As anti-vaccine mandate protesters continue their weeks-long occupation of the nation’s capital, Prime Minister Justin Trudeau and his cabinet on Monday triggered the Emergencies Act — a decades-old law that gives sweeping powers to the federal government to establish order during a crisis.
The law — which has never before been invoked — gives the federal government substantial short-term powers to deal with a crisis.
What is the Emergencies Act?
The act grants cabinet — Trudeau and his ministers — the ability to “take special temporary measures that may not be appropriate in normal times” to cope with an emergency and the resulting fallout during an “urgent and critical situation.”
The law itself defines an emergency as something that “seriously endangers the lives, health or safety of Canadians.”
While the federal government still has to respect the terms of the Canadian Charter of Rights and Freedoms, the law gives the federal government a lot of leeway for action. For one thing, it gives the federal cabinet unprecedented power to assume jurisdiction from the provinces and municipalities.
The act has been called “the most powerful federal law” by some experts because it essentially allows the federal government to take matters into its own hands and temporarily supersede other laws that may already be on the books.
The act was passed in 1988 as a replacement for the War Measures Act. It has never been used before because it’s widely considered a measure of last resort.
The War Measures Act was deployed during the First and Second World Wars and, most controversially, during the 1970 October Crisis in Quebec.
Before invoking these powers, the federal government must determine that the emergency “exceeds the capacity or authority of a province to deal with it” or that the situation “seriously threatens” the sovereignty, security and territorial integrity of Canada.
Trudeau said Monday the cabinet believes the current situation meets those conditions and the federal government has been “forced to act” to bring the situation under control in Ottawa and elsewhere.
Prime Minister Justin Trudeau explained how the Emergencies Act will be used to deal with the ongoing protests in the nation’s capital and at some Canada-U.S. border crossings. 1:35
Under the law, if an emergency does not extend to the whole of Canada, cabinet must define “the area of Canada to which the effects of the emergency extend.”
In this instance, Trudeau said, the Emergencies Act powers will be limited as required to the City of Ottawa and other sites where protesters have erected blockades that disrupt critical infrastructure.
“It will be specific, limited, responsible and reasonable,” the prime minister said.
What can the federal government do now?
The act gives powers to the prime minister and his cabinet to respond to four different types of emergency scenarios: public welfare (natural disasters, disease), public order (civil unrest), international emergencies and war emergencies.
In this instance, the act is being invoked to deal with a public order emergency. This means the cabinet has the power to prohibit “public assembly that may reasonably be expected to lead to a breach of the peace,” to prohibit travel to, from or within any specified area, to forbid the use of a “specified property” and to secure “protected places.”
The cabinet can also direct any person or class of person to “render essential services” and gives the government the power to regulate the “distribution and availability of essential goods.”
In the context of the Ottawa protest, Trudeau said the federal powers will be used to prohibit people from illegally gathering in the city’s downtown core and to order tow truck companies in the area to help remove big rigs used in the protests.
People hold Canadian flags in front of trucks parked in downtown Ottawa during ongoing demonstrations against COVID-19 mandates on Feb. 12, 2022. (Jean-Francois Poudrier/Radio-Canada)
Trudeau said police will be given “more tools to restore order,” including the ability to levy fines and jail people. The Emergencies Act stipulates that the federal government can impose fines up to $5,000 on lawbreakers or pursue imprisonment not exceeding five years, or both.
In an unusual move, the RCMP, will be empowered to enforce all municipal bylaws and provincial offences in Ottawa. The RCMP does not carry out many policing functions in Ontario.
The cabinet is also directing banks and financial institutions to halt the flow of funds to protest organizers through amendments to the Proceeds of Crime and Terrorist Financing Act.
Deputy Prime Minister Chrystia Freeland said the corporate accounts of truckers participating in the Ottawa blockade will be frozen and their insurance will be suspended.
“Send your semi-trailers home.” Freeland said.
The federal government says that, starting immediately, all crowdfunding and payment services providers must register with the Financial Transactions and Reports Analysis Centre of Canada (FINTRAC).
“This is all about following the money,” Freeland said.
Is there a role for the military?
The Emergencies Act itself is silent on the role of the military during this sort of emergency. There are other federal laws — including the National Defence Act — which allow Canadian Armed Forces (CAF) personnel to provide “service in aid of the civil power.”
This means the military could in theory be called upon to help police maintain law and order — but would not replace civilian law enforcement.
Trudeau said today the government is “not using the Emergencies Act to call in the military,” so a role for the CAF is off the table — for now.
How long would these powers be in effect?
As soon as the cabinet declares an emergency, the powers go into effect immediately. The act stipulates, however, that Trudeau and his ministers also must go before Parliament to seek approval from MPs and senators within seven days.
The act says that these extraordinary powers are time-limited to just 30 days, although they could be extended.
What do experts think?
Wesley Wark is a senior fellow at the Centre for International Governance Innovation and one of the country’s top intelligence experts.
Wark said invoking the Emergencies Act against the blockades is “long overdue” because the Ottawa occupation has been mishandled by local authorities and law enforcement. One level of government should be “clearly in charge of the situation,” Wark said.
What invoking the Emergencies Act means, what it changes for authorities and what difference it could make in ending the protests. 2:03
“There has been so much jurisdictional buck-passing with regards to city authorities and the provincial government. The federal government realizes it has to take the lead on this and assume responsibility,” he said. “It’s the federal government that has the resources to bring this protest to an end.”
Wark said the Emergencies Act gives the federal government the ability to “define a place or zone that has to be secured.”
He said this likely would be applied to Ottawa’s downtown core, where demonstrations have severely disrupted the continued functioning of government. The epicentre of this protest is Wellington Street, the thoroughfare that runs in front of the Parliament Buildings, the Prime Minister’s Office and offices for other key government departments and agencies.
A protester who arrived to support convoy participants blocked by local residents in a counter-protest on Riverside Drive argues with police officers in Ottawa on Sunday, Feb. 13, 2022. (Justin Tang/The Canadian Press)
Once a zone is identified, law enforcement could then prevent people from entering that area until it is cleared, Wark said. The act also allows the federal government itself to levy limited fines or terms of incarceration against people who defy orders — powers that are normally reserved for local law enforcement.
Wark said he expects there will be a serious crackdown on protesters and a “flood of fines and ticketing and the end of free movement.”
“You see cars and trucks travelling around Ottawa, flying their so-called patriotic flags without hindrance. This is going to end. The protesters will be put under siege and isolated and that’s the first step to clearing them out,” he said.
Do the protests qualify as an emergency under the law?
Leah West, a former national security lawyer with the federal Department of Justice, takes a different view.
West told CBC News she’s not convinced that the ongoing protests rise to the level of a public order “emergency.”
“As someone who studies the law very carefully, I’m kind of shocked, to be honest, that the government actually believes this meets the definition to even invoke the act,” she said.
West said that, under the existing provincial emergency order, Ontario can already do some of the things that the federal government is now contemplating.
“It’s not clear to me why you would need the federal authorities to do that,” West said.