Third, international emergencies requiring Canada to take special preparatory measures in concert with her allies.

Fourth, finally, war itself. Passage of this legislation will enable the federal government... So the language in the Emergencies Act talks about an urgent and critical situation. And then it goes on and says that there has to be a serious danger to the life, health and safety of individuals. And that the provinces don't have the capacity or the authority to deal with it. Or there has to be a serious threat to the territorial integrity, sovereignty and security of Canada, and there is no law in Canada capable of dealing with it. Okay, and then so tell me then why you think what we have been seeing in this country over the last several weeks, protests that have blocked border crossings, what has been called an occupation in Ottawa, does not meet that threshold.

Well, let's start with the border crossing blockades because those in some ways demonstrate exactly what our concern is. Those blockades were dismantled using ordinary laws, using laws that were passed through the ordinary democratic process. As the day dawned, a line of police moved in, first with a warning. When I leave, you will be arrested. Moments later, the advance. More than 25 people arrested throughout the day. Police have the authority and the capacity

to deal with complex law enforcement situations, including massive protests. They acted swiftly and aggressively. In fact, they completely overdid it during the G20. Without warning, all of a sudden, two minivans pulled up in front of the group and police raided the crowd and just grabbed whoever they could, stuffed them into vans, arrested whoever they could at the time and drove away. This was without warning.

It was completely unprovoked. We saw police literally just drive up at that moment and grab whoever they could near the front line. We were sitting down. They set up massive perimeter fences, massive law enforcement actions during the G20, and they do it at other protests as well, where they act with far less restraint. So that's what we saw at the blockades this past week, that police moved in, used the ordinary laws that were created through democratic processes to stop those protests from happening, to take them apart, to clear the bridges, all without using the emergency powers. already on the books, but the Emergency Act was being used by police to erect barricades, have controlled entry points and bring in police from outside Ontario without Ottawa police having to swear them in. Yes, there are two responses to it. First of all, there are laws on the books allowing for

cooperation between police services, firstly, and that's just for the Ottawa situation. But secondly, when the government gave itself these massive powers to bypass the democratic process, they then created emergency orders that were also sweeping and excessive that applied across Canada. And again, we're thinking about the long game. Even if this order is temporary, even if this order doesn't last forever, what happens with successive governments, governments that come along and say, oh, there's a protest that we don't like. There's a protest that is disruptive and sometimes peaceful, nonviolent protests are

disruptive. And that's how marginalized communities get their voices heard. We're going to shut that down. and that's how marginalized communities get their voices heard. We're going to shut that down. We felt it was really important to stand up and say, use of the national emergency powers provided in the Emergencies Act needs to be left to a national emergency. Nobody should get used to the idea.

We should not normalize a situation where difficult law enforcement situations allow governments to say, we're going to take extra power that is going to allow us to bypass the ordinary democratic process. They should use the laws that they have in place. And if they need something else, they need to justify it on the basis of something that is very significant. The justification that the government created here, that it provided to the parliament, that is publicly available to the Canadian people, talks about the economy and it talks about Canada's international trade, none of which is contemplated by the Emergencies Act. So on the

one hand, the messaging that's coming out in popular media is danger, danger. But the actual justification that they provided for the use of the Emergencies Act was largely about the economy and international trade. And we don't think that those things should be used to justify use of the Emergencies Act because of the astonishing power it gives the government to then pass new laws, right, the emergency orders, without having to go through Parliament. So let me just pull some of that apart with you. It's a lot. No, no, it's a lot. It's a lot. What would meet the threshold for you? the territorial integrity of Canada was in danger, and if the National Defense Act was not adequate and was not up to the task,

then that might justify using the Emergencies Act. That would likely qualify as a national emergency. I mean, let's not forget, Canada is not a lawless state. We're a well-settled, well-established democracy with many laws on the books that allow our governments to manage situations, not just ordinary situations, but difficult and complex situations. And our police do it all the time. If there were an actual insurrection with the kinds of dangers that have been rumoured and

whispered about, but were not what was presented to Parliament as a justification for using the Emergencies Act, and I'm not a police chief. But if there were an insurrection, and again, if our laws were not capable of handling it, that might justify using the Emergencies Act. And that's the kind of thing that the Emergency Act talks about a serious danger to the life, health and safety of people in Canada. And there is no law. The provinces don't have the capacity or the authority to handle it. But Parliament can call this off, right? If they want to. It gets in place for 30 days, but they can vote to stop it at any point. So isn't there oversight in real time here as the government passes laws? In real time, no. There is oversight after the fact.

Well, let's imagine a scenario in which a group of, let's call them environmental protesters, decide to hold a massive protest to bring attention to the fact that not enough is being done to protect the environment. to bring attention to the fact that not enough is being done to protect the environment. And let's say we have a government that doesn't look favorably on it because this is not a message that they want shared. If the government invokes the Emergencies Act, passes emergency orders and says, you know, we don't know what these protesters are capable of. We don't know what they're going to do. And seven days later, they have to make sure that they bring all that before Parliament. But in the meantime, under emergency orders that they pass without scrutiny yet, they can come in and take swift, aggressive, regressive action. And we do not think that that is something that is safe for the long game for Canada. Right. Basically, since the time that the government

invoked this at the beginning of last week, you're saying there hasn't been any real checks and balances on what's been happening. I'm saying that it has been laid before Parliament. I'm saying that use of the Emergencies Act does not require in the moment accountability. It requires after the fact accountability. And that makes sense for a national emergency. In a national emergency, let's take the pandemic, for example. You had a public health emergency. No one quite knew what to do, whether they could gather.

Nobody had their Zoom set up. And government said, if we need to take serious action right here, right now, we can't stop for right now. And afterwards, we'll ask for forgiveness. But right now, we're not asking the public, we're not asking the democratically elected representatives for permission, as we normally do in a democracy, because that is what is protecting all of us. protecting all of us. The Prime Minister would respond, I think, by saying that the application of this act is going to be very targeted. We're not using the Emergencies Act to call in the military. We're not limiting people's freedom of expression. We're not limiting freedom of peaceful assembly. We're not preventing people from exercising their right to protest legally. We are, in fact, reinforcing the principles, values, and institutions that keep all Canadians free. And I wonder how you would respond to that. Yeah, I mean, this is exactly where our concern comes in, right? The moment that you have laws and government saying, just trust us, don't worry about the law, don't worry about the process, just trust us. That's where you don't have checks and balances. That's where you are stepping so far beyond the ordinary democratic process. So first the prime minister said, oh, we're just going to use these powers in a targeted way.

We're going to be targeted geographically. Then you look at the orders and the orders apply across Canada to any kind of protest. Then he says, no, no, trust us. We're going to, we've given ourselves power across Canada, including in provinces, including at bridges, including at border crossings where the orders were not needed, where people went home peacefully, where a small cache of weapons were found on a small number of the protesters. That is very serious criminal activity. And the other protesters said, that's not what we signed up for and went home peacefully.

And just trust us, says the government. We're going to use it the way that we think is appropriate. That's not a democratic answer that we should be comfortable with. We want to know that if it's going to be targeted, that should be written in law. That's what the rule of law means, that nobody is above the law, including the government. We may have to accept that that has to be suspended sometimes where there is an urgent crisis but everything outside of that needs to be very specific and very targeted so that we know that this government and any government that comes afterwards will not dare to take powers to itself that it doesn't actually need without using the democratic process. This is not democracy for the sake of an abstract principle. This is for the sake of protecting people's rights in Canada, for protecting those future environmental activists, for protecting people who want to stand up for racial injustice, for protecting the students in Quebec who took to the streets for many months. This is what we are concerned about, protecting the rights of people who use those same rights to stand up for themselves.

I'm going to go. Canada's entrepreneurs through angel investment and industry connections. their own household income. That's not a typo. 50%. That's because money is confusing. In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. I think, connected to that, I do want to spend a little bit of time talking about the financial tools that are now in place under the Emergencies Act. And so Public Safety Minister Marco Medichino said Saturday, 72 accounts totaling $3.2 million have been frozen. And can you tell me about those tools? So the emergency order says a person must not participate in a public assembly that may reasonably be expected to lead to a breach of the peace by seriously disrupting the movement of persons or interfering with the

functioning of critical infrastructure or supporting the threat or use of acts of serious violence against persons or properties right so supporting the threat or use of acts of serious violence that's what's prohibited. And there are some exemptions, right? People traveling for work, for example, are exempt. And then it says a designated person, and we're going to find out that this is a person who can have their bank account frozen and their financial information turned over to our security services. A designated person means any individual or entity that is engaged directly or indirectly in an activity prohibited by the section we read above. So I saw Bill Blair, Minister of Emergency Preparedness, asked if like someone's accounts could be frozen here if they gave a $200 donation to the Freedom Convoy. And he said, essentially, no.

And how would you respond to that? When the language of an order is so broad and government says, just trust us, we won't use it wrong. We need to be concerned about what's going to happen today. And we have to be concerned about the long game. going to happen today. And we have to be concerned about the long game. Just trust us is not adequate in a law abiding country like Canada, where we have a rule of law. And I say that recognizing that there has been a lot of law breaking, including criminal activities that are really problematic, and especially where they've targeted marginalized and racialized communities. We don't condone that we oppose that that. The police should shut that down.

But that doesn't mean that the government should give itself powers to go so far beyond it that all we're left with is, don't worry, we're not going to use the powers we gave ourselves. You're talking about the long game here. The act says there has to be an inquiry and report after the emergency ends. Do you think that's enough, though, to deter later misuse of the act or misuse of the act right now, knowing that an inquiry has to come. So when the police cracked down on the G20, as police have done using far less restraint when it comes to marginalized and racialized communities, the fact that there was after the fact action does not change the fact that 1,100 people were arrested in mass arrests. 1,100 people were detained and arrested. That happened in the moment all of those people

were affected. An inquiry after the fact does not take that away. I don't mean to suggest that the G20 is parallel to the situation in Ottawa, not for a moment. In the G20, there were 50, maybe 100 people who committed some acts of vandalism, destruction of property. That's very, very different than what we're seeing in Ottawa. That's not why I'm making the comparison. Right, because I think people would argue that while the G20 protests caused damage, they were nowhere near the security fence

protecting international leaders, but that this, what people have called occupation of downtown Ottawa, is actually at the seat of government, sort of especially after January 6th, that there could be a different threat level here. And, of course, the blockading of border crossings in the future does cause an enormous amount of economic hardship and problems. Right. And again, it is such a complex situation. Our chief concern is with the invocation of the act and the use of it to create orders that are sweeping and excessive, so much so that the government has to turn around and say, don't worry, just trust us. We're not going to use the powers that we gave to ourselves. What they are doing in Ottawa is, is, you know, shutting down a protest that has been extremely disruptive, extremely difficult, extremely painful for many people. Although there were peaceful protesters there, although some of

the protesters were entirely law abiding, there has also been disruption that exceeds anything reasonable. And that is not what we are taking issue with. We are taking issue with the government giving itself enormous powers that it has applied across the country. Your position on this is not exactly popular. A Maru public opinion poll found that two-thirds of Canadians support Trudeau invoking the Emergencies Act. And I wonder what you would say to that group of Canadians, the two-thirds of Canadians that think that authorities needed this tool? I think what we're hearing in those polls, I wouldn't want to speak for anybody, but what it sounds like people are responding to is a really difficult situation in Ottawa. And what they're saying is there needs to be action. Somebody needs to take action to address the situation in Ottawa.

The complexity of the situation, the fact that it can and should be handled under ordinary laws, the fact that you don't need to bring in emergency orders across Canada was not part of that poll. And I suspect that if you did a poll across Canada and said to people, are you comfortable with the government passing laws from Ottawa that affect every community in this country and stops your ability to protest if it falls within one of these categories that is in the order? Are you comfortable with that? I suspect that the poll numbers would be different. numbers would be different. Governments have to be very careful to obey the law, to create laws as much as possible outside of national emergency situations that use the regular democratic process. I don't think people should be asked to trust government outside of a national emergency situation. We should be asked to trust the government is doing things in an

accountable, transparent, and democratic way. And when they apply it across the country, they should be worried. We are worried. We are worried about people today. We are worried about people tomorrow who may want to stand up and protest any number of issues and may be worried that the police are going to crack down on them, that emergency orders are going to be put in place as the government did during the G20 and maybe worse. And each time is the government going to say, but they used the Emergency Act before. We can use it again. That's our concern. Noah, thank you. Thank you very much for this. Thanks for speaking with me as well. All right, that is all for today.

I'm Jamie Poisson. Thanks so much for listening to FrontBurner. We'll talk to you tomorrow. For more CBC Podcasts, go to cbc.ca slash podcasts.