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Powers to deal with convoy protest constrained by Charter, uncertainty: law profs

Thursday, February 17, 2022 @ 2:32 PM | By Ian Burns

With the federal government invoking its emergency powers to deal with the “Freedom Convoy” protest which has engulfed Ottawa for the past month and has led to related actions like the blockade of the Ambassador Bridge, legal scholars are saying rhetoric surrounding the “sweeping powers” Ottawa has supposedly given itself are exaggerated, but questions still remain about the extent of the action policymakers can take in response to the crisis.

The University of Toronto faculty of law hosted a conversation about the convoy and Canada’s legal institutions Feb. 16. Constitutional law professor Richard Stacey said he was troubled by comments by some that the government basically has carte blanche to do what it wants.

“That is just not true — in all of its actions the government will be constrained by the Charter, just as it would be by any exercise of power under any other statute in Canada,” he said. “The government is not acting without lawful authority or acting by decree.”

But Stacey also said the possibility of government overreach is not one he was willing to discount entirely.

“If the regulations and the orders the government has made do in fact exceed the powers the Emergencies Act gives them those will be unlawful and those will constitute a threat to the rule of law, because government will be acting in ways the statute does not envisage; the government will be acting in the purported exercise of powers that it does not actually have,” he said. “The second concern is that there may be limitations on Charter rights, and those limitations will have to be justifiable and the only way to that is in the courts — and that will no doubt happen at some point in the future.”

Although such a determination in court will not be an immediate one, Stacey also noted Parliament has an important, and more immediate, role to play as both the declaration of emergency and all related orders issued by government have to be put before MPs.

“And this is a minority Parliament which has shown itself willing to debate on issues,” he said. “I have no reason to believe it will not be a site for lively debate and oversight of the government’s exercise of powers.”

Larissa Katz, the school’s Canada research chair in private law theory, noted the Ontario government has the ability to invoke its powers of civil forfeiture, which would allow it to seize things such as the trucks which are being used in the protest. But she also said that may not be the best step to take.

“The province’s civil forfeiture law was upheld by the Supreme Court and allowed the provinces, which bear the costs of unlawful activity, to have deterrence of unlawful activity as a legitimate purpose within their jurisdiction over property and civil rights. But it is not as clear whether the seizure of an instrument of that unlawful activity serves that same provincial purpose of deterring crime in that same way,” she said. “While unlawful activities that clearly undermine social blueprints may taint a thing so much, we need the state to step in, when you have unlawful activity mixed up with the exercise of other rights and freedoms it may not be a sufficient basis for justifying exercising these powers.”

Law professor and Schwartz Reisman chair of technology and society Gillian Hadfield said the convoy was a “mini-master class” on the issues society is facing with respect to the digital economy and digital platforms, noting crowdfunding platform GoFundMe’s decision to cut off money for the protesters and the federal government’s decision through the Emergencies Act to allow Canadian financial institutions to monitor and report on transactions related to funding what have deemed to be illegal activities.

“We have privately owned corporations like Facebook performing this huge public role making determinations of what is an appropriate use of this infrastructure. But why is Mark Zuckerberg deciding what the line is?” she said. “One thing that is really striking about the protest is the fact that we are now actually seeing what that means for a government to say no, this is something for us to decide — and we are having a debate about whether this is appropriate or not.”

But criminal law professor Kent Roach said he was not convinced an Emergencies Act declaration was going to solve the problem plaguing Ottawa and that it would require a declaration under s. 275 of the National Defence Act, which allows the military to be “called out for service in aid of the civil power” to deal with a riot or disturbance of the peace.

“And that to me would represent a crushing failure that shows intelligence failure, policing failure and government failure which have led us to the sorry state that we are in,” he said.

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