Why Using the National Emergency Act Would Be Wrong

In Ottawa this week, Prime Minister Justin Trudeau invoked the National Emergencies Act in response to protests against COVID mandates. This was not the correct course of action. Here’s why.

As stated in the preamble to the act, a “national emergency” would be needed that required the Act to ensure public safety and 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 and security at risk.

Next, once over that hurdle, the national emergency must “seriously threaten” one or more “obligations.” Words matter, and so it must be a considerable threat to obligations to 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 items 1 or 3.

Number 2 is vaguely worded, so it could potentially apply—although I don’t believe a loud peaceful protest with bouncy castles is what the legislators intended when they drafted this. To those who immediately object to the word peaceful, take note: there has been no violence.

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 specifies that an emergency is defined as something that “cannot be dealt with effectively” under existing law.

The emergency must be “urgent and critical situation of a temporary nature” and must also meet one of these two criteria:

(a) 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, or

(b) 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 or threats.

We have none of this here in Ottawa.

Public welfare emergencies are described in Section 5: floods, droughts, storms, and disease. War emergencies are also inapplicable (s.36) as are  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 government control over utilities and services and gives them 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.

These highly exceptional provisions do not apply to the current situation in Ottawa. So long as the status quo remains, governments will need to find other approaches to ending the protests.