What is Canada’s Emergencies Act?

A democratic nation should not fear protests from citizens. In early 2022, Canada’s capital was the site of one of the longest, and loudest, protests in Canada. Ottawa criminal lawyer Céline Dostaler witnessed the truckers’ protest firsthand. This is the fifth instalment in a multi-part series where she explores the laws dealing with protesting in Canada.

On Feb. 14, 2022, the federal government invoked the Emergencies Act for the first time since its passing in 1988. That move was immediately denounced by many people, including some provincial premiers who felt it was not necessary. The government said the truckers’ blockade in Ottawa and at border crossings had turned into a national emergency. Section 3 of the Act defines a national emergency as an “urgent and critical situation of a temporary nature” that:

• seriously endangers 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;
• seriously threatens the ability of the Government of Canada to preserve the sovereignty, security and territorial integrity of Canada; and
• cannot be effectively dealt with under any other law of Canada.

Soon after the passage of the Act, police moved in and started to make arrests at the protest in Ottawa, with more than 100 people charged. Ten days later, with the protestors gone from the nation’s capital and border crossings, the Act was lifted.

What kind of emergencies does the Act cover?

The Act provides for four different kinds of emergencies. The first is a “public welfare” emergency to deal with natural disasters such as fire, floods, droughts or earthquakes “or other natural phenomenon.” This section also includes diseases in human beings, animals or plants that pose a national risk, as well as accidents or pollution levels on that scale.

Next up is a “public order emergency,” which means an emergency that arises from “threats to the security of Canada and that is so serious as to be a national emergency.” This section was cited when the Act was invoked in 2022. “Threats to the security of Canada” are further defined in s. 2 of the Canadian Security Intelligence Service Act as:

• espionage or sabotage that is against Canada or is detrimental to the interests of Canada or activities directed toward or in support of such espionage or sabotage,
• foreign-influenced activities within or relating to Canada that are detrimental to the interests of Canada and are clandestine or deceptive or involve a threat to any person,
• activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political, religious or ideological objective within Canada or a foreign state, and
• activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of, the constitutionally established system of government in Canada.

The third type of emergency is an “international emergency.” An international emergency is defined as “an emergency involving Canada and one or more other countries that arises from acts of intimidation or coercion or the real or imminent use of serious force or violence and that is so serious as to be a national emergency.”

The final emergency is a “war emergency.” It is defined as "war or other armed conflict, real or imminent, involving Canada or any of its allies that is so serious as to be a national emergency."

What powers does the Emergencies Act grant?

Under s. 19 of the Emergencies Act, during a public order emergency, the government can:

• regulate or prohibit public assembly that may reasonably be expected to lead to a breach of the peace, and regulate or prohibit certain travel or use of property;
• designate and secure protected places;
• assume the control, restoration and maintenance of public utilities and services;
• authorise or direct the provision of essential services and the provision of reasonable compensation for these services; and
• impose upon summary conviction, a fine of no more than $500 or a term of imprisonment not exceeding six months, or both. If the charge is treated as an indictable offence, a fine of up to $5,000 or a term of imprisonment not exceeding five years, or both, can be handed out.

Can my bank account be frozen?

One of the most controversial aspects of the invocation of the Act in 2022 was the freezing of bank accounts of some people involved in the protest. A parliamentary committee was told that up to 210 bank accounts linked to the protestors – worth approximately $7.8 million – had been frozen.

According to news reports, banks and other financial institutions were ordered to stop doing business with people who are "directly or indirectly" associated with the anti-vaccine mandate protests. They were told they can't provide "any financial or related services" to people associated with the protests, a move resulting in frozen accounts and cancelled credit cards.

Was the invocation of the Act legal, or warranted?

It depends on who you ask. Section 62 of the Emergency Act states that “any declaration of emergency shall be reviewed by a committee of both Houses of Parliament.” The composition of that committee and its timelines to report are sent out in that section. The report generated by the committee on the validity of imposing the Act is due within 365 days “after the expiration or revocation of the declaration of emergency.”

Some groups, such as the Canadian Civil Liberties Association, are adamant the imposition of the Act to deal with the trucker’s protest was not warranted. As one of their executive members has stated, "the legal threshold to use these extraordinary powers is intentionally high … and has not been satisfied … there are thousands of protests in Canada every day. Protests about climate change. Indigenous land claims. Anti-Black racism.  And yes – protests in support of, and against, public health measures. The vast majority of these protests are peaceful. These orders potentially apply to them all."

Call me for legal advice

Protests have a valuable place in Canada and they have led to important changes in our laws. But if you are taking part in a demonstration, make sure you are on the right side of the law. If you have been arrested, contact me for more information and a free consultation.