Thread by @DavidAnber

🚨 EMERGENCIES ACT?

The same legal “experts” on Twitter who explained us concepts like how they believe an injunction works last week, are now publishing a flurry of “legal opinions” on how Canada should invoke the Emergencies Act, R.S.C. 1985, c. 22.

A 🧵 on why they’re wrong.

Starting in the preamble, a “national emergency” is needed that requires the Act to “ensure safety & security” during the emergency. Looking at what’s going on in Ottawa right now, it’s hard to say this is a “national emergency” let alone one that puts safety/security in issue.

Next, once over those first two hurdles, the national emergency must “seriously threaten” one or more “obligations”. Words matter and so the mere threat to obligations would not be sufficient to allow the use of the special powers in the Act. What are those “obligations”?

1. The safety and security of the individual;

2. The protection of the values of the body-politic; or

3. The preservation of the sovereignty, security and territorial integrity of the state.

What is going on in Ottawa is not in any serious way affecting 1 or 3.

2 is kinda vaguely worded as to potentially apply, although I don’t believe a loud peaceful protest with bouncy castles is what the legislator had intended when they drafted this. To those who immediately object to the word peaceful, use your eyes & brains: there is no violence.

Then, the rights contained in the Charter of Rights and Freedoms are specifically noted in the preamble as applying. Charter protections apply as they do now, likely as a counterbalance to why Offences like “mischief” or “cause disturbance” or city bylaws aren’t being enforced.

This friction between Charter rights and existing laws is an important concept and is also a good transition into the substance of the Act. Section 3 of the Act specifics that an emergency is defined as something that “cannot be dealt with effectively” under existing law.

The “emergency” must be “urgent & critical & temporary” & must also meet one these two criteria

(a) it must seriously endanger the lives, health or safety of Canadians and is of such proportions or nature as to exceed the capacity or authority of a province to deal with it, or

(b) it must seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada.

Again, the use of the word “seriously” matters as do those alleged endangerments/threats.

We have none of this here in Ottawa.

The Act then describes types of emergencies. Section 5 describes a so-called “public welfare” emergency. These all related to natural occurrences like floods, disease etc. & so this section is totally inapplicable. (As are War Emergencies— s.36 & International Emergencies— s.27)

Now onto the applicable stuff — Section 16 sets out “Public Order” emergencies. It qualifies the emergency as one that arises from threats “so serious” to the security of Canada as to be a national emergency.

If declared, it is limited to 30 days unless extended or terminated.

Powers include the ability to regulate

(i) any public assembly that may reasonably be expected to lead to a breach of the peace,

(ii) travel to, from or within any specified area, or

(iii) the use of specified property.

It also permits gov control over utilities/services.

It also includes other powers such as designating spaces in certain ways or ordering people to render certain kinds of assistance.

It creates new criminal offences for breaching the emergency order.

Anybody who looks at these highly exceptional provisions and believes it’s even debatable that they could apply to the current situation in Ottawa is either dishonest or not a serious person.

So long as the status quo remains, governments will need to find other approaches.