44th Parl. 1st Sess.
February 20, 2022 07:00AM
- Feb/20/22 8:09:39 p.m.
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Mr. Speaker, I will start by taking note of the recent news that Her Majesty the Queen has contracted COVID. Reports tell us she is well and continues to perform light duties, but, of course, Her Majesty is 95 years old and this places her in a high-risk group, even for the relatively mild omicron variant. It goes without saying that every Canadian wishes her a prompt and complete recovery.
Let me now turn to the debate at hand on whether the House should vote to support or negative the government's February 14 proclamation invoking the Emergencies Act. I will frame my remarks by observing that it would be appropriate if the act were named the emergency powers act or the emergency measures act because the act allows the government, in extraordinary times and under a set of narrowly defined circumstances, to implement emergency powers and emergency measures, thereby temporarily acquiring extraordinary powers that intrude upon the rights and freedoms of Canadians in ways that are not permitted in ordinary times. Therefore, it is the powers being exercised by the government, under the authority of this proclamation, on which we are being asked to pass judgment.
I will argue that we should vote to negative the proclamation, not merely because the purported emergency could have been dealt with by means less drastic than those contained in the Emergencies Act, but also because the most important features of the proclamation, which are designated by the government as the emergency economic measures order and the emergency measures regulations, assert powers that are not actually authorized under the act. Since these claimed powers are ultra vires the act, this part of the proclamation is itself unlawful.
I note that the Canadian Civil Liberties Association has filed a brief in federal court asserting that the order and regulations are also unconstitutional, because they represent a clear breach of section 8 of the charter, which prohibits unreasonable search and seizure. The argument of unconstitutionality is not my focus today, but I will observe here that the CCLA's brief is available online and should be read by everyone.
Let me return to my main argument. The Emergencies Act designates four types of emergencies. The type specified in the February 14 proclamation is called a public order emergency. The extra powers permitted under each kind of emergency are not identical. Those permitted under a public order emergency are listed in section 19 of the act. They include the regulation or prohibition of certain kinds of public assembly or of travel to or within areas the government can designate, and limits on the use of what the act calls “specified property”. The act also allows the designation and securing of certain protected places such as Parliament Hill. It allows the government to assume control of public utilities or services, and it allows the government the power to compel any person to provide services that the state deems essential, such as, famously in this case, tow truck drivers.
In its February 14 proclamation, the government asserts its intention to exercise most of these powers and impose the maximum penalties the act permits on citizens who fail to obey. The government also asserts an additional power that does not exist under any reasonable reading of the act. This is the power that is the subject of the emergency economic measures order contained within the proclamation. This order makes it unlawful to make “available any property, including funds or virtual currency, to or for the benefit of a designated person”. In other words, it is a person “engaged, directly or indirectly, in an activity prohibited by [the proclamation]”, or a person acting on behalf of such a person.
This is a truly extraordinary exercise of power. The order and the regulations are the source of the government's claimed authority to deny access to bank accounts without seeking an injunction or a court order from a judge, and to force crowdsourced fundraisers to make known their donations to the state, the latter of which is apparently a measure the finance minister would like to make permanent.
The explanatory memorandum provided by the Minister of Justice, pursuant to subsection 58(1) of the act, offers the following description of what the regulations do. The regulations “prohibit directly or indirectly using, collecting, providing, making available or soliciting property to facilitate or participate in a prohibited assembly, or to benefit any person who is facilitating or participating in a prohibited assembly.”
The first part of this prohibition is perhaps acceptable, since it is the assemblies themselves that are the events claimed to be emergencies: the so-called blockades and occupation. The second part, however, makes it unlawful to engage in any form of commercial or monetary transaction whatever with a person who is involved in any way with these assemblies. It is unlawful to pay their salary or wages. It is unlawful to provide them with food or shelter. Such persons become, in essence, unpersons, stripped of any power to engage in any economic activity whatsoever, and the rest of us can be punished for failing to make sure that this is so. Most obviously, the rest of us, all Canadians, may have our own assets frozen for failure to obey.
This claimed power is the basis for all the detailed regulations that follow, such as the requirement that all financial institutions and crowdfunding platforms must now reveal their transactions to FINTRAC, and that they are under an obligation to proactively comb through the accounts of Canadians, reporting their confidential financial information to the police.
However, none of this is actually authorized by the act. Section 19(1)(a)(iii) of the act does state that, in a public order emergency, “the Governor in Council may make orders with respect to the use of specified property”. The argument that absolutely all property in Canada, including all money, falls into this category is self-evident nonsense. It is like specifying that the entire universe is a subset of the universe. The purpose of this provision is clearly not to bring an end to the issues, the blocking of bridges and so forth, that the government asserts are the source of the purported emergency. The actual and rather obvious purpose of this provision is to destroy these citizens, even if they are ultimately found to be guilty of nothing.
For this reason, even if the measures contained in the emergency economic measures order and regulations were not an unconstitutional violation of section 8 of the Charter, and even if they were not ultra vires the act, they would be impermissible simply because they are disproportionate. A disproportionate penalty is normally dismissed by a court. We are all familiar with how the courts have reacted to mandatory minimum sentences, for example, but the genius of this provision is that it destroys its victims in ways that cannot be overturned by the courts, just as they were not authorized by the courts. The prosecution is itself the punishment.
By the time a person is cleared or assigned a nominal fine for what the court determines to be a minor offence, they are financially destroyed. The only way we can prevent this catastrophe for people who are, as far as I can tell, mostly guilty of being naive, is for us to vote down the government's proclamation as fast as possible before citizens start losing their assets, credit ratings, jobs or contracts and livelihoods.
The problem to which I am drawing attention is part of a broader set of concerns, which are brilliantly summed up in a paper released today by Advocates for the Rule of Law. They write:
Maintaining this declaration of emergency will endow the Government of Canada with far-reaching powers and it will set a dangerous precedent. If the Government can declare an emergency based on these facts, then it will also be able to do so the next time there is a railway blockade, a threat to pipelines or any other endangerment of national infrastructure. To be sure, each of these is a serious situation that calls for decisive action. But normalizing the declaration of emergencies, especially before other less intrusive (but still significant) measures have been attempted, threatens to render hollow the rights and freedoms guaranteed to all Canadians
For this reason, along with many others, I ask all members to vote to quash this dreadful and shameful proposition.
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- Feb/20/22 8:19:46 p.m.
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Mr. Speaker, they are not the only Conservatives who have been in favour of it. Premier Ford has been in favour of it. This is the same Premier Ford who got rid of an entire level of government because of a vindictive desire to keep a rival, predecessor Conservative leader from having a chance at elected office. It is the same Premier Ford who, last year, engaged in shutdowns in which he made it unlawful to buy children's clothes and rain boots but people could buy garden gnomes. It is the same Premier Ford who invoked the notwithstanding clause so he could make a change to Toronto City Council structure.
I do not respect or admire many of the things that he says, and I do not think I am required to pick sides with him or Peter MacKay against the Conservative premiers of Alberta, Saskatchewan and Manitoba, all of whom think this should not have gone in place, and two of whom, or at least one of whom, is looking at legal action to stop this terrible measure.
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- Feb/20/22 8:21:39 p.m.
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Mr. Speaker, some of the protesters' actions, such as blocking bridges and staying in Ottawa too long, caused problems.
However, it is not necessary to invoke the Emergencies Act to deal with the situation. I believe it would be preferable to use ordinary means.
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- Feb/20/22 8:23:16 p.m.
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Mr. Speaker, I am not advocating unlawful action. However, let us be clear about this. This was civil disobedience. Most of the people out there, in front of the House of Commons were engaged in an act of civil disobedience. Using martial law to crush civil disobedience is a terrible idea. I do not think I have to explain why that is the case. It is just obvious, quite frankly.
Before I sit down, I will just say that I got my start in politics with a fascination with civil disobedience. The first thing I ever wrote that was published was an essay about Henry David Thoreau's great essay on civil disobedience. Sometimes one has to say that a somewhat unlawful action that is not violent, and that has no danger of being violent, ought to be tolerated. There should be negotiations with folks, and that is the best way to cause them to move on for the benefit of all. That worked just fine with the border blockades, and it would have worked fine here. The use of violence was very much inappropriate.
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