Josh Dehaas: You owe Jason Kenney a beer
The former Alberta premier's fight for provincial jurisdiction was instrumental in the legal case against the invocation of the Emergencies Act.
By: Josh Dehaas
If you value your constitutional rights to protest the government and to not have your bank accounts frozen without police showing a very good reason first, you owe Jason Kenney a beer.
One so far overlooked aspect of the Federal Court of Canada’s explosive declaration earlier this week that Justin Trudeau’s invocation of the Emergencies Act was illegal is just how crucial Kenney’s decision to stand up for provincial jurisdiction proved to be.
During the blockade in Coutts, Alberta, Kenney, then premier, warned the prime minister that his province wasn’t facing anything that his province couldn’t handle on their own — and so he couldn’t justify the claim that this was a national emergency. When Trudeau did it anyway — declaring an emergency and using the Act to ban attendance at the protests and require banks to freeze financial accounts — Kenney refused to drop the matter. Alberta joined civil liberties organizations, including my own, the Canadian Constitution Foundation, in our fight in Federal Court.
This week, we won.
Justice Mosley found that, not only was the decision to invoke the act unreasonable based on the EA’s text, but the protest ban violated the right to freedom of expression, and the freezing of accounts without reasonable suspicion to believe a crime had been committed violated the right to be free from unreasonable searches and seizures. If the decision is upheld on appeal, it will protect civil liberties for generations to come. (If you want to help us fund that appeal fight, we accept all major credit cards.)
To understand why Kenney was right, take a quick look at the constitutional division of powers. The federal Emergencies Act allows for the suspension of constitutional rights and normal lawmaking procedures in scenarios like wars and epidemics that extend beyond provincial borders and that require the federal government to move quickly. Federal jurisdiction to create the Act is drawn from the part of the Constitution Act, 1867 that says the federal Parliament can make “Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.”
Most emergencies are matters of a local nature. That’s provincial turf. The text of the Emergencies Act recognizes this provincial jurisdiction in two ways. First, Section 3(a) defines “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 … and that cannot be effectively dealt with under any other law of Canada.” Second, section 17(2)(c) says that if Ottawa proclaims a Public Order Emergency, as it did here, they shall specify, “if the effects of the emergency do not extend to the whole of Canada, the area of Canada to which the effects of the emergency extend.”
Alberta argued — and Justice Mosley agreed — that Alberta had the capacity to deal with the situation. They showed this when their provincial RCMP (Alberta contracts with the Mounties for provincial policing) successfully shut down the blockade at Coutts before the special measures were created.
Alberta further argued — and Justice Mosley agreed — that it had the authority to deal with the situation. Alberta had its own emergencies law and it could have used that to create new laws on the fly, just like Trudeau. But Alberta handled the situation without suspending rights by using existing laws like the Criminal Code and Critical Infrastructure Defence Act.
Alberta also argued — and Justice Mosley agreed — that there weren’t reasonable grounds to believe that the effects of the emergency extended to the country as a whole. Justice Mosley noted Ottawa’s concern that new blockades could emerge anywhere in the country, but found that evidence showed that existing laws were handling those that had popped up, from Quebec to Coutts. Notably, the blockade of the U.S. border in Windsor, Ontario had also been cleared.
The only province where the situation arguably exceeded the capacity or authority of a province to handle was Ontario, and this was in part due to the province’s inability to get tow truck drivers to cooperate in moving the big rigs parked near Parliament Hill. But Justice Mosley pointed out that there was no reason to believe that Ontario couldn’t have used its own emergency powers to force tow truck drivers’ hands, and there was nothing preventing the Ottawa Police Service from assembling enough officers to clear the trucks out, as they did just days after the invocation.
As we learned from the Rouleau Commission (thank God for the foresight of the Emergencies Act drafters to make such a commission mandatory), the Ottawa cops were unable to deal with the big rigs not because they needed new emergency powers but because of what Justice Mosley characterized as the “failure of leadership and determination, together with a mistaken assumption that the protest would be short lived.”
Justice Mosley said he agreed with Ottawa that the situation was critical and required an urgent response, but the evidence “does not support the conclusion that it could not have been effectively dealt with under other laws of Canada, as it was in Alberta, or that it exceeded the capacity or authority of a province to deal with it.”
This is exactly what Kenney had been saying all along. Cheers to him for heeding his instincts.
Josh Dehaas is counsel with the Canadian Constitution Foundation, a non-partisan legal charity that was granted public interest standing to challenge the use of the Emergencies Act alongside the Attorney General of Alberta and the Canadian Civil Liberties Association.
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Super. So, who's going to jail? Anyone getting fired? No? Is there anything here at all that would prevent a future repetition of this kind of overreach?
Invoking the Emergencies Act was a face-saving move for the Trudeau government after weeks of political paralysis and indecision. They'd had the power to end the protests and the blockades all along, but couldn't bring themselves to use it and would've been humiliated to admit they could've done so all along.