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Sunday, December 4, 2022

FUREY: Legal voices have big concerns with what Trudeau has done

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There is no downplaying the magnitude of the decision made by Prime Minister Justin Trudeau to invoke the Emergencies Act.


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It’s a move that’s never been done before, and it’s not a decision to be made lightly.

And yet a growing chorus of legal analysis suggests that the PM did in fact make the decision lightly — that the situation just didn’t warrant it.

“The federal government has not met the threshold necessary to invoke the Emergencies Act,” said a statement by Nao Mendelsohn Aviv, executive director of the Canadian Civil Liberties Association (CCLA). “This law creates a high and clear standard for good reason: the Act allows government to bypass ordinary democratic processes. This standard has not been met.”

The CCLA added: “Emergency legislation should not be normalized. It threatens our democracy and our civil liberties.”

There are those who claim that civil liberties won’t be violated by Trudeau’s decision because any measures undertaken are subject to the Charter. But that’s not as reassuring as it may first sound.


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Now that the Emergencies Act has been invoked, a motion to confirm the emergency needs to appear before Parliament within seven sitting days. Until that time, there’s really nothing stopping Trudeau and cabinet from interpreting their new powers however they please.

Here’s one of the new things Trudeau can now do: “Regulating and prohibiting public assemblies, including blockades, other than lawful advocacy, protest or dissent.”

Now, whatever this means to you is irrelevant; it’s how Trudeau and the Prime Minister’s Office choose to interpret it that matters.

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There’s no immediate adversarial review, and there’s no upfront judicial restraint. For example, the new powers Trudeau has given himself to mess with people’s banking who are suspected to be involved in the protests don’t require a court order like they would during usual times.


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It’s troubling that Trudeau would so readily reach for this lever.

“The use of the Act is intended for crises where there are no other options on the table,” explains Aaron Wudrick, a lawyer who works with the Macdonald-Laurier Institute. “Yet until it decided to invoke the Act, the federal government — along with their provincial and municipal counterparts — failed to do very much at all to attempt to disperse the Ottawa protest, making it hard for them to claim they have exhausted all alternatives.”

Likewise, Professor Ryan Alford — at Lakehead University’s Bora Laskin Faculty of Law — noted the Act “can only be activated as a source of jurisdiction if no other law or set of laws is adequate to protect the safety and territorial integrity of Canada. The disagreement of five premiers about its necessity calls into serious question whether there is a rational basis for promulgating emergency measures, never mind whether this meets the very high legal threshold set by the Act.”


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Alford added: “It beggars belief that the Prime Minister of Canada is going to deal with protests complaining of infringements of civil liberties by suppressing them by means that are likely unconstitutional, and identified as such in advance by civil liberties organizations and scholars.”

Let’s not lose sight of the big picture here. What’s been going on the past few weeks is that people who have been living under heavy-handed and at times seemingly arbitrary rules for the past two years had enough and took to the streets in protest.

There were no serious incidents of violence, aside from the vehicular ramming in Winnipeg that sent four people to hospital. And that was violence aimed at the protesters, not done by them.

While Trudeau may issue a series of outlandish social media posts vilifying the protesters and misleading Canadians about what’s happening, let’s not mistake that for a legal argument around what’s really going on.



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