This article belongs to the debate » 9/11 und die Rechtsstaatlichkeit
12 May 2022

The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights

Amid the pandemic and the war in the Ukraine, Canada had a quiet emergency. On 14 February 2022, the federal government used the Emergencies Act for the first time since its enactment in 1988. It declared a public order emergency in order to respond to a three week occupation of Ottawa in front of the Parliament building and various border blockades. The government ended the emergency on 23 February 2022, after police had cleared the “freedom” occupation.

This was a mild and quick emergency, as far as emergencies go. Moreover, the Canadian government stressed that human rights would be protected because it was still bound by Canada’s constitutional bill of rights, the Canadian Charter of Rights and Freedoms (the Charter) enacted in 1982.

Mild emergencies that arguably respect rights are better than severe emergencies that do not. Nevertheless, there are still some reasons to be concerned about such use of emergency powers.

The first reason is that secrecy claims may prevent us from knowing whether the emergency was necessary or could have been avoided and whether rights, including equality rights, were truly respected during the emergency.

The second reason is that broad regulations banning public assemblies and their financing went well beyond Canada’s post-9/11 terrorism laws. In addition, the government’s claims of compliance with rights may never be tested in courts. This may increase the chance of emergency laws migrating into the ordinary law, even though as I have argued elsewhere  democracies after 9/11 brought their security laws and responses closer to the responses taken by non-democracies before 9/11.

The third reason is that the declaration of the emergency may be related to Canada’s poor track record in taking far-right violent extremism seriously. As the late Ronald Dworkin reminded us after 9/11, it is a mistake to ignore questions of equality as democracies debate the appropriate balance between liberty and security.

Learning from the Past

The Canadian experience demonstrates how a democracy can learn and improve on an unjust past. The Emergencies Act replaced the War Measures Act that had been used to intern both enemy aliens and Japanese Canadians in World War II. It was also used in October 1970 to declare martial law and suspend habeas corpus after two kidnappings by terrorist cells devoted to the separation of Quebec from Canada. It was not used after 9/11 raising some concerns that the Canada’s response was one based on a permanent emergency.

Section 3 of the Emergencies Act contains a fairly strict definition of an emergency as one 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.” The public order emergency declared on Valentine Day’s 2022 also had to constitute a threat to the security of Canada as defined in the statutory mandate of Canada’s civilian security intelligence agency, the Canadian Security Intelligence Service (CSIS).

The enactment of the Charter in 1982, the creation of a civilian security intelligence agency in 1984 and the enactment of an Emergencies Act in 1988 requiring Parliamentary authorization of an emergency, prohibiting internment on racial or religious grounds, and requiring after the fact Parliamentary reviews as well as a public inquiry, can all been seen as beneficial responses to Canada’s past overreactions to emergencies. They do not, however, guarantee that emergency powers cannot still be abused.

What we Need to Learn About this Emergency but May Never Know

One limit of the inquiries triggered by sections 62 and 63 of the Emergencies Act is that they are limited to examining the federal government’s actions, whereas the roots of the Ottawa occupation and the Windsor blockade are in failures of local policing, including planning for protests. There is no requirement that Ontario, which has ultimate jurisdiction over the local Ottawa and Windsor police, will call a similar inquiry. This is an omission given that emergencies are defined as something that exceeds the capacity of the province.

It appears that a lack of planning and perhaps faulty intelligence or assumptions caused the Ottawa police to allow the truckers to completely block a street opposite the federal Parliament. Over three weeks, they became entrenched, erecting a sound stage and even a hot tub. These policing and planning failures are related to many other similar failures in Ontario, including the policing of the 2010 G20 demonstrations that resulted in over 1000 arrests and a subsequent $16.5 million (Canadian) settlement of a class action for violation of Charter rights.

Intelligence Links and Failures with respect to Far-Right Violent Extremism

One issue that should be examined is whether CSIS failed to collect and share intelligence on whether there were links between the protest and far-right violent extremism. Canada’s intelligence agency has been slow to accept far-right terrorism as a security threat, despite it claiming at least 25 lives in Canada since 2014. The focus appears to have remained on responding to terrorism inspired by al Qaeda and Daesh, begging uncomfortable questions about the social construction of terrorism among security actors.

Unfortunately, both the Parliamentary review and the public inquiry that is required to be called within 60 days of the state of emergency ending may have difficulties getting the answers they need from CSIS. Past national security inquiries have faced challenges in gaining access to classified material, and the Emergencies Act places deadlines on the work of the review bodies that may be unrealistic. The danger is that a quick review might miss classified information that may establish that the use of emergency powers was either unnecessary or could have been avoided.

The connections or lack of connections of the protests with far-right extremists need to be explored. On 14 February 2022, the RCMP seized a large cache of guns near the Coutts, Alberta border blockade and charged four people with conspiracy to commit murder. Alberta Premier Jason Kenney – who opposed the federal declaration of an emergency – nevertheless stated: “What we now know at Coutts, following an exhaustive investigation from the RCMP, is that there is, at least in that case, a small cell of people who wanted to take this in a very dangerous and dark direction.” There is also some evidence of support among the accused for a white nationalist state called Diagolon that is to run diagonally from Alaska to Florida.

Were adequate resources given to collecting intelligence, including through human sources and electronic surveillance? Unfortunately, we may never know. Claims of secrecy – both those that are legitimate and self-interested – remain a barrier to ensuring that national security agencies are held accountable for both what they do and fail to do.

The Importance of Respecting Equality in Security and Policing Responses

Many criticized the police for accepting the “freedom” occupation and blockade for over three weeks, when they take more aggressive stances against Indigenous land blockades and protests by racialized people against police violence. This compounded the equality problem if a lack of adequate intelligence about the danger of far-right violent extremists using the occupation contributed to the policing failure that allowed the Ottawa occupation to last three weeks.

Ignoring equality creates a risk that both the police and the law will be viewed as illegitimate. As I have argued elsewhere, inequality in the application of Canadian anti-terrorism law risks making it “enemy criminal law” that is directed or is reasonably perceived to only be directed at those inspired by Daesh, but not at the far-right. Such a result would be in contrast to the rule of law and both formal and substantive equality.

Adding equality to the security/liberty equation is not only as Professor Dworkin reminded us normatively correct, but it can also result in a more nuanced and constructive debate about the security debates that democracies have been having since 9/11. For example, it may be that attempts by the police to communicate with the “freedom” protesters are a good strategy for future protests. Criticisms of the police for chatting and even negotiating with some of the protesters may be unfair, so long as the police maintained their necessary political neutrality. Such an approach is to be welcomed, but it should be applied equally, including to protests by racialized and Indigenous groups.

The Danger of Relying on Executive Claims of Consistency with Human Rights

The federal government stressed that it was bound and respected the Charter during the emergency. A number of civil liberties are challenging the government in court arguing that the Ottawa occupation did not satisfy the legal requirements of an emergency as defined in section 3 of the Emergencies Act. They are also arguing that the two emergency orders which created very broad new crimes of unlawful public assembly and financing unlawful public assemblies are contrary to the Charter. The emergency regulations build upon and expand post 9/11 terrorism financing laws. They apply not to listed individuals or groups, but to those engaged in unlawful assembly and those who finance them.

The court hearings are scheduled for June of this year, but the federal government is attempting to have the challenges dismissed as moot, given that the emergency has ended and no one was charged under the emergency regulations. This litigation approach, however, undercuts claims of consistency of rights. In Canada, the courts are the ultimate arbitrator of rights. As I have argued elsewhere, the only place where executive or legislative interpretations can be decisive, and even then for only five years at a time, is when the controversial ability of legislation to enact laws notwithstanding fundamental freedoms, legal and equality rights in the Charter is invoked. The derogation or override clause was not used. Its use would have undermined the government’s strategy of suggesting that it respected the Charter.

This litigation challenging the emergency and the two emergency regulations should be allowed to proceed on the merits, even though the emergency has ended, and the regulations have expired. Even if the courts dismissed claims of mootness on the basis that emergencies may occur again and are evasive of review , both claims of national security confidentiality and Cabinet confidences may prevent a reviewing court from going beyond the public record about why the emergency was called and why the emergency orders were necessary. For example, it may never be known what role, if any, President Biden’s call to Prime Minister Trudeau a few days before the emergency was called may have played.

The Dangers of Expanding on Post-9/11 Offences and Financial Sanctions

The emergency crime of unlawful public assembly was written very broadly. It went beyond Canada’s post-9/11 definition of terrorism by including all interference with critical infrastructure and the movement of goods and service. The Canadian Supreme Court has upheld the definition of terrorism as consistent with the Charter, but interpreted it to better respect human rights. Because no one has been charged under the emergency crime of unlawful public assembly, courts may never be able to interpret it or determine whether it is consistent with human rights. At the same time, it may influence future law reform.

The regulations that prohibited the financing of unlawful assemblies also built upon and expanded post 9/11 laws against terrorism financing. There are grave concerns about both the fairness and efficacy of terrorism financing laws promoted by the United Nations and others after 9/11.

The emergency financial regulations may have been effective but in potentially problematic ways. One Parliamentary proceeding has revealed that the RCMP gave financial institutions names of the truck owners that were parked in Ottawa, as well as the names of “influencers of illegal assemblies”. Alas, the RCMP did not explain how it determined who was an “influencer”, a term not contained in the emergency regulations and more often associated with celebrities rather than criminals. This raises the question, also seen in post 9/11 terrorism financing, of reliance on perhaps faulty intelligence to define the targets of financial sanctions. We know from the post- 9/11 experience that innocent people have been targeted by terrorist financing laws. There remains a lack of clarity about how one could obtain redress for being wrongly targeted for financial sanctions such as the freezing of bank accounts that were done during Canada’s short emergency in February 2022.

Conclusion

If the courts decide the ongoing Charter challenge, Canada will benefit from review of an emergency by all three branches of government, given that the Emergencies Act wisely requires both Parliamentary review and the appointment of a public inquiry to examine the circumstances that led to the emergency and the measures taken during the emergency. This may strike some as overkill, but it would help ensure that Canada will continue to learn from its uses of emergency powers.

In the face of increased public polarization and the harms of climate change, there is a danger that governments may use emergency powers more and more. Ordinary citizens may lose their ability to be shocked, alarmed or vigilant about possible government overreach in an emergency, especially when they are assured by experts that the measures taken are consistent with their rights. This makes it only more important that democracies critically evaluate and learn from their emergencies.

Emergency laws that are seen as consistent with human rights may be seen as a good precedent and template for the future. They may have a greater chance of migrating into the ordinary law and becoming permanent than those that explicitly derogate from rights and as such shock the public. In short, new emergency laws may expand security laws that democracies have already expanded since 9/11.


SUGGESTED CITATION  Roach, Kent: The Dilemma of Mild Emergencies that are Accepted as Consistent with Human Rights, VerfBlog, 2022/5/12, https://verfassungsblog.de/os7-consistent/, DOI: 10.17176/20220512-182306-0.

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